Wednesday, February 29, 2012
Media Advisory: Keith S. Thurmond scheduled for execution

AUSTIN – Pursuant to a court order by the 410th District Court of Montgomery County, Keith Steven Thurmond is scheduled for execution after 6 p.m. on March 7, 2012. In 2002, a Montgomery County jury found Thurmond guilty of murdering his wife, Sharon Anne Thurmond, and Guy Sean Fernandez.

FACTS OF THE CRIME

The United States Court of Appeals for the Fifth Circuit described the murder of Mrs. Thurmond and Mr. Fernandez as follows: Sharon Thurmond separated from her husband a few months before the murder. She took their child and moved across the street to live with Guy Sean Fernandez. The day of the murders, deputies served Thurmond with a protective order and placed his six-year-old son in the custody of his wife. Thurmond was unhappy that his wife was living across the street with another man. After the deputies left with the child, Thurmond became very upset. He then shot and killed both victims.

PROCEDURAL HISTORY

On December 18, 2001, Thurmond was indicted in the 410th District Court of Montgomery County, Texas, for the capital offense of murdering Sharon Anne Thurmond and Guy Sean Fernanez during the same criminal transaction.

After Thurmond pleaded not guilty, a jury found him guilty of the capital offense on November 11, 2002. On November 13, 2002, after a separate punishment hearing, the court sentenced Thurmond to death by lethal injection.

On November 17, 2004, the Texas Court of Criminal Appeals affirmed Thurmond’s conviction and sentence in an unpublished opinion.

On October 29, 2004, Thurmond filed a state application for writ of habeas corpus in the trial court. The trial court entered findings of fact and conclusions of law recommending that Thurmond be denied relief. On August 31, 2005, the Court of Criminal Appeals adopted the trial court’s findings and conclusions and denied Thurmond habeas relief.

On September 1, 2006, Thurmond filed a federal habeas petition in the United States District Court for the Southern District of Texas, Houston Division. On February 12, 2008, the federal court denied Thurmond federal habeas relief.

Thurmond appealed the federal court’s decision to the United States Court of Appeals for the Fifth Circuit. On January 25, 2011, the Fifth Circuit affirmed the district court’s decision in an unpublished opinion. Thurmond did not petition the United States Supreme Court for certiorari review.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the punishment phase of Thurmond’s trial, the State presented evidence of Thurmond’s future dangerousness. Thurmond was in a relationship from 1975 to 1979. Thurmond became violent with the woman about six months into the relationship, pushing, slapping and hitting her. Thurmond was also very controlling. The woman testified that she was afraid to leave Thurmond.

Eventually, she ended her relationship with Thurmond, but on February 18, 1979, Thurmond visited the woman’s home and sexually assaulted her at knife-point. The woman determined that Thurmond was going to do the same thing a couple of days later, so she fled her house with her sister. When the woman returned, she found her lock broken; she called the police, who arrested Thurmond inside the house and found him carrying a 12-gauge double-barreled shotgun.

Jurors also learned that from 1981 to 1983, Thurmond was in a common-law marriage with another female. Thurmond became violent, hitting his wife on occasion. When she told Thurmond she was leaving him, Thurmond threw her to the floor, straddled her and choked her. Thurmond kept harassing the woman until she obtained a restraining order.

Jurors were informed that on August 30, 2001, Thurmond traveled to Sharon’s mother’s home to speak with Sharon. Thurmond banged on the back glass patio door and demanded to see Sharon, but her mother told him she was not there and instructed him to leave. Thurmond returned fifteen minutes later and again demanded to see Sharon. Sharon came to the door but did not open it. Through the glass, Thurmond told Sharon, Guy Fernandez, and Sharon’s mother “that we were all wrong in what we were doing and that Sharon was going to get hers and that he was going to get Guy.” The State also submitted evidence that Sharon twice sought and received protective orders against Thurmond.

While incarcerated prior to trial, Thurmond was disciplined for not wearing his armband and being disrespectful to a staff member. Thurmond again violated the disciplinary rules and his privileges were revoked. Thurmond later threatened to kill the disciplinary officer involved in the case.

Texas Execution Information Center by David Carson.

Keith Steven Thurmond, 51, was executed by lethal injection on 7 March 2012 in Huntsville, Texas for the murder of his estranged wife and her boyfriend.

Sharon Thurmond lived in Magnolia, Texas in Montgomery County with her husband, Keith, and their six-year-old son*. In the summer of 2001, she took the child and moved in with Guy Fernandes, who lived across the street.

On 30 August 2001, Keith Thurmond traveled to Sharon's mother's home. He banged on the back glass patio door, demanding to see Sharon, but her mother told him she was not there and told him to leave. Fifteen minutes later, Thurmond returned and again demanded to see Sharon. Sharon came to the door, but did not open it. According to Sharon's mother, Thurmond told her, Sharon, and Fernandes "that we were all wrong in what we were doing, and that Sharon was going to get hers and that he was going to get Guy."

