Leija, Antonio Jr. ( 2015 )

PD-0241-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/4/2015 4:20:51 PM
PD-0241-15 Accepted 3/4/2015 6:29:05 PM
MARCH 5, 2015 Cause No. ___________ ABEL ACOSTA
CLERK
In the Court of Criminal
Appeals of Texas
Antonio Leija, Jr.,
Appellant
v.
State of Texas,
Appellee
On Review from Cause No. 02-13-00473-CR
in the Second Court of Appeals
Fort Worth, Texas
State’s Petition for Discretionary Review
Maureen Shelton John W. Brasher
Criminal District Attorney Special Prosecutor
Wichita County, Texas 900 8th Street, Suite 415
State Bar No. 24076904 State Bar No. 02907800
Maureen.Shelton@co.wichita.tx.us brasherappeals@gmail.com
900 8th Street
John Gillespie Wichita Falls, Texas 76301
First Asst. Criminal District Attorney (940) 244-0244 phone
Wichita County, Texas (940) 244-0245 fax
State Bar No. 24083252
John.Gillespie@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 716-8530 fax Oral Argument Requested
Identity of Parties and Counsel
Hon. Judge Barney Fudge
Judge, 78th District Court of Wichita County
Cause No. 52,563-B
Antonio Leija, Jr., Appellant
TDCJ #01874593
West Texas Intermediate Sanction Facility
2002 Lamesa Hwy
Brownfield, Texas 79316
Michael Payne
Counsel for Antonio Leija on appeal
1211 Bluff Street
Wichita Falls, TX 76301
Maureen Shelton
Criminal District Attorney
Wichita County
Attorney for the State
900 Seventh Street
Wichita Falls, Texas 76301
John Gillespie
First Assistant Criminal District Attorney
Wichita County
Attorney for the State
900 Seventh Street
Wichita Falls, Texas 76301
John Brasher
Special Prosecutor
Attorney for the State before the C.C.A.
900 8th Street
Wichita Falls, Texas 76301
ii
Table of Contents
Identify of Parties and Counsel ................................................................... ii
Table of Contents .......................................................................................iii
Index of Authorities ..................................................................................... v
Statement of the Case .............................................................................. viii
Statement Regarding Oral Argument ........................................................ viii
Procedural History ..................................................................................... ix
Questions Presented for Review ................................................................xii
Argument .................................................................................................... 1
1. Recusal is required because half of Justice Dauphinot’s
colleagues—including Chief Justice Livingston—believe she
has expressed such a significant antagonism toward the
WCDA that she no longer appears to be fair and impartial ....... 1
2. Recusal is required because Justice Dauphinot applies a
different set of rules when the WCDA is a party than she
applies in other cases. .............................................................. 3
3. Recusal is required because, regardless of her motivations,
by speaking out and plainly stating that she has formed a
negative opinion about the WCDA that influences her on
every case, Justice Dauphinot departed the realm of
impartial judging and improperly entered the realm of
advocacy. ................................................................................. 8
4. Recusal is required because Justice Dauphinot’s bias was
clearly revealed by her astounding claim that she can
discern a discovery abuse from a case where the issue was
neither preserved nor reached by the court of appeals. .......... 11
iii
5. Recusal is required because Justice Dauphinot’s lack of
fairness is evidenced by her sweeping advisory
pronouncement of a pattern of constitutional abuse when
this alleged pattern A) was not an active controversy before
her; B) was not necessary to the determination of the
appeal; and C) when the WCDA had no opportunity to
provide testimony, evidence, or briefing on such a
consequential accusation. ...................................................... 14
6. Recusal is required because the timing of Justice
Dauphinot’s abject lack of judicial fairness in Roberson
suggests it may have been retaliatory and motivated by the
State prevailing on its motion for en banc reconsideration in
the Joe Johnson case after the State referred to her
memorandum opinion’s drastic departure from the trial
record as “troubling.”............................................................... 18
Prayer ....................................................................................................... 20
Certificate of Compliance .......................................................................... 22
Certificate of Service ................................................................................. 22
iv
Index of Authorities
Cases Page
BNSF Railway Co. v. Phillips, 434 S.W.3d 675 (Tex. App.—Fort
Worth 2014, pet. filed) ....................................................................... 5
Brazzell v. State, 481 S.W.2d 130 (Tex. Crim. App. 1972) .......................... 4
Caldwell v. Texas, 137 U.S. 692 (1891) .................................................. 3, 8
Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014) ........................... 6
Garrett v. State, 749 S.W.2d 784 (Tex. Crim. App. 1988) ......................... 14
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................... 6
In re Murchison, 349 U.S. 133 (1955) ................................................... 2, 18
In the Interest of M.C.B., 400 S.W.3d 630 (Tex. App.—Dallas 2013,
no pet.) ............................................................................................ 16
Johnson v. State, 2013 WL 531079 (Tex. App.—Fort Worth Feb. 14,
2013) (mem. opinion) ....................................................................... 19
Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345 (Tex.
App.—Fort Worth Oct. 9, 2014) (en banc) ................................... 1, 19
Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no
pet.) ................................................................................................... 7
Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—
Fort Worth June 4, 2009, no pet.) .............................................. 12, 13
Likety v. U.S., 510 U.S. 540 (1994) ........................................................... 11
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ...................... 14, 16
Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]
1988—pet. ref’d) .............................................................................. 11
v
Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet.
ref’d) ................................................................................................ 17
Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex.
App.—Fort Worth Jan. 8, 2015, no pet. h.) ............................... passim
Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) ......................................... 1
State v. Stevenson, 993 S.W.2d 857 (Tex. App.—Fort Worth 1999,
no pet.) .............................................................................................. 8
State v. Taylor, 264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no
pet.) ................................................................................................. 13
State v. Woodard, 314 S.W.3d 86 (Tex. App.—Fort Worth 2010, pet.
filed), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011) .......................... 6
U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) .................................... 2
Statutes
Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014) .................. 17
Rules
Tex. Code Jud. Conduct, Preamble ............................................................ 3
Tex. Code Jud. Conduct, Canon 3(B)(4) ................................................... 10
Tex. Code Jud. Conduct, Canon 3(B)(5) ..................................................... 3
Tex. R. App. P. 9.4(i)(1) ............................................................................ 22
Tex. R. App. P. 16.3(c) ..............................................................................vii
Tex. R. App. P. 33.1.................................................................................. 11
Tex. R. App. P. 44.4.................................................................................. 16
vi
Tex. R. App. P. 47.1.............................................................................. 8, 16
Tex. R. App. P. 68 .....................................................................................vii
Tex. R. App. P. 68.2(a) .............................................................................. xi
vii
Statement of the Case
The State is asking for this Court to review the Second Court of
Appeals’ 4-3 decision on its motion to recuse Justice Dauphinot. As
Justice Dauphinot has irrevocably compromised any appearance of
impartiality toward the Wichita County District Attorney (“WCDA”), the State
asks this Court to grant review pursuant to Rule 68 and Rule 16.3(c) of the
Texas Rules of Appellate Procedure, and to order recusal of Justice
Dauphinot.
Statement Regarding Oral Argument
The State respectfully requests Oral Argument. The WDCA and her
staff appreciate the gravity of this situation. The WCDA has always had
great respect and an excellent working relationship with the Second Court
of Appeals and its honorable justices.
Thus, it was astonishing that Justice Dauphinot accused the WCDA
and her attorneys of a pattern of constitutional discovery abuses in a
dissent in a published opinion.1 As this alleged pattern of abuse was not
an issue before the trial court, the WCDA had no opportunity to provide
evidence to rebut the allegations and no forum for appeal since the WCDA
1
See Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex. App.—Fort
Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J. dissenting)
viii
had prevailed on the merits.2
Not only does the WCDA deny, in the strongest terms possible,
Justice Dauphinot’s inappropriate, incendiary, and unsupported allegations
that her office engages in a pattern of discovery abuses with constitutional
dimensions, but the WCDA also requests the courtesy of being able to
openly address any question by any judge on this Honorable Court as to
why the WCDA had no choice but to seek Justice Dauphinot’s recusal.
The WCDA does not seek a recusal lightly. Yet, the ramifications of
this dissent are too serious to ignore: questions about the integrity of the
criminal justice system, potential disciplinary and licensure issues, potential
civil claims, and wrongfully sullied reputations. Because of these significant
ramifications, the WCDA requests Oral Argument.
Procedural History
Appellant appealed to the Second Court of Appeals and Justice
Dauphinot was assigned to the panel.3 While the appeal was pending, the
Second Court released Ex Parte Roberson on January 8, 2015.4 In
Roberson, Justice Dauphinot issued a vitriolic dissent that made many
2
Id.
3
See Letter from Debra Spisak to Parties regarding submission (April 1, 2014),
available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b-
4a30-a6c8-72575b047add (last visited March 4, 2015).
4
Roberson, 2015 WL 148476, at *5-6 (Dauphinot, J. dissenting).
ix
unfounded allegations against the WCDA and even alleged a pattern of
discovery abuses of constitutional proportions.5
As her dissent has dispelled any notion that she could be fair to the
WCDA, on January 21, 2015, the WCDA filed a motion to recuse Justice
Dauphinot.6
On January 26, 2015, the Second Court announced that Justice
Dauphinot’s six remaining colleagues could not reach a decision on
recusal.7 Half of Justice Dauphinot’s colleagues believed that the WCDA
met the standard for recusal.8 Chief Justice Hecht appointed a justice to
break the tie.9
On February 26, 2015, the Second Court denied the motion to recuse
on a highly-divided 4-3 vote.10 On February 27, 2015, the WCDA asked
the Second Court to stay the issuance of opinions in this case and notified
the Second Court of its intent to appeal under T.R.A.P. 16.3(c).
5
Id. at *5.
6
See Docket Sheet for Leija v.State, No. 02-13-00473-CR in the Second Court of
Appeals of Texas, available at http://www.search.txcourts.gov/Case.aspx?cn=02-13-
00473-CR (last visited Mar. 4, 2015);
7
See Letter from Chief Justice Livingston to Chief Justice Hecht (January 26,
2015), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5eee4ad1-a306-
41c8-a450-23d5860bdecb (last visited Mar. 4, 2015).
8
Id.
9
See Letter from Debra Spisak to Parties regarding appointment of visiting justice
(Feb. 3, 2015), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3dfdc6bb-4bd2-
413e-8e0c-8f364fb5d33f (last visited Mar. 4, 2015).
10
State’s Attachment A, Order denying Motion to Recuse.
x
The State timely files this Petition for Discretionary Review under
Tex. R. App. P. 16.3(c) which states that “the denial of a recusal motion is
reviewable.” Section 5(b) of the Texas Constitution states that for all
matters other than death penalty appeals; thus, review by the Court of
Criminal Appeals is discretionary, the State respectfully requests review of
the recusal decision under Tex. R. App. P. 68.2(a) as Justice Dauphinot
has irrevocably compromised any appearance of fairness toward the
WCDA.
xi
Questions Presented for Review
(1) Is recusal required when half of Justice Dauphinot’s colleagues—
including Chief Justice Livingston—believe she has expressed such a
significant antagonism toward the WCDA that she no longer appears to be
fair and impartial?
(2) Is recusal required because Justice Dauphinot applies a different
set of rules when the WCDA is a party than she applies in other cases?
(3) Is recusal required when, regardless of her motivations, by
speaking out and plainly stating that she has formed a negative opinion
about the WCDA that influences her on every case, Justice Dauphinot
departed the realm of impartial judging and improperly entered the realm of
advocacy?
(4) Is recusal required because Justice Dauphinot’s bias was clearly
revealed by her astounding claim that she can discern a discovery abuse
from a case where the issue was neither preserved nor reached by the
court of appeals?
(5) Is recusal required because Justice Dauphinot’s lack of fairness to
the WCDA is evidenced by her sweeping advisory pronouncement of a
pattern of constitutional abuse when this alleged pattern A) was not an
active controversy before her; B) was not necessary to the determination of
the appeal; and C) the WCDA had no opportunity to provide testimony,
evidence, or briefing on such a consequential accusation?
(6) Is recusal required because the timing of Justice Dauphinot’s
abject lack of judicial fairness in Roberson suggests it may have been
retaliatory and motivated by the State prevailing on its motion for en banc
reconsideration in the Joe Johnson case after the State referred to her
memorandum opinion’s drastic departure from the trial record as
“troubling”?
xii
Argument
1. Recusal is required because half of Justice Dauphinot’s
colleagues—including Chief Justice Livingston—believe she has
expressed such a significant antagonism toward the WCDA that
she no longer appears to be fair and impartial.
Chief Justice Terrie Livingston, Justice Sue Walker, and Justice Lee
Gabriel all voted to recuse Justice Dauphinot.11 Half of Justice
Dauphinot’s six colleagues on the Second Court believe that, based upon
the dissent in which she expresses negative general opinions about the
WCDA and departs from guiding judicial principles, she should not hear
cases involving the WCDA. Additionally, these justices were aware of the
background on the initial memorandum opinion authored by Justice
Dauphinot in the Joe Johnson appeal (Johnson I) and all participated in the
en banc reconsideration (Johnson II) that forms much of the context to the
State’s recusal motion.12
Recusal is required when “a reasonable member of the public at
large, knowing all the facts in the public domain concerning the judge and
the case, would have a reasonable doubt that the judge is actually
impartial.”13 A reasonable member of the public at large would certainly
11
State’s Attachment A.
12
Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345, at *1 (Tex. App.—
Fort Worth Oct. 9, 2014) (en banc) (Johnson II).
13
Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995).
1
have a reasonable doubt that a justice is actually impartial upon hearing
that half of the justice’s colleagues—including her Chief Justice—doubt her
ability to be fair and impartial.14
Importantly, the Fifth Circuit has emphasized that when a judge’s own
colleagues publicly express a lack of confidence in the judge’s ability to
appear impartial with a particular attorney or party, this factor militates in
favor of recusal.15
Additionally, Due Process requires a neutral and detached hearing
officer.16 As these Due Process rights are paramount, when half of a
justice’s colleagues are willing to go on record and vote for recusal, this
Court should seriously consider these justices’ concerns.17
These three justices’ courage to publicly vote against Justice
Dauphinot heavily militates for recusal.18 Such an important matter with
Due Process implications should not be left to a closely divided 4-3 vote.
Permitting the decision to stand would cause serious questions to linger
about Justice Dauphinot’s impartiality. Thus, this Court should grant review
14
See State’s Attachment A.
15
See U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) (explaining when a
judge’s “own colleagues believed there would be at least an appearance of impropriety”
if the judge presided over a case involving a particular attorney it would lead a
reasonable person to harbor doubts as to the judge’s impartiality).
16
In re Murchison, 349 U.S. 133, 136 (1955).
17
See, e.g., U.S. v. Bremers, 195 F.3d at 227.
18
Id.
2
and examine the evidence that lead Chief Justice Livingston, Justice
Walker, and Justice Gabriel—all well-respected jurists—to conclude that
their colleague should be recused.
2. Recusal is required because Justice Dauphinot applies a
different set of rules when the WCDA is a party than she applies
in other cases.
Justice Dauphinot applies a different set of rules when the WCDA is a
party than in other cases. The Code of Judicial Conduct requires judges to
fairly apply the law without prejudice or bias toward any party.19
Foundational to American justice is the idea of “equal and impartial justice
under the law” which is accomplished when “the laws operating on all
alike.”20 Applying different standards to different parties is the antithesis of
“an equal and impartial justice under the law.”21
Comparing Justice Dauphinot’s dissent in Roberson to her prior
jurisprudence demonstrates that she applies a markedly different standard
to the WCDA than to other litigants.
First, Justice Dauphinot treats motion in limine rulings differently with
the WCDA. In Roberson to support her theory that the State intentionally
prompted a mistrial, she conflates a ruling on a motion in limine with an
19
Tex. Code Jud. Conduct, Preamble & Canon 3(B)(5).
20
Caldwell v. Texas, 137 U.S. 692 (1891).
21
Id.
3
evidentiary ruling on admissibility.22 A motion in limine is not a ruling on
admissibility.23 Yet, Justice Dauphinot states “[t]he trial judge ruled that the
notice of extraneous acts of misconduct that the State intended to offer into
evidence was untimely and that the evidence, presumably, were
inadmissible.”24
When he granted the limine, the trial judge said: “Without hearing
[the witnesses], I’d be inclined to say they might have had previous contact
or something like that that’s how they recognized. But to go any further
might be a problem. But we’ll discuss that. So I’ll go ahead and grant that
limine on that ground. Make sure you come up before you start with
them.”25
For the WCDA, Justice Dauphinot considers a motion in limine an
evidentiary ruling “that the notice of extraneous acts of misconduct that the
State intended to offer into evidence was untimely” and that the evidence
was inadmissible.26 Yet, the trial judge had made no ruling beyond
requiring the parties to approach.27
22
Roberson, 2015 WL 148476 at *5-9.
23
Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).
24
Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting) (emphasis added).
25
See State’s Attachment B, III R.R. at 6 (transcript excerpts in Roberson).
26
Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).
27
See State’s Attachment B, III R.R. at 4-14 (hearing on motions in limine in
Roberson).
4
With other parties, she applies a different (and correct) standard to
limine rulings: “The granting of a motion in limine is not a ruling on the
admissibility of the evidence and does not preserve error. A motion in
limine simply prohibits references to specific issues without first obtaining a
ruling on the admissibility of those issues outside the presence of the
jury.”28 Justice Dauphinot clearly understands the difference between a
ruling on a motion in limine and an evidentiary ruling.29 Indefensibly, she
applies a different standard with to WCDA.
Second, Justice Dauphinot applies a different standard of assessing
credibility determination with to WCDA. In Roberson, she states that
“[u]nlike trial judges, who primarily see only the conduct in the courtrooms
over which they preside, appellate courts are presented with records from
other courts in that county…Appellate judges are in a better position than
the trial judge to see patterns of conduct.”30 Thus, she begins her dissent
by stating why she believes she is in a better position than the trial judge to
know what was really going on in his courtroom.
Justice Dauphinot cites the trial judge’s credibility determination of
Investigator Cavinder: “And I’m not casting fault on Investigator Cavinder at
28
BNSF Railway Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth
2014, pet. filed) (opinion authored by J. Dauphinot).
29
Id.
30
Roberson, 2015 WL 148476 at *5-6. (Dauphinot, J., dissenting).
5
all. I understand that was an honest mistake. I completely believe that he
believed he was speaking to Ms. Steele.”31 Then, Justice Dauphinot
promptly discards this credibility determination and instead substitutes her
own judgment: “The record casts doubt on Cavinder’s testimony
concerning his own knowledge.”32 Despite the trial judge stating on the
record that he was not casting fault on Cavinder, that it was an “honest
mistake” and that he completely believed Cavinder, Justice Dauphinot
instead implicitly calls Cavinder a liar and relates that she does not believe
him.33 For the WCDA, Justice Dauphinot rejects the trial judge’s credibility
determination.34
With other parties, Justice Dauphinot applies a different (and correct)
standard: “We cannot and must not substitute our determination of the facts
and the credibility of the witnesses in order to achieve the result we believe
the trial court should have reached.”35 Additionally, Justice Dauphinot has
explained the deference an appellate judge owes the trial judge: “When
the findings are based on an evaluation of a witnesses’ credibility and
31
Id. at *7.
32
Id. at *7.
33
Id. at *8.
34
See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014); Guzman v.
State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
35
See, e.g., State v. Woodard, 314 S.W.3d 86, 100 (Tex. App.—Fort Worth 2010,
pet. filed) (Dauphinot, J., dissenting), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011).
6
demeanor, the appellate court should afford almost total deference to the
trial court’s fact findings.”36
Third, Justice Dauphinot ignores binding precedent of the Court of
Criminal Appeals when the WCDA is the party.37 While Justice Dauphinot
in Roberson recites that this Court requires proof that the prosecution
intended to cause a mistrial for jeopardy to bar a second prosecution, she
ignores that standard in favor of her own standard: “At some point,
appellate courts must hold that the conduct is so egregious that the party
cannot avoid its consequences.”38 Instead of applying the Court of Criminal
Appeals factors in Ex parte Wheeler (as the majority opinion does), Justice
Dauphinot ignores the Wheeler factors and seeks to apply her own
standard formulated ad hoc, unmoored from the precedent of the Court of
Criminal Appeals.39 This is not a situation where Justice Dauphinot simply
disagrees with the majority about the particular Wheeler factors or how
much weight to give them; rather, Justice Dauphinot would reverse the
case without reference to Wheeler.40
36
See Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.)
(J. Dauphinot).
37
Roberson, 2015 WL 148476 at *5-9 (Dauphinot, J., dissenting).
38
Id. at *5.
39
Id. at *10-11 (Dauphinot, J., dissenting).
40
Id.
7
Conversely, with other litigants, Justice Dauphinot carefully applies
binding precedent of this Court, explaining that “Because a decision of the
court of criminal appeals is binding precedent, we are compelled to comply
with its dictates.”41
This disparate treatment of the WCDA versus other parties is the
antithesis of “the laws operating on all alike.”42 These concrete, undeniable
examples of a separate set of rules for the WCDA are likely why half of
Justice Dauphinot’s colleagues believe she should be recused.
3. Recusal is required because, regardless of her motivations, by
speaking out and plainly stating that she has formed a negative
opinion about the WCDA that influences her on every case,
Justice Dauphinot departed the realm of impartial judging and
improperly entered the realm of advocacy.
Rather than limit her dissent to the issues before the court in
Roberson, as required by the T.R.A.P. 47.1,43 Justice Dauphinot vividly
expresses general opinions that she has formed against the WCDA. First,
as she directs her dissent to the popular, yet unclothed emperor (the
District Attorney), it is clear this dissent is about far more than the issues
before the Second Court in Roberson.44 Justice Dauphinot confirms this in
the second paragraph: “[a]ppellate judges are in a better position than trial
41
State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.)
(J. Dauphinot).
42
Caldwell v. Texas, 137 U.S. 692 (1891).
43
Tex. R. App. P. 47.1.
44
Roberson, 2015 WL 148476 at *1-9.
8
judges to see patterns of conduct.”45 Justice Dauphinot then casts this
case as part of an observed pattern: “appellate judges have an obligation to
speak up when observed patterns show a course of conduct at odds with
constitutional mandates and fundamental fairness.”46
It is clear from Justice Dauphinot’s own words that she is looking
beyond the record in this case to “observed patterns” and that these
“observed patterns” have prompted her to “speak up” and tell the popular,
yet unclothed emperor that her office is “at odds with constitutional
mandates and fundamental fairness.”47
Justice Dauphinot concludes her dissent by placing Roberson within
an observed pattern by citing Dabney v. State, Pitman v. State, and Juarez
v. State.48 Justice Dauphinot could not be clearer: she would not decide
Roberson just on the record before the court, but would use an “observed
pattern” as her rationale for deciding the case and impugning the
motivations and integrity of the WCDA and staff, including the
misdemeanor prosecutor and investigator.49 Thus, Justice Dauphinot has
45
Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
46
Id. at *5-6. (emphasis added).
47
Id.
48
Id. at *5-9.
49
Id.
9
admitted she has formed opinions about the WCDA that she carries from
case-to-case that influence her judgment and even outweigh the record.50
First, her dissent reveals she has departed the realm of appellate
judging and entered the realm of advocacy because she ignores T.R.A.P.
47.1’s limitation of an appellate court decision to the issues “raised and
necessary to final disposition of the appeal.” Rather, her dissent far
exceeds the issues necessary to decide whether jeopardy bars a re-trial.51
Second, she characterizes herself as needing to “speak-up” and tell a
popular, yet naked emperor a few things about a pattern of discovery
abuses.52 This is an odd tone for a supposedly dispassionate appellate
justice required by the Texas Code of Judicial Conduct to be “dignified and
courteous to litigants…with who the judge deals.”53
Regardless of Justice Dauphinot’s subjective motives for needing to
“speak-up” against the WCDA, by becoming an advocate and expressing
her general, negative opinion about the WCDA, she has compromised her
ability to treat the WCDA fairly.
As Justice Kennedy has explained, “A judge may find it difficult to put
aside views formed during some earlier proceeding. In that instance we
50
Id.
51
Id.
52
Id. at *5.
53
Tex. Code Jud. Conduct, Canon 3(B)(4).
10
would expect the judge to heed the judicial oath and step down, but that
does not always occur. If through obduracy, honest mistake or simple
inability to attain self-knowledge the judge fails to acknowledge a
disqualifying predisposition or circumstance, an appellate court must order
recusal…”54 Texas courts have also long-recognized that when a judge
articulates such a predisposition against a party, recusal is required.55
Justice Dauphinot’s dissent demonstrates exactly such a disqualifying
predisposition toward the WCDA.
4. Recusal is required because Justice Dauphinot’s bias was
clearly revealed by her astounding claim that she can discern a
discovery abuse from a case where the issue was neither
preserved nor reached by the court of appeals.
Justice Dauphinot’s citation of Juarez v. State as a “similar decision”
(i.e. case) where the WCDA made a “conscious decision” to violate a
discovery order is astounding.56
Texas law requires alleged error to be preserved by a timely objection
before an appellate court will reach the ultimate issue.57 Without a timely
objection, the appellate court will not reach the merits.58
54
Likety v. U.S., 510 U.S. 540 (1994) (J. Kennedy, concurring).
55
See, e.g., Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]
1988—pet. ref’d) (finding judge’s statement, which was tantamount to pre-judging a
party, “was evidence of bias sufficient to require recusal.”).
56
Roberson, 2015 WL 148476 at *5-9.
57
Tex. R. App. P. 33.1.
58
Id.
11
While this is basic legal procedure that any long-tenured appellate
justice understands, Justice Dauhpinot’s actions in not following these
basic prescripts in misusing Juarez proclaim her blatant unfairness to the
WCDA.59
Although Justice Dauphinot cites Juarez as a “disturbing” example of
a “conscious decision” of the WCDA “withholding mandated discovery,” a
fair reading of Juarez shows no such discovery abuse.60
In Juarez, after a revocation hearing at which appellant’s court
ordered sex offender treatment provider testified, appellant complained that
this testimony constituted extraneous evidence and that the WCDA had
failed to give notice.61 The Second Court declined to reach the merits of
appellant’s claim because appellant “did not preserve his claim for review”
because his only objection was to relevance.62 Simply reading the one-
page opinion demonstrates that the Second Court did not reach the
merits.63
59
Roberson, 2015 WL 148476 at *9.
60
Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—Fort Worth
June 4, 2009, no pet.).
61
Id.
62
Id.
63
The State also doubts the merits of Juarez’s claim as he was ordered by the
terms of probation to see the treatment provider; thus, the provider’s testimony would
likely be contextual to the revocation. Regardless, the appellant failed to preserve the
error, so the court of appeals never reached the merits. See id.
12
To cite a one-page opinion where the merits were not reached and
where the appellate court did not find a discovery violation as a “disturbing”
example of a previous “conscious decision” of the WCDA to “withhold
mandated discovery” violates every basic rule for the use of case
authority.64
How could any reasonable member of the public expect Justice
Dauphinot to be fair to the WCDA when she claims the unique power to
look-behind the appellate court’s decision in Juarez and see a “disturbing”
failure and pattern by the WCDA of “consciously deciding” not to give
mandated discovery?
Her misuse of Juarez is further evidence that Justice Dauphinot
applies a different set of rules to the WCDA. In State v. Taylor, an opinion
she authored, she explains that when a party fails to preserve error, the
appellate court does not reach the merits.65 Incredibly, she ignores this
rule in her use of Juarez.66
As this Court is aware, many baseless claims are made in appellant
points of error. Is there any Texas Rule of Appellate Procedure that
empowers Justice Dauphinot to sua sponte re-determine the validity of an
64
Roberson, 2015 WL 148476 at *9.
65
264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no pet.).
66
Juarez, 2009 WL 1564926.
13
appellate point when the panel hearing the case did not reach the merits
and she wasn’t even a member of the panel? It is hard to excuse Justice
Dauphinot’s extreme misuse of Juarez as an honest mistake when the
opinion is only one-page long and one of only three cases that she cited for
her alleged pattern.67 No fair-minded person could read Juarez and believe
that the court reached the merits or cite it as an example of a conscious
discovery violation.
5. Recusal is required because Justice Dauphinot’s lack of fairness
is evidenced by her sweeping advisory pronouncement of a
pattern of constitutional abuse when this alleged pattern A) was
not an active controversy before her; B) was not necessary to
the determination of the appeal; and C) the WCDA had no
opportunity to provide testimony, evidence, or briefing on such
a consequential accusation.
Justice Dauphinot’s violation of the proscription against advisory
opinions without the WCDA being afforded the opportunity to present
evidence or briefing on such an important issue demonstrates her abject
lack of fairness.68
While Justice Dauphinot cites “observed patterns” that “show a
course of conduct at odds with constitutional mandates and fundamental
67
Id.
68
Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988) (explaining that
“judicial power does not include the power to issue advisory opinions” which result
“when a court attempts to decide an issue that does not arise from an actual
controversy capable of a final adjudication.”) overruled on other grounds, Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997).
14
fairness” as the basis for her dissent, this supposed pattern was not a
controversy in issue before the trial judge.69 There was no allegation
before the trial judge of any such pattern.70 Rather, the only issues before
the trial court were (1) what had happened; and (2) why did it happen.71
The trial court never asked for, heard, or received any evidence about any
pattern of misconduct by the WCDA.72 Therefore, the WCDA has never
been afforded any opportunity to offer testimony or evidence rebutting any
such pattern.
Incredibly, the WCDA never had the opportunity to brief this alleged
pattern because the court requested submission without briefs.73 Since no
Appellant’s brief raised a pattern, Justice Dauphinot‘s disqualifying
predisposition alone lead her to lurch into this area.74
69
See State’s Attachment B, IV-V R.R. (motion for mistrial and hearing on habeas
application).
70
Id.
71
Id.
72
Id.
73
See Letter from Debra Spisak to Parties regarding submission (Apr. 1, 2014),
available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b-
4a30-a6c8-72575b047add (last visited Mar. 4, 2015).
74
See Letter from Debra Spisak to Parties regarding immediate submission without
briefing (Feb. 20, 2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=10bed362-04fb-
49c7-9d7b-1d9a1d5cf937.
15
Appellate courts are not evidentiary courts.75 When an appellate
court needs additional evidence, the remedy is to abate the appeal for an
evidentiary hearing in a trial court.76
The WCDA never had the opportunity to offer any evidence to refute
this erroneous claim. To state such a serious conclusion in the dissent of a
published opinion when there has been no briefing or evidentiary hearing
before a trial court is completely contrary to the tenets of judicial fairness,
the Rules of Appellate Procedure, and the proscription against advisory
opinions.77
Justice Dauphinot deprives the WCDA of the ability to rebut such a
serious claim with evidence: what Brady training does the WCDA
mandate? What processes does the WCDA have in place to comply with
discovery requests? How many cases has the WCDA tried where there
have been no discovery complaints? What training do prosecutors receive
on compliance with discovery requests?
75
See, e.g., In the Interest of M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas
2013, no pet.) (explaining that appellate courts do not take testimony or receive
evidence).
76
Tex. R. App. P. 44.4.
77
Tex. R. App. P. 47.1 (limiting an appellate court decision to the issues “raised
and necessary to final disposition of the appeal); see also Garrett, 749 S.W.2d at 803
(explaining that “judicial power does not include the power to issue advisory opinions”
which result “when a court attempts to decide an issue that does not arise from an
actual controversy capable of a final adjudication.”), overruled on other grounds, Malik
v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
16
A fair-minded jurist would give a party the ability to offer such
evidence before making this sweeping pronouncement. Instead, Justice
Dauphinot bases her improper advisory pronouncement on three cases in
five years out of thousands of criminal cases handled by the WCDA.78
Remarkably, of the three cases that she cites for her pattern of
constitutional discovery abuse, in two, the court of appeals made no finding
of a discovery violation and affirmed the trial court.79 In Pitman, which
Justice Dauphinot cites for a previous discovery abuse, she was on the
panel that unanimously found no such abuse.80
The third case, Dabney v. State, had a petition for discretionary
review pending at the time she cited it.81 On March 4, 2015, this Court
granted review in Dabney.82 Neither the trial judge in Dabney nor Justice
Sue Walker believed that the State committed a discovery violation.83 The
State also questions the fairness of citing a case for such a momentous
78
Roberson, 2015 WL 148476 at *11 (Dauphinot, J., dissenting).
79
Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet. ref’d); Juarez,
2009 WL 1564926 at *1.
80
Pitman, 372 S.W.3d 261. While the appellate court, in dicta, expressed concerns
about the WCDA’s policy relating to privacy of CPS records, the Legislature has since
expressly recognized these concerns in 39.14(a) by expressly referencing the privacy of
CPS records. Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014).
Regardless, the appellate court did not hold there was a discovery abuse in Pitman. Id.
81
Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).
82
See Docket Sheet for Dabney v. State, No. PD-1514-14 in the Court of Criminal
Appeals, available at http://www.search.txcourts.gov/Case.aspx?cn=PD-1514-14 (last
visited Mar. 4, 2015).
83
Id.
17
proposition when the justice knows the contested issue is the subject of a
pending petition for discretionary review.84
This advisory pronouncement and the failure to afford the WCDA the
opportunity to brief or rebut with evidence irrefutably establishes Justice
Dauphinot’s unfairness to the WCDA.85
6. Recusal is required because the timing of Justice Dauphinot’s
abject lack of judicial fairness in Roberson suggests it may have
been retaliatory and motivated by the State prevailing on its
motion for en banc reconsideration in the Joe Johnson case
after the State referred to her memorandum opinion’s drastic
departure from the trial record as “troubling.”
