Opinion

Thomas, Kenneth Dewayne

Court: Court of Appeals of Texas
Filed: Jun 22, 2015
Status: Published
Cited by: 0 cases
Authority: More cited than 3.1%

finding “a very low probability that, if sentenced to life in prison, [appellant] will have any more children”

How later courts described this case

finding “a very low probability that, if sentenced to life in prison, [appellant] will have any more children”
state’s “method of allocating the burdens of proof” during capital sentencing phase cannot “lessen the State’s burden ... to prove the existence of aggravating factors”
admission of victim impact testimony was error, but harmless
stating the Fifth Circuit position that the BrisenÞo factors permissibly exclude certain offenders with intellectual disability from the Atkins exemption

Written by the judges who cited it.

The opinion

AP-77,047

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/19/2015 3:07:54 PM

Accepted 6/22/2015 3:35:12 PM

June 22, 2015 ABEL ACOSTA

NO. AP-77,047 CLERK

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

_______________________________________________________

KENNETH WAYNE THOMAS

Appellant

VS.

THE STATE OF TEXAS

Appellee

_____________________________________________________

APPEALING THE TRIAL COURT’S CAPITAL JUDGMENT

ASSESSING THE DEATH SENTENCE BASED ON JURY VERDICT

OF GUILTY AND ANSWERS TO SPECIAL ISSUES

IN CAUSE NUMBER F86-85539-M FROM THE 194TH JUDICIAL

DISTRICT COURT OF DALLAS COUNTY, TEXAS

THE HONORABLE ERNEST B. WHITE, III, JUDGE PRESIDING

_______________________________________________________

BRIEF FOR APPELLANT

_______________________________________________________

JOHN TATUM

990 SOUTH SHERMAN STREET

RICHARDSON, TEXAS 75081

(972) 705-9200

BAR NO. 19672500

ATTORNEY FOR APPELLANT ON APPEAL ONLY

ORAL ARGUMENT IS REQUESTED

IDENTITIES OF PARTIES AND COUNSEL

HONORABLE ERNEST B. WHITE, III JUDGE PRESIDING

133 N. Riverfront Blvd 194TH JUDICIAL

Frank Crowely Courts Bldg. DISTRICT COURT

Dallas, Texas 75207 OF DALLAS COUNTY, TEXAS

KENNETH WAYNE THOMAS APPELLANT

TDC#00000869

Polunsky Unit

3872 FM 350 South

Livingston, Texas 77351

HONORABLE JOHN C. “JUAN” SANCHEZ ATTORNEY FOR APPELLANT

703 McKinney Ave, Suite 418

Dallas, Texas 75202-1014

SBOT#00791599

HONORABLE BROOK A BUSBEE ATTORNEY FOR APPELLANT

703 McKinney Ave, Suite 312

Dallas, Texas 75202-6012

SBOT# 034880000

HONORABLE JOHN TATUM ATTORNEY FOR APPELLANT

990 S. Sherman St.

Richardson, Texas 75081

SBOT# 19672500

HONORABLE CRAIG WATKINS DISTRICT ATTORNEY

133 N. Riverfront Blvd DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

at time of trial

HONORABLE BRANDON BIRMINGHAM ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

SBOT# 24034330

HONORABLE DEWEYMITCHELL ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

HONORABLE JERRY VARNEY ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

HONORABLE MARCIA TAYLOR ASSISTANT DISTRICT ATTORNEY

133 N. Riverfront Blvd. DALLAS COUNTY, TEXAS

Frank Crowely Courts Bldg.

Dallas, Texas 75207

TABLE OF CONTENTS

PAGE

IDENTITIES OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i-ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-vi

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii-xxiii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xviii-xix

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxvi-xlii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-31

A. Competency Trial

The Defense on Competency Trial

1) Testimony of Antoinette McGarrahan, Ph.D.. . . . 1-2

2) Testimony of Cynthia Short. . . . . . . . . . . . . . . . . . 2-3

The State on Competency Trial

3) Testimony of Kristi Compton, Ph.D. . . . . . . . . . . 3-4

B. Trial on Punishment

The State on Punishment

1) Testimony of James Gallagher. . . . . . . . . . . . . . . . 4-6

2) Testimony of Joseph Schreck.. . . . . . . . . . . . . . . . 6

3) Testimony of Joseph Maberry. . . . . . . . . . . . . . . . 7

4) Testimony of Carolyn Vanwinkle. . . . . . . . . . . . . 7-8

5) Testimony of Edward T. McDonough, M.D... . . . 8

6) Testimony of James R. Smith.. . . . . . . . . . . . . . . . 8

7) Testimony of Aubrey Basse. . . . . . . . . . . . . . . . . . 9

8) Testimony of Angela Fitzwater. . . . . . . . . . . . . . . 9

9) Testimony of Margaret Ann “Peggy” Crain. . . . . . 9

10) Testimony of Pansy Lee Lewis. . . . . . . . . . . . . . . 9

11) Testimony of Bernard H. Blackmon. . . . . . . . . . . 10

iii

12) Testimony of Delores Easter. . . . . . . . . . . . . . . . . 10

13) Testimony of Thomas Penagraph.. . . . . . . . . . . . . 10-11

14) Testimony of Lonnie Thomas. . . . . . . . . . . . . . . . 10-12

15) Testimony of Billy Ray Thomas. . . . . . . . . . . . . . 12-13

16) Testimony of Lonnie Burrell. . . . . . . . . . . . . . . . . 13

17) Testimony of Philip E. Jones. . . . . . . . . . . . . . . . . 13-14

18) Testimony of Marvin Lindwood. . . . . . . . . . . . . . 14

19) Testimony of Joyce Brown.. . . . . . . . . . . . . . . . . . 14-15

20) Testimony of Billy Ray Thomas. . . . . . . . . . . . . . 15

21) Testimony of Michael Ferguson. . . . . . . . . . . . . . 15

22) Testimony of Steven Dewayne McCarroll.. . . . . . 16

23) Testimony of Larry Dean Turner. . . . . . . . . . . . . . 16

24) Testimony of Linda White. . . . . . . . . . . . . . . . . . . 16

The Defense on Punishment

25) Testimony of Anthony Penagraph. . . . . . . . . . . . . 16-17

26) Testimony of Jim Hom, Ph.D.. . . . . . . . . . . . . . . . 17-18

27) Testimony of Antoinette McGarrahan, Ph.D.. . . . 18-20

28) Testimony of Carolyn Henrietta Roy. . . . . . . . . . . 20

29) Testimony of Bobby Charles Roy. . . . . . . . . . . . . 20-21

30) Testimony of Rodney Turner. . . . . . . . . . . . . . . . . 21

31) Testimony of Cynthia Ann Rice.. . . . . . . . . . . . . . 21

32) Testimony of Jaye W. Crowder, M.D.. . . . . . . . . . 21-22

33) Testimony of Marilyn Calhoun. . . . . . . . . . . . . . . 22-23

34) Testimony of Curfey Henderson. . . . . . . . . . . . . . 23

35) Testimony of Van Similine. . . . . . . . . . . . . . . . . . 23

36) Testimony of George Abraham. . . . . . . . . . . . . . . 23-24

37) Testimony of James Evans Aiken. . . . . . . . . . . . . 24-25

38) Testimony of Stephen Phillips. . . . . . . . . . . . . . . . 25

39) Testimony of Raymond Moore. . . . . . . . . . . . . . . 25-26

40) Testimony of David Weeks. . . . . . . . . . . . . . . . . . 26-27

41) Testimony of Anthony Graves. . . . . . . . . . . . . . . . 27

The State on Rebuttal

42) Testimony of Melodye Nelson. . . . . . . . . . . . . . . . 27-28

43) Testimony of Richard Hughes, Ph.D.. . . . . . . . . . 28

44) Testimony of James C. Belt, Jr.. . . . . . . . . . . . . . . 29

45) Testimony of Randy Price, Ph.D... . . . . . . . . . . . . 29-30

Defense on Rebuttal

46) Testimony of Antoinette McGarrahan, Ph.D.. . . . 30

SUMMARY OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-34

ISSUES ON VOIR DIRE

ISSUE NO. 1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-35

ISSUE NO. 2 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35-36

ISSUE NO. 3 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37

ISSUE NO. 4 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37-38

ISSUE NO. 5 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

ISSUE NO. 6 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

ISSUE NO. 7 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41

ISSUE NO. 8 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

ARGUMENT ON ISSUES 1-8.. . . . . . . . . . . . . . . . . . . . . . . 41-50

ISSUE NO. 9 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-54

ISSUE NO. 10 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-56

ISSUE NO. 11 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-57

ISSUE NO. 12 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58-59

ISSUE NO. 13 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60-61

ISSUE NO. 14 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62-63

ISSUE NO. 15 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-65

ISSUE NO. 16 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-66

ISSUE NO. 17 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67-68

ISSUE NO. 18 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68-70

ISSUE NO. 19 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70-72

ISSUE NO. 20 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-74

ISSUE NO. 21 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-75

ISSUE NO. 22 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75-76

ISSUE NO. 23 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77-79

ISSUE NO. 24 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79-80

ISSUE NO. 25 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80-81

ISSUE NO. 26 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

ISSUE NO. 27 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

ISSUE NO. 28 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84-85

ISSUE NO. 29 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85-86

ISSUE NO. 30 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-87

ISSUE NO. 31 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87-101

ISSUE NO. 32 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101-104

ISSUE NO. 33 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101-104

ISSUE NO. 34 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102-104

ISSUE NO. 35 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

ISSUE NO. 36 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105-107

PRETRIAL ISSUES

ISSUE NO. 37 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107-108

COMPETENCY TRIAL ISSUES

ISSUE NO. 38 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109-112

ISSUE NO. 39 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113-114

ISSUE NO. 40 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114-119

ISSUE NO. 41 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114-120

PUNISHMENT TRIAL ISSUES

ISSUE NO. 42 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120-121

ISSUE NO. 43 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

ISSUE NO. 44 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122-123

ISSUE NO. 45 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123-126

ISSUE NO. 46 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127-128

ISSUE NO. 47 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129-131

ISSUE NO. 48 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129-131

ISSUE NO. 49 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131-142

ISSUE NO. 50 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142-143

ISSUE NO. 51 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

ISSUE NO. 52 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144-145

ISSUE NO. 53 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

ISSUE NO. 54 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145-148

SPECIAL REQUESTED ISSUE ON APPEAL

ISSUE NO. 55 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149-150

FEDERAL ISSUES

ISSUE NO. 56 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

ISSUE NO. 57 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152-153

ISSUE NO. 58 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

ISSUE NO. 59 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

ISSUE NO. 60 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

ISSUE NO. 61 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

ISSUE NO. 62 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

ISSUE NO. 63 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

ISSUE NO. 64 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

ISSUE NO. 65 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157-158

ISSUE NO. 66 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158-159

PRAYER .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . 161

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . 162

vii

INDEX OF AUTHORITIES

FEDERAL CASES

Apprendi v. New Jersey

530 U.S. 466 (2000), . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Atkins v. Virginia

536 U.S. at 321).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89-91,95,97,100,101

Batson v. Kentucky

476 U. S. 79, 106 S. C. 1712, 90 L. Ed. 2d 69 (1988).. . . . . . . . . . . . . . . . . . . . . 34-42,47

Bush v. Gore

531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . 160

Chester v. Thaler

666 F.3d 340, 346 (5th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91,96

Drope v. Missouri

420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975).. . . . . . . . . . . . . . . . . . 115

Eddings v. Oklahoma

455 U.S. 104, 112, 102 S. Ct. 869, 71 L.Ed.2d 1 (1982). . . . . . . . . . . . . . . . . . . . . . . . 52

Furman v. Georgia

408 U.S. 238 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Gilmore v. Taylor

508 U.S. 333, 113 S.Ct. 2112, 124 L. Ed.2d 306 (1993). . . . . . . . . . . . . . . . . . . . . . . 159

Gregg v. Georgia

428 U.S. 153, 189 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Hall v. Florida

134 S.Ct. 1986 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88-90,92,97-98,100-104

Hayes v. Thaler

361, Fed App. 563 (C.A.5 (Tex.)) 2010 WL 183395 . . . . . . . . . . . . . . . . . . . . . . . . . . 49

viii

In Re Windship

397 U.S. 358 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Jurek v. Texas

428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).. . . . . . . . . . . . . . . . . . . . . . . . . 132

Lockett v. Ohio

438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 ( 1978). . . . . . . . . . . . . . . . . . . . . . . . . . 54

Lowenfield v. Phelps

484 U.S. at 240-41, 108 S.Ct. at 522, 98 L.Ed.2d.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Miller-El v. Cockrell

537 U.S. 322 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47,49

Miller-El v. Drekte

545 U.S. 231 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Mills v. Maryland

486 U.S. 367, 383, 108 S.Ct. 1860, 1870, 100 L.Ed.2d 384 (1988) . . . . . . . . . . . . . . 154

Moore v. Quarterman

342 F. App'x 65, 72 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Morgan v. Illinois

504 U.S. 719 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,54

Payne v. Tennessee

501 U.S. 808 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Reed v. Quaterman

555 F3d 304 (45th Cir.2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Ross v. Oklahoma

4897 U.S. 81 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Snyder v. Louisiana

128 S.Ct. 1203 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Spaziano v. Florida

468 U.S. 447-64 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Tennard v. Dreke

124 S.Ct. 2562 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Wainwright v. Witt

469 U.S. 412 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,80

Walton v. Arizona

497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).. . . . . . . . . . . . . . . . . . . . . . . 156

Woodson v. North Carolina

428 U.S. 280, 305 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,160

STATE CASES

Alcott v. State

51 S.W.3d 596, 599 (Tex.Crim.App.2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Anderson v. State

633 S.W.2d 851, 854 (Tex. Crim.App. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,87

Ardovina v. State

143 Tex. Crim. 43, 156 S.W.2d 983, 984(1941).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Barajas v. State

93 S.W.3d 36,39 (Tex Crim. App. 2002). . . 51-52,55,57,59,61,63,65-66,68,70,72,74-76

Barletta v. State

994 S.W.2d 708, 713 (Tex. App.- Texarkana 1999, pet. ref’d). . . . . . . . . . . . . . . . . . 127

Beltran v. State

728 S.W.2d 382,388(Tex.Cr.App.1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135,142

Belyeu v.State

791 S.W.2d 66, 73 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Berry v. State

233 S.W.3d 847 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132-133

Blonner v. State

127 P.3d 1135, 1139 (Okla.Crim.App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Boston v. State

965 S.W.2d 546, 550 (Tex. App.-Houston [14th Dist.] 1997, no pet.). . . . . . . . . . . . . 127

Brasfield v. State

600 S.W.2d 288 (Tex. Cr. App. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Brooks v. State

599 S.W.2d 312 (Tex. Cr. App. 1979), cert. den. 453 U.S. 913, 101 S.Ct. 3146, 69

L.Ed.2d 996 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Burgan v. State

259 S.W.3d 219 (Tex. Ct. App.-Beaumont, 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Cantu v. State

939 S.W. 2d 627, 637 (Tex. Crim. App. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . 127-128

Carter v. State

717 S.W.2d 60 (Tex. Cri. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Casey v. State

924 S.W.2d 946, 949 (Tex.Crim.App.1996). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Clark v. State

717 S.W.2d 910, 916-17 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Coe v. State

683 S.W.2d 431, 438 (Tex.Crim.App.1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Commonwealth v. Miller

888 A.2d 624 (Pa. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Cordova v. State

733 S.W.2d 175, 182 (Tex. Cr. App. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Criswell v. State.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

278 S.W.3d 455, 458 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

Cruz v. State

629 S.W.2d 852 (Tex. Ct. App. Corpus Christi, 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Cumbo v. State

760 S.W.2d 251 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Eidson v. Edwards

793 S.W.2d 1 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Esteves v. State

859 S. W. 2d 613 (Tex. App. – Houston [1st Dist.] 1993, pet. ref’d). . . . . . . . . . . . . . . 42

Everson v. State

851 S. W. 2d 269 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Ex Parte Briseno

135 S.W.3d 1 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . 87,90-92,94-95,97,100-102,144

Ex Parte Cathay

451 S.W.3d 1 (Tex. Crim.App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 87-90,95,104,129

Ex parte Hagens

558 S.W.2d 457, 461 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . 111,112

Ex parte Hearn

310 S.W.3d 424, 428–29 (Tex.Crim.App.2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,91

Ex Parte Ladd

2013 WL 593927 S.W. 3d (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . 88,92

Ex parte LaHood

401 S.W. 3d 45,53 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

xii

Ex Parte Lizcano

WR-68,348-03 (Tex. Crim.App. April 15, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Ex parte Sosa

