Michael Hongpathoum v. State ( 2018 )

1
1 REPORTER'S RECORD
VOLUME 2 OF 3 VOLUMES
2 TRIAL COURT CAUSE NOS. 1321493, 1321487, & 1321486
COA NOS. 02-18-00061-CR, 02-18-00062-CR,
3 02-18-00063-CR FILED IN
2nd COURT OF APPEALS
4 FORT WORTH, TEXAS
5/24/2018 6:40:43 AM
5 THE STATE OF TEXAS ) IN THE DISTRICT DEBRA
COURTSPISAK
) Clerk
6 vs. ) TARRANT COUNTY, TEXAS
)
7 MICHAEL HONGPATHOUM ) 371ST JUDICIAL DISTRICT
8
9
10 _____________________________________________
11 MOTION TO ADJUDICATE
_____________________________________________
12
13
14
15
16 On the 1st day of February, 2018, the following
17 proceedings came on to be held in the above-titled
18 and numbered cause before the Honorable
19 Mollee Westfall, Judge Presiding, held in Fort
20 Worth, Tarrant County, Texas.
21 Proceedings reported by computerized stenotype
22 machine.
23
24
25
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1 A P P E A R A N C E S
2
3 MS. ALLYSON KUCERA
SBOT NO. 24081858
4 MS. HANNAH BELL
SBOT NO. 24068993
5 TARRANT COUNTY CRIMINAL DISTRICT ATTORNEY
401 W. Belknap
6 Fort Worth, Texas 76196
Telephone: (817) 814-1400
7 COUNSEL FOR THE STATE
8
9
MR. BLAKE BURNS
10 SBOT NO. 24066989
ATTORNEY AT LAW
11 115 N. Henderson St.
Telephone: (817) 870-1544
12 COUNSEL FOR THE DEFENSE
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 CHRONOLOGICAL INDEX
VOLUME 2 OF 3 VOLUMES
2 MOTION TO ADJUDICATE
3
4 FEBRUARY 1, 2018 PAGE VOL.
5 Caption................................. 1 2
6 Appearances............................. 2 2
7 Proceedings............................. 5 2
8 Motion to Adjudicate.................... 5 2
9 Pleas of True........................... 9 2
10 Motion to Suppress...................... 5 2
11 State's Witnesses Direct Cross VD Vol.
Jason Macha 12 42 38 2
12 Bradley Cantu 49 -- -- 2
Steven Graves 64 75 -- 2
13 Robert SanFilippo 76 87 -- 2
Mark Rath 90 -- -- 2
14 Brian Lukens 98 106 -- 2
15 State Rests.............................. 107 2
16 Motion to Suppress Denied............... 108 2
17 Both sides Close........................ 108 2
18 Closing Argument by Ms. Kucera.......... 109 2
19 Court's Ruling.......................... 109 2
20 Punishment Phase........................ 110 2
21 State Resubmits Adjudication Evidence... 110 2
22 State Rests............................. 110 2
23 Defense's Witness Direct Cross Vol.
Susan Thorbrue 111 -- 2
24
Defense Rests........................... 114 2
25
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1 CHRONOLOGICAL INDEX (CONTINUED)
2 Both sides Close........................ 114 2
3 Closing Argument By Mr. Burns........... 114 2
4 Closing Argument by Ms. Kucera.......... 115 2
5 Court's Ruling.......................... 116 2
6 Proceedings Concluded................... 118 2
7 Court Reporter's Certificate............ 119 2
8 ----------------------------------------------------
9 ALPHABETICAL WITNESS INDEX
10
State's Witnesses Direct Cross VD Vol.
11 Bradley Cantu 49 -- -- 2
Steven Graves 64 75 -- 2
12 Brian Lukens 98 106 -- 2
Jason Macha 12 42 38 2
13 Mark Rath 90 -- -- 2
Robert San Filippo 76 87 -- 2
14
15 Defense Witness Direct Cross VD Vol.
Susan Thorbrue 111 -- -- 2
16
----------------------------------------------------
17 EXHIBITS INDEX
18 STATE'S DESCRIPTION OFFD ADMT VOL.
NO.
19 SX-1 Evading Arrest Map 20 21 2
20 SX-2 BODY CAM DVD 38,61 39,61 2
73 73 2
21 SX-3 BODY/DASH CAM DVD 83 83 2
22 SX-4 BODY CAM DVD 94 95 2
23 SX-5 DASH CAM DVD 104 105 2
24
25
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1 P R O C E E D I N G S
2 (Thursday, February 1, 2018;
3 9:47 a.m.)
4 (Open court, defendant present,
5 no jury)
6 THE COURT: On the record. Court
7 calls Cause Numbers 1321493, 1321487, 1321486. All
8 styled the State of Texas versus Michael
9 Hongpathoum. Is that you, sir?
10 THE DEFENDANT: Yes, ma'am.
11 THE COURT: And we're here today on
12 the State's first amended petition to proceed to
13 adjudication in each of these three cases.
14 What says the State?
15 MS. KUCERA: State's ready,
16 Your Honor.
17 THE COURT: What says the Defense?
18 MR. BURNS: Defense is ready,
19 Your Honor. We do have a couple of preliminary
20 matters before we start calling witnesses.
21 THE COURT: Okay. Go ahead.
22 MR. BURNS: Your Honor, on the
23 petition, Defense would object to paragraph two and
24 paragraph five for the same reason, in that it
25 alleges the defendant committed a new offense while
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1 on probation and the language set out in those
2 paragraphs is insufficient to allege an offense
3 committed in the State of Texas.
4 THE COURT: In what respect?
5 MR. BURNS: It fails to allege that
6 the defendant knew that the officer was trying to
7 detain him, and I believe the case law does require
8 that.
9 THE COURT: What says the State?
10 MS. KUCERA: Your Honor, this -- it's
11 about notice. We'll be happy to prove that as an
12 element. The petition alleges that he was evading
13 in a vehicle, and that he was a peace officer
14 attempting to lawfully arrest or detain the
15 defendant. And I believe 19 adequate notice. I
16 don't think that 19 specifically -- I think it's
17 case law, but not specifically an element to have to
18 allege in a petition.
19 THE COURT: Response?
20 MR. BURNS: Your Honor, the petition
21 alleges he committed a new offense against the State
22 of Texas and it fails to allege that.
23 THE COURT: I think 19 sufficient
24 notice. I'm going to overrule your objection.
25 MR. BURNS: I guess, just -- so I can
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1 it put on the record.
2 THE COURT: It's on the record.
3 MR. BURNS: If I could put my case
4 law in.
5 THE COURT: Okay. Go ahead.
6 MR. BURNS: V. Jackson versus State,
7 718 S.W.2d 724, Texas Court of CCA.
8 THE COURT: All right.
9 Mr. Hongpathoum, the Court's file in
10 these three cases reflects the State's first amended
11 petition to proceed to adjudication, which alleges
12 certain violations of the terms and conditions of
13 your probation. Have you had a chance to go over
14 the allegations contained in these petitions with
15 your attorney?
16 MS. KUCERA: Your Honor, I was going
17 to make the Court aware the State plans to waive --
18 do you want me to make you aware of it now?
19 THE COURT: Yes.
20 MS. KUCERA: The State plans to waive
21 paragraph one, paragraph four, paragraph six, and
22 paragraph eight, and proceed on paragraphs two,
23 three, five, and seven.
24 THE COURT: Mr. Hongpathoum, have you
25 had a chance to go over the allegations contained in
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1 these petitions with your attorney?
2 THE DEFENDANT: I'm looking over them
3 right now.
4 THE COURT: Have you all been over
5 them before this moment?
6 MR. BURNS: Me or him? Either one?
7 THE COURT: Yes.
8 MR. BURNS: Okay. Your Honor, we've
9 been over the allegations. This is the first time
10 he's probably seen it in print.
11 THE COURT: Okay.
12 MR. BURNS: But we've gone over
13 what's alleged.
14 THE COURT: Mr. Hongpathoum, if you
15 would rise, please, sir? This petition alleges that
16 you appeared in this court on these three cases on
17 August 7th, 2013, and pled guilty to the offenses of
18 theft of a firearm; delivery of controlled substance
19 of one gram or more but less than four grams,
20 namely, methamphetamine; and forgery by possession
21 of a forged writing, to wit, money; and were at that
22 time placed on deferred adjudication/probation in
23 each of these cases -- or seven years in the forgery
24 and delivery, and a five-year deferred
25 adjudication/probation in the theft of a firearm.
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1 Is that true or not true?
2 THE DEFENDANT: True.
3 THE COURT: Paragraph two of each of
4 these petitions alleges that you were ordered to
5 commit no offense against the laws of this state or
6 any other state of the United States, and that in
7 violation of this condition you, on or about the
8 22nd day of September, 2017, in the County of
9 Tarrant and the State of Texas did then and there
10 intentionally flee using a vehicle from J. Macha
11 knowing J. Macha was a peace officer who was
12 attempting to lawfully arrest or detain you.
13 Do you understand what paragraph two
14 alleges against you?
15 THE DEFENDANT: Yes.
16 THE COURT: To that allegation you
17 may plead true or not true. What is your plea?
18 THE DEFENDANT: Not true.
19 THE COURT: I couldn't hear what you
20 said.
21 THE DEFENDANT: Not true.
22 THE COURT: Paragraph three alleges
23 that you were to commit no offense against the laws
24 of this state or any other state of the United
25 States, and that in violation of this condition you,
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1 on or about the 22nd day of September, 2017, in the
2 County of Tarrant and State of Texas, did
3 intentionally or knowingly carry, on or about your
4 person, a handgun, and you were in a motor vehicle
5 or watercraft owned by you or under your control,
6 and you were engaged in criminal activity other than
7 a Class C misdemeanor that was a violation of the
8 law or ordinance regulating traffic for boating. Do
9 you understand what paragraph three alleges against
10 you? Do you understand what paragraph three
11 alleges?
12 THE DEFENDANT: Yes.
13 THE COURT: To that allegation you
14 may plead true or not true. What is your plea?
15 THE DEFENDANT: Not true.
16 THE COURT: Paragraph five alleges
17 you were ordered to commit no offense against the
18 laws of this state or any other state of the United
19 States, and that in violation of this condition you,
20 on or about the 11th day of December, 2017, in the
21 County of Tarrant in the State of Texas did then and
22 there intentionally flee using a vehicle from
23 R. San Filippo knowing R. San Filippo was a peace
24 officer who was attempting to lawfully arrest or
25 detain you.
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1 THE DEFENDANT: Yes. Yes, ma'am.
2 THE COURT: To that allegation you
3 may plead true or not true. What is your plea?
4 THE DEFENDANT: Not true.
5 THE COURT: Paragraph seven alleges
6 you were to commit no offense against the laws of
7 this state or any other state of the United States,
8 and that in violation of this condition you, on or
9 about the 11th day of December, 2017, in the County
10 of Tarrant and State of Texas did intentionally or
11 knowingly carry, on or about your person, a handgun,
12 and that you were in a motor vehicle or watercraft
13 owned by you or under your control and were engaged
14 in criminal activity other than a Class C
15 misdemeanor that was a violation of the law or
16 ordinance regulating traffic or boating. Do you
17 understand what paragraph seven alleges against you?
18 THE DEFENDANT: True -- I mean, yes.
19 THE COURT: To that allegation you
20 may plead true or not true. What is your plea?
21 THE DEFENDANT: Not true.
22 THE COURT: You may have a seat, sir.
23 State may proceed.
24 MS. KUCERA: Thank you, Your Honor.
25 At this time the State would call Officer Jason --
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1 MR. BURNS: Your Honor, we had a
2 Motion to Suppress on file.
3 THE COURT: Okay. We'll run that
4 with this.
5 MS. KUCERA: Your Honor, at this time
6 the State would call Jason Macha.
7 THE COURT: Raise your right hand.
8 (Witness sworn)
9 THE WITNESS: I do.
10 JASON MACHA,
11 having been first duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MS. KUCERA
14 Q Officer Macha, can you state and spell
15 your full name for the court reporter.
16 A Jason Macha, M-a-c-h-a.
17 Q All right. And, Officer Macha, how are
18 you currently employed?
19 A Through the City of Fort Worth.
20 Q And how long have you been with the City
21 of Fort Worth?
22 A About four years.
23 Q And in what capacity are you employed with
24 them right now?
25 A Police officer.
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1 Q And what unit are you assigned to?
2 A Central Division Patrol.
3 Q And were you in Central Division Patrol
4 when you -- on September 22nd, 2017?
5 A Yes, I was.
6 Q And, Officer, the Judge has heard multiple
7 police officers testify. Did you have to go through
8 the same type of training and experience that other
9 Fort Worth police officers have had to go through in
10 order to be employed with Fort Worth?
11 A Yes.
12 Q And did you successfully complete that
13 training?
14 A Yes, I did.
15 Q Were you trained in the procedures on,
16 particularly, how to conduct a high speed police
17 chase?
18 A Yes.
19 Q All right. So on September 22nd, 2017,
20 were you involved in a high speed police chase?
21 A Yes, I was.
22 MR. BURNS: Your Honor, at this time
23 I would object for the reasons stated earlier that
24 this would be outside the scope of what's alleged in
25 the petition.
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1 THE COURT: Overruled.
2 MR. BURNS: May I have a running
3 objection so that I don't have to keep getting up?
4 THE COURT: You may.
5 MS. KUCERA: Thank you, Your Honor.
6 Q (BY MS. KUCERA) Officer Macha, on
7 September 22nd, 2017, where were you when this
8 initially started?
9 A I was on the corner of Sylvania and
10 Northeast 28th Street.
11 Q And what is -- what location or
12 establishment is on that corner?
13 A There's an active game room.
14 Q And were you sitting outside of that game
15 room, watching it?
16 A Yes, ma'am.
17 Q And why?
18 A Known illegal drug activity.
19 Q Is it common for you on patrol to sit
20 outside of one?
21 A Yes.
22 Q And so what did you observe when you were
23 sitting outside of this particular gaming
24 establishment?
