              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
