Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Kevin Christopher Kincy, who is scheduled to be executed after 6 p.m. Wednesday, March 29, 2006. Kincy was sentenced to death for the capital murder of Jerome Harville in his Houston home. The evidence presented at trial showed the following:

FACTS OF THE CRIME

On March 26, 1993, co-workers of Jerome Harville became concerned when he did not show up at work and could not be reached at home or by pager. They drove by his Houston house in the late afternoon and when there was no answer at the door, they peered into the house through a window. They observed that the furniture was in disarray and contacted the sheriff’s department. A deputy entered the house through the unlatched front door and discovered Harville’s body in the bedroom. Harville had been fatally shot in the head with a .25 caliber gun and stabbed several times. His home had been ransacked and a large amount of property had been taken, including his Honda Accord, pagers, stereo equipment, a television, a microwave oven, furniture, and a Ruger 9 mm pistol. Police found two .25-caliber shell casings near the body. Although no suspect fingerprints were found, police discovered small dots or impressions on some of the furniture in the house in a pattern similar to the rubber or plastic bumps found on the bottom of some types of gloves. There appeared to be no forced entry.

A witness testified that Kincy called her after the murder and told her he had “won a lot of money,” a 9mm gun and a car at Harville’s house. The witness said Kincy laughed and said he had come in, surprised the victim, shot him in the head and put a pillow over his head and that Kincy’s cousin, Charlotte Kincy, also laughed and said she had stabbed Harville.

Police later recovered the stolen 9mm weapon at a pawn shop. They traced the weapon back to John Byrom, a friend of Kincy. Byrom testified Kincy asked him to hold the 9mm for him. Kincy told Byrom that he had taken the 9mm from a house where he had killed a man. Byrom agreed to hold the gun, but instead pawned the gun. The police also recovered the murder weapon, a .25-caliber pistol.

Further, when police officers executed a search warrant at Kincy’s apartment, they found a magazine for a .25-caliber pistol and three white gloves with orange raised dots which appeared to match the dot-like impressions found on furniture at the murder scene.

On April 6, 1993, an FBI agent spotted Kevin Kincy speeding in Harville’s Honda Accord on Interstate 10 near the Louisiana border. Police arrested Kincy after a high-speed chase into Louisiana.

PROCEDURAL HISTORY

On July 26, 1993, Kincy was indicted by a Harris County grand jury for the capital murder of Jerome Harville. A jury found him guilty of capital murder, and on Nov. 2, 1995, after a separate punishment hearing, the court assessed Kincy’s punishment at death. Kincy appealed his conviction and sentence to the Texas Court of Criminal Appeals, which affirmed the conviction and sentence on January 21, 1998.

Kincy filed a state application for writ of habeas corpus in the trial court on July 20, 1998. The trial court then entered findings of fact and conclusions of law recommending that Kincy be denied relief. The Texas Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied relief on November 21, 2001.

Thereafter, Kincy filed a federal habeas corpus petition in a Houston federal district court on August 29, 2002. On June 19, 2003, the district court denied Kincy’s federal writ petition. Kincy then requested permission to appeal from the 5th U.S. Circuit Court of Appeals. On February 25, 2004, the 5th Circuit Court denied Kincy permission to appeal. Subsequently, Kincy filed a petition for writ of certiorari in the U.S. Supreme Court, but the Court denied certiorari review on October 4, 2004.

PRIOR CRIMINAL HISTORY AND EVIDENCE OF FUTURE DANGEROUSNESS

The State showed that Kincy had a criminal past that included convictions for possession of marijuana, theft, delivery of cocaine, burglary of a motor vehicle, attempted murder, and a federal charge of unlawful transportation in interstate commerce of a stolen motor vehicle. The federal unlawful transportation charge is Kincy’s conviction for stealing Harville’s car and leading police on the high speed chase between Texas and Louisiana.

The State also showed that Kincy had an extremely poor prison disciplinary history. Specifically, Kincy had committed assaults on officers and other inmates and engaged in sexual misconduct. Kincy had been disciplined over thirty times for violating institution rules.

Jeff Miller, an officer with the Houston Police Department, testified that on March 14, 1993, he clocked Kincy on his radar gun speeding and pulled him over. When he walked up to the car, Kincy reached under the seats. Miller told Kincy to stop doing that and asked Kincy what he was looking for. Kincy said that he was looking for his driver’s license. Kincy then stepped out of the car and started to reach under the seat again. Miller prevented Kincy from doing so and placed Kincy in his police car. Miller then looked under the front seat of Kincy’s car and found a loaded .25 caliber pistol and three small envelopes of marijuana. Kincy was charged with felony possession of a firearm for this offense.

Terskisha Dawson testified that when Kincy took her and Christie Durham to a Chinese restaurant after Harville’s murder, Kincy was in possession of the 9mm Ruger. As they were leaving the restaurant, some men outside made flirtatious comments and sounds toward Dawson and Durham. Kincy became angry, turned around, lifted up his shirt to show the men the gun, and stated that they better not say or do anything or he would shoot them. Dawson further testified that she later saw Kincy at Westwood Mall in possession of the gun. Kincy, who was in his car in the parking lot, pointed the gun out the window and up into the air, shot 3-5 times, and drove off at high speed. Several people were in the parking lot at the time.

Finally, John Byrom testified that Kincy gave him the 9mm Ruger to have it fitted for a silencer. Kincy gave Byrom $100 up front for the silencer and said that if the job was successful, “there’d be plenty more guns and a lot of money to be made.” Kincy also told Byrom that he was going to rob some dope houses, one in Louisiana and one in Houston, and needed a getaway driver. Kincy asked Byrom to be the driver, but Byrom declined.