364 S.W.3d 889, 891 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91,97

Ex Parte Van Alstine

239 S.W. 3d 815(Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Ex parte Weathers

No. WR-64,302-02, 2014 WL 1758977, at *6 (Tex. Crim. App. Apr. 30, 2014). . . . . 91

Faulder v. State

745 S.W.2d 327 (Tex. Cr. App.. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Fierro

706 S.W.2d 310,319 (Tex. Crim. App. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 135,142

Fuller v. State

363 S.W.3rd 583 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Gallo v. State

239 S.W.3d 757 (Tex. Crim. App. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Garcia v. State

626 S.W.2d 46 (Tex. Cr. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Gigliobianco v. State

2310 S.W.3d 637, 641-42 (Tex. Crim.App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Green v. State

682 S.W.2d 271 (Tex. Crim. App. 1984) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Greer v. State

No. 05-08-00146 (Tex. App.-Dallas June 9, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Harris v. State

790 S.W.2d 568, 581 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

xiii

Harris v. Texas Dep’t of Crim. Justice

806 F. Supp. 627, 636 (S.D. Tex. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Hernandez v. State

757 S.W.2d 744 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Hovila v. State

562 S.W.2d 243 (Tex. Cr. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Huffman v. State

746 S.W.2d 212 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Hughes v. State

892 So.2d 203, 216 (Miss. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

In RE: Tyrone Allen

realtor, WR-82,265-01 and WR-82,265-02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Johnson v. State

673 S.W.2d 190, 197 (Tex. Crim. App.1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Jones v. State

982 S.W.2d 386 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106-107

Jurek v. State

522 S.W.2d 934 (Tex. Cr. App. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Keeton v. State

724 S. W. 2d 58, 65 n. 5 (Tex. Crim. App. 1987).. . . . . . . . . . . . . . . . . . . . . . 47,133,134

Kelly v. State

824 S.W.2d 568 (Tex. Crim. App. 1992)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Kostura v. State

292 S.W.3d 744, 749 (Tex.App.-Houston [14th Dist.] 2009, no pet.). . . . . . . . . . . . . 147

Ladd v. State

3 S.W.3d 547, 567 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

xiv

Lallo v. State

239 S.W.3d 757 (Tex. Rim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Lindsay v. State

102 S.W.3d 223, 228 n. 1 (Tex. App.-Houston [14th Dist.], 2003, pet. filed). . . . . . . 128

Linscomb v. State

829 S. W. 2d 164, 166 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47,48

Lizcano v. State

No. AP-75879, 2010 WL 181772, *35 (Tex. Crim. App. May 5, 2010) .. . . . . . . . . . . 96

Lopez v. State

940 S. W. 2d 388 (Tex. App.-Austin, 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Marguez v. State

725 S.W.2d 217 (Tex.Crim. App. 1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Mays v. State

726 S.W.2d 937, 950 (Tex. Cr. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Mertz v. State

785 S.W.2d 146 (Tex. Crim. App. 1990) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

McFarlane v. State

254 S.W.2d 136 (Tex. Cr. App. 1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

Middleton v. State

239 S.W.45 ( Tex. Crim. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Mitchell v. State

650 S.W.2d 801 (Tex. Cr. App. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Montgomery v. State

810 S.W.2d 372, 376 (Tex. Crim. App.1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Morris

301 S.W.3d (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Mosely v. State

983 S.W.2d (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Musick v. State

862 S.W. 2d 794 (Tex. App. – El Paso 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Nenno v. State

970 S.W.2d 549 (Tex. Crim. App. 1998) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Nunez v. State

742 S.W.2d 57 (Tex. Ct. App.-Corpus Christi 1997, no pet.). . . . . . . . . . . . . . . . . . . 120

O’Bryan v. State

591 S.W.2s 464, 480 (Tex. Cr. Ap. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

People v. Lavalle

783 N.Y.S.2d 485 (N.Y. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Perkins v. State

32 Tex. 109, 112(1869).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Ramirez v. State

862 S. W. 2d 648 (Tex. App. – Dallas 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,49

Reeves v. State

806 S.W.2d 540, 543 (Tex. Crim.App.1990), cert. denied, –U.S.–, 111 S.Ct. 641,

113 L.Ed.2d 736 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Renteria v. State

206 S.W.3d 689 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Robinson v. State

548 S.W.2d 63, 64 (Tex. Cr. App. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Rodriguez v. State

324 S.W.3d 74 (Tex. Crim. App. -Hou [14th Dist.] 2010) . . . . . . . . . . . . . . . . . . . . . . 145

xvi

Rojas v. State

986 S.W.2d 241, 249 (Tex. Crim. App.1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 112,126

Roney v. State

632 S.W.2d 598,603 (Tex. Cr. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132,136

Salazar v. State

562 S.W.2d 480, 482 (Tex. Crim. App. 1978)... . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,124

Saldano v. State

232 S.W.3d 77 (Tex. Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Santana v. State

714S.W.2d 1, 8 (Tex. Cr. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Santellan v. State

939 S.W.2d 155 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Seghelmeble v. State

390 S.W.3d 576 (Tex. Ct. App.-Dallas, 2012) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Shaver v. State

280 S.W.2d 740, 742 (Tex. Crim.App. 1955).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Smith v. State

919 S.W.2d 96 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

State v. Jimenez

880 A.2d 468 (N.J. Super. Ct. App. Div. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

State v. Jimenez

908 A.2d 181 (N.J. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

State v. Lott

779 N.E.2d 1011 (Ohio 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Townsend v. State

427 S.W.2d 55, 63 (Tex. Crim. App. 1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

xvii

Turner v. State

422 S.W.3d 676, 688 (Tex. Crim. App. 2013)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Wallace v. State

618 S.W.2d 67 (Tex. Cr. App. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Warren v. State

562 S.W.2d 474 (Tex. Cr. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Whitsey v. State

796 S. W. 2d 707, 713 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Williams v. State

68 S.W.2d 692 (Tex. CR. App. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Williams v. State

270 S.W.3d 112 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Williams v. State

692 S.W.2d 671, 676 (Tex.Crim.App.1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Wyatt v. State

23 S.W.3d 18, 29 (Tex. Crim. App.2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Young v. State

826 S. W. 2d 141, 145 (Tex. Crim. App. 1999)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Zamosa v. State

41 S.W.3d 504 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

STATE STATUTES:

Tex. Code Crim. P. Ann. Art. 35.16(c)(2)

(Vernon Supp. 1992). . . . . . . . . . . . . . . . . 51,52.55,57,59,61,63,64,66,68,70,71,73,74,76

Tex. Code Crim. P. Ann. Art. 35.16(a)(9)

(Vernon Supp. 1992). . . . . . . . . . . . . . . . . . . . . . 55,57,59,61,63,64,66,68,70,71,73,74,76

xviii

TEX. CODE CRIM. PROC. ANN. art. 37.071, §3(b)(1), (b)(2), (e) (Vernon Supp.

1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52,155

TEX.CODE CRIM. PROC. ANN. art. 37.071 § 2(e)(1)

(Vernon Supp. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3)

& (c)(2) (West 2006). . . . . . . . . . . . . . . . . . . . . . . . 55,57,59,61,63,64,66,68,70,72,74-76

Rule. 44.2.(b) C.C.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Tex. Const. Art. I, §§ 13 & 19.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Tex. Const. Art. I, § 10... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51,105

TEX.R.EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113,122,123,125

TEX.CODE.CRIM.PROC.ANN, art. 46B.003(a) (Vernon 2006). .. . . . . . . . . . . . . . 115

TEX CODE CRIM. PRO. ANN. Art 46B.024 (West 2006).. . . . . . . . . . . . . . . . . . . . 119

TEX.R.CRIM.EVID 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Art. 44.251 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Article 37.0711§3(a)(1) C.C.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133,135

Article 38.14 C.C.P... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

TEX.CODE CRIM. PROC. ANN. Art 38.03 (Vernon Supp. 1991).. . . . . . . . . . . . . . . . . . 149

ALA. CODE § 15-24-2(3) (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

ARIZ. REV. STAT. ANN. § 13-753(K)(1)-(K)(3) (2012). . . . . . . . . . . . . . . . . . . . . . . 99

ARK. CODE ANN. § 5-4-618(a)(1) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

CAL. PENAL CODE § 1376(a) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

xix

COLO. REV. STAT. § 18-1.3-1101(2) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

DEL. CODE ANN. tit. 11 § 4209(d)(3)d (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

FLA. STAT. ANN. § 921.137(1) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

GA. CODE ANN. § 17-7-131(a)(3) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

IDAHO CODE ANN. § 19-2515A(1)(a) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

IND. CODE ANN. 35-36-9-2 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

KAN. STAT. ANN. §§ 21-6622(h), 76-12b01 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 99

KY. REV. STAT. ANN. § 532.130(2) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

LA. CODE CRIM. PROC. ANN. art. 905.5.1(H)(1) (2011). . . . . . . . . . . . . . . . . . . . . 99

MO. ANN. STAT. § 565.030(6) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

NEB. REV. STAT. § 28-105.01(3) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

NEV. REV. STAT. ANN. § 174.098(7) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

N.C. GEN. STAT. ANN. § 15A-2005(a)(1)(a) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . 99

S.C. CODE ANN. § 16-3-20(C)(b)(10) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

TENN. CODE ANN. § 39-13-203(a) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

UTAH CODE ANN. § 77-15a-102 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

VA. CODE ANN. § 19.2-264.3:1.1(A) (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

WASH. REV. CODE ANN. § 10.95.030(2)(a) (2012). .. . . . . . . . . . . . . . . . . . . . . . . . 99

OKLA. STAT. ANN. tit. 21 § 701.10bA(1) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

S.D. CODIFIED LAWS § 23A-27A-26.2 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

CONN. GEN. STAT. § 1-1g(a) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

725 ILL. COMP. STAT. 5/114-15(d) (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

MD. CODE ANN., CRIM. LAW § 2-202(b)(1) (2012) . . . . . . . . . . . . . . . . . . . . . . . . 99

N.M. STAT. ANN. § 31-20A-2.1(A) (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

N.Y. CRIM. PROC. LAW § 400.27(e) (2007)... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

DSMIV.DEL. CODE tit. 11g § 4209(d)(3)d.1 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 99

IDAHO CODE ANN. § 19-2515A(1)(a) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

725 ILL. COMP. STAT. 5/114-15(d) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

MO. ANN. STAT. § 565.030(6) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

N.C. GEN.STAT. ANN. § 15A-2005(a)(1)(b) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 99

VA. CODE ANN. § 19.2-264.3:1.1(A) (2102).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

TENN. CODE ANN. § 33-1-101(17) (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

ARIZ. REV. STAT. ANN. § 13-753(K) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

CONN. GEN. STAT. § 1-1g(b) (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

FLA. STAT. ANN. § 921.137(1) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

KAN. STAT. ANN. § 76-12b01(a) (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

LA. CODE CRIM. PROC. Ann. art. 905.5.1(H)(1) (2011). . . . . . . . . . . . . . . . . . . . . . 99

UTAH CODE ANN. §77-15a-102 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

xxi

WASH. REV. CODE ANN. § 10.95.030(2)(d) (2012). .. . . . . . . . . . . . . . . . . . . . . . . . 99

OTHER:

John Blume et al., A Tale of Two (and possible three) Atkins:

Intellectual Disability and Capital Punishment Twelve Years

After the Supreme Court’s Creation of a Categorical Bar,

23 WM. & MARY BILL RTS. J. 393, 414 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93,97

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders, 39 (4th ed. Text Revision 2007) . . . . 93,94

J. Gregory Olley, Knowledge and Experience

Required for Experts in Atkins Cases, 16 J. Applied Psych. 135, 137 (2009) . . . . . . . 94

George W. Woods et al, Intellectual Disability

and Comorbid Disorders, in DEATH PENALTY AND

INTELLECTUAL DISABILITY 279, 286. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Stephen Greenspan, The Briseño Factors in

DEATH PENALTY AND INTELLECTUAL DISABILITY 219. .. . . . . . . . . . . . . . . . . . . . . . 95-97

John Blume et al., Of Atkins and Men: Deviations from

Clinical Definitions of Mental Retardation

in Death Penalty Cases, 18 CORNELL J. LAW & PUB. POLICY 689, 710-17 (2009).. . . 96

Peggy M. Tobolowsky, A Different Path Taken:

Texas Capital Offenders’ Post-Atkins Claims of Mental Retardation,

39 HASTINGS CONST. L.Q. 1, 149-66, 173-74 (2011). . . . . . . . . . . . . . . . . . . . . . . . . 96,07

Stephen Greenspan & Harvey N. Switzky,

Lessons from the Atkins Decision for the Next AAMR Manual,

in AAMR, WHAT IS MENTAL RETARDATION?

IDEAS FOR AN EVOLVING DISABILITY IN THE 21ST CENTURY 291 (2006). . . . . . . . . . . . 96

xxii

Peggy M. Toblowsky, Excluding Intellectually

Disabled Offenders from Execution:

The Continuing Journey to Implement Atkins,

211 (Carolina Academic Press 2014) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Lee Kovarsky, Death Ineligibility and Habeas Corpus,

95 CORNELL L. REV. 329, 352-53 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

xxiii

STATEMENT OF THE CASE

By an indictment filed on the 21st day of March, 1986, Appellant was

charged in trial court cause number F86-85539-M with one count of capital murder.

(C.R. Vol. 1 p. 2) The indictment alleged that on March 16th, 1986 Appellant

intentionally or knowingly caused the death of Mildred Finch by stabbing her with a

knife in the course of committing and attempting to commit the offense of burglary of

the deceased. On September 22, 2010 the Court of Criminal Appeals granted Habeas

Corpus relief in Tr. Ct. No. W86-85539M that resulted in this retrial on the issue of

punishment.

On July 7, 2014 a jury was empaneled in the trial on Defendant’s mental

competency to stand trial. On July 9th, 2014, the jury found that the Defendant was

competent to stand trial. (RR: Vol. 59 p. 7) The retrial on punishment began on July

10th, 2014. On July 23, 2014 the jury answered Special Issue No. 1 “Do you find by a

preponderance of the evidence that the Defendant, Kenneth Wayne Thomas, is a person

with mental retardation?” as “no.” The jury answered Special Issue No.2 “Do you find

from the evidence beyond a reasonable doubt that the conduct of the Defendant,

Kenneth Wayne Thomas, that caused the death of the deceased was committed

deliberately and with a reasonable expectation that the death of the deceased or another

would result?” as “yes.” The jury answered Special Issue No. 3, “Do you find from the

xxiv

evidence beyond a reasonable doubt that there is a probability that the Defendant,

Kenneth Wayne Thomas, would commit criminal acts of violence that would constitute

a continuing threat to society?” as “yes.” The jury answered Special Issue No. 4. “Do

you find, taking into consideration all the evidence, including the circumstances of the

offense, the Defendant’s character and background and the personal moral culpability of

the Defendant, that there is a sufficient mitigating circumstance or circumstances that

warrants that a life sentence of imprisonment rather than a death sentence be imposed?”

as “no.” In accordance with the previous verdict of guilty and answers to the special

issues, the trial court entered a judgment and assessed Appellant’s punishment at death.

