Crazy but sane in Texas
By Billy Sinclair - CapitalPunismentbook.com
March 29, 2009
Recently the Texas Court of Criminal Appeals, which frequently
finds itself in the eye of hurricane-size controversies, made
itself, and the entire state of Texas, the laughing stock of the
nation by ruling that Andre Lee Thomas is “crazy” but “sane” under
Texas law. If you don’t know Andre Lee Thomas is, he’s the
condemned inmate who, while on Texas’ death row on December 9,
2008, plucked his last good eye from its socket and ate it. The
state’s Court of Criminal Appeals in its March 18, 2009 ruling
described the horrific events that put Thomas on death row:
“Applicant’s behavior in the months before the killings became
increasingly ‘bizarre’: He put duct tape over his mouth and
refused to speak; he talked about how the dollar bill contains the
meaning of life; he stated that he was experiencing déjà vu
and reliving events time and again; he had a religious fixation
and heard the voice of God. In the weeks before the murders,
applicant was heard by others talking about his auditory and
visual hallucinations of God and demons.
“About twenty days before the killings, he took Coricidin and then
tried to commit suicide by overdosing on other medications. He was
taken to the local MHMR facility, but then walked away before he
could be treated. Two days before the killings, he drank vodka and
took about ten Corcidin tablets and then stabbed himself. His
mother took him to the local hospital. But again, applicant left
the hospital before he could be committed for observation or
psychiatric treatment. On two occasions in the days before the
killings, applicant was seen by friends to be highly intoxicated;
they described him as vomiting, delirious, incapacitated, and
lying on the floor.
“At around 7:00 p.m. on March 26th, just one day after
stabbing himself, applicant went to his estranged wife’s apartment
where she and her boyfriend, Bryant Hughes, were listening to
religious audiotapes. According to applicant’s statement to police,
he had come to believe that God wanted him to kill his wife,
Laura, because she was ‘Jezebel,’ and to kill his wife’s daughter,
thirteen-month old Leyha, because she, too, was evil. That evening,
applicant saw Bryant twisting an extension cord as they listened
to the religious tapes, and he thought that Bryant also wanted to
strangle Laura and the children. Applicant wanted to make ‘the
first move,’ so he walked into Laura’s kitchen to find a knife,
but then decided that it was not the right time. Bryant drove
applicant home around 10:00 p.m.
“Applicant reported that the next morning he woke up and heard a
voice that he thought was God telling him that he needed to stab
and kill his wife and the children using three different knives so
as not to ‘cross contaminate’ their blood and ‘allow the demons
inside them to live.’ He walked over to Laura’s apartment. He saw
Bryant drive by and wave, so applicant believed that this was a
signal that he was doing ‘the right thing’ by killing his wife and
“He burst into the apartment, then stabbed and killed Laura and
the two children. He used a different knife on each one of the
victims, and then he carved out the children’s hearts and stuffed
them into his pockets. He mistakenly cut out part of Laura’s lung,
instead of her heart, and put that into his pocket. He then
stabbed himself in the heart which, he thought, would assure the
death of the demons that had inhabited his wife and the children.
But he did not die, so he walked home, changed his clothes, and
put the hearts into a paper bag and threw them in the trash. He
walked to his father’s house with the intention of calling Laura,
whom he had just killed. He called Laura’s house instead and left
a message on their answering machine:
“’Um, Sherry, there is Andre. I need y’alls help, something bad is
happening to me and it keeps happening and I don’t know what’s
going on. I need some help, I think I’m in hell. I need help.
Somebody needs to come and help me. I need help bad. I’m desperate.
I’m afraid to go to sleep. So when you get this message, come by
the house, please. Hello?’
“Applicant then walked to his to his trailer where his girlfriend,
Carmen Hayes, and his cousin, Isaiah Gibbs, were waiting for him.
He told them he had just killed his wife and the two children. Ms.
Hayes took him to the Sherman Police Department and he told the
police what he had done. After he was hospitalized for his chest
wound, he was taken to jail, and he gave a videotaped statement to
the police. In that videotaped statement, applicant gives a very
calm, complete, and coherent account of his activities and his
reasons for them.”
Five days after the killings Thomas was reading the Bible in jail
and came across the verse that instructed “if the right eye
offends thee, pluck it out.” He then gouged out his right eye.
This incident spurred jail officials to have Thomas
psychologically evaluated. Three psychologists determined he was
not mentally competent to stand trial, and they all agreed he had
some “schizophreniform disorder” which ruled out any substance
abuse psychotic disorder. Thomas was then transferred to the
Vernon State Hospital for the criminally insane where, after five
weeks of medication and treatment, Dr. Joseph Black, Chief
Psychiatrist for the Competency Program, determined that Thomas
was “malingering” and was in fact competent to stand trial.
Thomas faced a jury trial in Grayson County and was convicted and
sentenced to death after the jury rejected his insanity plea.
Thomas’ case worked its way through the Texas appeal system for a
couple years before the Court of Criminal Appeals handed down its
controversial March 19, 2009 ruling. In a nutshell, the appeals
court brushed aside the insanity issue this way:
“While there is no dispute that applicant was, in laymen’s terms,
‘crazy’ at the time he killed his wife and children, the legal
question is whether he knew that what he was doing was “wrong” or
a ‘crime” at the time he acted. There is no dispute that applicant
knew that it was his wife and the children that he was stabbing to
death. He may have thought that he was morally justified in doing
so because she was a ‘Jezebel,’ his son was the ‘Anti-Christ,’ and
Leya was somehow evil also. He said, ‘I thought I was doing the
will of God.’ But religious fervor, whether the result of a severe
mental disease or inspired by a jihadist fatw or KKK rally, does
not provide a legal excuse for the knowingly ‘wrongful’ murder of
Simplifying Thomas’ murderous conduct leading up to the killings
of his wife and children as “religious fervor” or comparing it to
the kind of violence inspired by a “jihadist fatw or KKK rally”
not only misses the bull’s eye on the barn door but the entire
barn. The court’s own chronology of events clearly reveals that
Thomas was absorbed in some deep paranoid schizophrenic psychosis
months prior to and at all times leading up to the actual killing
of his family. The three psychologists who examined him in the
jail after he plucked out his right eye reached the same diagnosis
that he suffered from some form of paranoid schizophrenia. Unless
Dr. Joseph Black is some kind of “miracle worker” sent from Upon
High, the five weeks of medication and treatment at the Vernon
State Hospital did not cure Thomas’ schizophrenia and turn him
into a “malingerer.”
The State of Texas will no doubt execute this eyeless man at some
point. It must. The Texas Court of Criminal Appeals has subjected
the entire State to ridicule. The State must now prove it has the
legal “right” to put this man to death. And since the Texas prison
system was obviously unable to treat Thomas’ psychosis as
evidenced by the latest eye-plucking episode, his inevitable
execution may actually be the most humane thing for him. As far as
the State is concerned, the “eye-plucker” is a malingerer trying
to fool the State’s criminal justice system ensuring that he will
never receive proper mental health treatment.
Andre Thomas, Texas Death Row
Inmate, Pulls Out Eye, Eats it
By Thomas Graczyk -
January 9, 2009
HOUSTON — A Texas death row inmate with a
history of mental problems pulled out his only good eye and told
authorities he ate it. Andre Thomas, 25, was arrested for the
fatal stabbings of his estranged wife, their young son and her 13-month-old
daughter in March 2004. Their hearts also had been ripped out. He
was convicted and condemned for the infant's death.
While in the Grayson County Jail in Sherman,
Thomas plucked out his right eye before his trial later in 2004. A
judge subsequently ruled he was competent to stand trial.
A death-row officer at the Polunsky Unit of the
Texas Department of Criminal Justice found Thomas in his cell with
blood on his face and took him to the infirmary.
""Thomas said he pulled out his eye and
subsequently ingested it," agency spokesman Jason Clark said
Thomas was treated at East Texas Medical Center
in Tyler after the Dec. 9 incident. Then he was transferred and
remains at the Jester Unit, a prison psychiatric facility near
Richmond southwest of Houston.
"He will finally be able to receive the mental
health care that we had wanted and begged for from day 1," Bobbie
Peterson-Cate, Thomas' trial attorney, told the Sherman Herald
Democrat. "He is insane and mentally ill. It is exactly the same
reason he pulled out the last one."
At his trial, defense lawyers also argued he
suffered from alcohol and drug abuse.
Thomas does not have an execution date.
The Texas Court of Criminal Appeals in October
upheld his conviction and death sentence for the death of 13-month-old
Leyha Marie Hughes. Also killed March 27, 2004, were his wife,
Laura Christine Boren, 20, and their son, 4-year-old Andre Lee.
Thomas, from Texoma, walked into the Sherman
Police Department and told a dispatcher he had just murdered the
three and had stabbed himself in the chest.
Thomas told police how he put his victims'
hearts in his pocket and left their apartment, took them home, put
them in a plastic bag and threw them in the trash.
Court documents described the three victims as
having "large, gaping wounds to their chests".
Convicted Killer gets Death
Friday, March 11, 2005
In a packed courtroom, 21 year old Andre
Thomas was sentenced to death, paying the ultimate price for his
This capital murder case was for the youngest
victim. 13 month old Leyah Hughes. Leyah is the daughter of his
estranged wife Laura Thomas who also died in the triple murder.
