                    . H E COURT OF CRIMINAL AP~S OF
                       TEXAS ORDER ADOPTING SUMMARY
                                        SHEET.
                  FOR POST -CONVICTION APPLICATIONS FOR
                                WRIT OF HABEAS
                            CORPUS -SUPPLEMENTAL
                            CLERK'S RECORD- DEATH
                                   PENALTY


                                       Application for Writ of Habeas Corpus
Ex Parte GAMBOA,                       from BEXAR                  ·County
JOSEPH Name of Applicant)                     D379                   Court


                           TRIAL COURT WRIT NO. 200SCR7168A-Wl

                           CLERK'S SUMMARY SHEET                      RECEIVED IN
                                                                  COURT OF CRIMINAL APPEALS
APPLICANT'S NAME: JOSEPH GAMBOA
(As reflected in judgment)                                               JAN 08 2015
OFFENSE: CAPITAL MURDER- OTHER FELONY
(As reflected in judgment)                                             Aoe• Acosta, Clerk
CAUSE NO: 2005CR7168A
(As reflected in judgment)
PLEA:         GUILTY X NOT GUILTY                  NOLO CONTENDERE
SENTENCE: DEATH                  DATE: MARCH 8, 2007
(Terms of years reflected in judgment)
TRIAL DATE: FEBRUARY 23,2007
JUDGE'S NAME: BERT RICHARDSON
(Judge presiding at trial)
APPEAL NO: _ _ _ _ _ _ ___;__ _ _ _ _ _ __
(If applicable)
CITATION TO OPINION: _ _S.W.3d._ _
(If applicable)
HEARING HELD: _ _YES                 NO
(Pertaining to the application for writ of habeas corpus)
FINDINGS & CONCLUSIONS FILED:_x_YES                       NO
(Pertaining to the application for writ ofhabeas·corpus) ·
RECOMMENDATION: _GRANT_DENY_DISMISS .
(Trial court's recommendation regarding application for writ of habeas
corpus) JUDGE'S NAME: BERT RICHARDSON
(Judge presiding over habeas corpus proceeding)
NAME OF COUNSEL IF APPLICANT IS REPRESENTED: _ _ _ _ _ __
                                                   NO. 200SCR7168A-Wl

                                     ·sUPPLEMENTAL WRIT INDEX

CAPTION ................................................................................................•........ ~ ............................. 0

REPORTER'S RECORD
VOLUME 5 OF 6 VOLUME (S)
APPLICATION FOR POST-CONVICTION HABEAS CORPUS (PG 39-120) .............. 1-82

CERTIFICATE ............................................................................................................................ 83
 (



                      •
                                      CAPTION


THE STATE OF TEXAS                *
COUNTY OF BEXAR                         *
        At a regular term of the 379TH Judicial District Court of Bexar County, Texas,

begun and held at San Antonio, State of Texas, before the Honorable BERT

RICHARDSON Presiding thereof, which opened on the 18T day of JANUARY A.D~, 2015,

and will adjourn. on the 28™ day of FEBRUARY A.D., 2015, the following cause came on

for trial, to-wit:

NO. 2005CR7168A-Wl

EX PARTE: GAMBOA, JOSEPH

vs
THE STATE OF TEXAS




                                  ******************
                  e·.                                             Page   39




 1        Q       Now,. your mitigation expert did not testify at

 2   trial, I believe.

 3        A       Linda Mockridge did not testify.

 4        Q       Okay.     And that's pretty much the protocol, you

 5   use them as kind of a support team and they're, generally,

 6   not going to testify, you get other people to testify for

 7   you; is that correct?

 8        A       Yeah.     I think that's been certainly-- let me

 9   just think for a       s~cond.    Certainly, Ms. Mockridge didn't

10   testify in this trial.           I'm trying to think if I've ever had

11   a mitigation expert testify in other trials and I don't

12   believe I have.

13        I think, you know, whatever mitigation they uncover, I

14   think it's -- we either try to put on some family to support

15   it or -- or, if we had the actual records from Child

16   Protective Services, I think we probably offered those

17   through the.appropriate custodian and then had Ms. Milam

18   consider those in her -- in giving          som~   background on this

19   young man.

20        Q       Very good.

21                        MR. LANGLOIS:     I don't have any further

22   questions.

23                        THE COURT:    Anything else?

24   BY MS. WELSH:

25        Q       Just one last question,       just to clear up on this


                      ANGIE RANGEL JIMENEZ, CSR
                           (210) 288-0312
                                                                    Page   40




    1   Dr. Milam thing.       In fact, other than a statement that she

    2   makes in her affidavit, that says something about brain

    3   damage, at trial she actually testified that he is not

    4   mentally   retarded~    not doing well, it is not from a brain

    5   injury, like an accident of some kind, but more genetic.

    6        Does that sound familiar?

    7        A      Yeah.     That's --you know, I think that's --that

    8   was more the -- the theme and that certainly supported, I

    9   think, the evidence that we were -- that we were trying to

10      put on.

11                          MS. WELSH:     I have nothing further, your

12      Honor.

13                          THE COURT:     Anything else?

14                          MR. LANGLOIS:     I have no further questions.

15                          THE COURT:     Okay.    Mr. Hancock, this question

16      has come up in the last two Writs I have done here in Bexar

17      County:    In your career, have you had anybody acquitted o£

18      murder or capital murder charges?

19                          THE WITNESS:     Well, the answer to that

20      question is "yes," your Honor.             I've had-- I represented a

21      young man years ago in the 290th District Court that was

22      found not guilty of capital murder.

23           And I certainly, have had multiple cases where I

24      represented people that are charged with murder and they

25      have been found not guilty by juries, as well.


                        ANGIE RANGEL JIMENEZ, CSR
                             (210) 288-0312


2
                                                                        Page     41




    1                      THE COURT:     Was that capital case a death

    2   penalty case? '

    3                      THE WITNESS:     It was not.      It was -- it

    4   was -- even predated life without parole.                It was just a

    5   life in prison case.

    6                      THE COURT:     Okay.     Anything else from either

    7   side?

    8                      MS. WELSH:     No, your Honor.

    9                      THE COURT:     Okay.     Mr. Langlois?

10                         MR. LANGLOIS:     No.

11                         THE COURT:     Okay.     All right.      Thankryou.

12                         THE WITNESS:     Thank you,     judge.

13              And may I be excused for the entire time?

14                         THE COURT:     Yes,    sir.   Yeah.

15              Okay.   Lunch?

16                         MR. LANGLOIS:     I would like to start with

17      Dr. De France.

18                         THE COURT:     We can start right now and go for

19      a few minutes, or if Dr. De France or anybody else is hungry

20      we can go to lunch and start right after lunch, whatever you

~1      prefer:     We started late, so it makes no difference to me.

22              Dr. De France, how are you doing?

23                         MR. DE FRANCE:        Fine, your Honor.

24                         THE COURT:     Do you want to start rolling?               We

25      can get your qualifications out.            That'll probably take us


                          ANGIE RANGEL JIMENEZ, CSR
                               (210) 288-0312


3
                                                                   Page     42




    1   15 minutes, I think.

    2        Come on up and have a seat.

    3                     (Whereupon, the Witness, Jon De France was

    4                     (called to the Witness stand.)

    5                     THE COURT:     Raise your right hand, please.

    6        State your name.

    7                     MR. LANGLOIS:     Identify yourself, please.·

    8                     THE WITNESS:     Jon F. De France.

    9                     (Whereupon, the Witness, Jon De France was

10                        (sworn in by the Court.)

11                        THE COURT:     Okay.   All right.    You can

12      proceed, Mr. Langlois.     If you want to just go       ~head    and get

13      started and you can find a logical breaking point.              I'm sure

14      he's going to be on the stand longer than ten or 15 minutes.·

15                        MR. LANGLOIS:     Okay.

16                        THE COURT:     We can get some lunch and then

17      come back and finish after lunch.

18                            JON DE FRANCE,

19      The witness, having been first duly cautioned and sworn to

20      tell the truth, the whole truth and nothing but the truth,

21      testified as follows:

22                          DIRECT EXAMINATION

23      BY MR. LANGLOIS:

24           Q    Okay.     Dr. De France, would you give us your

25      professional background.


                      ANGIE RANGEL JIMENEZ, CSR
                           (210) 288-0312


4
                                                                 Page. 43




    1        A      I'm a clinical neuropsychologist, licensed in the

    2   State of Texas..      I'm a neuroscientist.   So, I have a very --

    3   I have a varied background.

    4        Q      All right.    And you were actually hired by Jay

    5   Brandon to do    a   examination of Mr. Gamboa; is that correct?

    6        A      He -- he requested the examination, but he didn't

    7   hire us.

    8        Q      Okay.

    9        A      He --

10           Q      Okay.    You were retained as an expert,    I believe.

11           A      Pardon me?

12           Q      You're an -- you were an expert in the case?       He

13 ,    asked you to be an expert

14           A     ' Yeah.    He asked for us to do an evaluation.

15           Q      Okay.    And tell us what you did for the

16      examination.

17           A      Well, it was a little -- it was a little bit

18      different, since Dr. Milam had already conducted an

19      evaluation.     So, my recollection is that Mr. Brandon wanted

20      us to -- he came to his own conclusion there was something

21      missing in the evaluation and he wanted us to kind of focus

22      in on some of the areas that         that, perhaps, were not

23      sampled or not examined, and so we did that.

24           Q      Okay.     So, you had the availability of Dr. Milam's

25      work; is that correct?


                         ANGIE RANGEL JIMENEZ, CSR
                              (210) 288-0312


5
                                                                Page    44




    1        A    Well, not originally.      We -- I remember reviewing

    2   her ,court testimony or a deposition, but I didn't get her

    3   raw data or the background until afterwards, after I

    4   finished and started the writing process --

    5        Q    Okay.

    6        A    -- but it was very useful after all.

    7        Q    Let me ask you this:      Given what you observed from

    8   Dr. Milam's testimony and the tests that she conducted, did

    9   you design your evaluation for a specific purpose; other

10      than what she did?

11           A    Yes.,    We did.

12           Q    Okay.     And could you tell us what -- how you

13      designed your evaluation -- your evaluation and what were

14      the factors you took into     considera~ion.


15           A    Well, in any kind of what -- any kind of a

16      question when there's violence, we-- we look at the             the

17      task, in terms of what we consider     dr~ve   factors versus

18      control factors.

19           And what we were trying to do is -- what we want to do

20      is -- is determine not guilt or innocence, of course, but

21      determine the likelihood of -- of future violence, but also

22      try -- try to   ~xplain   -- and it's not -- not assuming guilt

23      or innocence, but it is trying to explain how something

24      might occur, how an action might occur.

25           Q    Okay.      Now, were you aware at the time that


                          ANGIE RANGEL JIMENEZ, CSR
                               (210) 288-0312


6
                                                                 Page   45




    1   Dr~   Milam, basically, focused on .what the Halstead-Reitan

    2   batteries

    3         A     Yeah.    That was clear from what we read.

    4          Q    And you're talking about drive versus control.

    5   Does that have anything to do with what's called the

    6   executive functioning portion of the brain?

    7          A    Yes.     It does.   And we kind of reframe it for

    8   for a legal proceeding, in terms of a person's capacity for

    9   rational thinking and making rational decisions versus their

10      capacity to conform to society's standards.

11             Q    Okay.

12             A    So, executive functions come into play there.       And

13      also Reitan is a well accepted battery of tests, but it

14      doesn't sample the critical tests.        Mr. Hancock mentioned

15      this issue of MR, the question of MR.

16             If I may put an aside comment -- and I don't know about

17      the legal standard for mental retardation--· but in terms of

18      psychological standards, we look at -- not only at

19      intelligence level, but you look adaptive behavior.

20             Q    All right.

21             A    And so -- so, there's two facets of that that need

22      to be looked at for the MR determination.        And adaptive

23      behavior is very much going into the quality of a person's

24      executive functioning.

25             Q    Okay.     Now, the Halstead, the Reitan --


                           ANGIE RANGEL JIMENEZ, CSR
                                (210) 288-0312


7
                                                                  Page   46




    1        A     Halstead-Reitan.

    2        Q     -- do they, basically, focus upon the executive

    3   functioning or do they not?

    4        A     They do not.      As a matter of fact, there's only

    5   one subtest of many that -- that samples executive .functions
    6   in any -- in any way at all.       And I don't think that was

    7   given, actually, at least it wasn't in her -- it wasn't in

    8   her file that I had.

    9        Q     So, basically, Jay Brandon had asked you to look

10      at executive functioning elements of Mr. Gamboa?

