Case summary
Bernardo Aban Tercero was convicted of the offense of capital murder in 232nd District Court of Harris County, Texas, for the murder of Robert Berger during the course of a robbery of Park Avenue Cleaners, in Houston, Texas, on March 31, 1997. He has always maintained it was an accident.
After the offense, Bernardo Aban Tercero returned to Nicaragua. As a result of the request of a female acquaintance who was paid by State and federal law enforcement for her efforts, in July of 1999 Bernardo Tercero was arrested in Mexico while attempting to return to the United States. He was sentenced to death on October 20th, 2000.
Bernardo Aban Tercero was convicted of the offense of capital murder in 232nd District Court of Harris County, Texas, for the murder of Robert Berger during the course of a robbery of Park Avenue Cleaners, in Houston, Texas, on March 31, 1997. He has always maintained it was an accident.
After the offense, Bernardo Aban Tercero returned to Nicaragua. As a result of the request of a female acquaintance who was paid by State and federal law enforcement for her efforts, in July of 1999 Bernardo Tercero was arrested in Mexico while attempting to return to the United States. He was sentenced to death on October 20th, 2000.
Bernardo Aban Tercero was granted a stay of Execution in August 2015 due to a courageous key witness coming forward.
Key Issues
Despite the fact that he specifically requested to speak with the Nicaraguan Consulate and the authorities had full knowledge of Bernardo Tercero's status as a foreign national, he was denied his right under the Vienna Convention of Consular Relations (VCCR, article 36).
This means that he did not have the possibility to choose a lawyer from a list his consulate could have given him. Instead, he was given an attorney who did not try to obtain records and do a background mitigation investigation, perhaps because he only had two weeks to prepare for the trial.
2 attorneys of Bernardo Aban Tercero were ranked by the Austin Statesman as the 5 worst lawyers in Texas in 2006.
No investigations into his sad story of a child abandoned by his father, the mental health issues of his family (possibly of himself). In fact the lawyers have not even spent the funds that the courts had found reasonable to allocate to them to do their work:
Out of the $21 670 allocated by the court to the defense attorney, $8449 were then GIVEN BACK to the Harris County and never spent on Bernardo's defence, despite what the Court had decided to allocate to the case.
If the time, funds and efforts had been spent on Bernardo's case as it should have before trial, it is very likely that the jury would have recommended a life sentence rather than death.
Despite the fact that counsel was provided with $21,670.00 by the trial court,
the only funds that were expended were for a trip by counsel to Nicaragua two weeks before the trial commenced and for transportation and lodging for some of the Petitioner’s family members and acquaintances to testify at the punishment phase of the trial. Rather than use the entirety of the funds provided by the court to have a knowledgeable professional assisting obtaining records and conducting a background and mitigation investigation in Nicaragua, counsel instead refunded $8,449.42 of the allocated funds to Harris County. Further, although the trial court approved Petitioner’s counsel’s request for a forensic psychologist in February of 2000, counsel did not attempt to contact a psychologist until September 29, 2000, less than two weeks before the Petitioner’s trial was set to begin. No psychological testing was ever done, nor was any psychological or other expert evidence, records, or testimony offered at trial.
READ HERE HABEAS CORPUS PETITION (p8)
"I JUST WANT TO BE SURE THAT I WOULD AT LEAST HAVE A DECENT FUNERAL IN NICARAGUA.
I DON'T WANT TO END UP IN THE PRISON CEMETERY OF THE FORGOTTEN HERE IN TEXAS."
Bernardo Aban Tercero
I DON'T WANT TO END UP IN THE PRISON CEMETERY OF THE FORGOTTEN HERE IN TEXAS."
Bernardo Aban Tercero
Bernardo's supporters have gathered 22 affidavits from 22 different people who provide information never investigated before.
1. Bernardo was possibly born with foetal alcohol syndrome, abandoned by his father, which led to behavioral problems and learning difficulties.
. Juan Evangelista, a neighbour and Mathematics teacher to Bernardo 1990 and 1991 (first year of secondary school), describes difficulties and below average intelligence demonstrated by Bernardo.
. Jose Alberto (Fellow student at the Institute where they studied motor mechanics together in the year 1993) testifies to the support Bernardo needed from fellow students and staff because of his difficulties in understanding how to use the instruments needed in practical classes.
. Modesta (Primary teacher of Bernardo) testifies to Bernardo's limited intellectual ability displayed in lessons with examples in mathematics and language.
1. Bernardo was possibly born with foetal alcohol syndrome, abandoned by his father, which led to behavioral problems and learning difficulties.