Houston Chronicle

"Houstonian caught in slaying victim's car executed," by Michael Graczyk. (Associated Press March 29, 2006, 7:50PM)

HUNTSVILLE — A former pizza delivery man with an extensive criminal record was executed today for the robbery and slaying of a Houston-area man 13 years ago. In a brief statement, Kevin Kincy thanked his friends, supporters and family and mentioned several of them by name. "I love my children. I love my family," he said. "That's it."

In the seconds before the drugs took effect, Kincy pursed his lips into a kiss and smiled and nodded to a Swiss woman who married him by proxy last year. The woman and a female companion from Germany wept. Kincy had met his wife on a death penalty Web site that seeks pen pals. Five relatives of his murder victim watched through an adjacent window. Kincy made only a brief glance at them before the drugs were administered. He was pronounced dead at 6:26 p.m., eight minutes after the lethal drugs began to flow.

Kincy, 38, was on parole for delivery of cocaine when he was arrested in Louisiana following a police chase for the stabbing and shooting of Jerome Harville at his home outside Jacinto City. Kincy, from Houston, was the seventh convicted killer executed this year in Texas, the nation's busiest capital punishment state. At least a dozen more inmates have death dates in the coming months, including three in April and five in May.

Kincy's lawyers, hoping to block the lethal injection, went to the U.S. Supreme Court with an appeal challenging the drugs used in the execution as unconstitutionally cruel. Like similar appeals in recent Texas death penalty cases, however, the high court rejected the argument in a ruling about 1 1/2 hours before Kincy's scheduled punishment. "It's not very good," attorney Alex Calhoun had said of his prospects. "The whole point of appeals is maybe there's that one case that catches the Supreme Court's attention."

Kincy had the attention of Texas Department of Criminal Justice officials, who scrapped media interviews with him last week after they said he threatened prison staff at the Polunsky Unit near Livingston, which includes death row. Early today, Kincy spent time with his mother, Dorothy Robertson, before his transfer to the Huntsville Unit where executions are carried out. Texas Department of Public Safety troopers were added to the normal security from the prison system to beef up the law enforcement presence for Kincy's trip to Huntsville. There were no unusual incidents and Kincy was reported as very quiet in a holding cell adjacent to the death chamber in the hours before scheduled punishment.

The visit with his mother marked the first time he had seen her since she was arrested last summer. Polk County authorities pulled her over after she left the prison and found about a pound of marijuana in her van. She contended she was duped by someone who disguised the package as a gift and the arrest was a continuation of harassment against her and her son.

Harville, the 31-year-old slaying victim, had worked for three years as an industrial hygienist at an Exxon refinery in Baytown and was the former boyfriend of Charlotte Kincy, the prisoner's cousin.

According to a witness at Kincy's trial, the cousins hatched a plan where Harville would be seduced and distracted by his old girlfriend, allowing Kevin Kincy to sneak into the home and shoot him. Evidence showed that after Harville was shot, Charlotte Kincy stabbed him several times. The pair then ransacked his place and stole numerous items, including furniture and his car. Colleagues at Exxon became worried when Harville didn't show up for work and went to his house. When they saw it had been trashed, they called police, who found his body.

About two weeks later, an FBI agent ran the plates on a Honda Accord traveling about 100 mph on Interstate 10 east of Beaumont and determined it was Harville's stolen vehicle. The ensuing chase covered some 30 miles and ended in Westlake, La., with a flat tire after Kincy crashed through a police roadblock as officers fired at him. Kincy denied any knowledge of the Harville killing, but items he threw out the window of the speeding car led police to his cousin, Charlotte. She pleaded to a 40-year prison term.

At the time of his arrest, Kincy was free on bond on a weapons charge. He also was on parole after a cocaine delivery conviction and had other convictions beginning at age 18 for marijuana possession, theft and burglary. During his time in prison, records showed he had more than 30 disciplinary violations. "They can hang him," Hosea Harville, 83, of St. Louis, the murder victim's father, told the Houston Chronicle. "He killed a good man."

Next on the execution schedule is Pedro Sosa, set to die April 25 for the 1983 fatal shooting of a Wilson County sheriff's deputy.

Houston Chronicle

"Chase led to death row; Killer thought he got away with murder, but then he was caught in the victim's car," by Allan Turner. (March 27, 2006, 10:32AM)

Hours after the killing, Kevin Kincy gloated as he watched a TV report of his crime. Buoyed by the news that police were hunting a white suspect — Kincy is black — the young career criminal brashly ticked off a list of what he had done right during the bloody robbery-murder of his cousin's boyfriend. He failed to consider, though, what he was about to do wrong: catch the attention of an East Texas FBI agent by speeding through Vidor at 90 mph in the dead man's car. The April 6, 1993, traffic offense on Interstate 10 quickly grew into a 25-mile chase with speeds reaching 130 mph. By the time it ended at a police roadblock near Sulphur, La., Kincy irrevocably had detoured onto a legal road that would take him to Texas' death row.

Kincy, 38, is scheduled to be executed Wednesday for the March 26, 1993, murder of Jerome Harville, a 32-year-old Exxon industrial hygienist. Kincy's attorney, Alexander Calhoun of Austin, last week filed federal appeals seeking to save his client by arguing that chemicals used in executions constitute cruel and unusual punishment. His is the second of two executions scheduled on consecutive nights this week. Raymond DeLeon Martinez is set to die Tuesday for a 1983 murder in Houston. "They can hang him," Harville's father, Hosea Harville, 83, of St. Louis said of his son's killer in a telephone interview. "They need to drag him right now. He killed a good man. I put my son through school. He went to church. He was just starting out. That man took advantage of him."