11           A     Yes, that and -- of course, in order to -- to do

12      that, we had to look at other functions as well.          Basically,
13      the executive functions are the responsibility of the

14      prefrontal cortex and they are       invo~ved   in other functions

15      as well.

16           So, one important set of functions for predicting

17      antisocial behaviors is working memory.         So, we looked at

18      that as well --    a~   well as attention.

19           Q     And you -- based upon examining Dr. Milam's

20      testimony, did it appear to you that she had not

21      concentrated on or not focused on the executive functioning

22      at all in her testimony?

23           A     That's true.      She did not.

24                        THE COURT:     What part did he say?

25                        THE WITNESS:     Executive functioning.


                       ANGIE RANGEL JIMENEZ, ·csR
                            (210) 288-0312


8
                                                                    Page   47




    1                       THE COURT:   Okay.

    2        Q         (MR. LANGLOIS) Okay.      Now, why is that     why did

    3   that appear to be important to you, in this case, on

    4   .Mr. Gamboa?

    5        A      Well, executive functioning,       the concept is a

    6   little complicated.       But, basically, it -- it -- the

    7   executive functions are involved in sort of harmonizing the

    8   person's resources of the brain processes and trying to

    9   .harmonize those with the man's situation, whether external

10      or internal.

11           A way to think of it is sometimes people think about a

12      CEO function,      and I was thinking about how to describe it.

13      One important executive function is the -- is the judgmental

14      function,   self-evaluation and judgmental, and the way the

1~      executive function is sort of like His Honor,         in the sense

16      that executive functions tend to be very deliberate,

17      cautious, attentive, but they tend to be quite slow.

18                          THE WITNESS: ·No offense, your Honor.

19                          THE COURT:   None taken.

20           Q         (MR. LANGLOIS)    The part of the brain that

21      controls the executive functioning,         is that a different part

22      of the brain than the areas that Ms. Milam concentrated on?

23           A      Yes.

24           Q      And what part of the brain controls executive

25      function?


                           ANGIE RANGEL JIMENEZ, CSR
                                (210) 288-0312


9
                                                             Page    48




 1        A     The prefrontal cortex.

 2        Q     Okay.     Now, Ms. Milam looked at certain issues,

 3   such as genetics, congenital, childhood, early childhood,

 4   maybe middle/late childhood, adolescence and other factors,

 5   perhaps.

 6        Did you determine     -~   during your investigation, did you

 7   find any evidence of, like, repeated concussions, or

 8   anything like that, or a brain injury?

 9       .A     Well, if we progress in the evaluation, and that's

10   the way we sort of structure the evaluation, how we kind

11   of -- that was -- the framework that we used for          for

12   interpreting the results as an aggregate.

13        Q     Now, you prepared an affidavit --

14        A     Yes, sir.

15        Q     -- for Mr. Brandon?

16        A     Uh-huh.

17        Q     And within that affidavit, did you mention

18   anything about traumatic brain injury?

19        A     Yes.

20        Q     Why did you mention that?

21        A     Well, the data that -- everything is data-driven

22   and his -- the pattern of executive function weakness and

23   also of the working memory weakness, were suggestive of --

24   of -- of concussions, perhaps repeated concussions.

25        Q     Okay.     Now, let me talk -- what is working memory?


                       ANGIE RANGEL JIMENEZ, CSR
                            . (210) 288-0312


10
                                                            Page        49




 1         A     Working memory, you can think of it as

 2   consciousness, but it has various components.       Working

 3   memory is sort of like a -- a operating space, a fan,         a

 4   vessel, where all information comes from all the senses and

 5   from our memories and as sort of put together it's used for

 6   a guided      guiding present and future behavior.

 7         The     the important thing about -- well, there are

 8   certain patterns of working memory to consider which are

 9   signals for -- for traumatic brain injuries, but the

10   important thing is that -- to kind of realize is that the

11   working memory is extremely important for a person being

12   flexible in their thinking.

13         And a person who is defficient in working memory

14   functions is -- it's not a matter of being of poor memory,

15   which is one facet, but it's --basically, a person is -- is

16   kind of forced into stereotypical or kind of a rigid way of

17   responding, rigid way of pehaving oftentimes.

18         Q     Now, executive functioning is pretty essential to

19   the issue of behavioral control; is that correct?

20         A     Yes.

21         Q     And that gets into the issue of violent,

22   antisocial behavior?

23         A     Yes.     The literature is quite vast on that.        But

24   the       certainly, it is important for, you know, what used

25   to be called psychoactive or sociopathic behaviors and


                        ANGIE RANGEL JIMENEZ, CSR
                             (210) 288-0312


11
                                                               Page    50




 1   actions.

 2        But, basically, it's the breaking mechanisms.          It's the

 3   control mechanisms that keep -- that drives and keeps .that

 4   in check.

 5        Q      Okay.    Now, that was a situation of Joseph Gamboa.

 6   Obviously, he was charged with a violent crime; is that

 7   correct?

 8        A      Yes, sir.

 9        Q      And central to that, you felt that a thorough

10   examination of the executive functioning needed to be done

11   and was not done by Dr. Milam; is that correct?

12        A      That's correct.

13        Q      Okay.     Did Ms. Milam assess working memory?

14        A      No.

15        Q      Okay.    And working memory, does that bear on a

16   person's capacity for making rational decisions?

17        A      Yes.     It does.

18        Q      Okay.    Now, the executive functioning, does that

19   control a person's ability to make rational decisions and

20   decision making?

21        A      It is a -- it is a factor,     yes.

22        Q      Okay.     Is it a critical factor?

23        A      Well, the       the way that _we      the way that we

24   structure the evaluation, a person can be deficient in

25   executive functioning to a great degree, but -- but              they


                        ANGIE RANGEL JIMENEZ, CSR
                             (210) 288-0312


12
                                                                Page   51




 1    may be able to think rationally, but their thinking has a

 2    certain characteristic to it.        I don't know if that answers

.3    your question or. not, but

 4         Q       Okay.    Now, you also did some evaluation and you

 5    had information about Joseph Gamboa's development and

 6    injuries and stuff like that; is that correct?

 7         A       Yes.    We had --

 8         Q       You had to work up --

 9         A       Yeah.     Dr. Milam did quite an extensive

10    psychosocial history, so it's --

11         Q       You also had available family history and stuff

12    like that?

13         A       Yes.

14         Q       Interviews with different family members?

15         A       From Dr. Milam's --yeah, report and from her--

16.   from her file.

17         Q       What are the consequences of impaired executive

18    functioning and working memory functioning?

19         A       The consequences?

20         Q.      Yes.

21         A       Well, that's only part of the equation,· but the

22    consequences by and large with those deficientcies, the

23    person's going to be operating on a fairly concrete or

24    literal level, they are going to be -- tend to be --

25    function fairly stereotypically, because the executive


                          ANGIE RANGEL JIMENEZ, CSR
                               (210) 288-0312


13
                                                               Page     52




 1    functions are important for controlling our emotional

 2    responses.

 3         People who have executive functioning weaknesses tend

 4    to be emotionally labile, tend to sometimes hyper-react,

 5    they tend to make bad dec£sions, they tend to be

 6    maladaptive, while -- you know, there's been classic studies

 7_   for, you know, many years that-- showing that you can take

 8    a person and give them an IQ test and you can do a frontal

 9    lobotomy on them, separating executive functions and

10    eliminating their control, and the person will do the same

11    on the IQ test.       And, in fact,   sometimes they do better.

12         Q       Okay.

13         A       So, it's --the --the issue of intelligence is --

14    is -- is separate.       But, yet -- but the executive functions,

15    trying to put it simply, they -- they control how

16    effective -- how effective they control the intelligence

17    modules of the brain, if you will, but -- to kind of

18    determine how effective a person is in negotiating their

19    environment, how adaptive they are.

20         Q       Now, you spent, like, three days examining

21    Mr. Gamboa; is that correct?

22         A       Yes.

23         Q       And about 15 hours or more of time?

24         A       Of actual testing, yes.

25         Q       And you made some informal observations, you


                          ANGIE RANGEL JIMENEZ, CSR
                               (210) 288-'-0312


14
                                                                 Page   53




 1   started out with some informal observations, and I, believe

 2   you observed some -- what you called echopraxia?

 3          A     Yes.

 4          Q     Can you explain what echopraxia is.

 5                        THE COURT:     Why don't we just -- it's about

 6   five after 12:00.        It sounds like this is going to get kind

 7   of deep.     It's probably a good time to stop and just get

.8   something to eat.

 9                       MR. LANGLOIS:      Okay.

10                        THE COURT:     Okay.   Is that okay with

11   everybody?

12                       MR. LANGLOIS:      We can do that.

13                        THE COURT:     Okay.   Come back at 1:15.

14                       MR. LANGLOIS:      1:15?

15                        THE COURT:     It's about five after 12:00· right

16   now.

17                       MR. LANGLOIS:      All right.

18                        (Lunch recess from 12:05 p.m. to 1:28 p.m.)

19                        THE COURT:     Okay.   We're back on the record.

20   Dr. De France is still on the stand and everybody's had

21   their --

22                       MS. WELSH:      We have no Defendant.

23                        THE COURT:        everybody's had their shot of

24   caffeine, so -- correct?

25                        THE WITNESS:     Yes, your Honor.


                         ANGIE RANGEL JIMENEZ, CSR
                              (210) 288-0312


15
                                                                Page     54




 1                        THE COURT:   So,   I think we're good to go.

 2                        (Off the record.)

 3                        (Open court, Defendant-present.)

 4                        THE COURT:   Okay.   Mr. Gamboa's back in the

 5   courtroom, so we can proceed.

 6        Mr. Langlois, your Witness.

 7        Q        (MR. LANGLOIS) Dr. De France, let me start this

 8   afternoon with-- do a comparison to what,you did versus

 9   what Dr. Milam did.

10        Okay?

11        A       Okay.

12        Q       And you, obviously, had an opportunity to look at

13   her results and her testimony and her affidavit, where she,

14   basically, stated that she did her testing and found that

15   Mr. Gamboa was severely impaired; is that correct?

16        A       Yes.     But the caveat is that I didn't see her

17   notes or her test results until after I finished my

18   evaluation --

19        Q       Okay.

20        A       -- but I did read her deposition -- or, her notes.

21        Q       Okay.     And I think her results's, basically, that

22   Mr. Gamboa exhibited severe impairment on all measures of

23   language that required reading comprehension, his sight

24   reading,   sounding out words ability, was at the fourth grade

25   level, but due to his reading comprehension problems,


                         ANGIE RANGEL JIMENEZ, CSR
                              (210) 288-0312


16
                                                             Page   55




 1   distraction measures, or personality could not be

 2   administered?

 3         A      That's correct.

 4         Q     And she did the MMPI and the second requirement,

·5   sixth grade reading comprehension and Personality Assessment

 6   Inventory, PAI, required a reading comprehension which she

 7   did not do or invaliditied it; is that correct?

 8         A     Well, she chose the PAI.     That was -- that was --

·9   that's the protocol of hers that I have in my file and that

10   was       that was considered invalid.

11         Q      Okay.

12         A      I re-administered it, however.

13         Q      Okay.   Now, basically, before we took a break, you

14   indicated that your focus was on the executive functioning;

15   is that correct?

16         A      That was -- that was part of it.   And in a

17   situation like this, we're also -- we're also interested in

18   personality organization.

19         Q      Okay.   And let's focus on the executive

20   functioning first, okay, then we'll go to the personality.

21         A      Okay.

22         Q     And -- and the -- you mentioned the executive

23   functioning is a prefrontal area of the brain; is that

24   correct?

25         A      That's correct.


                      ANGIE RANGEL JIMENEZ, CSR
                           (210) 288-0312


17
                                                                   Page   56




 1           Q   And I think you told me that it occupies about 25

 2   percent of the brain?

 3           A   About 25 percent of the anatomic brain.

 4           Q   Okay.     Now, what are the primary functions of the

 5   executive function, what does that control?

 6           A   Well, it -- it controls how adaptive a person is.

 7                       THE COURT:       What?

 8                       THE WITNESS:       How adaptive a person is.

 9                       THE COURT:       Okay.

10                       THE   WITNESS:     There's a lot of different

11   components to executive functioning, but, basically, it's

12   like a conductor in a symphony.              It -- it sets the tempo of

13   different processes.

14           It calls -- it recruits different processes at

15   different times.          It, basically, is responsible for goal
                                                                      (
16   directedness, being able to carry through a plan, make a

17   plan, carry through the plans, switch plans if one doesn't

18   work.

