Editor’s note: This article contains graphic descriptions of a crime.


The Sherman man who killed his own son, his former wife and her daughter in 2004 will get a chance to have his case reviewed by the U.S. Court of Appeals for the Fifth Circuit.


Thomas’ trek through the quagmire of death penalty litigation began in the spring of 2004 when he broke down the door of the apartment of his ex wife Laura Boren and fatally stabbed her, her infant daughter Leyha Hughes, and Andre Jr., the four-year-old son she had with Thomas. After killing the three, Thomas ripped organs out of each of the bodies to take with him. He then stabbed himself several times before he returned to his own home and talked with family and friends about what had done. He then pulled out one of his own eyeballs while awaiting trial on a capital murder charge in the death of Leyha Hughes. He was convicted and sentenced to death and sent to death row. While there, Thomas removed his other eye and consumed it.


A statement from Andre Thomas’ attorney Maurine Levin, said that they are grateful for the court’s decision to hear the case.


“Mr. Thomas, who is currently housed in a psychiatric unit, is an extremely mentally ill man who was sentenced to death following a highly problematic trial and sentencing,,” she said in the statement.


She said the appeal approved this week will focus on whether the jury composition in Thomas’ capital murder trial was “tainted by racial bias and whether defense counsel was ineffective for failing to question the allegedly biased jurors.”


It will also focus on whether or not defense attorneys R.J. Hagood and Bobbie Cate were ineffective for not investigating Thomas’ competency to stand trial and whether the pair should have done more to rebutted the state’s theory that Thomas’ mental health condition was the result of voluntary intoxication and if the two were ineffective in presenting mitigation information to the jury during the penalty phase of the trial.


“Mr. Thomas’s attorneys argue that two recent U.S. Supreme Court decisions, Buck v. Davis (2017) and Pena-Rodriguez v. Colorado (2017), reaffirm long-standing Supreme Court precedent supporting Mr. Thomas’s claim that his jurors’ racial bias denied him his constitutional right to a trial by impartial decision makers,” the statement said.


“As the U.S. Supreme Court noted in its decision in Pena-Rodriguez v. Colorado (2017), while ‘[a]ll forms of improper bias pose challenges to the trial process … there is a sound basis to treat racial bias with added precaution.’ (COA pp. 26-27) Writing about racial bias in its decision in Buck v. Davis (2017), the U.S. Supreme Court wrote, ‘[s]ome toxins can be deadly in small doses.’ (COA p. 27),” Levin said in the statement.


Several members of the jury that sentenced Thomas to death expressed a bias against interracial marriages and children and were still allowed to sit on the jury even though the case involved an interracial marriage and children.


Grayson County Assistant District Attorney Karla Hackett was at the hearing earlier this week when Thomas’ counsel argued for his right to appeal.


“Ultimately there were no real issues decided on the merits,” Hackett said of the Certificate of Appealability that the court issued.


That order said that “Without expressing any view on the merits, the court agrees that ‘reasonable, jurists could disagree,’ about the issues concerning the make up of the jury and the ineffectiveness of counsel claims.” The Court did not allow Thomas’ team to appeal on the issue of whether or execution of the severely mentally ill violates the constitution.


Hackett said that claim was probably the more widely watched issue. “The Fifth Circuit said that is settled law until the Supreme Court changes it,” she said.


She said the court could either deny the appeal all together or rule on one or more issues and send it back to the state court for a new trial.


“At that point, the (Attorney General’s Office) could appeal that decision,” she explained. Hackett explained that the Grayson County District Attorney’s Office doesn’t represent the case in federal court.


Hackett said the court gave Thomas’ attorneys until July 9 to submit its brief and then the Attorney General’s Office gets 20 days to respond and then Thomas’ attorneys get another ten days to respond to that response. Then the court will put the case on the docket.


“We don’t know if they will order another oral argument and we don’t know how long it will be (before the court rules),” she said.


R.J. Hagood died in 2010. Cate, a former prosecutor in Grayson County, currently has a private practice in Sherman.


“It was a horrible and heinous crime,” Cate said when asked about the COA. “However, I don’t believe the state of Texas should be executing as severely mentally ill individuals as Andre Thomas. I am thankful to hear of the COA decision.”


Hackett that in the rounds of appeals involved in death penalty litigation it seems to her that sometimes the people at the heart of the case get lost. She said as she listened to the arguments in the case early this week, she was struck by the fact that the girl Thomas was convicted of killing was never mentioned by name.


She said it is important that Thomas’ case gets reviewed and that his constitutional rights are safeguarded. But, she said, “We can’t forget to remember why we are here. We are here because of Leyha.”