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                                                                 53


1                    Written statements made by a witness to

2    investigators or other officers or police reports made

 3   by officers and tendered by the prosecution to the

 4   defense for purposes of cross-examination are not part

@)   of the evidence unless introduced in evidence.              Many

 6   times statements and reports may be marked with an

 7   exhibit number but are neither offered nor received in

 8   evidence.   I can send only statements and reports

 9   received in evidence to the      jury room.

10                   You are i_ns"t:_ructed that the   -~ta.:t.e_m~n_t~   __Q_t

11   counsel made during the course of the tria± or during
                                          .,
12   the argument,   if not supported by evidence,         or

13   statements of law made by counsel,        if not in    ha~mony


14   with the law as stated to you by the Court in these

15   instructions,   are to be wholly disregarded.

16                   You must disregard any comment or

17   statement made by the Court during the trial or in these

18   instructions which may seem to indicate an opinion with

19   respect to any facts,     item of evidence or verdict to be

20   reached in this case.      No such indication is intended.

21                   You are instructed that the grand jury

22   indictment is not evidence of guilt.          It is the meaq.s

23   whereby a defendant is brought to trial -in a felony

24   prosecution.     It is not evidence,      nor can it be

25   cons ide red_ by y_ou in passing upon whether this defendant

                            DEBRA JIMENEZ, CSR
                      290TH JUDICIAL DISTRICT COURT
                                210.335.1236
..
                                                                     38


      1   Against Mayra Rubio,      used or attempted use of force you

      2   will find the defendant not guilty of felony assault.

     3    I'm making those corrections.          Other than those

      4   corrections,     does the State have any object to the

      5   charge?

      6             MR.    DEMARTINO:    No objections,      Your Honor.

      7             THE COURT:      All right.     Now,   the defense?

      8             MR.    EASTLAND:    Yes,   Your Honor.     And before we

     GY   make those formal objections I'd like to make a motion

     10   for directed verdict.

     11             THE COURT:      All right.     And based on?

     12             MR.    EASTLAND:    Based on that hardly a scintilla

     13   of evidence has been presented to convict Mr. Flores of

     14   these three charges.

     15             THE COURT:      Of each of the charges?

     16             MR.    EASTLAND:    Of each of them.

     17             THE COURT:      And that will be denied.

     18                    Now,   did you have a request for the

     19   charge,   and I will note for the ·record that the Court on

     20   its own has included,        based on the defendant's

     21   testimony,   unlawful restraint and necessity as a

          justification.      Other than those additions to the

     23   charge,   do you have any other request?

     24              MR.   EASTLAND:     We have n6 obje6tion to the

     ~    unlawful restraint.       We are formally objecting to the

                                   DEBRA JIMENEZ, CSR
                             290TH JUDICIAL DISTRICT COURT
                                       210.335.1236
                                                                         39


 1    necessity instruction.           We believe,    Your Honor,        that the
                         \
 2    evidence shows on its own from -- from the beginning of

 3    the transaction.         The house,      all the way into the

 4    actions in the car,        the very end where she got out.               We

 5    believe that a     juror -- a rational          juror could decide on

 6    their own that,        okay,   maybe there was an abduction,            but

 7    maybe there was restraint somewhere in there.

 8              MR.    KAPPMEYER:       You're talking about the

CV    necessity in the defense of the assault?

10              THE COURT:           I'm talking about the fact that I

11    gave you as a     justification to any unlawful restraint

12    that the jury might find a              justification of necessity.

13    Meaning that I am ln the charge instructing this                    jury

14    that if they found a necessity on the part of the

QJ)   defendant when he was engaging in unlawful restraint,                       if

16    he did,   then they should find him not guilty of even the

17    lesser.    So if you want that taken out,              Couns.el,    I' 11

18    take it out.      Go off the record.

19                      (Off-the-record discussion)

20               THE COURT:          Back on the record.       Some of you

21    are wanting the defense the              justification of necessity

~     taken out of the charge as it applies to unlawful

23    restraint• the lesser included that the Court is giving

24    you?

25               MR.   EASTLAND:        No,    Your Honor.    I'd·like it to

                               DEBRA JIMENEZ, CSR
                         290TH JUDICIAL DISTRICT COURT
                                   210.335.1236
                                                                     40


Q    stay in,   in that part of the unlawful restraint ·charge

 2   to stay in.      But I'd also like an additional unlawful

3    restraint section put in,            just for the record,     Your

 4   Honor.

 5              THE COURT:        But it is in a different portion.

 6   It's a lesser included offense of unlawful restraint.

 7   He's not charged with it.             And that's a misdemeanor

 8   offense.     It's a lesser included offense of the

 9   aggravated kidnapping.          Therefore,    it is included in the

10   charge as a lesser and that's where it's going to stay.

11   So that request is denied.

12                     Additional requests?

13              MR.   EASTLAND:       N6thing further,      Your Honor.

14              THE COURT:        All right.     And off the record.

                       (Off-the-record discussion)

16              THE COURT:        All right.     Back on the record.

17   Are there any other further requests for any other

18   special charges?

