                                                                                        PD-0124-15
                                                                       COURT OF CRIMINAL APPEALS
                      PD-0124-15                                                        AUSTIN, TEXAS
                                                                      Transmitted 2/5/2015 5:19:12 PM
                                                                        Accepted 2/6/2015 3:34:11 PM
                                                                                         ABEL ACOSTA
                                                                                                 CLERK
         IN THE UNITED STATES COURT OF CRIMINAL APPEALS
                   5TH Court of Appeals Number 05-14-00025-CR
  Trial Court: County Court at Law No 2. 002-80051-3031, Honorable Barnett Walker

                        MELLANNISE HENDERSON

                                PETITIONER

                                         V.
                             THE STATE OF TEXAS
                              RESPONDENT
______________________________________________________________
                 PETITION FOR DISCRETIONARY REVIEW



                        Law Office of Mellannise Henderson-Love, P.L.L.C.

                                      Mellannise Henderson-Love
                                      Attorney for Petitioner State
                                      Bar No. 0079674
                                      3102 Maple Avenue, Suite 400
                                      Dallas, Texas 75201
                                      Tel: (214) 638-8777
                                      Fax: (214) 291-5331




          February 9, 2015
                             IDENTITY OF PARTIES AND COUNSEL
The following constitutes a list of all parties to the trial court's final judgment and the names and
addresses of all trial and appellate counsel:


Petitioner                                            Mellannise Henderson


Petitioner's trial counsel                            Kevin Brooks
Petitioner's appellate counsel                        Mellannise Henderson Love


Respondent                                            The State of Texas


Respondent's trial counsel                            Gregg Willis, District Attorney,
                                                       2100 Bloomdale Road,
                                                       McKinney Texas 75071




Respondent's appellate counsel                         Gregg Willis, District Attorney,
                                                       2100 Bloomdale Road,
                                                        McKinney Texas 75071




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                                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL…………………………………………………………….2
STATEMENT OF JURISDICTION: ................................................................................................... - 4 -
STATEMENT OF THE CASE:................................................................................................................. 5
ISSUE PRESENTED .................................................................................................................................. 6
STATEMENT OF FACTS .......................................................................................................... ……… 6
   SUMMARY OF PETITIONER’S ARGUMENT ……………………………………………………8

   ARGUMENTS AND AUTHORITIES: ............................................................................................... 8

   B. DWI-Applicable Law: ...................................................................................................................... 8

             NO PROBABABLE CUASE TO ARREST: ........................................................................... 13

POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE: ........................................ 14

JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY ................................. ….17

MIRANDA WARNINGS: ........................................................................................................................ 17

CONCLUSION AND PRAYER .............................................................................................................. 20
CERTIFCATE OF COMPLIANCE……………………………………………….. ………………… 20




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TABLE OF AUTHORITIES



Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). ............................................................ 11

Brown v. State, 279 S.W. 837 (1926) ......................................................................................................... 15

Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) .................................................................. 18

Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996) .................................................................... 8

Dowthitt, 931 S.W.2d at 255. .................................................................................................................... 13

Emerson v. State, 880 S.W.2d 759 (Tex. Crim.App. 1994)....................................................................... 9

Greer v. State, 32 S.W.2d 845 (1930);Teel v.. State, 283 S.W. 834 (1924). .............................................. 15

Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.). ......................................... 3,9

Miranda v. Arizona, 384 U.S. 436 (1966) . ......................................................................................... 20

Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), ................................................................. 8

Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993); ................................................... 15

Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993);

Robinson V. State, 102 S.W.2 220 (1937) ................................................................................................. 17

Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981); ...................................................................... 17

Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992 ........................................................ 9

Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). ............................................................. 17

 Statutes and other authorities
Article 38.22, §§ 2(a), 3(a)(1)-(2).............................................................................................................. 13

Tex. Code. Crim. Proc. Ann. art 38.22 (2011)........................................................................................ 13

18 U.S.C. § 3742 and 28 U.S.C. § 1291. ..................................................................................................... 13




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                              STATEMENT OF JURISDICTION:

        This is an appeal from a final judgment from the district court in a criminal case, and

 an order affirming the ruling from the 5th Court of Appeals. Jurisdiction is invoked to the

 Texas Court of Criminal Appeals pursuant to Article V of the Texas Constitution.


                               STATEMENT OF THE CASE:
       This is an appeal from a conviction for the offense of Driving While Intoxicated, a Class

B Misdemeanor, allegedly committed on December 1, 2012. Petitioner, Henderson, hereinafter

(“Henderson”) pled not guilty to committing the offense of driving while intoxicated (DWI). (RR

III 3 pg. 6). After a jury trial, the court sentenced Petitioner to ninety days confinement in the

Collin County Jail and assessed a $ 500 fine. (CR.1, 2). The court suspended imposition of the

sentence and placed Petitioner on twelve- month probation. (RR Vol. 4 39).Petitioner,

Henderson, filed a Notice of Appeal on January 2, 2014, (CR 1). By this appeal, Petitioner

presents the points of error below for the Court’s review.

       1.      Trial court information:
               a. The Fifth Court of Appeals: Opinion by Justice O’Neill.
               b. Information about the trial court: County Court al Law No 3, Collin County
                  Texas
               c. “The trial court rendered a judgment in favor of Defendant”


       2.      Court of appeals information:
               a. The parties in the court of appeals: Mellannnise Henderson v. State of Texas.

               b. The district of the court of appeals: The Fifth District Court of Appeals, Dallas
                  Division).

               c. The names of the justices who decided the appeal: Before Justices O’Neill,
                  Fillmore, and Chief Justice Thomas, Retired. The author of the court’s
                  opinion: Opinion by Justice O’Neill. The Court of Appeals affirmed the trial
                  court’s decision.




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ISSUE PRESENTED



  1. Whether the manner in which the HGN was administered was sufficient to lead

     to probable cause to arrest Petitioner?

  2. Whether the Court erred, when the Jury Charge presented two questions to the

     jury regarding the normal use of the mental faculties and the normal use of

     physical faculties?

  3. Whether the Court erred during Jury deliberations when it allowed the

     prosecution to replay and control the enhancement aspects of the video for the

     jury?

  4. Whether the prosecution controlling the video during jury deliberations was

     tantamount to added evidence?

  5. Whether the jury verdict was against the great weight of the evidence, and

     thereby requiring the conviction to be overturned?

  6. Whether the evidence was factually insufficient to show that Henderson was

     driving while intoxicated?

  7. Whether the case should have been dismissed for failure to Mirandize

     Henderson after she was in police custody?




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                                      STATEMENT OF FACTS

         The facts in this case are not highly disputed. On November 30, 2014, Petitioner, Henderson

left her downtown Dallas office after working late in preparation for a trial starting the following

Monday1. (RR Vol. III pg. 20). After Midnight on December 1, 2012, Officer Corley with the

Richardson Police Department pulled Henderson over for what he states was her “failure to

maintain a single lane.” (RR Vol. III pg. 19). It is undisputed that after seeing the Officer’s

flashing lights, Henderson promptly pulled over, when asked to retrieve her insurance card she

complied and promptly exited the vehicle upon request. After the stop, Henderson explained that

she saw emergency vehicle lights ahead, and was trying to determine if she needed to change lanes.

(RR III 20, 47. 48). (RR Video Part 1) The Officer also corroborates the existence of this

emergency vehicle, as he stated he was in route to assist an officer who was a quarter of a mile

ahead of Henderson. According to both Henderson and the officer- from where Henderson was

stopped, it could not be determined if the emergency vehicle was in the left or the right lane. (RR

III 20, 47, 40). (RR Video Part 1) Officer Corley admits that Henderson responded appropriately

to his strobe lights, and appropriately pulled over. Henderson followed his commands in a normal

fashion, and was respectful to his commands throughout his exchange with her. (RR III 49, 50,

51), (RR Video Part 1). Officer Corley testified that there was no visible swaying by Petitioner

Henderson.

          At the trial, Officer Corley admitted that he administered only one field sobriety test- the

HGN, during the administration of the test the Officer failed to follow some of the basic

requirements for the test in making a determination to arrest Henderson. Namely, Corley admitted,

that according to the National Highway Transportation Safety Administration student manual,



1
    Henderson was in route to her home.

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(NHTSA) one of the requirement for the Horizontal Gaze Nystagmus test (“HGN”) is to make

sure the subject is not facing passing traffic while administering the test- as the headlights going

back and forth could be a distraction for the subject. Notwithstanding this requirement, Corley had

Henderson standing on a two- lane street facing traffic. Second, Corley admits that the NH TSA

student manual states that in order to make a determination if someone is intoxicated, the Officer

should perform all three-field sobriety test. (RR III 53-55). (RR III 20, 47, 40). Notwithstanding

the Officer’s knowledge of the NHTSA manual, and the proper way to administer the test, he

purposefully disregarded the instruction and arrested Henderson for DWI. (RR III 39, 63).

Throughout the trial, there was no testimony that Petitioner did not have normal use of her mental

and physical faculties.

                             SUMMARY OF PETITIONER’S ARGUMENT:

            The court of appeals committed error when it affirmed the trial court’s judgment in favor

of the Respondent. Accordingly, this Court should grant review, and should hold that the evidence

failed to show beyond a reasonable doubt that Petitioner Henderson was driving while intoxicated.

Moreover, other than the Officer’s uncorroborated subjective belief, there was no indication that

Henderson exhibited poor balance, slow comprehension, or any other indicators that she was

intoxicated2. On the other hand, throughout the initial stop, interrogation and the subsequent arrest,

Henderson consistently maintained that she had to urinate, and repeatedly requested of the Officer

for her to use the restroom ( (RR video Part I). Notwithstanding Henderson’s request, she was

repeatedly denied access to a restroom. Henderson then explained that until she used the restroom,

she thought the continuation with the HGN testing could compromise her success. Contrary to the

Officer’s testimony, Henderson never refused field sobriety testing. Lastly, the HGN evidence



2
    Unless the court accepts the admittedly ill performed HGN test.

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relied on to arrest Henderson was admittedly ill performed by the arresting officer. (RR III 20,

39, 40 47). In light of all the evidence presented during the trial, Henderson asserts to this high

Court, that the jury verdict was against the great weight of the evidence, and the conviction

respectfully should be overturned.


                                          I.
                             ARGUMENTS AND AUTHORITIES:
                                 B. DWI-Applicable Law:


         Under Texas law, a person commits DWI “if the person is intoxicated while operating a

motor vehicle in a public place." Tex. Penal Code Ann. § 49.04 (Vernon 2008). A person is

intoxicated if he does not have “the normal use of mental or physical faculties by reason of the

introduction of alcohol ... or any other substance into the body." Tex. Penal Code Ann. § 49.01(2).

Under chapter 49 of the penal code, proof of a culpable mental state is not required for a DWI

conviction. Id. § 49.11; Nelson v. State, 149 S.W.3d 206, 211 (Tex.App.-Fort Worth 2004, no pet.).

However, an essential element of DWI is voluntary intoxication. See Lewis v. State, 951 S.W.2d

235, 237 (Tex.App.-Beaumont 1997, no pet.).

       Because the facts of this case do not support that Henderson was a person who was

intoxicated by not having the “the normal use of mental or physical faculties by reason of the

introduction of alcohol ... or any other substance into the body. (RR III 49, 50, 51), (RR Video Part

1).   Consequently, the verdict in this case, is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust, and in the interest of justice should therefore be

overturned. See Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.).




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                                                     II.
                                 The Officer Wrongly Performed HGN Test:
                     The Verdict was against the Great weight of the Evidence Presented:

             When reviewing the sufficiency of the evidence, the Court views the evidence in the light

most favorable to the verdict to determine whether any rational fact finder could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010) Henderson’s conviction was based on the officer’s testimony and his “administration” of

the Horizontal Gaze Nystagmus Test ( “HGN”). Petitioner contends the conviction should not

stand, because the officer admitted that he improperly administered the test. Notwithstanding the

Officer’s admission, the Appellate court ruled that “Corley’s decision to arrest Petitioner was

made on more than the results of the HGN test.3” The Petitioner contends that the Court of

Appeals was wrong in its finding based on this Court’s reasoning in Emerson v. State, 880 S.W.2d

759 (Tex. Crim. App. 1994).

           This high Court addressed the HGN test in Emerson v. State, 880 S.W.2d 759 (Tex. Crim.

App. 1994). The Emerson Court took judicial notice that the technique employed in the HGN test,

and the theory behind the test are reliable for the purposes of Texas Rule of Evidence 702, and that

the results from administration of the test by a police officer are admissible if the (1) the underlying

scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the

technique must have been applied properly on the occasion in question. Id. In the case at bar, prong

three was compromised to Henderson’s detriment.

           As stated in the Emerson case, the Horizontal Gaze Nystagmus technique is applied

properly when the officer follows the standardized procedures outlined in the Texas Driving While



3
    (Opinion Tab 1 page 7 ).

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Intoxicated Detection Manual published by the National Highway Transportation Safety

Administration. Id. According to the NHTSA Manual, the officer must administer the HGN test

in a well-lit area or by use of a flashlight to illuminate the subject's face. The subject should not4

face toward the blinking lights of a police cruiser or passing cars, which may cause optokinetic

Nystagmus5. According to the NHTSA, after the HGN test is complete, the officer will conduct

the Walk and Turn (“WAT”) test and the One-legged Stand (“OLS”) test. Then the officer will

make the decision to arrest, release or take other action6.

         In the instant case, during officer Corley’s testimony, he admitted that did not administer

the test in accordance with the proper procedure. The officer specifically testified that he did not

administered the HGN test in accordance with his training and the proper procedures; which

essentially could have given a false positive according to the NHTSA7. (RR III 63).

     Under redirect by his own counsel, Corley testifies that:

 Mr. ROLATER Q: And when it comes to the passing lights, why is it that under ideal conditions
you don't have someone face passing traffic when performing the H G N test?

OFFICER CORLEY: A: Under ideal conditions, if the traffic is heavy enough and cars are going
by, the eyes can tend to follow the lights as it goes across. (RR III 63).


Under cross- examination, he testified as follows:

MR. BROOKS Q. What is the N H T S A student manual, officer?

OFFICER CORLEY: A. That is a manual that provides all the instructions to peace officers on
how to perform field sobriety tests.

MR. BROOKS Q. It's basically a peace officer's bible for how to perform field sobriety tests?


4
  Emphasis added by Petitioner.
5
  Optokinetic Nystagmus is evident when an object that the eye fixates upon and objects moves quickly out of sight
or passes quickly through the field of vision, such as occurs when watching utility pools pass by while in a moving
car. 2006 NTHSA manual (defining optokinetic Nystagmus). ( Record Excerpt tab 4)
6
  National Highway Traffic Safety Administration, U.S. Department of Transportation, Psychophysical Tests for
DWI Arrests, (2006 [hereinafter 2006 NHTSA Study].
7 The record also contains the videotape showing the traffic stop and testing process.


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OFFICER CORLEY: A. Yes.

MR. BROOKS Q. And in that -- is that the organization that certifies you to perform the H G N
testing?

OFFICER CORLEY: A. Yes, sir, it is.

MR. BROOKS Q. There are certain things that they ask you to do prior to performing the H G N
test?

OFFICER CORLEY: A. Yes, sir.

MR. BROOKS Q. One of the things they ask you to do is make sure that the subject is not facing
passing traffic?

OFFICER CORLEY: A. Yes, sir.

MR. BROOKS Q. And that's so as to not be a distraction as far as those headlights going back
and forth; correct?

OFFICER CORLEY: A. Yes, sir.

MR. BROOKS Q. To the same extent why you're supposed to take down your strobe lights8?

OFFICER CORLEY: A. Correct.

MR. BROOKS Q. And we know on this video, Ms. Henderson is facing the passing traffic?

OFFICER CORLEY: A. Correct.

 MR. BROOKS Q. And they recommend that in order to make a determination as to whether or
not someone is intoxicated, that you perform all three of those tests?

OFFICER CORLEY: A. Yes, sir. (RR III 53-55).

         According to Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), the results from

administration of the test by a police officer are admissible if the (1) the underlying scientific

theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique

must have been applied properly on the occasion in question.



8
 Officer Corley turned off his headlights but keep on his headlights as the HGN was being performed. (RR CD part
01)

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             In this case, the officer admits that he failed to properly apply the technique in question-

by not following the NHTSA Manual. (RR III 53-55). Petitioner Henderson was harmed because

officer Corley never completed the HGN and did not conduct any further field sobriety tests before

he concluded that Henderson was under the influence of alcohol9. Notwithstanding these facts,

the jury returned a verdict of guilty. The ill preformed manner of the administration of the HGN

resulted in having an injurious effect on Petitioner's substantial rights and had a substantial or

injurious effect on the jury's verdict.

         Based on the evidence above, the guilty verdict in this case, is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the

interest of justice, should be overturned.

                                           III.
                              NO PROBABABLE CUASE TO ARREST:

       The 5th Court of Appeals ruled that probable cause for a warrantless arrest exists if, at the

moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge

and of which he has reasonably trustworthy information are sufficient to warrant a prudent person

as believing that an offense has been or is being committed. Tex. Dep’t of Pub. Safety v. Gilfeather,

293 S.W.3d 875, 880 (Tex. App.—Fort Worth 2009, no pet.) (citing Beck v. Ohio, 379 U.S. 89, 91

(1964). The error in the instant case was the facts were relied on to be trustworthy information.

    If taking the evidence in the light most favorable to the Petitioner, If the HGN was admittedly

flawed by Officer Corley, and he admittedly failed to comply with the NHTSA Manual, then the

probable cause to arrest Henderson was compromised and therefore cannot be based on reasonably



         9
             The HGN was the only test performed by officer Corley.




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trustworthy information. Moreover, to make a full custodial arrest, an officer must have probable

cause to believe the person he is arresting has committed or is committing an offense. See Amores

v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). Probable cause exists where the facts and

circumstances within the officer's knowledge and of which he has reasonably trustworthy

information are sufficient in themselves to warrant a man of reasonable caution in the belief that a

particular person has committed or is committing an offense. Id. at 413.

         Henderson was placed under arrest after an admittedly ill- performed HGN without any

corresponding field sobriety tests. Henderson never said she would not take the test, only that she

needed to use the restroom before she could continue. In the middle of the HGN, she is arrested

according to the officer, after 4 cues of a possible six. (RR III)10 The officer arguably had a

reasonable suspicion to pull Henderson over, but clearly no probable cause to arrest.

         Based on the evidence above, the guilty verdict in this case, is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the

interest of justice, should be overturned.

                             IV. POINT OF RROR: JURY CHARGE:

       The court of Appeals erred in in ruling there was no reversible error when the trial court

allowed two separate questions on the impairment theory of intoxication. In affirming this issue,

the court of appeals appears to have committed an error of law. This high Court should grant

review and correct the lower court’s error.

         A trial judge's charge to the jury must set forth the law applicable to the case. Relying

on Tex. Code Crim. Proc. art. 36.14 (Vernon Supp. 2004), the appellate court has held that a trial




10
  2006 NHTA Manuel defining cues before arrest, up to 3 in one eye with a maximum of six cues. Record Excerpts
Tab 4.

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court is required to fully instruct the jury on the law applicable to the case and to apply that law to

the facts presented. It is not enough for the charge to merely incorporate the allegation in the

charging instrument. Instead, it must also apply the law to the facts adduced at trial. This is because

the jury must be instructed under what circumstances they should convict, or under what

circumstances they should acquit. Jury charges which fail to apply the law to the facts adduced at

trial are erroneous. Tex. Code Crim. Proc. art. 36.14(Vernon Supp. 2004).

         a. The Law Applicable to DWI:

         A person commits the offense of driving while intoxicated if the person is intoxicated while

operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West 2012). The

term "intoxicated" means (1) not having the normal use of mental and physical faculties by reason

of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of

those substances, or any substance into the body, or (2) having an alcohol concentration of 0.08 or

more. Id. § 49.01(2)(A)—(B) (West 2011). Thus, section 49.01(2) provides two alternative

methods for the state to prove intoxication. These are referred to as the impairment theory (loss of

normal use of physical or mental faculties) or the per se theory (alcohol concentration of .08 or

more). See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).

         In the case at bar, there is evidence that the state was able to present two questions to the

jury regarding Henderson’s alleged impairment and normal use of mental and physical faculties.

Essentially, the Court in separating the normal use of mental and physical faculties, and allowing

two separate questions, would alter Tex. Penal Code Ann. §section 49.01(2), to provide for three

alternative methods for the state to prove intoxication, instead of two. The Court’s charge to the

jury read as follows:




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THE COURT: Now, if you find and believe from the evidence beyond a reasonable doubt that on
or about the should read -- "on or about December 1st, 2012, in Collin County, Texas, Mellannise
Henderson did then and there operate a motor vehicle in a public place, while the said

 “Mellannise Henderson was intoxicated by, one, not having the normal use of her mental faculties
by reason of the introduction of alcohol into the body,

 or, two, not having the normal use of her physical faculties by reason of the introduction of alcohol
into the body, then you will find the defendant guilty as charged” (RR Vol.4 pg. 8-9). Presenting
these two questions to the jury was reversible error.

        In addition to the above, the Court initially indicated that no BAC would not be in the question

to the jury but included the language of the BAC in the definition portion of the charge. The Court’s

charge to the jury read as follows:

MR. WILSON: Secondly, Your Honor, the state requests that in the application paragraph, bullet
point number three, since no evidence was presented in regard to an alcohol concentration, we ask
that the alcohol concentration paragraph be removed from the jury charge.

THE COURT: Any objections by the defense?

 MR. BROOKS: Yes, Your Honor. I would object to that. I believe what's in there is following
the statute.

THE COURT: Well, it follows the statute. Why would it be necessary to put in? The jury
couldn't find her -- there's not going to be any evidence, the state having rested and closed,
there's no evidence of an alcohol concentration, so why isn't that just unnecessary language?
(RR Vol 4 pg. 5)

Notwithstanding the above exchange between the Court and Counsel, the Court used the BAC11

in the definition portion of the charge, which read as follows:

"The word intoxicated means not having the normal use of mental or physical faculties by
reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances or any other substance into the body, or
having an alcohol concentration of 0.08 or more of breath. "The term alcohol concentration
as used herein means the number of grams of alcohol per 210 liters (RR Vol 4 pg. 8-9)..

         In this case, the record as a whole shows the trial court's error with the ambiguous jury

instruction caused Petitioner some actual harm by the use of the definition of the BAC. It is well


11
     Blood Alcohol Concentration

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settled, that it is error for the trial court in its charge, to authorize a conviction on a theory that is

not supported by the evidence. See, Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981);See,

also, Ferguson v. State, 2 S.W.3d 718 (Tex. App. - Austin, 1999); Resendez v. State, 860 S.W.2d

605 (Tex. App. - Corpus Christi, 1993. In this case, the BAC instruction was not supported by the

evidence. As such, the err is such to cause harm to the Petitioner, and resulting conviction should

therefore be overturned.




           V. POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE:


         There was error in affirming the decision to allow the prosecutor to control the replay of the

video during jury deliberations. In affirming this issue, the court of appeals appears to have

committed an error of law. This high Court should grant review, and correct the lower court’s

error.

           After the close of the evidence and during jury deliberations, the Court essentially allowed

the prosecution to control the review of evidence requested by the jury. (RR Vol. 4 pg.35). This

is because there was not adequate equipment in the jury room for the jurors to see the replay video.

(RR Vol. 4 g. 35). How this evidence was handled and manipulated was tantamount to additional

or “other evidence.” Under appellate rule 21.3, a defendant must be granted a new trial when

"after retiring to deliberate, the jury has received other evidence." TEX. R. APP. P.

21.3(f). Specifically, the error is evidenced by the following exchange:

THE COURT: “it requires that the prosecutor be here because the technology of this video
allows whoever is playing it to switch microphones and to switch camera views. Sometimes you
can see someone using the camera that shoots outside of the vehicle, sometimes there is a
camera that's inside the vehicle and it can be shot. Someone has to manipulate those options.
The state introduced the video. I’m going to let them play it in same exact manner, same camera
views, and same audio, same microphones as you saw yesterday. Once it's been played, I'll have

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the bailiff go up to you and meet you in the hallway. You can let the bailiff know if there's a
section you need to see again or listen to again and we will bring you back in and let you see it
or hear it as many times as necessary”. (RR Vol. 4 pg. 35)

       The problem with the Court’s account- the court could not control or determine if the

prosecutor played the tape in the exact manner that it was played the day before- switching the

camera and the audio at the exact time, or as the Court suggested “manipulate” the tape as it did

the day before. Any variation in the review of the evidence is tantamount to “other evidence.

Accordingly, appellate rule 21.3, is invoked and the Petitioner must be granted a new trial when

"after retiring to deliberate, the jury has received other evidence.

      Moreover, the Court of appeals erred when it held that the replaying of a video already

admitted into evidence and seen by the jury did not constitute receipt of other evidence for purposes

of Rule 21.3(f) citing Thomison v. State, No. 11-10-00368-CR, 2012 WL 5989193, at *3 (Tex.

App.—Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication). The error here-

what was admitted into evidence was the prosecutor playing the video a specific way, without

any “switched microphones or switched camera views”. There is no way to determine if the tape

was shown in the exact manner originally presented to the jury during the trial, or if as the court

stated- if the prosecutor “switched microphones or switched camera views

         Unfortunately, Petitioner’s counsel failed to object to this issue at trial. However,

Petitioner asserts that courts generally agree that they will consider waived arguments only under

'exceptional circumstances.' Walton v. Mental Health Ass'n, 168 F.3d 661, 670 n.9 (3d Cir. 1999).

In this regard, most courts consider whether failing to address the argument would result in a

manifest injustice and whether the argument involves a purely legal question that can be decided

on the existing factual record. Batiansila v. Advanced Cardiovascular Sys., 952 F.2d 893, 896

(5th Cir. 1992) (stating that it may consider waived argument if a 'miscarriage of justice' would



- 17 - | P a g e
otherwise result and it raises a pure issue of law) with Readco Inc. v. Marine Midland Bank, 81

F.3d 295, 302 (2d Cir. 1996) (stating that it may consider waived argument to avoid 'manifest

injustice' or if argument presents pure issue of law) and Universal Title, 942 F.2d at 1314- 15)

(stating that it may consider waived argument if resolution is 'beyond any doubt,' or if injustice

might otherwise result or if it raises pure issue of law). Petitioner is asking the court to consider

this argument in the interest of justice, in an effort to avoid a miscarriage of justice.


                                  VI.
          JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY


         In reviewing the factual sufficiency of the evidence to support a conviction, the Court is to

view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d

477, 481 (Tex. Crim. App. 2004). The only question to be answered in a factual sufficiency review

is whether, considering the evidence in a neutral light, the fact finder was rationally justified in

finding guilt beyond a reasonable doubt. Id. at 48412.

         In the instant case, the jury verdict was against the great weight of the evidence, and should

be overturned. As argued above, it is undisputed that after seeing officer Corley’s flashing lights,

Henderson promptly pulled over, and promptly and courteously complied with his commands.

(RR Video part 1) After being stopped, Henderson explained to officer Corley that she saw

emergency vehicle lights ahead, and was trying to make a determination if she needed to change

lanes. (RR III 20, 47. 48). The existence of this emergency vehicle is too corroborated by officer

Corley. According to both Henderson and the officer, from where Henderson was stopped, one



12
  The Court of Appeals used the Legal sufficiency standard- Although appellant’s issues challenge the factual
sufficiency of the evidence, we apply only one standard, for legal sufficiency, to evaluate whether the evidence is
sufficient to support a criminal conviction beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex.
Crim. App. 2013).

- 18 - | P a g e
could not determine if the emergency vehicle was in the left or the right lane. (RR III 20, 47, 40).

Officer Corley admits that Henderson responded appropriately to his strobe lights, and

appropriately pulled over. Henderson followed the Officer’s commands in a normal fashion, and

was respectful to his commands throughout his exchange with her. (RR III 49, 50, .51). Officer

Corley further testified that there was no visible swaying by Henderson.

         Notwithstanding the Officer’s knowledge of the NHTSA manual, and the proper way to

administer the test, he purposefully disregarded the instruction and arrested Henderson for DWI.

(RR III 39). Further, there was no testimony outside of the admittedly flawed HGN that Henderson

did not have the normal use of mental or physical faculties by reason of the introduction of alcohol

... To the contrary; the record is void of Henderson’s failure to have the normal use of mental or

physical faculties by reason of the introduction of alcohol...

         Based on the evidence above, the guilty verdict in this case, is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the

interest of justice, should be overturned.

                                                    VII.

                          OFFICER’S FAILURE TO READ HENDERSON

                                        MIRANDA WARNINGS:

          In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court concluded that

during custodial interrogation, a suspect is entitled to the Fifth Amendment right against self-

incrimination and the right to have counsel present during such interrogation. The Court held that

before questioning, a suspect must be informed of these rights.




- 19 - | P a g e
         Whether Defendant Was Entitled to Miranda Warnings

   Petitioner was “in custody” during the questioning and her answers on her willingness to take

a Breathalyzer or a blood specimen (RR Part 1). Miranda protections do not attach unless both the

custody and interrogation prongs are satisfied. Because Petitioner was “in custody” for the

purposes of Miranda, she was entitled to Miranda warnings as a matter of law. Id.

         Based on the above, Petitioner is asking the court to consider this argument, to avoid a

miscarriage of justice.


                                 CONCLUSION AND PRAYER


      Petitioner respectfully prays that because of the errors set forth above Court will reverse and

set aside the conviction herein and remand this case to the trial court for a new trial.

                                CERTIFICATE OF SERVICE
     The undersigned Counsel hereby certifies that on January 31, 2015, a true and correct
 copy of Petitioner’s Initial Brief was served via electronic mail on Collin County District
 Attorney Gregg Willis, 2100 Bloomdale, Counsel for Respondent, McKinney Texas 75071.



                                                /s/ Mellannise Henderson-Love



                               CERTIFCATE OF COMPLIANCE
        Pursuant to TRAP 9.4(i)(1 the undersigned Counsel, hereby certifies that this
 document brief/petition was prepared with Microsoft Word 2013, and that, according to that
 program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 4,488
 words.

                                                /s/Mellannise Henderson-Love




- 20 - | P a g e
                                                                  1
                                                   Master Index
                                           December 2 - 3, 2013


1                           REPORTER'S RECORD
                          VOLUME 1 OF 5 VOLUMES
2                 TRIAL COURT CAUSE NO. 002-80051-2013
                COURT OF APPEALS CASE NO. 05-14-00025-CR
3
     THE STATE OF TEXAS                ) IN THE COUNTY COURT
4                                      )
     VS.                               ) AT LAW NUMBER TWO
5                                      )
     MELLANNISE HENDERSON              ) COLLIN COUNTY, TEXAS
6

7
8           _____________________________________________

9                            MASTER INDEX
            _____________________________________________
10
11

12         On the 2nd and 3rd days of December, 2013, the

13   following proceedings came on to be heard in the
14   above-titled and numbered cause before the Honorable

15   Barnett Walker, Judge Presiding, and a jury, held in

16   McKinney, Collin County, Texas.
17         Proceedings reported by computerized stenotype

18   machine.

19
20

21

22
23

24

25
                                                                2
                                                 Master Index
                                         December 2 - 3, 2013


1                      A P P E A R A N C E S
2    Mr. Justin B. Wilson
     SBOT NO. 24080521
3    Ms. Geeta Yadav Singletary
     SBOT NO. 24060862
4    Office of Greg Willis, District Attorney
     Suite 100
5    2100 Bloomdale Drive
     McKinney TX 75071
6    Telephone: 972-548-4323
     Facsimile: 972-548-3622
7
8                              Attorneys for The State of Texas

9

10   Mr. Kevin Brooks
     SBOT NO. 03070735
11   Attorney at Law
     Suite 2475
12   325 N. Paul
     Dallas TX 75201
13   Telephone: 214-922-0212
     Facsimile: 214-922-0294
14
                                     Attorney for The Defendant
15

16
17

18

19
20

21

22
23

24

25
                                                                  3
                                                   Master Index
                                           December 2 - 3, 2013


1                             VOLUME 1
2                           MASTER INDEX

3                       ----------------------

4                             VOLUME 2
5               Jury Trial - Voir Dire of Jury Panel

6    December 2, 2013

7                                                PAGE   VOL.
8    Pretrial Hearing ............................4     2

9    Court's Remarks to the Jury Panel ...........5     2

10   Jury Voir Dire by Mr. Wilson ...............35     2
11   Jury Voir Dire by Mr. Brooks ...............93     2

12   State Challenge for Cause .................133     2

13   Defendant Challenge for Cause .............135     2
14   Jury Impaneled ............................139     2

15   Jury Sworn by the Court ...................140     2

16   Jury Admonished ...........................141     2
17   Reporter's Certificate ....................144     2

18

19
20

21

22
23

24

25
                                                                        4
                                                         Master Index
                                                 December 2 - 3, 2013


1                                  VOLUME 3
2                            Trial on the Merits

3    December 2, 2013

4                                                     PAGE     VOL.
5    Arraignment .................................6             3

6    Opening Statement by Mr. Wilson .............7            3

7
8    WITNESS:                   DIRECT   CROSS       V. DIRE

9    CLIFTON CORLEY

10     By   Mr.   Wilson        10 v3
       By   Mr.   Brooks                 45 v3
11     By   Mr.   Wilson        60 v3
       By   Mr.   Brooks                 63 v3
12

13                                                    PAGE     VOL.
14   State rests    ...............................66          3

15   Defendant rests       ...........................67       3

16   Both Sides Close ...........................67            3
17   Reporter's Certificate .....................71            3

18

19
20

21

22
23

24

25
                                                                  5
                                                   Master Index
                                           December 2 - 3, 2013


1                            VOLUME 3
2                 ALPHABETICAL INDEX OF WITNESSES

3                        DIRECT    CROSS     V. DIRE

4    Corley, Clifton       10 v3   45 v3
     Corley, Clifton       60 v3   63 v3
5

6

7
8

9

10
11

12

13
14

15

16
17

18

19
20

21

22
23

24

25
                                                                     6
                                                   Master Index
                                           December 2 - 3, 2013


1                              VOLUME 3
2                        INDEX OF EXHIBITS

3                   Use is indicated as follows:
         J - Jury     R - Record Only     D - Demonstrative
4     W/D - Withdrawn    ID - Identification Only    C- Court
5    EXHIBIT     DESCRIPTION              OFFERED   ADMITTED   USE

6    SX 1      DVD                        22 v3      22 v3     J

7    SX 2      DIC 24 form                42 v3      42 v3     J
8

9

10
11

12

13
14

15

16
17

18

19
20

21

22
23

24

25
                                                                7
                                                 Master Index
                                         December 2 - 3, 2013


1                             VOLUME 4
2                       Trial on the Merits

3    December 3, 2013

4                                              PAGE   VOL.
5    Charge Conference ...........................4   4

6    Charge Read to the Jury .....................7   4

7    Closing Statement by Mr. Wilson ............13   4
8    Closing Statement by Mr. Brooks ............18   4

9    Closing Statement by Mr. Wilson ............22   4

10   Jury Note Received .........................29   4
11   Verdict ....................................36    4

12   Punishment Phase ...........................38   4

13   Both Sides Close ...........................39   4
14   Sentencing .................................39    4

15   Reporter's Certificate .....................43   4

16
17

18

19
20

21

22
23

24

25
                                                                  8
                                            State vs. Henderson
                                           December 2 - 3, 2013


1    STATE OF TEXAS     )
2    COUNTY OF COLLIN   )

3

4        I, Marigay Black, Official Court Reporter in and for
5    the County Court at Law Number Two, County of Collin, State

6    of Texas, do hereby certify that the above and foregoing

7    contains a true and correct transcription of all portions
8    of evidence and other proceedings requested in writing by

9    counsel for the parties to be included in this volume of

10   the Reporter's Record in the above-styled and numbered
11   cause, all of which occurred in open court or in chambers

12   and were reported by me.

13       I further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits, if

15   any, offered by the respective parties.

16       Signed this 26th day of March, 2014.
17

18                              /S/   Marigay Black

19                              MARIGAY BLACK, Texas CSR 351
                                Official Court Reporter
20                              County Court at Law Number Two
                                Suite 10344
21                              2100 Bloomdale Road
                                McKinney, Texas 75071
22                              Tel: 972-548-3823
                                FAX: 972-548-3828
23                              Expiration: 12/31/2014
                                mblack@co.collin.tx.us
24

25
                                                                  1
                                                     Jury Trial
                                               December 2, 2013


1                           REPORTER'S RECORD
                          VOLUME 2 OF 5 VOLUMES
2                 TRIAL COURT CAUSE NO. 002-80051-2013
                COURT OF APPEALS CASE NO. 05-14-00025-CR
3
     THE STATE OF TEXAS               ) IN THE COUNTY COURT
4                                     )
     VS.                              ) AT LAW NUMBER TWO
5                                     )
     MELLANNISE HENDERSON             ) COLLIN COUNTY, TEXAS
6

7
8             _____________________________________________

9                               JURY TRIAL
              _____________________________________________
10
11

12         On the 2nd day of December, 2013, the following

13   proceedings came on to be heard in the above-titled and
14   numbered cause before the Honorable Barnett Walker, Judge

15   Presiding, and a jury, held in McKinney, Collin County,

16   Texas.
17         Proceedings reported by computerized stenotype

18   machine.

19
20

21

22
23

24

25
                                                                   2
                                                      Jury Trial
                                                December 2, 2013


1                      A P P E A R A N C E S
2    Mr. Justin B. Wilson
     SBOT NO. 24080521
3    Ms. Geeta Yadav Singletary
     SBOT NO. 24060862
4    Office of Greg Willis, District Attorney
     Suite 100
5    2100 Bloomdale Drive
     McKinney TX 75071
6    Telephone: 972-548-4323
     Facsimile: 972-548-3622
7
8                              Attorneys for The State of Texas

9

10   Mr. Kevin Brooks
     SBOT NO. 03070735
11   Attorney at Law
     Suite 2475
12   325 N. Paul
     Dallas TX 75201
13   Telephone: 214-922-0212
     Facsimile: 214-922-0294
14
                                     Attorney for The Defendant
15

16
17

18

19
20

21

22
23

24

25
                                                                3
                                                   Jury Trial
                                             December 2, 2013


1                             VOLUME 2
2                            Jury Trial

3    December 2, 2013

4                                              PAGE   VOL.
5    Pretrial Hearing ............................4   2

6    Court's Remarks to the Jury Panel ...........5   2

7    Jury Voir Dire by Mr. Wilson ...............35   2
8    Jury Voir Dire by Mr. Brooks ...............93   2

9    State Challenge for Cause .................133   2

10   Defendant Challenge for Cause .............135   2
11   Jury Impaneled ............................139   2

12   Jury Sworn by the Court ...................140   2

13   Jury Admonished ...........................141   2
14   Reporter's Certificate ....................144   2

15

16
17

18

19
20

21

22
23

24

25
                                                                      4
                                                        Jury Trial
                                                  December 2, 2013


1                    (Proceedings occurring in open court,
2                    commencing at 9:32 A M.    Defendant present.)
3                    THE COURT:    Does either side have any

4    motions we need to take up before we bring the panel in?
5                    MR. WILSON:    Not from the state, judge.

6                    MR. BROOKS:    Judge, I had filed some

7    pretrial motions, primarily discovery motions.     I'm going
8    to represent to the court that the state has turned over

9    the copies of the offense reports as well as the video

10   recordings.   I'm not aware of anything else.
11                   THE COURT:    Do you have anything else that

12   you intend to admit other than, you know, like photos or

13   anything of that nature?
14                   MR. WILSON:    No, Your Honor.

15                   THE COURT:    Any reports, supplements?

16                   MR. WILSON:    Everything that we have was
17   given to defense and all we plan to offer are the videos

18   and the D I C 24.

19                   THE COURT:    All right.   And you've received
20   both of those; correct?

21                   MR. BROOKS:    Yes, sir.

22                   THE COURT:    All right.   Fantastic.   Do we
23   have a list yet, bailiff?

24                   THE BAILIFF:   Yes, just received it, judge.

25                   THE COURT:    All right.
                                                                    5
                                                      Jury Trial
                                                December 2, 2013


1                    (Unrelated docket matters heard, after which
2                    the following proceedings were had in open
3                    court.   Jury panel seated.   Defendant
4                    present.)
5                    THE COURT:    Good morning, ladies and

6    gentlemen.   As you enter the courtroom, everyone is

7    standing to pay their respects to you so you may feel free
8    to have a seat.   Thank you.

9                    Everyone else may be seated.

10                   Bailiff, report, please.
11                   THE BAILIFF:    The panel is all present and

12   accounted for, Your Honor.

13                   THE COURT:    Thank you, bailiff.   Good
14   morning, ladies and gentlemen.    Welcome to Collin County

15   Court at Law Number Two.     My name is Barnett Walker, and

16   I'm honored to be your elected judge of this court.
17                   The reason we've asked the 24 of you to come

18   here this morning is we need six of you to sit on the jury

19   and decide the facts in this case.
20                   One of the first questions that I often hear

21   from people is, number one, how long is this going to take?

22   I don't know any more about the case than you do right now.
23   I know the defendant's name, I know what the charge is.

24                   The system is intentionally designed so that

25   I don't know any more than you so I don't start prejudging
                                                                     6
                                                      Jury Trial
                                                December 2, 2013


1    the evidence just as we don't want you to start prejudging
2    it.   But I have asked the attorneys and both sides assure

3    me they believe this case will be concluded today.

4                     So based on that information, is there
5    anyone here who, for some reason or another, cannot give us

6    their undivided attention for the remainder of the day,

7    possibly let's include tomorrow up unto, say,
8    12:00 o'clock?   Anyone have any plane tickets, caring for

9    -- is anyone caring for someone who's sick?    Are you sick

10   yourself?   Do you -- are you the single childcare provider
11   for a child under 12?   Any of those things apply, raise

12   your hand, please.   Okay.   Great.   Thank you.

13                    One of the other questions I get is, Well,
14   if you only need six of us, why are there 24 of us here?

15   In certain cases, people come to jury service and all have

16   had different experiences, life experiences.       Some cases
17   more than others generate emotions.

18                    For instance, this is a D W I trial.    For

19   different reasons, some of you may have very strong
20   feelings about D W I.   That might be because you had

21   someone in your family who struggled with alcoholism, it

22   might be that you know someone or someone you cared for was
23   injured by a drunk driver, and because of that, we need to

24   make sure that whichever people we put on the jury are not

25   encumbered by feelings that would make them lean towards
                                                                         7
                                                         Jury Trial
                                                   December 2, 2013


1    one side or the other.   Does that make sense?
2                  What we're going to do here this morning is

3    called voir dire.   You've taken an oath so far.       And that

4    oath was not to follow the law.    Okay.    You've only taken
5    an oath to be truthful about your feelings and express

6    those feelings.    That's going to become very important

7    because the first six of you on the jury are on the front
8    row right now, beginning with Ms. -- is it Radice?

9                  VENIREPERSON:      Radice.

10                 THE COURT:     Radice.     Ms. Radice.
11   Ms. Radice, all the way to Ms. Stelling-Parker.

12                 VENIREPERSON:      Yes.

13                 THE COURT:     Y'all are the jury.       The six of
14   you right there on the front row.       As time goes on and the

15   lawyers start asking questions, one of them may strike you.

16   Each side is allowed to strike three people.      They can
17   strike you for any reason whatsoever except gender, race

18   and national origin.    Okay?   But if one side hears a

19   response from you and -- that causes them concern, they may
20   decide to strike you.    If they struck one of you, then

21   Kelly Mercer, you would be, sir, on the jury.      And it goes

22   on down the row.
23                 Now, the reason I tell you that is because

24   sometimes people feel a little shunned if they're in the

25   back row and the four of you on the back row because you
                                                                      8
                                                         Jury Trial
                                                   December 2, 2013


1    don't get asked as many questions as, say, the people on
2    the front two rows and I wanted you to understand why that

3    is.   Because eight out of 10 times, the jury is picked

4    within the first 15 or 16.     So, David Christopher, raise
5    your hand?   Everybody to Mr. Christopher's right and

6    everybody on the front row, you're in the splash zone at

7    Sea World.   You're most likely going to get picked.      The
8    people, though, to the left of Mr. Christopher, don't fall

9    asleep.   About one out of every eight or nine times, we

10   don't even get six people with the 24 that are here.      All
11   right.

