Michael C. Gross of San Antonio, defense attorney for the former William G. McConnell Unit inmate, urged Yeager to delay the Wednesday execution because the United States Supreme Court had not yet ruled on a motion he had before that body.
The court in Washington had been scheduled to rule on the case on Thursday.
Cannady, is scheduled to die after 6 p.m. Wednesday for the beating and stomping death of his cellmate, 55-year-old Leovigilgo Bombale Bonal.
Cannady, who will turn 38 on May 29, unless the execution takes place, was convicted of putting a combination lock in a sock and using that to beat Bonal to death on Oct. 10, 1993.
According to a media advisory from the office of Texas Attorney General Greg Abbott, correctional officers found Cannady and Bonal in their blood splattered cell at the McConnell Unit.
Cannady admitted to attacking Bonal but he claimed he did it in self defense because he feared the man was going to rape him.
Investigators were able to determine that Cannady had attacked Bonal, knocked him unconscious, bound his hands with a belt and then beat the man to death.
Officers found the sock, the face of the lock and the belt in the cell. Cannady said he had flushed the lock down the toilet.
Cannady was sentenced in a Bee County Courtroom to death but appeals filed since that time have prevented the Texas Department of Criminal Justice from carrying out the sentence.
Yeager said he was unsure of the exact nature of the motion filed by Gross in his attempt to delay the execution by lethal injection.
He said he was going to send the case to the Court of Criminal Appeals for a ruling on that issue. But the execution will be carried out as ordered unless either the court of criminal appeals or the Supreme Court grants another stay.
Gross said he would pursue those avenues in an attempt to delay the execution.
The defense attorney said the death sentence may not be a legal order because it was based on a state law that called for a capital case in the event that a Texas inmate is accused of murder while serving a sentence for another murder.
Cannady was serving two consecutive life sentences for a 1990 murder in Cameron County. The defendant was convicted of stabbing a 15-year-old runway to death and then raping and strangling the victim’s 13-year-old girlfriend.
The defendant’s attorney stipulated during the guilt or innocence portion of the 1997 trail that Cannady had admitted to the murders.
However, Gross said he had received statements from witnesses in the first trial who have said they wanted to recant their testimony from that hearing.
Gross said that if the first two convictions were not legal, then Cannady would not have been eligible for a capital murder trial in 1997.
District Attorney Martha Warner and San Antonio attorney Ed Shaugnessy outlined the number of appeals, writs and motions that have been filed in the Cannady case since he was found guilty of killing Bonal.
Warner said family members of the Cameron county murder victims have been waiting almost 13 years for justice to be served. She said they have been contacted and told to expect Cannady to be executed in Huntsville next Wednesday.
“In my 25 years of practice, I’ve never asked a court to delay an execution date,” Gross told the judge.
But Shaugnessy said he had been involved in similar cases two more years than Gross and noted that every attempt to overturn Cannady’s death sentence had been turned down by every judge or body hearing the requests.
Warner said Shaugnessy works for her on a contract basis on appellate cases.
Following Thursday’s hearing, Warner recounted that Cannady had been in trouble with the law since the age of 10. His record of dealing drugs, assault, theft, criminal mischief, truancy and other infractions culminated in 1990 when he murdered 15-year-old Ricky Garcia and then raped and strangled Garcia’s 13-year-old girlfriend.
“She was a witness,” Warner said of the young girl. “She saw him with blood all over him.
“He raped her, cleaned her up in the shower, raped her again and then took her out to the countryside and strangled her with his bandana while his buddy held her down.”
“He pleads guilty. He didn’t contest the confession. He got two life sentences out of Cameron County.”
Warner said she was only recently notified that Gross had tried to have Cannady’s capital murder sentence commuted to life in prison by the Texas Board of Pardons and Paroles without notifying her at the time he approached the board.
She was only notified when the board wrote her to tell her they were considering the commutation.
Warner answered that notification with a letter that ended with “On behalf of the citizens of Bee County who elected me, including many who are employed by the prison system and are always in harms way, we want you to respect the jury’s decision and proceed with his sentence of death on May 19, 2010.”