(Reporter’s Record Vol. 70 p. 84-85)

On August 21, 2014, Appellant timely filed a Motion for New Trial that

was subsequently denied by the court. (Clerk’s Record P. 38). Notice of appeal was

appeal to this Court is automatic. See Tex. Code Crim.Proc.Ann. art. 37.071,§

2(g)(Vernon Supp. 2001).

xxv

ISSUES PRESENTED

I. JURY SELECTION ISSUES

A. ‘BATSON’ VOIR DIRE ISSUES 1-8

APPELLANT’S ISSUE NO. 1

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 64, NEENA BISWAS IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 2

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 126, LEON R. TILLEY IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 3

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 225, DEBORAH A. MOORE IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

xxvi

APPELLANT’S ISSUE NO. 4

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 497, PRONSAK NOHE IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 5

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 755, CASSIE R. FIGURES IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 6

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 955, ARY A. MCGOWAN IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

APPELLANT’S ISSUE NO. 7

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 1055, ARTHERINE PRIESTON, IN VIOLATION OF

THE DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

xxvii

APPELLANT’S ISSUE NO. 8

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE JURY PANEL BASED ON THE STATE’S

MISUSE OF ITS PEREMPTORY CHALLENGE IN REGARD TO

JUROR NO. 1095, MARTHA E. BARBOSA IN VIOLATION OF THE

DOCTRINE ESTABLISHED IN BATSON V. KENTUCKY

B. ISSUES ON TRIAL COURT’S DENIAL OF APPELLANT’S

CHALLENGES FOR CAUSE

APPELLANT’S ISSUE NO. 9

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

MARIE SANDS

APPELLANT’S ISSUES NO. 10

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

DORCE L. MOORE

APPELLANT’S ISSUE NO. 11

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

DAVID L. DARDEN

APPELLANT’S ISSUES NO. 12

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

DELORES SAWYER

xxviii

APPELLANT’S ISSUES NO. 13

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

JONATHAN L. HENDERSON

APPELLANT’S ISSUES NO. 14

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

ISAAC TSCHEWIK

APPELLANT’S ISSUES NO. 15

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

MICHAEL D. DAWSON

APPELLANT’S ISSUES NO. 16

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

ANGELA K. THORPE-HARRIS

APPELLANT’S ISSUES NO. 17

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

CHRISTOPHER F. WEINZAPFEL

APPELLANT’S ISSUES NO. 18

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

PHILLIP D. RAPP

xxix

APPELLANT’S ISSUES NO. 19

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

NANCY RAMOS

APPELLANT’S ISSUES NO. 20

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

JAY F. KIRBY

APPELLANT’S ISSUES NO. 21

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

NATHAN H. SOSA

APPELLANT’S ISSUES NO. 22

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

JAMES E. MARTIN

APPELLANT’S ISSUES NO. 23

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST VENIREPERSON

JENNIFER L. WILDER

xxx

C. APPELLANT’S ISSUES ON JURORS EXCUSED

OVER OBJECTION OF APPELLANT

APPELLANT’S ISSUES NO. 24

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON SHERYL R. KINGERY OVER

THE OBJECTIONS OF THE DEFENSE

APPELLANT’S ISSUES NO. 25

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON KIMBERLY KAY MORRIS

OVER THE OBJECTIONS OF THE DEFENSE

APPELLANT’S ISSUES NO. 26

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON CONSUELO DAVILA OVER

THE OBJECTIONS OF THE DEFENSE

APPELLANT’S ISSUES NO. 27

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON GLORIA J. HAWKINS OVER

THE OBJECTIONS OF THE DEFENSE

APPELLANT’S ISSUES NO. 28

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON JENNA A. KINZIE OVER

THE OBJECTIONS OF THE DEFENSE

xxxi

APPELLANT’S ISSUES NO. 29

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON RAUL FLORES OVER THE

OBJECTIONS OF THE DEFENSE

APPELLANT’S ISSUES NO. 30

THE TRIAL COURT ERRED IN GRANTING STATE’S

CHALLENGE ON VENIREPERSON KELLYE C. HOGAN OVER

THE OBJECTIONS OF THE DEFENSE

C. APPELLANT’S ISSUES ON INTELLECTUAL DISABILITY

APPELLANT’S ISSUE NO. 31

THE APPLICATION OF THE JUDICIAL OPINION IN EX PARTE

BRISENO DEFINING INTELLECTUAL DISABILITY (MENTAL

RETARDATION) AS A PERSON HAVING AN I.Q. SCORE OF 70

OR BELOW IS UNCONSTITUTIONAL PURSUANT TO THE

OPINION RENDERED IN THE CASE OF HALL V. FLORIDA,134

S.CT. 1986(2014)

APPELLANT’S ISSUE NO. 32

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION TO QUASH THE PROSPECTIVE JURY PANEL AFTER

RECEIVING THE CASE OF HALL V. FLORIDA, Ibid. BECAUSE

THE STATE HAD VOIR DIRED THE JURY THAT TEXAS USED

AN I.Q. OF 70 OR BELOW TO ESTABLISH INTELLECTUAL

DISABILITY

xxxiii

APPELLANT’S ISSUE NO. 33

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

COUNSEL’S REQUEST TO REQUESTION THE JURY THAT HAD

BEEN ALREADY QUALIFIED AS TO THE ISSUE OF

INTELLECTUAL DISABILITY TO PROPERLY EDUCATE THEM

AND DETERMINE IF THEY WERE QUALIFIED JURORS AFTER

RECEIVING THE CASE OF HALL V. FLORIDA Ibid. HANDED

DOWN DURING THE VOIR DIRE PROCESS IN THE CASE AT

BAR

APPELLANT’S ISSUE NO. 34

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION THAT THE STATE SHOULD NOT BE ALLOWED

TO CONTINUE TO VOIR DIRE THE PROSPECTIVE JURORS

THAT INTELLECTUAL DISABILITY IS MEASURED BY AN I.Q.

SCORE OF 70 OR LESS PURSUANT TO THE CASE OF EX PARTE

BRISENO, Supra. CONTRARY TO THE CASE OF HALL V.

FLORIDA, Supra.

APPELLANT’S ISSUES NO. 35

THE JURY AS CONSTITUTED WAS BIASED OR PREJUDICE

WHICH DEPRIVED APPELLANT OF A FAIR TRIAL

APPELLANT’S ISSUE NO. 36

THE JURY AS CONSTITUTED HAS DENIED APPELLANT DUE

PROCESS OF LAW BECAUSE JURORS CHALLENGEABLE FOR

CAUSE WERE ALLOWED ON THE JURY WHICH DEPRIVED

APPELLANT OF A FAIR TRIAL

(FEDERAL CONSTITUTIONAL ISSUE)

xxxiv

II. TRIAL ISSUES

A. PRETRIAL ISSUES

APPELLANT’S ISSUE NO. 37

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION TO DISQUALIFY THE DALLAS COUNTY DISTRICT

ATTORNEY’S OFFICE IN THE PROSECUTION OF THIS CASE

B. COMPETENCY TRIAL ISSUES

APPELLANT’S ISSUE NO. 38

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION FOR MISTRIAL DUE TO THE PROSECUTOR’S

REMARK THAT THE DEFENDANT’S CASE INVOLVED

‘MURDER’

APPELLANT’S ISSUE NO. 39

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE PROSECUTOR’S QUESTION TO THE

WITNESS THAT APPELLANT’S FIRST TRIAL IN ‘87 WAS

REVERSED ON APPEAL AS NOT RELEVANT

APPELLANT’S ISSUE NO. 40

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE

JURY’S VERDICT THAT APPELLANT WAS COMPETENT TO

STAND TRIAL

xxxv

APPELLANT’S ISSUE NO. 41

THE EVIDENCE WAS FACTUALLY SUFFICIENT TO FIND

APPELLANT INCOMPETENT MAKING THE JURY’S VERDICT

SO AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF

THE EVIDENCE AS TO BE MANIFESTLY UNJUST

C. PUNISHMENT TRIAL ISSUES

APPELLANT’S ISSUE NO. 42

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION THAT DR. RANDY PRICE, STATE’S

PSYCHOLOGIST, BE ALLOWED TO TESTIFY AS AN EXPERT

ON APPELLANT HAVING TRAITS OF SOMEONE WITH ANTI-

SOCIAL PERSONALITY DISORDER WHEN HE COULD NOT

PURSUANT TO HIS OWN PROFESSIONAL STANDARDS MAKE

THAT DIAGNOSIS

APPELLANT’S ISSUE NO. 43

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE WITNESS PRICE’S TESTIMONY ABOUT

APPELLANT LACKING REMORSE

APPELLANT’S ISSUE NO. 44

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION THAT A KNIFE IS PRESENTED IN THE

PHOTOGRAPHS (STATE’S EXHIBIT NO. 205) AS SPECULATIVE

WHERE NO KNIFE WAS PLACED INTO EVIDENCE

xxxvi

APPELLANT’S ISSUE NO. 45

THE TRIAL COURT ERRED IN ADMITTING NUMEROUS

AUTOPSY PHOTOGRAPHS BY THE MEDICAL EXAMINER’S

OFFICE IN VIOLATION OF RULE 403, TEX. R. EVID. WHERE

THE PREJUDICIAL EFFECT OF THE EVIDENCE FAR

OUTWEIGHED ANY PROBATIVE VALUE

APPELLANT’S ISSUE NO. 46

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

OBJECTION TO THE PROFFERED VICTIM IMPACT EVIDENCE

TO BE PRESENTED BY STATE’S WITNESS, MR. JAMES BELT

APPELLANT’S ISSUE NO. 47

THE JURY’S ANSWER TO SPECIAL ISSUE NO. 1

(INTELLECTUAL DISABILITY ISSUE) IS AGAINST THE GREAT

WEIGHT AND PREPONDERANCE OF THE EVIDENCE AS TO

MAKE IT UNJUST

APPELLANT’S ISSUE NO. 48

THE EVIDENCE WAS SUFFICIENT TO SHOW THAT

APPELLANT WAS INTELLECTUALLY DISABLED

APPELLANT’S ISSUE NO. 49

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE

JURY’S ANSWER TO SPECIAL ISSUE NO. 3 ‘FUTURE DANGER’

IN THE PUNISHMENT STAGE OF THE TRIAL

xxxvii

APPELLANT’S ISSUE NO. 50

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

REQUESTED JURY INSTRUCTION THAT DEFINES

“SIGNIFICANTLY SUB-AVERAGE GENERAL INTELLECTUAL

FUNCTIONING”

APPELLANT’S ISSUE NO. 51

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

REQUEST THAT THE DEFENSE DID NOT HAVE TO PROVE

MENTAL RETARDATION I.E. INTELLECTUAL DISABILITY BY

UNANIMOUS JURY VERDICT OF TEN MEMBERS

CONCURRING AS OPPOSED TO TWELVE

APPELLANT’S ISSUE NO. 52

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

REQUESTED ‘ACCOMPLICE’ WITNESS CHARGE IN THIS

PUNISHMENT RETRIAL WHERE THE ORIGINAL

GUILT/INNOCENCE CHARGE CONTAINED SUCH A CHARGE

APPELLANT’S ISSUE NO. 53

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

REQUESTED ‘ANTI-PARTIES’ CHARGE IN THE JURY CHARGE

APPELLANT’S ISSUE NO. 54

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION FILED UNDER SEAL BEFORE TRIAL COURT

RECEIVED THE JURY’S VERDICT FOR A COMPETENCY

HEARING

xxxviii

D. SPECIAL REQUESTED ISSUE ON APPEAL

APPELLANT’S ISSUE NO. 55

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE

CONVICTION FOR CAPITAL MURDER

III. FEDERAL ISSUES

APPELLANT’S ISSUE NO. 56

THE STATUTE UNDER WHICH APPELLANT WAS SENTENCED

TO DEATH IS UNCONSTITUTIONAL IN VIOLATION OF THE

CRUEL AND UNUSUAL PUNISHMENT PROHIBITION OF THE

EIGHTH AMENDMENT BECAUSE IT ALLOWS THE JURY TOO

MUCH DISCRETION TO DETERMINE WHO SHOULD LIVE AND

WHO SHOULD DIE AND BECAUSE IT LACKS THE MINIMAL

STANDARDS AND GUIDANCE NECESSARY FOR THE JURY TO

AVOID THE ARBITRARY AND CAPRICIOUS IMPOSITION OF

THE DEATH PENALTY

APPELLANT’S ISSUE NO. 57

THE STATUTE UNDER WHICH APPELLANT WAS SENTENCED

TO DEATH IS UNCONSTITUTIONAL IN VIOLATION OF THE

DUE PROCESS REQUIREMENTS OF THE FOURTEENTH

AMENDMENT BECAUSE IT IMPLICITLY PUTS THE BURDEN

OF PROVING THE MITIGATION SPECIAL ISSUE ON

APPELLANT RATHER THAN REQUIRING A JURY FINDING

AGAINST APPELLANT ON THAT ISSUE UNDER THE BEYOND A

REASONABLE DOUBT STANDARD

xxxix

APPELLANT’S ISSUE NO. 58

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

MOTION TO HOLD ARTICLE 37.071 Sec. 2(E) AND (F)

CONCERNING BURDEN OF PROOF UNCONSTITUTIONAL AS A

VIOLATION OF ARTICLE ONE SEC. 10 AND SEC. 13 OF THE

TEXAS CONSTITUTION

APPELLANT’S ISSUE NO. 59

THE TEXAS DEATH PENALTY SCHEME VIOLATES DUE

PROCESS PROTECTIONS OF THE UNITED STATES

CONSTITUTION BECAUSE THE PUNISHMENT SPECIAL ISSUE

RELATED TO MITIGATION FAILS TO REQUIRE THE STATE

TO PROVE THE ABSENCE OF SUFFICIENT MITIGATING

CIRCUMSTANCES BEYOND A REASONABLE DOUBT,

CONTRARY TO APPRENDI AND ITS PROGENY

APPELLANT’S ISSUE NO. 60

THE TEXAS DEATH PENALTY SCHEME VIOLATED

APPELLANT’S RIGHTS AGAINST CRUEL AND UNUSUAL

PUNISHMENT AND DUE PROCESS OF LAW UNDER THE

EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION BY REQUIRING AT LEAST TEN “NO”

VOTES FOR THE JURY TO RETURN A NEGATIVE ANSWER TO

THE PUNISHMENT SPECIAL ISSUES

APPELLANT’S ISSUE NO. 61

THE TEXAS DEATH PENALTY SCHEME VIOLATED

APPELLANT’S RIGHTS AGAINST CRUEL AND UNUSUAL

PUNISHMENT, AN IMPARTIAL JURY AND TO DUE PROCESS

OF LAW UNDER THE SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION

BECAUSE OF VAGUE, UNDEFINED TERMS IN THE JURY

INSTRUCTIONS AT THE PUNISHMENT PHASE OF THE TRIAL

THAT EFFECTIVELY DETERMINE THE DIFFERENCE

BETWEEN A LIFE SENTENCE AND THE IMPOSITION OF THE

DEATH PENALTY.

APPELLANT’S ISSUE NO. 62

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

MOTION TO HOLD ART. 37.071 Sec. 2(e) and (f)

UNCONSTITUTIONAL BECAUSE SAID STATUTE FAILS TO

REQUIRE THE ISSUE OF MITIGATION BE CONSIDERED BY

THE JURY

APPELLANT’S ISSUE NO. 63

THE STATUTORY “PENRY” SPECIAL ISSUE IN TEX. CODE

CRIM. PRO. ARTS. 37.071 & 37.0711 IS UNCONSTITUTIONAL

BECAUSE IT FAILS TO PLACE THE BURDEN OF PROOF ON

THE STATE REGARDING AGGRAVATING EVIDENCE

APPELLANT’S ISSUE NO. 64

THE STATUTORY “PENRY” SPECIAL ISSUE IS

UNCONSTITUTIONAL UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION BECAUSE IT PERMITS THE VERY TYPE OF

OPEN-ENDED DISCRETION CONDEMNED BY THE UNITED

STATES SUPREME COURT IN FURMAN V. GEORGIA

xli

APPELLANT’S ISSUE NO. 65

TEXAS’ STATUTORY CAPITAL SENTENCING SCHEME IS

UNCONSTITUTIONAL UNDER THE EIGHTH AND

FOURTEENTH AMENDMENTS BECAUSE IT DOES NOT PERMIT

MEANINGFUL APPELLATE REVIEW

APPELLANT’S ISSUE NO. 66

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CONSTITUTIONAL CHALLENGES TO THE TEXAS CAPITAL

MURDER DEATH PENALTY LAW

APPELLANT’S ISSUE NO. 67

THE CUMULATIVE EFFECT OF THE ABOVE-ENUMERATED

CONSTITUTIONAL VIOLATIONS DENIED APPELLANT DUE

PROCESS OF LAW IN VIOLATION OF THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION

xlii

STATEMENT OF FACTS

This case involves the retrial on punishment of Kenneth Thomas who was

found guilty of the 1986 stabbing death of Mildred Finch.

TRIAL ON THE MERITS

A jury trial was held prior to commencing the punishment hearing retrial to

determine the Defendant’s competency to stand trial for capital murder. The

following is a summary of the testimony given in the competency trial and the retrial

of the issue of punishment before the Honorable Ernest B . White, III, Judge

presiding of the 194th Judicial District Court of Dallas, County.

