Accused killer Larry Swearingen has been granted a second stay of execution.
The U.S. Court of Appeals for the 5th Circuit handed down the ruling this morning.
Swearingen was set to be executed by injection on Tuesday.
"We're glad that someone has stepped in,'' said Swearingen's attorney James Rytting. "We think this is an extraordinary case of actual innocence. We're hopeful that the federal courts will give the evidence a fair review.''
Swearingen has been on death row in the Polunsky Unit in Livingston since 2000. He was found guilty by a Montgomery County jury of kidnapping, raping and strangling 19-year-old Melissa Trotter on Dec. 8, 1998.
Monday's ruling is the second time Swearingen has been given a reprieve. The Texas Criminal Court of Appeals granted him a stay on Jan. 23, 2007, one day before his scheduled execution date.
In granting Swearingen another stay of execution, the federal appeals court said his due process rights were violated because his trial attorney failed to develop evidence from Trotter's body tissue and did a poor job in cross examining [former Harris County medical examiner Dr. Joye] Carter. The panel also found that the state sponsored "false and misleading forensic testimony regarding when Trotter's body was left in the forest.''
The same arguments were rejected by the state court.
Circuit Judge Jacques L. Wiener Jr. wrote a concurring statement, he said, "to address the elephant that I perceive in the corner of this room: actual innocence.''
Wiener said he sees a "real possibility'' that the district court could view the new evidence "as clear and convincing evidence that the victim could not have been killed by the defendant.''
He noted, however, that lower federal courts dealing with actual innocence claims might have to deny relief to someone who is actually innocent because of existing Supreme Court rulings.
The appeal will now go back to a federal district judge for review.