The Whitehouse mother convicted and sentenced to die for the capital murder of her mentally challenged babysitter was in the Smith County 241st District Court on Wednesday for a hearing to appoint the attorneys who will handle her appeal.
Judge Jack Skeen Jr. appointed Doug Parks, who will handle Kimberly Cargill's direct appeal to the Texas Court of Criminal Appeals in Austin, Smith County District Attorney Matt Bingham said. Brad Levenson, with the Texas Office of Capital Writs, will represent Ms. Cargill, 45, on any constitutional issues, such as whether her trial counsel was effective, Bingham said.
Ms. Cargill received the death penalty sentence on May 31 after a four-week trial. She was convicted of killing Cherry Walker and setting her body on fire in June 2010. Ms. Walker had been subpoenaed to testify against the defendant in a child custody hearing.
“The appeal is automatic, whether she wants it or not,” Bingham said. Everyone who receives the death penalty in Texas is appointed two attorneys.
Bingham also said his office will dismiss the two pending charges against Ms. Cargill — injury to a child/elderly/disabled person and a misdemeanor theft by check charge.
“We are doing this so she (Ms. Cargill) can get out of the Smith County jail, where she has been housed at taxpayer expense and get her down to death row,” he said. Bingham said he had a general idea of when Ms. Cargill would be transferred, but said he can't release the information because of security concerns.
Smith County Assistant District Attorney Mike West said the direct appeal to the Texas Court of Criminal Appeals and the writ of habeas corpus are filed at the same time to “streamline the appeals process.”
One lawyer works on the convicted person's direct appeal to the Texas Court of Criminal Appeals, and the other works on the writ of habeas corpus, West said.
“The direct appeal deals with possible errors which happened in trial, and the writ of habeas corpus deals with the constitutional issues,” he said.
Once the Texas Court of Criminal Appeals rules on the direct appeal and the writ of habeas corpus, the federals appeals process will begin, West said.
“It will usually first go to the 5th U.S. Circuit Court of Appeals,” he said.