Thomas, Kenneth Dewayne

• Court: Court of Criminal Appeals of Texas
• Decided: November 25, 2015
• Docket: AP-77,047
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-77,047

KENNETH DEWAYNE THOMAS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. F-8685539-M IN THE 194 TH JUDICIAL DISTRICT COURT DALLAS COUNTY

Per curiam.

ORDER

The above-styled and numbered cause is pending before this Court as a result of

appellant’s sentence of death in the 194th Judicial District Court of Dallas County, Cause No.

F-8685539-M, styled The State of Texas v. Kenneth Dewayne Thomas. The State has filed

in this Court a motion entitled “State’s Motion to Abate or, in the Alternative, Extend the

Time to File Brief.”

In its motion, the State lists numerous items that it contends are missing from the

appellate record, including the punishment charge and several pre-trial motions. The State Thomas – 2

says that on October 16, 2015, it delivered a letter to the Dallas County District Clerk’s

Office requesting that the record be supplemented with the missing items. See T EX. R. A PP.

P. 34.5(c)(1). On October 27, 2015, a supplemental clerk’s record was filed in this Court

which appears to contain the items that the State alleged were missing, except for the

punishment charge. Upon our further review of the original clerk’s record filed in this Court,

we ultimately located the punishment charge in an envelope marked as sealed. However, it

is unclear whether the appellate record currently contains all of the relevant items that are

either required by statute or were requested by either party. See T EX. R. A PP. P. 34.5(a) &

(c). It is also unclear whether the record was complete at the time that appellate counsel,

John Tatum, filed appellant’s brief.

Further, it is unclear whether the trial court complied with Article 26.052(k) of the

Texas Code of Criminal Procedure when it appointed Tatum to represent appellant on appeal.

It appears from the record that Tatum was one of the attorneys who represented appellant at

trial. Article 26.052(k) provides that the court may not appoint an attorney as counsel on

appeal if the attorney represented the defendant at trial, unless: (1) the defendant and the

attorney request the appointment on the record; and (2) the court finds good cause to make

the appointment. We cannot determine from the record before us whether the trial court

complied with these statutory requirements.

Under these circumstances, we abate the appeal and remand this cause for the trial

court to develop the record, if necessary, and to make findings of fact regarding: Thomas – 3

(1) whether the trial court complied with Article 26.052(k) when it appointed Tatum to

represent appellant on appeal; (2) whether the record was complete when Tatum filed

appellant’s brief, and if not, then what documents Tatum relied upon when he filed the brief;

and (3) whether the appellate record currently contains all of the relevant items that are either

required by statute or were requested the parties. The trial court shall then direct the clerk

and/or court reporter to prepare, certify, and file in this Court a supplement containing the

developed record, the court’s findings of fact, and any relevant items that were omitted from

the record. See T EX. R. A PP. P. 34.5(c) & 34.6(d).

The findings shall be made and any necessary supplements shall be filed within 45

days of the date of this order. The deadline for the State’s brief will be determined after this

Court has reviewed the record developed pursuant to this order.

Delivered: November 25, 2015.

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