COMPETENCY TESTIMONY

Defense on competency:

1)Testimony of Antoinette McGarrahan, Ph.D): Antoinette McGarrahan, a

psychologist specializing in forensic psychology and neuropsychology, testified has

evaluated Kenneth Thomas over the last few years. (RR: Vol. 57 p. 167) She gave him

extensive neuropsychological tests to look at his intellectual functioning as well as his

cognitive functioning to see if there were any brain impairments. (RR: Vol. 57 p. 168)

She also performed tests to look at emotional functioning as well as his ability to work

with his attorneys. (RR: Vol. 57 p. 168) She reviewed close to 60 documents that related

to prior mental health evaluations and transcripts of prior proceedings, including birth

and medical records that spanned 28 years. (RR: Vol. 57 p.170)

Dr. McGarrahan stated that it was her professional opinion that Mr. Thomas was

not presently competent to stand trial based on the neuropsychological testing that he

performed which showed the Defendant’s intellectual capacity to be that of “mild

mental retardation.” (RR: Vol. 57 p. 172) The Defendant’s full scale IQ is 71. (RR:

Vol. 57 p. 172) She stated that he was not able to rationally assist his attorneys.(RR:

Vol. 57 p. 172) She found that the Defendant had some brain impairment stemming

from his birth and a head injury sustained at age 15. (RR: Vol. 57 p. 173) She stated

that she did not see any evidence that Mr. Thomas was trying in any way to fake mental

illness or mental retardation. (RR: Vol. 57 p. 174) She said Mr. Thomas had a fixed

idea that the State could not secure a conviction without a weapon and could not move

beyond this idea. (RR: Vol. 57 p. 177) She said Mr. Thomas thought someone was

working against him and his perceptions were not based in reality. (RR: Vol. 57 p. 177)

These beliefs were documented as having been present 30 years ago. (RR: Vol. 57 p.

177) She found Mr. Thomas could not rationally consult with his attorneys because his

perceptions and his beliefs were not based in reality.(RR: Vol. 57 p. 179)

2)Testimony of Cynthia Short: Cynthia Short, an attorney who works with other

attorneys in certain types of cases, testified that she was appointed to assist the defense

attorneys in preparing the case against Kenneth Thomas by investigating his life. (RR:

Vol. 58 p. 54) She spent in excess of 60 hours with him since November, 2011 and read

all his evaluations since 1986. (RR: Vol. 58 p. 56) She stated that the Defendant closely

resembles those people that have been deemed incompetent. (RR: Vol. 58 p. 58) She

found in the Defendant the presence of a “fixed-false belief” about an important matter

related to his case and no amount of education, this fixed-false belief could not be

undone. (RR: Vol. 58 p. 59) The Defendant believed that he could not be convicted if

there wasn’t a weapon introduced into evidence. (RR: Vol. 58 p. 59) She learned that he

had this belief as far back as 1980's. (RR: Vol. 58 p. 59) He also had a fixed false belief

about the role of the Judge in the case and that the Judge could dismiss his case. (RR:

Vol. 58 p. 60-61) She did not believe Mr. Thomas could make rational choices about his

legal options or legal strategies. (RR: Vol. 58 p. 63) She said the Defendant thought he

didn’t have to participate in the State’s evaluation when the lack of a murder weapon

would lead to his acquittal. (RR: Vol. 58 p. 64)

State on competency:

3)Testimony of Kristi Compton, Ph. D: Kristi Compton, a clinical and forensic

psychologist, testified that she was appointed by the trial court to give an opinion about

the competency of Mr. Thomas. (RR: Vol. 58 p. 93) She interviewed and tested Mr.

Thomas for three hours, giving him a “Kaufman Brief Intelligence” test, a malingering

test and a competency test. (RR: Vol. 58 p. 97) She reviewed reports that went back to

1986. (RR: Vol. 58 p. 97) She stated that in her opinion, Mr. Thomas was competent to

stand trial. (RR: Vol. 58 p. 98) She stated that he functions in the borderline to

mental/mild mental retardation. (RR: Vol. 58 p. 114) She said he has beliefs that are

firmly fixed, one being that he can’t be convicted because there wasn’t a weapon. (RR:

Vol. 58 p. 115) She said he also believes that there are people that are working within

the court system to frame him and keep him incarcerated. (RR: Vol. 58 p. 115) On cross

examination the witness stated that she respected the opinion of Antoinette

McGarrahan. (RR: Vol. 58 p. 119) She thought he had a mental defect, an intellectual

disability. (RR: Vol. 58 p. 127)

The jury found the Defendant competent to stand trial. (RR: Vol. 59 p. 7)

RETRIAL PUNISHMENT TESTIMONY

1) Testimony of James Gallagher: James Gallagher, a polygraph examiner and former

homicide detective with the Dallas Police Department, testified that he was one of the

lead detectives in the Fred and Mildred Finch capital murder case. (RR: Vol. 60 p. 31)

He said when it was very obvious that there were multiple stab wounds on the bodies.

(RR: Vol. 60 p. 34) He thought someone had gone through a window to burglarize the

house. (RR: Vol. 60 p. 37) He entered the house through the kitchen and found a

bloody rag lying next to the refrigerator, a copy of a Dallas Times Herald newspaper

with bloodstains on it on the kitchen table and blood stains on the handles of the

refrigerator. (RR: Vol. 60 p. 38-39) Mrs. Finch’s body was laying in the hallway, up

against the wall. (RR: Vol. 60 p. 40) He said there was blood on the walls and

baseboards. (RR: Vol. 60 p. 40) He found the bedroom door opened and saw Mr.

Finch’s body on the floor of his bedroom. (RR: Vol. 60 p. 41)

On March 18th, 1986 he was informed by Crime Stoppers that a call had come in

from a woman claiming to have knowledge of the offense. (RR: Vol. 60 p. 84-85) He

spoke with a woman named “Kathy” who described some of the property taken,

including a weapon. (RR: Vol. 60 p. 85) He said Kathy gave him the name of the

Defendant and his brother, Lonnie Charles Thomas. (RR: Vol. 60 p. 86) He said Lonnie

Thomas gave them information which implicated Kenneth Thomas that was consistent

with the scene on Rose Lane. (RR: Vol. 60 p. 89-90) Other detectives collected

clothing from the house on Electra Street that was connected with the offense. (RR: Vol.

60 p. 90) After he received information that Lonnie had been involved in disposing of

stolen property out of the Finch home he and Lonnie Thomas went to the 4000 block of

Hancock where they found some of Fred Finch’s property in a makeshift dump on the

side of the street. (RR: Vol. 60 p. 91)

He said the phone call by Kathy Johnson to crime stoppers implicated Lonnie

Thomas who withheld information when he gave his statement. (RR: Vol. 60 p. 123) He

said Lonnie Thomas was not completely honest and gave them additional information

only when he was confronted with the evidence of dumping the stolen property. (RR:

Vol. 60 p. 123) He said Lonnie never implicated himself, only his brother. (RR: Vol. 60

p. 124) They never knew what vehicle was used to transport the stolen property. (RR:

Vol. 60 p. 124-125) He learned that Kenneth Thomas does not drive and was known to

take a bus everywhere. (RR: Vol. 60 p. 125)

2) Testimony of Joseph Schreck: The testimony of Joseph Schreck, deceased, from the

1987 trial, was read by State and Defense attorneys. (RR: Vol. 60 p. 139) Joseph

Schreck testified that on March 16th, 1986 he worked in the identification section of the

Dallas Police Department and went to 3222 Rose Lane where he photographed the scene

and gathered evidence. (RR: Vol. 60 p. 143) He photographed a fingerprint on a

wooden window sill and on the air conditioner window unit. (RR: Vol. 60 p. 159-160)

He photographed palm prints on the front window. (RR: Vol. 60 p. 163) He lifted a

fingerprint/palm print from the inside portion of the window. (RR: Vol. 60 p. 168) He

photographed a bloody palmprint and corresponding fingerprints by the bathroom door.

(RR: Vol. 60 p. 171)

On cross examination the witness testified they searched for the knife, but did not

find anything. (RR: Vol. 60 p. 197)

3) Testimony of Joseph Maberry: Joseph Maberry, a fingerprint examiner, testified that

the latent fingerprints recovered from the window sill at Rose Lane belong to Kenneth

Thomas. (RR: Vol. 60 p. 215-216) He said the latent prints from the air conditioning

unit and the screen also belong to Kenneth Thomas. (RR: Vol. 60 p. 216) He was of the

opinion that the bloody fingerprint and palm print depicted in a photograph taken at the

house also belonged to the Defendant. (RR: Vol. 60 p. 217) He said he lifted a

fingerprint from a hat box that was recovered at 4000 Hancock and found that it belongs

to Kenneth Thomas. (RR: Vol. 60 p. 221)

4) Testimony of Carolyn Vanwinkle: Carolyn Vanwinkle, a senior forensic DNA

analyst, testified that in 1987 she testified in this case about a rape kit she examined.

(RR: Vol. 61 p. 17) She also examined a black raincoat, pillow cases, bed sheets and

mattress pad in this case. (RR: Vol. 61 p. 19-22) She found human blood on the raincoat

that matched the blood types of Mildred and Fred Finch. (RR: Vol. 61 p. 23,26) She

found the semen on the anal swabs taken from Fred Finch. (RR: Vol. 61 p. 34) She found

blood on the back heels of the black and white shoes that were collected. (RR: Vol. 61

p. 35)

On cross examination the witness testified that the semen found on the pillowcase

was consistent with having come from Fred Finch. (RR: Vol. 61 p. 43) She said the

semen on the anal swab was consistent with having come from Fred Finch. (RR: Vol. 61

p. 43)

5) Testimony of Edward T. McDonough, M.D.: Edward T. McDonough, M.D., testified

that he performed an autopsy on Mildred Finch in March, 1986 and observed the autopsy

of Fred Finch along with Dr. Gilliland and other physicians. (RR: Vol. 61 p. 47) He said

the autopsies were performed at the same time. (RR: Vol. 61 p. 48) He said Mildred

Finch had extensive sharp-force trauma over almost all the surfaces of her body and

more than 90 wounds. (RR: Vol. 61 p. 54) He said Fred Finch also had sharp-force

injuries consisting of cuts and stabs. (RR: Vol. 51 p. 55) He thought the wounds were

caused by a single edge blade. (RR: Vol. 61 p. 58)

6) Testimony of James R. Smith: James R. Smith, a retired detective with the Dallas

Police Department, testified he was a physical evidence collector on this case in 1986.

(RR: Vol. 61 p. 96) On March 18th, 1986 he went to the 4000 block of Hancock with Joe

Maberry where he collected suitcases, clothing, mens suits, men’s hats, hat boxes and a

satchel containing a pistol. (RR: Vol. 61 p. 97)

On cross examination the witness testified that about one-third of the

property was recovered at the dumpsite. (RR: Vol. 61 p. 124) He said that the property

recovered at the dumpsite filled up a van, including the front seats. (RR: Vol. 61 p. 124)

7) Testimony of Audrey Basse: Audrey Basse, a forensic biologist, testified that she

tested several items of clothing, some bedding, pieces of cardboard, shoes, hats and a lot

of hair curlers for DNA. (RR: Vol. 61 p. 132)

8) Testimony of Angela Fitzwater: Angela Fitzwater, a DNA analyst at SWIFS, testified

that she was able to develop genetic profiles on only a very few items. (RR: Vol. 61 p.

153) All the samples she was able to develop a genetic profile matched to Mildred and

Fred Finch. (RR: Vol. 61 p. 153-170)

9) Testimony of Margaret Ann “Peggy” Crain: Ms. Crain testified that in 1987 she

testified about how the Rolex watches obtained from American Wholesale Jewelry were

gifts to for renewing certificates of deposits and matched the serial numbers on the

watches with her records. (RR: Vol. 61 p. 176-182)

10) Testimony of Pansy Lee Lewis: The previous 1987 testimony of Pansy Lee Lewis,

now deceased, was read by attorneys to the jury. Ms. Lewis testified that she went to

First City Bank for Ms. Ernestine Gasbar to renew her certificates of deposits and

received a man’s and ladies Rolex watch through their program. (RR: Vol. 61 p. 185)

The watches were given to Fred and Mildred Finch who were good friends and the

attorney for Ms. Gasbar. (RR: Vol. 61 p. 185)

11) Testimony of Bernard H. Blackmon: The previous 1987 testimony of Bernard H.

Blackmon, now deceased, was read by attorneys to the jury. Mr. Blackmon testified that

he made tailored suits for Fred Finch. (RR: Vol. 61 p. 193)

12) Testimony of Delores Easter: Dolores Easter testified that she had a long term

relationship with Lonnie Thomas, brother of the Defendant. (RR: Vol. 62 p. 11) They

had a daughter, Corvette, together who was now 26 years old. (RR: Vol. 62 p. 12) The

witness testified that on Sunday, March 16th, 1986 at 4:00 a.m. Kenneth Thomas entered

the house with a suitcase, pistol, boxes with hats and cloths and a Rolex watch which he

put into the living room. (RR: Vol. 62 p. 14) Kenneth told her that he got the property

from a rich white girl named Sheila. (RR: Vol. 62 p. 17)

The witness testified she called 911 and after making the call, she left the house

and went to a nearby hotel. (RR: Vol. 62 p. 18) She testified that Kenneth told her

“Yeah, I did it. And dead folks can’t talk.” before she and Lonnie left for the hotel.

(RR: Vol. 62 p. 21-22)

13) Testimony of Thomas Penagraph: Thomas Penagraph, a cousin of the Defendant,

testified that he and his girlfriend Brenda Jackson met with Kenneth Thomas on March

17th 1986 at his mother’s house on Electra where Kenneth showed him some suits, hats

and a watch he was wearing. (RR: Vol. 62 p. 44-45)

On cross examination the witness testified that Kenneth was very quiet and was

considered the black sheep of the family. (RR: Vol. 62 p. 57) He said Kenneth’s mother

treated him differently than his brother Lonnie, always favoring Lonnie. (RR: Vol. 62 p.

58) He said the amount of property taken was more than one person could have carried.

(RR: Vol. 62 p. 62) He said Kenneth didn’t drive and would walk or take a bus

everywhere he went. (RR: Vol. 62 p. 62)

14) Testimony of Lonnie Thomas: Lonnie Thomas, the younger brother of the

Defendant, testified that on Saturday night, March 15th, 1986 he watched television and

then went to bed with his girlfriend, Delores Easter. (RR: Vol. 62 p. 74) The next

morning he woke up and found Kenneth bringing in some clothing, bags and boxes.

(RR: Vol. 62 p. 74) He asked Kenneth where the property came from and was told a lady

had given it to him for helping her move something out of her garage. (RR: Vol. 62 p.

76) He said Kenneth told him that he had stabbed a dog that attacked him. (RR: Vol. 62

p. 78)

On March 16th, 1986 he heard about the murders on the radio. (RR: Vol. 62 p. 86)

He said he went back to the house on Electra and moved the property to his cousin,

Bobby Charles Roy’s, house. (RR: Vol. 62 p. 87) He said his brother Billy called him

and told him to get rid of the property because the police were looking for him. (RR:

Vol. 62 p. 87) He said Kathy Renee Johnson was at Bobby’s house and she helped him

take the property to Hancock street where he put the property in black trash bags and a

sheet and dumped it. (RR: Vol. 62 p.. 90)

He said he was given a court appointed attorney and testified for the State. (RR:

Vol. 62 p. 97) He said after his brother’s trial, his case was dismissed. (RR: Vol. 62 p.

97)

On cross examination the witness testified that he was going to keep the property

at Bobby Charles’ house until he found out what was happening. (RR: Vol. 62 p. 101)He

said he and Kathy took two cars to move the property. (RR: Vol. 62 p. 102) He stated

that he hadn’t see his brother in 27 years and had never visited him in prison. (RR: Vol.

62 p. 103)

The witness testified that Kenneth had stabbed Marvin Linwood with a screw

driver because Marvin would bully him and after Kenneth was jumped by him, he stood

up to him. (RR: Vol. 62 p. 114) He said Kenneth worked as a janitor at Fair Park and

was severely beaten in the head by a vendor. (RR: Vol. 62 p. 115)

15) Testimony of Billy Ray Thomas: The previous 1987 testimony of Billy Ray Thomas,

now deceased, was read by attorneys to the jury. (RR: Vol. 62 p. 139) Mr. Thomas

testified that on March 16th, 1986 he lived on Rutledge Street and his mother lived on

Electra Street. (RR: Vol. 62 p. 140-141) On Sunday, March 16th he went to this mother’s

house and saw some big boxes in the back room. (RR: Vol. 62 p. 144)

The witness testified that when he returned to the house on Electra, Delores Easter

was present and was acting very nervous. (RR: Vol. 62 p. 149) He said they found

Kenneth at the house after noticing a window had been broken. (RR: Vol. 62 p. 150)

The witness testified that he heard his mother ask Kenneth if he had killed the

people and heard Kenneth answer “yes.” (RR: Vol. 62 p. 164) He said Kenneth told him

that he was going to kill all of them if they didn’t give him his money or his clothes.