19           The characteristics of people who have difficulties

20   with executive function, no matter what the reason is, is

21   that they tend to go through life in a very simplistic mode

22   and they tend not to handle stress very well and they --

23   they usually function pretty well in routine, consist'ent

24   environments, where -- where the boundaries or the rules are

25   well known, but they don't -- they don't negotiate the world


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 1   very well, socially.

 2            Q         (MR. LANGLOIS) Can decision making and being able

 3   to create -- kind of like what we call a career path or

 4   something like that, you know, what your goals are and stuff

 5   like that?

 6            A        Well, by and large, people who have the kinds of

 7   deficiencies that we uncovered, they tend to live moment to
                                            \


 8   moment and it --         basi~ally,   the executive functioning is

 9   really not part of the equation.            Their controls are the

10   ·brakes, behavioral brakes, people who have behavioral

11   brake~,       like car brakes.

12            The executive function is kind of an analogy I started

13   off with this morning, is like His Honor, who is very

14   deliberate, but the executive functioning tends to be very

15   s·low.       If      if -- if, for example, there was a threat

16                     '
     perceived in the courtroom here, there's operations that

17   would take over, and that would be the officers, who would

18   respond very fast.

19            And by -- and by habit, and this is, basically, what

20   happens with a person like Mr. Gamboa.            What happens is that

21   his -- his executive functions are not strorig enough to

22   to handle a lot of stress and a lot of triggers, but what

23   happens is his priorities flip from              from -- you know,

24   from whatever it is.

25            The executive functions go offline as part of their


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 1   fight or flight response and then -- but that takes over

 2   as -- part of the flight or fight response, the executive

 3   functions or memory functions go offline.

 4        So, if there's a threat coming into the room, the

 5   officers are going to take charge, because His Honor's in

 6   charge of the courtroom now, but if the         if there's a

 7   threatening person coming in, they take charge and they

 8   operate very fast,   and that's what we want.     If the brain is

 9   operating fairly normally, that's what you want.       You want

10   the fast, stereotypical reflexive systems to take over.

11        And this is what happens in a -- in a person like

12   Mr. Gamboa.   They get caught in a -- in a setting where the

13   emotions, basically, drive the fight or flight response.

14   The executive functions are offline, so the rules, or the

15   brakes, are gone; and so, they -- they tend to make these

16   bad decisions, basically.     They tend to react reflexively,

17   without thinking through, without deliberation.

18        Q    So, does this get into when you talk about the --

19   the drive and control functions?

20        A    Drive versus control, yes.

21        Q    Okay.   Now, you have to look at some of the

22   factors, the characteristics, you know, like his stress

23   tolerance; is that correct?

24        A    That's correct.

25        Q    And what did you determine about stress tolerance?


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 1           A·   Well, his stress --well, there's        there's

 2   multiple factors, but his stress tolerance, as a simple

 3   statement, is it's very low.        But what we really want to

 4   know is what are the triggers, what causes the       -~   what

 5   causes the emotional response, and we have some answers to

 6   that.

 7           Q    What are those answers?

 8           A    Well, part of it is wiring, part of it is genetic

 9   or what he is born with.       When we did our physiological

10   studies, we found that his fight or flight response         w~s

11   about five times normal.

12                     THE COURT:     His what now?

13                     THE WITNESS:    About five times normal.

14           Q      (MR. LANGLOIS) The childhood

15           A     It's the amount of the physiological energy going

16   in, you know, that is -- that is operating all the time.

17   Basically, a person like that, even though they may not

18   perceive to be nervous, because they are habitually at some

19   level, but, basically, there's a basic-- there's a part of

20   their brain that is called the amygdala, that's saying, Go,

21   go, go, threat, threat, threat, all the time and it's            ~ort


22   of like a - - it's as a setting function.

23           So, when people have this kind of physiological

24   p~ofile,     they tend to hyperreact, they tend to go off, like

25   you said, drive, they go off like a rocket, like a two-stage


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                                                             Page   60




 1   rocket.

 2         Q     So, basically, he doesn't have much stress

 3   tolerance because his executive functioning control is

 4   controlled -- is driven by factors that make him kind of

 5   overreact to situations?

 6         A     That's --that's --that's a way to put it, yes.

 7         Q     Okay.

 8         A     But none of it's simple.    Because, basically, the

 9   the       the stress and tolerance is due not only to

10   biological factors, maybe it's some congenital factors, put

11   also have to do with experiential factors,     which are -- have

12   to do with attachment schemes.

13         Q     Right.    And the attachment, basically, goes to

14   what happens in the early parts of life, you don't      hav~   good

15   parenting and other factors like that and you become kind

16   of

17         A      Right.   The way -- the way -- if -- if I can just

18   use another analogy.      The way the brain kind of works is it

19   works like this:      If I'm walking through the forest,   going

20   down to a river and I see a -- a -- something wiggling, you

21   know, on the ground, before the light reaches the back part

22   of my brain to perceive what it is, my -- my physiology is

23   already changing and going into fight or flight response.

24   My heart is starting to race, my breathing stops,, my muscles

25   start getting intense.


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 1        And that happens before I actually can perceive             go

 2   over and perceive it and to see that it's this piece of

 3   string and not a snake.       And this is what happens.    See, the

 4   emotions are elicited at a pre-conscious level.

 5        Q       Okay.    So,- basically, if somebody is somewhat

 6   makes a remark towards Mr. Gamboa,. or says something to him,

 7   normal people will sit there and say, Well, it's not really

 8   a threat, but Mr. Gamboa may perceive it as a threat and

 9   then react to that threat in a degree far above than what is

10   necessary.

11        Is that true?

12        A       That's true.

13        Q       Okay.

14        A       That's true.

15        Q       Okay.    Well, that goes t o - - you know, that's --

16   his stress tolerance is very low because he's affected more

17   severely by perceived threats or something like that; is

18   that correct?

19        A       Right.    That's true.

20        Q       And then, he has a -- executive function goes to a

21   coping style, that he can't cope with that threat; is that

22   correct?

23        A       Because he doesn't have the tools or the

24   resources, he hasn't learned those, yes.

25        Q       So, he can't deal with the stress and he doesn't


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                                                            Page   62




 1   have any defensive maneuvers; is that correct?

 2           A   Well, he doesn't have the adaptive ones.    He --

 3   when the person who is emotionally driven, overdriven as

 4   this gentleman is, he doesn't have the capacity to put the

 5   space of time between the initial -- his initial reaction

 6   and his -- and his behavioral    r~action.


 7           Most of -- most people can put some time between it and

 8   think about it and deliberate and say, Okay.     They didn't

 9   really mean to insult me.     But a person with that kind of

10   biological makeup, they don't have that capacity, or it's a

11   lessened capacity.

12           But there's another part to it, if I may add, is the

13   appraisal part.     Because emotions last about 30 seconds,

14   unless we       unless we do something or think about something

15   to make them-- to prolong them, and that's the appraisal

16   part.

17           So, one of the keys -- the reason I say that is what

18   are the triggers, what are the triggers for a,person to make

19   them walk like a two-stage rocket.     And so, you have to look

20   at what are the templates, what are the       what are the

21   appraisal templates that a person uses and those are related

22   and in many people's cases and in his case to the detachment

23   schemes.

24           Q    So, to kind of give a overview of it:   Low stress,

25   deficient coping techniques, no -- very limited appraisal of


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                    •                                          Page     63




 1   the situation, and then he has an anger management problem.

 2   And then, if he does something that is out of the normal

 3   scope of what other people would do, that have those

 4   factors, that have good executive functioning,         so then he's

 5   tagged as having an antisocial behavior problem.

 6           Is that correct?

 7           A     The antisocial is by definition.      But the only

 8   thing that's interesting is that he may not have a anger

 9   problem per se.       It's an    it's a hyper-reactivity, it's an

10   impulsivity problem.       And most aggression, as it turns out,

11   to violence is impulsive, but -- and that's very true in his

12   case.

13           All the evidence suggests that that's really the core

14   of the problem.       It's not that he is an angry person.        It's

15   that he doesn't have the capacity to control.          And what

16   happens because of the way his -- he sees human

17   ~elationships,     for whatever reasori -- And we can get into

18   that later -- but, you know, instead of quieting down his

19   fight or flight response, his appraisal templates increase,

20   they amplify the emotion because they -- he looks at the

21   enemy,      I'm going to get them first, you know.

22           Q     So, with respect to the situation, we make those

23   observations and that's the character that he's displaying

24   to people, then you go back and you      develop~    then you

25   determine what the neurological breakdown is; is that


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                                                                Page     64




 1   correct?

 2           A     Yes.

 3           Q     Okay.    And does he have a neurological

 4   sensitivity, you look at that; is that correct?

 5           A     That's correct, yes.

 6           Q     And you look at his, as you said, emotional

 7   accelerators, emotional brakes and a capacity for empathy or

 8   developing attachments and also cognitive controls.           Now,

 9   those are, basically, regulated by the executive functioning

10   part of the brain; is that correct?

11           A     That's correct.     It's regulated.

12           Q     And in his first part, the observations are,

13   basically, his personality makeup and the second part

14   defines whether or not he has any mental deficiencies,            is

15   that correct, in the executive functioning?

16           A     I don't know what the word "mental deficiencies"

17   really means.

18           Q     Well, is that the drive side?

19           A     Well,    I don't know.   I don't think that's a useful

20   term.       I think I understand the spirit of whatever your

21   question is.

22           Q     Okay.    What I'm trying to get at is can you

23   explain to the Court -- well,          I guess, we have the drive

24   side and the control side?

25           A     Right.


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                                                                        Page   65




 1         Q      Okay.

 2         A      Right.     The capacity for rational thinking and

 3   deliberation versus --

 4         Q      Now, is the drive side equated to the -- the

 5   characteristic or is it related to what the brain is telling

 6   you to do?

 7                        THE COURT:     Are we talking -- did you say

 8   "drive side" or "dry side"?

 9                        THE WITNESS:     Drive.

10                        THE COURT:     Okay.

11                        THE WITNESS:     Drive.

12         Q       (MR. LANGLOIS) You said the drive is kind of like

13   the

14         A      The driver's side, yeah.

15         Q      You said the drive is kind of like a software?

16         A      Right.     But, again,    it'~    a mix of biological

17   predisposition, plus a person's habits or templates that

18   they develop in early childhood usually.              So,   ~t's   a mixture

19   of the two --

20         Q      Okay.

21         A      -- where one precedes the other.

22         Q      Okay.     Now, can you tell us what your findings

23   were that Daneen Milam did not find, regarding executive

24   functions deficiency.

25         A      Well, she didn't explore those, nor did she look


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                                                           Page    66




 1   at working memory, which is also important, but also

 2   personality organization.     She didn't explore that, either.

 3   But we found this gentleman to have significant deficiencies

 4   in all areas of executive functioning, practically all

 5   areas.   Some are quite striking, you know.

 6        There were deficits, in terms of working memory

 7   functions,    a pattern which suggests traumatic brain injury.

 8   The term that they use now is traumatic encephalopathy.       He

 9   certainly fits that pattern.

10        His memory function has an organic flavor to it and his

11   personality organization, while it may not be asocial, per

12   se, does look to have the risk of asocial behavior because

13   the emotional controls are deficient, but also his view of

14   human interaction is not adaptive, put it that way, it's

15   distorted.

16        And kids learn -- let me briefly mention about the

17   experiential side.     Kids learn by modeling.   They don't

18   learn by -- you know, they don't do what you say.      They

19   learn by modeling.

20        Q       Okay.

21        A       And it's not only from the parents, but it's from

22   the familial, the friends, peer groups, all these things.

23   That has a big determination, especially in a person with

24   weakenned executive functions.     Those things tend to be the

25   real determinants on how a person is going to react in a


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                                                                     Page     67




     1   particular situation.

     2        Q      Now, you identified these things, and the affect,

'    3   basically, is emotional -- emotional style and his ability

     4   to differentiate the emotional responses.            And I believe

     5   you're telling us that they were very low, he has high

     6   emotions?

     7                       THE COURT:   Can you hold that question for

     8   one second?

     9                       (Interruption.)

    10                       THE COURT:   Okay.   Go ahead.

    11        Q        (MR. LANGLOIS)     So, you defined the affect part of

    12   the drive side, you identified the --

    13        A      Well --

    14        Q      -- the fact that, you know, his emotional

    15   responses were, you know,        in high gear at times and that --

    16   and also prevented his potential to organize his thoughts

    17   and behavior; is that correct?

    18        A      That's correct.

    19        Q      Okay.

    20        A      The -- it comes from two      differ~nt    directions.

    21   The one direction is the physiological direction.            We know,

    22   physiologically, the -- the part of the brain, the medulla

    23   are part of the temporal brain, the medulla, is saying, Go,

    24   go, go, threat, threat, threat.

    25        The other part comes from more the emotionality,              just


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                                                               Page   68




     1   his emotions are just his -- it's part physiological, but

     2   his emotional -- what we call emotionality, his reactive

     3   part is extremely strong.

     4        And then, on the other side of the equation, on the

     5   control side of the equation, those controls are deficient.

     6   So, you know, the accelerator is strong, you know, the

     7   brakes are weak.

     8        Q    Okay.     And on the cognitive side, we call those

     9   emotional triggers, is -- you know, you determined his

    10   capacity for realistic,, logical and constructive thinking

    11   and, obviously, that was very deficient; is that correct?

    12        A    This is       it's not a simple answer.   But to put

    13   it most simply is that he -- his capacity -- he has the

    14   capacity for rational thinking and emotional being at times,

    15   but what the data indicates, what our evidence indicates or

    16   predicts, is that he would -- when he gets emotional, his

    17   thinking is going to be very fragile and it's going to --

    18   it's going to be not very coherent or rational.

    19        Q    All right.     So, in other words, he does·things he

    20   shouldn't be doing?
\
    21        A    Well, part of it because he doesn't -- there's the

    22   impulsivity part, but also there's another layer of control

    23   where a person kind of looks at foresight or looks at the

    24   consequences and the person -- once the fight or flight

    25   takes over, then they are not going to be.able to have that


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                                                           Page   69




 1   foresight or think about consequences.

 2        Q    Now, on the control side, you talk about his

 3   affect, his coping resources and how he'd cope with things.

 4   Now, that's a factor of, obviously, upbringing and, you

 5   know, his history and stuff like that; is that correct?

 6        A    That~s    correct.

 7        Q    Okay.     And there, we had a long history of no

 8   parental -- he had no parental guidance, basically, very

 9   limited parental guidance, very unstructured childhood?

10        A    Well, that's what Dr. Milam's notes would suggest.

11        Q    Okay.     So, basically -- that, basically, went into

12   affect, his emotional containment; is that right?

13        A    A defective emotional containment, yes, that would

14   be exactly right.

15        Q    Now, getting to the executive part, at the upper

16   levels of emotional control, you determined his ability to

17   organize, his cognitive resources to handle frustrating

18   circumstances and his capacities for flexible thought

19   developing hypotheses or verified conclusions.

20        So, in other words, if a person's out there and he's

21   got these stress factors going on, his capacity to think

22   through the situation is limited; .is that correct?

23        A    Yes.     It would be diminished.

24        Q    Okay.     "biminished."

25        And, you know,    obviously, it diminishes his attention


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 1   ability to suppress the extraneous thoughts and dealing with

 2   conflicting information; is that correct?

 3        A    That's technical~ but that's --

 4        Q    Okay.      And working memory.   Explain working

 5   memory.   Is that something that,    you know, you develop as

 6   you go through life and -- to make sure that you work in a

 7   controlled atmosphere and that you logically work out

 8   things?

 9        A    Working memory is like consciousness.       It's not

10   awareness, but it's like consciousness and it's the-- it's

11   the operating space that we're using at the moment, but it

12   allows us to integrate a whole bunch of different

13   information;

14        But we look at three different aspects of it.        One, we

15   look at the ability        at the capacity of a person's working

16   memory, how big is the hard drive,     so to speak, or   -~     I

17   guess RAM is a better metaphor for it, what is their

18   capacity, so       so how long can they sustain information and

19   working memory, which is critically important, in terms of

20   executive functioning.

21        Q     Did your testing establish that Mr. Gamboa had a

22   very limited working memory?

23        A     Yes --.

24        Q     Okay.

25        A     -- woefully working memory.


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                                                          Page    71




 1        Q     Okay.

 2        A     But we look at the maintenance of information, the

 3   manipulation of information, and then we look at the

 4   interference effects of information.

 5        Q     So, all the testing you did was to sit there and

 6   determine his deficiencies in these functions; is that

 7   correct?

 8        A     Well, we're looking for strengths and

 9   deficiencies, but he was -- he was deficient in all areas of

10   working memory.    But the more important thing, too, is not a

11   matter of -- is not just an academic exercise in a sense,

12   but it tells us something about what the cause is.       And in

13   his particular case, his profile looks like a head injury

14   pattern.   It looks like a pattern that we commonly see in a

15   person who sustains a head injury.

16        Now, when we get a finding like that, we have to go

17   back and we have to look for external validity.     Well, he

18   didn't have any -- he had one pretty good bump on the noggin

19   with a baseball bat, but I don't think he was -- the

20   notes -- I couldn't read whether he lost consciousness or

21   not, but Dr. Milam's, when I reviewed her notes, she made

22   some notes on it and I couldn't decipher them.     Her

23   handwriting's much better than mine, but I couldn't make out

24   whether he had lost consciousness.

25        But regardless, when he was --- when he was in middle


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                                                         Page   72




 1   school, or high school, or junior high, he was in -- he was

 2   in fights regularly.   And then, he took up -- unfortunately,

 3   as a sport, he took up boxing, which is not recommended, you

 4   know, because-- so, it's very likely that --you know,

 5   that -- that all the other things that -- as he developed

 6   along his cognitive personality and emotional development,

 7   most likely he got a head injury factor here as well, which

 8   further diminished his capacities.

 9        Q    Now, talking about head injuries -- and I want to

10   go to the behavioral factors under the control side,

11   behavioral factors create a strong bias that he has towards

12   impulsiveness, that is, you know, acting without thinking

13   and inability to express appropriate responses.

14        Now, would -- you know,   I know that recently there's

15   been more emphasis on observing brain injuries, the

16   consequences of, you know, football concussions or boxing

17   and stuff like this, or where people have had multiple--

18   not very traumatic head injuries, but then repeatedness of

19   those irijuries kind of -- kind of creates a situation where

20   it becomes more serious; is that correct?

21        A    That's very correct, yes.

22        Q    Okay.   And so, are you saying that Mr. Gamboa, at

23   least the test results demonstrated, that he had some type

24   of influence from brain injury?

25        A    From a traumatic brain injury; that's what the--


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                                                             Page    73




 1   particularly, the memory results suggest.       There's other

 2   indications as well.       But the memory results, it was fairly

 3   clear that his pattern fits the injury profile.

 4        Q     So, all these factors you observed, you know,

 5   were, basically, factors that you tested for; is that

 6   correct?

 7        A     Well, there's evidence for it.      We're very

 8   data-driven.

 9       .Q     Does Mr. Gamboa have some type of personality

10   disorder or psychopathic disorder, based upon your

11   examination?

12        A     He doesn't have a psychopathic disorder.

13        Q     Okay.

i4        A     He doesn't have a personality -- I mean,

15   psychopathic/sociopathic, in terms of the old definition

16   commonly used, no, he doesn't have that.       By definition,

17   he's got the asocial part, but that's by definition.

18        Q     Okay.      Attachment, how -- how important is

19   attachment?

20        A     It's extremely important.

21        Q     Can you explain what attachment is.

22        A     The attachment scheme is developed in the first

23   three years of life.       So, basically, preverbal, okay, so --

24   which makes    th~m   very difficult to remediate.   But,

25   basically, the attachment scheme sets the stage for -- for


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                                                             Page   74




 1   telling a person how to interact with the world and whether

 2   the world is safe and secure, trusting, or whether the world

 3   is inconsistent, potentially hostile or uncaring.

 4        These -- these kinds of templates become          become the

 5   basis of -- in part, morality, but in part       in large part,

 6   basically, how a person engages the world, whether they

 7   engage the worid with worriness, being hypervigilant, or

 8   whether they engage the world as being welcomeing and

 9   trusting.

10        Q      Now, with regard to attachment, do you also look

11   at the children of -- learn by modeling, in other words,

12   parents model their behavior?

13        A      Children mbdel parents' behavior.   They don't do

14   what the parents say.     They do what the -- what they see the

15   parents do.

16        Q      Did you determine, based upon his attachment

17   deficits, that he       Joseph Gamboa is not very trusting?

18        A      Well, that came through, but his attachment scheme

19   lboked to be insecure as a particular type.     Now,    it doesn't

20   mean he's got an attachment disorder, but in the context

21   it's an explanatory factor and how-- and to explain how did

22   he get to where he is today.

23        Q      Okay.   And does he view the world as being hostile

24   towards him?

25        A      He has to answer that.   But my prediction would


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                                                                  Page    75




 1   be, yes, to some extent.            He doesn't have the same at ease

 2   with people that most people have.

 3             Q      What did you determine about Mr. Gamboa's level of

 4   empathy?

 5             A       He does have basic empathy.     He does have it,

 6   so   -~       we were interested in that because we were looking at

 7   issues of autistic kind of behaviors.             But he does have the

 8   basic empathy.            That's why when he put everything-- when

 9   you put everything together, we think of his aggression --

10   the episodes of aggression are not predatory, they're not

11   sociopathic, they're not out of control, they're not

12   repetitive, they're not about pressure.

13             They're basically impulsive, which tells us, you know,

14   the kinds of settings in which he is going to do well and

15   the kinds of settings in which he would do very poorly.

16             Q      But while he does have empathy, does he have the

17   capacity to use it?

18             A      Well, no.    The executive functions that are -- you

19   know, they determine how it's used, in large part.             Now, a

20   sociopath or a psychopath can have knowledge of -- and

21   they're very good at reading body language and so forth, but

22   they just don't care, you know, where an autistic child is

23   not going to have that capacity, to read the facial

24   expressions, or body postures, or gestures.

25             Q       Okay.    So, where does Joseph Gamboa fit into that?


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                                                                   Page     76




 1           A       Well, he's kind of like a person who wants to

 2    dance, but doesn't know the steps.

 3           Q       Okay.    He's the type of person that what?

 4           A       He's the kind of person that wants to dance, but

 5    doesn't know the steps.

 6           Q       Okay.

 7           A       He's got the basic empathy, but he can't -- again,

 8    when emotions take over, when a fight or flight kicks in,

 9    everything else is sidelined, everything else just takes --

10    everything else is taken off the list.of priorities.                The

11    priorities are survival, either that or tension relief.

12                           (Interruption.)

13                           THE COURT:   Can you hold on one second?

14                           (Recess from 2:01p.m. to 2:06p.m.)

15                           THE COURT:   Okay.   We're back on the record.

16           The class is going to be a few more minutes.           So, as

17.   soon as they get here, we'll just put it on pause and let

18    the~   quietly file in.

19           Okay.     Mr. Langlois, go ahead.

20           Q        (MR. LANGLOIS) Okay.        So, basically, we've gone

21    over the executive functioning that controls certain

22    emotions and your ability to, you know, control those

23    emotions and things like that; is that correct?

24           A       Yes, sir.

25           Q       Okay.     And what society sees often is a


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 1   person's -- commits a crime, you know, commits a murder or

 2   something    lik~    that, and they translate that into antisocial

 3   behaviors, psychopathic behaviors; is that correct?

 4           A    I can't answer that for sure.

 5           Q    Okay.    Well, if they do, those are the

 6   psychological explanations for them; is that correct?

 7           A    Yes.

 8           Q    Okay.     First off is would you determine or be able

 9   to classify Mr. Gamboa as a person who would initiate that

10   type of, quote/unquote, antisocial behavior or behavior that

11   results in criminal conduct or a reason that he's here?

12           A    No.     I mean,   it's a reflection-- it's a

13   reflection of his character or personality and he's very

14   passive.     He's --he's --he's a follower,       not a leader.         He

15   doesn't -- he doesn't initiate it, and we saw that in -- not

16   only behavioralally, but in terms of some of the mental

17   processes.     He's kind of slow to get started.      It's like

18   he's going in first gear all the time for a long period of

19   time.

20           Q    Now,    I think you found that the evidence kind of

21   argues against a psychopathic personality?

22           A    Yes.

23           Q    But that doesn't mean that his perionality is not

24   fraught with contradictions or incompatible dynamics by

25   various circles that -- that he kind of acquired during his


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 1   development; is that correct?

 2         A     That's correct.    And·it doesn't mean he has --his

 3   personality development isn't adaptive.        It can be adaptive

 4   in some circumstaBces.       It's going to be, predictably, very

 5   maladaptive in other circumstances.

 6          Q    But his personality shows a heightened --

 7   heightened degree of anxiety?

 8          A    Yes.

 9          Q    Okay.    And that anxiety is developed because he

10   doesn't have those trust factors and he feels the world to

11   be   hostil~?


12          A    That's part of it.     But there's also the

13   physiological -- or, the physiological overdriving is the

14   is the      is the underlying factor of the anxiety.

15          Q    Which shows lots of breakdown and --

16          A    It provides the momentum for the anxiety.       And

17   that's just physiological.       That's part of genetics.

18          Q    All right.

19          A    I could just add that, normally, that's a

20   protective factor.       People who have that kind of overdriving

21   tend to learn from negative consequences very well.          So,

22   when they don't, they wonder why.

23          Q    So, given the -- the fact that Dr. Milam did not

24   screen the executive functioning portion and, you know,            she

25   testified as a mitigating expert,      if you were to testify


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 1   before a jury, or had the opportunity to testify to a jury

 2   at a punishment phase to discuss the consequences of

 3   impaired executive functioning and working memory

 4   functioning, what would the jury have received from your

 5   testimony that they would not have received from Dr. Milam'S

 6   testimony?

 7        A       Well,   I \ think by factoring in the executive

 8   functioning and working memory personality organization,             I

 9   think the jury may understand how a person can get to his

10   situation.     I mean, you always seek an explanation why, why

11   this, why that.

12        Well, it's not a mystery, you know.        In a way, you look

13   at -- you know,      if you look at his development from the womb

14   to today, then, yeah, you would say, yeah, the prediction

15   would be that, yeah, he would get in serious trouble.

16        Q       Okay.   Now, that goes into just being able to

17   explain to a jury the fight or flight response,       is that

18   correct,   in terms of whether it's physiologically or

19   personality?

20        A       Yes, sir.

21        Q       Is that correct?

22        A       That would be -- that would be part of it.         In

23   this stage of the proceedings, the question is,        I mean,

24   could he have made other choices?        Could he have made other

25   choices?


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 1        Well

 2        Q      Well, of course, he could have made other choices,

 3   but he doesn't have the capacity to make those choices?

          A      That's what I meant to say.

 5        Q      Okay.

 6        A      Because he is limited in a number of choices that

 7   he makes and -- and because of the executive functions,

 8   he's --and there's his strong emotionality.        Even the pro

 9   social choices that are available to him, he'd probably have

10   a difficult time making.       So, the question is -- is does he

11   really have a choice.

12        Q      Now,    is that what you would explain to the jury,

13   that the implications of a strong fight or flight response

14   in the face of a weak executive and working function --

15   working memory functions result in being very impulsive?

16        A      Yes, . very impulsive.

17        Q      Okay.    And so, the display by Mr. Gamboa to be

18   impulsive -- impulsive would cause a person to shoot a

19   person sometimes, would it not, because he's not --he

20   doesn't have the ability to determine that really, you know,

21   this isn't a fight situation, this is a flight situation or

22   be able to work out the situation because --but he can't

23   because he has a very damaged executive functioning portion

24   of his brain?

25        A      Not -- what you say is true, but not all impulsive


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 1   people shoot people, hurt people.        But, basically, you know,

 2   when the fight or flight comes online, the thinking part or

 3   the rationality goes offline.

 4         Q     Okay.     And you said that Joseph Gamboa's not a

 5   person who initiates things, or I guess he's not likely to

 6   be aggressive.       But if he's provoked or if he has that false

 7   belief he's provoked, due to a lack of executive

 8   functioning, then he does appear to be aggressive?

 9         A      Yes.     That's a good way of putting it.

10         Q      Okay.

11         A      He's not going to intentionally harm somebodyj

12   but       but he may -- he may take it as an insult, you know,

13   some fairly benine or innocuous kind of statement on the

14   part of someone else.        And once that initiates       that's the

15   appraisal part, and once the appraisal part is             his

16   appraisal templates just amplify the emotionality.

17         The initial gut reaction is "huh," and then-- and then

18   the appraisal part just amplifys it and then he -- the fight

19   or flight takes off and he's --and he starts to fight or,              I

20   mean, gets in a fight.

21         Q      That pretty much summarizes what you --

22         A      But he's reactive.     That's the point.     What you're

23   saying, he's reactive, not proactive.           He's not a predator,

24   but, you know, you need to understand how he might get into

25   real trouble.


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 1         Q     One of your findings,      that you thought was kind of

 2   interesting echopraxia?

 3         A     Yes.

 4                       THE REPORTER:   Pardon me?

 5                       THE WITNESS:    It's E-C-H-0-P-R-A-X-I-A .
                                              . .'!:~.

 6         Q      (MR. LANGLOIS) Kind oftell us what that is and

 7   why it surprised you to find that or what you

 8         A     Well, it's a frontal lobe sign or a primitive sign

 9   and normally disappears.       You see it in children.         It

10   normally disappears by the age of seven.             But, basically,

11   it's very uncommon to find that in an adult.             And why we

12   took such great note of it was because it fits some of the

13   other stuff.       But, basically, it told us about how severe --

14   severely deficit the executive functions are.

15         Q     What is echopraxia?       Is it if you look at somebody

16   doing a motion, or something like that, they can't duplicate

17   it?

18         A     It's the ability to reverse.            If you have a

19   five-year-old child and ask them to do this and use the same

20   hand sign, they will mirror that.            They don't have the

21   ability to reverse it.

22         Q     Okay.     And Mr. Gamboa doesn't have that ability?

23         A     Well, he made those errors; that was quite

24   striking.    But also, once you have that, then you can never

25   rely on things.       So, we also found his -- he couldn't


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 1   reverse mental images.         We would -- did some tests for

 2   reversing mental images, doing rotations.           That was fairly

 3   tough.      That's fairly uncommon, to find that in an adult .

.4           Q     So, in other words, it's kind of like reading with

 5   a mirror and the like, I mean, you can't translate the

 6           A     Yeah.     You can't translate.    This is doing a

 7   rotation, you know.         I can imagine what that monitor looks

 8   like.       If -- if I would sit in front,     I would do that

 9   rotation in my head, but that's something which is very

10   difficult for him.

11           And, again, that's very uncommon to find and it sort of

12   adds to the weight of the evidence about having some sort of

13   brain damage.         And I hate that term, actually, but --

14   because it doesn't mean anything.           But --but -- but our

15   results do -- do echo Dr. Milam's results in that regard,

16   she -- the specificity, but she noted he did have some

17   organic brain damage.

18           Q     Now, when you ever    ~-   you do any type of

19   psychological testing that has to do with, obviously,

20   determining, you know, IQ or adaptive behavior or ability to

21   learn or anything like that, like this, is there some type

22   of validity testing to make sure that the person's not,

23   creating false answers or just trying to randomly guess or

24   something like that?

25           Do you do some type of validity testing?


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 1        A     Well, we do some -- we do validity testing, but we

 2   look at every test individually for -- for consistentcy, for

 3   what doesn't make sense.     Everything -- everything that a

 4   person does is a datapoint for us.     Even if the -- if the

 5   if the results are invalid, it's a datapoint, because you

 6   have to ask why.

 7        So,   I looked-- looked at --Dr. Milam's PDI was

 8   considered invalid, but if you look at his -- at the

 9   sequence of his iesponses, one of the    -~   one of the -- one

10   of the hypotheses could be that he couldn't read, didn't

11   understand them, an overhypotheses, though, but that he was

12   highly persevered, because once he started off with a false

13   answer he kept on going.     So, there was a string of false

14   answers that was -- that was quite stunning.

15        Q     So, that kind of established he doesn't really

16   know whether it's true or false?

17        A     It was an overhypotheses, it has a couple of

18   you know, it has implications, but has possibilities.         But

19   you look elsewhere to confirm or -- or -- rule in or rule

20   out one of the hypotheses.

21        But, certainly, we saw high levels of separation on

22   some of the sight tests, but there's no question         there's

23   no question that reading comprehension is a real         was a

24   real problem.

25        Q     Okay.   Were you able to validate your test?


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 1         A       We were, yes, our tests were validated.

 2                         MR. LANGLOIS:   At this time,     judge, I'll pass

 3    the Witness.

 4                         THE COURT:   Okay.   Why don't we take about a

 5    five-minute break.

 6         Okay?

 7         You can take Mr. Gamboa out for a second.             We're just

 8    going to take a quick break for a second.

 9         Okay.

10                         (Recess from 2:20p.m. to 2:35p.m.)

11                         THE COURT:   Okay.   All right.

12                           CROSS-EXAMINATION

·13   BY MS. WELSH:

14         Q       Dr. De France, my name is Mary Beth Welsh.          We met

15    briefly right before we. started.

16         A       Yes 1 ma'am.

17         Q       I have a few questions that I want to go over.                If

18    you don't understand my question, which is entir~ly

19    possible,    just ask me to repeat it or -- repeat it in a

20    different way and I'll try to do that.

21         A       Sure.

22         Q       As far as assessment tools for neuropsychology,

23    the Halstead-Reitan is one of many; is that correct?

24         A       It's one of many.       That's right.

25         Q       And the Delis-Kaplan is, in fact,         one of many,


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 1   which is one you use; correct?

 2         A      Well, they sample different kinds of functions,

 3   but, yes, you're right.

 4         Q      If you're looking at the tools used-- not looking

 5   at what they test, but there's a whole list of tools that

 6   are used to assess all kinds of functions,          like -- and even

 7   in the executive function,         the Delis-Kaplan is listed as one

 8   of the different tools, as well as the Halstead,

 9   specifically, the category test.          And I think you alluded

10   during direct that there was a test on the Halstead-Reitan

11   that does test executive functioning,         but you didn't name

12   it.

13         Were you referring to the category test?

14                No, ma'am, to the Trails B test.

15         Q      Okay.

16         A      The category test was actually designed to sample

17   frontal function, but the research shows that it's more

18   of -- it's sensitive to generalized brain damage, moderate

19   to severe.

20         Q      As a neuropsychologist, part of what you do is

21   determi0e what       -~   which of all of these assortments of the

22   tests you're going to use to make your          as~essment;   is that

23   correct?

24         A      Yes.

25         Q      And we could have five neuropsychologists in this


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 1   room and all five of you may very· well come up with a

 2   decision to use different tests.       Wouldn't that be fair to

 3   say?

 4          A   Depending on what were trying to sample, they

 5   wouldn't be remarkably different.       There might be a lot of

 6   overlap.   There may be one or two different, but there would

 7   be a lot of overlap.

 8          Q   But -- but there's a lot of tools to choose from

 9   and you have to assess which ones to choose?

10          A   That's correct.

11          Q   Now, in your assessing what needed to be done for

12   this trial or what should have been done for the trial, did

13   you at any time actually talk to Dr. Milam?

14          A   No.

15          Q   Did you at any time talk to the defense attorneys

16   that tried the case?

17          A   The defense attorney?

18          Q   The defense attorneys.      There were two attorneys

19   that tried the case, one of which was in here this morning.

20          A   Yes.     I did.   I talke~ to Mr. Brandon.   I talked

21   to

22          Q   No.     The two -- Mr. Brandon came --

23          A   He came later.      I'm sorry.

24          Q         into this case much later.   I'm talking about

25   the trial attorneys.


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 1           A      No.    I didn't.   No.

 2           Q      So, you were not aware at -- when you were doing

 3   this assessing of exactly what the strategy was of the

 4   defense attorneys; correct?

 5           A      That's correct.

 6           Q      You don't know what they wanted to achieve, what

 7   they wanted Dr. Milam to look at?

 8           A      That's -- that's very true.

 9           Q      And wouldn't it be fair to say that even -- even

10   you, when you perform tests, could come back how, or even

11   taking Mr. Gamboa's, you could look it and say, Do you know

12   what, we probably ought to do this test and this test and

13   this test that we didn't do before?

14           A      Well, that's very true.       Because we were-- we

15   were on a time limit.         There were some tests that we would

16   like to have done.

17           Q      It's true of all of us; right?

18           A      Absolutely.

19           Q       In our capacities as professionals, we -- you

20   know,       I'll walk out of here this afternoon and say, Manj       I

21   could have asked this question, or I should have asked this

22   question, or I should have argued.

23           We can look back and see where we could have done

24   things differently?

25           A      That's very true.        I have that experience often.


                      L
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                                \

 1        Q       Yes.     In your practice -- you stated in your -- I

 2   believe it was your affidavit and even with your listings of

 3   your credentials and all, that you had been an expert in a

 4   number of legal cases.

 5        Can you be a little bit more definitive?

 6        A       Well, without -- well, there are certain things

 7   that I want to talk about, but --

 8        Q       Well, no,    I mean, number wise,   a number of legal

 9   cases.   Have you worked on ten legal cases, 15 legal cases,

10   a hundred?

11        A       Oh, not a hundred, no, because I don't do this for

12   a living.     Probably         probably 20.   I've been doing more

13   and more recently, but I have been involved-- I don't want

14   to get too much in detail, but --but I've done some capital

15   cases and did some sexual predator cases.

16        Q       So, of the number of legal cases, how many -- and,

17   again,   I'm not asking for any detail.        What those legal

18   cases are is really irrelevant here.

19        A       Yeah.

20        Q       But what I want to know is how many of the cases

21   you have been involved in are actually criminal cases.

22        A       I'd say a dozen, talking about serious felony

23   cases.

24        Q       At the time

25        A       And I'm not talking about drug arrests and stuff


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 1   like that.

 2        Q       Okay.   At the time that you,     I believe, did your

 3   affidavit and you got your credentials, you had stated you

 4   had direct involvement. in a capital case for the State.          Is

 5   it one capital case you have been involved in or is there

 6   more and some were for the defense?

 7        A       Well, no.     I have done -- I have worked for the

 8   prosecution and defense -- for the prosecutor.

 9        Q       And how many capital cases did you do?

10        I guess I shouldn't say that you do.          How many have you

11   been an expert for?

12        A       Oh, gees, it's probably-- Oh, boy.        It's

13   probably-- I'd say six to eight, something like six or

14   eight, six capital.        I've done a couple of -- for the

15   prosecution.       I've got a couple ongoing .

16        Q   . Well, you just        you just made the statement,

17   which is going to lead sort of to my next question, that

18   it's not what you do for a living.

19        A       That's correct.

20        Q       In fact,    yours is a clinical neuropsychology and

21   that's what--

22        A       Well,   I'm a -- yeah.   I'm a clinical

23   neuropsychologist, ,but I have -- I see patients of all age

24   groups, children, adults, adolescents.

25        Q       So,   I don't see anywhere in-- in your


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 1   credentials, which, by the way, they are           I'm not

 2   questioning your expertise.     However, I, in my studies, have

 3   seen that forensic neuropsychology has become a specialty

 4   where the neuropsychologist actually spends time and focuses

 5   on the legal aspects of the nuances of what they are testing

 6   for.

 7          Is that fair to say?

 8          A   Well, not quite, but that's -- I understand the

 9   sense of the question.     The -- yeah, you know, in the last,

10   say, six years, there's been-- there's been some attempt at

11   getting special -- doing specialties in forensic psychology.

12   And I will say in my own defense that I have been trained,

13   of course because I've had a lot of CEUs.

14          Q    Okay.   It's not a defense.   Again,    I'm not

15   questioning your expertise.      I'm just looking at the fact

16   that -- are you familiar with the -- a forensic clinical

17   neuropsychology textbook?

18          You're familiar with those kind of textbooks; correct?

19   And this actually --

20          A    Well, there's a number of them.

21          Q    Okay.   This one -- I'm sorry.    Let me rephrase

22   that because it'll be more specific for you.         It's Applied

23   Clinical Neuropsychology,     2011 copyright (indicating).

24          A    I don't think that's in my library, but I've

25   probably got equivalents.      I mean, there's a number of them


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 1    out there.

 2         Q       And they talk about forensic clinical

 3    neuropsychology, where they specialize in the forensic

 4    application of your knowledge and skill.

 5         A       Well,   I -- well,   I do have some of those books in

 6    my library, but I try to stay current with the literature,

 7    too, because, like, over the last four or five years I have

 8    been doing more and more of these kinds of cases, so

 9         Q       Well, bottom line, with the forensic,      in dealing

10    with the legal aspects or the nuances            in fact,   she

11    they talk about in this -- in this book, that, in the

12    forensic setting, many other issues, other than just the

13    the clinical issues, surface, such as -- one of the big ones

14    is mallingerring and some of the things that will affect

15    for example, you didn't evaluate Mr. Gamboa until he was on

16    death row for nearly a year versus her, as in Dr. Milam,

17    evaluating him during the trial;

18         That could -- that could bring some nuances and

19    differences; correct?

20'        A       Well, that's very true.       But let me say this:     I

21    have had a lot of experience in evaluating for

22    mallingerring.       Because most of the legal cases we have done

23    have been in-civil court, they have to do with injury and

24    there malingering is a real issue.

25         But I will say, too, that we -- we pay a lot of


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 1   attention to internal consistency and, eventually, the

 2   external consistency doesn't make sense, so -- but we

 3   evaluate everything, in terms of level of effort and we

 4   evaluate everything -- every test, in terms of authenticity

 5   of effort.     That's really a major -- a major point for any

 6   kind of evaluation.         So, we spend a lot of time with that.

 7        Q       And the bottom line for my point is you, as an

 8   expert, or Dr. Milam as an expert, it's important to

 9   understand within the legal setting exactly what needs to be

10   obtained, exactly what the defense attorneys want to convey

11   to the jury; correct?

12        A       That's --that's true.

13        Q       And it may be part of their decision process as to

14   whether or not they want to put on the technical stuff that

15   we heard for an hour and a half, which I'm not questioning,

16   is not -- it's probably very valid and there's no denying

17   that he had a horrible childhood, but they have to decide

18   what impressions the jury's going to be left with, are they

19   going to -- are they going to listen to his family, give

20   this heartwrenching background of how horrible his life was,

21   or are they going to want more technical stuff.

22        Do you see what        -~   it's a decision-making process, do

23   you understand that?

24        A       Well,   I --

25        Q       "Yes" or "no"?


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 1        Is it a decision-making process the defense attorneys

 2   have to do when they are trying a case?

 3        A       Well, in a sense-- well, of course, it's the--

 4   the attorneys are the -- they are sort of the quarterback.

 5        Q       Well -- and they have to decide whether they want

 6   to go into more detail in one area or get on the -- the --

 7   that he's brain-impaired and he suffers from this terrible

 8   childhood, that nobody denies or what to do, it's a

 9   decision; correct?

10        A       Yes.     It's their decision.

11        Q       Now, you did speak a little bit -- first of all,

12   when you were getting preparing for this and you were

13   talking to          or, evaluating Mr. Gamboa, you mentioned that

14   you looked at Dr. Milam's -- I'm not sure if you actually

15   just looked at her notes or did you actually read the

16   record?

17        A       I didn't get wh9t I have in my file.        This is

18   this is my file for him.

19        Q       Okay.

20        A       What I have in there,       I did not receive until --

21   her work,    I did not receive until I finished the evaluation

22   and started writing the report.

23                        MS. WELSH:     May I approach

24                        THE WITNESS:     I did

25                        MS. WELSH:     Hold on just a minute.


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 1         Your Honor, may I approach?

 2                       THE COURT:    One at a time -- You can

,3    approach --   ~o   the Court Reporter can get it down.

 4         Q        (MS. WELSH) This is my copy of the record, but I

 5    just wanted you to look -- do you remember looking at

 6    anything that was -- looked like this, like it was a record

 7    or transcript (indicating)?

 8,        A    Yes.      Well, yeah, I think I did.

 9         Q    Okay.      Well, you were flipping

10         A    That was -- that was for

11                        THE COURT:   Hold on a second.   One of you at

12    a time.   Let him finish if he is talking.

13         Q        (MS. WELSH) You were talking of her notes and

14    then you said "deposition" a few times, so I just wanted to

15    clear up for the record that you actually did look at the

16    record, that you got the record.

17         A     I don't recall-- I don't recall whether it was a

18    deposition or a court recording.        I didn't review that

19    before we did the evaluation.        I didn't review all her

20    her details of the family history and her actual test

21    results until we were, essentially, completed, because I

22    was -- otherwise, I would have designed the tests -- the

23    battery of tests a little bit differently, but -- but,

24    anyway

25         Q    Which, again, brings us to the fact that you


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 1   looked at Mhat she did and then you 6an decide to do more or

 2   different testing, which is very -- it doesn't mean she was

 3   wrong,   it just means you could add to it; correct?

 4        A     No.     I never said that she was wrong, because our

 5   testing -- our results, basically, complement each other and

 6   we both say the same things,     in terms of -- in terms of the

 7   summary.

 8        Q     When you reached your conclusions on Mr. Gamboa,

 9   had you read any of the police reports having to do with

10   this particular offense that he was on trial for?

11        A     No.

12        Q     Had you talked to Mr. Gamboa at all about this

13   offense?

14        A      I don't do that.    They tell you.    I don't ask any

15   questions about that as part of -- never -- never ask a

1£   question about that.     Now, they tell you.     Along the way, we

17   have notes.

18        Q      Did Mr. Gamboa tell. you anything about this

19   offense?

20        A      I have some sketchy notes, but --

21        Q     What did he tell you?

22        A     Well, he said he didn't do it.

23        Q     Okay.    Did he say who did it?

24        A     Well, that's all --basically, from--

25        Q     No.


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 1         "Yes" or "no"?

 2         Did he say who did it?

 3         A     Well, no, not -- not definitely, but there was --

 4   but       that's to me, that's hearsay and I don't

 5         Q     Well, it's not hearsay because it was coming from

 6   him and we are allowed to ask questions about what he said.

 7         A     Right.

 8         Q      So, did he offer who might have done it, if he

 9   didn't do it?

10         A     Well, there are some names and I can show you the

11   names, but I don't

12         Q     And they were?

13         A      I can show them to you, but I --

14         Q     You can't just say them?

15         A      -- I don't want to -- Pardon me?

16         Q     You can't just say it?

17         A      I'd rather not, but I can show-- no,        I can get

18                     THE COURT:    Well, here's how it works.        If he

19   told you-- unless there's an objection, if he told you who

20   did it or anything that he said to you is fair game in this

21   proceeding~   unless there's an objection.

22         So, you can go ahead and testify as to what he told you

23   or --about who did it.         I don't   thi~k   there's any--

24                    MR. LANGLOIS:      Your Honor --

25                     THE COURT:     I think it's fair game, unless


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 1   there's some legal objection to it.

 2                       MR. LANGLOIS:     I don't know what discussion

 3   he had.       I thought he already told him that -- he didn't go

 4   into anything about the facts of the case and that's pretty

 5   much the answer.

 6                       THE COURT:     Well,   I think his answer was that

 7   he was told who did it and he had some names and he didn't

 8   want to answer it and -- because it was hearsay.             And, quite

 9   frankly,      that's not his call.

10           I think he's --there's not any reason why he can't

11   answer her question as she has posed it, unless, number one,

12   he didn't tell him or, number two, he doesn't know.

13                       THE WITNESS:     I'm sorry.

14                       THE COURT:     Okay.    So -- so-- and there's

15   not a need to show it.        I mean,      if you've got a document in

16   front of you.where he said who else did it, then you can

17   answer that question.

18                       THE WITNESS:     I'm sorry, but I don't think

19   if I said that he said who did it,            I think I misspoke.

20                       THE COURT:     I'll tell you what:     Let's start

21   over.       Ask your ·question again.

22           Q       (MS. WELSH) When you were speaking with

23   Mr. Gamboa -- I'll ask both quest1ons again -- did he

24   ever -- what did he tell you about whether or not he

25   committed the crime?


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 1          A    He denied doing the crime.

 2          Q    And in denying doing the crime, did he tell you

 3     who did the crime?

 4                       THE COURT:     That just calls for a "yes" or

 5     "no" at this point.

 6                       THE WITNESS:    Well, what level of -- Okay.

 7     Your Honor, what level of certitude?

 8          Well, I would have to say, you know, my -- my

 9     interpretation, no.
10 .        Q        (MS. WELSH) Okay.

11          A    He gave a name, but I --

12          Q    Did Mr. Gamboa suggest to you other individuals,

13     by name, that may have been involved with this offense that

14     he did not commit?

15          A    I think -- yes.        There were some --

16          Q    And those names were?

17          A         there was some conjecture, but it's -- it's

18     conjecture.    Look, I'm not -- I wasn't part of the police

19     investigation and that's not -- it wasn't my job.

20          Q    Okay.     Dr. De France, the point is perhaps you're

21     making it without even giving the names.        The reason the

22     defense attorneys oftentimes do not expose their clients to

23     this type of evaluation is because they talk and they give

24     information that may come back to hurt them.

25          Do you see that?


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 1        Do you agree with that?

 2        A     I agree with that.

 3        Q     Okay.   So, the defense attorneys, in making their

 4   decisions on what -- how in-depth they go and who is

 5   evaluating their client, that all comes into play because
 6   the clients talk; correct?

 7        A     The clients talk, yes.

 8        Q     Okay.   And he told you he didn't do it.       But did

 9   you see any other reports on    -~   of the other offenses that

10   he committed?

11        A     I -- I heard about them, but I didn't see any

12   reports.

13        Q     Because you've talked in terms about Mr. Gamboa

14   being reactive, perceiving threats and -- in fact,        I think

15   in your -- your -- you talk about he would be rather passive

16   and feels comfortable in structure and routine.         Those were

17   your words in your affidavit.

18        Are you aware that, on June      25~h   of 2005, which was

19   right about the same time of this capital murder, that

20   Appellant was just hanging out with a buddy of his, found

21   some bullets for his revolver, put the bullets in it -- This

22   is testimony straight from the trial record, so I'm not

23   going on anything that -- it's not conjecture -- (reading)

24   He put some bullets in the gun, put the gun in his pocket

25   and told his friend to start his car, which his friend did


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 1   because he thought that Gamboa might shoot him.

 2         (Reading) They drove to an area -- by the way,

 3   Appellant told the guy where he wanted him to go.        They went

 4   to the Prime Time Bar, Appellant got out, started talking to

 5   some people and th~n just started shooting.      He did the same

 6   thing at a gas station, no apparent threat, no -- he went up

 7   to the people with the gun.

 8         (Reading) In fact, there was one incident where

 9   Appellant saw a Corvette and said he was going to jack the

10   guy, he told his friend.      Appellant saw two girls and asked

11   them to pretend to be prostitutes, so that the guy would

12   stop, but the girls refused.

13         This doesn't sound like a person reacting.     He sounds

14   like he's       he's planning something, he wants that Corvette

15   and he has a plan to get it.

16         Wouldn't you agree?

17         A      Well,   I'm not familiar with the-- those

18   scenarios.

19         Q      Those --that's not just a scenario, sir.       Those

20   were facts --

21         A      Well, they may be.

22         Q      -- that came out at trial.

23         A      They may be, but you're asking me to comment on

24   it.   The -- I don't think that's totally inconsistent

25   with -- with our findings,     but our findings are pretty clear


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 1   that he tends to be more passive than being proactive.

 2        Q          So, in the facts of this case --

 3        A          But I can't speak -- I can't speak to the facts

 4   and the circumstances.          That's why when we do these

 5   evaluations -- I mean, we're not the judge or the jury.              I

 6   mean, we don't determine guilt or innocence.           What we are

 7   asked to do is provide information to the court.

 8        Q          Well, in fact, that brings -- you talked about

 9   you're there to ask -- answer the question "why" and we've

10   done studies
                 /

11        A          Sure.

12        Q          -- throughout history trying to understand why,

13   right, why people do bad things

14        A          That's true.

15        Q          -- right?

16        A          Absolutely.

17        Q          And as a society, would you agree that it makes us

18   feel better sometimes to think that there's some reason that

19   a person is committing crimes, other than they are just flat

20   out mean?

21        A          I   would very much agree with that.

22        Q          You talked about him being good in organized

23   settings or he would be passive .

24       .Are you aware that, in December 14th, 2007, shortly

25   after being sent to death row he         assault~d   one of the other


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 1   inmates with a spear that he made himself?

 2        And this is not out in general population.     He pushed

 3   the spear through his    the hole in his door, in his cell,

 4   to try to attack this person, unprovoked, he's in his own

 5   secure cell, he modifies whatever he can come up with and

 6   makes a spear, so that he can stab someone and then flushes

 7   it down the toilet.

 8        Were you aware of that?

 9        A    I was aware of the -- of the event, but I don't

10   know the particulars of the circumstance; so, I'm not sure

11   what you want me to comment on.     I mean --

12        Q    I am just stating that he is in prisGn now, he is

13   on death row, he is in a very secure situation, he

14   shouldn't -- if he's as passive as yqu say he is, then on

15   11 -- November 21st of 2008, he assaulted an officer.

16        On January 11th of 2009, he assaulted an    offic~r,   again

17   with a weapon that he made, 12-inch piece of rolled up

18   newspaper with razor blades attached, that required

19   treatment beyond first aid.

20        Again, he stabbed through the slot in his cell door, so

21   nobody's even safe to walk by his cell, and then he flushed

22   it down the toilet, so that no one would find any evidence

23   of it.

24        January 30th of 2009, he assaulted an officer by

25   throwing a homemade spear.     He likes to make weapons,


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 1   apparently, because then he flushes them, so he has to

 2   remake them.      So, he made another weapon and he attacked the

 3   officer as they tried to remove him from the day room.               He

 4   speared him in the leg.

 5          February of 2009, he possessed a weapon, intended to

 6   injure, again something he made, rolled up            -~   paper rolled

 7   up, with a piece of metal four inches in length, attached to

 8   the end and sharpened, so -- and the list goes on, I might

 9   add.       I mean, it's -- it continues to go on, which seems to

10   suggest that even in the prison environment he's not

11   necessarily going to be passive and he

12          A      Well, I think         I think the point that Dr. Milam

13   made and our data suggests or indicates that he's going to

14   do best when     ~here's    a lot of routine and consistency and

15   where things are simple, but he's going to be reactive, not

16   going to be proactive.

17          Now, I don't know the circumstance for those things.               I

18   believe what you say, because I'm sure it's documented, but

19   I think you need to look at the motive, if there was -- if

20   something was triggered in this gentleman.

21          I don't know.       Now, I   -~   and nobody -- nobody is

22   claiming that he's a saint, that all of his behavior has

23   been exemplary and nobody's saying it's excuseable, okay,

24   but what we are trying to do is figure out why.

25          And like you were asking, we want to know why, because


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 1   it makes - - i t ' s helpful.   But more than that, it's -- it

 2   comes down to the basics that says what is his level of --

 3   of blameworthyness.

 4        Yes, he may have done some of those deeds, but if we

 5   look at -- if we take his behavior and look -- take a

 6   broader view of it, if we understand it, then maybe we

 7   can -- it's not to excuse it, but maybe we can see another

 8   way for justice to be s~rveed.

 9        Q     Do you see how statements like lack of adequate

10   controls -- let's see, I think you .used some statements

11   like -- I can't find them-- basically, that he had no

12   impulse control.

13        Do you see how that could be -- no doubt -- Here we go,

14   (reading) No doubt he would have been acting reflexively,
15   without regard to the consequences; he has -- doesn't have

16   the ability to understand those consequences; he has total

17   lack of control.

18        Do you see how that might come across as or be a

19   two-edged sword when it comes to deciding what to put before

20   a jury?

21        A     Well, I think-- I think that's --that is a

22   fairly accurate reflection of the situation.       I don't know

23   all the -- the jury needs to make their own decisions, but

24   that's the-- I think that's --reflects the facts of the--

25   of the situation.


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 1         Q      Well, the fact that it's a two-edged sword,

 2   meaning that somebody could look at.that and say, Oh, poor

 3   thing, let's give him a    bre~k,   somebody else could look at

 4   it and say, Oh, my gosh, this person's got to go, he's a

 5   total danger --

 6         A      Absolutely.

 7          Q     -- those are things that the defense attorney has

 8   to weigh; right?

 9         A      Well -- and we weigh, too.    Because when we do

10   these things -- I'm going to digress.       The one place where

11   I've got to disagree with Dr. Milam is we do make risk

12   assessments, because public safety is an important issue.

13   And   ~ot   everybody likes to hear what we have to say, in

14   terms of defense attorneys, about -- about their clients,

15   but it is a two-edged sword, definitely.

16          But if there is -- if there is a history of unprovoked

17   assault, then that needs to be handled and controlled --

18          Q     Well --

19          A      ~-but that's not --all we're-- all we're doing

20   is -- is -- when -- when people -- people have different

21   styles of -- varying styles of the way that they handle

22   things, and that's .what we are --that's what we're testing,

23   in part.

24          We're testing trait factors, in part, but sometimes

25   we're testing these trait factors, that there are -- there


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 1   are predictable ways of responding, and that's what

 2   Dr. Milam and I were looking at, in part.

 3        We are making our judgments, our conclusions, about how

 4   they respond in a -~ in a prison environment, based upon

 5   those kinds of traits.    And the literature shows,     I think,

 6   that the level of service -- you know, it helps us determine

 7   the level of service, that, you know, he should do best in

 8   a -- in a controlled setting, but we are not saying that he

 9   would be doing well to be released---

10        Q    I'm going to say, if that's his best, then we're

11   in big trouble; right?

12        A    Well, I think we need to know the circumstances,

13   with all due respect.     There's more to the story.

14        Q    Well, with all due respect, he is in his cell, he

15   has fa~hioned a dagger or a spear and he reaches out to

16   someone that is crossing by his cell door.        That's the

17   facts.

18        A    But that's --

19                  MR. LANGLOIS:     Judge --

20                  THE COURT:     Hold on a second.

21        Mr. Langois?

22                  MR. LANGLOIS:     ~-   we are getting into the

23   punishment phase of the trial.        This doctor, you know,

?4   talked about executive functioning and how it affects a

25   person.   It has nothing to do with the behavioral, and we


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 1   are past things like that.

 2           He never testified that he wouldn't do anything.     He

 3   just explained exactly -- you know, based upon his brain

 4   damage and stuff like that, at how that affects certain

 5   things, having the controls, affect and stuff like that.

 6           All this testimony here is just not even relevant --

 7                     THE COURT:   Okay.

 8                     MR. LANGLOIS:        to this Hearing and I would

 9   object to it

10                     MS. WELSH:   Your Honor --

11                     MR. LANGLOIS:   -- if she wants to make the

12   point, you know, he did this, those are things up in TDC.

13   That has nothing to do with how his brain is functioning;

14   that's all.

15                     THE COURT:   Okay.

16                     MR. LANGLOIS:   If she wants to be -- certify

17   herself as an expert, that certainly has more authority and

18   more knowledge than our doctor does, then she should get up

19   on the stand and take it.

20           But, you know, the questions relate to whether or not

21   these studies were valid and whether or not the executive

22   functioning is something that the jury should have heard.

23   That's the whole ,thing, not what he's done up in prison, you

24   know.     That would go to, you know, future dangerousness and

25   we are not into that area.


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 1                    MS. WELSH:   May I respond?

 2                    THE COURT:   I'll give you a little latitude

 3   on that,   just tie it into his expertise, rather than just

 4   questioning him on whether or not he knows it happened.

 5                    MS. WELSH:   Well, I --

 6                    THE COURT:   That's my ruling, so you can

 7   continue your questions.

 8                    MS. WELSH:   I actually don't have that much

 9   more on that.

10                    THE COURT:   Okay.

11        Q       (MS. WELSH) The -- the bottom line being that in

12   your affidavit that you did talk about whether or not he

13   would be -- do well in these settings and -- and Dr. Milam

14   did the same thing, talked about the same thing; correct?

15        A      That's correct.

16                    MS. WELSH:   Your Honor, at this time, I would

17   like to offer into evidence the prison records,       just because

18   I had referred to them,    just so that they are part of the

19   record.

20        You have the originals along with the business

21   affidavit in the court's file.        I filed them and gave

22   notice.    Just because I did refer to· those incidents, they

23   will be part of the record.

24                    THE COURT:   Okay.     Is that -- it was file

25   stamped the 9th of April?


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·1                   MS. WELSH:    It's -- it's in a manila

 2   envelope, yes, sir.

 3                    THE COURT:   Okay.    Mr. Langlois, any

 4   objections?

 5                   MR. LANGLOIS:       Judge, I don't understand the

 6   relevancy of those criminal records.        It has nothing to do

 7   with this.    This is not a punishment hearing.

 8                    THE COURT:   Okay.

 9                   MR. LANGLOIS:       It has to do .with whether or

10   not -- you know, the issues that I raised in the Writ.         I

11   don't understand why she is bringing that in.        It has

12   nothing to do with it.    It's post-trial.

13      · The whole issue here is what happened at trial, whether

14   or not Mr. Gamboa received the effective assistance of

15   counsel and whether or not there was, you know, testimony

16   that should have been provided at that time.

17        I don't see anything that happened after· the conviction

18   that is relevant in this case and that's exactly what those

19   reports are about.

20                    THE COURT:   Okay.     Is there an exhibit number

21   on them or are they just part of the

22                   MS. WELSH:    No.     I need to have them marked.

23                    THE COURT:   Just so I can rule on that.

24                    (State's Exhibit No. 1 marked.)

25                   MS. WELSH:    And, again, the purpose that the


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 1   State is offering those is simply because I did allude to

 2   them, based on the doctor's affidavit on what --kind of how

 3   he would be in controlled situations, and I'm going to move

 4   away from that at this point.

 5                     THE COURT:     Okay.   Here's my ruling:    For

 6   now, they are admitted.        When you submit your proposed

 7   findings of fact and conclusions of law, quite frankly, they

 8   would be relevant and admissible only as it goes to his

 9   testimony and how he reached his opinions about the

10   Defendant, not as to any issues of future danger or about

11   his conduct in prison, so --

12                     MR. LANGLOIS:     He never testified about his

13   future dangerousness, your Honor.