On 25 September 2001, Montgomery County deputies served Thurmond, then 41, at his trailer home with a protective order placing his son in Sharon's custody and barring him from having contact with her. It was the second court order against him that Sharon had obtained. After the deputies left with his son, Thurmond put on a black karate outfit and paced inside his trailer home with a sword and a .45-caliber handgun. His brother, Tom, and a friend urged him to settle down and let the courts resolve the custody dispute, but Thurmond replied that he was "very mad" and was "going to do something stupid." Thurmond then went across the street and killed the couple. Sharon, 32, was shot outside the residence. Fernandes, 35, was shot inside the residence. Fernandes had also been beaten on the head. Pieces of the gun were near his body.

The boy ran screaming across the street to his father's home, where his uncle Tom tried to calm him down. When Keith burst in, the boy fled. Keith then grabbed a shotgun and threatened to kill himself. "I messed up, I messed up!" he cried. Thurmond then blockaded himself inside his home with at least two firearms, holding police at bay for more than 2 hours before surrendering peacefully.

Thurmond's son told investigators that he, his mother, and Fernandes were in a pickup truck when Thurmond came over with the gun. Thurmond chased Sharon around the yard while Fernandes ran into the mobile home. He saw his father shoot his mother "a couple of times" and then "ran into Guy's mobile home with the gun." At Thurmond's trial, Tom Thurmond testified that he was on the phone calling their father for help when he heard gunshots. He looked out the door and saw his brother standing over Sharon with a gun in his hand.

The defense attempted to convince jurors that Thurmond was a good father who snapped in a fit of rage triggered by the circumstances of his wife living across the street with another man, and the deputies removing his son from his home.

Thurmond had no prior felony convictions, but at his punishment hearing, the jury heard testimony from a woman who was involved with him from 1975 to 1979. She testified that six months into the relationship, Thurmond became very controlling and began pushing, slapping, and hitting her. She testified that she was afraid to leave him. Eventually, she did, but in February 1979, he came to her home and raped her at knifepoint. A couple of days later, believing that he was returning to do the same thing, she fled to her sister's house. When she returned, she found her lock broken. She called the police, who found Thurmond inside carrying a 12-gauge shotgun. Thurmond kept stalking her until she moved out of state.

The jury also heard testimony from another woman who was Thurmond's common-law wife in a violent relationship from 1981 to 1983. This woman testified that when she told him she was leaving him, Thurmond threw her to the floor, straddled her, and choked her. The woman later obtained a restraining order against him because he kept harassing her.

A jury convicted Thurmond of capital murder in November 2002 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 2004. All of his subsequent appeals in state and federal court were denied.

Thurmond declined media requests for interviews while on the death row. Thurmond's execution was attended by Sharon Thurmond's brother and two nieces and by Fernandes' father, brother, and sister. "All I want to say is, I'm innocent. I didn't kill my wife," Thurmond said in his last statement while strapped to the execution gurney. "I swear to God, I didn't kill her." He blamed the killings on another man, then said, "Go ahead and finish it off." The lethal injection was then started. As the drugs flowed into his body, Thurmond said, "You can taste it." He then lost consciousness. He was pronounced dead at 6:22 p.m.

Houston Chronicle

HUNTSVILLE, Texas (AP) — A Texas man condemned for fatally shooting his estranged wife and the neighbor who became her boyfriend denied killing them Wednesday, moments before he was put to death by lethal injection. Strapped to the gurney inside the death chamber, Keith Thurmond declared, "I didn't kill my wife. ... I swear to God I didn't kill her."

His execution for the 2001 slayings near Houston came about an hour after the U.S. Supreme Court rejected arguments to halt the capital punishment, the third this year in Texas. The 52-year-old Thurmond was pronounced dead at 6:22 p.m. — 11 minutes after lethal drugs began flowing into his arms.

Thurmond's attorneys argued that lawyers representing him in earlier appeals were "grossly deficient" and that his execution should have been postponed until justices decide on a similar case in Arizona. With his death nearing Wednesday, Thurmond blamed the shooting deaths on another man before telling prison officials, "Go ahead and finish it off." As the drugs began flowing, he said, "You can taste it." He wheezed and snored before losing consciousness.

The killings occurred after sheriff's deputies showed up at Thurmond's mobile home on Sept. 25, 2001, with a court order removing his 8-year-old son and putting the boy in the care of his mother. Thurmond became irate and stormed down the road to the mobile home where his 32-year-old wife, Sharon, was living with her new boyfriend, Guy Fernandes, 35, near Magnolia in Montgomery County, about 35 miles north of Houston.

Fernandes' father, brother and sister were among those who witnessed Thurmond's execution. They were joined by Sharon Thurmond's brother and two nieces. All stood stoically a few feet from Thurmond and declined comment after his death. Thurmond's brother, Tom, was at Thurmond's home the day of the killings, heard gunshots and looked out the door. He saw Thurmond outside standing over his wife with a gun in his hand.

