(credit: Texas Dept. of Criminal Justice)

HOUSTON (AP) — A divided federal appeals court panel has thrown out the capital murder conviction of a former Fort Worth street gang leader sentenced to die for gunning down a Dallas father of four during an attempted robbery in 2001.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled 2-1 on Friday that Nelson Gongora’s constitutional rights were violated in comments by a Tarrant County assistant district attorney. The prosecutor told trial jurors that Gongora’s refusal to testify at his 2003 trial implied he was guilty.

Gongora was convicted of killing 36-year-old Delfino Sierra outside a party he was attending in Fort Worth.

The court has given Tarrant prosecutors six months to retry Gongora, resolve the case in some other manner or release him from prison.

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