While the State does not have to prove (nor does this Court have to
find) actual bias or Justice Dauphinot’s subjective motivations for her
significant departure from basic judicial norms for recusal to be required,86
the timing of the Roberson dissent with its vitriolic and unsubstantiated
claims provides an important context to the Court. The Roberson dissent
did not occur in a vacuum; rather, it occurred almost concomitantly with the
State’s seeking and obtaining the extraordinary relief of en banc
reconsideration and withdrawal of an opinion authored by Justice
Dauphinot. The State prevailed on its motion for en banc reconsideration
84
Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).
85
Roberson, 2015 WL 148476 at *5-9.
86
Murchison, 349 U.S. at 136.
18
on October 9, 2014.87 Justice Dauphinot dissented.88 Then, the Roberson
dissent was released a mere three months later on January 8, 2015.89
In Johnson, Justice Dauphinot authored an opinion that made many
factual assertions that were not supported by the record.90 Justice
Dauphinot’s opinion was premised upon a false open-door theory.91
Because reversal would have caused a child rape victim to re-testify, the
WCDA had no choice but to seek the extraordinary relief of en banc
reconsideration.92 The State’s motion detailed with exhaustive record cites
how drastically Justice Dauphinot’s memorandum opinion deviated from
the actual trial record and referred to this departure as “troubling.”93
On October 9, 2014, a majority of the Second Court agreed, thereby
withdrawing Justice Dauphinot’s memorandum opinion, and affirming the
conviction.94 Justice Dauphinot dissented.95 Justice Walker and Justice
87
Johnson v. State, 449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en
banc) (Johnson II).
88
Id. (J. Dauphinot, dissenting).
89
Roberson, at *1.
90
Johnson v. State, 2013 WL 531079 (Tex. App.—Fort Worth Feb. 14, 2013)
(mem. opinion) (Johnson I), opinion withdrawn and superseded by Johnson v. State,
449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en banc).
91
Id.
92
Johnson II, 449 S.W.3d at 240.
93
State’s Attachment C, State’s Motion for En Banc Reconsideration.
94
Johnson II, 449 S.W.3d at 240.
95
Id.
19
Gabriel, who had joined in the memorandum opinion, reversed their votes,
and Justice Gabriel authored the majority opinion.96
While neither the State nor this Court can gauge Justice Dauphinot’s
subjective motives, the objective facts demonstrate that three months after
the State prevailed on a motion for extraordinary relief whereby two of her
colleagues abandoned her opinion, which the State had called “troubling,”
Justice Dauphinot dissented in Roberson with her incendiary, gratuitous,
and unfounded accusations against the WCDA.97
The State hopes this timing is an unfortunate coincidence, but the
fact remains that the appearance is so troubling as to call into question
Justice Dauphinot’s ability to be fair and impartial. A party should be able to
exercise its rights under T.R.A.P. 49.7 and seek extraordinary relief when
an opinion dramatically departs from the trial record without fearing reprisal.
Regardless of subjective intent, the objective appearance of a retaliatory
motive supports recusal.
Prayer
The State prays that this Court grant discretionary review of the
Second Court of Appeals’ recusal decision; that the Second Court of
Appeals’ decision be reversed; and that Justice Dauphinot be recused.
96
Id.
97
Roberson, 2015 WL 148476 at *5-9.
20
Respectfully submitted,
/s/Maureen Shelton
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
State Bar No. 00786852
Maureen.Shelton@co.wichita.tx.us
/s/John Gillespie
John Gillespie
First Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24010053
John.Gillespie@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 766-8177 fax
/s/John Brasher
John Brasher
Special Prosecutor
State Bar No. 02907800
brasherappeals@gmail.com
900 8th Street
Wichita Falls, Texas 76301
(940) 244-0244 phone
(940) 244-0245 fax
21
Certificate of Compliance
I certify that this document contains 4,452 words, counting all parts of
the document except those excluded by Tex. R. App. P. 9.4(i)(1). The
body text is in 14 point font, and the footnote text is in 12 point font.
/s/Maureen Shelton
Maureen Shelton
Certificate of Service
I do certify that on March 4, 2015, a true and correct copy of the
above document has been served electronically to Michael F. Payne
(attorney for Antonio Leija, Jr.) at michaelfpayne@gmail.com and the State
Prosecuting Attorney’s Office at information@spa.texas.gov.
/s/Maureen Shelton
Maureen Shelton
22
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00319-CR
MICHAEL OLIVER SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 52,047-B
------------
NO. 02-13-00473-CR
ANTONIO LEIJA, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 52,563-B
------------
FILE COPY
NO. 02-13-00482-CR
KURLEY JAMES JOHNSON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 53,445-C
------------
ORDER
------------
Currently pending before this court in each of the above referenced causes
is a “State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot,” filed
January 21, 2015, requesting the recusal of Justice Lee Ann Dauphinot in each
cause under Texas Rule of Appellate Procedure 16.
Rule 16 states that the grounds for recusal are the “same as those
provided in the Rules of Civil Procedure.” Tex. R. App. P. 16.2; see also Tex. R.
Civ. P. 18a, 18b. Rule 18b(b) of the Texas Rules of Civil Procedure identifies the
grounds for recusal. Tex. R. Civ. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d
87, 88 (Tex. App.—Waco 2001, pet. denied) (order). Rule 18b(b)(1) provides
that a judge must recuse himself or herself in a proceeding in which the judge’s
2
FILE COPY
impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(b)(1). The
State’s motions challenge the impartiality of Justice Dauphinot under this rule.
Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the
procedure to be followed for recusal of an appellate justice or judge:
Before any further proceeding in the case, the challenged justice or
judge must either remove himself or herself from all participation in
the case or certify the matter to the entire court, which will decide the
motion by a majority of the remaining judges sitting en banc. The
challenged justice or judge must not sit with the remainder of the
court to consider the motion as to him or her.
Tex. R. App. P. 16.3(b).
Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the
recusal motions and prior to any further proceedings in these appeals, Justice
Dauphinot considered the motions in chambers. Id. Justice Dauphinot found no
reason to recuse herself and certified the matter in writing to the remaining
members of the court en banc. See id.; McCullough, 50 S.W.3d at 88. This
court then followed the accepted procedure set out in rule 16.3(b). Tex. R. App.
P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50
S.W.3d at 88. A majority of the remaining justices of the court could not agree on
a decision, so that fact was certified to the Chief Justice of the Supreme Court.
The Chief Justice temporarily assigned former Justice Rebecca Simmons as a
visiting justice to sit with the court of appeals to consider the motions. See Tex.
R. App. P. 41.2(b).
3
FILE COPY
The visiting justice then met with the six remaining justices to deliberate
and decide the motions to recuse Justice Dauphinot by a vote of a majority of the
justices. Justice Dauphinot did not sit with the other members of the court when
her challenges were considered. See Tex. R. App. P. 16.3(b); McCullough, 50
S.W.3d at 88. The determination of whether recusal was necessary was made
on a case-specific, fact-intensive basis. See McCullough, 50 S.W.3d at 89;
Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no
pet.) (order).
The en banc court, Justice Dauphinot not participating, has carefully
examined the motions and the records as to the allegations pertaining to Justice
Dauphinot. The majority of the remaining justices have concluded that the
motions should be denied. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(b).
Accordingly, the State’s motion to recuse Justice Dauphinot in each of the above
referenced causes is denied.
DATED February 26, 2015.
PER CURIAM
EN BANC; with REBECCA SIMMONS (Former Justice, Sitting by Assignment).
DAUPHINOT, J., not participating.
LIVINGSTON, C.J.; WALKER and GABRIEL, JJ., would grant.
4
02-13-00582-CR 1
1 REPORTER'S RECORD
2 VOLUME 3 OF 6
3 TRIAL COURT CAUSE NO. 58017-E
4 THE STATE OF TEXAS § IN THE COUNTY COURT
§
5 VS. § AT LAW NO. 1
§
6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS
7
8
9
*****************************************************
10
JURY TRIAL ON MERITS
11
*****************************************************
12
13
14
15
16
17
18 On the 21st day of August, 2013, the
19 following proceedings came on to be heard in the
20 above-entitled and numbered cause before the Honorable
21 Gary W. Butler, Judge presiding, held in Wichita Falls,
22 Texas, Wichita County, Texas:
23 Proceedings reported by computerized
24 stenotype machine in real-time. Reporter's Record
25 produced by computer-aided transcription.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 2
1 A P P E A R A N C E S
2 Ms. Victoria Honey
SBOT NO. 24073195
3 Ms. Allyson Renee Kucera
SBOT NO. 24081858
4 Assistant District Attorneys
WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5 900 7th Street
Third Floor
6 Wichita Falls,TX 76301-2402
940.766.8113
7 ATTORNEYS FOR THE STATE OF TEXAS
8 -AND-
9 Mr. Mark Richard Briley
SBOT NO. 24069418
10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
600 Scott Ave
11 Suite 204
Wichita Falls, TX 76301-2531
12 940.766.8199
Ms. Kristen Homyk Howcroft
13 SBOT NO. 24032433
THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14 900 8th Street
Suite 815
15 Wichita Falls, TX 76301
940.687.1576
16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 3
1 I N D E X
2 VOLUME 3
3 JURY TRIAL ON MERITS
4 AUGUST 21, 2013 Page Vol.
5 Appearances................................. 2 3
6 Motions In Limine........................... 4 3
7 Preliminary Instructions by the Court....... 14 3
8 Jury Voir Dire Examination by the State..... 21 3
9 Jury Voir Dire Examination by the Defendant. 89 3
10 Court's Instructions To Jury................ 150 3
11 WITNESSES
Direct Cross Voir Dire Vol.
12 DONNIE CAVINDER 156 3
13 Adjournment................................. 158 3
14 Court Reporter's Certificate................ 159 3
15
16
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 4
1 P R O C E E D I N G S
2 (Open court, defendant present, no panel)
3 MOTIONS IN LIMINE
4 THE COURT: Court's going to call Cause No.
5 58017-E, styled the State of Texas versus Byrias
6 Roberson. The Court will call that case for trial.
7 We're here on pretrial matters which the Court has found
8 through its motion in limine by both the State and the
9 defense. The Court will note for the record the State's
10 present through their attorneys from the District
11 Attorney's office; the defendant is present with his
12 attorneys. I have Mr. Roberson's motion in limine
13 sitting here, so we'll just go ahead and take it up first
14 if you don't mind.
15 Mr. Briley, I know you've provided a copy of
16 this to the District Attorney's office, and I assume that
17 y'all have conferred with regard to the motion in
18 limines, and I've reviewed it as well. So we'll take it
19 up in this matter. Is there any -- tell me this. Which
20 numbers does the State object to on the motion in
21 limine?
22 MS. HONEY: No. 1, 2, 3, 4 and 15.
23 THE COURT: 1, 2, 3, 4 and what?
24 MS. HONEY: Fifteen.
25 THE COURT: All right. Let's take them up in
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 5
1 order. No. 1?
2 MS. HONEY: I have an objection to No. 1 if it
3 includes felony convictions and crimes of moral
4 turpitude. The rules provide for impeachment if there's
5 a felony conviction or crime of moral turpitude.
6 THE COURT: Mr. Briley?
7 MR. BRILEY: I don't see my reason that we
8 couldn't approach the bench before those were got into.
9 THE COURT: We can, but if it's a crime of moral
10 turpitude or a felony conviction, wouldn't you agree
11 that's subject to cross-examination? I'll let you
12 approach so we can determine if it's a felony or crime of
13 moral turpitude at that point and we'll go forward.
14 MS. HONEY: No. 2, I anticipate that there will
15 be testimony in this case regarding the officer's entry
16 into the home. If defense counsel intends to challenge
17 the legality of that entry, I would like the opportunity
18 to question some of the State's witnesses regarding a
19 prior encounter between the defendant and these witnesses
20 about and regarding a disturbance call. He had
21 barricaded himself and his family inside his home. The
22 SWAT team was called to get him out of the home. Two of
23 the members of the SWAT team are witnesses in this case.
24 This prior incident between the defendant and these
25 officers is important for several reasons. It goes to
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 6
1 their familiarity with the defendant, their ability to
2 identify him on the date of the offense. It's part of
3 how they recognized him on the date of the offense. It
4 also goes to their state of mind on the date of the
5 offense, goes to why gang task force officers were asked
6 to serve these warrants on the defendant, and also goes
7 to their reason to believe that the defendant lived in
8 this particular residence.
9 THE COURT: Mr. Briley?
10 MR. BRILEY: Well, Your Honor, we've asked or
11 requested notice of any bad acts or convictions, and we
12 haven't received any of those.
13 THE COURT: Well, let's do it this way. I'll go
14 ahead and sustain or grant on this limine that y'all will
15 approach, and then we would get into exactly what the
16 officers could or could not go into. Without hearing
17 them, I'd be inclined to say they might have had previous
18 contact or something like that that's how they
19 recognized. But to go any further might be a problem.
20 But we'll discuss that. So I'll go ahead and grant that
21 limine on that ground. Make sure you come up before you
22 start with them. No. 3?
23 MS. HONEY: No. 3, I have an objection to No. 3
24 if bad reputation or character as stated in No. 3
25 includes a witness's character for truthfulness or
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 7
1 untruthfulness. Again, that is proper impeachment under
2 Texas Rules of Evidence.
3 THE COURT: As long as the proper predicate is
4 laid.
5 MS. HONEY: Yes, Your Honor.
6 THE COURT: Mr. Briley?
7 MR. BRILEY: No response.
8 THE COURT: Okay. So as long as the proper
9 predicate is laid, of course. So that essentially will
10 be denied. However, I understand there could be an
11 objection for proper predicate not being laid if you want
12 to go into that. Four?
13 MS. HONEY: I don't anticipate there being any
14 testimony in this case regarding the defendant ever being
15 a member of a criminal street gang, currently being a
16 member of a street gang. However, I do anticipate that
17 as part of some of the State's witnesses talking about
18 their work experience, their training, their job
19 assignments on the date of the offense, they're going to
20 testify that they were part of the gang task force.
21 THE COURT: Mr. Briley, if their testimony is
22 limited to what their duties were at the time, do you
23 still have a problem with that?
24 MR. BRILEY: No. And I don't anticipate any
25 evidence is going to be shown that Byrias was part of a
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 8
1 gang. But if it was to go to that, then I would ask that
2 they --
3 THE COURT: I'll grant it as to that specific
4 according to their assignments. It is what it is.
5 Fifteen?
6 MS. HONEY: No. 15, this -- I guess my objection
7 is if the defendant takes the witness stand during the
8 defendant's case in chief -- the State's not saying the
9 defendant has to or will -- but if the defendant takes
10 the witness stand and attempts to bolster his credibility
11 with the jury by talking about his law enforcement
12 background, and in talking about that law enforcement
13 background creates a false impression in the mind of the
14 jurors, we would ask for the opportunity to correct that
15 false impression in the mind of the jurors.
16 Additionally, his law enforcement background
17 goes to the heart of this case, the facts of our case,
18 the force that he used against the officers. He was
19 trained as a police officer, familiar with how to
20 effectuate an arrest, and trained on how to do hand-to-
21 hand combat.
22 MR. BRILEY: With the first part, you know, if
23 we had brought it up.
24 THE COURT: If you open the door, I understand.
25 MR. BRILEY: I understand that, but my motion is
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02-13-00582-CR 9
1 any reference by them to begin with. I don't see how
2 that it's relevant and it is holding Byrias to a higher
3 standard, which I would disagree that they should be able
4 to do.
5 THE COURT: The motion in limine will be granted
6 as to that and approach before you go into it. As to the
7 others, you agree that they should be granted?
8 MS. HONEY: Yes, Your Honor. On numbers 5
9 through 14, the State has no objection.
10 THE COURT: Those will be granted. With regard
11 to the State's motion, Mr. Briley, you had an opportunity
12 to review that?
13 MR. BRILEY: Yes and no, Your Honor. I received
14 an e-mail. I didn't actually see the final copy. And
15 there was only one that I initially had an objection to,
16 but let me re-read No. 6.
17 THE COURT: Okay.
18 MR. BRILEY: Our only objection to No. 6 is that
19 we plan on talking about the use of force that day. But
20 if they're only talking about official claims made by
21 either Byrias or people in the past, we have no objection
22 to that.
23 MS. HONEY: And, Your Honor, if I could have an
24 opportunity to clarify?
25 THE COURT: That's fine.
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1 MS. HONEY: No. 6 may have been overly broad
2 whenever I wrote it. Obviously, we have no objection to
3 them going into the facts of this particular case and
4 questioning officers about the facts of this particular
5 case.
6 THE COURT: Okay. All right. It sounds like
7 there's actually an agreement then with regard to 6 as
8 long as we're just talking about this case. I think you
9 would -- I would stay away from using the terms excessive
10 force as I think that creates -- is -- it's almost like a
11 term of art because it creates some -- it has some legal
12 concepts to it.
13 If we get there, the jury's going to determine
14 what amount of force was necessary. So I would say that
15 I grant the motion in limine as to anything outside of
16 the date in question. If you're wanting to get into
17 that, then let's approach and talk about it. As far as
18 the date in question, whatever the use of force was, of
19 course, it will come out in testimony with, I assume,
20 your witnesses, and the jury is the fact finder and they
21 can go from there.
22 With regard to the others, Mr. Briley, have any
23 objections to 1, 2, 3, 4, 5, and 7?
24 MR. BRILEY: No, Your Honor.
25 THE COURT: Of course, those would be granted
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02-13-00582-CR 11
1 then. Is there anything else with regard to pretrial
2 matters that we need to take up?
3 MS. HONEY: I don't believe so.
4 MR. BRILEY: None from the defense.
5 THE COURT: One thing. There have been rulings
6 by the court yesterday on in camera inspection of the
7 documents that were provided by the City Attorney's
8 office. I've reviewed those thoroughly, and in my review
9 I find nothing that would be exculpatory or would tend to
10 lead to that with regard to this matter. So those are
11 under seal and will remain under seal. All right. We're
12 going to start with the jury at 9:30, so y'all have got
13 some time. Please be back in here at 9:15 so we can be
14 ready to go right at 9:30 when the jury comes in. I know
15 you've each been provided yesterday a copy of the venire
16 panel list. At this time, do you believe that a shuffle
17 is necessary or --
18 MS. HONEY: Your Honor, the State would request
19 a shuffle.
20 THE COURT: The State's going to request a
21 shuffle.
22 MR. BRILEY: We did not receive the
23 questionnaires from jurors No. 16, 17, and 18, or they
24 were misplaced by my office.
25 THE COURT: Mr. Briley, I have it in my packet.
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02-13-00582-CR 12
1 Maybe it was not copied to you.
2 MR. BRILEY: Could I make a copy?
3 THE COURT: They want a shuffle. Let's go off
4 the record for a second.
5 (Discussion off the record)
6 THE COURT: Let's go back on the record. With
7 regard to the jury, I believe the State's saying they're
8 going to request a shuffle just by looking at the array.
9 MS. HONEY: Yes, Your Honor, that's correct.
10 THE COURT: Mr. Briley, typically, I would have
11 to bring the jury in and seat them so you could see the
12 array before we do the shuffle, and then it would be done
13 without you having an opportunity to shuffle again. Are
14 you okay with not seeing the array and going ahead and
15 shuffling and waiving what I would assume would be your
16 right to ask for another shuffle?
17 MR. BRILEY: Yes, Your Honor.
18 THE COURT: All right. We'll go off the record.
19 (Recess taken)
20 THE COURT: On the record. Back in cause 58017-
21 E parties are present. Defendant's present. There's an
22 issue with one of the jurors. It's now 10:20. She's
23 supposed to be here at 9:30. The juror No. 22, Claudia
24 Sciarra has issues with child care today. No. 22 is
25 outside the cut line. We are waiting on one other juror,
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 13
1 but are being told he's right on his way outside. That
2 would leave us with 23 potential jurors. Ms. Honey, do
3 you have any objection to going forward with 23?
4 MS. KUCERA: No, Your Honor.
5 THE COURT: Mr. Briley?
6 MR. BRILEY: No, Your Honor.
7 THE COURT: Twenty-two will be excused for
8 cause. I will deal with her and the ones who were late
9 after trial. I'm not going to say anything during trial.
10 I just want to get through the trial and get going. I'm
11 still going to leave a spot for No. 22. That way it
12 makes it easier on y'all. Okay. We'll go off the
13 record.
14 (Open court, defendant and jury panel present)
15 THE BAILIFF: Everyone's present, Your Honor.
16 THE COURT: All right. Thank you. If the
17 venire panel will remain standing, I'm going to issue an
18 oath. Would each of you please raise your right hand for
19 me?
20 (The jury panel was sworn)
21 THE COURT: Thank you. Y'all be seated, please.
22 All right. This is Cause No. 58017-E, State of Texas
23 versus Byrias Roberson. The Court will note for the
24 record the venire panel is seated with the exception of
25 one member, No. 22.
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02-13-00582-CR 14
1 The State is present through its attorneys,
2 defendant present, defendant's attorneys. What I'm going
3 to do first, I'm going to give you some instructions that
4 you'll have to go by during this voir dire process and
5 then what I'll do is introductions and I'll explain the
6 process to you and what's going on.
7 PRELIMINARY INSTRUCTIONS FOR JURORS
8 CRIMINAL CASES
9 "1. Turn off all phones and other electronic
10 devices. While you are in the courtroom and while you
11 are deliberating, do not communicate with anyone through
12 any electronic device. For example, do not communicate
13 by phone, text message, email, chat room, blog, or social
14 networking sites such as Facebook, Twitter, or Myspace.
15 Do not post information about the case on the Internet
16 before these court proceedings end and you are released
17 from jury duty. Do not record or photograph any part of
18 these court proceedings, because it is prohibited by law.
19 2. To avoid looking like you are friendly with
20 one side of the case, do not mingle or talk with the
21 lawyers, the witnesses, the parties, or any other person
22 who might be connected with or interested in the case.
23 Do not remain within the hearing of anyone who might be
24 discussing the case. These persons have to follow these
25 same instructions as you, so you should not be offended
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 15
1 when they follow these instructions.
2 3. Do not accept from, nor give to, any of
3 these persons any favors, no matter how slight the favor,
4 such as rides, food or refreshments.
5 4. Do not discuss or mention anything about
6 this case, the defendant, the alleged victim, or
7 witnesses to anyone, including your spouse, family
8 members, co-workers, and do not permit anyone to mention
9 anything about this case in your presence or your hearing
10 until you are discharged as jurors or excused from the
11 case. Do not communicate with anyone via any electronic
12 means, including, but not limited to text messages,
13 emails, Tweets or any other method of communication. Do
14 not permit anyone to communicate with you by any such
15 electronic means.
16 If anyone attempts to discuss anything about the
17 case, the defendant, the alleged victim or the witnesses
18 with you, you must report it to me at once. We do not
19 want you to be influenced by something other than the
20 evidence admitted in court.
21 5. Do not even discuss anything about this
22 case, the defendant, the alleged victim or the witnesses
23 among yourselves until after you have heard all the
24 evidence, the Court's Charge, the attorneys' arguments
25 and until I have sent you to the jury room to consider
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 16
1 your verdict. Even then, you cannot discuss the case
2 among yourselves except when you are all together in the
3 jury room. Do not form or express any opinions about
4 this case until you begin your deliberations."
5 The supreme court said I have to read that to
6 you before we start since all the electronic devices and
7 phones that we have now. Of course when I started, we
8 didn't have to deal with that, but, man, do times change.
9 My name is Gary Butler. I'm the judge here for
10 County Court At Law No. 1. I took over about three years
11 ago for Judge Hogan, who was here some 30 years. This is
12 a very active court. We don't waste time. We move very
13 quickly as I have general jurisdiction, which means I
14 hear criminal misdemeanor cases, all family law types of
15 cases, probate, mental health, civil cases under
16 $200,000. So you can tell we'd be quite busy just with
17 those. And that's just the jurisdictions I can remember
18 off the top of my head.
19 What we have here today is a criminal matter
20 that will be tried and be heard. I expect this trial to
21 last quite possibly to Friday noon. Of course, we're
22 gonna to move through this trial as quickly as we can.
23 However, the defendant, of course, in this matter is
24 entitled to a fair trial, and we're gonna take as much as
25 time as we need to ensure that that happens. I think
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 17
1 that would be what each and every one of you would want
2 if you were on trial.
3 Let me introduce everybody to you. I've already
4 said who I am. They're going to be asking a little bit
5 about your background in this voir dire process. What
6 they're trying to do is make educated strikes, so they
7 really need to know a little bit about you. If they ask
8 questions of such a personal nature as you do not feel
9 comfortable asking those questions in front of 20
10 something or 30 something people, then you can ask to
11 come after and speak with just myself and the attorneys
12 and, of course, the court reporter as well.
13 Now, I'm here from Wichita Falls. I've always
14 livid here. I went to Old High, went to college here.
15 Went off for law school, came back. So I'm about as
16 Wichita Falls as you get. I recognize a few of the
17 people here on the venire panel. Some I've known for a
18 number of years, so that shouldn't come as a shock to
19 anybody.
20 I have a daughter in Florida and two little boys
21 here and a wife that I've been married to for, ooh, 20
22 years. Over 20. Over 20 years, let's go with that. Let
23 me introduce who you're going to be seeing. Karen James
24 back there, you've already had dealings with. She's my
25 court coordinator and bailiff. She keeps everything
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 18
1 running as smoothly as possible. She doesn't carry a
2 gun, thank goodness, but still she still has the
3 classification of bailiff.
4 The other people you're going to see in the
5 courtroom, probably the most important but that you're
6 not going to hear anything from, is Ms. Cayce Coskey
7 who's sitting right over here to my right. She's my
8 court reporter. She's taking down everything that I say
9 and everything that you say. When a question is asked,
10 you have numbers, if you would stand and give your name
11 and or show your number, that's gonna let her make a more
12 accurate record during the voir dire process. The only
13 time we use those numbers is during voir dire.
14 Also, if you'll stand when answering questions,
15 it just makes it easier for everybody to hear. This air
16 conditioner that is only for my court is going, and
17 sometimes it makes it difficult to hear. When I first
18 started, we didn't have an air conditioner, and in a
19 trial in about August, I believe it was, the temperature
20 was 80 degrees. So thank goodness we've got an air
21 conditioner. The other people that you're going to see
22 is going to be from the State's attorneys, being Victoria
23 Honey.
24 MS. HONEY: Good morning.
25 THE COURT: Allyson Kucera.
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02-13-00582-CR 19
1 MS. KUCERA: Good morning.
2 THE COURT: The investigator for the District
3 Attorney's office who will be assisting them is Donnie
4 Cavinder.
5 MR. CAVINDER: Good morning.
6 THE COURT: For the defense, you have Mr. Mark
7 Briley.
8 MR. BRILEY: Good morning.
9 THE COURT: And Ms. Kris Howcroft.
10 MS. HOWCROFT: Good morning.
11 THE COURT: And the defendant Byrias Roberson.
12 THE DEFENDANT: Good morning.
13 THE COURT: A little bit about the process.
14 This is what's known as voir dire, to seek and tell the
15 truth or to question and tell the truth is what they said
16 when I was in law school. Jury selection process is a
17 better way of saying it for me. Since I'm from Wichita
18 Falls, if I butcher voir dire, I apologize. But I didn't
19 take French in high school.
20 The process we'll go through is the voir dire
21 will commence; the State will ask questions; the defense
22 will ask questions. Once we get through that, they're
23 going to exercise their strikes. I'd like to get through
24 the voir dire process hopefully by lunch. We'll see.
25 And then if not, it will be shortly thereafter. We
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02-13-00582-CR 20
1 should have a jury seated by two o'clock today. So those
2 of you who are not one of the lucky six, as I call them,
3 will be released at that time.
4 Now, we don't keep substitute or alternative
5 jurors in this court, so it will just be the six. After
6 that, there will be opening statements, and we'll move
7 forward into the presentation of evidence and closing
8 statements, and then you'll get other instructions at
9 that time. This does -- everybody's familiar with trials
10 pretty much. It's somewhat like in the movies and TV
11 shows, but really not. There are more delays and it's
12 just inevitable, and that's part of the process. I'll
13 keep those delays to a minimum if possible and move this
14 trial as quickly as possibly while still affording a fair
15 trial for the defendant in this matter.
16 All right. With that, I'm going to turn it over
17 to Ms. Kucera to do voir dire for the State.
18 Oh, sorry, one more thing. Somebody said this
19 in a prior trial. If you see me on my computer, I'm not
20 playing on the Internet or anything like that. I'm the
21 only judge in the courthouse who is lucky enough to have
22 real time court reporting. And so if I'm on the
23 computer, nine times out of ten I'm going back through
24 testimony or I'm looking at some legal cases or
25 precedence. One lady mentioned that to me before, so I
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02-13-00582-CR 21
1 always want to tell you that. Go ahead.
2 JURY VOIR DIRE EXAMINATION
3 BY MS. KUCERA:
4 Good morning. How are you guys doing? All
5 right. Fun group. First of all, thank you so much for
6 showing up today. We appreciate you for doing that.
7 This process cannot work if you guys don't show up, so I
8 wanna thank you so much for doing that. That's the first
9 step of the process. Okay.
10 First, I just want to ask a general question,
11 easy one. Raise your hand if this is your first time
12 you've been in a courtroom on a jury selection panel.
13 Excellent. So a fair amount of you. All right. Well,
14 you are in good company today because this is my very
15 first voir dire or jury selection. So if it is a train
16 wreck, I apologize, but we'll work through it today. I'm
17 going to introduce myself and talk a little bit about
18 myself and my trial partner and the type of questions I'm
19 going to ask you and talk to you about today.
20 My name is Allyson Kucera, as the judge said. I
21 grew up in Houston Texas, and I grew up -- I was an
22 athlete growing up. I ended up playing soccer for the
23 University of Oklahoma and stayed there for law school.
24 So I apologize for being a Sooner, but I am happy to be
25 back in Texas.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 22
1 Let's see. What else about me? Okay. I
2 decided to share a personal story because I am going to
3 ask you guys to sort of talk about yourselves a little
4 bit. I am a huge fan of sports. I guess that probably
5 goes without saying. But what comes with that is growing
6 up with an older brother and an athletic background is
7 that I'm not an emotional person. I don't really cry a
8 lot in real life. The problem with that is that when
9 great sporting events occur, I am a disaster. I'm
10 bawling. You just worked so hard; I'm so proud of you.
11 You know, so I pretty much only cry in sporting events.
12 I think that's pretty weird that I only cry in sporting
13 events, but there you go. That's a weird fact about me.
14 Essentially, today this is just going to be a
15 jury selection process. I'm going to ask you some
16 questions and ask you to just be honest with us and talk
17 to us about your experiences, your feelings, your
18 opinions, okay. So I'm going to put a slide show up to
19 help you guys follow along with what I'm going to tell
20 you. If you can't see it, you can't understand it --
21 another weird fact about me is that I talk incredibly
22 fast. So if you don't understand what I'm saying, need
23 me to repeat something, let me know, raise your hand,
24 stand up and we'll all get through this process together.
25 Does this sound like something everyone can do. Nods?
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 23
1 Yes.
2 Okay. This is the State of Texas versus
3 Mr. Byrias Roberson. Okay. Mr. Roberson has been
4 charged with the offense of resisting arrest. Okay? So
5 welcome jurors. I thought this might help us a little
6 bit. So these are some helpful hints. I will attempt to
7 take deep breaths and slow down. I will ask you guys to
8 do the same. Don't be nervous. This is gonna be easy.
9 We'll get you out of here before lunchtime hopefully.
10 All right. There are no wrong answers. These
11 are opinion questions. These are things that I'm going
12 to ask you guys and just ask you to be honest, okay.
13 There's no trick questions or anything like that, okay.
14 Honesty is the best policy, okay. We really want you
15 guys to be honest, all right. And the reason we want you
16 to be honest is that the goal of this process is to
17 ensure that Mr. Roberson gets a fair trial, okay? And
18 that's what the State wants and that's what the defense
19 wants, okay? So we wanna make sure that we get the best
20 six jurors that are going to sit appropriately for this
21 case. Okay? So just be honest and make sure that we get
22 this guy a fair trial. Okay?
23 All right. So the offense he has is resisting
24 arrest. All right. I'm going to back up and ask you why
25 do you think the offense resisting arrest is something
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 24
1 that we should try people for? Why do you think it's a
2 crime. Can anyone think of a reason why we wouldn't want
3 someone to arrest a person resisting arrest? Anyone have
4 any idea, try to help me out, why we think resisting
5 arrest might be -- might be an offense under the Texas
6 Penal Code? Yes!
7 VENIREPERSON FOSTER: Chris foster.
8 MS. KUCERA: Okay. Mr. Foster, why do you think
9 that --
10 VENIREPERSON FOSTER: We need to protect the
11 people that are out there protecting us.
12 MS. KUCERA: Okay. And who are some of those
13 people?
14 VENIREPERSON FOSTER: Police officers.
15 MS. KUCERA: Okay. So you appear to be a police
16 officer. Is that in fact true?
17 VENIREPERSON FOSTER: Yes.
18 MS. KUCERA: Great. So your statement is that
19 resisting arrest is something we need to protect the
20 officers that are generally making the arrests?