12                   Is there anyone here that speaks another

13   language besides English?    Carbajal?
14                   VENIREPERSON:    Yes, sir.

15                   THE COURT:   What do you speak?

16                   VENIREPERSON:    Spanish.
17                   THE COURT:   Thank you.     Did I butcher your

18   name?    Did I say your name wrong?

19                   VENIREPERSON:    No, it's right.
20                   THE COURT:   It's correct.    Okay.   Thank you.

21                   Anyone else?    Mr -- is it Noi-Mingle?

22                   VENIREPERSON:    Yes.
23                   THE COURT:   Mr. Noi-Mingle, what languages

24   do you speak?

25                   VENIREPERSON:    It's a local dialect.    Gan.
                                                                       9
                                                       Jury Trial
                                                 December 2, 2013


1                     THE COURT:   I can't hear you.
2                     VENIREPERSON:   It's a local dialect.   Gan.

3                     THE COURT:   Okay.   And the reason I ask that

4    is because, before I became a lawyer, I was in the military
5    for 22 years.   And one of the first things they do is they

6    want to find out if you're someone that can learn a second

7    language quickly.    I took the test.   I was anxious to get
8    the results.    I came back and said, How did I do?   And they

9    said, We're shocked you can even speak English.     You're

10   terrible.   You don't have the gift of hearing those subtle,
11   you know, words.    And so for those of you who speak more

12   than one language, I really, really wish I had that

13   ability.    But I don't know how long you've been speaking
14   English.

15                    When we get through with the process today,

16   if you -- if you have had trouble understanding what was
17   said, let me know.   Okay?    We don't want to put you on a

18   jury if you're having trouble understanding what's taking

19   place.   But if you are able to understand, we would love to
20   have you.   Does that sound fair?

21                    VENIREPERSON:   Yes.   Because I feel like I

22   not understanding a lot of English.     You know, I feel like
23   I understand sometimes a few but it's not 100 percent.       My

24   English is --

25                    THE COURT:   Well, your English is better
                                                                   10
                                                      Jury Trial
                                                December 2, 2013


1    than my Spanish, I'm sure.
2                    VENIREPERSON:   I'm going to try.   If I feel

3    like I'm going to --

4                    THE COURT:   You're the best person to know.
5    So when we're done, before -- before we pick the jury, I'll

6    ask you, Ms. Carbajal, were you able to keep up and

7    understand everything?    And you'll let me know.   And if you
8    are, great; and if you're not, then we'll excuse you.

9                    VENIREPERSON:   Sure.

10                   THE COURT:   Okay?   All right.   Thank you
11   both very much.

12                   Okay.   We're going to go over some things

13   that also causes sometimes people to have some
14   reservations.   I want to explain this to you.    What our

15   goal is is not to exclude you from jury service.     That's

16   not our purpose.    Our purpose is to keep from putting you
17   in a position where we feel like you're going to have to

18   violate your conscious.   Okay?

19                   And by that, I mean, I went to law school
20   with someone who thinks -- and still this day, I run into

21   him and he still feels this way.     He thinks that this

22   country has spent entirely too much money criminalizing the
23   use of marijuana.   And he thinks the marijuana laws are

24   just dumb.   That it causes young people to have a criminal

25   record.   That this smoking marijuana is no different than
                                                                  11
                                                     Jury Trial
                                               December 2, 2013


1    alcohol.   And so if he were called to be on a jury and then
2    the jury will take a second oath and that oath will be that

3    you will follow the laws that I give you.   Okay?   He would

4    have a very difficult time being on a marijuana trial
5    because he believes that law is just retarded.    Okay?

6                    So if he really believed the state proved

7    their case and the person was in possession of marijuana,
8    he would be in a conflict between what he thinks he should

9    do and what he's taken an oath to do.   He would want to

10   find the person not guilty because he thinks the law is
11   unethical and unfair but he took an oath to follow that

12   law.

13                   If you have any conflicts like that, that's
14   what we're just trying to find out from you.   People ask me

15   all the time in social gatherings -- it happened over

16   Thanksgiving -- Hey, you're a judge, how do I get out of
17   jury duty?   I don't know how to tell you to get out of jury

18   duty but I can tell you how to get on the jury.     All right?

19                   Both sides are going to be listening for
20   things that cause them concerns.   If you sit there and

21   you're quiet, welcome to the luxury seats because no one is

22   going to strike you.   Okay?   So this is your time to be
23   honest about how you feel, express yourself, there are no

24   right or wrong answers whatsoever.

25                   Now, this is a criminal case so that means
                                                                     12
                                                        Jury Trial
                                                  December 2, 2013


1    the State of Texas -- and I'll introduce the parties to you
2    in just a moment -- has the 100 percent burden in this

3    case.   That means that they are going to have to prove

4    certain things to you.   Those things are like a checklist
5    of elements that constitute the offense of driving while

6    intoxicated.   And if they do not convince you beyond all

7    reasonable doubt of all of those elements, then you are
8    required to vote not guilty.

9                    Does everyone understand that?

10                   Okay.   Now, here are the parties.   First of
11   all, to the right is my bailiff, Danny Jones.     I've already

12   introduced myself.   I'm Barnett Walker.     The woman to my

13   left is my court reporter, Marigay Black.
14                   Representing the State of Texas today is

15   assistant district attorney, Justin Wilson.

16                   MR. WILSON:   Morning, everybody.
17                   VENIREPERSONS:    Morning.

18                   THE COURT:    Assisting Mr. Wilson is

19   assistant district attorney, Ms. Geeta Singletary.
20                   MS. SINGLETARY:   Good morning.

21                   THE COURT:    The defense attorney in this

22   case is Mr. Kevin Brooks.
23                   MR. BROOKS:   Good morning.

24                   VENIREPERSONS:    Morning.

25                   THE COURT:    Mr. Brooks' client and the
                                                                         13
                                                        Jury Trial
                                                  December 2, 2013


1    defendant in this case is Ms. Mellannise Henderson-Love.
2                     THE DEFENDANT:   Good morning.

3                     VENIREPERSONS:   Good morning.

4                     THE COURT:    Does anyone recognize or know
5    any of the parties that I've just mentioned?

6                     Yes, sir.    Is it Mr. Kendall?    Or, no.

7    Mr. Brown?
8                     VENIREPERSON:    I recognize the bailiff, Your

9    Honor.

10                    THE COURT:    You recognize the bailiff?
11                    VENIREPERSON:    Yeah.

12                    THE COURT:    How do you know him?

13                    VENIREPERSON:    I'm a deputy sheriff in
14   Collin County.

15                    THE COURT:    What do you think about him?

16                    VENIREPERSON:    He's a pretty good egg.
17                    THE COURT:    Is he all right?     Okay.   Good.

18   Anything about the relationship between you and my bailiff

19   that would be unfair to the other side, that cause you to
20   lean one way or the other?

21                    VENIREPERSON:    No, Your Honor.

22                    THE COURT:    Okay.   Thank you.
23                    Anyone else?

24                    Is there any -- now, look to your right and

25   left.    I know it feels kind of funny to stare at someone
                                                                      14
                                                         Jury Trial
                                                   December 2, 2013


1    right next to you.    Look behind you.     Do you recognize
2    anyone else on the panel?

3                      It's not that unusual.    About one out of

4    every six or eight times, we'll have either co-workers,
5    husband and wife, boyfriend/girlfriend, that kind of thing.

6    And that's perfectly fine for those to serve on the same

7    jury provided that you're comfortable arguing with that
8    person.   Okay?   If you're not, then that would be unfair.

9    So I'm glad no one knows anyone.

10                     Now, one of the things that kind of comes up
11   is, you know, it's almost unavoidable, that one of the

12   attorneys, or both, are going to ask you questions that may

13   seem like it's prying into your private life.      They're not
14   trying to embarrass you.       They just want to know a little

15   bit more about you.    If you're asked a question and the

16   answer does apply to you, for instance, Have you or someone
17   in your family ever been, you know, arrested for D W I, if

18   that applies to you, you're required to raise your hand.

19   However, if they say, Well, do you want to talk about the
20   particulars, you are not required to do that in front of 23

21   of your newest friends.    Okay?    You can just say, I don't

22   want to discuss the details of it in public, and we'll
23   bring you back in when it's just the attorneys and myself.

24   Is that fair?     All right.

25                     Who here knows what the Fifth Amendment is,
                                                                       15
                                                        Jury Trial
                                                  December 2, 2013


1    just a basic -- well, that went quick.     Ms. White.    What is
2    it?

3                    VENIREPERSON:   It's the right to due

4    process.
5                    THE COURT:   Close.   That's the Sixth

6    Amendment.

7                    VENIREPERSON:   Fifth.    Yeah.   The due
8    process.   You have your rights and your --

9                    THE COURT:   It falls under the umbrella but

10   what specifically is the Fifth Amendment?
11                   VENIREPERSON:   Well, that's what I thought

12   it was.

13                   THE COURT:   You're within what they call the
14   umbrella level.

15                   Yes, sir.

16                   VENIREPERSON:   You have the right not to
17   incriminate yourself.

18                   THE COURT:   Correct.    Okay.    We have three

19   different types of trials in this country.
20                   We have civil cases.     If you sue someone or

21   they sue you, you can absolutely make them go up on the --

22   up on the witness chair and testify and ask them questions
23   under oath.   If that's the -- that's the civil cases.

24                   Then we have family law cases.      That's

25   generally when there's divorces or C P S is getting
                                                                      16
                                                         Jury Trial
                                                   December 2, 2013


1    involved about whether they're going to take a child out of
2    a home.   Once again, you can put that parent up on the

3    stand, the State of Texas can call that parent, make that

4    parent answer questions under oath.
5                     The only case at trial where you cannot

6    force someone to testify is in a criminal case.      Okay.   So

7    if you're a defendant and you've been accused of a crime,
8    the State of Texas has absolutely no right whatsoever to

9    call you as a witness at your own trial.      That was an

10   amendment to our constitution.
11                    Ms. White, why do you think that our

12   forefathers wanted to give special protection to someone in

13   a criminal case?
14                    VENIREPERSON:   Because when the British were

15   in our country, we didn't have the same rights.

16                    THE COURT:   That's right.   Who knows what
17   the number one fear in America is?     Every year they do a

18   poll and it's number one every time.

19                    VENIREPERSON:   Being accused of something
20   you didn't do.

21                    THE COURT:   Close.   Yes, sir?

22                    VENIREPERSON:   Mr. Jones, the bailiff,
23   earlier stated that he thought it was public speaking.

24                    THE COURT:   Mr. Jones is going to get a

25   beatin' at lunch.
                                                                      17
                                                         Jury Trial
                                                   December 2, 2013


1                    (Laughter)
2                    THE COURT:    Yes.   Thank you, Mr. Jones.

3    Appreciate you.

4                    It is.   It's public speaking.    All right.
5                    And here's the problem and here's the reason

6    why our forefathers said, you know what, whenever there is

7    a criminal case, we are going to give special protection to
8    the person accused for this reason.

9                    Everybody on the front row, get ready with

10   your answer, here's your question:       Suppose that you are
11   sitting in the audience and the person who gets up to speak

12   is extremely nervous.    What would you see or hear that

13   would tell you that that person is nervous?
14                   Ms. Radice?

15                   VENIREPERSON:   Stuttering.

16                   THE COURT:    Stuttering.   Fantastic.
17                   Is it Sbaiti?

18                   VENIREPERSON:   Sbaiti.

19                   THE COURT:    Sbaiti.    Mr. Sbaiti?
20                   VENIREPERSON:   I think they would probably

21   fidget a lot.

22                   THE COURT:    Perfect.
23                   Ms. Simonson.

24                   VENIREPERSON:   Same thing.    They would be

25   shaking a little.
                                                                    18
                                                       Jury Trial
                                                 December 2, 2013


1                    THE COURT:    Tremoring, uh-hum.
2                    What do you think, Mr. Campbell?

3                    VENIREPERSON:   Shaky voice, shaky hands.

4                    THE COURT:    Thank you.
5                    Ms. Walker?

6                    VENIREPERSON:   They're fidgeting, the

7    stuttering, the vibes --
8                    THE COURT:    And what?

9                    VENIREPERSON:   They're pausing in their

10   speech.
11                   THE COURT:    Kind of trying to grasp their

12   next thought?

13                   VENIREPERSON:   Correct.
14                   THE COURT:    What do you think,

15   Ms. Sterling-Parker?

16                   VENIREPERSON:   It's Stelling.      There's no R
17   in it.

18                   THE COURT:    Oh, I'm sorry.

19                   VENIREPERSON:   That's okay.   Normally, I
20   would -- my first thought would be sweaty.

21                   THE COURT:    Sweating.

22                   VENIREPERSON:   Yeah.
23                   THE COURT:    Okay.   Mr. Mercer?

24                   VENIREPERSON:   I would say fidgeting, maybe

25   avoiding eye contact.
                                                                     19
                                                        Jury Trial
                                                  December 2, 2013


1                   THE COURT:    Looking down.   All right.
2                   Is it Byther?

3                   VENIREPERSON:    Byther.

4                   THE COURT:    Mr. Byther?
5                   VENIREPERSON:    Just kind of loss of

6    coherency, just be distracted and nervous obviously.

7                   THE COURT:    In law school, I saw someone get
8    called on, one of the first days of criminal law class, and

9    there's 450 people, and we had a reading assignment and the

10   professor was just drilling this young lady.      She got so
11   nervous, she just threw up.    It was pretty clear that she

12   was nervous.

13                  What do you think, Ms. Carbajal?
14                  VENIREPERSON:    Like I am now?

15                  THE COURT:    Like you are now?

16                  (Laughter.)
17                  THE COURT:    I can't tell if you are.     You're

18   smiling.   Is that a nervous smile?

19                  VENIREPERSON:    Yes.
20                  THE COURT:    Okay.   Ms. White?

21                  VENIREPERSON:    The fidgeting, sweating,

22   avoiding eye contact, everything they were saying.
23                  THE COURT:    And here's the problem.

24   Mr. Cassedy, what are all of those also a sign of?

25                  VENIREPERSON:    Guilt.
                                                                      20
                                                         Jury Trial
                                                   December 2, 2013


1                    THE COURT:   Lying.   Right?
2                    VENIREPERSON:    I didn't do it.

3                    THE COURT:   Yeah.    People start to sweat,

4    they're stuttering, they're fidgeting, they won't look you
5    in the eye, they, you know, start to seem really nervous.

6    Could someone mistake that, Mr. Cassedy, as lying?

7                    VENIREPERSON:    Certainly.
8                    THE COURT:   Okay.    And our forefathers

9    understood that.   They're, like, you know what, we don't

10   want to put someone in a position where their freedom is at
11   stake and they're put on the stand and the jury might see

12   these type of outward signs, and hear the stuttering and

13   the shaking and the loss of concentration and refusal to
14   look them in the eye and think that, oh, that's a sign the

15   person is lying.   So under the rules of our state and under

16   the rules of our constitution, a defendant is never
17   required to testify.

18                   Now, that brings up a problem because my

19   mother is a trial court T V show junkie.       And she loves to
20   watch, and then she'll call and ask me all of these

21   questions.   And she doesn't understand the whole Fifth

22   Amendment, in my opinion.    So I explained it to her just
23   like I explained it to you.     And then she says, I don't

24   think you understand, I understand what you're saying,

25   you're not understanding what I'm saying.
                                                                      21
                                                         Jury Trial
                                                   December 2, 2013


1                    Who here has small children at least two,
2    under the age of 15?   Mr. Sbaiti.    How old are your

3    children?

4                    VENIREPERSON:     Seven months and two
5    and-a-half years.

6                    THE COURT:   I need somebody a little bit

7    older.    Mr. -- is it Kieffer?
8                    VENIREPERSON:     Yes, sir.   My kids are nine

9    and 11.

10                   THE COURT:   Perfect.     The nine-year-old
11   comes in to you and says, Daddy, daddy -- is the 11 boy or

12   girl?

13                   VENIREPERSON:     11 is a girl.
14                   THE COURT:   Daddy, daddy, she hit me.     You

15   bring your 11-year-old daughter in and you say, What did

16   you do, tell me your side of the story.       She says, Father,
17   I do not wish to discuss it.      What do you infer from that?

18                   VENIREPERSON:     I would infer that my

19   nine-year-old is lying because he's the one that would hit
20   her.    I wouldn't think she had done it.

21                   THE COURT:   She denied it; right?

22                   VENIREPERSON:     Yeah.
23                   THE COURT:   That's my mom, like, that's how

24   I raised you three boys and your sister.      I bring you all

25   in, I ask questions, and then I get to the truth.        And what
                                                                     22
                                                        Jury Trial
                                                  December 2, 2013


1    my mom is trying to say is, Look, I get what you're saying,
2    but just because I walk through a door and somebody puts a

3    sign outside that says Collin County Court at Law Number

4    Two, I can't stop being Jan Walker.     I'm 60 some odd years
5    old.    This is how I feel.   If you don't -- you're not

6    guilty, you should be willing to stand up and answer

7    questions.   Okay?   I can't stop the fact that that's how I
8    feel.   Okay.   Just because -- and turn that off just

9    because I walk into a courtroom.

10                    And then I understood.    Okay, for her, she's
11   the type that would say, you know what, I'll get to a

12   mountaintop, rooftop, and shout my innocence.       But she

13   doesn't have a fear of public speaking.     Okay?   What that
14   comes down to is, my mom would be a fantastic juror because

15   she's very fair, she's very thorough, she has great

16   instincts, but she can't sit on a criminal case because she
17   has, honestly -- and we're all required to be honest about

18   it -- said, Listen, if the defendant doesn't get up and

19   testify, it might affect how I decide the case because I
20   feel like innocent people would be willing to testify.

21                    So with that in mind, who's kind of -- on

22   the first row.   We'll go row by row.     Who's kind of like my
23   mother?   If the defendant does not testify, it might -- I'm

24   not saying it would -- but it might affect how you decide a

25   case?   Would you raise your hand.   We'll go one at a time.
                                                                    23
                                                       Jury Trial
                                                 December 2, 2013


1                   Ms. Stelling-Parker.
2                   VENIREPERSON:   Very good.

3                   THE COURT:    Tell me your feelings.

4                   VENIREPERSON:   I understand the not wanting
5    to get up and talk because I'm the same way.     I'll have the

6    nervous hands and all.   But I'm kind of like your mom.       If

7    I haven't done something, I'm going to make sure that
8    everybody around knows it.

9                   THE COURT:    Okay.   Perfect.   Let me come

10   back to you.
11                  Who else?    Mr. -- is it Byther?

12                  VENIREPERSON:   Byther.

13                  THE COURT:    Mr. Byther, tell me your
14   feelings.

15                  VENIREPERSON:   I would be anxious to tell my

16   story, my side of the story.
17                  THE COURT:    Mr. Byther, where were you on

18   August 26th about 4:00 o'clock this year?

19                  VENIREPERSON:   August 26.   I don't remember.
20                  THE COURT:    You don't have any information

21   you can give me?

22                  VENIREPERSON:   No.
23                  THE COURT:    Okay.   I'll come back to you too

24   then.

25                  Who else?    Ms. White, did you have your hand
                                                                    24
                                                       Jury Trial
                                                 December 2, 2013


1    up?
2                    VENIREPERSON:   Yes, I did.

3                    THE COURT:   Okay.    Tell me --

4                    VENIREPERSON:   Well, it's just being a
5    teacher and it's been my experience because kids won't

6    speak because --

7                    THE COURT:   Okay.
8                    VENIREPERSON:   Feel like people don't want

9    to stand up and speak up for themselves, they're hiding

10   something.
11                   THE COURT:   I'm going to give everyone a

12   chance because we're going to go through a couple of

13   scenarios.   If your answers change, now I want to raise my
14   hand, or, hey, I raised my hand before but I want to change

15   my answer, just let me know.

16                   On the second row, if the defendant doesn't
17   testify, could it possibly affect how you decide this case?

18   Raise your hand.   No?   All right.

19                   On the third row, if the defendant doesn't
20   testify, it might cause you to rule one way or the other.

21   Raise your hand.   All right.

22                   Now, I've been both a prosecutor in this
23   county and I've been a defense attorney in this county.     I

24   will tell you that as a defense attorney, I had lots of

25   clients who wanted to testify that I didn't want to
                                                                   25
                                                      Jury Trial
                                                December 2, 2013


1    testify.   Okay?   Because they don't come across very good.
2    I've also had people that I said, You can't go testify

3    because I can't support perjury and you're guilty so you

4    have to sit here and just be quiet.    Okay?   But here's the
5    problem.

6                   On the second row, how do you respond to

7    this?   How does a person who's innocent, how would they
8    act, what would they feel like if they got up here to

9    testify because they've been falsely accused of a crime?

10   How do you think that person with would act, Mr. Cassedy?
11                  VENIREPERSON:   Might be angry.

12                  THE COURT:   Angry.

13                  What do you think, Mr. Lewis?
14                  VENIREPERSON:   I would think they would be

15   nervous that if -- that they might say something that could

16   be misconstrued.
17                  THE COURT:   Okay.    What about Ms. Parker?

18   How would an innocent person who's testifying, how do you

19   think they would act?
20                  VENIREPERSON:   I think they would be angry.

21                  THE COURT:   You think they would be angry.

22   Would you be angry?
23                  VENIREPERSON:   I would be very angry.

24                  THE COURT:   Okay.    Is it Sennett?

25                  VENIREPERSON:   Sennett.
                                                                   26
                                                      Jury Trial
                                                December 2, 2013


1                    THE COURT:   Mr. Sennett, what would you
2    expect them to act like?

3                    VENIREPERSON:   You know, if I was in that

4    situation, I would try to be more composed.     I would think
5    you would want to be composed to kind of show the truth.

6                    THE COURT:   Okay.   So you're kind of

7    confident that in the end, the system is going to work
8    everything out?

9                    VENIREPERSON:   Yeah.

10                   THE COURT:   Perfect.   Mr. Kieffer?
11                   VENIREPERSON:   I would think you would try

12   to act composed but I would think that you would be

13   nervous, I think you would act nervous.
14                   THE COURT:   Okay.   Nervous.

15                   Mr. Christopher.

16                   VENIREPERSON:   I might put myself in that
17   situation.   Underneath certainly would be perturbed, angry,

18   distraught but I agree, I would act as composed as possible

19   and concise and hope that the facts would reveal themselves
20   and the jury sees them.

21                   THE COURT:   Thank you.

22                   Mr. Kendall.
23                   VENIREPERSON:   Well, I think that they would

24   be almost too reserved, afraid to speak if they were

25   falsely -- if they were falsely accused and they're already
                                                                    27
                                                       Jury Trial
                                                 December 2, 2013


1    in that predicament, then I would -- I myself probably
2    would be -- would hold back, afraid that something else was

3    going to go wrong that I didn't expect.

4                   THE COURT:    Okay.   So you're going to -- you
5    would expect to kind of proceed cautiously.

6                   VENIREPERSON:    Right.    Tread lightly.

7                   THE COURT:    All right.   Mr. Brown.
8                   VENIREPERSON:    Your Honor, it could be

9    various, you know, from anger to reservation to being

10   scared.   Could be all the emotions.
11                  THE COURT:    Could run the whole gamut.

12                  Mr. Pate.

13                  VENIREPERSON:    I think someone would be
14   maybe angry, maybe a little bit nervous, maybe passionate

15   about their innocence which may come across as anger.

16                  THE COURT:    Sure.
17                  Is it Burdick?

18                  VENIREPERSON:    Yeah.

19                  THE COURT:    What do you think, Mr. Burdick?
20                  VENIREPERSON:    If it was me, I would be

21   angry that I was up there.

22                  THE COURT:    Why would you be angry?
23                  VENIREPERSON:    Because I knew I was innocent

24   if I knew and I would be argumentative --

25                  THE COURT:    Okay.
                                                                   28
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                                                December 2, 2013


1                   VENIREPERSON:   -- to the person asking
2    certain questions.

3                   THE COURT:   I think I'm kind of like you, I

4    get argumentative if I feel strongly about something
5    sometimes.

6                   Mr. Noi-Mingle, how do you think a person

7    would act?
8                   VENIREPERSON:   Mixed emotions.

9                   THE COURT:   Mixed emotions?

10                  VENIREPERSON:   Yes.
11                  THE COURT:   Mr. Moore?

12                  VENIREPERSON:   I think it would be pretty

13   hard for most people not to be nervous.
14                  THE COURT:   Is it Spruiell?

15                  VENIREPERSON:   Spruiell.

16                  THE COURT:   Spruiell.
17                  VENIREPERSON:   Uh-huh.

18                  THE COURT:   Ms. Spruiell, how do you think

19   an innocent person would react up there?
20                  VENIREPERSON:   Depending on the male or

21   female.   I think a female that was innocent, I mean, I

22   would, I would boo hoo.
23                  THE COURT:   You would cry?

24                  VENIREPERSON:   Oh, yeah.

25                  THE COURT:   I want to come back to that.
                                                                    29
                                                      Jury Trial
                                                December 2, 2013


1    About 12 times I've asked this question and that's the
2    first time someone has said that.

3                  Mr. Fried?

4                  VENIREPERSON:      Freed (phonetic).
5                  THE COURT:    Freed.

6                  VENIREPERSON:      I guess a combination of

7    being angry and being frightened that it might go wrong
8    even though I'm innocent.

9                  THE COURT:    Now, raise your hand if you --

10   if you saw Ms. Fried -- I'm sorry -- Ms. Spruiell on the
11   stand and she was crying, who thinks that that might be

12   because she's guilty?    Yeah.

13                 VENIREPERSON:      That's iffy.    I would
14   probably cry along with her.

15                 THE COURT:    See, therein lies the problem

16   and why I would tell my clients a lot of times, Look, I'm
17   not sure I want you to testify, because people have all

18   types of different images in their mind of what an innocent

19   person would act like.   They want to see you composed
20   because this is going to work itself out.       They want to see

21   you angry because you've been falsely accused.       They're

22   crying.
23                 You know, I don't know how you're going to

24   meet all of these expectations, you know.       And I would tell

25   them, you know, it's just like a doctor/patient
                                                                   30
                                                      Jury Trial
                                                December 2, 2013


1    relationship.   When you're the patient, you're in charge,
2    not the doctor.     But if you go to see a surgeon -- Mr.

3    Pate, let's say you go see a surgeon, he tells you you need

4    surgery.    You might go to get two or three other opinions,
5    but if they all said you needed surgery, you think you

6    might tend to listen to them?

7                     VENIREPERSON:   I think so.
8                     THE COURT:   Same thing with the lawyers.

9    Sometimes the lawyers might say, You know what, I don't

10   want you to testify, you don't come off right, you're too
11   angry, you're too hostile, you're too this, too that,

12   whatever, you're too talkative, that kind of thing.    So

13   sometimes the attorney says, you know, there's just no
14   need.

15                    The State of Texas has the complete burden

16   to prove the case.    By our law, Mr. Brooks and his client
17   can sit here and play Angry Birds, Words With Friends, take

18   a nap, they can do anything they want.    She's done

19   everything she's required to do under the law just by being
20   here.   But for a lot of people like my mom, that's not

21   enough.    You ought to be willing to stand up and defend

22   yourself.   Okay.   The law doesn't require it.   My mom
23   requires it.    That make sense?

24                    We're also going to want to talk to you

25   about your prejudices and biases.    And when I say
                                                                   31
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                                                December 2, 2013


1    prejudices and biases, I'm not talking about racial
2    prejudice or racial bias.    We're talking about things that

3    you really, really like or really dislike.

4                    For instance, I am very biased towards my
5    father.   I love my dad.   We've got a fantastic

6    relationship.   If my dad tells me he caught a bass and it

7    was this big and it was in the river behind the house, then
8    that's it.   I don't need to see the bass, I don't need a

9    witness, I don't need a photograph.    My dad caught a bass,

10   it was that big and it was in the river behind my house.
11                   The State of Texas could come in here, nine

12   of the world's leading oceanographers and say, Bass don't

13   even swim in that river.    That just means dad caught the
14   last one.    Okay?   It doesn't change the fact that I'm going

15   to believe what my father says.

16                   Some people have, not to that degree but to
17   a large degree, they have those kind of feelings about law

18   enforcement because they have people in their families that

19   are law enforcement maybe.    Someone who's in law
20   enforcement has saved their lives or saved someone who's

21   close to their lives.    So we want to talk about that kind

22   of thing.
23                   I'm going to let the attorneys talk to you

24   now.   They're going to take about 30, 45 minutes.   Share

25   your feelings with them.    In between, we're going to take a
                                                                    32
                                                       Jury Trial
                                                 December 2, 2013


1    break.   I'll give you a 15-minute break.   Now here's the
2    rules for the break.

3                   You need to call someone, tell them that

4    you're serving on a jury, or that you're doing jury
5    service, that's fine.   Do not tell them what kind of case

6    this is.

7                   Why do you think I don't want them to know
8    what kind of case this is, Mr. Pate?

9                   VENIREPERSON:   They could possibly tell you

10   something that --
11                  THE COURT:   Let me tell you what I know

12   about D W I.

13                  VENIREPERSON:   Yeah.
14                  THE COURT:   Let me tell you how many drinks

15   you can have before you're drunk.    That kind of thing.

16   Both sides in a case have had -- have equal access to the
17   evidence in the case.   They have witnesses, they've picked

18   the case, they designed their case, can't combat what

19   somebody is telling Mr. Pate over the telephone.    Okay?    So
20   don't tell anybody what kind of case it is.    They're going

21   to want to talk to you and share their wealth of knowledge.

22                  Secondly, do not become a detective on your
23   own.   We had a case where someone used their smartphone to

24   go and check some information out.     The witness said that

25   the road was one way going east and one lane going west,
                                                                      33
                                                      Jury Trial
                                                December 2, 2013


1    and the person on the jury thought that wasn't correct.         So
2    they used Google maps on their phone.    And sure enough, it

3    was two lanes going east, two lanes going west, that person

4    was a liar.
5                     Mr. Christopher, have you seen any

6    construction going on in Collin County?

7                     VENIREPERSON:   Quite a bit.
8                     THE COURT:   At the time of the offense, it

9    was one lane going each way, not any more.      Okay?   So do

10   not go and get your own information.    We'll bring the
11   evidence to you.   That is unacceptable and causes a

12   mistrial.

13                    Also, when you're outside, don't come back
14   in, wait until the bailiff brings you in.       The reason for

15   that is we don't want someone to see us talking to you and

16   wonder what's going on.   We want to keep everything on the
17   up and up.

18                    Please take a good look at where you're

19   seated because you have to sit in those exact same chairs.
20   The reason is both sides are going to take a copious amount

21   of notes.    And it is important that they make sure that

22   they assign those notes to you.
23                    Lastly, we do not have a definition in the

24   State of Texas for what beyond all reasonable doubt means.

25   The attorneys are not going to be able to give you a
                                                                     34
                                                       Jury Trial
                                                 December 2, 2013


1    definition.    They're going to give you what it doesn't
2    mean, that kind of thing.

3                     I can tell you, Ms. Radice, if you're on

4    this jury, it means whatever you say it means.      When
5    there's been enough evidence that you don't have any

6    reasonable doubt left in your mind, then they reached that

7    burden.
8                     Mr. Sbaiti, you may require more evidence

9    than she does.   Ms. Simonson, she may require more evidence

10   than both of you.   It's an individual standard.     But when
11   you don't have any reasonable doubt left, the state has met

12   their burden.    If you do have a reasonable doubt left, they

13   state has not met their burden.     All right?    Any questions
14   before we begin?

15                    All right.    You have to speak -- you're

16   going to be doing voir dire with the state first.      They get
17   to go first.    Please do not talk to -- Mr. Wilson, are you

18   going to do voir dire?

19                    MR. WILSON:    Yes, sir, I am.
20                    THE COURT:    Please don't talk to where just

21   Mr. Wilson can hear.   Okay?    Because I have to hear

22   everything that's said.   Because one side may object and I
23   have to make a ruling.

24                    That brings me to my last point.    For the

25   six of you that are chosen for this jury, we have -- you
                                                                     35
                                                        Jury Trial
                                                  December 2, 2013


1    and I have very different jobs.    You will be listening to
2    the witnesses, you will be examining the evidence, you will

3    be talking and discussing the case with one another when

4    the case is over and trying to decide what evidence is
5    believable, what testimony is believable, that kind of

6    thing.   I will not be up here doing that.    I will not be

7    judging the credibility of the witnesses or examining the
8    evidence.   I will handle all of the legal issues.    When one

9    side objects, I'll decide whether or not that objection

10   should be overruled or sustained.    Okay?   So I'll handle
11   all the legal issues.   That may require that I have you

12   leave the room so that the attorneys can talk freely.      It

13   doesn't make any sense for one side to object to certain
14   evidence and I agree that that evidence should not be

15   admitted and you're sitting in here listening to it.     Does

16   that make sense?
17                  All right.     Thank you.

18                  Mr. Wilson, you have the panel.

19                           JURY VOIR DIRE

20                   MR. WILSON:   Thank you judge.   May I use the

21   projector, please.

22                   THE COURT:    Yes, sir.
23                   MR. WILSON:   Good morning, everybody.

24                   VENIREPERSONS:   Morning.

25                   MR. WILSON:   As the judge introduced me
                                                                   36
                                   Jury Voir Dire by Mr. Wilson



1    earlier, my name is Justin Wilson.    And I have the pleasure
2    of representing the State of Texas today.    And before we --

3    as we're kind of waiting for the projector to come on here,

4    I'm going to start talking to you a little bit about the
5    phases of a trial.

6                    And the first phase that we're in right now

7    is called voir dire.   Voir dire is where I get the
8    opportunity to explain a little bit of the law to you, ask

9    you some questions that hopefully Bailiff Jones has not

10   already given you the answers to.    And then we'll -- then
11   we also get a chance to, I guess, determine who's going to

12   be the best fit for the six people who wind up on our jury.

13                   In addition to that, since I'm going to be
14   asking you some questions that will be somewhat personal

15   later on, I figure it's only fair if I tell you a little

16   bit about myself.
17                   Before going to law school, I was a film

18   professor at Baylor University and taught cinematography,

19   editing classes; moved out to Los Angeles and worked in the
20   film industry out there as an editor and cinematographer

21   for music and music videos and things you've probably never

22   seen or heard of.    And then came back to Texas.   Went to
23   law school.   And here I am today.

24                   So the second phase that we have going on in

25   this process is the trial phase.     And I want to make it
                                                                    37
                                     Jury Voir Dire by Mr. Wilson



1    clear to you that during the trial phase, you are going to
2    be looking at a snapshot in time.      Basically the facts and

3    events that are surrounding the particular event that the

4    defendant has been charged with.    You will not be allowed
5    to consider what happened before that snapshot, or after

6    that snapshot in time.

7                    So, for instance, the defendant could be the
8    nicest person in the world, she could be the meanest person

9    in the world.   Those sort of things don't matter.    What

10   matters is what happened during that particular slice in
11   time.

12                   Punishment.   During the punishment phase,

13   which is the final phase of our process today, if things
14   get to that point, and if the defendant has -- if she winds

15   up electing for the jury to assess punishment, if it gets

16   to that point, then that is a time where sympathy can be
17   considered.   But only during that punishment phase.

18                   So next.   Who here has ever seen somebody

19   drunk before?   Is it Ms. Radice?
20                   VENIREPERSON:   Yes.

21                   MR. WILSON:   Am I saying your name right?

22                   VENIREPERSON:   Yes.
23                   MR. WILSON:   Ms. Radice, have you ever seen

24   somebody drunk before?

25                   VENIREPERSON:   Yes.
                                                                    38
                                     Jury Voir Dire by Mr. Wilson



1                    MR. WILSON:   What did they look like?
2                    VENIREPERSON:   Falling down, sometimes

3    belligerent, red eyes, acting like a fool.

4                    MR. WILSON:   Great answers.
5                    Mr. Sbaiti, you see anything different?

6                    VENIREPERSON:   Yeah.   People can be sort of

7    functionally drunk or they can be dysfunctionally drunk.
8    There's sort of a range.

9                    MR. WILSON:   What do you mean by that,

10   functional versus dysfunctional?
11                   VENIREPERSON:   They may not be falling down

12   but their cognitive decision-making capacities are

13   impaired.   You have to maybe talk to them to realize, okay,
14   this person actually is drunk.    There wouldn't necessarily

15   be -- wouldn't be falling over, incapable of general motor

16   skills.
17                   MR. WILSON:   So you talking about, you would

18   be talking to the person, are you referring to, like,

19   asking them questions, things like that?
20                   VENIREPERSON:   Sure.   Asking them questions

21   or trying to have a conversation.

22                   MR. WILSON:   What would that conversation be
23   like?

24                   VENIREPERSON:   You could pick up that they

25   weren't necessarily all there.
                                                                       39
                                     Jury Voir Dire by Mr. Wilson



1                    MR. WILSON:   Answers to questions might not
2    be quite what you expect?

3                    VENIREPERSON:   Right.

4                    MR. WILSON:   Okay.   And let's see,
5    Ms. Simonson, any other things that you've noticed?

6                    VENIREPERSON:   They could be loud.    Somebody

7    that even from the other side of the room, people would
8    notice or could tell, you know, that they've been drinking

9    a lot.

10                   MR. WILSON:   Otherwise, other than being
11   loud, might you see anything different with their speech?

12                   VENIREPERSON:   Not that I personally have

13   noticed.
14                   MR. WILSON:   Okay.

15                   Well, Mr. Campbell, have you ever noticed

16   anything about a drunk person's speech?
17                   VENIREPERSON:   I haven't personally been

18   involved with someone who's drunk.    But symptoms could be

19   misleading.   Sometimes their mental status because of some
20   accident could make them appear they are intoxicated.        So

21   it's very difficult on outward signs to determine whether

22   someone is drunk or not.
23                   MR. WILSON:   Okay, so an accident.    You

24   mentioned an accident.   What type of -- Are you talking

25   about somebody who sustained a head injury or something
                                                                      40
                                      Jury Voir Dire by Mr. Wilson



1    like that?
2                     VENIREPERSON:   Yeah.    In fact, in the case

3    of doing triage on someone, you're looking for airway,

4    looking for excessive bleeding, you're looking for their
5    mental status.   Their mental status may look like they are

6    intoxicated when it could be because of the accident.

7                     MR. WILSON:   Ms. Stelling-Parker, have you
8    ever noticed anything about a drunk person's speech before?

9                     VENIREPERSON:   Sometimes they're more in

10   control than they look like they really are.      They are
11   making an effort to sound calm and control what they're

12   saying.

13                    MR. WILSON:   Okay.    Well, now, Mr. Sbaiti,
14   going back to what you were saying, we got functional

15   drunks and dysfunctional drunks.       You talked about a

16   dysfunctional drunk being somebody who might not
17   necessarily be falling over, passing out, as Ms. Radice

18   suggested, but someone whose cognitive functions are not

19   normal.
20                    Do we want to wait until that point to make

21   it illegal for somebody to drive?

22                    VENIREPERSON:   Wait until they're falling
23   over?

24                    MR. WILSON:   Well, either falling over --

25   yeah, wait until they're falling over before we say it's
                                                                    41
                                     Jury Voir Dire by Mr. Wilson



1    illegal to drive?
2                    VENIREPERSON:   My understanding of when it's

3    illegal to drive is when there's a certain amount of

4    alcohol in the blood level, not a qualitative analysis of
5    the person's behavior.

6                    MR. WILSON:   Okay.   Well, we're going to

7    come back to that here in a little bit, in a minute.
8                    Mr. Lewis, I notice you shaking your head

9    back there.   Do you think that we should wait until someone

10   is falling down drunk before we make it illegal for them to
11   drive?

12                   VENIREPERSON:   No.   The effect of alcohol

13   can be so -- you know, in the earlier stages of the
14   affectation, you know, people can sort of function but,

15   depending on the amount of alcohol that they've taken in,

16   it's going to start hitting heavier and heavier and heavier
17   and, if they're really beyond legally drunk, you know, it's

18   going to -- it's going to take an effect but it may take a

19   little bit more time.
20                   MR. WILSON:   Exactly.   Exactly.   The main

21   thing is that a person can be -- even when they're that

22   dysfunctional drunk that Mr. Sbaiti is talking about, they
23   can still be dangerous up to that point in time.

24                   So, judge mentioned to you earlier that we

25   as the state have a certain checklist of elements that we
                                                                     42
                                      Jury Voir Dire by Mr. Wilson



1    have to prove to you beyond a reasonable doubt.      Those
2    elements are that this defendant, on or about a certain

3    date, in Collin County, Texas, did operate a motor vehicle,

4    in a public place, while intoxicated.
5                     Now, Mr. Mercer, can you tell from that list

6    we have up there which element is the one we argue about

7    the most?
8                     VENIREPERSON:   I'm going to assume it's the

9    while driving.

10                    MR. WILSON:   Exactly.    While intoxicated.
11   Now, since that is the thing that we argue about the most,

12   the State of Texas has given us not one but three different

13   definitions of what it means to be intoxicated.      This is
14   going to go back to what Mr. Sbaiti was saying.

15                    I'm going to skip ahead here.    Mr. Sbaiti

16   mentioned that the defendant having an alcohol
17   concentration of .08 or greater, that can be read from a

18   person's blood or from their breath.      That's not the only

19   definition that the state is given.       The state has also
20   provided us with definitions that someone does not have the

21   normal use of their mental faculties due to the

22   introduction of alcohol, a drug, a dangerous drug, or some
23   combination thereof into their body.      Or we have another

24   definition:   That the individual does not have the normal

25   use of his or her physical faculties due to the
                                                                   43
                                   Jury Voir Dire by Mr. Wilson



1    introduction of alcohol and so on.
2                  Now, Mr. Mercer, you noticed the

3    conjunctions that we have in between those words, the "or."

4    What does that mean to you?
5                  VENIREPERSON:    That it could be either of

6    the three, either/or of the three.

7                  MR. WILSON:     Exactly.   Exactly.   And that's
8    the great thing about our system, is that you don't have to

9    believe beyond a reasonable doubt that all three of those

10   definitions were, I guess, active in the defendant at the
11   time of the arrest.

12                 What you need to -- what you have to do is

13   believe beyond a reasonable doubt that one of those
14   definitions, at least one of them, apply.    And you don't

15   all have to agree.    So, Ms. Radice and Mr. Sbaiti, if you

16   guys were on the jury, then you might think -- you might
17   believe beyond a reasonable doubt that the defendant did

18   not have the normal use of her mental faculties.     And

19   Ms. Simonson and Mr. Campbell, the two of you might believe
20   beyond a reasonable doubt the defendant did not have the

21   normal use of her physical faculties.    And then Ms. Walker

22   and Ms. Stelling-Parker, the two of you might believe
23   beyond a reasonable doubt that the alcohol concentration

24   was a .08 or higher.   As long as whichever six of you wind

25   up in the jury box believe beyond a reasonable doubt that
                                                                      44
                                      Jury Voir Dire by Mr. Wilson



1    at least one of those definitions applies, then the state
2    is entitled to a guilty verdict.

3                    So some key things that we've been talking

4    about in these definitions, we want to go over a little
5    bit.   So you heard mental and physical faculties.     Let's

6    see here.

7                    Mr. Byther, what would you say would be an
8    example of a mental faculty?

9                     VENIREPERSON:   Judgment.   Speed that

10   somebody is driving, the way they're driving, watching for
11   the other people, things like that.     Normal activities that

12   you engage in in the process of driving a motor vehicle.

13                    MR. WILSON:   Okay.   So if you're talking
14   about the way somebody is driving in relation to other

15   people, you're talking about how their cognitive skills are

16   working.    Maybe how they are processing the speed of other
17   cars around them.   Their reaction time.     Would that be fair

18   to say?    That reaction time would be a big mental faculty?

19                    VENIREPERSON:   I would say yes.
20                    MR. WILSON:   Let's see.    Ms. Carbajal, how

21   about someone's ability to follow instructions, would that

22   be a mental faculty?
23                    VENIREPERSON:   If they are driving with

24   alcohol, I don't think they will be able to respond because

25   they are slow, they move slow, they are not -- I don't know
                                                                   45
                                    Jury Voir Dire by Mr. Wilson



1    how to explain.
2                  MR. WILSON:     Well, it kind of all ties into

3    that slowed reaction time --

4                  VENIREPERSON:    Yes.
5                  MR. WILSON:     -- that we were talking about?

6    Right.

7                  VENIREPERSON:    Yes.    And from my opinion, I
8    have a son and I have a husband and always telling them,

9    don't drive, I'm always thinking about them, they haven't

10   done but at the same time they -- you know, they -- by
11   themselves, they are not safe and there are others going

12   on.

