The Houston Chronicle reports that a man on Texas’ death row has been denied clemency in his last-minute federal appeal. He is scheduled for execution in Huntsville in less than 48 hours.

Erick Davila was sentenced to death in 2009 for killing the mother of a rival gang member and a 5-year-old girl in 2008. The murders took place at a Hannah Montana-themed birthday party.

Since his conviction and sentencing, defense attorneys have argued he shouldn’t be put to death because the victims were not the intended victims. They claim that Davila was on drugs at the time of the murders and meant to kill only one person – rival gang member Jerry Stevenson.

Killing one person is not always a death-penalty crime, and his attorneys argue that the jury was not notified that he was drunk and high at the time, which could have affected his thought process. Davila was allegedly on PCP, ecstasy and marijuana – information that prosecutors did not divulge. This oversight could violate the Supreme Court decision in Brady v. Maryland, which determined that prosecutors are required to turn over evidence that could benefit the defense.

However, the U.S. Fifth Circuit determined Monday that it was possible for defense attorneys to be aware that Davila was using drugs heavily the night of the murders. Davila’s attorneys are now taking the claims to the U.S. Supreme Court.

Davila is scheduled to be executed Wednesday at 6 p.m. via lethal injection. Barring a stay from the U.S. Supreme Court, Davila will be the fifth inmate executed in Texas in 2018.

*Photo credit Hearst Newspapers