Kincy's mother, Dorothy Robertson, 49, insists that her son is not the killer. "Absolutely not. My son truly would never do something like that unless he was forced or dragged. It would take something terrible to make him do something like that," she said. "Kevin is too compassionate."

Meant as payback

According to trial testimony, Kincy and his cousin, Charlotte Kincy, 46, plotted the burglary and murder to "pay back" Harville, who was described as the woman's former boyfriend. Charlotte Kincy is serving a 40-year sentence for aggravated robbery in the case. Testimony showed that Charlotte Kincy intended to distract Harville while her cousin slipped into the victim's house to rob and shoot him.

When Harville failed to appear at work the next day, co-workers went to his home to investigate. When no one responded to knocks on the door, Harville's colleagues borrowed a ladder, peeped through a window and found that the house had been ransacked. Sheriff's officers called to the scene found Harville's body on the floor. He had been shot in the head. A witness testified that Kincy later boasted of the killing and flaunted a 9 mm pistol stolen from the victim. Charlotte Kincy bragged of stabbing the man. Stolen from the home were stereo gear, a television, furniture, a microwave oven and a late-model Honda sedan.

Early, unsuccessful appeals for Kincy argued that Charlotte Kincy was prepared to testify that her cousin killed Harville in self-defense, but she never was called to the stand. When called to testify during the punishment phase, she sought Fifth Amendment protection against self-incrimination.

State prison officials last week canceled a scheduled media interview with Kincy, contending that he had threatened the safety of prison personnel. Attorney Calhoun said Kincy is under heavy guard in solitary confinement. "I have not had the opportunity to get to the bottom of it," Calhoun wrote in an e-mail. "My understanding is that there have been no hearings on any of the alleged threats, and therefore it is virtually impossible to determine whether TDCJ's allegations — if there even are allegations — have any actual factual basis." Robertson said her son continually has been harassed by prison employees while on death row.

"They call this a criminal justice system," she said. "There is no justice. This system fails everyone so severely." Robertson said she has not been allowed to visit her son since August, when she was arrested on a charge that she possessed marijuana on state prison property. Court documents in Polk County, home of the Polunsky Unit where Kincy is incarcerated, note the woman was arrested during a U.S. 59 traffic stop after she left the prison property. A search of her van turned up about a pound of the drug, authorities contend.

Was married by proxy

Robertson has been indicted in the felony case. If convicted, she could be sentenced to as many as 10 years in prison and/or fined $10,000. Robertson said her son, who at one point aspired to be a youth counselor, has corresponded with, and mentored, hundreds of people since he was imprisoned for Harville's murder. In a late-1990s Web posting soliciting pen pals, Kincy offered a brief biography to potential supporters. "I enjoy all types of music, writing and traveling," he wrote. "In fact, my sister and I went to school in London some 14 years ago. The experience was wonderful. Sometimes I wish that I never came back. ... I love all people."

Among his correspondents was Barbara Raval, now 41, a divorced mother of three daughters who began writing Kincy in 1997 and married him by proxy in January 2005. "He's an adorable person," she said last week. "You just have to love him. He's so much fun. He's just a good man." Raval, a Swiss citizen, charged that Kinsy received inadequate counsel and, like some other Texas inmates, is "being fast-tracked to the gurney by having attorneys that may not be competent to handle a death penalty case." Robertson argued that Kincy's contentions that he was at work when the murder was committed and that prosecutors coerced a key witness to perjure himself never received a hearing by jurors or appeals judges.

History of crime

Prison records indicate Kincy was imprisoned in July 1986 on a 10-year Harris County sentence for attempted murder. He was released on shock probation four months later. (Under shock probation, a defendant who is considered unlikely to repeat the crime is released after doing a short stint behind bars.) In February 1987, he was returned to prison on a six-year Harris County sentence for burglary of a motor vehicle. He was released on mandatory supervision in December 1988. In October 1989, he began serving a 15-year Harris County sentence for delivery of a controlled substance. He was paroled in December 1991. Kincy was convicted of murdering Harville in October 1995.

In the earlier cases, Robertson contended, Kincy had been an unwilling participant in crimes perpetrated by a group of friends. "He got entangled with a group of boys, and they were all charged with the crime," she said." ... He hung with the wrong gang and he couldn't change their minds." The Rev. John Lasseigne, pastor of St. John the Baptist Catholic Church in the Rio Grande Valley community of San Juan, said he paid Kincy death-row visits seven or eight times between 1999 and 2002.

"He was very courteous and well-spoken, even upbeat when I visited him," Lasseigne said. "It was a very unexpected attitude from a death row inmate. He recently e-mailed me and said he expected to beat this death sentence. He showed a positive outlook. I can't say that I share his optimism." Lasseigne said Kincy was "always a little vague" about the extent of his involvement in Harville's murder. "He was involved to some extent," Lasseigne said, "but he clearly does not believe his involvement rose to the capital punishment level."

Fort Worth Star-Telegram

"Houston man set to be executed for refinery worker's death," by Juan Lozano. (Associated Press Posted on Tue, Mar. 28, 2006)

HOUSTON - The robbery plan was simple but brutal. Jerome Harville would be distracted by his girlfriend while her cousin sneaked into the Exxon employee's home. Once inside, the cousins would kill Harville and ransack the place. His girlfriend, Charlotte Kincy, stabbed him several times after her cousin, Kevin Kincy, fatally shot him in the head. They stole everything from a microwave to Harville's car.

