Thomas, Kenneth Wayne ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-16,556-09
EX PARTE KENNETH WAYNE THOMAS,1 Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS
IN CAUSE NO. W86-85539-M(E) IN THE 194TH DISTRICT COURT
DALLAS COUNTY
Per curiam.
ORDER
In September 1987, a jury found Applicant guilty of the offense of capital murder.
1
In Applicant’s initial direct appeal and habeas application, Applicant’s name appeared as
“Kenneth Dewayne Thomas.” See Thomas v. State, No. AP-69,938 (Tex. Crim. App. June 8, 1994) (not
designated for publication); Ex parte Thomas, No. AP-73,251 (Tex. Crim. App. Oct. 20, 1999) (not
designated for publication). In later proceedings, Applicant’s name appeared as “Kenneth Wayne
Thomas” or “Kenneth Dwayne Thomas.” See, e.g., Ex parte Thomas, No. AP-76,405 (Tex. Crim. App.
Aug. 25, 2010) (not designated for publication). The current proceedings list Applicant’s name as
“Kenneth DeWayne Thomas.” For consistency, we will use the name listed on Applicant’s latest direct
appeal, “Kenneth Wayne Thomas,” as the reversal of that appeal is the basis for the current motion. See
Thomas v. State, No. AP-77,047 (Tex. Crim. App. Dec. 5, 2018) (not designated for publication).
Thomas - 2
The jury answered the statutory punishment questions in such a way that the trial court set
Applicant’s punishment at death. This Court affirmed Applicant’s conviction and
sentence on direct appeal. Thomas v. State, No. AP-69,938 (Tex. Crim. App. June 8,
1994) (not designated for publication). On May 13, 1997, Applicant filed his initial
application for a writ of habeas corpus pursuant to Article 11.071.2 This Court denied
Applicant relief. Ex parte Thomas, No. AP-73,251 (Tex. Crim. App. Oct. 20, 1999) (not
designated for publication).
On May 1, 2003, Applicant filed his first subsequent habeas application (our -04)
in which he alleged that he was mentally retarded and could not be executed under Atkins
v. Virginia, 536 U.S. 304 (2002). We remanded the case to the convicting court. Once the
case was returned to this Court, we reviewed the records and determined that Applicant
had failed to show that he was mentally retarded. Therefore, we denied relief. Ex parte
Thomas, No. WR-16,556-04 (Tex. Crim. App. Dec. 13, 2006) (not designated for
publication).
On October 5, 2009, Applicant filed his second subsequent application (our -05)
with the trial court. In a single allegation, Applicant alleged that he was entitled to relief
from his death sentence because he presented significant mitigating evidence related to
his moral culpability and the appropriateness of a death sentence which could not have
2
Applicant’s initial writ was our -03 writ. The -01 and -02 were both applications for writs of
mandamus. Further, unless otherwise indicated, all references to Articles refer to the Code of Criminal
Procedure.
Thomas - 3
been given full effect by the sentencing jury. See Penry v. Johnson (“Penry I”), 492 U.S.
302 (1989). This Court found that Applicant’s claim satisfied the requirement of Article
11.071 § 5, but it denied relief in a written order. Ex parte Thomas, No. WR-16,556-05
(Tex. Crim. App. March 31, 2010). However, in light of this Court’s subsequent decision
in Ex parte Smith, 309 S.W.3d 53 (Tex. Crim. App. 2010), we reconsidered our decision
and remanded the application to the habeas court for consideration of the merits of
Applicant’s claim.
The record after remand showed that the mitigating evidence presented by
Applicant was the sort of evidence that this Court had said was not encompassed within
the previous statutory special issues. See Smith, 309 S.W.3d; Ex parte Moreno, 245
S.W.3d 419 (Tex. Crim. App. 2008); Ex parte Martinez, 233 S.W.3d 319 (Tex. Crim.
App. 2007). Applicant presented mitigating evidence at the punishment phase of trial
tending to establish that he had limited intellectual ability, suffered from mental illness
and brain damage, and had been victimized as a teenager in a violent assault. The Court
granted Applicant a new punishment hearing. Ex parte Thomas, No. AP-76,405 (Tex.
Crim. App. Aug. 25, 2010) (not designated for publication).
After a retrial on punishment, a jury answered the Article 37.071 questions in a
manner requiring the trial judge to sentence him to death. On direct appeal, this Court
reversed Applicant’s death sentence. Thomas v. State, No. AP-77,047 (Tex. Crim. App.
