Lawyers for a Texas man who fatally shot a convenience store clerk are asking a judge to stay his execution by lethal injection set for Wednesday, citing the failed execution of Christa Pike in Tennessee last week.

This would be the first execution scheduled in the U.S. since Pike.

Because the same drug used in her attempted execution — pentobarbital — would be used in Texas for Jamaal Howard, his attorneys argued the drug poses the same risks, and said they believe the state’s supply had become degraded.

Pike’s lawyers are seeking more information about what went wrong after the 50-year-old survived two doses of pentobarbital. She was hospitalized and, as of Tuesday, was awake and speaking.

In a statement Tuesday, her attorneys said she was “conscious, speaking, and continues to receive critical medical care,” but noted “her prognosis remains unclear” and “at a minimum” they “expect a long recovery.”

They also said “despite the severe damage she endured to her arms, she is still handcuffed and shackled to the bed.”

One of her attorneys, Steve Ferrell, told “CBS Mornings” on Monday that doctors were working to clear her body of the pentobarbital and that she was on a ventilator. 

Her attorneys have alleged her execution was marred by blown veins, where a needle goes all the way through a vein and causes a leak of blood and fluid, as well as Tennessee’s deteriorated pentobarbital and a lack of emergency medical care.

“There is a similar risk,” Howard’s attorneys wrote, “that Texas’s execution drugs are likewise degraded, as they are far past the original beyond-use dates that the pharmacopeia allows for drugs of this kind.”

Texas has executed six people so far this year, with two more scheduled after Howard, which would be the 30th execution nationwide in 2026.

A killing caught on surveillance video

Howard, 46, was found guilty of capital murder in the 2000 killing of Vickie Swartout, 42, who was shot once in the chest during a robbery. Evidence presented at the trial included the store’s surveillance video, which showed Howard shooting Swartout.

Howard, who was 20 at the time, took $114 and a carton of cigarettes from the store in the small, rural town of Silsbee, located about 100 miles northeast of Houston, according to court records.

His attorneys have argued Howard is intellectually disabled and his execution should be halted. The state said he has not presented evidence that would show he meets the requirements for a claim of intellectual disability.

He has an appeal to the U.S. Supreme Court pending to stop the execution.

The Supreme Court in 2002 had barred the execution of intellectually disabled people. But it has given states some discretion in how they determine such disabilities.

Motion to stay because of drugs

The motion filed in the Court of Criminal Appeals in Texas early Wednesday said Howard’s attorneys had filed requests for information about the lethal dose of pentobarbital the Texas Department of Criminal Justice planned to use. They say the department asked for a state attorney general opinion about whether they would have to disclose that information, despite a “years-long practice of disclosing information.”

The Texas attorney general opinion is not expected to be returned until after Wednesday, meaning Howard can’t litigate whatever decision the state might make on releasing that information, they say.

Texas officials did not immediately return a request for comment Wednesday morning.

Executions in the U.S. this year

Florida has carried out 16 executions so far this year, the most of any state. Most states that allow executions use lethal injection as their primary method.

Tennessee’s Republican Gov. Bill Lee has halted the one remaining execution for the rest of the year.

An execution date for former Army Maj. Nidal Hasan, who killed 13 people in a 2009 shooting at Fort Hood, has been set for Dec. 3, and will take place at the same post where he carried out his attack, according to an email sent to the families of victims. 

Hasan is set to die by firing squad in what will be the first military execution since 1961. Pentagon spokesman Sean Parnell said late Monday the plan to use an Army firing squad was recommended by Defense Secretary Pete Hegseth and approved by President Trump.