The 5th U.S. Circuit Court of Appeals on Wednesday heard oral arguments once again on the conviction of Texas death row inmate Brittany Holberg, which was previously overturned by justices in March.
All 17 of the court’s judges listened to arguments and questioned attorneys for both Holberg and the state as they weighed the appeal. Much of the discussion and questions from the judges revolved around Vickie Kirkpatrick, who was Holberg’s cellmate before her trial.
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Holberg was convicted of capital murder in 1998 for killing and robbing 80-year-old A.B. Towery, whom she stabbed 58 times and shoved an 11-inch piece of lamp post down his throat while he was still alive. Holberg is one of seven women on death row.
Kirkpatrick became the key witness during trial when she testified that Holberg told her she went to Towery’s home to rob him, enjoyed killing Towery and would do so again for drugs or money. Prosecutors did not disclose at trial, however, that Kirkpatrick had been working as a paid informant for the City of Amarillo on several other cases. Kirkpatrick was released on bond the same day she provided a statement against Holberg to the Randall County District Attorney’s Office. That failure to disclose Kirkpatrick’s role led the appellate court to overturn Holberg’s conviction in March in a 2-1 ruling, but that decision was later vacated for the full panel of judges to consider the case.
David Abernathy, Holberg’s attorney, argued in court Wednesday that disclosure of Kirkpatrick’s status as a paid informant would have cast doubt on her retelling of Holberg’s intent to the jury. In Texas, capital murder is only applicable to homicides that fit a certain set of circumstances, including if a victim is killed while another felony is being committed. Abernathy argued that even if there was no question that Holberg killed Towery, Kirkpatrick’s recounting of Holberg’s alleged confession was the only evidence indicating she intended to mercilessly rob and kill him before going to his home.
“The jury heard Holberg present herself in Kirkpatrick’s telling as dangerous, sadistic and utterly without remorse, and that unquestionably affected the sentencing decision in this case,” Abernathy said. “The suppressed evidence would have destroyed [Kirkpatrick’s] credibility.”
Holberg has long maintained that she went to Towery’s home in 1996 after getting into a car accident and killed Towery in self defense when he attacked her. The then-23-year-old, who was a sex worker, knew Towery as a former client. Justices pressed Abernathy on the relevance of other evidence that may have still proven Holberg guilty of the same things Kirkpatrick said she admitted to, including separate testimony alleging Holberg had been seen with blood-stained money and the severity of Towery’s wounds.
William Cole, the attorney representing the Texas Department of Criminal Justice, argued Holberg’s appeal was not eligible because the disclosure of Kirkpatrick’s role was not materially relevant and would not have affected the outcome of the case. Justices also pressed Cole repeatedly, asking why prosecutors cited Kirkpatrick’s testimony multiple times during their closing argument.
“I think the most powerful testimony was not the 19 pages of Kirkpatrick, it was the testimony of the crime scene investigators,” Cole said. “It was the medical examiner, again, and it was [Holberg’s] testimony.”
It is unknown when the court will rule on Holberg’s case, and the decision may be appealed to the United States Supreme Court after being released. Holberg’s appeal is one of several high-profile death penalty appeals being heard in 2026, including that of Robert Roberson, who was convicted of killing his 2-year-old daughter Nikki.
Roberson, who has maintained his innocence for decades, had his case remanded to trial court in October a week before his scheduled execution. The stay was granted more than a year after a bipartisan group of state lawmakers blocked Roberson’s previously scheduled execution in 2024.