21 VENIREPERSON FOSTER: Right.
22 MS. KUCERA: Okay. Are there any other people
23 you can think we would want to protect?
24 VENIREPERSON FOSTER: Well, protect the citizens
25 by making the arrest.
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02-13-00582-CR 25
1 MS. KUCERA: Good. Absolutely. Anyone else
2 have an idea why we think it's important to protect the
3 citizens who might be near the arrest? Anyone have an
4 idea as to why that might be the case? Anyone just raise
5 your hand. I know you can do this. Anyone think of a
6 reason? Let's say there are a group of people all
7 together and they're in -- let's say they're in a bar.
8 Alcohol is being served and there's someone who's
9 becoming rowdy, maybe had too much to drink. There are a
10 lot of people in a bar, and if the officers go to make an
11 arrest in a bar, wouldn't it be safer if that person
12 didn't resist arrest for all the people in the bar that
13 could possibly be injured, you know, by that person who
14 needs to be arrested? Does that make sense? Okay. Can
15 everybody understand how would be the case?
16 So the officer says we want to protect the
17 officers who are making the arrest and also the citizens
18 around the arrest. We don't want anyone to be hurt by
19 the officers who are trying to make an arrest. Okay?
20 Understand? Nod with me. Everyone got it? Okay. What
21 about the defendant? Wouldn't we also want to protect
22 him? Okay, good. All right. Can you understand why
23 it's safer if the defendant doesn't also resist arrest?
24 Everyone understand why that would be important? Good.
25 Okay. All right. So now we're going to go over
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02-13-00582-CR 26
1 the definition of -- up here on this slide is the
2 definition of resisting arrest, okay. Everyone following
3 along so far? Great. All right. Texas Penal Code
4 Section 38.03. All right. It's a long definition.
5 We're going to go through it and break it down for you
6 guys so we all understand it together. Okay?
7 All right. A person commits an offense if he
8 intentionally prevents or obstructs a person he knows is
9 a peace officer from effecting an arrest. It's just that
10 sentence right there. He intentionally prevents or
11 obstructs a person he knows is a peace officer, okay,
12 from effecting an arrest or effecting a search or
13 transportation of that actor -- so the person who is
14 being arrested is the actor in this case -- or another
15 person by using force against that peace officer or
16 another person.
17 Okay. I know it's a little confusing, but did
18 everyone follow that and understand? Okay. He has to
19 intentionally know that he is preventing or obstructing a
20 person who he knows to be a peace officer -- and that's
21 important, all right -- from effecting an arrest. Okay.
22 So if someone goes to try and arrest him, he can not, if
23 he knows they're a peace officer and they're arresting
24 him, he can not use force and potentially prevent them
25 from arresting him. Everyone understand? Everyone
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02-13-00582-CR 27
1 good? Okay.
2 All right. The second part of that is that it's
3 no defense to prosecution under this section if the
4 arrest or search is unlawful.
5 Okay. So I'm going to try to explain that as
6 best I can. Officer Foster, I'm going to try and use you
7 to help us understand that. Okay? All right. Let's say
8 you go to make an arrest of an individual. What do you
9 need in order to make an arrest?
10 VENIREPERSON FOSTER: Probable cause.
11 MS. KUCERA: Okay. So you need to believe that
12 that person has committed an offense; is that correct?
13 VENIREPERSON FOSTER: Yes.
14 MS. KUCERA: Okay. If you go to make an arrest
15 and you believe you have probable cause, right?
16 VENIREPERSON FOSTER: Yes.
17 MS. KUCERA: What if for some reason you might
18 arrest the guy's twin brother who you think is that
19 person, but he's not. He's actually his twin brother.
20 Okay? Does that make sense? Everyone following me? So
21 he's actually arresting the wrong person, right? But he
22 believes that he's arresting the right person. Okay? So
23 we would consider that an arrest. He's trying to arrest
24 the right person. He believes he's arresting the right
25 person. Even though he arrests the wrong person, the
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02-13-00582-CR 28
1 wrong person still, the law says, cannot resist arrest.
2 Does that make sense? Okay. Everyone understand?
3 Okay. Now we're gonna break it down a little
4 bit and we're gonna go over the elements, okay. All
5 right. Okay. All right. So this is the elements, okay.
6 Mr. -- this is what -- okay. Let me explain. This is
7 what Victoria and I have to prove to you, okay, that
8 we're going to go through this trial and this is what we
9 have to prove to you, okay. The first element that we
10 have to demonstrate to you guys is that Mr. Roberson is
11 the particular person in this case, okay. Second is that
12 the offense occurred on or about July 10, 2012. Okay?
13 Second, is that it occurred in Wichita County, Texas, did
14 then and there intentionally prevent or obstruct Officer
15 Gabriel Vasquez, a person the defendant knew was a peace
16 officer, from effecting the arrest of the defendant
17 Mr. Roberson by using force against that said peace
18 officer.
19 Now, does anybody know what a peace officer is?
20 Anybody? Somebody's gotta raise their hand. Yes! Let
21 me get your name. Hang on just a second. Your name is
22 Clay Parsons, No. 23.
23 VENIREPERSON PARSONS: My definition is a person
24 who was in some kind of uniform, carrying a weapon, that
25 I could distinguish him from just a common person who was
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1 just hanging out at the bar where this was taking place.
2 MS. KUCERA: Okay.
3 VENIREPERSON PARSONS: You'd have to visually
4 know this person has some kind of authority to be doing
5 what he was doing.
6 MS. KUCERA: Okay. Very good. Does anyone else
7 agree with what Ms. Parsons said, about that they would
8 have to have some sort of demonstration that they're a
9 police officer? Raise your hand if you agree with what
10 Ms. Parsons said. There you go. Did you raise your
11 hand, sir? Good. Do you believe it as well?
12 VENIREPERSON TEAKELL: Yes, I do.
13 MS. KUCERA: Excellent. Okay. Do you wanna
14 stand up, sir, for me? Do you think there's any other --
15 say your name.
16 VENIREPERSON TEAKELL: Ronnie Teakell, No. 2.
17 MS. KUCERA: Great. Do you think there is any
18 other -- is there anything you want to add to
19 Ms. Parsons' definition?
20 VENIREPERSON TEAKELL: I think a police officer
21 is somebody who's supposed to -- supposed to protect you.
22 MS. KUCERA: Okay.
23 VENIREPERSON TEAKELL: He should have a badge or
24 some kind of emblem on his shirt so that you know he's a
25 police officer.
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1 MS. KUCERA: Okay. Great. Mr. Cavinder, could
2 you stand up, please? This is our investigator. This is
3 Mr. Cavinder. I forgot to introduce him, but I'll
4 introduce him to y'all now. Mr. Cavinder's our
5 investigator. Can you see anything on him that
6 demonstrates that he's a peace officer? Ms. Wright, what
7 do you see on him?
8 VENIREPERSON WRIGHT: The badge.
9 MS. KUCERA: He's not wearing a police uniform,
10 though, right? You can see the badge and it demonstrates
11 he's a police officer, correct?
12 VENIREPERSON WRIGHT: Correct.
13 MS. KUCERA: Good story about Mr. Cavinder.
14 This morning he sat in the witness chair and he broke it.
15 So that is a sub witness chair.
16 The next thing we're going to do is go through
17 the elements one by one. So we have the first three and
18 we're going to talk about intentionally. So the
19 defendant has to have intentionally resisted the arrest,
20 right? Okay. Anybody a baseball fan out here? Yes, oh,
21 I got a small hand. All right. Stand up and say your
22 name.
23 VENIREPERSON THOMASON: Tyler Thomason, No. 11.
24 MS. KUCERA: No. 11, okay. What's your favorite
25 baseball team?
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02-13-00582-CR 31
1 VENIREPERSON THOMASON: The Rangers.
2 MS. KUCERA: Okay. Good choice. Excellent
3 choice. All right. So is Yu Darvish the pitcher for the
4 Rangers?
5 VENIREPERSON THOMASON: Yes, he is.
6 MS. KUCERA: Good. Good job. Okay. Who is the
7 catcher for the Rangers? Do you know?
8 VENIREPERSON THOMASON: There's been three so
9 far.
10 MS. KUCERA: Okay. Give me a name, one name.
11 VENIREPERSON THOMASON: A.J. Pierzynski.
12 MS. KUCERA: A.J. Pierzynski. Okay. So Yu
13 Darvish is the pitcher for the Rangers and A.J.
14 Pierzynski, okay, is the catcher. Okay. You're a
15 baseball fan, you said, right?
16 VENIREPERSON THOMASON: Yes.
17 MS. KUCERA: Okay. So let's say the Rangers are
18 playing the Yankees, and it's bottom of the ninth and the
19 Rangers are up one-nothing. Okay? There is a man on
20 first base and there's two outs, okay, and the No. 1 home
21 run hitter in the league is going to come up to bat. All
22 right. Do you think that it's a possibility that the
23 Rangers might decide to walk that batter?
24 MR. BRILEY: It's a possibility.
25 MS. KUCERA: Okay.
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1 VENIREPERSON THOMASON: Wouldn't be smart, but
2 it's a possibility.
3 MS. KUCERA: Okay. All right.
4 Let's pretend that it is a smart idea. I'm not super
5 knowledgeable about baseball, but I know this is what
6 they do. Okay. So what do they call that when they
7 decide to walk the batter?
8 VENIREPERSON THOMASON: An intentional walk.
9 MS. KUCERA: Very good. He's doin' great, you
10 guys. Okay. So it's an intentional walk, yes. Okay.
11 So how do you, when you're the batter and/or you're a
12 fan, how do you know that they're going to do an
13 intentional walk?
14 VENIREPERSON THOMASON: Normally, the catcher
15 will stand up and move over to the side of where the
16 batter stands and hold up that other arm and the pitcher
17 will throw four balls out that way.
18 MS. KUCERA: Okay. So nowhere near the strike
19 zone, right?
20 VENIREPERSON THOMASON: Yes.
21 MS. KUCERA: Okay. Now, is the -- so is the
22 pitcher going to talk to the batter?
23 VENIREPERSON THOMASON: He could, but normally
24 no.
25 MS. KUCERA: Normally, no, right? The pitcher
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02-13-00582-CR 33
1 doesn't normally talk to the batter. All right. Does
2 the batter know that he's going to be intentionally
3 walked, though?
4 VENIREPERSON THOMASON: When he sees the catcher
5 stand up and hold his arm up.
6 MS. KUCERA: Right. Very good, yeah. So the
7 catcher will stand up and stand way outside the batter's
8 box way behind the batter's box, and he'll hold his glove
9 up way outside the strike zone to catch the ball, okay.
10 He doesn't want his pitcher throwing it anywhere near the
11 strike zone, right? He wants to walk the batter all the
12 way to first base. Okay? He wants to throw four balls
13 in a row. All right. So would it be fair to say --
14 you're doing great so you're going to keep standing up,
15 okay.
16 So intentionally. Under the Texas Penal Code,
17 it says a personal acts intentionally or with intent with
18 respect to the nature of his conduct, okay, or to a
19 result of his conduct when his conscious objective or
20 desire is to engage in the conduct or cause the result.
21 Okay? All right. I know I say okay a lot. Just bear
22 with me. We're going to get through this. Would it be
23 fair to say in an intentional walk that the pitcher is
24 aware of his conduct?
25 VENIREPERSON THOMASON: Yes.
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1 MS. KUCERA: Okay. So is it also fair to say
2 that he desires to engage in that particular conduct?
3 VENIREPERSON THOMASON: Yes.
4 MS. KUCERA: Okay. he is standing on the
5 pitcher's mound and intentionally throwing it way outside
6 the batter's box, correct?
7 VENIREPERSON THOMASON: Yes.
8 MS. KUCERA: Excellent. All right. Does he
9 know what the result's gonna be?
10 VENIREPERSON THOMASON: I would hope he would
11 know.
12 MS. KUCERA: Right. One of the two, yeah.
13 VENIREPERSON THOMASON: But, yes, normally he
14 would.
15 MS. KUCERA: Yeah. Normally, he would know,
16 right? He knows he's gonna walk that batter, okay.
17 VENIREPERSON THOMASON: Yes.
18 MS. KUCERA: So he's aware of his conduct,
19 right? He is acting with intent. He's intentionally
20 walking. They call it an intentional walk for a reason.
21 All right. Does everyone understand where I'm going with
22 this? We have to recognize we've got a person who's
23 acting with a conscious objective. He knows what his
24 actions are causing or may cause, okay. He knows that it
25 may cause this particular result or he is aware of the
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02-13-00582-CR 35
1 actions that he is currently making. Okay? He is acting
2 with purpose. Everyone understand? Yes. You've done
3 beautifully. Thank you so much. Have a seat. All
4 right. Everyone understand intentionally? You're
5 nodding. Great.
6 Okay. Now, the next part of the definition we
7 talked about is force, okay. All right. What -- let's
8 see. Mr. Garcia, would you stand up for a second? Okay.
9 And you are Anthony Garcia. Excellent. All right. What
10 does the word force mean to you?
11 VENIREPERSON GARCIA: Applying pressure.
12 MS. KUCERA: Applying pressure, okay. Good.
13 What -- you can think of it in terms of a person acting.
14 How could they use force?
15 VENIREPERSON GARCIA: They could use force to
16 get what you want.
17 MS. KUCERA: Okay. Let's work on that a little
18 bit. What would you do if you're using force. You said
19 apply pressure. Is there any other ways you could think
20 of that you would use force?
21 VENIREPERSON GARCIA: Physically.
22 MS. KUCERA: Okay. Good. What might you do if
23 you're using force physically, specifically in terms of
24 this.
25 VENIREPERSON GARCIA: Use your body, use your,
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02-13-00582-CR 36
1 you know, arms, whatever you need to do to.
2 MS. KUCERA: Yeah. No, you're right.
3 Absolutely. So you could use your arms. What about your
4 legs?
5 VENIREPERSON GARCIA: Yeah. Arms, legs, teeth.
6 MS. KUCERA: Great. You've done well. Have a
7 seat. Good job. So can anyone think of something that
8 might be less than what Mr. Garcia said, which was using
9 his arms, his legs, punching out. Is there anything else
10 anyone can think of that might possibly be considered
11 force? Yes, Ms. Parsons.
12 VENIREPERSON PARSONS: Being a teacher, I think
13 you could also use verbal force, presenting the case to
14 them. If you don't do this, this is going to happen to
15 you. To me, that would be a way of forcing the
16 situation, too.
17 MS. KUCERA: Excellent suggestion. So that is
18 great. So we have sort of two extremes here. We have
19 Ms. Parsons saying that force is, you know, it could be
20 mere words, right? And then you have Mr. Garcia
21 suggesting using your arms and legs; it's punching out,
22 it's kicking out; it's being aggressive or violent to get
23 force. That's correct? Everyone understood Mr. Garcia
24 to say that? Okay. What if I were to tell you that the
25 law falls in the middle of those two things, okay. That
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02-13-00582-CR 37
1 it has to be more than your words, but it doesn't have to
2 be as excessive as punching out, kicking out, applying
3 pressure, those sorts of things. Okay. So this is what
4 the law says. It says that it's more than mere passive
5 resistance. Okay. So I think words might qualify as
6 passive resistance. But it says that one who uses force
7 to shake off an officer's detaining grip, by pushing or
8 pulling, may be guilty of resisting arrest. Okay. So if
9 an officer has a detaining grip -- Ms. Hair, stand up.
10 VENIREPERSON HAIR: No. 4, Jamie.
11 MS. KUCERA: Jamie, okay. When I say detaining
12 grip, what does that word mean to you?
13 VENIREPERSON HAIR: Like when they have you in
14 handcuffs and I try to pull away or I push them off.
15 MS. KUCERA: Okay. Do you think detaining grip
16 could mean something less than being in handcuffs? Can
17 you think of something that's less detaining?
18 VENIREPERSON HAIR: Like if they're going to
19 grab me by the shoulder and you push them away or shake
20 them off.
21 MS. KUCERA: Very good. Absolutely right, yeah.
22 It can be just a detaining grip. Now, the law says that
23 one who uses force to shake off an officer's detaining
24 grip whether by pushing or pulling may be guilty of
25 resisting arrest. Does that sound right? Do you
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02-13-00582-CR 38
1 understand that?
2 VENIREPERSON HAIR: Yes.
3 MS. KUCERA: Okay. Detaining grip could be
4 less. Could be -- resisting arrest could be they shake
5 it off, they push, they pull away. Those are things that
6 the law is talking about that could be resisting arrest.
7 Done great. Have a seat. Gonna keep going.
8 All right. So this is the second definition of
9 force. The statute is also satisfied by evidence of
10 jerking against, okay, turning in circles to resist and
11 struggling against an officer's efforts at making an
12 arrest. Okay? Mr. Billing, would you stand up, please?
13 VENIREPERSON BILLING: Douglas Billing, No. 7.
14 MS. KUCERA: Mr. Billing, the jerking against or
15 turning in circles, what do you think that means to you.
16 VENIREPERSON BILLING: Basically turning away
17 from the officer.
18 MS. KUCERA: Okay. If there is -- yes,
19 absolutely right. What about struggling against an
20 officer's efforts at making an arrest? What does that
21 mean?
22 VENIREPERSON BILLING: I imagine it would be
23 trying to step away from him or get space between you and
24 him.
25 MS. KUCERA: Okay. Excellent. Yes, you're
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 39
1 absolutely right. If I were to tell you that the law,
2 like I said, is more than -- have a seat. Great job. So
3 we talked about, Ms. Parsons, how that it's more than
4 your words, but it's not -- it doesn't have to be as
5 violent or aggressive as punching or pulling and kicking
6 out. It can be that. If, in fact, it is that,
7 that can also be resisting arrest. But it can also be
8 less than that. Does everyone understand? Ms. Vale, do
9 you understand what that means?
10 VENIREPERSON VALE: Yes.
11 MS. KUCERA: The law is somewhere between those
12 two, and I've given you two cases that talk about what --
13 something less than words -- or something more than
14 words, less than violence?
15 VENIREPERSON VALE: Yes.
16 MS. KUCERA: If that's how the statute is
17 defined, can you follow the law?
18 VENIREPERSON VALE: Great. Mr. Billing, you
19 understand?
20 VENIREPERSON BILLING: Yeah.
21 MS. KUCERA: Officer Foster?
22 VENIREPERSON FOSTER: Yeah.
23 MS. KUCERA: Mr. Garcia, do you understand
24 that?
25 VENIREPERSON GARCIA: Yeah.
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02-13-00582-CR 40
1 MS. KUCERA: And Ms. Hair?
2 VENIREPERSON HAIR: Yes.
3 MS. KUCERA: Okay. Ms. Wright, you understand
4 that?
5 VENIREPERSON WRIGHT: Yes.
6 MS. KUCERA: Good. Mr. Teakell, make sense to
7 you?
8 VENIREPERSON TEAKELL: Yes.
9 MS. KUCERA: Great. Ms. Taylor?
10 VENIREPERSON TAYLOR: I haven't heard from you.
11 I'm probably going to call on you in a second, okay?
12 You'll be great. Don't worry. Okay. Can anyone talk to
13 me about what an arrest means just generally? What do
14 you think of when you hear the word arrest?
15 Ms. McClesky, stand on up, No. 12. What do you think of
16 when you hear the word arrest?
17 VENIREPERSON MCCLESKY: To me it means like if
18 you're doing something wrong, outside the law, you get
19 arrested; you get in trouble.
20 MS. KUCERA: Okay. Absolutely right. What do
21 you think of as an example of when you can get arrested?
22 VENIREPERSON MCCLESKY: Maybe when you're in a
23 fight with somebody.
24 MS. KUCERA: Okay. So let's say -- good. Great
25 example. Let's say you are in a supermarket shopping and
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 41
1 you see two people getting in an argument, right? You
2 see it. You tell someone to call the cops. The cops
3 arrive and they see, physically see, the two people
4 fighting.
5 VENIREPERSON MCCLESKY: Right.
6 MS. KUCERA: Do you think it's a reasonable time
7 to arrest them?
8 VENIREPERSON MCCLESKY: I would think it would
9 be a reasonable time to detain them. I don't know if it
10 would result in an arrest.
11 MS. KUCERA: Okay. So let's say they -- all
12 right. All right. So what they did is they actually
13 physically committed a -- all right.
14 Maybe they -- let's say they stole from the supermarket.
15 You watched them; the officer saw them steal; and then
16 they decided that they had enough to arrest them. Okay.
17 The officer has physically witnessed the crime. That
18 would be a reasonable time to arrest them?
19 VENIREPERSON MCCLESKY: Yes.
20 MS. KUCERA: Great. You've done great.
21 Awesome. Have a seat. All right. Ms. Taylor, I told
22 you I was gonna call on you. You're good.
23 VENIREPERSON TAYLOR: Yes. Cheryl Taylor, No.
24 1.
25 MS. KUCERA: Juror No. 1. It's a good place to
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02-13-00582-CR 42
1 be. Ms. Taylor, can you think of a time where maybe the
2 officer didn't physically witness the crime occur, but
3 that he would still maybe have showed up later and still
4 have reason to arrest the person who committed the
5 crime?
6 VENIREPERSON TAYLOR: Yeah, the eyewitnesses
7 and, you know, just what he sees there and --
8 MS. KUCERA: Excellent. Okay. So he may not
9 have seen it, but he shows up later and let's say 15
10 eyewitnesses all tell him the same story and they all
11 point to this person and say I saw it; he committed this
12 crime; you know, I witnessed it. Does that seem like a
13 reasonable time to make an arrest?
14 VENIREPERSON TAYLOR: Uh-huh.
15 MS. KUCERA: Ms. Taylor, you've done great.
16 Have a seat. Mr. Foster, I'm going to have you stand up
17 again. What is -- let's say that the police department
18 gets a tip about a crime that may have occurred. Okay?
19 And then they conduct an investigation. Right? Okay.
20 You know, they might conduct interviews. What else might
21 they do in this investigation?
22 VENIREPERSON FOSTER: Look at all the evidence
23 involved.
24 MS. KUCERA: Okay.
25 VENIREPERSON FOSTER: Witnesses, even speaking
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02-13-00582-CR 43
1 with the person that's accused and determining what all
2 they have.
3 MS. KUCERA: All right. Let's say that they --
4 after doing all that you said, witnesses, reviewing
5 evidence, talking to people, talking to victims, maybe,
6 let's say that they think they're almost positive they
7 know who committed the crime. Okay. What would the
8 steps be? What would happen if that was the case? What
9 would they do if they were almost positive that was the
10 person who committed the crime?
11 VENIREPERSON FOSTER: If they had probable cause
12 to believe they committed the crime and it was arrestable
13 at that time, they would go make the arrest.
14 MS. KUCERA: What would they have to do before
15 they make the arrest, though? Would they have to see a
16 judge about something?
17 VENIREPERSON FOSTER: Depends on the
18 circumstances.
19 MS. KUCERA: Okay. If I were to tell you they
20 were issued a warrant, what is that? How does that work?
21 What does that do?
22 VENIREPERSON FOSTER: Well, that's already
23 signed by a judge ordering the arrest of that person.
24 MS. KUCERA: Okay.
25 VENIREPERSON FOSTER: Usually, it's a command to
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 44
1 the police officer to make that arrest.
2 MS. KUCERA: Okay. So that's also another time.
3 If they think they have probable cause to make an arrest,
4 they can go get a warrant issued by what is called a
5 neutral magistrate or a judge to say that you have
6 probable cause to arrest this person; I'm issuing a
7 warrant for this person's arrest?
8 VENIREPERSON FOSTER: Right.
9 MS. KUCERA: Is that a fair assessment of how
10 that works?
11 VENIREPERSON FOSTER: Yes.
12 MS. KUCERA: So if they have a warrant for the
13 arrest, can they go and make the arrest?
14 VENIREPERSON FOSTER: Yes.
15 MS. KUCERA: Great. Officer, you did good
16 again. Well done. So we talked about three different
17 ways that we can make an arrest, right? One of the ways
18 is the officer personally witnesses the crime. Okay?
19 The second way is that they show up to the crime later,
20 but all the eyewitnesses confirm what happened and they
21 can arrest the person based on what they've seen at the
22 scene and then also spoken to the eyewitnesses. Then
23 Mr. Foster talked about the way that they can -- you
24 know, if they, as a result of an investigation, they
25 believe they have probable cause, they get a warrant
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02-13-00582-CR 45
1 issued for his arrest and they can go make the arrest of
2 that person. Anybody have any questions about those
3 three ways that we talked about? Feel free to raise your
4 hand. It's okay. I can go slower. Everyone got it?
5 Okay. All right. So very good.
6 All right. So warrants and arrests. We kind of
7 talked about it briefly. We'll go into a little more
8 detail. The Texas Code of Criminal Procedure says that
9 officers executing an arrest warrant, which is the type
10 that Mr. Foster talked about, they must have a reasonable
11 belief, okay, that the suspect resides at the place to be
12 entered and they must also have reason to believe the
13 suspect is present at the time the warrant is executed.
14 All right. I'm going to try and explain that a
15 little bit but use you guys to explain. All right. Now,
16 when -- Mr. Teakell, stand up again. You're doing great.
17 VENIREPERSON TEAKELL: No. 2.
18 MS. KUCERA: Okay. If I were to say that the
19 officers executing an arrest warrant must have a
20 reasonable belief, okay, that the suspect resides at that
21 time place that they are entering in order to arrest him,
22 what does reasonable belief mean to you.
23 VENIREPERSON TEAKELL: He has information that
24 he's there.
25 MS. KUCERA: Okay. Does that mean they have to
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02-13-00582-CR 46
1 know 100 percent that sure he's there.
2 VENIREPERSON TEAKELL: I wouldn't think so.
3 MS. KUCERA: Right. Reasonable belief doesn't
4 say hundred percent. It just says reasonable belief,
5 okay. What do you think they could use to find out --
6 let's say it's his home. What do you think they could
7 use to find out that he is at the home at the time.
8 VENIREPERSON TEAKELL: Information that he lives
9 there, his neighbors, whoever lives there, if he lives
10 there.
11 MS. KUCERA: Okay. Great. Have a seat. You've
12 done great. See, I told you guys he this is easy. So
13 reasonable belief that he's there. What about -- let's
14 see. Ms. Schmidt, stand up.
15 VENIREPERSON SCHMIDT: Tina Schmidt, No. 13.
16 MS. KUCERA: Okay. Ms. Schmidt, we talked about
17 they had information or talked to their neighbors. What
18 other information do you think they might be able to use
19 to determine if they have a reasonable belief that that
20 person's home?
21 VENIREPERSON SCHMIDT: If they've done any
22 surveillance or checked his work record, his work, know
23 he's off and when he would probably be home.
24 MS. KUCERA: Great. That's excellent. You're
25 absolutely right. That is something they could use. He
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1 works at this time every day; he comes home from work,
2 checks the mail. Excellent. Very, very good. All
3 right. It also says in the second part of the definition
4 that they also have reason to believe that the suspect is
5 present at the time the warrant is executed. So we
6 talked about how we might know that he's at that
7 particular place. How would we know that he's actually
8 present?
9 VENIREPERSON SCHMIDT: Someone had watched him
10 go in, set up surveillance and seen him come and go,
11 maybe some other neighbors or something.
12 MS. KUCERA: What about if his car is in the
13 driveway?
14 VENIREPERSON SCHMIDT: Yeah.
15 MS. KUCERA: Would that make sense that he was
16 there?
17 VENIREPERSON SCHMIDT: That seems reasonable.
18 MS. KUCERA: Very excellent. Done great. Have
19 a seat. Okay. All right. So warrants and arrests in
20 Texas. We talked about how the -- that particular case
21 that we're talking about that defines when officers can
22 make an arrest using a warrant, that comes from the
23 Supreme Court of the United States. Okay. So the
24 Supreme Court is the highest court in the whole land.
25 Every court in the nation has to follow what they say.
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02-13-00582-CR 48
1 Now, state courts like the Texas Supreme Court
2 can qualify what the Supreme Court says and help the
3 lower courts understand. That's what happens in this
4 case. So I'm going to explain to you warrants and
5 arrests in Texas, okay. So in Texas, a warrant for a
6 Class C offense -- anyone know what a Class C offense
7 is? Someone I haven't heard from? Class C offense?
8 Anyone. Okay.
9 VENIREPERSON RIPPERGER: Debbie Ripperger, 20.
10 A Class C is a misdemeanor.
11 MS. KUCERA: It is a misdemeanor. Good, yes.
12 If I were to say a speeding ticket is a Class C offense,
13 does that sound like that's a correct answer?
14 VENIREPERSON RIPPERGER: Yes.
15 MS. KUCERA: Yes, you are correct. So a
16 speeding ticket is a Class C offense. Okay. Very good.
17 All right. So what this case says is that a warrant for
18 a Class C offense and failure to appear warrant, which
19 is, you know, can be enough to justify entry into a
20 defendant's home to make an arrest. The officers still
21 have to have reason to believe that the defendant is home
22 at that time, okay.
23 So what I'm gonna try to explain is -- who's
24 going to be the lucky person? Mr. Litteken? You're
25 good.
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1 VENIREPERSON LITTEKEN: No. 9, Gerald Litteken.
2 MS. KUCERA: Ms. Ripperger suggested that a
3 Class C offense is a misdemeanor. We classify offenses,
4 I guess, in two different ways. We have misdemeanors and
5 then we have the more serious offenses. Do you know what
6 those are called?
7 VENIREPERSON LITTEKEN: A felony.
8 MS. KUCERA: Felony. Very good. So if I tell
9 you a felony is more serious than a misdemeanor, and I'm
10 telling you that the Court says that we can or that
11 officers, if they have a reason to believe that the
12 defendant is home at that time, they can make an arrest
13 for not only something as serious as a felony, but also
14 something for a Class C misdemeanor, which is the lowest
15 offense. Does that right? Does that make sense? Do you
16 understand that?
17 VENIREPERSON LITTEKEN: Uh-huh.
18 MS. KUCERA: Okay. So if I were to tell you
19 that the law says they can make an arrest by a Class C
20 offense if they believe that the defendant is home at
21 that time, does that sound like something that you could
22 follow if I tell you that if the judge instructs you that
23 if you believe that the officers had reason to believe
24 that they could make an arrest, that you could follow the
25 judge's instructions?
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1 VENIREPERSON LITTEKEN: Sure.
2 MS. KUCERA: What about you, Ms. Taylor?
3 VENIREPERSON TAYLOR: No. 1.
4 MS. KUCERA: If you believe that the officers
5 had reason to believe that they were making -- that the
6 defendant was home and that they could arrest him for
7 something as low as a Class C offense, but also something
8 that's as serious as a felony, that they could go into
9 his home and make an arrest?
10 VENIREPERSON TAYLOR: Yes.
11 MS. KUCERA: If the judge told you that that was
12 something, an instruction you have to follow, you could
13 do that?
14 VENIREPERSON TAYLOR: Yes.
15 MS. KUCERA: Okay. Good. What about you,
16 Mr. Teakell?
17 VENIREPERSON TEAKELL: I believe that's correct.
18 MS. KUCERA: Okay. You could follow the judge's
19 instructions?
20 VENIREPERSON TEAKELL: Yes.
21 MS. KUCERA: Great. Ms. Wright, what about you?
22 VENIREPERSON WRIGHT: Yes.
23 MS. KUCERA: Okay. Ms. Hair?
24 VENIREPERSON HAIR: Yes.
25 MS. KUCERA: Perfect. Mr. Garcia, do you think
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1 you could follow those instructions?
2 VENIREPERSON GARCIA: Yes.
3 MS. KUCERA: Okay. Do you have any questions
4 about what we talked about?
5 VENIREPERSON GARCIA: No.
6 MS. KUCERA: Mr. Foster, what about you?
7 VENIREPERSON FOSTER: Yes.
8 MS. KUCERA: You could?
9 VENIREPERSON FOSTER: I think I could.
10 MS. KUCERA: What about you, Mr. Billing?
11 VENIREPERSON BILLING: Yes.
12 MS. KUCERA: And Ms. Vale?
13 VENIREPERSON VALE: Yes.
14 MS. KUCERA: Ms. McKinley, is that something you
15 could you follow?
16 VENIREPERSON MCKINLEY: Yes.
17 MS. KUCERA: Okay. Ms. Steele?
18 VENIREPERSON STEELE: Yes.
19 MS. KUCERA: Great. Mr. Jantz, is that correct?
20 VENIREPERSON JANTZ: Yes, ma'am.
21 MS. KUCERA: Okay. Is that something you could
22 follow if it's an instruction?
23 VENIREPERSON JANTZ: Yes, ma'am.
24 MS. KUCERA: If you believed that officers had
25 reasonable belief to be in the home that they could
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1 arrest the defendant for something like a felony or Class
2 C offense, they could enter his home to do that?
3 VENIREPERSON JANTZ: Yes, ma'am.
4 MS. KUCERA: Okay, great. And Ms. Schmidt?
5 VENIREPERSON SCHMIDT: Yes.
6 MS. KUCERA: Good. And Ms. McClesky?
7 VENIREPERSON MCCLESKY: Yes.
8 MS. KUCERA: Mr. Thomason, my baseball guy?
9 VENIREPERSON THOMASON: Yes.
10 MS. KUCERA: You could do that. All right.
11 Mr. Vasquez, what about you?
12 VENIREPERSON VASQUEZ: Yes.
13 MS. KUCERA: Great. Okay. All right. So we're
14 going to review what we talked about to make sure you
15 understand the Penal Code. We have to prove that
16 Mr. Roberson, on or about July 10th of 2012, in Wichita
17 County, Texas, did then and there intentionally -- my
18 baseball fan over here gave us a definition of
19 intentionally, right -- did then and there obstruct
20 Gabriel Vasquez, a person the defendant knew was a peace
21 officer, from effecting an arrest of the defendant by
22 using force against said peace officer.
