DALLAS (CBSDFW.COM) – A federal court ruling means the man convicted of one of the most chilling crimes in North Texas history is closer to having his execution carried out tonight. John Battaglia is scheduled to die by lethal injection for killing his two young daughters while their mother, his ex-wife, listened helplessly on the phone.

This morning the 5th U.S. Circuit Court of Appeals rejected an appeal that claimed a lower court impeded Battaglia’s lawyers from hiring an expert to examine claims that their client isn’t mentally competent to be executed.

On two separate occasions a judge has delayed Battaglia’s execution in the 11th hour. For years lawyers for the now 62-year-old have argued that he is not mentally competent, appealing before the 5th U.S. Circuit Court of Appeals and the U.S. Supreme Court, but those close say its time for his sentence to be carried out.

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Photo of Faith and Liberty Battaglia, the daughters shot and killed by their father John Battaglia in 2001.

It was 2001 when Battaglia shot and killed Faith and Liberty, his 9- and 6-year-old daughters, in his Deep Ellum apartment. He had a court-ordered and scheduled visit and had met his ex-wife in a shopping center parking lot to pick up the children because he was under court order to stay away from his ex-wife’s Highland Park home.

Not long after the girls were given to Battaglia, he got his former wife, Mary Jean Pearle, on the phone. “Why do you want daddy to go to jail,” one of the girls reportedly said to Pearle over the phone. Seconds later, Pearle heard one of the children say “No, no, daddy,” then gunshots.

Faith was shot three times, Liberty five. Hours later, Battaglia was found at a tattoo shop getting two large red roses inked on his left arm to commemorate his daughters. When he walked outside, it took four officers to subdue and arrest him. A fully loaded revolver was found in his truck.

Battaglia has been on death row since 2002.

Howard Blackmon, the prosecutor for the case, will not attend the execution, but told CBS 11 News how it still impacts his life. “People still remember and are still outraged. In fact, just at the parking lot near the courthouse… there were several people that approached me and said ‘Are we finally gonna get rid of him?’”

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John Battaglia (credit: CBSDFW.COM)

A state judge has described Battaglila as highly intelligent and faking mental illness to avoid execution.

It was in September of last year when the Texas Court of Criminal Appeals ruled Battaglia was competent to be executed. The appeals court had halted his execution the year before to review his competency after his attorney had appealed a lower court judge’s ruling that Battaglia was mentally competent.

Blackmon describes the murders as diabolical and savage saying Battaglia killed his daughters, “…out of spite only to get back at the mother of the girls – his ex-wife. It was to put a lifetime curse on her and this is the way he chose to do it.”

Barring a U.S. Supreme Court decision John David Battaglia will be put to death at 6 p.m. It will  be the third execution in the state this year and the second in less than a week. William Rayford was executed Tuesday for the 1999 slaying of his ex-girlfriend while he was out on parole for killing his estranged wife.