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By Michael Graczyk
The Associated Press

AUSTIN, Texas - A former high school valedictorian and University of Texas honors student sent to death row three times for the fatal shooting of an Austin police officer 30 years ago will not get a fourth trial, a federal appeals court has ruled.
The 5th U.S. Circuit Court of Appeals has upheld the conviction and death sentence of David Lee Powell, 57, moving him closer to execution for the slaying of Austin officer Ralph Albanedo with an automatic assault weapon.
Of the 367 prisoners on death row in Texas, only five others have served more time there than Powell, who arrived on death row in October 1978, a month after his conviction. His most recent trial - his third - was in 1999.
In April, the New Orleans-based 5th Circuit Court agreed Powell could consider three appeal claims, then held a hearing last month. In its ruling posted late Wednesday, the court upheld a lower court ruling rejecting the claims.
Attorneys for Powell contended his third trial should have been a full trial rather than just a new punishment trial. They said his rights to due process were violated because prosecutors didn't timely disclose documents that showed Powell's girlfriend may have fired the shots at the slain officer and tossed a hand grenade and fired at other officers when she was arrested.
They also argued his constitutional rights were violated when an emergency room doctor didn't provide Miranda warnings to Powell when he examined Powell following his arrest and testified for the prosecution at Powell's trial.
Albanedo had pulled over Powell's girlfriend near downtown Austin for not having a rear license tag. Powell was a passenger.
Records show at the time of the shooting, he had been wanted for misdemeanor theft and for passing more than 100 bad checks in Austin. His drug use led him to become so paranoid he began carrying loaded weapons, including a .45 caliber pistol, an AK-47 and a hand grenade. Those weapons were with him in the car, along with some methamphetamines.
Evidence showed the officer was shot through the back window of the car with the AK-47 in semiautomatic mode as he walked toward the vehicle. The fallen officer tried to get up and Powell opened fire again, switching the weapon to full automatic mode. The 26-year-old officer was wearing a bulletproof vest that wasn't designed to handle that kind of firepower. Shot 10 times, he died about an hour later.
Powell first's conviction was vacated by the U.S. Supreme Court and returned to the Texas Court of Criminal Appeals. After the state court reaffirmed the conviction and death sentence, the Supreme Court vacated his sentence.
He was retried and condemned following a second trial in November 1991. Although the high court had only reversed the sentence, Texas law at the time required a full retrial, not only a punishment retrial. That second sentence then was reversed by the Court of Criminal Appeals because of improper jury instructions.
Texas law had changed by then, and a retrial only was needed for sentencing, which Powell challenged in the appeals courts.
Before the third trial in 1999, defense attorneys tried to establish that Powell's girlfriend was involved. They had the officer's body exhumed to gather forensic evidence of bullet fragments. When a judge refused to delay the trial because the testing was incomplete, Powell's lawyers dropped their "two-shooter" theory and instead focused on trying to save him from death by attempting to show he no longer was a future danger, one of the conditions jurors must decide before voting to send someone to death row.
Records of his girlfriend, Sheila Meinert, showed, among other things, that the officer implicated her in the shooting before he died and that other officers accused her of tossing a hand grenade at another officer who responded.
Powell was condemned again. It's that sentence the 5th Circuit considered in its latest ruling.
Meinart, now 57, was sentenced to 15 years for attempted capital murder. She served just over four years before being paroled in 1989.
Court records show Powell grew up on a dairy farm, graduated a year early from his small high school and went into the honors program at the University of Texas. He never finished school as his life went downhill after he turned to drugs.
In his time on death row, and off drugs, court records show he has become a model prisoner.

Wire Service
 
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