The U.S. 5th Circuit Court of Appeals on Friday upheld Texas death row inmate Brittany Holberg’s sentence, reversing a decision by a three-judge panel last year that had granted her relief in a case centered on undisclosed information about a key prosecution witness.
The closely divided ruling came from the full appeals court and produced six separate opinions among its 18 judges, underscoring a dispute over whether prosecutors’ failure to disclose that a jailhouse witness was a paid police informant undermined Holberg’s 1998 capital murder trial.
An Amarillo jury convicted Holberg of murdering 80-year-old A.B. Towery during a robbery inside his home. According to court records, Holberg stabbed Towery 58 times before forcing an 11-inch piece of a lamp post down his throat while he was still alive.
Holberg, who had previously worked as a sex worker and knew Towery as a client, maintained that she acted in self-defense after Towery attacked her for using drugs in his home.
At trial, Holberg’s cellmate, Vickie Kirkpatrick, became an important witness for prosecutors. Kirkpatrick testified that Holberg told her she enjoyed killing Towery and recounted graphic details about the attack.
Jurors, however, were not told that Kirkpatrick had served as a paid informant for Amarillo police. Holberg’s appeal argued that information could have been used to challenge Kirkpatrick’s credibility. Several charges against Kirkpatrick were also dismissed the day after she gave police her statement about Holberg.
That issue helped persuade a three-judge 5th Circuit panel to rule in Holberg’s favor in 2025. The full court reached a different conclusion Friday.
The judges split evenly over the significance of Kirkpatrick’s testimony and Holberg’s ability to challenge it. The opinion leading the court’s ruling questioned whether Kirkpatrick’s account was so important that disclosing her informant status would have created a reasonable probability of a different verdict or sentence.
“True, the State’s evidence of Holberg’s intent to commit robbery included circumstantial evidence. But that does not mean impeaching Kirkpatrick’s informant status would generate a reasonable probability of a different outcome,” Judge Andrew S. Oldham wrote.
The opinion also concluded that Holberg’s attorneys knew Kirkpatrick had acted as an informant and made a strategic decision not to pursue that line of questioning. According to the ruling, challenging Kirkpatrick on that point risked opening the door to testimony that could have damaged Holberg’s defense.
Dissenting judges took a sharply different view, focusing on the prosecution’s failure to disclose Kirkpatrick’s relationship with police and the potential effect that information could have had on how jurors viewed her testimony.
“Contrary to the concurring opinions, I see the materiality of the prosecution’s secret throughout this trial,” Judge Stephen A. Higginson wrote. “It crippled Holberg’s defense over and over again.”
Friday’s decision does not necessarily end Holberg’s legal challenge. She can ask the U.S. Supreme Court to review the case, although the justices are not required to take it.
