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KENNETH DEWAYNE THOMAS v. STATE TEXAS (06/03/92)

decided: June 3, 1992.

KENNETH DEWAYNE THOMAS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE



Appeal from 194th. Judicial District Court of Dallas County, Tx.

COUNSEL

Attorneys for appellant: Richard R. Shreves, Austin, Tx. E. X. Martin, III, Austin, Tx.

Attorneys for State: John Vance, D. A. & Jeffrey B. Keck, Asst. D. A., Dallas, Tx. Robert Huttash, State's Attorney, Austin, Tx.

EN Banc.

Author: Per Curiam

Order

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(2). After the jury made an affirmative finding on both of the special issues submitted under Article 37.071(b)(1) and (2), the trial court imposed the penalty of death. This case is before us on direct appeal.

Although appellant does not contest the sufficiency of the evidence, a brief recitation of the facts will prove helpful to a consideration of his first three points of error. Sometime between the afternoon of March 15, 1987 and the morning of March 16, Fred and Mildred Finch were brutally murdered in their home in Dallas, Texas. Both victims suffered numerous stab wounds and Fred Finch's dead body was sodomized. Evidently, their attacker had gained entrance by prying out an air conditioning unit from a side window. Appellant's fingerprints were found on the window unit, on the window, on the screen removed from the window, and inside the house. Missing from the residence were a Rolex watch belonging to Mr. Finch, his briefcase believed to contain a large amount of cash, a gun and holster, and numerous items of Mr. Finch's clothing. On the morning of March 16 Lonnie Thomas, appellant's brother, was awakened by appellant who asked him to help him move clothing that was subsequently identified as belonging to Fred Finch. At this time Thomas observed blood on appellant's shirt. Appellant was in possession of a hunting knife, and Thomas saw blood and something that looked like meat on the blade. Appellant was also in possession of Mr. Finch's gun, holster, and Rolex watch. Several other individuals saw appellant in possession of Finch's property on the morning of March 16 and then on March 17, including a woman acquaintance and a cousin. Another cousin, Kathy Renee Johnson, saw appellant in possession of several items of Finch's clothing on March 17 at the home where appellant was staying. Appellant moved the property to the residence of another cousin, and on March 18 Kathy Johnson saw the same property at that residence. Several articles of Finch's clothes had been monogrammed, and when Kathy Johnson, who had heard about the Finchs' murders, saw the initials "FF" on these clothes, she decided that they belonged to Mr. Finch. She helped move the clothing to a dump site, where the items were subsequently recovered by the police. On March 18 she called the Dallas Crime Stoppers Program and talked with someone there for 10 to 15 minutes. The conversation was recorded. Johnson was referred to a police officer with whom she spoke and to whom she gave two statements. On the evening of March 18 appellant and his mother were watching television when a report was aired concerning the murders. At this time appellant admitted to family members present that he had committed the murders. Appellant was arrested that evening.

This appeal is from the conviction and death sentence assessed for the capital murder of Mrs. Finch.*fn1 Prior to the trial appellant applied to the District Court for a subpoena duces tecum to compel the production from Dallas Crime Stoppers of any information pertaining to the deaths of Mr. and Mrs. Finch, including the names of informants and the tape recording of Kathy Johnson.*fn2 Appellant's application was quashed on the ground that the requested information was deemed confidential and could not be released without a specific court order from the supreme court pursuant to V.T.C.A., Article 4413(50), Sections 6 and 7 (now V.T.C.A., Government Code, Sections 414.007 and 414.008, for which see below). Appellant sought extraordinary relief in our Court and the Texas Supreme Court. Relief was denied, even though Johnson expressly waived any right to nondisclosure. During trial, after the examination of witness Johnson, appellant properly moved for the production of the tape recording,*fn3 but the court denied his motion, ruling that the governing statute prohibited production. It appears from the context of appellant's remarks to the court that appellant urged the Court to declare the statute unconstitutional. The Court refused.

In points of error one, two, and three, appellant complains of the actions of the trial court summarized above and asks us to find the Crime Stoppers statute unconstitutional. He argues that he has been denied several rights of constitutional dimension, including the right to effective representation, the right to confront and cross-examine witnesses, and the right to due process of law. The statutes to which appellant refers us, V.T.C.A., Government Code, Sections 414.007 and 414.008, provide as follows:

Section 414.007. Confidentiality of Council Records

Council records relating to reports of criminal acts are confidential.

Section 414.008. Privileged Information

(a) Evidence of a communication between a person submitting a report of a criminal act to the council or a local crime stoppers program and the person who accepted the report on behalf of the council or local crime stoppers program ...


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