. Juan Evangelista, a neighbour and Mathematics teacher to Bernardo 1990 and 1991 (first year of secondary school), describes difficulties and below average intelligence demonstrated by Bernardo.
. Jose Alberto (Fellow student at the Institute where they studied motor mechanics together in the year 1993) testifies to the support Bernardo needed from fellow students and staff because of his difficulties in understanding how to use the instruments needed in practical classes.
. Modesta (Primary teacher of Bernardo) testifies to Bernardo's limited intellectual ability displayed in lessons with examples in mathematics and language.
2. Bernardo has suffered from exposure to pesticides as a child
For example, Juan, a family friend who has known Bernardo since 1985 when Bernardo was 6 yrs old has testified that Bernardo worked in the fields and walked nearby in an area of chemical experimentation on crops, including spraying insecticides from the air. The presence of children would not be allowed today because of the risks from exposure to such chemicals.
Further evidence exists of serious psychiatric issues in the family. Could Bernardo suffer from psychiatric issues too? We don't know because there was never a psychological assessment made, whether before or after trial. All we have are indications given by a medical center.
For example, Juan, a family friend who has known Bernardo since 1985 when Bernardo was 6 yrs old has testified that Bernardo worked in the fields and walked nearby in an area of chemical experimentation on crops, including spraying insecticides from the air. The presence of children would not be allowed today because of the risks from exposure to such chemicals.
Further evidence exists of serious psychiatric issues in the family. Could Bernardo suffer from psychiatric issues too? We don't know because there was never a psychological assessment made, whether before or after trial. All we have are indications given by a medical center.
3. Bernardo is described as a man with considerable courage, who helped save many lives in the Hurricane Mitch
Thanks to this honorable service, provided by Bernardo Tercero, and by farmers in our community,
3 families were saved from being swept away by the powerful current.(...) I know the whole Tercero family. They have lost many members in natural disasters and war (...) As a mother, I feel that boy does not deserve the death penalty because all mothers have children and I do not know how his mother is going to cope with that. Marcela Medina.
IN THE NAME OF THE TERCERO FAMILY TRAUMATIZED BY THE WAR, THE POVERTY, THE HURRICANE,
PLEASE HELP SAVE THE LIFE OF A NICARAGUAN SON
They stand for Bernardo Aban Tercero in Nicaragua
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Below:
Examples of people who have testified in favor of Bernardo Aban Tercero -
Due to lack of investigations, those testimonies were never heard in court.
DOMINGO DE LA CONCEPCION CACERES HERNANDEZ,
married, a farmer in the community of Versalle
I heard a noíse and the ground shook, the people screamed and ran.
What had happened - a huge portion of earth of the Casita volcano had slipped. I tried to run away, but it was impossible. The whole village was buried under stones and mud in a matter of minutes, I was unconscious. When I woke up, I could not move, my body was trapped between the stones. After two hours, we were found by a few peasants, but nobody came close to me for fear of being sunk in the mud until a volunteer named Bernardo Tercero came up to me and rescued me with the help of a rope. Two years ago I learned from his mother that he had been given the death penalty. She was the one that told me and I could not believe it. I believe that that boy deserves a more just sentence that is not the death penalty.
ANGELA DEL ROSARIO MAYORGA
unmarried, housewife in the town of Chinandega,
unmarried, housewife in the town of Chinandega,
The day of the tragedy I was in my home alone with my kids (6), it was a rainy day. I remember that day, we heard a noise, the ground started shaking and the water level started to rise, so I decided to close the door, but everything happened very fast, within minutes the house was full of water, and mud and stone trapped us all inside. I thought that day I would drown with my children, but when all hope had been lost, a team of lifeguards arrived in time to rescue us. The rescuer who broke into the ceiling with a chainsaw was Bernardo. I had met him before. He helped me and my children escape. It was such a traumatic experience that even I find it difficult to overcome.
JUANA AGUILAR
Bernardo and the Gomez family risked their lives to save my family but could not,
but managed to rescue only my brother Fabio, but he died hours later (...), in the garden is his grave. I have known Bernardo since I was a child. He was the second son of Lydia. I also knew his family and that most of them died in the disaster. I learned on the television that the death penalty had been given to Bernardo Tercero. It is sad because his family has already lost 30 members in the disaster. If you kill Bernardo, it will only add more pain to his family.
Juana Aguilar.
