Gang member Erick Davila set to be executed in hours over killing of young girl and grandmother at birthday party

Lawyers file for stay of execution

Erick Davila has spent nine years on death row after using a laser-sighted semi-automatic rifle to spray bullets at about 20 people (Texas Department of Criminal Justice via AP)

A former gang member sentenced to death for killing a five-year-old girl and her grandmother when he opened fire at a child’s birthday party is to be executed in Texas.

Erick Davila has spent nine years on death row after used a laser-sighted semi-automatic rifle to spray bullets at about 20 people — more than a dozen of them children — in apparent retaliation for an attack by one of the people attending the party.

Annette Stevenson, 48, and her granddaughter, Queshawn Stevenson, were killed in the 6 April 2008 attack and four others were wounded, including the girl celebrating her ninth birthday.

​Davila is due to be executed by lethal injection, but lawyers in Fort Worth have asked the US Supreme Court for a stay of execution.

If the execution goes ahead, Davila, 31, would be the fifth Texas inmate executed this year, and the ninth in the US.

Queshawn Stevenson’s sister, then aged 11, testified she saw a man inside a dark car holding a gun with “a red dot” and a short time later saw him standing next door and shooting. Davila was caught the next day after a brief police chase.

Lawyers for Davila argue his execution should be stopped because it was improper for his trial judge, Sharen Wilson, now the Tarrant County district attorney, to request an execution date.

They also questioned the role of a lawyer working with Ms Wilson on capital appeals cases who had represented Davila in an earlier appeal.

Prosecutors withheld information that Davila was so high on drugs during the shooting he was “likely intoxicated to the degree that it would have rendered him temporarily insane,” lawyer Seth Kretzer told the high court in a legal document. He argued the detail could have influenced jurors to decide on a lesser penalty.

State attorneys said Ms Wilson never represented Davila and state law and court rulings allow her office to represent the state’s interests in the case. Prosecutors also argued Ms Wilson prohibits assistants from participating in cases where they were defence lawyers and that the court followed the state’s capital sentencing procedure.

They said evidence shows Davila’s trial attorneys were provided notes from police investigators, that voluntary intoxication is not a defence under Texas law and that the shootings were intentional and deliberate. Katherine Hayes, an assistant Texas attorney general, told the justices Davila told detectives he went “to a shoot ‘em up". was trying to “get the guys on the porch” and never mentioned any intoxication to police.

Defence lawyers at Davila’s trial tried to show he did not intend to kill multiple people, a criterion for the capital murder charge. They argued he only intended to kill Jerry Stevenson, whose daughter and mother were shot to death. Authorities said Stevenson belonged to a rival gang and that Davila believed members of that gang shot him in 2005. Stevenson denied belonging to the gang.

Davila was accused but not tried in another fatal shooting just days before the birthday party killings. While awaiting trial for capital murder, he also attacked Tarrant County jailers and maintenance workers during an escape attempt. He previously served prison time for a 2004 burglary in Tarrant County and was released after about a year.

Associated Press contributed to this report