23 And Mr. Garcia and Ms. Parsons gave us the range
24 of or definition of force, right? Everyone got it?
25 Everyone understand? Okay. All right.
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1 So the next thing we're going to talk about is
2 the burden of proof. Anyone here know what the burden of
3 proof is in a criminal case? Some of you have served on
4 a criminal jury before; is that correct? Anyone remember
5 what the burden is? Anybody.
6 VENIREPERSON BILLING: Beyond a reasonable
7 doubt.
8 MS. KUCERA: Mr. Billing. Stand up. You got it
9 right. Five points. What did you say?
10 VENIREPERSON BILLING: Beyond a reasonable
11 doubt.
12 MS. KUCERA: Beyond a reasonable doubt.
13 Mr. Billing, great job. That is true. Beyond a
14 reasonable doubt is the standard that Victoria and I will
15 have to approve to you the elements of the case that we
16 just went over, okay. All right. So beyond a reasonable
17 doubt, what is it? Do you have a suggestion for what
18 beyond a reasonable doubt is, or is it self-explanatory?
19 VENIREPERSON BILLING: It's self-explanatory.
20 MS. KUCERA: Okay. By the way, you're doing a
21 great job. Thank you. All right. Let me tell you what
22 beyond a reasonable doubt is not. It's not beyond all
23 doubt, okay. It's not beyond the shadow of a doubt or
24 not beyond any doubt, okay. It's beyond a reasonable
25 doubt, okay. So you can have a doubt, but it has to be
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1 based in reason. All right.
2 This is the best example I could come up with.
3 I'm going to try to help you understand what beyond a
4 reasonable doubt means. I don't know if you guys are
5 familiar with the process of law school, but we have
6 professors and they teach us different subjects. My
7 professor, which I lovingly refer to, we call him Uncle
8 Murray, of course not in class. But his name is
9 Professor Tabb. He taught us contracts and torts and a
10 class called law and literature.
11 All right. In torts, they were things like
12 were they acting with negligence or were their actions
13 reasonable under the circumstances? Torts is civil, so
14 we don't have to worry about that right now. But the
15 reason I bring up Professor Tabb is that he kept
16 explaining to us that the courts, when they're doing
17 negligence evaluations, always use a demonstration of the
18 reasonable man. So it kind of became a joke in our law
19 school class that Professor Tabb, who drinks coffee; he's
20 a deacon at his church and loves the book to kill a
21 mocking bird; he wears argyle, has the same cup of coffee
22 every morning; he's just Mr. Practical. So we used to
23 joke that he was a reasonable man. What Mr. Tabb thinks
24 is reasonable may not be the same thing that Mr. Garcia
25 thinks is reasonable. Okay? Reasonableness is sort of
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1 subjective. It's what each individual thinks is
2 reasonable. Okay? everyone understand what I'm talking
3 about?
4 All right. Is there anyone in here that is a
5 television fan of, let's say, NBC's, in the late 90's,
6 the Must See TV lineup? Anyone watch those shows?
7 Seinfeld? Frasier? Mr. Jantz, all right. All right.
8 Mr. Jantz, stand up for just a second.
9 VENIREPERSON JANTZ: Fourteen, Chris Jantz.
10 MS. KUCERA: Okay. Mr. Jantz, you watched that
11 lineup, right? You watched Seinfeld? Frasier? Did you
12 watch the whole lineup? Did you watch Friends as well?
13 VENIREPERSON JANTZ: I watched them all.
14 MS. KUCERA: Great. Okay, so you're familiar
15 with the shows then?
16 VENIREPERSON JANTZ: Yes.
17 MS. KUCERA: Okay. If I were to show you this
18 picture, could you tell me what that's a picture of? Not
19 a trick question.
20 VENIREPERSON JANTZ: Some of the friends.
21 MS. KUCERA: Okay. Do you see those parts that
22 are blacked out?
23 VENIREPERSON JANTZ: Yes, ma'am.
24 MS. KUCERA: Okay. So do you see there are two
25 people that are sort of blacked out, but you can see that
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1 they're still in the photograph, right?
2 VENIREPERSON JANTZ: Yes, ma'am.
3 MS. KUCERA: So if I were to ask you what that's
4 a picture of, what would you say?
5 VENIREPERSON JANTZ: Some of the friends.
6 MS. KUCERA: Okay. How many friends are there?
7 Do you remember?
8 VENIREPERSON JANTZ: Six.
9 MS. KUCERA: Six. Very good. Are there six
10 people in the photo?
11 VENIREPERSON JANTZ: Yes.
12 MS. KUCERA: Yes, there are. So it is a picture
13 of the cast of Friends. Mr. Jantz, you are correct. It
14 is a picture of the cast of Friends. Anyone else
15 recognize that photograph? Okay. All right.
16 Ms. Wright, do you recognize that photograph?
17 VENIREPERSON WRIGHT: Yes.
18 MS. KUCERA: Did you watch Friends?
19 VENIREPERSON WRIGHT: I did.
20 MS. KUCERA: Okay. Stand up. Mr. Jantz, good
21 job. Ms. Wright, you watched Friends, right?
22 VENIREPERSON WRIGHT: Yes.
23 MS. KUCERA: Okay. Did you look at this picture
24 and also know that it was the cast of Friends?
25 VENIREPERSON WRIGHT: Yes.
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1 MS. KUCERA: Okay. Now, let me ask you this.
2 You can't see the whole picture, right?
3 VENIREPERSON WRIGHT: Right.
4 MS. KUCERA: But you can see four of them and
5 you can see that there are two other people in that
6 photograph; is that correct?
7 VENIREPERSON WRIGHT: That's correct.
8 MS. KUCERA: Okay. Now, did you know beyond a
9 reasonable doubt that it was the cast of Friends?
10 VENIREPERSON WRIGHT: No.
11 MS. KUCERA: You didn't? Okay. Why not?
12 VENIREPERSON WRIGHT: The left hand side of the
13 picture is faded.
14 MS. KUCERA: Okay. We talked with Mr. Jantz
15 about how he liked the Must See TV lineup, all that kind
16 of stuff, right? He talked about how he liked the show
17 Friends. Okay. And if I were to show you a picture and
18 you could see four of them, but you couldn't see the
19 other two --
20 VENIREPERSON WRIGHT: I would assume that it's
21 the cast of Friends.
22 MS. KUCERA: Okay. Yes, you would assume that
23 it's the cast of Friends, right?
24 VENIREPERSON WRIGHT: Right.
25 MS. KUCERA: Okay. Let me ask you this. Do you
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1 think if I was doing a demonstration that it would be,
2 let's say, reasonable for me to put four of the cast of
3 Friends but two people that are like arbitrary and aren't
4 related. Does that seem like a reasonable thing that I
5 would do?
6 VENIREPERSON WRIGHT: No.
7 MS. KUCERA: No. Okay. So maybe it would be
8 fair to say that you knew or your assumed beyond a
9 reasonable doubt that that was the cast of Friends?
10 Okay?
11 VENIREPERSON WRIGHT: I assumed, yes.
12 MS. KUCERA: Yes, okay. Have a seat. Great
13 job.
14 Okay. Now, in this particular case, you know, I
15 obviously was trying to do a demonstration where I
16 blacked out some of the photographs because you can't see
17 the whole picture. In this particular case, if you --
18 let's say Officer Foster was on duty that day and he
19 witnessed the entire event taking place, we would
20 probably call him as a witness, correct? He saw the
21 whole thing take place, right? He would be a witness in
22 that case. He would have seen all the elements take
23 place of that offense. So we would call him as a
24 witness. So he couldn't be a juror because he would have
25 seen the whole picture. Understand?
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1 So in this case we're going to bring in
2 witnesses who will tell you what they saw and try to fill
3 in as much of the picture as they can. There may be
4 things blacked out, but they're going to try to give you
5 as much of the picture that happened. Now, I'm going to
6 ask each of you if you can follow the law and not hold
7 the State to a higher burden than beyond a reasonable
8 doubt, okay. Understand what I'm asking you?
9 All right. Ms. Taylor, I'll have you stand up
10 again. All right. Do you think that you can --
11 reasonable is different for each person, right?
12 VENIREPERSON TAYLOR: Yes.
13 MS. KUCERA: We talked about that. Okay. So
14 your definition of reasonable may be different than
15 Mr. Teakell's, right?
16 VENIREPERSON TAYLOR: Uh-huh.
17 MS. KUCERA: Do you think that you can still
18 promise not to hold the State to a higher burden than
19 beyond a reasonable doubt? Can you do that?
20 VENIREPERSON TAYLOR: I think so.
21 MS. KUCERA: Is that yes?
22 VENIREPERSON TAYLOR: Yes.
23 MS. KUCERA: Yes or no only.
24 VENIREPERSON TAYLOR: Yes.
25 MS. KUCERA: All right. Mr. Teakell, can you
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1 stand up? We talked about this. Beyond a reasonable
2 doubt. It's different for you. Professor Tabb is the
3 epitome of practicality. His may be different than
4 yours. Can you promise not to hold the State to a higher
5 burden than beyond a reasonable doubt?
6 VENIREPERSON TEAKELL: Yes.
7 MS. KUCERA: You can. Excellent. Great job.
8 Ms. Wright, stand up again. All right. Do you think
9 that you could promise not to hold the State to a higher
10 burden than beyond a reasonable doubt?
11 VENIREPERSON WRIGHT: Yes.
12 MS. KUCERA: Okay. And you could be fair in
13 this case?
14 VENIREPERSON WRIGHT: Yes.
15 MS. KUCERA: Great. Have a seat. Ms. Hair.
16 All right. Do you understand that reasonableness is
17 different for each person?
18 VENIREPERSON HAIR: Yes.
19 MS. KUCERA: Okay. And you're not going to
20 require us to fill in the whole picture, just the same
21 standard that's beyond a reasonable doubt, and that's
22 reasonable in your mind?
23 VENIREPERSON HAIR: Yes.
24 MS. KUCERA: Have a seat. Mr. Garcia, stand up.
25 Same question. Do you think that you can -- you can
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1 promise not to hold the State to a higher burden than
2 beyond a reasonable doubt in this case? You're not going
3 to require us to fill out every single detail of every
4 picture, but you're gonna hold us to the standard of
5 beyond a reasonable doubt? And reasonableness is your
6 own opinion.
7 VENIREPERSON GARCIA: The State?
8 MS. KUCERA: Well, okay. Let me say this.
9 You're not going to hold the State to a higher burden
10 than beyond a reasonable doubt?
11 VENIREPERSON GARCIA: Yes.
12 MS. KUCERA: Okay. All right. Have a seat.
13 Mr. Foster, could you please stand up.
14 VENIREPERSON FOSTER: Yes to the question you
15 asked No. 5, Mr. Garcia.
16 MS. KUCERA: Okay. All right. Just -- I know,
17 I know. Do you think that you can hold -- promise not to
18 hold the State to a higher burden than beyond a
19 reasonable doubt?
20 VENIREPERSON FOSTER: Yes.
21 MS. KUCERA: What's reasonable is different to
22 you than Mr. Garcia, than Ms. Hair, than Ms. Wright.
23 VENIREPERSON FOSTER: I promise.
24 MS. KUCERA: Okay. Mr. Billing, do you
25 understand what we're talking about when we say beyond a
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1 reasonable doubt?
2 VENIREPERSON BILLING: Yes.
3 MS. KUCERA: You said it's self-explanatory; you
4 understand it. Very good. And you promise not to hold
5 the State to a higher burden than beyond a reasonable
6 doubt?
7 VENIREPERSON BILLING: Yes.
8 MS. KUCERA: Okay. And that you're not going to
9 require us to fill the whole picture, but just beyond a
10 reasonable doubt to you, with reasonableness as your own
11 definition?
12 VENIREPERSON BILLING: Yes.
13 MS. KUCERA: Have a seat. Doing great.
14 Ms. Vale, same question. Do you promise not to hold the
15 State to a higher burden than beyond a reasonable doubt?
16 VENIREPERSON VALE: (Nods head) I will.
17 MS. KUCERA: Now, I'll try to go a little bit
18 slower, but I need a confirmation. I need a yes or a no
19 from each juror. Mr. Litteken, can you promise not to
20 hold the State to a higher burden than beyond a
21 reasonable doubt?
22 VENIREPERSON LITTEKEN: Yes, ma'am.
23 MS. KUCERA: Mr. Vasquez?
24 VENIREPERSON VASQUEZ: Yes.
25 MS. KUCERA: Okay. Mr. Thompson? I'm sorry.
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1 Mr. Thomason?
2 VENIREPERSON THOMASON: Yes.
3 MS. KUCERA: Okay. Ms. McClesky?
4 VENIREPERSON MCCLESKY: Yes.
5 MS. KUCERA: Ms. Schmidt?
6 VENIREPERSON SCHMIDT: Yes, I can.
7 MS. KUCERA: Mr. Jantz?
8 VENIREPERSON JANTZ: Yes, ma'am.
9 MS. KUCERA: Okay. Ms. Steele?
10 VENIREPERSON STEELE: Yes.
11 MS. KUCERA: Ms. McKinley?
12 VENIREPERSON MCKINLEY: Yes.
13 MS. KUCERA: And Mr. Davis?
14 VENIREPERSON DAVIS: Yes.
15 MS. KUCERA: Ms. Parsons?
16 VENIREPERSON PARSONS: Yes.
17 MS. KUCERA: And Ms. Reno?
18 VENIREPERSON TREJO: Yes.
19 MS. KUCERA: Okay. And Ms. Ripperger?
20 VENIREPERSON RIPPERGER: Yes.
21 MS. KUCERA: What about you, Ms. Logsdon?
22 VENIREPERSON LOGSDON: Yes.
23 MS. KUCERA: And Mr. Young?
24 VENIREPERSON YOUNG: Yes, ma'am.
25 MS. KUCERA: Okay. And Mr. Chavez?
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1 VENIREPERSON CHAVEZ: Yes.
2 MS. KUCERA: Okay. All right.
3 So one of the things we're going to talk about
4 is a lot of times in the case the defense is going to
5 assert, properly named, a defense, right. In this case,
6 the Penal Code provides a defense of self-defense, okay.
7 Now, in the case of resisting arrest, can anyone think of
8 a reason why the legislature might carve out a defense of
9 self-defense? Any reason? Let me ask it this way.
10 Mr. Foster, how long have you been an officer?
11 VENIREPERSON FOSTER: Total of 15 years.
12 MS. KUCERA: So quite a while?
13 VENIREPERSON FOSTER: Yes.
14 MS. KUCERA: Okay. In your 15 years, using your
15 own observations and your own experiences, are you aware
16 of that there are good cops and there are occasionally
17 maybe a cop that isn't the best at being a cop; is that
18 correct?
19 VENIREPERSON FOSTER: Any time you have humans
20 doing a job, there's going to be some.
21 MS. KUCERA: Okay. So is it fair to say that
22 there might be a time when an officer might potentially
23 abuse his authority?
24 VENIREPERSON FOSTER: Yeah.
25 MS. KUCERA: And it doesn't happen often, but
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1 they might abuse their authority; okay?
2 VENIREPERSON FOSTER: Right.
3 MS. KUCERA: Is that fair?
4 VENIREPERSON FOSTER: Yeah, that's fair.
5 MS. KUCERA: So in resisting arrest, can you
6 think of a reason why they might allow in a limited
7 circumstance this defense of self-defense?
8 VENIREPERSON FOSTER: Yeah, if you had an
9 officer who was -- their intent was hurting or killing
10 that person or using excessive force to inflict serious
11 bodily injury or death, I think the law would allow for a
12 person to fight back in that instance.
13 MS. KUCERA: That's an excellent point. If it's
14 the officer's goal to use physical violence, you know,
15 that person might be able to defend themselves against
16 something that severe?
17 VENIREPERSON FOSTER: Yes.
18 MS. KUCERA: Is that what you're saying?
19 VENIREPERSON FOSTER: Yes.
20 MS. KUCERA: Okay. Does everyone understand
21 what Officer Foster is saying? That they could protect
22 themselves from that kind of extreme violence. All
23 right. This is the statutory definition of self-defense
24 in this type of case, in resisting arrest. "The use of
25 force to resist an arrest is justified," -- all right,
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1 the statute says it's limited, but allowed in this
2 particular circumstance: "if, before the actor", who is
3 the person who is being arrested, "offers any
4 resistance." So if before the actor offers any
5 resistance -- which means, we talked about what resisting
6 arrest means, shake off a grip, twist, turn, step away
7 from the officer. Those are all types of resisting
8 arrest, right? "If before the actor offers any
9 resistance at all, the peace officer uses or attempts to
10 use what we call greater force than necessary," all
11 right, "to make an arrest."
12 So that's the first part of the definition.
13 Let's see. Mr. Vasquez, can you stand up for me?
14 VENIREPERSON VASQUEZ: Ten, Thomas Vasquez.
15 MS. KUCERA: Okay. If I were to give you this
16 scenario: A seven-year-old walks into Walgreen's, and
17 she takes -- let's see. I don't even know if they sell
18 iPods at Walgreen's, but let's pretend that they do. So
19 let's say this seven-year-old really wants an iPod and,
20 okay, and she takes an iPod and goes out of the store
21 with it.
22 And let's say Officer Foster is in the store.
23 He witnesses the seven-year-old take the iPod out of the
24 store, and he runs up to the seven-year-old when she
25 exits the store, and he uses his taser on a seven-year-
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1 old girl in pig tails and a girl scout uniform, okay.
2 And he takes her to the ground because, you know what,
3 she committed an offense and that is against the law.
4 Okay? If I were to give you that scenario, would you
5 think tasing a seven-year-old would be maybe greater
6 force than necessary?
7 VENIREPERSON VASQUEZ: Yes.
8 MS. KUCERA: Okay, great. You've done great.
9 Have a seat. All right. Now, officer foster, would you
10 tase a seven-year-old if she stole an iPod?
11 VENIREPERSON FOSTER: No.
12 MS. KUCERA: Okay. But is that protocol to tase
13 a seven-year-old for stealing an iPod?
14 VENIREPERSON FOSTER: No.
15 MS. KUCERA: Okay, good. So greater force than
16 necessary, you get an idea of what that means. Can you
17 think of another example of greater force than
18 necessary? I gave you a seven-year-old taking an iPod.
19 Mr. Vasquez, I know I had you stand up a second ago, but
20 can you give another example of greater force than
21 necessary?
22 VENIREPERSON VASQUEZ: No. I mean --
23 MS. KUCERA: Yes, Mr. Garcia. A suggestion. I
24 love it.
25 VENIREPERSON GARCIA: Multiple cops if they're
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1 not resisting --
2 MS. KUCERA: Okay.
3 VENIREPERSON GARCIA: -- putting up that much of
4 a fight. Or if he's willing to go, but then you've got
5 like five or six cops that slam down and take him down.
6 MS. KUCERA: Yes. He's not resisting at all and
7 25 cops pull up in their squad cars and start wailing on
8 this guy. Yeah, that's what we consider greater force
9 than necessary. The stipulation is if it's only before
10 the actor offers any resistance. So if he offers
11 resistance in this case, then it doesn't qualify for the
12 self-defense, and then they're allowed to use certain
13 necessary force to arrest him, right? Make sense?
14 Remember, we've got to keep the people safe;
15 we've gotta keep the cops safe; we've gotta keep the
16 defendant safe. We've gotta keep everybody involved in
17 this particular situation safe, right?
18 Okay. Now, the second part of this definition
19 is this. And it's two parts, right? He's got to meet
20 this standard and he's got to meet this standard. "When
21 and to the degree the actor reasonably believes that the
22 officers are using greater force than necessary to arrest
23 him, and he thinks it's immediately necessary to protect
24 himself. So not only can the actor not resist arrest
25 first, but he's got to be passive and, I don't know, very
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1 stoic, and he's got to reasonably believe that force is
2 immediately necessary to protect himself against the
3 greater force than necessary the officer is using.
4 To use the seven-year-old, for example. If he
5 pulls out his weapon and is aiming to tase her, she
6 hasn't resisted arrest yet; she's only walked out of the
7 store. She's got to reasonably believe that he's going
8 to use the taser on her and that he's using greater force
9 than necessary, and then she can act in self-defense,
10 right? Everyone understand? Okay. Ms. Hair, you're
11 nodding. You understand?
12 VENIREPERSON HAIR: Uh-huh.
13 MS. KUCERA: Ms. -- I can do this. Ms. Wright,
14 you understand?
15 VENIREPERSON WRIGHT: Yes.
16 MS. KUCERA: Mr. Teakell?
17 VENIREPERSON TEAKELL: Yes.
18 MS. KUCERA: Make sense? Mr. Teakell, you
19 understand that's a limited circumstance, right? They
20 can't have resisted first, and they have to reasonably
21 believe that the officers are using greater force than
22 necessary and that they need to use force in order to
23 protect themselves from the greater force than necessary
24 the officers are using. Everyone understand? Limited
25 circumstance, right? Ms. Parsons?
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1 VENIREPERSON PARSONS: Let me see if I'm
2 understanding.
3 MS. KUCERA: Okay.
4 VENIREPERSON PARSONS: So to reasonably believe
5 this,
6 MS. KUCERA: Uh-huh.
7 VENIREPERSON PARSONS: -- the person that
8 they're going to arrest, in their mind, they have to be
9 seeing something in the demeanor of the police officers
10 or something that they can verifiably say, They were
11 going to do this or that, and that's why I resisted?
12 MS. KUCERA: Right. Yes. To answer your
13 question, you are correct and I'm going to help you
14 through that, all right. So the first part is that they
15 can't have resisted at all before the actor -- it has to
16 happen before the actor offers any resistance, okay. And
17 the actor has to believe that the officers are using
18 greater force than necessary to make the arrest. Okay?
19 So they have to meet those two things. And the second
20 part of the definition -- and this is kind of where it
21 gets confusing -- the person who is being arrested has to
22 reasonably believe that the force is immediately
23 necessary -- he has to believe it right then -- to
24 protect himself against the police officer's use of
25 greater force than necessary.
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1 VENIREPERSON PARSONS: Right. That's what I'm
2 saying.
3 MS. KUCERA: Uh-huh.
4 VENIREPERSON PARSONS: To think that he was
5 reasonable in doing that, who would purposely do that to
6 make their situation worse? He would have to, in my
7 mind, be seeing something that alerts him to, hey, this
8 is not right. I do need to act.
9 MS. KUCERA: Absolutely right, yes. There would
10 need to be some reason that he thought he needed to use
11 that force. It would be, like I was saying, immediately
12 necessary. Okay? Great. You've done a great job.
13 That's a great question. Does everyone else understand?
14 Does everyone else agree with Ms. Parsons' understanding
15 of what we talked about, about this wonderful example of
16 self-defense? Great.
17 VENIREPERSON TAYLOR: Yes.
18 MS. KUCERA: Great. Okay. We're almost done.
19 All right. How do you evaluate truthfulness? Does
20 anyone have children? I haven't heard from you yet. You
21 are Ms. Steele. Ms. Steele, how many children do you
22 have?
23 VENIREPERSON STEELE: I have five.
24 MS. KUCERA: Oh my gosh. This is good. This is
25 a great question for you. All right. so you've got five
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1 children. How old are they?
2 VENIREPERSON STEELE: Two stepchildren --
3 MS. KUCERA: Okay.
4 VENIREPERSON STEELE: -- but 16, 15, two
5 12-year-olds and a two-year-old.
6 MS. KUCERA: Oh my goodness. That is awesome.
7 Have your children ever lied to you before?
8 VENIREPERSON STEELE: Yes.
9 MS. KUCERA: Okay. How do you know they're
10 lying?
11 VENIREPERSON STEELE: Sometimes it's very
12 obvious that they're lying, and sometimes I know by their
13 demeanor that they're not being truthful with me.
14 MS. KUCERA: Okay. Fair enough. What in their
15 demeanor suggests to you that they might be lying?
16 VENIREPERSON STEELE: Well, my oldest son
17 doesn't look me in the eye, and my 15-year-old daughter
18 gets real fidgety.
19 MS. KUCERA: Okay. She shifts her weight,
20 doesn't look you in the eye.
21 VENIREPERSON STEELE: Yeas.
22 MS. KUCERA: What else?
23 VENIREPERSON STEELE: And my middle daughter
24 gets very -- her voice gets kind of shaky. I can tell in
25 the tone of her voice she's not really being honest with
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1 me.
2 MS. KUCERA: Very good. Those are all things to
3 think about that someone might want, right? Okay.
4 Mr. -- raise your hand if you have children again.
5 Ms. Taylor, all right. Ms. Taylor, how many children do
6 you have?
7 VENIREPERSON TAYLOR: Two.
8 MS. KUCERA: Okay. Did you agree with what
9 Ms. Steele said about how you tell someone's lying?
10 VENIREPERSON TAYLOR: Yes.
11 MS. KUCERA: Okay. Would you have anything to
12 add to that? Are there some other things you can look
13 for?
14 VENIREPERSON TAYLOR: Well, like if you're
15 questioning one of them about something and they get real
16 defensive with you, like, you know, kind of angry and
17 defensive and they're -- one of mine, I have trouble with
18 that.
19 MS. KUCERA: Okay. Very good. So has anyone
20 seen the YouTube video -- Ms. Hair, you may be my only
21 hope for this, but it's a mom who's questioning her child
22 about whether or not he ate a cupcake, and he's got
23 sprinkles all over his face and it's all on his ears and
24 eyes, and he is, I mean, standing there and he's like, "I
25 did not eat a cupcake; I did not." I mean she is like --
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1 you can -- the camera is shaking she's laughing so hard
2 because he is just adamant about not eating a cupcake,
3 right? But the evidence is there all over his face. I
4 mean he ate the cupcake, all right.
5 So even though they might be saying something,
6 are there other things you can interpret or reasons to
7 know that they're lying? You can make inferences, right?
8 He's got sprinkles all over his face; there's a cupcake
9 that was sitting on the counter; it's missing and all
10 over his face. He ate it, okay.
11 Do you guys have pets? Okay. Very good.
12 Ms. Vale, what kind of animals do you have?
13 VENIREPERSON VALE: Eileen Vale, No. 8. I have
14 three dogs and a cat.
15 MS. KUCERA: Three dogs and a cat. Okay. Have
16 your dogs ever misbehaved before?
17 VENIREPERSON VALE: Yes.
18 MS. KUCERA: Okay. Did you know that they
19 misbehaved?
20 VENIREPERSON VALE: Yes.
21 MS. KUCERA: Okay. what did they do?
22 VENIREPERSON VALE: They ripped up a couch
23 cushion.
24 MS. KUCERA: Okay. So you came home one day and
25 your couch cushion is in shreds, right?
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1 VENIREPERSON VALE: Yes.
2 MS. KUCERA: Did you rip the couch cushion?
3 VENIREPERSON VALE: No.
4 MS. KUCERA: Okay. How did you know the dogs
5 did?
6 VENIREPERSON VALE: Well, they had it in their
7 mouths and their stool.
8 MS. KUCERA: Yeah, evidence all over the place.
9 Yeah, I have a dog. He eats stuff off the counter all
10 the time. I can't get him to stop. Yeah. I mean, how
11 do I know that he ate the loaf of bread? It's all over
12 the place, right. I mean you can make an inference. You
13 may not have seen your dogs eat the couch, but you know
14 that they ate it, right?
15 VENIREPERSON VALE: Right.
16 MS. KUCERA: Okay. Very good. This is that
17 same type of thing we're going to talk about today.
18 Witnesses are going to tell you about things that
19 happened, and we ask you as jurors to evaluate each
20 witness and their credibility. How do you know they're
21 telling the truth? Are they telling the truth? What
22 sort of things are you going to look for to determine
23 whether or not they're telling the truth? Ms. Steele
24 suggested they're shifty, maybe not answering the
25 question correctly, dodging it.
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1 Ms. Taylor talked about how they're getting
2 really defensive. Okay. So you guys as jurors are going
3 to have to evaluate a witness's credibility. Does
4 everybody understand that that's your role? Okay? So as
5 a juror, in order to be a juror in this case, you have to
6 use what we call the same standards when evaluating the
7 truthfulness of a witness. Okay? I guess to explain
8 that, you can't -- you can't automatically start one
9 witness off higher than another witness, okay. You have
10 to wait until that witness gets on the stand and
11 testifies and you observe their demeanor, what they're
12 saying, how they're talking, how they're acting, what
13 they're talking about. You have to evaluate what they're
14 talking about. You have to weigh their credibility when
15 they get on the stand.
16 In other words, you can't hear that there's
17 going to be a witness and automatically give them a bunch
18 of points just because they're going to be a witness. So
19 does everybody understand? Okay. Ms. Taylor, you can,
20 as a witness -- as a juror, you can accept all of what
21 the witness says; you can accept some of what the witness
22 says -- I think he was telling the truth here, may not
23 have been telling the truth here -- or none of what the
24 witness says. I don't think he's credible at all, right.
25 He was shifting his weight; he wasn't telling the truth,
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1 those sorts of things. He was defensive. Those are the
2 sorts of things we're going to ask you to do as jurors.
3 So can you evaluate, as jurors, police officers
4 as witnesses and wait until that particular police
5 officer gets on the stand before you evaluate his
6 credibility? Okay. Now, as a police officer, you have
7 to evaluate their credibility the same way you evaluate
8 other witnesses' credibility. We talked about that,
9 right? You can't, because they're a police officer,
10 automatically give them -- you know, automatically assume
11 they're telling the truth or automatically assume they're
12 not telling the truth. It has to be the same standard.
13 You have to wait until they get on the stand, okay.
14 You can look at their training and experience
15 when evaluating their credibility, all right. So when we
16 have an expert come testify in court, generally we have
17 to qualify them as an expert. So if it's a doctor,
18 they've got to have a medical degree. And they've got to
19 be sort of familiar with the particular reason that we
20 need them to testify.
21 So my best friend's a doctor, okay, and she
22 deals with infectious disease. So it's kind of weird,
23 but she really likes diseases like the ebola virus and
24 things and sort of weird off the wall diseases that you
25 deal with in other countries. So if we had a case -- I
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1 don't know why we would have a case like this -- but she
2 could be an expert, right. We could call her to testify
3 about certain things that she knows about infectious
4 diseases, right? So you can, in that particular
5 instance, look at her credibility, right? She's an M.D.;
6 she's a resident. You know, she's been through all the
7 training that she needs to be to become a doctor. So you
8 can say, yeah, she's a doctor and I can evaluate her
9 truthfulness based on her being a doctor. Everyone
10 understand what I'm saying?
11 All right. So a police officer, I'm going to
12 need you guys to tell me that you can look at the
13 training and experience, but you're not going to
14 automatically start them out higher or automatically
15 start them out lower because they're a police officer.
16 You're gonna wait until they get on the stand and hear
17 what they have to say and then evaluate their
18 credibility. Ms. Taylor, does that sound like something
19 you can do?
20 VENIREPERSON TAYLOR: Yes.
21 MS. KUCERA: Okay. What about you,
22 Mr. Teakell? Can you do that?
23 VENIREPERSON TEAKELL: Yes.
24 MS. KUCERA: What about Ms. Wright?
25 VENIREPERSON WRIGHT: Yes.
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1 MS. KUCERA: Okay. Ms. Hair?
2 VENIREPERSON HAIR: Yes.
3 MS. KUCERA: Mr. Garcia?
4 VENIREPERSON GARCIA: Yes.
5 MS. KUCERA: Mr. Foster?
6 VENIREPERSON FOSTER: I'm kind of struggling
7 with the automatically give more, because I deal with
8 them every day. They're held to a higher standard, and
9 I'm going to assume they know more.
10 MS. KUCERA: Okay.
11 VENIREPERSON FOSTER: -- and take more into
12 account when they -- like they could walk into this room
13 and observe the scene, and they're going to take more
14 into account when they're processing information than the
15 average witness would.
16 MS. KUCERA: Right. So --
17 VENIREPERSON FOSTER: So that's probably the
18 part that I would --
19 MS. KUCERA: Fair enough. So I guess what this
20 is saying is that you recognize as a police officer that
21 you've had an extensive amount of training and background
22 in observation, you know, crime scene investigation,
23 evaluating people.
24 VENIREPERSON FOSTER: That would probably fall
25 under the experience.
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1 MS. KUCERA: Yeah.
2 VENIREPERSON FOSTER: You're talking about a
3 bias towards them just because they have a uniform?
4 MS. KUCERA: Exactly.
5 VENIREPERSON FOSTER: I'm not going to give them
6 more or less credit for that, yes.
7 MS. KUCERA: Exactly. Does everyone understand
8 what the officer is saying? He's saying, listen, I'm a
9 police officer. I know the training they go through. I
10 know certain things that they have to do to become a
11 police officer. But he says -- and I'm going to ask
12 you -- can you set aside not necessarily your knowledge
13 about a police officer, but can you wait until that
14 police officer gets on the stand and testifies before you
15 make an evaluation as to whether or not he's telling the
16 truth?