25 A I observed a male outside on his cellphone
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1 at the time, kind of acting very suspicious, kind of
2 paranoid, looking over at me and the other officer
3 that was there in our patrol cars acting very
4 nervous, kind of don't know what to do, flailing his
5 arms up in the air, kind of pacing back and forth,
6 you know, kind of acting erratic, very nervous.
7 Q And it caught your -- you noticed this
8 behavior at the time?
9 A Yes.
10 Q And you believed it to be suspicious?
11 A Yes.
12 Q And so what did -- what did you do next?
13 A We continued to observe the -- the
14 individual for approximately about five minutes or
15 so.
16 Q Okay. And what did this individual then
17 do?
18 A Eventually, got in his vehicle and
19 proceeded to leave the establishment.
20 Q And what happened when he left the
21 establishment?
22 A Proceeded to leave the establishment. He
23 didn't stop at a sidewalk there that's -- goes in
24 front of the business and proceeded eastbound on
25 Northeast 28th Street at a high rate of speed.
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1 Q And did you then follow the vehicle?
2 A I tried to catch up to him, but, by the
3 time I got out to Northeast 28th Street, he was
4 almost to -- making a turn onto Chandler West.
5 Q Okay. And so did you follow him after he
6 turned?
7 A Yes, I did.
8 Q And did you observe additional traffic
9 offenses?
10 A Yes, I did.
11 Q What did you observe?
12 A I observed -- again, when he turned
13 onto -- turned onto Hollis. And when I got behind
14 him on Hollis and he got on to Hollis and North
15 Riverside, he again didn't stop on Hollis and North
16 Riverside.
17 Q Was there a stop sign there?
18 A It was a stop sign or a traffic stoplight.
19 I can't remember which, exactly.
20 Q Did you observe him run that stop sign or
21 traffic light?
22 A Yes, ma'am.
23 Q Okay. And so did you continue with your
24 pursuit?
25 A That's when I initiated my overheads and
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1 sirens.
2 Q Okay. And what happened when you
3 initiated your sirens and lights?
4 A He -- that's when he hit the gas and
5 proceeded at even a higher rate of speed.
6 Q Okay. Your vehicle that you're driving
7 in, what does it look like?
8 A It was a Ford Explorer, black and white,
9 had Fort Worth Police on it, red and blue lights,
10 white lights.
11 Q Is it very obvious that it's a
12 police-issued vehicle?
13 A Yes.
14 Q And it has red and blue lights and sirens
15 typically equipped on a patrol vehicle?
16 A Yes.
17 Q And you initiated those lights within the
18 sight of the defendant; is that correct?
19 A Yes.
20 Q And obviously aware that you are making a
21 traffic stop on this vehicle?
22 A Yes.
23 Q Any doubt in your mind that he should have
24 been aware of that?
25 A No.
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1 Q And he took off at a high rate of speed;
2 is that correct?
3 A Yes.
4 Q All right. So if you can, can you walk
5 the Judge through the process of this chase from
6 where it started -- you described you're on
7 Riverside at this point, and where you proceed to go
8 throughout the metroplex.
9 A Is it okay if I look at my report?
10 Q Yes.
11 A Okay.
12 Q Well, actually, Officer, let me ask you
13 this: Did this high speed chase continue for
14 multiple miles at this point?
15 A Yes.
16 Q How many miles in total do you remember
17 calculating?
18 A Approximately 90.
19 THE COURT: Nine, zero?
20 THE WITNESS: Nine, zero, yes.
21 Q (BY MS. KUCERA) And so, Officer Macha, as
22 you are going to walk the Judge through these
23 highways and roads that you took throughout this
24 police chase, do you think it would be helpful for
25 her if she were to be able to see it and follow
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1 along with you as you're dictating which roads that
2 you took?
3 A Yes.
4 MS. KUCERA: Your Honor, may I
5 approach the witness?
6 THE COURT: You may.
7 Q (BY MS. KUCERA) Now, Officer, while you
8 were following the defendant for quite a while, were
9 there -- were you getting call-outs over the radio
10 of what else was going on and what happened after
11 you had to abandon your search -- or your chase?
12 A Yes.
13 Q And so I'm going to approach you with
14 what's been marked as State's Exhibit No. 1. Do you
15 recognize this?
16 A Yes, I do.
17 Q And based on the information that you
18 gathered from the radio call-outs during the entire
19 process of the evading, does this map fairly and
20 accurately depict the entire police chase as a
21 whole?
22 A Yes, it does.
23 Q And is this -- can you tell the Judge
24 essentially what this is?
25 A Yes.
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1 Q What is it?
2 A This is pretty much the starting and the
3 ending point of the pursuit.
4 Q And can you follow along on this map
5 the -- the pathway that you took when you were
6 following the defendant?
7 A Yes, I can.
8 Q And I'm going to ask you again, do you
9 think this would be helpful for the Judge in order
10 to see the locations that you traveled on this
11 evening?
12 A Yes.
13 MS. KUCERA: And, Your Honor, at this
14 time I'm going to tender to defense counsel State's
15 Exhibit No. 1, and then ask that it be admitted and
16 permission to publish.
17 (State's Exhibit 1 offered)
18 MR. BURNS: We just object for the
19 reasons stated earlier that it contains allegations
20 outside the petition.
21 THE COURT: What specific allegation
22 do you think it contains that's outside the
23 petition?
24 MR. BURNS: The evading. We object.
25 It is not sufficiently alleged in the petition.
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1 THE COURT: And remind me what is
2 your objection to the evading?
3 MR. BURNS: That the petition fails
4 to allege that he knew this was a police officer.
5 THE COURT: Well, it says knowing he
6 was a peace officer.
7 MR. BURNS: Correct, but it doesn't
8 say that he knew he was trying to lawfully arrest or
9 detain him.
10 THE COURT: Who was attempting to
11 lawfully arrest or detain him?
12 MR. BURNS: It says that he was
13 trying to, but it doesn't further allege that the
14 defendant knew that.
15 THE COURT: Oh. Okay. I mean, you
16 have a running objection, so...
17 MR. BURNS: Yes, Your Honor, that
18 would be my only objection to this.
19 THE COURT: All right. That's
20 overruled. State's 1 is admitted.
21 (State's Exhibit 1 admitted)
22 MS. KUCERA: Thank you, Your Honor.
23 May I have permission to publish it to the Court?
24 THE COURT: Yes.
25 MS. KUCERA: I've printed it on the
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1 Maverick as well if you want to --
2 THE COURT: Yes.
3 MS. KUCERA: -- view that. And I
4 will trace along with Officer Macha as he's
5 describing it.
6 THE COURT: Can you turn it slightly
7 this way? Is it possible? Okay. That's good.
8 Q (BY MS. KUCERA) All right. Officer
9 Macha, you described earlier -- and I'm going to
10 point -- all right. Officer Macha, you described
11 that you started at 2800 --
12 THE COURT: That's it right there.
13 What you just flashed is green.
14 Q (BY MS. KUCERA) So, Officer, you
15 described that you started at Northeast 28th Street,
16 and you proceeded south on Riverside. And before I
17 cut you off, you were describing the next roadway
18 that this -- the vehicle that you were following
19 went -- can you -- before you do that, can you tell
20 the Judge what type of vehicle you were following?
21 A It was a Toyota FR-S.
22 Q Okay. What color was it?
23 A It was black.
24 Q And can you describe anything else
25 specific about the vehicle?
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1 A Not in particular, no. I mean, just two
2 door.
3 Q Okay. All right. And so you were driving
4 on Riverside, and what is the next roadway that the
5 vehicle enters?
6 A 121.
7 Q Okay. And 121 heading west?
8 A Heading west, he took 121 westbound to
9 I-35.
10 Q Okay. Northbound?
11 A Northbound to I-35 to 820, took 820
12 eastbound. We took that until it went to 820
13 southbound.
14 Q Okay.
15 A We then took 820 southbound to I-20.
16 THE COURT: Let me ask you. We're
17 tracing a really long route. What did you see?
18 Were you -- was the car in your sight the whole
19 time?
20 THE WITNESS: Yes, ma'am.
21 THE COURT: And how fast was it
22 going?
23 THE WITNESS: I topped out at
24 131 miles an hour.
25 THE COURT: Just to keep up with this
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1 car?
2 THE WITNESS: Yes.
3 THE COURT: Did you ever -- you never
4 were able to gain on the car?
5 THE WITNESS: Every time we came up
6 to any kind of small turn or curve in the road, the
7 defendant would always slow down, and I could always
8 catch up, right up to it. Or any kind of car that
9 it would come up to, it would always slow down and I
10 could catch up to it. It never got more than -- the
11 most it got ahead of me was probably a quarter of a
12 mile, but, it was always in my sight. At times he
13 would black out, turn off all of his lights, but I
14 was still able to visually see it.
15 THE COURT: Did you have lights and
16 sirens on the whole time?
17 THE WITNESS: The whole time.
18 Q (BY MS. KUCERA) Officer Macha, I think I
19 asked you this earlier, what time of night was this?
20 A It was approximately 1, 1:30 in the
21 morning.
22 Q Now, I know that it's late in the evening
23 or early in the morning. Were -- was there still
24 traffic that you were driving in and out of?
25 A Yes.
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1 Q Was this vehicle driving dangerously?
2 A Yes.
3 Q Was he putting all of the vehicles on the
4 road that night at risk?
5 A Yes.
6 Q At great risk, in fact?
7 A Yes.
8 Q And you yourself as well?
9 A Correct.
10 Q All right. So, Officer, you mentioned
11 that you were on 820 southbound, and then you head
12 east on I-20; is that correct?
13 A Correct.
14 Q And that's -- we're heading towards
15 Arlington?
16 A Yes.
17 Q All right. And then what happens after
18 you're eastbound on I-20?
19 A Hang on one second. Let me make sure I
20 get the correct route here. We then went northbound
21 on Highway 161. From there we went eastbound on
22 Highway 635.
23 Q All right. So, officer, I-20 to
24 northbound on 161 is -- I just -- I glanced, is
25 approximately 40 miles north, and then you go, you
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1 said east on 635; is that correct?
2 A Correct.
3 Q And then you go north again on I-35 East?
4 A Yes.
5 Q And then what is the next roadway that you
6 take?
7 A That was -- at that point he swerved very
8 quickly on that Highway 161.
9 Q Okay. So he goes back onto 161, or the
10 President George Bush Turnpike?
11 A Yes.
12 Q When you say he swerved very quickly, were
13 you able to follow him at that point?
14 A No. That -- at that point -- at that
15 point he faked like he was going to go to the left,
16 and at this last minute he swerved over to the
17 right. I went over to go to the left, the initial
18 way he was going to go. I couldn't make it over to
19 the right. I called out immediately over to the
20 radio -- over the radio that he went to the right
21 and there was another vehicle, K-9 unit, behind me
22 and he was able to go the same way that he went.
23 Q How many other officers were involved?
24 A Immediately behind me there was a Fort
25 Worth K-9 unit, and there was a -- I do believe it
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1 was Irving K-9 Tahoe unit.
2 THE COURT: Irving?
3 THE WITNESS: Yes.
4 THE COURT: Any particular reason why
5 they were involved?
6 THE WITNESS: Because we were going
7 through their jurisdiction. It was either Irving or
8 Grand Prairie, one of the two.
9 THE COURT: All right.
10 THE WITNESS: But we had gone through
11 so many -- I think seven different counties -- or
12 cities.
13 THE COURT: So people would come in
14 and then dropped out?
15 THE WITNESS: Yes.
16 THE COURT: When their city limits
17 hit?
18 THE WITNESS: Yes.
19 THE COURT: Okay.
20 THE WITNESS: Yeah, actually, not
21 Irving. I think it was Grand Prairie K-9 that
22 stayed with us. So...
23 Q (BY MS. KUCERA) So at this point you --
24 let me back up. You -- he takes -- we're back up
25 here at the George Bush Turnpike. He's able to --
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1 you're coming from I-35. You are not able to exit
2 in time, but he is. How close did you come to
3 hitting the guardrail on that exit?
4 A About that far.
5 Q All right. So how far is that?
6 A Probably about a foot doing about 120.
7 Q All right. So, Officer Macha, at that
8 point another officer takes over as the lead
9 vehicle, in other words, in the chase; is that
10 correct?
11 A Correct.
12 Q And you reverse -- just tell the Judge
13 what happens.
14 A So the Fort Worth K-9 passed me. The
15 Grand Prairie K-9 passed me. I back up about
16 50 feet, try to get back into the pursuit. That's
17 when he goes back up to -- I think it was, Josey is
18 where they make a U-turn.
19 Q So the U-turn at Josey Lane, and he
20 gets -- enters back onto 161 --
21 A 161, yeah.
22 Q -- George Bush Turnpike. Okay.
23 A Yeah. And that was the closest I made it
24 back to him. I ended up -- at one point the Grand
25 Prairie unit gets caught behind some traffic. I was
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1 able to swerve around all that traffic and pass
2 them. That's when I ran out of gas, shortly
3 thereafter.
4 Q So, Officer, you're back on 161, the
5 George Bush Turnpike --
6 A Correct.
7 Q -- heading here, and you run out of gas at
8 approximately --
9 A Belt Line, I think it was.
10 Q -- Belt Line and 161?
11 A Yes.
12 Q Okay. So you're, again, kept up with
13 what's going on with the search?
14 A Yes, ma'am. I'm constantly listening to
15 the radio. The Grand Prairie officer, again, passes
16 me. That's when he gets on 183.
17 Q So he goes east -- I'm sorry, westbound on
18 183 --
19 A Westbound on 183 up to Inter -- or
20 International Parkway, which goes right through the
21 middle of DFW airport, crashes through a gate at the
22 airport.
23 THE COURT: Who crashed through the
24 gate?
25 THE WITNESS: The defendant.
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1 THE COURT: Okay.
2 A K-9 officer was right behind him. The
3 gate closes. There was another officer there
4 waiting for the gate to open. At the north end of
5 the gate going westbound on 114, the K-9 officer ran
6 out of gas so he had to terminate the pursuit.
7 Q (BY MS. KUCERA) And so is it fair to say
8 at this point is when your officers have run out of
9 gas and your pursuit is terminated; is that correct?
10 A Correct.
11 Q Okay. So again, you're still listening on
12 the radio, and are you filling up your car with gas
13 at this point?
14 A At that point, there was actually a, like,
15 a Irving Sheriff's officer that came and gave me,
16 like, two gallons of gas, enough for me to make it
17 to the airport to get me gas.
18 Q Okay. And so what's going on, and are --
19 I guess, can you tell the officer -- or, I'm sorry,
20 tell the Judge what else is going on at this time.
21 You've lost the pursuit. You haven't found him.
22 What are the other officers doing?
23 A There was an off-duty officer who has
24 access to the LPR system, which is our license plate
25 reader system, and he was reading -- he was going
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1 through the database with the -- running the license
2 plate and seeing where that license plate had been.
3 MR. BURNS: Objection. Denial to
4 confrontation as to what the other officer was doing
5 and seeing.
6 MS. KUCERA: 19 just talking -- it's
7 his state of mind or his understanding of what's
8 going on.
9 THE COURT: Overruled as to that.
10 Q (BY MS. KUCERA) You can continue.
11 A The officer is running the license plate
12 in the database, seeing where that license plate had
13 been, if it had ever been hit in the city in the LPR
14 system.
15 THE COURT: Where did you get the
16 license plate information? Where did it come from?
17 THE WITNESS: It comes from tow
18 trucks.
19 THE COURT: No, no. I sort of
20 understand that. But who got the license plate off
21 of the car?
22 THE WITNESS: I got it.
23 THE COURT: And at what point?
24 THE WITNESS: I got it off of the car
25 when I initially got behind it. So we had that
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1 initially from when I first got behind the vehicle.
2 THE COURT: All right.
3 A So, at that time, when the pursuit was
4 initially over, when he was running, when he was
5 running license plate in the database, it was
6 hitting up on the east side of Fort Worth around the
7 Meadowbrook area. Within about twelve minutes of
8 time, officers called out that they spotted the
9 vehicle at 820 and Meadowbrook. So from the north
10 side of the airport, from 114 in the north side of
11 the airport down there at the blue section, there
12 (indicating) it was located at 12 minutes later. So
13 even though the pursuit was over, he was still
14 traveling at a high rate of speed, approximately.
15 Q (BY MS. KUCERA) And your best guess is
16 he's getting from north of the airport to I-30 and
17 I-20 in twelve minutes?
18 A Yes.
19 Q Traffic traveling incredibly quickly from
20 your understanding?
21 A Correct.
22 Q And so I know this wasn't -- you weren't
23 involved in this particular car, but you were made
24 aware via the radio that they relocated the
25 defendant and were continuing to follow that same
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1 vehicle?
2 A Correct.
3 Q Is that correct?
4 A Yes.
5 Q Okay. And so they -- your
6 understanding is -- or can you tell the Judge of
7 what your understanding is of how this pursuit ends?
8 A Minor thing is they followed the vehicle
9 here for -- this little pursuit here was
10 approximately for about another ten to twelve more
11 miles into some residential areas here. They
12 backtracked a little bit being a little couple of
13 U-turns. It finally ended up where it went down
14 East 1st Avenue where he finally ran out of gas at
15 the 4200 block of East 1st Avenue. He then got out
16 of the vehicle and started running on foot in a
17 northwesterly direction.
18 THE COURT: How do you know it was
19 the same car?
20 THE WITNESS: It matched the
21 vehicle -- the vehicle description matched -- the
22 vehicle description matched what the officers seen.
23 And one of the officers knew -- saw the plate when
24 they saw it.
25 Q (BY MS. KUCERA) And so, Officer, after
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1 the pursuit eventually terminates with the defendant
2 running out of gas and you said he gets out of his
3 vehicle and runs on foot, is he eventually
4 apprehended?
5 A Yes, he is.
6 Q And so did you eventually arrive at that
7 scene?
8 A About ten to fifteen minutes or so after.
9 Q And did you observe the car on that scene?
10 A Yes.
11 Q Was that the exact same car that you had
12 been pursuing for several miles?
13 A Yes.
14 Q Any doubt in your mind it was the same
15 vehicle?
16 A No doubt.
17 Q Do you -- you testified earlier that you
18 observed the driver outside pacing around the gaming
19 (sic), and you knew before he got in his vehicle?
20 A Yes.
21 Q Do you recognize that person in the
22 courtroom today?
23 A Yes, I do.
24 Q And do you -- could you point out an
25 article of clothing that he is wearing?
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1 A He is wearing a black shirt.
2 Q Does he have glasses on, or not?
3 A Glasses, yes.
4 MS. KUCERA: Your Honor, may the
5 record reflect this witness has correctly identified
6 the defendant.
7 THE COURT: The record will so
8 reflect.
9 MS. KUCERA: Thank you, Your Honor.
10 Q (BY MS. KUCERA) Officer Macha, after you
11 arrived on scene, did you partake in any search or
12 anything of the vehicle?
13 A Yes, I searched the vehicle.
14 Q And what did you locate inside the
15 vehicle?
16 A I located a gun when I ran it on through
17 the PICA system, that it was stolen out of Midland,
18 Texas.
19 Q And where was the gun located in the
20 vehicle, if you remember?
21 A It was located in a black bag they got
22 inside an Xbox bag.
23 Q Inside the vehicle?
24 A Yes.
25 Q And can you tell the Court what the basis
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1 for your search of the vehicle was?
2 A It was incident to arrest.
3 Q And had this vehicle been involved in an
4 offense, and, in fact, a high speed pursuit
5 throughout almost the entire metroplex?
6 A Yes, it was.
7 Q Is it fair to say that this defendant has
8 been engaged in criminal activity while in
9 possession of this weapon?
10 A Yes.
11 Q Is it a Toyota -- I think you described it
12 as -- what kind of vehicle was it, do you remember?
13 A Toyota, FR-S.
14 Q Is that a motor vehicle?
15 A Yes.
16 Q Now, Officer Macha, the patrol vehicle
17 that you were operating at the time, was it equipped
18 with a dash camera?
19 A Yes.
20 Q Was that dash camera capable of recording
21 the events accurately that evening?
22 A Yes, it was.
23 Q Have you had a chance to review your dash
24 camera prior to coming to testify today?
25 A Yes, I have.
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1 Q And did you review that in my office prior
2 to your testimony?
3 A Yes, I did.
4 Q And when you reviewed it, did that dash
5 camera fairly and accurately depict the events as
6 they happened that night?
7 A Yes.
8 Q Does that include the speed of the
9 vehicle, the other vehicles on the road, the
10 dangerous driving patterns and behaviors?
11 A Yes.
12 Q Were there any alterations or deletions or
13 anything to that dash camera?
14 A No.
15 MS. KUCERA: Your Honor, may I
16 approach the witness?
17 THE COURT: You may.
18 Q (BY MS. KUCERA) I'm going to hand you
19 what's been marked as State's Exhibit No. 2. Do you
20 recognize that?
21 A Yes, I do.
22 Q And do you recognize your initials on that
23 DVD?
24 A Yes, I do.
25 Q And is that -- does that DVD contain your
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1 dash camera that we just described?
2 A Yes.
3 Q And I'm going to ask you to make sure that
4 dash camera doesn't contain any additions or
5 deletions and is a fair and accurate depiction of
6 the events that took place that night?
7 A Yes, it is.
8 MS. KUCERA: Your Honor, I'm going to
9 hand State's Exhibit 2 to defense attorney and ask
10 that it be admitted. Your Honor, I will say this:
11 The DVD does contain multiple dash cameras, and I'm
12 only conditionally admitting Officer Macha's dash
13 cam. The other officers will be here to testify to
14 theirs as well.
15 (State's Exhibit 2 offered)
16 MR. BURNS: Can I have a couple of
17 quick questions on voir dire, Your Honor?
18 THE COURT: Yes.
19 VOIR DIRE EXAMINATION
20 BY MR. BURNS:
21 Q Officer Macha, you reviewed this tape --
22 the video she intends to play right now?
23 A Yes.
24 Q Is it just the dash cam? In other words,
25 is the search also on there or is it just on the
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1 car?
2 A We're just talking about the dash cam,
3 correct?
4 MR. BURNS: And, Your Honor, I just
5 object for the same reason as the last exhibit, that
6 it contains allegations outside the petition.
7 THE COURT: Overruled. State's 2 is
8 admitted.
9 (State's Exhibit 2 admitted)
10 MS. KUCERA: Thank you, Your Honor.
11 Permission to publish to the Court?
12 THE COURT: Granted.
13 (State's Exhibit 2 published in
14 open court)
15 Q (BY MS. KUCERA) Now, Officer Macha, is
16 this you leaving the gaming facility?
17 A Yes.
18 Q Can you see the defendant's vehicle?
19 A That's what just turned right now.
20 Q So, Officer, I know 19 difficult for you
21 to see on the video, but you can see the glimpses of
22 the taillights ahead of you. Were you able to
23 visually -- maintain a visual on this vehicle like
24 you testified to earlier?
25 A Yes.
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1 Q Now, Officer, you turned your lights on
2 and he's approximately less than a hundred yards in
3 front of you at that point?
4 A Yes.
5 Q And does he appear to be getting closer to
6 you or farther away?
7 A Further away.
8 Q Officer, you testified -- you see the
9 vehicle take quite a jump there. What happened when
10 your vehicle went over that bump?
11 A My computer come out of its stand. It was
12 when we went over Belknap.
13 Q So now you're entering 121; is that
14 correct?
15 A Yes.
16 Q And are you going north on I-35 on the
17 entrance ramp?
18 A Correct.
19 Q You mentioned earlier to the Judge that
20 when you were driving on the streets and he had to
21 take curves is when you were able to catch up with
22 him. After this, does this defendant stay mostly on
23 freeways at this point?
24 A Yes.
25 Q Why do you think that is?
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1 A Trying to get away.
2 Q Now, Officer Macha, on this video can you
3 see that there's other traffic on the road?
4 A Yes.
5 Q And in your review of the dash camera, are
6 there times when you can observe the defendant
7 weaving in and out of traffic?
8 A Yes.
9 Q In a dangerous manner?
10 A Yes.
11 Q Now, Officer Macha, the video is -- we're
12 four minutes and 22 seconds into the video. And
13 this video lasts for 47 minutes and 15 seconds. Do
14 you remember approximately what time you run out of
15 gas?
16 A About -- probably about 44 minutes into
17 it.
18 Q So, in other words, this entire pursuit
19 throughout -- I mean, you said 90 miles earlier is
20 45 minutes long?
21 A Correct. I go for about 70 miles before I
22 run out of gas and then K-9 goes for about ten miles
23 before he runs out and then ten miles for about
24 those other units.
25 Q All right.
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1 MS. KUCERA: I'm pausing the video at
2 5:19. Your Honor, should you wish to watch the
3 entire video by all means, but -- Your Honor, at
4 this time I pass the witness.
5 MR. BURNS: Thank you, Your Honor.
6 May I approach the video?
7 THE COURT: You may.
8 CROSS-EXAMINATION
9 BY MR. BURNS:
10 Q Officer, I don't know if you can see this,
11 but is that the game room you were referencing --
12 A Yes.
13 Q -- where you spotted him? Now, where
14 would the sidewalk be that he failed to stop at?
15 Would it be this way or that way (indicating)?
16 A The game room is on the other side of the
17 street.
18 Q So the game room is over here
19 (indicating)?
20 A No, right where the bright lights are.
21 Q Right here?
22 A Correct.
23 Q Okay. So the sidewalk would be here or
24 here?
25 A Sidewalk is going to be over there on the
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1 other side of the street.
2 THE COURT: So you're across the
3 street?
4 THE WITNESS: I'm across the street
5 from the game room.
6 THE COURT: Can you see the sidewalk
7 that you're talking about in this video?
8 THE WITNESS: It's not that clear on
9 the video.
10 Q (BY MR. BURNS) We don't see him leaving.
11 So this would be a better view of it, correct?
12 A Correct. So it's going to --
13 THE COURT: I'm not sure -- the red
14 won't show.
15 THE WITNESS: May I approach the TV?
16 THE COURT: Yes, you may. And the
17 green one is apparently out of battery.
18 MS. BELL: It doesn't show up either
19 very well, Judge.
20 A The sidewalk runs right up along here
21 (indicating). So it goes that way, and then
22 continues on up along over here (indicating).
23 Q (BY MR. BURNS) I think I asked this, but
24 we don't see him exiting on the video, correct?
25 A Correct.
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1 THE COURT: Had he already exited
2 then by the time you got to this point?
3 THE WITNESS: Yes.
4 Q (BY MR. BURNS) And would it be fair to
5 say it's hard to see there's a sidewalk there on the
6 video at least?
7 A Yes.
8 THE COURT: Were you trying to detain
9 him at this point or was it later or did you turn
10 your lights on right there?
11 THE WITNESS: No. Because when I got
12 to the street by this point, he was already so far
13 down Northeast 28th Street, he probably wasn't even
14 knowing I was coming after him. So I was trying to
15 get up closer to him so that he would know I was
16 trying to pull him over.
17 THE COURT: Did you have your lights
18 on at that point?
19 THE WITNESS: Not right now, no,
20 because like I said, he was so far ahead of me, I
21 wanted to make sure that he knew that I was trying
22 to pull him over because if I turned them on now,
23 you know, he might not know that I was trying to
24 pull him over.
25 Q But -- so you're saying -- just so I
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1 understand, at this point you are trying to pull him
2 over, you're just not trying to put your lights on
3 because you don't think he would see that far away;
4 is that fair to say?
5 A He might not know that I'm trying to pull
6 him over.
7 Q Right. But you were -- that was your goal
8 going toward him, was to pull him over at this
9 point, correct?
10 A Correct.
11 Q And this may not be a real fair question,
12 but if you need to review the videos, I know there
13 was a bunch, so by all means, let me know if you
14 need to review it. But do you recall in the search
15 video, you were describing to another officer
16 basically this part of the chase and you mentioned
17 you saw him at the game room, and then all of a
18 sudden he was gone, you recall saying that?
19 A I don't recall.
20 Q And you said, So I'm going to go after
21 that black car? I mean, I would kind of match what
22 you were saying here, that right now it's your
23 intention to pull him over, correct?
24 A Correct.
25 Q Now, you also were the -- were you the
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1 only officer that searched the vehicle in this case?
2 A No. There was another officer there that
3 helped searched.
4 Q Were you the primary searching officer?
5 A There was two of us searching.
6 Q Did you guys have a warrant to search the
7 vehicle?
8 A No, we did not.
9 Q Now, the gun in this case was found in an
10 Xbox bag; is that correct?
11 A Yes.
12 Q And you mentioned that was incident to
13 arrest, correct?
14 A Correct.
15 Q Now, the relation to the Xbox bag, where
16 was Mr. Hongpathoum when he was arrested?
17 A He was in the back of a patrol car.
18 Q Well, where was the actual arrest made in
19 comparison to the Xbox bag? Was it a hundred yards?
20 Two hundred yards?
21 A A hundred to two hundred yards away.
22 Q And he was handcuffed immediately,
23 correct?
24 A Correct.
25 Q There was no way he had access to that
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1 bag, correct, at the time he was taken down and
2 arrested?
3 A Correct.
4 Q Okay. Now, you mentioned earlier as well
5 that every time Mr. Hongpathoum got near traffic he
6 slowed down; is that correct?
7 A Uh-huh.
8 Q And if there was a particularly sharp
9 curve, he slowed down as well; is that correct?
10 A Correct.
11 Q Was he doing anything to use his car
12 offensively, such as sideswiping somebody or ramming
13 them off the road?
14 A No, he didn't hit nobody.
15 Q And he didn't even particularly hit that
16 close, did he?
17 A No. He got close to people, but he didn't
18 hit anybody.
19 Q Well, he wasn't trying to hit anybody,
20 correct, as far as you could tell?
21 A He didn't hit anybody. Whether he was
22 trying to hit anybody or not, he didn't hit anybody.
23 Q We're just going to go back to my original
24 question, I guess, which nothing that you saw lead
25 you to believe that he was using the car offensively
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1 in this chase?
2 A He didn't hit anybody.
3 Q He didn't swerve at anybody that
4 threatened to hit them?
5 A You could have said he could have swerved
6 at people, yes.
7 Q You recall on the video where he swerved
8 at a car, not around a car, but --
9 A He got really close to some cars.
10 Q He got really close or he swerved at that
11 offensively? I'm just asking. I'm not trying to
12 put words in your mouth.
13 A Could have swerved at him, could have
14 swerved around them.
15 Q Could have?
16 A When you're doing 130 miles an hour.
17 Q And that's what I'm getting at. If --
18 when you mentioned he's driving dangerously, you're
19 talking about the speed, right?
20 A Yeah.
21 Q Primarily the speed?
22 A Correct.
23 MR. BURNS: May I have one moment,
24 Your Honor?
25 THE COURT: You may.
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1 MR. BURNS: I pass the witness,
2 Your Honor.
3 MS. KUCERA: No further questions for
4 this witness, Your Honor. May he be excused?
5 MR. BURNS: Subject to recall,
6 Your Honor.
7 THE COURT: You may step down and
8 you're excused. You're subject to recall, which
9 means you need to be reachable.
10 THE WITNESS: Okay.
11 MS. KUCERA: Your Honor, at this time
12 the state would call Officer Bradley Cantu.
13 THE COURT: Raise your right hand.
14 (Witness sworn)
15 THE WITNESS: I do.
16 THE COURT: Have a seat, sir.
17 BRADLEY CANTU,
18 having been first duly sworn, testified as follows:
19 DIRECT EXAMINATION
20 BY MS. KUCERA:
21 Q Detective, can you state and spell your
22 name for the court reporter.
23 A Yes, 19 Detective Bradley Cantu.
24 B-r-a-d-l-e-y, C-a-n-t-u.
25 Q Now, Detective, can you tell the Judge how
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1 you're employed.
2 A I'm a detective with the Fort Worth Police
3 Department.
4 Q And how long have you been with the Fort
5 Worth Police Department?
6 A It'll be nine years this month.
7 Q And when were you promoted to detective?
8 A The last week of November.
9 Q And what capacity were you working prior
10 to being a detective?
11 A As a patrol officer.
12 Q And were you a patrol officer in
13 September -- on September 22nd, 2017?
14 A Yes, I was.
15 Q Now, the Judge has heard multiple police
16 officers testify. Did you have to go through the
17 requisite training and experience in order to become
18 a Fort Worth Police Officer?
19 A Yes, I did.
20 Q Did that include the protocol and
21 procedure on the high speed chase?
22 A Yes.
23 Q Were you involved in a high speed chase on
24 September 22nd?
25 A Yes.
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1 Q Can you tell the Judge sort of how you
2 became involved in that?
3 A So the pursuit, it started on the other
4 side of town, and it went out of Fort Worth. So
5 since we are --
6 MR. BURNS: Your Honor, may I renew
7 my objection to being outside of the scope of the
8 petition?
9 THE COURT: Okay. You have a running
10 objection.
11 MR. BURNS: Thank you.
12 A Since it went outside of our city, since
13 we weren't initially involved in the pursuit, we're
14 not allowed to leave the city to try to engage the
15 pursuit, catch up to it. So I was working East
16 Division that night and officers had -- were -- had
17 pursued him outside of the city. When they were
18 coming back, I guess, Officer Macha, they had
19 reinitiated the pursuit and they were coming back
20 into Fort Worth. So I was at Brentwood Stair and
21 820 and Officer Graves had just left the QT that's
22 located there, and he had -- he saw the vehicle and
23 started pursuing the vehicle. So -- I was actually
24 training another officer at the time. And we got in
25 our vehicles and tried to catch up to Officer
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1 Graves. And once we hit Meadowbrook going
2 westbound, we could see Officer Graves pretty far
3 length ahead of us in pursuit with his lights on.
4 And as we're trying to catch up, Officer Graves ends
5 up losing the vehicle momentarily. So we just
6 engage our lights, and we're now crossing over
7 Oakland Boulevard on Meadowbrook continuing going
8 westbound. And as we're going westbound, we see a
9 two-door vehicle -- two-door black vehicle going
10 eastbound with 19 headlights off. And the
11 description we had gotten at that point was a
12 two-door black vehicle. That's what me and my
13 rookie knew at that time. So we turned around and
14 we turned on our lights and hit our siren. And as
15 we're trying to catch up to the car, the car just
16 takes off from us at a very high rate of speed.
17 Q (BY MS. KUCERA) Officer --
18 MS. KUCERA: Your Honor, may I
19 approach the Maverick?
20 THE COURT: You may.
21 Q (BY MS. KUCERA) Officer Cantu, Officer
22 Macha testified earlier that this map is a fair and
23 accurate depiction of the search. And I had an
24 opportunity to show it to you this morning in my
25 office. And do you agree with Officer Macha that it
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1 is a fair and accurate depiction of the pursuit as a
2 whole?
3 A Yes.
4 Q All right. And so you were describing for
5 the Judge -- and I'm going to point the screen that
6 you were parked at the QT right at 820 and I-30; is
7 that correct?
8 A Yeah. It's going to be Brentwood Stair
9 and 820.
10 Q I'm sorry, Brentwood Stair and 820. And
11 so you and Officer Graves are together at that time?
12 A No. Officer Graves was in another
13 vehicle. I was training another officer, and he was
14 driving. So we were in two separate patrol cars at
15 that time.
16 Q All right. And had you had some
17 information that the defendant or the suspect car at
18 that point was located somewhere in that area
19 previous to this occasion?
20 A Yeah. We had been notified -- and it was
21 kind of normal, kind of protocol, whenever a pursuit
22 leaves our city, especially in our side of town, if
23 you're not involved, to kind of hang out at the
24 entry points back in the city, like the freeways
25 leading back in the city, because a lot of times the
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1 vehicle will re-enter the city, so -- that's what we
2 were doing. And a lot of the vehicles that were
3 involved in the pursuit had ran out of gas, so
4 that's why we were at the gas station, initially, so
5 we would make sure that if the pursuit did get
6 started again that we would have gas. So that's why
7 we're sitting there. And we were notified to kind
8 of stay in the area and then Officer Macha was
9 pursuing the car. I believe it was down 820, but
10 they were coming back into our city. So we know
11 that the vehicle was coming back into our city.
12 Q All right. And so the pursuit had
13 essentially ended up around the airport and you
14 believed that it was possible that the suspect
15 vehicle could re-enter the city?
16 A Yes.
17 Q And so you and Officer Graves were
18 stationed in that area?
19 A Yes.
20 Q All right. And so you testified earlier
21 that Officer Graves is the first one to spot the
22 vehicle which matched the description?
23 A Yes.
24 Q And so he begins following that vehicle.
25 And then you said, eventually loses sight of it,
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1 correct?
2 A Yes.
3 Q So you told the Judge earlier that you and
4 your Officer Magado (phonetic)?
5 A Magado (phonetic), yes.
6 Q Are trying -- in the process of trying to
7 catch up to Officer Graves and the pursuit when you
8 see the vehicle pass you?
9 A Yes.
10 Q Going the opposite direction?
11 A Yeah. It was going -- we were going
12 westbound, kind of to go into the neighborhood that
13 Officer Graves had lost the vehicle in, and this
14 vehicle was passing us going eastbound.
15 Q And you said it matched the color, the
16 description -- and the description of the vehicle
17 that had, to your knowledge, been involved in this
18 entire pursuit?
19 A Yes, it did.
20 Q All right. And so once you see the
21 vehicle pass you, what do you do?
22 A So once we see the vehicle pass us, it had
23 19 headlights off. And, I mean, obviously it
24 matched the description we're given and it was
25 obviously suspicious that the headlights were off.
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1 It was approximately 2:00 o'clock in the morning.
2 So we make a U-turn on Meadowbrook and start heading
3 eastbound. Officer Magado initiates our red and
4 blue lights and we start trying to catch up to the
5 car to reinitiate the pursuit, and, I mean, as we
6 turned our lights on, the car just takes off from
7 us.
8 Q Did that give you further confirmation
9 that you were following the right vehicle?
10 A Yes. So it went through the light at
11 Meadowbrook and Oakland, and we just -- we tried our
12 best to try to catch up to it, but it was pulling
13 away from us the entire time. And so Officer
14 Graves, he was -- he happened to be in front of us
15 on Oakland, and he got behind the vehicle, so he was
16 closer at that point than we were.
17 Q So I want to make sure I understand so
18 that the Judge understands. So essentially Officer
19 Graves picks the vehicle back up, follows it down
20 Meadowbrook, loses it, you guys take over, you pick
21 it up, and then as soon as you pick it up and you're
22 trying to catch back up with it, Officer Graves was
23 able to get in front of you. And so fair to say
24 that once you picked it up back up, you never lost
25 sight of the vehicle?
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1 A That's correct, yes.
2 Q So were you involved in the -- I guess,
3 tell the Judge what happens after you and Officer
4 Graves were in pursuit?
5 A So as we're going northbound on Oakland,
6 Officer Graves, he had initially picked the vehicle
7 up on Brentwood Stair, and when he got on
8 Meadowbrook and Oakland that's when he ended up
9 losing it. So we then picked it up, Officer
10 Graves -- we were called out on the radio that we
11 were in pursuit in the vehicle again and Officer
12 Graves just happened to be coming down south on
13 Oakland Boulevard from Interstate 30, and the
14 vehicle was driving northbound on Oakland. So he
15 made a U-turn in front of us since were so far away
16 from the vehicle and we couldn't catch up, that he
17 got in front of us and he was the first vehicle at
18 that point who was in pursuit.
19 So we're behind Officer Graves. We're
20 following him trying to catch up to him. We get up
21 to Randol Mill. We go westbound up on Randol Mill.
22 And as -- I can't recall which cross street we're
23 passing, but as we're driving westbound on Randol
24 Mill, the vehicle starts to slow down. So Officer
25 Graves starts to slow down, and we finally catch up
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1 to Officer Graves and then the vehicle just stops.
2 Once the vehicle stops, the driver jumps out of the
3 driver's side of the car -- the driver's door -- and
4 runs -- keeps running westbound down the street and
5 then runs north into a field which -- where he was
6 taken into custody.
7 Q Now, Officer Cantu, were you involved in
8 that foot pursuit?
9 A Yes, I was.
10 Q Did you observe the driver of the vehicle
11 get out of the car and run?
12 A Yes, I did.
13 Q Do you see that driver in the courtroom?
14 A Yes, I do.
15 Q Officer Cantu, can you point to him and
16 identify an article of clothing that he is wearing.
17 A It's the gentleman sitting here with the
18 black glasses on, black shirt.
19 MS. KUCERA: Your Honor, may the
20 record reflect that the witness has correctly
21 identified the defendant.
22 THE COURT: The record will so
23 reflect.
24 MS. KUCERA: Thank you, Your Honor.
25 Q (BY MS. KUCERA) Officer Cantu -- or, I'm
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1 sorry, Detective, the vehicle that you were driving
2 that evening, was it equipped with a dash camera?
3 A Yes, it was.
4 Q Was that dash camera capable of making an
5 accurate recording of the events that took place?
6 A Yes, it was.
7 Q Have you had a chance to review that dash
8 camera prior to testifying?
9 A Yes, I did.
10 Q Does that camera -- does the video fairly
11 and accurately depict the events that took place?
12 A Yes, it does.
13 Q Does it depict to the point where you pick
14 up the defendant's vehicle all the way until the
15 apprehension?
16 A Yes. So when we turned on our overhead
17 red and blue emergency lights, the camera goes back
18 approximately 30 seconds, I believe, so it shows
19 whenever Officer Magado hit the lights. We had
20 already -- I can't recall if we had already made the
21 U-turn and we're heading eastbound following the
22 vehicle, or if we were making the U-turn at the
23 moment he hit his lights, but it doesn't have us
24 coming westbound past Oakland where the vehicle is
25 passing us, because at that time we didn't have our
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1 camera on, we didn't have our emergency lights on,
2 so the camera wasn't rolling at that point.
3 Q But it eventually turns on at 30 seconds
4 after you turn your lights --
5 A Once it's turned on the camera is on, but
6 it goes back 30 seconds. So it captures us the
7 moment we turn our overhead lights on going
8 eastbound following the car and then going
9 northbound on Oakland.
10 MS. KUCERA: Your Honor, may I
11 approach the witness?
12 THE COURT: You may.
13 Q (BY MS. KUCERA) Detective, I'm going to
14 hand you what's been marked as State's Exhibit
15 No. 2. Do you recognize that?
16 A Yes, I do.
17 Q And are those your initials on State's
18 Exhibit 2?
19 A Yes, they are.
20 Q And does State's Exhibit 2 contain the
21 dash camera that we're specifically talking about?
22 A Yes, it does.
23 Q And, again, does that dash camera, that
24 you've had a chance to review, fairly and accurately
25 depict the events that you've just described for the
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1 Judge?
2 A Yes, it does.
3 MS. KUCERA: Your Honor, at this time
4 I would offer Detective Cantu's dash camera and
5 tender to defense counsel and ask that it be
6 admitted.
7 (State's Exhibit 2 offered)
8 MR. BURNS: Objection to it being
9 outside the scope of the petition, Your Honor.
10 THE COURT: That's overruled and the
11 dash camera on State's 2 is admitted.
12 (State's Exhibit 2 admitted)
13 MS. KUCERA: Thank you, Your Honor.
14 May I have permission to publish to the Court?
15 THE COURT: That's granted.
16 (State's Exhibit 2 being
17 published in open court)
18 Q (BY MS. KUCERA) Now, Detective, on the
19 video you can see the lights on another police car.
20 Is that Officer Graves's police lights that had --
21 A Yes. The one that's in front of us,
22 that's Officer Graves.
23 Q So he was able to get right behind the
24 suspect vehicle?
25 A Yes, he was.
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1 Q Detective, do you recall how fast you were
2 going at this point?
3 A I wasn't driving at the time, so I'm
4 not -- I'm not sure how fast we were going. But we
5 were going well over the speed limit. I know that.
6 We were trying to catch up. Officer Magado, he was
7 in his training phase of his field training. So he
8 was a little hesitant to go too fast. So that's why
9 we were having a little trouble at this point. He
10 was kind of new. I don't know if he'd been involved
11 in a pursuit at that time. But even with his
12 driving, we weren't able to catch up to Officer
13 Graves, and I was telling him the entire time to
14 catch up to Officer Graves.
15 Q Now, the video is at 2 minutes and 40
16 seconds. Is this approximately when the vehicle
17 begins to run out of gas?
18 A Yes.
19 Q Officer, do you recall if the Air One
20 helicopter was involved in this pursuit?
21 A Yes, it was.
22 Q Detective, do you remember if there was
23 anyone else in the vehicle at the time?
24 A Whenever -- which is about to happen --
25 the driver is going to get out and continue running
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1 westbound. Me and Officer Graves are going to
2 pursue him on foot. No one else got out of the car.
3 I mean, to that point, Officer Magado ends up
4 clearing the car for other people, but no one else
5 got out of the car.
6 Q No one else located in the vehicle?
7 A No one else is located inside the vehicle.
8 Q Now, at about 3 minutes and 40 seconds,
9 can you observe you running past the suspect vehicle
10 to apprehend the defendant on foot?
11 A Yes.
12 Q And this vehicle that you were following,
13 that Officer Graves got in front of you, same
14 vehicle that you were following?
15 A Yes.
16 Q Were you able to apprehend the driver of
17 this vehicle?
18 A Yes, we were.
19 MS. KUCERA: Pass the witness.
20 MR. BURNS: No questions for this
21 witness, Your Honor.
22 THE COURT: You may step down,
23 Officer.
24 MS. KUCERA: Your Honor, may this
25 witness be excused?
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1 MR. BURNS: Yes, Your Honor.
2 THE COURT: You may step down, and
3 you are excused.
4 MS. KUCERA: At this time, Your
5 Honor, the State would call Officer Steven Graves.
6 THE COURT: Raise your right hand.
7 (Witness sworn)
8 THE WITNESS: I do.
9 THE COURT: Have a seat sir.
10 STEVEN GRAVES,
11 having been first duly sworn, testified as follows:
12 DIRECT EXAMINATION
13 BY MS. KUCERA:
14 Q Officer Graves, can you state and spell
15 your name for the court reporter.
16 A Steven Graves, S-t-e-v-e-n, G-r-a-v-e-s.
17 Q And, Officer, how are you currently
18 employed?
19 A Fort Worth Police Department, with the
20 gang unit.
21 Q How long have you been a police officer at
22 Fort Worth?
23 A Fort Worth, going on three and a half
24 years.
25 Q Were you a police officer somewhere else?
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1 A In Azle.
2 Q In what capacity were you working for Fort
3 Worth on September 22nd, 2017?
4 A I was working patrol on the east side.
5 Q And do you recall being involved in a high
6 speed choice on the 22nd?
7 A Yes, ma'am.
8 MR. BURNS: Your Honor, I renew my
9 objection of this witness as being outside the scope
10 of the petition.
11 THE COURT: Okay. You have a running
12 objection.
13 MS. KUCERA: Thank you, Your Honor.
14 MR. BURNS: And may I renew my
15 objection to this witness as well?
16 THE COURT: Running objection is for
17 the whole thing throughout the hearing.
18 Q (BY MS. KUCERA) I'm sorry. I forgot what
19 I was asking you. How -- were you involved in a
20 high speed chase on September 22nd?
21 A Yes, ma'am.
22 Q And Officer Macha and Officer Graves both
23 previously testified -- and do you recall, just
24 generally speaking, the pursuit -- is it fair to say
25 the pursuit had gone throughout a large portion of
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1 the metroplex?
2 A Yes, ma'am.
3 Q And so were you stationed at the entrance
4 back into Fort Worth in the hopes that the
5 defendant's vehicle would show up?
6 A Yes, ma'am.
7 Q And so can you tell the Court where you
8 were at the time?
9 A I was at Brentwood Stair and 30.
10 Q Okay. Any particular reason you were at
11 that location?
12 A We had just got gas, just finished getting
13 gas.
14 Q All right. And so did you happen to see
15 the suspect vehicle?
16 A Yes, ma'am.
17 Q And can you tell the Judge what you saw?
18 A As I was leaving the gas station going
19 westbound on Brentwood Stair at the -- at East Loop
20 820, I saw a black two-door vehicle traveling at a
21 high rate of speed, exit 30, and go westbound on
22 Brentwood Stair Road.
23 Q And did you recognize that vehicle as the
24 one that was matching what had been called out to
25 you over the radio?
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1 A Initially, no.
2 Q And then what happened?
3 A As I started trying to catch up to it,
4 and -- he turned southbound on Oakhill. And when I
5 observed what the vehicle was, and I recognized it
6 then.
7 Q And how fast was he traveling at this
8 point?
9 A It was a very high rate of speed.
10 Q So was it difficult for you to catch up to
11 him?
12 A Yes, ma'am.
13 Q So did you then initiate a pursuit?
14 A Yes, ma'am.
15 Q And what happened?
16 A He failed to yield the right of way. And
17 we continued southbound on Oakhill until we turned
18 westbound on Meadowbrook.
19 Q What happened when you turned westbound on
20 Meadowbrook?
21 A We continued at a very high rate of speed,
22 and he slowly pulled away from me. It got too far
23 to where I couldn't see him anymore. I couldn't see
24 taillights.
25 Q And so did you have your lights on at this
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1 point?
2 A Yes, ma'am, lights and sirens.
3 Q And were you calling out over the radio
4 your location?
5 A Yes, ma'am.
6 Q And once you couldn't see his taillights
7 and you lost him, did you call that out over the
8 radio?
9 A Yes, ma'am.
10 Q And were you made aware of the fact that
11 Officer -- or, now Detective Cantu, was able to
12 locate him on Meadowbrook in the opposite direction?
13 A Yes, ma'am. After I lost sight of him, I
14 started heading back to the last point where I saw
15 him. And at that time Officer Cantu called out that
16 the vehicle had passed by him.
17 Q And what did you do when you learned of
18 their location?
19 A I was traveling southbound on Oakland when
20 Officer Cantu saw him coming eastbound on
21 Meadowbrook. And so he called out that he had
22 turned northbound on Oakland, which was coming my
23 direction, so I made a U-turn in the middle of the
24 road and waited at an intersection for the vehicle
25 to come by.
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1 Q And did that vehicle pass you?
2 A Yes, ma'am.
3 Q Did that vehicle match the same vehicle
4 that you had been following just previously?
5 A Yes, ma'am.
6 Q And did that same vehicle match the exact
7 same description of the one that had been involved
8 in this DFW metroplex pursuit?
9 A Yes, ma'am.
10 Q And so were you able to get behind the
11 vehicle?
12 A Yes, ma'am.
13 Q And once you were able to get behind the
14 vehicle, were you able to maintain a visual on that
15 vehicle?
16 A Yes, ma'am.
17 Q So can you tell the Judge what happened
18 after you began following the vehicle?
19 A I followed the vehicle over I-30 and then
20 went over to Randol Mill and went westbound. Then I
21 keep eyes on the taillights throughout until I could
22 see. And on Randol Mill I started catching more
23 ground. I started gaining ground because I noticed
24 the vehicle had started slowing -- slowing down, at
25 which we came to a stop.
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1 Q When you were following this vehicle, did
2 you observe multiple traffic violations?
3 A Yes, ma'am.
4 Q Speeding?
5 A Yes, ma'am.
6 Q Running stop signs or not yielding to
7 traffic devices or signals?
8 A Yes, ma'am.
9 Q Anything else?
10 A I used a turn signal.
11 Q Okay. And so the vehicle starts slowing
12 down. What happens after the vehicle starts slowing
13 down?
14 A When it came to a stop, the driver exited
15 the driver's seat and began running.
16 Q What did you do?
17 A I exited my patrol vehicle and began
18 chasing him.
19 Q And what did you observe when you chased
20 him? What happened?
21 A I followed him into a field. When there
22 was officers behind me -- when he was tackled by
23 another officer who was coming from the opposite
24 direction.
25 Q So was this -- the driver of the vehicle
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1 taken into custody?
2 A Yes, ma'am.
3 Q Any doubt in your mind that the driver of
4 that vehicle is the same person who was taken into
5 custody and arrested?
6 A No, ma'am.
7 Q Do you see that driver in the court today?
8 A Yes, ma'am.
9 Q Will you point to him and identify an
10 article of clothing he's wearing?
11 A The gentleman with glasses wearing a green
12 shirt.
13 MS. KUCERA: Your Honor, may the
14 record reflect the witness has correctly identified
15 the defendant.
16 THE COURT: The record will so
17 reflect.
18 MS. KUCERA: Thank you, Your Honor.
19 Q (BY MS. KUCERA) Officer, when you were
20 operating your vehicle that night, was your vehicle
21 equipped with a dash camera?
22 A Yes, ma'am.
23 Q And was that dash camera capable of making
24 an accurate recording of the events that took place?
25 A Yes, ma'am.
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1 Q And was it activated during this pursuit?
2 A Yes, ma'am.
3 Q Have you had a chance to review that dash
4 cam prior to testifying this morning?
5 A I have.
6 Q And when you were able to review that, was
7 the dash camera a fair and accurate depiction of the
8 events that took place that night?
9 A Yes, ma'am.
10 Q And were there any additions or deletions
11 made to that video?
12 A No, ma'am.
13 MS. KUCERA: Your Honor, may I
14 approach the witness?
15 THE COURT: You may.
16 Q (BY MS. KUCERA) Officer, I'm going to
17 hand you what has been marked as State's Exhibit 2.
18 Do you recognize that?
19 A I do.
20 Q And do you see your initials on that?
21 A Yes, ma'am.
22 Q And is that this video that you watched of
23 your dash camera, the same video we have been
24 talking about that's been describing the same events
25 that took place?
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1 A Yes, ma'am.
2 MS. KUCERA: Your Honor, at this time
3 I would offer Officer Graves's dash camera video,
4 State's Exhibit -- that's listed on State's Exhibit
5 No. 2.
6 (State's Exhibit 2 offered)
7 MR. BURNS: Just object to being
8 outside the scope of the petition, Your Honor.
9 THE COURT: Overruled. State's 2
10 dash cam video of Officer Graves is admitted.
11 (State's Exhibit 2 admitted)
12 MS. KUCERA: Thank you, Your Honor.
13 May I have permission to publish to the Court?
14 THE COURT: That's granted.
15 MS. KUCERA: Thank you, Your Honor.
16 Q (BY MS. KUCERA) Now, Officer Graves, can
17 you describe what's going on in this video?
18 A So this video is after I lost him the
19 first initial time.
20 Q And what road are you on?
21 A We are on Interstate 30 traveling
22 eastbound. About this time Officer Cantu had said
23 that he was -- the suspect had passed him traveling
24 eastbound on Meadowbrook. This is getting ready to
25 be Oakland Hill -- I'm sorry, Oakland Boulevard
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1 which he made a right turn, southbound on...
2 Q And so you're heading back to that
3 location to try to intercept the vehicle?
4 A Yes, ma'am.
5 Q So at 1 minute and 15 seconds you initiate
6 a U-turn, and that vehicle you are currently getting
7 behind is the suspect vehicle?
8 A Yes, ma'am.
9 Q How fast do you think that vehicle was
10 going at the time?
11 A Somewhere probably between 70 and 80.
12 Q And is that at a residential neighborhood?
13 A Yes, ma'am.
14 Q And is that, in your opinion, extremely
15 dangerous?
16 A Yes, ma'am.
17 Q Officer, what street is this that you're
18 turning left on?
19 A 19 Randol Mill but maybe East First Street
20 right there. It splits there on Oakland.
21 Q And those taillights that you can see on
22 the video, are those the taillights of the suspect
23 vehicle?
24 A Yes, ma'am.
25 Q Now, there's a light that's shining on
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1 the -- the vehicle, is that the Air One helicopter?
2 A Yes, ma'am.
3 Q Now, Officer, at 4 minutes and 9 seconds
4 on your video, what are you observing?
5 A The driver exited the vehicle and began
6 running on foot.
7 Q Are you also chasing him on foot?
8 A Yes, ma'am.
9 Q And you described it earlier that he runs
10 north here into a field. And are you able to
11 apprehend him?
12 A Yes, ma'am.
13 Q Any doubt in your mind that with your
14 lights flashing and the type of vehicle that you
15 were driving, which is a patrol vehicle, that this
16 defendant knew you were a police officer attempting
17 to lawfully arrest or detain him?
18 A No, ma'am.
19 MS. KUCERA: I'll pass the witness.
20 CROSS-EXAMINATION
21 BY MR. BURNS:
22 Q After Mr. Hongpathoum was arrested in the
23 field, he was taken in the back of the police car;
24 is that correct?
25 A I would assume so.
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1 MR. BURNS: Pass the witness,
2 Your Honor.
3 MS. KUCERA: I have no further
4 questions for this witness. May he be excused?
5 MR. BURNS: Yes, Your Honor.
6 THE COURT: You may step down, sir,
7 and you're excused.
8 MS. BELL: The State would call
9 Officer SanFilippo.
10 MR. BURNS: Could we take a short
11 break, Your Honor?
12 THE COURT: Yes.
13 (Recess from 10:53 a.m. -
14 11:07 a.m.)
15 THE COURT: Raise your right hand.
16 (Witness sworn)
17 THE WITNESS: I do.
18 THE COURT: Have a seat, sir.
19 ROBERT SANFILIPPO,
20 having been first duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MS. BELL:
23 Q Good morning, Officer. Would you please
24 introduce yourself and spell your name for the court
25 reporter.
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1 A I'm Officer Robert SanFilippo,
2 S-a-n-F-i-l-i-p-p-o.
3 Q Officer San Filippo, how are you currently
4 employed?
5 A I'm an officer with the Fort Worth PD.
6 Q And what did you do before that?
7 A I was a corrections officer for 12 years.
8 Q Do you recall what you were doing
9 December 11th of 2017?
10 A Yes, ma'am.
11 Q And what was that? What were you doing
12 that evening?
13 A Routine patrol.
14 Q And where were you doing your routine
15 patrol?
16 A In the area of Beach and Northeast 28th.
17 Q And did you observe anything that caught
18 your attention?
19 A Yes. I observed the suspect vehicle.
20 Q And how did you know it was a suspect
21 vehicle?
22 A I was involved in a short pursuit where
23 the suspect vehicle evaded about one week prior.
24 Q And that week prior had y'all been able to
25 catch that suspect vehicle?
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1 A No, ma'am, it was too fast.
2 Q And what about that suspect vehicle did
3 you see this night in question?
4 A It was a small black two-door. It had the
5 license plate stuck up on the top left corner of the
6 windshield. It was very recognizable.
7 Q What did you do next?
8 A I parked in the parking lot and I waited
9 for the driver to come out.
10 Q And then what happened?
11 A Driver came out, got into the vehicle, and
12 I pulled up behind the car, initiated an
13 investigatory stop to try and ID the driver.
14 Q Was that successful?
15 A No. The driver decided to turn the car on
16 and back up into my police car and take off.
17 MR. BURNS: Your Honor, I object
18 least for now just the backing into the police car
19 being outside the scope of the petition.
20 THE COURT: Overruled.
21 Q (BY MS. BELL) After you backed into your
22 police car and started driving away, what did you
23 do?
24 A I engaged in a pursuit.
25 Q Now, Officer, how long was this pursuit,
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1 roughly?
2 MR. BURNS: Your Honor, I object
3 again to the evading outside the scope, and may we
4 have a running objection on that?
5 THE COURT: 19 overruled, and you may
6 have a running objection.
7 A In excess of 30 minutes.
8 Q (BY MS. BELL) And how many ground units
9 were called out?
10 A Twenty-eight ground units.
11 Q And was anybody else called out on this
12 particular evading?
13 A Our helicopter.
14 Q And why was the helicopter called out?
15 A Because we couldn't keep up with the car.
16 It was too fast.
17 Q So you had 28 ground units and a
18 helicopter. Did y'all maintain a visual on this
19 suspect vehicle during the whole evading?
20 A We did have enough units to keep a visual
21 eye on him, yes.
22 THE COURT: How is this car so much
23 faster than your police cars?
24 THE WITNESS: It's a brand new Toyota
25 FR-S. It has a top speed of 146 miles per hour.
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1 Our squad typically won't go over 130.
2 Q (BY MS. BELL) So when you started the
3 pursuit, where were you at?
4 A It was at North Beach and Northeast 28th.
5 Q And that's in Tarrant County?
6 A It is in Tarrant County, yes.
7 Q And that vehicle that you described, what
8 was it again?
9 A A 1216 Toyota FR-S.
10 Q And that's considered a motor vehicle?
11 A Yes.
12 Q Now, Officer, did you -- were you part of
13 the pursuit from the beginning to the end?
14 A No, about a few minutes into it I struck a
15 curb and bent a wheel, so I had to drop out early.
16 Q And why did you drop out early? What was
17 the bent wheel keeping you from doing?
18 A I couldn't keep up.
19 Q Did you run the -- how did you identify
20 the defendant?
21 A He was involved in a pursuit about a month
22 and a half prior to my pursuit, and I knew his face.
23 THE COURT: Were you involved in that
24 pursuit.
25 THE WITNESS: No, ma'am.
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1 THE COURT: How did you know his face
2 from that pursuit then?
3 THE WITNESS: My teammate chased him.
4 We share information.
5 THE COURT: So you saw his face
6 through your teammate?
7 THE WITNESS: No, his booking photo.
8 Q (BY MS. BELL) And although you had to
9 drop out of the pursuit early, did you state --
10 through radio, did you know where the pursuit was
11 heading, and what was going on throughout the whole
12 course of this event?
13 A Yes. Yes, I did.
14 Q Did you -- when did you end up getting the
15 suspect's name? Did you remember when about you
16 realized who it was and you ran his name?
17 A Probably a few minutes into the chase.
18 Q And you told me -- based on your offense
19 report, did you look him up and did you confirm any
20 warrants or anything of this defendant?
21 A I had an idea that he had a warrant
22 already, but I had not already confirmed it.
23 Q And during this course of these events,
24 did you end up doing that?
25 A Yes. I did run him, and he showed seven
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1 warrants.
2 Q Officer San Filippo, did you have a body
3 cam that night?
4 A Yes, I did.
5 Q And do you know how to properly
6 activate it?
7 A Yes, I do.
8 Q And did you have video from this incident
9 in question?
10 A I do.
11 Q And this morning did you watch it on a
12 disk?
13 A Yes, I did review it.
14 Q And does it fairly and accurately
15 represent the proceedings of that night?
16 A Yes, it does.
17 MS. BELL: Your Honor, may I approach
18 the witness?
19 THE COURT: You may.
20 Q (BY MS. BELL) Officer, I'm handing you
21 what's been marked as State's Exhibit 3. Do you
22 recognize it?
23 A Yes, ma'am, I do.
24 Q And how do you recognize it?
25 A It's initialed and dated by me.
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1 MS. BELL: Your Honor, I'm going to
2 tender to Defense.
3 (State's Exhibit 3 offered)
4 MR. BURNS: We just object that the
5 acts depicted are outside the scope of the petition.
6 THE COURT: Overruled. State's 3 is
7 admitted. Does it have multiple files on it like
8 State's 2?
9 (State's Exhibit 3 admitted)
10 MS. BELL: No, Your Honor. This one
11 only has SanFilippo's body cam.
12 THE COURT: And were all of the files
13 on State's 2 offered and admitted? Are there any
14 files that didn't come in through a witness?
15 MS. KUCERA: Yes, Your Honor, there
16 are files on State's 2 that were not published to
17 the Court or admitted through a witness. I can
18 articulate those at the conclusion.
19 THE COURT: Okay.
20 MS. BELL: Permission to publish?
21 THE COURT: That's granted.
22 This is your body cam?
23 THE WITNESS: That's cool. Yes.
24 Q (BY MS. BELL) At this point, what's
25 happened?
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1 A He's gotten into the car, and I'm pulling
2 up to make contact.
3 Q Now, why did you pull your gun out?
4 A I'm sorry. What was the question?
5 Q So right here you pulled your gun out.
6 Why did you pull your gun out?
7 A He stuck his hand in his right pocket. I
8 sort of heard a movement. I thought he might have
9 had a gun out.
10 Q And did you have any prior information
11 that might have led you to believe that he had a
12 gun?
13 A Yes. The last time he was captured, he
14 had a loaded pistol.
15 Q Okay. Thank you. So when you say he's
16 "blacking out", what does that mean?
17 A That means he turns all his lights off.
18 Q And what type of area were y'all driving
19 through?
20 A That's a residential area.
21 Q And would you say you were driving fast or
22 slow?
23 A Extremely fast.
24 Q And was he stopping at the stop signs?
25 A No, ma'am. He didn't even slow down at
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1 the stop signs.
2 Q How many stop signs would you say, during
3 the course of you chasing him, that he ran?
4 A Roughly ten.
5 Q And how fast would you estimate that you
6 were going right about now through this residential
7 area?
8 A In excess of 80 miles an hour.
9 Q So you had just hit a curb and you knew
10 you were about to be disabled?
11 A Yes, ma'am.
12 Q What did you do?
13 A Called out for additional units.
14 Q Now, are you able to see the defendant's
15 vehicle at this time?
16 A Yes, ma'am.
17 Q Now, Officer, when did you end your
18 pursuit?
19 A I ended my pursuit when my vehicle
20 wouldn't go any further.
21 Q And was there someone there to follow him
22 at that time?
23 A Yes, there was.
24 MS. BELL: And, Your Honor, 19 on
25 video, but in the interest of time, I was going to
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1 go ahead and pause it at 6 minutes and 30 seconds
2 unless you'd like to see the rest?
3 THE COURT: No. Go ahead and pause
4 it.
5 Q (BY MS. BELL) Officer San Filippo, when
6 you initially approached him, is there any doubt in
7 your mind that he knew you were a police officer?
8 A There was no doubt.
9 Q And were you attempting to detain him?
10 A Yes, I was.
11 Q And so, in your opinion, was he knowingly
12 and intentionally fleeing?
13 A Yes, he was.
14 Q And when you knocked on his window, were
15 you able to get a good look at him?
16 A Yes.
17 Q And do you see that person in the
18 courtroom today?
19 A Yes, ma'am.
20 Q And would you please identify him by an
21 article of clothing?
22 A He's wearing a green shirt right there.
23 MS. BELL: Your Honor, may the record
24 reflect that the witness has identified the
25 defendant.
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1 THE COURT: The record will so
2 reflect.
3 MS. BELL: Thank you, Your Honor.
4 State will pass the witness.
5 CROSS-EXAMINATION
6 BY MR. BURNS:
7 Q Good morning, Officer Filippo?
8 A Good morning, sir.
9 Q You mentioned on your direct examination
10 that you saw a booking photo of the defendant, and
11 that's how you recognized him?
12 A That's correct.
13 Q Now, how did you get that photo, was it
14 just attached to the car and y'all looked up the
15 owner of the car?
16 A No, sir. 19 part of our MS database.
17 Q But how did you get a photo? You saw a
18 car in a pursuit, correct? And that car got away?
19 A Correct.
20 Q Right?
21 A Yes.
22 Q Okay. So how did you get from there to
23 the booking photo of Mr. Hongpathoum?
24 A From the initial pursuit from my partner.
25 THE COURT: Are we talking about two
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1 or three pursuits?
2 THE WITNESS: Three total.
3 THE COURT: So we've got a pursuit in
4 September, a pursuit that was a little bit before
5 this. How long before this? December?
6 THE WITNESS: About a week.
7 THE COURT: So the week before this,
8 and then this is the third pursuit?
9 THE WITNESS: Yes.
10 THE COURT: You got the booking photo
11 from which pursuit?
12 THE WITNESS: The first one.
13 THE COURT: Okay. And what caused
14 you to associate that booking photo with this car
15 that you saw in the convenience store?
16 THE WITNESS: It was the same car.
17 THE COURT: How did you know that?
18 THE WITNESS: Because of the license
19 plate up in the top left corner of the windshield.
20 THE COURT: Okay. It was the
21 location of the license plate. Did you have the
22 license plate number?
23 THE WITNESS: I did.
24 THE COURT: From which pursuit?
25 THE WITNESS: Both.
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1 THE COURT: From pursuit number one
2 and pursuit number two?
3 THE WITNESS: Yes.
4 THE COURT: All right. And so you
5 saw the license plate number and the distinctive
6 license plate, and you had an idea of who you were
7 looking for from September book-in?
8 THE WITNESS: Yes. Yeah.
9 THE COURT: Okay.
10 MR. BURNS: Thank you, Your Honor.
11 Q (BY MR. BURNS) Is it safe to say -- or
12 fair to say from that -- in the pursuit a week
13 before you never laid eyes on the driver?
14 A I did not personally, no.
15 Q Now, in reference to the video, is it fair
16 to say that at no point that we saw on the video was
17 he free to just drive off and leave? Is that fair
18 to say?
19 A He was not free to leave.
20 Q And that's from the very beginning of the
21 video, correct?