13                 MR. WILSON:     And then they might have to
14   come see me and nobody wants to do that.

15                 Well, now, Ms. White, what do you think

16   about someone about following directions and how that would
17   play into mental faculties?

18                 VENIREPERSON:    Under the influence of

19   alcohol?
20                 MR. WILSON:     Yes.

21                 VENIREPERSON:    Usually they can't follow the

22   directions as well and the responses might be slower.
23                 MR. WILSON:     Right.   Communication

24   difficulties, that kind of thing?

25                 VENIREPERSON:    Right.
                                                                     46
                                      Jury Voir Dire by Mr. Wilson



1                     MR. WILSON:   Okay.    Now let's talk about
2    some examples of some physical faculties.

3                     Mr. Cassedy, anything you have in mind about

4    physical faculties?   What would be an example?
5                     VENIREPERSON:   We talked about extreme, you

6    know, maybe stumbling, falling down.

7                     MR. WILSON:   Right.   How about something
8    that's not so extreme?

9                     VENIREPERSON:   I think your reaction time

10   example is probably another physical symptom.
11                    MR. WILSON:   So like fine motor skills, for

12   instance?   How about being able to manipulate your fingers

13   with control, whether you're trying to reach for things or
14   going -- trying to handle small objects?      Would that be

15   one?

16                    VENIREPERSON:   It's possible.
17                    MR. WILSON:   How about placing your foot,

18   moving your foot from the accelerator to the brake pedal,

19   would that be a physical coordinated movement?
20                    VENIREPERSON:   Entirely possible.

21                    MR. WILSON:   All right.   Another term that

22   came up in our discussion of these definitions is the idea
23   of normal use.

24                    One thing that you all need to understand

25   very clearly is that when we talk about normal use, we are
                                                                  47
                                  Jury Voir Dire by Mr. Wilson



1    not talking about what is normal for this individual
2    defendant.   It would be impractical for every police

3    officer out on the streets to know exactly what is normal

4    for each individual based on, you know, our athletic
5    ability or overall sense of balance or ability to

6    communicate.   What we do is instead we apply a standard of

7    the average non-intoxicated person.
8                    So seeing how it's probably around 10:00 in

9    the morning, something like that, I'm assuming that none of

10   you guys are intoxicated right now.    So all of you would
11   collectively be the average non-intoxicated person.     So

12   what is normal for you in regard to your mental faculties

13   and your physical faculties is the standard that you will
14   apply to the defendant.

15                   Another thing to talk about is what is drunk

16   versus intoxicated.   We've been kind of putting out those
17   two terms a little bit this morning.   And as you know, the

18   State of Texas has given us the three different definitions

19   of intoxication.   But we don't exactly have a definition of
20   drunk.   So one thing you can think about is, let's say

21   right here where I'm standing, if this beam right here

22   represents a spectrum, from me being completely sober, not
23   having had a drop of alcohol, to here, if I walk down to

24   the other end, this is going to be the, I'm stumbling down,

25   you know, on the verge of passing out drunk like Ms. Radice
                                                                     48
                                      Jury Voir Dire by Mr. Wilson



1    suggested.    Now, if I come to around, say, right here, I
2    place my pen right here.   This is the demarcation saying

3    that this is the last sip of alcoholic I can have and still

4    maintain the normal use of my mental and physical
5    faculties.

6                     Now, Mr. Mercer, how many steps can I go

7    beyond this point before I'm legally intoxicated?
8                     VENIREPERSON:   Well, as you pointed out, it

9    depends on the person.

10                    MR. WILSON:   Well, let's just say that we're
11   talking about the average non-intoxicated person.     And this

12   is -- as the average non-intoxicated person, this is the

13   point where, you know, he or she can, last sip of alcohol,
14   still maintain those normal mental and physical faculties.

15   So what would happen if I take that one more sip?     And I no

16   longer have the normal use of my mental and physical
17   faculties?    I would be intoxicated, right, by the

18   definition --

19                    VENIREPERSON:   I suppose so-- by the
20   definition.

21                    MR. WILSON:   Yes.

22                    VENIREPERSON:   You would be intoxicated,
23   yes.

24                    MR. WILSON:   So in the State of Texas, as

25   long as I take -- if I take one step past this point of
                                                                  49
                                   Jury Voir Dire by Mr. Wilson



1    having the normal use of my mental and physical faculties,
2    then I'm intoxicated.   It may not be how you define drunk,

3    you know, drunk can be anything, however you choose to

4    define it, but at this point, I am now legally intoxicated.
5                  Here's an example for you.   Think about it.

6    Let's say that after jury selection is done, let's say that

7    Ms. White, Ms. Carbajal and Mr. Byther, the three of you
8    don't make it on the jury.   And you are so excited about

9    not having to spend the day on jury duty, that you go out

10   to happy hour, let's say you go to Gloria's down the road,
11   and you stop off at Gloria's, and you have some food, you

12   have some drinks.

13                 And maybe, Ms. White, when the bill comes
14   out and it's time for you to calculate up the tip, it's

15   taking you a little bit longer to do those calculations

16   than you normally might.   And you are looking all over the
17   place for your keys, you can't find them anywhere.   And

18   they've been in your pocket the whole time.   The whole time

19   you've been in there, they are in your pocket.
20                 Ms. Carbajal, let's say when you stand up

21   from the table, you know, you're a little bit -- a little

22   bit tipsy on your feet, balance isn't quite so good.
23                 And, Mr. Byther, let's say you are so

24   excited about not having to spend your day on this jury

25   that you just go crazy and you become the one who is
                                                                    50
                                     Jury Voir Dire by Mr. Wilson



1    stumbling, about to be passed out on the floor.
2                    Now, Mr. Mercer, you have a couple of young

3    children; correct?

4                    VENIREPERSON:   Yes.
5                    MR. WILSON:   Which, if any, of your three

6    fellow perspective jurors do you want driving your young

7    children back home or to wherever they might be?
8                    VENIREPERSON:   None of them.

9                    MR. WILSON:   None of them.   Because they are

10   all intoxicated in one shape or form.
11                   So let's talk about driving.

12                   Ms. Parker, what are some of the things that

13   you're thinking about when you're driving?
14                   VENIREPERSON:   Usually just watching the

15   signs and thinking where I need to go and watching the

16   street signs.
17                   MR. WILSON:   Okay.    So watching signs and

18   thinking where you need to go.    Are you looking at the cars

19   around you at all?
20                   VENIREPERSON:   Yeah.

21                   MR. WILSON:   Are there -- you know,

22   sometimes if you're on the freeway and traffic is moving
23   real fast, you have to watch out for that time would come

24   where you come up and everybody is now dead stopped on the

25   freeway and you have to hit your brakes fast.
                                                                     51
                                      Jury Voir Dire by Mr. Wilson



1                     Did you see any construction on your way to
2    the courthouse this morning?

3                     VENIREPERSON:   Yes.

4                     MR. WILSON:   So you have to watch out for
5    construction workers, for --

6                     VENIREPERSON:   Construction, people to the

7    left, people to the right, to have to just stay off the
8    zones and just concentrate.

9                     MR. WILSON:   Right.   So there's a lot of

10   things going on.   It's a divided attention task.
11                    Now, has anyone ever here -- let's see,

12   Mr. Kieffer, have you ever barely avoided a car accident

13   before?
14                    VENIREPERSON:   Yes.

15                    MR. WILSON:   And tell us about that, one of

16   those times.
17                    VENIREPERSON:   Just driving and not paying

18   attention and, you know, somebody stops or there's a car

19   and you're on a two-lane road, somebody is turning left and
20   there's a car in front of you, that person passes on the

21   median and that guy stops right in front of you.

22                    MR. WILSON:   Right.
23                    VENIREPERSON:   You're going the speed limit

24   but you have a little bit of time to react, just enough to

25   swerve around.
                                                                    52
                                     Jury Voir Dire by Mr. Wilson



1                    MR. WILSON:   So you mentioned a little bit
2    of time to react.   Like you had to make a split second

3    decision.   Well, what if that split second decision turns

4    into something more like (Snaps fingers twice), you think
5    you would have avoided that accident?

6                    VENIREPERSON:   No.   I wouldn't have been

7    able to put the brakes on fast enough nor swerve fast
8    enough.

9                    MR. WILSON:   Exactly.   And that's the whole

10   purpose of D W I laws.   In the State of Texas, we want
11   people -- when people are using our roads, we want them to

12   be bringing their A game because we want to make sure that

13   reaction time, things like that, are safe for everybody
14   else that's on the road.

15                   So now we've kind of been talking about the

16   law.   Getting you guys up to speed on that.   But now it's
17   the time for the personal questions.

18                   So, first off, I got this scale up on the

19   board right now.    And we would like to know about your
20   drinking habits.    You can think of, you know, zero for not

21   at all.   One, I know it says, one, a couple of times a

22   month, but maybe you think about yourself like one meaning
23   that you -- maybe you go out on a weekend or something, you

24   just have some drinks every now and again.

25                   Two, for people who have, maybe, you know,
                                                                  53
                                   Jury Voir Dire by Mr. Wilson



1    it could be anywhere from glass of wine with dinner on a
2    consistent basis to, you know, you're going out pretty

3    regularly during the week, having some drinks.

4                  So, Ms. Radice, how would you rate yourself?
5                  VENIREPERSON:   A one.

6                  MR. WILSON:    All right.   Mr. Sbaiti?

7                  VENIREPERSON:   One.
8                  MR. WILSON:    Ms. Simonson?

9                  VENIREPERSON:   One.

10                 MR. WILSON:    Mr. Campbell?
11                 VENIREPERSON:   .5.

12                 MR. WILSON:    .5.    Fractions are acceptable.

13                 Ms. Walker.
14                 VENIREPERSON:   Two.

15                 MR. WILSON:    Ms. Stelling-Parker?

16                 VENIREPERSON:   I'm a .5.
17                 MR. WILSON:    .5, all right.

18                 Mr. Mercer.

19                 VENIREPERSON:   One.
20                 MR. WILSON:    One.   Anybody here for .75?

21   Mr. Byther?

22                 VENIREPERSON:   I would be a three.
23                 MR. WILSON:    Three.   All right.   You can

24   exceed the scale too if you would like.

25                 Let's see.    Ms. Carbajal?
                                                                  54
                                   Jury Voir Dire by Mr. Wilson



1                  VENIREPERSON:   Very little.
2                  MR. WILSON:   We'll call you a .25.   How

3    about that?

4                  Ms. White?
5                  VENIREPERSON:   .25.

6                  MR. WILSON:   All right.    Mr. Burdick?

7                  VENIREPERSON:   Two.
8                  MR. WILSON:   Two.

9                  Mr. Pate?

10                 VENIREPERSON:   Two.
11                 MR. WILSON:   Mr. Brown?

12                 VENIREPERSON:   Two.

13                 MR. WILSON:   Let's see.    Mr. Kendall.
14                 VENIREPERSON:   A zero.

15                 MR. WILSON:   Mr. Christopher?

16                 VENIREPERSON:   Zero these days.
17                 MR. WILSON:   Mr. Kieffer.

18                 VENIREPERSON:   One.

19                 MR. WILSON:   A one?
20                 VENIREPERSON:   Uh-hum.

21                 MR. WILSON:   Okay.    Mr. Sennett?

22                 VENIREPERSON:   One.
23                 MR. WILSON:   Ms. Parker?

24                 VENIREPERSON:   Zero.

25                 MR. WILSON:   Zero.
                                                                     55
                                      Jury Voir Dire by Mr. Wilson



1                     Mr. Lewis?
2                     VENIREPERSON:   .5.

3                     MR. WILSON:   And Mr. Cassedy?

4                     VENIREPERSON:   Two.
5                     MR. WILSON:   Mr. Noi-Mingle?

6                     VENIREPERSON:   .5.

7                     MR. WILSON:   Mr. Moore?
8                     VENIREPERSON:   Zero.

9                     MR. WILSON:   Ms. Spruiell?

10                    VENIREPERSON:   .5.
11                    MR. WILSON:   And Mr. Fried?

12                    VENIREPERSON:   One with an asterisk by

13   definition, no more than twice a month.
14                    MR. WILSON:   Okay.    Now, for my next

15   question here.   Do you think that D W I is a problem in our

16   society?
17                    Zero, not at all.     One, that it's a moderate

18   problem.    And two, that you think it's -- that D W I is a

19   serious problem in our society.
20                    Ms. Radice?

21                    VENIREPERSON:   One.

22                    MR. WILSON:   One.
23                    Mr. Sbaiti?

24                    VENIREPERSON:   I didn't understand the

25   question.   It's asking whether it's a problem when it
                                                                    56
                                     Jury Voir Dire by Mr. Wilson



1    happens or is it happening too often?
2                    MR. WILSON:   Well, the thing about it, just

3    in general, do you think that -- you can think of it that

4    way or people -- do we have too many people driving while
5    intoxicated?   Is it -- is our -- do our laws keep D W I

6    under control adequately, or is this something that we need

7    to address more seriously?
8                    VENIREPERSON:   I would say I'm a .5 then.

9                    MR. WILSON:   Okay.    Ms. Simonson.

10                   VENIREPERSON:   One.
11                   MR. WILSON:   One.

12                   Mr. Campbell?

13                   VENIREPERSON:   Two.
14                   MR. WILSON:   Ms. Walker?

15                   VENIREPERSON:   One.

16                   MR. WILSON:   Ms. Stelling-Parker?
17                   VENIREPERSON:   Two.

18                   MR. WILSON:   Mr. Mercer?

19                   VENIREPERSON:   One.
20                   MR. WILSON:   Mr. Byther?

21                   VENIREPERSON:   Two.

22                   MR. WILSON:   Ms. Carbajal?
23                   VENIREPERSON:   Two.

24                   MR. WILSON:   Ms. White?

25                   VENIREPERSON:   Two.
                                                    57
                     Jury Voir Dire by Mr. Wilson



1    MR. WILSON:   Mr. Burdick?
2    VENIREPERSON:   One.

3    MR. WILSON:   Mr. Pate?

4    VENIREPERSON:   Two.
5    MR. WILSON:   Mr. Brown?

6    VENIREPERSON:   One.

7    MR. WILSON:   Mr. Kendall?
8    VENIREPERSON:   One.

9    MR. WILSON:   Mr. Christopher?

10   VENIREPERSON:   One.
11   MR. WILSON:   Mr. Kieffer?

12   VENIREPERSON:   Two.

13   MR. WILSON:   Mr. Sennett?
14   VENIREPERSON:   One.

15   MR. WILSON:   Ms. Parker?

16   VENIREPERSON:   Two.
17   MR. WILSON:   Mr. Lewis?

18   VENIREPERSON:   Two.

19   MR. WILSON:   Mr. Cassedy?
20   VENIREPERSON:   One.

21   MR. WILSON:   Mr. Noi-Mingle?

22   VENIREPERSON:   One.
23   MR. WILSON:   Mr. Moore?

24   VENIREPERSON:   Three.

25   MR. WILSON:   Ms. Spruiell?
                                                                   58
                                   Jury Voir Dire by Mr. Wilson



1                  VENIREPERSON:    Two.
2                  MR. WILSON:    And Mr. Fried?

3                  VENIREPERSON:    Two.

4                  MR. WILSON:    Okay.    So here's one that's
5    probably one of the more personal questions we'll ask.

6                  Has anyone here -- I'm just going to start

7    on the first row.   Anyone here have your life impacted
8    somehow by a drunk driver?

9                  Ms. White.

10                 VENIREPERSON:    Yes.
11                 MR. WILSON:    What happened with you?

12                 VENIREPERSON:    It was a friend of mine from

13   high school was driving drunk and was killed in the
14   accident.

15                 THE COURT:     I'm sorry, ma'am.   I can't hear

16   you.
17                 VENIREPERSON:    I'm sorry.   A friend of mine

18   was driving drunk and he died -- he wrecked his car and

19   died.
20                 MR. WILSON:    I'm sorry to hear that.   But

21   thank you -- thank you for sharing and being honest with

22   us.
23                 Mr. Sbaiti, were you going to raise your

24   hand?

25                 VENIREPERSON:    I did raise my hand.    High
                                                                     59
                                     Jury Voir Dire by Mr. Wilson



1    school class mate of mine killed in a drunk driving
2    accident.   She was not the drunk or the driver.     But I've

3    also defended a couple of dozen D U I cases in Dallas

4    courts so I've been on the other side of that.
5                    THE COURT:    I'm sorry.   You did what, sir?

6                    VENIREPERSON:   Defended a couple of dozen D

7    U I cases in trial.
8                    THE COURT:    Are you an attorney?

9                    VENIREPERSON:   Yes, sir.

10                   THE COURT:    Thank you.
11                   MR. WILSON:   All right.    Thank you for

12   sharing that with us.

13                  Ms. Simonson.
14                   VENIREPERSON:   I had a cousin and also a

15   niece that died because of a D W I.

16                   MR. WILSON:   Well, again, I'm sorry, very
17   sorry, to hear that.    I feel bad, I know when I say I'm

18   sorry to hear it, I know that it's kind of hard to really

19   adequately express and address how serious these incidents
20   impact your life.   I just want you to know I'm not trying

21   to come off as insincere or flippant or anything like that

22   but I do really appreciate the gravity of what happened and
23   also am very sorry for the things that happened in your

24   lives.   Thank you for sharing.

25                  Anybody else on the front row?
                                                                  60
                                   Jury Voir Dire by Mr. Wilson



1                  Second row?    Mr. Kieffer?
2                  VENIREPERSON:    One of my friends at college

3    and I were going back from a bar in Fort Worth and he got

4    pulled over for D U I.   Totaled the car.
5                  MR. WILSON:    Any other, I guess, result

6    other than getting pulled over?

7                  VENIREPERSON:    He went to trial and did all
8    of his stuff, you know, cost him a lot of money, and I got

9    an M I P.

10                 MR. WILSON:    Okay.    And then, let's say,
11   anybody else on the second row here?

12                 Anybody on the back row?      Okay.

13                 Well, thank you all for sharing your stories
14   with me.

15                 Next question I've got is kind of on our

16   same scale pattern here.   How do you feel about the D W I
17   laws?

18                 Do you think they are either zero, that the

19   laws are too strict; two, that they're not strict enough;
20   or, one, that they're just right?

21                 Ms. Radice.

22                 VENIREPERSON:    One.
23                 MR. WILSON:    Mr. Sbaiti?

24                 VENIREPERSON:    One.

25                 MR. WILSON:    Ms. Simonson?
                                                                   61
                                    Jury Voir Dire by Mr. Wilson



1                   VENIREPERSON:   One.
2                   MR. WILSON:   Mr. Campbell?

3                   VENIREPERSON:   Two.

4                   MR. WILSON:   Ms. Walker?
5                   VENIREPERSON:   One.

6                   MR. WILSON:   Ms. Stelling-Parker.

7                   VENIREPERSON:   Two.
8                   MR. WILSON:   Mr. Mercer?

9                   VENIREPERSON:   One.

10                  MR. WILSON:   Mr. Byther?
11                  VENIREPERSON:   It's really two questions

12   there.   I think that the net to me, it seems like it's a

13   little bit excessive.   The severity, though, when people
14   are repeat offenders and all of that stuff, I think it's a

15   terrible problem.    And I don't think that those instances

16   are strict enough.
17                  MR. WILSON:   All right.    Thank you.

18                  Ms. Carbajal.

19                  VENIREPERSON:   One.
20                  MR. WILSON:   All right.    Ms. White.

21                  VENIREPERSON:   I'm a one.

22                  MR. WILSON:   And Mr. Burdick?
23                  VENIREPERSON:   A one.

24                  MR. BROOKS:   Counsel.   I didn't hear

25   Ms. White.
                                                                 62
                                  Jury Voir Dire by Mr. Wilson



1                 VENIREPERSON:   I'm sorry.   I need to speak
2    up.   One.

3                 MR. WILSON:   And, Mr. Burdick, you said one?

4                 VENIREPERSON:   Yeah.
5                 MR. WILSON:   Mr. Pate?

6                 VENIREPERSON:   One.

7                 MR. WILSON:   Mr. Brown?
8                 VENIREPERSON:   One.

9                 MR. WILSON:   Mr. Kendall?

10                VENIREPERSON:   One.
11                MR. WILSON:   Mr. Christopher?

12                VENIREPERSON:   One.

13                MR. WILSON:   Mr. Kieffer?
14                VENIREPERSON:   One.

15                MR. WILSON:   Mr. Sennett?

16                VENIREPERSON:   One.
17                MR. WILSON:   Ms. Parker?

18                VENIREPERSON:   One.

19                MR. WILSON:   Ms. Lewis?
20                VENIREPERSON:   Two, especially for repeat

21   offenders.

22                MR. WILSON:   Okay.    Mr. Cassedy?
23                VENIREPERSON:   One.

24                MR. WILSON:   Mr. Noi-Mingle?

25                VENIREPERSON:   One.
                                                                  63
                                   Jury Voir Dire by Mr. Wilson



1                  MR. WILSON:   Mr. Moore?
2                  VENIREPERSON:   Two.

3                  MR. WILSON:   Ms. Spruiell?

4                  VENIREPERSON:   Two.
5                  MR. WILSON:   And Mr. Fried?

6                  VENIREPERSON:   One.

7                  MR. WILSON:   Okay.    All right.   And this is
8    probably the most invasive of our questions.

9                  Has anyone here -- I'll go row by row again.

10   Anyone on the first row ever been arrested, charged or
11   convicted of a D W I?

12                 Ms. Walker.

13                 VENIREPERSON:   (Indicating.)
14                 MR. WILSON:   And so was yours in Collin

15   County?

16                 VENIREPERSON:   No.    It happened in
17   California.

18                 MR. WILSON:   Okay.    And when was that?

19                 VENIREPERSON:   It's been about 15 years ago.
20                 MR. WILSON:   Do you remember if that case

21   went to a jury for punishment at all?

22                 VENIREPERSON:   No.    No.
23                 MR. WILSON:   No?

24                 VENIREPERSON:   I did my -- the things you're

25   supposed to do and paid my fine and that was that.
                                                                    64
                                    Jury Voir Dire by Mr. Wilson



1                   MR. WILSON:   Okay.
2                   VENIREPERSON:     But it was horrible.

3                   MR. WILSON:   Well, now, so based on that --

4                   VENIREPERSON:     You have to go to those
5    classes and, you know, it's -- it just -- it's so

6    demeaning.   I was so ashamed.

7                   MR. WILSON:   So based on how you've
8    described that experience, then, is it fair to say that you

9    would be a little biased towards the state and the police

10   officers in that whole process there?
11                  VENIREPERSON:     No.   Not towards them.   More

12   towards myself --

13                  MR. WILSON:   Okay.
14                  VENIREPERSON:     -- putting myself in that

15   predicament.

16                  MR. WILSON:   Okay.     So then you're saying
17   that based on, even though that you've gone through that

18   experience, that if you were to be on the jury today, you

19   would be able to set that experience aside and just
20   evaluate the information, the facts that are presented

21   here?

22                  VENIREPERSON:     I just know that what I went
23   through, I would have to see the similarities.

24                  THE COURT:    You would have to see what?

25                  VENIREPERSON:     The similarities of possibly
                                                                        65
                                      Jury Voir Dire by Mr. Wilson



1    what she was -- where she was at or what she was doing or
2    what amount she had to drink probably in comparison to my

3    own because, you know, it happened to me.

4                     MR. WILSON:    Okay.
5                     VENIREPERSON:   I mean, it's kind of hard to

6    separate, for me to separate the two.

7                     MR. WILSON:    Okay.   And that's very
8    understandable.   So it's fair to say, then, that you would

9    have a hard time separating what happened to you --

10                    VENIREPERSON:   Uh-hum.
11                    MR. WILSON:    -- from what happened to this

12   defendant --

13                    VENIREPERSON:   Yes.
14                    MR. WILSON:    -- and that the two experiences

15   would come together then?

16                    VENIREPERSON:   Yes.
17                    MR. WILSON:    Okay.   Well, thank you,

18   Ms. Walker.    I appreciate you sharing that.

19                    Anybody else here on the front row?       Okay.
20                    How about on the middle row?

21                    Mr. Burdick.

22                    VENIREPERSON:   Yes.
23                    MR. WILSON:    I guess did this happen in

24   Collin County?

25                    VENIREPERSON:   No.
                                                                    66
                                     Jury Voir Dire by Mr. Wilson



1                    MR. WILSON:   Which -- was it in Texas at
2    all?

3                    VENIREPERSON:   No.    North Carolina.

4                    MR. WILSON:   All right.   And about when did
5    yours happen?

6                    VENIREPERSON:   Almost 30 years ago.

7                    MR. WILSON:   30 years ago.   Okay.   And do
8    you remember if it went to a jury at all?

9                    VENIREPERSON:   I went through a first

10   offenders program.
11                   MR. WILSON:   Okay.

12                   VENIREPERSON:   Found not guilty, went to

13   class.
14                   MR. WILSON:   Okay.    So do you feel like you

15   were -- Based on that experience, do you feel like you have

16   any sort of bias against the state or the police officers?
17                   VENIREPERSON:   Not from my particular case,

18   no.    I was under age for drinking.   I was 16 years old at

19   the time.   And, yeah, I was underaged, I was arrested for
20   underage drinking and D W I, even though I didn't feel like

21   at the time that I was drunk.

22                   MR. WILSON:   Okay.
23                   VENIREPERSON:   But they didn't -- basically

24   -- basically when I went to court, that option came to me

25   without even going through anything:     Would you like to go
                                                                     67
                                     Jury Voir Dire by Mr. Wilson



1    through the first offenders program?
2                    MR. WILSON:    Okay.    Do you feel like you

3    were treated fairly in the process?

4                    VENIREPERSON:    Yes.
5                    MR. WILSON:    And would you be able to leave

6    that experience behind you and just consider the facts and

7    evidence presented to you today?
8                    VENIREPERSON:    Yes.

9                    MR. WILSON:    Okay.    Anybody else on the

10   second row?   Okay.
11                   Anybody on the third row?

12                   All right.    And I'm going to ask the same

13   question -- and I know a moment ago, Mr. Kieffer told us
14   about a college friend.   When I ask this question, I'm not

15   talking about somebody like a college friend.      I'm talking

16   about somebody -- let's say, you know, a family member,
17   spouse, somebody that you are very close with that you

18   would have kept under -- I guess kept track of the intimate

19   details of what went on in the case and the proceedings and
20   everything.   Do you know anybody like that who has ever

21   been arrested, charged or convicted of a D W I?      And I'll

22   start with the first row.
23                   VENIREPERSON:    You're talking about D W I.

24   Not drunk in public; right?

25                   MR. WILSON:    Correct.
                                                                     68
                                      Jury Voir Dire by Mr. Wilson



1                     VENIREPERSON:   Then no.
2                     MR. WILSON:   Okay.    And Mr. Byther?

3                     VENIREPERSON:   Yes.   Both my sons and

4    friends.    It was while they were in college down in Austin.
5                     MR. WILSON:   Okay.

6                     VENIREPERSON:   Just past all of that now.

7                     MR. WILSON:   Well, would you say that based
8    on those experiences, things that you observed, that is it

9    fair to say you would be biased, though, against the police

10   and against the prosecution today?
11                    VENIREPERSON:   I think -- this is what -- I

12   think the net is too wide.     I think there's a lot of people

13   that are functional who may be technically inebriated who
14   get caught.   By the same token, I think it is a problem and

15   I understand why it's done, I understand that.

16                    MR. WILSON:   Okay.    So I guess -- Is it fair
17   for me to say from what you're telling me that you feel

18   like the -- in terms of a first arrest, not for repeat

19   offenders, but for first arrest, that you feel like the law
20   as it stands has cast a net that's a little bit too big and

21   it might be difficult for you to follow all of the

22   different definitions of intoxication that our law
23   provides?

24                    VENIREPERSON:   Yeah, I think it's a nebulous

25   thing.   It was -- metabolism affects us.     I just think that
                                                                    69
                                     Jury Voir Dire by Mr. Wilson



1    everybody is not the same.    Everybody doesn't react the
2    same.   I was in the Navy so I know what drunk is.    And

3    there's all kinds of -- you know, there's a whole array of

4    things like we were talking about before.     You know, you
5    can drink and you can drink and you can be functional.       And

6    a lot of people deal with that quite effectively.     You

7    know, I drink frequently, glass of wine every night.     It's
8    not a big deal.   And I never get drunk.    I don't want to

9    get drunk.   And -- but I don't know about blood alcohol

10   concentrations, I have no idea.
11                   But having said that, the problem of drunk

12   driving is serious.   I think it is very serious problem.      I

13   understand that we're just trying to deal with that.
14                   MR. WILSON:   Right.    But even though it's --

15   even though you do think that drunk driving is a bit of a

16   -- is a serious problem--
17                   VENIREPERSON:   Yeah.

18                   MR. WILSON:     -- that it's fair to say,

19   though, that you have a hard time following the letter of
20   the law as the state provides it currently, given the

21   specific definitions and about not only the alcohol

22   concentration but the normal use of mental faculties and
23   the physical faculties?

24                   VENIREPERSON:   I mean, I just have to hear

25   the evidence and just make a judgment on that.     I can't
                                                                    70
                                     Jury Voir Dire by Mr. Wilson



1    really say --
2                    THE COURT:   Mr. Byther, here's the problem.

3    Remember when we talked before about the court doesn't want

4    to put you in a position where you later feel like you have
5    to violate your conscious?   We need to know if you can

6    guarantee both sides that you could follow the law as the

7    law currently exists because we don't want you to have to,
8    at the end of this trial, say, You know what, I thought I

9    could but this is one of those situations where I'm not

10   comfortable following the law.    So we kind of have to nail
11   you down right now.

12                   You may disagree.   If you were on the

13   legislature, you might write the law differently, but what
14   it really boils down to is, you have the definitions, the

15   loss of mental faculties due to the introduction of

16   alcohol, or the loss of normal physical faculties due to
17   the introduction of alcohol, or blood alcohol concentration

18   of 0.08.

19                   If the state proves any one of those three
20   definitions to you beyond all reasonable doubt, can you

21   return a guilty verdict?

22                   VENIREPERSON:   I think I can.
23                   THE COURT:   All right.   Will you return a

24   guilty verdict if that's proven to you beyond all

25   reasonable doubt?
                                                                     71
                                      Jury Voir Dire by Mr. Wilson



1                     VENIREPERSON:    I believe I can, yes.
2                     THE COURT:    Okay.   Now I'm not trying to

3    pick on you.   This is like that whole thing, let's say you

4    and I are going to fly to Vegas.       We're getting to take our
5    seats.   The pilot is there.     And we go, you know, You can

6    fly us there safe, right?      I think I can.

7                     I'm getting off.
8                     (Laughter.)
9                     THE COURT:    We need 100 percent guarantee.

10   If you can't give a guarantee, that's okay.        If you're,
11   like, I don't know, but I really -- the best answer I can

12   do is, I think I can, then that's not going to -- it's not

13   going to be fair.
14                    Because, imagine yourself sitting here and

15   you're on the jury -- you know, you're the defendant.

16   Someone says, I think I could be fair but I'm not sure, you
17   really wouldn't want that person on your jury.       So the law

18   requires that anyone who's going to be on the jury be able

19   to follow the law.
20                    Can you, can you with 100 percent certainty,

21   say that if you're convinced beyond all reasonable doubt

22   that the state's proved their case, that you'll find the
23   person guilty?

24                    VENIREPERSON:    I think I can.    I --

25                    THE COURT:    No --
                                                                     72
                                      Jury Voir Dire by Mr. Wilson



1                     VENIREPERSON:   Yes, I can.
2                     THE COURT:    You can do it?

3                     VENIREPERSON:   I can.

4                     THE COURT:    All right.
5                     MR. WILSON:   All right.   Was there anybody

6    else on the front row that I didn't get to?

7                     Okay.   Ms. Simonson.
8                     VENIREPERSON:   My daughter had a D W I.

9                     MR. WILSON:   Okay.    And when was that?

10                    VENIREPERSON:   20 years ago.
11                    MR. WILSON:   Okay.

12                    VENIREPERSON:   She was 21.

13                    MR. WILSON:   And do you feel like, based on
14   that experience, that you have any bias against the state

15   or the police?

16                    VENIREPERSON:   No.    They probably caught her
17   right when she was pulling out of a place and if she had

18   gotten past them, maybe she would have had a wreck.      There

19   was no wreck.    But she did get pulled over.
20                    MR. WILSON:   So do you feel like she was

21   treated fairly in the process?

22                    VENIREPERSON:   Yes.
23                    MR. WILSON:   Did that experience, even

24   though it might have been bad at the time, did it have a

25   positive effect on your daughter at all?
                                                                     73
                                   Jury Voir Dire by Mr. Wilson



1                  VENIREPERSON:     On her, yes, it did.
2                  MR. WILSON:   Okay.      Thank you.

3                  Anybody else that I didn't get to?         Yes,

4    sir.
5                  VENIREPERSON:     Stepson before he was my

6    stepson.

7                  MR. WILSON:   Okay.      And do you feel like he
8    was treated fairly in the process?

9                  VENIREPERSON:     Yeah.   I think the financial

10   penalty as well as the breathalyzer in the vehicle were the
11   appropriate measures to take.

12                 MR. WILSON:   Okay.      Thank you, sir.

13                 Anybody else on the second row?
14                 VENIREPERSON:     What was the question again?

15                 MR. WILSON:   The question is, do you have

16   anybody that you are -- like a family member, a spouse or a
17   child, something like that, who -- that you've been -- you

18   would have followed the case extremely closely who had been

19   arrested, charged or convicted of D W I?
20                 VENIREPERSON:     Yes.

21                 MR. WILSON:   And who was that?

22                 VENIREPERSON:     Family members.
23                 MR. WILSON:   Okay.      And based on those

24   experiences and what you know, is it fair to say that you

25   have some bias or some mistrust of the police or the
                                                                   74
                                    Jury Voir Dire by Mr. Wilson



1    prosecution?
2                   VENIREPERSON:   No.

3                   MR. WILSON:   No?   You feel like they were

4    treated fairly in the process, then?
5                   VENIREPERSON:   Yes.    I feel like they were.

6                   MR. WILSON:   Okay.    Thank you, Mr. Burdick.

7                   Anybody else on the second row?
8                   And the third row?     Yes, Ms. Spruiell.

9                   VENIREPERSON:   My daughter.

10                  MR. WILSON:   And I guess how long ago was
11   that?

12                  VENIREPERSON:   She's had two.   Her first one

13   she was 16, and that was nine years ago.
14                  MR. WILSON:   Okay.

15                  VENIREPERSON:   And when she turned 18.

16                  MR. WILSON:   And how is that -- how is that
17   -- Was she treated fairly in the process, do you think?

18                  VENIREPERSON:   Yes.

19                  MR. WILSON:   And what kind of -- did it have
20   a positive effect on her at all?

21                  VENIREPERSON:   It did.

22                  MR. WILSON:   It did?   And so would you feel
23   that given those experiences that you have been associated

24   with, would you have any difficulty leaving those behind or

25   treating both the state and the defense fairly today?
                                                                     75
                                      Jury Voir Dire by Mr. Wilson



1                     VENIREPERSON:   I wouldn't have any
2    difficulty.    I would like to say that I am the law's

3    biggest cheerleader.

4                     THE COURT:    Ma'am, can't hear you.
5                     VENIREPERSON:   I am the law's biggest

6    cheerleader.

7                     THE COURT:    Biggest -- okay.   Thank you.
8                     MR. WILSON:   Thank you, Ms. Spruiell,

9    appreciate that.

10                    Okay.   Well, thank you all for sharing all
11   of this information.     I know it's kind of tough.     Here's a

12   question that's not so personal.

13                    Just what kind of evidence would you -- what
14   kind of evidence would you like to see brought forth in a D

15   W I trial?

16                    Mr. Campbell, what kind of evidence would
17   you be looking to see?

18                    VENIREPERSON:   I would say from the officer

19   that arrested the individual, stopping the individual, also
20   breathalyzer testing information, probably blood alcohol

21   test, either through blood test or breathalyzer.

22                    MR. WILSON:   Okay.   So would you say you'd
23   have to have the breath test or blood tests results?

24                    VENIREPERSON:   Not always.

25                    MR. WILSON:   Okay.
                                                                  76
                                   Jury Voir Dire by Mr. Wilson



1                  VENIREPERSON:   I think some of the mental
2    and the physical faculties and seeing -- hearing the

3    information on that from the officer could be enough.

4                  MR. WILSON:   Now, if somebody were to have
5    the opportunity to take one of these tests, I mean, you

6    know that we're not required to -- let me state the law

7    this way.
8                  In the State of Texas, we have something

9    called the implied consent law.   And what that means is

10   that by signing your name on a driver's license, you've
11   given implied consent to offer a specimen of your breath or

12   your blood if a police officer requests it.

13                 MR. BROOKS:   Your Honor, may we approach?
14                 THE COURT:    Yes, sir.

15                 (Sidebar conversation between the Court,
16                 Mr. Brooks, Mr. Wilson and Ms. Singletary.)
17                 MR. WILSON:   So as I was explaining, we have

18   this implied consent law in the State of Texas.   Say you

19   are required to give a specimen of your breath or blood,
20   but there's still a kind of a caveat to that law which

21   states that if you -- you have the option to refuse and as

22   a result of the refusal, the police can -- the state can
23   basically suspend your driver's license for up to 180 days.

24                 So given the different definitions of

25   intoxication that we have and the type of evidence that you
                                                                  77
                                   Jury Voir Dire by Mr. Wilson



1    might receive, I guess I'm looking to know, would any of
2    you here be able to -- would you require that the state

3    present to you either evidence of a blood test or a breath

4    test?
5                  Ms. Radice?

6                  VENIREPERSON:    Yes.

7                  MR. WILSON:    Yes, you would require a blood
8    or breath test?

9                  VENIREPERSON:    Yes.

10                 THE COURT:     Counsel, state your question
11   again so they understand.

12                 MR. WILSON:    Okay.    Thank you, judge.

13                 Just to make sure, you know, there's -- so
14   that it's clear.   You have -- you have -- of all the

15   different evidence that you are presented with and how that

16   evidence applies to the three different definitions of
17   intoxication that we have, you'll be presented with

18   evidence of regarding mental faculties, physical faculties,

19   and alcohol concentration.
20                 The question that I'm asking you is, in

21   order to convict someone, do you feel like you need

22   evidence of a blood test or a breath test before you could
23   go ahead and convict somebody?

24                 Ms. Radice, your answer was yes.

25                 VENIREPERSON:    Yes.
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                                    Jury Voir Dire by Mr. Wilson



1                   MR. WILSON:   Is that still a yes?
2                   VENIREPERSON:   Yes.

3                   THE COURT:    Ms. Radice.

4                   VENIREPERSON:   Yes.
5                   THE COURT:    If you were convinced beyond all

6    reasonable doubt that someone lost the normal use of their

7    mental faculties or the normal use of their physical
8    faculties because they ingested alcohol, but there was no

9    breath or blood test but you were convinced they were

10   intoxicated because you thought that they had lost their
11   mental and physical faculties, you would still vote not

12   guilty?   Is that what you're trying to say?   That's what

13   the question is asking.
14                  You know, sometimes we don't have a breath

15   or a blood test.   Some people require that in order to be

16   comfortable enough to find someone guilty.     So the question
17   really comes down, if the state proves to you, whatever

18   your level of proof is, beyond -- and you were convinced

19   beyond all reasonable doubt, that the defendant was
20   intoxicated due to the introduction of alcohol and that she

21   had lost either her normal physical faculties or she had

22   lost her normal mental faculties but, for whatever reason,
23   there was no breath or blood test, would you find the

24   person guilty or not?

25                  VENIREPERSON:   No.
                                                                   79
                                    Jury Voir Dire by Mr. Wilson



1                   THE COURT:    You would not find them guilty?
2                   VENIREPERSON:   No.

3                   THE COURT:    So even if you thought she was

4    intoxicated beyond all reasonable doubt, you would still
5    require a blood test before you could find someone guilty?

6                   VENIREPERSON:   Or a breathalyzer.

7                   THE COURT:    One of the two?
8                   VENIREPERSON:   Yes.

9                   THE COURT:    And you understand in the State

10   of Texas, when -- if someone is asked to provide one, they
11   don't have to provide one.

12                  VENIREPERSON:   No, I did not know that.

13                  THE COURT:    Does that change your answer at
14   all?

15                  VENIREPERSON:   Yes.

16                  THE COURT:    Okay.   Would you require one?
17                  VENIREPERSON:   No.

18                  THE COURT:    Okay.

19                  MR. WILSON:   Okay.    So all of that being
20   said, let's see, Mr. Sbaiti, would you require a blood or a

21   breath test?

22                  VENIREPERSON:   Now, the given -- no as a
23   bright line -- my answer is no as a bright line.    I think

24   what a lot of people are struggling with, I can hear them

25   sort of talking around, I think a lot of people are having
                                                                   80
                                    Jury Voir Dire by Mr. Wilson



1    a difficult time, I was having a difficult time the way it
2    was originally posed with how would I find someone had lost

3    their faculties beyond a reasonable doubt without the test,

4    so assuming there's other evidence that establishes that,
5    no, I don't require that as a baseline.

6                   MR. WILSON:   Okay.   That's correct.   That's

7    a good way of putting it, is you have other evidence, just
8    not the breath or blood evidence but you've got other

9    evidence to be able to believe beyond a reasonable doubt.

10                  And the question is, do you still need that
11   blood or breath test.   Ms. Simonson?

12                  VENIREPERSON:   No.

13                  MR. WILSON:   No?   Okay.
14                  Mr. Campbell?

15                  VENIREPERSON:   No.

16                  MR. WILSON:   No?
17                  Ms. Walker?

18                  VENIREPERSON:   No.

19                  MR. WILSON:   Ms. Stelling-Parker?
20                  VENIREPERSON:   Actually I have a question.

21                  MR. WILSON:   Okay.

22                  VENIREPERSON:   May not be able to give me an
23   answer.   But I know that some people have medication they

24   take all the time; alcohol reacts differently with them

25   than it would somebody who doesn't take medication.    How is
                                                                  81
                                   Jury Voir Dire by Mr. Wilson



1    that considered or you don't care?
2                  MR. WILSON:   Well, I can't really get into--

3                  VENIREPERSON:   Yeah, general is fine.

4                  MR. WILSON:   Well, as far as our -- well,
5    what I can just tell you basically, for this general

6    question right now, just assume that there's no other

7    medications or other --
8                  VENIREPERSON:   Factors.

9                  MR. WILSON:   Head injuries.   Other factors

10   going on.
11                 VENIREPERSON:   Okay.

12                 MR. WILSON:   We're just dealing with

13   alcohol.
14                 VENIREPERSON:   Then no.

15                 MR. WILSON:   Okay.    Mr. Mercer?

16                 VENIREPERSON:   No.
17                 MR. WILSON:   Mr. Byther?

18                 VENIREPERSON:   No.

19                 MR. WILSON:   Ms. Carbajal?
20                 VENIREPERSON:   No.

21                 MR. WILSON:   And Ms. White?

22                 VENIREPERSON:   No.
23                 MR. WILSON:   Mr. Burdick?

24                 VENIREPERSON:   No.

25                 MR. WILSON:   Mr. Pate?
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                                   Jury Voir Dire by Mr. Wilson



1                  VENIREPERSON:   No.
2                  MR. WILSON:   Mr. Brown?

3                  VENIREPERSON:   No.

4                  MR. WILSON:   Mr. Kendall?
5                  VENIREPERSON:   No.

6                  MR. WILSON:   Mr. Christopher?

7                  VENIREPERSON:   No.
8                  MR. WILSON:   Mr. Kieffer?

9                  VENIREPERSON:   No.

10                 MR. WILSON:   Mr. Sennett?
11                 VENIREPERSON:   No.

12                 MR. WILSON:   Ms. Parker?

13                 VENIREPERSON:   Yes.
14                 MR. WILSON:   Yes, okay.

15                 THE COURT:    Ms. Parker, you would require a

16   breath or blood test even if you were convinced that
17   they've lost the normal use of their mental or physical

18   faculties due to introduction of alcohol?