At the 2002 capital murder trial, Keith and Sharon Thurmond's son testified that he saw his father shoot his mother repeatedly in the yard behind Fernandes' mobile home. Thurmond surrendered to police after a two-hour standoff.

Evidence showed Sharon Thurmond had been shot seven times with a .45-caliber semiautomatic handgun that was later found in Thurmond's home. The same gun was used to shoot Fernandez twice in the head. The gun's firing pin was missing and pieces of it were near the body of Fernandez, who also had been beaten in the head with the weapon.

During the punishment phase of his trial, a former girlfriend testified that Thurmond stalked and raped her after she ended their relationship. She told jurors that he cut her stuffed animal's head off and that she feared he would do the same to her. A second woman testified that she faced similar abuse and harassment until she obtained a court order against him. Sharon Thurmond also had two court orders against him.

Prosecutors said these incidents proved Thurmond was a threat to society, an element Texas jurors must consider when deciding on the death penalty. John MacDonald, Thurmond's lead trial attorney, said that background on Thurmond's character very much hurt his defense.

In an appeal petition, Thurmond's attorneys said the sentence was too harsh. They said his former appellate lawyers failed to track down any of his relatives who could have testified that he had been abused as a child and that this could have accounted for his behavior. State lawyers opposed the petition, arguing that unlike the Arizona case, Thurmond's earlier attorneys didn't abandon him and that any information now from the prisoner's relatives likely would not have altered the outcome of the trial.

Huntsville Item

"Man dies for Montgomery Co. killings," by Cody Stark. (March 7, 2012)

HUNTSVILLE — A condemned killer said somebody else was responsible for the two murders he was sentenced to die for moments before he was executed Wednesday night.

Keith Thurmond was pronounced dead at 6:22 p.m., 11 minutes after the lethal dose was administered into his body. He was executed for the 2001 murders of his estranged wife Sharon and her live-in boyfriend Guy Fernandes near Magnolia. “All I want to say is that I’m innocent,” Thurmond said before his death sentence was carried out. “I didn’t kill my wife. ... I swear to God I did not kill her.”

Thurmond then ordered prison officials to carry out the execution and he began struggling to breath before losing consciousness. He was the third Texas inmate to be put to death this year.

The lethal injection was carried out an hour after the U.S. Supreme Court rejected an appeal to halt it. Thurmond’s attorneys argued that the lawyers representing him in earlier appeals were “grossly deficient” and his execution should be postponed until the high court decided a similar case in Arizona.

The killings occurred after Montgomery County Sheriff’s deputies showed up at Thurmond’s mobile home on Sept. 25, 2001, with a court order removing his 8-year-old son and putting the boy in the care of his mother. Thurmond became irate and stormed down the road to the mobile home where his 32-year-old wife, Sharon, was living with her new boyfriend, Fernandes, 35, near Magnolia. Thurmond’s brother, Tom, who was at Thurmond’s home, heard gunshots and looked out the door. He saw Thurmond standing over his wife with a gun in his hand.

At the 2002 capital murder trial, Keith and Sharon Thurmond’s son testified that he saw his father shoot his mother repeatedly in the yard behind Fernandes’ mobile home. Thurmond surrendered to police after a two-hour standoff.

Your Houston News

"Thurmond dies for 2001 double murder," by Nancy Flake. (Tuesday, March 13, 2012 12:55 am)

Unlike the two people he gunned down as they fled in terror for their lives on Sept. 25, 2001, Keith Steven Thurmond died peacefully at 6:22 p.m. March 7 by lethal injection in Huntsville. Thurmond was executed for the capital murders of his estranged wife, Sharon Anne Thurmond, and her boyfriend, Guy Sean Fernandes, as the Thurmonds’ 8-year-old son watched.

The U.S. Supreme Court denied a last-minute appeal for a stay of execution about an hour before the scheduled execution time of 6 p.m. Moments after the lethal cocktail started flowing through his veins, Thurmond proclaimed his innocence.

“All I want to say is I’m innocent. I didn’t kill my wife. Jack Leary shot my wife, then her dope dealer Guy Fernandes,” Thurmond said. “Don’t hold it against me, Bill.” Then with his voice rising and quavering, “I swear to God I didn’t kill her,” he said. He lowered his voice to a more resigned tone to say finally, “Go ahead and finish it off. You can taste it.” Thurmond then began gasping for air and fell silent. Several minutes later, he was pronounced dead.

None of Thurmond’s family members were present to watch his final moments; his only witnesses were activists opposing the death penalty. Three members of Sharon Thurmond’s family – her brother and two nieces – witnessed the execution, as did the father, brother and sister of Guy Fernandes. The family members declined to speak with the media afterward.