22 A Yes.
23 Q And at that point the behavior you had
24 observed from him was exiting the store and getting
25 in the car; is that fair to say?
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1 A That's correct.
2 MR. BURNS: Pass this witness,
3 Your Honor.
4 MS. BELL: No further questions. May
5 this witness be excused?
6 MR. BURNS: Subject to recall,
7 Your Honor.
8 THE COURT: You are excused. You're
9 subject to recall. That means you need to be
10 reachable.
11 MS. BELL: The State would call
12 Officer Rath.
13 THE COURT: Raise your right hand.
14 (Witness sworn)
15 THE WITNESS: I do.
16 THE COURT: Have a seat sir.
17 MARK RATH,
18 having been first duly sworn, testified as follows:
19 DIRECT EXAMINATION
20 BY MS. BELL:
21 Q Good morning, Officer Rath, would you
22 please spell your name for the court reporter.
23 A Last name Rath, R-a-t-h.
24 Q Thank you. And how are you currently
25 employed?
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1 A The aviation unit -- air support unit,
2 Fort Worth PD.
3 Q And what does that entail?
4 A We give air support -- helicopter air
5 support to most patrol -- to anybody in the city
6 that needs it, not just the police department.
7 Q And how long have you been employed in
8 that position?
9 A Eight years.
10 Q And, Officer, did you receive training to
11 become a peace officer?
12 A Yes.
13 Q A police officer?
14 A Yes.
15 Q And the Judge has heard before, but you
16 received all the training that police officers have
17 to be -- pardon me -- you went through the police
18 academy?
19 A Yes, ma'am.
20 Q And how long have you been a police
21 officer?
22 A Fort Worth, 22 years.
23 Q Officer Rath, the night in question is
24 December 11th of 2017. Were you dispatched at that
25 time?
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1 A I don't remember if we were actually
2 dispatched or if we were just up and heard it, but
3 we got on the call, yes.
4 Q And so "up and heard it", could you
5 explain to me what that means?
6 A We try to do some patrol if we have a
7 helicopter available and we're not down with the
8 weather or something. We just try to just get out
9 and do some flying and we'll monitor the radio and
10 if we hear something we'll try to head that way if
11 we're already in the air and try to get to it before
12 19 over.
13 Q So in the helicopter, is there some kind
14 of camera?
15 A Yes, ma'am.
16 Q And do you know how to operate that?
17 A I do.
18 Q And what are the capabilities of this
19 camera?
20 A 19 the one that we have in the helicopter
21 that we were in that night was our better one -- we
22 got two of them -- but it's got a good zoom. FLIR,
23 forward looking infrared, you can see in total dark,
24 so there's almost nothing you can't see with it as
25 long as its not been sitting out in the heat.
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1 Q And you said it has a good zoom. What
2 does that mean?
3 A A lot more zoom than most cameras that I
4 know of. You can pick out a car several miles away
5 and usually be able to tell two-door, four-door,
6 maybe a make.
7 Q And how fast would you say that the
8 helicopter -- how fast can a helicopter go?
9 A The one that we got, depending on when,
10 but on a calm night, if you push it, it will run
11 about 125 miles an hour.
12 Q So would you say 19 fair to say that 19
13 unusual for a vehicle to outrun the helicopter?
14 A It is.
15 Q And did you review your footage of this
16 incident?
17 A Yes, ma'am.
18 Q And was there a time when y'all were
19 losing -- the car was escaping the helicopter?
20 A There was.
21 MR. BURNS: Your Honor, I object
22 again to being outside the scope for this witness.
23 THE COURT: Overruled.
24 Q (BY MS. BELL) Officer Rath, did you have
25 a chance to review your footage with me this
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1 morning?
2 A Yes, ma'am.
3 Q And was it on the CD?
4 A Yes, ma'am.
5 Q Does it fairly and accurately depict this
6 offense?
7 A It does.
8 MS. BELL: Your Honor, may I approach
9 the witness?
10 THE COURT: You may.
11 Q (BY MS. BELL) Officer Rath, I'm handing
12 you what's been marked as State's Exhibit 4. Do you
13 recognize it?
14 A I do.
15 Q And how do you recognize it?
16 A It's by Air 19, that's on it and my
17 initials and ID number.
18 Q Thank you.
19 MS. BELL: Your Honor, I'm going to
20 tender to defense and enter into evidence State's
21 Exhibit 4.
22 (State's Exhibit 4 offered)
23 MR. BURNS: I'm going to ask that --
24 that's the only video on here?
25 MS. BELL: Yes. That's the only
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1 video on here.
2 MR. BURNS: Just object to it being
3 outside the scope of the petition, Your Honor.
4 THE COURT: That's overruled.
5 State's 4 is admitted.
6 (State's Exhibit 4 admitted)
7 MS. BELL: Permission to publish,
8 Judge?
9 THE COURT: That's granted.
10 MR. BURNS: Thank you.
11 Q (BY MS. BURNS) And, Officer Rath, how
12 long would you estimate this vehicle to be? How
13 long would you estimate this pursuit to be?
14 A Time wise?
15 Q Yes.
16 A It was about 30 minutes, maybe a little
17 less.
18 Q And throughout the video, because we
19 reviewed it this morning, are there instances where
20 there's traffic that they're having to weave in and
21 out through?
22 A Yes, ma'am, a little bit.
23 MS. BELL: Now, Your Honor, in the
24 interest of time, I was going to skip towards the
25 end.
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1 THE COURT: Proceed.
2 MS. BELL: Thank you, Judge.
3 THE COURT: And what time mark are we
4 looking at?
5 MS. BELL: We started at 22 minutes
6 and 15 seconds.
7 Q (BY MS. BELL) And, Officer Rath, what had
8 caused him to slow down?
9 A From what I understand, he got his tires
10 spiked by the stop sticks. They spiked his tires
11 out on the freeway by the stop sticks or spike
12 strips, whichever they were using.
13 Q And so what we see right now is the
14 defendant, we saw him exit his car and he's fleeing?
15 A Yes, ma'am.
16 Q So Air One had eyes on him pretty much
17 from the beginning of this evading, all the way
18 until he got out of his car, that had been spiked,
19 and ran into this building here?
20 A Yes, ma'am.
21 Q I'm going to stop the video at 23 minutes
22 and 5 seconds.
23 MS. BELL: State passes the witness.
24 MR. BURNS: No questions for this
25 witness, Your Honor.
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1 THE COURT: So you say the helicopter
2 is on patrol in the air just ready to respond
3 routinely.
4 THE WITNESS: When we can. We try
5 to. That's what we like to do. We try to fly a
6 couple of hours, two to four hours a shift, just
7 flying around, so if something happens, monitoring
8 all five channels. And if we hear something, we'll
9 head that way whether at force or not and maybe
10 we'll be able to get something on video or help out.
11 THE COURT: Anything further from
12 either side based on the Court's questions?
13 MS. BELL: No, Judge.
14 MR. BURNS: No, Judge.
15 MS. BELL: May this witness be
16 excused?
17 MR. BURNS: Yes, Your Honor.
18 THE COURT: You may step down.
19 You're excused, sir.
20 MS. BELL: State will call Officer
21 Lukens.
22 THE COURT: Raise your right hand.
23 (Witness sworn)
24 THE WITNESS: Yes, Your Honor.
25 THE COURT: Have a seat, sir.
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1 BRIAN LUKENS,
2 having been first duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MS. BELL:
5 Q Good morning, Officer Lukens. Would you
6 please spell your name for the court reporter.
7 A L-u-k-e-n-s.
8 Q Officer Lukens, how are you currently
9 employed?
10 A I'm employed with the Fort Worth Police
11 Department.
12 Q And how long have you been with the Fort
13 Worth Police Department?
14 A Been hired for over a year, commissioned
15 for nearly five months.
16 Q When did you go through the police
17 academy?
18 A January 23rd of last year through
19 September 15th.
20 Q And do you recall what you were doing
21 December 11th of 2017?
22 A Yes, ma'am.
23 Q What was that?
24 A I was, before this incident happened,
25 sitting down on 7th Street in the City of Fort
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1 Worth.
2 Q And, at that time, did you have an FTO?
3 A Yes, I did, ma'am.
4 Q And what were y'all doing sitting at
5 7th Street?
6 A We were meeting with some other officers
7 talking about what we were going to do the rest of
8 the night.
9 Q And what happened next?
10 A We were sent a message over NBC that there
11 was a chase going on in the central division and
12 they want us west units --
13 MR. BURNS: Your Honor, objection to
14 being outside the scope of the petition of the
15 evading.
16 THE COURT: Overruled.
17 A Sitting outside, we got a message out of
18 NBC from dispatch stating that there was a chase in
19 the central division that had been going on for, I
20 believe, somewhere around 20 to 25 minutes and that
21 they wanted some west units to try to get in
22 position and set up spike strips.
23 Q (BY MS. BELL) And what are -- explain to
24 me what spike strips are, like --
25 A Spike strips are something that each --
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1 most of the vehicles, if not all the vehicles, have
2 in back of their patrol car that way you can get out
3 on the side of the road and throw them across the
4 road, and when a suspect vehicle drives by, they'll
5 flatten any tires that drive over those strips.
6 Q It reaches across multiple lanes of
7 traffic?
8 A It can reach across multiple lanes of
9 traffic.
10 Q And so y'all receive calls. So did you
11 and your FTO go out to try and place spike strips?
12 A Yes, we did.
13 Q Were y'all successful?
14 A No. We didn't get a chance to set out
15 spike strips.
16 Q And why was that?
17 A Because by the time we were getting on 30,
18 we were at 30 westbound to go set up spike strips.
19 They had turned onto 30 eastbound off the 820 loop.
20 Q Eventually, were officers successful in
21 spiking the car?
22 A I believe they did spike some tires on the
23 car.
24 Q And were other officers' cars spiked as
25 well?
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1 A Yes, ma'am.
2 Q So tell me when you and your FTO entered
3 the pursuit?
4 A We were going westbound on I-30 to try to
5 meet them at the loop somewhere. We got -- we were
6 told that they had turned onto 30 eastbound, so we
7 turned around at 30 eastbound at Altamere. And
8 Altamere is kind of -- you can't really see the
9 highway too well during that time. So that time
10 they had passed us and got in front of us on 30
11 eastbound. And once they told us that, we tried to
12 catch up to him.
13 Q Were y'all successful?
14 A We eventually did catch up to him, yes.
15 Q And then what happened?
16 A As we caught up to him on the service road
17 just off of Montgomery and 30, we observed the
18 defendant running southbound from the officers with
19 two officers chasing him.
20 Q And what did you do?
21 A We went off the service road in our patrol
22 vehicle, and I chased him through -- a parallel of
23 the defendant -- through an opened parking lot and
24 then chased him into a parking garage where I cut
25 him off. He had ran on the passenger's side of my
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1 patrol vehicle. Officer Hanberger (phonetic) is in
2 the passenger's seat and tackled him. And then I
3 came over and assisted Officer Hanberger (phonetic).
4 Q And in assisting him, would you say the
5 defendant was compliant?
6 A The defendant was very resistant and not
7 listening to verbal commands.
8 Q And during the course of y'all trying to
9 arrest him, did something happen that caused you
10 concern?
11 A Absolutely. I was on his torso and a
12 central officer came up to help. And so the central
13 officer took over his -- the defendant's right arm
14 while he was laying on his back. I took over his
15 left arm, controlling his left arm, I put it under
16 my right leg. And that time they said something
17 about a gun, and then he had a gun, so -- and he
18 wouldn't get his hand out of his right front pocket.
19 Q So which was in his right front pocket?
20 A His right hand.
21 Q So it came to your attention that his hand
22 was in a pocket where there was potentially a gun?
23 A Yes, ma'am.
24 Q What did you do in response to that?
25 A I had his left arm completely mobilized
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1 with 220 pounds of my weight. So I withdrew my
2 service weapon from my holster and put it on his
3 chest and told the victim, You have a gun on your
4 chest. Think about what you're doing.
5 Q And did he become more compliant after
6 that?
7 A He did become more compliant.
8 Q Officer Lukens, after y'all finished
9 arresting him, was there in fact a gun in his
10 pocket?
11 A Yes, there was.
12 Q And do you recall what kind of gun it was?
13 A I recall it being a .32 caliber.
14 Q And do you remember if it was loaded or
15 unloaded?
16 A It was loaded.
17 Q Was it chambered or not?
18 A It was chambered.
19 Q So the defendant had a chambered pistol in
20 his right pocket that his hand was on when y'all
21 were attempting to arrest him?
22 A Yes, ma'am.
23 Q Officer Lukens, did we review dash cam
24 footage from your unit as well as body cam footage?
25 A Yes, ma'am.
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1 Q And would you say it fairly and accurately
2 represents what we just talked about?
3 A Yes, ma'am.
4 MS. BELL: Your Honor, may I approach
5 the witness?
6 THE COURT: You may.
7 Q (BY MS. BELL) Officer Lukens, this CD has
8 two videos; is that correct?
9 A Yes, ma'am.
10 Q It has a dash cam and it has a body cam?
11 A Yes, ma'am.
12 Q And how do you recognize this CD?
13 A I signed it and dated it.
14 MS. BELL: Your Honor, the State
15 would --
16 Q (BY MS. BELL) And it's marked as State's
17 Exhibit 5?
18 A Yes.
19 MS. BELL: Your Honor, the State
20 would tender State's Exhibit 5 to defense.
21 (State's Exhibit 5 offered)
22 MR. BURNS: And for verification,
23 it's two videos, correct?
24 MS. BELL: Yes.
25 MR. BURNS: Then I object to both the
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1 videos containing things outside the scope of the
2 petition.
3 THE COURT: Overruled. State's 5 is
4 admitted.
5 (State's Exhibit 5 admitted)
6 MS. BELL: Permission to publish,
7 Judge?
8 THE COURT: That's granted.
9 Q (BY MS. BELL) So, Officer Lukens, we're
10 going to look at your dash cam first.