But it was the car that led authorities to Kevin Kincy after the March 1993 slaying. He was spotted driving it near Beaumont by an FBI agent about two weeks later. He was arrested after leading authorities on a high-speed chase into Louisiana. Kevin Kincy, 38, was convicted of capital murder and is set to be executed Wednesday night in Huntsville. He would be the seventh prisoner put to death this year in Texas and the third this month in the nation's busiest capital punishment state. Another inmate's execution, which had been set for Tuesday, was delayed last week.

Julian Ramirez, who prosecuted Kevin Kincy, said the condemned inmate had no regard for Harville's life. "He had bragged about killing the victim to a number of people," said Ramirez, a Harris County prosecutor. "The thing that will always stand out in my mind is what he said before he shot the victim in the head. He said, 'You got to go, Jerome.' There was no hesitation, no second thoughts about it."

Kevin Kincy had a long criminal history, including convictions for attempted murder and delivering cocaine. Harville, 31, had worked for three years as an industrial hygienist at an Exxon refinery in nearby Baytown. Officials said he was well-liked by co-workers, who called authorities after the punctual employee failed to show up at the refinery. After his death, Exxon offered a $5,000 reward for information on his killer. Kevin Kincy, who a pizza delivery driver at the time of the crime, was not allowed to grant media interviews last week after state prison officials said he was a threat to guards and other personnel.

On Monday, the 5th U.S. Circuit Court of Appeals denied a request from his attorney, Alexander Calhoun, to delay the execution by lethal injection because the combination of drugs constitutes cruel and unusual punishment. Calhoun has appealed to the U.S. Supreme Court. Similar appeals this year by four other condemned Texas inmates have been unsuccessful. "I think there is some merit here," Calhoun said. "It's not just a frivolous point."

Calhoun said his client has claimed he was innocent of capital murder in the case. "Mr. Kincy disputes the fact he planned to even burglarize the home. There was no prior plan to kill," Calhoun said. In prior appeals, Kincy suggested he acted in self-defense and that prosecutors coerced two witnesses to lie when they testified against him at trial. Appeals courts denied these claims.

Calhoun said Charlotte Kincy was equally responsible. "Maybe she's more culpable. She suckered the victim into her web," he said. "That just doesn't look good. If (Kevin Kincy) has to die, why does she escape that?" Charlotte Kincy pleaded guilty to aggravated robbery with a deadly weapon and was sentenced to 40 years in prison.

Ramirez said Kevin Kincy was more culpable because he fired the fatal shot. "We had a mountain of evidence against the guy and frankly didn't need her to testify in order to convict Kevin Kincy," Ramirez said. "She had given a statement implicating him and her as well in the crime."

Next on the execution schedule is Pedro Sosa, condemned for the 1983 shooting death of a Wilson County Sheriff's Department deputy. He is set to be executed April 25.

ProDeathPenalty.com

Kevin Kincy, a former pizza delivery man, was sentenced to die for the 1993 murder of a Houston area man during a scheme to rob his home. Kincy had an extensive criminal record when he was arrested for the robbery and slaying of a Houston-area man 13 years ago. Kincy was on parole for delivery of cocaine when he was arrested in Louisiana following a police chase for the stabbing and shooting of Jerome Harville at his home outside Jacinto City.

Jerome had worked for three years as an industrial hygienist at an Exxon refinery in Baytown and was the former boyfriend of Kevin Kincy's cousin Charlotte Kincy. The cousins hatched a plan where Jerome Harville would be seduced and distracted by his old girlfriend, allowing Kevin Kincy to sneak into the home and shoot him. Evidence showed that after Harville was shot, Charlotte Kincy stabbed him several times. The pair then ransacked his home and stole numerous items, including furniture and his car.

Co-workers at Exxon became worried about Harville when he failed to show up for work. They went to his house and when they found it is disarray, they called police, who then found Jerome's body. About two weeks after the murder, an FBI agent ran the plates on a Honda Accord he observed traveling about 100 mph on Interstate 10 east of Beaumont and discovered that it was Jerome Harville's stolen car. A 30 mile police chase ensued, ending in Westlake, La., when Kincy crashed through a police roadblock as officers fired at him. Kincy denied any knowledge of the Harville killing, but items he threw out the window of the speeding car led police to his cousin, Charlotte. She pleaded to a 40-year prison term.

At the time of his arrest, Kincy was free on bond pending trial on a weapons charge. He also was on parole from a conviction on charges of delivering cocaine and had a lengthy prior record of convictions. During his time in prison, records showed he had more than 30 disciplinary violations. "They can hang him," Hosea Harville, 83, of St. Louis, the murder victim's father, said. "He killed a good man."

Texas Execution Information Center by David Carson.

Kevin Christopher Kincy, 38, was executed by lethal injection on 29 March 2006 in Huntsville, Texas for the robbery and murder of man in his home.

On 26 March 1993, Kincy, then 25, and his cousin, Charlotte Kincy, 33, went to the Houston home of Jerome Harville, a former boyfriend of Charlotte's. Harville let the two inside his home. Kevin then drew a .25-caliber semiautomatic pistol and shot Harville in the head. After stabbing the victim several times, he and Charlotte then loaded some of Harville's possessions - including stereo equipment, appliances, furniture, and a Ruger 9mm pistol - into Harville's car, and fled. Harville's body was discovered that day after concerned co-workers called the sheriff's department.

Homicide investigators found two .25-caliber shell casing near the body. On some furniture, they observed patterns of small dot marks, which appeared to have been made by someone wearing rubber gloves. The stolen 9mm pistol was recovered at a pawn shop and traced to John Byrom. Byrom later testified that Kincy told Byrom that he had taken the gun from a house where he had killed a man. Byrom said that Kincy asked him to hold the gun for him, and he agreed, but then he decided to pawn it instead. Investigators also recovered the .25-caliber pistol used to shoot Harville. When investigators searched Kincy's apartment, they found a .25-caliber magazine and three gloves with raised dots on the fingertips, which matched the dot pattern left on Harville's furniture.