But Montgomery County Assistant District Attorney Jim Prewitt, who successfully convicted Thurmond in 2002 and convinced jurors to sentence Thurmond to death, recounted the brutality of the murders in a statement. “... it is my hope that the public takes the time to recognize the brutal nature of this crime, the impact domestic violence has in our communities and to remember the two victims who died at the hands of the defendant, Sharon Thurmond and Guy Fernandez (sic),” Prewitt stated in a release. “Our thoughts and prayers remain with the families ... as well as our hope that tonight’s event will bring them some closure.”

Enraged by a protective order his wife had sought that was issued by a Montgomery County judge and served to him Sept. 25, 2001, Keith Thurmond grabbed a .45-caliber semiautomatic handgun and headed across the street from his Magnolia-area house, just as Sharon Thurmond, Fernandes and the Thurmonds’ son were returning to Fernandes’ home. The child later described to officers how he watched his father, with the gun, chase his mother around the yard while Fernandes ran into his home. The boy told investigators he saw his father shoot his mother “a couple of times and ... then ran into Guy’s mobile home with the gun,” according to affidavits. The boy then said he heard several shots, and he then ran to his house across the street.

As officers with the Montgomery County Sheriff’s Office were on their way to respond to a domestic disturbance call, Thurmond returned to his home and barricaded himself inside with his son. He released the boy a short time later and peacefully surrendered to police after holding them at bay for nearly two hours. Sharon Thurmond had sought another protective order in 1998 against her husband, an air-conditioning technician and Kentucky native who had a ninth-grade education.

During Thurmond’s trial, a former girlfriend testified that he was violent and had raped her, and another girlfriend also testified about similar abuse. While Thurmond was held in the Montgomery County Jail, he threatened a female detention officer, who testified that Thurmond threatened to snap her neck. He also told the female detention officer, “What are they going to do? Kill me twice?”

ProDeathPenalty.Com

Keith Steven Thurmond was convicted and sentenced to death for the 2001 capital murders of Sharon Anne Thurmond, his wife, and Guy Sean Fernandez. Sharon Thurmond separated from her husband a few months before the murder. She took their child and moved across the street to live with Guy Sean Fernandez. The day of the murders, deputies served Thurmond with a protective order and placed his six-year-old son in the custody of his wife. Thurmond was unhappy that his wife was living across the street with another man. After the deputies left with the child, Thurmond became very upset. He then shot and killed both victims.

Thurmond v. State, Not Reported in S.W.3d (Tex.Crim.App. 2004) (Direct Appeal)

JOHNSON, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB, and COCHRAN, JJ. joined.

In November 2002, a jury convicted appellant of capital murder. Tex. Penal Code § 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial court sentenced appellant to death. Art. 37.071, § 2(g).FN1 Direct appeal to this Court is automatic. Art. 37.071, § 2(h). Appellant raises thirteen points of error alleging issues involving voir dire, chain of custody, and the constitutionality of the Texas death-penalty statute. We affirm.

VOIR DIRE

In his first point of error, appellant argues that he was denied a fair and impartial trial because the trial court abused its authority in deferring to the prosecution regarding appellant's request for an additional peremptory strike. The record reflects that appellant's counsel used his last peremptory challenge on venire member Snyder. Appellant later challenged venire member Crow for cause. The trial court denied appellant's challenge for cause and the following exchange occurred:

[DEFENSE COUNSEL]: Judge, we ask for an extra-we've had two other jurors or three other jurors, I think, that we've asked-we had to use perempts on, where we made challenges for cause, they were denied. We'd ask for three additional peremptory challenges. THE COURT: You're asking for three additional. [DEFENSE COUNSEL]: Well, on that basis; but, you know, we're asking for an additional peremptory challenge. THE COURT: What says the State? [PROSECUTOR]: Well, Your Honor, we're opposed-I have made-to granting any additional. We've looked back through, or I've looked back through at the reason that those challenges were denied and we're satisfied that those were the correct and accurate rulings. I've got some notes on them, brief notes on them, but- THE COURT: Well, let's look. Mary Vick. [PROSECUTOR]: Sondra Faul. THE COURT: Tell me-remind me who Mary Vick was. [PROSECUTOR]: She was-well, I wrote-this is just my notes, Your Honor. Challenge was for-she would give death penalty for murder, but I think the Court's ruling indicates she could follow the law. And she indicated she could follow the law. THE COURT: Sondra Faul? [PROSECUTOR]: Sondra Faul was basically the same thing. There was a challenge made, death penalty for murder, but she could listen to the circumstances and follow the law to the instructions. THE COURT: Willtrout, I think? [PROSECUTOR]: I'm not sure about that. Next one I had was way down on Susanne Byrne-Heeth. THE COURT: I had Willtrout, but I've got some notes on that. And Byrne-Heeth is what? [PROSECUTOR]: My notes are- THE COURT: Right, right. [PROSECUTOR]: Couldn't consider certain crimes as criminal acts of violence. THE COURT: Right. That was the one that Defense made a motion that really was State's motion to make. And then Crow is the one now. You don't have any notes on Willtrout?

