A motion to have a separate jury hear evidence regarding intellectual disability concerning one of three men accused in a fatal January 2017 convenience store robbery was denied Monday in a Smith County court pretrial hearing.

Dameon Jamarc Mosley, 28, faces capital murder charges and could be sentenced to death if convicted in the shooting death of Billy Dale Stacks, 62, of Tyler. Stacks was working as a clerk at the Conoco gas station at 3319 NNE Loop 323 when the store was robbed. Officials said Stacks was shot several times in his head and shoulder.

Judge Christi Kennedy of the 114th District Court denied the defense’s request saying a separate jury for intellectual disability is not authorized under the law. She said the question of intellectual disability will be within the charge during punishment phase against Mosley if he were found guilty. 

Robbie McClung, Mosley’s defense attorney, said a separate jury was requested because there are no statutory guidelines in Texas and the question has to be asked for each case.

She mentioned the U.S. Supreme Court ruling on intellectual disabilities and the death penalty.

The court has ruled twice that those with an intellectual disability cannot be sentenced to the death penalty. In the ruling on Moore v. Texas, a majority of the court justices said the person, Bobby Moore, was intellectually disabled medically and could not be executed, according to the Texas Tribune. 

Intellectual disability also came up during the Gustavo Zavala-Garcia capital murder case. He was declared intellectually disabled, and pleaded guilty to killing 10-year-old Kayla Gomez-Orozco. Because of the declaration of intellectual disability, he was sentenced to life in prison without parole, not death. 

The jury selection for Mosley’s trial is scheduled to begin at 8:30 a.m. Thursday. The actual trial is set to begin for Nov. 4.

Two other suspects, Lamarcus Hannah, 32, and Kedarias Hayes Oliver, 23, also face capital murder charges in the case.

Hannah has a jury trial scheduled for Nov. 4, according to judicial records. Oliver does not have a scheduled trial as of Oct. 14, according to records.

Hannah and Oliver both had their most recent pretrial hearings on Aug. 23.

On the Aug. 23 pretrial hearing, Kennedy told Hannah and Oliver she didn’t anticipate their cases going to trial until Mosley’s trial is completed.

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This story has been updated to clarify an earlier version.