The jury took just under an hour to decide
the fate of Andre Thomas. He stood up as family members on both
sides cluthed hands, and heard the verdict for the death
The silence broke in the courtroom, as Andre
Thomas apologized for his actions.
Extra security was on hand at todays
proceedings to ensure an extra amount of safety.
Jurors on Monday found Andre Lee Thomas
guilty of capital murder in the stabbing death of his estranged
wife's one-year-old daughter.
The victim was Leyha Marie Hughes.
Thomas hasn't been tried in the deaths of his
wife, 20-year-old Laura Christine Thomas, and their four-year-old
son, Andre Lee Boren.
The attacks happened last March at Laura
Thomas'apartment in Sherman.
The victims' hearts were cut out, and two of
them were found at the apartment.
Authorities say that Thomas, who underwent
surgery for self-inflicted stab wounds, later ripped his right
eye out of its socketwhile he was jailed.
delivered the opinion for a unanimous Court.
The appellant was indicted for the capital
murder of Leyha Marie Hughes.
(1) He pleaded not
guilty by reason of insanity.
(2) In March 2005,
the jury found the appellant guilty. Based on the jury's answers
to the special issues set forth in Texas Code of Criminal
Procedure Article 37.071, sections 2(b) and 2(e), the trial judge
sentenced the appellant to death.
(3) In the appeal
to this court, required by statute,
(4) the appellant
raises ten points of error, which we find to have no merit. We
ADMISSION OF STATEMENTS
In points of error one and two, the appellant
argues that the trial court erroneously denied his motion to
suppress videotaped and audiotaped statements he made to police on
March 29 and March 30, 2004, respectively. The appellant claims
that these statements were taken in violation of Miranda v.
(5) He contends
that his mental illness rendered him incapable of knowingly and
intelligently waiving his Miranda rights because he did
not understand the meaning, effect, and consequences of his
confessions and waiver.
An inquiry into the waiver of Miranda
rights "'has two distinct dimensions.'"
(7) First, the
waiver must be "'voluntary in the sense that it was the product of
a free and deliberate choice rather than intimidation, coercion,
(8) Second, the
waiver must be made "'with a full awareness both of the nature of
the right being abandoned and the consequences of the decision to
(9) However, the "Constitution
does not require that a criminal suspect know and understand every
possible consequence of a waiver of the Fifth Amendment privilege."
(10) It is enough
that a "suspect knows that he may choose not to talk to law
enforcement officers, to talk only with counsel present, or to
discontinue talking at any time."
As regards the issue of voluntariness, the
Fifth Amendment is interested only in official, governmental
coercion which leads to a defendant's relinquishing his rights. It
"is not concerned 'with moral and psychological pressures to
confess emanating from sources other than official coercion.'"
(12) The appellant
does not contend that he was coerced into waiving his Miranda
(13) With these
standards in mind, we turn to the question of whether he knowingly
and intelligently waived his rights.
The evidence at the suppression hearing showed
that Officer Chris Mullins of the Sherman Police Department was
dispatched to a triple homicide on March 27, 2004. When he arrived
at the victims' apartment at 7:22 a.m., he saw that the front door
had been "kicked in." Inside the apartment, he found the bodies of
the three victims: Laura Christine Boren, the appellant's
estranged wife; Andre Lee Boren, the appellant's four-year-old
son; and Leyha Marie Hughes, the appellant's one-year-old
stepdaughter. All three victims had been stabbed and had large,
gaping wounds to their chests.
At about 9:30 a.m., the appellant entered the
lobby of the Sherman Police Department and told Police Dispatcher
Cindy Carr that he had just murdered his wife and wanted to turn
himself in. Officer Chuck Maudlin went to the lobby and frisked
the appellant for weapons. Maudlin testified that the appellant,
who appeared lethargic and calm, asked, "Will I be forgiven?" and
said he had stabbed himself in the chest. Detective Brice Smith
handcuffed the appellant and arrested him. The appellant was then
transported to a hospital for treatment, where Smith later
arrested him pursuant to an arrest warrant.
On March 29, at about 11:00 a.m., Officer Brad
Blankenship went to see the appellant at the hospital. The
appellant had undergone surgery and was to be released that day.
During Blankenship's visit, Officer William Caver was on guard in
the appellant's hospital room. Blankenship testified that he asked
the appellant if he would be willing to talk to the police about
the offense. The appellant replied, "Yes, if that means I get to
tell my side of the story. Yes, I want to talk to you."
Blankenship told the appellant that another officer would come to
take his videotaped statement after lunch, and the appellant said
that would be "fine." Blankenship further testified that, although
he had not yet advised the appellant of his rights under
Miranda and Article 38.22, the appellant asked something to
the effect of, "Shouldn't I have a lawyer?" Blankenship attempted
to clarify whether the appellant wanted to give a statement, and
the appellant said "he thought he needed to have a lawyer first."
Blankenship advised the appellant that he would not be able to
take his statement at that time because the appellant had said "the
magic words" that he wanted an attorney. Blankenship then left the
Officer Caver testified that, after Blankenship
left the room, the appellant asked where Blankenship was and said,
"I thought he wanted to talk." Caver told the appellant that
Blankenship had left because the appellant had "said the magic
words." The appellant told Caver that he changed his mind, he
wanted to talk to Blankenship, and he did not need a lawyer,
whereupon Caver advised him that he could represent himself. Caver
immediately left the room and found Blankenship. According to
Blankenship's testimony, Caver informed him that the appellant
wanted to make a statement immediately, had decided to act as his
own attorney, and would waive his rights. Blankenship and Caver
returned to the appellant's room. Blankenship told the appellant
that he "did not want to take a statement from him under those
conditions" and he "wanted to confer with the County Attorney's
The appellant was released from the hospital
and was taken to the Sherman Police Department, where Detective
Mike Ditto interviewed him on the afternoon of March 29. The
interview was videotaped. The videotape was played during the
suppression hearing. Ditto advised the appellant of his rights
pursuant to Article 38.22, and the appellant waived his rights and
agreed to talk. The appellant told Ditto about his earlier
interaction with Blankenship. He acknowledged that he initially
had told Blankenship he wanted a lawyer, but then had changed his
mind and told another officer he did not want one. When Ditto
asked if the other officer had said anything, the appellant
responded, "He started to say something, but I cut him off. . . .
I figured that he was going to explain to me about my Miranda
rights and I finished it for him."
The appellant told Ditto that he had killed his
wife, son, and stepdaughter. He said that God had wanted him to do
it, that the victims had been evil, that his wife had been a "jezebel,"
and that his son had been "the anti-Christ." Toward the end of the
interview, the appellant said that he was tired and that he did
not want to talk further. Ditto then gave the appellant his
business card and told him to contact Ditto if he wanted to talk
After his interview with Ditto, the appellant
was taken to the Grayson County Jail, where he was magistrated by
Judge Greg Middents and assessed by Nurse Natalie Sims. Middents
testified that he read the appellant his warnings and rights twice,
because the appellant had been in the hospital earlier that day
and "was kind of groggy or maybe under some medication." Middents
was satisfied that the appellant understood his rights and
warnings. Middents also testified that the appellant requested
that counsel be appointed and filled out an affidavit in support
of his request. Sims testified that she met with the appellant to
complete his medical history and mental-health-screening
questionnaires. She testified that the appellant was "somewhat
lethargic, sleeping intermittently in his chair" and that he told
her he was given Darvocet right before his release from the
hospital. However, Sims also said that the appellant appeared to
understand her questions and answer them appropriately, and he
seemed "oriented to time, place, and person."
Sims checked on the appellant after dinner on
the evening of March 29. At that time, the appellant showed her
Ditto's business card and said he wanted to talk to him. Sims told
the appellant that, because it was late, she would have to get in
touch with Ditto the next day. Sims testified that she did not
encourage the appellant to talk to the police and that no one from
the police department had requested her to do so. She further
testified that the appellant had not received any narcotic pain
medication after leaving the hospital, and that the "doctor's
orders" were only for wound treatment and non-narcotic pain
medication, which she said generally meant Tylenol or Motrin.
On the morning of March 30, Sims contacted the
Sherman Police Department to say that the appellant wanted to talk
to Ditto. When Ditto and Texas Ranger "Tony" Bennie came to the
Grayson County Jail, Sims told them she believed the appellant was
"oriented to person, place, time, and location." She testified
that the appellant was "lucid," "bright," and "alert" before the
interview. At the appellant's request, the officers allowed Sims
to be present while they questioned him. The officers audiotaped
the interview and read the appellant his rights and warnings
pursuant to Article 38.22. Sims testified that, in her opinion,
the appellant appeared to understand his rights and to make an
informed choice to talk to the police. During the hour-long
interview, the appellant again related that he killed the victims
because they were evil and God wanted him to do it. He also said
that he cut open their chests and ripped their hearts out, and
that he stabbed himself in the chest afterwards. Sims testified
that the appellant exhibited some delusional behavior and said
nonsensical things during the interview, "but he knew very much
what was going on." She further testified that the appellant's
mental condition deteriorated in the days following the Ditto
interview. However, this did not change her opinion that, on March
30, the appellant fully understood his rights and made an informed
choice to waive them. Later in the suppression hearing, two
employees of the Grayson County Jail each testified that on April
2, a few days after making the statements to the police, the
appellant pulled out one of his eyeballs with his hands while
alone in his holding cell at the jail. According to the testimony,
the appellant yelled, "It's God's will," and said he had been
reading his Bible, which indicated he might find favor with God by
At the suppression hearing, State's expert
Peter Oropeza, a licensed psychologist who evaluated the appellant
for the issues of sanity at the time of the offense and competency
to stand trial, testified that the appellant had understood his
rights and had voluntarily and intelligently waived them. Defense
expert Jim Harrison, a clinical psychologist who evaluated the
appellant's competency to stand trial, testified that the
appellant had understood his rights and his choice to waive them.
He was "not convinced," however, that the appellant "truly
understood the full implication of what that meant in terms of his
The defense presented the testimony of social
worker Sherrie St. Cyr and physician William Bowen, who each spoke
to the appellant in the emergency room at Texoma Medical Center
the day before the offense. They testified that they thought the
appellant was psychotic and should have been admitted to a
psychiatric facility. Cactus Robin McGirk, a psychologist at the
Grayson County Jail, testified that he assessed the appellant
after 5:00 p.m. on March 30, in order to advise the jail on his
care and treatment while incarcerated. McGirk believed that the
appellant had paranoid schizophrenia and that his "judgment
process" was "considerably impaired" at that time. McGirk
acknowledged that he never saw or heard the appellant's taped
statements, and that there were "fluctuations in [appellant's]
mental state." The trial court found that, because Bowen and
McGirk had not seen or heard the appellant's taped statements,
their testimony had "little relevance to the issue of [appellant's]
ability to understand and waive his rights" and was not "credible
in relation to that issue."
The evidence at the hearing also showed that,
on several occasions before committing the instant offense, the
appellant had been given his warnings by police officers and
admonished of his rights by trial courts. He had understood those
rights and, in several instances, had waived them. Testimony
indicated that he was well versed in the criminal-justice system,
both as a juvenile and as an adult, and that he had demonstrated
his understanding of the system and his rights.
After the suppression hearing, the trial court
made written findings of fact and the following conclusions of law
regarding the admissibility of the appellant's statements:
The defendant was in lawful custody at the time
of his statements on March 29 and March 30, 2004.
The issue before the court and the defense's
contention in its Motion to Suppress is whether the defendant was
competent to understand his rights and make a knowing waiver of
those rights because of his mental state on March 29 and March 30,
The Court finds that the defendant understood
his rights and was competent to knowingly and intelligently waive
On March 29, 2004, the defendant indicated at
the hospital he wanted to talk with an attorney before making a
statement. Sgt. Brad Blankenship scrupulously honored this request
by the defendant. However, before Blankenship left the hospital,
the defendant initiated further contact with the police by telling
Officer Caver that he wanted to talk and would act as his own
Once at the Sherman Police Department, the
defendant was warned and advised of his rights pursuant to Article
38.22 of the Texas Code of Criminal Procedure, which he understood,
and voluntarily, knowingly and intelligently waived his rights
under the U.S. and Texas Constitutions and Article 38.22 of the
Texas Code of Criminal Procedure on March 29, 2004, prior to
giving his videotaped statement to Det. Mike Ditto, including his
right to remain silent and his right to an attorney.
On the evening of March 29, 2004, the defendant
initiated further contact with law enforcement by advising nurse
Natalie Sims that he desired to talk further with Mike Ditto.
On March 30, 2004, the defendant was warned and
advised of his rights pursuant to Article 38.22 of the Texas Code
of Criminal Procedure, which he understood, and knowingly,
intelligently and voluntarily waived his rights under the U.S. and
Texas Constitutions and Article 38.22 of the Texas Code of
Criminal Procedure prior to talking with Mike Ditto and Texas
Ranger Bennie, including his right to an attorney and his right to
In determining whether the appellant knowingly
and intelligently waived his Miranda rights, we afford
almost total deference to a trial court's determination of
historical facts and rulings on application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor.
(14) We review
de novo a trial court's rulings on application-of-law-to-fact
questions that do not turn on an evaluation of credibility and
(15) Where, as here,
the trial court evaluates the credibility of witnesses and the
weight of their testimony, "we will not disturb the trial court's
findings if those findings are supported by the record."
The record in this case supports the trial
court's findings and conclusions. The trial court found that the
credible testimony of the State's witnesses showed that the
appellant understood his rights and that he knowingly and
intelligently waived them. The appellant was no stranger to the
criminal-justice system, and he had received and demonstrated an
understanding of his rights and warnings on several prior
occasions. The State and defense experts who evaluated the
appellant's competency to stand trial both testified that the
appellant understood his rights and his choice to waive them. The
trial court did not abuse its discretion in finding that the
appellant's Miranda waiver was made knowingly and
intelligently. Points of error one and two are overruled.
In point of error three, the appellant contends
that the trial court erroneously granted the State's challenge for
cause to Venire Member Michael Ross.
(17) The appellant
complains that Ross was improperly excused from service based on
his views regarding the death penalty.
(18) The appellant
disputes that Ross is challengeable under Article 35.16(b)
(19) because he
indicated that he could answer the special issues questions in
such a way that a sentence of death would result, under the proper
The appellant raises predominantly
constitutional arguments but nevertheless asserts that Article
35.16(b) is controlling. The issue, however, is one of "constitutional
(20) A prospective
juror may be excluded for cause only if his views regarding the
death penalty would "'prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.'"
(21) This means
that venire members may not be excused for cause "simply because
they voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction."
(22) As long as a
venire member, despite his personal beliefs against the death
penalty, can follow the law, abide by his oath, and answer the
special issues according to the law and the evidence, he is not
challengeable for cause.
We review a trial court's ruling on a challenge
for cause with considerable deference because the trial court is
in the best position to evaluate a venire member's demeanor and
(24) In reviewing a
trial court's decision, we ask whether the "totality of the voir
dire testimony supports the court's finding that the prospective
juror is unable to follow the law as instructed, and reverse only
if a clear abuse of discretion is evident."
(25) We accord
particular deference to the trial court when a venire member's
answers are vacillating, unclear, or contradictory.
When the prosecutor initially asked Ross if he
"could fairly sit in judgment in a death penalty case," Ross
replied, "Well, the honest answer to that is I really don't know."
Further questioning by the prosecutor revealed the following:
Q. So, I'm going to have to push you. If you're
selected on this jury, could you in good conscience, fairly
consider and sit in a death penalty case and not be affected by
A. I don't think I could. I really don't.
Q. And I appreciate that. This is the time for
us to know about it, right now. So, I want to clarify some things-there
are some legal things I have got to go through on this. What I'm
hearing you say is that, were you called upon to sit as a juror,
number one, you would have great difficulties in sitting in a
death penalty case, am I right?
A. Yeah, probably.
Q. And if you were called on to answer the
questions-and these are the two questions-and we are not going to
go through them in detail, but generally your answers to these
questions determine whether or not the Judge has to give a death
Q. What I'm hearing you say is, because of your
inner feelings about the death penalty and sitting in judgment and
putting somebody to death, that there really is no circumstance
where you could answer those questions such that they would result
in a person being put to death; is that right?
A. Yeah, I think that would probably be right.
Q. And did you say yes?
The prosecutor then asked Ross to clarify one
of his answers on the jury questionnaire, where Ross circled, "I
believe that the death penalty is appropriate in some capital
murder cases and I could return a verdict resulting in death in a
proper case." Ross responded, "[I]n some cases, I'm sure that that
is an appropriate thing, you know, but I'm not-I couldn't say I
could be the one up there doing it." When asked to confirm that he
could never participate in giving the death penalty, Ross said, "Could
not. It would bother me if I ever had to." This exchange followed:
Q. So, what I want to confirm is that your
difficulty with the death penalty would prevent you from taking
that oath and a true verdict render when a death penalty is
available. Is that true?
A. Yeah, I guess it would be. Because if you
took the oath, you would be lying.
Q. I don't want a guess. I want-I need you to
say, yes, I could not take that oath in a death penalty case. I
could not take the oath that I will a true verdict render based on
the law and the evidence in a death penalty case. Is that true?
A. It is true.
The trial judge then questioned Ross about
whether he could answer the special issues questions so that death
resulted, if supported by the evidence. Ross continued to express
uncertainty about his ability to do that, but then he said:
You know, I mean, I would have to do the right
thing. I can-you know, like on the evidence part, I mean, I could
do that if that is what I was asked to do because that is just the
way we believe. If you are supposed to do something, you know, you
do what you are supposed to do. I could probably answer it yes or
no on the evidence fact, you know. But it would go back to the
thing that, I don't know, just with the deal, I wouldn't really
want to be in that position.
The trial court ultimately asked, "[C]an you
assure me you will totally set aside your feelings on the death
penalty and base your verdict on the evidence, and do you think
your feelings about the death penalty are going to color what you
are going to do so you may not answer these according to the
evidence?" Ross replied, "I think if it was another case I
probably, you know, could. This particular one, probably not. I
Defense counsel then questioned Ross. When
asked if he could answer the special issues based upon the law and
the evidence, Ross replied, "I would still be stuck with that
death thing. I don't know." The trial judge again stepped in to
clarify whether Ross could answer the special issues in such a way
that the death penalty resulted if he thought that the law and the
evidence supported it. Ross answered, "If it was-if I had took the
oath and all, I think I could, you know, by the oath, just on my
word because that is what I'm supposed to do."
Upon further questioning by the prosecutor,
Ross agreed that he could not answer the special issues in such a
way that would result in death, and that he could not return a
verdict that resulted in a death penalty under any circumstances.
Defense counsel then posed a hypothetical with
a defendant who bombed a daycare, killed numerous children under
the age of six, and "testified that he was antigovernment, he
hated everybody, and that given the opportunity, he would kill
again." Ross said, "I could probably come up with, you know, a
death sentence on that one." However, in his final exchange with
defense counsel, Ross stated as follows:
Q. And what I'm saying is that since as you sit
there, you don't know the facts and circumstances of this case or
any other case. Could you listen to the evidence and answer these
special issues and render a true verdict based upon the law and
the evidence, even if the result would be death?
* * *
A. If it is on the death, I couldn't honestly
say that I could. You know, the death penalty is, like I said,
basically a problem.
* * *
A. Yeah, I think the death penalty would always
have an influence on what my decision was, and I think it would be
unfair to say I could do it, honestly, knowing that there's the
Q. So, you are saying, no, you could not?
A. Yeah, I'm saying-or no, I'm saying, no, I
Viewing the voir dire testimony as a whole, we
find the trial court did not abuse its discretion in granting the
State's challenge for cause. Ross vacillated in his statements
about his ability to follow the law and obey the instructions,
then ultimately testified that he could not set aside his beliefs
and answer the special issues in such a way as to impose the death
penalty. We thus defer to the trial court's discretion in
determining that Ross's beliefs regarding the death penalty would
have prevented or substantially impaired the performance of his
duties as a juror in accordance with his instructions and his oath.
Point of error three is overruled.
PHOTOGRAPHS AND AUTOPSY REPORTS
In points of error four and five, the appellant
claims that the trial court erroneously admitted evidence
pertaining to Laura Boren Thomas and Andre Lee Boren, in violation
of Rules 401, 402, and 403 of the Texas Rules of Evidence.
specifically complains about crime-scene photographs (State's
Exhibits 12 - 15 and 19 - 21), autopsy photographs (State's
Exhibits 54 - 60), and autopsy reports (State's Exhibits 51 - 52).
He argues that this evidence was irrelevant to the case involving
the death of Leyha Marie Hughes, the only victim alleged in the
(28) He also
contends that the probative value of the evidence was
substantially outweighed by its prejudicial effect and that the
only purpose for the photos and reports was to "inflame and
prejudice the jury" against the appellant so jurors would vote for
death rather than life imprisonment.
Relevance of Photographs and Autopsy
Reports-Rules 401 and 402
Rule 401 defines "relevant evidence" as "evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." Relevant
evidence is generally admissible.
The appellant's sanity was the main contested
issue at trial. He did not dispute that he killed the victim, but
he argued that, as a result of severe mental disease or defect, he
did not know his conduct was wrong.
photographs and autopsy reports were relevant to the jury's
understanding of the appellant's mental state at the time of the
offense. Because Laura and Andre were killed during the same
criminal episode as Leyha, the information regarding their deaths
goes to the issue of the appellant's sanity at the time of Leyha's
death. Additionally, the appellant's statements to police were
further evidence of his mental state at the time of the crime, and
the photographs and autopsy reports pertaining to Laura and Andre
corroborated those statements. Thus, they were relevant to the
issue of the appellant's sanity.
The appellant next argues that even if the
photographs and autopsy reports were relevant, they were unfairly
prejudicial and therefore inadmissible under Rule 403. Rule 403
Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of
"Rule 403 favors the admission of relevant
evidence and carries a presumption that relevant evidence will be
more probative than prejudicial."
admissibility of evidence under Rule 403 is within the sound
discretion of the trial judge.
(32) We will
reverse the trial judge's decision only for an abuse of discretion,
that is, only if the decision falls outside the zone of reasonable
A Rule 403 analysis may include, but is not
limited to, consideration of the following factors: (1) the
probative value of the evidence, (2) the potential of the evidence
to impress the jury in some irrational, yet indelible, way, (3)
the time the proponent needs to develop the evidence, and (4) the
proponent's need for the evidence.
Crime-Scene Photographs and Rule 403
With regard to the admissibility of photographs
in particular, a court may consider many additional factors in
determining whether they are unfairly prejudicial. These include:
the number of exhibits offered, their gruesomeness, their detail,
their size, whether they are color or black and white, whether
they are close-up, whether the body depicted is clothed or naked,
the availability of other means of proof, and other circumstances
unique to the individual case.
(35) "It is also
relevant for the trial court to consider whether the body as
photographed has been altered since the crime in some way (e.g.,
by autopsy) that might enhance its gruesomeness to the defendant's
(36) "If there are
elements of a photograph that are genuinely helpful to the jury in
making its decision, the photograph is inadmissible only if the
emotional and prejudicial aspects substantially outweigh the
State's Exhibits 12 through 15 and 19 through
21 were all photographs taken at the crime scene. The exhibits
appear in the record as 8" by 10" black-and-white copies of the
original color photographs.
Exhibit 12 is a photograph of the living room area in which
Laura's naked body is visible from the neck down. State's Exhibit
13 is a photograph depicting Laura's entire body lying face-up on
the living room floor. State's Exhibit 14 shows Laura from the
waist up and offers a closer view of her chest injury. State's
Exhibit 15 depicts the hallway, and Laura's head and upper chest
are visible at the bottom of the photograph. State's Exhibit 19
depicts Andre lying face-up in bed, and State's Exhibit 20 gives a
closer view of his chest injury by showing him from the chest up.
A bloody organ lying slightly above his head is visible in both
photographs, and State's Exhibit 21 is a picture of the organ
These photographs were admitted during the
testimony of Ranger Bennie as he described for the jury what he
found when he arrived at the crime scene to investigate. The
photographs corroborated his testimony and assisted the jury in
visualizing the crime scene. And because they depict the unaltered
results of the appellant's actions during the murders, the
photographs are highly probative and powerful evidence of the
contested issue of the appellant's sanity at the time of the
offense. The photographs also corroborated some of the appellant's
statements to the police, which were key evidence of his mental
state at the time of the crime.
Furthermore, there was little danger that the
photographs would have influenced the jury in an irrational way.
Although the photographs are gruesome, they portray nothing more
than the gruesomeness of the injuries caused by the appellant
(39) The shocking
and gruesome nature of the photographs undoubtedly prompted the
appellant to complain about "unfair prejudice" and "inflaming the
emotions of the jurors."
(40) But those very
qualities also give the photographs their probative force in
assisting the jury to decide whether the appellant was insane when
he committed the offense. The strong probative value of the crime-scene
photographs, therefore, was not substantially outweighed by the
danger of unfair prejudice.
Although the appellant's argument centered on
unfair prejudice, in summing up the discussion in his brief, he
referred to the photographs as "cumulative," as well as
"prejudicial." Although he did not elaborate as to his meaning,
the appellant indicated in a Rule 403 objection to all the crime-scene
photographs at trial that they were cumulative of the videotape
made of the crime scene. This court has said that a still
photograph and a videotape are not cumulative of each other.
(41) A photograph
allows the jury to examine a scene in detail, while a videotape
provides a more panoramic depiction of the evidence.
photographs were highly probative of the issue of the appellant's
sanity, and their probative value was not substantially outweighed
by their tendency to prolong the trial to the defendant's
Autopsy Photographs and Rule 403
"[A]utopsy photographs are admissible unless
they depict mutilation of the victim caused by the autopsy itself."
(44) A change of
minor significance caused by the autopsy will not preclude
admission of a photograph if its disturbing nature is primarily
due to injuries caused by the appellant.
State's Exhibits 54 through 60 are autopsy
photographs taken after the bodies were cleaned. Laura's chest
injury is visible in State's Exhibit 54, which is taken from the
waist up. State's Exhibit 55 shows Laura from the waist down.
State's Exhibit 56 depicts cuts on Laura's forearm. State's
Exhibit 57 contains four smaller photographs, with two showing
cuts on Laura's forearm, and two showing her chest wound, both
open and closed. State's Exhibit 58 is a close-up view of Laura's
open chest wound. In State's Exhibit 59, Andre is lying face-up
and his chest wound is visible. State's Exhibit 60 offers a close-up
view of Andre's chest wound.
The autopsy photographs were introduced during
the testimony of medical examiner Dr. Sheila Spotswood. She used
the photographs to describe to the jury Laura's and Andre's
injuries and how the appellant had likely caused them, as well as
to communicate to the jury her conclusions regarding the causes of
death. Spotswood testified that Andre's injuries were very similar
to Leyha's. She also told the jury that three medical examiners
worked together on the three autopsies, which were performed side-by-side
As with the crime-scene photographs, the
autopsy photographs of Laura and Andre were probative of the
appellant's sanity at the time of Leyha's death. They helped the
jury understand the injuries Laura and Andre sustained and the
appellant's probable actions while inflicting them. Moreover, the
prejudicial effect on the jury, if any, was likely minimal. The
only change to the bodies that can be attributed to the autopsies
is that the bodies have been cleaned. These changes are of minor
significance; any potential prejudice is due to injuries the
appellant caused. In fact, as a result of the autopsies, these
photographs are less gruesome than those taken at the crime-scene.
Their probative value was not substantially outweighed by the
danger of unfair prejudice.
Autopsy Reports and Rule 403
State's Exhibits 51 and 52 are the autopsy
reports for Laura and Andre, respectively. The reports were
introduced during Spotswood's testimony, and they describe the
findings of the autopsies in greater detail than the medical
examiner's testimony. Although the appellant objected to the
admission of the reports, he did not object to Spotswood's
testimony regarding the results of Laura's and Andre's autopsies.
The reports, like the photographs, were probative of a contested
matter, that is, the appellant's sanity. Their ability to
irrationally influence the jury's decision was minimal, and they
contained little that could be considered inflammatory. The
probative value of the autopsy reports was not substantially
outweighed by the danger of unfair prejudice.
The trial court did not abuse its discretion in
admitting the evidence regarding Laura Boren Thomas and Andre Lee
Boren. The evidence was relevant, and its probative value was not
substantially outweighed by the danger of unfair prejudice. Points
of error four and five are overruled.
STATE'S EXPERT WITNESS
In point of error six, the appellant complains
that the trial court erred in overruling his objection to the
State's presenting, during its case in chief, the testimony of Dr.
Victor Scarano on the issue of the appellant's sanity at the time
of the offense. He argues that the State should not have been
permitted to offer any evidence on the issue of insanity until
after the defense had presented its own evidence on that issue.
The State counters that the issue was raised through the cross-examination
of its witnesses during its case in chief, and that nothing barred
the State from presenting rebuttal evidence once the issue had
been raised. At trial, both the appellant and the State raised
similar arguments. After the trial court overruled the appellant's
objection, Dr. Scarano testified that, in his opinion, the
appellant did not meet the legal definition of insanity.
This court has said that a defendant's theory
of defense may be placed in issue, so as to permit admission of
rebuttal evidence, during the State's case in chief.
(46) In Powell,
the defensive theory had been presented during the appellant's
cross-examination of the State's complaining witness.
(47) Although the
instant case, unlike Powell, involves an affirmative
(48) we see no
reason for this distinction to bar the insanity defense from being
raised during the State's case in chief under the proper
circumstances. The critical distinction is the burden on the
defense to prove insanity by a preponderance of evidence, and the
burden in no way changes were this rule to be applied here.
The question in the instant case is whether the
defense placed the appellant's sanity in issue during the State's
case in chief, so as to permit Dr. Scarano's testimony. From the
outset of the trial, the appellant's intention to use the insanity
defense was clear. He pleaded not guilty by reason of insanity.
During his opening statement, defense counsel said, "This case is
about [the appellant's] journey into the world of madness and
about his insanity at the time that these wicked crimes were
committed." Defense counsel plainly focused cross-examination of
almost every one of the State's witnesses on the appellant's
mental state. For instance, defense counsel asked one police
officer about the appellant's statements that his actions were the
will of God. Defense counsel asked one of the appellant's friends
about her prior statements that "if he were in his right mind he
never would have done that," and "he couldn't have known what he
was doing," as well as her discussion with the prosecutor about
the "definition of crazy" and "whether or not [the appellant] was
crazy or knew the difference between right and wrong." Defense
counsel also asked Leyha's father, who had been living with the
three victims at the time of the murders and who knew the
appellant, whether he recalled "repeatedly telling [police] that
Andre Thomas was crazy, unstable, everyone knew him and his entire
family was crazy."
The appellant clearly raised his defensive
theory of insanity before the State called Scarano to testify. The
trial court did not abuse its discretion in admitting Scarano's
testimony during the State's case in chief. Point of error six is
In point of error seven, the appellant
complains that the trial court erred by proceeding to trial
without first making a judicial determination that he had regained
competency after earlier having been found incompetent to stand
(49) He submits,
therefore, that his conviction and sentence should be reversed and
a new trial held, before which his competency should be determined.
In April 2004, defense counsel and the
prosecutor both filed motions requesting that the appellant be
examined to determine his competency to stand trial. The trial
court ordered two psychologists to examine and evaluate the
appellant for competency, both of whom subsequently filed reports
determining the appellant to be incompetent to stand trial. On
June 16, 2004, the trial court, having considered the
psychological reports, found the appellant to be incompetent to
stand trial and ordered him to be committed to the Texas
Department of Mental Health and Mental Retardation-Vernon Campus
for restoration to competency. In late July 2004, the appellant
was returned to Grayson County. A report that the appellant was
competent was filed by Dr. Joseph Black, Chief Psychiatrist for
the Competency Program at the Vernon Campus, with copies for both
parties. At trial in February 2005, after the State rested,
defense counsel moved for a directed verdict because the trial
court had proceeded to trial without determining that the
appellant's competency had been restored.
(50) The trial
court overruled the appellant's motion for a directed verdict, and
found, pursuant to Article 46B.084 and after having taken judicial
notice of Dr. Black's report, that the appellant was competent to
When a trial court determines that a defendant
is incompetent to stand trial, it may commit the defendant to a
mental-health facility "for further examination and treatment
toward the specific objective of attaining competency to stand
(51) When "the head
of the facility" is of the opinion that the defendant has attained
competency, he or she files a report with the court, with copies
provided to both parties, and the defendant is returned to the
46B.084 provides for proceedings upon the return of the defendant
to the trial court:
(a) On the return of a defendant to the
committing court, the court shall make a determination with regard
to the defendant's competency to stand trial. The court may make
the determination based solely on the report filed under Article
46B.080(b), unless any party objects in writing or in open court
to the findings of the report not later than the 15th day after
the date on which the report is served on the parties.
(b) If a party objects under Subsection (a),
the issue shall be set for a hearing. The hearing is before the
court, except that on motion by the defendant, the defense counsel,
the prosecuting attorney, or the court, the hearing shall be held
before a jury.
* * *
(d) If the defendant is found competent to
stand trial, criminal proceedings against the defendant may be
In Schaffer v. State, the trial court
had failed to make a judicial determination of competency to stand
trial after an earlier finding of incompetency.
(54) This court
abated the appeal to allow the trial court to make a retrospective
determination of competency.
(55) In the instant
case, the record reflects that neither the appellant nor the State
had objected, either in writing or in open court, to the findings
of Dr. Black's report. The trial court, therefore, was authorized
under Article 46B.084(a) to make a determination on competency
based solely on the report. Furthermore, as the absence of a
finding of competency in Schaffer did not in any way
render that trial invalid, neither here did a finding of
competency made during the trial, albeit after the trial had
already begun, render the proceedings invalid. The better practice
is for the trial court to make the determination prior to trial.
because a judicial determination of competency has been made, we
decline to abate this appeal.
The appellant further contends that because he
had previously been adjudicated incompetent to stand trial, the
State had the burden to establish, beyond a reasonable doubt, that
the appellant had regained competency. He cites our decision in
Manning v. State for support.
however, is distinguishable because, there, a pretrial competency
hearing was held before a jury, and the issue was whether the jury
instructions were correct in requiring the State to prove
competency by a preponderance of the evidence.
(58) In the instant
case, no pretrial hearing was held. And defense counsel
specifically told the trial court he was not claiming the
appellant was not competent to stand trial. Without an objection
or a claim of incompetency, the trial court was authorized to make
the determination of competency as directed by Art 46B.084(a).
Point of error seven is overruled.
REASONABLE DOUBT INSTRUCTION
In point of error eight, the appellant
complains that the trial court erroneously refused his request for
a Geesa instruction defining the term "reasonable doubt."
(60) He submits
that this violated his equal-protection and due-process rights
under the Texas and United States constitutions, and he urges this
court to require that jury instructions contain a definition of
the term in death-penalty cases.
At trial, the appellant requested that the jury
be instructed as follows:
Reasonable doubt is a doubt based upon reason
and common sense after a careful and impartial consideration of
all of the evidence in the case-proof beyond a reasonable doubt.
Therefore, it is proof in such a convincing character you would be
willing to rely and act upon it without hesitation in the most
important of your own affairs.
In Paulson v. State, we overruled the
portion of Geesa that required a trial court to instruct
the jury on the definition of "beyond a reasonable doubt."
(61) We quoted the
Supreme Court's holding in Victor v. Nebraska that
"'the Constitution neither prohibits trial courts from
defining reasonable doubt nor requires them to do so as a matter
(62) And we stated
that "the better practice is to give no definition of reasonable
doubt at all to the jury."
(63) We decline the
appellant's invitation to reconsider our decision in Paulson.
Point of error eight is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In point of error nine, the appellant alleges
that he was denied his right to the effective assistance of
counsel to which he was entitled under the Sixth Amendment;
Article I, Section 10 of the Texas Constitution; and Texas Code of
Criminal Procedure Articles 1.05 and 1.051. He alleges five
instances of ineffective assistance.
Claims of ineffective assistance of counsel are
analyzed using the standard articulated by the United States
Supreme Court in Strickland v. Washington to determine "whether
counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result."
Hernandez v. State, this court adopted the Strickland
standard for ineffective-assistance cases, stating that
neither Texas' constitution nor its statutory provisions
established a more protective standard than that set forth in
To prevail on these claims, the appellant must
show, first, that counsel's performance was deficient.
(66) That is, he
must prove, by a preponderance of the evidence, that "counsel's
representation fell below an objective standard of reasonableness,"
as measured against "prevailing professional norms."
(67) Second, the
appellant must prove that this deficient performance prejudiced
(68) This requires
showing that there is "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome."
Appellate review of counsel's performance is
(70) The appellant
must overcome the "strong presumption that counsel's conduct [fell]
within the wide range of reasonable professional assistance" and
"'might be considered sound trial strategy.'"