[DEFENSE COUNSEL]: We also challenged Deane Moore on the basis of his physical ability to understand what we were talking about. He was the coach from the elementary school. THE COURT: You did. You did make that challenge. You know, I don't care. We could go on forever. How comfortable is the State? It really doesn't matter to me. I think the rulings that I made are really safe, safe, safe, safe. I have no concern about it at all; but it's the State's case and I don't mind trying it four or five times, but I'll leave it in your hands. If you think the Court needs to give an extra one, I'll give an extra one. [PROSECUTOR]: No, Your Honor. I'm very comfortable with the rulings. THE COURT: Okay. That will be denied then. [DEFENSE COUNSEL]: Okay. We've exhausted all our peremptory challenges, Judge. We would have used a peremptory challenge on this juror, and we're being forced to accept her and she's unacceptable to us.

The record reflects that appellant used peremptory challenges after the trial court denied his challenges for cause to venire members Mary Vick, Sondra Faul, Deane Moore, Jeffrey Budde, and Susanne Byrne-Heeth. Appellant peremptorily challenged Cindy Willtrout, but did not challenge her for cause. Appellant does not discuss any of these venire members in his brief on appeal. He states that he “preserved the error during his challenge on Juror Crow” and that “[t]he error complained of here affected the entire trial as Juror Crow was the twelfth seated [juror] and participated in the verdicts for guilty and death,” but provides no further argument. To the extent that appellant may be arguing that the trial court erroneously denied his challenges for cause to Crow or any of the other venire members, his argument is inadequately briefed and we decline to address it. TEX. R. APP. P. 38.1.

“It is clearly within the discretion of the trial court to grant additional peremptory challenges upon exhaustion of the statutory number of strikes.” Cooks v. State, 844 S.W.2d 697, 717 (Tex.Crim.App.1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993). Appellant asserts that the trial court abused its discretion by “deferring to the prosecution” on the issue of whether or not to grant appellant additional peremptory challenges. He complains that “the trial court's unreasonable and most unusual deference to the state regarding [his] request for additional strikes deprived him of a fair trial.”

It appears from the trial court's comments on the record that it felt comfortable refusing appellant's request for additional peremptory challenges because it was satisfied with its previous rulings, and that it was prepared to deny additional peremptory challenges on that basis unless the prosecutor believed otherwise. While it is probably not a good idea to even appear to be soliciting the opinion of a party as to the correctness of a ruling, we discern no abuse of discretion in the trial court's decision to deny appellant additional peremptory challenges. Point of error one is overruled.

CHAIN OF CUSTODY

In points of error three and four, appellant argues that the trial court improperly permitted testimony regarding DNA evidence when the state failed to establish an unbroken chain of custody for a blood sample that was used in DNA testing.

Appellant was charged with murdering Sharon Ann Thurmond and Guy Sean Fernandes in the same criminal transaction. State's Exhibit 26-B was a blood sample taken from Fernandes during his autopsy and placed on a “bloodstain card.” Javier Flores, a forensic DNA analyst for the Texas Department of Public Safety laboratory, performed a DNA comparison of that blood sample and a blood sample collected from the outside of the barrel of the gun that was used to commit the murders. Flores testified that the DNA profile of the blood sample obtained from the gun was consistent with the blood sample taken from Fernandes.

Assistant Harris County medical examiner Dr. Stephen Wilson testified regarding Fernandes' autopsy and the preparation of his DNA samples: The routine procedure that we perform is the following: In obtaining specimens of either body tissues or body fluids, those-those body fluids or body tissues are removed either by me or the person assisting me at the autopsy. At the time the autopsy is performed, they are placed in some sort of specimen container; either a jar, a vial, or a test tube. They are sealed. They are labeled.

The labeled specimens are placed inside a plastic bag. They are sealed by me. They are-from that point on, I did make a record of the specimens I obtained. The specimens are then placed by me personally into a locked chamber room, and I sign a piece of paper indicating that I placed those specimens there. And from that point, the toxicology staff picks up the specimens and again signs on for the proper chain of evidence. * * * Q. Okay. Did you perform autopsies on the bodies of Key-or excuse me-Guy Fernandes and Sharon Thurmond on or about, let's say, the 26th of September? A. I did, yes. Q. Did you personally collect the DNA samples from those people? A. I did indeed. Q. Okay, sir. An assistant did not do it for you? A. It's possible that-it would be some of the specimens might have been taken by the assistant, so it depends on which specimens you are referring to. But if the specimens are taken by the assistant, they are doing it while I am standing right beside him assisting him, taking the specimen. Q. Okay. I'm specifically mentioning the vials of blood that would have been collected from the bodies of the deceased. A. Okay. Those may or may not have been taken by me directly. If they weren't taken by me directly, they were taken by the assistant and I was there right at the scene with him, either holding up the specimen so he could obtain it or was standing right next to him. Q. Okay. What type of education do these assistants have? A. Most of them have at least a high school education. Some have additional training in performing autopsies. Q. Okay. Now, do you remember specifically in these cases seeing the-watching the assistant take the samples or are you just assuming? A. That is a standard procedure in all procedures. Those specimens never would be taken without me being present.

