                                                                                 WR-41,706-02
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 1/29/2015 2:55:44 PM
                                                                  Accepted 1/29/2015 4:30:08 PM
                                                                                    ABEL ACOSTA
                                                                                            CLERK
                    NO. ______________________________
                                                                   RECEIVED
                                                           COURT OF CRIMINAL APPEALS
                                                                   1/29/2015
                 IN THE COURT OF CRIMINAL             APPEALS ABEL ACOSTA, CLERK
                          AT AUSTIN, TEXAS

__________________________________________________________________

                                 LEON DAVIS,
                                   Relator,

                                       vs.

            THE HONORABLE NINTH COURT OF APPEALS,
                    AT BEAUMONT, TEXAS,
                          Respondent

                    Arising from No. 09-14-00337-CR
           Court of Appeal, Ninth District of Texas at Beaumont
__________________________________________________________________

              LEON DAVIS' MOTION FOR LEAVE TO FILE
                PETITION FOR WRIT OF MANDAMUS

__________________________________________________________________


      COMES NOW, LEON DAVIS, Relator, by and through his Counsel of

Record, RICK BRASS, pursuant to TEX.R.APP.P. 72.1, and seeks leave of this

Honorable Court to file the attached Petition for Writ of Mandamus complaining of

the actions of the Court of Appeals For the Ninth District of Texas, Beaumont.
      WHEREFORE, PREMISES CONSIDERED, Relator prays that this

motion be granted and that this Court grant him leave to file the attached Petition

for Writ of Mandamus.



                                         RESPECTFULLY SUBMITTED,

                                         BRASS & McCOTTER
                                         207 SIMONTON
                                         CONROE, TEXAS 77301
                                         rbrass1@yahoo.com
                                         Tel (936) 788-5700
                                         Fax (936) 788-5701




                                               Rick Brass
                                         By:_________________________________
                                           RICK BRASS
                                           Texas Bar No. 02909450




                           CERTIFICATE OF SERVICE

      I hereby certify that true and correct copies of the foregoing instrument were
mailed to the Respondent and counsel for the real parties in interest on the date of
the mailing of the original to the Clerk of this Court.




                                           Rick Brass
                                         ________________________________
                                         RICK BRASS
                      NO. ______________________________


                IN THE COURT OF CRIMINAL APPEALS
                         AT AUSTIN, TEXAS

__________________________________________________________________

                                LEON DAVIS,
                                  Relator,

                                     vs.

          THE HONORABLE NINTH COURT OF APPEALS,
                     AT BEAUMONT, TEXAS,
                            Respondent
__________________________________________________________________

                    Arising from No. 09-14-00337-CR
           Court of Appeal, Ninth District of Texas at Beaumont
__________________________________________________________________

         RELATOR'S PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________


Rick Brass
Rbrass1@yahoo.com
SBN: 02909450
207 Simonton
Conroe, Texas 77301
Phone: 936-788-5700
Facsimile: 936-788-5701

Counsel for Relator
Leon Davis

                       ORAL ARGUMENT REQUESTED
                          IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex.R. App.Proc. 52.3(a), the realtor offers the following list of parties to this
case and counsel for the parties:
Respondent:                                        THE HONORABLE NINTH COURT OF
                                                   APPEALS, AT BEAUMONT, TEXAS
                                                   Carol Anne Harley, Clerk of the Court
                                                   Ninth Court of Appeals
                                                   1001 Pearl St., Suite 330
                                                   Beaumont, TX 77701-3552

Relator:                                           Leon Davis

Counsel for Davis:                                 Rick Brass
                                                   BRASS & McCOTTER
                                                   Rbrass1@yahoo.com
                                                   SBN: 02909450
                                                   207 Simonton
                                                   Conroe, Texas 77301
                                                   Phone: 936-788-5700
                                                   Facsimile: 936-788-5701

Real Party In Interest:                            Brett W. Ligon
                                                   Montgomery County District Attorney

Counsel for Real Party In Interest:                William J. Delmore III
                                                   Assistant District Attorney
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301
                                                   (936) 539-7800

Real Party In Interest:                            Barbara Adamick
                                                   Montgomery County District Clerk

Counsel for Real Party In Interest:                M. Michael Meyer
                                                   Assistant District Attorney
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301
                                                   (936) 539-7828

Real Party In Interest:                            Honorable Kelly W. Case
                                                   9th Judicial District Court
                                                   301 North Main Street
                                                   Conroe, Texas 77301
                                                   Phone: (939)-539-7866

                                                                                                 i
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL .............................................................i

JURISIDICTION .......................................................................................................1

STATEMENT OF FACTS ........................................................................................2

STATEMENT REGARDING ORAL ARGUMENT ............................................... 5

GROUNDS IN SUPPORT OF MANDAMUS RELIEF ........................................... 5

ARGUMENT AND AUTHORITIES ........................................................................ 6

I.           THE STANDARD OF REVIEW FOR OBTAINING MANDAMUS
             RELIEF .......................................................................................................6


II.          MANDAMUS RELIEF IS APPROPRIATE IN THIS CASE ................... 7


A.       RELATOR HAS NO ADEQUATE REMEDY AT LAW.............................. 8

B.       RELATOR HAS A CLEAR RIGHT TO RELIEF ......................................... 9

1.       The Trial Court’s order to produce the addresses of all jurors summonsed
         during 2013 was not a “ministerial” act because the Montgomery County
         Electronic Jury Selection Plan gives the Trial Court the authority to view the
         address data ordered to be produced..............................................................10

2.       The Trial Court did not abuse its discretion. .................................................12

A.       The order to produce limited juror address data did not violate Article 35.29
         of the Code of Criminal Procedure nor Section 62.0132 of the Government
         Code. The Trial Court’s Order was discretionary, not a ministerial act;
         therefore, the Trial Court did not abuse its discretion and mandamus relief
         should not have issued. ..................................................................................13

a.       Article 35.29 of the Code of Criminal Procedure was not violated in this
         case because the juror address data is not collected from any juror


                                                                                                                          ii
                questionnaire or information supplied during the voir dire process.............. 17

   b.           Section 62.0132 of the Texas Government Code is not violated in this case
                because the address data is not collected from a jury questionnaire. ............ 16

   c.           The address data of those summoned is not protected information. ............ 17

  i.        The addresses of those jurors summoned are available from public sources..... 17

 ii.        The private vendor given the juror information is not under a confidentiality
            agreement; however, the experts in this case will be subject to a confidentiality
            agreement. ...........................................................................................................18

iii.        The Jury Selection Plan states that the Judge has discretion to review the list of
            all summoned prospective jurors and the Judge has appointed experts to review
            only the jury address data. ..................................................................................19

       B. The Trial Court has authority over the District Clerk of Montgomery County;
          therefore the Trial Court’s Order to turn over address data was not an abuse of
          discretion and mandamus relief should not have issued. ...................................19

       1.       §62.011(b)(4) of the Texas Government Code and Montgomery County
                Electronic Jury Selection Plan Sections (B), (E), and (F) all provide that the
                District Clerk is the agent of the District Court.............................................20

       2.       The District Clerk consented to the District Court’s personal jurisdiction. .. 22

       3.       The electronic data ordered to be produced already exists. ..........................23

       C. Article 39.14 of the Texas Code of Criminal Procedure is inapplicable as the
          requested juror address data is not in possession of the District Attorney nor any
          of his agents; therefore, the Trial Court did not abuse its discretion and
          mandamus relief should not have issued. ...........................................................24

       D. The Compulsory Process Clause authorizes the Trial Court’s action; therefore,
          the Trial Court did not abuse its discretion and mandamus relief should not have
          issued...................................................................................................................24



                                                                                                                                  iii
E. The juror address information is needed to ensure that Defendants in
   Montgomery County are tried by a constitutionally valid jury; therefore, the
   Trial Court did not abuse its discretion and mandamus relief should not have
   issued...................................................................................................................25

1. The Fourteenth Amendment requires that equal protection must actually be
   given to all and not be merely an empty promise ...............................................26

2. The Sixth Amendment right to a jury trial requires selection of a petit jury from
   a representative cross section of the community. ...............................................28

F. The Constitutional complaint is ripe and valid; therefore, the Trial Court did not
   abuse its discretion and mandamus relief should not have issued......................32

1. Because Davis is not seeking information from juror questionnaires, his
   challenge is not premature. .................................................................................34

2. Evidence produced at the May 21, 2014, hearing demonstrates there is an
   apparent exclusion of African-Americans in the jury summonsing process. ..... 34

PRAYER FOR RELIEF ..........................................................................................35

CERTIFICATE OF SERVICE ................................................................................36

VERIFICATION ......................................................................................................37

APPENDICES .........................................................................................................38




                                                                                                                           iv
                                   INDEX OF AUTHORITIES

Cases:

Bill Hill v. Court of Appeals,
       67 S.W.3d 177, 180 (Tex. Crim. App. 2001 ................................................... 9

Byke v. City of Corpus Christi,
      569 S.W.2d 927, 932 (Tex.Civ.App. -- Corpus Christi 1978) ......................16

City of Rockwall v. Hughes,
       246 S.W.3d 621, 625-26 (Tex. 2008) ............................................................15

Dickens v. Court of Appeals,
     727 S.W.2d 542, 550 (Tex. Crim. App. 1987) ............................................7, 8

Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
      996 S.W.2d 864, 865-66 (Tex. 1999) ............................................................15

Hernandez v. Texas,
     347 U.S. 475, 477 (U.S. 1954) ................................................................25, 32

Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee,
      456 U.S. 694, 703 (U.S. 1982) ......................................................................23

Miles v. State,
      157 Tex.Crim. 188, 247 S.W.2d 898, 899 (1952) ..........................................16

Missouri v. Duren,
     439 U.S. 357, 364 (U.S. 1979) ......................................................................... 29

Nat'l Liab. & Fire Ins. Co. v. Allen,
       15 S.W.3d 525, 527 (Tex. 2000) ...................................................................15

Padieu v. Court of Appeals of Texas, Fifth District,
     392 S.W.3d 115, 117 (Tex. Crim. App. 2013) ....................................1, 7, 8, 9

Ramseur v. Beyer,
     983 F. 2d 1215, 1230 (3d Cir. 1992) ............................................................... 29


                                                                                                             v
Ruiz-Angeles v. State,
      351 S.W.3d 489, 496 (Tex.App.— [14th Dist.] 2011) (pet. refused) ............ 14

Simmons v. Arnim, ,
     110 Tex. 309, 324, 220 S.W. 66 (Tex. 1920) ..............................................15

Smith v. Texas,
      311 U.S. 128, 130 (U.S. 1940) ......................................................................26

Taylor v. Louisiana,
      419 U.S. 522, 528 (U.S. 1975) ......................................................................28

Texas Dept. of Corrections, Etc. v. Dalehite,
      623 S.W.2d 420, 424 (Tex. Crim. App. 1981) ................................................9

United States v. Weaver,
      267 F.3d 231, 240 (3d Cir. 2001) ..............................................................2, 30

United States of America v. James Stile,
      2014 U.S. Dist. LEXIS 65390 (D. Me., 2014) ..............................................20

United States of Amerieca v. Kaboni Savage,
Robert Merritt, Steven Northington, Kidada Savage,
      2012 U.S. Dist. LEXIS 142844 (E.D. Pa., 2012) ..............................19, 30, 31

United States v. Murphy,
      464 F. App’x 60, 63 (3d Cir. 2012) ...............................................................30

United States v. Royal,
      100 F.3d 1019, 1025 (1st Cir. 1996) ..............................................................34

United States v. Test,
      420 U.S. 28, 29-30 (1975) .............................................................................31

Wade v. Mays,
     689 S.W.2d 893, 898 (Tex. Crim. App. 1985) ...................................9, 10, 12

Washington v. McSpadden,
     676 S.W.2d 420, 422 (Tex. Crim. App. 1984) ................................................ 9


                                                                                                             vi
Statutes:

Texas Code of Criminal Procedure, Article 4.04 ...................................................... 1

Texas Code of Criminal Procedure, Article 35.29 ................ ii, 5, 12, 13, 14, 16, 17

Texas Constitution, Section V, Section 5 .................................................................. 1

Texas Government Code, Section 62.011 ................................... iii, 4, 10, 20, 21, 22

Texas Government Code, Section 62.0132 ............................. ii, iii, 5, 12, 13, 14, 17

Texas Government Code Ann, Section 311.011(a) ................................................15

Texas Rules of Appellate Procedure, Section 72.1.................................................... 1

United States Constitution, Sixth Amendment ..................... 6, 20, 25, 26, 28, 29, 30

United States Constitution, Fourteenth Amendment ...............................6, 26, 27, 28




                                                                                                          vii
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:


         LEON DAVIS, Relator, by and through his Counsel of Record, RICK

BRASS of BRASS & McCOTTER, pursuant to TEX. R. APP. P. 72.1, files this

Petition for Writ of Mandamus, complaining of Respondent, the Honorable Ninth

Court of Appeals, in Beaumont, Texas, and of said Court’s Memorandum Opinion

in No. 09-14-00337-CR and in support thereof will show this Honorable Court the

following:


JURISIDICTION

       This Court has mandamus jurisdiction over the Court of Appeals, Ninth

District of Texas at Beaumont, pursuant to Article 4.04 of the Texas Code of

Criminal Procedure along with Article V, Section 5 of the Texas Constitution. 1

“The court of criminal appeals does not have jurisdiction to review an appellate

court’s decision in its exercise of original jurisdiction by way of petition for

discretionary review, so mandamus is the realtor’s only remedy at law.” Padieu v.

Court of Appeals of Texas, Fifth District, 392 S.W.3d 115, 117 (Tex. Crim. App.

2013).
1
 Art. 4.04, Sec. 1 “The Court of Criminal Appeals and each judge thereof shall have, and is
hereby given, the power and authority to grant and issue and cause the issuance of writ of habeas
corpus, and, in criminal law matters, the writ of mandamus, procedendo, prohibition and
certiotari. The court and each judge thereof shall have, and is hereby given, the power and
authority to grant and issue and cause the issuance of such other writs as may be necessary to
protect its jurisdiction or enforce its judgments.” TX. Code of Crim. Proc. Ann. Art. 4.04
                                                                                               1
STATEMENT OF FACTS

       Relator, Leon Davis maintains the summoning process of jurors in

Montgomery County, Texas is broken because the process does not provide a

random and fair cross-section of the community.                   The number of African-

American venire-persons does not appear to be fair and reasonable in relation to

the number of such persons in the community.

       Davis filed a motion challenging the jury selection process in Montgomery

County, Texas. On May 21, 2014 and upon Motion of Relator’s Counsel of

Record, the Ninth Judicial District Court, conducted an evidentiary hearing in

which several criminal defense attorneys provided evidence about the number of

African-American venire-persons they personally observed during jury selection

proceedings in previous trials.2 African-Americans are a distinctive group. See

United States v. Weaver, 267 F.3d 231, 240 (3d Cir. 2001).

       At the May 21, 2014, evidentiary hearing, there was testimony from several

local lawyers regarding the sparsity of African-American jurors on jury panels.3

There was also testimony from Dr. Karl Eschbach, an expert demographer hired by

Davis, who reviewed the number of African-Americans summoned for jury duty.

2
 The attorney witnesses were, Lydia Clay-Jackson, E. Tay Bond, Jerald Crow, Patricia
Magninnis, Brian Burns, Ray Stokes and Gilbert Garcia. See Reporter’s Record, Appendix A,
3
  A transcription of the court-reporter’s notes from the May 21, 2014, the evidentiary hearing is
attached as Appendix A. This is referred to as the Reporter’s Record.
                                                                                               2
Based upon the evidence which Dr. Eschbach heard, he expressed the opinion that

further investigation was necessary to determine if the jury pool is racially

balanced.4

          In order to complete his study, Dr. Eschbach testified that he would need

the address of every person summoned during the year 2013. The Trial Court

ordered the Montgomery County District Clerk (herein “District Clerk”) to provide

address data in electronic form of all individuals summoned for jury duty during

2013, which delivery would be conditioned upon the experts signing a

confidentiality agreement. 5

         In addition, Dr. Eschbach explained that he and Max Beauregard, another

expert, sought the juror address information in order to overlay a map of the

summoned jurors’ addresses over another map reflecting the actual distribution of

African-American citizens throughout the county’s neighborhoods based upon the

2010 census.

         All parties agree that the District Clerk receives the master list of eligible

jurors from the Secretary of State. This master list is made up of all individuals in

Montgomery County who either (1) are registered voters; (2) have a Texas driver’s

license; or (3) have a Texas state identification card. According to the Montgomery

County Electronic Jury Selection Plan, (herein the “Plan”) which is administered

4
    See Reporter’s Record, Appendix A, Page 73, Line, 23 through Page 74, Line 3.
5
    Appendix B Order Signed 8/4/2014 by Judge Case.
                                                                                     3
by the District Clerk, jurors are supposed to be summonsed on a random basis.

The summonses are produced by a computer program approved under Section

62.011 of the Government Code. (“Electronic or Mechanical Method of

Selection).”6

       At the same May 2014 evidentiary hearing, the District Clerk’s attorney of

record took the lead in cross-examining Davis’ witnesses and expert. 7 At that

hearing, the District Clerk offered no rebuttal testimony and called no witnesses to

rebut the testimony presented by Davis. 8 The only evidence before the respondent

judge was the evidence elicited by Davis through his attorney of record. Neither

the District Clerk nor the Montgomery County District Attorney (herein “District

Attorney”) presented any evidence to rebut Davis’ contention.

       On October 8, 2014, the Court of Appeals for the Ninth District of Texas at

Beaumont conditionally granted the mandamus petition of Brett W. Ligon, the

Montgomery County District Attorney, and Barbara Adamick, the Montgomery

County District Clerk, ordering the Trial Court of the Ninth Judicial District Court

of Montgomery County, Texas, to vacate his order requiring disclosure to the

6
   See Tex. Gov’t Code Ann. § 62.011 (West 2013). The trial court --although engaged in a
hearing about jury selection procedures—did not admit into evidence the Montgomery County’s
electronic jury selection plan adopted by the board of judges and commissioner’s court pursuant
to section 62.011; but the trial court did permit it to be included in the record for this Court’s
review, and a copy is attached as Appendix C. See Reporter’s Record, Appendix A, Line 25,
Page 122 through Line 4, Page 124.
7
  See Reporter’s Record, Appendix A, Page 3 showing that the State and the District Clerk called
no witnesses.
8
  See Reporter’s Record, Appendix A, Page 8, Lines 2 through 4.
                                                                                                4
defense’s retained experts only the address of every person summoned for jury

service in Montgomery County for 2013.



STATEMENT REGARDING ORAL ARUGMENT

        Counsel for the Appellee requests oral argument and believes that it would

be beneficial to the Court to be available to respond to questions regarding this

case and the applicable law involved.


GROUNDS IN SUPPORT OF MANDAMUS RELIEF


    The Beaumont Court of Appeals misapplied the law by making confidential,

information which is provided to Montgomery County under its Jury Selection

Plan by the Secretary of State and by the Department of Public Safety, when that

information is not designated as “confidential” by Texas law. 9 This information is

used to compile the “jury wheel” in order to summons those who might serve on a

jury.


    1. Article 35.29 of Texas Code of Criminal Procedure and Section 62.0132 of
       the Texas Government Code do not apply to the Trial Court’s Order because
       information obtained from juror summons is separate and distinct from
       information gathered from juror questionnaires; the summons data (here,
       Trial Court’s Order for addresses of all those summonsed in 2013) is not
       confidential, while the questionnaire data (gathered from the venire panel

9
  Tex Gov’t Code Section 62.0312(f) which makes only information given by a prospective
juror in response to a juror questionnaire.
                                                                                     5
           during the voir dire process) is confidential. Therefore, mandamus against
           the Trial Court should not have issued and this Court should issue
           mandamus against the Ninth Court of Appeals.

      2. The Montgomery County Electronic Jury Selection Plan gives the Trial
         Court the authority over the Montgomery County District Clerk, who is in
         possession of the address data, and that data is not part of criminal
         discovery, so the Montgomery County District Attorney is not a proper
         party. Therefore, mandamus against the Trial Court should not have issued
         and this Court should issue mandamus against the Ninth Court of Appeals.

      3. The Compulsory Process Clause grants the Trial Court authority to issue the
         Order to secure petit juror address data. Therefore, mandamus against the
         Trial Court should not have issued and this Court should issue mandamus
         against the Ninth Court of Appeals.

      4. The Fourteenth and Sixth Amendments to the United States Constitution
         provide Davis with the right to be tried by a jury that fairly represents
         Montgomery County, Texas and the testimony from May 21,2014 warrants a
         statistical investigation of the Montgomery County jury summonsing
         process.

      5. Davis has a valid and ripe Constitutional complaint regarding the jury
         summoning process of Montgomery County, Texas. Davis’ complaint is
         supported by evidence and testimony which suggests a systematic exclusion
         of African-Americans in the jury summoning process. The complaint is not
         premature and mandamus relief against the court of appeals should issue.10


ARGUMENT AND AUTHORITIES

      I.      THE STANDARD OF REVIEW FOR OBTAINING MANDAMUS
              RELIEF


      “The traditional two-prong test for mandamus relief requires that a relator show

he has no adequate remedy at law and that the action he seeks to compel is

10
     Appendix A, Reporter’s Record
                                                                                    6
ministerial, rather than one involving judicial discretion.      Padieu v. Court of

Appeals of Tex., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013). “However, when

this Court reviews an appellate court’s mandamus decision, the inquiry is whether

there was a clear abuse of discretion, and this Court’s review is conducted

“essentially conducted by taking a ‘de novo application of the two pronged test

mentioned above.’” Id. Therefore, Davis must show the Ninth Court of Appeals

abused its discretion because (1) the Trial Court did not violate a ministerial duty

and (2) Davis has no adequate remedy at law. Dickens v. Court of Appeals, 727

S.W.2d 542, 550 (Tex. Crim. App. 1987); see also Padieu, 392 S.W.3d at 117.

   In this case, Davis seeks mandamus relief against the Ninth Court of Appeals

after that court conditionally granted mandamus relief against the Trial Court of

the Ninth Judicial District Court of Montgomery County, Texas and asks this

Honorable Court to mandamus the Ninth Court of Appeals and order the Beaumont

Court to withdraw its mandamus order.


   II.   MANDAMUS RELIEF IS APPROPRIATE IN THIS CASE


   At the Ninth Court of Appeals, Relators were the Montgomery County District

Attorney and the District Clerk and they sought a mandamus to vacate the Trial

Court’s order requiring the District Clerk to turn over the electronic address data of




                                                                                    7
those summoned as prospective jurors during 2013. 11 Because this is a case in

which a mandamus has already been conditionally granted, Davis cannot petition

for discretionary review and has no remedy at law other than to seek a mandamus

action against the court of appeals. Padieu, 392 S.W.3d at 117; see also Dickens,

727 S.W.2d at 549.

      Davis has a clear right to relief in having the mandamus against the Trial Court

overturned because the Ninth Court of Appeals clearly abused its discretion. Davis

contends that the Ninth Court of Appeals abused its discretion because: (1) the

Trial Court’s order was not a “ministerial” act since the Plan gives the trial court

the authority to view the summonsed jurors, and (2) the Trial Court’s order did not

violate any provision of the Code of Criminal Procedure or the Texas Government

Code.

         A. RELATOR HAS NO ADEQUATE REMEDY AT LAW

         In this case, the Ninth Court of Appeals conditionally granted a mandamus

against the Ninth Judicial District Court of Montgomery County, Texas. Since

mandamus is an exercise of original jurisdiction, this Honorable Court cannot

review the Ninth Court of Appeal’s action under a petition for discretionary

review; therefore, Davis has no other remedy at law other than to seek a mandamus




11
     Appendix “B” Order dated 4 August 2014 signed by Judge Case
                                                                                     8
action against the Ninth Court of Appeals at Beaumont. Padieu, 392 S.W.3d at

117.


       B. RELATOR HAS A CLEAR RIGHT TO RELIEF


       In order for mandamus to issue, the District Attorney and District Clerk must

show that “there [was] no other adequate remedy available and that the act sought

to be mandated [was] a ministerial act.” Washington v. McSpadden, 676 S.W.2d

420, 422 (Tex. Crim. App. 1984). 12 An action is considered to be “ministerial”

when the law clearly spells out the duty to be performed and does so with such

certainty that nothing is left to the exercise of discretion or judgment. Texas Dept.

of Corrections, Etc. v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981).

Mandamus cannot issue to compel an act that is to any degree discretionary or

debatable, State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex. Crim. App.

1985), and a ruling on a pure question of law is not subject to mandamus review if

that law is unsettled or uncertain. State ex rel. Bill Hill v. Court of Appeals, 67

S.W.3d 177, 180 (Tex. Crim. App. 2001) (Finding legal issue of first impression

too debatable to be subject of mandamus).


       Davis agrees that the District Clerk had no other remedy available at law;

therefore, the writ of mandamus was the correct manner to challenge the trial
12
   The District Attorney was not ordered to produce anything and is not really a real party in
interest. (See Appendix B Order Signed 8/4/2014 by Judge Case.)
                                                                                            9
court’s order. However, the mandamus should not have been conditionally granted

by the Ninth Court of Appeals because the trial court did not abuse its discretion

and the trial court did not violate a ministerial duty. The District Clerk did not

satisfy both prongs of the two part test.


1. The Trial Court’s order to produce the addresses of all jurors summonsed
   during 2013 was not a “ministerial” act because the Montgomery County
   Electronic Jury Selection Plan gives the Trial Court the authority to view
   the      address       data       ordered       to      be       produced.

          An action is considered to be “ministerial” when the law clearly spells out

the duty to be performed and does so with such certainty that nothing is left to the

exercise of discretion or judgment. Dalehite, 623 S.W.2d at 424. Mandamus

cannot issue to compel an act that is to any degree discretionary or debatable,

Mays, 689 S.W.2d at 898. In this case, the Trial Court’s August 4, 2014 Order was

not a violation of a ministerial act because the Montgomery County Electronic Jury

Selection Plan gives the Trial Court the authority to view the data. 13


          The Trial Court ordered the District Clerk to provide address data in

electronic form of all individuals summoned for jury duty during 2013. 14 The


13
     F.   Selection of Jurors: (Gov’t Code 62.011)

(Page 7 of 9) ... The person/vender shall transmit the original summarized jury list containing the
names and addresses of all prospective jurors summoned for each date of appearance to the Jury
Coordinator. The Jury Coordinator/representative shall deliver such list to the County Clerk’s
Office for filing. A duplicate copy shall be retained by the Jury Coordinator, to be viewed
at the Judge’s discretion.”
14
   Appendix B Order Signed 8/4/2014 by Judge Case.
                                                                                                10
names of persons who will be summoned for jury service are electronically chosen

from the Jury Wheel (see

www.mctx.org/dept/departments_d/district_clerk/jury_service.html). This website

states that the list of those summoned is compiled from Texas Driver’s Licenses

and Voter Registration lists, which are both public data sources and which are not

confidential. 15

       The Plan specifically provides in Subsection F that the list containing the

names and addresses of all prospective jurors summoned shall be retained to be

viewed at the Judge’s discretion. The Trial Court’s order states that the address

data of all jurors summoned during 2013 shall be turned over to the defense

experts under a confidentiality agreement to test whether there is a systematic

exclusion of African-American citizens from jury service. Given that the Trial

Court is authorized under the Plan to view the list, it is not unreasonable to contend

that the Trial Court possesses the discretion to permit the juror address data to be

15
   The Plan provides that the sources of the names for the Jury Wheel are as follows:
    A. Sources
    The sources from which all names shall be taken is the current voter registration lists from all
precincts in Montgomery County and all names on a current list to be furnished by the
Department of Public Safety showing the citizens of Montgomery County who hold a valid
Texas Driver’s License and the citizens of the County, other than persons who are disqualified
from Jury service, who hold a valid personal identification card or certificate held by the
Department of Public Safety, except those exempt from jury service as provided by Sections
62.108 and 62.109 of the Government Code; and further provided that at any stage of this plan
the voter registrar of Montgomery County, the Department of Public Safety, the Secretary of
State, or the Montgomery County District Clerk may remove from Jury Service duplications of
any citizen's name, or the name of any citizen who is disqualified from jury service, such as
felons or aliens.


                                                                                                 11
viewed by experts under a confidentiality agreement. The Ninth Court of Appeals

should not have conditionally granted the mandamus against the Trial Court for the

August 4, 2014 Order because the Trial Court’s Order was within its discretion.

See Mays, 689 S.W.2d at 898.


          In sum, because the Plan authorizes the Trial Court to view the data which it

ordered to be turned over to Dr. Karl Eschbach and Mr. Max Beauregard under

confidentiality agreements and because the data already exists this was not a

ministerial act and the Ninth Court of Appeals should not have issued mandamus

relief.


2. The Trial Court did not abuse its discretion.


A. The order to produce limited juror address data did not violate Article
   35.29 of the Code of Criminal Procedure nor Section 62.0132 of the
   Government Code. The Trial Court’s Order was discretionary, not a
   ministerial act; therefore, the Trial Court did not abuse its discretion and
   mandamus           relief       should        not       have          issued.

          The Court of Appeals for the Ninth District of Texas at Beaumont

      incorrectly applied the law. The Beaumont Court equated the information used

      to summons a juror with the information provided by the juror when answering

      the juror questionnaire. 16 As a result, the Beaumont Court wrongly found that

      the “name, address, juror number and TDL or voter registration number on the


16
     Appendix D, Page 4 (the Memorandum)
                                                                                    12
     front of the summons” is confidential under Section 62.0132 of the Texas

     Government Code. 17 The Ninth Court of Appeals concluded that the juror

     summons information provided by the Secretary of State and by the Department

     of Public Safety is confidential when none of the juror summons data ordered to

     be disclosed is labeled as “confidential” by the Texas Legislature. At Page 5 of

     the Memorandum Opinion, the Court stated:


        Davis argues that each summoned juror’s address is not confidential
        in this context, because the questionnaire itself is not being disclosed.
        Montgomery County’s jury selection plan states that the information
        retained by the District Clerk’s Jury Coordinator is a computer
        printout of “the specified number of prospective jurors with their
        name, address, juror number and TDL or voter registration number
        on front of the summons.” This is the confidential information
        mentioned in section 62.0132 of the Texas Government Code and
        article 35.29 of the Texas Code of Criminal Procedure. See Tex. Gov’t
        Code Ann. § 62.0132; Tex. Code Crim. Proc. Ann. art. 35.29. 18 The
        jurors’ personal information is not transformed from confidential to
        public information even though under Montgomery County’s jury
        selection plan the District Clerk prints a “summarized jury list
        containing the names and addresses of all prospective jurors
        summoned for each date of appearance” and a judge who requested a
        jury is allowed to see the printout.




17
   Appendix D, Page 5 (the Memorandum)
18
   Davis did not argue, in this Court or in the trial court, that he presented good cause for the trial
court to order disclosure of personal information about jurors. See Tex. Code Crim. Proc. Ann.
art. 35.29(b) (West Supp. 2014).




                                                                                                    13
      There is a distinction between (a) a person who is summoned for jury

service, (b) a person who responds to such a summons and is included in a venire,

and (c) a person who actually is selected from a venire to serve on a jury. See

Ruiz-Angeles v. State, 351 S.W.3d 489, 496 (Tex.App.— [14th Dist.] 2011) (pet.

refused).

      Persons who are summoned for jury service are also provided a written jury

summons questionnaire (“questionnaire”). The questionnaire is to be completed by

the person who responds to the summons and is included in the venire. The

summons is separate and distinct from the questionnaire. The summons data is

provided by the Texas Secretary of State and Texas Department of Public Safety.

The questionnaire data comes from the person who responds to the summons.

      Accordingly, Article 35.29 of the Code of Criminal Procedure and Section

62.0132 of the Government Code do not apply to this case. Article 35.29 of the

Code of Criminal Procedure restricts the disclosure of information obtained from

jurors by means of juror questionnaires. Section 62.0132 of the Government Code

provides for the confidentiality of such information contained in juror

questionnaires and provides for limited disclosure. Both of these provisions deal

with information obtained from jurors responding to questionnaires and these

statutory provisions should not be expanded to include the data ordered disclosed

in this case, namely, the addresses from all jurors summoned in 2013.


                                                                               14
      When construing a statute, a reviewing court should determine and give

effect to the legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d

525, 527 (Tex. 2000). If the meaning of the statutory language is unambiguous, a

reviewing court adopts, with few exceptions, the interpretation supported by the

plain meaning of the provision's words and terms. See Fitzgerald v. Advanced

Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). If a statute is

unambiguous, rules of construction or other extrinsic aids cannot be used to create

ambiguity. Id. at 866. When interpreting a code enacted by the legislature, the

Court should read words and phrases in context and construe them according to the

rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a). If

words are not defined, they are given their plain and common meaning, unless the

context of the statute indicates a contrary intention or it leads to an absurd result.

See City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).

      In Simmons v. Arnim, 110 Tex. 309, 324, 220 S.W. 66 (Tex. 1920), the

Texas Supreme Court discusses a court's duty when reviewing, addressing and

accepting the plain, unequivocal statutory language:


      Courts must take statutes as they find them. More than that, they should be
      willing to take them as they find them. They should search out carefully the
      intendment of a statute, giving full effect to all of its terms. But they must
      find its intent in its language, and not elsewhere. They are not the law-
      making body. They are not responsible for omissions in legislation. They are
      responsible for a true and fair interpretation of the written law. It must be an
      interpretation which expresses only the will of the makers of the law, not

                                                                                    15
      forced nor strained, but simply such as the words of the law in their plain
      sense fairly sanction and will clearly sustain.


Id. At 70. In Byke v. City of Corpus Christi, 569 S.W.2d 927, 932 (Tex.Civ.App. -

- Corpus Christi 1978), the Thirteenth Court of Appeals also stated that, "When

the courts abandon the plain, ordinary and customary meaning of words in

common usage, statutory construction rests upon insecure and obscure foundations

at best." In Miles v. State, 157 Tex.Crim. 188, 247 S.W.2d 898, 899 (1952) this

Honorable Court stated that, “This court, under the guise of statutory construction,

cannot write into the statute that which is not contained therein.” Davis contends

that the address information used to summons a prospective juror is not

confidential as held by the Ninth Court of Appeals.

a. Article 35.29 of the Code of Criminal Procedure was not violated in this
   case because the juror address data is not to be collected from any juror
   questionnaire or information supplied during the voir dire process.

      Article 35.29 of the Code of Criminal Procedure protects information

collected during the jury selection process from potential jurors. The Article

provides for limited disclosure. The Order in this case had nothing to do with

information collected from persons who serve as a juror or appear during the

venire process. The Order relates to all jurors summoned in 2013 (those who were

mailed a summons) and is limited to the juror address data alone. Thus, Article




                                                                                 16
 35.29 does not apply because the addresses to be reviewed by the experts relate to

 the jury summoning process, not the jury selection process 19.


 b. Section 62.0132 of the Texas Government Code is not violated in this case
    because the address data is not being collected from a jury questionnaire.

        Section 62.0132 of the Texas Government Code protects information

 contained in jury questionnaires. The Order in no way relates to information

 contained in jury questionnaires. No information from juror questionnaires is

 being requested; therefore, Section 62.0132 is wholly inapplicable.20


 c. The address data of those summoned is not protected information.

i. The addresses of those jurors summoned are available from public sources.


        The August 4, 2014 Order only orders the District Clerk to turn over the

 addresses of those persons summoned during 2013. 21 Moreover, the information is

 being given to retained experts under confidentiality agreements.22 The addresses

 of those registered to vote in the county are easily obtainable through the

 Montgomery County Elections Administration. 23 All that is required to obtain the

 names and addresses of every person registered to vote in Montgomery County is


 19
    Section 62.0132(f), Texas Government Code makes juror supplied information obtained
 through questionnaires confidential and does not address the summons process.
 20
    Article 35.29(a), Texas Code of Criminal Procedure, provides that information collected by the
 court or a prosecuting attorney during the jury selection process….is confidential.
 21
    Appendix B Order Signed 8/4/2014 by Judge Case.
 22
    Appendix B Order Signed 8/4/2014 by Judge Case.
 23
    See http://www.mctx.org/election/
                                                                                               17
 for a request to be made.         The information is then available for download

 immediately and no fee is required for this service. 24


       Given that the jury list is compiled using the voter registration list and that

 the names and addresses of all on the jury list are available publicly, it was not an

 abuse of discretion for Trial Court to order just the addresses of those summoned

 to be turned over to the defense experts under confidentiality agreements. In fact,

 the juror address information is more protected under the trial court’s order than

 other methods by which such information is typically made available to the public.


ii. The private vendor given the juror information is not under a confidentiality
    agreement; however, the experts in this case will be subject to a
    Confidentiality Agreement.

       The Plan provides for a person or vendor to print out the summons for jurors

 after a request for jurors has been made. 25 The Plan does not state whether this

 person or outside vendor is under any type of confidentiality requirement. Yet,

 once again, the trial court’s August 4, 2014 Order does provide for the addresses to

 be given to the retained experts under a confidentiality agreement. 26 The Order

 further provides for the addresses data to “only be used for the purposes stated in

 this Order and not disseminated or shared with any other person or entity.” 27


 24
    See http://www.mctx.org/election/
 25
    Appendix C (The Plan)
 26
    Appendix B Order Signed 8/4/2014 by Judge Case.
 27
    Appendix B Order Signed 8/4/2014 by Judge Case.
                                                                                   18
iii.      The Jury Selection Plan states that the Judge has discretion to review
          the list of all summoned prospective jurors and the Judge has appointed
          experts to review only the jury address data.

       The Plan states that the jury list containing the names and addresses of all

prospective jurors summoned for each date of appearance shall be retained to be

viewed at the Judge’s discretion.28 Given that the Trial Court can view the list, it

is not unreasonable that the Trial Court may permit experts to view the data in the

Trial Court’s place in order to conduct a study.


       In sum, only the addresses of those summoned for jury duty in 2013 is in

contention. Those persons registered to vote in Montgomery County are already

subject to having their names and addresses given out upon a public information

request that is available to be online at no charge. The trial court’s order does not

order names to be disclosed. Just addresses. Given that the Trial Court can view

the list itself, it is not offensive for retained experts under confidentially

agreements to see the addresses of those summoned for jury during 2013.


B. The Trial Court has authority over the District Clerk of Montgomery
   County; therefore the Trial Court’s Order to turn over address data was
   not an abuse of discretion and mandamus relief should not have issued.

          As held in United States of America v. Kaboni Savage, Robert Merritt,

       Steven Northington, Kidada Savage, 2012 U.S. Dist. LEXIS 142844 (E.D. Pa.,

       2012), the Clerk of the Court is the party who holds the juror information
28
     Appendix C, Page 8 (the Plan)
                                                                                  19
   requested and the party who “bears the burden” of providing the defendant with

   access to the juror information. See Id. at 21. The Court in United States of

   America v. James Stile, 2014 U.S. Dist. LEXIS 65390 (D. Me., 2014) also

   ordered the Clerk of the Court to provide the defense with juror information.

   Accordingly, in this case, the trial court did have the authority to order the clerk

   of the court, the Montgomery County District Clerk, to provide the defense with

   the address data.


      Furthermore, the trial court has authority over the District Clerk pursuant to

   Section 62.011(b)(4) of the Texas Government Code, the Plan, and according to

   the compulsory process clause of the Sixth Amendment to the U.S.

   Constitution.


1. §62.011(b)(4) of the Texas Government Code and Montgomery County
   Electronic Jury Selection Plan Sections (B), (E), and (F) all provide that the
   District    Clerk    is    the    agent      of    the     District    Court.

      The District Clerk was ordered to produce information which the District

Clerk possesses as a result of her official designation. The Plan provides:


                   B.     Official in Charge: (Gov’t Code Sec. 62.001, b-1)

                         The District Clerk of Montgomery County, Texas is
                   designated as the official in charge of the Montgomery
                   County Jury Selection process...




                                                                                    20
E.    Presiding Judge/Appointee: (Gov’t Code Sec. 62.011,
62.110-b)

      The District Clerk, appointed by the Presiding Board
of Judges on August 5, 2005...


F.    Selection of Jurors: (Gov’t Code 62.011)


       Each week or month, or three (3) weeks prior to
requested appearance, the Court Coordinator, under the
direction of the Judge of each County and District Court
shall submit to the District Clerk Jury Coordinator a Court’s
“Request for Jurors.” (Being form #2 of the Jury Pool
Guidelines). The request shall specify the following:

         1.   dates of appearances;
         2.   number of jurors to appear for each date;
         3.   appearance time for each date; and
         4.   the Courtroom or place designated as a Courtroom
              or assembly area for jurors to appear on each date.


       On Thursdays of each week, the Jury Coordinator or
representative will calculate from the timely filed requests, the
specified number of jurors to appear three weeks away. The
Jury Coordinator shall electronically transmit these requests to
the designated person/vendor. The designated person shall
cause their computer to print out the specified number of
prospective jurors with their name, address, juror number and
TDL or voter registration number on front of the summons.
These summons shall be placed in the mail within two (2) days
from the date of request by jury coordinator, per designation of
the Sheriff. The person/vender shall transmit the original
summarized jury list containing the names and addresses of
all prospective jurors summoned for each date of appearance
to the Jury Coordinator. The Jury Coordinator/representative

                                                               21
                      shall deliver such list to the County Clerk’s Office for filing. A
                      duplicate copy shall be retained by the Jury Coordinator, to
                      be viewed at the Judge’s discretion.”


                                                      29
The Montgomery County Jury Selection Plan                  (Emphasis added). Each of the

above provisions show the District Clerk is essentially the agent of the trial court.


       The District Clerk already possesses the data in the form the District Clerk

was directed to produce.30 It is as a result of the designation by a majority of the

Judges of District Court of Montgomery County, Texas, that the District Clerk is

the official who handles juror data and is designated as the official in charge of the

Montgomery County Jury Selection Process. In this specific capacity, the District

Clerk is under the direction of the District Judges and this designation was made

under the provision of Section 62.011 of The Texas Government Code.


       2.     The District Clerk consented to the District Court’s personal

jurisdiction.

       Not only is the District Clerk the agent of the District Court Judges, but the

District Clerk waived any argument to jurisdiction over her office when she filed
                                      31
her Motion for Protective Order            and when she appeared through counsel at the



29
   Appendix C (the Plan), (B), (E), and (F).
30
   Appendix C (The plan) (F)
31
   Appendix E (Motion for Protective Order)
                                                                                        22
hearing on May 21, 2014. See Ins. Corp. of Ir. v. Compagnie Des Bauxites De

Guinee, 456 U.S. 694, 703 (U.S. 1982).


3.     The   electronic    data   ordered    to   be   produced,    already   exists.

         The Trial Court’s Order states:


         “IT IS ACCORDING ORDERED that the District Clerk of Montgomery
         County produce to the experts appointed by this Court in this cause, to-wit:
         Dr. Karl Eschbach, and Mr. Max Beauregard, the address data of all jurors
         summoned for jury duty during the calendar year 2013 in electronic form.
         ...” 32

         The August 4, 2014 Order provided only the address data of all jurors

summoned be given to the experts. The Order further stated that the experts must

execute confidentiality agreements to ensure the data will only be used for the

expert’s limited purpose of determining whether there is a systematic exclusion of

African-American citizens from jury service in Montgomery County, Texas. The

address data of all prospective jurors who were summoned during 2013 already

exists. Section F of the Montgomery County Electronic Jury Selection Plan at

page 8 of 9 provides that the “summarized jury list containing the names and

addresses of all prospective jurors summoned for each date of appearance” will be

filed with the County Clerk’s office and “A duplicate copy shall be retained by the

Jury Coordinator, to be viewed at the Judge’s discretion.” Therefore, the Trial


32
     Appendix A
                                                                                  23
Court’s Order calling for the production of juror address data of those summoned

in 2013 already exists in an electronic format.       The County Clerk and Jury

Coordinator both have a copy of the address information, although the juror’s

name must be removed, but the information already exists and should be easily

obtainable. Furthermore, the Plan provides that the Judge may view said jury list

at his discretion. Given that the address data exists and is subject to be reviewed

by the Judge (or the experts he has appointed), it is not an undue burden for the

District Clerk to produce the address data in electronic format.

C.    Article 39.14 of the Texas Code of Criminal Procedure is inapplicable
      case as the requested juror address data is not in possession of the
      District Attorney nor any of his agents; therefore, the Trial Court did
      not abuse its discretion and mandamus relief should not have issued.

      The District Attorney of Montgomery County argued that the broad

discovery provision in Article 39.14 of the Texas Code of Criminal Procedure

establishes that the Trial Court cannot issue the order for juror addresses. Davis

agrees in as much as the discovery statute is not on point in this case because the

District Attorney nor any agent or representative of the State possess the address

data. The juror address data is in the possession of the District Clerk and the Code

of Criminal Procedure is not on point.

D. The Compulsory Process Clause authorizes the Trial Court’s action;
   therefore, the Trial Court did not abuse its discretion and mandamus relief
   should not have issued.



                                                                                 24
      Davis further contends that under the compulsory process clause of the Sixth

Amendment to the U.S. Constitution, the trial court has the authority to issue an

order to secure petit juror information. Davis has presented evidence questioning

the fair and reasonable representation of African-Americans in the jury selection

process. The Sixth Amendment to the U.S. Constitution provides for trial by an

“impartial jury of the State and district wherein the crime shall have been

committed”. The Sixth Amendment further guarantees that a defendant may call

witnesses on his behalf and compel a witness’s presence by subpoena. Davis

argues that the compulsory process clause also guarantees that a court has the

power to issue an order for the District Clerk to produce juror address data.

E. The juror address information is needed to ensure that Defendants in
   Montgomery County are tried by a Constitutionally valid jury; therefore,
   the Trial Court did not abuse his discretion and mandamus relief should
   not have issued.


      “It is a denial of the equal protection of the laws to try a defendant of a

particular race or color under an indictment issued by a grand jury, or before a petit

jury, from which all persons of his race or color have, solely because of that race or

color, been excluded by the State, whether acting through its legislature, its courts,

or its executive or administrative officers.” Hernandez v. Texas, 347 U.S. 475, 477

(U.S. 1954). Davis’s position is not that there must be African-Americans on each

jury panel of Montgomery County, but the limited research already conducted and


                                                                                   25
the testimony of seasoned criminal defense attorneys in Montgomery County

shows there is a breakdown in the jury summonsing process and the address data is

needed.


      The Fourteenth Amendment requires that equal protection must be given to

all. U.S. CONST. amend. XIV, § 1; Tex. Const. art. I, §§3, 19. Additionally, the

Sixth Amendment requires that the selection of a petit jury must come from a

cross-section of the community that fairly represents that community. U.S. CONST.

amend. VI. Combined, the two provisions provide every person with the right to

be tried by a jury that fairly represents the community in which he is tried.


1.    The Fourteenth Amendment requires that equal protection must
      actually be given to all and not merely an empty promise.

       The Fourteenth Amendment requires that equal protection must be given.

U.S. CONST. amend. XIV, § 1; Tex. Const. Art. I, §§3, 19. This right is not just

another empty promise on a cherished piece of paper; it is a right that has “bite.”

“It is part of the established tradition in the use of juries as instruments of public

justice that the jury be a body truly representative of the community.” Smith v.

Texas, 311 U.S. 128, 130 (U.S. 1940). “For racial discrimination to result in the

exclusion from jury service of otherwise qualified groups not only violates our

Constitution and the laws enacted under it but is at war with our basic concepts of




                                                                                   26
a democratic society and a representative government. 33 Id. “The fact that the

written words of a state’s laws hold out a promise that no such discrimination will

be practiced is not enough.” Id. “The Fourteenth Amendment requires that equal

protection to all must be given – not merely promised.”


       Following this line of reasoning from the United State Supreme Court as

quoted herein, it follows that just because the laws of this State set forth a

mechanism of selecting members of the Montgomery County population for the

petit jury, and those mechanisms alone do not appear to be discriminatory that does

not mean discrimination is not occurring in Montgomery County, Texas. The

Fourteenth Amendment requires that equal protection must actually be given; a

promise of equal protection is not good enough. See id. That is why it is so

important in this case for this Honorable Court to overturn the mandamus granted

by the Ninth Court of Appeals. The Trial Court found, after hearing arguments of

counsel, examining the pleadings, and hearing the testimony given, that there does

appear to be a problem with the Montgomery County jury system. The juror

address data covered by the Trial Court’s order is to investigate the jury system of

Montgomery County and to ensure that equal protection is being given to the




33
  “No citizen possessing all other qualifications ... shall be disqualified for service as grand or
petit juror in any court of the Unit States, or of any State, on account of race, color, or previous
condition of servitude; ...” 18 Stat. 336, 8 U.S.C. §44.”
                                                                                                 27
citizens of Montgomery County. This information is needed to ensure that the

Fourteenth Amendment has not been turned into an empty promise.


      In this case, when the Trial Court ordered the District Clerk to give to Davis’

experts the addresses of prospective jurors summoned during 2013 under

confidentiality agreements, the Trial Court did not abuse its discretion. Instead, the

Trial Court was taking steps to ensure that the defendant is, in fact, getting equal

protection under the laws of this State. In light of the evidence from the May 2014

hearing, the Trial Court’s order allows the defense the opportunity (1) to test the

fairness of the jury summonings system of Montgomery County and (2) to prove

that the summonings system of jurors does not provide a random and fair cross-

section of the community.


2. The Sixth Amendment right to a jury trial requires selection of a petit jury
   from a representative cross section of the community.

      The Supreme Court of the United States has found that “the selection of a

petit jury from a representative cross section of the community is an essential

component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419

U.S. 522, 528 (U.S. 1975). Encompassed among a defendant’s right to trial by

jury is the right to a petit jury that is selected “at random from a fair cross section

of the community in the district ... wherein the court convenes.” Id. at 529, citing

28 U.S.C. §1861. Having a jury that comes from a fair cross-section of the

                                                                                    28
community is “fundamental to the American system of justice.” Id. at 530. The

right to have a trial by jury “presupposed a jury drawn from a pool broadly

representative of the community....” Id.


      In order to make a prima facie showing that the jury selection process violates

the fair cross-section of the community requirement of the Sixth Amendment, a

Defendant must show: (1) that the group alleged to be excluded is a "distinctive"

group in the community: (2) that the representation of this group in venires from

which juries are selected is not fair and reasonable in relation to the number of such

persons in the community; and (3) that this under-representation is due to systemic

exclusion of the group in the jury selection process. Missouri v. Duren, 439 U.S.

357, 364 (U.S. 1979).


      In this case, the group being is excluded, African-Americans, is a distinctive

group. Ramseur v. Beyer, 983 F. 2d 1215, 1230 (3d Cir. 1992). Davis has elicited

testimony that the representation of African-Americans in the jury selection process

is not fair and reasonable considering the number of such persons in the community.

Davis sought the information ordered disclosed by the trial court show a statistical

disparity between the venire and the population of the county.


      The United States of America v. Kaboni Savage, Robert Merritt, Steven

Northington, Kidada Savage, 2012 U.S. Dist. LEXIS 142844 (2012) is a federal


                                                                                   29
case similar to the case at hand. In that case, the African-American defendant

believed the racial makeup of the Eastern District of Pennsylvania, when compared

to Philadelphia County, did not represent a fair cross-section of the community.

Id. at 2-5. The defendant was relying on census data to show the dilution of

African-Americans, but “use of census data alone is insufficient to establish a

constitutional violation.” Id. at 12 citing United States v. Murphy, 464 F. App’x

60, 63 (3d Cir. 2012). Therefore, the defendant was seeking disclosure of a host of

things related to the jury summonsing process and the Government was refusing to

disclose any information that exposed personal information of prospective jurors.

United States of America, 2012 U.S. Dist. LEXIS 142844 at 14-16.


      While analyzing the requested information in light of the law regarding a

jury selection process that violates the fair cross-section of the community

requirement of the Sixth Amendment, the Court held that making the prima facie

showing “requires a showing of a statistical disparity between the entire venire and

the population of the district.” Id. at 17 citing United States v. Weaver, 267 F.3d

231,240 (3d Cir. 2001) (“Noting that proof of a fair cross-section claim is a

‘mathematical exercise, and must be supported by statistical evidence”). A federal

statute on point “makes clear that a litigant has essentially an unqualified right to

inspect jury lists and grants access in order to aid parties in the preparation of

motions challenging jury-selection procedures.” United States of America, 2012

                                                                                  30
U.S. Dist. LEXIS 142844 at 18-19; See 28 U.S.C. §1867(f); See also United States

v. Test, 420 U.S. 28, 29-30 (1975). While this is “not a license for litigation to

rummage” through jury records, it does afford inspection to complete a

determination of whether the jury is being selected at random from a “fair cross-

section of the community.” United States of America, 2012 U.S. Dist. LEXIS

142844 at 19-20. While the Court held it would not provide the source lists, it did

state that the Defendant was entitled to receive “spreadsheets containing the

information he seeks.” Id. at 21.


      Given that defendants have the right to be tried by a jury that fairly

represents their community, see id., in this case, the Trial Court did not abuse its

discretion when it ordered the District Clerk to turn over the address data. The

2013 address data will be used by the experts to determine if the number of

African-Americans summoned for jury process in Montgomery County reflects the

African-American population in Montgomery County. Just like in United States

of America v. Kaboni Savage, Robert Merritt, Steven Northington, Kidada Savage,

the defense in this case needs the statistical evidence to accompany the census data

it has gathered and experts it has retained. The information in the District Clerk’s

possession will either confirm or rule out a statistical disparity between the

population of Montgomery County and the entire venire.



                                                                                  31
      The Hernandez Court said, “Circumstances or chance may well dictate that

no persons in a certain class will serve on a particular jury or during some

particular period. But it taxes our credulity to say that mere chance resulted in there

being no members of this class among the over six thousand jurors called in the

past 25 years. The result bespeaks discrimination, whether or not it was a

conscious decision on the part of any individual jury commissioner.” Hernandez,

347 U.S. at 482. Davis’s maintains that there is a systematic exclusion of African-

Americans on jury panels in Montgomery County, Texas. Davis is not claiming

that there must be a certain number of African-Americans on each panel, but given

the testimony from the May 21, 2014 hearing and the limited research already

complied by the experts, there is something wrong with the Montgomery County

jury selection process and it needs further investigation and the address data of

jurors summoned for 2013 to be provided. The mandamus conditionally granted

by the Ninth Court of Appeals should be overturned by this Honorable Court.


F. The Constitutional complaint is ripe and valid; therefore, the Trial Court
   did not abuse its discretion and mandamus relief should not have issued.

      At the hearing on May 21, 2014 regarding Davis’s Motion for Disclosure of

Information, the defense called nine witnesses to support disclosing the addresses

of summoned jurors to the retained experts in an effort to show there is a

demonstrable and noticeable absence of African-Americans in the jury panels of


                                                                                    32
Montgomery County, Texas.34 Of the nine witnesses, seven were attorneys who

practice primarily in Montgomery County, Texas, all with a lengthy history of

practicing criminal law. The sum of their testimony is that it is very rare for people

of African-American decent to appear in the jury pool. 35 Dr. Karl Eschbach

testified that if you take a jury pool of 60 people, only seven percent (7%) of those

jury pools should have no African-American representatives. 36 However, the

testimony of the lawyers who have had substantial criminal practice in

Montgomery County stated it was not uncommon to have no African-American

representatives in about fifty percent (50%) of cases tried in Montgomery

County. 37

       Based on the limited information already available to Davis, there appears to

be a systematic exclusion of African-Americans in the jury selection process given

that only 7% of cases should have no African-Americans in the jury pool and the

testimony at the hearing establishes that approximately 50% of jury pools with no

African-Americans represented. Davis has used the correct procedures in this case

because he “need only allege that he is preparing a motion to challenge the jury

selection process in order to ‘avail himself of the right of access to jury selection


34
   Appendix A, Reporter’s Record, Vol. 1, pg 3
35
   Appendix A, Reporter’s Record, Vol 1., pg. 21-64; 99-105.
36
   Appendix A, Reporter’s Record, Vol, 1, pg 80
37
   Appendix A, Reporter’s Record, Vol 1., pg. 21-64; 99-105 and pg 80.


                                                                                   33
records’.”     United States v. Royal, 100 F.3d 1019, 1025 (1st Cir. 1996).

Furthermore, Davis’s constitutional complaint is recognizable and there was

evidence produced at the hearing showing there seems to be exclusion of a

distinctive group of jurors in Montgomery County. See Duren, 439 U.S. at 364.38


1. Because Davis is not seeking information from questionnaires, his
   challenge is not premature.

       Davis’s claim for juror information is ripe for review.                   Davis is not

challenging the array in his case. The challenge is to the jury summoning process

in Montgomery County as a whole. The defense is attacking at the forefront of this

case the problems with the Montgomery County jury panels, instead of waiting for

the jury panel to walk into the court room, a recess be called and then all of this

research commence.             Davis is not requesting juror information from

questionnaires; therefore, his challenge is not to the array and is not premature.


2. Evidence produced at the May 21, 2014 hearing demonstrates there is an
   apparent exclusion of African-Americans in the jury summonsing process.



38
   The difference in the August 4, 2014 Order from the prior order in 2013 is that this time Davis
did produce evidence at the hearing suggesting Montgomery County has a practice that results in
the exclusion of African-Americans and it could be the result of juror summons not going to the
portion of the county where the majority of this race reside. If the addresses alone are given to
the experts, they can lay that information over the 2010 census maps and see if the correct
percentage of jury summons are going to those particular areas. The address data will show
whether African-Americans are being excluded based on their location in the community.
Additionally, the claim is not prospective this time around because the information Davis seeks
is not from jury questionnaires, but rather from the summoning process itself.


                                                                                               34
       The Order in contention requires the production of the addresses of all jurors

summoned in 2013.39 The defense made a prima facia showing at the hearing that

there is a noticeable absence of African-Americans in the jury panels of

Montgomery County. 40 Dr. Eschbach testified he believed there was at least a

basis to conduct research to investigate the under-representation of African-

Americans on jury pools in Montgomery County. 41 He further testified he has the

ability to take the address data and compare it to the 2010 census information to

conduct a scientific, statistical analysis to determine if the jurors summoned are

consistent with the representation of African-Americans in Montgomery County. 42



PRAYER FOR RELIEF

       Relator respectfully requests this court to issue mandamus relief against the

Ninth Court of Appeals at Beaumont.




39
   Appendix A
40
   See generally Appendix A, Reporter’s Record
41
   Appendix A, Reporter’s Record, Vol. 1, pg 73-74.
42
   Appendix A, Reporter’s Record, Vol, 1, pg 74-75.
                                                                                  35
                                         RESPECTFULLY SUBMITTED,

                                         BRASS & McCOTTER
                                         207 SIMONTON
                                         CONROE, TEXAS 77301
                                         rbrass1@yahoo.com
                                         Tel (936) 788-5700
                                         Fax (936) 788-5701




                                             Rick Brass
                                         By:_________________________________
                                           RICK BRASS
                                           Texas Bar No. 02909450




                           CERTIFICATE OF SERVICE

      I hereby certify that true and correct copies of the foregoing instrument were
mailed to the Respondent and counsel for the real parties in interest on the date of
the mailing of the original to the Clerk of this Court.




                                         Rick Brass
                                         ________________________________
                                         RICK BRASS




                                                                                       36
                               VERIFICATION

    BEFORE ME the undersigned authority this date personally appeared RICK
BRASS, who after being sworn by me did state upon his oath the following:

       I, RICK BRASS, do hereby swear and affirm that the facts stated above are
true and correct based on personal knowledge.




                                     Rick Brass
                                    ________________________________
                                    RICK BRASS


                                                 28th
         SUBSCRIBED AND SWORN TO before me this ______ day of
 January
_______________ 2015.



                                    Emily S. Knez        Commission Expires 3/20/2015.30
                                    ____________________________________
                                    NOTARY PUBLIC – STATE OF TEXAS




                                                                                       37
                                           APPENDICES




Appendix A - Reporter’s Record .................................................2, 3, 4, 6, 23, 33, 35

Appendix B - Order dated 4 August 2014 signed by Judge Case .......3, 9, 10, 17, 18

Appendix C - Jury Selection Plan ............................................................4, 18, 19, 22

Appendix D - Memorandum ..............................................................................12, 13

Appendix E - Motion for Protective Order ..............................................................22




                                                                                                         38
Appendix A - Reporter’s Record
                                                           1




1                         REPORTER'S RECORD
                         VOLUME 1 OF 1 VOLUMES
2
              TRIAL COURT CAUSE NO. 13-05-05517-CR
3
     THE STATE OF TEXAS,      ) IN THE DISTRICT COURT OF
4                             )
                              )
5                             )
      VS.                     ) MONTGOMERY COUNTY, TEXAS
6                             )
                              )
7    LEON DAVIS,              )
                              )
8       Defendant.            ) 9TH JUDICIAL DISTRICT
9
10      ***********************************************
11                 HEARING ON DEFENDANT'S MOTION FOR
                      DISCLOSURE OF INFORMATION
12
        ***********************************************
13
14          On the 21st day of May, 2014, the following
15   proceedings came on to be heard in the above-entitled
16   and numbered cause before the Honorable Kelly W.
17   Case, Judge presiding, held in Conroe, Montgomery
18   County, Texas.     Proceedings reported by machine
19   shorthand.
20
21
22
23
24
25
                                                    2




1                    A P P E A R A N C E S
2
3    Mr. Andrew D. James
     SBOT NO. 24060997
4    Mr. William J. Delmore
     SBOT NO. 05732400
5    MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE
     207 West Phillips, Second floor
6    Conroe, Texas 77301
     Phone: (936) 539-7800
7    ATTORNEYS FOR THE STATE OF TEXAS
8
     Mr. Stuart A. Hughes
9    SBOT NO. 24041151
     MONTGOMERY COUNTY ATTORNEY'S OFFICE
10   501 North Thompson, Suite 300
     Conroe, Texas 77301
11   Phone: (936) 539-7828
     ATTORNEY FOR MONTGOMERY COUNTY
12
13   Mr. Rick Brass
     SBOT NO. 02909450
14   BRASS & MCCOTTER
     207 Simonton
15   Conroe, Texas 77301
     Phone: (936) 788-5700
16   ATTORNEY FOR LEON DAVIS
17
18
19
20
21
22
23
24
25
26
                                                                   3




1                             I N D E X
2                              VOLUME 1
3       (HEARING ON DEFENDANT'S MOTION FOR DISCLOSURE OF
4                            INFORMATION)
5                                                    Page     Vol.
     May 21, 2014
6
7    Proceedings                                      4        1
8
9    STATE'S WITNESSES
     (None)
10
     COUNTY ATTORNEY'S WITNESSES
11   (None)
12
     DEFENDANT'S WITNESSES
13                            Direct     Cross    Voir Dire   Vol.
     Lydia Clay-Jackson       21         27                    1
14   E. Tay Bond              29, 36     34                    1
     Jerald Crow              38, 46     44                    1
15   Patricia Maginnis        47         53                    1
     Brian Burns              56                               1
16   Ray Stokes               64, 66     66                    1
     Karl Eschbach            68, 89     80, 83                1
17   Max Beauregard           90                               1
     Gilbert Garcia           99         105                   1
18
19
     Defendant rests                                107        1
20
     Both sides close                               107        1
21
22   Adjournment                                    124        1
23   Court Reporter's Certificate                   125        1
24                           EXHIBIT INDEX
25                              (None)
                                                                   4




1                  (Open Court. Defendant and all parties
2    present)
3                  THE COURT:    Let me -- Mr. Brass?
4                  MR. BRASS:    Yes, Your Honor.
5                  THE COURT:    Help me, get me up to speed
6    on where we are.   I know I've got your application for
7    deposition.   I'm trying to find in there your filings.
8                  MR. BRASS:    Judge, for the record, let me
9    announce that I'm formally withdrawing and abandoning
10   my request to take anyone's deposition.
11                 THE COURT:    Okay.
12                 MR. BRASS:    I'm formally withdrawing and
13   abandoning my motion to change venue.
14                 THE COURT:    I don't have that.
15                 MR. BRASS:    It's deep in one of the
16   files.   It was an early motion that was part of the
17   basis for the previous ruling and that was overturned
18   by the Court of Appeals.
19                 THE COURT:    Okay.    There is a lot in this
20   file that's tabbed.
21                 MR. BRASS:    Right.
22                 THE COURT:    So give me a second and see
23   if I can put my hands on it.    Do you know about when
24   you filed that?    Okay.   I've got it.   May 15th, 2013,
25   motion for change of venue.
                                                                   5




1                    MR. BRASS:   Yes.
2                    THE COURT:   So you're withdrawing that at
3    this time?
4                    MR. BRASS:   Yes, Your Honor.   I'm
5    abandoning and withdrawing any requests for any juror
6    questionnaire material the -- it was issues previously
7    about 600 -- I think 600 pieces of information we were
8    requesting.    It was E-jury information.    I'm abandoning
9    all of that.    And today the only thing that I'm going
10   forward on is the pending motion to produce juror
11   address data.
12                   THE COURT:   Okay.   Was that filed back in
13   2013 as well or is that recent?
14                   MR. BRASS:   It was this year I believe,
15   Judge.   Give me a second.    On or about November 12th of
16   '13.
17                   THE COURT:   Motion challenging the jury
18   summoning based on racial bias?
19                   MR. BRASS:   Yes, just following that
20   motion to produce juror address data.
21                   THE COURT:   I have it standing on its
22   own.   All right.   Just your application for your
23   deposition of witnesses is also been abandoned and
24   withdrawn?
25                   MR. BRASS:   Yes, Judge.   The motion to
                                                                    6




1    produce juror -- I'm sorry -- was filed March 4th,
2    2014.
3                   THE COURT:    I don't have my hands on that
4    one yet.   Let me find it.    Motion for juror address
5    data?
6                   MR. BRASS:    Yes, Your Honor.
7                   THE COURT:    Okay.   Got it.   Okay.   So
8    that's the only motion you're moving forward on today?
9                   MR. BRASS:    Yes.    I will also say for the
10   record that the information that I'm requesting in this
11   motion is to support and enable me to proceed on the
12   underlying motion which is challenging the jury
13   summoning process of Montgomery County based on racial
14   bias.    I'm asking for the data so that I can support
15   the basis of that motion.     But the purpose of the
16   hearing today in terms of what I've noticed the other
17   side is simply the production of the address data.
18                  THE COURT:    Okay.   Who's handling the
19   case on the other side?
20                  MR. HUGHES:   Your Honor, Stuart Hughes
21   from the County Attorney's Office on behalf of
22   Montgomery County District Clerk's Office, specifically
23   Brenda Shank and Ed Stokes were subpoenaed to be here
24   today.   I'll be speaking on their behalf.      I have filed
25   something in the opposition to the motion to produce
                                                                   7




1    summoned jury address data.
2                   MR. JAMES:    Judge --
3                   THE COURT:    What did you file,
4    Mr. Hughes?
5                   MR. HUGHES:   I filed on April 16th, 2014
6    District Clerk's response to Leon Davis' application
7    for deposition which he just withdrew.       But on April
8    17th, we filed District Clerk's Motion for Protective
9    Order, Your Honor, regarding that motion to produce the
10   jury address data.
11                  THE COURT:    Okay.    I've got a protective
12   order.   All right.   Anything else you filed,
13   Mr. Hughes?
14                  MR. HUGHES:   That's it, Your Honor.
15                  THE COURT:    Okay.    And then next --
16                  MR. JAMES:    Judge, Mr. Delmore and myself
17   will be handling things on behalf of the District
18   Attorney's Office.    I know we filed a few responses as
19   well.    May 16th we filed State's response to Defense's
20   motion to produce juror addressed data.
21                  THE COURT:    Okay.    May 16th.
22                  MR. JAMES:    And then we filed, I believe,
23   something else prior in regards to Mr. Brass's motion
24   that he's just withdrawn.     So --
25                  THE COURT:    Well, that kind of makes it
                                                                 8




1    moot.
2                   MR. DELMORE:   Judge, Mr. James is going
3    to do most of our advocacy today.     But can I just ask
4    one quick question of Mr. Brass?
5                   THE COURT:   Sure.
6                   MR. DELMORE:   Rick, you say you're not
7    questioning any information from the juror
8    questionnaires.   You just want address data.    But the
9    address data you want is linked to the race of the
10   prospective jurors?
11                  MR. BRASS:   No.   That's incorrect.
12                  MR. DELMORE:   You don't care what the
13   race is?
14                  MR. BRASS:   Correct, I do not.   That's
15   not what I'm asking for.
16                  MR. DELMORE:   All right.   Because I was
17   thinking you needed the questionnaires to get the
18   racial data.   All right.
19                  THE COURT:   So anything else to clear up?
20                  MR. BRASS:   If there is some confusion on
21   their part as to what my premises is, I can cover that
22   in a very brief opening statement.
23                  THE COURT:   First I want to make sure
24   that I've got the motions and the responses to the
25   motions lined up so I know what the arguments are, and
                                                                    9




1    then I'll be glad to hear any testimony and anything
2    else.    But I'm trying to get a handle on -- this file
3    is getting a little big, and there is a lot of loose
4    filings that have been done in the last couple of
5    months.   So I want to make sure I know exactly what I'm
6    addressing today.   I've got your motion to produce
7    juror address data.   I've got State's response to
8    defendant's motion to produce juror address data.       And
9    then I've got a Montgomery County District Clerk,
10   Barbara Adamick's motion for protective order.        Is that
11   all I'm addressing today?
12                  MR. BRASS:   Judge, I was distracted for a
13   second.
14                  THE COURT:   Don't get distracted,
15   Mr. Brass.   I'm trying to line all this up.      Motion to
16   produce juror address data, Mr. Brass.      State's
17   response to defendant's motion to produce juror address
18   data, Mr. James; and Montgomery County District Clerk,
19   Barbara Adamick's motion for protective order,
20   Mr. Hughes; is that it?
21                  MR. BRASS:   As far as we understand, yes,
22   Judge.
23                  THE COURT:   Okay.    All right.   Mr. Brass,
24   your motion is pretty simple.       You want to go ahead and
25   tell me what you're arguing for?
                                                               10




1                  MR. BRASS:   Judge, we believe that there
2    is a demonstrable and apparent disproportionate number
3    of citizens of African-American decent on our jury
4    panels.   We do not know why that is occurring.   We have
5    come up with a hypothesis that the reason black members
6    are not showing up on the jury panel is because there
7    is a defect in the way jurors are summoned.   In order
8    to find out if that hypothesis is correct, if it can be
9    demonstrated scientifically, we are asking for the
10   district clerk to produce electronically the data of
11   the summoned jurors for the year 2013.   It is our
12   intention -- we have experts here to testify about
13   this -- that with that data we can overlay that data on
14   to the 2010 census data, and the scientists will be
15   able to discern whether the jury summoning process is
16   racially neutral.   And the only way to do that is with
17   this electronic data.   We are drawing a distinction
18   between confidential juror information and electronic
19   summoned juror address data.   We believe that the
20   clerks that are here to testify will testify that the
21   jurors are summoned through an electronic data system,
22   perhaps through an outside vendor and that jurors are
23   summoned through the mail; and therefore, the data that
24   we're seeking exists.   We're not asking anybody to
25   create it.   We are simply asking them to share it with
                                                               11




1    us.   We believe they have it.     We believe that the laws
2    of our state and our constitution and the case law
3    support that we should be able to get it if we ask for
4    it.
5                  THE COURT:   I have a feeling I'm missing
6    a key element of what you're asking for because right
7    now I don't see a distinction between what you're
8    asking for now and what you asked for a year ago that
9    was shot down by the Court of Appeals.
10                 MR. BRASS:   We are not asking for any
11   information that is collected as part of the jury
12   selection process.
13                 THE COURT:   Okay.
14                 MR. BRASS:   That's what they focused on.
15   The confidential nature of information that the
16   prosecutor, the Court, and clerk collect as part of the
17   jury selection process.    We are focused on the jury
18   summoning process that the federal case law supports
19   that a defendant is guaranteed the right to have his
20   case tried in a system where the jury summoning process
21   is racially neutral.   If there is a class of citizens
22   being systemically excluded for any reason, then that
23   is illegal.   The only way for us to find the answer to
24   the question, "Is that happening here in Montgomery
25   County" is to obtain this electronic address data and
                                                                12




1    apply it to the population data that our experts
2    possess.   So I think it's a very significant,
3    important, and demonstrable distinction between what I
4    had asked for before that the Court of Appeals didn't
5    agree with.   We've modified it, we backed up, we've
6    abandoned the motions on the record that I told you we
7    abandoned.    And we are taking what we believe is a more
8    appropriate approach to tackle the problem that we
9    believe exists.    And we believe that we're within the
10   statutory limitations for obtaining the data.
11                  Does that clarify, Judge?
12                  THE COURT:    It does, yes.   Thank you.
13   Just to keep it in order, Mr. Hughes, do you want to
14   respond to that?
15                  MR. HUGHES:   Yes, Your Honor, I do.
16                  THE COURT:    Go ahead.
17                  MR. HUGHES:   Our response is simple, Your
18   Honor.   I'm not sure the authority that Mr. Brass is
19   relying upon, but this does sound like the exact same
20   thing that was tried before.     Specifically Texas
21   Government Code 62.0132 regards jury summons
22   questionnaires, and it is specifically about exactly
23   what Mr. Brass is seeking to obtain:     Jury address
24   information of summoned jurors.     It specifically says
25   that a jury summons includes a questionnaire.      The
                                                                   13




1    questionnaire requires, among other things, residence,
2    address, mailing address.    And it further says that
3    that is confidential.   That information has limited
4    disclosure to the court personnel, litigants, or
5    litigant's attorney in a cause of action in which the
6    respondent to the questionnaire is a potential juror.
7    So based on that statute, I believe it applies to
8    exactly what Mr. Brass is asking.      The jury address
9    information is confidential.    This is not regarding the
10   jury selection process that Mr. Brass referred to.        I
11   believe that was the Code of Criminal Procedure 35.29,
12   I believe.   Something like that.      That actually says,
13   "Jury selection process."    This statute does not say
14   that.   It talks specifically about information
15   contained within the questionnaire part of the summons
16   for jurors is confidential unless the cause of action
17   is pending before that lawyer -- and here it's
18   premature.   The trial hasn't been called as far as I
19   know.   There's not a jury impaneled.     So we are relying
20   our argument on that, that his motion for this
21   information should be denied.
22                 THE COURT:    What section were you quoting
23   in the Government Code?     62 what?
24                 MR. HUGHES:    62.0132, Your Honor.
25                 THE COURT:    Okay.
                                                                  14




1                    MR. HUGHES:   In addition, Your Honor, the
2    county would like to submit and offer the evidence the
3    Montgomery County electronic jury selection plan and
4    give it to Mr. Brass just so the Court and everybody is
5    aware of the policy the county has in summoning jurors.
6                    THE COURT:    Okay.
7                    MR. HUGHES:   May I approach and offer it
8    at this time?
9                    THE COURT:    Yes.
10                   MR. HUGHES:   Any objection, Mr. Brass?
11                   MR. BRASS:    Judge, this has been going on
12   for a year now.    So today is the first day that's being
13   offered to me?    It's certainly not timely in the sense
14   that I can absorb it in few short moments.      And -- but,
15   I mean, he can offer anything he wants.      That's fine.
16   But in terms of --
17                   MR. HUGHES:   This is what Mr. Brass
18   wants.   I'm trying to give it to him, Your Honor.     It'S
19   public record.    He has opportunity to get it for
20   himself.
21                   MR. BRASS:    What I want is address data,
22   electronic address data, not what the county policy is.
23   I'm very interested in knowing what the county policy
24   is.   But, again, I think it's a little untimely on the
25   day of our hearing to present it.
                                                                  15




1                   THE COURT:    All right.    Distribute a copy
2    to Mr. Brass and bring one to me.     Mr. James, you want
3    to make an opening?
4                   MR. JAMES:    Very briefly, Judge.
5    Essentially we would object to having this hearing on
6    the grounds of, one, that this issue is not yet ripe.
7                   THE COURT:    Well, I'm not going to listen
8    to that.   We're having the hearing.      So what's next?
9                   MR. JAMES:    The defense is basically
10   still attempting a fishing expedition on this, Judge.
11   What Mr. Brass is asking for now is piece meal of what
12   he asked for initially.     He is asking for juror address
13   data.    I'm sure we'll be back here later on, on the
14   things he asked for later already.
15                  MR. BRASS:    May I respond, Judge?
16                  THE COURT:    Well, it's opening.    You
17   don't need to respond.      Let me review some things real
18   quick.   I'm -- Mr. Brass, I'm trying to get my head
19   around what you're telling me is different. I'm just --
20   I'm not there.   It seems like what you're asking for --
21   let me see if I can put it into words, and you can
22   understand my difficulty.     I understand you're not
23   pulling the addresses off the questionnaire.        That's
24   not what you're asking to be done.        Where are you
25   asking -- where are these addresses?       Where are they
                                                                16




1    going to come from?
2                  MR. BRASS:   Part of the reason that
3    previously I had filed the motion to take a deposition,
4    which they so vehemently opposed, was to discern in
5    what form the information that I'm seeking lives.      But
6    I decided since they were so opposed to that, that in a
7    hearing such as today we could pursue -- you, the
8    Court, both sides, could discern that information from
9    the witness stand and a deposition was not necessary.
10   I believe that in a computer there is electronic data
11   that is furnished to an outside vendor for the purpose
12   of summoning jurors.   So I believe the District Clerk's
13   Office delivers to an outside vendor a list of names
14   and addresses.   And I believe that those people who
15   understand computers better than I can extract from
16   that data that already exists simply the list of
17   addresses.   My experts will testify --
18                 THE COURT:   So to kind of put this in
19   terms of a judge's -- a layman's understanding, there
20   is a body of data that contains the addresses of
21   everybody that could potentially -- no?
22                 MR. BRASS:   Not potentially.   Were
23   summoned.
24                 THE COURT:   Who were summoned?
25                 MR. BRASS:   Who were summoned.   Again, I
                                                              17




1    predict that the testimony from the clerks that were
2    present will say that they may be able to shed some
3    light on how that list comes into existence.   I'm
4    thinking it comes from driver's license and voter
5    registration.   Or I've heard that is where it comes
6    from.   But nevertheless at some point in time somebody
7    mailed to a large number of citizens of Montgomery
8    County a jury summons.   And what I want to do is be
9    able to take that address data -- my demographers will
10   tell you that they can put it into a software program
11   that will pinpoint all those addresses on a demographic
12   chart and overlay that to the census data of where the
13   black citizens live.   And they will scientifically be
14   able to tell this Court and the courts that review what
15   happens here today and in the future whether those jury
16   summons are being sent out in a racially neutral
17   manner.   We know -- and the six lawyers that I
18   subpoenaed today anticipate to testify that there is a
19   demonstrable and obvious disproportionate number of
20   black Americans on our jury panels.   The question is
21   why.    If our system is not racially neutral, then there
22   is something wrong with it and it needs to be fixed.
23   This defendant and all defendants have a right to know
24   that.   The only way that they can find that out is by
25   having the keepers of this information give it to the
                                                               18




1    experts who can analyze it to make the determination as
2    to whether our system is racially neutral.    There may
3    very well be a different explanation for why our juries
4    are obviously unrepresentative of our population.    It
5    may be sociological reasons.   And if so, then I would
6    be the first to admit that Montgomery County's jury
7    summoning system is not effective or legal.   But if
8    overlaying the data we find out that the summons are
9    not going to the black part of our -- the part of our
10   community where the black residents live, then we have
11   a racially-bias jury summoning system.   And according
12   to the case law, that is illegal.   The only way a
13   defendant can find this out is if the keepers of the
14   information share it with us in a careful confidential,
15   delegate manner.   I'm going to propose in our hearing
16   that the expert demographers sign confidentiality
17   agreements to protect this data and respect it, give it
18   the due respect that it deserves, and conduct this
19   analysis professionally, scientifically.   But if this
20   Court and the reviewing courts and these government
21   attorneys preclude defendants from accessing the data
22   that they have, then we can't answer the question as to
23   why our juries are unrepresentative of our population
24   racially.   And I submit to you, as we all know, that a
25   juror questionnaire comes from when a panel is seated
                                                               19




1    in a particular court and hands in this government code
2    where we have these rules about only the judge of that
3    particular court can give that information to an
4    attorney, party, the media upon showing of good cause.
5    It does not apply because that's not the data that I'm
6    asking for.   I'm -- the data that I'm asking for is
7    before that happens.   There is no court that these
8    jurors belong to.   This is the data that the county
9    uses to summon the jurors.   If we are summoning the
10   appropriate number of black persons to jury duty, then
11   my motion challenging the jury summoning process is
12   without basis.   But until we get data and do the
13   analysis, we just don't know that.   I respect the
14   prosecutor's anticipating what I may do next, but I
15   submit to you that that is an assumption without basis.
16   They don't know what I'm going to do next.   And I would
17   commit to this Court that I'm not going to do anything
18   that is not consistent with the authority that a
19   defense attorney is bestowed in defending a defendant
20   zealously.
21                 THE COURT:   Who is your first witness?
22                 MR. BRASS:   Sir?
23                 THE COURT:   Who is your first witness?
24                 MR. BRASS:   I call Lydia Clay-Jackson.
25                 THE COURT:   Already have everybody sworn
                                                               20




1    in?   How are we going to do this?
2                   MR. BRASS:   My intention is six lawyers
3    first, then the two clerks and then the experts.
4                   THE COURT:   Everybody that's going to
5    testify, raise your right hand.
6                   (Witnesses present sworn)
7                   THE COURT:   Mr. Brass, call your first
8    witness.
9                   MR. JAMES:   Judge, we ask that the Rule
10   be invoked.
11                  THE COURT:   The Rule is invoked.   For
12   those of you that are non-lawyers, you cannot discuss
13   the case.   You cannot discuss any testimony you may
14   have about the case with any of the other witnesses.
15   You can't even do it with other witnesses if other
16   lawyers are around.   You can, however, discuss the case
17   and your testimony with the lawyers themselves.     So
18   with that, I'm going to ask everyone to be excused,
19   Mr. Brass, except for Ms. Clay-Jackson?
20                  MR. BRASS:   Yes, sir and our experts,
21   Judge.   They qualify for exclusion.
22                  THE COURT:   They are excluded from the
23   Rule.    So, Ms. Clay-Jackson, if you would come up and
24   have a seat.
25                  Whenever you are ready.
                                                                 21




1                           LYDIA CLAY-JACKSON,
2    having been first duly sworn, testified as follows:
3                           DIRECT EXAMINATION
4    BY MR. BRASS:
5       Q.     State your name for the record, please.
6       A.     Lydia Clay-Jackson.
7       Q.     And, Ms. Jackson, how are you employed?
8       A.     Clay-Jackson.
9       Q.     I'm sorry?
10      A.     I'm a lawyer.
11      Q.     How long have you been a lawyer?
12      A.     Since 1985.
13      Q.     Tell the Court where -- geographically where
14   your primary practice is.
15      A.     My primary practice is here in Montgomery
16   County.    I practice all throughout the state.     It's
17   about four blocks from here.      And my entire career my
18   home office has always been in Montgomery County.
19      Q.     Do you hold any positions with bar associations
20   or professional organizations of note?
21      A.     I am former president of the Texas Criminal
22   Defense Lawyers Association.      I am chair elect of the
23   State Bar Committee for Criminal Justice.       I am former
24   chair of Lone Star Legal Aid Society.        I'm board
25   certified in criminal law by the TDLS.
                                                               22




1       Q.     Ms. Clay-Jackson, do you have experience trying
2    jury trials in Montgomery County?
3       A.     Yes, I do.
4       Q.     I know this is a difficult question, but could
5    you just estimate how many jury trials -- criminal jury
6    trials you've tried in Montgomery County?
7       A.     I have tried criminal jury trials in Montgomery
8    County, both as a criminal defense lawyer and as a
9    prosecutor.       I've tried probably in excess of 57
10   trials.
11      Q.     Okay.    We didn't talk about your experience
12   other than as a defense attorney.      Tell us about having
13   been a prosecutor.
14      A.     I was a prosecutor for 13 months in the County
15   Attorney's office when it had jurisdiction over all
16   misdemeanor cases in Montgomery County.
17      Q.     And you tried jury trials in your capacity as
18   an Assistant County Attorney?
19      A.     I did.
20      Q.     In the trials that you've tried in Montgomery
21   County, have you had occasion to observe the presence
22   of Americans -- citizens of African-American decent on
23   the jury panels?
24      A.     Infrequent, yes.
25      Q.     And you are a person of African-American
                                                             23




1    descent, correct?
2       A.   Yes.
3       Q.   And have you a noticed a pattern during your
4    career of the numbers of citizens of African-American
5    decent on the jury panels on the cases you have tried?
6       A.   If it can be described as a pattern --
7       Q.   Well, let me rephrase.     In your own words,
8    describe your observation of the presence of citizens
9    of African-American decent on our jury panels.
10      A.   With the trials that I have participated in,
11   the number of black Americans on the jury panel
12   probably have numbered about 15.
13      Q.   That's 15 out of?
14      A.   About 50 to 70 cases.
15      Q.   Have there been any panels where there were no
16   citizens of African-American decent on the panel?
17      A.   Oh, yes.    Sorry.   Go ahead.
18      Q.   How would you characterize quantitatively the
19   number of panels that you have observed no citizens of
20   African-American decent?
21      A.   The vast majority.     More than 80 percent.
22      Q.   More than 80 percent of the trials that you've
23   tried, the panels contained no citizens of
24   African-American decent?
25      A.   That's correct.      That's since 1985.
                                                                  24




1       Q.   Go ahead.
2       A.   The most African-Americans on any panel that I
3    can recall -- since I received the subpoena I sort of
4    thought about that -- was four out of --
5       Q.   Out of a panel of how many?
6       A.   That was a felony trial, so it was a panel of
7    probably 52, something like that.
8       Q.   Okay.    If you -- I mean, just based on the math
9    that you -- if you apply the math to the numbers you've
10   already testified to -- well, let me withdraw that
11   question.    If you would assume that there is 4.3
12   percent of the population, adult population of
13   Montgomery County consists of black Americans -- I've
14   done a little chart with the math as a visual aid, not
15   as evidence.    If you use the percentage of 4.3 --
16                   MR. JAMES:   I'm sorry.   I'm going -- I'm
17   objecting.   He says this isn't evidence, just a visual
18   aid; yet, he's given it to the Court as if it is
19   evidence.    If it's evidence, there is no testimony to
20   support these numbers.
21                   MR. BRASS:   I'm not offering it as
22   evidence.    I gave it to the Court so the Court can see
23   it just as if I had published it on a overhead
24   projector.
25                   THE COURT:   I think math is pretty much
                                                                   25




1    common sense.    So, I mean, it's just numbers on what --
2    is that what you've been given?        Numbers?
3                    MR. JAMES:    Yes.
4                    THE COURT:    Okay.    It's just numbers.    Go
5    ahead, Mr. Brass.
6       Q.   (BY MR. BRASS)       So you can see from this visual
7    aid, Ms. Clay-Jackson, that on a panel of 60 if you
8    apply the percentage and 70, 80, 90, 100, in your
9    experience are these the types of numbers of potential
10   jurors that are summoned by the courts for trials?
11      A.   For felony trials.      Are you asking me if 60 is
12   a general number that we have for felony trials or 70
13   depending upon the type of trial?
14      Q.   Correct.
15      A.   Yes, generally.
16      Q.   How many for misdemeanors?
17      A.   Probably no more than 40.
18      Q.   Okay.
19      A.   Depending on what type of case it is.
20      Q.   And, of course, this would be -- these numbers
21   would be averages obviously.         So if we start with a
22   premises that there is an under representation of black
23   Americans on our jury panels relative to our population
24   and if you assume that 4.3 percent are of our adult
25   populations is black, in your experience on an average
                                                                   26




1    of all 60 person panels has there been an average of
2    2.58 people of African-American decent on the panel?
3       A.     Not in my experience.
4       Q.     Is the -- and obviously you can see the numbers
5    increase as the number of potential jurors increases.
6    In all categories of numbers of jurors on a panel has
7    the indicated representative number fallen short on our
8    panels?
9       A.     What's represented by this example?
10      Q.     Yes.
11      A.     The only -- I've tried two capital cases in
12   Montgomery County where the 100 jurors would even come
13   into play.       No, I didn't question four black Americans
14   on that panel.
15      Q.     Out of those 200 jurors, were there any
16   citizens of African-American decent?
17      A.     Not that I can recall, no.
18                     MR. BRASS:    Pass the witness, Judge.
19                     THE COURT:    Let's start with keeping it
20   in order.    Let Mr. Hughes go first, and then when he is
21   done it will go over to you, Mr. James.        Go ahead,
22   Mr. Hughes.
23                     MR. HUGHES:   No questions, Judge.
24                     THE COURT:    Mr. James?
25                     MR. JAMES:    May I proceed, Judge?
                                                              27




1                    THE COURT:   Yes.
2                         CROSS-EXAMINATION
3    BY MR. JAMES:
4       Q.    Ms. Clay-Jackson, a lot of the numbers that you
5    told us you're doing this to the best of your memory,
6    right?
7       A.    That's true.
8       Q.    You don't have any sort of statistics that
9    you've kept over the years, anything like that?
10      A.    Not that I've pulled up for this, no.
11      Q.    In fact, you're having to sit there during your
12   direct testimony and try to think back to the best of
13   your knowledge about whether there may or may not have
14   been a certain number of African-Americans on the
15   panel?
16      A.    That's correct.
17      Q.    You're saying to the best of your knowledge you
18   don't remember that there was or wasn't, you can't tell
19   us one way or the other?
20      A.    Well, on generally -- the general panels that
21   we just talked about?
22      Q.    I'm talking any specific panel, you can't tell
23   us one way or the other, can you?
24      A.    I probably could go back and look at my files.
25   I could.
                                                               28




1       Q.   Of course, you didn't do any of that before
2    preparing to testify today?
3       A.   Just cursory, sir.
4       Q.   Of this 4.3 number that Mr. Brass gave to you,
5    you, of course, have no idea about how many people from
6    that percentage are eligible to serve on juries, right?
7       A.   That's correct.
8       Q.   So this 4.3 number may not be, in fact, the
9    number of African-Americans are eligible to serve?
10      A.   That's correct.
11                MR. JAMES:    Pass the witness, Judge.
12                MR. BRASS:    No further questions, Judge.
13                THE COURT:    May she be excused?
14                MR. BRASS:    As far a we're concerned,
15   yes.
16                MR. JAMES:    No objection from the State.
17                THE COURT:    Thank you, Ms. Clay-Jackson.
18   Next witness, Mr. Brass?
19                MR. BRASS:    I call Tay Bond.
20                THE COURT:    Tay Bond.
21                MR. DELMORE:     Can I be excused to use the
22   restroom?
23                THE COURT:    Do we need to stop?
24                MR. DELMORE:     No.   Mr. James will be
25   present.
                                                                     29




1                      THE COURT:   Okay.   Here is Mr. Bond in
2    his blue jeans and tie.
3                      THE WITNESS:   And tie on, Judge.    I have
4    previously been sworn.
5                      THE COURT:   All right.   Get comfortable.
6    And then whenever you are ready, Mr. Brass.
7                      MR. BRASS:   Thank you, Your Honor.
8                              E. TAY BOND,
9    having been first duly sworn, testified as follows:
10                          DIRECT EXAMINATION
11   BY MR. BRASS:
12      Q.     State your name for the record.
13      A.     Tay Bond.
14      Q.     Mr. Bond, how are you employed?
15      A.     I'm employed by myself.
16      Q.     And what do you do for a living?
17      A.     I do criminal defense work.
18      Q.     So you are an attorney?
19      A.     Yes, I am.
20      Q.     And how long have you been an attorney?
21      A.     1998.
22      Q.     And in these years that you've been an attorney
23   in what roles have you played in our criminal justice
24   system?
25      A.     I was in private practice initially.        I have
                                                                  30




1    been Assistant County Attorney, and I've been an
2    Assistant District Attorney.    And I've been partners in
3    a firm; and I now run my own show.
4       Q.   How many years were you a government lawyer?
5       A.   Probably around two.
6       Q.   Total?
7       A.   Total.
8       Q.   Okay.    Have you held any note-worthy positions
9    in bar associations or any other certifications that
10   would impress us?
11      A.   I don't know if it would impress you,
12   Mr. Brass.     But I have been the president of the
13   Criminal Defense Bar here in Montgomery County.       I've
14   been the president of the Montgomery County Bar also.
15      Q.   In your career -- oh, and the geographical
16   location -- your primary geographical location of your
17   practice, where is that?
18      A.   It is primarily Montgomery County, Texas.
19      Q.   Have you had occasion to try jury trials in
20   Montgomery County, Texas?
21      A.   Yes.
22      Q.   On few or many occasions?
23      A.   I would say many.    I've tried probably -- since
24   December I've done six jury trials which is probably
25   more than any other criminal defense attorney or
                                                               31




1    prosecutor in this county.
2       Q.     Six since December of 2013?
3       A.     Of '13, yes.
4       Q.     I know this is a very difficult question, but
5    could you just estimate the number of jury trials
6    you've tried in this county during your career both as
7    a private lawyer and a government lawyer?
8       A.     Conservatively I would say in excess of 50
9    easily.
10      Q.     50?
11      A.     In excess of 50.
12      Q.     In excess.   Have you -- you understand that the
13   issue for us today has to do with the representation on
14   our jury panels of citizens of African-Americans
15   decent?
16      A.     Yes, sir.
17      Q.     Have you had the opportunity to observe the
18   presence of African-American citizens on the jury
19   panels of the cases that you've tried?
20      A.     I have from the Justice of the Peace level
21   through the county court level, through felony court,
22   absolutely, as a prosecutor and a defense attorney.
23      Q.     In your own words, how would you characterize
24   the presence of citizens of African-American decent on
25   our jury panels in terms of numbers?
                                                              32




1       A.   I would best answer that by example of a case I
2    tried recently in this court where I was representing
3    an African-American male.   We had approximately 80
4    venire persons, and I believe there was one or none of
5    African-American decent.    The only African-American in
6    the courtroom period was my client.
7       Q.   Is that a typical scenario in your experience
8    for the trials you have tried?
9       A.   I would say it is certainly common to have one
10   or two even on a felony venire panel of
11   African-American decent or none.
12      Q.   Can you estimate the percentage of jury panels
13   in cases that you a have tried where there were none?
14      A.   I would have a hard time coming up with a
15   percentage, but I can tell you that it would not be
16   surprising at all based on my experience to have a full
17   felony panel and they are not to be any
18   African-Americans on it at all.    But percentage-wise I
19   don't think I can give you that.
20      Q.   Okay.   If I were to tell you that the experts
21   will later testify that 4.3 percent of our adult
22   population of Montgomery County are citizens of
23   African-American decent, there is a visual aid before
24   you that just simply does the math in terms of panels
25   of 60, 70, 80, 90, and 100 applying that percentage and
                                                                33




1    how many jurors it would take to be representative of
2    that population.   Do you see that visual aid?
3       A.   Yes, I do see it.
4       Q.   So we would be talking or expressing that in
5    terms of an average.    So if you had, say, two panels of
6    60 and -- so two times 2.58 is 5 thereabouts -- 5.16.
7    You can't have a .16 of a person.     But, say, 5, round
8    it off, in your opinion in two panels of 60 on the
9    average are there less than five citizens of
10   African-American decent in your experience?
11      A.   Absolutely.    Absolutely.   I've never had -- I
12   don't think I've ever had three African-Americans on a
13   panel of 60 or 70.    Maybe once.    Maybe once.
14      Q.   In all of the trials you have tried?
15      A.   To my recollection, absolutely.     I don't think
16   I've ever had three on a panel.
17      Q.   Have you been aware personally of an obvious
18   absence or under representation of black Americans on
19   our jury panels in this county?
20      A.   That would be my opinion, and it has certainly
21   been the opinion of African-American clients that I've
22   represented.
23                  MR. BRASS:    I'll pass the witness, Judge.
24                  THE COURT:    Mr. Hughes?
25                  MR. HUGHES:   No, Your Honor.
                                                                 34




1                    MR. JAMES:   May I proceed, Judge?
2                    THE COURT:   Yes.
3                         CROSS-EXAMINATION
4    BY MR. JAMES:
5       Q.   Mr. Bond, you don't know the -- you don't have
6    any statistics for the number of cases you have tried
7    and the number of African-Americans on every single one
8    of those jury panels, do you?
9       A.   No, sir.
10      Q.   Okay.    You're just going based off your best
11   rough estimate at this point; is that fair to say?
12      A.   That is correct.
13      Q.   And the number -- this 4.3 number that
14   Mr. Brass has given to you, you don't know where that
15   number comes from obviously, right?      He is asking you
16   to assume what his experts will testify to later?
17      A.   That is correct.
18      Q.   And you have no idea whether that 4.3 percent
19   of African-Americans include those that are registered
20   to vote in this county, do you?
21      A.   No, I do not.
22      Q.   You don't know whether that number is less and
23   how much less from the hypothetical 4.3 percent that
24   the defense is talking about?
25      A.   No.
                                                                35




1       Q.     Okay.   Mr. Bond, you testified that you picked
2    a jury in this court with a panel of approximately 80
3    people?
4       A.     Well, I think we attempted to pick one where I
5    was representing an African-American.       I was
6    successful -- because there was a learned juris on the
7    bench -- in having the panel stricken because it did
8    not meet the constitutional standards for my client to
9    have a jury of his peers.
10      Q.     So another panel was brought in at that point
11   and y'all picked a jury from that panel?
12      A.     That is correct.
13      Q.     Are you aware a jury panel in this particular
14   court from last late April, early May of 150 people
15   that had six African-Americans on that panel?
16      A.     No.
17      Q.     Okay. And just by going off of Mr. --
18      A.     I don't think that was my case.    I don't think
19   we had 100.
20      Q.     That's why I'm asking if you you're aware.
21   Going off Mr. Brass's little math here, just doing the
22   math there, 4.3 percent of 150 is 6.45.      So as you
23   understand --
24      A.     I don't do math on the record.
25      Q.     Mr. Bond, I can write it out if need be.   You
                                                               36




1    understand you can't have part of a person, right?
2       A.    I agree.
3       Q.    So six African-Americans on a panel of 150
4    would be consistent with Mr. Brass's own numbers,
5    right?
6       A.    I know you're an officer of the court and
7    you're not going to lie to me.      If that's correct, then
8    that's correct.
9       Q.    All right.
10      A.    I need a calculator.
11                    MR. JAMES:   I'll pass the witness, Judge.
12                         REDIRECT EXAMINATION
13   BY MR. BRASS:
14      Q.    Mr. Bond, you're not saying that there is never
15   any black people on our panels; is that correct?
16      A.    No, I'm definitely not saying that.     I have
17   seen several, but they are unique.
18      Q.    Okay.    So if it was a panel of 150 with six
19   citizens of African-American decent, we're not saying
20   that that never -- you're not saying that never
21   happens, are you?
22      A.    If I was picking a panel and the venire panel
23   consisted of 150 persons with six of them being black,
24   I would feel like I won the lottery in order to do my
25   jury selection.
                                                                  37




1       Q.    Are you saying that because that's a rare
2    occasion?
3       A.    I think it would be extremely rare.
4                  MR. BRASS:    That's all, Judge.
5                  THE COURT:    Mr. Hughes?
6                  MR. HUGHES:    No, Your Honor.
7                  THE COURT:    Mr. James?
8                  MR. JAMES:    Nothing further for him,
9    Judge.
10                 THE COURT:    May he be excused?
11                 MR. BRASS:    Yes, Your Honor.
12                 MR. JAMES:    No objection.
13                 THE COURT:    Thank you, Mr. Bond.
14                 THE WITNESS:   May I be released from the
15   subpoena, Your Honor?
16                 THE COURT:    Yes.   Go back to work.   Next
17   witness?
18                 MR. BRASS:    Jerald Crow, Judge.
19                 THE COURT:    Jerald crow.    I prefer him to
20   be called Colonel, so we'll stick with that.       He's
21   earned it.
22                 THE WITNESS:   Sit here, Your Honor?
23                 THE COURT:    Yes, sir.    Thank you.
24                 Whenever you are ready, Mr. Brass.
25                 MR. BRASS:    Thank you, Your Honor.
                                                             38




1                          JERALD CROW,
2    having been first duly sworn, testified as follows:
3                        DIRECT EXAMINATION
4    BY MR. BRASS:
5       Q.   State your name for the record, please.
6       A.   Jerald D. Crow.
7       Q.   And, Mr. Crow, do you also hold the title of
8    Colonel?
9       A.   I do.
10      Q.   And we've been instructed by the Court to refer
11   to you as Colonel Crow.
12      A.   Thank you, Your Honor.
13      Q.   And so Colonel Crow, how are you employed?
14      A.   I'm self-employed as a lawyer.
15      Q.   How long have you been a lawyer?
16      A.   Since May 12th of 1966.
17      Q.   48 years?
18      A.   47, 48 years, yes.
19      Q.   Okay.   Where has been your primary geographical
20   area of practice?
21      A.   Since 1977, it's been in Conroe, Texas.
22      Q.   Have you held or do you hold any positions in
23   bar associations, professional organizations,
24   certifications that would impress us?
25      A.   Well, I belong to numerous professional
                                                               39




1    organizations over the years.     At the present, I'm -- I
2    only belong to the Texas Bar and Montgomery County Bar
3    Association, Montgomery County Criminal Defense Lawyers
4    Association.   I have been president of the Montgomery
5    County Bar in the past as well as held numerous other
6    positions, administration of the bar and business.    I
7    served as a military judge.   I served as a municipal
8    judge in Panorama Village, Texas for about a year, sir.
9       Q.   You were in the marines?
10      A.   Yes, 21 years.
11      Q.   Since 1977, have you been trying jury cases in
12   Montgomery County, Texas?
13      A.   Yes, I have.
14      Q.   And I know this is very difficult question, but
15   could you estimate for us, the Court, and the other
16   courts that will come in the future how many jury
17   trials in this county you have tried?
18      A.   That's probably not possible for me to give you
19   an accurate estimate.
20      Q.   Well, it's an estimate.
21      A.   There are different kinds of jury trials.
22   There are murder trials, capital murder trials,
23   misdemeanors, and felony-level cases.    I would say on
24   the average, not counting the capital cases, I probably
25   tried four a year would be my best estimate.    And that
                                                                 40




1    would be over 37 years.
2          Q.   And you said not counting the capital cases?
3          A.   That's correct.   Picking a jury on a capital
4    case where the death penalty is involved is a much
5    different proposition.
6          Q.   Okay.   How many capital cases have you a tried
7    in your career in Montgomery County?
8          A.   From beginning to end for death probably 12 or
9    13.
10         Q.   Well, let me clarify that.   I'm concerned about
11   your -- the focus of our inquiry is the observation of
12   the make up of jury panels that you had an opportunity
13   to observe in your career.      So even if a trial didn't
14   go to verdict by jury, if you impaneled -- I'm trying
15   to find out just ballpark estimate how many -- the
16   magnitude of the numbers of jury panels you've had an
17   opportunity to observe.
18         A.   There again, it's purely an estimate on my
19   part.      As I said, personally trying cases as an
20   attorney from picking the jury to the verdict I would
21   estimate about four per year.      However, it is customary
22   in our community for other attorneys to assist other
23   attorneys in picking juries even though they are not a
24   part of the jury process.      And to estimate that, maybe
25   once a month.
                                                               41




1       Q.   For all those years?
2       A.   For all those years.
3       Q.   Wow.    So I did the math and four times 37 is
4    148 plus 12 capitals conservatively is 160.    And then
5    you're talking about another 12 per year that you
6    assisted other lawyers?
7       A.   That's correct.   That's my best estimate.
8       Q.   At the very most conservative approach to your
9    estimating we're somewhere around the 250 trial level,
10   does that sound right?
11      A.   I accept your figure, sir.
12      Q.   Okay.   I want to tap into your memory and
13   your -- of your observation of the racial make up of
14   those literally hundreds of jury panels in Montgomery
15   County, and particularly the numbers of citizens of
16   African-American decent present on those jury panels.
17      A.   I don't think I can give you an accurate number
18   on that, but this might -- my memory tells me that most
19   African-Americans I've seen on many jury panels in
20   which I've participated, either as picking the jury or
21   helping someone else, would be three or four.    I want
22   to clarify that a little bit because there was a time
23   period in there, say, from '77 until Montgomery County
24   took over, there was much less.
25      Q.   Okay.   Less than three or four?
                                                                42




1       A.   Yes.
2       Q.   As a maximum?
3       A.   As a maximum.
4       Q.   Right.   So let's dissect that a bit.   Were
5    there many -- few or many jury panels that had no
6    African-Americans on there -- in there membership?
7       A.   There were few.
8       Q.   Typically, as best as you can recall -- well
9    let's just say this.    You said three or four at the
10   most.   Is that a typical situation that there would be
11   three or four?
12      A.   That is not typical, no.
13      Q.   Okay.
14      A.   That's the most I've seen on any panel that I
15   have observed.
16      Q.   And out of the 250 some odd, how many times did
17   you see that many citizens of African-American decent
18   as best as you can recall?
19      A.   Few.    Maybe -- I can't really accurately answer
20   that question, but only a few.     There may have been a
21   dozen panels where I have seen that many
22   African-Americans.
23      Q.   A dozen out of the hundreds?
24      A.   Yes.
25      Q.   Okay.    Have you had occasion to see panels
                                                              43




1    where there were none?
2       A.   I have.
3       Q.   Did I already ask that?    No.   Okay.
4       A.   Yes, I have seen panels with no blacks.
5       Q.   And is that a typical situation where there are
6    none?
7       A.   It is the usual situation, typical.
8       Q.   The usual situation, typical?
9       A.   In my opinion.
10      Q.   Yes.    I've asked the other lawyers, so I'm
11   going to ask you.     Do you see the visual aid that's in
12   front of you with jury panel numbers and a percentage
13   of 4.3 percent?
14      A.   I see that.
15      Q.   Okay.   If you would assume with me that those
16   who know much more about this than us will tell us in
17   the future that there are 4.3 percent of the Montgomery
18   County population that are Americans of
19   African-American decent.    Just simply applying the math
20   to the numbers -- the various numbers of the sampling
21   of the numbers of jury panels you see that on the
22   average a panel of 60 would have two and a half people.
23   So in other words, two panels of 60 would have five.
24   Does that make sense?
25      A.   Yes, sir, it makes sense.
                                                                 44




1       Q.   Okay.    On average, a panel of a 100 would have
2    four and a third, so two panels of 100 would have
3    roughly 8 and a half statistically.         Can you see that?
4       A.   Yes, sir.
5       Q.   Okay.    So I want to ask you, in your experience
6    has the presence of African-Americans on our jury
7    panels fallen short of these numbers?
8       A.   Unequivocally short.
9       Q.   Unequivocally?
10      A.   Yes, sir.    In other words -- maybe I'm not
11   answering the question.
12      Q.   It sounds like you did.
13      A.   Sir?
14      Q.   It sounds like you did.      But go ahead.
15      A.   We fall short, yes.
16      Q.   Gravely short?
17      A.   Unfairly short.
18                   MR. BRASS:    I'll pass the witness, Judge.
19                   THE COURT:    Mr. Hughes?
20                   MR. HUGHES:   No, Your Honor.
21                   MR. JAMES:    May I proceed, Judge?
22                   THE COURT:    Yes.
23                        CROSS-EXAMINATION
24   BY MR. JAMES:
25      Q.   Colonel Crow, the 4.3 number that Mr. Brass has
                                                             45




1    given you, you don't know how many of that percentage
2    of African-Americans that live in Montgomery County are
3    registered voters, do you?
4       A.   I do not.
5       Q.   You don't know how many of those people have
6    driver's licenses or on the driver's license list?
7       A.   I do not.
8       Q.   You don't know how -- are you aware of how
9    jurors are summoned in this county?
10      A.   Generally familiar.
11      Q.   You understand it's the voter registration and
12   driver's license list?
13      A.   Correct.
14      Q.   So you understand that this number could be
15   significantly lower than the 4.3 Mr. Brass keeps
16   bringing up, the number of potential folks who would be
17   summoned for jury duty that are eligible jurors?
18      A.   I will confess I am not aware of the
19   demographic make up of the citizens of our county as to
20   how many are black, how many are white.
21      Q.   You're not aware of that make up?
22      A.   I'm not aware of the make up other than what I
23   see on this piece of paper.
24      Q.   Of course, you can't tell us and you're just
25   giving us your best estimate in regards to whether the
                                                               46




1    jury panels throughout your career have been showing a
2    proportionate number of African-Americans on those
3    panels to the population?
4       A.    I have no way to measure that.
5       Q.    You haven't kept track of any numbers?
6       A.    No, I have not.
7       Q.    You're just going based off on estimate at this
8    point?
9       A.    Experience, that's it.
10                   MR. JAMES:   Pass the witness.
11                        REDIRECT EXAMINATION
12   BY MR. BRASS:
13      Q.    Colonel Crow, if Mr. James is right and there
14   is some slight adjustment that would need to be made
15   for, in his opinion, the vast number of black Americans
16   in our county who don't have driver's licenses and are
17   not registered to vote, if there is some number.     He
18   characterized it as significant, but he doesn't know
19   that.    But if there does need to be some tweaking --
20   say, it's 4.1 percent of our population, from your
21   experience and your observation of our jury panels, are
22   the numbers of African-Americans on a jury panel still
23   gravely short even of an adjusted number?
24      A.    In my opinion, it is short if not gravely
25   short.
                                                                  47




1                    MR. BRASS:    That's all, Judge.
2                    THE COURT:    Mr. Hughes, anything?
3                    MR. HUGHES:    No, Judge.
4                    THE COURT:    Mr. James?
5                    MR. JAMES:    No, sir.
6                    THE COURT:    May Colonel Crow be excused?
7                    Sounds like you're excused, Colonel.
8    Thank you.   Mr. Brass, next witness?
9                    MR. BRASS:    Patty Maginnis, Your Honor.
10                   THE COURT:    Colonel, would you mind
11   asking Ms. Maginnis to step in here when you get out
12   there?
13                   THE WITNESS:   Yes, sir.
14                   THE COURT:    I don't remember, were you
15   sworn in?
16                   THE WITNESS:   No, sir.     May I bring my
17   drink?
18                   THE COURT:    Sure.
19                        PATRICIA MAGINNIS,
20   having been first duly sworn, testified as follows:
21                   THE COURT:    All right.    Have a seat.
22   Whenever you are ready, Mr. Brass.
23                        DIRECT EXAMINATION
24   BY MR. BRASS:
25      Q.    State your name, please.
                                                              48




1       A.    Patty Maginnis.
2       Q.    How are you employed?
3       A.    Currently self-employed at Maginnis, Pullan &
4    Young.
5       Q.    What is your occupation?
6       A.    Criminal defense attorney.
7       Q.    How long have you been a lawyer?
8       A.    Since 1997.
9       Q.    Have you always been self-employed as a lawyer?
10      A.    No, sir.
11      Q.    What has been your work experience as a lawyer?
12      A.    I worked at the County Attorney's Office for
13   Montgomery County back with Frank Brass as the elected
14   official, then I worked at the District Attorney's
15   office under Mike McDougal and Brett Ligon as a
16   prosecutor.
17      Q.    When you started as a lawyer, did you start in
18   the County Attorney's Office?
19      A.    Yes, sir.
20      Q.    And so for the first -- how many years of your
21   career were you a government lawyer?
22      A.    14.
23      Q.    And you've been a lawyer a total of 17?
24      A.    Correct.
25      Q.    In those 17 years, what has been the primary
                                                                  49




1    geographic area of your practice?
2       A.     Montgomery County, Conroe area.
3       Q.     Would you say exclusively Montgomery County?
4       A.     No, sir.    Harris County as well.
5       Q.     All right.    But is it primarily Montgomery
6    County?
7       A.     Yes, sir.
8       Q.     Okay.   Have you held any positions in bar
9    associations, professional organizations, or do you
10   possess other certifications that would impress us?
11      A.     I don't know that they would impress you.      I
12   think they've probably been what you've already heard
13   with other lawyers here; the Bar Association,
14   Montgomery County Bar, and then I'm a member of the
15   Montgomery County Criminal Bar and then the State Bar
16   and then TCLA.       I've done some extensive training and
17   education as a municipal court judge for the duration
18   of six years, and that's probably it.
19      Q.     Okay.   Have you had occasion in your 17 years
20   to try jury trials in Montgomery County?
21      A.     Yes, sir.
22      Q.     On few or many occasions?
23      A.     Many occasions.
24      Q.     Now, this is a difficult question, and we all
25   have difficulty answering this question.       But I want
                                                              50




1    you to do the best you can to give the Court, the
2    courts above us some idea of the number of jury trials
3    that you've tried in Montgomery County in your 17 years
4    as a lawyer?
5       A.   Yes, sir.   All level of offenses I'm assuming,
6    correct?
7       Q.   Yes.    Let me clarify.   All criminal trials.
8       A.   Okay.   If you take into consideration the
9    generous amount of time spent at the JP level and then
10   the county courts with misdemeanors and with felonies,
11   I would say upwards 80 or so.
12      Q.   Now, when you say "80 or so," are you talking
13   about 80 to 150 or talking about 80 plus some?
14      A.   I feel a conservative number would be 85 -- 85
15   trials conservatively.
16      Q.   Okay.   Fair enough.   Have you had the
17   opportunity during those 80 to 85 trials to observe the
18   racial make up of the jury panels in Montgomery County?
19      A.   Yes, sir.
20      Q.   And particularly we're focused on jurors on
21   jury panels who are of African-American decent.
22      A.   Yes, sir.
23      Q.   And do you have a belief, an opinion -- I don't
24   know how we want to characterize it -- based on your
25   observation of the numbers of people of
                                                               51




1    African-American decent present on the various jury
2    panels?
3       A.     If I were to give you just an automatic answer
4    if you asked me looking at a panel, for example, in a
5    felony case where you had 60 or plus on the panel, I
6    would say my recollection is possibly around two.
7       Q.     Now, when you say two, are you talking about
8    two African-Americans on every panel?
9       A.     No, sir.
10      Q.     All right.   Have there been many -- few or many
11   panels where there have been no citizens of
12   African-American decent?
13      A.     Few or many?
14      Q.     On few or many occasions has there been no
15   African-Americans?
16      A.     I would qualify that as many over that time
17   period.
18      Q.     Correct.   And go a little bit out on a limb
19   here.   Based on your experience and your knowledge and
20   your interaction with the bar and your various
21   capacities that you testified to, do you believe that
22   there is a common belief in our judicial community
23   regarding the absence of African-Americans on our jury
24   panels?
25      A.     Do I believe there is a common belief?   When
                                                               52




1    you say "judicial community" are you the -- the legal
2    community?
3       Q.   The lawyers, the courts.
4                 MR. JAMES:     Judge, I'm going to object.
5    Calls for speculation.
6                 THE COURT:     Sustained.
7       Q.   (BY MR. BRASS)    There is a visual aid in front
8    of you that has some mathematical --
9       A.   Uh-huh.
10      Q.   Examples.   And the number, 4.3 percent, that's
11   utilized in those mathematicals, do you see that?
12      A.   Yes, sir.
13      Q.   So if you would assume with me that the
14   demographic experts herein testified that the
15   African-American population of Montgomery County is 4.3
16   percent, with the math applied to jury panels of
17   various numbers from 60 to 100 -- and of course this
18   would be an average.     So if we were looking to test
19   whether the panels appropriately represent
20   proportionally the African-American population on
21   panels of 60 -- just according to the math, nothing
22   else -- you need two and a half people of
23   African-American decent to be representative.     So on
24   two panels of 60, you would expect to see five.    On a
25   panel of 100, you would expect to see four.    On two
                                                                  53




1    panels of 100, you would expect to see perhaps nine.
2    In your experience of observing the jury panels in
3    Montgomery County, do we fall short of these
4    representative numbers?
5       A.   I would say in my experience on what I observe,
6    yes.
7       Q.   Okay.    And let me --
8                    MR. BRASS:    Excuse me just a minute.
9    I'll pass the witness, Judge.
10                   THE COURT:    Mr. Hughes?
11                   MR. HUGHES:   No, Your Honor.
12                   THE COURT:    Mr. James?
13                   MR. JAMES:    Yes, Judge.   I'll try to be
14   brief as usual.
15                        CROSS-EXAMINATION
16   BY MR. JAMES:
17      Q.   Ms. Maginnis, you haven't kept track of any
18   sort of statistics of the number of jurors brought in
19   on panels on the cases you have tried, the number of
20   African-Americans on those panels, have you?
21      A.   No, sir.
22      Q.   Everything you are telling us today is
23   basically an approximation, just a best guess at this
24   point, right?
25      A.   Based on my observing the panels and my
                                                                  54




1    recollection.
2       Q.   You can't tell us any specific panel had X
3    number of people on it and Y number of
4    African-Americans on it, can you?
5       A.   No, sir.
6       Q.   In fact, you don't know what percentage of
7    African-Americans in this county are eligible to be
8    jurors, do you?
9       A.   No, sir.
10                   MR. JAMES:   Pass the witness.
11                   MR. BRASS:   Nothing further, Judge.
12                   THE COURT:   May she be excused?
13                   MR. JAMES:   No objection to that.
14                   THE COURT:   All right.   Thank you, Ms.
15   Maginnis.   Next witness Mr. Brass?
16                   MR. BRASS:   I want to call Gilbert
17   Garcia, but I don't know if he has arrived yet.
18                   THE COURT:   Okay.   We're going to take a
19   little break.    Judge needs a break.
20                   (Brief recess)
21                   (Open court.    Defendant and all parties
22   present)
23                   THE COURT:   Okay.   I think you were
24   calling your next witness.
25                   MR. BRASS:     I'm going to call Brian Burns
                                                               55




1             because he is here and Gilbert is not.
2                  THE COURT:   Were you sworn in before?
3                  MR. BRASS:   He was not, Judge.   He was
4    here late.
5                            BRIAN BURNS,
6    having been first duly sworn, testified as follows:
7                  THE COURT:   All right.   Have a seat.
8                  THE WITNESS:   Thank you.
9                  THE COURT:   You said Mr. Garcia is not
10   here?   Do you want me to have him picked up?
11                 THE BAILIFF:   I would love to.
12                 THE COURT:   I saw the twinkle in your
13   eye.
14                 MR. JAMES:   No objection.
15                 MR. BRASS:   In his defense, he was at a
16   doctor's appointment in Houston.   I think Rebecca told
17   me or his office called and said he was getting here as
18   quick as he could.
19                 THE COURT:   Okay.
20                 MR. BRASS:   So we will proceed with him
21   or without him.
22                 THE COURT:   I understand.   Okay.
23                 MR. BRASS:   I guess the short answer is,
24   no, I don't want him arrested.
25                 THE COURT:   All right.
                                                                 56




1                      MR. BRASS:   May I proceed, Judge?
2                      THE COURT:   Yes.
3                           DIRECT EXAMINATION
4    BY MR. BRASS:
5       Q.     State your name for the record, please.
6       A.     Yes, Brian Christopher Burns.
7       Q.     Mr. Burns, how are you employed?
8       A.     I'm a solo practitioner here in Montgomery
9    County.    And, I guess, primarily practice up here, but
10   I do a lot of work in Houston.        I live in Harris
11   County, so I go down there quite a bit.
12      Q.     Is your office here in Montgomery County?
13      A.     Yes.    It's at 318 North Main, caddy corner to
14   the courthouse.
15      Q.     Okay.    How long have you been a lawyer?
16      A.     Licensed May 5th, 2005, so almost ten years.
17      Q.     And has -- since you've been licensed, has your
18   office always been located in Montgomery County?
19      A.     Yes, for several years even starting -- I want
20   to say when I was 1-L I worked for Stephen Jackson, a
21   local attorney.      And I worked for him I want to say
22   seven years, maybe more.       And then 2008, I went out on
23   my own.    So I've always either worked with Stephen
24   Jackson or on my own since I've been a lawyer.
25      Q.     So you worked for Steve before you were a
                                                             57




1    lawyer and after you became a lawyer?
2       A.   Yes.
3       Q.   And you've been on your own for six years.     So
4    between working for Steve in both capacities and your
5    own, you've actually been in our judicial system up
6    here 13 years; is that correct?
7       A.   That sounds about right.
8       Q.   Do you currently or have you in the past held
9    any positions in bar associations, professional
10   organizations, or have any certifications that would
11   impress us?
12      A.   For I want to say two, maybe three years I was
13   the secretary of the local defense bar.    The Montgomery
14   County Criminal Defense Lawyers Association, I'm the
15   current president until July.    I'm a member of the
16   TCDLA, NACDL.    That's about it.
17      Q.   Okay.   So you are the current president of the
18   Criminal Bar in Montgomery County today?
19      A.   I was voted to be the president.   So, yes,
20   against my will.
21      Q.   In that capacity have you won awards for your
22   achievement in that capacity?
23      A.   Yes.    In fact, I did win an award at our annual
24   banquet now that you mentioned it.
25      Q.   I'm going to go back and include the time that
                                                                58




1    you worked for Mr. Jackson up here before you were a
2    lawyer and the time you worked for him as a lawyer and
3    the time you've worked for yourself as a lawyer, those
4    13 years.    Let me start with the years that you worked
5    for Mr. Jackson before you were a lawyer, did you
6    assist him and his associates in conducting jury
7    trials?
8       A.     Yes, many jury trials.    At the time I worked
9    with a couple of other lawyers, Jeremy Dishongh, Adam
10   Dietrich -- well, non lawyers who became lawyers --
11   Jeremy Dishongh, him and I went to school together,
12   Adam Dietrich, also a criminal lawyer, Rachel Williams,
13   all of us started there and became lawyers and prepared
14   many trials, criminal trials, civil trials, family
15   trials all working with Steve Jackson.
16      Q.     I want to tap into your experience in
17   participating in jury trials in Montgomery County, the
18   selection of juries perhaps.       But the opportunities
19   that you've had to observe the racial make up of the
20   jury panels in Montgomery County, are you focused on
21   that?
22      A.     Yes.
23      Q.     And I know this is difficult.    It's been
24   difficult -- it's difficult for all of us to estimate
25   the number of those opportunities that we've had to
                                                               59




1    observe jury panels and the number of trials that we've
2    participated in.    But I want you to try and give us an
3    estimate of the number of trials that you have
4    participated in jury selection.
5       A.   Okay.    Yeah, I was trying to think of that
6    earlier today.    To the best of my recollection -- I
7    don't have an exact number -- but I want to say sitting
8    second chair with Steve Jackson, I would say 30 trials
9    whether from when I had third-year bar card until after
10   I was licensed.    When I was able to practice law, I'd
11   say about 30 trials with him.    I sat second with Byron
12   Hatchet, an attorney that used to practice here for a
13   number of years, probably eight or nine trials.    And I
14   think I sat with John Choate and several other
15   attorneys.
16      Q.   Okay.
17      A.   Since 2008, I've been on my own.   I'd probably
18   say ten trials.
19      Q.   Now, you didn't say a number.   You said nine
20   with Byron, and then you mentioned Choate; but you
21   didn't give us a number.    I'm up to 49 so far.
22      A.   I'd say 50 approximately to the best of my --
23   yeah.
24      Q.   Just going off your testimony, at least 50?
25      A.   I'd say 50 approximately.
                                                                  60




1          Q.   Okay.    As you a sit here today, do you have a
2    recollection, impression of the racial make up of those
3    jury panels?
4          A.   Yes.    I think just for my observation it goes
5    without saying predominantly Caucasian.       I represented
6    a lot of minorities, specifically Hispanic; and so I'd
7    like to think I'm, you know, focused on that quite a
8    bit.
9          Q.   Let me direct your attention to people of
10   African-American decent --
11         A.   Okay.
12         Q.   -- present on those jury panels.    Do you have a
13   perception of the types of numbers that you have had
14   direct opportunity to observe on your 50 trials?
15         A.   Yes, just very few.    And I actually was
16   thinking of a case that really stood out to me, a case
17   that I sat second with Steve on.       It was in the 359th.
18   Just as an example, after we had busted a panel of
19   about 80, Judge Hamilton had brought in I want to say
20   102 jurors.        I remember it being two African-Americans.
21   I mean, that's what I remember.       It really stood out to
22   me.    I couldn't believe there were so few.
23         Q.   So out of a total of 182 jurors, there were two
24   people of African --
25         A.   I don't remember how many were on the first
                                                                  61




1    panel.     The second panel there was 102 jurors.    I can
2    remember just two African-Americans.
3          Q.   Do you remember if there were any on the first
4    80?
5          A.   I can't remember.
6          Q.   Over all, can you recall occasions where there
7    were no citizens of African-American decent on the
8    panel at all?
9          A.   Yes, many times.
10         Q.   When you -- I want you to try to quantify
11   "many" either in a number or as a percentage.       We know
12   that -- we already know that you didn't keep records of
13   it.    But as a highly intelligent, established attorney,
14   I want your respected opinion as to -- I want you to
15   quantify the amount of jury panels that you had
16   personal opportunity to observe where there were no
17   African-American citizens.
18                   MR. JAMES:     Judge, I'm going to object to
19   speculation.     He just said he doesn't keep any records.
20   He doesn't know.     He is asking him to speculate, to
21   guess right now.
22                   THE COURT:     Overruled.
23         A.   As far as records, the years -- I would say at
24   least, you know, when I was working with Steve and we
25   were picking juries, he had his chart and I had my
                                                                 62




1    chart.    I did keep records.     Of course, I don't have
2    those records because they would stay with his office
3    when I left.      I did keep records.   Putting a percentage
4    on it, I mean, I would say it's in the single digits,
5    four percent, five percent if I'm just throwing number
6    out there.
7       Q.     Four percent of what?
8       A.     African-Americans or less.    And total, I
9    mean --
10      Q.     No.   Listen to the question.   Approximately how
11   many panels had no members of African-Americans on it?
12   How often do you see panels with no black people on the
13   panel?
14      A.     I'd say many times.   Is it the majority?    I
15   can't say.      But definitely very common.
16      Q.     Okay.   There is a visual aid there which
17   applies a percentage of 4.3 percent.      And just assume
18   with me that the demographers will testify that our
19   black population is 4.3 percent of the total.      And then
20   we mathematically applied that to 60, 70, 80, 90, and
21   100.    And this, of course, is an average.    So on an
22   average, say, two 60-member panels in order to be
23   representative according to this equation -- and the
24   State will certainly argue that it's not valid -- but
25   just for demonstrative purposes, according to these
                                                                   63




1    numbers you'd have to have approximately five to be
2    representative.      In your experience in this county does
3    our jury panels fall short of this representative
4    amount?
5       A.     Yes.
6       Q.     If, in fact, it's representative.
7       A.     I would say it falls short.
8       Q.     Does it fall grossly short?
9       A.     Grossly short?       I would say in my experience it
10   has always been short of that number.
11      Q.     But by how much?      Just a little bit?   A lot?
12      A.     By -- when you're talking such small numbers
13   one can be a lot.      I would say if it's short, it's
14   short.
15      Q.     Okay.    As president of our bar association, are
16   you aware of a -- not sure how to characterize it -- a
17   belief, a reputation, if you will, that there is an
18   under representation of black jurors in our jury panels
19   in our county?
20      A.     I would -- I mean, I guess someone who does a
21   lot of criminal defense, I would agree with that, that
22   there is a shortage.       As far as, I guess, being a
23   reputation, yes, I agree with that.
24                     MR. BRASS:    Pass the witness, Judge.
25                     MR. HUGHES:    No questions, Your Honor.
                                                                   64




1                     MR. JAMES:   No questions, Judge.
2                     MR. BRASS:   May I just see if Gilbert has
3    arrived, Judge?     If not, we'll move on.
4                     THE COURT:   Sure.   Thank you, Mr. Burns.
5                     MR. BRASS:   I'll call Ed Stokes, Judge,
6    from the clerk's office.
7                     THE COURT:   Okay.   You've already been
8    sworn, correct?
9                     THE WITNESS:   Yes, sir.
10                    THE COURT:   Okay.   Have a seat.   Whenever
11   you are ready, Mr. Brass.
12                    MR. BRASS:   Thank you, Your Honor.
13                         RAY EDWARD STOKES,
14   having been first duly sworn, testified as follows:
15                         DIRECT EXAMINATION
16   BY MR. BRASS:
17      Q.     State your name for the record, please.
18      A.     Ray Edward Stokes.
19      Q.     And you go by Ed Stokes; is that correct?
20      A.     Yes.
21      Q.     And how are you employed?
22      A.     I'm employed as the supervisor for the jury
23   system in the District Clerk's Office.
24      Q.     Mr. Stokes, I'm going to be very brief and very
25   direct.    And we're going to ask you:      Does there exist
                                                              65




1    electronic data that would inform an observer of that
2    data of the addresses of the jurors summoned for jury
3    duty in our county?
4       A.   Yes.
5       Q.   If this Court ordered the District Clerk to
6    provide the defendant's demographers, his experts, an
7    electronic data file of the jurors that were summoned
8    for jury duty in the calendar year 2013, is that
9    something you could prepare for them?
10      A.   No.
11      Q.   Who could do that?
12      A.   I'm absolutely not positive.    The IT department
13   has access to such things.   I don't know how they could
14   get into it.
15      Q.   Okay.   But is it true that the jury summons
16   that go out go out from an electronic file?
17      A.   Yes.
18      Q.   Of names and addresses?
19      A.   Yes, that's true.
20      Q.   Okay.   And, I believe, from your first answer
21   you believe that it is possible whether it's you or
22   someone else or IT to compile that data on some medium
23   such as a disk or disks or thumb drives or hard drives
24   or some computer medium that would contain just that
25   address data; is that correct?
                                                                 66




1       A.     Could be possible.
2                      MR. BRASS:    I'll pass the witness, Judge.
3                      MR. HUGHES:   No questions, Judge.
4                      THE COURT:    Okay.   Mr. James?
5                           CROSS-EXAMINATION
6    BY MR. JAMES:
7       Q.     Mr. Stokes, is the data that have -- is that
8    what's been provided by the Secretary of State's
9    Office?
10      A.     That's correct.
11      Q.     Would y'all then have to isolate the -- all
12   that data for the folks that were summoned in 2013?
13      A.     At our level, I couldn't do it.
14      Q.     Okay.    All right.    And then with further having
15   to be done, then the address information would need to
16   be extracted from that information as well to get what
17   the defense is requesting, right?
18      A.     Yes.
19      Q.     You're saying you don't know whether it can be
20   done or not?
21      A.     Not at any level I can approach.
22                     MR. JAMES:    I'll pass the witness, Judge.
23                          REDIRECT EXAMINATION
24   BY MR. BRASS:
25      Q.     Do you know either exactly or approximately how
                                                                    67




1    many jurors were summoned in 2013?
2       A.     Not off the top of my head.       We do about 2,000
3    a week.
4       Q.     2,000 a week, 52 weeks a year?
5       A.     Give or take, yes.
6       Q.     So approximately 100,000 per year?
7       A.     Could be.    I don't remember the number off the
8    top of my head.       That's a large number.
9                   MR. BRASS:     One moment, Your Honor?
10                  THE COURT:     Yes.
11                  MR. BRASS:     Pass the witness, Judge.
12                  MR. HUGHES:     No questions of this
13   witness.
14                  MR. JAMES:     Judge, nothing further for
15   Mr. Stokes.
16                  THE COURT:     Okay.   May he be excused?
17                  MR. BRASS:     Yes, Judge.
18                  MR. JAMES:     No objection.
19                  THE COURT:     All right.    Thank you,
20   Mr. Stokes.    Next witness Mr. Brass?
21                  MR. BRASS:     Judge, and I also got what I
22   needed from Mr. Stokes.      I don't need the other clerk,
23   and I would submit that she could be released as well.
24                  THE COURT:     Okay.   Any objection?
25                  MR. HUGHES:     Yes, Your Honor.    I'll call
                                                                   68




1    her.
2                    THE COURT:    You'll call her?
3                    MR. HUGHES:   Yes.
4                    THE COURT:    All right.    Then we'll hold
5    her until your turn comes up.
6                    MR. BRASS:    That's fine, Judge.
7                    THE COURT:    Any other witnesses?
8                    MR. BRASS:    Yes, Judge.   I call Dr. Karl
9    Eschbach.
10                   MR. BRASS:    I've given our court reporter
11   his vitae so that she would have it.
12                   THE COURT:    Okay.   I've got it.   You were
13   sworn earlier?
14                   THE WITNESS: Yes, I was.
15                   THE COURT:    Okay.   Have a seat.   Whenever
16   you are ready, Mr. Brass.
17                   MR. BRASS:    Thank you, Your Honor.
18                          KARL ESCHBACH,
19   having been previously sworn, testified as follows:
20                        DIRECT EXAMINATION
21   BY MR. BRASS:
22      Q.   State your name for the record, please.
23      A.   Karl Eschbach.
24      Q.   And how are you employed Dr. Eschbach?
25      A.   I'm a professor and director of population
                                                             69




1    research in the Department of Internal Medicine at
2    University of Texas Medical Branch in Galveston.
3       Q.   Can you tell us a little bit about your
4    education and background, training, and experience?
5       A.   I have a Ph.D in Sociology from Harvard
6    University, a post-doctoral fellowship at the Center
7    for Demography at the University of Wisconsin.    And
8    then second post-doctoral fellowship at the Texas
9    Medical Branch in Galveston.
10      Q.   Okay.   Tell us a little bit about your
11   professional experience.
12      A.   Okay.   I have been -- since 1995 I've been a
13   professor.   I was a professor at the University of
14   Houston, professor at the University of Texas Medical
15   Branch, professor at the Department of Demography at
16   University of Texas in San Antonio.   I've taught
17   demography, research methods, statistics in sociology
18   departments and Department of Preventative Medicine and
19   Community Health and the Department of Demography.
20   I've also served as the state demographer of Texas
21   which is an appointed office.   I was appointed by
22   Governor Perry on the nomination of the lieutenant
23   governor and speaker of the house to advise government
24   and government of Texas on demographic issues.
25      Q.   And you served as the state demographer from
                                                                  70




1    when to when?
2       A.   From 2008 to 2010.
3       Q.   All right.    Have you published?
4       A.   I have published, I believe -- I haven't
5    checked lately.    I think it's 57 peer review papers
6    with over a thousand citations of scientific
7    literature.
8       Q.   Have you been involved in testifying in
9    government activities in terms of redistricting?
10      A.   Yes, I have testified.      I think I want to say
11   twice to the legislature on the topic of redistricting.
12   I have testified many times in my official capacity as
13   state demographer to the various committees of the
14   legislature. I also in the last round did the
15   districting plan for the city of Galveston.      That plan
16   was adopted.
17      Q.   Okay.
18                   MR. BRASS:    Judge, I'm going to submit
19   Dr. Eschbach as an expert.      I've furnished the State
20   with his 16-page CV.    And I'll ask that if they will
21   agree that he is an expert in the field of demography.
22                   MR. HUGHES:   No objection from the
23   County, Judge.
24                   THE COURT:    Mr. James?
25                   MR. JAMES:    Judge, it's my understanding
                                                                   71




1    that they don't need to ask the Court to do that
2    anymore.   But --
3                     THE COURT:    No.
4                     MR. JAMES:    But no objection.
5                     THE COURT:    Okay.
6                     MR. BRASS:    Thank you, Your Honor.
7       Q.    (BY MR. BRASS)       Dr. Eschbach, did I contact you
8    approximately a year ago to enlist your assistance in
9    this project that has brought us here to the Court
10   today?
11      A.    Yes, you did.
12      Q.    Okay.    And, in fact, is it true that you've
13   been appointed by this Court as an expert for this
14   defendant to participate in this endeavor?
15      A.    That is my understanding.
16      Q.    And have we met periodically over this past
17   year and discussed the various issues as they've
18   developed?
19      A.    I believe we've had two face-to-face meetings
20   and several phone conferences over that period.
21      Q.    And multiple e-mails, other types of
22   communication?
23      A.    Yes, e-mails.
24      Q.    Okay.    And Max Beauregard is sitting here at
25   counsel table with us.        Could you tell the Court what
                                                               72




1    his role is in relation to you and your work?
2       A.   So Max has -- Mr. Beauregard has expertise in
3    UCGLS information systems and demography.   I have known
4    him for, I think, 20 years going back to the University
5    of Texas.   He is particularly skilled at manipulating
6    the data and the address files that might be received
7    and making comparisons of those census distributions
8    relative to the location of the African-American
9    population in the county.
10      Q.   And so I have explained to you what our
11   hypothesis is and what our issue is and that is we're
12   challenging the jury summoning system in the county for
13   being racially bias.   Is that your understanding of
14   what we're doing?
15      A.   That is my understanding.
16      Q.   Now, as your expertise exists, is it applicable
17   to the issue that I just stated?    Is this within your
18   area of expertise?
19      A.   It is certainly within my area of expertise,
20   yes.
21      Q.   And do you, in fact, have other experience
22   dealing with racial issues in terms of components of
23   population?
24      A.   Certainly my publication record, the vast
25   majority of it is concerned with issues of racial
                                                                73




1    demography, racial counting, racial distribution, yes.
2       Q.     Okay.   Have you done at this point an analysis
3    of the African-American population of Montgomery
4    County?
5       A.     Yes, I did.   It is in the 2010 census which is
6    the most recently available data for the county.      I
7    determined that the adult population of the county was
8    4.3 percent African-American.     14,250 African-American
9    adults 18 years old or older in the county.     And that
10   is 4.31 percent of the population -- of the adult
11   population of the county.
12      Q.     Let me show you a visual aid that I prepared
13   with your assistance.     And does that include the
14   numbers that you've just testified to?
15      A.     Yes, the numbers I derived from the census.
16      Q.     So as you've sat here this afternoon and
17   listened to the lawyers testify about their
18   observations of the jury panels in collectively vast
19   experience, do you believe that there is at least a
20   basis for the research to determine the cause or
21   possible cause of the absence of African-Americans on
22   our jury panels?
23      A.     Certainly the majority of the testimony -- all
24   of the testimony was consistent with the under
25   representation of African-Americans on jury pools in
                                                             74




1    Montgomery County understanding that it was
2    impressionist.    Certainly I would have concluded there
3    was good reason to fully investigate the issue further.
4       Q.   You heard the representative of the District
5    Clerk's Office testify that the electronic data of the
6    addresses of summoned jurors is available.    You've
7    heard that?
8       A.   Yes, I did hear the representative of the
9    clerk's office say that.
10      Q.   Given your -- you've heard him testify, did you
11   not, that the names and addresses are transmitted to
12   the -- on some type of electronic file, correct?
13      A.   Yes.
14      Q.   So with your experience with electronic files,
15   do you believe it's possible, reasonable to extract
16   just the address data from that broader amount of data?
17      A.   It would certainly be possible to extract the
18   address data.
19      Q.   Does the software exist such that you could
20   take that electronic data and perform an analysis in
21   comparison to the census data to determine if the
22   targets of the jury summons are racially neutral?
23      A.   Yes.    We could take the address data and
24   geo-code it with the term used in relationship to
25   census geography and geographic counts of racial
                                                                75




1    populations and do a statistical analysis of whether
2    the jury summons as were reflected in the address list
3    were consistent with the representation of
4    African-American in residential neighbors in Montgomery
5    County.
6       Q.     If the Court orders the production of that data
7    and the other courts that review this permit that to
8    happen, do you agree to keep this data confidential and
9    only use it for the purpose that you're commissioned to
10   use it for?
11      A.     I would certainly keep the data confidential.
12   This is a routine obligation of my job working at a
13   medical school to protect confidential HIPAA protective
14   and other legal data.     So I am certainly well equipped
15   in terms of both the skills and the appropriate systems
16   for data security to keep that promise.
17      Q.     The visual aid that I -- so the 4.3 percent
18   that we've used for the visual aid that we've asked all
19   the lawyers about, that came from your examination of
20   the census data, correct?
21      A.     Yes.   It comes from simple calculation of the
22   2010 census data for Montgomery County.
23      Q.     Now, you've heard the prosecutor cross-examine
24   the lawyers about -- that perhaps the actual number
25   percentage would be less because of people who don't
                                                             76




1    have driver's licenses or are registered to vote as
2    being eliminated from the data base.   What is your
3    response to that in terms of --
4       A.   Well, it's certainly -- it is certainly
5    possible that that would be the reason for just a
6    discrepancy of the kind that we heard.   I don't have
7    any information as to the composition of driver's
8    licenses or voter registrations or other sociological
9    means that the people might be excluded.   But my
10   understanding of the purpose of the analysis would be
11   simply to determine whether there was, in fact, a
12   statistically equivalent representation or grossly
13   under representation of African-American residential
14   areas in the areas that we seek summons.   So I could
15   not speak to the issue but would think that the work
16   that we would do with the data would help us to
17   identify whether there was an issue that needed to be
18   addressed.
19      Q.   If, in fact, the exclusion of people without
20   driver's license or voter registration manifested a
21   racially biased system, the fact that they are excluded
22   for that reason wouldn't effect the fact -- I mean, if
23   they don't have a driver's license or register to vote,
24   it doesn't mean they are not citizens; is that a fair
25   assessment of the situation?
                                                                   77




1                    MR. JAMES:    Judge, I just want to object.
2    We've had a two-part question.         I don't know what he
3    would be answering at this point.
4                    THE COURT:    It's confusing to me at this
5    point too.
6                    MR. BRASS:    All right.    I'll separate it,
7    Judge.
8       Q.    (BY MR. BRASS)      If an African-American citizen
9    didn't have a driver's license, might they still be an
10   African-American citizen?
11                   MR. JAMES:    Judge, I'll object.    This
12   witness isn't an expert on whether somebody is
13   registered to vote or qualified to vote.        He is asking
14   him to speculate.    He is also asking him a legal
15   conclusion at this point.
16                   THE COURT:    Overruled.
17      A.    Certainly persons without driver's licenses are
18   citizens.    I am certainly not an attorney and can't
19   speak to the issue of eligibility.
20      Q.    In your work in terms of, oh, say, making sure
21   that districting is racially balanced, does the fact
22   that a person does or doesn't have a driver's license
23   effect the constitutionality of --
24      A.    It's irrelevant.     Sorry.    Go ahead.
25      Q.    Yes.
                                                             78




1       A.   It is irrelevant to any position about
2    redistricting, any questions of the population count.
3       Q.   Okay.   What about voter registration, does
4    that -- is that relevant to racially-balanced issues?
5       A.   Again, even voter redistricting is about
6    voting, it is not relevant for determination of fair
7    racial balance in districts.
8       Q.   So in your analysis of whether a process passes
9    constitutional muster, does either driver's licenses or
10   voter registration become a factor?
11      A.   I would not think it would be relevant.
12      Q.   In terms of your -- listening to the testimony
13   this afternoon from the lawyers about their
14   observations in terms of the numbers -- and I tried my
15   best to pin them down to numbers -- but the testimony
16   be it as it may, does it depart statistically
17   significantly enough from the numbers in our visual aid
18   to warrant further investigation?
19      A.   Yes, it does.
20      Q.   And is that answer unequivocal, clearly -- I
21   mean, how would you quantify it?
22      A.   Again, I would have to say that each of the
23   figures that was given by the people testifying was
24   impressionistic, so it's not statistical data.
25   However, if the numbers that they are characterizing
                                                             79




1    are correct, this would imply representation -- it's
2    straightforward to calculate the percentage of jurors
3    for a given size or potential jurors in a given pool
4    based on the size of the pool as to what percentage
5    should be African-American.   So a jury pool of 60 if
6    that is drawn in a random sample, about seven percent
7    of such jury pools should have no African-American
8    members and 48 percent should have three or more.     At a
9    100 it's 1.2 percent of jury pools should have no
10   African-American representatives, and over 80 percent
11   it should have three or more just as a straightforward
12   calculation applying 4.31 percentage and assuming
13   random selection onto the jury pool.
14      Q.    Just so that I'm sure the court reporter caught
15   your answer clearly because you said it kind of quickly
16   and not very loudly, can you repeat your
17   characterization of the under representation?   How did
18   you characterize it?
19      A.    Again, I entered characterization of gross
20   under representation of African-Americans on jury
21   pools.
22      Q.    Gross under representation?
23      A.    (Nodding head affirmatively).
24      Q.    And are you testifying to that in your capacity
25   as an expert demographer?
                                                               80




1       A.   Yes.
2       Q.   Was there a particular part of their testimony
3    that was more significant to you in terms of your
4    statistical perception, perhaps the percentage of
5    panels that have no African-Americans?
6       A.   So as I've already stated, the -- a jury pool
7    of 60, no more than seven percent of jury pools should
8    have no African-American representatives.    The larger
9    jury pools, that percentage would go substantially
10   down.   And I was hearing people were not -- obviously,
11   according to numbers -- but they were using a word like
12   "many," perhaps the majority; and the majority would be
13   50 percent compared to seven percent, six percent, five
14   percent.
15      Q.   That was what I was referring to.
16                  MR. BRASS:   I'll pass the witness, Judge.
17                       CROSS-EXAMINATION
18   BY MR. HUGHES:
19      Q.   Doctor, just so I can understand you clearly,
20   if you were explaining the jury summons process in
21   Montgomery County, couldn't you conclude hearing the
22   summoning process that there is not a systematic
23   exclusion of a particular group?
24      A.   I could not conclude that without seeing the
25   data about the pools that resulted.     The statistical
                                                                81




1    calculations that I gave are very straightforward.     So
2    if those numbers were not produced, I would not know
3    why.    I would not infer intent or bias.   I don't know
4    anything about that on the basis of my expertise.    It
5    would be -- and issues of process would not get that
6    question either.   The question would be whether the
7    representation of potential African-American jurors
8    reflected the presence of the African-American
9    population in Montgomery County.
10      Q.    If the testimony that you learned the process
11   of the way the county summons jurors is that it's
12   random, then what significance difference does getting
13   jury address mean?
14      A.    Well, random -- that maybe a two-part question.
15   It's random with respect to what list is one question,
16   whether it's a list of eligible people to serve on the
17   pools.   That's something statistical analysis could
18   help us solve.   What the address list would help us do
19   essentially is it is a demographic fact in this county
20   as in much of the United States that African-Americans
21   tend to live in very different areas compared to non
22   African-Americans.   So that by -- we could
23   essentially -- by looking where the address summons
24   were going, we could determine whether areas that have
25   heavy concentrations of African-Americans were
                                                             82




1    statistically unrepresented in the summons that were
2    sent.
3       Q.   Are you aware of the requirements by law of how
4    the Secretary of the State gives eligible jurors?
5       A.   I am not.
6       Q.   If you understood that the law requires that
7    the Secretary of State takes voter registration,
8    driver's license, IDs when they are compiling the
9    potential jurors in the county -- take that as a
10   fact -- and then that is generated as a program
11   randomized, how would that go out to -- how would that
12   represent an unfair population of minorities I guess is
13   my question?
14      A.   So what I could testify to is the comparison to
15   the representation of adults in the population.     Again,
16   I do not have any information as to the representation
17   of African-Americans in driver's license lists or voter
18   registration lists.   That data is not collected for
19   either one of those processes, so I can't speak to
20   that.
21      Q.   Will address data rule out other possible
22   explanations for under representation?
23      A.   I'm not sure what you mean in terms of "other."
24   It would not rule out any explanation of the cause.    It
25   would simply establish the fact or the nonfact of --
                                                                  83




1       Q.   Other things like the likelihood of
2    African-Americans to respond to a summons or --
3       A.   It would not speak to issues like that.       It
4    would not discriminate amongst different explanations
5    of moving from the population to the jury pool.       That
6    would not be revealed by this analysis.      The analysis
7    would set the stage that there is potential under
8    representations in the summons or not.      It would not
9    speak to cause.
10      Q.   Is there any kind of marginal error that
11   would -- that you think would be in your results?
12      A.   Strictly speaking, no, in the sense that this
13   is -- we're dealing with population data rather than
14   statistics.    Certainly, I would expect to apply the
15   statistical tests for assuming a certain degree -- a
16   certain degree of randomness in how the world works.
17   But strictly we're analyzing population data here, not
18   sample data.    And the numbers are so large that the
19   margin of error for any statistical calculation if you
20   chose to address it in that way would be very small.
21                   MR. HUGHES:   Pass the witness.
22                   MR. JAMES:    May I proceed, Judge?
23                   THE COURT:    Yes.
24                        CROSS-EXAMINATION
25   BY MR. JAMES:
                                                                 84




1       Q.    Doctor, twice when Mr. Brass was questioning
2    you I heard you talk about the need for further
3    investigation basically.     Do you remember saying that?
4       A.    Yes.
5       Q.    And that's because you can't say one way or the
6    other whether there is or isn't any sort of issue with
7    the jury summoning process, can you?
8       A.    You are correct.
9       Q.    I mean, it's premature basically to say whether
10   or not there is an issue with our jury summoning
11   process and whether Mr. Davis has a jury panel that
12   doesn't fit a fair cross section of the community,
13   right?
14                   MR. BRASS:   Judge, I'll object because
15   that's a misstatement of the issue.       We're challenging
16   the jury summoning process.     It is premature to
17   challenge the array in Mr. Davis' particular jury
18   panel, and that's not what I'm doing.      They think I'm
19   doing that, but it's clearly not what I'm doing.        And I
20   hope that that's obvious to the Court.      That's why that
21   question --
22                   THE COURT:   I'm following what is going
23   on, Mr. Brass.
24                   MR. BRASS:   -- is irrelevant, Judge.
25                   THE COURT:   Sustained.
                                                             85




1       Q.   (BY MR. JAMES)   Now, just to clarify, you don't
2    know whether there is or there isn't an issue with
3    under representation of African-Americans in the way
4    that the county currently summons jurors, correct?
5       A.   I believe I would say that.
6       Q.   I just want to clarify for the record.    You're
7    saying that you don't know whether there is or there
8    isn't an issue?
9       A.   Well, I heard testimony from a number of
10   attorneys that suggested figures suggesting a gross
11   under representation on jury pools.   I do not have any
12   current information that would allow me to know
13   anything about the process.
14      Q.   So absent the anecdotal evidence of what you
15   heard from people you can't say one way or another?
16      A.   Without the data that is being asked for, no.
17      Q.   And you don't know out of the 4.3 percent
18   according to the 2010 census of the adult population of
19   Montgomery County being African-Americans you can't
20   tell us how many of that 4.3 percent are eligible to
21   serve on juries, can you?
22      A.   I don't have specific information.   I have done
23   some analysis of citizenship.   African-Americans are
24   over represented in the citizen population which would
25   be expected to increase.
                                                                 86




1       Q.     Doctor, I'm sorry.   My question is pretty
2    simple.    Can you tell us that information or not?    Do
3    you know the percentage of that 4.3 percent that are
4    eligible to be on a jury?
5       A.     I do not.
6       Q.     And a lot of what the statistics that you
7    talked about today in regards to redistricting, those
8    are based off of straight population, right?
9       A.     That's correct.
10      Q.     They are not based off of eligible jurors,
11   right?
12      A.     That's correct.
13      Q.     And you know that someone who is a convicted
14   felon isn't going to be eligible to be a juror, right?
15   Are you aware of that?
16      A.     I'm aware of that.
17      Q.     Someone who is a convicted thief isn't eligible
18   to be a juror, right?
19      A.     That's my understanding.   I'm not an attorney.
20      Q.     And someone who may be eligible to be a juror
21   might fall into one of the several statutory exemptions
22   that allows them from getting out of jury duty without
23   having to show up, right?
24                  MR. BRASS:   Judge, that's way beyond his
25   area of expertise.    I'll object to that question.
                                                                 87




1                    THE COURT:     Well, overruled to the extent
2    he has knowledge because it plays into where we are
3    going with this.
4          A.   Could you, please, repeat the question?
5          Q.   (BY MR. JAMES)    Basically, I'll give you a
6    little bit of the law, Doctor.       There are certain
7    exceptions or exemptions is the term that someone
8    can -- falls into a certain category.       Say if they are
9    over 65, I believe is one of the exemptions that they
10   can say, "I don't want to serve."       And they don't have
11   to.    So they can get their summons in the mail and say,
12   "You know what?     I'm not going in or I'm going to
13   contact and use my exemption."       And then not be showing
14   up.    They may be the primary caregiver for a young
15   child.     That's another exemption.    You can't tell us
16   the percentage of people who may be eligible for one
17   these exemptions out of these population, can you?
18                   MR. BRASS:     Judge, I object again because
19   it's irrelevant.     That does not exclude who is
20   receiving the jury summons.       We're asking for the
21   address data of the jurors that are summoned.        And the
22   people that he's talking about would be included in,
23   that not excluded.     So --
24                   THE COURT:     I understand, but I think his
25   question is still relevant with regard to the line of
                                                                 88




1    inquiry we are in now.     So overruled.   Go ahead.
2       A.   I do not have information on that.
3       Q.   (BY MR. JAMES)     In fact, there is other reasons
4    why somebody may not show up that may or may not be
5    summoned to jury duty such as --
6                  MR. BRASS:    Judge, I object to the
7    characterization that they may not show up.     We are
8    asking for the jurors who are summoned.     We're not
9    talking about the ones -- he's on last year's set of
10   motions.
11                 THE COURT:    I understand, but he has a
12   right to do this line of inquiry because of the
13   witnesses expertise.     I think it's legitimate.    I
14   understand the issues, Mr. Brass.     I'm not getting
15   confused if that's what you're worried about.       But I
16   think he has the right to ask these questionings.
17                 MR. JAMES:    Judge, to be fair, part of
18   the reason I'm asking this is because they have paraded
19   several attorneys in here who testified to the under
20   representations to people showing up in jury panels.
21                 MR. BRASS:    Well, Judge, he should have
22   asked them questions then, not my demographer.
23                 THE COURT:    Let's move along.   Go ahead,
24   Mr. James.   Next question.
25      Q.   (BY MR. JAMES)     So, Doctor, there is all sorts
                                                              89




1    of cultural and economic reasons why someone may not
2    show up for jury service, right?
3       A.   That's correct.
4       Q.   Now, bottom line is you cannot say whether
5    African-Americans are systematically excluded from jury
6    panels in Montgomery County?
7       A.   No, not on the basis of the evidence I have so
8    far.
9       Q.   And, Doctor, I understand that you've been
10   appointed.   How much have you been paid by the county
11   for your work in this case so far?
12      A.   So far, nothing.     I believe I offered a
13   statement of $2,500.
14                   MR. JAMES:   Pass the witness.
15                   MR. BRASS:   My turn, Judge?
16                   THE COURT:   Yes.
17                       REDIRECT EXAMINATION
18   BY MR. BRASS:
19      Q.   Doctor Eschbach, isn't it the very data we're
20   seeking that would answer the prosecutor's question as
21   to whether there is or there isn't a racially neutral
22   system in summoning jurors?
23      A.   Yes, I believe what we would find from that
24   exercise.
25      Q.   If you already had the answer to that question,
                                                                    90




1    we wouldn't need the data, would we?
2       A.     Well, I would think not.
3                      MR. BRASS:   That's all, Judge.
4                      THE COURT:   May he be excused?
5                      MR. JAMES:   Fine with me, Judge.
6                      THE COURT:   Okay.   Thank you very much,
7    Doctor.    Next witness, Mr. Brass?
8                      MR. BRASS:   I call Max Beauregard, Judge.
9                      THE COURT:   I know you were already sworn
10   in, so just have a seat.       Get comfortable.     Whenever
11   you are ready, Mr. Brass.
12                           MAX BEAUREGARD,
13   having been previously sworn, testified as follows:
14                          DIRECT EXAMINATION
15   BY MR. BRASS:
16      Q.     State your name for the record.
17      A.     Max Beauregard.
18      Q.     And how are you employed?
19      A.     I'm a government professor at Houston Community
20   College and I'm an independent demographics and mapping
21   consultant.
22      Q.     And do you have -- do you operate a company
23   called Demographics and GIS Consulting Services?
24      A.     Yes.    It's a sole proprietorship.
25      Q.     Okay.    And tell us a little bit about your
                                                               91




1    education and background.
2       A.    I have master's in science in city planning
3    from the University of Texas in Austin and been
4    involved with the census since 1980 and been a
5    consultant since about 1995 -- no -- about 2005.
6    Excuse me.
7       Q.    How long have you been a professor?    Did you
8    tell me how long you have been a professor?
9       A.    Five years.   Six years, I guess.
10      Q.    Have you been an evaluator of redistricting
11   plans?
12      A.    I've looked at redistricting plans and
13   evaluated those for various -- to see what impact that
14   had.
15      Q.    Have you published papers?
16      A.    Newspaper articles.    Eschbach and I wrote a
17   newspaper article in 2001 on suburbanization of
18   minorities, and several other newspaper articles and
19   trade publications.
20      Q.    Does your work experience include work with
21   HISD?
22      A.    Yes.   I was there for ten years as the manager
23   of the demographics department doing enrollment
24   forecasting for students.      They have 200,000 students,
25   so that was quite a task at the time.
                                                               92




1          Q.   Are there similarities to that work and this
2    project that you've been involved with us for this past
3    year?
4          A.   Very much so.   We both -- both projects use
5    geo-coding as Eschbach mentioned which is matching the
6    address to the map; and once it's plotted on the map,
7    then you can come in and do counts and tabulations with
8    custom polygons and correlate that to census data.
9    I've done that with school data and census data,
10   particularly in forecasting school enrollment data.       At
11   the lower grades we're using census counts to forecast
12   how many incoming Kinder and pre-K students are coming
13   in.
14         Q.   And does all that work involve the analysis of
15   population data?
16         A.   Yes, very much so.
17         Q.   Do you possess -- oh, let's talk about
18   professional organizations.       Are you a founding member
19   of the Texas Economic and Demographic Association?
20         A.   Yes.   We -- I founded this jointly with a local
21   government agency.      It's a professional association
22   called Texas Economic and Demographic Association.
23         Q.   And --
24         A.   Did that about 1984.
25         Q.   And you have been a board member for some
                                                                 93




1    years?
2       A.     Yes.
3       Q.     Okay.    This issue that -- did I contact you
4    approximately a year ago to participate in this
5    question about the jury panels of Montgomery County?
6       A.     Right.
7       Q.     And you -- were you appointed by this Court and
8    authorized up to $5,000 compensation for your work?
9       A.     Yes, that's my understanding.
10      Q.     You have been paid anything yet?
11      A.     No, nor signed a contract which I found
12   interesting working for lawyers.
13      Q.     In this field the only thing that's important
14   is his.
15      A.     Okay.
16      Q.     Okay.    So have you prepared for a hearing today
17   a sample of the kinds of mapping and geo-coding that
18   has been referred to in your testimony?
19      A.     Yes.    I went through the census and pulled out
20   a black data by block.      There are approximately 7,200
21   blocks in Montgomery County.      And the racial and ethnic
22   data, there is two -- approximately 250 categories
23   which can be summed in any custom way.       To define --
24   depending on how you define black, I chose non Hispanic
25   blacks.    There are blacks of one race, two race, some
                                                              94




1    other race, various ways of tabloiding biracial people.
2    The census is very detailed in how it -- it surveys
3    that.    Since this data is user defined, you can be
4    whatever you want to be, but it gives you lots of
5    options in terms of how you define yourself.    This is a
6    very conservative count of non Hispanic blacks.
7       Q.    Did you prepare these as visual aids to
8    demonstrate manifestation of your skills as opposed
9    the --
10      A.    I don't know the process that we're going to
11   use.    Yes, the red and yellow map are actual counts of
12   non-Hispanic blacks by block, and the other is the
13   percent of blacks per block.    You have to use both.
14   Sometimes a little block can be 90 percent black, but
15   it could only be four people because the actual number
16   of people in that block is very low.    So you have to
17   use both those together.    The third map on the 8 and a
18   half by 11 is the sample of the geo-coding.    The
19   software address manages the address to the streets.
20   And this is student data in Pearland Independent School
21   District.
22      Q.    In comparing your role to this work, to Dr.
23   Eschbach's role, are you the one that's doing the leg
24   work in terms of the data?
25      A.    Yes.   I was surprised to hear that it could be
                                                               95




1    100,000 summons.    So that's pretty good chunk of data,
2    but it's something the software can handle.    A lot of
3    time there is misspellings in the address or duplicate
4    street names, that sometimes public data can be very
5    inconsistent with what the street file is.    And that's
6    what you're doing is taking the individual address and
7    matching it to the street file.    And there can be
8    inconsistencies there that it won't match, and then you
9    have to go in and manually verify and correct the
10   spelling or we see what the closest possible match is.
11      Q.   Because you're actually doing the physical
12   processing of the data -- and you own the software that
13   does this; is that correct?
14      A.   Yes.    I have a software license I just upgraded
15   in January.
16      Q.   And you had to purchase that software, correct?
17      A.   Yes.
18      Q.   And the purpose of that software is for this
19   demographic analysis?
20      A.   Well, I use it for other projects to but, yes.
21      Q.   Okay.
22      A.   I did get the upgrade for this project.
23      Q.   Is the reason that Judge allowed a 5,000 for
24   you and 2,500 for Dr. Eschbach is because you're doing
25   the hands on --
                                                                96




1       A.     I believe so, yes.   A lot of times correcting
2    the addresses on 100,000 rejects can be -- it's a
3    clerical task, but it can very time consuming.
4       Q.     Sure.    And this work that we're proposing that
5    you do should the Court give us the data, order the
6    clerk to give us the data, and the other courts agree
7    with him, is this within your area of expertise?
8       A.     Very much so, yes, sir.
9       Q.     This is what you do?
10      A.     Right.   And, again, the value is once you have
11   the dot on a map, then you can come in and count those
12   and aggregate them by block or zip code or any other
13   type needed.
14      Q.     Okay.    And in terms of confidentiality of this
15   data, if the Court and courts deem that we are to get
16   this data with which you do this analysis, do you
17   pledge to keep this data confidential and treat it
18   with --
19      A.     Certainly.   This is a standard procedure.   Like
20   I said, school districts download their student data
21   base as free lunch data and disability and sensitive
22   data.   So it's standard procedure to sign a
23   confidentiality.
24      Q.     And you're willing to do that?
25      A.     Certainly.
                                                                97




1       Q.     And if you received the electronic data of the
2    summoned jurors, are you able to apply it to the census
3    data to see what the relationship is?
4       A.     Yes, sir, by creating an overlay.   Like you
5    said, first plotting them on the map, and then
6    overlaying them with the block data with actual counts
7    there.    And, again, I chose non-Hispanic blacks, but we
8    can include other categories of blacks to, you know,
9    these categories, like I said, to include biracial
10   people.    Mine does not include biracial.
11      Q.     But, again, the purpose of these exhibits today
12   are just demonstrative to show what you can do?
13      A.     Right.
14      Q.     These aren't the actual --
15      A.     Well, they are an indication of the
16   concentration.      This gives us the first stab, and
17   that's the process.
18      Q.     But if we get the green light on this, will you
19   and Dr. Eschbach work together to formulate the final
20   approach to the processing of the data?
21      A.     Yes.    Yes, and we've worked together before.
22      Q.     Sure.    And once that's done, will you and
23   Dr. Eschbach analyze the data together and formulate a
24   report for this Court in terms of your findings of the
25   analysis?
                                                                 98




1       A.   Yes, that's our purpose.
2       Q.   You, your role in this, and Dr. Eschbach's role
3    in this in terms of your relative areas of expertise,
4    is it more his role to interpret the data in terms of
5    the racial implications, reasons for the results of the
6    data, whereas your role is more the mechanical part of
7    it; is that accurate?
8       A.   Yes.
9       Q.   So questions like:     "Could there been other
10   reasons why there is a lack of representation on jury
11   panels of black African-American citizens," is that
12   within your area of expertise?
13      A.   No.
14                  MR. BRASS:    Pass the witness, Judge.
15                  MR. HUGHES:   No questions.
16                  THE COURT:    Okay.   Mr. James?
17                  MR. JAMES:    Judge, I don't have any
18   questions for him.
19                  THE COURT:    Okay.   May he be excused or
20   step down?
21                  MR. BRASS:    Yes, Judge.
22                  THE COURT:    Okay.   Thank you.   Next
23   witness, Mr. Brass?
24                  MR. BRASS:    Well, Gilbert finally made
25   it, Judge.
                                                                99




1                    THE COURT:   Darn.
2                    MR. BRASS:   But I submit that his
3    testimony would be accumulative of the other witnesses.
4    But he did take the trouble to come.
5                    MR. JAMES:   I'll gladly cross-examine
6    him.
7                    MR. BRASS:   So perhaps I better put him
8    on, Judge.
9                    THE COURT:   Whatever you think is best.
10                   MR. BRASS:   Gilbert Garcia.
11                   THE COURT:   Let me get you sworn in
12   before you sit down.
13                          GILBERT GARCIA,
14   having been first duly sworn, testified as follows:
15                        DIRECT EXAMINATION
16   BY MR. BRASS:
17      Q.   State your name for the record.
18      A.   Gilbert Garcia.
19      Q.   How are you employed, sir?
20      A.   Self-employed.
21      Q.   And in what occupation?
22      A.   Criminal defense lawyer.
23      Q.   How long have you been a lawyer?
24      A.   Since 1978.
25      Q.   And have you always been a criminal defense
                                                            100




1    lawyer since 1978?
2       A.   I've always practiced criminal defense law, but
3    probably exclusively since the late '90s.
4       Q.   You have ever been -- worked for any of the
5    prosecuting entities?
6       A.   I was a assistant county attorney when I first
7    came here in '82.    And then I was the head of the civil
8    section of the County Attorney's Office probably for,
9    like, a year; then I went out into private practice.
10      Q.   Was that in 1983?
11      A.   Possibly, yeah.
12      Q.   Okay.
13      A.   As best I can recall.
14      Q.   Now, prior to 1983, were you involved in any
15   jury trials in Montgomery County?
16      A.   No.
17      Q.   So is it safe to say that your experience with
18   jury trials in Montgomery County has been over these
19   past 31 years?
20      A.   Yes.
21      Q.   Have you held or do you hold any positions in
22   bar associations, certifications, or other
23   accomplishments that would impress us?
24      A.   I was president of the Montgomery County Bar
25   for two years.   I'm thinking it was like '99 and 2000,
                                                             101




1    president of the Montgomery County Criminal Defense
2    Lawyers Association maybe like a year after that in the
3    early 2000s or the late 1990s, and board certified.
4       Q.     Board certified in criminal law?
5       A.     Yes, sir.
6       Q.     Have you tried many jury trials in these 31
7    years in Montgomery County?
8       A.     Yes.
9       Q.     Oh, and in these 31 years, has your
10   geographical center of your practice been in Montgomery
11   County?
12      A.     Yes.    I do have other counties that I practice
13   in, but I would say over 80 percent, maybe even 90
14   percent is here.
15      Q.     Okay.   And have you tried jury trials in
16   Montgomery County?
17      A.     Yes.
18      Q.     And I know this is a difficult question, it's
19   been difficult for everybody.      But to the best of your
20   recollection and your -- and as an estimate, how many
21   jury trials have you tried in Montgomery County roughly
22   and as an estimate?
23      A.     I tried to put that together once, but it's
24   very difficult when you're talking about such a large
25   span of time.      Earlier there were more, and it's
                                                             102




1    tapered off as life has gone on.
2       Q.   You understand there are lawyers who never try
3    jury trials?
4       A.   Yes.
5       Q.   And there are lawyers that try them every week.
6    All I want is to put into the record where you fit in
7    this spectrum.
8       A.   In the last five years I've only tried three.
9    But before that, I tried a lot.    So it's just --
10      Q.   You have to put us -- a lot?
11      A.   Okay.    When I first got into private practice,
12   obviously, when you're doing court-appointed work you
13   do more just because that's the nature of the beast.       I
14   would probably say the height of my practice might have
15   been five a year, and then tapered down from that.
16      Q.   You think you have a hundred trials under your
17   belt?
18      A.   Oh, yeah.
19      Q.   100 plus?
20      A.   Oh, yeah.
21      Q.   Good enough.   In these 100 plus trials, have
22   you had an opportunity to observe the racial make up of
23   the jury panels in Montgomery County?
24      A.   Yes.
25      Q.   And particularly focusing on the numbers of
                                                               103




1    people of African-American decent on those jury panels,
2    do you have a perception of your experience as to the
3    level of numbers of African-Americans that have been on
4    your jury panels?
5       A.     Right.   It appears low to me.   All minority
6    representation has appeared low.     Obviously when a
7    person's last name is Garcia, you're looking for
8    minority representation more than most.      And I've
9    always thought it was willfully inadequate.
10      Q.     And so -- okay.   Have there been panels in your
11   jury trials that were totally void of any
12   African-Americans?
13      A.     Yes.
14      Q.     And how would you characterize the number --
15   quantify the number of panels that had no
16   African-Americans?     First, I'll ask you few or many?
17      A.     Many.
18      Q.     And within the category of many, can you
19   quantify at all in terms of percentage, numbers?        Just
20   give us some definition of your interpretation of
21   "many."
22      A.     I would say almost a half had none that I can
23   recall.
24      Q.     Would you agree with me that half is more than
25   seven percent?
                                                              104




1       A.   Yes.
2       Q.   I want to show you a visual aid that is among
3    the various visual aids.     And you see that there is
4    mathematical calculations that include the number 4.3
5    percent?
6       A.   Right.
7       Q.   And so I don't know how long you were sitting
8    in the courtroom, but if you heard Dr. Eschbach's
9    testimony that there were 4.3 percent of the adult
10   population of Montgomery County are African-American,
11   we've just done some calculations and the various -- as
12   to various sizes of jury panels -- not all of them.
13   Obviously, misdemeanors are smaller than 60.     But just
14   60 to 100, can you see the calculations of if there was
15   a population representation on panels of 4.3 percent,
16   those would be the numbers.     You see that?
17      A.   Got it.   Okay.
18      Q.   So in your experience I want to ask you if on
19   the average have you observed less than what's
20   indicated according to the percentage of the black
21   population of Montgomery County?     For instance, 60 --
22   if you had two panels of 60, you would expect to see
23   five people perhaps.      In your experience has there been
24   less than that?
25      A.   Yes, less.
                                                              105




1       Q.    And to quantify the degree of less, how would
2    you quantify it?    Grossly less?    Moderately less?
3    Mildly less?
4       A.    Grossly less.
5       Q.    And so for, you know, say, two panels of 100,
6    you would expect to see eight and a half on the
7    average.   Again, would your estimation based on your
8    observations, your experience, 31 years of trying 100
9    plus cases be less, the same, more?
10      A.    I would say less.
11      Q.    And would you apply the same quantification,
12   grossly less?
13      A.    Yes.
14                   MR. BRASS:    I'll pass the witness, Judge.
15                   MR. HUGHES:   Nothing for Mr. Garcia,
16   Judge.
17                   MR. JAMES:    I'll be brief, Judge.
18                   THE COURT:    All right.
19                        CROSS-EXAMINATION
20   BY MR. JAMES:
21      Q.    Mr. Garcia, you don't have any concrete numbers
22   of how many people on how many jury panels were of
23   minorities or anything like that that you can tell us
24   today, can you?
25      A.    Concrete numbers wise, I probably have more
                                                               106




1    from the people that were standing in line to come in
2    on jury duty on Monday mornings.
3       Q.   So --
4       A.   Because my office is right across the street.
5       Q.   So you can't tell us on the 100 plus jury
6    trials you said you've had how many of those -- what
7    percentage of African-Americans were and weren't on
8    those panels?
9       A.   No, I couldn't tell you that.        That's correct.
10      Q.   You're basically going off your best memory and
11   estimation at this point; is that correct?
12      A.   That would be a good way.
13      Q.   I agree with you about that.      In fact, you
14   don't know how many -- what percentage of the
15   African-American population in Montgomery County is
16   even eligible for jury service, do you?
17      A.   No.   I was just told it's 4.3 percent, but I
18   don't have any independent knowledge.
19                   MR. JAMES:   I'll pass the witness, Judge.
20                   MR. BRASS:   Nothing further, Judge.
21                   THE COURT:   All right.   Thank you,
22   Mr. Garcia.
23                   THE WITNESS:   Be excused?
24                   THE COURT:   Yes, sir.
25                   THE WITNESS:   Thank you, Your Honor.
                                                                107




1                    THE COURT:    Next witness, Mr. Brass?
2                    MR. BRASS:    That's all we have, Judge.
3                    THE COURT:    All right.    Witnesses,
4    Mr. Hughes?
5                    MR. JAMES:    Briefly --
6                    THE COURT:    Yeah, sure.    Sure.
7                    MR. HUGHES:   Your Honor, the county has
8    decided not to call a witness.
9                    THE COURT:    Okay.
10                   MR. JAMES:    We don't have any witnesses.
11                   THE COURT:    All right.    All parties rest.
12   I think I've got the issues pretty good in my head.        I
13   don't need argument, but I have some questions for both
14   sides.   And it seems like the preliminary issue --
15   well, it's two-fold.    The first one is you're not
16   asking for the questionnaires.         So my question to the
17   County Attorney's Office and the State is under what
18   theory would this be protected?
19                   MR. HUGHES:   Well, Your Honor, I'm going
20   back to government Code 62 --
21                   THE COURT:    Well, that's questionnaires.
22                   MR. HUGHES:   It says in Section F that
23   information contained in the completed questionnaire is
24   confidential.
25                   THE COURT:    Right.    But we're not
                                                                 108




1    talking --
2                   MR. HUGHES:   And what Mr. Brass is
3    requesting is the jury address data from the summons.
4                   THE COURT:    No, he is not.    He is not
5    asking for the questionnaires.       He is not asking for
6    the data from the questionnaires.        He is asking for
7    that data base of potentially summonable jurors is what
8    I get.   Am I right, Mr. Brass?
9                   MR. BRASS:    Yes, sir.    If I might present
10   a proposed order that I might think --
11                  THE COURT:    Okay.   So before we go off on
12   a tangent, what theory -- and I don't care who answers
13   first or whatever -- what theory is this protected
14   under if you believe it to be protected information?
15                  MR. HUGHES:   Your Honor, I'm referring to
16   Mr. Brass's motion to produce juror address data,
17   number four.   I do not understand.      What he writes
18   there is he wants to compare the U.S. census data to
19   the summoned juror address data.
20                  THE COURT:    Uh-huh.
21                  MR. HUGHES:   And you're asking what
22   protection I'm relying upon?     That's 62.0132 again
23   because that's talking about juror summons.       And it
24   says, "Every juror summons includes a questionnaire."
25   That contains that information and that is confidential
                                                               109




1    until he, Mr. Davis, has his trial with his jury
2    present and it be given to the attorney in that case
3    and on that matter.   That's stuff he can get is my
4    argument.
5                  THE COURT:   Okay.   State, do you agree
6    with that?
7                  MR. JAMES:   Yes, Judge.   Article 35.29,
8    when we're talking about the -- he's trying to limit it
9    to say he just wants the juror summoning information.
10   But it all goes back to this is personal information of
11   jurors that is --
12                 THE COURT:   But the mandamus was very
13   clear when asking for questionnaires, and they limited
14   it to the questionnaires only.     They said Mr. Brass has
15   no right to get that information.    They never said
16   anything about what he is requesting now.
17                 MR. JAMES:   Judge, I don't believe
18   Article 35.29 is limited to questionnaires though.       It
19   says, "Collected by the Court or the prosecuting
20   attorney during jury selection."
21                 THE COURT:   But nothing has been
22   collected.   That's my point.   That refers to the
23   questionnaires.   This is data that's maintained or
24   produced, promulgated by the secretary of State's
25   Office and kept wherever Mr. Sloan -- was that his
                                                               110




1    name?    Stokes -- wherever Mr. Stokes said it's kept.
2    This is not collected as part of that process under
3    35.29.   That's what I'm understanding.    Am I wrong?
4                   MR. JAMES:   Judge, I believe all this
5    information falls under the jury selection process
6    because they are gathering all of this to then send out
7    to jurors for jury selection so they can come here and
8    take part in jury selection.
9                   MR. BRASS:   Can I give you some law,
10   Judge?
11                  MR. JAMES:   I would like to hear from
12   Mr. Brass also.   He referred to case law earlier in the
13   vague aspect of it.   I'd like to know what case law he
14   is relying on so I can appropriately respond to that.
15                  MR. BRASS:   Fortunately for me, Judge,
16   they furnished it in their response.     I can quote it.
17                  THE COURT:   Yeah, I mean, what case are
18   you talking about?
19                  MR. BRASS:   Okay.   In Lacy versus State,
20   in their State's response to Defendant's motion
21   challenging the jury summoning process filed February
22   26th of 2014, they say -- the State says, "Further,
23   when a defendant challenges an array on grounds of
24   systematic exclusion of African-American citizens, it
25   is incumbent upon him to show some manner whereby
                                                               111




1    African-Americans were not included in the computer
2    base from which the panel was selected."     Lacy versus
3    State, 899 Southwest Second, 284.    This is their
4    response to my motion.     They're citing a case that is
5    directly on point.   If I can't get the data -- the
6    electronic data, how can I meet the burden of
7    showing --
8                  THE COURT:    We're not there yet.    I got a
9    different issue for that question.    The issue right now
10   is under what theory is the information you were
11   requesting protected?    And so far I've heard the same
12   arguments that I heard last year that the appellate
13   court said were valid arguments, but now you have
14   changed your requests.     So I'm not hearing that this is
15   protected yet.   Okay.   Let's move on to my second
16   issue.   And you hit the nail on the head.   Lacy says
17   you, Mr. Brass, have to show some manner where they're
18   included in the computer data base.    It's not enough to
19   just say, we think, we hope, we're not sure.       Here's a
20   problem I see.   Under the doctrine of chances your
21   experts have clearly shown it can't happen the way it
22   happens.   We don't know why but it violates the
23   doctrine of chances.     It's not just purely by random
24   method that this is happening or purely -- I shouldn't
25   say random method.   Something is happening.   We don't
                                                              112




1    know what it is.
2                   MR. BRASS:   Correct.
3                   THE COURT:   So --
4                   MR. BRASS:   Here's the standard that I
5    think Hernandez sets out.    The Rule of Exclusion, proof
6    that blacks constitute a substantial segment of the
7    population of the jurisdiction.     I think I've met that
8    burden.   My expert has testified that 4.3 percent of
9    the adult population of Montgomery County is
10   African-American, that some blacks are qualified to
11   serve as jurors.   I think we all stipulate that that's
12   correct based on what I've heard from the State.      Now,
13   in one of the cases they -- there have been -- there
14   was evidence that there were none called for jury
15   service over an extended period of time.     What I
16   believe that I've demonstrated through my six lawyers
17   with unbelievable amounts of experience and numbers of
18   trials, I believe I've made a prima facie that there is
19   an under representation of African-Americans on our
20   jury panels.   I think that anybody who disagrees with
21   that is comparable to the ostrich with its head in the
22   sand.   It is so patently obvious.     But the difference
23   between last year and this year, it's not just me
24   saying that.   It's in the record.     The record is clear
25   that there is something going on.      It may not be a
                                                               113




1    violation of the Constitution.    I submit --
2                  THE COURT:   That's the problem I'm
3    having.
4                  MR. BRASS:   But, Judge, if you don't give
5    us the data, I can't find that out.     And a defendant
6    has the right to find that out.
7                  THE COURT:   I understand your argument.
8                  MR. BRASS:   They should be the first ones
9    upping this data to find out if they have a six-system
10   or not.   They are charged with the responsibility --
11                 THE COURT:   Hang on.
12                 MR. BRASS:   -- Of seeking justice.
13                 THE COURT:   I understand.    The problem is
14   the way the law is written.   It's almost a catch-22.
15   You can't get there until you prove that there is a
16   problem, but you can't prove there is a problem until
17   you get there.
18                 MR. BRASS:   Except that we're no longer
19   asking for the prohibited items.      We're asking for
20   electronic -- and I'm making a distinction between
21   electronic data and confidential juror information.
22   When it exists -- and they are saying, well, it's
23   included in the jury questionnaire.     Well, you know, my
24   address is in the white pages, the yellow pages, the
25   voter registration.   It might be in publicdata.com.      It
                                                                114




1    may be in a lot of different places.     The fact that
2    it's in one particular place that's protected doesn't
3    mean that you can't get at it in all the other sources
4    that exist in the universe.    It doesn't mean that and
5    the law doesn't say that.    So -- okay.   They don't want
6    to give the juror information from the questionnaire.
7    Fine.   I'm not asking for it.   But it just so happens
8    that this data exists somewhere else where it's not
9    protected by statute.   And under the cases that deal
10   with the guarantee of a defendant of a racially neutral
11   jury summoning system, it is hard for me to imagine
12   that this Court and the reviewing courts will deny this
13   defendant the right to find out if he's being denied a
14   racially neutral jury summoning system.     And if the
15   Court of Appeals in Beaumont doesn't agree and the
16   Court of Criminal Appeals in Austin, I believe a
17   federal judge in downtown Houston will agree.        And
18   ultimately if you sign that order, we will get the data
19   and we will keep fighting until we do.
20                  THE COURT:   All right.   I've got
21   everybody's motions, arguments of counsel on the
22   record.    Did you want to make a response?
23                  MR. JAMES:   Judge, yeah, I was just
24   waiting.
25                  THE COURT:   I'm sorry.   Go ahead.
                                                                115




1                   MR. JAMES:    Mr. Hughes wanted to make a
2    response.   Or I'll go ahead now.
3                   MR. HUGHES:   Go ahead.
4                   MR. JAMES:    Judge, just in response to a
5    few things that Mr. Brass angrily stated.     There's been
6    no evidence that they've put forth about the percentage
7    of the eligible African-American jurors.     They told us
8    the population.   Their assertion that there is an under
9    representation isn't based off correct data at this
10   point.   I understand you overruled my objection
11   earlier, Judge, but it's our position that this
12   challenge is still premature because the jury array has
13   not been seated yet.   I understand Mr. Brass is talking
14   about the summoning    process.   But it all ultimately
15   comes down to the jury panel that is brought in
16   Mr. Davis's case.   You know, the Court of Appeals held
17   that these challenges were premature.     They weren't
18   ripe yet.   The defense is speculating and essentially
19   fishing.    Under Article 35.29, we believe this
20   information is protected.     And additionally, Mr. Brass
21   has gone on and on about case law and this and that.        I
22   just don't understand what authority he is relying on
23   to where the Court can order the District Clerk's
24   Office, a non-party to this case, to expend county
25   resources to isolate transferred data and do all that.
                                                               116




1    I don't know what he is relying on to say this can be
2    done.
3    So those are our various --
4                  THE COURT:    Well, I don't think you were
5    here last year when we dealt with those issues.     Well,
6    I mean, you were here.     I don't remember if you were
7    arguing for the State.
8                  MR. JAMES:    I wasn't involved with the
9    case.
10                 THE COURT:    It was more of a due process
11   argument by Mr. Brass.     And the State at that point
12   tried to argue that it was over burdensome for the IT
13   folks to come in here and basically write a five-word
14   line code to pull this information out.     And I didn't
15   find that to be persuasive at all.     So that argument's
16   kind of moot at this point.
17                 MR. JAMES:    Judge, that's everything that
18   I've got.   I don't know if Mr. Hughes has anything to
19   add.
20                 THE COURT:    Yeah.   You're welcome -- I
21   didn't mean to cut you off.    But, Mr. Hughes, if you've
22   got something you want me to hear, let me hear it.
23                 MR. HUGHES:    Judge, I think the Court's
24   made up its mind.
25                 THE COURT:    No, I really haven't.   I want
                                                                  117




1    to go look at the law and read cases.
2                   MR. HUGHES:    Okay.   What I'm trying to
3    explain as far as the government code goes -- I wasn't
4    here at the prior hearing either.      But regardless of
5    whether it's electronic data that he is requesting, I
6    think it's clear that the legislature is trying to
7    protect and deem confidential juror address
8    information.   And it's clear what these two statutes
9    are talking about.   So whether you're getting it
10   through electronic data, I think my argument is still
11   it's protected.    It's intended to be protected because
12   it's the same information as juror address -- summoned
13   juror address information.     So whether you get it off
14   of a questionnaire or data base, I think it's still
15   confidentiality.
16                  THE COURT:    Let me ask you this.    Think
17   of it like this.   My doctor has my address because he
18   does.   That's protected health care information.
19   That's my personal PHI.      I can't remember what that
20   stands -- protected health care information.        My
21   address is also listed with the secretary of -- or the
22   Comptroller's Office.   And that is freely discoverable
23   unfortunately when I filed my financial statements for
24   the year as I'm required to by the Texas Ethics
25   Commission.    Anybody can have access to those financial
                                                               118




1    statements.    Just because my address is protected under
2    HIPAA from my doctor doesn't mean it's protected under
3    the Comptroller's Office by public information act
4    request.   So it seems -- when you're arguing it seems
5    to dove tail together, but that's only I think a
6    disingenuous way of thinking about it.     It's really
7    completely separate.    I don't think the statute
8    contemplates anything other than the questionnaires and
9    the data to be pulled off the questionnaires.     So, I
10   guess, are you saying that it is the same?     In other
11   words, whether my protected health care information is
12   where the source is from or from a Comptroller's Office
13   is still the same information and because it's
14   protected by HIPAA over here, it's still going to be
15   protected by the Comptroller's Office over here.     Is
16   that what you're suggesting?
17                   MR. HUGHES:   Well, I think the intent is
18   the juror -- because they're jurors.     Sure, you can go
19   get the jurors' address from DPS, elections, voter
20   registration.    You can get that information through
21   other means.    But at that point they are not the
22   jurors.    It's protecting the juror information.    It's
23   protecting the source of the funds and the District
24   Clerk.    And, again, I don't think -- the District Clerk
25   does not have the means to get this information.
                                                                  119




1                    THE COURT:    Well, they do.
2                    MR. HUGHES:    I think that's what
3    Mr. Stokes said.
4                    THE COURT:    Yeah, they do.   We had that
5    last year.   I think it was IT request, and it's a line
6    of code basically that they have to pull it out.
7    Whether or not Mr. Stokes can do it, I have no idea.          I
8    think he said he can't.       But our IT department has
9    access to it.    They did do it very easily.
10                   MR. BRASS:    He testified it's available.
11                   THE COURT:    Yeah.   I'm not saying that.
12   I'm just saying the IT department would be the one
13   doing it.    Not the clerks.    I'm agreeing with
14   Mr. Hughes on that.
15                   MR. HUGHES:    Our protective order is for
16   the District Clerk.
17                   THE COURT:    You just don't want them to
18   be boxed in a position, be ordered to do something they
19   can't physically do.
20                   MR. HUGHES:    Yes, sir.
21                   THE COURT:    I understand.
22                   MR. DELMORE:    Judge, I was present during
23   that hearing last year.       I don't think there was any
24   testimony regarding how the IT department would do it.
25   No one called anyone from that department as a witness.
                                                               120




1    I think you speculated that it would merely require
2    writing a few lines of code.     But I don't think that
3    that's accurate, and there's certainly no evidence to
4    support that.
5                    THE COURT:   Well, I'm not speculating.
6    I'm dealing with other situations where the State has
7    made that argument of this over burdensome, technically
8    impossible thing to do, and the IT department comes in
9    and writes a line of code for me and pulls the
10   information out.    So if the data is there, it's not
11   hard for them to do.    It's very easy.   It literally is
12   one line of code, and they can pull the data out.
13                   MR. BRASS:   If you want to tweak the
14   order, Judge, to include the IT department --
15                   THE COURT:   Oh, I'm sorry.   I didn't.
16   Well, I'm not going to make a ruling yet because I want
17   to look over the cases.      I want to refresh my memory,
18   go back over the mandate -- excuse me -- the mandamus
19   from the Court of Appeals.     I should have done that
20   before we had this today.     I just haven't had a chance
21   unfortunately.    So let me do that.   Today is Wednesday.
22   I'll get everybody --
23                   MR. BRASS:   I'm sure the County Attorney
24   represents the IT department as well, Judge.
25                   THE COURT:   Well, yeah, of course.   They
                                                                121




1    represent everybody in the county.      Let me get a
2    decision to you guys by Friday at 5:00.      I've got a
3    bunch of deadlines    on Friday.     I'll just dove tail
4    this one into the rest of them.
5                    MR. BRASS:   On your time.   Can I bring up
6    a housekeeping issue, Judge?
7                    THE COURT:   Sure.
8                    MR. BRASS:   I would like for these visual
9    aids to somehow be included in the appellate record.
10   We know that it's going up.     And it's not evidence.     I
11   didn't offer it as evidence.     I'm not offering it now
12   as evidence.    But I think for the reviewing courts that
13   are going to be looking at this, perhaps it would be
14   helpful for them to be looking at same things that we
15   were looking at just for demonstrative purposes.       If we
16   make the record clear that it's not being offered as
17   evidence, but only for demonstrative purposes, summary
18   of testimony.    We do that all the time on civil side.
19   We offer financial information statements as a summary
20   of what the witnesses will testify.      It's not evidence.
21   And if somehow we could -- there aren't any other
22   exhibits to differentiate.     And if we could attach them
23   as simply visual aids, demonstrative purposes, my
24   feeling is it would be helpful to the reviewing court.
25                   MR. JAMES:   Judge, I'm going to object to
                                                             122




1    anything that Mr. Brass has said wasn't evidence that
2    he just wanted to show as a visual aid, which was
3    everything he handed the Court.    I didn't object
4    earlier because it was never offered as evidence.
5    These documents as visual representations here have
6    been covered in the testimony.    Additionally, they are
7    not -- they are just -- these don't represent the juror
8    information by any means.    They just represent
9    potential population.   I think it would be confusing
10   for the Court.   If I remember correctly, the only
11   evidence that was offered, other than testimony, was by
12   Mr. Hughes in regards to the Montgomery County
13   electronic selection plan.
14                 MR. BRASS:    That was not offered as
15   evidence.   I would certainly object to that.   If they
16   want to offer it now, I'll object to it as hearsay.
17                 MR. JAMES:    Mr. Hughes offered it at the
18   start of the hearing, Mr. Brass.
19                 THE COURT:     Well, I took it up, the same
20   as I took Mr. Brass's information which is why I took
21   Mr. Brass's information.    But I don't think it's been
22   offered or admitted.
23                 MR. HUGHES:    I'd like to reopen it at
24   this time and offer it, Judge.
25                 THE COURT:    I have a solution to all this
                                                                  123




1    which is attach, seal it, make it part of the record
2    for appellate purposes only.     Do not attach it as
3    evidence.   And I'll be honest with you, Rick, I looked
4    at the maps.    I don't understand them.   I mean, I'm
5    sorry.   I know they're meaningful to the experts, but
6    this is -- you're talking statistics here.       I am an
7    algebra expert and that's about it.     So --
8                    MR. BRASS:   I agree, Judge.    That's why
9    we have them.    But I would agree to what you're
10   proposing to even include the County Attorney's visual
11   aid as long as it's not evidence.
12                   MR. JAMES:   Judge, what Mr. Hughes
13   offered is a record of this Court, basically.       I mean,
14   this was all authorized and directed by the Board of
15   District Judges back in 2009, the 9th, 221st, 359th.
16   This is a public record that we offered.
17                   MR. BRASS:   They never offered it.
18                   MR. JAMES:   He offered it at the
19   beginning of the hearing.     If not, I'm offering it as
20   well.
21                   THE COURT:   Well, I'm going take all of
22   these, make them part of the record.     It's only for
23   appellate purposes.    To be honest with you, I skimmed
24   them.    But I didn't consider them, and I'm not going to
25   consider them in my decision.     I'm strictly going from
                                                                124




1    where we are on this other stuff.      I'm also going to
2    attach Mr. Beauregard and Dr. Eschbach CVs so the
3    appellate court has everything they need to make their
4    decision.   All right.   And then hopefully by -- well,
5    no, by Friday I'll have a decision.     I just want to
6    review some cases and want to go back over that
7    mandamus because I really should have done that before
8    today.   All right.   Anything else?
9                  MR. BRASS:   Not from us, Judge.
10                 THE COURT:   Let's get a reset date before
11   you leave, Mr. Brass.
12                 (Proceedings concluded)
13
14
15
16
17
18
19
20
21
22
23
24
25
                                                           125




1    THE STATE OF TEXAS     )
2    COUNTY OF MONTGOMERY   )
3       I, Rebecca Lewis, Official Court Reporter in and
4    for the 9th District Court of Montgomery County,
5    State of Texas, do hereby certify that the foregoing
6    contains a true and correct transcription of all
7    portions of evidence and other proceedings requested
8    in writing by counsel for the parties to be included
9    in this volume of the Reporter's Record, in the
10   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 correctly reflects the
15   exhibits, if any, admitted, tendered in an offer of
16   proof or offered into evidence.
17      I further certify that the total cost for the
18   preparation of this Reporter's record is $500.00 and
19   will be paid by Montgomery County DA's Office.
20      WITNESS MY OFFICIAL HAND this the 21st day of
21   August, 2014.
22                          /s/Rebecca Lewis
                            REBECCA LEWIS, TEXAS CSR 8926
23                          Expiration Date: 12/31/14
                            Official Court Reporter
24                          Montgomery County, Texas
                            207 West Phillips, Suite 306
25                           Conroe, Texas 77301
Appendix B - Order dated 4 August 2014 signed by Judge
                                                                                                           RECEIVED ANO FILED
                                                                                                             i,iiS>R RECORD
                                                                                                         At-#-t--O'Clock'f M·

                                                         NO. 13-01-00685-CR & 1305-05517-CR                    AUG 04 2014
                   STATE OF TEXAS                                              §
                                                                               §
                   vs.                                                         §   9th JUDICIAL DISTRI}lll;;:P-'~;C.c;µlo~
                                                                               §
                   LEON DAVIS                                                  §   MONTGOMERY COUNTY, TEXAS
                                                                 It_, ,_.
                               ON this   4---
                  PRODUCE JUROR ADDRESS DATA.
                                                       day o
                                                                             ORDER
                                                                f~~O 14, came the Defendant for hearing on his MOTION TO

                  After hearing the evidence and argument of cotmSel, the Court hereby finds the following:
                  I. The Defendant has made a prima facia showing that there is a demonstrable and noticeable
                  absence of citizens of African American Decent in the jury panels of Montgomery County.
                  2. There exists a need to test whether there is a systematic exclusion of Black citizens from jury
                  service.
                  3. That the District Clerk possesses the electronic data of the addresses it sent, or had sent, juror
                  summons to during the calendar year 2013.
                  4. The District Clerk has the ability to provide the Defendant's experts with such data that would
                  enable them to compare said data to the United States Census data to determine if the juror
                  summoning process in Montgomery County is racially neutral.
                  5. The prohibitions of ART. 35.29 of the TCCP do not apply as the address data requested is not
                  collected "during the jury selection process" but rather the jury summoning process.
                  6.     The prohibitions of Section 62.0132 do not apply as no information from jury swnmons
                  questionnaires are being requested.
                  IT JS ACCORDING ORDERED that the District Clerk of Montgomery County produce to the
                  experts appointed by this Court in this cause, to-wit: Dr. Karl Eschbach, and Mr. Max Beauregard,
                  the address data of all jurors summoned for jury duty during the calendar year 2013 in electronic
                  form. Dr. Eschbach and Mr. Beauregard will execute Confidentiality Agreements that the data turned
                  over to them will be treated as confidential and shall only be used for the purposes stated in this
                  order and not disseminated ora;;;d with any other person or entity.
                  SIGNED THIS
                                            ~
                                                 day of
                                                 Y .,.o,.- 4l      ~·
                                                                   , 2014.
                                                                                         ~
     \)~log ~ue                            ~~                                            DG~
1, Barba(& G!adllen Adamlck,
ce~i -l- ages-~n ~l'f ;:kDl.                          IJDU'--
as           a.        and oorreJ popy
pr· inal Aeoord now on me In the             1strtc
<:l~~We;-Qf/lol! of Montgomery County, Texas.
Wilr18'~ My Official Seal ot      e in Conroe~tovii
on This l_        Day of                   •       '
Appendix C - Jury Selection Plan
,.   ,    ..




         THE MONTGOMERY COUNTY ELECTRONIC JURY SELECTION
                             PLAN

                                  (Amended, December 2005)


                                  AN AUTOMATED SYSTEM
                                          FOR
                                MONTGOMERY COUNTY, TEXAS




                            AS AUTHORIZED AND DIRECTED BY
                          THE BOARD OF DISTRICT JUDGES, TO WIT:


               The   Honorable Fred Bdwards,             9th District Court
               The   Honorable Suzanne Stovall,          221•t District Court
               The   Honorable Olen Underwood,           Sitting as 284th District Court
               The   Honorable Kathleen Hamilton,        359"' District Court
               The   Honorable K. Michael Mayes,         410th District Court



                                    Barbara Gladden Adamick
                                         District Clerk




                                           Page 1 of 9
        .,




'

I
                     ELECTRONIC JURY SELECTION PLAN FOR
                         MONTGOMERY COUNTY, TEXAS
                                Section 62.011. Government Code


                          Electronic or lllechanlcal Method of Selection

                   (a) On the recommendation of a majority of the district and criminal district
    judges of a county, the Commissioners Court, by order entered In Its minutes, may adopt a
    plan for the selection of names of persons for jury service with the aid of mechanlcal or
    electronic equipment Instead of drawing the names from a jury wheel.


