By Michael Graczyk, Associated Press

HOUSTON (AP) — Texas' highest criminal court should consider whether the death penalty is being fairly applied and should still be constitutional, one of the nine judges on the all-Republican court wrote in a dissenting opinion issued Wednesday.

Judge Elsa Alcala, who was appointed to the Texas Court of Criminal Appeals in 2011 by then-Gov. Rick Perry, agreed with the court's decision to order a lower court to consider overturning the conviction of Julius Murphy, who was sentenced to death for the 1997 killing of 26-year-old Jason Erie. However, in a dissenting opinion she challenged the court's decision to reject, without elaboration, Murphy's lawyers' contention that "evolving standards of decency" show the death penalty should be deemed unconstitutional.

"In my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today," Alcala wrote.

She wrote that the court has been ignoring similar claims from other inmates as a matter of routine without regard for "more current events," and said Murphy's appeal "has presented arguments that are worthy of this court's substantive review."

The court historically has shown little sympathy for condemned inmates, although Alcala has been critical of some past rulings. It is the last state judicial stop for condemned prisoners in Texas, which executes more prisoners than any other state — 537 since 1982.

In Murphy's case, the appeals court ordered the trial court to resolve Murphy's appeal and deliver its findings on challenges alleging that prosecutors improperly withheld evidence showing that two key witnesses were pressured into testifying against him and that one of the witnesses gave false testimony.

Murphy's attorneys argued that the U.S. executes fewer people than it used to, that more states have decided to abolish or to not use the death penalty, and that delays in carrying out death sentences mean prisoners are kept in solitary confinement for excessive lengths of time, which amounts to cruel and unusual punishment.

They also questioned whether race has resulted in a disproportionate number of minority inmates on death row.

Murphy is black, like 44 percent of the 246 Texas death row inmates. As of Jan. 1, 1,227 of the country's 2,943 condemned prisoners were black, or 42 percent of them. Hispanics, meanwhile, make up 27 percent of Texas' death row inmates and 13 percent of the nation's.

"Given both state and federal case law and the history of racial discrimination in this country, I have no doubt that race has been an improper consideration in particular death-penalty cases, and it is therefore proper to permit (Murphy) the opportunity to present evidence at a hearing about the specifics in his case," Alcala wrote.

Murphy, 37, was convicted of killing Erie, who was attacked in September 1997 after his car broke down near his father's house in Texarkana. Murphy was scheduled to die last November but the appeals court gave him a reprieve. The same court stepped in to halt his scheduled lethal injection in 2006.

Alcala was elected to a full six-year term on the criminal appeals court in 2012.

To Learn More:

Ex Parte Julius Jerome Murphy: On Application for Post-Conviction Writ of habeas Corpus and Motion to Stay the Execution in Cause No. 97-F-462-102 (Court of Criminal Appeals of Texas)

54% Increase in Executions around World; Texas Responsible for Half in U.S. (by Edith M. Lederer, Associated Press)

Death Penalty Capital of U.S.: Harris County, Texas (by Noel Brinkerhoff and Steve Straehley, AllGov)

4 States Account for Three-Quarters of U.S. Executions (by Noel Brinkerhoff, AllGov)

Texas and Supreme Court Ignore International Law and Execute Mexican National (by Noel Brinkerhoff, AllGov)