Appellant essentially argues that there was a break in the chain of custody because it was unclear whether Wilson or his assistant took a blood sample from Fernandes. This alone does not render the evidence inadmissible. Wilson testified that, even if his assistant took the sample, he would have done so under Wilson's on-the-scene supervision. Without evidence of tampering, most questions concerning care and custody of evidence go to the weight, not the admissibility, of the evidence. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). Appellant, while complaining about Dr. Wilson's uncertainty regarding whether he himself or the unnamed assistant took the blood sample, makes no claim of tampering. Thus, his complaints go to the weight, not the admissibility, of the evidence. The trial court did not abuse its discretion in admitting the evidence. Points of error three and four are overruled.

The Texas Death Penalty Statute

In his second point of error, appellant complains about the trial court's denial of his “motion to exclude the death penalty as possible punishment.” In this motion, appellant challenged, in part, the constitutionality of the state's discretion to seek the death penalty. He argues on appeal that the Texas death-penalty statute woefully fails to provide a standardized method for determining death worthiness, i.e. in which cases the death penalty will be sought. He contends that “[t]his failure eliminates rationality and consistency in the decision to seek death and thus violates the Accused's right to due process” under the Fourteenth Amendment to the United States Constitution and Article I, § 19, of the Texas Constitution.

The state has discretion to seek the death penalty, and this prosecutorial discretion is constitutional. Hankins v. State, 132 S.W.3d 380, 387 (Tex.Crim.App.), cert. denied, --- U.S. ---- (2004). We have specifically rejected the claim that this discretion violates the Eighth and Fourteenth Amendments. Id.; Ladd v. State, 3 S.W.3d 547, 574 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Appellant does not provide separate authority or argument for his Texas constitutional claim; thus, we decline to address it. Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App.1991). Point of error two is overruled.

In his fifth point of error, appellant complains that the future-dangerousness special issue is unconstitutional because the “aggravating factors” are vague and undefined. It is well settled that the terms “probability,” “criminal acts of violence,” and “continuing threat to society” need not be defined in the jury charge. Chamberlain v. State, 998 S.W.3d 230, 237-8 (Tex.Crim.App.1999), cert. denied, 528 U.S. 1082 (2000); Ladd, 3 S.W.3d at 572-3. Point of error five is overruled.

In his sixth point of error, appellant claims that the Texas death-penalty statute is unconstitutional because it is “open-ended and unstructured” and does not provide for meaningful appellate review of the special issues. We have previously addressed and rejected these claims. Valle v. State, 109 S.W.3d 500, 502-04 (Tex.Crim.App.2003); Ladd, 3 S.W.3d at 573. We have also rejected appellant's argument that the Due Process Clause requires this Court to engage in a proportionality review in death-penalty cases. King v. State, 953 S.W.2d 266, 273 (Tex.Crim.App.1997). Point of error six is overruled.

In his seventh point of error, appellant asserts that the Texas death-penalty statute is unconstitutional because it fails to assign a burden of proof to the mitigation special issue. We have previously held that the absence of an explicit assignment of the burden of proof does not render Article 37.071 unconstitutional. Raby v. State, 970 S.W.2d 1, 8-9 (Tex.Crim.App.), cert. denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998); Point of error seven is overruled.

In his eighth point of error, appellant contends that the “10-12 rule,” requiring at least ten “no” votes for the jury to return a negative answer to the future dangerousness special issue and at least ten “yes” votes to return an affirmative answer to the mitigation issue, violates the constitutional principles discussed in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). We have previously resolved these claims adversely to appellant. Prystash v. State, 3 S.W.3d 522, 536-37 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Williams v. State, 937 S.W.2d 479, 490, 492 (Tex.Crim.App.1996). Point of error eight is overruled.

In point of error nine, appellant argues that the Texas death-penalty statute is unconstitutional because it fails to inform the jury that a single holdout juror on any special issue would result in an automatic life sentence. We have repeatedly addressed and rejected this contention. Brooks v. State, 990 S.W.2d 278, 288 (Tex.Crim.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999); Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Crim.App.1996), cert. denied, 522 U.S. 825, 118 S.Ct. 85, 139 L.Ed.2d 42 (1997). Point of error nine is overruled.

In point of error ten, appellant argues that the Texas death-penalty statute is unconstitutional because it gives the jury the “open-ended, unstructured discretion” that the United States Supreme Court condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). We have previously rejected this argument. Holberg v. State, 38 S.W.3d 137, 141 (Tex.Crim.App.2000), cert. denied, 534 U.S. 972, 122 S.Ct. 394, 151 L.Ed.2d 298 (2001); Ladd, 3 S.W.3d at 574. Point of error ten is overruled.