(RR: Vol. 62 p. 167-168)

6)Testimony of Lonnie Burrell: The previous 1987 testimony of Lonnie Burrell, now

deceased, was read by attorneys to the jury. (RR: Vol. 62 p. 220) He stated that he had

been married to Shirley Baldwin, mother of the Defendant. (RR: Vol. 62 p. 221) On

March 18th, 1986 at approximately 5:00 or 6:00 p.m. he learned that his son Lonnie, had

been arrested. (RR: Vol. 62 p. 224) He said Kenneth told him that Lonnie didn’t know

anything and that he wasn’t with him during the offense. (RR: Vol. 62 p. 227) He said

Shirley asked Kenneth if he had killed the those people and Kenneth told her “Yes, dead

people can’t talk.” (RR: Vol. 62 p. 228)

17) Testimony of Philip E. Jones: Former Detective Philip E. Jones testified that he was

lead detective in the case involving the murders of Fred and Mildred Finch. (RR: Vol.

63 p. 8) He said the house appeared to be ransacked which was consistent with a

burglary. (RR: Vol. 63 p. 12)

The witness testified that on March 18th, Detective Hudson received a tip that

pertained to Kenneth and Lonnie Thomas. (RR: Vol. 63 p. 20) He and Detective Barnes

went to the Electra Street house where they found a black suit, umbrella and some shoes

at the house. (RR: Vol. 63 p.22- 23) As they were driving Lonnie Thomas and Thomas

Penagraph home, they received information that Lonnie Thomas had been dumping

property at the railroad tracks on Hancock street. (RR: Vol. 63 p. 31) They drove the

men to Hancock Street where Lonnie Thomas began to cooperate with them, pointing

out items. (RR: Vol. 63 p. 32) He said when he arrested Mr. Thomas, he was wearing an

expensive watch which was later confirmed as having belonged to Fred Finch. (RR: Vol.

63 p. 36) He said fingerprints at the scene were matched to Kenneth Thomas. (RR: Vol.

63 p. 39)

18) Testimony of Marvin Lindwood: Marvin Lindwood testified that he grew up in the

Frazier Court projects and knew Kenneth Thomas. (RR: Vol. 63 p. 67) He said on

February 18th, 1979 he started fighting with Kenneth and Kenneth eventually ran out of

the door. (RR: Vol. 63 p. 70-71) He said he stayed at Vicki’s house and Kenneth

returned, telling him he wanted to apologize but when he turned to go back into the

house, Kenneth stabbed him in the head with a screwdriver. (RR: Vol. 63 p. 72)

19) Testimony of Joyce Brown: Joyce Brown testified that she grew up in Frazier Courts

project and knew the Defendant by the name of “Clean.” (RR: Vol. 63 p. 95) She said he

liked to dress sharp and clean. (RR: Vol. 63 p. 100) On February 18th, 1979 she was in

her home when she heard Kenneth talking loud and cursing next door. (RR: Vol. 63 p.

101) She said Kenneth knocked on their door and asked to speak to her grandmother

and she told him she was sleeping. (RR: Vol. 63 p. 103) She said he then broke a

window and she ran upstairs. (RR: Vol. 63 p. 103) After the police arrived, she heard

Kenneth cursing his mother. (RR: Vol. 63 p. 104)

20) Testimony of Billy Ray Thomas: The previous 1987 testimony of Billy Ray

Thomas, now deceased, was read by attorneys to the jury. (RR: Vol. 63 p. 109) Mr.

Thomas testified that in 1979 he was living with his mother, sister, Lonnie and Kenneth

and on the night of February 18th, 1979 he argued with Kenneth about some money he

had given him. (RR: Vol. 63 p. 112) He said Kenneth cut him on the forehead with what

he thought was a knife. (RR: Vol. 63 p. 113) He said Kenneth also cut his friend who

was at the house. (RR: Vol. 63 p. 113) He said Kenneth was arrested that night. (RR:

Vol. 47 p. 114)

21) Testimony of Michael Ferguson: Michael Ferguson testified that in 1983 he shared

a cell with Kenneth who read the Bible but once his guard was down, he came on to him

in a sexual manner. (RR: Vol. 63 p. 138) He said Kenneth demanded sexual favors and

extorted his commissary money. (RR: Vol. 63 p. 139)

22) Testimony of Steven Dewayne McCarroll: Mr. McCarroll testified that in 1983 he

shared a tank with Kenneth Thomas and saw Kenneth Thomas raping another inmate.

(RR: Vol. 63 p. 151- 152) He said the next day Kenneth Thomas hit him, breaking his

nose and giving him two black eyes, because he would not give him oral sex. (RR: Vol.

63 p. 153)

23) Testimony of Larry Dean Turner: Mr. Turner testified that on August 25th, 1983 he

was in the Dallas County Jail and Mr. Thomas wanted him to be his “bitch” and do

sexual things with him. (RR: Vol. 63 p. 166-168)

24) Testimony of Linda White: The 1987 testimony of Linda White was read to the jury.

(RR: Vol. 63 p. 186) Linda White, a parole officer, testified that when Mr. Thomas was

released on parole in 1984, he failed to report to her on a monthly basis, failed to secure

employment and a hearing was held on a violation, attempting to stab his mother. (RR:

Vol. 63 p. 188-189) She said his mother denied she was ever assaulted with a

screwdriver by her son. (RR: Vol. 63 p. 196)

The Defense on Punishment

25) Testimony of Anthony Penagraph: Anthony Penagraph, cousin of Kenneth Thomas,

testified that he grew up with Kenneth and went to school with him. (RR: Vol. 65 p. 43)

He said that while growing up in the projects, Kenneth would get picked on and he

would rescue him. (RR: Vol. 65 p. 47) He said Kenneth wasn’t the fighting type and was

a little slow. (RR: Vol. 65 p. 49) He said Kenneth’s family treated Kenneth very poorly.

(RR: Vol. 65 p. 50) The witness testified that Kenneth was hit on the head with an object

while working at Fair Park and was never the same person after that injury. (RR: Vol. 65

p. 52) Mr. Penagraph testified that Kenneth didn’t fight and he had to push Kenneth to

defend himself because he didn’t like to fight. (RR: Vol. 65 p. 55-56)

He said that after Kenneth was released from prison, Kenneth lived with him and

his family while he worked at the Adel Hunt Furniture Company. (RR: Vol. 65 p. 56) He

said Kenneth was making decent money and his mother wanted him to share with the

family. (RR: Vol. 65 p. 57)

He said that when he heard about the Finch murders, he couldn’t believe Kenneth

would be involved. (RR: Vol. 65 p. 64) He said when he heard the family talking about

Kenneth committing the murders, he knew they were lying. (RR: Vol. 65 p. 64)

26) Testimony of Jim Hom, Ph.D: Dr. Hom, a neuropsychologist, testified that he didn’t

see how a person could fake a neurological pattern. (RR: Vol. 65 p. 94) He said that if

there is a type of damage such as stroke or traumatic brain injury, all damage has a

distinctive pattern. (RR: Vol. 65 p. 94) He said his conclusion in 1987 was that the test

results were consistent with someone who had a significant head injury. (RR: Vol. 65 p.

97) He said he has reviewed one set of tests of Mr. Thomas and found that they were

consistent with his results in 1987. (RR: Vol. 65 p. 98-99;102)

The witness testified that the tests show that Mr. Thomas would have an

intelligence range in the low 70's, his academic abilities in the third and fourth grade.

(RR: Vol. 65 p. 103) He said Mr. Thomas would have significant problems in reasoning,

thinking and putting things together. (RR: Vol. 65 p. 103) Mr. Thomas had problems

with his ability to concentrate and stay on task. (RR: Vol. 65 p. 104) Mr. Thomas has

problems in understanding simple language and demonstrated problems with verbal

memory. (RR: Vol. 65 p. 104) He said Mr. Thomas was in the moderate to severe range

of forgetfulness and also exhibited some mild motor and sensory difficulties. (RR: Vol.

65 p. 105-107) He said his results were typical of someone who had a pretty significant

head injury at one point in time. (RR: Vol. 65 p. 107) He said his ability to reason things

out was in the severe range which was clearly indicative of a person with significant

brain impairment. (RR: Vol. 65 p. 109)

27)Testimony of Antoinette McGarrahan, Ph.D.: Dr. McGarrahan testified that she

specializes in forensic psychology and neuropsychology and was asked in 2012 to

perform a neuropsychological evaluation of Mr. Thomas. (RR: Vol. 66 p. 16) She stated

that she has approximately 50 sources of information documents and records that she has

reviewed. (RR: Vol. 66 p. 16) She also reviewed Dr. Hom’s evaluation 27 years ago.

(RR: Vol. 66 p. 17)

She learned that Mr. Thomas had grown up very poor in the projects and had

difficulty in school but wasn’t placed in special education. (RR: Vol. 66 p. 18) She

learned that there were birth complications and Mr. Thomas suffered a severe head injury

at age 15. (RR: Vol. 66 p. 19) She said that the school continued to promote Mr.

Thomas even though he failed every course in the eighth grade. (RR: Vol. 66 p. 19) She

said when Mr. Thomas was hit in the head while working with his mother at Fair Park,

he was hospitalized for six days and continued to complain of headaches and dizziness.

(RR: Vol. 66 p. 20) She said his mother drank alcohol and smoked cigarettes while

pregnant with Kenneth and he was born with the umbilical cord wrapped around his

neck. (RR: Vol. 66 p. 21)

She said his full-scale IQ was 71 which is in the “mildly mentally retarded” range.

(RR: Vol. 66 p. 23) She said that his primary difficulties were in the frontal part of the

brain and involved abstract reasoning, problem solving, thinking skills, planning and

organization. (RR: Vol. 66 p. 23) She stated that Mr. Thomas qualified for intellectual

disability disorder or what used to be called “mental retardation.” (RR: Vol. 66 p. 24)

She said he didn’t learn to drive and had problems making change at stores where others

took advantage of him. (RR: Vol. 66 p. 25) She said Mr. Thomas had significant

problems in his social functioning. (RR: Vol. 66 p. 25) Mr. Thomas didn’t have any

friends and was known as a “loner.” (RR: Vol. 66 p. 25)

She said that the IQ component has moved away from the score to more about how

the person functions in the community. (RR: Vol. 66 p. 31) She said Mr. Thomas would

have been harder to parent because he wasn’t like the other children and may have acted

out behaviorally. (RR: Vol. 66 p. 31-32) She said that the reasoning, logical thinking,

planning and problem solving that were impaired when Mr. Thomas was tested by Dr.

Hom were still the primary areas impaired on her testing 27 years later. (RR: Vol. 66 p.

33) She said it would have been very difficult for Mr. Thomas to fake the same results 27

years apart. (RR: Vol. 66 p. 34)

28) Testimony of Carolyn Henrietta Roy: Carolyn Henrietta Roy testified on behalf of

that Kenneth Thomas who was her nephew.

29) Testimony of Bobby Charles Roy: Bobby Charles Roy, cousin of the Defendant,

testified that the neighborhood Kenneth lived in was very bad with a lot of violent crime.

(RR: Vol. 66 p. 72) He said you had to be tough to survive in the neighborhood. (RR:

Vol. 66 p. 72) He said Kenneth’s older brother, Billy, took care of the children in the

family while their mothers worked.(RR: Vol. 66 p. 74) He said bullying was a big

problem in the neighborhood and if you were different you would be “jumped on.” (RR:

Vol. 66 p. 76)

The witness testified that he never saw Kenneth ask his mother for something and

get it as did his brothers and sister. (RR: Vol. 66 p. 80) He testified that Kenneth never

started fights. (RR: Vol. 66 p. 84) He stated that after Kenneth’s head injury, Kenneth

was more withdrawn. (RR: Vol. 66 p. 85) When he learned of the Finch murders, he was

very surprised to find that Kenneth was charged with the offense. (RR: Vol. 66 p. 85)

He testified that Aunt Shirley brought property to his house and he helped her

bring it from her car into his house. (RR: Vol. 66 p. 86) He thought at the time that the

property belonged to Lonnie because Lonnie was moving into an apartment. (RR: Vol.

66 p. 86) He said when he saw the black trench coat with the monogram “FF”, he told his

cousin Kathy to get it out of his house. (RR: Vol. 66 p. 88) He wrote in his statement that

Lonnie and Kathy came over and got the property. (RR: Vol. 66 p. 88)

30) Testimony of Rodney Turner: Rodney Turner testified on behalf of Kenneth

Thomas his half brother.

31) Testimony of Cynthia Ann Rice: Cynthia Ann Rice, cousin of the Defendant,

testified that they grew up in the same horrible neighborhood. (RR: Vol. 66 p. 127) She

had a good relationship with Kenneth and knew that he did not start fights with people.

(RR: Vol. 66 p. 128) She said that Kenneth’s mother didn’t act like she cared about him.

(RR: Vol. 66 p. 128) She said Kenneth’s brother, Billy, would get drunk and try to fight

with Kenneth. (RR: Vol. 66 p. 130) She said the entire family knew Kenneth had a brain

injury and after the injury she noticed Kenneth was slower. (RR: Vol. 66 p. 131-132)

The witness testified that she couldn’t believe Kenneth had committed the murders

by because he was not a violent type. (RR: Vol. 66 p. 135) She said he never bothered

anyone and couldn’t have committed the offense on his own. (RR: Vol. 66 p. 135)

32) Testimony of Jaye W. Crowder, M.D.: Dr. Crowder, a psychiatrist, testified that he

has been involved with the Kenneth Thomas’ case since 1987. (RR: Vol. 66 p. 141) In

1987 he examined the Defendant, spoke to his mother and reviewed his medical records.

(RR: Vol. 66 p. 142) He said Dr. Hom’s results were consistent with his hypothesis that

there was damage to the central nervous system. (RR: Vol. 66 p. 144) He said the tests

indicated that there was an altered physiology of Kenneth Thomas’ brain as a result of

the injury. (RR: Vol. 66 p. 144-145) He said this injury affected the Defendant’s ability

to think at a higher level or cause and effect. (RR: Vol. 66 p. 145) He said it would be

difficult for Kenneth to assess the likely consequences of his actions. (RR: Vol. 66 p.

145) People with this brain damage typically have some impulsiveness and irritability

and tend to overreact in an aggressive way. (RR: Vol. 66 p. 145) The witness stated

that the probability of Mr. Thomas being a future danger in prison was low. (RR: Vol.

66 p. 149)

33) Testimony of Marilyn Calhoun: Marilyn Calhoun testified that on February 18th,

1979 she was present when Kenneth Thomas and Marvin Lindwood got into an

argument. (RR: Vol. 66 p. 174) When the men began to argue, she told them that they

had to leave so they went outside. (RR: Vol. 66 p. 175)

34) Testimony of Curfey Henderson: Curfey Henderson, a detention supervisor with the

Dallas County Sheriff’s Department, identified the Defendant and stated that he was

automatically classified as administrative custody because of the charges against him,

not because of any misbehavior. (RR: Vol. 67 p. 21-22) He said that he started

supervising Kenneth in October, 2010 and has not had a single problem with him. (RR:

Vol. 67 p. 23) He described Mr. Thomas as “institutionalized.” (RR: Vol. 67 p. 24)

35) Testimony of Van Similine: Mr. Similine testified he works at the Dallas County

Jail, supervising over 200 inmates. (RR: Vol. 67 p. 39) He has supervised Kenneth

Thomas for almost four years. (RR: Vol. 67 p. 40) He said younger inmates make more

trouble than older inmates who tend to just want to do their time. (RR: Vol. 67 p. 41)

He said Kenneth Thomas stays to himself and has never been disruptive. (RR: Vol. 67 p.

41)

36) Testimony of George Abraham: George Abraham testified he works at the Dallas

County Jail as part of the Special Response Team, caring for all the high-profile inmates.

(RR: Vol. 67 p. 46) He said it has been his job for four years to transport Kenneth

Thomas to court or to visitations. (RR: Vol. 67 p. 48) He said he has never had a

problem with Kenneth who has always been cooperative. (RR: Vol. 67 p. 50) He said

Kenneth is quite and does what he’s asked to do when he is taken to court. (RR: Vol. 67

p. 57)

37) Testimony of James Evans Aiken: James Evans Aiken of James E. Aiken and

Associates, Inc. Testified that he conducts evaluations of defendants for classification.

(RR: Vol. 67 p. 67-68) He stated that he has classified thousand of inmates. (RR: Vol.

67 p. 73) He was asked to review the prison history of Kenneth Thomas and received

information of Mr. Thomas’ psychological status as well as an overview of the criminal

offenses. (RR: Vol. 67 p. 74) The witness described the classification system. (RR: Vol.

67 p. 81-82)

The witness testified that his review of Mr. Thomas’ records show that he

followed a “predictable scale.” (RR: Vol. 67 p. 83) He said Mr. Thomas went from

disruptive behavior down to compliant behavior. (RR: Vol. 67 p. 83) He said that he has

seen this pattern thousands of times in his 42 years in the business. (RR: Vol. 67 p. 83)

He said he saw Mr. Thomas’ dysfunctional behavior when he was in the Dallas County

Jail from 1979 to 1983. (RR: Vol. 67 p. 83) He said county jails are different because

there is a “revolving population” as opposed to a high-security prison where inmates are

serving long sentences. (RR: Vol. 67 p. 84)

He said he looked at 15 write ups of the Defendant during his 27 years of

incarceration in the Department of Corrections. (RR: Vol. 67 p. 85) The witness stated

that 15 write ups in 27 years put Mr. Thomas in the minuscule range of being a

disruptive predator inmate. (RR: Vol. 67 p. 89) He reviewed the write ups and stated

that there was no evidence of systemic or random violence. (RR: Vol. 67 p. 93)

The witness stated that it was his opinion that Mr. Thomas could be adequately

managed for an extended period of tie without causing unusual risk to staff, inmates or

the general public. (RR: Vol. 67 p. 97) He said at the present time Mr. Thomas was over

the hill and in prison terms “he has no juice.” (RR: Vol. 67 p. 97) Mr. Thomas has no

gang affiliations and has to be taken care of by the staff to ensure that he’s not a victim

of random or systemic violence. (RR: Vol. 67 p. 98)

38) Testimony of Stephen Phillips: Steven Phillips testified that he was in the Dallas

County Jail from 1982 to 1984, roughly the same time Kenneth Thomas as incarcerated

in the jail. (RR: Vol. 68 p. 8) He said his case was eventually overturned and he was

exonerated. (RR: Vol. 68 p. 9) He said the jail was very different in those years. (RR:

Vol. 68 p. 10) He described a tank as housing 25 to 35 inmates who were free to walk

around and interact. (RR: Vol. 68 p. 10) There were a lot of fights every day and there

was not very much supervision by the guards who were out of sight down the hall. (RR:

Vol. 68 p. 11)

The witness testified that his time in the Dallas County Jail was chaotic and

horrible. (RR: Vol. 68 p. 13) He said today that guards watch the inmates more closely

and have monitors set up to see what is happening in the tanks. (RR: Vol. 68 p. 13-14)

He stated that a lot of the problems in the Dallas County Jail back then were due to a

lack of supervision compared to TDC. (RR: Vol. 68)

39) Testimony of Raymond Moore: Raymond Moore, a Sergeant for the Dallas County

Jail and as part of his job he supervised Kenneth Thomas who was in administrative

custody. (RR: Vol. 68 p. 25) He said that most of the inmates in this type of housing

cause more problems than Mr. Thomas. (RR: Vol. 68 p. 26) He stated that he didn’t

have any problems with Mr. Thomas entire time he had been under his supervision. (RR:

Vol. 68 p. 26) He said Mr. Thomas was never written up and never lost any privileges.

(RR: Vol. 68 p. 28) He described Mr. Thomas as a model prisoner who was respectful,

well-mannered, polite and quite. (RR: Vol. 68 p. 29-30)

40) Testimony of David Weeks: David Weeks testified that he was a licensed detention

officer and was part of the Special Response Team at the Dallas County Jail. (RR: Vol.

68 p. 39) He said Mr. Thomas requested he be moved to a quieter area because of

disruptions by other inmates. (RR: Vol. 68 p. 46)

The witness stated that as long as he has worked at the jail, he had never

experienced someone as quiet as Mr. Thomas. (RR: Vol. 68 p. 47) He testified that Mr.

Thomas kept his cell immaculate, never cursed and was always respectful. (RR: Vol. 68

p. 47) It appeared to him that Mr. Thomas had been trained in the jail routines. (RR:

Vol. 68 p. 49) He said Mr. Thomas had no write ups for infractions. (RR: Vol. 68 p. 50)

He thought if Mr. Thomas was in the general population, he would stay to himself and

others wouldn’t bother him because a lot of the younger inmates respected him. (RR:

Vol. 68 p. 56)

41) Testimony of Anthony Graves: Anthony Graves testified that he was better known

as “death row exoneree 138" and was now an activist speaking at Continuing Legal

Education seminars, trying to educate people about the criminal justice system. (RR:

Vol. 68 p. 67-68) He has also testified in front of Congress and has been on panel

discussions. (RR: Vol. 68 p. 68) He spent 18 and one half years incarcerated on death

row before he was exonerated in 2010 and knew Kenneth Wayne Thomas while he was

incarcerated at the Polunsky Unit. (RR: Vol. 68 p. 68-70) The witness described the

prison, the routine and treatment by the guards.(RR: Vol. 68 p. 72-83)

He said Mr. Thomas was very quiet, laid back and didn’t bother anyone else. (RR:

Vol. 68 p. 90) He said in the twelve years he knew Mr. Thomas, he never did anything to

cause trouble. (RR: Vol. 68 p. 91)

The State on Rebuttal

42) Testimony of Melodye Nelson: Melodye Nelson, a senior warden with the Texas

Department of Criminal Justice, Institutional Division, testified that there are

approximately 150,000 people incarcerated in Texas. (RR: Vol. 68 p. 145) She said

there was a high turnover for guards who need to have a high school diploma or a GED.

(RR: Vol. 68 p. 148) The witness described the classification system for the jury and the

freedom given to inmates in the different levels. (RR: Vol. 68 p. 151-164)

43) Testimony of Richard Hughes, Ph.D.: Dr. Hughes, a licensed specialist in school

psychology, testified he had worked for the Dallas Independent School District from

1974 through 1981. (RR: Vol. 68 p. 189) He said Kenneth Thomas was given the Iowa

Test of Education Development in May, 1973 and scored on the various sections of the

exam a 91,78,97-98,89-90, 93 and 88-89. (RR: Vol. 68 p. 197-198) Mr. Thomas was

also given the California Test of Mental Maturity in which he scored an 82 in total IQ,

78 in language IQ and 92 in non-language IQ. (RR: Vol. 68 p. 198) This test was

administered in grade two. (RR: Vol. 68 p. 200)

The witness testified that grades were not a good reflection of intellectual

capacity. (RR: Vol. 68 p. 201) He said Mr. Thomas received D’s and F’s until he was

transferred to Metro North, an alternative school in 1977. (RR: Vol. 68 p. 204-205) He

said there were no records that indicate Mr. Thomas was part of a special education

program. (RR: Vol. 68 p. 207) He stated that the school records were not consistent with

a student that is mentally retarded. (RR: Vol. 68 p. 208)

44) Testimony of James C. Belt, Jr.: James Belt testified that he practiced law with his

father-in-law, Fred Finch. (RR: Vol. 68 p. 220-221) He described Fred and Mildred

Finch to the jury. (RR: Vol. 221-232)

45) Testimony of Randy Price, Ph.D.: Dr. Price, a forensic psychologist and

neuropsychologist, testified that he reviewed the reports, court transcripts and test results

and conducted interviews concerning the Defendant in this case, going back to 1979.

(RR: Vol. 69 p. 18-21) At the request of the trial court, he was supposed to interview

Kenneth Thomas on July 13th, but Mr. Thomas refused to be evaluated. (RR: Vol. 69

p.22-23) He stated he has reviewed Mr. Thomas’ hospital records going back to his birth

and his school records. (RR: Vol. 69 p. 23)

The witness testified that borderline intellectual functioning does not mean mental

retardation. (RR: Vol. 69 p. 33) He opined that Mr. Thomas was not incapable of

successfully going through school and graduating had he chosen to do so. (RR: Vol. 69

p. 40) He stated that being a loner was not necessarily adaptive behavior deficit. (RR:

Vol. 69 p. 42) He stated he saw a pattern of lying or speaking in his own interest in order

to avoid criminal responsibility. (RR: Vol. 69 p. 46) It was his opinion that Mr. Thomas

has traits and features consistent with an anti-social personality. (RR: Vol. 69 p. 68)

On cross examination the witness stated that he was employed by the State and

interviewed people who might have a bias against Mr. Thomas. (RR: Vol. 69 p. 77) He

stated that in his opinion, Mr. Thomas met the first prong of mental retardation. (RR:

Vol. 69 p. 78-79) He said that Dr. Hom had no reason to lie about his diagnosis of a

brain injury. (RR: Vol. 69 p. 79) He agreed that someone who was mentally retarded

could break into a house and kill someone. (RR: Vol. 69 p. 83) He stated that in a highly-

structured environment such as a prison many adaptive behavior can improve. (RR: Vol.

69 p. 85)

Defense on Rebuttal

46) Testimony of Antoinette McGarrahan, Ph.D.: Dr. McGarrahan was recalled and

testified that she was of the opinion that Mr. Thomas has significant deficits in adaptive

behavior. (RR: Vol. 69 p. 103) She said he can read some books and his ability to read as

improved over 27 years. (RR: Vol. 69 p. 103) She said he could not sustain a job for

very long and made very little money over the years. (RR: Vol. 69 p. 103-104) She said

her subsequent neuropsychological testing of Mr. Thomas confirmed Dr. Hom’s 1987

diagnosis. (RR: Vol. 69 p. 107) She said she and Dr. Price disagree on the Defendant’s

adaptive behavior deficits. (RR: Vol. 69 p. 109) She found that Mr. Thomas has had

significant problems with academic skills, abstract thinking and executive functioning,

social skills, poor social judgement and regulating his emotions and behavior. (RR: Vol.

69 p. 110-111) She stated that Mr. Thomas fully fits the criteria of “intellectual disability

disorder.” (RR: Vol. 69 p. 113)

Verdict

The jury answered Special Issue No. 1 “Do you find by a preponderance of the

evidence that the Defendant, Kenneth Wayne Thomas, is a person with mental

retardation?” as “no.” The jury answered Special Issue No.2 “Do you find from the

evidence beyond a reasonable doubt that the conduct of the Defendant, Kenneth Wayne

Thomas, that caused the death of the deceased was committed deliberately and with a

reasonable expectation that the death of the deceased or another would result?” as “yes.”

The jury answered Special Issue No. 3, “Do you find from the evidence beyond a

reasonable doubt that there is a probability that the Defendant, Kenneth Wayne Thomas,

would commit criminal acts of violence that would constitute a continuing threat to

society?” as “yes.” The jury answered Special Issue No. 4. “Do you find, taking into

consideration all the evidence, including the circumstances of the offense, the

Defendant’s character and background and the personal moral culpability of the

Defendant, that there is a sufficient mitigating circumstance or circumstances that

warrants that a life sentence of imprisonment rather than a death sentence be imposed?”

as “no.” The jury’s answers to these special issues resulted in a sentence of death. (RR:

Vol. 70 p. 82-85)

SUMMARY OF ISSUES

Appellant raises issues in this brief that are categorized into the following groups:

I. Voir Dire Issues Nos. 1-36 : Eight issues (Nos. 1-8) on voir dire involving Appellant’s

Batson challenge; fifteen issues (Nos. 9-23) on voir dire involving error in the trial court

denying challenges for cause against prospective jurors; seven issues (Nos. 24-30) on

voir dire involving error in the trial court excusing jurors over the objection of

Appellant; Six issues (Nos. 31-36) on intellectual disability and why the jury as

constituted denied Appellant due process. II. Trial Issues: One pretrial issue (No. 37) on

the trial court’s error in denying Appellant’s motion to disqualify the Dallas County

District Attorney’s Office in prosecution of the case. Four issues (Nos. 38-42) on the

competency trial in which (1) trial court erred when it denied Appellant’s motion for

mistrial due to the prosecutor’s remark about Defendant’s case involving “murder”; (2)

the trial court erred in overruling Appellant’s objection to the prosecutor’s question to

the witness that Appellant’s first trial in 1987 was reversed on appeal as not relevant; (3)

the evidence is legally insufficient to support the jury’s verdict that Appellant was

competent to stand trial; (4) the evidence was factually sufficient to find Appellant

incompetent making the jury’s verdict so against the great weight and preponderance of

the evidence as to be manifestly unjust. III. Punishment trial issues: Thirteen issues (Nos.

42-54) on the punishment trial in which (1) the trial court erred in overruling Appellant’s

objection to the testimony of Dr. Randy Price concerning Appellant having an anti-social

personality when he could not make that diagnosis; (2) the trial court erred in overruling

Appellant’s objection to the witness Price’s testimony about Appellant lacking remorse

which was an impermissible comment on Appellant not testifying; (3) the trial court

erred in overruling Appellant’s objection that a knife presented in the photographs was

speculative as no knife was placed into evidence; (4) the trial court erred in admitting

numerous autopsy photographs; (5) the trial court erred in overruling Appellant’s

objection to victim impact evidence presented by James Belt; (6) the jury’s answer to

Special Issue No. 1 (intellectual disability) is against the great weight and preponderance

of the evidence as to make it unjust; (7) the evidence was sufficient to show that

Appellant was intellectually disabled; (8) the evidence is legally insufficient to support

the jury’s answer to Special Issue No. 3, future dangerousness; (9) the trial court erred in

denying Appellant’s requested jury instruction that defines “significantly sub-average

general intellectual functioning”; (10) the trial court erred in denying Appellant’s request

that the defense did not have to prove mental retardation by unanimous jury verdict of

ten members concurring as opposed to twelve; (11) the trial court erred in denying

Appellant’s requested ‘accomplice’ witness charge in this punishment retrial where the

original guilt-innocence charge contained such a charge; (12) the trial court erred in

denying Appellant’s requested ‘anti-parties’ charge in the jury charge and; (13) the trial

court erred in denying Appellant’s motion filed under seal after verdict. Appellant’s

counsel was requested to include an issue (No. 55) on appeal arguing that the evidence is

legally insufficient to support the conviction for capital murder. IV. Issues (Nos. 56-67)

involving constitutional challenges that have been previously raised and denied by this

Court in order to preserve these issues for possible future review in federal court.

VOIR DIRE ISSUES

‘BATSON’ ISSUES NOS. 1-8

APPELLANT’S ISSUE NO. 1

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 64, NEENA

BISWAS IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

(Appellant’s Issues Nos. 1-8 are grouped as each involves the same or similar issue

of law. In each issue Nos. 1-8 Appellant argues that Appellant established a ‘prima

facie’ case for a ‘Batson’ objection. The Defendant is an African-American. An

objection by Appellant was made concerning the racially discriminatory manner in

which the State exercised its peremptory challenges.)

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 64, Neena Biswas, a minority (RR: Vol. 59 p. 66) .

The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 )

The State argued that Dr. Biswas, a physician, was struck because she was

uncomfortable dealing with the death penalty and or aggravated assaults because she was

in the business of healing. (RR: Vol. 59 p. 74) The State also thought she would require

the State to once again prove the guilt of the Defendant and had a problem with this

because she wasn’t a part of the original guilt/innocence process. (RR: Vol. 59 p. 74)

The juror said she could follow the law RR: Vol. 14 p. 98,106

Dr. Biswas testified that she would not hold the State to the impossible standard of

beyond all doubt. (RR: Vol. 14 p. 102) She stated she would not hold it against the

Defendant if he did not testify. (RR: Vol. 14 p. 106) She said she understood that she

could not give a police officer more credibility than any other witness. (RR: Vol. 14 p.

108)

APPELLANT’S ISSUE NO. 2

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 126, LEON R.

TILLEY IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 126, Leon R. Tilley, a minority (RR: Vol. 59 p. 66) .

The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The State

challenged the juror, the challenge was denied and the State exercised a strike. (RR:

Vol.14 p. 240) The State argued that they struck Mr. Tilley because he circled No. 4 in

the questionnaire in regards to his belief in the death penalty. (RR: Vol. 59 p. 73)

Mr. Tilley testified that he thought the death penalty was necessary in some cases,

but not all cases. (RR: Vol. 14 p. 192) His questionnaire shows that he was in favor of

the death penalty, he had checked “yes” and wrote “ A person who takes another life

should be ready to give his or her life. I stand on the ground as to what the bible says

regarding this issue.” (RR: Vol. 14 p. 192-196) Appellant submits that Mr. Tilley was a

juror who was guided by the Bible and would have had no problem returning a verdict of

death if the State presented the evidence necessary and if the Defense failed to show

mitigating circumstances.

APPELLANT’S ISSUE NO. 3

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 225, DEBORAH A.

MOORE IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 225, Deborah A. Moore, a minority (RR: Vol. 59 p.

66) . The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The

State argued that they struck Ms. Moore because she circled No. 4 in the questionnaire in

regards to their belief in the death penalty. (RR: Vol. 59 p. 73)

Ms. Moore stated that she did believe in the death penalty but that it would be a

hard decision to make. (RR: Vol. 17 p. 28-29) She further stated that she would answer

the Special Issues truthfully and it would “weigh heavy on my heart.” (RR: Vol. 17 p.

