Opinion
No. 05-20-00670-CR
12-08-2020
KENNETH WAYNE THOMAS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F86-85539-M
ORDER
Before Chief Justice Burns, Justice Myers, and Justice Pedersen
Before the Court are appellant's November 25, 2020 motions to supplement the record and for an extension of time to file his brief.
In 1987, appellant was tried, convicted, and sentenced to death for capital murder. That conviction was affirmed following a direct appeal to the Texas Court of Criminal Appeals. Thomas v. State, No. AP-69,938 (Tex. Crim. App. June 8, 1994) (not designated for publication). In 2010, the court of criminal appeals granted habeas corpus relief as to punishment only. Ex parte Thomas, No. AP- 76,405 (Tex. Crim. App. Aug. 25, 2010) (per curiam). The trial court held a new punishment hearing in 2014, and appellant again received a death sentence. On direct appeal, the court of criminal appeals held that appellant was entitled to another new punishment hearing because the jury was not presented with the proper diagnostic framework regarding appellant's claim of intellectual disability. Thomas v. State, No. AP-77,047, 2018 WL 6332526, at *1-2 (Tex. Crim. App. Dec. 5, 2018) (not designated for publication). On June 4, 2020, after the State withdrew its motion to seek the death penalty, the trial court sentenced appellant to life in prison. After appellant filed this appeal, the court reporter filed the reporter's record from the 2014 punishment hearing as well as from the 2020 punishment hearing.
Appellant now asks the Court to supplement the reporter's record with (1) volumes 6 and 15 from the July 2014 punishment hearing as well as (2) the 70-volume reporter's record filed in the Texas Court of Criminal Appeals in appellant's direct appeal following his 1987 conviction.
Although sealed, volumes 6 and 15 are on file with this Court. Records that are sealed are not technologically available via the attorney portal. Nevertheless, appellate counsel may obtain, upon presentation of proper identification in person to the Clerk of the Court, a copy of the sealed records. Therefore, we DENY as moot appellant's request as to volumes 6 and 15 of the July 2014 punishment hearing.
The 70-volume reporter's record is from appellant's original conviction, both guilt/innocence and punishment. When the court of criminal appeals granted appellant habeas relief, it ordered a new punishment hearing. Thus, only the reporter's record of the punishment hearing in which he was given a life sentence is necessary for our review of this appeal. See, e.g., Lopez v. State, 18 S.W.3d 637, 639 (Tex. Crim. App. 2000) (observing that, when an appellate court remands a case on punishment only, it effectively affirms the conviction on guilt/innocence and reverses the conviction on punishment, thereby limiting the trial court's jurisdiction to punishment issues); see also Patterson v. State, 101 S.W.3d 150, 152 (Tex. App.—Fort Worth 2003, pet. ref'd) (holding that a point on appeal from a punishment retrial that concerns matters from the guilt/innocence phase presents nothing for review). We DENY appellant's motion to supplement our appellate record with the 70-volume death penalty reporter's record.
We GRANT appellant's motion for an extension of time to file his brief. We ORDER the brief due on January 18, 2021.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE