Cook, Kerry Max

• Court: Court of Criminal Appeals of Texas
• Decided: September 6, 2022
• Docket: WR-84,565-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-84,565-01

EX PARTE KERRY MAX COOK, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1-77-179 IN THE 114TH DISTRICT COURT SMITH COUNTY

Per curiam. ORDER

On May 10, 2022 Applicant filed a motion for (1) a partial ruling on the uncontested

recommendation to vacate applicant’s conviction, (2) an order compelling compliance with

the Court’s May 20, 2019 order seeking missing documents, and (3) a ruling on the

contested actual innocence claim after the full record is received. We defer judgment on

the conviction and actual innocence claim until the full record is received. However, we

issue this order to the trial court commanding compliance with this Court’s May 20, 2019

order. See Appendix. This Court has not received the items requested from the county of

conviction. 2

Applicant filed this writ in the trial court in September 2015. This Court granted the

habeas court two time-extensions to complete its habeas recommendation. During that

time, Applicant changed his attorney of record. When the habeas court forwarded the writ

to this Court, the record received by this Court was incomplete. Trial transcripts, among

other things, were missing. Numerous attempts by the respective clerks to complete the

record culminated in this Court issuing the May 20, 2019 order. Additionally, since the

2019 order, Applicant now has a new attorney of record. Yet no items missing from the

record have been received from the county of conviction.

Commanding compliance with our 2019 order, we order the trial court: (1) to

determine which of the items listed in the various designations of evidence were actually

filed with the district clerk and should, therefore, be a part of the evidence in the case; (2)

whether these items were forwarded to this Court, or if not, where they are now; and (3) if

the items are not in the file, whether the file can be supplemented with the missing items.

Once these determinations have been made and appropriate findings issued, the clerk

should be ordered to send to this Court in a supplemental record of all items properly in

the record but not previously forwarded to this Court.

The trial court has 14 days from the date of this order to make the determinations

requested, send findings of those determinations to this Court, and have the clerk

supplement the record with any missing items.

IT IS SO ORDERED THIS THE 1ST DAY OF SEPTEMBER, 2022.

Do not publish 3

COOK: WR-84,565-01

Appendix to Order

Affidavits 4. Cheryl Wattley, 6/3/2016 6. David Hanners, 1/11/2016 13. James McCloskey, 6/21/2016 re Mayfield 14. James McCloskey, 6/21/2016 re Wickham 16. John Ament, 6/3/2016 17. Kerry Cook, 1/14/2016 19. Kerry Cook, 6/18/2016

Demonstrative Aid 34. Crime-scene Photos Compared to Excerpts from The Sexual Criminal Files 43. DPS Garland 44. DPS Tyler 45. Tyler PD

Letters 46. Cheryl Wattley to Smith County, 2/16/1999 49. Smith County to Cheryl Wattley, 2/12/1999

Recordings 51. Bea Taylor Interview 52. James Mayfield Interview 4/5/2016

Reports 54. Ranger Dowell, 6/28/1977 55. State’s Chain of Custody, 4/27/2012 57. Tyler PD –Rudolph ID of Mayfield

Statements 59. Collard Response to IAI 5/22/1989 60. Rodney Dykes 8/3/1977

Transcripts 65. Bea Taylor Interview 69. Randy Dykes Grand Jury 10/3/1977 70. Rodney Dykes Grand Jury 10/3/1977

Other • Applicant filed a “Designation of Rebuttal Evidence,” but no evidence was attached. • There is a reference to the “State’s Designation of Written Evidence,” but we do not have the document designating the State’s evidence nor do we have the evidence itself.