19                 VENIREPERSON:   Yes.
20                 THE COURT:    Thank you.

21                 MR. WILSON:   Mr. Lewis?

22                 VENIREPERSON:   No.
23                 MR. WILSON:   Mr. Cassedy?

24                 VENIREPERSON:   No.

25                 MR. WILSON:   Mr. Noi-Mingle?
                                                                  83
                                   Jury Voir Dire by Mr. Wilson



1                  VENIREPERSON:    No.
2                  MR. WILSON:    Mr. Moore?

3                  VENIREPERSON:    No.

4                  MR. WILSON:    Ms. Spruiell?
5                  VENIREPERSON:    No.

6                  MR. WILSON:    And Mr. Fried?

7                  VENIREPERSON:    No.
8                  MR. WILSON:    Okay.   So last kind of long,

9    convoluted question for you guys, and then we'll be done

10   with the inquisition here.   So this is another kind of long
11   question, sort of similar to what we were talking about,

12   but what I want you guys to -- I'll pose it to you this

13   way.
14                 Let's say that the state brings you evidence

15   and you believe beyond a reasonable doubt that the

16   defendant does not have the normal use of her mental
17   faculties due exclusively to the introduction of alcohol.

18   Whatever evidence you need to believe that, you've got it.

19   But the state produces -- the state brings you no evidence
20   regarding physical faculties, no evidence regarding alcohol

21   concentration, but again, you have all the evidence you

22   need to believe beyond a reasonable doubt that the
23   defendant does not have normal use of her mental faculties.

24   I want to know what would your verdict be?

25                 Ms. Radice?
                                                                     84
                                      Jury Voir Dire by Mr. Wilson



1                     If it's not clear, I'll add this to you.
2    You have the definitions on the board right there.

3                     If the state proves to you -- the scenario

4    as I'm putting it is that the state has given you evidence
5    and proved to you beyond a reasonable doubt that definition

6    number one applies.   The defendant does not have the normal

7    use of her mental faculties due to the introduction of
8    alcohol into her body.   And we're only dealing with alcohol

9    right now.

10                    What we're saying is that the state has not
11   offered any evidence regarding definition number two, for

12   physical faculties, or definition number three, for alcohol

13   concentration.   But you have all the evidence that you need
14   to believe beyond a reasonable doubt that definition number

15   one applies.   The defendant does not have the normal use of

16   her mental faculties.
17                    So my question to you is, given that

18   information, what would your verdict be?

19                    VENIREPERSON:   Guilty.
20                    MR. WILSON:   Okay.   Mr. Sbaiti?

21                    VENIREPERSON:   I'll be honest.     I'm having a

22   very hard time separating -- separating out the realities
23   of what it would mean to lose their mental faculties but

24   there's no evidence that they didn't lose their physical

25   faculties?
                                                                     85
                                      Jury Voir Dire by Mr. Wilson



1                     MR. WILSON:   Well, in a reality --
2                     VENIREPERSON:    Yes, it's very hypothetical.

3    I get it.   I'm not trying to problematize [sic] it.      I

4    mean, obviously, if you could prove the first one, legally,
5    it should be a guilty verdict.     And I'm trying to be loyal

6    to that.    I'm having a hard time imagining what this would

7    actually look like.
8                     MR. WILSON:   Well, you know, just the scope

9    of this hypothetical is really just breaking down those

10   definitions.   I know that in reality, it is -- you know,
11   mental faculties and physical faculties seem to work

12   together typically, but assuming that somehow in this -- in

13   this hypothetical universe we're speaking about right now,
14   let's just assume that somebody could not have the normal

15   use of her mental faculties, but still have -- and you know

16   what, the thing is, maybe they have normal physical
17   faculties, maybe not.   We've just not offered any evidence

18   about it in our hypothetical case.

19                    VENIREPERSON:    You're asking whether I have
20   a touchstone of the other two definitions of intoxication

21   before I convict.   The answer is no.     So I would convict if

22   only one of them was there.      If that satisfies you.
23                    MR. WILSON:   It does.

24                   Ms. Simonson.

25                    VENIREPERSON:    Just based on not having any
                                                                   86
                                    Jury Voir Dire by Mr. Wilson



1    mental because of intoxication, I would say guilty.
2                   MR. WILSON:   Okay.   Mr. Campbell?

3                   VENIREPERSON:   Guilty.

4                   MR. WILSON:   Ms. Walker?
5                   VENIREPERSON:   Guilty.

6                   MR. WILSON:   Ms. Stelling-Parker?

7                   VENIREPERSON:   Guilty.
8                   MR. WILSON:   Mr. Mercer?

9                   VENIREPERSON:   Guilty.

10                  MR. WILSON:   Mr. Byther?
11                  VENIREPERSON:   Guilty.

12                  MR. WILSON:   Ms. Carbajal?

13                  VENIREPERSON:   I don't understand that.
14                  MR. WILSON:   I'll come back to you in a

15   moment then.

16                  Ms. White?
17                  VENIREPERSON:   Are you saying you can prove

18   she had alcohol?

19                  MR. WILSON:   Yeah, in this hypothetical,
20   we're saying that you got -- you've been presented with

21   evidence --

22                  VENIREPERSON:   Uh-hum.
23                  MR. WILSON:   -- that shows you beyond a

24   reasonable doubt --

25                  VENIREPERSON:   Uh-hum.
                                                                    87
                                     Jury Voir Dire by Mr. Wilson



1                    MR. WILSON:   -- that the defendant did not
2    have the normal use of her mental faculties --

3                    VENIREPERSON:   Right.

4                    MR. WILSON:   -- due to the introduction of
5    alcohol.

6                    VENIREPERSON:   All right.    You've proven

7    that she's been drinking --
8                    MR. WILSON:   Correct.

9                    VENIREPERSON:   -- in this case.

10                   MR. WILSON:   Yes.   In this hypothetical.
11                   VENIREPERSON:   Would be tough but maybe

12   guilty.

13                   MR. WILSON:   Maybe guilty?
14                   VENIREPERSON:   I don't know.     It's hard to--

15                   THE COURT:    I can't hear her.

16                   VENIREPERSON:   -- without more evidence --
17                   THE COURT:    I can't see her either.

18                   VENIREPERSON:   -- I need more than just --

19                   THE COURT:    The hypo is you've already been
20   convinced.   Whatever it took to convince you that she drank

21   alcohol and that she became intoxicated and lost her normal

22   mental faculties.    So whatever evidence that is.
23                   VENIREPERSON:   About her being drunk or

24   drunk and driving?

25                   THE COURT:    I'm sorry?
                                                                   88
                                    Jury Voir Dire by Mr. Wilson



1                   VENIREPERSON:   Am I just convicting her of
2    being -- of drinking?

3                   THE COURT:    There's three definitions.

4                   VENIREPERSON:   Am I just convicting her
5    saying, yes, she's drunk -- she was drunk?

6                   THE COURT:    Not drunk; intoxicated.

7                   MR. WILSON:   Right.   Remember we're dealing
8    with intoxication because that's what we've got the

9    definitions of.

10                  VENIREPERSON:   Intoxication, I'm sorry.
11                  MR. WILSON:   So all you're looking at is

12   you've got the evidence that you need to say that the

13   defendant was -- had -- she's -- in this hypothetical,
14   assume that the defendant was driving.

15                  VENIREPERSON:   Uh-hum.

16                  MR. WILSON:   And that you've got all the
17   evidence you need to believe beyond a reasonable doubt that

18   the defendant was driving, did not have the normal use of

19   her mental faculties --
20                  VENIREPERSON:   Uh-hum.

21                  MR. WILSON:   -- due to the introduction of

22   alcohol.   But you don't have any evidence regarding
23   physical faculties or alcohol concentration.   What would

24   your verdict be?

25                  VENIREPERSON:   I guess -- I mean, I should
                                                                        89
                                      Jury Voir Dire by Mr. Wilson



1    say guilty but I just don't know.        Guilty.
2                     THE COURT:    Why do you say you don't know?

3                     VENIREPERSON:    Because I just need more than

4    that.    Than just the -- What is her normal?
5                     THE COURT:    Okay.    We don't know.

6                     VENIREPERSON:    All of that.

7                     THE COURT:    But you're convinced that she's
8    intoxicated.   That's what the hypo says.

9                     VENIREPERSON:    She's intoxicated and she

10   drove.   That's all -- and I'm convinced of that on this
11   scenario?

12                    THE COURT:    Uh-hum.    And I don't know why

13   you don't have physical.      Maybe the officer didn't give the
14   person physical.   Maybe the person was injured and couldn't

15   do the physical tests.   Maybe they refused them.        There's

16   lots of hypos.   But for whatever the reason, there just is
17   no evidence of physical loss.

18                    VENIREPERSON:    Then I can convict.

19                    MR. WILSON:    All right.   Mr. Burdick?
20                    VENIREPERSON:    Yes.    If you can show me the

21   evidence with either questions, video, yes, I can convict.

22                    MR. WILSON:    Okay.    Mr. Pate.
23                    VENIREPERSON:    Guilty.

24                    MR. WILSON:    Mr. Brown.

25                    VENIREPERSON:    Guilty.
                                                                  90
                                   Jury Voir Dire by Mr. Wilson



1                  MR. WILSON:   Mr. Kendall?
2                  VENIREPERSON:   Guilty.

3                  MR. WILSON:   Mr. Christopher?

4                  VENIREPERSON:   Guilty.
5                  MR. WILSON:   Mr. Kieffer?

6                  VENIREPERSON:   Guilty.

7                  MR. WILSON:   Mr. Sennett.
8                  VENIREPERSON:   Guilty.

9                  MR. WILSON:   Ms. Parker?

10                 VENIREPERSON:   Not guilty.
11                 MR. WILSON:   Okay.   Mr. Lewis?

12                 VENIREPERSON:   Guilty.

13                 MR. WILSON:   Mr. Cassedy?
14                 VENIREPERSON:   Guilty.

15                 MR. WILSON:   Mr. Noi-Mingle?

16                 VENIREPERSON:   Guilty.
17                 MR. WILSON:   Mr. Moore?

18                 VENIREPERSON:   Guilty.

19                 MR. WILSON:   Ms. Spruiell?
20                 VENIREPERSON:   Guilty.

21                 MR. WILSON:   And Mr. Fried?

22                 VENIREPERSON:   Guilty.
23                 MR. WILSON:   All right.    So that is the end

24   of our questions.   I'll quickly kind of go through the rest

25   of our presentation here.
                                                                     91
                                      Jury Voir Dire by Mr. Wilson



1                     Beyond a reasonable doubt, you've heard us
2    talk about that ad nauseam.      And as the judge told you, the

3    State of Texas does not provide you with a definition of

4    what beyond a reasonable doubt actually means, but what we
5    can tell you are some things that it doesn't mean.

6                     For one, it does not mean beyond any doubt.

7    It doesn't mean beyond a shadow of a doubt.      It doesn't
8    mean beyond all possible doubt.      It's not a 100 percent

9    standard either.

10                    A good example to provide you would be this.
11   Let's see, Mr. Campbell, can you tell me what those puzzle

12   pieces represent right now?

13                    VENIREPERSON:    No.
14                    MR. WILSON:   No.   Can you tell me what they

15   represent now?

16                    VENIREPERSON:    Yes, I know.
17                    MR. WILSON:   What is it?   Shark?

18                    VENIREPERSON:    A shark.

19                    MR. WILSON:   A shark, yeah.    So do you
20   believe beyond a reasonable doubt that that's a picture of

21   a shark up there?

22                    VENIREPERSON:    Yes.
23                    MR. WILSON:   Do you have 100 percent of the

24   puzzle pieces filled in?

25                    VENIREPERSON:    No, I don't.
                                                                   92
                                    Jury Voir Dire by Mr. Wilson



1                   MR. WILSON:    No, but you know beyond a
2    reasonable doubt that that's a shark.

3                   VENIREPERSON:    Correct.

4                   MR. WILSON:    That's basically a good way to
5    think of when you're talking about what beyond a reasonable

6    doubt is.

7                   A few things that the state does not have to
8    prove:   We don't have to prove that the defendant lost all

9    mental or physical faculties.    Remember it's just based on

10   that average non-intoxicated person standard.     What's
11   normal for the average non-intoxicated person.

12                  We don't have to show that the defendant

13   knew she was intoxicated.    Again, it's only those
14   definitions that we've discussed.

15                  The rights that the defendant has:       She has

16   a right to a jury trial, has the Fifth Amendment right not
17   to testify today, and also has equal subpoena power as the

18   state.   Meaning, you know, they have just the same power to

19   subpoena witnesses, have them testify on her behalf just as
20   we can bring witnesses and have them testify on our behalf.

21                  Any final questions today?     All right.

22   Well, thank you all very much.   I'll look forward to
23   working with the six of you that we select for the jury

24   later on.

25                  THE COURT:    All right.    Ladies and
                                                                    93
                                    Jury Voir Dire by Mr. Wilson



1    gentlemen, I'm going to give you the break that I promised
2    you.   Remember the instructions I gave you.    Come back in

3    as a group.   Wait until the bailiff brings you in.    Don't

4    discuss with anybody, even amongst yourselves, anything
5    about D W I or anything about this case.     Don't use your

6    phone or anything to look anything up.

7                    Bailiff, take charge of the jury.    We'll be
8    out for 15 minutes.

9                    THE BAILIFF:   Yes, Your Honor.    All rise.

10                   (Recess at 11:50 A M, resuming at 12:13 P M.
11                   Defendant present.)
12                   THE BAILIFF:   All rise.

13                   (The jury panel enters.)
14                   THE COURT:    Thank you.   Everyone may be

15   seated.

16                   Bailiff, report.
17                   THE BAILIFF:   Panel is all present and

18   accounted for, Your Honor.

19                   THE COURT:    Thank you, ladies and gentlemen.
20   If you will please now give that same attention to the

21   defense counsel, Mr. Brooks.

22                          JURY VOIR DIRE

23                   MR. BROOKS:    Thank you, judge.   Morning

24   folks.

25                   VENIREPERSONS:   Morning.
                                                                      94
                                    Jury Voir Dire by Mr. Brooks



1                     MR. BROOKS:   How is everybody?
2                     VENIREPERSONS:   Good.

3                     MR. BROOKS:   Good holiday?      Glad to be here?

4                     VENIREPERSONS:   Yes.    Sure.
5                     MR. BROOKS:   Want some more time off?

6                     (Laughter.)
7                     MR. BROOKS:   My name is Kevin Brooks and I
8    am representing Ms. Henderson-Love in this trial.        And like

9    Mr. Wilson, I'll let you know a little bit about myself.

10                    Born and raised in Indianapolis, Indiana;
11   attended law school, undergraduate university at Indiana

12   University.    I've been married to the same woman for 27

13   years so far.   Three children.   One dog.     On very short
14   leash right now based upon some things he chewed up over

15   the holiday.    And I'm proud to be here representing

16   Ms. Henderson-Love.
17                    We know what this trial is all about at this

18   point.   You understand that this is a D W I trial.       What

19   I'm going to ask you to do at the outset is to do a couple
20   of things.

21                    The first thing I'm going to ask you to do

22   is not try and remedy any of society's problems through
23   this case.    If you're selected to be on the jury, address

24   this case based upon the facts of this case and based upon

25   the law, not based upon what you perceive to be problems
                                                                    95
                                     Jury Voir Dire by Mr. Brooks



1    out in the world outside of this courtroom.
2                    Can y'all agree to do that?

3                    VENIREPERSONS:    Yes.

4                    MR. BROOKS:   The other thing I'm going to
5    ask you to do is -- and this is not something you can give

6    me a verbal response to, but I'm going to ask each one of

7    you to look into your hearts and ask yourself this one
8    question:   If I was charged with a crime, would I want

9    someone like myself, my viewpoints, my opinions, my biases,

10   sitting on this jury panel?     Because all of us have those.
11   And as the judge had pointed out earlier, some cases just

12   may not be appropriate for you.

13                   One of the examples we use all the time down
14   at the courthouse is, you're coming down here for jury duty

15   and as you head to your garage, you see that your car is

16   broken into.   You make your way down here.     You find
17   yourself in the courtroom.    And guess what?   You're down

18   here on a burglary of a motor vehicle case.

19                   Now, I think all of you would agree in that
20   scenario that you would probably not be the right juror for

21   that case on that particular day.    Anybody disagree with

22   that?
23                   VENIREPERSON:    Yeah.

24                   MR. BROOKS:   Mister?

25                   VENIREPERSON:    Sennett.
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                                   Jury Voir Dire by Mr. Brooks



1                  MR. BROOKS:    Sennett?   You disagree with
2    that?

3                  VENIREPERSON:   Yes.

4                  MR. BROOKS:    Why is that?
5                  VENIREPERSON:   Because I feel for myself

6    personally I could be fair in that type of situation you

7    mentioned.
8                  MR. BROOKS:    Okay.    And that's fair.

9    Anybody else agree with Mr. Sennett?    Mister?

10                 VENIREPERSON:   Fried.
11                 MR. BROOKS:    Fried?

12                 VENIREPERSON:   Yeah.     I think I could be

13   fair on that case.
14                 MR. BROOKS:    So Mr. Sennett, Mr. Fried,

15   agree that even if they had experienced something like that

16   that morning they could still be fair.    Anybody else agree
17   -- feel the same way?   It's fine if you do, it's fine if

18   you don't.

19                 VENIREPERSON:   I think I could.
20                 VENIREPERSON:   I think I could.

21                 MR. BROOKS:    And that's Mr. Kendall?

22                 VENIREPERSON:   Correct.
23                 MR. BROOKS:    And Mr. Christopher?

24                 VENIREPERSON:   Uh-hum.

25                 MR. BROOKS:    Okay.    Now, one of the things
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1    that I want to talk to y'all about is, this is a D W I
2    trial, I do not want anyone to think that either I or my

3    client are down here in defiance of D W I laws.    We both

4    drive the same streets, the same highways as y'all.     I have
5    three kids who are on those same streets.    So this is not

6    about we disagree with D W I, we disagree with the law as

7    it's applied.   We simply have a difference of opinion with
8    respect to the facts of this case.

9                    Mr. Mercer.

10                   VENIREPERSON:   Yes, sir.
11                   MR. BROOKS:   I noticed on your

12   questionnaire, or your juror information card, that you are

13   a high school coach?
14                   VENIREPERSON:   Yes.

15                   MR. BROOKS:   What sport?

16                   VENIREPERSON:   Football.
17                   MR. BROOKS:   Are you a head coach or

18   position coach?

19                   VENIREPERSON:   I'm a position coach,
20   offensive coordinator.

21                   MR. BROOKS:   Would you agree with me that

22   there are times in the course of the game that you see
23   calls that you feel are the wrong calls?

24                   VENIREPERSON:   Yes.

25                   MR. BROOKS:   Would you agree with me that
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                                     Jury Voir Dire by Mr. Brooks



1    there are times or have you seen for yourself on occasions
2    where, based upon instant replay, you saw that the ref made

3    the wrong call?

4                    VENIREPERSON:   Yes.
5                    MR. BROOKS:   How many of us have gotten

6    traffic tickets in here?

7                    (Show of hands.)
8                    MR. BROOKS:   How many of us have believed

9    that every traffic ticket we've gotten, we deserved to get

10   that traffic ticket?
11                   (Show of hands.)
12                   MR. BROOKS:   How many of us believe we got a

13   traffic ticket we didn't deserve to get?
14                   (Show of hands.)
15                   MR. BROOKS:   Now, when you got that traffic

16   ticket, Mr. -- I apologize, folks, I'm not real good with
17   names.    Mr. Byther?

18                   VENIREPERSON:   Yes.

19                   MR. BROOKS:   You got the ticket at a time
20   when you probably deserved the ticket, and you probably got

21   the ticket at a time when you felt you didn't deserve the

22   ticket.   Correct?
23                   VENIREPERSON:   That's right.

24                   MR. BROOKS:   Would you agree with me in

25   terms of the decision to give you that ticket was based
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                                      Jury Voir Dire by Mr. Brooks



1    upon the opinion of that officer?
2                     VENIREPERSON:   It was, yes.

3                     MR. BROOKS:   And anybody disagree with that?

4    That the decision whether or not to give you a traffic
5    ticket is based solely on the opinion of that officer?

6    Correct?

7                     VENIREPERSON:   Yes.
8                     MR. BROOKS:   Mr. Brown?

9                     VENIREPERSON:   Sir.

10                    MR. BROOKS:   Mr. Brown, can two people see
11   the same thing and have a different opinion about what

12   they've just witnessed?

13                    VENIREPERSON:   Yes, sir.
14                    MR. BROOKS:   And you've seen that in your

15   course as -- you're currently a law enforcement officer?

16                    VENIREPERSON:   Currently deputy sheriff,
17   Collin County.

18                    MR. BROOKS:   So you would agree with me that

19   two people can see the same thing, have a different opinion
20   about what they've seen?

21                    VENIREPERSON:   Yes, sir.

22                    MR. BROOKS:   Or a different interpretation
23   about what they've seen?

24                    VENIREPERSON:   Yes, sir.

25                    MR. BROOKS:   Now, the judge and the state
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                                      Jury Voir Dire by Mr. Brooks



1    have done a real good job in terms of explaining the law so
2    my comments to you won't be hopefully -- will take less

3    time than what the state has taken so far this morning, but

4    we have a standard in this country for -- in terms of how a
5    person can be convicted of an offense.       That's already been

6    explained to you as beyond a reasonable doubt.      We have

7    several standards in our judiciary system.
8                     The first standard are what we call burdens

9    of proof.    The first standard is reasonable suspicion.

10                    Now, because I have a law enforcement
11   officer on the panel, I'm going to ask you, what is your

12   definition of reasonable suspicion, Mr. Brown?

13                    VENIREPERSON:   When a normal person believes
14   a crime is -- is or is likely to be committed.

15                    MR. BROOKS:   Reasonable suspicion.   A

16   reasonable person, under circumstances based upon specific
17   and articulable facts, suspects that a crime has been

18   committed.   Sound about right?

19                    VENIREPERSON:   Yes, sir.
20                    MR. BROOKS:   And that's the standard by

21   which a law enforcement officer has the ability to

22   basically stop you and detain you.     And if they have reason
23   to believe a crime has been committed, based upon that

24   reasonable suspicion, they can arrest you.

25                    Is that a fair statement, Mr. Brown?
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                                    Jury Voir Dire by Mr. Brooks



1                   VENIREPERSON:    Yes, sir.
2                   MR. BROOKS:    Now, the other standard that we

3    have:   Probable cause.   Probable cause is information

4    sufficient to warrant a prudent person's belief that an
5    individual has committed a crime or that evidence of a

6    crime would be found in a search.

7                   That's the standard that's basically used if
8    they want to get a search warrant for your house, your car,

9    things of that nature.    They would have to have probable

10   cause and swear by an affidavit to a judge the facts that
11   outline that probable cause.

12                  Next standard that we have, and this is one

13   that we often see in civil cases:      Preponderance of the
14   evidence.   Usually applied in civil cases.

15                  And Mr. -- Mr. Sbaiti--

16                  VENIREPERSON:    Sbaiti.
17                  MR. BROOKS:    Sbaiti, I'm sorry, sir.

18                  VENIREPERSON:    Sure.

19                  MR. BROOKS:    Typically in a lawsuit, a civil
20   situation, what are they fighting over?

21                  VENIREPERSON:    Money.

22                  MR. BROOKS:    Money.    So in a lawsuit where
23   the only issue at stake is money, the standard of proof,

24   one side has to prove it beyond -- by a preponderance of

25   the evidence, which is basically, if they tip the scale
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                                     Jury Voir Dire by Mr. Brooks



1    however slightly in their favor, they win.    A lot of times
2    what we refer to as 51 percent.

3                    Did I describe that correctly, Mr. Sbaiti?

4                    VENIREPERSON:   I would say so.
5                    MR. BROOKS:    Now, the next standard -- or,

6    the burden of proof, I should say:    Clear and convincing

7    evidence.   This is the burden of proof the judge touched
8    upon that you normally will see in child custody cases,

9    that the State of Texas is trying to remove your children

10   from your home.   And the definition for that burden of
11   proof is evidence must be highly and substantially more

12   probable to be true than not.

13                   So I've gone through the standards or
14   burdens of proof from the very lowest up to this point to

15   the second highest.   The third highest burden of proof is

16   beyond a reasonable doubt.
17                   Now, can anyone tell me, based upon what

18   you've heard this morning, after listening to the

19   definitions for the burdens of proof that you've heard,
20   including the definition for the burden of proof that would

21   have to be shown to take your children, what's different

22   about this burden of proof?
23                   Mr. Sennett.

24                   VENIREPERSON:   I mean, to me, beyond a

25   reasonable doubt, I think it's a bit higher.      You know, I'm
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1    familiar with the previous one as my wife worked for Child
2    Protective Services for a number of years, so I understand

3    that and going to the next level on the criminal, I think

4    it's kind of the next step but I couldn't give you a firm
5    definition of what that would be.

6                     MR. BROOKS:   Right.   And that goes to my

7    point exactly.   The highest burden of proof that we have in
8    our judicial system, we don't have a definition for.

9    Anything below that, we have a definition, but for the

10   highest burden of proof, the burden of proof that allows a
11   jury to convict someone of an offense, there is no

12   definition.    And as the judge said, beyond a reasonable

13   doubt means what it means to you, and it's going to mean
14   something different to each and every one of you.     But I

15   just wanted, in terms of education, let you see that every

16   other burden of proof has a definition with the exception
17   of the highest burden of proof.

18                    We talked a little bit -- or, y'all talked a

19   little bit earlier about presumption of innocence.
20                    Ms. White, why do you think we have a

21   presumption of innocence?

22                    VENIREPERSON:   Why do we presume someone
23   innocent?   I don't understand.    Why do we presume someone

24   is innocent?

25                    MR. BROOKS:   Why do you think the law
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                                     Jury Voir Dire by Mr. Brooks



1    provides for that, as she sits here right now, she is
2    presumed innocent?

3                    VENIREPERSON:   Because you're presumed

4    innocent until proven guilty.
5                    MR. BROOKS:   And so if everything stopped

6    right here --

7                    VENIREPERSON:   Uh-hum.
8                    MR. BROOKS:   -- right now --

9                    VENIREPERSON:   Uh-hum.

10                   MR. BROOKS:   -- and all you heard is what
11   you've heard up to this point --

12                   VENIREPERSON:   Uh-hum.

13                   MR. BROOKS:   -- six of you go back and vote,
14   what would your verdict have to be?

15                   VENIREPERSON:   Not guilty.

16                   MR. BROOKS:   Because?
17                   VENIREPERSON:   I haven't heard any evidence.

18                   MR. BROOKS:   Let's talk about the purpose of

19   a jury in a criminal trial.
20                   Ms. Stelling-Parker.

21                   VENIREPERSON:   Yes, sir.

22                   MR. BROOKS:   What do you think the purpose
23   of a jury is in a criminal trial?

24                   VENIREPERSON:   To come to a consensus on

25   what the verdict as far as not one person's opinion.      It's
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1    a group of people coming up with a joint opinion.
2                  MR. BROOKS:     Mr. Lewis, what do you think is

3    the purpose of a jury in a criminal trial?

4                  VENIREPERSON:    Well, I think it's -- in many
5    cases, it gives the -- it gives the defendant a more fair

6    opportunity that six people, not just one person or not

7    just the judge, have to be convinced and proved that
8    whatever verdict is fair.

9                  MR. BROOKS:     That's a good answer.

10                 How many people think the purpose of a jury
11   in a criminal trial is to determine if the defendant is

12   guilty or not guilty?   Anybody think that's the purpose of

13   a jury in a criminal trial?   That's fine if you do.
14   There's no right or wrong answer.

15                 Mr. Fried.

16                 VENIREPERSON:    Legally defined purpose that
17   they are supposed to make a determination.

18                 MR. BROOKS:     If you recall at the start of

19   the case, I think the court let you know that the State of
20   Texas has the burden to prove the charges beyond a

21   reasonable doubt.   Six of you will be called upon not to

22   determine the defendant's guilt or innocence, but to
23   determine, is the evidence presented at trial proof beyond

24   a reasonable doubt that the accused committed a crime with

25   which she is charged?
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                                   Jury Voir Dire by Mr. Brooks



1                  Can y'all see the difference between proving
2    whether she's guilty or not or proving whether the evidence

3    got -- proves beyond a reasonable doubt that the accused

4    committed the crime as charged?
5                  VENIREPERSON:     Well, what I meant, it would

6    be by that standard.

7                  MR. BROOKS:   Yes, sir.     And again, there's
8    no right or wrong answer here.

9                  Ms. Radice?   Radice?

10                 VENIREPERSON:     Radice.
11                 MR. BROOKS:   Do you understand the

12   distinction between those two statements?

13                 VENIREPERSON:     I think the evidence has to
14   be there --

15                 MR. BROOKS:   Yes, ma'am.

16                 VENIREPERSON:     -- to either show that the
17   person is innocent or guilty.

18                 MR. BROOKS:   Okay.    And whose burden is

19   that?
20                 VENIREPERSON:     The jury.

21                 MR. BROOKS:   No.   Whose burden is it to

22   prove that the person --
23                 VENIREPERSON:     Oh, I'm sorry.   The state.

24                 MR. BROOKS:   Right.

25                 VENIREPERSON:     The State of Texas.
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                                    Jury Voir Dire by Mr. Brooks



1                   MR. BROOKS:    So the question not for you if
2    you're a juror is -- the question is not, is she guilty or

3    not guilty.   The question is:   Has the state proven this

4    case by the evidence presented beyond a reasonable doubt?
5    If you believe that they have proven it, obviously, your

6    answer is guilty.   If you believe they haven't proved it,

7    your verdict is not guilty.
8                   What's more important, y'all?    Should we

9    enforce laws and support law enforcement or protect

10   innocent people from being wrongly convicted?
11                  Mr. Burdick?

12                  VENIREPERSON:     I think they're both equal.

13                  MR. BROOKS:    Have you ever heard a phrase:
14   Better a thousand men go free than one innocent person go

15   guilty, something to that effect?

16                  VENIREPERSON:     Heard it somewhere.
17                  MR. BROOKS:    So if we look at the question:

18   What's more important, enforcing the law and supporting law

19   enforcement or using our system to protect innocent people
20   from being wrongly convicted, which one would you think is

21   more important?

22                  VENIREPERSON:     Protect the innocent people
23   from being wrongly convicted.

24                  MR. BROOKS:    Does anybody disagree with

25   that?   Mr. Campbell?
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                                      Jury Voir Dire by Mr. Brooks



1                     VENIREPERSON:   Well, with your second
2    statement, you put a quantity on there.

3                     MR. BROOKS:   Okay.

4                     VENIREPERSON:   And that's kind of weighted
5    to one side more than the other.       I would tend to agree

6    with his first answer, that they're equally important.

7                     MR. BROOKS:   Okay.    Anybody else agree with
8    Mr. Campbell?

9                     VENIREPERSON:   I do.

10                    MR. BROOKS:   Ms. White.   And that would be
11   Ms. --

12                    VENIREPERSON:   Stelling-Parker.

13                    MR. BROOKS:   Stelling-Parker.   Thank you,
14   ma'am.

15                    How could a person be wrongfully convicted

16   or confused -- accused.   I'm sorry.     How could a wrong --
17   how could a person -- blah -- how could a person be

18   wrongfully accused of a crime?

19                    Ms. Parker.   How is it possible, or is it
20   possible, for that to happen?

21                    VENIREPERSON:   Without enough evidence.

22                    MR. BROOKS:   Well, I could see how you would
23   answer that.    I'm simply pointing out, let's start with

24   being wrongfully accused versus wrongfully convicted.

25                    VENIREPERSON:   Wrongfully accused.
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                                    Jury Voir Dire by Mr. Brooks



1                   MR. BROOKS:    Yes, ma'am.
2                   VENIREPERSON:   Well, possibly the officer

3    may look at an individual, the way they're acting, and

4    determine it by physical attributes that they may be
5    intoxicated.

6                   MR. BROOKS:    And that question, I'm not

7    asking a question just based upon what we're here for
8    today, but just in general, in the criminal justice system.

9                   VENIREPERSON:   Based on what they see or how

10   that person is acting.
11                  MR. BROOKS:    Mr. Moore?    What do you think?

12                  VENIREPERSON:   Overzealousness, inexperience

13   on the part of the officer.
14                  MR. BROOKS:    Okay.   Ms. Spruiell.

15                  VENIREPERSON:   I think it would have a lot

16   to do with the situation at the time.
17                  MR. BROOKS:    Okay.   You say it would have a

18   lot to do with the situation at the time.     So honest

19   mistake?   Would that --
20                  VENIREPERSON:   Sure.

21                  MR. BROOKS:    Or human error?

22                  VENIREPERSON:   Yes, sir.
23                  MR. BROOKS:    Let's talk about a guilty

24   verdict versus a not-guilty verdict.

25                  Guilty verdict obviously means that the
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                                   Jury Voir Dire by Mr. Brooks



1    charge has been proven beyond a reasonable doubt.   We all
2    agree on that; correct?   A not-guilty verdict obviously

3    includes but is not limited to innocence.

4                  Mr. Sbaiti, you understand the distinction
5    in that statement?

6                  VENIREPERSON:    Sure.

7                  MR. BROOKS:    Would you agree that obviously
8    a not-guilty verdict, it could be innocent but a not-guilty

9    verdict could also mean that there just was not enough

10   evidence presented to support that the state proved the
11   case beyond a reasonable doubt.

12                 VENIREPERSON:    Right.

13                 MR. BROOKS:    Mr. Pate.
14                 VENIREPERSON:    Yes.

15                 MR. BROOKS:    You see that distinction?

16                 VENIREPERSON:    Yes.
17                 MR. BROOKS:    Now, that leads us to the

18   premise that a perfectly valid and lawful arrest can lead

19   to a perfectly valid and lawful not-guilty.
20                 I'm going to pick on you.     What do you think

21   about that?

22                 VENIREPERSON:    Slightly confusing but I can
23   see in the end where it would be possible.

24                 MR. BROOKS:    Well, let's start with where we

25   go back to when we were talking about the burdens of proof
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                                     Jury Voir Dire by Mr. Brooks



1    and the lowest level --
2                    VENIREPERSON:   Right.

3                    MR. BROOKS:   -- in terms of burden of proof

4    we talked about was reasonable suspicion.
5                    VENIREPERSON:   Matches the description.

6                    MR. BROOKS:   Well, reasonable suspicion as

7    we said, a person -- a reasonable person under
8    circumstances based upon specific and articulable facts

9    would suspect that a crime has been committed.

10                   VENIREPERSON:   Right.
11                   MR. BROOKS:   That's the lowest burden we

12   have.    So the question for the officer at that time, his

13   burden is much lower than your burden as a juror.
14                   VENIREPERSON:   Based on the evidence.

15   Correct.

16                   MR. BROOKS:   Because you have to base it
17   upon the evidence.

18                   VENIREPERSON:   Uh-hum.

19                   MR. BROOKS:   So if you take those two
20   burdens of proof, you can see how a perfectly valid --

21                   VENIREPERSON:   Yes.

22                   MR. BROOKS:   -- and lawful arrest could lead
23   to a perfectly valid and lawful not-guilty.    Does that make

24   sense?

25                   VENIREPERSON:   (Nods head.)
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                                    Jury Voir Dire by Mr. Brooks



1                   MR. BROOKS:   Now, something that has not
2    been talked about and I do want to talk about is

3    misdemeanor offenses versus felony offenses.

4                   Anyone know the difference off hand?    You
5    don't count.

6                   (Laughter.)
7                   MR. BROOKS:   Anyone other than our police
8    officer know the difference?

9                   VENIREPERSON:   I know there's a distinction

10   between the two.
11                  MR. BROOKS:   Ms. White.

12                  VENIREPERSON:   I'll try my best.

13   Misdemeanor is kind of a minor crime.     And a felony is a --
14   a bigger charge.

15                  MR. BROOKS:   Well --

16                  VENIREPERSON:   A bigger offense.
17                  MR. BROOKS:   Well, I don't want to downplay

18   any classification in our criminal justice system.    Let me

19   put it to you this way:   A misdemeanor offense is
20   punishable by jail time, county lockup.

21                  VENIREPERSON:   Okay.

22                  MR. BROOKS:   Felony convictions are
23   punishable by prison time.

24                  VENIREPERSON:   Okay.

25                  MR. BROOKS:   That's the difference.
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                                     Jury Voir Dire by Mr. Brooks



1    Misdemeanor case, the most you could go to jail is up to
2    one year.   A felony, depending on what felony it is, you

3    could spend anywhere up to the rest of your life in prison.

4    That's the functional difference.
5                    Now, how do you get there, misdemeanor

6    versus felony, is also a difference.     Because, you see, in

7    a felony case, all felony charges go before grand jury.
8                    Anybody here ever served on a grand jury?

9    Anybody know what a grand jury is?

10                   Mr. Christopher?
11                   VENIREPERSON:   Yes.

12                   MR. BROOKS:   Okay.    What is a grand jury?

13                   VENIREPERSON:   It's a group of people
14   similar to this that's convened prior to charges being

15   made, I guess, to see if there's enough evidence for

16   charges to be made.
17                   MR. BROOKS:   That's close.   Basically the

18   way it's works is, if you're arrested on a felony charge,

19   that case is forwarded for filing with that jurisdiction's
20   grand jury.   And that's 12 citizens and they review the

21   case.   They don't make a decision as to guilt or innocence.

22   They just make a decision as, is there enough here for this
23   to continue on in the criminal justice system?     If they

24   believe that, they issue what's called an indictment.     If

25   they don't believe that, the case is dropped.
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                                    Jury Voir Dire by Mr. Brooks



1                     And the distinction between that process and
2    the misdemeanor, there is no other review after the officer

3    files the charge.   There is no independent review by

4    another group of citizens to assess whether or not there's
5    enough here that this case should continue in the criminal

6    justice system.   That's the difference.

7                     We've already kind of talked about -- or,
8    actually, you guys have -- right against self

9    incrimination.    I'm just going to ask you, you had a break

10   and you had a chance to think about how you feel about a
11   person exercising their Fifth Amendment privilege not to

12   testify.

13                    Is there anybody that, based upon that break
14   and having a chance to sit and think about it, changing

15   their answer from what they previously advised the court

16   and the prosecutor?   Anybody change their mind on what they
17   previously said or felt?

18                    (No responses.)
19                    MR. BROOKS:   We'll move on.
20                    Now, judge gave some excellent reasons for

21   why a person on trial would not want to testify.   Another

22   reason, I would suggest to you, is what if on advice of
23   counsel?   And the lawyer has said they have not proven

24   their case.   Would that be a valid reason?

25                    Ms. White?
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                                   Jury Voir Dire by Mr. Brooks



1                  VENIREPERSON:    Yes.
2                  MR. BROOKS:     Mr. Christopher?

3                  VENIREPERSON:    Sure could.

4                  MR. BROOKS:     Okay.   Let's talk about -- I
5    know the state had touched a little bit on scientific

6    testing and I just want to ask you about the breath test.

7                  How many in the room thought that in a given
8    hypothetical you're pulled over, officer asks -- or, how

9    many of you -- strike that.   Let me ask it to you this way.

10                 Who in here thought that you had a right to
11   consult with an attorney prior to saying, yes, I will give

12   a breath test, or, no, I won't give a breath test?    Did

13   anyone think you had that right to do so?
14                 VENIREPERSON:    I knew you had the right to

15   decline.

16                 MR. BROOKS:     You have the right to decline,
17   that's correct.   But did you think that that -- you had the

18   right to consult with someone in terms of making that

19   decision?
20                 VENIREPERSON:    I never thought about it.

21                 MR. BROOKS:     Is there anyone here surprised

22   to find out you do not have the right to consult with an
23   attorney prior to making that decision?

24                 Ms. Radice?

25                 VENIREPERSON:    What was the question?
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                                   Jury Voir Dire by Mr. Brooks



1                  MR. BROOKS:    How would you feel about that?
2                  VENIREPERSON:     I think it's okay that you

3    don't have that right.

4                  MR. BROOKS:    Is there anyone that thinks it
5    would be -- Let me put it to you this way, different from

6    what's posed on the board.

7                  Would it be abnormal for a person to have
8    reservations about submitting to a test they know nothing

9    about?

10                 Ms. Simonson?
11                 VENIREPERSON:     Would it be abnormal?

12                 MR. BROOKS:    Yes, ma'am.

13                 VENIREPERSON:     Well --
14                 MR. BROOKS:    Let me ask it to you this way:

15   Do people normally set about and agree to tests that they

16   are not familiar with or don't know anything about?     Is
17   that a normal human reaction?

18                 VENIREPERSON:     Right.    And the law doesn't

19   require it, so I'm guessing most people are going to say,
20   no, I don't want the test.

21                 MR. BROOKS:    So can you see why some people

22   would be hesitant about wanting to take the test, if
23   they're not familiar with it or the process?

24                 VENIREPERSON:     Even if you had had one or

25   maybe two drinks, people are going to say no because
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                                   Jury Voir Dire by Mr. Brooks



1    they're not sure how that test is going to come out.
2                  MR. BROOKS:     That's a good answer.

3                  Anyone disagree with Ms. Simonson?

4                  Let me ask, Mr. Kieffer.
5                  VENIREPERSON:    Yes, sir.

6                  MR. BROOKS:     Hypothetically, you take the

7    test, someone makes a mistake.   Who pays the price?
8                  VENIREPERSON:    As stated there, the person

9    who makes the --

10                 MR. BROOKS:     Let's start off with the
11   machine makes an error.   Who pays the price?

12                 VENIREPERSON:    Well, that's what I'm saying.

13   If the machine makes the error, the person pays the price.
14   If the reading is positive.

15                 MR. BROOKS:     What do you do for a living?

16                 VENIREPERSON:    I'm a sales person.
17                 MR. BROOKS:     But you're familiar with

18   machinery, whether it's automobile, whether it's a power

19   drill?
20                 VENIREPERSON:    Yeah.

21                 MR. BROOKS:     You ever seen a 100 percent

22   infallible machine?
23                 VENIREPERSON:    (Shakes head.)

24                 MR. BROOKS:     Has anybody?

25                 What about if the operator makes an error,
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                                    Jury Voir Dire by Mr. Brooks



1    who pays the price?   Again, is it the operator?
2                   VENIREPERSON:   No.

3                   MR. BROOKS:   Does the -- or, does not taking

4    the test in and of itself prove that someone is
5    intoxicated?

6                   Ms. Radice?

7                   VENIREPERSON:   No.
8                   MR. BROOKS:   Mr. Sbaiti?

9                   VENIREPERSON:   No, it does not prove they're

10   intoxicated.
11                  MR. BROOKS:   Did I butcher your name again?

12                  VENIREPERSON:   It's Sbaiti.   It's okay.

13   Took my wife a year to say it right.
14                  (Laughter.)
15                  MR. BROOKS:   Ms. Simonson?

16                  VENIREPERSON:   No.
17                  MR. BROOKS:   Mr. Campbell?

18                  VENIREPERSON:   No.

19                  MR. BROOKS:   Ms. Walker?
20                  VENIREPERSON:   No.

21                  MR. BROOKS:   Ms. Stelling-Parker?

22                  VENIREPERSON:   No.
23                  MR. BROOKS:   Mr. Mercer?

24                  VENIREPERSON:   No.

25                  MR. BROOKS:   Mr. Byther?
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                             Jury Voir Dire by Mr. Brooks



1            VENIREPERSON:   No.
2            MR. BROOKS:   Byther, I'm sorry.

3            VENIREPERSON:   Byther.

4            MR. BROOKS:   Ms. Carbajal?
5            VENIREPERSON:   No.

6            MR. BROOKS:   Ms. White?

7            VENIREPERSON:   (Shakes head.)
8            MR. BROOKS:   Mr. Burdick?

9            VENIREPERSON:   No.

10           MR. BROOKS:   Mr. Pate?
11           VENIREPERSON:   No.

12           MR. BROOKS:   Mr. Brown?

13           VENIREPERSON:   No.
14           MR. BROOKS:   Mr. Christopher, how do you

15   feel?

