           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. AP-76,405



                     EX PARTE KENNETH WAYNE THOMAS



        ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
          NO. F-86-85539 IN THE 194 TH JUDICIAL DISTRICT COURT
                             DALLAS COUNTY



      Per Curiam.

                                     OPINION

      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, No.

AP-69,938 (Tex. Crim. App. June 8, 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. AP-73,251 (Tex. Crim. App. Oct. 20, 1999).
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       On October 5, 2009, applicant filed this subsequent application with the trial court.

In a single allegation, applicant alleged 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). In an order dated

March 31, 2010, this Court denied relief after finding that applicant’s claim satisfied the

requirement of Article 11.071 §5. Ex parte Thomas, No. WR-16,556-05 (Tex. Crim. App.

March 31, 2010). 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 habeas court did

not hold a hearing, but did enter findings of fact and conclusions of law.

       Reviewing the case after remand, the record shows that the mitigating evidence

presented by applicant is the sort of evidence that this Court has said is 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 evidence was

presented through the testimony of Jay Douglas Crowder, M.D., a psychiatrist.
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       Dr. Crowder testified that applicant had scored 75 and 77 on IQ tests, and that those

scores would place applicant in the bottom 6% of the population in terms of intelligence.

Based on these test results, Dr. Crowder described applicant as “borderline retarded,” and he

informed the jury that applicant could not “learn as well,” “think as well,” or “reason through

things as well” as a person with comparable intellectual limitations. Applicant’s spelling and

math skills, as measured by tests taken around the time of trial, were below that of a typical

third grader.

       Dr. Crowder additionally testified that applicant suffered from organic affective

syndrome, an abnormal state of mood that is a form of mental illness. Dr. Crowder based this

diagnosis in part on the fact that applicant had experienced delusions, including the belief

that angels and God had spoken to him and had directed him on specific missions.

       According to Dr. Crowder, applicant’s impairments may have been traceable in part

to early toxic exposures, such as exposure to cigarette smoke and possibly alcohol in utero,

as well as trauma at birth. Applicant was born in the back seat of a car, and his umbilical

cord was wrapped around his neck during his birth.            Applicant showed significant

developmental delay, as reflected in the fact that he was unable to walk until he was two

years old. As a child, applicant complained of a great many headaches and told his mother

he felt something “crawling around in his abdomen.” Dr. Crowder interpreted these facts to

suggest that applicant suffered from brain damage.
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       Dr. Crowder also testified to the consequences of an assault committed against

applicant when he was 16, in which applicant was pistol-whipped at a park where he worked.

Applicant’s medical records indicated that he suffered an injury over the right frontal area

of his brain, which caused him to be disoriented and not to recognize his mother or his

girlfriend. Dr. Crowder testified that the disorientation described in the medical records

indicated that applicant suffered a significant head injury in the assault.               An

electroencephalogram test (EEG) following the assault revealed abnormal electrical activities

in the frontal part of applicant’s brain. Dr. Crowder characterized these results as signs of

irreversible brain damage. An EEG and a computed tomography (CT) scan conducted by Dr.

Crowder in anticipation of trial revealed no abnormality.        Dr. Crowder also testified

regarding other tests of applicant’s general neuropsychological functioning, and indicated

that applicant had scored “within the brain damaged range” on “90% of the tests that were

administered.”

       Dr. Crowder indicated that the injury applicant sustained during the assault

compounded his cognitive limitations, because “people who are already impaired at birth or

later, if they have head injuries that adds on to that [sic], that makes the situation much

worse.” Dr. Crowder noted that some of applicant’s serious assaultive conduct, including

this offense, occurred after the pistol-whipping he received at age 16.

       Finally, Dr. Crowder testified that while medication could make applicant

substantially less likely to constitute a continuing danger to society, the mental impairments
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increased the likelihood of applicant’s future dangerousness. On cross examination, Dr.

Crowder acknowledged that applicant’s reduced impulse control, rooted in his mental

impairments, made him more likely to commit violent acts such as “killing folks and

stealing.”

       The habeas court concluded that the former statutory special issues did not provide

applicant’s jury with an adequate mechanism for exercising its reasoned moral judgment

concerning whether applicant’s mitigating evidence of low intelligence, brain damage, and

mental illness warranted the imposition of a life sentence rather than the penalty of death.

Based on the forgoing, the habeas court recommended that this Court vacate the punishment

portion of the trial court’s judgment and remand the case for a new punishment hearing.

       This Court has reviewed the record with respect to the allegation made by applicant.

Based on the habeas court’s findings and conclusions and our own review, and because the

mitigating evidence presented at applicant’s trial is the type of evidence for which he was

entitled to a separate vehicle for consideration, relief is granted. We vacate applicant’s

sentence and remand the case to the trial court for a new punishment hearing.




Delivered: August 25, 2010

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