The U.S. Court of Appeals for the Fifth Circuit recently revisited the conviction of Brittany Holberg, a Texas death row inmate whose capital murder conviction was overturned earlier this year and later reinstated for further review. On Wednesday, all 17 judges of the court heard oral arguments in an en banc proceeding, a relatively rare step that signals the significance and complexity of the legal issues involved.
At the center of the court’s renewed consideration is not whether Holberg killed 80-year-old A.B. Towery in 1996, a fact that has not been seriously disputed, but whether her trial was constitutionally fair. Specifically, the judges focused on whether prosecutors failed to disclose information about a key witness that could have influenced the jury’s verdict and sentencing decision.
Background of the Case
Holberg was convicted in 1998 of capital murder for killing Towery in Amarillo, Texas. According to trial evidence, Towery was stabbed 58 times, and an 11-inch piece of a lamp post was forced down his throat while he was still alive. The brutality of the killing played a major role in the jury’s decision to convict Holberg of capital murder and sentence her to death. She is currently one of seven women on Texas death row.
Capital murder in Texas requires more than proof that a homicide occurred. The prosecution must also establish certain aggravating circumstances, such as that the killing happened during the commission of another felony, including robbery. That legal distinction has become critical in Holberg’s appeal.
Holberg has consistently maintained that she did not go to Towery’s home intending to rob or kill him. She has said she went there after a car accident and that the killing occurred in self-defense after Towery attacked her. At the time, Holberg was 23 years old and working as a sex worker, and Towery was a former client.
The Role of a Jailhouse Informant
Much of the Fifth Circuit’s questioning focused on Vickie Kirkpatrick, Holberg’s cellmate before trial. Kirkpatrick became a central witness for the prosecution when she testified that Holberg confessed to her in jail. According to Kirkpatrick, Holberg said she went to Towery’s home to rob him, enjoyed killing him, and would do it again for drugs or money.
What the jury did not hear at trial was that Kirkpatrick had previously worked as a paid informant for the City of Amarillo in several other cases. Prosecutors also did not disclose that Kirkpatrick was released on bond the same day she gave her statement against Holberg to the Randall County District Attorney’s Office.
In March, a three-judge panel of the Fifth Circuit overturned Holberg’s conviction in a 2–1 decision, concluding that the failure to disclose Kirkpatrick’s informant status violated Holberg’s constitutional rights. That ruling was later vacated so the full court could consider the issue.
Arguments from Holberg’s Attorney
During Wednesday’s arguments, Holberg’s attorney, David Abernathy, told the court that Kirkpatrick’s testimony was uniquely important because it went directly to Holberg’s intent. While physical evidence showed Towery was killed in a violent manner, Abernathy argued that Kirkpatrick’s account was the only evidence suggesting Holberg planned a robbery and murder before arriving at Towery’s home.
He maintained that if jurors had known Kirkpatrick was a paid informant who received a benefit shortly after giving her statement, they might have viewed her testimony with skepticism.
“The jury heard Holberg present herself in Kirkpatrick's telling as dangerous, sadistic and utterly without remorse, and that unquestionably affected the sentencing decision in this case,” Abernathy said. “The suppressed evidence would have destroyed [Kirkpatrick’s] credibility.”
Judges questioned Abernathy closely about whether other evidence could still support a capital murder conviction, even without Kirkpatrick’s testimony. They pointed to testimony that Holberg had been seen with blood-stained money and to the severity of Towery’s wounds as potential indicators of intent.
The State’s Position
Representing the Texas Department of Criminal Justice, attorney William Cole argued that the appeal should not succeed because the undisclosed information about Kirkpatrick was not materially relevant. Under U.S. Supreme Court precedent, a conviction is only overturned for nondisclosure if there is a reasonable probability that the outcome would have been different had the evidence been disclosed.
Cole told the judges that the most compelling evidence against Holberg came not from Kirkpatrick, but from the physical evidence and other testimony presented at trial.
“I think the most powerful testimony was not the 19 pages of Kirkpatrick, it was the testimony of the crime scene investigators,” Cole said. “It was the medical examiner, again, and it was [Holberg’s] testimony.”
Several judges pressed Cole on why prosecutors referenced Kirkpatrick’s testimony multiple times during closing arguments if it was not especially important to the case. That line of questioning underscored the court’s concern about whether the testimony played a larger role in the jury’s decision than the state now suggests.
Legal Standards at Issue
At the heart of the appeal is a constitutional rule requiring prosecutors to disclose evidence favorable to the defense, including information that could be used to impeach a witness’s credibility. The question for the Fifth Circuit is not simply whether the evidence should have been disclosed, but whether its absence undermines confidence in the verdict.
In capital cases, that analysis often takes on added weight because of the irreversible nature of the death penalty. Even if the court concludes that Holberg would still have been convicted of murder, it must also consider whether the undisclosed evidence could have affected the jury’s decision to impose a death sentence rather than life imprisonment.
Broader Context
Holberg’s case is one of several high-profile death penalty appeals being heard in 2026. Another is the case of Robert Roberson, who was convicted of killing his 2-year-old daughter, Nikki. Roberson has long maintained his innocence, and his case was sent back to trial court in October, just a week before his scheduled execution. That stay came more than a year after a bipartisan group of Texas lawmakers intervened to block a previous execution date.
Together, these cases highlight ongoing debates about the reliability of convictions, the use of informant testimony, and the procedural safeguards required in death penalty cases.
What Comes Next
The Fifth Circuit did not indicate when it will issue a decision in Holberg’s case. Whatever the outcome, further review is likely. If the court reinstates Holberg’s conviction, her attorneys may seek review by the U.S. Supreme Court. If the court again overturns the conviction, the state could pursue its own appeal or potentially seek a new trial.
For now, the en banc hearing reflects the court’s effort to carefully weigh whether Holberg’s trial met constitutional standards. The decision will not only determine her fate, but may also influence how courts evaluate undisclosed informant relationships in future criminal cases, particularly those involving the death penalty.