Nine days after the murder, an FBI agent spotted Kincy driving the victim's Honda Accord on Interstate 10. After a high-speed chase, Kincy was apprehended in Louisiana.

At Kevin Kincy's trial, Terkisha Dawson testified that prior to the murder, Kevin and Charlotte spoke of their plan to rob a and kill a man in his home. She testified that their intended victim was a man who Charlotte had been romantically involved with. Their plan was for Charlotte to distract the victim, while Kevin would enter the home and kill him. Dawson further testified that Kevin phoned her after the murder, laughing as he described how he surprised Harville, shot him, and stabbed him several times.

Keenan Mosley, another cousin of Kevin Kincy's, testified that Kincy displayed the gun he had stolen from Harville and made a list of pros and cons concerning his chances of getting caught. Mosley also testified that Kincy mentioned having worn gloves during the crime. Mosley further testified that she observed Kincy in possession of a Honda Accord and a large amount of home appliances and equipment.

Kincy's co-worker, Byron Brown, testified that on the day of the murder, he accompanied Kevin and Charlotte Kincy to a house. He entered a bedroom and saw a man lying on the floor. Upon realizing that the man was dead, Brown testified, he became frightened and left the house.

Kincy was convicted of attempted murder in 1986 and sentenced to 10 years in prison. He served 4 months of that sentence before being released on "shock probation." In less than four months, he was back on prison on 6-year conviction for burglary of a motor vehicle. He stayed behind bars for three months before being released again. In October 1989, he was convicted of delivery of cocaine and sentenced to another 15 years in prison. He was paroled in December 1991. (At the time, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.)

Twelve days before the murder, Kincy was pulled over by Houston police officer Jeff Miller for speeding. Miller testified that when he walked up to the car, Kincy was reaching under the seats. Miller looked under the seat and found a .25-caliber pistol and several bags of marijuana. Kincy was charged with felony possession of a firearm.

At Kincy's punishment hearing, Terkisha Dawson testified that after the murder, Kincy took another woman and her to dinner. As they were leaving the restaurant, some men outside made flirtatious remarks toward the women. Dawson testified that Kincy turned around and lifted his shirt to show the 9mm Ruger to the men, and threatened to shoot them. Dawson also testified that on a different occasion, she saw Kincy shoot the gun into the air from his car while at a mall parking lot, then he drove away at high speed.

John Byrom testified that Kincy asked for his help in fitting the 9mm pistol with a silencer and to be his getaway driver in future home robberies.

A jury convicted Kincy of capital murder in October or November 1993 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 1998. All of his subsequent appeals in state and federal court were denied. Kincy was also convicted on a federal charge of transporting a stolen vehicle across state lines.

Charlotte Marie Kincy was also charged with capital murder, but the charges were reduced to aggravated robbery in exchange for her guilty plea and promise to testify against her cousin. She was sentenced to 40 years in prison. She was not called to testify in the guilt/innocence phase of Kevin's trial. When she was called to testify in the punishment phase, she refused to testify, invoking her Fifth Amendment right against self-incrimination.

Kincy had a reputation for being a difficult, violent prisoner. He was not available for media interviews prior to his execution. State officials said that Kincy had threatened to harm the prison staff. For his transport to from death row in Livingston to Huntsville, where all Texas executions are carried out, state troopers were added to the usual prison guard escort. Officials said that there were no incidents during the transport, and Kincy was quiet in his holding cell.

On the day of his execution, Kincy was visited by his mother. It was the first time he had seen her since last summer, when, on her way out of the prison, she was arrested for having a pound of marijuana in her van.

In his last statement at his execution, Kincy thanked his friends and supporters and expressed love to his family. He then glanced briefly at Harville's relatives. The lethal injection was then started. Kincy pursed his lips into a kiss for his wife, Barbara, a Swiss woman who married him by proxy after they became pen pals via an anti-death-penalty web site. Kincy was pronounced dead at 6:26 p.m.

National Coalition to Abolish the Death Penalty

Kevin Kincy, TX - March 29

"TEXAS----impending execution of Kevin Kincy," Houston Chronicle, March 27, 2006:

Do Not Execute Kevin Kincy!

Kevin Christopher Kincy, a black man, was convicted of capital murder and sentenced to death for the murder of Jerome Harville in Houston, Texas. Prosecutors alleged that Kincy and his cousin and co-defendant Charlotte Marie Kincy went to Harville’s home with the intent to rob him. Harville, who was romantically involved with Charlotte, allowed the two inside. It is purported that upon gaining entrance Kincy shot Harville in the head and proceeded to load up Harville’s car with stereo equipment, furniture, a pistol and then fled.

Kincy’s central concern with regard to how his trial was conducted involves Charlotte. Both Kincy and Charlotte were charged with capital murder, but after agreeing to testify against Kincy at trial Charlotte’s charge was reduced to first degree aggravated robbery. If she did not plead guilty to the reduced charge and testify against Kincy, the State retained the right to charge her with capital murder. The prosecution did not call Charlotte as a witness in the conviction phase of the trial. But when called to the stand by Kincy during the sentencing phase, Charlotte refused to testify, invoking her Fifth Amendment privilege against self-incrimination. Kincy maintains that had Charlotte testified she would have stated that Kincy was acting in self-defense when he shot Harville. Similarly, it is Kincy’s contention that the reason the State never called Charlotte to testify was to avoid the jury from hearing the possibility that Kincy was defending himself. In a 1995 letter written by Charlotte, as well as in a written and signed statement, she claims Kincy was acting in self defense.

