Ex Parte Thomas

Full title: EX PARTE KENNETH WAYNE THOMAS, Applicant

Court: Court of Criminal Appeals of Texas

Date published: Mar 31, 2010

No. WR-16,556-05 (Tex. Crim. App. Mar. 31, 2010)

Opinion

No. WR-16,556-05

Delivered: March 31, 2010. DO NOT PUBLISH.

On Application for Writ of Habeas Corpus in Cause No. F-86-85539 in the 194^th Judicial District Court Dallas County.

PER CURIAM. COCHRAN, J. filed a dissenting statement in which PRICE, JOHNSON, and HOLCOMB, JJ., joined.

ORDER

PER CURIAM.

On September 2, 1987, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Thomas v. State, AP-69,938 (Tex. Crim. App. June 6, 1994). On May 13, 1997, applicant filed his initial application for a writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Thomas, No. 73,251 (Tex. Crim. App. Tex. Crim. App. Oct. 20, 1999). In a single allegation in this subsequent application, applicant alleges that he is 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 been given full effect by the sentencing jury. See Penry v. Johnson ("Penry I"), 492 U.S. 302 (1989). This Court has reviewed the application and determined that it satisfies the requirements of Article 11.071 § 5. This Court has reviewed the record with respect to the allegation made by applicant. The mitigating evidence presented by applicant does not rise to the level of the sort of evidence that this Court has said is not encompassed within the previous statutory special issues. Relief is denied. IT IS SO ORDERED THIS THE 31^ST DAY OF MARCH, 2010.

COCHRAN, J.

DISSENTING STATEMENT

I respectfully dissent to the Court's order summarily denying applicant relief on his Penry claim. Everyone agrees that this subsequent application for a writ of habeas corpus satisfies the requirements of Article 11.071, § 5. Thus, we should remand this case to the trial court for further development of the merits as we have done with our other recent post- Tennard writ applications.¹ Similarly situated litigants should be treated similarly.² Instead, the per curiam order simply announces the following:

This court has reviewed the record with respect to the allegation made by applicant. The mitigating evidence presented by applicant does not rise to the level of the sort of evidence that this Court has said is not encompassed within the previous statutory special issues.

This is an opaque decree from Delphi. We do not need to describe that evidence, address that evidence, compare that evidence to the evidence in cases in which relief was granted or to those in which relief was not granted. We need not utter a single word of explanation to the applicant or to the Texas and federal bench and bar. Ipse dixit on this federal constitutional question is good enough to uphold this death sentence in our Court. I respectfully disagree. Additionally, the Court's per curiam order raises more questions than it answers. What, exactly, is "the level" and "the sort" of evidence that is not encompassed within the special statutory issues? What is the standard by which we divine that "sort" and "level"? How are applicants, attorneys, and trial judges supposed to know "the level" and "the sort" of Penry evidence that merits relief? We should at least set out, in a published opinion, the standard that we shall use in evaluating the threshold sufficiency of the Penry evidence that must be alleged in a subsequent writ before the applicant is entitled to have his application remanded to the trial court for further development. I do not yet know whether the evidence that applicant sets out in his subsequent writ application is sufficient to justify relief under the post- Tennard line of cases. But I do know that he deserves to have this evidence considered by the habeas court after it has been assessed and countered by the State. The applicant alleges that the mitigating evidence admitted at his 1987 trial includes the following from his testifying psychiatrist:

• Applicant is "borderline retarded" with I.Q. scores of 75 and 77;

• "[I]n essence, he's mentally retarded, can't learn as well, can't think as well, can't reason things through";

• Applicant suffers from "organic affective syndrome," a form of mental illness;

• Applicant also experiences delusions, including a belief that angels and God had spoken to him and directed him on specific missions;

• Applicant suffered from "early toxic exposures" in utero from cigarettes and possibly alcohol;

• When he was born in the back seat of a car, the umbilical cord was wrapped around his neck;

• He suffered from "significant developmental delay," and was unable to walk until he was two years old;

• When he was young, he complained of a "great many headaches" and told his mother he felt "something crawling around in his abdomen," which suggested possible brain damage;

• When applicant was sixteen, he was pistol-whipped at a park where he worked; as a result, he suffered an injury over the right frontal area of his brain; a contemporaneous EEG revealed "signs of irreversible brain damage";

• All of applicant's later assaultive activity occurred after this head injury;

• Applicant's mental illness might be partially addressed through medication, but his "reduced impulse control stemming from his impairments" make him more likely to commit violent acts.

This evidence may not ultimately be sufficient to entitle applicant to relief under the post- Tennard line of Penry cases, but it is not so facially meritless and lacking in plausibility and probative value that it should be cavalierly dismissed either. Ours is an adversarial process and the sufficiency of this evidence should be tested within that process. The State should have an opportunity to check the trial record and correct any misstatements or misunderstandings of these factual allegations. Both sides should have an opportunity to muster legal precedent in favor of or against granting relief under the most recent federal and state decisions. The habeas judge should have an opportunity to review the trial evidence, as well as the closing arguments, ³ to make his "Johnny-on-the-spot" assessment of the probative value and strength of applicant's evidence and to make a recommendation to this Court. This has been the normal procedure in our treatment of post- Tennard subsequent writs. I do not understand why the Court does not follow its normal procedure in this case. Or is this the beginning of a whole new era of opaque Delphic denials in post- Tennard writ applications in our state court?