30)

She wrote in the questionnaire that there were cases that do deserve the death

penalty. (RR: Vol. 17 p. 67) She agreed that there should be a law to protect society.

(RR: Vol. 17 p. 67)

APPELLANT’S ISSUE NO. 4

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 497, PRONSAK

NOHE IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 497, Pronsak Nohe, a minority (RR: Vol. 59 p. 66) .

The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The State

argued that Pronsak Nohe because he circled No. 4 on the questionnaire with regards to

their belief in the death penalty.

Mr. Nohe testified that he would rather not make the decision to sentence someone

to death. (RR: Vol. 28 p. 162) He stated that he was “wrestling with” what he believes in

and his civic duty. (RR: Vol. 28 p. 164) However, he testified that “But if I have to do it,

then I would do the best of my ability in dealing with what the law requires me to do.”

(RR: Vol. 28 p. 165) At the end of the State’s voir dire, Mr. Nohe said he could promise

that he could take the oath to render a verdict if it results in the execution of a fellow

human being. (RR: Vol. 28 p. 180)

APPELLANT’S ISSUE NO. 5

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 755, CASSIE R.

FIGURES, IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 755, Cassie R. Figures, a minority. (RR: Vol. 59 p.

66) The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The State

argued that they struck Ms. Figures because she circled no. 3 on the juror questionnaire

with regard to her belief in the death penalty. (RR: Vol. 59 p. 72)

When the State described how a person would be put to death, Ms. Figures stated

yes, she could be a part of that process. (RR: Vol. 36 p. 21-22) Ms. Figures stated that

she supported the death penalty many times throughout the questioning by the State.

APPELLANT’S ISSUE NO. 6

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 955, MARY A.

MCGOWAN, IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 955, Mary A. McGowan, a minority (RR: Vol. 59 p.

66) . The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The

State argued that Ms. McGowan was struck because she thought people on drugs should

be put into rehab. (RR: Vol. 59 p. 75) The State further argued that with regards to

Special Issue No. 4, she said “hard upcoming of a person matters so they can go out and

make bad choices to get attention. Childhood had a huge impact on people in prison and

those on death row. If they were on drugs when they committed a murder, then they

should be put in rehab.”

APPELLANT’S ISSUE NO. 7

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 1055, ARTHERINE

PRIESTON, IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 1005, Catherine Prieston, a minority (RR: Vol. 59 p.

66) . The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The

State argued that they struck Ms. Prieston because she circled no. 3 on the juror

questionnaire with regard to her belief in the death penalty. (RR: Vol. 59 p. 72) The

State challenge for cause on Ms. Prieston was denied by the trial court. (RR: Vol. 45 p.

28)

Ms. Prieston was open to assessing a sentence of death based on the evidence. At

RR: Vol.45 p. 10 she explained why she circled number 3 on the questionnaire. Ms.

Prieston went on to testify that she thought the death penalty was an important thing to

have because there were cases that should be death penalty. (RR: Vol. 45 p. 11)

Ms. Prieston had worked in the Dallas County District Clerk’s Office and the Attorney

General’s Office for the State of Texas and thought her experience would help her be a

juror. (RR: Vol. 45 p. 24; 25)

APPELLANT’S ISSUE NO. 8

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION

TO THE JURY PANEL BASED ON THE STATE’S MISUSE OF ITS

PEREMPTORY CHALLENGE IN REGARD TO JUROR NO. 1095, MARTHA E.

BARBOSA, IN VIOLATION OF THE DOCTRINE ESTABLISHED

IN BATSON V. KENTUCKY

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

59 page 66 at which the trial court conducted a ‘Batson’ Hearing. Appellant objected to

the State’s strike against Juror No. 1095, Martha E. Barbosa, a minority (RR: Vol. 59 p.

66) . The trial court denied Appellant’s Batson Challenge. (RR: Vol. 59 p. 77 ) The

State argued that they struck Ms. Barbosa because she circled no. 3 on the juror

questionnaire with regard to her belief in the death penalty. (RR: Vol. 59 p. 72)

Ms. Barbosa testified that she wrote on her juror questionnaire that she considered

herself “law and order, fair and impartial, logical.” (RR: Vol. 47 p. 21) Defense counsel

did not question Ms. Barbosa. (RR: Vol. 47 p. 36)

ARGUMENT

Appellant submits that the record supports the claim that the State violated the

equal protection clause of the United States Constitution when it used its peremptory

strikes against potential jurors Neena Biswas, Leon R. Tilley, Deborah A. Moore,

Pronsak Nohe, Cassie R. Figures, Mary A McGowan, Atherine Prieston and Martha E.

Barbosa in a racially discriminatory manner contrary to the holding of Batson v.

Kentucky, 476 U. S. 79, 106 S. C. 1712, 90 L. Ed. 2d 69 (1988). The State argued that

they in no way did they use a disproportionate number of strikes on any class.(RR: Vol.

59 p. 71) Defense Counsel argued (RR: Vol. 59 p. 71):

MR. SANCHEZ: . . I don’t believe that the number of minorities that make the

jury is what Batson is talking about. It’s the use of the strikes. The use of the strikes are

- - more than half of the strikes that were used were used on minorities. That’s why we

believe we have shown at least a prima facie case that those strikes were used in

violation of Batson v. Kentucky.

The State’s proffered reasons for being neutral were in fact a pretext. See Lopez v.

State, 940 S. W. 2d 388 (Tex. App.-Austin, 1997); Musick v. State, 862 S.W. 2d 794

(Tex. App. – El Paso 1999); Ramirez v. State, 862 S. W. 2d 648 (Tex. App. – Dallas

1993); Esteves v. State, 859 S. W. 2d 613 (Tex. App. – Houston [1st Dist.] 1993, pet.

ref’d) and Everson v. State, 851 S. W. 2d 269 (Tex. Crim. App. 1993)

The answers given by these eight prospective jurors were similar to answers given

by the non minority jurors as described in the eight previous issues. Two of the minority

struck jurors, Neena Biswas- No. 64 and Mary A. McGowan - No. 955 circled the

number 2 which states “ I believe that the death penalty is appropriate in some murder

cases, and I could return a verdict in a proper case which assessed the death penalty.”

The State accepted 17 non-minority jurors, No. 46-Sands, No. 36-Fenster, No. 208-

Dunn-Jelen, No.259-Blomber, No. 316- Kvalheim, No. 323-Withers, No. 353-Clark, No.

440-Tschewik, No. 469-Dawson, No. 588-Agnes, No. 612-Weinzapelfel, No. 685-

Keifer, No. 1052 Kirby, No. 857-Mcelyea, No. 968-Rapp, No. 125-Dewell and No.

1135-Sims who also chose number 2 answer as did the 2 struck minority jurors as to

which statement best represented their feeling on the death penalty.

Minority jurors Leon R. Tilly- No. 126, Pronsak Nohe- No. 497, Cassie R.

Figures-No. 755, Mary A. McGowan - 955, Catherine Prieston- No. 955, and Martha E.

Barbosa- No. 1095, all struck minority jurors, answered “no” to question number 3, “Do

you have any moral, religious or personal beliefs that would prevent you from sitting in

judgement of another human being?” Non minority jurors accepted by the State, No.

46-Sands, No. 36-Fenster, No.259-Blomber, No. 316- Kvalheim, No. 323-Withers, No.

353-Clark, No. 440-Tschewik, No. 469-Dawson, No. 588-Agnes, No. 612-Weinzapelfel,

No. 685-Keifer, No. 1052 Kirby, No. 857-Mcelyea, No. 968-Rapp, No. 125-Dewell and

No. 1135-Sims also answered this question as “no”, they did not have any moral,

religious or personal beliefs that would prevent you from sitting in judgement of another

human being as did six of the State struck minority jurors. Furthermore, in answer to

this same question, two of the minority State struck jurors, Neena Biswas- No. 64 and

Deborah A. Moore - No. 225, answered “yes” they did “have moral, religious or personal

beliefs that would prevent you from sitting in judgement of another human being.”

Appellant argues that the State accepted non-minority juror Dunn-Jelen- No. 208 who

also answered “yes” to this question.

Appellant argues that five of the State struck minority jurors, Figures - No.755,

McGowan - No. 955, Prieston - No. 1055 and Barbosa - No. 1095 answered juror

questionnaire question number 4 asked “Do you have any moral, religious or personal

beliefs that would prevent you from returning a verdict which would result in the

execution of another human being?” as “No.” Of the non-minority jurors accepted by

the State, No. 46-Sands, No. 36-Fenster, No.259-Blomber, No. 316- Kvalheim, No. 323-

Withers, No. 353-Clark, No. 440-Tschewik, No. 469-Dawson, No. 588-Agnes, No. 612-

Weinzapelfel, No. 685-Keifer, No. 1052, Kirby, No. 857-Mcelyea, No. 968-Rapp, No.

125-Dewell and No. 1135-Sims all answered this question as “no” as did the State struck

minority jurors.

All eight minority struck jurors, the subject of this ‘Batson’ issue, answered “yes”

to question number 12 concerning the punishment range, life imprisonment or the death

penalty, for intentional murder of an individual during the course of committing, or

attempting to commit the offense of burglary. Appellant submits that 17 non-minority

jurors accepted by the State, No. 46-Sands, No. 36-Fenster, No. 208-Dunn Jelen,

No.259-Blomber, No. 316- Kvalheim, No. 323-Withers, No. 353-Clark, No. 440-

Tschewik, No. 469-Dawson, No. 588-Agnes, No. 612-Weinzapelfel, No. 685-Keifer, No.

1052, Kirby, No. 857-Mcelyea, No. 968-Rapp, No. 125-Dewell and No. 1135-Sims gave

the same answer, “yes”, as the State struck minority jurors.

In question number 13, “Do you think there are some crimes which call for the

death penalty solely because of their severe facts and circumstances, regardless of

whether or not the guilty person has committed prior violent acts?” seven of the eight

State struck minority jurors answered “yes”. Of the State accepted non-minority jurors,

17 answered “yes” No. 46-Sands, No. 36-Fenster, No. 208-Dunn Jelen, No.259-Blomber,

No. 316- Kvalheim, No. 323-Withers, No. 353-Clark, No. 440-Tschewik, No. 469-

Dawson, No. 588-Agnes, No. 612-Weinzapelfel, No. 685-Keifer, No. 1052, Kirby, No.

857-Mcelyea, No. 968-Rapp, No. 125-Dewell and No. 1135-Sims . Appellant argues

that these answers show the similarity between the minority struck jurors and those non-

minority that were accepted in some very crucial questions which indicate how strongly

the jurors supported the death penalty and for what reason, in this case, murder in the

course of a burglary.

Question fifteen was a very important question in that it asked the juror to rank

how strongly they held the belief in using the death penalty. Two of the struck minority

jurors, Preiston - No. 1055 and Martha Barbosa - No. 1095 ranked themselves a “5"

while non-minority juror Sands - No. 46 accepted by the State ranked herself a “5.” Two

of the State struck minority jurors, Moore - No. 225 and McGowan - No. 955 and two of

the non-minority State accepted jurors, Blomber - No. 259, Agnes - No. 588 ranked

themselves a “7.” Two of the State struck minority jurors, Tilley - No. 126 and Nohe -

No. 497 and four of the non-minority accepted jurors, Clark - No. 353, Keifer - No. 685,

Mcelyea - No. 857, Rapp - No. 968 ranked themselves a “8.” One of the State struck

minority jurors, Biswas - No. 64 ranked themselves a “9.” Appellant has shown that the

struck jurors gave similar rankings as the jurors accepted by the State.

The State struck minority jurors showed similar answers to question number 34,

their belief in the testimony of the police, which indicates the juror’s trust in law

enforcement. One minority State struck juror, Moore - No. 225 thought the testimony of

the police was always believable while three of the non-minority accepted jurors Kirby -

No. 1052 ,Micelyea - No. 857 and Dewell - No. 1125 thought the same. Four minority

struck jurors, Biswas - No. 64, Nohe - No. 497, Prieston - No. 1055, Barbosa - No. 1095

thought the testimony of the police was more believable than most witnesses while nine

of the non-minority State accepted jurors No. 36-Fenster, No. 316- Kvalheim, No. 353-

Clark, No. 440-Tschewik, No. 469-Dawson, No. 612-Weinzapelfel, No. 685-Keifer, No.

968-Rapp, and No. 1135-Sims thought the same. Three minority State struck jurors,

Tilley - No. 126, Figures - No. 755, and McGowan - No. 955 thought the testimony of

the police was the same as any other witness as did seven of the non-minority accepted

jurors No. 46-Sands, No. 208-Dunn Jelen, No.259-Blomber, No. 323-Withers and No.

588-Agnes.

Another question that showed a juror’s strongly held beliefs in punishment

question number 38 which asked “Do you believe in “an eye for an eye?” Of the eight

minority State struck jurors, 2 believed in “an eye for an eye” ( Biswas - no. 64 and

McGowan - No. 955. Of the State accepted jurors, 10 believed in “an eye for an eye”

No.259-Blomber, No. 316- Kvalheim, No. 440-Tschewik, No. 469-Dawson, No. 588-

Agnes, No. 612-Weinzapelfel, No. 1052, Kirby, No. 968-Rapp, No. 125-Dewell and No.

1135-Sims while 10 did not. Appellant has shown that the State struck minority jurors

gave answers to significant questions that were similar to the answers given by non-

minority jurors accepted by the State.

The Defendant has shown purposeful discrimination pursuant to Miller-El v.

Cockrell, 537 U.S. 322 (2003) The exercise of even one peremptory challenge for racial

reasons invalidates the entire jury selection and mandates a new trial. See. Linscomb v.

State, 829 S. W. 2d 164, 166 (Tex. Crim. App. 1992); Keeton v. State, 724 S. W. 2d 58,

65 n. 5 (Tex. Crim. App. 1987) The aggrieved party need not show multiple instances of

racial prejudice in jury selection to prove a constitutional violation. Linscomb at 166.

Either of the eight strikes by the State, or all together, invalidate the jury selection

process and mandate a new trial based on Appellant’s ‘Batson’ objections.

Under Batson, one should be concerned with the question of whether the State was

racially motivated in the exercise of its peremptory challenges against even one juror of

discernable race. Linscomb, at 167. Each of the prosecutor’s explanations should be

examined to determine whether the evidence supports the so-called “neutral” reasons for

the strike or whether they are merely a pretext for a racially motivated peremptory

challenge. Whitsey v. State, 796 S. W. 2d 707, 713 (Tex. Crim. App. 1989)

COMPARATIVE ANALYSIS—DISPARATE TREATMENT

The trial judge’s decision on whether the Appellant proves a Batson claim turns, in

part, on the trial court’s observations during voir dire examination. As the voir dire

supervisor, the trial judge can readily perceive discrepancies during jury selection

process. These discrepancies may include:

(1) the prosecutor failing to question any of the minority jurors yet striking them

anyway;

(2) the prosecutor striking minority jurors who gave answers similar to those of

majority jurors whom the prosecutor did not strike; and

(3) the prosecutor striking minority jurors who had the same characteristics

professionally, socially, religiously, etc. as majority jurors whom the prosecutor did not

strike.

These factors may show disparate treatment of prospective jurors. These factors

should enter into the trial judge’s assessment of the prosecutor’s credibility and

eventually the trial judge’s determination of the racial neutrality of the prosecutor’s

peremptory challenges. See Young v. State, 826 S. W. 2d 141, 145 (Tex. Crim. App.

1999).

The evidence in this case indicates that the trial judge erred in allowing the

prosecution to strike eight jurors on the basis of race, despite the rationale offered by the

State to cover its true motivation. See Ramirez v. State, 862 S. W. 2d 648 (Tex. App. –

Dallas 1993). The State used 8 of its 14 peremptory strikes to eliminate 57% of the

minorities on the qualified prospective jury panel. (RR: Vol. 43 p. 19)

The Court in Greer v. State, No. 05-08-00146 (Tex. App.-Dallas June 9, 2009)

found it significant that the State in that case struck 100% of the African-American

jurors. That Court referenced Miller-El in stating, “This remarkable disproportionate use

of peremptory strikes weighs heavily in our analysis.” The Supreme Court in Miller-El

stated that striking 10 of 11 available African-Americans were “remarkable” and not

likely caused by “[h]appenstance.” The fact that the State’s reasons for striking these

minority veniremembers were, in large part, applied to other panel members who were

not struck is evidence of pretext. See Miller-El, supra and Snyder v. Louisiana, 128

S.Ct. 1203 (2008). The disparate-treatment evidence in this case is strongly reinforced

by the State’s disproportionate use of peremptory strikes against minorities, just as it was

in Greer.

