HUNTSVILLE, Texas (AP) - As her mother listened on the telephone, 9-year-old Faith Battaglia pleaded with her father.
"No, daddy, please don't, don't do it!" the child begged.
Mary Jane Pearle yelled into the phone for Faith and her 6-year-old sister, Liberty, to run. Then Pearle heard gunshots.
On Thursday, her ex-husband, John David Battaglia is set for execution for the May 2001 slayings of their daughters.
"Merry ... Christmas," Battaglia told Pearle from his Dallas apartment, the words of the holiday greeting derisively divided by an obscenity. She heard more gunshots, then called 911.
Faith was shot three times and Liberty five. Hours later, Battaglia was at a nearby tattoo shop getting two large red roses inked on his left arm to commemorate his daughters. It took four officers to subdue and arrest him when he walked outside. A fully loaded revolver was found in his truck and more than a dozen firearms were recovered from his apartment.
Battaglia's attorneys asked a federal appeals court and the U.S. Supreme Court to block his lethal injection - the second in the nation this week and third this year, all in Texas - and review his case, arguing he is mentally incompetent for execution. The Texas Court of Criminal Appeals, the state's highest criminal court, misapplied the Supreme Court's guidance when it ruled Battaglia is competent for the death penalty, lawyers argued.
The Supreme Court has ruled prisoners can be executed if they're aware the death penalty is to be carried out and have a rational understanding of why they're facing that punishment. Attorneys for the 62-year-old Battaglia contend he doesn't have that understanding.
Prosecutors said the high court hasn't defined "rational understanding" so the Texas courts did an "exhaustive" analysis of cases to ensure proper legal standards were followed. A state judge and the state appeals court found Battaglia was competent, not mentally ill and was faking mental illness to try to avoid execution. He was described as highly intelligent.
"The defendant is a vengeful, manipulative, cunning and deceitful person with the motive and intellectual capability to maintain a deliberate ploy or ruse to avoid his execution," State District Judge Robert Burns said in finding the former accountant competent.
Battaglia's lawyers also argued to the 5th U.S. Circuit Court of Appeals that a federal judge improperly denied their requests for additional money to hire an expert to collect information about his competency, which long has been a focus of appeals in the case.
Evidence showed Battaglia became enraged over his ex-wife going to police about his harassment and likely arrest, and used the May 2, 2001, visit with their two young daughters to avenge his anger. That evening, Pearle left their daughters with him for a planned dinner. She received a message that one of the girls had called for her and it was during her returned call that the shootings occurred.
Battaglia told The Dallas Morning News in 2014 his daughters were his "best little friends" and that he had photos of them displayed in his prison cell.
"I don't feel like I killed them," he said. "I am a little bit in the blank about what happened."
Evidence at his 2002 capital murder trial showed at the time of the shootings Battaglia was on probation for a Christmas 1999 attack on Pearle. His profanity-laced Christmas greeting to his estranged wife during the shooting was an apparent reference to that.