11 MS. BELL: And, Your Honor, I'm going
12 to move it up a few minutes to when they pursue the
13 defendant, start it at 2:05.
14 (State's Exhibit 5 being
15 published in open court)
16 Q (BY MS. BELL) Now, you actually have the
17 defendant. Can you see his vehicle right now or are
18 y'all trying to get to where he's at?
19 A We're trying to get to him. I believe
20 we're on University right now. So 19 quite a ways
21 off ahead. We're turning westbound on I-30 and
22 University right now.
23 Q I'm going to fast forward to 8 minutes,
24 roughly. Is that the defendant that you can see?
25 A That is the defendant, yes, ma'am.
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1 Q I stopped the video at 9 minutes and 40
2 seconds. Now I'm going to play the dash cam
3 footage. What's happening right now?
4 A We're trying to detain the defendant.
5 Q So this kind of coincides right where we
6 stopped the dash cam?
7 A Yes, ma'am.
8 Q So after you had a gun to his chest, you
9 were able to detain him and cuff him?
10 A Yes, ma'am.
11 MS. BELL: Judge, unless you would
12 like to see the rest, I'll just pause the video at 1
13 minute and 35 seconds.
14 State will pass the witness.
15 MR. BURNS: Thank you, Your Honor.
16 CROSS-EXAMINATION
17 BY MR. BURNS:
18 Q Good morning, Officer Lukens.
19 A Good morning, sir.
20 Q Did you review all of the video related in
21 this case, or just your video before the trial
22 today -- or before the hearing?
23 A I reviewed some of -- a couple of
24 different videos.
25 Q Now, prior to, I guess, recovery of the
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1 weapon, he did tell you guys that he had a gun; is
2 that correct?
3 A I don't remember exactly how that
4 happened, sir.
5 Q Okay. You don't recall another officer on
6 another video maybe saying, Well, he told us he had
7 a gun?
8 A I don't recall that. He may have. I
9 can't say yes or no.
10 MR. BURNS: Pass the witness,
11 Your Honor.
12 MS. BELL: No further questions. May
13 this witness be excused?
14 MR. BURNS: Yes, Your Honor.
15 THE COURT: You may step down.
16 MS. KUCERA: Your Honor, at this time
17 the State would rest.
18 THE COURT: Defense?
19 MR. BURNS: Your Honor, as far as
20 adjudication is concerned -- well, I guess I need to
21 speak with him for a second. Okay. Sorry,
22 Your Honor. I just wanted to make sure my client
23 knew of his rights as far as testifying goes, but we
24 don't have anything to present as far as
25 adjudication, other than renewing our Motion to
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1 Suppress. We do have two briefs.
2 THE COURT: So do you rest as to the
3 adjudication?
4 MR. BURNS: As for the evidence we're
5 going to present, yes, Your Honor. We'd still like
6 a ruling on the motion.
7 THE COURT: Okay. The motion's
8 denied. Do you close?
9 MS. KUCERA: We close, Your Honor.
10 THE COURT: Do you close?
11 MR. BURNS: We close, Your Honor.
12 THE COURT: Arguments? This is not a
13 unitary proceeding. There's a punishment phase, if
14 there is a punishment phase.
15 MS. KUCERA: Understood, Your Honor.
16 We would waive opening and reserve the right to
17 close.
18 MR. BURNS: We rest and close,
19 Your Honor.
20 THE COURT: All right. So you're not
21 going to argue as to the allegations?
22 MR. BURNS: As to the adjudication
23 phase, I don't think we have any argument as to
24 that.
25 MS. KUCERA: Very briefly,
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1 Your Honor. I believe that the State has more than
2 met the burden that is required of them in a
3 revocation hearing. We believe that we have proven
4 the offenses that have been alleged in paragraphs
5 two, three, five, and seven.
6 Your Honor, the Court has heard from
7 six different witnesses in this case articulating
8 the entirety of all of these offenses, and we
9 believe the evidence is clear and unequivocal before
10 this court. We ask that you would find those
11 allegations to be true.
12 THE COURT: Mr. Hongpathoum, based on
13 the testimony that's presented today the Court finds
14 allegations two, three, five, and seven in each
15 petition to be true, finds that you violated the
16 terms and conditions of your probation, finds you
17 guilty of the offense of delivery of a controlled
18 substance one to four grams, namely,
19 methamphetamine, forgery by possession of a forged
20 writing, to wit, money, and theft of a firearm.
21 Anything further in the punishment
22 phase?
23 MS. KUCERA: Nothing further from the
24 State.
25 MR. BURNS: Your Honor, I have two
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1 very brief witnesses. I'd like to ask the Court for
2 about two minutes to talk to them.
3 THE COURT: Okay. That's fine.
4 Ready?
5 MR. BURNS: Yes, Your Honor.
6 THE COURT: Okay. Does the State
7 have any evidence in punishment?
8 MS. KUCERA: Your Honor, the State
9 would just reoffer everything that was offered in
10 the adjudication phase, and we would rest.
11 MS. BELL: Judge, may our witnesses
12 be excused?
13 MR. BURNS: Yes, Your Honor.
14 THE COURT: They're excused.
15 MR. BURNS: Thank you. Your Honor,
16 we'd like to call Susan Thorbrue.
17 THE COURT: Raise your right hand.
18 (Witness sworn)
19 THE WITNESS: Yes, ma'am.
20 THE COURT: Have a seat, ma'am.
21 MR. BURNS: Thank you, Your Honor.
22 SUSAN THORBRUE,
23 having been first duly sworn, testified as follows:
24
25
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1 DIRECT EXAMINATION
2 BY MR. BURNS:
3 Q Good morning, Ms. Thorbrue.
4 A Good morning.
5 Q Could you just introduce yourself to the
6 Court and spell your name for the reporter, please.
7 A My name is Susan Hongpathoum, S-u-s-a-n,
8 H-o-n-g-p-a-t-h-o-u-m, Thorbrue, T-h-o-r-b-r-u-e.
9 Q And what is your relation to the
10 defendant?
11 A I'm Michael Hongpathoum's older sister.
12 Q And how long have you known Michael?
13 A His entire life.
14 Q And do y'all stay in pretty good touch?
15 A Yes.
16 Q During his probation period, has he had a
17 job?
18 A Yes.
19 Q What was he doing?
20 A He worked in a restaurant out in
21 Carollton. He worked for the -- one of our -- 19 a
22 Thai restaurant.
23 Q And was he taking care of business as far
24 as his fees and everything for the court?
25 A He was -- yes, he was -- as I know, he was
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1 doing what he was supposed to be doing.
2 Q And what happened with that job?
3 A Well, basically, they were unfair with
4 his -- basically, they unfairly fired him.
5 MS. KUCERA: Your Honor, I'm going to
6 object. Calls for speculation. She's not the
7 employee. How can she testify to what they were
8 doing, the employers?
9 MR. BURNS: I can ask it a different
10 way, Your Honor.
11 THE COURT: Okay. Ask it a different
12 way.
13 Q (BY MR. BURNS) Now, that job ended up
14 falling through because of, we'll say a
15 disagreement; is that correct?
16 A He was wrongly let go.
17 Q Now, how would you -- just in general, how
18 would you describe Michael?
19 A Michael is a big for nothing, like he's
20 huge. He's a big guy for nothing. I protect him.
21 Q And what do you mean by that?
22 A A little, big sister.
23 Q What do you mean by big for nothing?
24 A Michael's not aggressive. He's a soft,
25 gentle, big guy.
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1 Q Do you think he would ever intentionally
2 hurt anybody?
3 A No.
4 Q And you understand he's facing up to 20
5 years, you understand that?
6 A Yes.
7 Q And he's definitely -- well, he's not
8 definitely, he's probably going to the penitentiary.
9 You understand that?
10 A Yes.
11 Q What is it that you would like to ask the
12 Court today?
13 A Michael -- Michael does need to be
14 incarcerated for what he's done but not for a long
15 time, not for being aggressive, for anything like
16 that. He knows he's done wrong.
17 Q Is he a good brother in your opinion?
18 A Yes.
19 Q Is he a good friend?
20 A Yes.
21 Q Does he try to take care of his family?
22 A Yes.
23 Q Like to see him home some day?
24 MR. BURNS: Pass the witness,
25 Your Honor.
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1 MS. KUCERA: I have no questions of
2 this witness.
3 THE COURT: You may step down, ma'am.
4 MR. BURNS: Your Honor, I'd like to
5 call Phenam (phonetic) Hongpathoum to the stand, but
6 I may need Ms. Thorbrue to translate.
7 THE COURT: She's not a certified
8 translator and she's a witness in this case. And
9 without a translator that's certified, I can't allow
10 that.
11 MR. BURNS: Okay. We won't call her.
12 It would be mostly cumulative.
13 THE COURT: Do you rest?
14 MR. BURNS: Yes, Your Honor, we rest.
15 MS. KUCERA: Rest and close,
16 Your Honor.
17 THE COURT: Do you close?
18 MR. BURNS: We close, Your Honor.
19 THE COURT: Arguments?
20 MS. KUCERA: We waive open.
21 MR. BURNS: Your Honor, we'd just
22 like to ask the Court to take into account that
23 Mr. Hongpathoum is a young man. He's never been to
24 the penitentiary before so 19 going to be a tough
25 time on him, and he just wants to ask the Court that
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1 he be given a sentence short enough that gives him a
2 chance that shows he can learn his lesson, he can
3 stay out of trouble. And he understands that he has
4 to pay a debt. But he just wants to ask the Court
5 that he has a sentence short enough to give him a
6 chance to prove he can be a citizen, a law-abiding
7 citizen.
8 MS. KUCERA: Briefly, Your Honor.
9 I think the Court has plenty of
10 evidence before it that demonstrates that
11 Mr. Hongpathoum's actions are extremely reckless.
12 He has no regard for the safety of the community,
13 and his actions, his driving that night, in the
14 first evading, 90 miles throughout the metroplex,
15 regardless of what questions the defense counsel
16 asked, 19 honestly, Your Honor, if you'd like to go
17 back and watch the dash cam, a mere miracle that an
18 accident wasn't caused that night.
19 The speeds in which they were
20 driving, the highways in which they were driving on
21 are not unpopulated. The actions of this defendant
22 are, like I said, in extreme disregard for the
23 safety of the community, the safety of the officers
24 who are pursuing him, even the safety of his own
25 person. I do not think the community is safe with
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1 him in it. It's not as if this was a one-time
2 thing. You heard two separate accounts of an
3 evading that occurred over multiple miles, multiple
4 units. Both times Air One was called out.
5 Your Honor, this conduct is extremely
6 reckless, extremely dangerous. He deserves
7 absolutely no sympathy from this court. He has
8 demonstrated nothing here today in his opportunity
9 to do so, which should allow you to give him any
10 sympathy. He had a gun in his pocket. And he is
11 honestly lucky he was not killed. It is an
12 incredibly dangerous conduct that he is
13 participating in. And I think, Your Honor, you
14 would be well within your right to sentence him to
15 the maximum because that is absolutely what the
16 State is asking for in this case based on all of the
17 evidence that you have before you.
18 THE COURT: Defendant will rise.
19 Mr. Hongpahthoum, the Court has found
20 you guilty of the offenses of delivery of a
21 controlled substance one to four grams, namely
22 methamphetamine, theft of firearm, forgery by
23 possession of a forged writing, to wit, money.
24 Taking carefully into consideration
25 all the testimony and evidence that's been presented
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1 to the Court, the Court will set your sentence in
2 these cases at 20 years confinement in the delivery
3 of a controlled substance case; 10 years confinement
4 in the forgery by possession of a forged writing, to
5 wit, money; and, 2 years confinement in the state
6 jail in the theft of firearm case.
7 It is the order, judgment, and decree
8 of this court that you be remanded by the sheriff of
9 Tarrant County to the director of the institutional
10 division to serve your sentence as required by law.
11 You have a right of appeal in these cases, which
12 I'll ask your counsel to stay on and explain to you.
13 If you cannot afford an attorney to prosecute your
14 appeal, an attorney will be provided to you by the
15 court. You have 30 days in which to file your
16 notice of appeal. You will be given credit for all
17 the time you've served in these cases. The
18 sentences in these cases will run concurrently.
19 It's hard for me to understand what
20 in the world you were thinking, if it was a game, if
21 you just had a fast car and you like to run, or if
22 you had something in the car you felt was so
23 important to conceal from the police that you
24 decided to run over and over from them. Also, your
25 possession of a firearm while on felony probation,
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1 a -- one firearm that's stolen and another in your
2 pocket that you're reaching for while you're being
3 arrested, and you are very, very lucky to be alive.
4 I think that the police officers showed an admirable
5 and perhaps even full hearty amount of restraint in
6 not injuring you or shooting you outright when
7 you're reaching for a loaded gun in your pocket.
8 They gave you the gift of life, and I hope that you
9 will make the most of it, and I hope that you will
10 be ready to be a little bit more law-abiding when
11 you come out from the other end of these sentences.
12 Sheriff, he's your prisoner.
13 (Off the record at 12:14 p.m.)
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1 STATE OF TEXAS
2 COUNTY OF TARRANT
3
4 I, Norma Rico, Deputy Court Reporter in and for
5 the 371st District Court of Tarrant, State of Texas,
6 do hereby certify that the above and foregoing
7 contains a true and correct transcription of all
8 portions of evidence and other proceedings requested
9 in writing by counsel for the parties to be included
10 in this volume of the Reporter's Record in the
11 above-styled and numbered cause, all of which
12 occurred in open court or in chambers and were
13 reported by me.
14 I further certify that this Reporter's Record
15 of the proceedings truly and correctly reflects the
16 exhibits, if any, offered by the respective parties.
17 WITNESS MY OFFICIAL HAND on this, the 21st day
18 of May 2018.
19
20
21
Norma Rico, Texas CSR 8579
22 Deputy Court Reporter
371st District Court
23 Tarrant County, Texas
PO Box 331883
24 Fort Worth, Texas 76163
Telephone: (682) 701-3739
25 Expiration: 12/31/2018
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