(71) In order to
overcome this presumption, the appellant must identify specific
acts or omissions of counsel.
allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
We have noted in the past that a reviewing
court will rarely be able to fairly assess a claim of ineffective
assistance when raised on direct appeal.
(74) This is so
because, typically, the record on direct appeal fails to reflect
the rationale or motivation behind trial counsel's actions or
(75) Under these
circumstances, therefore, the appellant ordinarily will be unable
to meet the first prong of the Strickland test, "as the
reasonableness of counsel's choices and motivations during trial
can be proven deficient only through facts that do not normally
appear in the appellate record."
(76) These claims
are more effectively raised through an application for a writ of
habeas corpus, where counsel may be afforded an opportunity to
explain the reasons for his or her actions or omissions.
Failure to Seek Hearings and Rulings on
The appellant claims that counsel filed
numerous pretrial motions, but failed to have them heard or ruled
upon by the trial court, "as evidenced by the unsigned orders." As
a result, he argues, "nothing was preserved for appellate review."
With few exceptions, almost all of the motions
the appellant cites were filed under the cause number for a
companion capital-murder case pending against him, relating to the
deaths of Laura Boren Thomas and Andre Lee Boren. Copies of these
motions, with the accompanying unsigned orders, were filed for the
record in the instant case. In July, 2006, an agreement was
reached and an order signed in the companion case permitting all
pretrial motions and associated hearings and rulings in that cause
to apply to the instant case on appeal. The appellant is mistaken
as to the disposition of at least two of the motions he cites. The
first, "Motion for Defendant to be Restrained by Least Restrictive
Means," was filed under both cases. The motion was taken up by the
trial court immediately prior to voir dire and discussed on the
record. Defense counsel clarified that he was not requesting that
the appellant be restrained, but only that if he were to be
restrained, as the trial court had intended, the restraint be the
least restrictive possible. After hearing from both defense
counsel and the prosecutor, the trial judge decided not to
restrain the appellant.
The second motion, "Motion to Require State to
Reveal Agreement or Admonition," is a copy of a motion from the
companion case, filed for the record in the instant case.
(78) The subject of
this motion was also discussed on the record. Prior to the jury
being sworn in, the following exchange occurred:
[DEFENSE COUNSEL]: We had also filed a motion
requesting that the State provide us any information regarding any
deals or admonitions made with any of their witnesses.
[TRIAL COURT]: It is my understanding they have
[DEFENSE COUNSEL]: That's correct. They
provided us with that information.
Contrary to the appellant's claim, the record
reflects that counsel ensured that these two motions were heard,
with results favorable to the appellant.
As to the remaining motions, the record before
us is inadequate for evaluation of counsel's performance. Although
the trial court signed the order that required all pretrial
motions and rulings in the companion case to be made part of the
appellate record here, we see no evidence of the applicable trial
court rulings in the record. The companion case complicates the
issue because, clearly, discussions took place and decisions were
made concerning both cases jointly, for which we have no record.
The record indicates that the substance of at least some of the
motions might have been the subject of off-the-record agreements
between counsel and the prosecutor, and consequently these motions
may have been disposed of without the need for a signed court
order. For example, defense counsel made the following comment
during a pretrial hearing in September, 2004:
[DEFENSE COUNSEL]: There are a number-a good
number of pretrial motions that we will be filing. . . . I think a
good many of them [the prosecutor] and I may be able to agree on,
and we will certainly get together and do that. I think he'd be
willing to do that.
Without a fully developed record, we can only
speculate as to counsel's strategy. Further, the appellant has
wholly failed to explain how he was prejudiced by any failure to
pursue rulings and hearings on each of these motions. The
appellant has failed to meet his burden to demonstrate deficient
performance and prejudice.
Failure to Request Post-Commitment
The appellant complains that counsel failed to
request a competency hearing, before the trial court or a jury,
following his return to the trial court after his release from the
state hospital at Vernon.
We can only speculate as to counsel's
motivations. The psychological report from the state hospital,
which was submitted to the trial court upon the appellant's return
to Grayson County, found the appellant to be competent to stand
trial. It also included a diagnosis of "malingering," explaining:
He has clearly exaggerated symptoms that he
might be experiencing, and may have even fabricated some symptoms
of psychosis. It is possible that he may engage in gestures or
behaviors, including possibly those involving self-harm, in a bid
to appear more seriously mentally ill than he is, and to avoid the
consequences of the current charges he faces.
It is possible that counsel anticipated that a
competency challenge would reveal details of this sort that could
damage the appellant's insanity defense to the extent that the
harm would outweigh any potential benefit.
The appellant has provided no explanation for
why counsel's representation was deficient and has failed to
overcome the presumption that counsel's actions were sound trial
strategy. He has failed to show a reasonable probability that the
result of the proceeding would have been different if counsel had
requested a competency hearing after the appellant's release from
the state hospital.
Failure to Effectively Present Insanity
The appellant complains that "counsel failed to
request and obtain evaluations and opinions from Dr. James
Harrison and Dr. Robin McGirk on the issue of appellant's sanity
at the time the offense was committed." The trial court appointed
Harrison to examine the appellant for the sole purpose of
determining his competency to stand trial. Dr. McGirk met with the
appellant several times in his capacity as the jail psychologist;
he was not hired by either the State or the defense. Both were
called to testify by the defense. Dr. Harrison believed that the
appellant was schizophrenic, but he testified that he did not have
enough information to render an opinion regarding the appellant's
sanity at the time of the offense. Dr. McGirk also diagnosed the
appellant as schizophrenic, but declined to give an opinion as to
the appellant's sanity at the time of the offense.
The appellant has not shown how counsel's
representation was deficient. Article 46.03, Sec. 3(g) permits the
same expert to be appointed to evaluate competency and insanity,
provided that the expert files separate reports. But counsel was
by no means required or expected to solicit the same expert's
opinion, in this case Dr. Harrison's, regarding both issues. The
appellant also overlooks the fact that, in addition to obtaining
approval for the appointment of Dr. Edward Gripon, counsel
requested and was granted the services of another psychologist,
Dr. Richard Rogers, to assist the appellant in preparing his
insanity defense. Dr. Rogers evaluated the appellant and prepared
a report but was never called to testify, for reasons that the
record does not reveal.
The appellant has also failed to prove how
counsel's performance prejudiced his defense. There is nothing to
indicate that Dr. Harrison or Dr. McGirk would have testified to
the appellant's legal insanity at the time of the offense had they
been appointed specifically for the purpose of such an evaluation.
In fact, Dr. Harrison testified under cross-examination that
people with schizophrenia could still be legally sane.
The appellant further complains about counsel's
performance with regard to Dr. Gripon. The trial court had
appointed Dr. Gripon, in response to a defense motion, for the
express purpose of assisting the appellant in the presentation of
his insanity defense. The appellant alleges that counsel failed to
elicit an opinion from Dr. Gripon, during his testimony, that the
appellant was insane at the time of the offense. The record
reflects otherwise. When asked his opinion "about what the mental
status of [the appellant] was on the morning of March 27th, 2004,"
Dr. Gripon replied:
I believe that he was operating under the
effect of a psychotic illness at that time, specifically
schizophrenia, in which he believed that he was doing what was
directed by or that he was at least operating under the direction
of God in fighting these demons, saving the world; that that was
all based upon a psychosis, and that based upon that psychosis, he
did not know that that conduct at that time was wrong.
The appellant has failed to meet his burden to
demonstrate deficient performance and prejudice. He has failed to
show a reasonable probability that the result of the proceeding
would have been different if counsel had also requested sanity
evaluations from Dr. Harrison and Dr. McGirk.
Failure to Effectively Present Expert
Testimony at Punishment
The appellant alleges that counsel failed to
give defense expert Dr. Kate Allen sufficient time and information
to form and testify to her expert opinion about the appellant's
sanity at the time of the offense. The trial court granted defense
counsel's requested appointment of Dr. Allen, a clinical social
worker and family sociologist, as an expert witness on the
punishment issue of future dangerousness. Dr. Allen testified that
she interviewed the appellant and reviewed "documents that were
relevant to looking at his childhood, his development, and his
functioning." She testified that the appellant suffered from
schizophrenia and that his mental illness was the "driving force"
when he committed the instant offense. She opined that proper
treatment and medication would reduce the appellant's risk of
The appellant seems to argue that his trial
counsel were ineffective in failing to obtain the services of Dr.
Allen sooner than they did, so that she could have testified, not
just as a punishment expert, but also as a guilt-phase expert on
the issue of insanity. The order to appoint Dr. Allen was signed
on February 23, 2005, and the trial began on February 25, 2005.
Dr. Allen testified on March 10. Had trial counsel retained her
services earlier, the appellant argues, she could have provided
effective testimony on the issue of his insanity.
Due process entitles a capital defendant to
expert assistance in developing a colorable claim of insanity.
(80) Counsel for
the appellant had retained the services of two mental-health
experts for this very purpose. The appellant does not claim that
those two experts were unqualified or inadequately prepared to
help him develop his insanity claim. Nor does he claim that Dr.
Allen possessed any incremental expertise necessary to his
insanity defense that his other experts did not. That it now
appears possible in hindsight that trial counsel could have
supplemented the input of his experts on the issue of insanity
with Dr. Allen's testimony, had they begun to prepare her sooner,
does not mean they performed in a constitutionally deficient
manner in failing to do so.
