# Thomas, Kenneth Dewayne > Court of Appeals of Texas · June 22, 2015 URL: https://www.frixlaw.com/law-library/cases/4058012 ## Case - **Court:** Court of Appeals of Texas - **Decided:** June 22, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4058012 ## How later opinions describe it (automated extraction) - finding “a very low probability that, if sentenced to life in prison, [appellant] will have any more children” - stating the Fifth Circuit position that the BrisenÞo factors permissibly exclude certain offenders with intellectual disability from the Atkins exemption ## Opinion text 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 i 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 ii 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 iv 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 v 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 vi 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 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 ix 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 x 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 xi 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 xv 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 xx 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 xl 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 1 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 2 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 3 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 4 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 5 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) 6 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 7 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) 8 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) 9 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) 10 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 11 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) 12 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) 13 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 14 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) 15 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 16 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) 17 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) 18 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) 19 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 20 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) 21 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 22 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 23 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 24 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 25 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: 26 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 27 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) 28 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 29 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) 30 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) 31 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 32 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 33 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 ) 34 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) . 35 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 36 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) . 37 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 38 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 39 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 40 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, 41 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- 42 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.” 43 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 imprisonm [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4058012. Public record. Not legal advice.