16           VENIREPERSON:   I'm Kendall.
17           MR. BROOKS:   I'm sorry, sir.

18           VENIREPERSON:   No.

19           MR. BROOKS:   Mr. Christopher?
20           VENIREPERSON:   No.

21           MR. BROOKS:   Mr. Kieffer?

22           VENIREPERSON:   No.
23           MR. BROOKS:   How about you, Mr. Sennett?

24           VENIREPERSON:   No.

25           MR. BROOKS:   Ms. Parker?
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                                     Jury Voir Dire by Mr. Brooks



1                    VENIREPERSON:   No.
2                    MR. BROOKS:   Was that a no?

3                    VENIREPERSON:   No.

4                    MR. BROOKS:   Mr. Lewis?
5                    VENIREPERSON:   No.

6                    MR. BROOKS:   Mr. Cassedy?

7                    VENIREPERSON:   No.
8                    MR. BROOKS:   And Mr -- I'm going to screw

9    this up.   Noi-Migle?

10                   VENIREPERSON:   Noi-Mingle.
11                   MR. BROOKS:   Noi-Mingle.    I'm sorry.

12                   VENIREPERSON:   No.

13                   MR. BROOKS:   Mr. Moore?
14                   VENIREPERSON:   No.

15                   MR. BROOKS:   Ms. Spruiell, how do you feel?

16                   VENIREPERSON:   No.
17                   MR. BROOKS:   Mr. Fried?

18                   VENIREPERSON:   No.

19                   MR. BROOKS:   Do you feel that some people
20   might not be willing to submit to a test knowing that they

21   are innocent?

22                   Mr. Pate?
23                   VENIREPERSON:   Yes.

24                   MR. BROOKS:   Anyone disagree with Mr. Pate?

25                   (No responses.)
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                                      Jury Voir Dire by Mr. Brooks



1                     MR. BROOKS:   Okay.    I think we had also
2    already talked about or gone over social drinkers versus

3    non-drinkers.   I think there was one person that said they

4    don't drink.    Was that you, Mr. Kendall?    Mr. Kendall,
5    Mr. Christopher?   Was there a point in time where you did?

6                     VENIREPERSON:   Yes.

7                     MR. BROOKS:   Both of you?
8                     VENIREPERSON:   Yes.

9                     VENIREPERSON:   (Nods head.)

10                    MR. BROOKS:   Is there anyone else in the
11   group who used to drink socially but no longer drinks?

12                    VENIREPERSON:   I don't drink at all.

13                    THE COURT:    Ma'am, I don't think he can see
14   your hand.

15                    VENIREPERSON:   I don't drink at all.

16                    MR. BROOKS:   Okay.    You don't drink at all.
17   Thank you, Ms. Parker.

18                    We've already touched upon has anyone been

19   affected in anyway by a person with an alcohol or chemical
20   dependency.    Is there anyone in the group who didn't answer

21   previously when the state was asking those questions but

22   upon reflection now, wishes to answer that question?
23                    Mr. Christopher.

24                    VENIREPERSON:   The state asked whether I had

25   a family member affected by the crime of driving under the
                                                                    122
                                    Jury Voir Dire by Mr. Brooks



1    influence or crime of driving while intoxicated, and my
2    answer was no, but I have a sister who's an alcoholic.

3    She's not been charged with -- knock on wood -- driving

4    under the influence but she does have a dependency problem.
5                  MR. BROOKS:    Okay.     Thank you for sharing

6    that, sir.

7                  Anyone else?     Ms. White.
8                  VENIREPERSON:     My brother is a violent

9    alcoholic and my brother-in-law.

10                 MR. BROOKS:    There was someone else who
11   raised their hand down here.    Mr. Lewis?

12                 VENIREPERSON:     Yes.   When it was previously

13   stated, there was no mention of chemical dependency but the
14   answer to this question is, yes, my first wife had serious

15   chemical dependency problems.   In and out of rehab several

16   times.
17                 MR. BROOKS:    How long have y'all been

18   divorced?

19                 VENIREPERSON:     12 years -- no, I'm sorry.
20   20 -- I lose track of years.

21                 MR. BROOKS:    Anything about --

22                 VENIREPERSON:     One of those old age things.
23                 MR. BROOKS:    Anything about that experience

24   you think that would impact your ability to be fair in this

25   trial?
                                                                123
                                   Jury Voir Dire by Mr. Brooks



1                  VENIREPERSON:    No.    Because I didn't even --
2    had not even thought about it until just now when that

3    question came up, but, no, it would not.

4                  MR. BROOKS:    Mr. Christopher.   Anything
5    about your experience impact your ability?

6                  VENIREPERSON:    No.

7                  MR. BROOKS:    Ms. White?
8                  VENIREPERSON:    No.

9                  MR. BROOKS:    No?

10                 VENIREPERSON:    (Shakes head.)
11                 MR. BROOKS:    I think you were asked this

12   question also directly.   Any of you been harmed directly or

13   indirectly by person suspected of being drunk driver?
14   Anyone who hadn't previously answered that question want to

15   share anything now?

16                 (No responses.)
17                 MR. BROOKS:    Okay.

18                 Anyone on the first row have friends or

19   family in law enforcement?   Mr. Sbaiti?
20                 VENIREPERSON:    Yes.

21                 MR. BROOKS:    Who?

22                 VENIREPERSON:    I have friends in the Addison
23   police department and Dallas police department.

24                 MR. BROOKS:    Are these casual acquaintances,

25   are these get together, watch football type of
                                                                   124
                                      Jury Voir Dire by Mr. Brooks



1    acquaintances?
2                     VENIREPERSON:   They're guys I went to high

3    school with, so I see them occasionally but not regularly.

4                     MR. BROOKS:   And anything in terms of, if
5    you ran into them and told them that you were a juror on a

6    D W I case and that you felt that the evidence wasn't

7    proven beyond a reasonable doubt, anything in that cause a
8    concern in y'all's relationships?

9                     VENIREPERSON:   No.

10                    MR. BROOKS:   Who else on the first row?
11   Ms. White?

12                    VENIREPERSON:   My brother-in-law --

13   different brother-in-law is an officer for city of Sachse.
14                    MR. BROOKS:   I hope you have different

15   brothers-in-law.

16                    (Laughter.)
17                    MR. BROOKS:   He's in Sachse?

18                    VENIREPERSON:   Sachse officer.

19                    MR. BROOKS:   Same question.    If you were to
20   end up on this jury and based upon the evidence that you

21   heard, you felt that the state had not proven their case

22   beyond a reasonable doubt, would that cause you any issues
23   between you and your brother-in-law?

24                    VENIREPERSON:   No.

25                    MR. BROOKS:   Anyone on the second row?    Have
                                                                     125
                                      Jury Voir Dire by Mr. Brooks



1    friends or family in law enforcement?
2                     Mr. Lewis.

3                     VENIREPERSON:   Yes.    My father, for

4    basically all of my life before he passed away, was a
5    security policeman for a large -- large defense contractor

6    in Fort Worth.   He was security policeman for all of his

7    life.   So I -- I pretty much have a very, very strong --
8                     MR. BROOKS:   Law enforcement background?

9                     VENIREPERSON:   Law enforcement pro, you

10   know, in my family.
11                    MR. BROOKS:   Let me ask you this then:

12   Would you value the word of a police officer over others?

13                    VENIREPERSON:   Yeah, I have to say yes.
14                    MR. BROOKS:   So just so that we're clear, if

15   a police officer were to testify, his testimony is going to

16   start him off a little bit ahead in terms of credibility
17   than any other witness?

18                    VENIREPERSON:   Yeah.   Yeah.

19                    THE COURT:    I can't hear your answer, sir.
20                    VENIREPERSON:   Yes.    Yes, that's just the

21   way I was raised, the way I felt all my life.

22                    MR. BROOKS:   Thank you, sir.
23                    Ms. Parker, I think you raised your hand.

24                    VENIREPERSON:   Fireman.

25                    MR. BROOKS:   Same question.    Anything about
                                                                    126
                                     Jury Voir Dire by Mr. Brooks



1    -- kind of a different question.      Anything about you
2    potentially being a juror and potentially finding someone

3    not guilty that would affect that relationship?

4                    VENIREPERSON:   (Shakes head.)
5                    MR. BROOKS:   Was that a no?

6                    VENIREPERSON:   No.

7                    MR. BROOKS:   Okay.    Anyone else on the
8    second row?

9                    Yes, sir.   Mr. Kieffer.

10                   VENIREPERSON:   Friends in The Colony police
11   department.   And the second question, no, about the effect,

12   if I had to give a guilty.

13                   MR. BROOKS:   Anyone else?
14                   VENIREPERSON:   (Indicating)

15                   MR. BROOKS:   I guess that's everybody you

16   know.   I'm not sure how to ask you that question.
17                   (Laughter.)
18                   MR. BROOKS:   Okay.    Anyone else -- I will

19   give you a pass.
20                   Anyone else on the third row?    Mr. Fried.

21                   VENIREPERSON:   My brother's recently retired

22   Philadelphia police officer.
23                   MR. BROOKS:   Anything about being a juror,

24   potentially finding someone not guilty, that would affect

25   that relationship?
                                                                    127
                                     Jury Voir Dire by Mr. Brooks



1                    VENIREPERSON:   No.
2                    MR. BROOKS:   Thank you, sir.

3                    VENIREPERSON:   Can I add?

4                    MR. BROOKS:   Yes, ma'am.
5                    VENIREPERSON:   Well, the question is law

6    enforcement.   So to me I think, you know, sheriff people,

7    not -- you know, in uniform but my father is retired Air
8    Force and been in the security field for the Department of

9    Defense and major contractors for the last 25 years.     So,

10   yeah, I'm kind of -- tend to side more with the cops.
11                   MR. BROOKS:   So a police officer, in terms

12   of credibility, he's going to start off ahead of anybody

13   else?
14                   VENIREPERSON:   Yeah.

15                   MR. BROOKS:   So you would view his testimony

16   differently?
17                   VENIREPERSON:   Yes.

18                   MR. BROOKS:   Thank you, ma'am.

19                   Did I miss anyone on that question?    Thank
20   you.

21                   I'm almost finished, folks.     Wrapping up.

22                   Anyone on the panel -- let me go by row.
23   First row, participated with Mothers Against Drunk Driving

24   or has donated money to Mothers Against Drunk Driving?

25   Anyone on the first row?   Or Students Against Drunk Driving
                                                                128
                                   Jury Voir Dire by Mr. Brooks



1    as well.
2                  Anyone on the second row?

3                  Mr. Sennett.

4                  VENIREPERSON:   Yeah, I've donated before to
5    MADD.

6                  MR. BROOKS:    To MADD or SADD?

7                  VENIREPERSON:   MADD.
8                  MR. BROOKS:    Was that recently?

9                  VENIREPERSON:   Probably five, six years ago.

10                 MR. BROOKS:    You ever do anything other than
11   just donating, participating in workshops or anything like

12   that?

13                 VENIREPERSON:   No.
14                 MR. BROOKS:    Anyone else?    Mr. Fried.

15                 VENIREPERSON:   I donated to MADD in the

16   past, not recently.
17                 MR. WILSON:    Okay.   And Ms. Spruiell?

18                 VENIREPERSON:   Uh-hum.   Donated.

19                 MR. BROOKS:    Basically have one last
20   question, folks.

21                 And the question is quite simply this:      At

22   the end of the testimony for those who end up on the jury,
23   if at the end of the testimony, you feel that the state has

24   probably proven their case but has not proven it beyond a

25   reasonable doubt, what is your verdict?     Again, at the end
                                                                129
                                    Jury Voir Dire by Mr. Brooks



1    of testimony, you believe they probably have proven their
2    case but they have not proven it to you beyond a reasonable

3    doubt.

4                   VENIREPERSON:   Guilty.
5                   MR. BROOKS:   Your verdict would be guilty?

6                   VENIREPERSON:   Guilty.

7                   MR. BROOKS:   Okay.    I just want to make sure
8    you understand what my question is.    Probably but they have

9    not proven it beyond a reasonable doubt.     You would still

10   vote guilty?
11                  VENIREPERSON:   Yes.

12                  MR. BROOKS:   Mr. Sbaiti?

13                  VENIREPERSON:   Not guilty.
14                  MR. BROOKS:   Ms. Simonson?

15                  VENIREPERSON:   Not guilty.

16                  MR. BROOKS:   Mr. Campbell?
17                  VENIREPERSON:   Not guilty.

18                  MR. BROOKS:   Ms. Walker?

19                  VENIREPERSON:   Not guilty.
20                  MR. BROOKS:   Ms. Stelling-Parker?

21                  VENIREPERSON:   Not guilty.

22                  MR. BROOKS:   Mr. Mercer?
23                  VENIREPERSON:   Not guilty.

24                  MR. BROOKS:   Mr. Byther?

25                  VENIREPERSON:   Not guilty.
                                                                 130
                                      Jury Voir Dire by Mr. Brooks



1                     MR. BROOKS:   Ms. Carbajal?
2                     VENIREPERSON:   I don't understand very well

3    that question.

4                     MR. BROOKS:   We'll come back to you,
5    Ms. Carbajal.

6                     Ms. White?

7                     VENIREPERSON:   Not guilty.
8                     MR. BROOKS:   Mr. Burdick?

9                     VENIREPERSON:   Not guilty.

10                    MR. BROOKS:   Mr. Pate?
11                    VENIREPERSON:   Not guilty.

12                    MR. BROOKS:   Mr. Brown?

13                    VENIREPERSON:   Not guilty.
14                    MR. BROOKS:   Mr. Kendall?

15                    VENIREPERSON:   Not guilty.

16                    MR. BROOKS:   Mr. Christopher?
17                    VENIREPERSON:   Not guilty.

18                    MR. BROOKS:   Mr. Kieffer?

19                    VENIREPERSON:   Not guilty.
20                    MR. BROOKS:   Mr. Sennett?

21                    VENIREPERSON:   Not guilty.

22                    MR. BROOKS:   Ms. Parker?
23                    VENIREPERSON:   Not guilty.

24                    MR. BROOKS:   Mr. Lewis?

25                    VENIREPERSON:   Not guilty.
                                                                  131
                                    Jury Voir Dire by Mr. Brooks



1                   MR. BROOKS:   Mr. Cassedy?
2                   VENIREPERSON:   Not guilty.

3                   MR. BROOKS:   Mr. Noi-Mingle?

4                   VENIREPERSON:   Yes.   Not guilty.
5                   MR. BROOKS:   Mr. Moore?

6                   VENIREPERSON:   Not guilty.

7                   MR. BROOKS:   Ms. Spruiell?
8                   VENIREPERSON:   Not guilty.

9                   MR. BROOKS:   Mr. Fried?

10                  VENIREPERSON:   Not guilty.
11                  MR. BROOKS:   Well, folks, I think that -- I

12   want to thank you for your time.   Now, before I sit down,

13   is there anyone that has any questions of me?   Because this
14   is the only time -- for those of you who might end up on

15   the jury, this is the only time we get to talk back and

16   forth like this.
17                  The six of you that get selected to sit in

18   the box, let you know right now, there are going to be some

19   times, even if this is just a very short trial, we may pass
20   each other in the hallway, to and from the restroom.   I let

21   you know right now, I won't say anything to you.    It's not

22   because I think I'm better than y'all or anything like
23   that.   It's just that the rules down here require us to

24   avoid any appearance of impropriety.   I have yet to have a

25   criminal case where it did happen.    So we will pass each
                                                                  132
                                     Jury Voir Dire by Mr. Brooks



1    other at some point in a short break.     So don't get
2    offended if I don't acknowledge your presence.    Okay?    If

3    you don't have any questions of me, I'm going to sit down.

4    I thank you for your time.
5                    THE COURT:   Before I release you to the

6    hallway, Mr. Lewis, I need to understand your answer with

7    regards to law enforcement.
8                    Why would you give a police officer more

9    credibility or believe them -- be more likely to believe

10   them than some other person?    Is it based on what?
11                   VENIREPERSON:   Just the fact that my father

12   was a security police officer for all of his -- all of his

13   adult career, all of his life, you know.    I watched him put
14   on his uniform and put on his gun every day, you know, and

15   go to work.   And come home from work.    And he -- I just

16   always have had -- felt just a high regard --
17                   THE COURT:   Okay.

18                   VENIREPERSON:   A higher regard for an

19   officer.
20                   THE COURT:   All right.   Thank you very much.

21                   All right.   Ladies and gentlemen, I'm going

22   to release you into the hallway.     The attorneys are going
23   to strike their lists.   When you come back in, you can sit

24   anywhere you want, on any row, any side of the courtroom,

25   just take the first available seat.
                                                                133




1                  The reason, we've taken all the notes we're
2    going to take about you, I'm going to announce the six of

3    you who are going to be with us for the remainder of the

4    trial.
5                  The rest of you, you need a note showing

6    you've been here, stay behind when I release everyone else

7    and my bailiff will provide you the form.   All right?
8    Thank you very much.

9                  Bailiff, take charge of the panel.

10                 THE BAILIFF:   All rise.
11                 THE COURT:    May I see the attorneys at the

12   bench.

13                 (The jury panel exits.)
14                 THE COURT:    All right.   Let the record

15   reflect that all of the panel members are outside.   All the

16   parties are present.
17                 Challenges for cause from the state?

18                 MR. WILSON:    The state offers challenge for

19   cause juror number one, Robin Radice.
20                 THE COURT:    What says the defense?

21                 MR. BROOKS:    Defense would agree.

22                 THE COURT:    All right.   Struck by agreement.
23                 MR. WILSON:    Juror number five, Loretta

24   Walker.

25                 THE COURT:    What says the defense?
                                                                   134




1                    MR. BROOKS:   What grounds?
2                    MR. WILSON:   She said that she would not be

3    able to separate her prior D W I experience from the

4    defendant and that she would be comparing what the kind of
5    drinking and location and circumstances of her arrest to

6    what happened with the defendant.

7                    MR. BROOKS:   I agree.
8                    THE COURT:    Number five, Loretta Walker, is

9    struck by agreement.

10                   Next.
11                   MR. WILSON:   Number eight.

12                   THE COURT:    What says the defense?

13                   MR. BROOKS:   I think number eight, I think
14   he rehabilitated himself, judge.

15                   THE COURT:    On what grounds?

16                   MR. WILSON:   Your Honor, my grounds are that
17   he stated that he would need to hear from the defendant,

18   hear her testimony, so he would have difficulty following

19   the Fifth Amendment.
20                   THE COURT:    I've got him marked as on the

21   Fifth Amendment as well.

22                   MR. BROOKS:   Yes, I see that on here.   I
23   agree, judge.

24                   THE COURT:    You agree to number eight being

25   struck?
                                                               135




1                  MR. BROOKS:   Yes, I do.
2                  THE COURT:    Number eight struck by

3    agreement.

4                  Next.
5                  MR. WILSON:   Juror number 10, Cynthia White.

6    She also was one who indicated a problem following the

7    Fifth Amendment.
8                  THE COURT:    What says the defense?

9                  MR. BROOKS:   Agree, judge.

10                 THE COURT:    Struck by agreement.
11                 Next.

12                 MR. WILSON:   Juror number 13, Michelle

13   Parker, said that she would not be able to convict based on
14   mental faculties and would also require a breath or blood

15   specimen.

16                 THE COURT:    What says the defense?
17                 MR. BROOKS:   Agree, judge.

18                 THE COURT:    Number 13, Michelle Parker,

19   struck by agreement.
20                 Next.

21                 MR. WILSON:   That's all from the state, Your

22   Honor.
23                 THE COURT:    Any from the defense?

24                 MR. BROOKS:   Juror number six, judge.    She

25   has said that law enforcement would have more credibility
                                                                  136




1    with her from the outset than any other witness.
2                  THE COURT:    What says the state?

3                  MR. WILSON:    Your Honor, could we bring the

4    juror number six back in and talk to her?
5                  THE COURT:    I think she was very clear about

6    her law enforcement bias.   Plus I have notes on her that

7    she also raised her hand when I was explaining the Fifth
8    Amendment.

9                  MR. WILSON:    Then we have no disagreement,

10   Your Honor.
11                 THE COURT:    Number six is struck by

12   agreement.

13                 Any other challenges from the defense?
14                 MR. BROOKS:    Just one second, judge.   No,

15   Your Honor.

16                 THE COURT:    What about Mr. Lewis and his law
17   enforcement bias?

18                 MR. BROOKS:    Oh, that's right.   Yes, number

19   12.
20                 THE COURT:    What says the state?

21                 MR. WILSON:    Your Honor, I feel like

22   Mr. Lewis has just said that he would -- he has a lot of
23   respect for law enforcement, that he would give them

24   credibility but I don't believe -- don't believe that we've

25   heard enough to say that he would not be able to follow the
                                                                  137




1    law.
2                     THE COURT:    Number 12 is struck for cause by

3    the court.

4                     And what did the attorneys say about
5    Ms. Carbajal and her ability to understand the English

6    language?    I noticed during several questions she responded

7    she doesn't understand the question.
8                     MR. WILSON:   Your Honor, I would -- the

9    state would request that Ms. Carbajal be struck for cause.

10                    MR. BROOKS:   I mean, I would agree to
11   release her, judge.   I don't know if it's for cause but I

12   agree.

13                    THE COURT:    She's struck by agreement.
14                    Any others?

15                    MR. WILSON:   None from the state, Your

16   Honor.
17                    THE COURT:    Anything else from the defense?

18                    MR. BROOKS:   No, sir.

19                    THE COURT:    All right.   Check on that, the
20   list of jurors.   Looks to me like -- strike your list up to

21   and including number 20.

22                    Ms. Singletary, is that what the state
23   shows?

24                    MS. SINGLETARY:   That's what I see, judge.

25                    THE COURT:    I beg your pardon?
                                                                     138




1                    MS. SINGLETARY:    That's what I see.
2                    THE COURT:    Is that what you show as well,

3    Mr. Brooks?

4                    MR. BROOKS:    Yes, judge.
5                    THE COURT:    All right.   Let's go over it one

6    more time to be clear.     These are people struck by either

7    cause or agreement.   Number one is struck.      Number five.
8    Number six.   Number eight.   Number nine.    Number 10.

9    Number 12.    Number 13.

10                   Any objections to those from the state?
11                   MR. WILSON:    No, Your Honor.

12                   THE COURT:    Any from the defense?

13                   MR. BROOKS:    No, Your Honor.
14                   THE COURT:    Strike your lists up to and

15   including panel member number 20, please.

16                   (Recess at 1:06 P M, resuming at 1:17 P M.
17                   Defendant present.)
18                   THE COURT:    All right.   Listen closely as I

19   call over the ones I show you struck.      I show the state has
20   struck panel member number two, Mr. Sbaiti.       Panel member

21   number 11, Shawn Cassedy.     And panel member number 19,

22   Billy Pate.   Is that correct?
23                   MR. WILSON:    Yes, Your Honor.

24                   THE COURT:    I show the defense has struck

25   panel member number 14, Brian Sennett.       Number 17, Jon
                                                                   139




1    Kendall.   Number 18, Robert Brown.    Is that correct?
2                     MR. BROOKS:    Yes, Your Honor.

3                     THE COURT:    This will be your jury:   Number

4    three, Carol Simonson.   Number four, David Campbell.
5    Number seven, Kelly Mercer.     Number 15, Matthew Kieffer.

6    Number 16, David Christopher.     And number 20, Michael

7    Burdick.
8                     Any objection to the array of the panel from

9    the prosecution?

10                    MR. WILSON:    No, Your Honor.
11                    THE COURT:    Any from the defense?

12                    MR. BROOKS:    No, Your Honor.

13                    THE COURT:    All right.   Bailiff, would you
14   bring them in.   Here's the list.

15                    THE BAILIFF:   Yes, sir.    All rise.

16                    (The jury panel enters.)
17                    THE COURT:    When you come in, you can just

18   have a seat anywhere in the courtroom.

19                    All right.    Thank you.   Everyone else may be
20   seated.

21                    If I call out your name, please gather all

22   of your possessions, come through the swinging doors, go up
23   to the jury box, go in that swinging door.        You can sit on

24   the front row or the back row, whichever you're more

25   comfortable, but please go all the way down to the end of
                                                                 140




1    the row just to make room for the other jurors that will be
2    coming in behind you.

3                   The jury will consist of:     Carol Simonson;

4    David Campbell; Kelly Mercer; Matthew Kieffer -- Is it
5    Kieffer or Kiffer?

6                   VENIREPERSON:    Kieffer.

7                   THE COURT:   Thank you.     David Christopher.
8    And number 20, Michael Burdick.

9                   To those of you who were not chosen, dry

10   your eyes, don't be so sad.    But in all seriousness, if we
11   want our criminal justice system to work the way it was

12   intended, then your service is just as important as those

13   who were chosen this particular day.     So with that, you are
14   excused.   This concludes your jury service.    If any of you

15   need a note, please see my bailiff and we'll provide one

16   showing that you were here today.
17                  Thank you for your service.

18                  THE BAILIFF:    All rise.

19                  THE COURT:   Not you.
20                  THE JUROR:   Not us.

21                  (The jury panel exits.)
22                  THE COURT:   Everyone may be seated.    As for
23   the six of you who remain with us, please stand, raise your

24   right hand, so I may administer your oath as jurors to you.

25                  (The court swears the jury.)
                                                                     141




1                    THE COURT:   Carol Simonson.
2                    THE JUROR:   Yes, I do.

3                    THE COURT:   David Campbell?

4                    THE JUROR:   Yes.
5                    THE COURT:   Kelly Mercer.

6                    THE JUROR:   Yes.

7                    THE COURT:   Matthew Kieffer?
8                    THE JUROR:   Yes.

9                    THE COURT:   David Christopher?

10                   THE JUROR:   I do.
11                   THE COURT:   Michael Burdick.

12                   THE JUROR:   Yes.

13                   THE COURT:   Thank you.      You may be seated.
14                   By the oath you've taken as jurors, you

15   become officials of this court and active participants in

16   the public administration of justice.        In a moment, the
17   bailiff is going to take you back to what will be called

18   the jury deliberation room.   That's where you will meet and

19   discuss the case, but not until after all the evidence is
20   presented and I've given you your written instructions.

21                   This is very important, that you not discuss

22   anything about this case or any other case until I've given
23   you those written instructions.      Okay?   And then you can

24   only do it after the evidence is closed and all six of you

25   are together.
                                                                  142




1                     He's also going to give you a badge.   That
2    badge serves two very important purposes.     One, it lets you

3    gain access to the locked part of the courtroom so you can

4    get back to your jury deliberation room.     And it serves as
5    a visual indicator that you're on a jury.

6                     It won't surprise you that when I release

7    you for lunch in a minute that you're going to go to some
8    restaurant, there will be attorneys, other jurors,

9    prosecutors, defense attorneys and defendants, and they're

10   talking about cases.    If you can hear anyone discussing a
11   case in your presence, go up and let them know that you're

12   a juror and let them know that you can hear the

13   conversation.
14                    I've never even heard of a situation where

15   that didn't stop the conversation, but if it doesn't, just

16   report to my bailiff what occurred and we'll take care of
17   it.   Okay?   But you have to wear that juror badge on the

18   outside of your clothing where everyone can clearly see it.

19                    The bailiff is going to give you a security
20   briefing also.    You're in good hands.

21                    It's now 1:30.   Going to take him about 10

22   minutes to give you that briefing.     I'm going to let you go
23   to lunch.     Be back here at 2:45.   I want the attorneys and

24   all parties present to be here at 2:40, five minutes early,

25   so we're not keeping the jury waiting when they come back.
                                                                   143




1    I still think we'll finish this in one day.
2                   With that, follow the bailiff, and he'll

3    give you your security briefing.

4                   Thank you for your service.
5                   THE BAILIFF:   All rise.

6                   THE COURT:    When you come in, just come in;

7    everyone will always be standing.   Just have a seat when
8    you come in.

9                   (The jury exits.)
10                  THE COURT:    Everyone may be seated.   I'll
11   see everyone back at 2:40.

12                  (Recess at 1:25 P M.   Proceedings resume in
13                  Volume 3.)
14

15

16
17

18

19
20

21

22
23

24

25
                        (Jury Not Present)
                                                                 144




1    STATE OF TEXAS     )
2    COUNTY OF COLLIN   )

3

4        I, Marigay Black, Official Court Reporter in and for
5    the County Court at Law Number Two, County of Collin, State

6    of Texas, do hereby certify that the above and foregoing

7    contains a true and correct transcription of all portions
8    of evidence and other proceedings requested in writing by

9    counsel for the parties to be included in this volume of

10   the Reporter's Record in the above-styled and numbered
11   cause, all of which occurred in open court or in chambers

12   and were reported by me.

13       I further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits, if

15   any, offered by the respective parties.

16       Signed this 26th day of March, 2014.
17

18                              /S/   Marigay Black

19                              MARIGAY BLACK, Texas CSR 351
                                Official Court Reporter
20                              County Court at Law Number Two
                                Suite 10344
21                              2100 Bloomdale Road
                                McKinney, Texas 75071
22                              Tel: 972-548-3823
                                FAX: 972-548-3828
23                              Expiration: 12/31/2014
                                mblack@co.collin.tx.us
24

25
                                                                  1
                                            Trial on the Merits
                                               December 2, 2013


1                           REPORTER'S RECORD
                          VOLUME 3 OF 5 VOLUMES
2                 TRIAL COURT CAUSE NO. 002-80051-2013
                COURT OF APPEALS CASE NO. 05-14-00025-CR
3
     THE STATE OF TEXAS               ) IN THE COUNTY COURT
4                                     )
     VS.                              ) AT LAW NUMBER TWO
5                                     )
     MELLANNISE HENDERSON             ) COLLIN COUNTY, TEXAS
6

7
8             _____________________________________________

9                          TRIAL ON THE MERITS
              _____________________________________________
10
11

12         On the 2nd day of December, 2013, the following

13   proceedings came on to be heard in the above-titled and
14   numbered cause before the Honorable Barnett Walker, Judge

15   Presiding, and a jury, held in McKinney, Collin County,

16   Texas.
17         Proceedings reported by computerized stenotype

18   machine.

19
20

21

22
23

24

25
                                                                2
                                          Trial on the Merits
                                             December 2, 2013


1                      A P P E A R A N C E S
2    Mr. Justin B. Wilson
     SBOT NO. 24080521
3    Ms. Geeta Yadav Singletary
     SBOT NO. 24060862
4    Office of Greg Willis, District Attorney
     Suite 100
5    2100 Bloomdale Drive
     McKinney TX 75071
6    Telephone: 972-548-4323
     Facsimile: 972-548-3622
7
8                              Attorneys for The State of Texas

9

10   Mr. Kevin Brooks
     SBOT NO. 03070735
11   Attorney at Law
     Suite 2475
12   325 N. Paul
     Dallas TX 75201
13   Telephone: 214-922-0212
     Facsimile: 214-922-0294
14
                                     Attorney for The Defendant
15

16
17

18

19
20

21

22
23

24

25
                                                                       3
                                                 Trial on the Merits
                                                    December 2, 2013


1                                  VOLUME 3
2                            Trial on the Merits

3    December 2, 2013

4                                                    PAGE     VOL.
5    Arraignment .................................6            3

6    Opening Statement by Mr. Wilson .............7           3

7
8    WITNESS:                   DIRECT   CROSS      V. DIRE

9    CLIFTON CORLEY

10     By   Mr.   Wilson        10 v3
       By   Mr.   Brooks                 45 v3
11     By   Mr.   Wilson        60 v3
       By   Mr.   Brooks                 63 v3
12

13                                                   PAGE     VOL.
14   State rests    ...............................66         3

15   Defendant rests       ...........................67      3

16   Both Sides Close ...........................67           3
17   Reporter's Certificate .....................71           3

18

19
20

21

22
23

24

25
                                                                 4
                                           Trial on the Merits
                                              December 2, 2013


1                 ALPHABETICAL INDEX OF WITNESSES

2                        DIRECT    CROSS    V. DIRE
3    Corley, Clifton       10 v3   45 v3
     Corley, Clifton       60 v3   63 v3
4
5

6

7
8

9

10
11

12

13
14

15

16
17

18

19
20

21

22
23

24

25
                                                                  5
                                          Trial on the Merits
                                             December 2, 2013


1                        INDEX OF EXHIBITS

2                   Use is indicated as follows:
         J - Jury     R - Record Only     D - Demonstrative
3     W/D - Withdrawn    ID - Identification Only    C- Court

4    EXHIBIT     DESCRIPTION           OFFERED   ADMITTED   USE
5    SX 1      DVD                     22 v3      22 v3     J

6    SX 2      DIC 24 form             42 v3      42 v3     J

7
8

9

10
11

12

13
14

15

16
17

18

19
20

21

22
23

24

25
                                                                      6
                                                Trial on the Merits
                                                   December 2, 2013


1                    (Proceedings occurring in open court,
2                    commencing at 2:47 P M.     Defendant present.)
3                    THE BAILIFF:   All rise.

4                    (The jury enters.)
5                    THE COURT:    Thank you.   Everyone may be

6    seated.    Let the record reflect that all parties are

7    present.
8                    Does the state wish to come forward and read

9    the information?

10                   MR. WILSON:    Yes, Your Honor.   Thank you.
11                   Members of the jury.   In the name and by the

12   authority of the State of Texas, now comes the Criminal

13   District Attorney of Collin County, State of Texas, and
14   presents in and to the County Court at Law Number Two of

15   Collin County, state aforesaid, that one, Mellannise

16   Henderson-Love, hereinafter styled the defendant,
17   heretofore on or about the 1st day of December, 2012, in

18   the County of Collin and the State of Texas, did then and

19   there operate a motor vehicle in a public place while the
20   defendant was intoxicated, against the peace and dignity of

21   the state.

22                   Signed the Criminal District Attorney of
23   Collin County, State of Texas.

24                   THE COURT:    What says the defendant?

25                   MR. BROOKS:    If it please the court, members
                                                                     7
                                               Trial on the Merits
                                                  December 2, 2013


1    of the jury, the defendant pleads not guilty.
2                   THE COURT:    Thank you.

3                   The state wish to make an opening statement?

4                   MS. SINGLETARY:     Yes, Your Honor.
5                   THE COURT:    You may proceed.

6                         OPENING STATEMENT

7                   MR. WILSON:   May it please the court.
8    Counsel.   Members of the jury.

9                   Nothin'.   I've had nothing to drink tonight.

10   That's the story that the defendant told the officer around
11   12:47 A M on December 1st, 2012.    But the facts as you will

12   hear them through testimony and as you will see them

13   through the presentation of video evidence will paint a
14   very different picture for you.

15                  You're going to meet Officer Corley of the

16   Richardson police department.     He's going to tell you about
17   how around 12:47 A M, December 12th -- or, December 1st,

18   2012, he was driving down the street.     He was going to

19   provide backup for another officer.
20                  You'll hear testimony from him saying that

21   it's a rare thing that these police officers, when they are

22   en route to provide backup for another officer, it's a very
23   rare thing for them to pull off and get diverted and wind

24   up taking care of some other situation rather than

25   providing backup to the requesting officer.     But in this
                                                                   8
                               Opening Statement by Mr. Wilson
                                              December 2, 2013


1    case, Officer Corley is going to tell you that he observed
2    driving facts that made him concerned about the safety of

3    the officer that was up the road ahead and concerned for

4    himself.   And so he initiated a traffic stop on the
5    defendant.

6                   When he approached the defendant's car,

7    you're going to hear testimony that he smelled a strong
8    odor of alcohol coming from her breath, that he saw watery

9    eyes, that he heard slurred speech.   When he asked her for

10   her driver's license and her proof of insurance, took an
11   exceptionally long time for her to produce those documents.

12   He had to ask her a second time for the insurance.

13                  After observing the various factors that he
14   observed at that point in time, Officer Corley asked the

15   defendant to step out of her vehicle, to perform a battery

16   of field sobriety tests, in order to determine whether she
17   would be safe to continue driving on the roads that night.

18                  Officer Corley gave her some simple

19   instructions to perform a test called the horizontal gaze
20   nystagmus test.   You will see on video and you will hear

21   the words from the defendant that will show you that this

22   defendant had an extremely difficult time following a
23   simple set of instructions, to follow a stimulus with her

24   eyes, without moving her head.   After minutes of trying to

25   get the defendant to follow the simple instructions, the
                                                                  9
                                Opening Statement by Mr. Wilson
                                               December 2, 2013


1    officer observed what he needed to observe.   He moved on to
2    ask the defendant to perform another couple of tests, the

3    walk-and-turn and the one-leg stand.

4                    The defendant refused to perform those
5    simple tests, tests that the officer will tell you that

6    only take a few minutes to perform, and the reason is

7    because the defendant was consumed with her need to go to
8    the bathroom.   Rather than take a few minutes to perform

9    the tests and then be able to move on and go to the

10   restroom as she said that she so desperately needed to do,
11   she engages in the back and forth with the officer that

12   winds up taking much longer time than would have been

13   necessary had she just performed those tests.
14                   Now, after that, the officer felt like he

15   had all the information he needed to place the defendant

16   under arrest for driving while intoxicated.   He takes her
17   to the Richardson city jail.   And while at the jail, he

18   asked the defendant for a specimen of her breath.   You will

19   see on video, you will hear from the words the defendant
20   said, that she refuses to provide that specimen of her

21   breath.   She was given the opportunity, even though she

22   said that she had consumed no alcohol at all that night,
23   she was given the opportunity to provide a specimen of her

24   breath, and she refused.   And you will find out that a

25   warning, a statutory warning, that the officer read to her
                                                                      10
                                   Opening Statement by Mr. Wilson
                                                  December 2, 2013


1    made her well aware of the consequences of that refusal,
2    180 days, driver's license suspension.      But even with that

3    consequence looming, she still refused.

4                     And I believe that when all is said and done
5    today, you're going to have all the evidence that you need

6    to believe beyond a reasonable doubt that this defendant is

7    guilty of the offense of driving while intoxicated.
8                     THE COURT:    Thank you, counsel.

9                     Mr. Brooks, would you like to make your

10   opening now or reserve?
11                    MR. BROOKS:   We'll reserve our right.

12                    THE COURT:    All right.   Call your first

13   witness.
14                    MR. WILSON:   State calls Officer Corley.

15                    THE COURT:    Officer Corley.   Sir, would you

16   please raise your right hand and be sworn in.
17                    (The court swears the witness.)
18                    THE COURT:    Thank you.   State may proceed.

19                    MR. WILSON:   Thank you, Your Honor.
20                          CLIFTON CORLEY,

21   having been first duly sworn, testified as follows:

22                         DIRECT EXAMINATION

23   BY MR. WILSON:
24      Q.      Officer, will you please introduce yourself to

25   the jury and state your name for the record.
                                                                  11
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1       A.      My name is Officer Clifton Corley with the
2    Richardson police department.

3       Q.      And, Officer Corley, how long have you been an

4    officer with the Richardson police department?
5       A.      About eight and-a-half years.

6       Q.      Are you a certified peace officer?

7       A.      Yes, sir.
8       Q.      How long have you been certified peace officer?

9       A.      About eight of those years.

10      Q.      And what current duties do you perform with the
11   Richardson P D?

12      A.      The duty I'm assigned now is routine patrol which

13   includes traffic stops, answering calls for service, and so
14   forth.

15      Q.      Are you a field training officer as well?

16      A.      Yes, sir.
17      Q.      What duties do you have as a field training

18   officer?

19      A.      As a field training officer, I will take new
20   officers that are coming to the street and show them the

21   basic training that they will need to continue to a

22   successful career as a police officer.
23      Q.      Describe to the jury the training and education

24   that you have to undergo in order to become a certified

25   peace officer.
                                                                  12
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1          A.   To become a police officer, I was hired by the
2    city first and then the city put me through an academy to

3    become certified by the state.   It's an academy that's

4    about six months long.   Once we graduate that police
5    academy, we go to our city's, what we call a mini academy

6    where we undergo another 45 days of training.

7                   Once that occurs, we complete that
8    successfully, we move on to our field training officer, who

9    we do about three months of field training, and then that

10   field training officer, or a series of, will determine if
11   we are suitable to continue.

12         Q.   Are you certified to perform the standardized

13   field sobriety tests?
14         A.   Yes, sir, I am.

15         Q.   How long have you had that certification?

16         A.   About eight and-a-half years.
17         Q.   Have you undergone any refreshers during that

18   eight and-a-half year time span?

19         A.   I have undergone two refreshers, the last one
20   being about a year and-a-half ago.

21         Q.   Over the span of your career with the Richardson

22   police department, would you say you have performed few or
23   many D W I stops?

24         A.   I would say -- I would call it many.   About 50 or

25   so.
                                                                  13
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1       Q.    Now, I'd like to direct your attention to
2    December 1st of 2012.   What were your duties that night?

3       A.    Again, I was on basic patrol that night.      It was

4    an evening shift.   Working the east side of Richardson.
5       Q.    And so were you patrolling the east side of

6    Richardson at about 12:47 A M that night?

7       A.    Yes, sir.
8       Q.    And is that area a public place?

9       A.    Yes, sir.

10      Q.    Is it in Collin County, Texas?
11      A.    Yes, sir.

12      Q.    What did you observe?

13      A.    About that time, I was actually dispatched to
14   back up another officer on east Renner Road.   While

15   traveling to that location, about 12:45 or so in the

16   morning, fairly light traffic, on my way to back up this
17   officer, I noticed a black 2003 Lexus E S 300 sedan.    First

18   noticed it weaving within its lane a little bit.   I decided

19   that my priority at the time was to get to my back-up
20   officer so I began to go around the vehicle.

21      Q.    Officer, I'm going to stop you right there.     You

22   mentioned that your priority was to respond to the officer
23   who requested backup.   Why is it important, why did you

24   make that your priority?

25      A.    When an officer calls for backup, they either
                                                                  14
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    have something that they feel is in danger or they need
2    assistance with.   So I want to get to that officer as

3    quickly as I can safely do so to make it a safer

4    environment for them or provide assistance if needed.
5       Q.      Did you see any other traffic offenses being

6    committed while you were en route to provide backup?

7       A.      I did note that I -- I witnessed a red light
8    being run at some point on my way to that -- to back up the

9    officer.

10      Q.      And how did you respond to seeing the red light
11   being run?

12      A.      I didn't believe that it was such a violation

13   that I needed to disregard the backup and make that traffic
14   stop.

15      Q.      And now let's move forward to, you were talking

16   about the Lexus E S 300 that you observed weaving in its
17   lane.   Tell us more, explain to the jury more about what

18   you observed with that car?

19      A.      What first caught my attention, again, this was
20   another vehicle that was on the roadway as I'm trying to

21   get to the back-up officer.   I noticed this vehicle was

22   swerving in its lane to some degree.   I remember making the
23   decision, I'm going to go around this vehicle to get to the

24   other officer I'm trying to assist.

25      Q.      And was that other officer -- where was that
                                                                  15
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    officer located in relation to where your vehicle and the
2    Lexus were located?

3       A.    At the first time I saw them, approximately

4    three-quarters or so of a mile ahead.
5       Q.    So on the same street then?

6       A.    Yes.

7       Q.    And were they within -- I guess within sight?
8       A.    They were becoming within sight.    I don't

9    remember if I could actually see the officer at the time

10   that I first noticed the vehicle.
11      Q.    And what happened as you were -- you said that

12   you were about to try to pass the Lexus.    What happened as

13   you attempted to pass?
14      A.    The Lexus was in the right lane, stayed in the

15   right lane until I began to pass in the left lane.     This is

16   a two-lane road, two lanes going the eastbound direction.
17   I was passing the Lexus on the left side and, just as I

18   began to approach, the Lexus came over into the left lane

19   without signalling, causing me to -- I had to brake hard
20   and swerve a bit to the left to avoid a collision.

21      Q.    So when you say the vehicle came over, can you

22   provide a little bit more detail as to what you mean by the
23   vehicle came over?

24      A.    It seemed to me as if it was possibly a quick

25   lane change.   Again, without signalling.   It was to such a
                                                                   16
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1    close proximity to me, I felt like there was going to be a
2    collision if I didn't avoid it.

3       Q.      Did the vehicle actually cross over the dividing

4    lines?
5       A.      I believe they came -- they came -- the left

6    wheels came all the way over the dividing line.   I believe

7    about half of the vehicle came into the left lane.
8       Q.      And was there any -- any objects or other things

9    in the lane of traffic that would have created some

10   emergency that the driver of the Lexus had to avoid?
11      A.      Not that I noticed, no, sir.

12      Q.      And so what happened after you hit your brakes

13   and steered to avoid the collision?
14      A.      At that point, I decided I wanted to reassess the

15   driver.   I pulled in behind the Lexus to determine if this

16   was a possible intoxicated driver.    I observed the Lexus,
17   again, to continue to swerve within its lane.   At one

18   point, it drifted where the left wheels did drive up on the

19   reflectors.   I believe they just crossed over the
20   reflectors into the left lane before drifting back into the

21   right lane.   I watched the Lexus, the left rear turn signal

22   turn on for several seconds.   The vehicle did not get into
23   the left lane.   And then the rear signal went back off.    At

24   about this time is when I can see the other officer's

25   overhead lights ahead of me.
                                                                   17
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1       Q.      And so did you initiate a traffic stop at that
2    point?

