Death row inmate's conviction upheld

That makes it impossible to determine whether Cannon slept during the presentation of "crucial" or "uncontested" evidence, the court wrote.

Cannon has since died.

The three-judge panel overturned a decision ordering a new trial or freedom for Calvin Burdine, 47, who was convicted of stabbing his gay lover to death at their trailer in 1983.

Burdine has denied killing W.T. Wise, 50, but acknowledged he was at the scene with a 17-year-old accomplice, who served eight years in prison for a lesser crime before he was paroled.

The court also scolded Burdine for not raising his claim until 11 years after his conviction, for allowing Cannon to represent him on his first appeal and for never giving an affidavit or sworn testimony that Cannon slept during trial.

"Cannon is not the only person in this case who slept; Burdine slumbered as well — on his rights," Judge Rhesa Barksdale wrote.

Judge Fortunato Benavides sharply dissented.

"It shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel's representation of Burdine," Benavides wrote in a 15-page dissent.

The decision sends the case back to U.S. District Judge David Hittner for further consideration.

"Today's decision confirms that a jury's verdict will not be overturned unless and until the defendant proves that actual harm occurred as a result of his attorney's conduct at trial," said Heather Browne, a spokeswoman for the Texas Attorney General's Office.

Robert McGlasson, Burdine's attorney, promised an immediate appeal.

"An airline pilot gets caught dozing momentarily and that pilot never flies again. Only in the legal profession, and apparently only in a capital case, is it OK to sleep," McGlasson said.

Texas is by far the nation's most active death penalty state, a status under heightened scrutiny this year because of the presidential campaign of Gov. George W. Bush.

Earlier this week, a Texas appeals court overturned the death sentence of a man convicted of killing a Houston jogger because his lawyer failed to object to improper statements made by prosecutors.