17 VENIREPERSON FOSTER: Yes.
18 MS. KUCERA: Yes. Great. Mr. Billing, what
19 about you?
20 VENIREPERSON BILLING: Yes.
21 MS. KUCERA: And Ms. Vale?
22 VENIREPERSON VALE: Yes.
23 MS. KUCERA: What about Ms. McKinley? Stand up
24 for a second. So you understood what Officer Foster was
25 saying?
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1 VENIREPERSON MCKINLEY: Yes.
2 MS. KUCERA: Okay. And you think that even
3 though he's a police officer, that if the police officer
4 testifies, that you can wait until he gets on the stand
5 before you evaluate his credibility?
6 VENIREPERSON MCKINLEY: Yes.
7 MS. KUCERA: Okay. And, Ms. Steele, same
8 question.
9 VENIREPERSON STEELE: Yes.
10 MS. KUCERA: What about Mr. Jantz?
11 VENIREPERSON JANTZ: Yes.
12 MS. KUCERA: What about Ms. Schmidt?
13 VENIREPERSON SCHMIDT: Yes.
14 MS. KUCERA: Okay. And Ms. McClesky?
15 VENIREPERSON MCCLESKY: Yes.
16 MS. KUCERA: Mr. Thomason?
17 VENIREPERSON THOMASON: Yes.
18 MS. KUCERA: Mr. Vasquez?
19 VENIREPERSON VASQUEZ: Yes.
20 MS. KUCERA: Mr. Litteken?
21 VENIREPERSON LITTEKEN: Yes.
22 MS. KUCERA: All right. Mr. Davis?
23 VENIREPERSON DAVIS: Yes.
24 MS. KUCERA: Ms. Parsons?
25 VENIREPERSON PARSONS: Yes.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1 MS. KUCERA: Okay. Ms. Trejo?
2 VENIREPERSON TREJO: Yes.
3 MS. KUCERA: Ms. Ripperger?
4 VENIREPERSON RIPPERGER: Yes.
5 MS. KUCERA: What about you, Ms. Logsdon?
6 VENIREPERSON LOGSDON: Yes.
7 MS. KUCERA: Mr. Young?
8 VENIREPERSON YOUNG: Yes.
9 MS. KUCERA: And Mr. Chavez?
10 VENIREPERSON CHAVEZ: Yes.
11 MS. KUCERA: Okay. All right. The last thing
12 we're gonna talk about -- actually, let me ask a question
13 really quick. Had anyone had a bad experience here with
14 a police officer before? Anyone ever had a bad
15 experience? You or someone you know has had a bad
16 experience? Mr. Jantz, stand up for me just a second.
17 What was the experience?
18 VENIREPERSON JANTZ: Family disturbance.
19 MS. KUCERA: Okay. And it was just because you
20 didn't appreciate what the police officers did in that
21 case or --
22 VENIREPERSON JANTZ: Well, at the time -- you
23 told me to be honest here, right?
24 MS. KUCERA: Uh-huh.
25 VENIREPERSON JANTZ: At the time when I was
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1 there, they just took one side of it all.
2 MS. KUCERA: Okay. Do you think because of that
3 experience you might not be able to be fair in this case
4 and put aside what happened there and evaluate these
5 witnesses just based on what they testify to in this
6 particular case?
7 VENIREPERSON JANTZ: No, I wouldn't have a
8 problem with that at all.
9 MS. KUCERA: Okay. So you're saying even though
10 you've had a bad experience, you could be a fair juror in
11 this case? In other words, you could evaluate what all
12 the witnesses say and evaluate them for their credibility
13 and what they say on the stand?
14 VENIREPERSON JANTZ: Yes, ma'am.
15 MS. KUCERA: Okay. All right. Last thing we're
16 going to talk about is the defendant's constitutional
17 rights. The Fifth Amendment says, "No person shall be
18 compelled to be a witness against himself." Mr. Billing,
19 that means that the defendant in a case does not have to
20 get on the stand and testify, all right? If the
21 defendant in this -- you know, we don't have the right to
22 compel somebody to testify against themselves, right?
23 That you're allowed under the Fifth Amendment the
24 constitutional right that you don't have to testify.
25 Now, Ms. Taylor, do you think that you could, if
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1 the defendant chooses not to testify, that you could --
2 and the judge instructs you that you cannot because he
3 didn't testify, hold that against -- I'm sorry. If the
4 judge instructs you that if he didn't testify, you cannot
5 hold that against him, if the judge makes that
6 instruction, do you think you could follow what the judge
7 tells you to do?
8 VENIREPERSON TAYLOR: Yes.
9 MS. KUCERA: Okay. What about you, Mr. Teakell?
10 VENIREPERSON TEAKELL: Yes.
11 MS. KUCERA: Ms. Wright?
12 VENIREPERSON WRIGHT: Yes.
13 MS. KUCERA: Ms. Hair?
14 VENIREPERSON HAIR: Yes.
15 MS. KUCERA: Mr. Garcia?
16 VENIREPERSON GARCIA: Yes.
17 MS. KUCERA: Mr. Foster?
18 VENIREPERSON FOSTER: Yes.
19 MS. KUCERA: Mr. Billing?
20 VENIREPERSON BILLING: Yes.
21 MS. KUCERA: Okay. Mr. Vale?
22 VENIREPERSON VALE: Yes.
23 MS. KUCERA: Mr. Jantz?
24 VENIREPERSON JANTZ: Yes.
25 MS. KUCERA: Ms. Schmidt?
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1 VENIREPERSON SCHMIDT: Yes.
2 MS. KUCERA: Ms. McClesky?
3 VENIREPERSON MCCLESKY: Yes.
4 MS. KUCERA: Thomason?
5 VENIREPERSON THOMASON: Yes.
6 MS. KUCERA: Vasquez?
7 VENIREPERSON VASQUEZ: Yes.
8 MS. KUCERA: And Mr. Litteken?
9 VENIREPERSON LITTEKEN: Yes, ma'am.
10 MS. KUCERA: Okay. Chavez?
11 VENIREPERSON CHAVEZ: Yes.
12 MS. KUCERA: Mr. Young?
13 VENIREPERSON YOUNG: Yes.
14 MS. KUCERA: Ms. Logsdon?
15 VENIREPERSON LOGSDON: Yes.
16 MS. KUCERA: Ms. Ripperger?
17 VENIREPERSON RIPPERGER: Yes.
18 MS. KUCERA: Ms. Trejo?
19 VENIREPERSON TREJO: Yes.
20 MS. KUCERA: What about you, Ms. Parsons?
21 VENIREPERSON PARSONS: I could, but I'd rather
22 hear what he has to say.
23 MS. KUCERA: Okay. But even if he doesn't, you
24 won't hold it against him?
25 VENIREPERSON PARSONS: No.
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1 MS. KUCERA: And you, Mr. Davis?
2 VENIREPERSON DAVIS: Yes.
3 MS. KUCERA: Okay. Well, that is all I have to
4 talk to you about. Do you guys have any questions for
5 me? Okay. You guys have done so well. Thank you so
6 much. I appreciate it. Oh, I'm sorry. Really quickly.
7 Does anyone know anyone that is here today? Anyone know
8 the judge? I know he said he knew a few of you. Raise
9 your hand if you know the judge. Okay. Mr. Vasquez and
10 Ms. Ripperger, do you think your knowledge of the judge
11 would cause you to not be fair in this case? Do you
12 think even though you know the judge, you could set aside
13 your knowledge of him and move forward and be fair in
14 this case?
15 VENIREPERSON VASQUEZ: Yes.
16 VENIREPERSON RIPPERGER: Yes.
17 MS. KUCERA: What about -- anyone know the
18 officers? Does anyone know any people listed on this
19 board? Officer Vasquez?
20 VENIREPERSON FOSTER: Oh, yes.
21 MS. KUCERA: Officer Foster, okay. Beesinger,
22 Lee and Iper? Ms. Wright, which one do you know?
23 VENIREPERSON WRIGHT: Mr. Iper.
24 MS. KUCERA: Okay. Do you think that even
25 though you know Mr. Iper in this case that you could set
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1 aside that and be a fair juror in this case?
2 VENIREPERSON WRIGHT: Yes.
3 MS. KUCERA: Okay. Mr. Teakell, you raised your
4 hand.
5 VENIREPERSON TEAKELL: I was a firefighter. I'm
6 a retired firefighter. I think I know all of them.
7 MS. KUCERA: Okay. Even though you're a retired
8 firefighter and you sort of have some knowledge of them,
9 do you think you could set that aside and evaluate this
10 case to you as it is today?
11 VENIREPERSON TEAKELL: Sure.
12 MS. KUCERA: Okay. Anyone else?
13 VENIREPERSON STEELE: This gentleman right
14 here.
15 MS. KUCERA: Mr. Cavinder?
16 VENIREPERSON STEELE: I don't know him
17 personally, but I know of him.
18 MS. KUCERA: Okay. Do you think that your
19 knowledge of Mr. Cavinder would prevent you from being a
20 fair and impartial juror in this case?
21 VENIREPERSON STEELE: No.
22 MS. KUCERA: Anyone else?
23 VENIREPERSON PARSONS: I've known Charlie Iper
24 since he was a little boy.
25 MS. KUCERA: Okay. Do you think even though you
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1 know Mr. Iper, you could be a fair and impartial juror in
2 this case?
3 VENIREPERSON PARSONS: Yes.
4 MS. KUCERA: Anyone else? All right. Now, I'm
5 done. Thank you so much.
6 THE COURT: All right. Let's go ahead and I
7 think what I need to do is let's go ahead and take a
8 little bit of an early lunch. If you could be back at
9 11:45 -- excuse me, 12:45. Sorry. Be back at 12:45 and
10 we'll get going right at that time with the defense voir
11 dire. And, also, that might help you find a parking
12 spot, too because I know it's hard to park around here,
13 but if you get back before one, you usually have better
14 luck. So be back at 12:45. Yes, Karen.
15 THE BAILIFF: Back in the same order.
16 THE COURT: Yes. I apologize. See, I told you
17 she keeps me straight. If you will, when you come back
18 in, just wait in the hall, assemble in the hall. We'll
19 call you in just like we did. And come back in and sit
20 in the same order. You can see how that's important now
21 to keep track of everybody. All right. Be back at
22 12:45. Thank you.
23 (Jury panel exits courtroom)
24 (Lunch recess taken)
25 (Open court, defendant and jury panel present)
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1 THE COURT: Y'all be seated, please. I
2 apologize for that. We are technologically challenged
3 here in Wichita County. Actually, there was a proposal
4 that went through the commissioner's court to update all
5 the courts on technology. We're still operating in
6 about, by my estimation, somewhere in the early nineties.
7 So with that comes some problems every once in a while.
8 I apologize for the delay, but we'll be moving forward
9 with Mr. Briley's voir dire. Mr. Briley?
10 MR. BRILEY: Thank you, Your Honor.
11 JURY VOIR DIRE EXAMINATION
12 BY MR. BRILEY:
13 Hello, everybody. Thank you for your time
14 today. Good afternoon. Again, my name is Mark Briley.
15 I'm happy to be here with Mr. Byrias Roberson. I'm also
16 here with Ms. Kristen Howcroft who has been trying to
17 help me throughout the trial. I went to Midwestern State
18 for college. I went on down to San Antonio to St. Mary's
19 for law school. For about a year I worked in Abilene
20 doing family law and criminal defense and then I came
21 back here and married my wife Jennifer and have been
22 doing criminal defense here. Again, I'm happy to be here
23 to talk to you about Byrias' defense.
24 There's about four or five topics that I have to
25 talk with you about. I think the State covered quite a
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1 bit, so this should be a little bit shorter. I did have
2 a Power Point prepared. I apologize. A few things are
3 hard, but there's probably only two things that might be
4 a little bit difficult. I'll write it on the board.
5 The first topic that I want to talk to you about
6 are police interactions. The courts have made law or
7 categorized three different types of police interactions.
8 The first one would be a voluntary encounter. That might
9 be something where an officer comes to you on the street
10 and maybe wants to ask you a few questions about
11 something you may or may not have seen, maybe they give
12 you a call or something like that. That would be a
13 voluntary encounter. The citizen would be free to walk
14 away at any time.
15 The other two would be seizures and the police
16 officers basically tell them, You have to stay here, or
17 they force them to stay there, something like that.
18 The first one would be an investigative
19 detention. The most common example would be a police
20 officer coming behind you, turning on their lights and
21 pulling you over. And maybe they think that you're
22 committing a crime or they're there to give you a traffic
23 ticket, but they tell you with a show of authority that
24 you need to stop. They have some kind of reason to do
25 so. But it would be a brief amount of time. They're
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1 just looking to investigate something.
2 The third type of police interaction would be an
3 arrest. This would also be something where the police
4 display official authority. You know, they force you to
5 stop or they take you into custody.
6 My first question to you all is about your
7 experiences with police interactions. So, Ms. Taylor,
8 I'll just kind of start with you since you're No. 1.
9 VENIREPERSON TAYLOR: Okay. Want me to stand?
10 MR. BRILEY: Have you had a lot of police
11 interactions in your life?
12 VENIREPERSON TAYLOR: No, I have policemen in my
13 family, but I don't have -- just normal stops with your
14 car or something.
15 MR. BRILEY: Okay.
16 VENIREPERSON TAYLOR: Inspection sticker or
17 maybe speeding once, stuff like that.
18 MR. BRILEY: So other than your family, just
19 speeding tickets, things like that?
20 VENIREPERSON TAYLOR: Uh-huh. I have two sons,
21 you know, and they've gotten tickets before, so you know.
22 MR. BRILEY: Okay. When the police approached
23 you when they were going to pull you over, what did they
24 do to tell you to pull over, I suppose?
25 VENIREPERSON TAYLOR: Well, usually, they do
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1 their lights, you know. They come up behind you, or you
2 need them and they turn around and they come up behind
3 you and make you pull over.
4 MR. BRILEY: Okay. thank you. You mentioned
5 that you had some family members who are police officers?
6 VENIREPERSON TAYLOR: Yeah. My nephew is a
7 current Wichita Falls Policeman, and my brother-in-law
8 used to be with the sheriff's department a couple years
9 ago.
10 MR. BRILEY: Okay. Thank you very much.
11 VENIREPERSON TAYLOR: Uh-huh.
12 MR. BRILEY: Mr. Teakell, what about you? Do
13 you have a lot of experiences with police interactions?
14 VENIREPERSON TEAKELL: Well, I was a fireman for
15 28 years and, you know, I'd see policemen here or there,
16 call policemen over here or there. I know a lot of
17 policemen. I've had a lot of dealings with policemen at
18 fires, car wrecks.
19 MR. BRILEY: How about as a citizen? When
20 you're off duty, has a policemen ever approached you to
21 ask you some questions or --
22 VENIREPERSON TEAKELL: I got pulled over one
23 time, but I didn't get a ticket.
24 MR. BRILEY: Okay. And, again, they just put
25 their lights on and stopped you and that was about it?
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1 VENIREPERSON TEAKELL: Yeah, that was about it.
2 MR. BRILEY: Thank you very much. Ms. Wright,
3 how about you?
4 VENIREPERSON WRIGHT: Same. Speeding tickets,
5 same thing. Lights flashed, pulled over. That's it.
6 MR. BRILEY: Thank you very much. Ms. Hair,
7 what about you?
8 VENIREPERSON HAIR: No. I mean I've been pulled
9 over for my inspection sticker, but never had a ticket
10 for speeding or anything like that.
11 MR. BRILEY: Same thing. They pulled you over
12 with their lights and came up and talked to you?
13 VENIREPERSON HAIR: Gave me a warning.
14 MR. BRILEY: All right. Thank you.
15 Mr. Garcia?
16 VENIREPERSON GARCIA: Speeding, taillight out.
17 Usually, a warning. Not a ticket yet.
18 MR. BRILEY: Same thing. They put their lights
19 on and let you know to stop?
20 VENIREPERSON GARCIA: Uh-huh.
21 MR. BRILEY: Sergeant Foster, I know you're a
22 police officer, so you've had many interactions with
23 police officers.
24 VENIREPERSON FOSTER: Yes.
25 MR. BRILEY: But as a citizen, perhaps when you
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1 were off duty or maybe it was before you were a police
2 officer, did you have any police officers pull you over?
3 VENIREPERSON FOSTER: Oh, yeah, when I was
4 younger, I had a lot of tickets. I served my time, did
5 my time. I've never been to jail for anything, but, yes,
6 as far as just getting stopped for speeding or traffic
7 violations.
8 MR. BRILEY: And in your role as a police
9 officer, how often do you perhaps follow up with a
10 witness, maybe somebody investigating crimes?
11 VENIREPERSON FOSTER: Oh, yeah.
12 MR. BRILEY: And how do you contact witnesses?
13 VENIREPERSON FOSTER: My stuff, since I'm on
14 patrol, is pretty immediate right there at the scene
15 talking to people. Usually, the way our stuff works, we
16 write up that stuff and a detective may or may not
17 contact the witnesses. It depends on the case.
18 MR. BRILEY: Okay. Are most of the people that
19 you encounter in those stops, would you say that they are
20 detained?
21 VENIREPERSON FOSTER: You're talking about a
22 traffic stop?
23 MR. BRILEY: Well, yeah. I mean any kind of.
24 VENIREPERSON: Traffic stop, yes.
25 MR. BRILEY: So most of the people -- I guess
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1 most of the citizens that you deal with, would you say
2 that they're detained?
3 VENIREPERSON FOSTER: If it's not a consensual
4 stop, like you said, then they're detained.
5 MR. BRILEY: Can you tell us about a consensual
6 stop?
7 VENIREPERSON FOSTER: You're in a convenience
8 store and a cop walks up to you and says, Do you mind if
9 I talk to you for a second? I may not have anything to
10 really connect you to anything at that point, but I may
11 recognize you, may want to just talk to you, maybe
12 develop something like maybe you -- maybe your behavior
13 looked like you're casing the store or something. I'm
14 still trying to formulate if I have enough to detain you
15 or if I even need to be concerned with you. And with
16 consensual, you know, if they tell me to get bent and
17 turn around and walk off, that's what I do. I turn
18 around and walk off. At that point, it's consensual and
19 they have the right to break it.
20 MR. BRILEY: Does that happen often or is it
21 rare?
22 VENIREPERSON FOSTER: Where I'm working now,
23 there's not much enforcement, but when I was an officer,
24 there would be times, yeah. But the majority of the time
25 most citizens will talk to you, you know, just out of
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1 respect or -- but, yeah, it happens.
2 MR. BRILEY: Thank you very much. Mr. Billing,
3 how about you?
4 VENIREPERSON BILLING: Most people get pulled
5 over for speeding. I've had family members that are in
6 law enforcement. My neighbor across the street is on the
7 police force in Wichita Falls.
8 MR. BRILEY: What kind of family members?
9 VENIREPERSON BILLING: My nephew is highway
10 patrol in Minnesota.
11 THE REPORTER: I need you to speak up a little
12 bit. I'm having trouble hearing you.
13 VENIREPERSON BILLING: Highway patrol in
14 Minnesota.
15 MR. BRILEY: But most of your interactions as a
16 citizen with police officers are traffic stops, something
17 like that?
18 VENIREPERSON BILLING: Yeah. Daily or weekly
19 interactions with my neighbor who's a police officer. We
20 don't discuss any type of police activity.
21 MR. BRILEY: Okay. Thank you very much.
22 Ms. Vale?
23 VENIREPERSON VALE: Yes. As a citizen, just the
24 last speeding ticket I got was in 1998 going to school.
25 Twelve years ago I did go through the game warden
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1 academy. A lot of my family members are in law
2 enforcement, but that's -- I have one in Edinburg,
3 working the border. So that's my experience.
4 MR. BRILEY: Are your family members your
5 siblings? Cousins?
6 VENIREPERSON VALE: Cousins.
7 MR. BRILEY: Ms. McKinley?
8 VENIREPERSON MCKINLEY: Just the same usual,
9 nothing out of the ordinary. Speeding.
10 MR. BRILEY: No knocks on your door to see if
11 you were a witness to something?
12 VENIREPERSON MCKINLEY: No.
13 MR. BRILEY: Okay. Thank you. And, Ms. Steele,
14 how about you?
15 VENIREPERSON STEELE: I've been pulled over for
16 speeding and things like that and gotten warnings and
17 also tickets. I work in an environment where I work in
18 an ER environment so there are police officers and
19 detectives and things like that that come in and out of
20 our emergency room department.
21 MR. BRILEY: Do they ever ask you questions
22 about an investigation that they have?
23 VENIREPERSON STEELE: Well, it depends. Well, I
24 don't know.
25 MR. BRILEY: Where you might be a witness? You
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1 saw somebody that came in?
2 VENIREPERSON STEELE: The only time that would
3 ever would be is if I was a nurse for that patient and
4 maybe something was said, but I've never encountered
5 that.
6 MR. BRILEY: Okay. Thank you. Mr. Jantz, have
7 you had a lot of dealings with police officers?
8 VENIREPERSON JANTZ: Not a lot. One bad
9 experience, and that was it.
10 MR. BRILEY: Okay.
11 VENIREPERSON JANTZ: My father was a police
12 officer for many years, federal officer in Wisconsin.
13 MR. BRILEY: Ms. Schmidt?
14 VENIREPERSON SCHMIDT: I just can't remember the
15 last encounter. Just regular warnings for speeding. I
16 have a nephew that's a police officer.
17 MR. BRILEY: Okay. Thank you. And
18 Ms. McClesky?
19 VENIREPERSON MCCLESKY: Speeding.
20 MR. BRILEY: Okay.
21 VENIREPERSON MCCLESKY: Seems to be the norm,
22 but, yeah, that's about it.
23 MR. BRILEY: All right. Thank you.
24 Mr. Thomason?
25 VENIREPERSON THOMASON: Just the same as
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1 everybody else. Just a couple speeding tickets.
2 MR. BRILEY: Okay. And Mr. Vasquez?
3 VENIREPERSON VASQUEZ: Yeah. It's been some 30
4 years. Speeding ticket, normal. I did have them come in
5 my house one time in the middle of the night through the
6 back door. But it wasn't a problem, you know.
7 MR. BRILEY: Can you tell us more about that
8 experience?
9 VENIREPERSON VASQUEZ: Well, I think it was a
10 family disturbance. My niece and her mother, they were
11 having problems, and they thought my niece was staying
12 with us, so they were checking into it.
13 MR. BRILEY: Okay. Did they -- I'm sorry. Go
14 ahead.
15 VENIREPERSON VASQUEZ: Everyone was asleep, woke
16 up by the dog. They came in through the back door, a
17 couple policemen.
18 MR. BRILEY: Okay.
19 VENIREPERSON VASQUEZ: But, you know, we talked
20 to them and everything was all right.
21 MR. BRILEY: So they just -- they knocked on
22 your back door?
23 VENIREPERSON VASQUEZ: No. Well, we were asleep
24 so, you know, they just came in, which I don't think
25 they're supposed to do, but that's what happened.
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1 MR. BRILEY: I suppose they asked you some
2 questions?
3 VENIREPERSON VASQUEZ: Yeah.
4 MR. BRILEY: Did you feel free to leave or to
5 turn them away?
6 VENIREPERSON VASQUEZ: Yeah. I mean we just
7 told the truth, that we didn't know what was going on,
8 you know.
9 MR. BRILEY: Okay. Was that a positive or
10 negative experience for you?
11 VENIREPERSON VASQUEZ: It's -- well, you never
12 want to be awoken in the middle of the night and see a
13 couple policemen, you know, in the home with your dog
14 fixing to, you know, attack them or whatever. So it was
15 kind of negative, I guess, because they had their guns
16 for the dog, you know, because he's a big dog. But, you
17 know, other than that.
18 MR. BRILEY: Okay. Thank you very much. And
19 Mr. Litteken?
20 VENIREPERSON LITTEKEN: I've been pulled over
21 for illegal left hand turn in front of the courthouse.
22 And usually when I get pulled over, I'll put my keys on
23 top of the dashboard and I'll get my driver's license out
24 and my registration, letting that officer know, you know,
25 I ain't going nowhere.
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1 MR. BRILEY: And same thing? I guess they used
2 their sirens, flashing lights to pull you over?
3 VENIREPERSON LITTEKEN: Yeah, because I'm half
4 deaf. They've gotta (makes siren noise).
5 MR. BRILEY: Okay. Thank you very much. I'm
6 sorry if it feels like I'm prying about these type of
7 things. I'm guess I'm not trying to pry too much. That
8 might be a sensitive issue, how many times you've been
9 pulled over by the police, things like that. Anybody
10 here -- I know that I didn't reach the back row, but is
11 there anybody here that's had what they would call a
12 voluntary encounter that they haven't spoken about so
13 far, where a police officer approached them, wanted to
14 ask them questions? Not just a, Hey, how are you doing,
15 but, you know, I have an investigation; I would like to
16 talk with you, but you're not necessarily detained or
17 under arrest. Anybody had that type of experience?
18 How about has anybody been a victim of a crime?
19 I see a couple nods. Sergeant Foster?
20 VENIREPERSON FOSTER: Oh, I was just laughing
21 because it seems like that most everybody is at some
22 point a victim of a crime if you live on this planet long
23 enough.
24 MR. BRILEY: Anybody's cars been broken into,
25 anything like that? Ms. McKinley, can you tell us about
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1 that experience.
2 VENIREPERSON MCKINLEY: I was at work in the
3 middle of the day, came back from lunch. I kept my purse
4 in the car, which is stupid, I know, but tons of people
5 there, you know, in and out. Within an hour, someone
6 busted the window and took off with it.
7 MR. BRILEY: Did you call the police?
8 VENIREPERSON MCKINLEY: Yes.
9 MR. BRILEY: And they came out and took a
10 report?
11 VENIREPERSON MCKINLEY: Took a report. That was
12 it.
13 MR. BRILEY: Okay. I suppose you didn't get
14 your purse back, did you?
15 VENIREPERSON MCKINLEY: No, I did not.
16 MR. BRILEY: I've had my car broken into once or
17 twice. Ms. Steele, you raised your hand. Did you have
18 some kind of police interaction or did you contact the
19 police in your situation?
20 VENIREPERSON STEELE: No, I didn't.
21 MR. BRILEY: Okay.
22 VENIREPERSON STEELE: I had my wallet stolen
23 once and my son just recently actually had his
24 registration sticker taken out of his vehicle. That's
25 really about it. I did speak to a police officer and
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1 kind of got his advice, but it wasn't official. I was at
2 work and he was in the emergency room with somebody. I'm
3 not sure why he was there, but he was there.
4 MR. BRILEY: Anybody else here who's had police
5 interactions because they were perhaps the victim of a
6 crime or a close family member? Yes, sir.
7 VENIREPERSON BILLING: I was attending a
8 basketball game in Burkburnett in a suburban. While I
9 was in the game, somebody broke the window out and stole
10 the DVD player that was cosmetically in the vehicle.
11 MR. BRILEY: I suppose you called the police?
12 VENIREPERSON BILLING: Well, they actually came
13 and got me. It had an alarm system on it. So they broke
14 in pretty quick and it did some damage to my seats and
15 stuff like that.
16 MR. BRILEY: Okay. And your dealings with the
17 police are negative? Positive?
18 VENIREPERSON: Positive dealings.
19 MR. BRILEY: Anybody else? Thank y'all. Thank
20 you, Mr. Billing.
21 The next question I have, and, you know, still
22 talking about this topic of police interactions, is if
23 you were approached by a police officer like Sergeant
24 Foster has probably approached some people just kind of
25 wanting to feel things out or maybe a police officer has
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1 approached you just to ask you some questions. Is there
2 anybody here -- and let's just take the first row -- how
3 many here would walk away from a police officer or
4 terminate that voluntary encounter just because you don't
5 want to talk to the police? Is there anybody here who
6 would do that? How about the second row? Is there
7 anybody here who would just walk away for anything? It
8 may not be in every situation, but you could think of a
9 situation where you might just not want to talk to the
10 police? Anybody in the second row? Third row? And for
11 those of y'all who said no, which was everybody, my
12 question to you is why not? Ms. McKinley -- sorry,
13 Ms. Vale, what would be some reasons?
14 VENIREPERSON VALE: Why I wouldn't talk to
15 them? I've never been threatened by any authority figure
16 anyway. To me, they're a public servant there to help
17 you and protect people's property and the public's
18 rights. That's the way I see a police officer.
19 MR. BRILEY: So you're trying to help them?
20 VENIREPERSON VALE: Right.
21 MR. BRILEY: And be polite?
22 VENIREPERSON VALE: And be polite, because
23 they're doing a service for us.
24 MR. BRILEY: Mr. Billing, is there any other
25 reasons that you could think of?
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1 VENIREPERSON BILLING: I mean there are -- just
2 out of respect, a person of authority. So just general
3 conversation, there's nothing wrong with that.
4 MR. BRILEY: Okay. Thank you. On the first
5 row, with a show of hands, is there anybody here who's
6 had an experience with a police officer maybe pulling you
7 over just for a speeding ticket and you felt they were
8 rude to you? Second row?
9 VENIREPERSON JANTZ: Just for speeding tickets?
10 MR. BRILEY: Any kind of police interaction?
11 Mr. Jantz, I know that you spoke a little bit about that
12 situation, but could you tell us a little bit more about
13 how you felt.
14 VENIREPERSON JANTZ: Well, after decisions were
15 made, after all the decisions were made of who was going
16 where and what was going to happen, people were taking
17 care of their business, doing what they were supposed to
18 do, there was three young cops there and, like I said, I
19 was packing up, leaving. One of them said, out of the
20 blue, Mr. Jantz, it seems like you've got a problem with
21 something here. I personally -- I felt like I was
22 invaded at the time.
23 MR. BRILEY: Did they kind of make you feel like
24 you were a criminal, perhaps?
25 VENIREPERSON JANTZ: Well, I don't know. Nobody
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1 asked me what happened. Nobody asked me what was going
2 on. They just took one person's side over -- like I
3 said, up to that point it was -- it was a done deal.
4 People were leaving; the decisions were made. There was
5 no reason for that public servant to say that to me.
6 MR. BRILEY: Okay. Thank you very much for
7 sharing that with us. Anybody else like Mr. Jantz who
8 had some kind of experience where they felt like they
9 were mistreated or a police officer was rude to them?
10 Thank y'all.
11 Moving on to my next topic, second topic.
12 The elements of resisting arrest, I think the State
13 covered this. You know, but the State is going to have
14 to approve each of these elements beyond a reasonable
15 doubt: That a person intentionally prevents or obstructs
16 a person they know as a police officer from effecting an
17 arrest by using force against the peace officer. Of
18 course, if you have, you know, even one reasonable doubt
19 as to any one of those elements, the law would require
20 you to acquit Mr. Roberson.
21 And really the main element that I want to talk
22 about is that intent. The law gives us various mental
23 states that the statute may require the State to approve,
24 intentionally, knowingly, recklessly, with criminal
25 negligence. And the State went over the baseball
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1 situation with intentionally. And, you know, some
2 statutes require not just intentional, but it might be
3 intentionally or knowingly, intentionally, knowingly, or
4 recklessly. This statute requires that they prove
5 intentionally. And, again, that is when a person acts
6 intentionally with respect to their nature or conduct or
7 to the result of their conduct when it's their conscious
8 objective or desire to engage in that conduct or to cause
9 that result.
10 Ms. Taylor, if I could pick on you again. Can
11 you think of just really any action that would be
12 intentional?
13 VENIREPERSON TAYLOR: Intentional? Like
14 murder? Is that what you're saying, like, intentional?
15 Yes.
16 MR. BRILEY: Somebody intended --
17 VENIREPERSON TAYLOR: Premeditated.
18 MR. BRILEY: That was their conscious desire, to
19 cause that result, the death of another person?
20 VENIREPERSON TAYLOR: Do I think. Okay, so what
21 are you asking me now?
22 MR. BRILEY: You already answered me. I'm sorry
23 I'm confusing you.
24 VENIREPERSON TAYLOR: Intentional act, yes.
25 MR. BRILEY: Murder. Okay. Mr. Teakell, could
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1 you think of an act that's not intentional?
2 VENIREPERSON TEAKELL: I really don't understand
3 what you're saying.
4 MR. BRILEY: For example, breaking something
5 or --
6 VENIREPERSON TEAKELL: A policemen breaking
7 something?
8 MR. BRILEY: No, just anybody.
9 VENIREPERSON TEAKELL: Anybody?
10 MR. BRILEY: Something that's not intentional,
11 something that perhaps you -- you know, your body's
12 moving, but that is not your intended result.
13 VENIREPERSON TEAKELL: I guess that could
14 happen, yeah.
15 MR. BRILEY: Okay. Thank you. Third topic that
16 I wanted to talk about was the presumption of innocence.
17 Of course, all persons are presumed to be innocent and
18 the presumption of innocence alone is sufficient to
19 acquit. Of course, the defense does not have to put on
20 any evidence, just that presumption alone is enough to
21 acquit. And, you know, it's not about which case is
22 better, the defense's case or the State's case. The
23 State must prove their case beyond a reasonable doubt and
24 each element beyond a reasonable doubt.
25 And my question to you all is do you believe
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1 that an innocent person should be brought to trial for a
2 charge such as resisting arrest? So just this first row,
3 who would answer yes to that question, I do believe that
4 an innocent person could be brought to trial for a charge
5 such as resisting arrest?
6 VENIREPERSON: They're innocent coming into it?
7 MR. BRILEY: Let's say, first of all, there's an
8 allegation that somebody was resisting arrest, but
9 they're innocent. Could they be brought to trial? Could
10 it get so far as the trial process when they're
11 innocent?
12 VENIREPERSON: Sure.
13 MR. BRILEY: Yes, okay. Who here would agree?
14 First row? Sergeant Foster, how about you? You don't
15 believe that?
16 VENIREPERSON FOSTER: No, by the time -- just in
17 my experience, by the time it goes through detectives, my
18 level of patrol sergeant signing off on it and the
19 detective section, and the D.A.'s prosecution packet is
20 put together, and the D.A.'s office looks at it, I don't
21 see it. Again, it's my opinion. But it seems we err on
22 the side of caution with this stuff, as we should. And
23 it just doesn't go to trial if the D.A.'s office sees
24 that there's not enough there.
25 MR. BRILEY: Thanks for your honest opinion. Of
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1 course, that's what we're looking for is just your
2 opinion. The law may say one thing, but that doesn't
3 necessarily mean that that's what you believe, and you
4 may believe something different than what the law is. In
5 the instructions, that's what we're looking for. So
6 would you say you believe Mr. Roberson is guilty just
7 sitting in the defendant's chair?
8 VENIREPERSON FOSTER: I'm not saying I couldn't
9 look at everything objectively, but I'm more inclined to
10 believe that he is knowing the experience that I have
11 within the criminal justice system. I'm not saying that
12 it doesn't occur, but having a personal knowledge of how
13 things happen here, it seems more often than not people
14 that should be going, don't go. You know, so it's just
15 my opinion.
16 MR. BRILEY: Well, so would you say that just
17 his allegation, just the fact that we're here in trial
18 would be some evidence in your mind against him?
19 VENIREPERSON FOSTER: Yeah, to be honest, it
20 would be. And it's not that I couldn't look at
21 everything objectively. There may be something that, you
22 know, with the officer's testimony, his testimony. I
23 don't know if he's going to testify, and I wouldn't hold
24 that against him. But I understand he's innocent. I
25 guess I'm talking in circles here. It's probably just my
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1 15 years of experience as a police officer seeing the
2 this stuff and seeing how it works. I can look at it
3 objectively and come to a decision, but, yeah, I think
4 I'm prone to believe somebody is guilty, right or wrong.
5 MR. BRILEY: So you'd say the State is probably
6 starting off just a little bit ahead? I mean just the
7 fact they we're even here?
8 VENIREPERSON FOSTER: Yeah, I think I'd be
9 dishonest in saying that that would be even in my mind.
10 MR. BRILEY: And if the judge or, you know, if
11 we called you back in later on, the judge and the D. A.
12 talked to you and said, I know that's your opinion, but
13 can you set that opinion aside?
14 VENIREPERSON FOSTER: Oh, yeah. We're being
15 honest, just like you said. That's my honest opinion.
16 MR. BRILEY: Would you say it's a pretty strong
17 thing?
18 VENIREPERSON FOSTER: It's not something I
19 couldn't put aside to look at a case. Just everything
20 that I've seen plays on what I feel right now and your
21 question. It's not that -- if they don't prove beyond a
22 reasonable doubt, they don't prove it. And then I would
23 vote to show not guilty.
24 MR. BRILEY: Okay. Would you say just the
25 allegation, the fact that he's here, is in your mind a
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1 little bit of evidence that's already in your mind?
2 VENIREPERSON FOSTER: Yes. I can't help it.
3 We're being honest here. Maybe it's my 15 years
4 experience as a police officer, but to say that it's even
5 at this point would be a lie.
6 MR. BRILEY: Thank you very much. Who here
7 agrees with Sergeant Foster, that in their mind the
8 State's going to start off a little bit ahead just
9 because of the allegation? Okay. So on the second row,
10 would everybody here say that an innocent person could be
11 brought to trial? Yes? And, Mr. Thomason, I didn't see
12 a hand. Would you say, No, I don't think an innocent
13 person probably could be brought to trial in a resisting
14 case?
15 VENIREPERSON THOMASON: You know, you are
16 innocent until proven guilty, but I'm not really a
17 hundred percent sure how that whole process is going to
18 work. But I mean if it comes to something whether you
19 stole a piece of candy from the store or you didn't
20 cooperate with the officer when he was trying to do his
21 job, you know, I mean I guess I would kind of go along
22 with what Officer Foster is saying, you know. If it
23 comes, you know, all the way through here, there would
24 probably be, you know, just that inkling of, you know,
25 well if it's come this far, you know, he might be.
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1 But for me, I would have to go with what the
2 evidence is telling me, go with what the witnesses there
3 are and judge based off the witnesses' testimony on that.
4 So I'm kind of, you know, in between here on something
5 like that, but until I was able to hear all the evidence
6 and/or see all the evidence and hear the witness's
7 statements, I don't know if I'd be able to give an
8 accurate assessment of that whole process until I was
9 able to hear it.
10 MR. BRILEY: Okay. Well, you know, and if the
11 judge -- let's say that you're chosen as a juror and the
12 judge instructs you that Mr. Roberson is presumed
13 innocent and that the allegation is not to be used
14 against him, that's what the law says. But is your
15 opinion something different, and is it strong enough that
16 you could not put that aside?
17 VENIREPERSON THOMASON: Well, like I said a
18 while ago, I do believe that you are innocent until
19 you've been proven otherwise. So if the judge told me to
20 set aside, you know, the fact that he is here and whether
21 he could be guilty or not, you know, I would set that
22 aside and, you know, really focus on the evidence, focus
23 on the witness's statements and determine for myself
24 based on those whether he's innocent or not.
25 MR. BRILEY: Okay. Thank you very much. On
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1 that third row, with a show of hands, who here believes
2 that an innocent person could be brought to trial for
3 resisting arrest? That's everybody. Thank y'all very
4 much.
5 This is where it's going to get tricky. I'm
6 going to go down the row and ask each person for a
7 number, and that number corresponds to an answer. The
8 question -- I'll repeat it a couple times -- is "If the
9 police charge a person with resisting arrest, that person
10 is probably guilty." The first answer is, "I strongly
11 agree."
12 VENIREPERSON LITTEKEN: I'm sorry. I didn't
13 hear what you said. I can't hear.
14 MR. BRILEY: The statement is: "If the police
15 charge a person with resisting arrest, that person is
16 probably guilty." And there's six answers, and the first
17 one would be, "I strongly agree with that statement."
18 The second one would be, "I agree with that statement."
19 The third would be, "I slightly agree with that
20 statement." The fourth would be, "I slightly disagree
21 with that statement." The fifth is, "I disagree with
22 that statement." And the sixth is, "I strongly disagree
23 with that statement." Is everybody -- do y'all have a
24 number in your mind? If I could just go down the line
25 here. Juror No. 1, Ms. Taylor?
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1 VENIREPERSON TAYLOR: Uh-huh.
2 MR. BRILEY: Could you --
3 VENIREPERSON TAYLOR: Three.
4 MR. BRILEY: Three, okay. And, Mr. Teakell?
5 VENIREPERSON TEAKELL: Two.
6 MR. BRILEY: Mrs. Wright?
7 VENIREPERSON WRIGHT: Two.
8 MR. BRILEY: Ms. Hair?
9 VENIREPERSON HAIR: Two.
10 MR. BRILEY: Mr. Garcia?
11 VENIREPERSON GARCIA: Four.
12 MR. BRILEY: Mr. Foster?
13 VENIREPERSON FOSTER: The one that's the
14 strongest?
15 MR. BRILEY: Yes.
16 VENIREPERSON FOSTER: One.
17 MR. BRILEY: Mr. Billing?
18 VENIREPERSON BILLING: Three.
19 MR. BRILEY: Ms. Vale?
20 VENIREPERSON VALE: Three.
21 MR. BRILEY: And I'll go back down to No. 9.
22 Mr. Litteken?
23 VENIREPERSON LITTEKEN: Four.
24 MR. BRILEY: Mr. Vasquez?
25 VENIREPERSON VASQUEZ: Three.
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1 MR. BRILEY: Mr. Thomason?
2 VENIREPERSON THOMASON: Three.
3 MR. BRILEY: Ms. McClesky?
4 VENIREPERSON MCCLESKY: Three.
5 MR. BRILEY: Ms. Schmidt?
6 VENIREPERSON SCHMIDT: Three.
7 MR. BRILEY: Mr. Jantz?
8 VENIREPERSON JANTZ: Five.
9 MR. BRILEY: Ms. Steele?
10 VENIREPERSON STEELE: Two.
11 MR. BRILEY: Ms. McKinley?
12 VENIREPERSON MCKINLEY: Four.
13 MR. BRILEY: Mr. Chavez?
14 VENIREPERSON CHAVEZ: Two.
15 MR. BRILEY: Mr. Young?
16 VENIREPERSON YOUNG: Four.
17 MR. BRILEY: Mr. Logsdon? I'm sorry,
18 Ms. Logsdon?
19 VENIREPERSON LOGSDON: Three.
20 MR. BRILEY: Ms. Ripperger?
21 VENIREPERSON RIPPERGER: Two.
22 MR. BRILEY: Ms. Trejo?
23 VENIREPERSON TREJO: Four.
24 MR. BRILEY: Ms. Parsons?
25 VENIREPERSON PARSONS: Three.
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1 MR. BRILEY: And Davis?
2 VENIREPERSON DAVIS: Two.
3 MR. BRILEY: Thank you. I'll come back and I'll
4 probably follow up with that toward the end of my jury
5 selection presentation.
6 The fourth topic that I want to talk to y'all
7 about is witness credibility. Like the State went over,
8 a juror has the right to believe all, part or none of the
9 testimony of any witness that takes the stand. But that
10 witness credibility comes from the stand. It shouldn't
11 be something that you already assign to a person before
12 they take the stand. We talked about police officers.
13 Many people -- some people hold police officers in high
14 esteem, but the law is going to require that you assess
15 their credibility from the stand.
16 Sergeant Foster, I believe that you told the
17 State that -- and correct me if I'm wrong; I could have
18 easily have gotten it wrong -- that you are going to
19 assess their credibility from the stand, but you might
20 consider their training and experience before they take
21 the stand because you know them as, one, being a police
22 officer, which you know what goes into that, and, two,
23 you might know some of these police officers.
24 VENIREPERSON FOSTER: Right. I don't see how
25 you get around not taking into account their training and
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1 experience. And I just want to be clear. It doesn't
2 matter if it's a police officer up there or not. If -- I
3 have -- it's just like me as a sergeant dealing with
4 officers. You know, I -- I'm objective and I look at
5 both sides, and then I formulate my decision on what I'm
6 gonna do. The same way with somebody on the stand,
7 regardless if it's an officer or not, what they say, if
8 there's no contradiction, stuff just like we talked about
9 with body language, stuff like that, it applies to that
10 side, also. I just want to be clear on that.
11 MR. BRILEY: Thank you.
12 VENIREPERSON FOSTER: Did I answer your
13 question?
14 MR. BRILEY: I think you did answer my question.
15 But if police officers take the stand, are you going to
16 assign them even a little bit of credibility just on
17 their training and experience? You're going to assume
18 that they have certain training and experience?
19 VENIREPERSON FOSTER: Right. If you're dealing
20 with this case of resisting arrest. You have an officer,
21 obviously, that was right there seeing everything happen,
22 probably multiple officers who are trained from the
23 get-go of noting things, you know, just more than, I
24 would think, than the average person.
25 MR. BRILEY: But you're going to give them, I
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1 guess, the benefit of the doubt that they already have
2 that training before they even take the stand?
3 VENIREPERSON FOSTER: Well, every person on that
4 screen that you put up there is a Wichita Falls police
5 officer. I'm fully aware of their training. I'm also a
6 field training sergeant, so I understand completely with
7 having been part of that process, the field training
8 process. So I know once they get cut loose and on their
9 own, I have an understanding of what they've been through
10 to get to that point. So maybe if it was an outside
11 agency, I'm not real familiar with their training. A lot
12 of times I've had experience with those people you put on
13 the screen in working with them. So I know what all they
14 do and training and everything like that. All that
15 together, you know. So --
16 MR. BRILEY: Okay.
17 VENIREPERSON FOSTER: I can't discount that. I
18 mean it's -- now, I'll still analyze what they say and
19 see if it meets with what was presented as evidence. And
20 to me it's no different than what I'm doing when I'm
21 checking a report at the end of a shift for an arrest
22 that I have to sign off on a probable cause. I have sent
23 people back to jail and dropped charges on people because
24 they didn't meet probable cause. I'm not afraid to work
25 either side.
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1 MR. BRILEY: Okay. Thank you very much. And
2 this is my second perhaps confusing question because it's
3 not up on the screen. But my question or my statement, I
4 suppose, is, "I will start a police officer off with
5 added credibility before hearing his or her testimony."
6 And the answers are the same. No. 1, "I strongly agree";
7 No. 2, "I agree;" No. 3, "I slightly agree;" No. 4,
8 "Slightly disagree;" No. 5, "Disagree;" and No. 6,
9 "Strongly disagree." And if I could go down the line
10 again.
11 VENIREPERSON FOSTER: I've got a question.
12 MR. BRILEY: Yes, sir.
13 VENIREPERSON FOSTER: I don't know if everybody
14 else remembered the slide, but the State put a slide up
15 there. And that's when I got hung up on I was trying to
16 decipher, okay, are you talking about a bias or are you
17 talking about training and experience? And if I remember
18 your slide right, the very first one was assigning more
19 or less credibility to a police officer, and the second
20 one you put up there was taking into account their
21 training and experience. Which -- is that what we're
22 talking about, or are we talking about -- is your
23 question better put, Am I going to be biased towards him
24 since he's an officer? Or are we talking about an actual
25 question of, Am I going to take into account his training
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1 and experience? Which to me is two different things.
2 MR. BRILEY: Well, I think my question would
3 include both of those things. Many people may have
4 police officers in their families here. And so that
5 might, one, create a bias towards I believe police
6 officers are going to be truth tellers; and, second, that
7 they have certain training and experience before we ever
8 hear what kind of training they have, what kind of
9 experience they have. Just being in uniform, you might
10 assign them credibility both in their knowledge and
11 experience and training. And, also, you know, any kind
12 of bias toward -- you know, I have the utmost respect for
13 police officers and I believe that they always tell the
14 truth. By the way, will you say that police officers
15 sometimes lie?
16 VENIREPERSON FOSTER: Will I say that? Yeah,
17 that's human nature type stuff right there. I mean
18 that's -- I would like to say that our HC does a good job
19 of getting rid of those kind of people. Yeah, it
20 happens. I guess I'm going to have to hear the
21 questions, how you're putting the questions. Because I
22 separate the two. That's why -- you remember me asking
23 that? What are we talking about, because I'm confused.
24 If you get up there and you ask them about their training
25 and experience, are you not supposed to take that into
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1 consideration when they're telling us what they saw and
2 stuff?
3 THE COURT: Will you approach, please? I think
4 I have a solution for this.
5 (At the bench, off the record)
6 MR. BRILEY: I'm sorry about the confusion,
7 everybody. So let me rephrase my question. I suppose
8 the statement is, "I'm going to assign more credibility
9 before I ever hear the police officer simply because of
10 the fact that he wears a police officer's uniform and a
11 badge and that he is a police officer." So before we
12 hear them testify at all, I'm going to assign them more
13 credibility because they are a police officer? And No. 1
14 is, "I strongly agree with that statement;" No. 2 is
15 "Agree;" No. 3 is, "Slightly agree;" four is "Slightly
16 disagree;" five is, "Disagree;" and six is, "Strongly
17 disagree." Everybody got a number in mind? Ms. Taylor,
18 what would you say?
19 VENIREPERSON TAYLOR: Two.
20 MR. BRILEY: And Mr. Teakell?
21 VENIREPERSON TEAKELL: Two.
22 MR. BRILEY: And Ms. Wright?
23 VENIREPERSON WRIGHT: Two.
24 MR. BRILEY: Ms. Hair?
25 VENIREPERSON HAIR: Two.
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1 MR. BRILEY: And Mr. Garcia?
2 VENIREPERSON GARCIA: Two.
3 MR. BRILEY: Mr. Foster?
4 VENIREPERSON FOSTER: Three.
5 MR. BRILEY: And Mr. Billing?
6 VENIREPERSON BILLING: Two.
7 MR. BRILEY: Ms. Vale?
8 VENIREPERSON VALE: Two.
9 MR. BRILEY: And Mr. Litteken?
10 VENIREPERSON LITTEKEN: Four.
11 MR. BRILEY: Mr. Vasquez?
12 VENIREPERSON VASQUEZ: Three.
13 MR. BRILEY: Mr. Thomason?
14 VENIREPERSON THOMASON: Three.
15 MR. BRILEY: Ms. McClesky?
16 VENIREPERSON MCCLESKY: Three.
17 MR. BRILEY: Ms. Schmidt?
18 VENIREPERSON SCHMIDT: Five.
19 MR. BRILEY: Mr. Jantz?
20 VENIREPERSON JANTZ: Four.
21 MR. BRILEY: Ms. Steele?
22 VENIREPERSON STEELE: Two.
23 MR. BRILEY: Ms. McKinley?
24 VENIREPERSON MCKINLEY: Four.
25 MR. BRILEY: Mr. Chavez?
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1 VENIREPERSON CHAVEZ: Two.
2 MR. BRILEY: Mr. Young?
3 VENIREPERSON YOUNG: Four.
4 MR. BRILEY: Ms. Logsdon?
5 VENIREPERSON LOGSDON: Four.
6 MR. BRILEY: Ripperger?
7 VENIREPERSON RIPPERGER: Three.
8 MR. BRILEY: And Ms. Trejo?
9 VENIREPERSON TREJO: Four.
10 MR. BRILEY: And Ms. Parsons?
11 VENIREPERSON PARSONS: Three.
12 MR. BRILEY: And Mr. Davis?
13 THE REPORTER: I'm sorry. What was Mr. Davis'
14 answer?
15 MR. BRILEY: Mr. Davis was two.
16 THE REPORTER: Two.
17 MR. BRILEY: Okay. Let me go down the first row
18 here. Ms. Taylor, do you agree that you would start off
19 a police officer with added credibility before he took
20 the stand and spoke anything, right?
21 VENIREPERSON TAYLOR: Uh-huh.
22 MR. BRILEY: And my question now, I suppose, is
23 if the judge tells you that the law says something
24 different -- you're familiar with police officers.
25 VENIREPERSON TAYLOR: Uh-huh.
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1 MR. BRILEY: That may be why you give them added
2 credibility. Do you think that's something you could put
3 aside, or are your feelings so strong that you would say,
4 No, I'm still going to give them added credibility even
5 if the judge says, you know, the law is something
6 different?
7 VENIREPERSON TAYLOR: No, I could put it aside
8 because, you know, like he was saying, there's good cops
9 and there's bad ones. So I just -- I think it would just
10 depend with me what was said, too, you know. I mean,
11 yeah, would start off thinking they know a lot because
12 like, you know, with my family, I know what they go
13 through, the training and their experience and
14 everything. But then it would ultimately matter to me,
15 you know, actually what they did say.
16 MR. BRILEY: Okay.
17 VENIREPERSON TAYLOR: And with everything else
18 into account, you know, the witnesses and all that. Did
19 I answer that, or did I get off of that?
20 MR. BRILEY: You answered it, but I heard two
21 things.
22 VENIREPERSON TAYLOR: Okay.
23 MR. BRILEY: You know, thank you very much for
24 your answer, but --
25 VENIREPERSON TAYLOR: Just to be sure, I mean
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1 I'm more -- I more lean towards their experience. I mean
2 that's what they do. That's their living. They do this
3 every day. Like my brother-in-law was like a detective.
4 They read people and they -- I just -- I just go more
5 with that, you know, with their experience.
6 MR. BRILEY: And I heard that you could put it
7 aside, but it was -- but you also said, you know, after
8 you heard some of what they said -- and what the rule, I
9 suppose, is going to be is that before --
10 VENIREPERSON TAYLOR: Well, I mean you're asking
11 me -- I have the previous -- yes, I do believe when I'm
12 probably going in that I am a little more on the side
13 with the law enforcement, but I wouldn't make a decision
14 just on that. I would weigh in what -- everything I
15 heard. But I do -- I do have a preconceived idea before
16 because if they're going to, you know, bring an
17 experienced person in, I'm gonna think they're really
18 experienced in that area, you know. Does that make
19 sense?
20 MR. BRILEY: Yes, I appreciate that.
21 VENIREPERSON TAYLOR: Okay.
22 MR. BRILEY: But would you say that even
23 starting off, before the officer testifies, you would
24 probably have a little bit --
25 VENIREPERSON TAYLOR: I'd probably have some,
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1 yeah, I will.
2 MR. BRILEY: -- a little bit of added
3 credibility?
4 VENIREPERSON TAYLOR: Yeah, I do. Yeah.
5 MR. BRILEY: Okay. And if the judge said that
6 you can't do that; you have to put that aside, do you
7 think that that's still going to be there in the back of
8 your mind? You're going to give them a little bit more
9 credibility?
10 VENIREPERSON TAYLOR: Well, I don't know. I've
11 never had to do this. I've never had to do it. I mean I
12 would hope that I would do what the judge told me to do
13 and I would try.
14 MR. BRILEY: Okay.
15 VENIREPERSON TAYLOR: But --
16 MR. BRILEY: Okay. Thank you.
17 VENIREPERSON TAYLOR: I can't say as a matter of
18 fact. I've mean I've never done it so I don't know. I
19 don't have any experience at doing that.
20 MR. BRILEY: Okay. Thank you, Ms. Taylor.
21 VENIREPERSON TAYLOR: Okay.
22 MR. BRILEY: Mr. Teakell, you also agreed that
23 you would give the police officer added credibility
24 before he took the stand. And, again, if the judge tells
25 the jury that's --
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1 VENIREPERSON TEAKELL: I can go along with what
2 the judge says.
3 MR. BRILEY: Okay.
4 VENIREPERSON TEAKELL: But I've been brought up
5 all my life to respect officers because they put a badge
6 on and take an oath. And that's just the way I feel.
7 And if the judge says take that out, I can. But in the
8 back of my mind, I respect the police department.
9 MR. BRILEY: Well, and the question is would you
10 give them added credibility? Would you say that your
11 opinion that you're going to give them added credibility
12 is pretty strong?
13 VENIREPERSON TEAKELL: I would think so.
14 MR. BRILEY: And if the judge asks you to put
15 that opinion aside, can you do that?
16 VENIREPERSON TEAKELL: I can do it, yeah.
17 MR. BRILEY: Thank you. Ms. Wright, you also
18 agreed with that statement, and you have an opinion that
19 you might start off a police officer with added
20 credibility. Is that something you can put aside, or is
21 that going to be something that remains?
22 VENIREPERSON WRIGHT: No, I could put it aside,
23 you know, if that's something that, again, they stated
24 that the judge order ordered us to do. But I just think
25 in general probably the notion is that most of us -- my
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1 opinion is citizens feel like we should be able to trust
2 police officers and those that protect us. So I -- not
3 knowing a lot of the training and stuff that goes on
4 behind the scenes or prior to, I can't weigh that in.
5 And I don't have anybody in my family that's a police
6 officer or anything like that, so I mean I think I could
7 be partial, I mean not one side or the other, I guess, if
8 you will.
9 MR. BRILEY: Okay.
10 VENIREPERSON WRIGHT: Does that make sense?
11 MR. BRILEY: Yes, it does. Okay. Ms. Hair, you
12 also agreed with that statement. Would you say that you
13 could put that opinion that you're going to start a
14 police officer with added credibility aside, or is that
15 something that, you know, is a strong enough opinion that
16 you probably couldn't put that aside?
17 VENIREPERSON HAIR: Yes, I could put it to the
18 side. There's good cops and there's bad cops. I would
19 listen to both sides. I wouldn't just automatically go
20 to one side. I could put it aside.
21 MS. KUCERA: Judge, can we approach?
22 (At the bench, off the record)
23 MR. BRILEY: Mr. Garcia, you also agreed that,
24 you know, just because a police officer is in a uniform
25 or badge, you might give them added credibility before
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1 they took the stand?
2 VENIREPERSON GARCIA: Right, because there's a
3 certain respect that. But I could -- you know, if you
4 can't do that, you can't do that.
5 MR. BRILEY: Okay. Thank you. Sergeant Foster,
6 you said you slightly agree with that statement?
7 VENIREPERSON FOSTER: Right. We're talking
8 about -- you said credibility, added credibility. I want
9 to clarify again on that because I think we've gone back
10 to the original question, and that is what I'm having a
11 problem with resorting back to that. To answer your
12 question, if somebody's in a uniform, just the mere fact
13 that they wear a uniform and a badge, it's the slightly,
14 if I remember right. It's just a little bit just like I
15 felt with the D. A.'s office, just a little bit is why I
16 slightly agree with that. Now, if you're going to use
17 added credibility by being a police officer, then you
18 take into account the credibility and experience, and my
19 number would probably be higher if you're going to
20 include that.
21 MR. BRILEY: Okay. Mr. Billing?
22 VENIREPERSON BILLING: I'd give them a slight
23 edge on credibility just due to the nature of their job,
24 put them in the same category as firemen, those people
25 that serve in the military, just the risks that they take
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1 with their job. So right off the bat, I give them more
2 credibility.
3 MR. BRILEY: Okay.
4 VENIREPERSON billing: But I could set that
5 aside. The individual is presumed innocent until proven
6 guilty.
7 MR. BRILEY: So if the judge instructed you, do
8 you think that you could put that opinion aside?
9 VENIREPERSON BILLING: Yeah.
10 MR. BRILEY: And judge their credibility only
11 from the stand?
12 VENIREPERSON BILLING: Yeah.
13 MR. BRILEY: Ms. Vale?
14 VENIREPERSON VALE: Yes, I could set it aside
15 and just base it on the facts and put my faith in the
16 process.
17 MR. BRILEY: Okay. Thank you. Actually, let me
18 skip to Ms. Steele. You said that you agree with the
19 fact that you would give a police officer added
20 credibility just because of the fact that he's in a
21 uniform and badge before he takes the stand?
22 VENIREPERSON STEELE: Yes.
23 MR. BRILEY: Are you saying that could you put
24 that aside if the judge asked you, or is that a pretty
25 strong opinion and you're probably going to give them
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1 added credibility before they take the stand even if the
2 judge tells you differently?
3 VENIREPERSON STEELE: I could put it aside.
4 MR. BRILEY: Thank you. Carlos Chavez, would
5 you say that your opinion is strong enough that you
6 couldn't put it aside, or if the judge told you to judge
7 the credibility only from the stand?
8 VENIREPERSON CHAVEZ: I could put it aside.
9 MR. BRILEY: You could put it aside?
10 VENIREPERSON CHAVEZ: Yes.
11 MR. BRILEY: Okay. Thank you. I'll move on to
12 my next question. Actually, it's a new topic. That's
13 the standards of proof. Mr. Billing let us know that in
14 this case the State is going to have to prove beyond a
15 reasonable doubt every element of the crime. There's
16 other standards of proof such as reasonable suspicion,
17 probable cause, preponderance of the evidence, and clear
18 and convincing evidence. And those are all in order up
19 to the highest, which is beyond a reasonable doubt.
20 Sergeant Foster, could I pick on you, I suppose, and use
21 your knowledge?
22 VENIREPERSON FOSTER: Sure.
23 MR. BRILEY: Could you tell us about reasonable
24 suspicion a little bit?
25 VENIREPERSON FOSTER: Well, it's like having --
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1 say I work third shift, and there's a business closed and
2 I see somebody walking around behind the building, and I
3 have a reasonable suspicion at that point that he's
4 probably committing a crime like burglary or some kind of
5 theft or something like that, which would give me enough
6 to detain him to either prove or disprove if you get to
7 the point of probable cause and that stuff.
8 MR. BRILEY: Okay. And then let's say that you
9 investigated and you found some additional facts and that
10 gave you probable cause that the crime had been
11 committed, what could you do then?
12 VENIREPERSON FOSTER: Make an arrest.
13 MR. BRILEY: Okay. Thank you. After a
14 reasonable suspicion and probable cause, the next
15 standard of proof that the law provides is -- or at least
16 one of them is by a preponderance of the evidence. And
17 that would be something that we use in civil cases, and
18 that would be a case where like one side versus the other
19 and whose case is more likely than not. Perhaps at the
20 end of the trial you wouldn't have a firm belief to
21 either one of them, but it's more likely than not. And
22 that would be preponderance of the evidence.
23 I don't know that that alone makes sense. Does
24 that make sense to you, Mr. Billing?
25 VENIREPERSON BILLING: Yes.
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1 MR. BRILEY: Okay. Does anybody have a question
2 on that? Okay. Like I said, that would be used in civil
3 trials. The next thing would be clear and convincing
4 evidence. The best example of that would be if the State
5 was going to come and take somebody's children away, they
6 would need clear and convincing evidence of their
7 allegations. And the definition for that is that the
8 proof would have to be so much to produce in the mind of
9 the trier of fact or the jury or the judge that it would
10 produce a firm belief as to the allegations, that the
11 allegations were true. So they have to produce enough
12 evidence to give you a firm belief that those allegations
13 are true.
14 And the reason I bring all this up is I kind of
15 want to compare that with beyond a reasonable doubt,
16 since we can't tell you what beyond a reasonable
17 doubt is. We don't have a definition. Like the State
18 said, what's reasonable to one person might be different
19 than another person's, so we don't have a definition of
20 beyond a reasonable doubt. But we do know that it's
21 higher than clear and convincing evidence, and we know
22 that that is enough evidence that would produce in your
23 mind a firm belief.
24 So I suppose my question is -- Ms. Vale, can I
25 ask you this question? Could you imagine a situation
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1 where you firmly believe something but still have a
2 reasonable doubt as to the allegation?
3 VENIREPERSON VALE: It's hard. I'd have to have
4 all the facts. I'm a facts person. I'm a trained person
5 with the government, so based on facts and processes.
6 Yeah.
7 MR. BRILEY: I suppose -- have you ever seen a
8 news story where maybe you haven't seen the trial, you
9 haven't heard all the facts?
10 VENIREPERSON VALE: Right.
11 MR. BRILEY: But you've heard a little bit, and
12 you firmly believe something happened.
13 VENIREPERSON VALE: Like the Trevon Martin case
14 or any of the special cases that you hear on the media or
15 stuff? It's not enough for me to make a decision on
16 unless I'm there listening to all the facts. I'm a facts
17 person.
18 MR. BRILEY: Thank you.
19 VENIREPERSON VALE: Uh-huh.
20 MR. BRILEY: Is there anybody here who would say
21 on the first row that, you know, they couldn't
22 differentiate between that. If I firmly believed
23 something, if they prove something enough that I firmly
24 believe it, it wouldn't be possible for me to have a
25 reasonable doubt? Anybody here?
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1 VENIREPERSON FOSTER: Say it again.
2 MR. BRILEY: Actually, let me ask it this way.
3 Who here on the first row would say, yes, to the
4 statement, I could firmly believe something and still
5 have a reasonable doubt? So how about no to that
6 answer? Everybody said no. Okay. And, you know, the
7 State gave the situation of the Friends picture. And my
8 example, there's been times where I've parked in the
9 garage and I'm heading to work and I get halfway down the
10 street and I start to think, did I close the garage door,
11 did I not close the garage door. Anybody had that
12 experience? There are times where I may firmly believe
13 that I did close the garage door, but I have enough of a
14 hesitation, I have enough of a reasonable doubt to say I
15 might need to turn back and actually go see if the garage
16 door actually closed. Most of the times the garage is
17 closed. There have been a couple of times where it
18 hasn't been, and I'm glad I did turn back. That's where
19 clear and convincing evidence where you have a firm
20 belief of something to beyond a reasonable doubt where
21 you still may have a reasonable doubt.
22 Does anybody have any questions about that?
23 Sorry if I made it confusing. Well, that -- that's all
24 the questions that I have for you. Thank y'all very much
25 for your time and attention.
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1 THE COURT: All right. Ladies and gentlemen,
2 that was the conclusion of the voir dire process. This
3 will take a few minutes. There will be some of you that
4 will be called back in to clarify possibly some of your
5 answers, so they can exercise their strikes after that.
6 This process will take a little bit longer, usually about
7 30 minutes. But in the meantime, like I said, people
8 will be coming back in. I think there are some we need
9 to call back in. And then once we get done with that,
10 they're gonna exercise their strikes; I'll bring you back
11 in and let you know who the lucky six are like I said
12 before; and then at that time I'll be able to release the
13 rest of you.
14 So this will be a little bit longer delay, but
15 it's worth it to all of you except six. So if you'll
16 just have a seat out in the hall, go to the restroom,
17 whatever you need to do, and we'll bring you back in.
18 When you come back in, you don't need to sit in any
19 order, either. Thank you.
20 (Open court, defendant present, no panel)
21 I'll start with the State. Is there anybody
22 that you think we need to bring back in to clear up?
23 MS. HONEY: Can we bring in juror No. 6?
24 THE COURT: Juror No. who?
25 MS. HONEY: Six, Mr. Foster.
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1 THE COURT: Really? You can, that's fine.
2 MR. BRILEY: From the defense, just 1 and 3.
3 THE COURT: That's one of the ones I had. Okay.
4 Just one and three and six. Okay. Ms. Taylor, please.
5 THE BAILIFF: No. 1?
6 THE COURT: No. 1.
7 THE BAILIFF: Cheryl Taylor? Ms. Taylor? And
8 you can go up on the front bench.