3       A.      Yes, I did.

4       Q.      Why?
5       A.      Several reasons.   I believe I may have -- may

6    have had an intoxicated driver in front of me, which is a

7    danger to itself -- danger to the public, danger to me, and
8    my major concern was that I had an officer stopped in the

9    right lane about a quarter mile ahead of us.

10      Q.      Is that why you chose to not overlook this
11   particular person as you overlooked the red light runner

12   earlier?

13      A.      Yes, sir.
14      Q.      Let's talk about your approach.    How did you

15   approach the vehicle and make contact with the driver?

16      A.      Once we made the traffic stop, the driver stopped
17   in that right lane.    I approached on the driver's side, to

18   her window, as she was still sitting in the vehicle.

19      Q.      How many people were in the vehicle?
20      A.      She was the only occupant of the vehicle.

21      Q.      And was she the one driving?

22      A.      Yes, sir.
23      Q.      So was that person operating a motor vehicle?

24      A.      Yes, sir.

25      Q.      How did you identify the driver?
                                                                    18
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1       A.      I asked for her driver's license which she did
2    end up providing me and that's how I identified her.

3       Q.      And what was the name that you saw on the

4    driver's license?
5       A.      It was Mellannise Henderson.

6       Q.      Do you see that individual in the courtroom

7    today?
8       A.      Yes, sir, I do.

9       Q.      Will you please point her out and identify an

10   article of clothing she's wearing.
11      A.      Yes, sir.   Be the female in the brown jacket with

12   the gold scarf or shawl over her shoulders.

13      Q.      If I'm seated in position number one, my trial
14   partner is position number two, which seat position would

15   she be?

16      A.      She would be in four.
17                   MR. WILSON:   Your Honor, let the record

18   reflect that this witness has identified the defendant.

19      Q       (By Mr. Wilson) All right.   Let's talk about the
20   defendant.   What did you observe from her upon your initial

21   contact?

22      A.      Upon first speaking with her, I noticed she had
23   kind of watery glazed-over eyes.   Slurred speech as I was

24   speaking with her, and I did notice a strong odor of

25   alcoholic beverage coming from the vehicle.
                                                                  19
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1       Q.      Was it coming from the vehicle or did you notice
2    it coming from her breath?

3       A.      At that point, as she sat in the car, I couldn't

4    make that determination.
5       Q.      And you said that you asked her for her driver's

6    license.   Did you ask her to provide any other information?

7       A.      I asked for her proof of vehicle insurance as
8    well.

9       Q.      And how did she respond to that request?

10      A.      She began to look in her purse and throughout her
11   vehicle for her driver's license for several seconds before

12   eventually locating it and she handed me the driver's

13   license only.
14      Q.      She didn't hand you the proof of insurance?

15      A.      Not initially, no, sir.

16      Q.      What did you do when she didn't hand you the
17   insurance?

18      A.      I believe I asked her a couple more questions

19   about whether it was her car and such, where she may be
20   coming from, and then I once again asked her for her proof

21   of insurance.

22      Q.      And what happened then?
23      A.      I believe she did provide me a copy of that.

24      Q.      You said that you asked the defendant where she

25   was coming from.   How did she respond to that question?
                                                                  20
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1       A.     She told me she was coming from downtown Dallas.
2       Q.     And did she say why she was in downtown Dallas?

3       A.     Stated she was coming from work.

4       Q.     What line of work did she say she was in?
5       A.     She stated she was an attorney.

6       Q.     And did you have the opportunity to ask whether

7    she had been drinking that night?
8       A.     Yes, sir, I did.   I asked her if she consumed any

9    alcohol at all.

10      Q.     And what did she respond?
11      A.     She stated she had had none.

12      Q.     Did you ask the defendant anything about -- about

13   the driving incident that you had just experienced with
14   her?

15      A.     Yes, sir.   I asked her what had happened with her

16   lane change.
17      Q.     And how did she respond to you?

18      A.     She -- she stated that she had seen some

19   emergency lights ahead and thought that she wasn't sure
20   what she needed to do, whether she needed to change lanes

21   or not.

22      Q.     What else did you ask her about the traffic?
23      A.     I asked her if she had changed lanes and I asked

24   her if she had seen my patrol vehicle behind her when she

25   did, and she stated, no, she did not see the police car
                                                                   21
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    behind her -- or, a vehicle behind her.
2       Q.      And what did you notice about her responses to

3    your questions at this point in time?

4       A.      I'm not sure what you mean.
5       Q.      Well, how did her speech sound to you?

6       A.      Again, I continued to hear the slurred speech.

7       Q.      And did you ask the defendant to exit her
8    vehicle?

9       A.      Yes, sir, I did.

10      Q.      Is your patrol vehicle equipped with a device
11   capable of making a recording?

12      A.      An audio and video recording, yes, sir.

13                   MR. WILSON:   Your Honor, may I approach?
14                   THE COURT:    Yes, sir, you may.

15      Q       (By Mr. Wilson) Officer Corley, I'm showing you

16   what has been marked as State's Exhibit 1.    You recognize
17   State's Exhibit 1?

18      A.      Yes, sir.

19      Q.      What is State's Exhibit 1?
20      A.      This is a D V D copy of the audio and video

21   recording from my patrol vehicle that night.

22      Q.      Does the D V D also contain a copy of the video
23   and audio that was recorded from the intoxilyzer room?

24      A.      Yes, sir, it is.

25      Q.      And have you had the opportunity to watch both of
                                                                   22
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1    those videos?
2       A.      Yes, sir, I have.

3       Q.      Was the intoxilyzer room equipped with a device

4    capable of making a recording as well?
5       A.      Yes, sir.

6       Q.      And have there been any alterations or deletions

7    made to either of those two videos?
8       A.      No, sir.

9       Q.      Have you been able to watch those two videos

10   today?
11      A.      Yes, sir, I have.

12      Q.      And would you say that they are a fair and

13   accurate rendition of what you observed on December 1st,
14   2012?

15      A.      Yes, I do.

16                   MR. WILSON:    At this point in time, state
17   offers State's Exhibit 1, will tender to defense.

18                   MR. BROOKS:    No objection.

19                   THE COURT:    State's 1 is admitted.
20      Q      (By Mr. Wilson) Officer, after you asked the

21   defendant to exit the vehicle, were you able to smell any

22   alcohol on her breath at that point in time?
23      A.      Yes, sir, I was.

24      Q.      Now, let's talk about standardized field sobriety

25   tests.   First off, I would just like to talk about them in
                                                                 23
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1    general.
2                   What are standardized field sobriety tests?

3       A.      It's a series of three tests that we use to

4    determine what kind of percentage we believe that a person
5    may or may not be intoxicated.

6       Q.      Are they used all over the nation?

7       A.      Yes, sir, they are.
8       Q.      And what are these three tests?

9       A.      There's a horizontal gaze nystagmus, which is

10   basically a testing of the involuntary jerking of the eyes.
11   There's also a walk-and-turn exercise, and a one-leg stand.

12   Both of those are a divided attention exercise.

13      Q.      And how are these various tests scored?
14      A.      They each have several clues that could be gained

15   on each one, and once they reach a certain amount of clues,

16   then we believe that that's the highest percentage that
17   that person is intoxicated.

18      Q.      What is a clue?

19      A.      There are several clues.   With the horizontal
20   gaze nystagmus, for example, if the eye begins to jerk at a

21   certain spot where the stimulus is, then that will count as

22   a clue, one for each eye.
23      Q.      And what's the decision point?

24      A.      A decision point is the point at which the

25   officer decides that the person is indeed intoxicated.
                                                                   24
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1       Q.      So if a -- so basically, are you saying, then,
2    that a decision point, is that based on the number of clues

3    that the officer observes?

4       A.      Correct.
5       Q.      And does each particular test have a certain

6    decision point associated with it?

7       A.      Yes, sir.
8       Q.      And when you reach that decision point, what does

9    that indicate to you about the individual's level of

10   intoxication?
11      A.      That there's a very, very high percentage that

12   they are at least 0.8 [sic] on the blood alcohol content.

13      Q.      What was the environment like when you performed
14   these tests for this defendant?

15      A.      It was actually a fairly mild day for

16   December 1st.   I don't -- maybe a light wind.   It was dry
17   as well.   It was nighttime.

18      Q.      What was the surface like?

19      A.      It's a relatively smooth concrete surface.
20      Q.      Was it flat or at an angle?

21      A.      It was pretty flat.

22      Q.      And was there any debris on that surface at all?
23      A.      Nothing major, no, sir.

24      Q.      And what about your -- the flashing lights on

25   your patrol car at that time?
                                                                  25
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1       A.    We have the ability to turn off the front strobes
2    on our vehicle and leave just the rear so that our vehicles

3    can be seen from behind so that it doesn't affect any

4    horizontal gaze nystagmus testing.   So I was able to turn
5    the front ones off.

6       Q.    Why would the front strobe lights have an effect

7    on horizontal gaze nystagmus?
8       A.    The strobing of the light can have an effect on

9    the eyes, the involuntary jerking of the eyes.

10      Q.    But you turned those lights off for the
11   defendant?

12      A.    Yes, sir.

13      Q.    Okay.   Let's talk about the horizontal gaze
14   nystagmus test specifically.    Was that the first test that

15   you conducted?

16      A.    Yes, sir.
17      Q.    And what is horizontal gaze nystagmus?

18      A.    Nystagmus is the involuntary jerking of the eyes.

19   And in those tests we do are done on a horizontal plain,
20   thus the name horizontal gaze nystagmus.

21      Q.    What causes it?

22      A.    There are some things that cause it but the most
23   common is going to be a high level of introduction of

24   alcohol into the body.

25      Q.    Is alcohol a depressant?
                                                                   26
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1       A.       Yes, sir.
2       Q.       So is a depressant something that can cause

3    horizontal gaze nystagmus?

4       A.       Yes, sir.
5       Q.       Are there any other substances that cause

6    horizontal gaze nystagmus?

7       A.       I'm sure there are.   I'm not familiar exactly
8    which ones there would be but I believe there are.

9       Q.       Would they be things like inhalants or P C P's?

10      A.       Yes, sir.
11      Q.       Can something like caffeine cause horizontal gaze

12   nystagmus?

13      A.       Not that I'm aware of.
14      Q.       How about stress?

15      A.       No, sir.

16      Q.       How about need to use the restroom?
17      A.       No, sir.

18      Q.       How about the wind or something like that?

19      A.       No, sir.
20      Q.       And you mentioned that this jerking of the eye is

21   involuntary.   So is there -- when you say that, is there

22   anything that a person can do to control that jerking
23   movement?

24      A.       No, sir.

25      Q.       And when you talk about the jerking movement,
                                                                  27
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    will you explain to you jury what exactly that really is.
2       A.    What you'll see with the involuntary jerking,

3    it's a pretty small movement of the eye.    I'm not sure how

4    else to explain it.   It's something that you will see, you
5    have to see up close, and the eye makes a small movement,

6    something like this (Indicating).

7       Q.    Do you see that sort of movement in a person who
8    is not intoxicated or had one of these other inhalants or P

9    C P?

10      A.    No, sir.
11      Q.    Did you attempt to perform the horizontal gaze

12   nystagmus test on the defendant?

13      A.    Yes, sir, I did.
14      Q.    And before I go further with that, what's the

15   decision point on the horizontal gaze nystagmus test?

16      A.    Once you have four clues of the six possible.
17      Q.    And how are those measured?

18      A.    I'm sorry?

19      Q.    How are those clues measured?
20      A.    Well, once you do -- perform the exercise, once

21   you see the nystagmus, the required nystagmus, for each

22   step, then you will count that as a clue.   And again, it's
23   one for each eye.

24      Q.    So basically, are you saying, then, that there

25   are three different things you're looking for, one for each
                                                                 28
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1    eye?
2       A.    Yes, sir.

3       Q.    Does that make the total six?

4       A.    Yes, sir.
5       Q.    Okay.   What are the preliminary steps you take

6    before conducting the horizontal gaze nystagmus test?

7       A.    I will ask a series of questions regarding
8    whether the person has had any brain trauma, been in any

9    fights or car wrecks or anything that would cause trauma to

10   the brain.   Another step I will do, I will check their eyes
11   for equal pupil size, which could indicate brain trauma as

12   well, and I will make sure that they had equal tracking,

13   that both eyes can follow the stimulus.
14      Q.    Did you perform those preliminary steps on the

15   defendant?

16      A.    Yes, sir, I did.
17      Q.    And what were the results?

18      A.    She had equal pupil size and was able to do equal

19   tracking as well.
20      Q.    Did she have any head injuries or accidents that

21   she related to you?

22      A.    No, sir.
23      Q.    So in your opinion, did you feel like the

24   defendant was a good candidate for the H G N test?

25      A.    Yes, sir, I did.
                                                                   29
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1       Q.     Tell the jury the instructions for the test as
2    you told the defendant that night?

3       A.     I will instruct the defendant to stand with their

4    feet together and their hands down by their side.    I will
5    instruct them to keep their head still and I will show them

6    a stimulus, which in most cases, I usually carry this one

7    pen.   It's a white pen with a black top.   I will ask if
8    they can see this and they will indicate if they can or

9    not.   Which she did.   She said she could see it.

10                   I will instruct her that I will move the
11   stimulus from side to side and, at the end of the test, up

12   and down, and I will instruct them to follow with their

13   eyes only without turning their heads.
14      Q.     Was the defendant able to follow those

15   instructions?

16      A.     No, sir.
17      Q.     What kind of problems did you see with the

18   following of the instructions?

19      A.     I noticed the defendant, after several times
20   being asked, turned her head instead of just her eyes, she

21   would follow the stimulus with her head.

22      Q.     How did you respond when she did that?
23      A.     I asked her -- reminded her again that she needs

24   to keep her head still and follow with her eyes only.

25      Q.     And what happened when you reminded her?
                                                                    30
                                Clifton Corley - December 2, 2013
                                 Direct Examination by Mr. Wilson


1       A.       She again turned her head the next time I tried.
2       Q.       Did you try anything else to help the defendant

3    out that night?

4       A.       Yes, after several times of reminding her that
5    she is still moving her head, I asked her if she would like

6    to actually physically hold her head with her hands to keep

7    her head still, and she said she would.
8       Q.       What happened when you -- or, did she wind up

9    holding her hands to her head?

10      A.       She did.   She did hold her hands together -- or,
11   hold her head with her hands.

12      Q.       What happened when you tried to perform the test?

13      A.       Still continued to turn her head with the
14   stimulus.

15      Q.       Did you have any other conversation with her

16   about these instructions, about turning her head?
17      A.       It was actually over several minutes that I

18   actually tried to get her to cooperate with this exercise,

19   so, I mean, there were things that were said.
20      Q.       And how did she respond?

21      A.       I remember her telling me that she wasn't able to

22   do it, she was not able to follow with just her eyes only.
23      Q.       Even despite all the difficulty the defendant had

24   following the instructions, were you able to observe any

25   clues during that test?
                                                                    31
                                Clifton Corley - December 2, 2013
                                 Direct Examination by Mr. Wilson


1       A.       Yes, sir.   I was able to get two of the clues for
2    each eye, so a total of four clues.

3       Q.       And was the decision point reached?

4       A.       On that test, yes, sir, it was.
5       Q.       What four clues did you observe?

6       A.       I observed the lack of smooth pursuit, which is

7    the first thing I would be looking for.     Basically, moving
8    the stimulus across the eye, I'm looking for the eyes to

9    roll, like a marble across a table just nice and smooth.

10   If that is -- if that doesn't occur, then we do have the
11   clue of lack of smooth pursuit.    Whereas the stimulus

12   moves, the eyes will jump to try to catch up with the

13   stimulus.   I did notice that in both eyes.
14      Q.       And so --

15                    THE COURT:   Just a moment.   I'm receiving an

16   indication from one of the members of the jury that he
17   needs assistance.

18                   Bailiff, would you assist the juror, please.

19                    (Sidebar conversation between the juror and
20                    the bailiff.)
21                    (Sidebar conversation between the court and
22                    the bailiff.)
23                    THE COURT:   All right.   Ladies and

24   gentlemen, we're going to take a quick break for about 15

25   minutes.    All parties except for the panel remain in the
                                                                    32
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1    courtroom.
2                    Bailiff, take charge of the panel.

3                    THE BAILIFF:   Yes, Your Honor.    All rise.

4                    (The jury exits.)
5                    THE COURT:    You may be seated.   Take a quick

6    break.

7                    (Recess at 3:19 P M, resuming at is 3:31 P
8                    M.   Defendant present.)
9                    THE BAILIFF:   All rise.

10                   (The jury enters.)
11                   THE COURT:    Thank you.   Everyone may be

12   seated.    Let the record reflect that all parties are back

13   in the courtroom.    The jury is back in the jury box.   This
14   witness is still under oath.

15                   State, you may continue with your direct

16   examination.
17                   MR. WILSON:    Thank you, judge.

18      Q       (By Mr. Wilson) All right.   Officer, so just to

19   kind of recap, you had observed four clues for the H G N;
20   correct?

21      A.       Yes, sir.

22      Q.       And now, you indicated earlier that you have
23   performed about 50 D W I investigations; correct?

24      A.       Give or take, yes, sir.

25      Q.       Is the horizontal gaze nystagmus test designed so
                                                                  33
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    that an average non-intoxicated person can perform the test
2    without turning their head?

3       A.    Yes, sir.

4       Q.    And what does the turning of the head typically
5    indicate to you when you're performing this test?

6       A.    It indicates that the person, for whatever

7    reason, is unable to follow your directions.
8       Q.    Does that sometimes indicate to you the

9    possibility of intoxication?

10      A.    It can be a symptom of intoxication, yes, sir.
11      Q.    And in your -- in all of your experience, have

12   you run into anyone who had this kind of difficulty

13   following the instructions for horizontal gaze nystagmus?
14      A.    From time to time, yes, sir, I have.

15      Q.    And I guess, what was the status of intoxication

16   for those individuals?
17      A.    Just about everyone who has trouble following

18   those directions is intoxicated.

19      Q.    Now, I'd like to move on and -- Are you familiar
20   with the idea of divided attention?

21      A.    Yes, sir.

22      Q.    What does it mean?
23      A.    It's basically you're asking someone to follow

24   your directions using their mind while performing a

25   physical exercise at the same time.
                                                                  34
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1       Q.      Is driving a divided attention task?
2       A.      Yes, sir, it is.

3       Q.      And how does alcohol affect one's ability to

4    perform a divided attention task?
5       A.      Alcohol will slow the decision-making process as

6    well as the physical ability to do things, such as operate

7    a motor vehicle.
8       Q.      Let's move on to the other tests in the

9    standardized field sobriety test battery here.

10                  Are you familiar with the walk-and-turn
11   test?

12      A.      Yes, sir.

13      Q.      What is that test?
14      A.      Again, it's a divided attention test in which we

15   will ask someone to walk a line, giving them a certain

16   number of steps to turn and walk back.   During this, we're
17   giving them a series of instructions to follow such as

18   keeping their hands down by their side, touching

19   heel-to-toe on the steps, turning like we ask them to,
20   counting each step out loud.

21      Q.      Will you actually provide the instructions to the

22   jury as you would normally provide those instructions to
23   someone?

24      A.      Yes, sir, I can do that.   What I would do, and I

25   would demonstrate this as well while I do this.    I would
                                                                  35
                            Clifton Corley - December 2, 2013
                             Direct Examination by Mr. Wilson


1    ask the person to either stand on the line out there on the
2    roadway or the surface or imagine a line from where they

3    are, usually to my vehicle towards the camera.    I will have

4    him put their left foot on that line, and then put their
5    right foot also on the line touching heel-to-toe, with

6    their hands down by their side.   So they're standing there

7    like this, this is a starting position, and I will ask to
8    them to keep the starting position while I explain and

9    demonstrate the exercise.

10                 What I will ask them to do is not begin the
11   exercise until I tell them to.    I will ask them to take

12   nine heel-to-toe steps -- heel-to-toe meaning you're

13   actually touching heel-to-toe -- down the line.   Going to
14   have them turn around by keeping their lead foot planted,

15   which should be their left foot, and using their right foot

16   to take the series of small steps to turn around.    And
17   again, nine heel-to-toe steps back down this line.

18                 While they're doing this, I ask them to keep

19   their eyes down on their toes, count each step out loud, I
20   ask them to keep their hands down by their side, and

21   continue the exercise until they have completed the entire

22   exercise, and not to stop.
23      Q.    Did you ask the defendant to perform the

24   walk-and-turn test?

25      A.    I don't know that I asked her to perform the test
                                                                 36
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1    by name but I asked her -- I let her know that I did have
2    some other exercises I wished her to perform.

3       Q.    How did she respond?

4       A.    She indicated she was not sure she could do
5    anything else because she needed to urinate.

6       Q.    Did anything about her response seem out of the

7    ordinary to you?
8       A.    I had to ask her -- at one point, she made it

9    known that it's important to her, the most important thing

10   to her right now was to go urinate, not to perform field
11   sobriety exercises, and I found that a bit odd.

12      Q.    Why did you find that odd?

13      A.    I would think that someone, you know, who wished
14   to show that they're not intoxicated would wish to perform

15   the exercises for an officer.

16      Q.    And did the defendant ever perform the
17   walk-and-turn test that night?

18      A.    No, sir.

19      Q.    Could you have forced the defendant to perform
20   that test?

21      A.    No, sir.

22      Q.    All right.   Let's talk about the one-leg stand.
23   What is the one-leg stand test?

24      A.    Again, it's another divided attention test in

25   which we're asking someone to do a physical test while
                                                                   37
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1    following instructions.
2       Q.    And what are you looking for when you -- when you

3    ask them to perform that test?

4       A.    Again, looking for them to follow directions,
5    looking for their sense of balance, physical agility.

6    Basically, we're asking them to stand on one foot for a

7    period of time and continue to do so for 30 seconds.
8       Q.    And will you just -- I know you basically gave

9    the instructions but will you provide the jury the specific

10   instructions you would typically give for that test?
11      A.    Yes, sir, I can do that.    I will put them in a

12   bit of a starting position while I give them instructions

13   and I will demonstrate the exercise for them.   What I would
14   do is have them put their feet together, hands down by

15   their side, just to have them standing there.

16                   When I tell them to begin, I will ask them
17   to pick up their foot and their toe about six inches off

18   the ground.   Keep that leg straight.   And I will give them

19   the option of which leg, you can use whichever leg you feel
20   more comfortable doing.   Keep that leg straight, six inches

21   off the ground, with your hands down by your side, looking

22   at your toe, as you're counting out loud one 1,000, two
23   1,000, three 1,000 and so on until I instruct them that

24   they can put their foot down.

25      Q.    And how long do you usually have them stand in
                                                                  38
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    that position?
2       A.    Thirty seconds.

3       Q.    Did you ask the defendant to perform the one-leg

4    stand test?
5       A.    Again, I didn't ask her by name but that's one of

6    the tests that I had intended for her to perform.

7       Q.    And did she ever perform the test?
8       A.    She stated she was unable to because she needed

9    to urinate.

10      Q.    Based on your training and experience, about how
11   long does it take someone to perform the combination of the

12   walk-and-turn and the one-leg stand test?

13      A.    Less than five minutes.
14      Q.    And did you ever explain to the defendant that

15   those tests don't take very long to perform?

16      A.    Yes, sir.    I explained to her several times that
17   she stated she needed to urinate, if we could continue and

18   get the exercises done, we could reach a conclusion and we

19   could get her to a restroom.
20      Q.    Did the back and forth you had with the defendant

21   wind up taking longer than five minutes?

22      A.    Yes, sir.
23      Q.    Let's talk about what happened after the

24   standardized field sobriety tests.

25                    What did you do after the defendant made it
                                                                   39
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1    clear that she would not perform the initial tests you were
2    wanting her to perform?

3       A.     Once I had determined that she was basically

4    refusing to do the exercises, I placed her under arrest for
5    driving while intoxicated.

6       Q.     What happened next?

7       A.     She was placed in the back of my patrol vehicle
8    and taken to the Richardson police department to our

9    intoxilyzer room.

10      Q.     Did anything unusual happen on the way from the
11   -- from the scene where you arrested the defendant over to

12   the intoxilyzer room?

13      A.     I don't recall anything unusual, no, sir.
14      Q.     All right.    Let's talk about what happened at the

15   Richardson city jail.   Once you arrived there, where did

16   you take the defendant?
17      A.     We have a room that's designated for the

18   processing of intoxicated drivers; that's our intoxilyzer

19   room.   That's where I took her.
20      Q.     And what do you -- What kind of instructions do

21   you provide the defendants when you bring them in to the

22   intoxilyzer room?
23      A.     When I walk into this room, there is a straight

24   line painted in this room on the floor which you will see

25   it in the video and there is a black square that's
                                                                  40
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1    basically a one foot by one foot tile that is painted black
2    while the rest of the floor is a white color.   I'll

3    instruct them to go stand on that black square.

4       Q.      Did you give those instructions to this
5    defendant?

6       A.      Yes, sir.

7       Q.      How did she comply?
8       A.      She had set her shoes down near the square and

9    she actually walked around a counter and began leaning at

10   the counter and the wall.
11      Q.      While you were in the intoxilyzer room, did you

12   read the defendant the statutory warning?

13      A.      Yes, sir.
14      Q.      Did you provide the defendant with a copy of that

15   warning?

16      A.      Yes, sir, I did.
17      Q.      Did she have the opportunity to read along with

18   you.

19      A.      Yes, sir.
20                   MR. WILSON:   Your Honor, may I approach the

21   witness?

22                   THE COURT:    Yes, you may.
23      Q       (By Mr. Wilson) Officer, I'm showing you what has

24   been marked as State's Exhibit 2.    Do you recognize State's

25   Exhibit 2?
                                                                  41
                             Clifton Corley - December 2, 2013
                              Direct Examination by Mr. Wilson


1       A.      Yes, sir, I do.
2       Q.      What is State's Exhibit 2?

3       A.      This is a state form D I C 24, it's a statutory

4    warning.
5       Q.      Is this a true and accurate copy of the warning

6    that you provided to the defendant?

7       A.      Yes, sir.
8       Q.      And there's some writing on this document.    What

9    is that writing?

10      A.      The writing on the top, I've identified the
11   defendant by her name that was on her driver's license, her

12   driver's license number, her date of birth, date of arrest,

13   time of arrest, the county of arrest.   And at the bottom, I
14   -- I read the warning, I request a sample of -- a specimen

15   of breath, which I checked the box for breath.   She refused

16   the -- that specimen and refused to sign saying that she
17   refused so I checked that box indicating that as well.

18      Q.      And is this your handwriting on the document?

19      A.      Yes, sir.
20      Q.      And aside from the State's exhibit sticker at the

21   bottom, has anything been changed or altered or deleted

22   from this document from when you originally saw it?
23      A.      No, sir.

24                  MR. WILSON:   Your Honor, at this time, I

25   offer State's Exhibit 2, while tendering to defense.
                                                                    42
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1                    MR. BROOKS:    No objection.
2                    THE COURT:    State's Exhibit 2 is admitted.

3       Q       (By Mr. Wilson) Officer, what is the purpose of

4    issuing the statutory warning?
5       A.       It is to provide the arrested person a warning

6    for the consequences of failing to provide a specimen of

7    their breath and/or blood.
8                    MR. WILSON:    Your Honor, may I have use of

9    the projector, please.

10                   THE COURT:    Yes, sir.
11                   Bailiff, would you dim the lights just

12   slightly, please, sir.

13                   THE BAILIFF:   Yes, Your Honor.
14      Q       (By Mr. Wilson) Officer, I'd like to call your

15   attention to the second paragraph here where my pen is

16   indicating.   Will you please read that paragraph to the
17   jury.

18      A.      If you refuse to give the specimen, that refusal

19   may be admissible in a subsequent prosecution.    Your
20   license, permit or privilege to operate a motor vehicle

21   will be suspended or denied for not less than 180 days

22   whether or not you are subsequently prosecuted for this
23   offense.

24      Q.      Did you read that statement to the defendant?

25      A.      Yes, sir.
                                                                     43
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1       Q.    And so can you just explain to the jury, what are
2    the practical implications of that provision in the

3    statutory warning?

4       A.    Basically --
5                     MR. BROOKS:   Your Honor, excuse me.    I'm

6    going to object.   The document speaks for itself.

7                     THE COURT:    Sustained.
8       Q    (By Mr. Wilson) Based on your experience, officer,

9    can you tell the jury kind of what the -- what the

10   practical implications are of a 180-day driver's license
11   suspension?

12                    MR. BROOKS:   Again, Your Honor, same

13   objection.    Document speaks for itself.
14                    THE COURT:    Overruled as to that question.

15      A.    Basically, the suspension of 180 days from the

16   driver's license will disallow someone from operating a
17   motor vehicle on a public roadway, which could, you know,

18   cause all sorts of trouble getting to work --

19                    MR. BROOKS:   Objection.   He's already
20   answered the question, judge.

21                    THE COURT:    What's your legal objection?

22   I'm sorry?
23                    MR. BROOKS:   I'm sorry, judge.   Legal

24   objection is asked and answered.

25                    THE COURT:    Overruled.
                                                                   44
                               Clifton Corley - December 2, 2013
                                Direct Examination by Mr. Wilson


1       A.      Basically, your inability to operate a motor
2    vehicle on a public roadway could interfere with someone's

3    ability to get to work, make them depend on public

4    transportation or someone else to get -- take care of
5    business throughout their daily lives.

6       Q       (By Mr. Wilson) And in general, based on your

7    training and experience, what does the process of offering
8    a breath specimen entail?

9       A.      They will -- In our police department, they are

10   taken to a nearby room where there is an intoxilyzer
11   machine.   This is a machine that you will blow in.   They

12   will be observed by an intoxilator op -- intoxilyzer

13   operator for a period of five minutes to be sure that
14   they're not touching their mouth or altering their sample

15   in anyway.    Once that is done, the observation period, they

16   will provide two breath specimens and that machine will
17   analyze them to determine the blood alcohol content.

18      Q.      You said a five-minute observation period.   Is it

19   actually a 15-minute observation period?
20      A.      I apologize.   Yes, sir, it is 15.

21      Q.      And did you ask the defendant for a specimen of

22   her breath?
23      A.      Yes, sir, I did.

24      Q.      How did she respond?

25      A.      She refused to provide the specimen.
                                                                  45
                              Clifton Corley - December 2, 2013
                               Direct Examination by Mr. Wilson


1                     MR. WILSON:   Pass the witness.
2                     THE COURT:    Mr. Brooks.

3                     MR. BROOKS:   Thank you, judge.

4                           CROSS EXAMINATION
5    BY MR. BROOKS:
6          Q.   Officer, with respect to the statutory warning,

7    that 180-day suspension, you're aware that the individual
8    can get an occupational license to cover their needs for

9    work and things of that nature?

10         A.   Yes, sir.
11         Q.   Now, also, with respect to the statutory warning,

12   at the point in time where someone is being read that

13   statutory warning, they are already under arrest; correct?
14         A.   Yes, sir.

15         Q.   Nowhere in that statutory warning does it say to

16   them that if you pass this test, you will be released, does
17   it?

18         A.   No, sir.

19         Q.   In fact, in the video that we're about to see,
20   you don't state that to Ms. Henderson either, do you?

21         A.   No, sir.

22         Q.   So it serves no value to taking the test, she's
23   already under arrest; correct?

24         A.   That's up to her.

25         Q.   Okay.   But that bottom line is, she's already
                                                                  46
                             Clifton Corley - December 2, 2013
                               Cross Examination by Mr. Brooks


1    under arrest.
2       A.    Yes, sir.

3       Q.    Now, earlier, you were asked some questions about

4    different things that can cause nystagmus.    Do you have any
5    medical training?

6       A.    No, sir, I do not.

7       Q.    Do you have any paramedic training?
8       A.    No, sir, I do not.

9       Q.    So in terms of what can or cannot cause

10   nystagmus, you don't have any personal knowledge based on
11   medical experience to answer that question correctly, do

12   you?

13      A.    That is correct, yes, sir.
14      Q.    Now, did you refresh your memory with anything

15   today prior to testifying?

16      A.    Yes, sir, I did.
17      Q.    A copy of your police report?

18      A.    Yes, sir.

19      Q.    All right.   Mind if I take a look at it, sir?
20      A.    Yes, sir.

21                   MR. BROOKS:    May I approach, Your Honor?

22                   THE COURT:    Yes, sir, you may.
23                   THE WITNESS:   (Hands document to

24   Mr. Brooks.)

25                   THE COURT:    Mr. Brooks, do you want the
                                                                    47
                              Clifton Corley - December 2, 2013
                                Cross Examination by Mr. Brooks


1    lights to come back on or are you going to be referring to
2    the exhibit?

3                     MR. BROOKS:    The lights can come back on,

4    judge.
5                     THE COURT:    Bailiff.

6                     MR. BROOKS:    May I have just a moment, Your

7    Honor?
8                     THE COURT:    Yes, sir.   (Pause).

9       Q     (By Mr. Brooks) Now, at the start of your

10   testimony, when you were asked how -- what you were doing
11   or where you were en route to, I think you told us you were

12   responding to an officer-in-need call?

13      A.    An officer backup, yes, sir.
14      Q.    Officer backup.       And that you were asked, had you

15   noticed anything else unusual before you saw the Lexus, I

16   think you mentioned seeing a car run a red light?
17      A.    Yes, sir.

18      Q.    Okay.    You weren't referring to Ms. Henderson's

19   car, were you?
20      A.    No, sir, I was not.

21      Q.    And in fact, you testified that after you pulled

22   her over and you told her why you pulled her over, she told
23   you that she saw some emergency lights in front of her and

24   she couldn't determine if she needed to go left or right?

25      A.    Yes, sir.
                                                                   48
                               Clifton Corley - December 2, 2013
                                 Cross Examination by Mr. Brooks


1       Q.    In fact, I think you stated there were emergency
2    lights in front of her?

3       A.    Once we stopped the vehicles, yes, sir, there

4    were.
5       Q.    And on the video, you agree with me that looking

6    just at the video from that vantage point, you can't tell

7    if those emergency lights are in the left lane or the right
8    lane, can you?

9       A.    I don't believe from the video you can probably

10   tell that, no, sir.
11      Q.    Let's talk about what happens after you first

12   come in contact with her.   You said that you asked her for

13   her license and proof of insurance.
14      A.    Yes, sir.

15      Q.    And it took her several seconds to get that.    Did

16   you happen to notice what size purse she was pulling those
17   items out of?

18      A.    I don't recall at this time, no, sir.

19      Q.    If it was a large purse, it wouldn't be unusual
20   for a woman to have to fumble around inside her purse to

21   find those items?

22      A.    No, sir.
23      Q.    So certainly that by itself would not be a sign

24   of intoxication?

25      A.    By itself, no, sir.
                                                                   49
                               Clifton Corley - December 2, 2013
                                 Cross Examination by Mr. Brooks


1          Q.   In fact, when we looked at knowing that there are
2    emergency lights in front of her as she stated, as you just

3    now stated, she had to get over in response to those

4    lights, that by itself is not a sign of intoxication, is
5    it?

6          A.   By itself, no, sir.

7          Q.   Now, when you got behind her, you issued -- or,
8    did you turn on your take-down lights?   Are they still

9    called take-down lights?

10         A.   They are.   If I didn't use that, I did at least
11   use a spotlight, one or the other.

12         Q.   And is that in and of itself a command, a

13   non-verbal command?
14         A.   Yes, sir.

15         Q.   And it's a non-verbal command for that car to

16   pull over?
17         A.   Yes, sir.

18         Q.   And the point in time where she notices that

19   light, she has to begin to do some divided attention types
20   of things; correct?

21         A.   Yes, sir.

22         Q.   She actually has to respond to your light, she
23   has to slow down.   Correct?

24         A.   Yes, sir.

25         Q.   She has to make sure she slows down and parks in
                                                                    50
                                Clifton Corley - December 2, 2013
                                  Cross Examination by Mr. Brooks


1    an appropriately safe place?
2       A.      Yes, sir.

3       Q.      Correct?    And she did all of those things

4    correctly?
5       A.      Yes, sir.

6       Q.      In fact, she did all of those things in a normal

7    fashion?
8       A.      Yes, sir.

9       Q.      When you approach her, as you told her, you asked

10   for her driver's license, and she produced her driver's
11   license to you in a normal fashion?

12      A.      Yes, sir.

13      Q.      Okay.   It wasn't on the floorboard of the car or
14   in the back seat or anything like that?

15      A.      No.

16      Q.      She reached in and pulled it out and gave it to
17   you?

18      A.      Yes, she did give it to me, yes, sir.

19      Q.      So that's normal.
20      A.      Yes, sir.

21      Q.      Now, when she pulled over, that was because you

22   wanted her to pull over; correct?
23      A.      Yes, sir, that is correct.

24      Q.      Now, at some point, you make the decision to ask

25   her to get out of the car.
                                                                 51
                             Clifton Corley - December 2, 2013
                               Cross Examination by Mr. Brooks


1       A.      Yes, sir.
2       Q.      And you asked her to get out of the car?

3       A.      That is correct.

4       Q.      And she responded to that?
5       A.      Yes, sir.

6       Q.      Normally?

7       A.      Yes, sir.
8       Q.      She doesn't stumble out of the car?

9       A.      No, sir.

10      Q.      She doesn't grab the door to climb her way out of
11   the car?

12      A.      No.

13      Q.      She gets out of her car in response to your
14   command; correct?

15      A.      Yes, sir.

16      Q.      Now, was she respectful with you from your first
17   encounter with her, your first time speaking with her?

18      A.      Yes, sir, she was.

19      Q.      Did she remain respectful with you throughout
20   your time with her?

21      A.      Yes, sir, she did.

22      Q.      Isn't it true a lot of times in these type of
23   situations, the person that you take in custody becomes

24   quite belligerent?

25      A.      Absolutely, yes, sir.
                                                                52
                            Clifton Corley - December 2, 2013
                              Cross Examination by Mr. Brooks


1       Q.    Or hysterical?
2       A.    Yes, sir.

3       Q.    And none of that happened here?

4       A.    That is correct.
5       Q.    Now, when she got out of the car, you told her

6    where to stand?

7       A.    Yes, sir.
8       Q.    And she went and stood where you told her to

9    stand?

10      A.    Yes, sir.
11      Q.    Now, while she's standing there, and she's

12   standing there for -- it's more than a minute, probably

13   several minutes, isn't it?
14      A.    Yes, sir.

15      Q.    She's not swaying or leaning up against her car

16   or anything like that, is she?
17      A.    There was some slight swaying but no leaning up

18   against the car, no, sir.

19      Q.    Can you see that slight swaying on the video?
20      A.    I don't know that you can, sir.

21      Q.    So for their purposes, the jury won't have any

22   evidence of that on the video?
23      A.    Without looking at it again, I don't recall

24   seeing any major swaying, no, sir.

25      Q.    You've looked at it before you got on the stand
                                                                   53
                              Clifton Corley - December 2, 2013
                                Cross Examination by Mr. Brooks


1    and testified today?
2       A.       Yes, sir.

3       Q.       And you don't recall seeing it?

4       A.       Nothing major.
5       Q.       Now, the area that you were in, there was still

6    some traffic going by -- going by you; correct?

7       A.       Yes, sir.
8       Q.       And it's not like you guys were the only ones on

9    the road?

10      A.       Correct.
11      Q.       There wasn't heavy traffic but there was still

12   traffic there?

13      A.       Correct.
14      Q.       What is the N H T S A student manual, officer?

15      A.       That is a manual that provides all the

16   instructions to peace officers on how to perform field
17   sobriety tests.

18      Q.       It's basically a peace officer's bible for how to

19   perform field sobriety tests?
20      A.       Yes.

21      Q.       And in that -- is that the organization that

22   certifies you to perform the H G N testing?
23      A.       Yes, sir, it is.

24      Q.       There are certain things that they ask you to do

25   prior to performing the H G N test?
                                                                  54
                             Clifton Corley - December 2, 2013
                               Cross Examination by Mr. Brooks


1       A.     Yes, sir.
2       Q.     One of the things they ask you to do is make sure

3    that the subject is not facing passing traffic?

4       A.     Yes, sir.
5       Q.     And that's so as to not be a distraction as far

6    as those headlights going back and forth; correct?

7       A.     Yes, sir.
8       Q.     To the same extent why you're supposed to take

9    down your strobe lights?

10      A.     Correct.
11      Q.     And we know on this video, Ms. Henderson is

12   facing the passing traffic?

13      A.     Correct.
14      Q.     They also ask you to do what's called a precheck.

15      A.     Yes, sir.

16      Q.     Are you telling this jury that on the video, they
17   will see you doing a precheck of her eyes to determine

18   whether they can track smoothly?

19      A.     Yes, sir.
20      Q.     That's on the video?

21      A.     Yes, sir.

22      Q.     Okay.   Now, going back to the N H T S A student
23   manual, when's the last time you looked at that student

24   manual?

25      A.     About six months ago, I believe.
                                                                  55
                              Clifton Corley - December 2, 2013
                                Cross Examination by Mr. Brooks


1       Q.    And you're aware that in the manual, according to
2    the manual, the H G N test is 77 percent accurate?

3       A.    Before you told me, I knew there was a

4    percentage.   I don't recall exactly what the percentage
5    was.

6       Q.    But it's not 100 percent?

7       A.    Correct.
8       Q.    And if I represent to you that in the manual, it

9    says 77 percent, are you willing to accept that?

10      A.    Yes, sir, I am.
11      Q.    They also give you a percentage of the

12   walk-and-turn and one-legged stand test.   Do you recall

13   what those percentages are?
14      A.    I do not, no, sir.

15      Q.    But they're not 100 percent either --

16      A.    That is correct.
17      Q.    -- do you recall that?

18      A.    Yes, sir.

19      Q.    And they recommend that in order to make a
20   determination as to whether or not someone is intoxicated,

21   that you perform all three of those tests?

22      A.    Yes, sir.
23      Q.    And in that manual, it also says that even with

24   all three of those tests, the accuracy of that battery of

25   tests is 80 percent --
                                                                56
                            Clifton Corley - December 2, 2013
                              Cross Examination by Mr. Brooks


1       A.    Yes, sir.
2       Q.    -- you recall that?

3       A.    Yeah, I do, yes, sir.

4       Q.    So even all three of those tests together is not
5    a 100 percent validation or verification someone is

6    intoxicated beyond their normal mental and physical

7    faculties, according to the N H T S A manual; correct?
8       A.    That is correct, yes, sir.

9       Q.    Now, Ms. Henderson told you that she needed to

10   use the bathroom.
11      A.    Yes, sir.

12      Q.    Did she also tell you that she was only two miles

13   from home?
14      A.    She did indicate that it was pretty close, yes,

15   sir.

16      Q.    And you had her driver's license so you were able
17   to verify if she was telling the truth or not?

18      A.    Yes, sir.

19      Q.    And you verified that she was actually very close
20   to her home?

21      A.    Yes, sir.

22      Q.    So you don't know if she got in a situation
23   where, on the way home, she figured she could go ahead and

24   make it and rather use a bathroom in her own private

25   bathroom versus a public bathroom, do you?
                                                                  57
                              Clifton Corley - December 2, 2013
                                Cross Examination by Mr. Brooks


1       A.    Correct.    Yeah, I have no way of knowing that.
2       Q.    Now, in terms of not being able to do the

3    testing, if she had tried to do the one-legged stand test

4    and lost control and peed on herself, you would've put that
5    in your report as a sign of insobriety, wouldn't you?

6       A.    Yes, sir.

7       Q.    And the same thing if she tried to do the
8    one-legged stand test and was unable to do it and started

9    peeing while doing it, you would have put that as a sign of

10   insobriety?
11      A.    Yes, sir.

12      Q.    She was kind of between a rock and a hard place

13   in terms of having to use the bathroom or taking a chance
14   of peeing on herself.

15      A.    That's understandable, yes.

16      Q.    And in fact you were so concerned about whether
17   or not she was going to pee on herself that you called in

18   another officer and you told him, I wanted you to come

19   because I don't want her to pee in my car.
20      A.    Okay.