In this case the trial court unreasonably failed to apply clearly established law to

the facts by failing to examine not just the validity of the reason but the credibility of the

prosecutor. See Hayes v. Thaler, 361, Fed App. 563 (C.A.5 (Tex.)) 2010 WL 183395

citing Miller-El v. Drekte, 545 U.S. 231 (2005) and Reed v. Quaterman, 555 F3d 304

(45th Cir.2009) .

For these reasons Appellant submits reversible error is present based on a

constitutional violation that requires reversal.

VOIR DIRE ISSUES

(In each of the following issues involving jury selection Appellant’s challenge for

cause was denied by the trial court. Appellant exhausted all peremptory challenges,

requested additional peremptory challenges which were denied and identified

objectionable jurors that were on the jury thereby preserving Appellant’s issues

raised herein for appellate review.)

ISSUES ON TRIAL COURT’S DENIAL OF APPELLANT’S

CHALLENGES FOR CAUSE

APPELLANT’S ISSUE NO. 9

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON REBECCA MARIE SANDS

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel argued that Ms. Sands would automatically answer Special Issue

No. 2 “yes”. For further argument, see Reporter’s Record Volume 13 p. 118-119,133.

The trial court denied defense counsel’s challenge for cause. (RR: Vol. 13 p. 134)

Ms. Sands wrote on her questionnaire, question 9, “N/A” in answer to what crimes

she thought a sentence of life imprisonment is the proper punishment. She further

answered question 11 “The death penalty is reserved for those defendants that are such a

threat to society that even incarceration does not remove the probability of future violent

acts” “Agree. Incarceration is subject to parole/escape possibly creating a threat to

society.”

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol. 13 p. 206)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002).

It is fundamental that in all criminal prosecutions, an accused is entitled to an

impartial jury composed of people who are unprejudiced, disinterested, equitable, and

just who have not prejudged the merits of the case. Shaver v. State, 280 S.W.2d 740, 742

(Tex. Crim.App. 1955); Tex. Const. Art. I, § 10. The voir dire process is designed to

insure to the fullest extent possible, that such an impartial jury will perform the duty

assigned to it. Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. 1978).

Article 35.16(c)(2) of the Texas Code of Criminal Procedure, allows the defense to

challenge for cause any prospective juror who has a bias or prejudice against any law

applicable to the case upon which the defense is entitled to rely, either as a defense to the

offense being prosecuted or as mitigation of the punishment therefor. Clark v. State, 717

S.W.2d 910, 916-17 (Tex. Crim. App. 1986); Tex. Code Crim. P. Ann. Art. 35.16(c)(2)

(Vernon Supp. 1992). When a prospective juror is biased against the law, or shown to be

biased as a matter of law, he must be excused when challenged, even if he states that he

can set his bias aside and be a fair and impartial juror. Clark, 717 S.W.2d at 917;

Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim.App. 1982).

Based on the record, Appellant preserved error to complain of the propriety of the

Trial Court’s ruling on his challenges for cause. Harris, 790 S.W. 2d 581 (Tex. Crim.

App. 1989). See Hernandez v. State, 757 S.W.2d 744 (Tex. Crim. App. 1988). These

errors in the voir dire process denied Appellant his right to due process and a fair trial.

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006);

Barajas v. State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). See Cumbo v. State, 760

S.W.2d 251 (Tex. Crim. App. 1988)

The trial court erred in overruling the challenge for cause. Cuevas, supra; Smith,

supra. The appellant was forced to unnecessarily use a peremptory challenge, and

having exhausted his allotment of such challenges was required to accept an

“objectionable” juror on the jury. Appellant preserved his error.

Appellant submits that he is entitled to rely on the following federal law as it

applies to jury selection in capital cases and that the complained of juror was biased

against the law as a matter of law based on the prospective jurors voir dire examination.

Appellant argues that the Court’s ruling in regard to this juror violates the

holdings of Morgan v. Illinois, 504 U.S. 719 (1992) because general questions do

not comply with the duty to ensure that the juror is unbiased. The Supreme Court has

explicitly held that these questions are insufficient to ferret out bias:

“Can you follow the law?” “You can be fair, can’t you?” “ You can follow the

Court’s instructions, can’t you?” A capital juror must be willing and able to accept and

apply the statutory presumption of life. A death sentence cannot be automatic. Woodson

v. North Carolina, 428 U.S. 280 (1976). Additionally, the law requires that a capital

juror be able to consider and give effect to mitigating evidence. Eddings v. Oklahoma,

455 U.S. 104 (1982). That juror must be able to consider an individual defendant’s

mitigation. Tennard v. Dreke, 124 S.Ct. 2562 (2004) Thereby, a capital juror must be

able to consider any relevant mitigating evidence from the defense. Payne v. Tennessee,

501 U.S. 808 (1991). Any potential juror who would automatically vote for the death

penalty is challengeable for cause. Morgan v. Illinois, supra. See also Wainwright v.

Witt, 469 U.S. 412 (1985). See also Ross v. Oklahoma, 4897 U.S. 81 (1988)

Since mitigation can be anything under Lockett v. Ohio, 438 U.S. 586 (1978) a

prospective capital juror must be able to consider any mitigation evidence the defense

seeks to rely upon. Additionally, Appellant submits that the overall voir dire responses

from this prospective juror showed an implied bias as to a general prejudice against the

defense.

APPELLANT’S ISSUE NO. 10

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON DORCE L. MOORE

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel argued that Ms. Moore was unqualified because she thought a

sentence of life was appropriate for only people who acted in self defense or was

mentally ill. Ms. Moore would also require more than a preponderance of the evidence to

answer the special issue on mental retardation. She also would require the defense to

offer evidence and convince her in Special Issue No. 4. For further argument, see

Reporter’s Record Volume 15 p. 111. The trial court denied defense counsel’s challenge

for cause. (RR: Vol. 15 p. 113)

Ms. Moore stated that she would want to be sure, “clear enough to say I feel good

about it” in deciding Special Issue No. 1, the issue concerning mental retardation. (RR:

Vol. 15 p. 92, 97) Appellant submits that she showed a bias concerning this issue and

would require more than the preponderance of the evidence. Appellant further argues

that Ms. Moore would place a burden of proof on the defense to present mitigation

evidence before she could assess a life sentence. (RR: Vol. 15 p. 110)

Ms. Moore circled 10 when asked how strongly she believed in the death penalty.

(Questionnaire p. 4) She thought serving a life sentence was less severe than a death

penalty. (Questionnaire p. 4) She had been married to a police officer for several years.

(Questionnaire p. 6) She also thought a defendant should testify in violation of the fifth

amendment to U.S. Constitution. (Questionnaire p. 7) Appellant submits these answers

show the juror was not qualified.

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol. 15 p. 114)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). Additionally, Appellant adopts and

incorporates herein the argument and authorities cited in Issue No. 9 and incorporated by

reference as if set out verbatim.

APPELLANT’S ISSUE NO. 11

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON DAVID L. DARDEN

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel argued that Mr. Darden already thought that the proper

punishment was death and had a bias against the Defendant. For further argument, see

Reporter’s Record Volume 16 p.72 The trial court denied defense counsel’s challenge

for cause. (RR: Vol. 16 p. 76)

Appellant submits that Mr. Darden would automatically answer the Special Issues

so that they would result in a sentence of death if the defendant was found guilty of

committing a murder in the course of a burglary. Mr. Darden repeatedly stated that if a

murder was committed during the course of another crime, he thought the person should

be sentenced to death. (RR: Vol. 16 p. 65-66) He also would automatically find the

Defendant to be a future danger is he was convicted of capital murder. (RR: Vol. 16 p.

71)

Mr. Darden wrote in the questionnaire that the best argument for the death penalty

is “murder of innocent humans.” (Questionnaire p. 3) He answered “none” as the best

argument against the death penalty. (Questionnaire p. 3) He thought the death penalty

was the proper penalty for murder.(Questionnaire p. 3) He wrote “If these acts are

committed, the death penalty should be imposed” when asked if he agreed with the

punishment range of an intentional murder during the course of a burglary.

(Questionnaire p. 4) He circled 10 as how strongly he supported the death penalty.

(Questionnaire p. 4) He believes in an “eye for an eye”. (Questionnaire p. 8)

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol. 16 p. 76)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). Additionally, Appellant adopts and

incorporates herein the argument and authorities cited in Issue No. 9 and incorporated by

reference as if set out verbatim.

APPELLANT’S ISSUE NO. 12

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON DELORES SAWYER

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel argued that Mrs. Sawyer testified on two occasions that she

would take into account the facial expressions of the defendant during the trial in order

to determine his character and whether she should answer the mitigation question yes or

no, which was not evidence and was improper. For further argument, see Reporter’s

Record Volume 19 p. 224. The trial court denied defense counsel’s challenge for cause.

(RR: Vol. 19 p. 225)

During the State’s voir dire, Ms. Sawyer stated that she was very good at

“reading” someone because of her law enforcement training and her answers would

depend on how she felt about the person. (RR: Vol. 19 p. 180) When the defense

questioned Ms. Sawyer, she again reiterated how she can “read” a person and how his

demeanor would play a part in her answer in the mitigation issue. (RR: Vol. 19 p. 218-

220)

The juror was asked if the demeanor would have some affect on her ultimate

decision and she stated that the facts would take precedence but the Defendant’s

demeanor would play a part in it and would factor into her answer to Special Issue No. 4.

(RR: Vol. 19 p. 220)

Ms. Sawyer ranked herself a “9" has to how strongly she believed in using the

death penalty. (Questionnaire p. 4) She thought the death penalty was used too seldom.

(Questionnaire p. 5) She agreed with the statement “Regardless of what the Judge says

the law is, Jurors should do what they believe is the right thing to do, even if it goes

against the law.” (Questionnaire p. 9)

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol. 19 p. 225)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). Additionally, Appellant adopts and

incorporates herein the argument and authorities cited in Issue No. 9 and incorporated by

reference as if set out verbatim.

APPELLANT’S ISSUE NO. 13

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON JONATHAN L. HENDERSON

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel objected to Mr. Henderson as being mitigation impaired, that

Special Issue No. 4 would not mean much to him. Defense counsel pointed out that Mr.

Henderson said “...if you want me to tell you the truth, it’s always going to be the death

penalty.” Defense counsel stated that Mr. Henderson would never give them a straight

answer and always talked around the question. For further argument, see Reporter’s

Record Volume 20 page 201. The trial court denied defense counsel’s challenge for

cause. (RR: Vol. 20 p. 203-204 ) Appellant argues that Mr. Henderson would

automatically answer the Special Issues in such a way as to always result in a sentence of

death. (RR: Vol. 20 p. 174-175):

Mr. Henderson reiterated this viewpoint and clearly stated that he would always

find death as the appropriate sentence if he was convinced it was “the right guy,

deliberate, not retarded and a future danger.” (RR: Vol. 20 p. 192-193) .

Mr. Henderson wrote on the questionnaire that he was in favor of the death

penalty and explained his answer as “I feel that justice needs to be served. And maybe

sooner or later the generations will think before committing the crime.” (Questionnaire p.

2) He thought murder and aggravated robbery were crimes deserving of the death

penalty. (Questionnaire p. 3) He thought the death penalty would give families closure

and thought the country spent too much money on people “who continue to use and

abuse our funds, that supports them daily.” (Questionnaire p. 3) He circled 8 as to how

strongly he supported the death penalty. (Questionnaire p. 4) He believes in “an eye for

an eye.” (Questionnaire p. 8) These answers and statements he made on the

questionnaire show Mr. Henderson’s only punishment for killing is the death penalty.

Appellant argues that he has shown he would automatically answer the special issues so

that a death sentence would result and therefore was an unqualified juror.

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol. 20 p. 226)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). Additionally, Appellant adopts and

incorporates herein the argument and authorities cited in Issue No. 9 and incorporated by

reference as if set out verbatim.

APPELLANT’S ISSUE NO. 14

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON ISAAC TSCHEWIK

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel challenged this juror because he would place a burden on

Appellant in determining his answer to the mitigation issue. For further argument, see

Reporter’s Record Volume 26 p. 340. The trial court denied defense counsel’s challenge

for cause. (RR: Vol. 26 p. 340 )

Statements made by Mr. Tschewik that show why Defense counsel challenged him

are found at RR: Vol. 26 p. 330 (life sentence is not the proper punishment); p. 335-336

(defense has to prove mitigation in order to have a life sentence); p. 339 (juror didn’t

think that anything in Defendant’s childhood or past would cause him to impose a

sentence of life instead of death).

Appellant submits that the testimony of Mr. Tschewik shows that he was clearly

unqualified to be a juror in this case because he would place the burden on the defense to

bring him mitigation and that while he would listen to mitigation evidence, he would

automatically assess a death sentence.

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol. 26 p. 341)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). Additionally, Appellant adopts and

incorporates herein the argument and authorities cited in Issue No. 9 and incorporated by

reference as if set out verbatim.

APPELLANT’S ISSUE NO. 15

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON MICHAEL D. DAWSON

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Appellant directs this Honorable Court’s attention to Reporter’s Record Volume

27 page 152 at which Defense counsel challenged this juror because he continually wrote

in the juror questionnaire that he believed in the principle of an “eye for an eye.” For

further argument, see Reporter’s Record Volume 27 p. 152. The trial court denied

defense counsel’s challenge for cause. (RR: Vol. 27 p. 153)

Mr. Dawson believed that the death penalty was a measure of prevention and that

if you take someone’s life intentionally, then you should give your life. (RR: Vol. 27 p.

127) He did not think a mentally retarded person should be exempt from the death

penalty if they weren’t so mentally retarded that they knew right from wrong. (RR: Vol.

27 p. 133-136) Mr. Dawson considered background and other mitigation issues as a

“crutch” and didn’t think people should get a lesser penalty because they had a hard

time. (RR: Vol. 27 p. 147)

Mr. Dawson believed so strongly in the death penalty that on the questionnaire he

circled number 1, “I believe that the death penalty is appropriate in all murder cases.”

(Questionnaire p. 2) He thought the death penalty was appropriate for murder,

aggravated sexual assault and child molestation. (Questionnaire p. 3) He states again in

question number 12 that “intentional murder warrants the death penalty.” (Questionnaire

p. 4) Mr. Dawson circled 10 in how strongly he believes in the death penalty in question

number 15. (Questionnaire p. 4) He thought a life sentence was less severe because “I

do not think it is fair for the guilty to live on, the victim didn’t get to.” (Questionnaire p.

4) Mr. Dawson also had a bias of giving credibility to law enforcement personnel,

question number 34. (Questionnaire p. 6) He checked the statement “Even though the

law says a Defendant has the right to remain silent, a person accused of capital murder

should testify” in question number 36 a fifth amendment violation. (Questionnaire p. 7)

For these reasons, Appellant submits that the Trial Court erred in denying

Appellant’s challenge for cause. Because the Trial Court erred in denying Appellant’s

challenge for cause (Art. 35.16(a)(9) ; Art.35.16 (c)(2) C.C.P.) based on the prospective

juror’s bias against the Defendant, or as a matter of law against the law as relied upon the

by the Defendant, Appellant was forced to use a peremptory strike. (RR: Vol.27 p. 153)

See TEX.CODE CRIM. PROC. ANN. art. 35.16(b)(3) & (c)(2) (West 2006); Barajas v.

State, 93 S.W.3d 36,39 (Tex Crim. App. 2002). Additionally, Appellant adopts and

incorporates herein the argument and authorities cited in Issue No. 9 and incorporated by

reference as if set out verbatim.

APPELLANT’S ISSUE NO. 16

THE TRIAL COURT ERRED IN DENYING APPELLANT’S

CHALLENGE FOR CAUSE AGAINST

VENIREPERSON ANGELA K. THORPE-HARRIS

SUMMARY OF VOIR DIRE OF VENIRE PERSON

Defense counsel challenged this juror because she continually said that she would

place a burden on the Defense in Special Issue No. 2 to prove he did not act deliberately.

For further argument, see Reporter’s Record Volume 28 p. 129. The trial court denied

defense counsel’s challenge for cause. (RR: Vol. 28 p. 133 )

Appellant argues that the answers in the questionnaire and her explanation of them

during voir dire show that a person would have to be severely retarded to be assessed a

life sentence. (RR: Vol. 28 p. 115) She did not trust expert testimony. (RR: Vol. 28 p.

121) Ms. Thorpe-Harris strongly believed in the death penalty, circling number 10 in

how strongly she believed in using the death penalty. (Questionnaire p. 4) In answering

the question “It is better to that ten guilty people go free than one innocent man suffer”

she disa

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