9 THE COURT: Yeah, you can just stand right up
10 here, Ms. Taylor, or you can sit if you'd like. This is
11 a little bit less formal here.
12 VENIREPERSON TAYLOR: Okay.
13 THE COURT: There were some questions with
14 regard to your answers.
15 VENIREPERSON TAYLOR: Okay.
16 THE COURT: Unfortunately, in this process,
17 sometimes your answers have to be yes or no. So I
18 understand the difficulty with it, especially with the
19 areas that we're dealing with.
20 VENIREPERSON TAYLOR: Yes.
21 THE COURT: But, unfortunately, we have to kind
22 of narrow it down. Mr. Briley, you wanted Ms. Taylor?
23 MR. BRILEY: Ms. Taylor, we talked about you
24 having feelings for police officers and you may give them
25 added credibility before they take the stand. And you
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1 would try to set that aside, but you wouldn't -- I'm not
2 trying to put words in your mouth.
3 VENIREPERSON TAYLOR: Yes.
4 MR. BRILEY: But you may not be able to put
5 those feelings aside. And we're just trying to get a yes
6 or no.
7 VENIREPERSON TAYLOR: Well, I would honor the
8 judge if that's what he told me to do. You know, I would
9 do that. But -- yes.
10 MR. BRILEY: I know you want to follow.
11 VENIREPERSON TAYLOR: Yes.
12 THE COURT: Yes, that you would set it aside?
13 VENIREPERSON TAYLOR: Yes, because I would want
14 to do what I was -- what you would want me to do.
15 MR. BRILEY: I know that you want to follow the
16 rules --
17 VENIREPERSON TAYLOR: Yes.
18 MR. BRILEY: And I'm not saying anything about
19 that. But you might have feelings so strong that it
20 might not be possible.
21 VENIREPERSON TAYLOR: Well, you know, I do
22 respect law enforcement. I think they're, you know,
23 they're authoritive. And I know in courts that's the
24 reason they bring in specialists or doctors or, you know,
25 people, you know, that have experience in that particular
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1 area. And that's -- you know, we kind of think, well,
2 they know something or they wouldn't be bringing them in.
3 That's kind of just my -- you know, what I think, but --
4 THE COURT: Let me ask it this way. You're
5 going to have possibly in this trial witnesses that are
6 officers and witnesses that are not officers.
7 VENIREPERSON TAYLOR: Yes, uh-huh.
8 THE COURT: When they take the stand, you know
9 nothing about them, either one.
10 VENIREPERSON TAYLOR: Uh-huh.
11 THE COURT: You have no idea what their
12 experience may be.
13 VENIREPERSON TAYLOR: Yes.
14 THE COURT: Are you going to assign the officer
15 extra credibility, before you hear any testimony at all,
16 over a layperson, a normal person, simply because he
17 takes the stand wearing a badge and a uniform?
18 VENIREPERSON TAYLOR: I don't know how to ask --
19 I don't -- I want to be truthful, but I don't --
20 THE COURT: You haven't heard anything about his
21 experience. You haven't heard anything about his
22 training.
23 VENIREPERSON TAYLOR: If I don't know anything
24 about his experience -- because you're gonna bring in the
25 ones that was actually -- you had listed on the thing?
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1 THE COURT: That's them. They will, possibly.
2 VENIREPERSON TAYLOR: Oh. I mean the ones to
3 see if we knew or not.
4 THE COURT: But what I'm saying is before they
5 even start testifying, you know nothing about his
6 experience.
7 VENIREPERSON TAYLOR: Uh-huh.
8 THE COURT: You know nothing about his training,
9 who trained him, how he was trained, what he was trained
10 in. He walks in just like any other person. The only
11 difference is he wears a badge and possibly a uniform.
12 Are you going to give that person extra credibility
13 simply because he is an officer? There's no wrong
14 answer, so either way.
15 VENIREPERSON TAYLOR: I know. I know. I just
16 want to be truthful. I'll say no, but because, like you
17 said, I think they have some credibility and experience
18 or they wouldn't be there. But, like you say, I don't
19 know the individual policeman or whoever, so I don't know
20 how much credibility they do have.
21 THE COURT: Okay.
22 VENIREPERSON TAYLOR: Did I -- I don't know. I
23 guess I don't really know how to answer it.
24 THE COURT: I understand.
25 VENIREPERSON TAYLOR: You know, so I'm -- I was
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1 brought up to respect officers and --
2 THE COURT: There's a difference between
3 respecting somebody and giving them credibility.
4 VENIREPERSON TAYLOR: I know, but, you know, I
5 -- that's their job and I just think most of them, I
6 think, are credible. But, like you say, the particular
7 ones, I don't know. So I would have to put it aside
8 because I don't know that individual, how credible he is,
9 until he testified or whatever.
10 MS. KUCERA: I think everyone understands what
11 you're saying, so, one, thank you for being honest. We
12 appreciate that because it makes our jobs a little
13 easier. What we're asking is -- what my slide said was,
14 you know, officers, obviously, we understand that they go
15 through certain training and experience, right?
16 VENIREPERSON TAYLOR: Uh-huh.
17 MS. KUCERA: What we're asking you to do is --
18 let's say the officer, before you hear anything about --
19 he could have one day of training or he could have 15
20 years, okay.
21 VENIREPERSON TAYLOR: Uh-huh.
22 MS. KUCERA: Before we talk about anything in
23 his training and experience, if he gets on the stand, it
24 sounds to me like you're saying if the judge tells you
25 you can't automatically assume he's telling the truth
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1 before he gets on the stand, then as long as you can wait
2 until you hear what he has to say and what his training
3 and experience is, is that -- do you understand what I'm
4 saying? That you can wait until he gets on the stand
5 before you evaluate his training and his experience, his
6 demeanor, like we talked about. Do you think you could
7 do that?
8 VENIREPERSON TAYLOR: Yes. I would have to wait
9 till after he told what experience they had. But then
10 after he did that, I might have some -- is that wrong?
11 MS. KUCERA: The law says you can, when you're
12 evaluating what he's saying, you can consider that he's
13 had this much training or this much experience. You can
14 consider that when you're evaluating his ability to tell
15 the truth. We talked about demeanor and is he consistent
16 in what he says. Those are things you can think about
17 and consider. The only thing the law says you can't do
18 is automatically assume he's telling the truth before he
19 ever gets on the stand.
20 VENIREPERSON TAYLOR: I understand.
21 MS. KUCERA: You understand, okay. Do you think
22 you could follow the law in that case? Because the law
23 says --
24 VENIREPERSON TAYLOR: Yes.
25 MS. KUCERA: Okay. You could follow the law?
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1 VENIREPERSON TAYLOR: Yes.
2 THE COURT: Anything further, Mr. Briley?
3 MR. BRILEY: Ma'am, you stated that you had a
4 nephew who works for the Wichita Falls Police
5 Department.
6 VENIREPERSON TAYLOR: Uh-huh.
7 MR. BRILEY: Who is that nephew?
8 VENIREPERSON TAYLOR: Tristan Dosier.
9 MR. BRILEY: Thank you.
10 THE COURT: All right. Okay. Thank you,
11 Ms. Taylor.
12 (Venireperson Taylor exits courtroom)
13 Is there a challenge for cause?
14 MR. BRILEY: Yes.
15 THE COURT: Challenge for cause on the basis
16 of --
17 MR. BRILEY: She would give added credibility to
18 police officers before they take the stand.
19 THE COURT: Challenge for cause denied. Next
20 one would be Karen Wright.
21 THE BAILIFF: Ms. Wright?
22 THE COURT: Hello, Ms. Wright. We wanted to
23 call you back in to try to clarify an answer.
24 VENIREPERSON WRIGHT: Okay.
25 THE COURT: And like I tell people, I know it's
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1 difficult in this situation with some of these
2 concepts -- you can sit down. It's okay. With some of
3 these concepts, it's hard to say yes or no. However, in
4 these situations, sometimes we have to narrow it down to
5 get to a yes or no answer. Mr. Briley, I believe.
6 MR. BRILEY: Yes. Ms. Wright, I think we were
7 pretty clear on the credibility issue, but you also
8 mentioned that you know Officer Iper.
9 VENIREPERSON WRIGHT: I do.
10 MR. BRILEY: How well do you know Officer Iper?
11 VENIREPERSON WRIGHT: Through our kids sports.
12 MR. BRILEY: Okay. Do you think you would give
13 him specifically more credibility before he takes the
14 stand because --
15 VENIREPERSON WRIGHT: No.
16 MR. BRILEY: Thank you.
17 THE COURT: Anything from the State?
18 MS. HONEY: No.
19 THE COURT: Thank you, Ms. Wright.
20 VENIREPERSON WRIGHT: Uh-huh.
21 (Venireperson Wright exits courtroom)
22 THE COURT: Any challenge with regard to
23 Ms. Wright for cause?
24 MR. BRILEY: No, Your Honor.
25 THE COURT: I believe the last one that you were
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1 asking to have brought back in was Sergeant Foster?
2 MS. HONEY: Yeah. You can disregard our
3 request.
4 THE COURT: All right. And I believe,
5 Mr. Briley, you had No. 11?
6 MR. BRILEY: No, I think that's all that we
7 need.
8 THE COURT: Okay. I'm sorry. All right.
9 Mr. Briley, do you have your challenges for cause ready?
10 MS. HONEY: There are none from the State.
11 MR. BRILEY: Just No. 6.
12 THE COURT: No. 6 challenge for cause will be
13 granted. All right. So let me see if I got this
14 straight. There's a challenge for cause on Ms. Taylor.
15 I believe that was denied. Challenge for cause on
16 Ms. Wright. There was a challenge for cause on Sergeant
17 Foster, correct? That was granted. No other challenges
18 for cause by either the State or defense?
19 MS. HONEY: No, Your Honor.
20 THE COURT: Good. How long do you need to make
21 your strikes? Ten minutes?
22 MS. HONEY: Yes.
23 THE COURT: Three strikes each. Let's see if we
24 can get it done in 10 minutes. Off the record.
25 (Preemptory strikes exercised)
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1 (Open Court, defendant present, no panel)
2 THE COURT: Let's go back on the record now in
3 Cause No. 58017-E. State's present; defendant's present;
4 defendant's attorney is present, outside the presence of
5 the venire panel. The State and the defense have been
6 given time to exercise their strikes. Has the State got
7 theirs and the defense? If you would hand them to me,
8 please. All right.
9 The State has struck Anthony Garcia, No. 5;
10 Gerald Litteken, No. 9; and Thomas Vasquez, No. 10. The
11 defense has struck No. 1, Cheryl Taylor; No. 2, Ronnie
12 Teakell; No. 7, Douglas Billing, leaving us with a jury
13 of -- keep up and make sure I've got this right -- No. 3,
14 Karen Wright; No. 4, Jamie Hair; No. 8, Eileen -- is it
15 Vale? Is that correct?
16 THE BAILIFF: Yes, sir.
17 THE COURT: Okay. No. 11, Tyler Thomason and
18 No. 12, Linda McClesky and No. 13, Tina Schmidt. Is that
19 what y'all have?
20 MS. HONEY: Yes, Your Honor.
21 THE COURT: Mr. Briley, is that correct?
22 MR. BRILEY: Yes, Your Honor.
23 THE COURT: All right. Just so the record is
24 clear, No. 22 was previously stricken by the court or
25 excused by the court and No. 6, Sergeant Foster, the
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1 challenge for cause was granted. Anything further at
2 this time from the defense or the State before we bring
3 the jury back in and seat them?
4 MS. KUCERA: No, Your Honor.
5 MR. BRILEY: No, Your Honor.
6 THE COURT: All right. Let's go off the record.
7 (Discussion off the record)
8 (Open court, defendant and jury panel present)
9 THE COURT: Okay. Y'all be seated, please. All
10 right. As I call your name, will you please come forward
11 and have a seat here in the jury box. Just so the record
12 is clear, back on in this cause, 58071, I believe?
13 58017-E. Venire panel, of course, is back present in the
14 courtroom, defendant, defendant's attorneys, and the
15 State. Let's see. Karen Wright, No. 3. And there's --
16 as you come forward to have a seat in the jury box,
17 there's instructions and a button for you. No. 4, Jamie
18 Hair,; No. 8, Eileen Vale. Did I pronounce your name
19 right? Is it Vale?
20 JUROR VALE: Uh-huh.
21 THE COURT: Okay. Thank you. No. 11, Tyler
22 Thomason; No. 12, Linda McClesky; and finally, No. 13,
23 Tina Schmidt. All right. If each member of the jury
24 will please stand and raise their right hand for me.
25 (The jury was sworn)
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1 THE COURT: All right. Thank you. Be seated,
2 please. All right. That's our lucky six. For everybody
3 else who's here on the panel, I spoke with the district
4 clerk, and me releasing you here today here in just a
5 couple minutes will end your service for the week.
6 There's no other trials starting this week, so you don't
7 have to check back in like you have been doing. I
8 appreciate you being here. I appreciate you going
9 through the voir dire process. I hope it's been somewhat
10 of a learning experience if you've never been through it
11 before.
12 I apologize for all the technical difficulties
13 and the delays we've had today. I try to do things to
14 limit those, but there's always going to be a certain
15 amount of those with this system. Another thing, too, I
16 really appreciate you being here, because you serve a
17 very important role just by sitting through the voir dire
18 process to give these attorneys to question you and your
19 feelings and to seat a jury in this matter. It's
20 important to everybody: The State, the defendant and
21 also the Court. And on behalf of everyone, I thank you
22 for your service and you're released at this time.
23 (Remaining jury panel exits courtroom)
24 (Open court, defendant and jury present)
25
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1 COURT'S INSTRUCTIONS TO JURY
2 THE COURT: All right. Y'all be seated. All
3 right. Ladies and gentlemen of the jury, I'm going to
4 read to you some more instructions. I believe you have a
5 copy in front of you. The first five instructions are
6 the instructions I gave to you previously, so I'm going
7 to start with No. 6.
8 6. Do not investigate this case on your own.
9 For example, do not:
10 A. Try to get any information about the case,
11 the lawyers, the witnesses, or issues from outside this
12 courtroom;
13 B. Go to places mentioned in the case to
14 inspect the places;
15 C. Inspect items mentioned in this case unless
16 they are presented as evidence in court;
17 D. Look anything up in a law book, dictionary,
18 or public record to try to learn more about the case;
19 E. Look up anything on the Internet to try to
20 learn more about the case; or
21 F. Let anyone else do any of these things for
22 you.
23 This rule is very important because we want a
24 trial based only on evidence admitted in open court.
25 Your conclusions about this case must be based only on
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 151
1 what you see and hear in this courtroom because the law
2 does not permit you to base your conclusions on
3 information that has not been presented in open court.
4 All the information must be presented in open court so
5 the parties and their lawyers can test it and object to
6 it if necessary. Information from other sources, such as
7 the Internet, will not go through this important process
8 in the courtroom. In addition, information from other
9 sources could be completely unreliable. As a result, if
10 you investigate this case on your own, you could
11 compromise the fairness to all parties in this case and
12 jeopardize the results of this trial.
13 7. Do not tell the other jurors your own
14 personal experiences or other people's experiences. For
15 example, you may have special knowledge of something in
16 the case, such as technical or professional information.
17 You may even have even have expert knowledge or opinions,
18 or you may know what happened in this case or a similar
19 case. If you have expert knowledge or opinions, you may
20 not share that expert knowledge or those opinions with
21 other jurors and you may not rely on your expert
22 knowledge or opinions in arriving at your verdict. If
23 you share such information or rely on such information,
24 you and the other jurors will be considering things that
25 were not admitted in court.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 152
1 8. I will decide matters of law in this case.
2 It is your duty to listen to and consider the evidence
3 and to determine fact issues that I expect to submit to
4 you at the end of the trial. After you have heard all of
5 the evidence, I will give you instructions to follow as
6 you make your decision. The instructions also will have
7 questions for you to answer.
8 Every juror must obey all the instructions you
9 have received and others that you will be given during
10 the trial. If you do not follow the instructions, you
11 will be guilty of juror misconduct, and I may have to
12 order a new trial and start the process over again. This
13 would waste your time and the parties' money, and would
14 require the taxpayers of the county to pay for another
15 trial.
16 Please keep these instructions and review them
17 as we go through the case. If anyone does not follow
18 these instructions, please tell me."
19 All right. At this time I'll call the State to
20 come forward and read the information.
21 MS. HONEY: May I approach?
22 THE COURT: You may. And if the defendant would
23 please rise.
24 MS. HONEY: "In the name and by the authority of
25 the State of Texas, before me, the undersigned assistant
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 153
1 criminal district attorney of Wichita County, Texas, in
2 behalf of the State of Texas, and presents in and to the
3 County Court At Law 1 of Wichita County, Texas that in
4 Wichita County, Texas, Byrias Robert Roberson, herein
5 after called defendant, on or about the 10th day of July,
6 A. D., 2012, in said county and state, did then and there
7 intentionally prevent or obstruct officer Gabriel
8 Vasquez, a person defendant knew to be a peace officer,
9 from effecting an arrest of the defendant by using force
10 against said peace officer, against the peace and dignity
11 of the state.
12 THE COURT: To that, how does the defendant
13 plead? Guilty or not guilty?
14 THE DEFENDANT: Not guilty.
15 THE COURT: Thank you. Be seated, please. All
16 right. Ladies and gentlemen of the jury, it's about 3
17 o'clock. We've had kind of a rough day going back and
18 forth. So, all right, what I'm gonna do is I'm gonna
19 release you at this time, give you a little bit of an
20 earlier day to make some arrangements hopefully with work
21 or with child care for the next day.
22 Optimistically, we can get this case to you late
23 tomorrow afternoon. Possibly could run into Friday. I
24 would expect it to be done by Friday at noon after
25 talking with the attorneys. So that would be your
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 154
1 service. You're lucky this is not a three-week long
2 products liability trial or something along those lines.
3 So your service will be completed this week.
4 One question I have for you is, typically,
5 courts start at nine o'clock. If you would like to start
6 at 8:30 and get an extra 30 minutes in, those 30 minutes
7 do add up and can help move this along for your
8 convenience. Would you like to start at 8:30, or would
9 you like to start at 9:00? The Court can do whatever
10 y'all would like to do. Let me ask it this way. I'm
11 sorry. Is there anybody who does not want to start at
12 8:30 and would rather start at 9:00? You'd rather start
13 at 9:00? Sometimes it's hard to get here at 8:30, and I
14 understand that, because we have other commitments. So
15 let's do this. We will start with our testimony tomorrow
16 morning, opening statements and then testimony at nine
17 o'clock. The parties and I are going to work for the
18 rest of this afternoon and a little bit earlier than
19 y'all get here in the morning to try to move things along
20 once the trial does get started. Okay?
21 So with that, I'm going to release you today and
22 ask that you be back here about ten till nine tomorrow so
23 we can get started at nine o'clock. Okay. One other
24 thing, I'm sorry. Wear your buttons. It lets everybody
25 know that you're a juror and lets them know that you're
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 155
1 under the rules that we've talked about and that they're
2 not supposed to speak with you or speak about the case in
3 your presence, okay. Thank you very much. We'll see you
4 in the morning.
5 (Open court, defendant present, no jury)
6
7 THE COURT: Back on the record. Ms. Honey, just
8 after we went off the record and released the jury, I
9 believe there was an incident with your investigator?
10 MS. HONEY: Yes, Your Honor. As I was
11 proceeding upstairs to our office, I spoke to our
12 investigator, Donnie Cavinder, and he mistakenly spoke to
13 one of the now jurors in this particular case.
14 THE COURT: Okay. And, Mr. Briley, would you
15 like for Mr. Cavinder to be sworn to testify as to what
16 was said between --
17 MR. BRILEY: Yes, Your Honor.
18 THE COURT: All right. Mr. Cavinder, if you'd
19 raise your right hand for me, please.
20 (Witness sworn)
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 156
1 MR. DONNIE CAVINDER,
2 having been first duly sworn, testified as follows:
3 EXAMINATION
4 BY THE COURT:
5 All right. Mr. Cavinder, an issue has come up
6 that there might have been some contact between you and a
7 juror who was just sworn in; is that correct?
8 INVESTIGATOR CAVINDER: Yes.
9 THE COURT: All right. Could you tell the Court
10 what that contact was, please, in as much detail as you
11 can?
12 INVESTIGATOR CAVINDER: Yes. I left the
13 courtroom prior to the jury being sat and took the
14 equipment back upstairs. As I was coming down the ramp,
15 I noticed a female coming out of the courtroom, which I
16 believed to be Ms. Steele, Juror No. 15, I believe, who
17 had made a comment during voir dire that she recognized
18 me or knew of me or something to that effect.
19 THE COURT: Juror No. -- to be clear for the
20 record, Juror No. 15 was released from service?
21 INVESTIGATOR CAVINDER: Right. And that's who I
22 believed I was speaking to. And when I was starting to
23 talk to her, she goes, No, that was Ms. Steele. So I
24 didn't realize at the time the lady I was talking to had
25 actually made the jury, either, and it came up that she
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 157
1 was the one that went to game warden school a couple
2 years ago. And I asked her what had happened there, and
3 she told me she did it for two years, but it was down
4 south of the border and it was dangerous down there and
5 that's why she got out of it. And we just kind of
6 exchanged pleasantries about that.
7 Nothing was brought up about the trial, the
8 defendant, anything like that. And then I saw her, she
9 had a button down in her right hand next to her side.
10 And that's when I said, Oh, you are on the jury. She
11 said, yes, sir. And I said, Okay, thank you. We didn't
12 discuss the case at all.
13 THE COURT: Mr. Briley, is there any inquiry you
14 would like to make as to the conversation?
15 MR. BRILEY: No, Your Honor.
16 THE COURT: Ms. Honey?
17 MS. HONEY: Nothing from the State, Your Honor.
18 THE COURT: I'll speak with Ms. Vale in the
19 morning when they come back just before we go back on the
20 record. If she confirms what Investigator Cavinder was
21 saying, I don't see that there's been any misconduct or
22 any type of tampering with regard to this matter, since
23 the case wasn't discussed, unless you have anything
24 otherwise that you'd like me to hear.
25 MR. BRILEY: Not at this point, Your Honor. I'd
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 158
1 like to hear what she says in the morning.
2 THE COURT: Sure. Like I said, up to this
3 point, I don't see anything, but we'll speak with
4 Ms. Vale in the morning. Anything else?
5 MS. HONEY: None from the State.
6 THE COURT: All right. Let's go off the record.
7 Thanks.
8 (Evening recess taken)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 159
1 STATE OF TEXAS )
2 COUNTY OF WICHITA )
3 I, Cayce Coskey, Official Court Reporter in and
4 for the County Court At Law No. 1 of Wichita County,
5 State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings
8 requested in writing by counsel for the parties to be
9 included in this volume of the Reporter's Record, in
10 the above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and accurately reflects the
15 exhibits, if any, admitted, tendered in an offer of proof
16 or offered into evidence.
17 I further certify that the total cost for the
18 preparation of this Reporter's Record is $______ and
19 was paid/will be paid by Wichita County.
20 WITNESS MY OFFICIAL HAND this the 4th day of
21 February, 2014.
Digitally signed by Cayce Coskey
22 Cayce Coskey DN: cn=Cayce Coskey, o, ou,
email=clcoskey@att.net, c=US
Date: 2014.02.04 11:34:56 -06'00'
____________________________
23 CAYCE COSKEY, CSR 6938, RPR
Expiration Date: 12/31/2014
24 900 7th Street, Suite 201
Wichita Falls, Texas 76301
25 940.766.8266 Fax 940.766.8156
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 1
1 REPORTER'S RECORD
2 VOLUME 4 OF 6
3 TRIAL COURT CAUSE NO. 58017-E
4 THE STATE OF TEXAS § IN THE COUNTY COURT
§
5 VS. § AT LAW NO. 1
§
6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS
7
8
9
*****************************************************
10
DEFENDANT'S MOTION FOR MISTRIAL
11 FOLLOWING JUROR COMMUNICATION
*****************************************************
12
13
14
15
16
17
18 On the 22nd day of August, 2013, the
19 following proceedings came on to be heard in the
20 above-entitled and numbered cause before the Honorable
21 Gary W. Butler, Judge presiding, held in Wichita Falls,
22 Texas, Wichita County, Texas:
23 Proceedings reported by computerized
24 stenotype machine in real-time. Reporter's Record
25 produced by computer-aided transcription.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 2
1 A P P E A R A N C E S
2 Ms. Victoria Honey
SBOT NO. 24073195
3 Ms. Allyson Renee Kucera
SBOT NO. 24081858
4 Assistant District Attorneys
WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5 900 7th Street
Third Floor
6 Wichita Falls,TX 76301-2402
940.766.8113
7 ATTORNEYS FOR THE STATE OF TEXAS
8 -AND-
9 Mr. Mark Richard Briley
SBOT NO. 24069418
10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
600 Scott Ave
11 Suite 204
Wichita Falls, TX 76301-2531
12 940.766.8199
Ms. Kristen Homyk Howcroft
13 SBOT NO. 24032433
THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14 900 8th Street
Suite 815
15 Wichita Falls, TX 76301
940.687.1576
16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 3
1 I N D E X
2 VOLUME 4
3 (DEFENDANT'S MOTION FOR MISTRIAL
FOLLOWING JUROR COMMUNICATION)
4
AUGUST 22, 2013 Page Vol.
5
Appearances................................. 2 4
6
WITNESSES
7 Direct Cross Voir Dire Vol.
EILEEN VALE 5 4
8
Defendant's Motion For Mistrial............. 7 4
9
Court's Ruling.............................. 9 4
10
Adjournment................................. 10 4
11
Court Reporter's Certificate................ 11 4
12
13
14
15
16
17
18
19
20
21
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23
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25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 4
1 P R O C E E D I N G S
2 (Open court, defendant present, no jury)
3 THE COURT: Mr. Briley, with regard to the --
4 yesterday when investigator Cavinder testified with
5 regard to his contact with Ms. Vale. Would you like me
6 to get Ms. Vale in here to inquire as to that, or would
7 his testimony yesterday be sufficient? It's up to you.
8 What I'll tell you is what I'm gonna do is I'm gonna
9 reiterate my warnings to the jury this morning about
10 contact with anybody, so that may -- that may help.
11 But if you would like to -- if you would like to
12 have her come in and let me ask her about the contact
13 yesterday, I'd be more than happy to do that for you on
14 the record.
15 MR. BRILEY: I would like that, Your Honor.
16 THE COURT: All right. Let's go off the record
17 while we get Ms. Vale.
18 (Juror Vale enters courtroom)
19 Good morning. How are you, Ms. Vale?
20 JUROR VALE: Good.
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 5
1 MS. EILEEN VALE,
2 having been subsequently sworn, testified as follows:
3 EXAMINATION
4 BY THE COURT:
5 It's my understanding that yesterday as we were
6 all leaving, Investigator Cavinder and you had a
7 conversation. Investigator Cavinder has already, when he
8 realized you were an actual seated juror in this, came
9 in, made the Court aware of it, made both sides aware of
10 it, and told us what the conversation was about. Would
11 you please tell us, in your own words, what the
12 conversation was you had with Investigator Cavinder?
13 JUROR VALE: He was just asking me about my
14 experience as a game warden. And I told them that I did
15 cross fit with Marissa Cervantes.
16 THE COURT: Okay. And Marissa Cervantes is?
17 JUROR VALE: She's a detective on the police
18 criminal vice squad.
19 THE COURT: Okay. Thank you. Did he inquire
20 anything about this case?
21 JUROR VALE: From what I remember, he -- he kind
22 of made a comment about -- I'm trying to -- because I was
23 heading down the stairs and he was telling me and then
24 saying about -- I'm trying to remember. Let me just -- I
25 just said it was okay, but we stopped the conversation
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 6
1 right there because he didn't realize that at point I was
2 a juror, a selected juror, I guess.
3 THE COURT: You don't remember? We just have to
4 be very specific.
5 JUROR VALE: I know.
6 THE COURT: Because it pertains to this case.
7 JUROR VALE: Right.
8 THE COURT: You're sure his question or comment
9 pertained to this particular case?
10 JUROR VALE: He just said -- uh, I think he
11 said, "You were struck, but then we got you on" or
12 something, or something to that effect, which I think --
13 which I think -- it didn't -- I mean, to me, it didn't --
14 I kinda said, okay, whatever. I'm going to leave right
15 now.
16 THE COURT: Was that all?
17 JUROR VALE: Yeah, I'm being honest.
18 THE COURT: I want you to be. I'm sorry. I
19 guess I should have put you under oath before we did
20 that, but let me go ahead and do that. Would you raise
21 your right hand for me?
22 JUROR VALE: Yes.
23 (Juror sworn)
24 THE COURT: The statements that you previously
25 made to me, they were the truth; is that correct?
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 7
1 JUROR VALE: Yes, correct.
2 THE COURT: Even though you weren't under oath,
3 you understood that you were to tell me the truth?
4 JUROR VALE: Yes, right, because that's the way
5 I was --
6 THE COURT: Mr. Briley?
7 MR. BRILEY: Where was your juror badge at the
8 time that you were talking?
9 JUROR VALE: On my purse. I was wearing it on
10 my purse.
11 THE COURT: Okay. Anything further?
12 MR. BRILEY: No, Your Honor.
13 THE COURT: Okay, Ms. Vale. Thank you.
14 (Juror Vale exits courtroom)
15 THE COURT: Mr. Briley, any motions?
16 MR. BRILEY: Would you mind if I took two
17 minutes with my client.
18 THE COURT: Go right ahead.
19 (Attorney-client discussion)
20 THE COURT: Back on the record. Mr. Briley?
21 DEFENDANT'S MOTION FOR MISTRIAL
22 MS. HOWCROFT: Your Honor, at this time the
23 defense has a motion. We're going to move for a mistrial
24 in this case. It's our belief that Ms. Vale's testimony
25 here before the court today was, "You were struck, but
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 8
1 then we got you on." That's her recollection of what
2 occurred. The problem with that, obviously, is there's a
3 "we." We got you on; we liked you; we, from the State,
4 wanted you on it and you were struck, being the defense
5 obviously did not want you. The statement creates
6 relationships with the State and against the defense, and
7 I think we have no choice at this point but to ask the
8 Court to strike this entire panel and start this process
9 over.
10 THE COURT: Response from the State?
11 MS. HONEY: Your Honor, I would just ask the
12 Court if we could re-call Donnie Cavinder, our
13 investigator, just so we can clear up this discrepancy
14 between him and this juror.
15 MS. HOWCROFT: Whether or not there's a
16 discrepancy, Judge, the juror clearly believes that
17 that's the conversation she had, and no clearing up of
18 the testimony, whether or not it factually happened --
19 and we're certainly not casting dispersions on
20 Mr. Cavinder --
21 THE COURT: I know.
22 MS. HOWCROFT: This is her recollection, and the
23 question is whether or not she was influenced by the
24 event. We believe that the statement can't reflect
25 anything but influence. She was clearly uncomfortable
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 9
1 when presenting it to the court. And we would ask for a
2 mistrial.
3 MS. HONEY: Your Honor, can we allow for the
4 opportunity to have Ms. Vale come back to ask whether or
5 not she was influenced at all by what she recalls?
6 COURT'S RULING
7 THE COURT: No, I don't think that's necessary.
8 What I'm dealing with now is something that would --
9 whether there was any -- and I'm not saying there was any
10 intention on it; I'm not saying who said what. However,
11 what remains is the appearance. And the appearance that
12 there was in her, at least in her mind, from her
13 testimony -- I mean that's -- Ms. Howcroft stated
14 correctly. That's exactly what I heard.
15 And I want both sides to have a fair trial. And
16 with that appearance that there was some influence with
17 regard to that juror, I am left with no option except
18 granting a mistrial. There is no way it can be remedied.
19 And I -- I know y'all have -- we have been through a
20 rough day yesterday. And I apologize that that work is
21 for naught. And I'm not casting fault on Investigator
22 Cavinder at all. I understand that was an honest
23 mistake. I completely believe that he believed he was
24 speaking to Ms. Steele.
25 However, it's that appearance that we just
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 10
1 cannot get by in this matter. So for that reason, I'm
2 going to grant a mistrial. Now, we'll talk later whether
3 double jeopardy has attached. I don't think it has, in
4 my opinion, at this point, but I haven't done any
5 research on it. We'll deal with that issue at another
6 time.
7 So what I'm going to do this morning, I'll bring
8 the jurors in; I'm gonna declare a mistrial. I'll just
9 say there was a motion brought up this morning outside
10 their presence. I'll declare a mistrial and I'm going to
11 release them.
12 And then if neither party has a problem with it,
13 I'm going to have the jurors come back to my chambers and
14 I'm going to explain to them what's happened. I'm not
15 going to go into a lot of detail about a mistrial, but
16 it's just part of the legal process. And then I'm gonna
17 try to talk to them about this nightmare we had
18 yesterday. So if y'all don't have any problem with that,
19 I think it's appropriate in this instance.
20 So give me just a couple minutes. I'm going to
21 go ahead and get my robe on and I'll have Karen bring the
22 jury in and I'll do it at that time, okay. All right.