                   (b) A plan authorized by this section for the selection of names of prospedlve
    jurors must:
                                 (1) be proposed. In writing to the Commissioners Court by a
                                 majority of the district and criminal district judges of the county
                                 at a meeting of the judges called for that purpose;

                                 (2) specify that the source of names of persons for jury service Is
                                the same as that provided by section 62.001 and that the names
                                of persons listed in a register of persons ""empt from jury service
                                may not be used In preparing the record of names from which a
                                juzy list is selected, as provided by Sections 62.108 and 62.109;

                                 (5) provide a fair, impartial. and objective method of selecting
                                 names of persons for jury service with the aid of electronic or
                                 mechanical equipment;

                                 (4) designate the district clerk as the officer In charge of the
                                 selection process and derme Ws duties; and

                                 (5) provide that the method of selection wtll either use the same
                                 record of names for the selection of persons for jury service until
                                 that record ls exhausted or will use the same rec0rd of names for a
                                 period of time specified by the plan.

                  (c) The provisions of this subchapter relating to the selection of names of
    persons for jury service by the use of a jury wheel do not apply In a county that adopts a plan
    authorized by this section for the selection of names of prospective jurors by the use of
    electronic or mechanical equipment.

                   {d) A state agency or the secretary of state may not charge a fee for furnishing a
    list of names required by Section 62.001.




                                               Page 2 of 9
...


                            Computer or Telephone Response to Summons


                    (a) A plan authorized under Section 62.011 for the selection of names of
      prospective jurors may allow for a prospective juror to ·appear In response to a sununons by:
                            (1) contacting the county officer responsible for summoning jurors by
      computer;

                            (2) calling an automated telephone system; or

                            (5) appearing before the court In person.

                     (b) A plan adopted under Subsection (a) may allow for a prospective juror to
      provide Information to the county officer respomlble for summoning jurors or for the county
      officer to provide information to the prospective juror by computer or automated telephone
      system Including:

                            (1) Information that permits the court to determine whether the
      prospective juror is qualified for jury service under Section 62.102;

                            (2) information that permits the court to determine whether the
      prospective juror Is exempt from jury service under Section 62.106;

                           (5) submission of a request by the prospective juror for a postponement
      of or excuse from jury senice under Section 62.110;

                            (4) Information for jury assignment under Section 62.016, Including:

                                   (A) the prospective juror's postponement status;

                                   (B) If the prospective juror could potentially serve on a jury In a
      justice court, the residency of the prospective juror; and

                                 (C) if the prospective juror could potentially serve on ajuiy in a
      criminal matter, whether the prospective juror has been convicted of misdemeanor theft;


                        (5) completion and submission by the prospective juror of the written jury
      summons questionnaire under Section 62.0152;


                            (6) the prospective juror's electronic mall address; and

                            (7) notification to the prospective juror by electronic mail of:

                                   (A) Whether the prospective juror is qualified for jury service;

                                  (BJ the status of the exemption, postponement, or judicial excuse
      request of the prospective juror; or

                                   (CJ whether the prospective juror has been assigned to a ;Juiy

                                                  Page 3 of 9
   •,




panel.

              (c) The county offl.cer responsible for summoning jurors shall purge the
electronic mall address of a prospective juror collected under Subsection (b):


                       (1) If the prospective juror serves on a jury, not later than the so•• day
after the date that:
                              (A) the county sends the person payment for jury service; or

                             (Bl the county would otherwise send the person payment for jury
service, if the person has donated the payment under Section 61.003; or

                       (2) If the prospective juror does not serve on a jury, not later than the
so•• day after the date that the court releases the person from jury service.




                                              Page 4 of 9
-·   -·-··                                   ________...... __......______
                         MONTCiOMBRY COUNTY ELECTRONIC JURY SELECTION PLAN
                  ............,.......,.......
             _ __,,                                                               .....,
                  WHEREAS, it is hereby recommended to Commissioners Court of Montgomery
                  County, Texas, by a majority of the Judges of District Courts of Montgomery
                  County, Texas, that the Flaa for Selecting Persons for Jwy Service, first
                  recorded and adopted in the minutes of Montgomery County Commissioners
                  Court in 1982, Volume 34, Page 335, secondly amended Be adopted by
                  Commissioner's Court on August 20, 2001, be amended and the new
                  Montgomery County Elec_tronlc Jwy Selection Plan under Section 62.011
                  Government Code of The State of Texas be adopted as follows:

                            A.

                                  The sources from which all names shall be taken Is the current voter registration
                  lists from all precincts in Montgomery County and all names on a current list to be furnished
                  by the Department of Public Safety showing the citizens of Montgomery County who hold a
                  valid Texas Drivers License and the citizens of the County, other than persons who are
                  disqnalifled from Jury service, who hold a valid personal identification card or certificate held
                  by the Department of Public Safety, except those exempt from jwy service as provided by
                  Sections 62.108 and 62.109 of the Government Code; and fnrther provided that at any stage
                  of this plan the voter registrar of Montgomeey County, the Department of Public Safety, the
                  Secretary of State, or the Montgomery County District Clerk may remove from Jury Service
                  duplications of any citizen's name, or the name of any citizen who Is disquallfled from jury
                  service, such as felons or aliens.



                                The District Clerk of Montgomery- County, Texas is designated as the official In
                  charge of the Montgomery County Jury Selection process and Is assigned the duties
                  hereinafter enumerated and shall:                                                ·

                                        1. Deputize as a clerk, a Jury Coordinator with computer skills.

                                       2. Cause the tasks directed In this plan to be automated.

                                       3. Direct and coor<llnate with Communication Information Services/and or such
                                       designated vendor, the program or programs necessary for the automation of
                                       the tasks In this plan.


                            c.
                                1. On or before August 1 of odd numbered years, the District clerk shall request
                  the Secretary of State to prepare the Jury File for Montgomery County from the sources
                  provided herein.


                                                                    Page 5 of 9
               2. On or before August 1 of odd numbered years the Registrar of Voters of
Montgomery County, Texas will certify and transfer to the Secretary of State of Texas the Jmy
wheel File In a format requested by the Secretary of State as follows:

                An electronic file containing a complete voter registration listing, as of a day
certain, of all persons who are Registered Voters of Montgomery County, excluding the names
of persons on the exemption list provided for In Section 62.108 and 62.109 of the Government
Code and those otherwise prohibited by law from serving as jurors;

             An electronic file of the permanent exemptions under Article 62.108 and 62.109
of the Government Code and of the felony convictions that have been excluded; and

              An electronic file of felony convictions In Montgomery County.

                                  (Transfer of Jmy Wheel File)

               3. On or before October 1 of odd numbered years, the Department of Public
Safety shall transfer to the Secretary of State, In a format requested by the Secret.ary of State,
the names of those drivers from !llontgomer,y County, provided for in Article 62.001 of the
Government Code and who have registered for driver's license, and the citizens of Montgomery
County Who ·hold a valid personal identification card or certificate held by the Department of
Public Safety (other than persons who are disqualified from Jury Service). The Department of
Public Safety may exclude from this file those persons Identified as aliens or as felons.

                            (Remow.l of Exempt and Felony Persons)

                4. On or before October 15 of odd numbered years, the Secretary of State wlll
.remove from the list of those persons In the electronic file delivered to that office by the
 Department of Public Safety, Insofar as they can be identified and matched by the Information
in the Jmy Wheel l'lle, the names of those persons on the permanent exemptions from jmy
 duty file and those persons In the felony file provided to the Secretary of State by the Voter
 Registrar of Montgomery county.

                                        (Merging of Files)

              5. The Secretary of state shall then merge the names of the Montgomery County
Voter Registration file transferred by the Montgomery County Drivers Registrations and
persons with identification numbers transferred by the Department of Public Safety and shall
remove all duplications of the merged file only once. This merged f"lle called the n Prospect.tve
Montgomery County Jury Wheel File,,, shall be tl'ansferred to the Distrl.ct Clerk of Montgomery
County by December 1 of odd numbered years, In the format requested by the !llontgomezy
County District Clerk.

                       (Prospective Montgomery County Jury Wheel File)

               6. The District Clerk of Montgomery County shall accept the '"Prospective
Montgomery County Ju:ry Wheel F'fle"from the Secretary of state when it ls delivered. The
District Clerk or District Clerk deputy and the Sheriff or his deputy.In the presence of each
other, shall cause the "Prospective Montgomery County Jury Wheel l'fle'~ to be transported to
Communication Information Services office of Montgomery County. A designated staff person
or representative In the CIS office wlll download the tape onto a computer known as IBM R.S.

                                           Page 6 of 9
-;.       ..

      6000 for creation and testing. Upon verification of a completed tape, the District Clerk,
      Sheriff, CIS Director or a representative from each office, will certify said tape as the new
      ".Prospective MoIItgomeiy.County Jury Wheel File", thus, allowing for the new" l'rospectlve
      /lfoIItgomery County Juzy Wheel l'ilef' to be on-line for selection after January 1 of even
      numbered years. 'l'he District Clerk, Sheriff and or their representative shall deliver the
      original of the new ''Frospectlve l'foIItgomezy County Jury Wheel File", which is a CD, to the
      District Clerk's Ol'flce where It will be stored In a fire proof safe, thus protecting from further
      writing.

                                                   (Jury File)

                    7. After the above creation and testing of the new ".Prospective MoIItgomeiy
      Couuty Jury wheel File", in accordance with this plan, the jury wheel file will be opened and
      the obsolete ''Frospectlve MoIItgomery Couuty Jury Wheel me-will be removed, to be
      destroyed one year from the date of removal, per record retention guidelines.



               o.
                   The District Clerk, with the assistance Of Communication Information Service of
      Montgomery County, shall prepare an electronic and automated system which will cause an
      electronic means of selecting persons ca.lied for jury service from the MoIItgomery County
      Prospective Jury Wheel File, by a fair, impartial, and objective method, to produce a list
      showing the names and addresses of persons so selected for designated dates, as hereinafter
      provided.

               B.

                     The District Clerk, appointed by the Presiding Board of Judges on August 5,
      2005, or a District/County Court at Law Judge shall preside over the Central Jury Panel, being
      available to 'qualify the panel for service in the various Courts on a weekly basis.

               F.

                    Bach week or mouth, or three (3) weeks prior to requested appearance, the
      Court Coordinator, under the direction of the Judge of each County and District Com1: shall
      submit tc the District Clerk Jury Coordinator a Court's "Request for Jurors.'' (Being fonn # 2
      of the Jury Fool Guidelines). The request shall specify the following:


                    1. dates of appearances;
                    2. number of jurors to appear for each date;
                    3. appearance time for each date; and
                    4. the Courtroom or place designated as a Courtroom or assembly area for
                    jurors to appear on each date.

             Ou Thursday of each week, the Jury Coordinator or representative will calculate from
      the timely filed requests, the specified number of jurors to appear three weeks· away. The Jury
      Coordinator shall electronically transmit these requests to the designated person/Vendor. The
      designated person shall cause their computer to print out the specified number of prospective

                                                  Page 7 of 9
    '.




jurors with their name, address, jur9r number and TDL or voter registration number on front
of the summons. These summons shall be placed in the mall within two (2) days from the date
of request by jury coordinator, per designation of the Sheriff. The person/Vendor shall
transmit the original summarized jury list containing the names and addresses of all
prospective jurors summoned for each date of appearance to the Jury Coordinator. The Jury
Coordinator/representative shall deliver such list to the County Clerk's Office for filing. A
duplicate copy shall be retained by the Jury Coordinator, to be viewed at the Judge's
discretion.

         G.~
              The Jurors so selected, q\lalified, instructed and sworn shall constitute a
general panel for the week for service as jurors In all district, county, juvenile and justice
courts In Montgomery County, and shall be used interchangeable in all of said courts. The
Presiding Judge or representative shall assign such jurors out in panels to the different courts
as rCq\lested by the judges of said courts.                                              ·

         H.

              This plan may be amended by the Conunlssloners Court upon recommendation
of a majority of the District Judges of Montgomery County.



    \                                --------------------
The foregoing J.!.   pages approving th.e Montgomery County Electronic Jury
amended December 2005, was adopted by a majority of tl}.~trlct Judg
County, Texas, at a meeting called for that purpose this ~· day of__,,,,.,!4'.l.r:..Lt.:ill>.:ra.<:J..::- ,
2005.



                                      i..~)
                                         Jud e of 9'" Judicial !strict


                            \.
                                         Honorable Olen Underwood
                                         Sitting as Judge of 284"' Judicial District

                                        LJ)~ ~-~~
                                         Honorable Kathleen Hamilton
                                         Judge of 559'" Judicial District




                                                   Page 8 of 9
   ''-




                        RESOLUTION AND ORDER OF THE

         COMMISSIONERS COURT OF MONTGOMERY COUNTY, TEXAS



On this li_day of il.e~ ~ 2005, at a duly ste and called meeting
                             ..·   ,
of the Co~er:iCourt, a motion made by                  and
seconded by~, f                   , did consider an
Montgomel'y County Electronic Jwy Selection Plan.

       BE IT RESOLVED that this resolution and order shall remain In effect
until further orders of the Court.

         ADOPTED AND PASSED, this the         Jq-d day of   '.Du...J,.,.y ,2005.
&!litaP---
      ce
COmmlssloner, Precinct # 3


                                   Alan B. sadler
                                   County Judge




                                       Page 9 of 9
Appendix D – Memorandum
                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-14-00337-CR
                          ____________________

    IN RE BRETT W. LIGON, MONTGOMERY COUNTY DISTRICT
  ATTORNEY, AND BARBARA ADAMICK, MONTGOMERY COUNTY
                      DISTRICT CLERK
_______________________________________________________          ______________

                              Original Proceeding
________________________________________________________          _____________

                         MEMORANDUM OPINION

      In a petition for writ of mandamus, Brett W. Ligon, the Montgomery County

District Attorney, and Barbara Adamick, the Montgomery County District Clerk,

ask this Court to order the judge of the 9th District Court of Montgomery County,

Texas, to vacate his order requiring them to disclose to the defense in a criminal

case the address of every person who has been summoned for jury service in

Montgomery County during calendar year 2013. We requested a response from the

real party in interest, Leon Davis. Upon review of the mandamus petition, the

mandamus record, and Davis’s response, we conclude the trial court abused its



                                        1
discretion by ordering production of the information at issue. We conditionally

grant relators’ request for relief.

       The indictments filed in case numbers 13-01-00685-CR and 13-05-05517-

CR accuse Davis of evading arrest or detention with a motor vehicle and retail

theft, and allege that Davis is a habitual criminal. Davis filed a motion challenging

the juror summoning process based on racial bias. No hearing has been scheduled

for that motion. Davis also filed a motion to produce juror address data. That

motion stated that a motion for deposition of witnesses was scheduled for March

27, 2014, but Davis subsequently withdrew the motion and at the beginning of the

hearing on the motion to produce juror address data, Davis’s counsel stated, “I’m

formally withdrawing and abandoning my request to take anyone’s deposition.”

Davis also abandoned his motion to change venue.

       At the hearing on Davis’s motion to produce juror address data, Davis’s

counsel stated that the defense believes that a disproportionate number of citizens

of African-American descent serve on jury panels for an unknown reason. Davis

hypothesizes that the reason is because there is an unidentified defect in the way

jurors are summoned. Davis seeks data on the jurors’ addresses so that he can

compare them with census population data which, he argues, will enable his

experts to discern whether the jury summoning process is racially neutral. He is not

                                         2
challenging the array. On August 4, 2014, the trial court ordered Adamick to

produce “the address data of all jurors summoned for jury duty during the calendar

year 2013 in electronic form[,]” to two experts retained by the defendant.

      This is the second time relators have sought similar mandamus relief in the

same criminal case. See In re Ligon, No. 09-13-00389-CR, 2013 WL 5658610, at

*1 (Tex. App.—Beaumont Oct. 16, 2013, orig. proceeding) (not designated for

publication). In the previous proceeding, we held the trial court abused its

discretion by ordering relators to disclose information from questionnaires filled

out by prospective jurors in cases other than Davis’s. Id. at *4. We held the

questionnaires were confidential. Id. at *2; see also Tex. Code Crim. Proc. Ann.

art. 35.29 (West Supp. 2014); Tex. Gov’t Code Ann. § 62.0132 (West 2013). In his

response to relators’ petition in this new proceeding, Davis argues that the trial

court’s new order is distinguishable from the order that was at issue in the first

mandamus proceeding because this order requires limited disclosure and

production of the electronic data from which the juror questionnaires are

generated, not the completed questionnaires themselves. See Tex. Gov’t Code Ann.

§ 62.0132(g) (describing persons to whom “[t]he information contained in a

completed questionnaire may be disclosed[.]”). Davis argues the summoned jurors’

addresses are not information collected in the jury selection process. See Tex. Code

                                         3
Crim. Proc. Ann. art. 35.29. Davis argues that Montgomery County’s electronic

jury selection plan authorizes the trial judge to view the address list that the judge

ordered Adamick to produce in electronic form and allows the judge to order that

the address list be turned over to the defense’s experts. Also, Davis argues that

section 62.011(b)(4) of the Texas Government Code and Montgomery County’s

jury selection plan empower the trial judge to exercise supervisory authority over

the District Clerk by ordering her to provide the electronic information to Davis.

See Tex. Gov’t Code Ann. § 62.011(b)(4) (West 2013).

      None of these reasons provides a reasonable basis for distinguishing the first

mandamus proceeding that arose during the State’s prosecution of Davis from the

current mandamus proceeding. See Ligon, 2013 WL 5658610, at **1-4. This time

the trial court ordered Adamick to produce and disclose to Davis the address of

every person summoned to jury service for the Montgomery County district courts

and county courts at law in 2013. Summoning jurors is part of the jury selection

process. See Tex. Gov’t Code Ann. § 62.001 (West 2013); Tex. Code Crim. Proc.

Ann. arts. 33.09 (West 2006), 35.01 (West Supp. 2014). The summoned person’s

address is required information for the confidential questionnaire. See Tex. Gov’t

Code Ann. § 62.0132(c)(2).




                                          4
      Davis argues that each summoned juror’s address is not confidential in this

context, because the questionnaire itself is not being disclosed. Montgomery

County’s jury selection plan states that the information retained by the District

Clerk’s Jury Coordinator is a computer printout of “the specified number of

prospective jurors with their name, address, juror number and TDL or voter

registration number on front of the summons.” This is the confidential information

mentioned in section 62.0132 of the Texas Government Code and article 35.29 of

the Texas Code of Criminal Procedure. See Tex. Gov’t Code Ann. § 62.0132; Tex.

Code Crim. Proc. Ann. art. 35.29. 1 The jurors’ personal information is not

transformed from confidential to public information even though under

Montgomery County’s jury selection plan the District Clerk prints a “summarized

jury list containing the names and addresses of all prospective jurors summoned

for each date of appearance” and a judge who requested a jury is allowed to see the

printout.

      Davis argues that the trial judge’s order to disclose electronic information

about the summoned jurors is within the court’s discretion because Montgomery

County’s jury selection plan requires that the jury coordinator retain a list of the
      1
        Davis did not argue, in this Court or in the trial court, that he presented
good cause for the trial court to order disclosure of personal information about
jurors. See Tex. Code Crim. Proc. Ann. art. 35.29(b) (West Supp. 2014).

                                         5
names and addresses of the prospective jurors “to be viewed at the Judge’s

discretion[,]” but the trial judge has not asked for access to the summarized jury

list. Rather, the judge ordered Adamick to produce to the defendant in a criminal

case the address data of all persons who were summoned for jury service in

Montgomery County in 2013. By requiring Adamick to make a disclosure that is

neither required nor provided for by Montgomery County’s jury selection plan, the

trial judge is not enforcing a non-discretionary duty owed by Adamick in the

performance of her official functions under the plan.

      Davis argues the trial court has the authority to issue an order to secure petit

juror information under the compulsory process clause of the Sixth Amendment.

See U.S. Const. Amend. VI. The jurors whose information is to be disclosed to

Davis have no connection to his case whatsoever. They are people who were

summoned to appear for jury service in other cases unrelated to the State’s

prosecution of Davis.

      Without citing any precedent and relying solely on the Sixth Amendment,

Davis argues that the trial court has the power to order Adamick to produce juror

address data because at the hearing Davis presented evidence “questioning the

inclusion of African-Americans in the jury selection process.” Several defense

attorneys testified that in their experience few African-Americans appear on

                                          6
venires in Montgomery County. The jury system supervisor for the District Clerk’s

office testified that jury summonses are generated from an electronic file of names

and addresses. He could not isolate and produce an electronic data file of the jurors

who were summoned in 2013, although it is possible that the county IT department

could.

         Karl Eschbach, a demographer who has been retained by Davis, testified that

having the juror’s addresses would enable him to geo-code the data with

geographic counts of racial populations and perform a statistical analysis of

whether the jury summonses were consistent with the representation of African-

Americans in the county. Dr. Eschbach had no information regarding driver’s

licenses or voter registrations, and would simply determine whether there was a

statistically equivalent representation or gross under-representation of “African-

American residential areas” in the areas where summonses were sent. The work he

would perform with the data would help identify “whether there was an issue that

needed to be addressed.”

         A defendant has a right to compulsory process only for obtaining evidence

that is both material and favorable to the defense. Coleman v. State, 966 S.W.2d

525, 527-28 (Tex. Crim. App. 1998) The requested data would make it possible to

discover if areas that have high concentrations of African-Americans are

                                          7
statistically underrepresented in jury summonses, but Davis presented no evidence

that jury summonses are produced in any manner other than by randomized

selection from driver’s licenses and voter registrations obtained from the Secretary

of State, and in his response to the mandamus petition, Davis concedes the

selection results from a computer program approved under the statute that allows

an electronic method of jury selection. See Tex. Gov’t Code Ann. § 62.011. The

evidentiary value of the information that the trial court ordered Adamick to

produce and disclose to the defense is entirely speculative. Absent a showing that

the jurors’ personal information would be both material and favorable to him, the

compulsory process clause does not require that the information be produced. See

Coleman, 966 S.W.2d at 528.

      In a criminal case, a relator may establish an entitlement to mandamus relief

by showing a clear right to relief and the lack of an adequate remedy at law. See In

re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236

S.W.3d 207, 210 (Tex. Crim. App. 2007). “A clear right to relief is shown when

the facts and circumstances dictate but one rational decision ‘under unequivocal,

well-settled (i.e., from extant statutory, constitutional, or case law sources) and

clearly controlling legal principles.’” In re State ex rel. Weeks, 391 S.W.3d 117,

122 (Tex. Crim. App. 2013) (quoting Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex.

                                         8
Crim. App. 2011)). A trial court has a “ministerial duty” to vacate an order which

it lacked the authority to issue. See State ex rel. Thomas v. Banner, 724 S.W.2d 81,

83 (Tex. Crim. App. 1987). Mandamus relief is appropriate when the trial court

issues a discovery order that is beyond the scope of its authority. See In re State ex.

rel. Robinson, 116 S.W.3d 115, 117-18 (Tex. App.—Houston [14th Dist.] 2002,

orig. proceeding); In re State ex. rel. Wade v. Stephens, 724 S.W.2d 141, 143-44

(Tex. App.—Dallas 1987, orig. proceeding).

      The State cannot pursue a pre-trial appeal of the trial court’s order. See Tex.

Code Crim. Proc. Ann. art. 44.01 (West Supp. 2014). Davis argues that Adamick

may present a complaint regarding the trial judge’s order with the county’s Board

of District Judges and the Commissioner’s Court, and contends that a complaint to

those bodies provides an adequate remedy at law. The trial court signed an order in

a criminal case, and by virtue of that command, Adamick must obey or face

possible contempt proceedings. See Ex parte Hughes, 759 S.W.2d 118, 120 (Tex.

1988). If the trial judge exceeded his authority in making that order in a criminal

case, it is this Court, not the Board of Judges or the Commissioner’s Court, with

the jurisdiction to order the judge to vacate that order. See Tex. Gov’t Code Ann. §

22.221(b) (West 2004). Relators have established that they lack an adequate

remedy at law.

                                          9
      The trial court abused its discretion when it required the Montgomery

County District Clerk to produce and disclose confidential personal information

without an adequate showing that the information is material and favorable to the

defense. We conditionally grant relators’ petition for writ of mandamus and direct

the trial court to vacate its order requiring disclosure of the address of every person

who has been summoned for jury service in Montgomery County during calendar

year 2013. Because we are confident the trial court will vacate its order, the writ

shall issue only if the trial court fails to act within a reasonable time.

      PETITION CONDITIONALLY GRANTED.

                                                                  PER CURIAM


Submitted on September 4, 2014
Opinion Delivered October 8, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                           10
Appendix E - Motion for Protective Order
                                                                                         'I,•
                                                                                      ....~ \.


                                      NO. 13-01-00685-CR

THE STATE OF TEXAS                              §
                                                §
v.                                              §
                                                §
LEON DAVIS                                      §        MONTGOMERY COUNTY, TEXAS


          MONTGOMERY COUNTY DISTRICT CLERK BARBARA ADAMICK'S
                    MOTION FOR PROTECTIVE ORDER

TO THE HONORABLE JUDGE OF THE DISTRICT COURT:

          The Montgomery County District Clerk Barbara Adamick ("District Clerk') files this

Motion for Protective Order in response to Defendant Leon Davis' ("Defendant") Motion to

Produce Juror Address Data in which defendant seeks the summoned juror address data from the

District Clerk, and would request that the Court deny the Defendant's motion and grant the

District Clerk's motion for protective order.


     I.      Issue is Premature


          The Defendant's request for summoned juror address data should not be granted because

the issue which Defendant seeks discovery on is not ripe and is premature. Defendant speculates

that the jury smmnoning system in Montgomery County is not racially neutral, and argues fur the

need for summoned juror address data to dete1mine if that is true. The Court of Appeals has

already granted the State mandamus relief from a previous order to disclose juror information

(name, sex, race, age, address, marital status, education, employment) to the Defendant, and

noted that the Defendant's objection to the racial composition is merely speculative at this point

because thei array from which Defendant's jury will be drawn has not yet been selected. In re

Brett W. Ligon, No. 09-13-003&9-CR, 2013 WL 5658610 (Tex.App.·Beaumont Oct. 16, 2013

(orig.proceeding)(mem.op., not designated for publication). The Court of Appeals further noted


                                                                                                 Page   J
that defendant admitted he was on a fishing expedition when he first asked for the juror

infonnation, and that the Defendant was seeking to address a hypothetical problem that the

Defendant himself is not even sure really exists. /11 re Ligon at 4.


   II.        Defendant Roouesting Same Confidential Juror Info1mation


           The Court of Appeals has already denied this Defendant access to juror address

information because the juror information sought by defendant is confidential ai1d protected

under privacy rights by the State Legislature. In re Ligon at 4 citing Tex. Gov't Code Sec.

62.0132(g) and Tex. Code Crim. Proc. Ann. Art. 35.29. Defendant's motion is asking for the

exact same information that the Court of Appeals has described is confidential juror information

(name, sex, race, age, address, marital status, education, employment).


    III.      Protective Order is Necessazy to Protect Confidential Juror Information


    Defendant's discovery request for juror address information invades personal or

constin1tional rights to privacy and should be denied in whole, and the County Clerk should be

protected by the Court from having to produce such infonnation now and in the future in this

matter.




                                                                                           Page2
                                             Respectfully submitted,

                                            JD LAMBRIGHT
                                            MONTGOMERYCOUNTYATTORNEY
                                            207 West Phillips Street, Suite 100
                                            Conroe, Texas 77301
                                            Tel: (936 539-7828 Fax: (936) 760-6920


                                            By:
                                                ·~~~u~~~~'---~~~~~

                                                  State Bar No. 404Il51
                                                  E-Mail: stuart.hu~es@mctx.org
                                                  Attorney for MONTGOMERY             COUNTY
                                                  DISTRICT CLERK



                                     Certificate of Service

       I certify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on April CJ..., 2014.




                                           lll/.f
                                            Attorney  for
                                            DISTRICT CLERK
                                                          MONTGOMERY                 COUNTY




                                                                                           PUP.< 3