In point of error eleven,FN2 appellant contends that “the trial court erred when it did not include a definition of mitigation in its charge.” The jury instructions included the statutory definition of “mitigating evidence” set out in Article 37.071, § 2(f)(4). Specifically, the punishment jury charge included an instruction to jurors in deliberating on the answer to the second special issue; “In arriving at your answer, you shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.” Appellant complains that “the statute's separate definition of ‘mitigating evidence’ limits jurors's consideration of such evidence to those mitigating factors that specifically implicate the defendant's moral blameworthiness.” We have previously upheld the constitutionality of the statutory definition. Ladd, 3 S.W.3d at 574; King, 953 S.W.2d at 274. Point of error eleven is overruled.

FN2. We observe that the separate claims made in points eleven, twelve, and thirteen are renumbered from appellant's table of contents; however, the claims remain the same but under a different number. We address them as they are numbered in the body of appellant's brief.

In point of error twelve, appellant asserts that the death penalty, as presently administered in Texas, is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution, citing Justice Blackmun's dissenting opinion in Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994). In point of error thirteen, appellant argues that the Texas death-penalty statute violates the ban on cruel or unusual punishment in Article I, § 13 of the Texas Constitution. We have rejected these arguments in previous cases. Chamberlain, 998 S.W.2d at 238; Howard v. State, 941 S.W.2d 102, 118-19 (Tex.Crim.App.1996), cert. denied, 535 U.S. 1065 (2002); Morris v. State, 940 S.W.2d 610, 616 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1278, 117 S.Ct. 2461, 138 L.Ed.2d 218 (1997). Points of error twelve and thirteen are overruled.

We affirm the judgment of the trial court. KELLER, P.J. and HERVEY, J., concurred in the judgment.

Thurmond v. Quarterman, 341 Fed.Appx. 40 (5th Cir. 2009) (Habeas)

Background: Following affirmance of his capital murder convictions and sentence of death, and denial of his application for state habeas corpus relief, petitioner sought federal habeas relief. The United States District Court for the Southern District of Mississippi dismissed the petition, finding that it was time-barred and, alternatively, that petitioner was not entitled to relief on his claims, and subsequently determined sua sponte that a certificate of appealability (COA) should not issue. Petitioner appealed.

Holdings: The Court of Appeals held that: (1) jurists of reason would have found it debatable whether the district court was correct in its holding that the petition was time-barred, in light of petitioner's argument that the mechanical failure of the court's late-filing machine rendered the clerk's office inaccessible for purposes of filing his habeas petition within the one-year statute of limitations, and (2) the failure to grant a COA to fully review the merits of petitioner's claim of ineffective assistance of counsel could result in a fundamental miscarriage of justice. Application for COA granted. PER CURIAM: (FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

The petition for rehearing is GRANTED. The prior opinion, Thurmond v. Quarterman, No. 08-70008, slip op., 2009 WL 585618 (5th Cir. Mar. 9, 2009), is WITHDRAWN, and the following opinion is substituted.

Petitioner Keith Steven Thurmond, convicted in Texas state court of capital murder and sentenced to death, seeks a certificate of appealability (“COA”) to appeal the district court's order dismissing his petition for writ of habeas corpus. For the foregoing reasons, we grant Thurmond's application for a COA.

I. Background

Thurmond was convicted and sentenced to death for the 2001 capital murders of Sharon Anne Thurmond, his wife, and Guy Sean Fernandez. Sharon Thurmond separated from her husband a few months before the murder. She took their child and moved across the street to live with Guy Sean Fernandez. The day of the murders, deputies served Thurmond with a protective order and placed his six-year-old son in the custody of his wife. Thurmond was unhappy that his wife was living across the street with another man. After the deputies left with the child, Thurmond became very upset. He then shot and killed both victims.

The Texas Court of Criminal Appeals affirmed Thurmond's conviction in November 2004. While his direct appeal was pending, Thurmond filed a state habeas application in the state court in October 2004. In June 2005, the trial court entered findings of fact and conclusions of law recommending that Thurmond's application be denied. On August 31, 2005, the Court of Criminal Appeals adopted the findings and conclusions and denied the application.

On September 9, 2005, Thurmond filed a motion for the appointment of counsel in federal court, and the court appointed counsel on November 11, 2005. Thurmond's counsel filed an application for writ of habeas corpus in the United States District Court for the Southern District of Texas on September 1, 2006. In June 2007, the Respondent filed a motion for summary judgment, which the district court granted and denied Thurmond's habeas petition. The district court held that Thurmond's petition was time-barred, and alternatively, Thurmond was not entitled to relief on his claims. Thurmond does not dispute that, in order to be timely, he had one year, or until August 31, 2006, to file for post-conviction relief, and his petition was not filed until September 1, 2006. Thurmond argues, however, that the equitable tolling doctrine should apply either because (1) there was almost a two-month delay before he was appointed counsel or (2) Thurmond's counsel attempted to file the petition on August 31, 2006 in the after hours filing box, but the machine was not working. The district court sua sponte determined that a COA should not issue because the claims “are foreclosed by clear, binding precedent.” Thurmond timely filed a notice of appeal.

II. Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires Thurmond to obtain a COA before he can appeal to this court. 28 U.S.C. § 2253(c); Morris v. Dretke, 379 F.3d 199, 203 (5th Cir.2004). AEDPA establishes a one-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment. 28 U.S.C. § 2244(d)(1).

To obtain a COA, Thurmond must make “a substantial showing of the denial of a constitutional right.” § 2253(c)(2). Where, as here, the district court denied a habeas petition on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also Morris, 379 F.3d at 204. “[A] petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (internal quotation marks and citations omitted).

The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.... This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. Id. “Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.2009) (quoting Miller-El, 537 U.S. at 338, 123 S.Ct. 1029).

The district court first held that Thurmond's petition was time-barred because Thurmond filed his petition one day beyond the one-year statute of limitations. Thurmond contends that the mechanical failure of the court's late-filing machine rendered the clerk's office inaccessible for purposes of filing his habeas petition within the one-year statute of limitations. Federal Rule of Civil Procedure 6(a)(3) provides that, in computing time, one should include the last day of the period “unless it is a Saturday, Sunday, legal holiday, or-if the act to be done is filing a paper in court-a day on which weather or other conditions make the clerk's office inaccessible.” Fed.R.Civ.P. 6(a)(3) (emphasis added). The Respondent argues that the local rules of the Southern District of Texas require that all documents are to be submitted by electronic means, and thus, Thurmond's counsel could have avoided this predicament if he had electronically filed the petition.FN1 According to the Southern District of Texas's website, the Administrative Procedures for Electronic Filing in Civil and Criminal Cases did not become effective until January 1, 2007, after the August 31, 2006 deadline for filing Thurmond's petition. See http:// www. txs. uscourts. gov. Therefore, Thurmond was not required electronically to file his petition at the time his petition was due. Jurists of reason would find it debatable whether the district court was correct in its holding that Thurmond's petition was time-barred. We therefore grant a COA on this issue.

FN1. In the district court, the Respondent filed an advisory to the court apologizing to opposing counsel and the court for its misstatement that “e-filing was the required method for filing the petition.” See Dist. Ct. Doc. 16 (filed Aug. 7, 2007). Notwithstanding the Respondent's correction of its “mistake and misstatement” in the district court, the Respondent nonetheless made the same argument to this court, stating that “[a]s a preliminary matter, Thurmond's predicament could have been avoided if counsel had e-filed his petition. The local rules of the Southern District of Texas require that all documents are to be submitted by electronic means.” Resp. Opp. to Appl. for COA (filed Jul. 11, 2008). Respondent also cited the Administrative Procedures, although it was fully aware that those procedures were not effective at the time Thurmond's petition was due. Lamentably, the Respondent did not verify this claim before submitting it to this court.

The district court separately addressed the merits of Thurmond's claim. In his habeas petition, Thurmond argued that he received ineffective assistance of counsel during the punishment phase of his trial because his counsel failed to investigate and introduce evidence of his childhood abuse. Generally, Thurmond cites childhood experiences in which his father was physically and psychologically abusive toward the family. The district court held that it could not consider the claim because it was not properly exhausted in that Thurmond did not present the claim to the Texas state court, and further, that Thurmond's unexhausted claim did not fit within the exceptions to Texas's successive writ statute.

The Supreme Court has recognized “the important interest in finality served by state procedural rules, and the significant harm to the States that result from the federal courts to respect them,” and this court remains cognizant of this important interest. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In this death penalty case, Thurmond challenges his counsel's scope of investigation into potentially mitigating evidence for purposes of the punishment phase of his trial. We find, on a close call, that failure to grant a COA to fully review the merits of Thurmond's claim may result in a fundamental miscarriage of justice. Cf. id. (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”). “In death penalty cases, any doubts as to whether the COA should issue are resolved in favor of the petitioner.” Gomez v. Quarterman, 529 F.3d 322, 326 (5th Cir.2008) (citation omitted). We therefore grant a COA with regard to Thurmond's claim of ineffective assistance of counsel with respect to the failure to investigate and introduce mitigating evidence at the punishment phase of his trial.

In his habeas petition, Thurmond also raised as a separate issue the ineffective assistance of counsel claim as it relates to any alleged procedural bar based on exhaustion. We construe this claim as Thurmond's explanation of the cause for the procedural default of his first claim,FN2 and therefore need not issue a separate COA on this issue. FN2. The district court stated that it was not clear whether Thurmond intended the second claim as a freestanding claim for relief, cause for the procedural default, or both.

III. Conclusion