The testimony of four witnesses are important at the trial:
- Lusk, who saw an unidentified man with a gun leaving the scene,
- Coronado, who saw defendant Thomas and another man leave the area after the shots were fired,
- Johnson, who saw defendant Thomas shoot at the victim, and
- Reliford, who saw defendant Thomas shoot the victim in the head.
Now Vallery appears to have been at the scene and was available at trial, but did not testify (Thomas's trial counsel said in a news report that to explain why their side didn't call Vallery to the stand would violate attorney-client privilege.). Vallery had given a statement to police, which the defense team had seen.
Thomas was convicted and got a 40-year sentence.
A co-defendant was convicted in a separate proceeding and got ten years.
Thomas moved for a new trial, at least on punishment on the ground that the court should have heard Vallery's testimony (It appears that she would have testified that Mr. "Ten Years," instead of Thomas, was the actual shooter.). He was quite firm that he was alleging neither that trial counsel had been ineffective for not calling Vallery at guilt-innocence nor that Vallery's testimony was newly discovered evidence. The trial court granted the motion and the State appealed: it said that the new trial was an abuse of discretion, and that if the appeals court agreed that a new trial was warranted, it should not be just a punishment-only retrial. The appeals court held that there was no good legal reason to have another trial.
It appears the real-world fight was that Judge Fine was inclined to shorten Thomas's 40-year sentence in light of the other bad actor's ten-year sentence, and the prosecutors and appeals justices were inclined to deny him. Defense counsel, in Houston, you need more than an alleged disproportionality between defendants to get a new trial. You need a law error or an ineffectiveness claim or newly discovered evidence or credible ignored evidence of actual innocence.Judge Fine, a tattooed, snuff-dipping Democrat long successful in drug addiction recovery, was disliked by Republican prosecutors and jurists at Harris County's Criminal Justice Center and the Court of Criminal Appeals and now the First Court at 301 Fannin has gotten to take a swipe at him. Fine was best known for having held that Texas's death penalty statute, as applied, was unconstitutional, which decision was quickly overturned and withdrawn.
State v. Thomas, No. 01-11-00500-CR (Tex. App.--Houston [1st Dist.], Dec. 20, 2012, no pet. h.).