In a recent decision, the U.S. Fifth Circuit Court of Appeals denied Kincy’s petition for a certificate of appealability (COA) upholding Charlotte’s invocation of the Fifth Amendment. It is the Court’s opinion that because Charlotte’s plea agreement did not guarantee a specific sentence and, therefore, she had not been sentenced at the time of Kincy’s trial, she retained her Fifth Amendment rights.

Kincy’s case also exemplifies the way in which the AntiTerrorism and Effective Death Penalty Act (AEDPA), a federal law enacted in 1996, has created an inordinate amount of obstacles that inmates must maneuver just to exercise their right to petition for habeas relief. In short, the AEDPA placed strict limitations on habeas corpus appeals in federal court. One such obstacle is that in order to appeal on the federal level inmates must exhaust the state remedies available to them first. Moreover, because inmates are limited to one federal appeal, in order to submit a second or successive petition an inmate must ask for a COA from an appellate court. Thus when Kincy sought a COA to prove his innocence based on impeachment evidence pertaining to two witnesses that testified against him, the Court refused to grant him a COA because he had not presented this particular claim in a state court. As a result of Kincy’s failure to “exhaust” his claims in the state courts before presenting it to the Fifth Circuit Court of Appeals, a procedural default occurred thereby making his claims procedurally barred. In other words, because Kincy failed to jump through the appropriate hoops as dictated by the AEDPA he will no longer be able to present the new evidence he has regarding his innocence.

Kincy’s case is one of many that have been burdened by procedural complications. Recognizing that ineffective assistance cannot serve as cause to excuse procedural default, Kincy took the opportunity in his appeal to discuss the uphill battle inmates face with both incompetent state habeas counsel and the lack of guiding standards in the State’s habeas proceedings. In the end, Kincy’s petition for habeas relief was denied.

Please write to Gov. Rick Perry on behalf of Kevin Kincy!

ALIVE - Coalition to Abolish the Death Penalty (Voices From Inside)

Kevin Kincy -ALIVE e.V. - Voices From Inside

Hello there,

my name is Kevin Kincy. I am from Houston, Texas and I have a beautiful 8 year old daughter. I love all types of music, I love to cook (and to eat of course), to travel, to swim and love animals.

I have been to a few countries in Europe: Italy, Austria, Switzerland, Germany, GB, France, Belgium and Luxembourg. I play the trumpet and I went to school in London for a while. I cannot speak German, but I can write and read German with the assistance of my German/English dictionary.

I am very interested in writing to males or females, any age is fine. I will reply all letters. I am sure there may be questions as to how and why I am in prison. For anyone who wants to know, I will answer all questions.

As of April 6th 2001, it will be 8 years since my last day of freedom. I hope to hear from you soon.

Kevin Kincy # 999179
Polunsky Unit
3872 F.M. 350 South
Livingston, TX 77351 USA

Citizens United for Alternatives to the Death Penalty

Prisoner Profile

Kevin Kincy #999179
Polunsky Unit 3872 FM
350 South Livingston TX 77351 USA

State of Incarcertaion: Texas

Kevin Christopher Kincy was convicted in Houston, Texas for the murder of Jerome Harville, on April the 6th 1993. His State appeal has been denied, because his State appointed lawyer failed to attach evidence to the habeus corpus writ, wich had proven that Kevin had been listed to work at the time the crime happend. His lawyer has failed to pick important Statements from two witnesses, who say Kevin Kincy did not commit the murder. We are raising money, to hire Gary Taylor (Austin) as his attorney and get a proper investigation.

Attorney: Gary Taylor, Austin, Texas (phone: 512 301 5100)

Contact address: Barbara Raval, Neuhofweg 38, 3400 Burgdorf (Switzerland)

e-mail: strawberry@freesurf.ch

Websites:
http://www.ecadp.org (Silent screams) where the whole story can be seen...
http://www.lifespark.org (Letter of the month...June)

Kincy v. Dretke, 92 Fed.Appx. 87 (5th Cir. 2004) (Habeas)

Background: State inmate convicted of capital murder and sentenced to death filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas dismissed petition. Petitioner filed motion for certificate of appealability (COA). Holdings: The Court of Appeals, Edith H. Jones, Circuit Judge, held that: (1) petitioner's codefendant retained her Fifth Amendment privilege against self-incrimination; (2) petitioner's actual innocence claim was not cognizable under federal habeas corpus; and (3) petitioner's claims that state suppressed impeachment evidence and offered materially false evidence were procedurally defaulted. COA denied.

Kevin Christopher Kincy was convicted of capital murder and sentenced to death for murdering Jerome Harville during the course of a robbery. After exhausting state remedies, Kincy filed a § 2254 petition for a writ of habeas corpus in federal district court raising eight grounds for relief. The district court granted the state's motion for summary judgment on all eight issues, dismissed Kincy's petition, and refused to grant a certificate of appealability (“COA”) on any issue raised.

Kincy now seeks a COA from this court on five issues: (1) whether he was denied due process and a fair trial because the trial court upheld a witness's invocation of the privilege against self-incrimination; (2) whether he was denied due process because he has evidence of actual innocence; (3) whether he was denied due process because of the State's suppression of impeachment evidence pertaining to witness John Byrom; (4) whether he was denied due process because the State presented materially false evidence through two witnesses; and (5) whether his appellate counsel provided constitutionally ineffective assistance by failing to raise as error a witness's invocation of her privilege against self-incrimination. We deny a COA on each claim.