21      Q.    You remember that?

22      A.    I don't recall saying that, no, sir.
23      Q.    If it's on the tape, you wouldn't dispute that?

24      A.    No, sir, I would not.

25      Q.    So after you made the decision to arrest her,
                                                                  58
                             Clifton Corley - December 2, 2013
                               Cross Examination by Mr. Brooks


1    she's put in your squad car -- was that someone else's
2    squad car?

3       A.      That was mine, yes, sir.

4       Q.      She was put in your squad car, and, I guess, the
5    other officer, at that point, inventories her car and

6    prepares it to be impounded?

7       A.      Correct.
8       Q.      Now, the ride back to the police station, about

9    how long would you say that ride took?

10      A.      I would guess between seven and 10 minutes.
11      Q.      And in the ride back, the two of y'all had a

12   conversation?

13      A.      Yes, sir.
14      Q.      And that conversation never got ugly in anyway,

15   did it?

16      A.      No, sir, did not.
17      Q.      She remained respectful with you?

18      A.      She did.

19      Q.      She asked you about what was the process going
20   forward?

21      A.      Yes, sir.

22      Q.      And she -- the two of y'all talked about who the
23   car was registered to, who might come pick it up?

24      A.      Yes, sir.

25      Q.      Now, isn't it true that she expressed some
                                                                   59
                              Clifton Corley - December 2, 2013
                                Cross Examination by Mr. Brooks


1    concern to you about the inventory of her car?
2       A.       I don't recall that.   I'm certain it may have

3    happened; I don't recall it.

4       Q.       Do you recall telling her that you know the other
5    officer and you trust him?

6       A.       I don't recall saying that, but it's very

7    possible.
8       Q.       If it's on the tape, it's on the tape.

9       A.       Yes, sir.

10      Q.       And do you recall her concern not being about
11   personal items in the car but rather with items or files

12   relating to clients of hers?

13      A.       Again, I don't recall, but if it's on the tape,
14   yes, sir.

15      Q.       And if that's what's on the tape, that would

16   indicate that she has -- was having a concern about
17   maintaining the privacy of her clients' files; correct?

18      A.       Yes, sir.

19      Q.       Now, going back to the nystagmus, the manual
20   tells you a certain way that that test is supposed to be

21   performed and it's supposed to be 12 to 15 inches from the

22   nose.
23      A.       Yes, sir.

24      Q.       Slightly above the eyes at 45-degree angle?

25      A.       Yes, sir.
                                                                   60
                              Clifton Corley - December 2, 2013
                                Cross Examination by Mr. Brooks


1       Q.    This jury has no way of determining from the
2    video that it's 12 to 15 inches from the nose, can they?

3       A.    Not perfectly accurately, no, sir.

4       Q.    And they can't determine whether or not the pen
5    is being held at the correct 45-degree angle?

6       A.    No, sir.

7       Q.    Isn't it true, officer, also that the manual sets
8    out that some people have what's called natural nystagmus?

9       A.    Yes, sir.

10      Q.    But you don't have any testing or preliminary
11   testing to determine whether or not she had natural

12   nystagmus?

13      A.    I'm not qualified to do that, no, sir.
14                    MR. BROOKS:   Pass the witness.

15                    MR. WILSON:   Your Honor, may we approach?

16                    THE COURT:    Yes, sir.
17                    (Sidebar conversation between the court and
18                    counsel off the record.)
19                    THE COURT:    You may proceed.
20                    MR. WILSON:   Thank you, judge.

21                        REDIRECT EXAMINATION

22   BY MR. WILSON:
23      Q.    Officer Corley, are you familiar with the

24   validation studies that are included in the NHTSA handbook?

25      A.    I have read them but it has been some time.
                                                                   61
                               Clifton Corley - December 2, 2013
                              Redirect Examination by Mr. Wilson


1       Q.       Would it help if I refresh your recollection?
2       A.       Yes, sir.

3                    MR. WILSON:   May I approach the witness,

4    Your Honor?
5                    THE COURT:    Yes, sir, you may.

6       Q    (By Mr. Wilson) Sir, if you'll just read this page

7    here to yourself, silently.
8                    Has your recollection been refreshed?

9       A.       Yes, sir.

10      Q.       Are you familiar with the three validation
11   studies undertaken between 1995 and 1998 in Colorado,

12   Florida and San Diego?

13      A.       Yes, sir.
14      Q.       And is it true that the Colorado study came to

15   the conclusion that when performed together, that the

16   standardized field sobriety tests are about 93 percent
17   accurate?

18      A.       Yes, sir.

19      Q.       And that the Florida test yielded a result that
20   said the field sobriety tests were about 95 percent

21   accurate?

22      A.       Yes, sir.
23      Q.       And that the San Diego test stated that the field

24   sobriety tests had about a 91 percent level of accuracy in

25   showing that someone would be at least a .0 -- .08 level of
                                                                 62
                            Clifton Corley - December 2, 2013
                           Redirect Examination by Mr. Wilson


1    alcohol concentration or greater?
2       A.    Yes, sir.

3       Q.    And you're not -- you have no medical training;

4    is that correct?
5       A.    Correct.

6       Q.    Where does the information about what can cause

7    horizontal gaze nystagmus, where does that information come
8    from?

9       A.    The only information I read has been in the N H

10   -- the NHTSA manual there.
11      Q.    And is this provided to you by the State of

12   Texas?

13      A.    Yes, sir.
14      Q.    Is it provided to all police officers in the

15   State of Texas?

16      A.    Yes, sir.
17      Q.    When it came to the statutory warning, does the

18   statutory warning include any language about an

19   occupational driver's license?
20      A.    No, sir.

21      Q.    So on the face of it, if all you have in front of

22   you is the information provided in the statutory warning,
23   there's no way to know that you can go get an occupational

24   driver's license; is that correct?

25      A.    On the face of that, no, sir.
                                                                    63
                              Clifton Corley - December 2, 2013
                             Redirect Examination by Mr. Wilson


1       Q.    Based on your experience and all of the D W I
2    investigations that you have conducted, have you ever run

3    into individuals who are both respectful and intoxicated?

4       A.    Yes, sir.
5       Q.    And would you say that there are slight nuances

6    that you've been trained to see that aren't going to always

7    show up on video?
8       A.    Yes, sir.

9       Q.    And when it comes to the passing lights, why is

10   it that under ideal conditions you don't have someone face
11   passing traffic when performing the H G N test?

12      A.    Under ideal conditions, if the traffic is heavy

13   enough and cars are going by, the eyes can tend to follow
14   the lights as it goes across.

15      Q.    But does that cause an individual's head to turn?

16      A.    No, sir.
17      Q.    And what was traffic like that night?

18      A.    It was light.

19                    MR. WILSON:   Pass the witness.
20                    THE COURT:    Anything further, Mr. Brooks?

21                    MR. BROOKS:   Yes, Your Honor.    Just a couple

22   of questions.
23                        RECROSS EXAMINATION

24   BY MR. BROOKS:
25      Q.    In reference to what you were just asked as far
                                                                 64
                            Clifton Corley - December 2, 2013
                            Recross Examination by Mr. Brooks


1    as standing on the side of the road and the traffic going
2    back and forth.

3       A.    Yes, sir.

4       Q.    Because of what you do for a living, your eight
5    years of doing this, you're used to standing on the

6    roadside where vehicles are going past you; is that a fair

7    statement?
8       A.    Yes, sir.

9       Q.    You have no reason to expect that Ms. Henderson

10   would be used to being in that situation, would you?
11      A.    No, sir.

12      Q.    And the battery of tests that we talked about,

13   there are still other tests that could have been
14   administered in terms of field sobriety testing, such as

15   counting backwards from A B C, from Z through B, or B

16   through T; correct?
17      A.    Correct.

18      Q.    You could have done that.   And that's perfectly

19   acceptable test, isn't it?
20      A.    It's not a standardized test but I believe it

21   could be acceptable, yes, sir.

22      Q.    And you utilized that test before?
23      A.    I believe early on in my career, I did.   It's

24   nothing I used recently.

25      Q.    What about counting backwards?
                                                                   65
                               Clifton Corley - December 2, 2013
                               Recross Examination by Mr. Brooks


1       A.    It's not something I generally use, no, sir.
2       Q.    Have you used that test before?

3       A.    I have but it's been several years.

4       Q.    And going back to when you and Ms. Henderson are
5    talking about the inventory, she had the foresight to ask

6    you if she was going to get a copy of that inventory,

7    didn't she?
8       A.    Yes, sir.

9                  MR. BROOKS:    I don't think I have any other

10   questions at this time, Your Honor.
11                 THE COURT:    Any further questions of this

12   witness from the state?

13                 MR. WILSON:    No, Your Honor.   Witness may be
14   excused by the state.

15                 THE COURT:    You want to reserve this

16   witness, Mr. Brooks, or is he released?
17                 MR. BROOKS:    Subject to recall, judge.

18                 THE COURT:    Sir, you're free to go.

19                 THE WITNESS:    All right.   Thank you.
20                 THE COURT:    Call your next witness.

21                 MR. WILSON:    Your Honor, at this time, the

22   state has no more witnesses to call but I request
23   permission to publish State's Exhibit 1.

24                 THE COURT:    Permission granted.

25                 (DVD published on the overhead screen.)
                                                                 66




1                  MR. WILSON:   Your Honor, that concludes the
2    state's publishing of the in-car video portion of State's

3    Exhibit 1.

4                  Now publishing the intoxilyzer room portion
5    of the State's Exhibit 1.

6                  THE COURT:    My understanding is this next

7    portion is about seven minutes; is that correct?
8                  MR. WILSON:   About six, Your Honor.

9                  THE COURT:    Proceed.

10                 (DVD published on the overhead screen.)
11                 MR. WILSON:   Your Honor, that concludes the

12   state's publishing the State's Exhibit 1.

13                 THE COURT:    Mr. Brooks, is there anything of
14   any value past this point on the video?

15                 MR. BROOKS:   No, Your Honor.

16                 THE COURT:    All right.   Lights, please.
17                 State, call your next witness.

18                 MR. WILSON:   At this time, Your Honor,

19   members of the jury, the state rests.
20                 THE COURT:    What says the defense?

21                 MR. BROOKS:   May we have a moment, Your

22   Honor?
23                 THE COURT:    Yes, sir.

24                 MR. BROOKS:   Step to the conference room?

25                 THE COURT:    Yes, sir.
                                                                   67




1                  (Recess in place at 4:54 P M, resuming at
2                  4:55 P M.    Defendant present.   Jury
3                  present.)
4                  MR. BROOKS:    At this time, if it please the
5    court, members of the jury, the defense rests.

6                  THE COURT:     All right.   Both sides close?

7                  MR. BROOKS:    Defense close.
8                  MR. WILSON:    State closes.

9                  THE COURT:     Lady and gentlemen of the jury,

10   that's all the evidence you're going to hear in this case.
11                 At this point, I note for the court and the

12   record that it's four minutes till 5:00.     That's all of the

13   evidence but we still have to have what's called the jury
14   conference here on the charge, the instructions that you're

15   going to receive.   I've been busily working on that in

16   between running the court.   I have them ready but I have to
17   give the attorneys a copy and give them a chance to look at

18   it, see if they have any requests for instructions.

19                 We're here to serve you.     So I'm going to
20   let you go to the jury room and quickly take a consensus.

21   If you want to stay and work, we'll stay here and work

22   through the evening until you arrive at a verdict.     If you
23   want to go home, we will break now.    I'll ask that you come

24   back tomorrow morning, 9:00 o'clock.

25                 Both sides will -- whether you stay or go,
                                                                    68




1    both sides are going to give a closing argument.     It will
2    be about 15 minutes long, telling you what they think the

3    evidence has shown.   Then you'll be able to start your

4    deliberations.   So you still got at least 15 minutes of
5    argument per side, that's a half hour, probably 15 minutes

6    of looking at the jury charge, and I have to read it to you

7    by law.   You're looking at at least an hour before you're
8    going to be able to start your deliberations.    All right?

9                     So I will follow your lead.   If y'all want

10   to, as a group, come back tomorrow, then we'll -- you'll be
11   done and start deliberating by 10:00 o'clock.    Or if you

12   want to stay, then we'll stay.    So at this time, I'm going

13   to pass out the jury charge.
14                    Bailiff, take charge of the jury.

15                    And decide amongst yourselves if you want to

16   stay or come back tomorrow morning.
17                    Counsel, approach.

18                    (The jury exits.)
19                    THE COURT:   Please look over the proposed
20   jury charge.   We'll stand in recess for 10 minutes while

21   y'all look that over and the jury decides what they want to

22   do.
23                    (Recess at 4:57 P M, resuming at 5:07 P M.
24                    Defendant present.)
25                    THE BAILIFF:   All rise.
                                                                     69




1                   (The jury enters.)
2                   THE COURT:    Thank you.    You may be seated.

3    Let the record reflect that all parties are present, the

4    jury is back in the courtroom.
5                   Lady and gentlemen of the jury, it's come to

6    my attention that you collectively have decided that you

7    prefer to go home tonight and then reconvene tomorrow at
8    9:00 A M.   Is that correct?

9                   THE JURORS:     Yes, sir.

10                  THE COURT:    All right.    Now, I didn't
11   mention this earlier because it's very rarely that it comes

12   up.   But I believe one of the jurors might have been taking

13   notes.
14                  THE JUROR:    Yes, sir.

15                  THE COURT:    The law in Texas on that is, you

16   can take notes if the judge allows, and I do allow it.       But
17   you cannot share them with anyone else.     And you cannot

18   have them when you go back and deliberate.     So you can use

19   them, give them to the bailiff tonight, he'll secure them
20   in an envelope.   He'll give them back to you tomorrow for

21   you to review if you would like before you go deliberate.

22                  The reason the law doesn't allow you to take
23   them back there, we don't want somebody relying on your

24   note taking instead of what they heard and saw in the

25   courtroom just in case your notes are incorrect.
                         (Jury Not Present)
                                                                    70




1                    THE JUROR:   Yes, sir.
2                    THE COURT:   Okay.   So, bailiff, collect any

3    notes and mark them in an envelope, keep them separate.

4                    No one is going to look at your notes.
5    We'll return them to you tomorrow.

6                    Remember my instructions.   Don't begin

7    discussing this case with anybody.    We're almost at the
8    end.   I don't think you're going to hear more than 30

9    minutes of proceedings tomorrow.     I'll come in, read you

10   the charge.   We'll keep working on this so we're not
11   wasting any of your time.    Each side will take 15 minutes

12   and then you'll be deliberating.     All right.   Thank you.

13                   Bailiff, take charge of the courtroom --
14                   THE BAILIFF:   Yes, Your Honor.

15                   THE COURT:   -- or the panel.

16                   THE BAILIFF:   All rise.
17                   THE COURT:   See everyone back here in the

18   morning at 8:45.   And collect the notes, bailiff.

19                   THE BAILIFF:   Yes, sir.
20                   (Adjourned at 5:10 P M.    Resuming December
21                   3, 2013, in Volume 4.)
22
23

24

25
                                                                 71




1    STATE OF TEXAS     )
2    COUNTY OF COLLIN   )

3

4        I, Marigay Black, Official Court Reporter in and for
5    the County Court at Law Number Two, County of Collin, State

6    of Texas, do hereby certify that the above and foregoing

7    contains a true and correct transcription of all portions
8    of evidence and other proceedings requested in writing by

9    counsel for the parties to be included in this volume of

10   the Reporter's Record in the above-styled and numbered
11   cause, all of which occurred in open court or in chambers

12   and were reported by me.

13       I further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits, if

15   any, offered by the respective parties.

16       Signed this 26th day of March, 2014.
17

18                              /S/   Marigay Black

19                              MARIGAY BLACK, Texas CSR 351
                                Official Court Reporter
20                              County Court at Law Number Two
                                Suite 10344
21                              2100 Bloomdale Road
                                McKinney, Texas 75071
22                              Tel: 972-548-3823
                                FAX: 972-548-3828
23                              Expiration: 12/31/2014
                                mblack@co.collin.tx.us
24

25
                                                                  1
                                            Trial on the Merits
                                               December 3, 2013


1                           REPORTER'S RECORD
                          VOLUME 4 OF 5 VOLUMES
2                 TRIAL COURT CAUSE NO. 002-80051-2013
                COURT OF APPEALS CASE NO. 05-14-00025-CR
3
     THE STATE OF TEXAS               ) IN THE COUNTY COURT
4                                     )
     VS.                              ) AT LAW NUMBER TWO
5                                     )
     MELLANNISE HENDERSON             ) COLLIN COUNTY, TEXAS
6

7
8             _____________________________________________

9                          TRIAL ON THE MERITS
              _____________________________________________
10
11

12         On the 3rd day of December, 2013, the following

13   proceedings came on to be heard in the above-titled and
14   numbered cause before the Honorable Barnett Walker, Judge

15   Presiding, and a jury, held in McKinney, Collin County,

16   Texas.
17         Proceedings reported by computerized stenotype

18   machine.

19
20

21

22
23

24

25
                                                                2
                                          Trial on the Merits
                                             December 3, 2013


1                      A P P E A R A N C E S
2    Mr. Justin B. Wilson
     SBOT NO. 24080521
3    Ms. Geeta Yadav Singletary
     SBOT NO. 24060862
4    Office of Greg Willis, District Attorney
     Suite 100
5    2100 Bloomdale Drive
     McKinney TX 75071
6    Telephone: 972-548-4323
     Facsimile: 972-548-3622
7
8                              Attorneys for The State of Texas

9

10   Mr. Kevin Brooks
     SBOT NO. 03070735
11   Attorney at Law
     Suite 2475
12   325 N. Paul
     Dallas TX 75201
13   Telephone: 214-922-0212
     Facsimile: 214-922-0294
14
                                     Attorney for The Defendant
15

16
17

18

19
20

21

22
23

24

25
                                                                3
                                          Trial on the Merits
                                             December 3, 2013


1                             VOLUME 4
2                       Trial on the Merits

3    December 3, 2013

4                                              PAGE   VOL.
5    Charge Conference ...........................4   4

6    Charge Read to the Jury .....................7   4

7    Closing Statement by Mr. Wilson ............13   4
8    Closing Statement by Mr. Brooks ............18   4

9    Closing Statement by Mr. Wilson ............22   4

10   Jury Note Received .........................29   4
11   Verdict ....................................36    4

12   Punishment Phase ...........................38   4

13   Both Sides Close ...........................39   4
14   Sentencing .................................39    4

15   Reporter's Certificate .....................43   4

16
17

18

19
20

21

22
23

24

25
                                                                     4
                                              Trial on the Merits
                                                 December 3, 2013


1                     (Proceedings occurring in open court,
2                     commencing at 9:02 A M.   Defendant present.)
3                     THE COURT:    Court calls 002-80051-2013,

4    State of Texas versus Mellannise Henderson-Love.
5                     Let the record reflect the jury is outside

6    the courtroom.   All parties are present.

7                     When we concluded yesterday, I gave both
8    sides a copy of the proposed jury charge and asked that you

9    look it over.

10                    Does the state have any requests for changes
11   or additions?

12                    MR. WILSON:   Your Honor, first off, I just

13   wanted to clarify that, would you like it to state
14   Mellannise Henderson throughout the jury charge or change

15   it to Mellannise Henderson-Love?

16                    THE COURT:    Well, the court doesn't have a
17   preference.   I used Mellannise Henderson only because

18   that's how it was styled on the information itself.

19                    MR. WILSON:   The state has no objection
20   then.

21                    Secondly, Your Honor, the state requests

22   that in the application paragraph, bullet point number
23   three, since no evidence was presented in regard to an

24   alcohol concentration, we ask that the alcohol

25   concentration paragraph be removed from the jury charge.
                                                                     5
                                               Trial on the Merits
                                                  December 3, 2013


1                   THE COURT:    Any objections by the defense?
2                   MR. BROOKS:   Yes, Your Honor.    I would objet

3    to that.   I believe what's in there is following the

4    statute.
5                   THE COURT:    Well, it follows the statute.

6    Why would it be necessary to put in?      The jury couldn't

7    find her -- there's not going to be any evidence, the state
8    having rested and closed, there's no evidence of an alcohol

9    concentration, so why isn't that just unnecessary language?

10                  MR. BROOKS:   Okay.
11                  THE COURT:    All right.

12                  MR. WILSON:   Nothing further from the state.

13                  THE COURT:    I'll strike paragraph three.
14                  Any requests from the defense?

15                  MR. BROOKS:   Yes, judge.     I don't -- and you

16   may have put it in here and I just missed it.     Any
17   reference to the verdict having to be unanimous.

18                  THE COURT:    Page three, counsel, the third

19   paragraph from the bottom, the last sentence.     Your verdict
20   must be unanimous and signed by the presiding juror.

21                  MR. BROOKS:   Thank you, sir.

22                  THE COURT:    And does your client wish the
23   information to read Mellannise Henderson or Mellannise

24   Henderson hyphen Love?

25                  THE DEFENDANT:   Mellannise Henderson is
                                                                     6
                                               Trial on the Merits
                                                  December 3, 2013


1    fine, Your Honor.
2                   THE COURT:    All right.   And you acknowledge

3    that you're the same Mellannise Henderson that was stopped

4    on this day?
5                   THE DEFENDANT:   Yes, Your Honor.

6                   THE COURT:    Anything further from either

7    side?
8                   MR. WILSON:    No, Your Honor.

9                   MR. BROOKS:    No, sir.

10                  THE COURT:    Bailiff, I'm going to print --
11   do you want a fresh copy with the change with the missing

12   paragraph, counsel?

13                  MR. BROOKS:    No, sir, that's not necessary
14   for me.

15                  THE COURT:    Does the state want one?

16                  MR. WILSON:    Yes, Your Honor, please.
17                  THE COURT:    Okay.

18                  (Unrelated docket matters heard, after which
19                  the following proceedings were had,
20                  commencing at 9:40 A M. Defendant present.)
21                  THE BAILIFF:   All rise.

22                  (The jury enters.)
23                  THE COURT:    Everyone may be seated.

24                  Bailiff, the notes fell off on to the floor.

25                  Lady and gentlemen of the jury, let the
                                                                     7
                                               Trial on the Merits
                                                  December 3, 2013


1    record reflect that all parties are present.      The jury is
2    back in the courtroom.

3                   At this time, bailiff, would you please pass

4    out a copy of the jury charge.
5                   THE BAILIFF:    Yes, Your Honor.

6                             COURT'S CHARGE

7                   THE COURT:    The jury charge is your
8    instructions on how to proceed with your deliberations but

9    before I read that to you, as I'm required to do by law, I

10   want to also instruct you one more time on one other part
11   of your duties.

12                  In continuing to discharge your

13   responsibilities as jurors, you will continue to observe
14   all the instructions that have previously been given to

15   you.   These instructions are given to you because your

16   conduct is subject to review, the same as that of the
17   witnesses, the parties, the attorneys and myself.      If it

18   should be found that you have disregarded any of these

19   instructions, it will be jury misconduct, and it may
20   require another trial by another jury.

21                  If any of you observe one or more of your

22   number violating any of my instructions, you shall
23   immediately warn the violator and caution him or her not to

24   do so again.

25                  Now, please listen carefully as I read the
                                                                    8
                                              Trial on the Merits
                                                 December 3, 2013


1    charge to you.   The original will be delivered to you by
2    the bailiff for you to write your verdict on it.    You may

3    take that copy back with you if you would like or you may

4    just take the official copy that has my signature back.
5                     "Members of the jury:   The defendant,

6    Mellannise Henderson, stands charged with the misdemeanor

7    offense of driving while intoxicated in a public place in
8    Collin County, Texas on or about December 1st, 2012.      To

9    this charge, the defendant has pleaded not guilty.

10                    "Our law provides that a person commits an
11   offense if the person is intoxicated while driving or

12   operating a motor vehicle in a public place.

13                    "A public place means any place to which the
14   public or a substantial group of the public has access, and

15   includes but is not limited to streets, highways, and the

16   common areas of schools, hospitals, apartment houses,
17   office buildings, transport facilities and shops.

18                    "The word intoxicated means not having the

19   normal use of mental or physical faculties by reason of the
20   introduction of alcohol, a controlled substance, a drug, a

21   dangerous drug, a combination of two or more of those

22   substances or any other substance into the body, or having
23   an alcohol concentration of 0.08 or more.

24                    "The term alcohol concentration as used

25   herein means the number of grams of alcohol per 210 liters
                                                                   9
                                           Trial on the Merits
                                              December 3, 2013


1    of breath.
2                  "The term motor vehicle means a device in,

3    on or by which a person or property may be transported or

4    drawn on a highway except for a device used exclusively on
5    stationary rails or tracks.

6                  "Now, if you find and believe from the

7    evidence beyond a reasonable doubt that on or about the --"
8    should read -- "on or about December 1st, 2012, in Collin

9    County, Texas, Mellannise Henderson did then and there

10   operate a motor vehicle in a public place, while the said
11   Mellannise Henderson was intoxicated by, one, not having

12   the normal use of her mental faculties by reason of the

13   introduction of alcohol into the body, or, two, not having
14   the normal use of her physical faculties by reason of the

15   introduction of alcohol into the body, then you will find

16   the defendant guilty as charged.
17                 "Unless you so find beyond a reasonable

18   doubt or if you have a reasonable doubt thereof, you will

19   find the defendant not guilty.
20                 "You are instructed that the law allows the

21   defendant to testify in her own behalf but the fact that

22   she did not do so is not a circumstance against her and
23   shall not be considered as evidence of guilt or proof of

24   any other matter.   You shall not consider, discuss or even

25   refer to the fact that the defendant did not testify, nor
                                                                  10
                                           Trial on the Merits
                                              December 3, 2013


1    shall you draw any inference of guilt therefrom.
2                    "All persons are presumed to be innocent and

3    no person may be convicted of an offense unless each

4    element of the offense is proved beyond a reasonable doubt.
5    The fact that a person has been arrested, confined or

6    charged with an offense gives rise to no inference of guilt

7    at her trial. The law does not require a defendant to prove
8    her innocence or produce any evidence at all.   The

9    presumption of innocence alone is sufficient to acquit the

10   defendant unless the jurors are satisfied beyond a
11   reasonable doubt of the defendant's guilt after careful and

12   impartial consideration of all the evidence in the case.

13                   "The prosecution has the burden of proving
14   the defendant guilty, and it must do so by proving each and

15   every element of the offense charged beyond a reasonable

16   doubt.   And if they fail to do so, you must acquit the
17   defendant.

18                   "You are instructed that you are not to

19   allow yourself to be influenced by what you may think or
20   surmise the opinion of the court to be.   The court has no

21   right to indicate an opinion respecting any matter of fact

22   involved in this case, or to indicate a desire respecting
23   its outcome.   The court has not intended to express an

24   opinion upon any matter of fact in this case and if you've

25   observed anything that you have or may have interpreted as
                                                                  11
                                            Trial on the Merits
                                               December 3, 2013


1    the court's opinion upon a matter of fact in this case, you
2    must wholly disregard it.

3                  "You are instructed that any statements of

4    counsel made during the course of the trial or during
5    argument that is not supported by the evidence or

6    statements of law made by the counsel not in harmony with

7    the law as stated to you by the court in these instructions
8    are to be wholly disregarded.

9                  "You are further instructed that you should

10   not question the bailiff concerning testimony or the law of
11   this case, nor should you discuss the case in his presence.

12   If you have any questions, you should reduce them to

13   writing to be signed by the presiding juror and present
14   them to the court.

15                 "If the jurors disagree as to the statement

16   of any witness, they may, upon applying to the court, in
17   writing, have read to them from the court reporter's notes

18   that portion of such witness' testimony and only that

19   portion on the point in dispute.
20                 "You are instructed that the information is

21   the means whereby a defendant is brought to trial in a

22   misdemeanor prosecution.    It is not evidence, nor can it be
23   considered as such when passing upon whether the defendant

24   is guilty or not guilty.

25                 "During your deliberations in this case, you
                                                                   12
                                             Trial on the Merits
                                                December 3, 2013


1    must not consider, discuss nor relate any matters not in
2    evidence before you.   You should not consider nor mention

3    any personal knowledge or information you may have about

4    any fact or person connected with this case which is not
5    shown by the evidence. You are to base your decision on the

6    evidence presented and are not to be swayed by any

7    sympathy, prejudice or bias.
8                    "After you retire to the jury room, you

9    should select one of your members as your presiding juror.

10   It is their duty to preside at your deliberations and vote
11   with you.   Your verdict must be unanimous and signed by the

12   presiding juror.

13                   "You are the exclusive judges of the facts
14   proved, of the credibility of the witnesses, and the weight

15   to be given their testimony.   But you must be governed by

16   the law you receive in these written instructions.
17                   "Suitable forms for your verdict are

18   attached hereto.   Your verdict must be in writing and

19   signed by your presiding juror.    Your sole duty at this
20   time is to determine whether the defendant is guilty or not

21   guilty under the information in this cause and you are to

22   restrict your deliberations to that issue.
23                   "Signed this the 3rd day of December, 2013.

24   Barnett Walker, judge presiding.

25                   "Verdict.   We, the jury, find the defendant
                                                                   13
                                             Trial on the Merits
                                                December 3, 2013


1    guilty of driving while intoxicated as charged."
2                  If that is your unanimous verdict, the

3    presiding juror will sign his or her name where it says

4    signature and print the name where it says printed name.
5                  "Or, we, the jury, find the defendant not

6    guilty."

7                  If that's your unanimous verdict, then the
8    presiding juror will sign his or her name where it says

9    signature and print the name where it says printed name.

10                 I noted we had two typographical errors.      I
11   will fix those and I will sign the official copy for you to

12   take it back and for you to write your verdict on.

13                 At this time, each side wants to do a
14   15-minute closing.   They're going to highlight what they

15   believe the evidence has shown in this case.

16                 Under the laws of the State of Texas, the
17   state has the right to go both first and last so they can

18   split their time if they so choose.

19                 The state may proceed.
20                         CLOSING STATEMENT

21                 MR. WILSON:   Thank you, judge.   May I use

22   the projector, please?
23                 THE COURT:    Yes, sir.

24                 MR. WILSON:   May it please the court.

25                 THE COURT:    Yes.
                                                                   14
                                Closing Statement by Mr. Wilson
                                               December 3, 2013


1                  MR. WILSON:    Counsel.    Members of the jury.
2                  It's been my pleasure to represent the State

3    of Texas to you over the last two days, and as the judge

4    said, since I represent the State of Texas, I have the
5    burden of proof.   And it is something that I -- a burden

6    that I embrace.    And also as the judge said, I get the

7    opportunity to speak to you twice.    Here in a little bit,
8    Mr. Brooks, counsel for defense, is going to come up here

9    and make his final argument, and then I will be back to

10   make my final argument on behalf of the state.
11                 First off, though, I want to go through a

12   few things that you'll find in the jury charge, just make

13   them a little bit more clear to you.
14                 So, first, I want to remind you that the

15   standard that you are to use to evaluate the defendant is

16   the average non-intoxicated person.     Remember that
17   yesterday, during voir dire, we talked about how you

18   collectively are the average non-intoxicated person.    And

19   it is that standard that you will apply to the defendant
20   when determining whether or not she had the normal use of

21   her mental or physical faculties.

22                 Another thing I want you to remember is that
23   the standardized field sobriety tests that you heard so

24   much about yesterday are designed so that the average

25   non-intoxicated person can perform them successfully on
                                                                   15
                                 Closing Statement by Mr. Wilson
                                                December 3, 2013


1    roadsides all throughout the country.
2                    Next, you'll see on page two some of these

3    definitions.   You'll notice that while yesterday we talked

4    about three definitions, you only really have to worry
5    about two of those today.   That's because no evidence was

6    presented as to alcohol concentration since the defendant

7    refused to provide a sample of her breath.
8                    So you can basically think of the

9    definitions and process them the following way like I've

10   got on the board.   Ask yourself the first question:   Do I
11   believe beyond a reasonable doubt that the defendant did

12   not have the normal use of her physical faculties due to

13   the introduction of alcohol into her body while she was
14   driving?   If the answer to that question is yes, the state

15   is entitled to a verdict of guilty.   If the answer is no,

16   you can move on to the next question.
17                   Do I believe beyond a reasonable doubt that

18   the defendant did not have the normal use of her mental

19   faculties due to the introduction of alcohol while she was
20   driving?   If the answer to that question is yes, the state

21   is entitled to a verdict of guilty.   Only if your answer to

22   both of those questions is no, only then, will you find
23   that the defendant was not guilty.

24                   Next, you will see also on page two that all

25   persons are presumed innocent.   The thing is, though,
                                                                   16
                                Closing Statement by Mr. Wilson
                                               December 3, 2013


1    there's nothing in this jury charge that says all people
2    are presumed to be honest.   You are the ones who determine

3    the credibility of all witnesses and all parties involved

4    in this case.   You determine the credibility of Officer
5    Corley yesterday, you also determine the credibility of the

6    defendant.

7                     Another thing, just to remind you, sympathy
8    cannot be considered and the law applies equally to

9    everyone.    And, you know, the defendant, she seems like a

10   nice person, she's an attorney, but your feelings about
11   attorneys, whether they are positive or negative, should

12   have no bearing on today's case and on your deliberations.

13                    And finally, we talked a little bit
14   yesterday about beyond a reasonable doubt.   And

15   unfortunately, you know, our state legislature did not give

16   you a clear-cut definition, but we talked about a few
17   things as to what that standard -- what that burden of

18   proof is not.   And it's not a -- it doesn't mean beyond all

19   possible doubt and it's not a 100 percent standard.
20                    And, Mr. Campbell, I believe yesterday I

21   asked you yesterday about this puzzle and pointed out that

22   when we've got the puzzle together on the board, you knew
23   beyond a reasonable doubt that that was a picture of a

24   shark, even though there aren't 100 percent of the puzzle

25   pieces there.   And I want you all to remember that as you
                                                                    17
                                  Closing Statement by Mr. Wilson
                                                 December 3, 2013


1    make your deliberations and determine whether or not you
2    believe beyond a reasonable doubt that the defendant is

3    guilty of driving while intoxicated.

4                    Now I'm going to turn the floor over to
5    Mr. Brooks.   When I get back up here, make my final

6    argument, and after that, you should have everything you

7    need to believe beyond a reasonable doubt the defendant is
8    guilty.

9                    THE COURT:    Thank you, counsel.

10                   Mr. Brooks.
11                   MR. BROOKS:   Thank you, judge.

12                   THE COURT:    Mr. Brooks, did you want to use

13   the monitor as well?
14                   MR. BROOKS:   Yes, sir.

15                   THE COURT:    It looks like it's stuck half

16   way up and down.   Going up into the ceiling there.
17                   (Equipment set up.)
18                   THE COURT:    Sorry for the delay.   You'll get

19   your full time, counsel.
20                   MR. BROOKS:   Thank you, sir.

21                   THE COURT:    I'm going to try to turn it off

22   and bring it back up.   If we can't get it working, I'll
23   have the bailiff take the jury to the courtroom across the

24   hallway and you can do your closing in that courtroom so

25   that you can have access to the technology that you want to
                                                                  18
                                Closing Statement by Mr. Wilson
                                               December 3, 2013


1    use.
2                    You may proceed, counsel.

3                          CLOSING STATEMENT

4                    MR. BROOKS:   Thank you, sir.
5                    Good morning, ladies and gentlemen.   I know

6    yesterday when we started, we had told y'all we expected

7    this to be a one-day trial.   We tried.   We almost got
8    there.    So I apologize for that.   Hopefully, we'll get this

9    thing finished today.

10                   I want to talk to you about some of the
11   things we talked about during voir dire, and one of the

12   things we talked about during voir dire was the various

13   different burdens of proof we have in our criminal justice
14   system.   And we talked about how the lowest burden of proof

15   is reasonable suspicion.   And that proof of burden is the

16   burden of proof I believe that Officer Corley used to
17   arrest Ms. Henderson that night.

18                   We talked about how the burden of proof,

19   reasonable suspicion, is the lowest burden of proof but the
20   highest burden of proof that you have to apply to this case

21   as far as beyond a reasonable doubt, how that is the

22   highest burden of proof.   We talked about the lowest versus
23   the highest.

24                   We also talked about how not guilty

25   obviously includes innocent but it doesn't always -- but
                                                                   19
                                 Closing Statement by Mr. Brooks
                                                December 3, 2013


1    it's not limited to that.   We talked about how that is
2    because you have to find beyond a reasonable doubt a

3    not-guilty basically believing that the state has not

4    proven this case beyond a reasonable doubt.   Not guilty
5    goes back to the central question for a jury in a criminal

6    case.   And the question is not whether or not the defendant

7    is guilty, but the question is, does the evidence presented
8    to me prove beyond a reasonable doubt that the defendant is

9    guilty?   That's the question for the jury.

10                  I want to talk about some of the things that
11   you saw yesterday and let's start with the video.    If you

12   recall the officer testified that he was trying to go

13   around her and she almost hit him.   Well, if you look at
14   that video again -- and I'm going to ask that you please

15   look at that video again -- you'll see that that

16   confrontation is not nearly as dramatic as he tried to make
17   it.   When you look at that near miss, as we call it, you'll

18   see that that near miss is something that, unfortunately,

19   each and every one of us has had happen to us driving down
20   the street, whether it's from inattention, distraction, not

21   paying attention to a blind spot, that very thing is the

22   same thing that each and every person in this courtroom has
23   had happen.

24                  Now, that leads him to pull her over.    He

25   asks her if she saw him, she says that she didn't.   And the
                                                                   20
                                 Closing Statement by Mr. Brooks
                                                December 3, 2013


1    reason she didn't, she thought she saw in front of her
2    emergency lights.    Well, the officer came in here yesterday

3    and corroborated that, in fact, there were emergency lights

4    in front of her.    She told you -- told him she was trying
5    to decide, she couldn't tell where they were, she needed to

6    move over to the left or to the right.   And he admitted to

7    you that based upon that vantage point, you couldn't tell
8    if those emergency lights were in the left or the right

9    lane.   So the officer corroborated what she was seeing.

10                  Now, he also decided that he needed to give
11   her field sobriety tests.   Let's look at the field sobriety

12   tests that were given.   The H G N test, you have no way of

13   knowing if that test was being done correctly.   He let you
14   know and he admitted that, based upon that video, you can't

15   tell if he's at the proper angle, you can't tell he's at

16   the proper distance, but you do know from his own testimony
17   that she's not supposed to be facing the road as she was

18   facing the road.    And the reason she's not supposed to be

19   facing the road is the same reason he has to turn the
20   strobe lights off.   Distraction.   So you know part of that

21   testing was being done incorrectly.   The other parts you

22   don't know if they are being done incorrectly, if they are
23   being done correctly.

24                  She told the officer with respect to the

25   other tests that she needed to use the bathroom.   And
                                                                  21
                                Closing Statement by Mr. Brooks
                                               December 3, 2013


1    apparently he believed her in terms of needing to use the
2    bathroom because if you listen, if you watch on the video,

3    he tells to the other officer that arrives there, that he

4    doesn't want her to pee in his car.   You can hear him.    He
5    also admitted yesterday that if she had peed doing any of

6    the physical tests, he would put that down as a sign of

7    intoxication.   And he also admitted yesterday on the stand
8    that at that point, she was between a rock and a hard

9    place.

10                   Now, they then go to the video room, and he
11   wants to tell you that he instructed her to stand in the

12   box, that she did that incorrectly.   Well, look at that

13   part of the videotape.   There is no instruction on where to
14   stand.   I think it's kind of interesting when you look at

15   that video that, yes, she is standing against the wall but,

16   guess what?   The officer himself is standing and bracing
17   himself on the podium.   So she's not doing anything

18   different than what he is doing.

19                   The other thing that I want you to consider
20   is that there were two officers out there and yet only one

21   officer testified.   The other officer, I'm assuming, I have

22   to assume, was available, could have come in and
23   corroborated what Officer Corley told you.

24                   Now, they're going to stand up and they're

25   going to tell you that I had equal subpoena powers, I could
                                                                    22
                                  Closing Statement by Mr. Brooks
                                                 December 3, 2013


1    have subpoenaed Officer Corley to come in here and do that.
2    But remember as the judge told you yesterday, I don't have

3    a burden.   It's not my job to corroborate what Officer

4    Corley testifies to.   So why would you expect me to
5    subpoena him?   That's not my job.   That's their job.

6                    So when you look at all the facts and

7    everything that was brought before you yesterday in terms
8    of reasonable doubt, you see how we get to this statement.

9    A perfectly valid and lawful arrest can led to a perfectly

10   valid and lawful not-guilty.    And that's the verdict I'm
11   going to ask you to return.

12                   THE COURT:    Thank you, counsel.

13                   Mr. Wilson.   You still have time remaining.
14   You wish to use the overhead?

15                   MR. WILSON:   Yes, please, Your Honor.

16                   THE COURT:    All right.
17                          CLOSING STATEMENT

18                   MR. WILSON:   May it please the court.

19   Counsel.    Members of the jury.
20                   Nothin'.   I had nothing to drink tonight.

21   That's the story that the defendant expects you to believe.

22   But you've seen the facts.    You've heard the testimony.
23   You know that the facts and the evidence as they were

24   presented to you paint a very different picture.

25                   First off, let's break down what happened
                                                                   23
                                 Closing Statement by Mr. Wilson
                                                December 3, 2013


1    that night and we'll begin with the defendant's driving.
2    You saw that the defendant almost hit Officer Corley.

3    Yesterday when we were watching that video, I heard an

4    audible gaff come from the jury box.   You know it was
5    something that was close.   Defense counsel just said that

6    we all are victims of people who nearly swerve into our

7    lanes due to inattention, due to distractions, also due to
8    intoxication.

9                    In addition to that, after the near

10   collision, you saw that the defendant was weaving, still
11   weaving, in her lane.   You saw that she -- her car even ran

12   over those reflector bumps in the middle of the road.    She

13   had that time when she turned on her turn signal briefly
14   but yet failed to change lanes.

15                   And then, as you were told, the officer was

16   concerned enough to divert himself from responding to a
17   back-up request.   You heard testimony from Officer Corley

18   yesterday saying that when another officer requests you to

19   arrive for backup, it means something important is going on
20   that he needs your assistance for.   Officer Corley ignored

21   someone who ran a red light but he didn't ignore this

22   defendant because he felt like her driving violations were
23   serious enough that they warranted his full attention.

24                   He even asked her if she was trying to

25   change lanes and her answer was, I don't know if I was
                                                                     24
                                 Closing Statement by Mr. Wilson
                                                December 3, 2013


1    trying to change lanes.   Someone who -- the average
2    non-intoxicated person who has the full use of his or her

3    mental faculties would be able to answer a "yes" or "no" to

4    that question, not, "I don't know."
5                    Let's move on to the next stage, the initial

6    contact that the officer made with the defendant.   Took her

7    a long time to find her driver's license.   He had to ask
8    her twice to produce her insurance card.    Smelled the

9    strong odor of alcohol coming from the car.   He saw -- he

10   heard slurred speech.   Saw watery eyes.   All signs of
11   intoxication.   And yet she still says that she had nothing

12   to drink.

13                   Officer saw all of these signs of possible
14   intoxication so he asked her to step out of the vehicle.

15   And he performed the horizontal gaze nystagmus test.      The

16   first of a three-part battery that go along with the
17   standardized field sobriety tests.

18                   Now, defense counsel just said that you

19   don't know whether or not the officer performed these tests
20   to the exact letter of the rule book.   Well, what I say to

21   you is that first off, on the video, there are some things

22   that you just can't tell.   You can't tell whether he held
23   the stimulus 15 inches above her eye level, you can't tell,

24   you know, those little nuances like that.   But what you can

25   rely on is that Officer Corley has been a certified peace
                                                                   25
                                Closing Statement by Mr. Wilson
                                               December 3, 2013


1    officer for eight years.   He has performed over 50 D W I
2    stops.   He is a field training officer for the Richardson

3    police department.   He is an experienced police officer and

4    he knows what he is doing.
5                     What is clear from the video is that the

6    defendant was not able to follow the very simple

7    instructions given to her.   First off, Officer Corley asks
8    her to keep her hands by her side.   You'll notice if you

9    look at the video again, she went from behind her back to

10   in front of her back and had to be asked a couple of
11   different times before she finally put her hands by her

12   side.    And then you all saw the absolutely egregious

13   inability to follow the simple instruction of moving her
14   eyes independently from her head.    She had to resort to

15   holding her head still with her own hands.   You know, you

16   heard over and over again the officer having to ask her,
17   follow the stimulus with your eyes, not your head, not your

18   head.    And eventually at some point in time, she said, I

19   can't do that.   Someone who has the normal use of her
20   mental faculties would be able to move her eyes

21   independently from her head.   That's a strong indication of

22   intoxication.
23                    Even in spite of all of those difficulties

24   following the instructions, the officer was still able to

25   observe the four clues that reach that decision point that
                                                                   26
                                 Closing Statement by Mr. Wilson
                                                December 3, 2013


1    he talked about yesterday.   And remember that these clues,
2    this standard of -- standard eye movement is completely

3    involuntary.   There are only a few things that cause that.