14                     THE COURT:     That's what I'm saying.     So, my

15   point is they are only relevant to the extent that he has

16   interviewed the Defendant, he's testified about his

17   functioning.     And so, I don't         I don't believe, at this

18   point, that they are relevant to any issues of future danger

19   in prison.

20           So, quite frankly,   I'm going to let them in.       I don't

21   know how they are really going to factor into any proposed

22   findings of fact and conclusions of law.          Now, you can

23   submit them to me, I'll          I'll consider them, and then you

24   can make any objections on those proposed findings that you

25   want.


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 1           I'm just going to allow them in, only because he's

 2   referred to them a couple of times and he's aware of them.

 3           Okay.

 4                           MS. WELSH:   And, again, your Honor,    just

 5   because I referred to many of the incidences that are in

 6   there, that's just to show that I wasn't making something

 7   up --

 8                           THE COURT:   Correct.

 9                           MS. WELSH:   -- that I had it on paper.

10                           THE COURT:   Correct.

11           Q        (MS. WELSH) Just a few final questions and then

12   I'm finished.           When you were reviewing things for your

!3   evaluation of Mr. Gamboa, as well as testifying here, did

14   you review any findings made by a Dr. Gilbert Martinez?

15           A       No.     I did not.

16           Q       Did you see any reports or any findings made by a

17   Nadine Maz?

18           A       No.

19           Q       Did you talk to any people that know the Defendant

20   but aren't his          f~mily?


21           A       No.

22           Q       In fact,    from what I gathered from you, really,

23   you're concentrated on your testing and -- and him pretty

24   much.       Is that fair?

25           A       That.     And Dr. Milam•s file,   yes, that's true.


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 1                      MS. WELSH:   Pass the Witness, your Honor.

 2                      THE COURT:   Mr. Langlois?

 3                       REDIRECT EXAMINATION'

 4    BY MR. LANGLOIS:

 5         Q    Dr. De France, you were questioned by the

 6    prosecution over the issue of who made the decision to

 7    decide, you know, what was going to be presented at trial

 8    and, obviously, you had-- weren't even concerned with what

 9    happened at trial; is that correct?

10         A    That's correct.

11         Q    All your involvement in this case has been

12    post-trial?

13         A    That's correct.      Yes,   sir.

14         Q    Okay.     And you were asked by Mr. Jay Brandon, who

15    was the original Writ lawyer for Mr. Gamboa, to evaluate the

16    executive functioning; is that correct?

17         A    That's right.

18         Q    Okay.     And executive functioning, basically, is a

19    consistent factor,    is it not?

20·        A    It is.

21         Q    Okay.     And it has -- it is a determination of

22    whether or not there is brain damage or brain impairment; is

23    that correct?

24         A    Well, those are separate questions in a way, but

25    we found that -- deficits of executive functioning,     some of


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 1   which could be developmental.            But we found evidence, too,

 2   that it looked like it was actual acquired brain trauma.

 3        Q       And your evaluation established that Dr. Milam

 4   certainly did some thorough testing; is that correct?

 5        A       Yes.     I mean, our -- our testing actually agrees

 6   with hers:     The issue -- the issue is that she -- she didn't

 7   explore some critical areas that should have been explored.

 8        Q       And that was your -- and that was your

 9   determination, that there's other areas, particularly the

10   executive function area, that she did ' not cover in her

11   testing?

12        A       That.     And personality organization --

13        Q       Okay.

14        A       -- and a working memory, yes.

15        Q       And based upon that, that evidence likely would

16   have benefited the jury in making their decision on

17   mitigating factors;       is that correct?

18        A       Yes.

19                        MR. LANGLOIS:   Okay.      No further questions.

20                        THE COURT:   Anything else?

21                        MS. WELSH:   Nothing further,      your'Honor.

22                        THE COURT:   Okay.       Can he be excused to go

23   back to

24                        MS. WELSH:   Yes.
                                               ~
25                        THE COURT:   -- Houston or Maine.


                         ANGIE RANGEL JIMENEZ, CSR
                              (210) 288-0312


76
                                                                Page 115




 1                     THE WITNESS:     I'm going to Houston, sir.

 2                     THE COURT:     Okay.   Doctor, thanks again.     I

 3   appreciate it.

 4        Anything else, Mr. Langlois?        Any other witnesses?

 5                    MR. LANGLOIS:      Not at this time,    judge.

 6                     THE COURT:     Okay.   State?

 7                    MS. WELSH:      Nothing, your Honor.

 8                     THE COURT:     Okay.   Any other evidence I need

 9   to consider?     I know there was some rumblings about an

10   affidavit that was mentioned yesterday.           Do you have another

11   expert that could not be here

12                    MR. LANGLOIS:      Yeah, Dr. Weaver.

13                     THE COURT:     Okay.

14                    MR. LANGLOIS:      At this time,    judge, I'll

15   offer intb evidence -- well, it's evidence -- his

16   affidavit's been submitted with the Writ and ask the Court

17   to consider that-- or, within the Court's power to consider

18   affidavits in the use of findings of fact and conclusions of

19   law, if it becomes applicable.

20                     THE COURT:     Anything from the State?

21                     MS. WELSH:     Yes, your Honor.     The affidavit

22   is attached to the Writ, which simply makes it -- supports

23   the Writ and perhaps gets him in a hearing; however, we are

24   now in a hearing and the affidavit is in violation of the

25   rules of .evidence.    It's hearsay, inadmissible and we object


                      ANGIE RANGEL JIMENEZ, CSR.
                           (210) 288-0312


77
                                                               Page 116




 1   on that basis.

 2                    THE COURT:    Okay.   Let me just ask the

 3   parties real quick:     I understand, at least in a proceeding

 4   like this, that the rules of evidence, typically, apply that

 5   an affidavit, although it's sworn to, would not afford the

 6   opposing side the opportunity to question or cross-examine

 7   the affiant in that matter.

 8         Mr. Langlois, any-- any response to that, that {t's

 9   just been attached to the Writ?

10         I know it's common that affidavits are attached, which

11   kind of gets us into court.

12                    MR. LANGLOIS:    I believe that, while the

13   rules of evidence do apply at the hearing, the judge can

14   also, you know, regulate or have the discretion to allow

15   affidavits and -- and the testimony.

16                     THE COURT:   Okay.

17                    MR. LANGLOIS:    My position is that I think

18   that they are admissible if the judge, you know, allows them

19   to be considered.

20                     THE COURT:   Okay.   Let me just make

21                    MR. LANGLOIS:    Certainly, the State has a

22   right to file an opposing affidavit to his affidavit and

23   they did not.

24                     THE COURT:   Let me just make this ruling on

25   it:   Before we formally rest and close on this, I'll give


                      ANGIE RANGEL JIMENEZ, CSR
                           (210) 288-0312


78
                                                           Page 117




 1   the State the opportunity to file any opposing affidavit, if

 2   they feel it's appropriate.

 3         Alternatively, I think it's already part of the Writ,

 4   so it's there for consideration.     What I will do is e-mail

 5   each of the parties.      If I have any concerns about the

 6   affidavit or any questions about it, I'll advise the

 7   parties.   And if the State, at that time, chooses to file an

 8   opposing affidavit, they can.     Or, rather, than resting and

 9   closing today, if my position is -- is that the affidavit is

10   sufficient for consideration based on the content of it, or

11   my review of any case law that relates to that, I'll advise

12   both parties and just come back and hear what that witness

13   has to say, if, in fact, you want to put him on.

14         So, I' 11 just      I'll let you know within the next few

15   days how I'll proceed on that and then if, for some reason,

16   the State feels like it's appropriate to just file an

17   opposing affidavit, if you'll just let me know how long you

18   need to get somebody to respond to that, I'll give you the

19   .time to do it.

20         I'll have the Court Reporter go ahead and prepare the

21   record, based on everything we have done so far,     and at

22   least we can kind of get things going and you can get your

23   proposed findings of fact and conclusions of law ready, or

24    just anticipate doing those as soon as Angie's done with the

25   record.


                       ANGIE RANGEL JIMENEZ, CSR
                            (210) 288-0312


79
                                                                    Page 118




 1           Let me make it real 6lear on the TDC records,            I don't

2    think this Hearing was about future danger.               It was more

 3   along the lines of merital issues involving the Defendant;

 4   so, those records are being admitted not to establish that

 5   the Defendant is a future danger, but simply to support the

 6   State's position that Dr. De France either reviewed them or,

 7   had he not reviewed them, that the representations made by

 8   the State were accurate in the cross-examination of that

 9   witness, not in supporting any claim that,            in fact,    the

10   Defendant's       a   future danger,   so that the death penalty was

11   valid in this case.

12           Anything else that needs to be brought to my attention,

13   Mr. Langlois?

14                         MR. LANGLOIS:      No.t that I'm aware of at this

15   time,    judge.

16                          THE COURT:   Okay.    All right.   Ms. Welsh?

17                         MS. WELSH:    The prosecution does not present

18   themselves as an expert in any type of neuropsychology,                 just

19   for the record.

20                          THE COURT:   Okay.    So, what I'll do is I'll

21   advise       I'll advise each of the parties, probably

22   within       I may be able to do it tomorrow,         since I had

23   planned to be here tomorrow to just do a little research on

24   the affidavit,         I'll review it.

25           If I'm uncomfortable with the content of it, or if I


                           ANGIE RANGEL JIMENEZ, CSR
                                (210) 288-0312


80
                                                             Page 119




 1   just decide, Hey, it's all fair game, I'll let you know.           If

 2   you want to -- if you want to file an opposing affidavit,

 3   everybody just gets a copy of the e-mail,       just let me know

 4   how long you think you'll take.

 5        If -- if I feel that it's appropriate just to exclude

 6   it and you want to bring in that expert, we can cross that

 7   bridge on another day.

 8        Okay.   Anything else?

 9                   MS. WELSH:    No, your Honor.

10                   THE COURT:    Okay. Mr. Gamboa, do you need to

11   talk to Mr. Langlois for anything?

12                   THE DEFENDANT:    No,    sir.

13                   THE COURT:    Okay.     Take care of yourself.

14        Okay.

15          P R 0 C E E D I N G     C 0 N C L U D E D

16

17

18

19

20

21

22

23

24

25


                    ANGIE RANGEL JIMENEZ, CSR
                         (210) 288-0312


81
                                                        Page 120




 1   THE STATE OF TEXAS

 2   COUNTY OF BEXAR

 3              I, ANGELITA RANGEL JIMENEZ, Certified Shorthand

 4   Reporter in and for the County of Bexar, State of Texas, do

 5   hereby certify that the above and foregoing contains a true

 6   and correct transcription of all portions of evidence and

 7   other proceedings requested in writing by counsel for the

 8   parties to be included in this volume of the Reporter's

 9   Record, in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported by

11   me.

12              I further certify that this Reporter's Record of

13   the proceedings truly and correctly reflects the exhibits,

14   if any, admitted by the respective parties.

15              I further certify that the total cost for the

16   preparation of this Reporter's Record is $ _________ and will

17   be paid by THE STATE OF TEXAS, COUNTY OF BEXAR.

18              WITNESS MY OFFICIAL HAND this the       day of

19   ____________ , 2013.

20
               /s/Angelita Rangel Jimenez
21             Angelita Rangel Jimenez, Texas CSR 6016
               Expiration Date: 12/31/14
22             P.O. Box 680665
               San Antonio, Texas 78268
23             Phone:   (210) 288-0312
               E-mail: . Srradj@sbcglobal.net
24   Court Cause No. 2005-CR-7168A-W1, Ex Parte: J. Gamboa
     Vol. 5 of 6, 4/24/2013
25


                    ANGIE RANGEL JIMENEZ, CSR
                         (210) 288-0312


82
                                                                      •
                                       Certificate
THESTATEOFTEXAS                       *
COUNTY OF BEXAR

       I, Donna Kay M£Kinney, Clerk of the 379TH Judicial District Court, in

and for Bexar County, State of Texas, do hereby certify that the above and foregoing are

true and correct copies of all the proceedings had in the case of .

EX PARTE: GAMBOA, JOSEPH 2005CR7168A-Wl
                                                              I



HONORABLE BERT RICHARDSON PRESIDING the same appear from

the originals now on file and record in this office.

       GIVEN UNDER MY HAND AND SEAL of said Court at office in the City of

San Antonio, Texas, on this the 6TH day of JANUARY, A.D., 2015.


                                                       Donna Kay M£Kinney
                                                       Clerk of the District Courts
                                                       Bexar County, Texas


                                                       By__~r+~~~~~--------
                                                        JAM   . OSlO
                                                        DEP ~ DISTRICT CLERK




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