It is possible to interpret the appellant's
claim to be, alternatively, that his trial counsel were
ineffective for failing to retain Dr. Allen's services earlier so
that she could have rendered an expert opinion at the punishment
phase of trial with respect to the appellant's insanity as it bore
particularly upon the punishment-phase issues. But it is apparent
from Dr. Allen's punishment-phase testimony that she was
sufficiently familiar with the nature and effects of the
appellant's mental illness to testify effectively about its
significance as a mitigating factor and its ameliorating impact
upon his potential for future dangerousness. The jury had already
rejected the appellant's insanity defense, and additional
testimony about the issue of insanity, per se, could not
have materially improved upon her punishment phase presentation.
The appellant has failed to establish that his trial counsel were
ineffective on this account.
The appellant has failed to show both that
counsel's performance was deficient and that the lack of Dr.
Allen's expert opinion on the insanity issue prejudiced him. He
has failed to show a reasonable probability that the result of the
proceeding would have been different but for counsel's alleged
Point of error nine is overruled.
In point of error ten, the appellant claims
that the trial court erroneously denied his motion for new trial
based on jury misconduct. He alleges that while the jurors were
visiting with the trial judge and attorneys after punishment was
assessed, they said they had discussed, during deliberations,
wanting to hear true remorse from the appellant. The appellant
argues that, because he had a constitutional right not to testify
and that decision could not be used by a jury as evidence of his
guilt, Texas Rule of Appellate Procedure 21.3 entitles him to a
(81) However, in
the hearing on the appellant's motion for new trial, Texas Rule of
Evidence 606(b) operated to prevent the admission of jurors'
testimony about their deliberations, and the motion was denied.
The appellant further urges this court to
consider the constitutionality of Rule 606(b) as applied to this
case. "Otherwise, jurors in other future death penalty cases will
be free to continue to violate the Constitution by considering a
defendant's failure to testify and show true remorse, without such
a defendant having any way to develop and offer evidence of such
jury misconduct." Several courts have upheld the constitutionality
of Texas Rule 606(b) and the analogous federal provision. The
United States Supreme Court has rejected a claim that Federal Rule
606(b) violated the Sixth Amendment guarantee to a fair jury trial.
(82) The Texas
Supreme Court has found that Texas Rule 606(b) violated neither
federal due-process principles nor the right to a fair trial under
the Texas Constitution.
(83) And several
Texas courts of appeals have upheld the Rule's constitutionality
under provisions of both the United States and Texas constitutions.
At the hearing on the motion for new trial,
defense counsel was prepared to call witnesses to testify to the
alleged misconduct. The State, anticipating that the appellant
would call jurors, objected under Rule 606(b), which prohibits
juror testimony on matters concerning jury deliberations or
affecting a juror's decisionmaking. The trial court sustained the
Counsel also attempted to introduce into
evidence a taped interview of one of the jurors, which the motion
for new trial had purported to include comments regarding "the
jury's desire to hear an expression of true remorse 'presumably
from the Defendant.'" At the hearing, counsel explained that the
tape did not say what he had previously understood it to say, and
therefore offered the tape only for purposes of the appellate
record. The prosecutor responded, "I think that the position of
the defense is that this tape they referred to was an interview by
Channel 12 of one of the jurors, Mr. Ulmer, and he talks about his
jury service, the things that he believed were important in the
evidence. That is not admissible." The trial court sustained the
State's objection to the tape's being made part of the record.
Over the State's objection, the trial court
allowed defense counsel to make a proffer of evidence in support
of his motion. Defense counsel stated:
Your Honor, it's my belief, if we were to call
the foreperson of the jury in this style and cause, Kyle McCoy,
that he would testify that he recalled after jury deliberations in
this case, and after answering the special issues to the detriment
of the defendant which resulted in the Court imposing a death
sentence on him, that he wanted the defense to give something to
the jurors to help them hang their hat on, and that one of these
things would have been the expression of true remorse.
The record will reflect whatever it reflects,
as far as the testimony that was given, but it's my recollection
that Nurse Natalie Sims that very morning testified that in
October of 2003 [sic], she had made a memo and said that
Mr. Thomas had expressed true remorse. In fairness, and for the
Court's record, I think her response to Mr. Ashmore's questions,
he said there was some things that occurred or happened after that
time that made her question her judgment as to whether Mr. Thomas
had expressed true remorse.
Additionally, I think the record will show, or
the testimony would show, that- the record, I suppose, in this
case would show that there were several mental health experts that
had testified that Mr. Thomas, in their interviews with him, would
have said that he regretted what he did and that he was sorry for
what he had done.
With all of that in mind, Your Honor, the
implication is that the jurors, as they sat there, or at least Mr.
McCoy as he sat there, would have required the defendant to take
the stand in violation of his constitutional rights to say that he
was sorry that he had done this. We think that that ended up with
the jurors not following the Court's instructions. We think that's
of constitutional magnitude, and we would ask the Court to grant
us a new trial based on that, and I suppose I can address the
other issues, but that's what the live testimony I think would
have been had we been allowed to present that.
Rule 606 outlines circumstances under which
jurors may and may not testify as witnesses. Rule 606(b), entitled
"Inquiry Into Validity of Verdict or Indictment," provides:
Upon an inquiry into the validity of a verdict
or indictment, a juror may not testify as to any matter or
statement occurring during the jury's deliberations, or to the
effect of anything on any juror's mind or emotions or mental
processes, as influencing any juror's assent to or dissent from
the verdict or indictment. Nor may a juror's affidavit or any
statement by a juror concerning any matter about which the juror
would be precluded from testifying be admitted in evidence for any
of these purposes. However, a juror may testify: (1) whether any
outside influence was improperly brought to bear upon any juror;
or (2) to rebut a claim that the juror was not qualified to serve.
The appellant does not assert that an outside
influence was improperly brought to bear upon any juror, nor does
he rebut a claim that a juror was not qualified to serve. He
essentially argues that at least one juror considered his failure
to testify when deciding whether to convict him. Under Rule
606(b), jurors are prohibited from testifying on this basis.
(85) The trial
court did not abuse its discretion in denying the appellant's
motion for a new trial. The application of Rule 606(b) did not
violate the appellant's constitutional rights. Point of error ten
We affirm the judgment of the trial court.
Delivered October 8, 2008.
Do not publish.
1. See Penal Code §
2. See Penal Code §
3. See Act of June
16, 1991, 72nd Leg., R.S., ch. 838, § 1, 1991 Tex. Gen. Laws 2898,
2899-900 (amended 2005) (current version at Code Crim. Proc. art.
37.071, § 2(g)). Unless otherwise indicated, all references to
Articles refer to the Code of Criminal Procedure.
4. See Code Crim.
Proc. art. 37.071, § 2(h).
5. 384 U.S. 436 (1966).
6. The appellant also
alleges violations of Articles 1.05, 38.21, 38.22, and 38.23 of
the Code of Criminal Procedure; the Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution; and
Article I, Sections 9 and 10, of the Texas Constitution. However,
the Miranda waiver issue was the crux of the appellant's
argument at the suppression hearing. When defense counsel was
specifically asked to clarify the grounds of the suppression
motion, she stated on the record:
Basically, Your Honor. It is the Defense's
position that at the time he made the statement, that Andre Thomas
made statements to law enforcement or jail personnel or
psychologist or psychiatrist, before he was committed to Vernon,
that he was incompetent to either waive his rights or knowingly
and intelligently make those statements. And we are asking that
those statements to be suppressed.
Likewise, the appellant's brief focuses on the
Miranda waiver issue. His brief presents no separate
argument nor does it cite authority to support the other
allegations. Therefore, we consider only the Miranda
issue here. See Salazar v. State, 38 S.W.3d 141, 147 (Tex.
Cr. App. 2001); Tex. R. App. P. 38.1(h).
7. Colorado v. Spring,
479 U.S. 564, 573 (1987) (quoting Moran v. Burbine,
475 U.S. 412, 421 (1986)).
10. Id., at 574.
12. Colorado v.
Connelly, 479 US 157, 170 (1986) (quoting Oregon v.
Elstad, 470 U.S. 298, 305 (1985)).
13. In fact, at the
suppression hearing, the appellant's counsel said, "[W]e are not
disputing that this was a voluntary waiver. In other words, we are
not claiming there was any coercion or duress or threats made by
14. Ripkowski v. State,
61 S.W.3d 378, 381 (Tex. Cr. App. 2001) (citing Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Cr. App. 1997)).
15. Id., at
16. Wyatt v. State,
23 S.W.3d 18, 23 (Tex. Cr. App. 2000).
17. The appellant's point
of error states: The trial court erred in granting the State's
challenge for cause, over appellant's objection, to prospective
juror #43, Michael D. Ross, regarding his inability to ever vote
for the death penalty.
18. See Code Crim.
Proc. art. 35.16(b); Witherspoon v. Illinois, 391 U.S.
19. The applicable
provisions of Article 35.16(b) state:
A challenge for cause may be made by the State
for any of the following reasons:
1. That the juror has conscientious scruples in
regard to the infliction of the punishment of death for crime, in
a capital case, where the State is seeking the death penalty;
. . . .
3. That he has a bias or prejudice against any
phase of the law upon which the State is entitled to rely for
conviction or punishment.