4    And she told the officer that she did not have any head
5    injuries and not been involved in any sort of accidents.

6    It was alcohol that caused that staggered eye movement.

7                    Next, we get to the other standardized field
8    sobriety tests which she refused to perform.    And I don't

9    have to remind you the kind of back and forth that

10   occurred.   Officer testified that these field sobriety
11   tests could have been performed in about five minutes.

12   Then she could have been on her way, using the restroom,

13   and they would have been over.   But instead, she refused to
14   perform, and yet somehow she still claimed she had nothing

15   to drink and she told the officer that, you know what, in

16   spite of how she had to use the bathroom so bad that she
17   could not perform those divided attention tasks that are

18   part of the other standardized field sobriety tests.    Yet

19   she says that she is safe to drive which we all heard is a
20   divided attention task.

21                   Next, we have that inescapable smell of

22   alcohol.    The officer asked her, why do I still smell the
23   strong odor of alcohol on your breath?    And her response

24   was, I don't know why.    He then asked her, did someone

25   spill a drink on you?    I don't know.   You think somebody
                                                                 27
                               Closing Statement by Mr. Wilson
                                              December 3, 2013


1    with the normal use of their mental faculties would be able
2    to give a "yes" or "no" answer to the question, did

3    somebody spill a drink on you?   She said, I don't know.

4                    Next, we get to the intoxilyzer room.
5    Officer Corley, sure, yes, it is not on video when he asked

6    her to stand in that black box, but he testified yesterday

7    that he did deliver that instruction to her.   And what you
8    saw, you saw her shoes were nearby the black box and she

9    was leaning against the counter.   Officer Corley could prop

10   -- could lean against the podium if he so chose.   He wasn't
11   under arrest.   He wasn't having to follow another officer's

12   instructions.

13                   And then the reason why we don't have any
14   evidence about alcohol concentration is because the

15   defendant chose to -- she refused to provide a specimen.

16   And even in spite of having that 180-day driver's license
17   suspension, you heard testimony yesterday, you saw a copy

18   blown up on the big screen of that statutory warning,

19   nowhere on its face does it say that there's the
20   possibility of getting an occupational driver's license.

21   So for all intents and purposes, that was not communicated

22   to her.   You can't assume that she knew that that was an
23   option, though she can request a hearing at a later date.

24   What you have to know is that she was facing 180-day

25   suspension.   That means that from December -- January,
                                                                    28
                                 Closing Statement by Mr. Wilson
                                                December 3, 2013


1    February, March, April, May, all of those months, license
2    suspended; not until June would she get it back.     And she

3    even said on the video that she had a trial that following

4    week that she was preparing for.   She faced the possibility
5    of not being able to legally drive to that trial.     All for

6    the -- all because she didn't want to provide a specimen of

7    her breath, even though she said it, she had nothing to
8    drink that night.

9                   I think the evidence is clear.      This

10   defendant is guilty of driving while intoxicated, and I ask
11   you to find her guilty on the jury charge.

12                  THE COURT:    Thank you, counsel.

13                  I've corrected the jury charge that I read
14   to you.   There was two words that we repeated on page one,

15   and at the bottom of page one, I corrected how the reading

16   of the date appeared.   Nothing else has been changed.
17                  Any objections to those changes by the

18   prosecution?

19                  MR. WILSON:   No, Your Honor.
20                  THE COURT:    Any objection by the defense?

21                  MR. BROOKS:   No, Your Honor.

22                  THE COURT:    Lady and gentlemen of the jury,
23   you now have had all the evidence presented to you, you

24   heard closing argument on both sides.   The case is

25   officially turned over to you.   You can just leave those
                                                                  29




1    copies of your jury instructions in your chair or on the
2    railing.   We'll pick them up.

3                    This is the copy, your official copy.   I've

4    signed it.   I'm turning it over to the bailiff to give you.
5                    When you're doing your deliberations if, for

6    some reason, one of you has to exit the room, leave the

7    room, for whatever reason, go to the bathroom, take a phone
8    call, you have to suspend your deliberations.   No

9    discussions on this case can take place unless all six of

10   you are in the room together.
11                   The case is officially turned over to you.

12   We await your decision.

13                   Thank you.
14                   THE BAILIFF:   All rise.

15                   (The jury exits.)
16                   THE COURT:   Note for the record that the
17   juror that was taking notes has left his notes in the

18   courtroom in the sealed envelope.

19                   Everyone may be seated.
20                   (Recess at 10:14 A M, resuming at 10:25 A M.
21                   Defendant present.)
22                   THE COURT:   Back on the record in cause
23   number 002-80051-2013.    State of Texas versus Mellannise

24   Henderson-Love.

25                   Note for the record that the jury is not in
                                                                     30




1    the courtroom but all parties are present.
2                    We've received a note from the jury.     It

3    reads as follows:    Dated 12-3-13 at 10:21 A M.   Texas V M

4    Henderson.   We, the jury, respectfully request a copy of
5    State's Exhibit A, comma, D V D for our review.       Signed,

6    David Christopher, foreman.

7                    The court intends to just have the bailiff
8    take back all of the admitted items.

9                    Any objection to that from the state?

10                   MR. WILSON:    No, Your Honor.
11                   THE COURT:    Any from the defense?

12                   MR. BROOKS:    No, sir.

13                   THE COURT:    All right.   So ordered.
14                   Now, we may run into a situation.     I don't

15   know whether or not that D V D is formatted to play on a D

16   V D player or if it requires the use of a computer.      So
17   I've asked the bailiff to see if it would play on the D V D

18   player.   If it does not, there is no mechanism in the jury

19   room for them to view it.     We would be -- either have to do
20   one of two things:   We would have to --

21                   THE BAILIFF:    (Shakes head.)

22                   THE COURT:    The bailiff just walked in.     It
23   will not play on the D V D player.

24                   We will have to take a clean computer,

25   meaning one that doesn't have any files on it, and let them
                          (Jury Not Present)
                                                                  31




1    play it on the laptop there in the jury deliberation room.
2                   The downside to doing that is that you have

3    six people huddled around a very small 14, 15-inch screen

4    while trying to watch the video.   The other option is to
5    bring them back into the courtroom, allow them to play it

6    on the giant in-court screen.   The problem with that,

7    though, is all parties have to be in here, the state would
8    have to be in here in order to play the video.    That would

9    mean the defense attorney, his client would also be allowed

10   to be in the courtroom, entitled to be in here.
11                  I would order the courtroom sealed.   We've

12   done this in the past.   And I will order all parties not to

13   make any outward gestures, to say anything, not make any
14   facial gestures because you must remember that,

15   technically, this jury is in the deliberation state.

16                  What recommendations would the state like to
17   offer in that respect?

18                  MR. WILSON:   State recommends that we play

19   the video for the jury here because they may not be able to
20   understand that there is -- how to view the video on full

21   screen.   There's also a microphone input from the officer's

22   in-car microphone that has a lot of noise but does not
23   capture anything that is being said between the defendant

24   and the officer when they're out on the roadway.   And so

25   all that microphone does is just make it difficult to hear
                         (Jury Not Present)
                                                                  32




1    what's being said between the officer and the defendant.
2    And so I turned that microphone input off during playback

3    yesterday.   So that way, it wouldn't interfere with the

4    discussion between the officer and the defendant.
5                    THE COURT:    What says the defense?

6                    MR. BROOKS:   Judge, I would like to suggest

7    that we bring the jury in here, have everything set up for
8    them to view and we can vacate the courtroom and let the

9    bailiff start it and then exit the courtroom.

10                   THE COURT:    Well, again, are you going to be
11   able to set it up before you hit play for the jury to see

12   or do you have to do anything in between that?

13                   MR. WILSON:   I think the bailiff could
14   expand it to full screen presentation and turn off that

15   problem microphone.

16                   The other thing is that during playback in
17   trial, I switched -- I guess once the defendant was placed

18   in the patrol car, I switched from camera one to camera

19   two, but I think the bailiff could handle that very easily.
20                   THE COURT:    I'm not going to involve this on

21   the bailiff to try to handle.    I'm going to allow both

22   parties to be in here.    There's too many things that could
23   be important to either side or both that the jury saw

24   before that they may wonder why they're not seeing or

25   hearing now because the bailiff is trying to run a program
                           (Jury Not Present)
                                                                   33




1    that the prosecution was running as far as switching
2    microphones, switching views, in-car camera views and

3    things of that nature, so I'm going to allow both sides to

4    be present.   But I'm going to order the courtroom sealed.
5                    Bailiff, lock the front door so that no one

6    comes into the courtroom.

7                    THE BAILIFF:   Yes, Your Honor.    Judge, I
8    have the video.

9                    THE COURT:    Give it to the prosecution.

10                   THE BAILIFF:   Yes, sir.
11                   THE COURT:    Play the video the same way you

12   did yesterday during trial for the jury.

13                   I'm ordering that all parties not say
14   anything, make any outward facial, you know, gestures or

15   anything else to this jury while they're in here.     Just

16   play the video.
17                   I'll ask the bailiff to ask the members of

18   the jury if they need to see the video again or maybe

19   portions of the video again.    And based on their response,
20   we'll either play it again or they'll go back into

21   deliberation.

22                   Any objection from the state?
23                   MR. WILSON:    None, Your Honor.

24                   THE COURT:    Any from the defense?

25                   MR. BROOKS:    No, Your Honor.
                         (Jury Not Present)
                                                                   34




1                   THE COURT:   Bailiff, is the door locked?
2                   THE BAILIFF:   Yes, Your Honor.

3                   THE COURT:   All right.    Queue up the video.

4                   Bring the jury in.
5                   THE BAILIFF:   Yes, sir.

6                   (Equipment is set up.)
7                   THE BAILIFF:   All rise.
8                   (The jury enters.)
9                   THE COURT:   Bailiff, prepare to dim the

10   lights, please.
11                  THE BAILIFF:   Yes, Your Honor.

12                  THE COURT:   Members of the jury -- everyone

13   may be seated -- you are officially in deliberation at this
14   time.   No one has the right to communicate with you.   Due

15   to technical limitations, we cannot give you this D V D and

16   let you play it back in deliberation rooms because it
17   requires a computer to play it.   It's not one that can be

18   played on a D V D player.   So I either have to give you a

19   clean computer with a 14 and-a-half inch screen, the six of
20   you huddle around to try to see it on the screen, or we can

21   bring you back into the courtroom and play it for you on

22   the larger screen.   I've chosen to do option B.
23                  All parties -- it requires that the

24   prosecutor be here because the technology of this video

25   allows whoever is playing it to switch microphones and to
                          (Jury Not Present)
                                                                    35




1    switch camera views.   Sometimes you can see someone using
2    the camera that shoots outside of the vehicle, sometimes

3    there's a camera that's inside the vehicle and it can be

4    shot.   Someone has to manipulate those options.
5                   The state introduced the video.     I'm going

6    to let them play it in same exact manner, same camera

7    views, same audio, same microphones as you saw yesterday.
8                   Once it's been played, I'll have the bailiff

9    go up to you and meet you in the hallway.   You can let the

10   bailiff know if there's a section you need to see again or
11   listen to again and we will bring you back in and let you

12   see it or hear it as many times as necessary.    But no one

13   can communicate with you at this point.
14                  I'm ordering the defendant, the defense

15   attorney, the prosecution, to say nothing during the

16   playing of this video and make no facial gestures.
17                  At this time, the state will play the video.

18                  (DVD published on the overhead screen.)
19                  THE JUROR:   Your Honor.   Your Honor.
20                  THE COURT:   Pause the video.   Take the jury

21   out in the hallway.    Somebody was calling my name.    See

22   what they want.
23                  THE BAILIFF:   All rise.

24                  (The jury exits.)
25                  THE COURT:   You may be seated.
                                                                     36




1                     (Recess at 10:58 A M, resuming at 10:59 A M.
2                     Defendant present.)
3                     THE COURT:   Bailiff has told me that that's

4    all the portion of the video that the jury wished to see.
5    The jury is outside the courtroom.     They will continue

6    their deliberations.   And we'll stand in recess.

7                     (Recess at 10:59 A M. resuming at 11:28 A M.
8                     Defendant present.)
9                     THE BAILIFF:   All rise.

10                    (The jury enters.)
11                    THE COURT:   Thank you.    Everyone may be

12   seated.   Let the record reflect the jury is back in the

13   courtroom.    All parties are present.
14                    Members of the jury, it's come to my

15   attention that you've reached a unanimous verdict.      If in

16   fact that's the case, would the presiding juror please hand
17   that verdict to the bailiff.

18                    Thank you, bailiff.

19                    THE BAILIFF:   Yes, sir.   (Hands documents to
20   the court.)

21                    THE COURT:   Mr. David Christopher, you're

22   the presiding juror?   Would you please stand and read the
23   verdict aloud.

24                    The defendant please rise.

25                    (The bailiff hands documents to the juror.)
                          (Jury Not Present)
                                                                    37




1                   THE JUROR:    Your Honor, the State of Texas
2    versus Mellannise Henderson.   We, the jury, find the

3    defendant guilty of driving while intoxicated as charged.

4                   THE COURT:    Thank you.   You may have a seat.
5                   Members of the jury, as we stated to you

6    earlier, in every criminal case, the defendant enjoys the

7    exclusive right to determine who will do their punishment
8    if they're found guilty.    In this case, Ms. Henderson-Love

9    has chosen to have the court administer the punishment.

10   I'll do that in the second part of this trial.
11                  This concludes your duty to the county.    I

12   make it a practice to come back and thank the jury after

13   every trial, also to answer any questions you may have
14   about the process, and to see if there's any constructive

15   critique you can give us on how we can make this a better

16   process for the next jury.    Thank you very much for your
17   service to the county.

18                  Bailiff, would you please take the jury

19   back.   I'll be back in less than 30 seconds.
20                  THE BAILIFF:    Yes, Your Honor.   All rise.

21                  (The jury exits.)
22                  THE COURT:    Thank you.   You may be seated.
23                  Does either side intend to offer any

24   evidence or testimony in the punishment phase?

25                  MR. WILSON:    Not from the state, Your Honor.
                                                                     38




1                    MR. BROOKS:   Not from the defense, Your
2    Honor.

3                    THE COURT:    None?

4                    MR. BROOKS:   No, sir.
5                    THE COURT:    I'll go thank the jury.   They

6    sometimes want to talk to the attorneys -- or maybe not

7    want to, maybe not the best way to describe it.      Willing
8    to.   So I'll ask them if they want to take the time to talk

9    to the attorneys and see if they have anything to offer,

10   any insight.   I'll be back momentarily.
11                   (Recess at 11:30 A M, resuming at 11:52 A M.
12                   Defendant present.)
13                         PUNISHMENT PHASE
14                   THE COURT:    All right.   Back on the record

15   in cause number 002-80051-2013.       State of Texas versus

16   Mellannise Henderson-Love.    The jury having returned a
17   verdict of guilty, now move to the punishment phase.

18                   Does the state want to offer any testimony

19   or evidence in regard to punishment?
20                   MR. WILSON:   No, Your Honor.

21                   THE COURT:    Does the defense wish to offer

22   any evidence or testimony with regard to punishment?
23                   MR. BROOKS:   Other than to reurge that

24   Ms. Henderson filed her application for community

25   supervision saying she has no prior felony convictions.
                         (Jury Not Present)
                                                                   39




1                    THE COURT:    All right.   Thank you.
2                    Both sides rest and close?

3                    MR. WILSON:   State closes.

4                    MR. BROOKS:   Defense closes.
5                    THE COURT:    Have you reached an agreement or

6    do you want to be heard with regard to punishment?

7                    MR. WILSON:   We have reached an agreement,
8    Your Honor.

9                    THE COURT:    Who wants to recite the

10   agreement?
11                   MR. WILSON:   I'll be happy to, Your Honor.

12                   THE COURT:    Proceed.

13                   MR. WILSON:   The agreed punishment is going
14   to be $900 fine, 90 days in jail, probated for 12 months, D

15   W I education, Victim Impact Panel, substance abuse

16   education plus conditions -- or, substance abuse evaluation
17   plus conditions, no alcohol, mandatory breath and blood, 24

18   hours community service, and one-time donation of $50 to

19   Crime Stoppers.
20                   THE COURT:    How much to Crime Stoppers?

21                   MR. WILSON:   Fifty dollars.

22                   THE COURT:    Ms. Henderson-Love, the jury
23   having found you guilty, the court now will assess your

24   punishment.   I see no evidence of any prior convictions in

25   any state or federal, therefore, I'm going to follow the
                         (Jury Not Present)
                                                                  40




1    agreement.
2                    I'm sentencing you to 90 days in the Collin

3    County jail, however, that will be suspended and you'll be

4    on probation, community supervision, for a period of 12
5    months.   I'm going to order you to pay a $900 fine plus

6    court costs.   Complete a D W I education course, a Victim

7    Impact Panel class, you'll have to take a substance abuse
8    evaluation and comply with recommendations that come out of

9    that evaluation.   If asked to provide a sample of your

10   breath or blood by your probation officer or any law
11   enforcement officer, you'll have to do that; otherwise, it

12   will constitute a violation of your probation.    You are

13   ordered to pay $50 to the Collin County Crime Stoppers, and
14   you are prohibited from consuming any alcohol, even in the

15   privacy of your own home, while you're on probation over

16   the next 12 months.
17                   Do you have any questions for the court?

18                   THE DEFENDANT:   I do not, Your Honor.

19                   THE COURT:   Okay.   Ms. Henderson-Love, as I
20   was telling the jury, this is one of those offenses that

21   doesn't require mens rea.    Good people often find

22   themselves guilty of this type of an offense because by the
23   mere nature of how D W I works, the more alcohol you

24   consume, the less able you are to evaluate your own

25   condition.
                           (Jury Not Present)
                                                                  41




1                    I would ask and hope that you look at that
2    video and not concentrate on the fact that you were found

3    guilty of this offense, but be thankful for the fact that

4    no one was hurt.
5                    I assure you that people like the Dallas

6    Cowboy football player who killed his best friend would

7    love to be in your shoes instead of his own.    You couldn't
8    see the officer's car.   You were obviously unaware it was

9    there.   You're obviously a very-well educated woman:

10   You're a high school graduate, a college graduate, a law
11   school graduate.   The officer had to tell you 21 times

12   according to my count, hold your head still, do you know

13   what that means, and you said, I don't understand.    So I
14   believe you may have had quite a bit to drink that night

15   and that's why he could smell the strong odor of alcohol on

16   your breath.
17                   But once again, this isn't the type of

18   offense that requires a person to be a bad person.    It's

19   not like you intended to do anything wrong.     I wish you the
20   best of luck.

21                   Anything else from either side?

22                   MR. WILSON:   Not from the state, Your Honor.
23                   MR. BROOKS:   No, Your Honor.

24                   THE DEFENDANT:   Thank you, Your Honor.

25                   THE COURT:    If you'll just have a seat,
                         (Jury Not Present)
                                                               42




1    we'll have the officer do the fingerprinting and do the
2    judgment and sentencing, and you'll be on your way.

3                  You live in Collin County; correct?

4                  THE DEFENDANT:   I do, judge.
5                  THE COURT:   All right.

6                  (Adjourned at 11:57 A M.   End of
7                  proceedings.)
8

9

10
11

12

13
14

15

16
17

18

19
20

21

22
23

24

25
                        (Jury Not Present)
                                                                 43




1    STATE OF TEXAS     )
2    COUNTY OF COLLIN   )

3

4        I, Marigay Black, Official Court Reporter in and for
5    the County Court at Law Number Two, County of Collin, State

6    of Texas, do hereby certify that the above and foregoing

7    contains a true and correct transcription of all portions
8    of evidence and other proceedings requested in writing by

9    counsel for the parties to be included in this volume of

10   the Reporter's Record in the above-styled and numbered
11   cause, all of which occurred in open court or in chambers

12   and were reported by me.

13       I further certify that this Reporter's Record of the
14   proceedings truly and correctly reflects the exhibits, if

15   any, offered by the respective parties.

16       Signed this 26th day of March, 2014.
17

18                              /S/   Marigay Black

19                              MARIGAY BLACK, Texas CSR 351
                                Official Court Reporter
20                              County Court at Law Number Two
                                Suite 10344
21                              2100 Bloomdale Road
                                McKinney, Texas 75071
22                              Tel: 972-548-3823
                                FAX: 972-548-3828
23                              Expiration: 12/31/2014
                                mblack@co.collin.tx.us
24

25
AFFIRM; and Opinion Filed December 2, 2014.




                                                       S
                                        Court of Appeals
                                                             In The


                                 Fifth District of Texas at Dallas
                                                   No. 05-14-00025-CR

                                   MELLANNISE HENDERSON, Appellant
                                                 V.
                                     THE STATE OF TEXAS, Appellee

                               On Appeal from the County Court at Law No. 2
                                           Collin County, Texas
                                   Trial Court Cause No. 002-80051-2013

                                       MEMORANDUM OPINION
                  Before Justices O’Neill, Fillmore, and Chief Justice Thomas, Retired 1
                                      Opinion by Justice O’Neill
          Appellant Mellanise Henderson appeals her conviction for driving while intoxicated

following a jury trial. She was sentenced to ninety days’ confinement in the Collin County Jail

and was assessed a $900 fine. The court suspended imposition of the sentence and placed

appellant on twelve months’ probation. In seven issues, appellant challenges the sufficiency of

the evidence to support her conviction, the administration of a field sobriety test, error during

jury deliberations, error in the charge, and failure to give Miranda warnings. We affirm the trial

court’s judgment. Because the issues are settled in law, we issue this memorandum opinion.

TEX. R. APP. P. 47.4.




     1
       The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by
assignment.
                                             BACKGROUND

        On November 30, 2012 and into the early morning hours of December 1, 2012, appellant

was driving home after working late.           Officer Clifton Corley of the Richardson Police

Department was on his way to assist an officer who had requested backup. Corley noticed a

black Lexus sedan “weaving within its lane a little bit,” but decided that his priority was to

provide backup to the officer who had requested help. But when he began to go around the

vehicle to pass, the vehicle “came over into the left lane without signaling,” and Corley “had to

brake hard and swerve a bit to the left to avoid a collision.” Corley decided to “reassess the

driver” for possible intoxication. The vehicle continued to swerve. Although the left turn signal

was on, the vehicle did not change lanes. The vehicle also drifted on and off the reflectors

dividing the lanes. Corley then saw that the officer who had requested assistance was stopped in

the right lane a short distance ahead. Corley initiated a traffic stop to avoid any danger to that

officer, to himself, and to other drivers.

        Appellant, who was driving the black Lexus sedan, pulled over and complied with

Corley’s requests to produce her license and insurance card. Corley “noticed she had kind of

watery glazed-over eyes,” as well as “slurred speech as I was speaking with her.” He noticed “a

strong odor of alcoholic beverage coming from the vehicle.” Appellant denied that she had

consumed any alcohol. She explained she had seen the emergency vehicle ahead that Corley

planned to assist, and was attempting to determine if she needed to change lanes to avoid it.

Corley continued to hear appellant’s slurred speech, and asked her to exit the vehicle. Appellant

complied. Corley was then able to smell alcohol on her breath.

        Corley attempted to administer the horizontal gaze nystagmus (HGN) field sobriety test.

Appellant was unable to follow the instructions for the test, following the stimulus by moving

her head instead of following it with her eyes. Corley reminded her several times not to move

                                                 –2–
her head. When these reminders were unsuccessful, he asked if she would like to hold her head

still with her hands to keep it from moving. She said she would, but still turned her head with

the stimulus. Despite appellant’s difficulty in following the instructions for the test, Corley was

able to observe a total of four clues from the HGN test, enough to reach a decision point from

which he could conclude that appellant was intoxicated. Corley also testified that the inability to

follow the instructions for the HGN test, in his experience, could also indicate intoxication.

       Corley testified that the flashing lights on his patrol car could affect the outcome of the

HGN test. He also explained that under ideal conditions, a person performing an HGN test

should not be facing traffic, because “if the traffic is heavy enough and cars are going by, the

eyes can tend to follow the lights as [they go] across.” He testified that he turned off the lights

on his patrol car, but conceded that he did not conduct the test with appellant facing away from

traffic. On cross-examination, Corley admitted that there was traffic going by. On redirect

examination, however, he explained that the passing traffic would not “cause the individual’s

head to turn” as appellant’s did during the test.

       Corley testified that there are other field sobriety tests, including the walk-and-turn test

and the one-leg stand test. He advised appellant that he had some other exercises he wanted her

to perform. Appellant “indicated she was not sure she could do anything else because she

needed to urinate.” Corley explained that the tests would not take very long to perform, and if

appellant would continue “we could reach a conclusion and we could get her to a restroom.”

Corley testified that this discussion took longer than the two tests would have taken. He

explained that when appellant did not perform the additional tests, he arrested her for driving

while intoxicated.

       Corley then took appellant to the Richardson city jail, to a room designated for the

processing of intoxicated drivers. He instructed appellant to stand on the black square painted on

                                                    –3–
the white floor. Instead of standing on the square, appellant placed her shoes on it and walked

over to lean against a counter and a wall. Corley gave appellant a copy of the written warning

regarding intoxilyzer testing, and then read the warning aloud to her. He requested a specimen

of appellant’s breath. She refused, and also refused to sign the warning.

       On cross-examination, Corley testified that appellant was respectful to him at all times

and not belligerent. Appellant did not stumble getting out of the car, and complied with his

instructions about where to stand for the field sobriety tests. Corley also conceded that if

appellant had lost control and urinated during the one-legged stand test, he would have included

it in his report as a sign of insobriety. He agreed that she “was kind of between a rock and a hard

place in terms of having to use the bathroom or taking a chance” of urinating during the tests.

       Corley was the only witness at trial. During his testimony, two video exhibits were

admitted into evidence without objection and played for the jury. The first of these videos was

taken from Corley’s patrol car starting at the time he observed appellant’s car swerving and

including the administration of the HGN test; the second was of appellant in the processing room

at the Richardson jail. During jury deliberations, the jury requested a copy of the first of these

videos. A note sent by the jury foreperson stated, “[w]e the jury respectfully request a copy of

State’s Exhibit A, DVD, for our review.” The trial court first determined that the exhibit could

not be played on the DVD player in the jury room. The trial court then explained that the jurors

could crowd around a small computer screen in the jury room, or could watch the video on the

large screen in the courtroom. Counsel for the defense and for the State both agreed the jury

should watch the video in the courtroom. Counsel for the State explained that when the video

was shown to the jury during trial, he had turned off one microphone input from the patrol car to

enable the conversation between Corley and appellant to be heard, and also “switched from

camera one to camera two” once appellant was placed in the patrol car. The trial court therefore

                                               –4–
allowed counsel for both parties to be present in the courtroom during the playback for the jury,

and instructed counsel for the State to “[p]lay the video the same way you did yesterday during

trial for the jury.” He also instructed, “I’m ordering that all parties not say anything, make any

outward facial, you know, gestures or anything else to this jury while they’re in here. Just play

the video.” He then asked for objections. Neither party raised any, and the video was played.

         The jury reached a unanimous verdict of guilty. This appeal followed.

                                            ANALYSIS

         A person commits the offense of driving while intoxicated if the person is intoxicated

while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04 (West Supp.

2014). “Intoxicated” means “not having the normal use of mental or physical faculties by reason

of the introduction of alcohol . . . into the body” or “having an alcohol concentration of 0.08 or

more.”     Id., § 49.01(2) (West 2011).     Only the first of these definitions, known as the

“impairment theory,” is relevant here. See Crouse v. State, 441 S.W.3d 508, 513 (Tex. App.—

Dallas 2014, no pet.) (explaining that impairment theory and “per se” theory, based on alcohol

concentration, are two alternative methods for State to prove intoxication).

         A. Sufficiency of the evidence

         In her fifth and sixth issues, appellant challenges the sufficiency of the evidence to

support the jury’s verdict. Although appellant’s issues challenge the factual sufficiency of the

evidence, we apply only one standard, for legal sufficiency, to evaluate whether the evidence is

sufficient to support a criminal conviction beyond a reasonable doubt. Temple v. State, 390

S.W.3d 341, 360 (Tex. Crim. App. 2013). “Accordingly, when reviewing the sufficiency of the

evidence, we consider all of the evidence in the light most favorable to the verdict to determine

whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally

justified in finding guilt beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443 U.S.

                                               –5–
307, 318–19 (1979)). Direct and circumstantial evidence are treated equally, and circumstantial

evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). Our review of all of the evidence includes evidence that was properly and

improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury

is the exclusive judge of witness credibility and the weight to be given the testimony. Wesbrook

v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). It is also the exclusive province of the jury

to reconcile conflicts in the evidence. Id.

       Appellant argues the evidence is insufficient because (1) her conviction was based on

Corley’s improper administration of the HGN test; (2) Corley did not conduct any other field

sobriety tests, even though appellant did not refuse to complete them but only expressed her

desire to go to the restroom first; (3) she promptly cooperated with Corley’s requests to pull

over, provide her license and insurance, and exit the car; (4) she explained to Corley that she was

trying to determine if she needed to change lanes to accommodate the emergency vehicle ahead,

and so had an explanation for the swerving Corley witnessed; (5) she was respectful to Corley

and followed his commands during Corley’s investigation, and was not visibly swaying; and

(6) there was no testimony outside of the flawed HGN test to establish that she did not have

normal use of mental or physical faculties by reason of the introduction of alcohol into her body.

         The State in turn argues that appellant’s “poor driving, physical symptoms, inability to

follow basic instructions, and refusal to take a breath test” were sufficient to support her

conviction for driving while intoxicated. In addition, the jury heard and saw video evidence of

appellant’s condition at the time of the offense. As a general rule, the testimony of a peace

officer that a person is intoxicated provides sufficient evidence to establish the element of

intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Watkins v. State,

741 S.W.2d 546, 549 (Tex. App.—Dallas 1987, pet. ref’d). Corley testified that appellant was

                                               –6–
weaving within her lane and nearly struck his car when swerving into his lane. He testified that

appellant had slurred speech and watery eyes and that he smelled alcohol on her breath. He

testified that she was unable to follow simple instructions, and that she refused further field

sobriety tests, discussing her need to go to the restroom for a longer period of time than the tests

would have taken. Viewing all of the evidence in the light most favorable to the jury’s verdict,

we conclude the evidence was sufficient to support appellant’s conviction for the offense of

driving while intoxicated. We overrule appellant’s fifth and sixth issues.

          B. Evidentiary rulings

          We review the trial court’s decisions to admit or exclude evidence for abuse of discretion.

Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007).

                     1. Probable cause

          In her first issue, appellant complains that there was no probable cause to arrest her. She

asserts that probable cause was lacking because Corley administered, incorrectly, only one field

sobriety test. Although lack of probable cause is typically made in connection with a motion to

suppress specific evidence, 2 appellant does not point to any evidence that should have been

excluded for lack of probable cause, or to any objection she made at trial on that basis. “[T]he

failure to object in a timely and specific manner during trial forfeits complaints about the

admissibility of evidence.” Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). And

even if she had preserved her complaint, Corley’s decision to arrest appellant was made on more

than the results of the HGN test, as we have discussed.

          Probable cause for a warrantless arrest exists if, at the moment the arrest is made, the

facts and circumstances within the arresting officer’s knowledge and of which he has reasonably


     2
        See, e.g., Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997) (appellant moved to suppress evidence of drug possession where
no probable cause for arrest).



                                                                  –7–
trustworthy information are sufficient to warrant a prudent person as believing that an offense

has been or is being committed. Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880

(Tex. App.—Fort Worth 2009, no pet.) (en banc op. on reh’g) (citing Beck v. Ohio, 379 U.S. 89,

91 (1964)).    Corley testified that appellant’s erratic driving raised concern for the officer

requesting assistance as well as others on the road. He testified to the smell of alcohol on

appellant’s breath, her glassy eyes and slurred speech, and her inability to follow instructions.

Similar signs of intoxication have been held to provide sufficient probable cause to arrest for

DWI. See Learning v. State, 227 S.W.3d 245, 249 (Tex. App.—San Antonio 2007, no pet.) (also

noting that article 14.01(b), Texas Code of Criminal Procedure, permits warrantless arrest by

police officer for offense committed in officer’s view). Had appellant objected, the trial court

would not have abused its discretion by admitting Corley’s testimony regarding probable cause

to arrest appellant. We overrule appellant’s first issue.

                2. Miranda warnings

        In her seventh issue, appellant contends “the case should have been dismissed for failure

to Mirandize [her] after she was in police custody.” It is undisputed that appellant was not given

Miranda warnings until after she had been arrested and had refused to give a specimen of her

breath. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). A traffic stop, however, does not

constitute “custody” for Miranda purposes. State v. Stevenson, 958 S.W.2d 824, 828 (Tex. Crim.

App. 1997) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)). Performance of field sobriety

tests alone does not give rise to custody. Id. at 829. An officer may detain a person in order to

gather information in the course of a roadside investigation before placing the person in custody

under Miranda. See Lewis v. State, 72 S.W.3d 704, 707–713 (Tex. App.—Fort Worth 2002, pet.

ref’d) (collecting cases).




                                                –8–
       After appellant’s arrest, Corley drove her to the Richardson jail and read her the warnings

regarding a breath sample. She refused to give a breath sample. This refusal was admissible

evidence.      TEX. TRANSP. CODE ANN. § 724.061 (West 2011).         Corley then gave appellant

Miranda warnings and asked if she would talk with him then. She refused, and he did not ask

any other questions. “Police requests that suspects perform sobriety tests and directions on how

suspects are to do the tests do not constitute ‘interrogation;’ neither do queries concerning a

suspect’s understanding of her rights.” Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App.

1990); see also Gassaway v. State, 957 S.W.2d 48, 50 (Tex. Crim. App. 1997) (sobriety tests of

counting and reciting alphabet not testimonial in nature; defendant’s Fifth Amendment rights not

implicated).

       Appellant concedes that she did not complain in the trial court about the lack of Miranda

warnings. She argues, however, that we may consider the complaint because it is a pure issue of

law and an injustice would be avoided. Although her initial brief did not specify any evidence

that should have been excluded, she argues in her reply brief that custodial interrogation began

when she was refused the right to leave to use the restroom. She specifically argues that

statements regarding “taking of the breathalyzer” were “impermissibly used.” But the court in

Jones noted that “[i]n Texas, we have held that asking a suspect in custody whether he will take

a blood alcohol test or repeatedly asking a suspect to give a breath sample are not

‘interrogations.’” Jones, 795 S.W.2d at 174 n.3. Corley’s reading of the statutory warning and

his request that appellant provide a breath sample did not constitute custodial interrogation. See

Morris v. State, 897 S.W.2d 528, 532 (Tex. App.—El Paso 1995, no pet.) (even though appellant

was in custody, officer’s reading of statutory warning and request for breath and blood samples

did not constitute custodial interrogation). We overrule appellant’s seventh issue.




                                               –9–
       C. Jury charge

       In her second issue, appellant complains the trial court erroneously submitted “two

issues” to the jury on the impairment theory of intoxication. She argues that the charge

“suggested to the jury there were two alternate means of committing the offense.” She also

contends that the trial court erroneously included the per se theory in the definition of

intoxication.

       In reviewing this complaint, we first determine if the charge given was erroneous. See

Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998). The trial court’s judgment will not

be reversed for error in the charge unless the error was calculated to injure the rights of the

defendant or unless it appears from the record that the defendant has not had a fair and impartial

trial. TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006). Where, as here, no objection is

made to the error in the charge, appellant must show “egregious harm” to warrant reversal. See

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g), superseded on

other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).

       The charge included the following paragraphs:

                The word “intoxicated” means not having the normal use of
                mental or physical faculties by reason of the introduction of
                alcohol . . . into the body, or having an alcohol concentration of
                0.08 or more.
                 ...
                Now, if you find and believe from the evidence beyond a
                reasonable doubt that on or about December 1, 2012, in Collin
                County, Texas, MELLANNISE HENDERSON did then and
                there operate a motor vehicle in a public place while the said
                MELLANNISE HENDERSON was intoxicated by:

                1.     not having the normal use of her mental faculties by reason
                       of the introduction of alcohol into the body; OR




                                              –10–
                      2.         not having the normal use of her physical faculties by
                                 reason of the introduction of alcohol into the body;

                      Then you will find the defendant guilty as charged.

           Appellant complains that the trial court allowed “two separate questions” on the

impairment theory of intoxication.3 She cites Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim.

App. 2010), for the proposition that there are only two alternative methods for proving

intoxication, the impairment theory and the per se theory. She correctly argues that these

methods of proof are not alternate means of committing the offense. See State v. Barbernell, 257

S.W.3d 248, 256 (Tex. Crim. App. 2008) (per se and impairment definitions of “intoxicated” are

purely evidentiary matters that do not “create two different manners and means of committing

DWI”). She concludes, however, that the trial court’s charge impermissibly created an alternate

method of committing the offense.

           A similar contention was rejected in Bradford v. State, 230 S.W.3d 719, 722–23 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). In Bradford, the appellant argued the jury’s verdict

was not unanimous because some jurors may have found loss of mental faculties, while others

may have found loss of physical faculties. See id. at 722. The court explained that the appellant

was charged with a single criminal act or offense, driving while intoxicated. Id. at 722. There

were no separate criminal acts on which the jury could disagree. Id. at 723. The court also

explained that the “physical versus mental ability, as a component of the impairment theory,”

was “not a separate element of the offense.” Id. In Zamora v. State, No. 14-08-01084-CR, 2010

WL 456941, at *2 (Tex. App.—Houston [14th Dist.] Feb. 11, 2010, no pet.) (not designated for

publication), the court cited Bradford and further explained, “[t]herefore, whether loss of both


     3
         Appellant’s initial argument appears to be based on the contention that the statutory definition of intoxication uses the word “and,” not
“or,” in describing the impairment theory; her brief quotes the definition as “not having the normal use of mental and physical faculties.”
(Emphasis added). The statute, however, uses the word “or,” not “and.” See TEX. PENAL CODE ANN. § 49.01(2)(A) (“Intoxicated” means:
(A) not having the normal use of mental or physical faculties . . . .” (Emphasis added)). In her reply brief, she correctly quotes the statute.



                                                                     –11–
faculties or just one has been proven does not affect whether the offense itself has been

committed.” The trial court’s disjunctive submission in the application paragraph of the charge

tracked the statutory definition of intoxication and was not erroneous. See Benn v. State, 110

S.W.3d 645, 649 (Tex. App.—Corpus Christi 2003, no pet.) (where jury charge tracked statutory

definition of intoxication, it was accurate statement of law and was not erroneous).

       Appellant also complains that the per se definition of intoxication was included in the

jury charge. At trial, the State requested that the per se definition be omitted from the charge

because appellant had refused the breath test. Appellant objected, arguing that the definition as

given followed the statutory language. In accordance with appellant’s objection, the trial court

did not change the definition. A defendant may not complain of a charge that she requested.

Trejo v. State, 280 S.W.3d 258, 259 (Tex. Crim. App. 2009). In addition, the per se definition

was a correct statement of the law, tracking the statutory definition. See TEX. PENAL CODE ANN.

§ 49.01(2)(B). Because the per se definition was included in the abstract portion of the charge,

not the application paragraph, and because it correctly stated the law, there is no reversible error.

See Crenshaw v. State, 378 S.W.3d 460, 466–67 (Tex. Crim. App. 2012).                  We overrule

appellant’s second issue.

       D. Replay of video

       In her third and fourth issues, appellant contends the trial court erred by allowing the

State “to replay and control the enhancement aspects of the video” for the jury, and complains

that the State’s control of the video “was tantamount to added evidence.” Appellant contends

that a new trial is required under Rule 21.3(f), Texas Rules of Appellate Procedure. This rule

provides in part that a defendant must be granted a new trial “when, after retiring to deliberate,

the jury has received other evidence.” See In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998) (rule

requires new trial if other evidence received by jury after retiring to deliberate, and evidence is

                                               –12–
detrimental to accused). In In re M.A.F., a new trial was required where during the jury’s

deliberations in a murder trial, jurors reviewing evidence found a marijuana cigarette in the

pocket of the juvenile defendant’s jacket. Id. at 449. The supreme court reversed the conviction

because the jury received new, adverse evidence after retiring to deliberate. Id. at 451. Under

Rule 23.1(f), the effect of the evidence on the jury is not a consideration; the controlling factor is

the character of the evidence in light of the issues before the jury. See Carroll v. State, 990

S.W.2d 761, 762 (Tex. App.—Austin 1999, no pet.).

           Assuming error was preserved, 4 the replaying of a video already admitted into evidence

without objection and seen by the jury did not constitute receipt of other evidence for purposes of

Rule 21.3(f). In Thomison v. State, No. 11-10-00368-CR, 2012 WL 5989193, at *3 (Tex.

App.—Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication), the jury

“inadvertently received the State’s copy of the jury charge, which included the prosecutor’s notes

in the margin.” The appellant requested a mistrial and asserted the ground in a motion for new

trial; both requests were denied by the trial court. Id. On appeal, the court explained that in most

cases under Rule 21.3(f), “the evidence that has been considered detrimental contained new

information that damaged the defendant because it has not been admitted during the trial.” Id.

In contrast, the State’s copy of the charge was an exact copy of the court’s charge that had been

submitted to the jury for deliberations. The State’s counsel’s notes “did not add additional facts;

they were merely shorthand for what had been alleged.” Id. at *4. The jurors “likely did not

know who had made the notes,” and the notes were “not biased or inflammatory.”                                                                Id.



     4
         Appellant did not offer any objection at trial when given the opportunity to do so by the trial court. She argues, however, that in
“exceptional circumstances” we may consider her complaint on appeal, citing opinions from several federal appellate courts in civil cases. See,
e.g., Batiansila v. Advanced Cardiovascular Sys., Inc., 952 F.2d 893, 896 (5th Cir. 1992) (although appellate court usually refuses to consider
issues not raised before trial court, appellate court will make exception when new issue raises pure question of law, and failure to consider would
result in miscarriage of justice). We note that Rule 21 includes its own provisions about presenting motions for new trial in criminal cases. See
TEX. R. APP. P. 21.2 (when motion for new trial required); 21.6 (time to present motion). There is no indication that appellant sought a new trial
or a mistrial on this basis in the trial court.



                                                                     –13–
Therefore, the trial court did not abuse its discretion in denying appellant’s motion for new trial.

Id.

       As in Thomison, there was no new information given the jury here. The video was

admitted into evidence without objection; was played in its entirety for the jury; and it was

played again at the jury’s request, again without objection. The trial court was required to

“furnish[ ] to the jury upon its request any exhibits admitted as evidence in the case,” and was

thus required to provide the video when the jury requested it. TEX. CODE CRIM. PROC. ANN. art.

36.25 (West 2006); see also Parker v. State, 745 S.W.2d 934, 936–37 (Tex. App.—Houston [1st

Dist.] 1988, pet. ref’d) (article 36.25 is mandatory; trial court’s refusal to comply with jury’s

request to view videotape that had been introduced into evidence was fundamental error).

Appellant and her counsel were present when the video was replayed. Appellant does not

contend there was anything new, added, or different in the replaying, and did not seek to offer

evidence of any difference to be considered by the trial court. She did not object, move for a

mistrial, or seek a new trial. We overrule appellant’s third and fourth issues.

                                           CONCLUSION

       Having overruled appellant’s seven issues, we affirm the trial court’s judgment.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O’NEILL
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47

140025F.U05



                                               –14–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

MELLANNISE HENDERSON, Appellant                    On Appeal from the County Court at Law
                                                   No. 2, Collin County, Texas
No. 05-14-00025-CR        V.                       Trial Court Cause No. 002-80051-2013.
                                                   Opinion delivered by Justice O’Neill,
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Chief Justice Thomas,
                                                   Retired, participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 2nd day of December, 2014.




                                            –15–