BERNADINO RUIZ MAYORGA ,
married, a laborer in the town of Chinandega
I have lived all my life on the Casita Volcano with my wife Marcela,
my house is located in the higher slopes, on the other side of the Cañada (river channel) the family was in danger of being engulfed by the landslide of the Casita Volcano that terrorized the people of the Rolando Rodríguez ...... I was one of the peasants who with the help of a young Bernardo, helped to evacuate three families, children and elderly women. It was a dangerous task because we had to move them one by one with a rope through the Cañada, where the water level rose rapidly. I remember that the rope, that we strategically placed across to the other side of the Cañada, was so stretched by the force of the water, but Bernardo did not release the rope or the child that he held with his left hand, the two sank under the water, but we pulled the rope and we help them to get out, these were minutes of tension because they were at the point of drowning. I have known Bernardo since I was a child, and the entire family, his grandfather Don Francisco, worked in the commune with me and his home was nearby but everything was destroyed along with family members in the disaster. With regard to the death penalty that has been given to young Bernardo, I think that his family have already lost many relatives and that these things should be taken into consideration.
JUAN CARLOS CECERES HERNANDEZ
married, farmer from the town of Chinandega
I recall it as if it were today, because I was one of the survivors.
I remember it was raining very heavily because of Hurricane Mitch. I was coming with my wagon loaded with various grains, crossing the main gully (water Channel) of this community because the current was not too strong, but in minutes the water level began to rise, my cart broke in two and my oxen were dragged below the current and I thought that I was going to die, but fortunately I managed to hold onto a thick trunk of a fallen tree until rescuers came. With the help of a rope, three rescuers reached me. I will always be grateful to them, two of them were soldiers since they wore military clothing, and the other was a young civilian in poor clothing whose name was Bernardo Tercero who I knew was a grandson of Don Francisco Tercero. I remember that during the whole day Bernardo Tercero worked to rescue people with the military men and those of the Red Cross. Then on the television one day I learned that they had given the death penalty to this boy Bernardo Tercero. I recognized the surname because he had become an acquaintance and so the fact was that I remembered that he was the young man who had saved me. I am against the death penalty ….... I believe nothing justifies such a death ….. in our country, Nicaragua, the death penalty does not exist.
GLADIS DEL SOCORRO RIVERA,
a housewife in the town of Rolando Rodriquez, Chichigalpa
I remember that it was a rainy day and I stayed at home
asleep until the nine in the morning until I was woken up by the noise. I heard the screaming and the ground shook. I went out into the street, tried to run, but the water with the volcanic mud, it seemed to be like a dream, a nightmare, and all clouded over and I lost consciousness. When I awoke I was totally naked, confused and all beaten. One of my ears was bleeding, I could not move my right arm. The lifeguards threw me a rope but I could not grasp it because I could not move until a young man named BERNARDO TERCERO rescued me by hanging from a rope from a helicopter with the aid of a few soldiers. When I told him my ñame the young man was surprised because his surname was also TERCERO. Years later, I asked an aunt and she said that Bernardo was a distant cousin and that he had received the death penalty in the United States. Although reading details of the case I believe that no human being deserves the death penalty, especially a person who has done good deeds of service to save the lives of others.
ARNULFO PONCE GOMEZ,
married, of the town of Versalle, Chichigalpa
I have lived my entire life in Hill House.
On the day of the disaster caused by the landslide of the Casita Volcano in 1998, I remember that we could not be more endangered by the landslide as it came to twenty meters from the patio of our house. I remember Bernardo and I got the help of some peasants to evacuate the three families, the Soza, Caceres and us, the Ponce family that were large families with children and elderly women. It was the most dangerous route through the channel of water, and each was taken one by one by rope, to safety in the house of Dona Marcela. I remember that it was raining and the place was flooded and that made the task more difficult, so we decided to just pull a rope from one side to the other side of the Cañada (Water channel) and tie it to a tree, but the task was extremely complicated, and when the rope disappeared exactly when Bernardo was about half way across the channel I remember that he held one of my nephews in one hand and with the other held the rope. They sank in the water because the water level had risen so much and I thought he had released the rope, but it was not like that and immediately he began to stretch forward until they reached the shore. I think that if it had not been for his courage and persistence, the two would have drowned, and I will always be thankful to him for having saved the life of my nephew. I remember when the lifeguards arrived he went with them in one of the helicopters to help them recognize the places where the most affected families were. Throughout that day and on the days that followed, Bernardo walked with the military and the Red Cross rescuing the families affected by the disaster. I believe that Bernardo deserves a fairer sentence, a sentence which is not the death penalty, especially because he has done very good acts of service in extreme circumstances putting his own life at risk.