BACKGROUND

Terkisha Dawson testified at Kincy's trial that prior to the murder, Kincy and his cousin, Charlotte Kincy, spoke of their plan to rob a man and steal his car and possessions. Dawson further testified that the plan was for Charlotte, who was romantically involved with the man and had been accepting money from him, to seduce the man in his home to prevent him from setting his alarm. Kincy would then enter the home and, according to Dawson's testimony, kill the man. In March 1993, Byron Brown, Kincy's co-worker, accompanied Kincy and Charlotte to a house. Brown testified that upon entering a bedroom, he observed a man lying on the floor who he later realized was dead. Brown further testified that he became frightened and left the house. On March 26, 1993, co-workers of Jerome Harville became concerned because of his absence from work. They eventually notified the sheriff's department and Harville was discovered in his home, having been fatally shot in the head and stabbed several times. In addition, Harville's home had been ransacked and his Honda Accord, among other items, had been stolen. The police uncovered prints in the home consistent with a person wearing gloves.

Dawson further testified that Kincy explained to her how he surprised Harville in his home and shot him in the head. Dawson also testified that Charlotte admitted to stabbing Harville several times. Keenan Mosley, another of Kincy's cousins, also testified that Kincy displayed a gun he had stolen from Harville, made a list of pros and cons concerning his chances of getting caught, and mentioned having worn gloves. In addition, Mosley testified that she observed Kincy with a Honda Accord and a large amount of home appliances and equipment.

Police linked Kincy to the crime after locating both the murder weapon and Harville's stolen gun. On April 6, 1993, an FBI agent spotted Kincy driving Harville's Honda Accord on Interstate 10 in Texas near the Louisiana border. Police apprehended Kincy in Louisiana after a lengthy high-speed chase. Both Kincy and Charlotte were charged with capital murder. However, the State agreed to reduce Charlotte's charge to first degree aggravated robbery in exchange for Charlotte's guilty plea and her promise to testify against Kincy at trial. The plea bargain further stated that, should Charlotte choose not to testify or fail to testify truthfully, the agreement would be void and the State would be free to reinstate the capital murder charges. The plea bargain did not purport to guarantee Charlotte a specific sentence. However, Charlotte was not called as a witness in the guilt/innocence phase of Kincy's trial. Nevertheless, the jury convicted Kincy of capital murder.

During the punishment phase of the trial, Kincy indicated that he wished to call Charlotte as a witness. Charlotte was sworn in and, on the advice of counsel, indicated her desire to invoke her Fifth Amendment privilege against self-incrimination. Kincy's attorney objected, arguing that by pleading guilty Charlotte had waived her Fifth Amendment privilege. The trial court disagreed and allowed Charlotte to invoke her privilege. Kincy's attorney then stated that, if she had testified, Charlotte would have verified that she was “the organizer, the planner, the schemer” behind the crime.

The jury sentenced Kincy to death, and he unsuccessfully appealed to the Texas Court of Criminal Appeals. Kincy v. State, No. 72,246 (Tex.Crim.App.1998) (unpublished). Once his conviction and sentence had been affirmed, Kincy filed a state habeas application in the trial court. Based on the trial court's findings of fact and conclusions of law and its own review, the Court of Criminal Appeals denied habeas relief. Ex parte Kincy, No. 50,266-01 (Tex.Crim.App. Nov. 21, 2001) (unpublished). On August 29, 2002, Kincy filed a petition for writ of habeas corpus in federal district court.

* * *

In this case, Charlotte entered into a plea agreement whereby she agreed to testify against Kincy. But because she had not yet been sentenced at the time of Kincy's trial and the plea agreement in no way guaranteed her a specific sentence, she retained her Fifth Amendment rights.FN2 See Mitchell, 526 U.S. at 326. Neither the state, however, nor Kincy could require Charlotte to testify as a result of the contractual plea agreement alone. Reasonable jurists could not debate the district court's conclusion that Charlotte retained her Fifth Amendment privilege against self-incrimination. Further, the state courts' similar decisions cannot have been contrary to or an unreasonable application of federal law. We deny Kincy's application for COA on this claim.

FN2. Kincy's trial counsel proffered that Charlotte would testify to being the “organizer” of the crime. If this representation were true, Charlotte certainly possessed a legitimate fear that any testimony she might give concerning culpability could conceivably affect her yet-to-be-determined sentence.

* * *

Kincy next seeks a COA based on the district court's rejection of his actual innocence claim. Kincy argues that Charlotte's 1995 letter and subsequent written statement prove that he acted in self-defense and is innocent of the crime of capital murder.FN3 However, it has long been the rule in this circuit that claims of actual innocence based on newly discovered evidence alone are not cognizable under federal habeas corpus. FN4 Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992), aff'd, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Bryant v. Scott, 28 F.3d 1411, 1420 n. 14 (5th Cir.1994); Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir.1998). Because reasonable jurists could not disagree or find wrong the conclusion that Kincy's actual innocence claim is not cognizable, we deny his application for COA on this claim.FN5

FN3. Charlotte alleges that she and Kincy went to Harville's home because Harville owed Kincy money. She further alleges that after telling Kincy he would give him the money, Harville pulled a gun and the two struggled. Finally, Charlotte states that it was only after Harville said to Kincy “I'm going to kill you,” that Kincy shot Harville. Charlotte's written statements do not, among other things, explain why Charlotte subsequently stabbed the victim numerous times.