23 Off the record.
24 (Proceedings concluded)
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 11
1 STATE OF TEXAS )
2 COUNTY OF WICHITA )
3 I, Cayce Coskey, Official Court Reporter in and
4 for the County Court At Law No. 1 of Wichita County,
5 State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings
8 requested in writing by counsel for the parties to be
9 included in this volume of the Reporter's Record, in
10 the above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and accurately reflects the
15 exhibits, if any, admitted, tendered in an offer of proof
16 or offered into evidence.
17 I further certify that the total cost for the
18 preparation of this Reporter's Record is $_______ and
19 was paid/will be paid by Wichita County.
20 WITNESS MY OFFICIAL HAND this the 4th day of
21 February, 2014.
Digitally signed by Cayce Coskey
22 Cayce Coskey DN: cn=Cayce Coskey, o, ou,
email=clcoskey@att.net, c=US
Date: 2014.02.04 11:37:16 -06'00'
____________________________
23 CAYCE COSKEY, CSR 6938, RPR
Expiration Date: 12/31/2014
24 900 7th Street, Suite 201
Wichita Falls, Texas 76301
25 940.766.8266 Fax 940.766.8156
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 1
1 REPORTER'S RECORD
2 VOLUME 5 OF 6
3 TRIAL COURT CAUSE NO. 58017-E
4 THE STATE OF TEXAS § IN THE COUNTY COURT
§
5 VS. § AT LAW NO. 1
§
6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS
7
8
9
*****************************************************
10
APPLICATION FOR WRIT OF HABEAS CORPUS
11 SEEKING RELIEF FROM DOUBLE JEOPARDY
AND
12 MOTION TO DISMISS THE INFORMATION
BASED ON PREVIOUS MISTRIAL
13
*****************************************************
14
15
16
17
18 On the 12th day of November, 2013, the
19 following proceedings came on to be heard in the
20 above-entitled and numbered cause before the Honorable
21 Gary W. Butler, Judge presiding, held in Wichita Falls,
22 Texas, Wichita County, Texas:
23 Proceedings reported by computerized
24 stenotype machine in real-time. Reporter's Record
25 produced by computer-aided transcription.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 2
1 A P P E A R A N C E S
2 Ms. Victoria Honey
SBOT NO. 24073195
3 Ms. Allyson Renee Kucera
SBOT NO. 24081858
4 Assistant District Attorneys
WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5 900 7th Street
Third Floor
6 Wichita Falls,TX 76301-2402
940.766.8113
7 ATTORNEYS FOR THE STATE OF TEXAS
8 -AND-
9 Mr. Mark Richard Briley
SBOT NO. 24069418
10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
600 Scott Ave
11 Suite 204
Wichita Falls, TX 76301-2531
12 940.766.8199
Ms. Kristen Homyk Howcroft
13 SBOT NO. 24032433
THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14 900 8th Street
Suite 815
15 Wichita Falls, TX 76301
940.687.1576
16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 3
1 I N D E X
2 VOLUME 5
3 APPLICATION FOR WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM DOUBLE JEOPARDY
4 AND
MOTION TO DISMISS THE INFORMATION
5 BASED ON PREVIOUS MISTRIAL
6
NOVEMBER 12, 2013 Page Vol.
7
Appearances................................. 2 5
8
Defendant's Oral Motion For Continuance..... 3 5
9
Defendant's Writ of Habeas Corpus........... 3 5
10
DEFENDANT'S WITNESSES
11 Direct Cross Voir Dire Vol.
CHRISTINA ROBERSON 10 13 7,10 5
12
Court's Ruling.............................. 18 5
13
Defendant's Motion To Withdraw.............. 19 5
14
Court's Ruling.............................. 21 5
15
Adjournment................................. 21 5
16
Court Reporter's Certificate................ 22 5
17
EXHIBIT INDEX
18
APPLICANT'S
19 NO. DESCRIPTION OFFERED ADMITTED VOL.
1 Volume 1 of 3
20 Reporter's Record
Defendant's Motion
21 For Mistrial 16 16 5
2 Volume 2 of 3
22 Reporter's Record
Defendant's Motion
23 For Mistrial 16 16 5
3 Volume 3 of 3
24 Reporter's Record
Defendant's Motion
25 For Mistrial 16 16 5
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 4
1 P R O C E E D I N G S
2 THE COURT: Court's going to take up 58017-E
3 styled the State of Texas versus Byrias Roberson. We're
4 here on a writ of habeas corpus based upon the mistrial
5 that's been filed October 7th by Mr. Briley based on a
6 double jeopardy claim barring prosecution. The reply
7 from the State was filed today. I've had opportunity to
8 read both the, of course, the application and its brief
9 and the bench brief in opposition.
10 Mr. Briley, this is your motion. Is there
11 anything that you would like to submit to the court other
12 than what you have already stated in your brief?
13 MR. BRILEY: Yes, Your Honor. And, actually, at
14 this time I'm going to ask for a continuance on this
15 hearing to secure another witness, Donnie Cavinder.
16 There were just a few questions that I was going to
17 follow up with him. I did not subpoena him to this
18 hearing. I asked if he could be made available for this
19 hearing last week. I was told that they would check. I
20 didn't hear back. I did not subpoena him. I just have a
21 few questions for him. I have a few questions for
22 Ms. Roberson and the transcript.
23 MS. HONEY: Your Honor, the State is absolutely
24 opposed to defense counsel's motion for a continuance in
25 this case. Your Honor, the Court has already granted the
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02-13-00582-CR 5
1 mistrial. We're confined to the record as it was on the
2 date the Court granted the mistrial. Defense counsel
3 moved for a mistrial on August 22nd, almost two months
4 ago. He had the opportunity at that point to ask
5 Investigator Cavinder questions if he felt the need to do
6 so and did not. He can't now come into court and try to
7 recreate the record that he should have created at the
8 time that he moved for a mistrial in this case.
9 THE COURT: Mr. Briley, this is typically legal
10 argument based upon the situation that occurred on a
11 mistrial.
12 MR. BRILEY: And, Your Honor, actually, the
13 questions that I would be following up with Mr. Cavinder
14 really wouldn't be about what took place that day, but
15 rather that he was an experienced investigator and was
16 familiar with the rules.
17 MS. HONEY: And, Your Honor, I object to that,
18 one, as being outside the record in the case. At the
19 time defense counsel moved for mistrial, none of that
20 testimony was ever brought forward. Again, he failed to
21 ask any questions when he was given the opportunity. If
22 he had wanted to ask Investigator Cavinder questions at
23 the time that he moved for the mistrial, it would have
24 been on August 22nd, not November 12th, almost two months
25 later.
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02-13-00582-CR 6
1 MR. BRILEY: This is a separate motion. I don't
2 know of any rule that prohibits me to put on evidence for
3 my motion.
4 MS. HONEY: But, Your Honor, the motion has
5 already been granted by the court.
6 MR. BRILEY: That was the motion for mistrial.
7 This is a motion to dismiss the case.
8 MS. HONEY: But it's based on double jeopardy
9 based on the court's granting of the mistrial. It all
10 goes back to what happened on August 22nd. You can't
11 come back in almost two months later and try to re-ask
12 the questions you should have asked then.
13 THE COURT: Mr. Briley, what efforts were made
14 to try to secure the attendance of the investigator at
15 this hearing?
16 MR. BRILEY: Only making the criminal district
17 attorney Ms. Honey aware that we did intend to call him
18 and asked would he be available today. She told me, I
19 will check. That's it.
20 THE COURT: All right. Motion to continue is
21 denied. Go forward.
22 MR. BRILEY: Your Honor, I would call
23 Ms. Roberson, Ms. Christine Roberson.
24 MS. HONEY: Your Honor, prior to defense counsel
25 questioning Ms. Roberson, I would like to take the
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02-13-00582-CR 7
1 witness on voir dire to determine what -- to determine
2 what relevance her testimony is going to have to our
3 current proceeding today.
4 THE COURT: That's fine. Come on up, ma'am.
5 Raise your right hand.
6 (Witness sworn)
7 THE COURT: Thank you. Just have a seat.
8 Ms. Honey?
9 MS. CHRISTINA ROBERSON,
10 having been first duly sworn, testified as follows:
11 VOIR DIRE EXAMINATION
12 BY MS. HONEY:
13 Q Ms. Roberson, where are you currently employed?
14 A I'm not.
15 Q Have you -- have you ever been employed by the
16 State of Texas?
17 A No.
18 Q You were not employed with the State of Texas on
19 August 22nd of this year?
20 A No.
21 Q Are you familiar with the -- the proceeding that
22 took place on August 22nd of this year?
23 A Yes.
24 Q How are you familiar with it?
25 A I was in the courtroom.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 8
1 Q And what was your role in the courtroom on that
2 day?
3 A I was an observer sitting in the back.
4 Q So you weren't an employee of the State of Texas
5 on that day, were you?
6 A No.
7 Q You weren't an agent of the State of Texas that
8 day?
9 A No.
10 Q You didn't speak to anyone who was employed by
11 the State of Texas that day, did you?
12 A No -- my --
13 Q That's a no?
14 A No.
15 Q So are you familiar with what the State of
16 Texas's intent, if any, was on August 22nd?
17 A Yes.
18 Q How are you familiar with the State of Texas'
19 intent on August 22nd?
20 A I'm married to Byrias Roberson.
21 Q Let me rephrase my question. Are you familiar
22 with -- are you familiar with why Investigator Cavinder
23 spoke to Juror Vale?
24 A Am I?
25 Q Are you familiar with why Investigator Cavinder
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 9
1 spoke to Juror Vale in this case?
2 A Yes.
3 Q Did you personally observe the conversation
4 between the two of them?
5 A No.
6 Q Did you overhear anything that was said?
7 A No.
8 Q Did you see them speaking to each other?
9 A No.
10 Q Did you speak to Investigator Cavinder after
11 that conversation took place?
12 A No.
13 Q Did you speak to Juror Vale after that
14 conversation took place?
15 A No.
16 MS. HONEY: Pass the witness.
17 MR. BRILEY: Ms. Roberson, I was just going to
18 ask you a few questions about where you were and what you
19 saw that day.
20 MS. HONEY: Objection, Your Honor. We've
21 already addressed this during voir dire of the witness.
22 THE COURT: Mr. Briley, I'm puzzled. She took
23 the witness on voir dire. She said she didn't observe
24 the conversation, observe the two, didn't hear the
25 conversation.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 10
1 MR. BRILEY: I'm sorry. Could I proceed?
2 THE COURT: Go ahead. I'll give you some rope.
3 VOIR DIRE EXAMINATION
4 BY MR. BRILEY:
5 Q Ms. Roberson, did you witness when and where
6 Investigator Cavinder was at certain times in this
7 courtroom?
8 A Yes.
9 MR. BRILEY: Nothing further, Your Honor.
10 MS. HONEY: Nothing further from this witness,
11 Your Honor.
12 THE COURT: You may step down.
13 MR. BRILEY: Your Honor, there may have been
14 some objection to her testimony, but I wanted to create
15 for the record what she saw that day and where
16 Mr. Cavinder was at certain times.
17 THE COURT: So you have further questions for
18 the witness?
19 MR. BRILEY: Yes, I do, not on voir dire.
20 THE COURT: Go ahead and take the stand, ma'am.
21 DIRECT EXAMINATION
22 BY MR. BRILEY:
23 Q Ms. Roberson, were you in the courtroom during
24 Byrias' trial earlier this year?
25 A Yes.
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02-13-00582-CR 11
1 Q Where were you seated most of the time?
2 A The back row in the corner.
3 Q Were you there the whole time or did you miss
4 parts?
5 A No, I was there the whole time.
6 Q When the panel was dismissed so that the
7 attorneys could decide which panel members they wanted to
8 strike, were you there at that point?
9 A Yes.
10 Q Did you see Mr. Cavinder in the court at that
11 point?
12 A Yes.
13 Q When the attorneys came back from deciding which
14 preemptory strikes they wanted to use and they gave those
15 strikes to the court, were you in the courtroom at that
16 point?
17 A Yes.
18 Q Did you see Mr. Cavinder at that point?
19 A Yes.
20 Q When the panel was called back in, was
21 Mr. Cavinder back in the courtroom at that point?
22 A Yes.
23 Q When the jury was seated, was Mr. Cavinder in
24 the courtroom at that point?
25 A Yes.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 12
1 Q When the panel was dismissed for the day, was
2 Mr. Cavinder in the courtroom at that point?
3 A Yes.
4 Q When the jurors, six jurors that were picked,
5 were read further instructions, was Mr. Cavinder in the
6 courtroom?
7 A Yes.
8 Q And when the six jurors were dismissed for the
9 day, was he in the courtroom at that point?
10 A Yes.
11 Q And when did he leave the court?
12 A He left when the jurors had left. Everybody was
13 out of the courtroom.
14 Q How many minutes would you estimate between the
15 time that the panel was dismissed and the time that the
16 six jurors were dismissed?
17 A Ten to fifteen minutes.
18 Q And how many minutes would you estimate between
19 the time that the six jurors were released and when
20 Mr. Cavinder and the assistant district attorney's came
21 back in to alert the court and the defense about the
22 conversation that took place?
23 A Between, I would say, maybe 5 and 10 minutes.
24 It wasn't that long.
25 MR. BRILEY: Pass the witness.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 13
1 CROSS-EXAMINATION
2 BY MS. HONEY:
3 Q Ms. Roberson, you're married to the defendant in
4 this case; is that correct?
5 A Correct.
6 Q How long have y'all been married?
7 A We've been married 23 years.
8 Q Do y'all have kids together?
9 A Yes, we do.
10 Q How many kids do y'all have?
11 A Two.
12 Q Now, because you're married to the defendant,
13 you don't want to see him get in trouble, do you?
14 A I wanna tell the truth.
15 Q You wanna tell the truth, but you also want this
16 case to go away, don't you?
17 A I want it resolved, yes.
18 Q Okay. In order to make that case go away,
19 you're willing to say a lot of things, aren't you?
20 A No, ma'am.
21 Q Okay. Now, Investigator Cavinder testified on
22 August 21st that he was not present in the courtroom
23 whenever the jurors were sworn in. Were you here when he
24 testified to that?
25 A No.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 14
1 Q So you weren't in the courtroom the entire time
2 that this case was going on, were you?
3 A No.
4 Q So there are parts --
5 A Well, yes, when the case was going on, yes.
6 Q So when Investigator Cavinder testified under
7 oath that he was not present in the courtroom when the
8 the jurors were sworn in, you were in here, weren't you?
9 A Yes.
10 Q And you heard him say that, didn't you?
11 A Yes.
12 Q Ms. Roberson, do you have any formal training
13 involving conducting observations?
14 A Just my eyes.
15 Q Okay. So you don't have any formal training
16 doing observations?
17 A No, ma'am.
18 MS. HONEY: Pass the witness.
19 THE COURT: Mr. Briley, any further questions?
20 MR. BRILEY: No.
21 THE COURT: You may step down, ma'am. Thank
22 you.
23 MR. BRILEY: Your Honor, at this time I'd like
24 to ask the Court to take judicial notice of all the court
25 proceedings that happened in this Cause No. 58017-E.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 15
1 THE COURT: Were you also -- for the record as
2 well, the previous record?
3 MR. BRILEY: Sorry?
4 THE COURT: The previous record as well as the
5 testimony?
6 MR. BRILEY: Yes, all records that have -- of
7 any hearings.
8 THE COURT: Okay. The Court will take judicial
9 notice notice of that.
10 MR. BRILEY: And I'd offer Applicant's Exhibits
11 1, 2, and 3, which are the Reporter's Records Volume 1,
12 2, and 3 of the trial.
13 MS. HONEY: I have no objections to that.
14 THE COURT: One, two, and three are admitted.
15 Thank you. Any further witnesses or evidence,
16 Mr. Briley?
17 MR. BRILEY: No, Your Honor, although I would
18 just re-urge my motion for continuance, adding only that
19 shortly -- within five minutes of this hearing, I did go
20 to the front desk and ask for Mr. Cavinder. I also
21 e-mailed him. That's the only additional actions that
22 I've taken.
23 THE COURT: All right. I understand. The
24 court's previous ruling will stand. I note your
25 objection to the ruling for the record.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 16
1 MR. BRILEY: Applicant rests.
2 THE COURT: Ms. Honey?
3 MS. HONEY: State rests, Your Honor.
4 THE COURT: All right. Anything -- argument
5 that's not in the briefs, Mr. Briley?
6 MR. BRILEY: Well, yes, Your Honor. I hope I
7 don't --
8 THE COURT: That's all right. Go ahead.
9 MR. BRILEY: -- repeat too much. But, of
10 course, we're here today on our application for writ of
11 habeas corpus, seeking dismissal of the information based
12 on double jeopardy grounds. The defendant does have a
13 right to have his trial completed by the first jury
14 impaneled. Although we were the ones who asked for the
15 mistrial in this case, the State's conduct was the cause
16 of that mistrial, and we believe that the objective facts
17 show that it was with the intent to goad us into a
18 mistrial.
19 Investigator Cavinder intentionally approached
20 Ms. Vale. Certain statements were made that showed
21 partiality on the part of Ms. Vale. We believe that it
22 was not a mistake, and I'll go into it shortly in just
23 one second. They then approached the defense counsel and
24 the court letting us know about the conversation, which I
25 assume happened either way. And as far as motive, I
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 17
1 don't believe that we are forced to show a motive, but
2 there were certain parts in the pretrial hearing that
3 could cause a motive to want more time. For example,
4 more time to give notice of any extraneous bad acts.
5 As far as -- I think this really comes down to
6 whether or not this was a mistake or this was something
7 with the intent to goad. I believe that Mr. Cavinder is
8 an experienced investigator in this case or certainly an
9 experienced investigator. He's familiar with the rules
10 and procedures of the trial process. He participated in
11 this case. He helped pick which jurors would be struck.
12 He was present for most of the proceedings. There might
13 be a difference in what he said than what Ms. Roberson
14 says as far as when he was there, but he was present for
15 a lot of the proceedings.
16 Several minutes went by between when 25 people
17 were released into the hallway, the jurors were read the
18 Court's instructions, and then six people were let out
19 into the hallway. An experienced investigator, I don't
20 think, would have made that mistake.
21 Further, the statement, "You were struck, but
22 then we got you on." When a person would say something
23 like that or something to that effect, they would show
24 that they knew at that time that that person was a juror.
25 We ask that you dismiss based on double jeapordy.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 18
1 THE COURT: Ms. Honey, any response that's not
2 already addressed in your brief?
3 MS. HONEY: Your Honor, I will keep it very,
4 very, very brief. Defense counsel has not met his burden
5 in this case. His burden is intentional misconduct. I
6 just want to leave the court with something that the
7 court said at the time of the granting of the motion:
8 "I'm not casting fault on Investigator Cavinder at all.
9 I understand that that was an honest mistake. I
10 completely believe that he believed he was speaking to
11 Ms. Steele." Your Honor, even defense counsel just said
12 "I don't believe an experienced investigator would make
13 that mistake." Your Honor, we were all on the same page.
14 It was a mistake. It was not intentional. He is not
15 entitled to a dismissal of this case.
16 COURT'S RULING
17 THE COURT: Okay. All right. I'm going to take
18 that under advisement and have a ruling by five o'clock
19 tomorrow because I want to review the State's brief a
20 little bit further with regard to the standard that was
21 appropriately set forth in Wheeler.
22 Mr. Briley, we're set tomorrow on a motion to
23 withdraw as counsel for you in this same matter. Would
24 -- did you want to address that today, or would you wait
25 until tomorrow? And, Mr. Roberson, the same. Do you
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 19
1 want to address it today and save yourself having to come
2 back up tomorrow? That would be fine with the Court if
3 you're ready to do that.
4 MR. ROBERSON: I think we can go ahead and do
5 this today.
6 DEFENDANT'S MOTION TO WITHDRAW
7 THE COURT: Go ahead and do it today? Okay. So
8 you both know, I've read the motion to withdraw as
9 counsel. I've also read the letter that you had filed as
10 well. If you want to add more to that, you certainly can
11 at these proceedings. You don't have to. You can stand
12 upon -- if that's all you have to say, that's fine. I
13 understand. Mr. Briley, the same. It's up to you.
14 MR. BRILEY: Your Honor, could we have just two
15 or three minutes?
16 THE COURT: Sure. Let's go off the record.
17 (Discussion off the record)
18 THE COURT: Back on the record. Mr. Briley?
19 MR. BRILEY: Thank you, Your Honor. The only
20 thing that I would change about my motion for
21 withdrawal --
22 THE COURT: Yes, sir.
23 MR. BRILEY: -- would be in Paragraph 2 where it
24 says that defendant has lost confidence in his
25 representation and does not trust counsel. I mean, I
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 20
1 would withdraw that or take that away. Really, my only
2 concern would be that in this last trial, you know, in
3 the quickness of things, there was a conflict of
4 personality that led to some miscommunication or lack of
5 communication, which after the trial was done led to an
6 argument, which is what caused the motion to withdraw.
7 THE COURT: Okay.
8 MR. BRILEY: Since then, I've spoken with
9 Byrias. We're civil. I don't have a personal problem
10 with him. My only concern would be that when we come
11 back to trial, if we do come back to trial, that that
12 problem would exist again. The only changing factor, I
13 think, is that Ms. Kristen Howcroft, who was counsel at
14 the time, she would not be here at this time. That might
15 have been a factor then, but --
16 THE COURT: Okay.
17 MR. BRILEY: That's the only thing that I would
18 have to change about the motion to withdraw.
19 THE COURT: All right. Mr. Roberson, you can
20 speak to the motion if you like. However, I've reviewed
21 your letter again, so --
22 MR. ROBERSON: Well, everything that I wrote to
23 you, Your Honor, in my letter stands. I agree with
24 Mr. Briley. I think that the conflict that existed that
25 day has been resolved, so I don't see any future
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 21
1 conflicts at this time. I don't have a problem with
2 Mark. I think we work very well together. So I would
3 like to keep him on as my attorney.
4 THE COURT: Okay. Now, I assume the State
5 doesn't have a dog in the fight?
6 MS. HONEY: Your Honor, we don't.
7 COURT'S RULING
8 THE COURT: Okay. All right. I'll issue a
9 ruling on that at the same time that I issue the ruling
10 on the writ, okay. And it will be by five o'clock
11 tomorrow that I send it out. I'll send it out by fax or
12 e-mail, okay. All right. Thank you.
13 (Proceedings concluded)
14
15
16
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 22
1 STATE OF TEXAS )
2 COUNTY OF WICHITA )
3 I, Cayce Coskey, Official Court Reporter in and
4 for the County Court At Law No. 1 of Wichita County,
5 State of Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings
8 requested in writing by counsel for the parties to be
9 included in this volume of the Reporter's Record, in
10 the above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and accurately reflects the
15 exhibits, if any, admitted, tendered in an offer of proof
16 or offered into evidence.
17 I further certify that the total cost for the
18 preparation of this Reporter's Record is $_______ and
19 was paid/will be paid by Wichita County.
20 WITNESS MY OFFICIAL HAND this the 4th day of
21 February, 2014.
Digitally signed by Cayce Coskey
22 Cayce Coskey DN: cn=Cayce Coskey, o, ou,
email=clcoskey@att.net, c=US
Date: 2014.02.04 11:37:44 -06'00'
____________________________
23 CAYCE COSKEY, CSR 6938, RPR
Expiration Date: 12/31/2014
24 900 7th Street, Suite 201
Wichita Falls, Texas 76301
25 940.766.8266 Fax 940.766.8156
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
r i
ÿÿ
NO. 02-11-002 53-CR
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
JOE DALE JOHNSON ){ ON APPEAL IN NO. 46,432-C
V. ) { FROM THE 89th DISTRICT COURT
STATE OF TEXAS ) { OF WICHITA COUNTY, TEXAS
) ( THE HONORABLE MARK T.
PRICE, PRESIDING
STATE'S MOTION FOR EN BANC RECONSIDERATION
TO THE COURT OF APPEALS:
Pursuant to Rule 49.7 of the Rules of Appellate
Procedure, the State submits its motion for en banc
reconsideration of the court' s reversal of two Life
sentences for aggravated sexual assault of a child
committed by a previously-convicted sex-offender.
The State seeks en banc reconsideration for two
reasons: 1) because the memorandum opinion issued on
February 14, 2013 makes repeated factual assertions
that do not comport with the reporter' s record of the
actual testimony and statements of the attorneys in the
case; and 2) because the memorandum opinion fails to
apply the Court of Criminal Appeals Irby analysis for
determining whether the juvenile adjudication was
admissible .
.
I The memorandum opinion contains multiple factual
inaccuracies that do not comport with the trial
record .
.
1 While the memorandum opinion claims the State
left a false impression with the jury about the
reason for counseling, the record reveals that it
was defense counsel, not the prosecutor, who
interjected counseling into the proceeding.
The memorandum opinion states "The State left the
impression with the jury that the complainant's
emotional problems, watching pornography, conflict with
his parents, and need for counseling all arose as a
result of his victimization by school bullies and by
Appellant ...This was a false impression that Appellant
2
was entitled to rebut...'7 See Memorandum Opinion at
10.
The record, however, reveals that it was defense
counsel, not the State, who interjected counseling into
the proceedings. During cross-examination of the
State's first witness, the child's father, defense
counsel asked for permission outside the presence of
the jury to question the witness about the victim
undergoing counseling in the fall of 2007. (R.R. 7:58-
63) . The trial court permitted the defense attorney to
question the witness about the victim attending
counseling. (R.R. 7:63). Then, in front of the jury,
the defense attorney asked the witness about the victim
attending counseling and why he was in counseling.
(R.R. 7:64-65). Thus, it was defense counsel who first
interjected counseling into the proceedings.
.
2 A fair reading of the record reveals that the
prosecutor only mentioned the victim' s counseling
in response to the defense attorney's questions.
On re-direct after the defense attorney had brought
up counseling, the prosecutor asked the father two very
3
short questions about the counseling: "Did you consider
it counseling or therapy?" and "So was he seeing a
counselor?" (R.R. 7:67)
Then, when the child testified, the prosecutor
asked the child three short questions relating to
counseling :
"Were you seeing a counselor during that time
period?"
"Were you having some emotional troubles?" and
"Did you tell your counselor about those things?"
(R.R. 7 : 106) .
This minimal inquiry, initiated after defense
counsel had already asked the father about counseling,
is completely unrecognizable from the memorandum
opinion's characterization of the State leaving "the
impression with the jury that the complainants
emotional problems, watching pornography, conflict with
his parents, and need for counseling all arose as a
result of his victimization by school bullies and by
Appellant, who caused him to participate in sexual
activities. This was a false impression that Appellant
was entitled to rebut..." See Memorandum Opinion at 10.
4
.
3 The fact that the State did not mention anything
related to counseling in opening or closing
conflicts with the memorandum opinion' s assertion
that the State was relying upon some false
impression in front of the jury.
The prosecutor did not mention anything relating to
the victim attending counseling in his opening
statement or in his closing argument. (R.R. 7:9-17;
9:85-91, 98-108). Thus, the prosecution was not
advancing any false impression about the reason the
victim was in counseling.
4 . The defense could not open its own door to the
juvenile adjudication by interjecting counseling
into the trial .
The memorandum opinion strangely opines that "the
State's questioning of the complainant and his father
painted an incomplete and misleading picture of the
complainant and the circumstances of his outcry. By
developing the testimony as it did, the State opened
the door to evidence that could have accurately
conveyed why the complainant was in counseling, what
motivation he may have had to make up a false
accusation, and the degree to which he understood
5
sexual matters and to which he personally appreciated
legal consequences imposed upon sex offenders." See
Memorandum Opinion at 13.
This statement oddly overlooks the fact that it was
the defense, not the State, who first interjected
counseling into the proceedings. (R.R. 7:58-63). This
statement also completely mischaracterizes the minimal
questions by the prosecutor about counseling. (R.R.
7:67; 106). Finally, this statement ignores the fact
that the State made no mention to the victim attending
counseling in either its opening or its closing. (R.R.
7:9-17; 9:85-91, 98-108).
Rather, it was defense counsel who opened-the-door
to the discussion of counseling through his questions
of the victim's father. (R.R. 7:58-63). Under the
open-door doctrine, the defense cannot broach a subject
and then complain when the State inquires into that
subject. See Heidelberg v. State, 36 S.W.3d 668, 672
(Tex. App.—Houston [14th Dist.], no pet.).
6
Furthermore, a party cannot through its own
questioning and maneuvering open a door to get into
collateral matters, extraneous offenses, and bad acts
that would otherwise be inadmissible. See Shipman v.
State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980).
Thus, the law prohibits defense counsel from
questioning the victim's father about the victim
attending counseling, and then claiming because he
raised the subject and interjected counseling into the
proceedings, he has now opened the door for the
juvenile adjudication to be admitted.
The fact that the memorandum opinion fails to
acknowledge that it was defense counsel who interjected
the victim' s counseling into the proceedings and
instead incorrectly claims that it was the State who
opened the door is troubling.
7
.
5 The memorandum opinion confuses and conflates
counseling that the child was receiving in the
fall of 2007 with court-ordered sex offender
treatment that the child received after his
adjudication in July 2008.
The memorandum opinion also confuses and conflates
counseling the child received in the fall of 2007 with
court-ordered treatment in July 2008: "The complainant
also testified that his parents put him in counseling
because he was sexually abusing his sister. There was
evidence that the counseling was court-ordered as a
result of the complainant's sexual abuse of his younger
sister over several years." See Memorandum Opinion at
6 .
This statement is not accurate. Both the child and
the child's father testified that his parents put him
in counseling in the fall of 2007. (R.R. 7:61, 161-
162) . The child was not ordered into treatment by a
court until he was adjudicated on July 18, 2008 . See
Defense Exhibit 1 July 18, 2008 Order of Probation.
This offense was reported to the Burkburnett Police
Department on November 29, 2007. (R.R. 8:16).
8
Therefore/ any court-ordered counseling of the child in
July 2008 was irrelevant to this case, and to the
child' s mental state at the time the offense was
reported. And, it is simply erroneous to say that there
"was evidence that the counseling was court-ordered"
when the counseling that the child was referring to was
the fall 2007 counseling, which was clearly not court-
ordered. (R.R. 7:61, 161-162).
6 . The memorandum opinion incorrectly asserts that
the State created a false impression that the
child was innocent in sexual matters .
While the memorandum opinion suggests that the
State left a false impression that the child was
innocent in sexual matters, the record reveals no such
impression. See Memorandum Opinion at 6, 13.
In fact, the State did not object to defense
counsel's request to go into the child's pornography
issues. (R.R. 7:63). The defense attorney asked both
the father and the child about the child's issues with
pornography. (R.R. 7:64-65, 149). Additionally,
during closing argument the prosecutor never argued or
9
implied that the child was innocent in sexual matters.
(R.R. 9 :85-89, 98-108) .
.
II The memorandum opinion fails to conduct the Irby
analysis required by the Court of Criminal Appeals in
determining whether a juvenile adjudication is
admissible.
The Court of Criminal Appeals mandates that for a
juvenile adjudication to be admissible, there must be a
logical connection between the adjudication and a
motive or bias that could affect the child's testimony.
See Irby v. State, 327 S.W.3d 138, 153 (Tex. Crim. App.
2010) .
The memorandum opinion fails to conduct the Irby
analysis,1 or explain what the logical connection is
between the juvenile adjudication and any motive the
child had to lie. In fact, the juvenile charges were
filed in May 2008, and the adjudication happened in
July 2008. See Defense Exhibit 1 May 12, 2008 Original
Petition and July 18, 2008 Order of Probation. The
LThe State's Brief extensively cited the Irby opinion and
explained the Court of Criminal Appeals' requirement for a
logical connection between the juvenile adjudication and a bias
or motive that could affect the witness's testimony. See
State's Brief 4-15.
10
child's outcry about this case was in November 2007.
(R.R. 8:16). The memorandum opinion fails to explain
how a juvenile adjudication 8 months after the child's
outcry of sexual abuse provided any motive for the
child's allegations of sexual abuse. Therefore, under
the Irby rubric, the juvenile adjudication was not
admissible .
While the memorandum opinion cites Rule of Evidence
101(c) for the proposition that the rule barring
impeachment by a juvenile adjudication was trumped by
the right to confrontation, in Irby the Court of
Criminal Appeals limits this situation to "a specific
mode of impeachment—bias and motive—when the cross-
examiner can show a logical connection between the
evidence suggesting bias or motive and the witness's
testimony." See Irby at 151. The Court of Criminal
Appeals explained the important interest "in protecting
the anonymity of juvenile offenders." Id. The
memorandum opinion violates this very interest without
demonstrating the logical connection between the
n
juvenile adjudication and any potential motive or bias
affecting the child's testimony.
PRAYER
The State prays that the Court grant the motion for
en banc reconsideration, withdraw the opinion of
February 14, 2013, and affirm the judgment of the trial
court .
Respectfully submitted,
Jpmn Gillespie
Fwrst Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24010053
Jol W. Brasher
Attorney
Wichita County, Texas
State Bar No. 02907800
Wichita County Courthouse
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113
FAX: (940) 766-8177
12
CERTIFICATE OF COMPLIANCE
The State certifies that the brief contains 1723
words, after the applicable exclusions.
f
CERTIFICATE OF SERVICE
I certify that a correct copy of the State's Motion
For En Banc Reconsideration was mailed to the office of
Jeff Eaves, 900 8th Street, Suite 1400, Wichita Falls,
TX 76301, (940) 322-2002, on this the 21st day of
February, 2013.
13