20. Feldman v. State,
71 S.W.3d 738, 749 (Tex. Cr. App. 2002).
21. Wainwright v. Witt,
469 U.S. 412, 424 (1985) (quoting Adams v. Texas,
448 U.S. 38, 45 (1980)); Feldman, 71 S.W.3d, at 749.
391 U.S., at 522.
23. Colburn v. State,
966 S.W.2d 511, 517 (Tex. Cr. App. 1998); Riley v. State,
889 S.W.2d 290, 298-99 (Tex. Cr. App. 1993) (op. on reh'g).
24. Colburn, 966
S.W.2d, at 517.
accord Granados v. State, 85 S.W.3d 217, 231 (Tex. Cr. App.
26. Feldman, 71
S.W.3d, at 749; King v. State, 29 S.W.3d 556, 568 (Tex.
Cr. App. 2000); Colburn, 966 S.W.2d, at 517.
27. The appellant's points
of error state:
Point of Error IV: The trial court erred in
denying appellant's motion in limine and trial objection regarding
photographs of alleged murder victims other than Leyha Hughes.
Point of Error V: The trial court erred in
denying appellant's motion and trial objection to prohibit
introduction of autopsy information regarding alleged murder
victims other than Leyha Hughes.
28. The indictment alleged
that the appellant intentionally or knowingly caused the death of
Leyha Marie Hughes, an individual younger than six years of age.
29. Rule of Evidence 402
states: "All relevant evidence is admissible, except as otherwise
provided by Constitution, by statute, by these rules, or by other
rules prescribed pursuant to statutory authority. Evidence which
is not relevant is inadmissible."
30. See Penal Code
31. Hayes v. State,
85 S.W.3d 809, 815 (Tex. Cr. App. 2002).
32. Prible v. State,
175 S.W.3d 724, 734 (Tex. Cr. App. 2005); Rojas v. State,
986 S.W.2d 241, 249 (Tex. Cr. App. 1998); Sonnier v. State,
913 S.W.2d 511, 518 (Tex. Cr. App. 1995).
33. Salazar v. State,
38 S.W.3d 141, 151 (Tex. Cr. App. 2001); Jones v. State,
944 S.W.2d 642, 651 (Tex. Cr. App. 1996).
34. Rodriguez v. State,
203 S.W.3d 837, 843 (Tex. Cr. App. 2006); Prible, 175 S.W.3d,
at 733; Erazo v. State, 144 S.W.3d 487, 489 (Tex. Cr. App.
2004); Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.
Cr. App. 1990).
35. Prible, 175
S.W.3d, at 734; Hayes, 85 S.W.3d, at 815; Santellan
v. State, 939 S.W.2d 155, 172 (Tex. Cr. App. 1997); Long
v. State, 823 S.W.2d 259, 272 (Tex. Cr. App. 1991).
36. Narvaiz v. State,
840 S.W.2d 415, 429 (Tex. Cr. App. 1992).
37. Erazo, 144 S.W.3d,
at 491-92. In Erazo, we noted that this court had often
said that generally, a photograph is admissible if testimony
regarding matters depicted in the photograph is also admissible.
But in clarifying our previous case law regarding the admission of
photographic evidence, we deemed this to be too broad a guide to
be helpful to trial courts.
38. Defense counsel stated
for the record that the photographs introduced at trial were "in
39. See Gallo v. State,
239 S.W.3d 757, 763 (Tex. Cr. App. 2007); Narvaiz, 840
S.W.2d, at 429-30.
40. See Sonnier,
913 S.W.2d, at 519.
41. Ripkowski, 61
S.W.3d 378, 392 (Tex. Cr. App. 2001); Matamoros v. State,
901 S.W.2d 470, 476 (Tex. Cr. App. 1995).
42. Matamoros, 901
S.W.2d, at 476.
43. See Ladd v. State,
3 S.W.3d 547, 569 (Tex. Cr. App. 1999).
44. Santellan, 939
S.W.2d, at 172.
45. Santellan, 939
S.W.2d, at 173; Salazar, 38 S.W.3d, at 151.
46. Powell v. State,
63 S.W.3d 435, 439-40 (Tex. Cr. App. 2001).
47. Id., at
48. See Penal Code
49. The appellant's point
of error claims: The trial court erred in overruling appellant's
motion for directed verdict in that the State never established
beyond a reasonable doubt that appellant was competent to stand
trial after he had been previously adjudicated incompetent.
50. Defense counsel
initially argued that the State failed to prove beyond a
reasonable doubt that the appellant was competent to stand trial.
Upon further questioning by the trial court, defense counsel
clarified that he was not arguing that the appellant was
incompetent. Instead, he complained that "there was a previous
adjudication of incompetency."
51. Code Crim. Proc. art.
46B.073(b); accord, Code Crim. Proc. art. 46B.071.
52. See Act of May
14, 2003, 78th Leg., R.S., ch. 35, § 1, 2003 Tex. Gen. Laws 57, 63
(amended 2007) (current version at Code Crim. Proc. art.
46B.079(b)); id., at 63 (amended 2005, 2007) (current
version at Code Crim. Proc. art. 46B.079(c)); id., at 63
(amended 2005, 2007) (current version at Code Crim. Proc. art.
53. Id., at 64 (amended
2005, 2007) (current version at Code Crim. Proc. art. 46B.084).
54. 583 S.W.2d 627, 631 (Tex.
Cr. App. 1979) (op. on reh'g).
56. See Code Crim.
Proc. art 46B.084(d), supra note 53.
57. 730 S.W.2d 744 (Tex. Cr.
58. Id., at
59. See Code Crim.
Proc. art. 46B.084(a), (b), supra note 53.
60. See Geesa v. State,
820 S.W.2d 154 (Tex. Cr. App. 1991).
61. 28 S.W.3d 570, 573 (Tex.
Cr. App. 2000).
62. Id., at 573 (quoting
Victor v. Nebraska, 511 U.S. 1, 5 (1994)).
63. Id., at 573.
64. 466 U.S. 668, 686
65. 726 S.W.2d 53, 56-57 (Tex.
Cr. App. 1986).
466 U.S., at 687; Bone v. State, 77 S.W.3d 828, 833 (Tex.
Cr. App. 2002).
466 U.S., at 688; accord Mitchell v. State, 68 S.W.3d
640, 642 (Tex. Cr. App. 2002).
466 U.S., at 687; Mitchell, 68 S.W.3d, at 642.
466 U.S., at 694; accord Mallett v. State, 65 S.W.3d 59,
62-63 (Tex. Cr. App. 2001).
466 U.S., at 689; Mata v. State, 226 S.W.3d 425, 428 (Tex.
Cr. App. 2007).
466 U.S., at 689 (quoting Michel v. Louisiana, 350 U.S.
91, 101 (1955)).
72. Id., at 690.
73. Thompson v. State,
9 S.W.3d 808, 813 (Tex. Cr. App. 1999).
74. E.g., Mata,
226 S.W.3d, at 430; Roberts v. State, 220 S.W.3d 521, 533
(Tex. Cr. App. 2007); Goodspeed v. State, 187 S.W.3d 390,
392 (Tex. Cr. App. 2005); Rylander v. State, 101 S.W.3d
107, 110 (Tex. Cr. App. 2003); Bone, 77 S.W.3d, at 833;
Mitchell, 68 S.W.3d, at 642; Thompson, 9 S.W.3d,
75. Mata, 226 S.W.3d,
at 430 ("the record on direct appeal is usually undeveloped and
inadequately reflective of the reasons for defense counsel's
actions at trial."); Bone, 77 S.W.3d, at 833 ("[u]nder
normal circumstances, the record on direct appeal will not be
sufficient to show that counsel's representation was so deficient
and so lacking in tactical or strategic decisionmaking as to
overcome the presumption that counsel's conduct was reasonable and
professional."); Thompson, 9 S.W.3d, at 813-14 ("[i]n the
majority of instances, the record on direct appeal is simply
undeveloped and cannot adequately reflect the failings of trial
76. Mata, 226 S.W.3d,
77. Roberts, 220
S.W.3d, at 533; Rylander, 101 S.W.3d, at 110.
78. A third motion the
appellant cites duplicates this motion in substance. Both were
filed under the companion case.
79. See Act of May
14, 2003, 78th Leg., R.S., ch. 35, § 1, 2003 Tex. Gen. Laws 57, 64
(amended 2005, 2007) (current version at Code Crim. Proc. art.
80. Ake v. Oklahoma,
470 U.S. 68 (1985).
81. Tex. R. App. P. 21.3
82. Tanner v. United
States, 483 U.S. 107, 126-27 (1987).
83. Golden Eagle
Archery, Inc. v. Jackson, 24 S.W.3d 362, 374-75 (Tex. 2000).
Dunklin v. State, 194 S.W.3d 14, 19-20 (Tex. App.--Tyler
2006); White v. State, 181 S.W.3d 514, 524-26 (Tex. App.--Texarkana
2005); Glover v. State, 110 S.W.3d 549, 552 (Tex. App.--Waco
2003); Richardson v. State, 83 S.W.3d 332, 362 (Tex. App.--Corpus
Christi 2002); Sanders v. State, 1 S.W.3d 885, 888 (Tex.
App.--Austin 1999); Hines v. State, 3 S.W.3d 618, 622 (Tex.
85. See Hines, 3
S.W.3d, at 621 (Tex. App.--Texarkana 1999) (stating that under
Rule 606(b), jurors are not competent to testify "that they
decided the verdict by lot, that they decided the case based on
another juror's incorrect statement of the law, or that they
discussed the defendant's failure to testify and used that failure
as a basis for convicting him").
Andre Lee Thomas