Robert Lee Thompson set to die tonight

AUSTIN, TEXAS (AP) -- The fate of a man facing execution Thursday evening for his role in a fatal robbery is in the hands of Gov. Rick Perry after the state parole board recommended that the death sentence be commuted to life in prison.

The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for 34-year-old Robert Lee Thompson, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.

Perry is not required to follow the recommendation of the board, whose members he appoints.

"The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday.

Thompson's lawyer, Patrick McCann, also has an appeal before the U.S. Supreme Court to stop the lethal injection.

The parole board's 5-2 vote Wednesday came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, also convicted and sentenced to die under the law of parties.

Perry two years ago commuted Foster's sentence to life. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed.

In the first case, in 2004, Perry rejected the board's recommendation and mentally ill prisoner Kelsey Patterson was executed.

Perry's explanation for commuting Foster's sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson's case, he and Butler were tried separately for the shooting death of 29-year-old Mansoor Bhai Rahim Mohammed.

At least a half dozen other Texas inmates have been executed under the law of parties.

Under the law, offenders conspiring to commit one felony like robbery can all be held responsible for another ensuing crime, such as murder.

The U.S. Supreme Court since 1982 has barred the death penalty for co-conspirators who don't themselves kill. The justices, however, in 1987 made an exception, ruling that the Eighth Amendment didn't prohibit execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference.

McCann's appeal before the Supreme Court raised questions about the competence of Thompson's trial lawyers, arguing that jurors who decided Thompson should be executed never learned of his abusive childhood, an upbringing by a mentally ill and drug- and alcohol-addicted mother and a household where he was "raised in and among felons."

Evidence at his trial showed Thompson, who is black, told detectives he went on a two-month crime spree in 1996 because God told him to do something about store clerks who discriminated against blacks.

The killing was one of three he acknowledged to authorities. In two of the slayings, Thompson told detectives he was the gunman.

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