Dec. 5, 2018) (not designated for publication).
Thomas - 4
Pursuant to Article 11.071 §§ 4(a) and (b), and because the writ process runs
concurrently with the direct appeal process, applicant’s initial application for a writ of
habeas corpus after retrial was due to be filed in the convicting court on or before
February 9, 2017. See Art. 11.071 § 4(b). On January 11, 2017, Applicant timely filed
his initial habeas application.3 However, on April 28, 2017, he filed an “Amended
Application,” and on May 16, 2017, he filed a supplement to the amended application.
Recognizing that the habeas application is statutorily returnable to this Court and
that the trial court is without authority to finally dispose of the writ, Applicant filed in this
Court a motion to dismiss his Article 11.071 initial and amended applications for a writ of
habeas corpus. See Art. 11.071 §§ 6(a), 11; see also Ex parte Reed, 271 S.W.3d 698, 727
(Tex. Crim. App. 2008) (recognizing the Court of Criminal Appeals as the ultimate
factfinder in habeas corpus proceedings). In the motion, Applicant asserts that, because
his trial was a punishment only retrial and because we reversed his sentence on direct
appeal, the claims raised in the initial and amended applications are moot and the
applications should be dismissed.
But Applicant’s motion to dismiss is not as straightforward as it appears, and two
issues must be addressed before we can properly rule on it. First, Applicant is correct that
the Court’s reversal on direct appeal of his new death sentence renders moot any
allegations affecting that sentence. However, Applicant’s initial or “Opening”
3
This document was styled his “Opening Application for Writ of Habeas Corpus.”
Thomas - 5
Application and the Amended Application both raise claims affecting the 1987
guilt/innocence trial in addition to claims affecting only his new punishment trial. And
the claims affecting guilt/innocence are not rendered moot by a reversal of Applicant’s
sentence. Secondly, Applicant’s Amended Application was not timely filed within the
statutory period, thus, it is potentially a subsequent application subject to the requirements
of Article 11.071 § 5. Likewise, the supplement to the amended application was filed
outside of the statutory period and potentially suffers a similar fate.
We will first consider the appropriate characterization of the amended application
and the supplement to the amended application. A review of these documents shows that
Applicant, by these pleadings, purports only to add: (1) additional authority that issued
after the initial (“opening”) application on retrial was timely filed and after the statutory
due date for filing had passed, and (2) argument regarding the applicability of that
authority to claims raised in the initial application. Because neither document raises
additional claims or improperly expands upon claims already raised, they should both be
designated as supplements to be considered only as appropriate in resolving the issues
raised in the initial application.4 See Ex parte Alvarez, No. WR-62,426-01 (Tex. Crim.
App. June 6, 2007) (not designated for publication) (holding that a supplemental
document filed was not a subsequent application and should be considered (as
4
The amended application adds authority and analysis regarding Moore v. Texas, 137 S. Ct.
1039 (March 28, 2017), and the supplement to the amended application adds authority and analysis
regarding Cathey v. Davis (In re Cathey), 857 F.3d 221 (5th Cir. May 11, 2017).
Thomas - 6
appropriate) in resolving the issues raised in the initial application).
Next, we look at the initial application itself. Regarding this application, we have
determined that allegations one through thirteen affect punishment phase issues only and
should be dismissed as moot. However, claims fourteen through sixteen assert error in
the guilt phase of trial. These claims are not moot and they must meet the requirements of
Article 11.071 § 5 before the merits may be considered.
In claim fourteen, Applicant asserts that he is actually innocent. In claim fifteen,
he asserts that the State violated Batson v. Kentucky, 476 U.S. 79 (1986), in his 1987 trial
by using its peremptory strikes on venire persons based on race. And in claim sixteen,
Applicant asserts that his trial counsel was ineffective for failing to object to the State’s
alleged Batson violations. Because these claims could have been raised previously, they
do not meet the requirements of Article 11.071 § 5, and they should be dismissed as an
abuse of the writ without reviewing the merits of the claims.
Accordingly, we dismiss the Article 11.071 initial writ application on punishment
retrial in this Court for the reasons set out above and order the trial court to take no
further action on it. The “Amended Application” and supplement to the amended
application are not Article 11.071 writ applications and should be otherwise disregarded.
IT IS SO ORDERED THIS THE 27TH DAY OF MARCH, 2019.
Do Not Publish