MARCELA FURGENCIA MARTINEZ MEDINA,
married, housewife in the home town of Rolando Rodríguez, Chichigalpa
I have lived on the Casita volcano all my life,
my house is in the higher region of this rural area. On the other side of Cañada (a water channel) was the home of the Gómez family, the Soza family, and the Tercero family. It was there where the landslide of the volcano destroyed the entire village of Rolando Rodríguez. I was a witness that Bernardo, with the help of the farmers of the community, were the ones who evacuated almost all the families who were on the side of the water channel that was about to be destroyed by the current. It was a very difficult and dangerous task. They had to pass them from one side with a rope, one by one, before the water in the channel rose to an extreme level. Thanks to this honorable service, provided by Bernardo Tercero, and by farmers in our community, three families were saved from being swept away by the powerful current, the fate of other houses filled with whole families. Most of the people that could be rescued were children, women and the elderly, some took refuge here in my home, and others were taken to Versailles by the lifeguards. When I realized that they had given the death penalty to Bernardo Tercero, I could not believe that boy who came here to play baseball with my children could receive this. I know the whole Tercero family. They have lost many family members in natural disasters and war, in fact I and the grandmother of Bernardo Tercero went to the fields of combat together to leave food for our children, and the son of Doña Vidal and my son Henry went to Military Service together. As a mother I feel that that boy does not deserve the death penalty because all mothers have children and I do not know how his mother is going cope with that.
JUANA FRANCISCA SOZA AGUILAR
married, housewife in home city of Versalle, Chichigalpa
“On the day the landslide of the Casita volcano;
it had rained for three days during the hurricane. On that day I was visiting at the home of my father Juan with my son Bismar and my brother Fabio. I cooked chicken soup, and then we ate. I remember that I decided to return early to my house. But Fabio and my children stayed at my father Juan's house playing barajas. When I was back in my house there was strange noise, the Earth began to tremble. I ran out towards the highest point in the area, thanks to God that he saved me. Unfortunately the house of my father was dragged beneath the river with the family. Bernardo and the Gomez family risked their lives to save my family but could not, but managed to rescue only my brother Fabio but he died hours later, he had broken toes and spinal column. My brother was buried here outside of my house, in the garden is his grave. I remember that Bernardo Tercero and the others were at the gully (water channel) up to the highest part, some of them sheltered in the houses on the other side of the gully, others in Versalle, from there they were transported by helicopter to Chichigalpa. I have known Bernardo Tercero since I was child, he was the second son of Lydia. I also knew his family and that most of them died in the disaster. I learned on television that the death penalty had been given to Bernardo Tercero. It is sad because his family has already lost more than 30 members in the disaster. If you kill Bernardo Tercero it only adds more pain to his family.
Franklin Tercero, Bernardo Tercero's son:
When I learned of the death sentence, that moment was like being submerged with water, and you run out of air, you suffocate, as you try to come out to the surface. Like when you're drowning. I felt sad, as never in my life I had been.
Read testimony of Franklin Tercero in the web show here
I'm a little sick... and I am very depressed.
I don't know if you know that your father died a year ago (Jesus) .
We miss you so much, and I love you so much. We are always praying in the Church for your case. We all trust in the Lord! Don't worry, the volcano is calm now. Only some livestock died and part of the hill collapsed, but now everything is quiet. All I want is for you to be with me. We are all well.
Your mama Lidia"
Find out more
. Nicaragua pleads with US to call off execution, Agence France Presse, August 2015
. El cardenal Brenes ruega por la vida de Tercero, el nica condenado a muerte,
El Nuevo Diario, Aug 2015
. Brenes ruega por la vida de Tercero. El arzobispo de Managua, cardenal Leopoldo Brenes, ...
El Nuevo Diario, August 2015
. Preparan último recurso para evitar ejecución de Tercero, El Nuevo Diario, August 2015
. Brenes aplaude petición de clemencia del Presidente Daniel en caso de Bernardo Tercero,
Channel4
. Semana News article (In Spanish) - English translation here
. Follow his supporters on Facebook
. His personal website
. Suspect gives details of shooting, Amarillo Globe News, 2000
. Nicaragua pleads with US to call off execution, Agence France Presse, August 2015
. El cardenal Brenes ruega por la vida de Tercero, el nica condenado a muerte,
El Nuevo Diario, Aug 2015
. Brenes ruega por la vida de Tercero. El arzobispo de Managua, cardenal Leopoldo Brenes, ...
El Nuevo Diario, August 2015
. Preparan último recurso para evitar ejecución de Tercero, El Nuevo Diario, August 2015
. Brenes aplaude petición de clemencia del Presidente Daniel en caso de Bernardo Tercero,
Channel4
. Semana News article (In Spanish) - English translation here
. Follow his supporters on Facebook
. His personal website
. Suspect gives details of shooting, Amarillo Globe News, 2000
Credit: La Semana (video in Spanish)
Legal motions
To contact Bernardo Aban Tercero via jpay, enter TDCJ number 00999369