FN4. It should also be noted that the Supreme Court has expressed its reluctance to rely on affidavit testimony in this regard because of the absence of cross-examination. Herrera, 506 U.S. at 417. In addition, the affidavits in the instant case, like those presented in Herrera, were issued years after the crime and resulting trials occurred. Id. Finally, no explanation has been given why Kincy, who was presumably aware of his self-defense justification, did not present that theory to the jury at his trial.

FN5. While the district court noted that Kincy's actual innocence claim was not cognizable under federal habeas corpus, the court also believed the claim to be procedurally defaulted and therefore not deserving of further attention. We do not address the district court's alternative ground for denying Kincy's petition for writ of habeas corpus because, as discussed supra, the actual innocence claim, standing alone, is not a cognizable claim in this circuit. Thus, Kincy's substantive actual innocence claim is not an issue that “deserve[s] encouragement to proceed further.” Miller-El, 537 U.S. at 336.

* * *

Because we DENY Kincy's application for COA on each of the issues raised, we lack jurisdiction to review the district court's denial of habeas relief. COA DENIED.

Kincy v. Livingston, Slip Copy, 2006 WL 775126 (5th Cir. Tex. 2005) (Sec. 1983)

Plaintiff-Appellant Kevin Kincy (“Kincy”) is scheduled to be executed on March 29, 2006. Kincy appeals the district court's dismissal of his suit for injunctive relief pursuant to 42 U.S.C. § 1983. He alleges that the method of execution used by Texas, lethal injection, may cause excruciating pain in violation of the Eighth and Fourteenth Amendments. The district court, citing Fifth Circuit precedent, dismissed Kincy's complaint with prejudice, concluding that Kincy unnecessarily delayed in challenging the method of execution. The district court did not determine whether Kincy's Eighth or Fourteenth Amendment claims are cognizable under § 1983 because circuit precedent holds that Kincy is not entitled to equitable relief due to his dilatory filing. Before this court, Kincy requests a stay of execution. Because we agree with the analysis of the district court, we AFFIRM its dismissal of Kincy's complaint and DENY his request for a stay.

Kincy has been on death row for over ten years. His sentence and conviction became final on April 21, 1998, nearly eight years ago. Still, Kincy did not bring the instant challenge to the method of his execution until twenty-seven days prior to his scheduled execution.

The district court correctly applied our precedent. This court has held on numerous occasions that “[a] challenge to a method of execution may be filed at any time after the plaintiff's conviction has become final on direct review.” Neville v. Johnson, --- F.3d ----, 2006 U.S.App. LEXIS 3096 (5th Cir. Feb. 8, 2006) (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir.2005)), cert. denied, Neville v. Livingston,2006 U.S. LEXIS 1008 (Feb. 8, 2006); Smith v. Johnson, --- F.3d ----, 2006 U.S.App. LEXIS 3527 (5th Cir. Feb. 14, 2006) (quoting Neville ). We have also made clear that waiting to file such a challenge shortly before a scheduled execution constitutes unnecessary delay. Harris v. Johnson, 376 F.3d 414, 417-19 (5th Cir.2004), cert. denied, Harris v. Dretke, 542 U.S. 953 (2004). Kincy had nearly eight years in which he could have litigated his claim for relief under § 1983; he therefore “cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state's intention to execute him by injecting the three chemicals he now challenges.” Harris, 376 F.3d at 417.

Regardless whether he now states a claim under § 1983, Kincy is not entitled to the relief he seeks due to his dilatory filing. He has been on death row for over ten years but waited to challenge a procedure for lethal injection that has been used by Appellees during his entire stay on death row. See Smith,2006 U.S.App. LEXIS 3527 at (reaching the same conclusion when petitioner filed after nine years); White, 429 F.3d at 574 (reaching the same conclusion when petitioner filed after six years); see also Harris, 376 F.3d at 417. Kincy's contentions that imminence of execution is a prerequisite for standing, a requirement for ripeness, and a prerequisite for entitlement to prospective injunctive relief are contradicted by the holdings of Neville and White, discussed supra. Further, in Harris, this court explicitly stated that a challenge should not be brought when the execution is “an imminent or impending danger.” Harris, 376 F.3d at 418; see also White, 429 F.3d at 574 (A “last-minute challenge to the method of execution is improper.”). Kincy's decision to delay his filing until twenty-seven days before his scheduled execution constitutes unnecessary delay. See Harris, 376 F.3d at 416. Harris and Neville control and require us to affirm the district court's dismissal of this claim.

The district court properly considered Kincy's attempts to distinguish his case from prior cases, such as Smith, Neville, White, and Harris, and found them unavailing.FN1 We agree, noting, as did the district court, that the instant case falls squarely within the holdings of the aforementioned cases and compels denial of a stay.

FN1. The fact that Kincy challenges the state of Texas's “cut down” procedure in addition to objecting to the chemicals used in the lethal injection process does not meaningfully distinguish his case from the above cited cases. A prisoner delays unreasonably in waiting until the last minute to bring any method of execution challenge that could have been brought after his conviction and sentence became final.

To the extent that Kincy contends his execution should be stayed pending the Supreme Court's decision in Hill v. Crosby, --- U.S. ----, 126 S.Ct. 1189 (2006)(granting certiorari), we decline to do so. In Neville, we explained that Fifth Circuit precedent “remains binding until the Supreme Court provides contrary guidance .” --- F.3d at ----, 2006 U.S.App. LEXIS 3096 at *3. Moreover, the Supreme Court has denied certiorari in recent challenges, filed after the Hill certiorari grant, to Texas's lethal injection protocol. See, e.g., Smith,2006 U.S. LEXIS 1090 (Feb. 15, 2006). For the foregoing reasons, we AFFIRM the district court's dismissal of Kincy's complaint and DENY Kincy's motion for a stay of execution.