                MR.    EASTLAND:      We'd also like a      ~esser   included

20   put in the    jury instruction of         just. kidnapping.      Not

21   aggravated,      but    kidnappin~.


                THE COURT:        And I    do believe that the defendant

23   testified very clearly in answer to questions that he

24   never kidnapped the victim.             I am not going to include

25   the lesser included otfense.             We are going to get the

                                  DEBRA JIMENEZ, CSR
                            290TH JUDICIAL DISTRICT COURT
                                      210.335.1236
'   .



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                                    Mr. George Albritton Eastland
                                                                                                     Current Member Status
                                    Bar Card Number:                    24050547                     Eligible To Practice In Te
                                    Work Address:                       921 S Saint Marys St Ste 2
                                                                                                        { CONTACfTHIS LAWYEi
                                                                        San Antonio, TX 78205-3452
                                                                                                        {VISIT LAWYER WEBSITJ
                                    vVork Phone Number:                 210-227-9800
                                    Primary Practice Location:       San Antonio        ~Texas




         In cooperation Vl~th




         LICENSE INFORMATION                                                                         WEBSITE
         Bar Card Number:                24050547                                                    www.britteastland.com
        Texas License Date:
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                                                                                                     Federal

        PRACTICE-INFORMATION                                                                         Texas Western District Court
        Firm:                            Law Office of Britt Eastland                                Other Courts
        Firm Size:                       Solo                                                        None Reported By Attorney
        Occupation:                      Private Law Practice
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        LAW SCHOOLS
                                                                                                                                (
        Law School                      Graduation Date             Degree Earned
                                                                    Doctor of                                            ';(
                                                                                                                                u
        St. Mary's University           05/2005                    Jurisl2.ru_d:er1~ei_Juris
                                                                    Doctor (J.D.)
                                                                                                                     J \ \k\\
                                                                                                                «;0!'·l'
                                                                                                                Y"(
                                                                                                                 1
                                                                                                          CRIMIN.ALDOCKET·SHEET
                   ~-   - F.-'21fl2:¥ER"~1869 ."'o2s1f "'.0370f/2012 . . · .. ~TTORNEYS~.                                                . .. COURT REPORTER          .                  COURT ACTIVITY
                             STATE OF TEXAs us..                               sec: ·701
                                                                                                                STATE ATTORNEY
                                                                                                                                                                          I   _JUDGEPRESIDJNG _ __
                                                                                                                                                                              _ NO RECOMMENDATION/ NO PLEA BARGAIN
                            FLORES . ..REYNALDO                                                                                                                               _ PL.E;\ BARGAIN AGREEMENT
                                                                                                                                                                              _. ~- YRS MDS DYS (TDCJ -IDXBDADCXSTATE JAIL)
                                                                                                                                                                              _ $ _ _ Fine$ _ _ Restitution
                            AGGRAVATED KIDNAPPING                                                               DEFENSE ATTORNEY
                                                                                                                                                                              _._. Comrn Supervision (RecoinmendedXSilentX()pposed)
                                                  OFFENSE INFORMATION                                           COURT REPORTER
                                                                                                                                                                              _     Def Adjudication (RecommendedXSilentXOpposed)
                                          lt!.DUCiliTO.LJ:SSYJ\Ofli'I.NSE, _ _ _ __
                                                                                                                                                                              _Cases to Run Concurrent/Consecutively-------
                                                                                                                COURT INTERPRETER
                                          STATE l'ROCEJ:DS ON COUNT (1) - - . . , . - - -
                                          l'ARAGRAI'H        .   '                                                                                                            Cases Taken into Consideration:---------
                                          ENBANCEMENT="'"PARA='""'G"'RAP-:-::H:;-('"'•J:-----
          ......                            . '·. .              !'        .
.,.   ~




                                                                                                                                                                              _._Non BincliDg Recootmeudatioas

                                                                                                                                                                              _ _ DYS MOS(BCADCXSTATE JAD..XCond ofSuprvsn)
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                                                                                                                                                                              - - - YRS MDS DYS (TDCJ-ID)(BCADCXST JAn..)
                                                                                                                                                                                           $    ··· · ··· Fine.$    · Restitution
                                                                                                                                                                              -~------------------~----------
                                                                                                                                                                               COURT RULING

                                                                                                                                                                               - - - YRS MOS DYS (Toc.r- (BCADCXST! JAIL)
                                                                                                                                                                               __ s ___ Fine$                               Restitution·
                                                                                                                                                                                   Payable to; ,..,..------,,......,..-,..-
                                                                                                                                                                               - - Affinnative Finding of a Deadly Weapon
                                                                                                                                                                               _ S.A.I.P. (BoOt Camp) __ Shock Supervision
                                                                                                                                                                               _Drivers License Suspet1Sion Start Date: _ __
                                                                                                                                                                                    EndDale:           .          .       .
                                                                                                                                                                                  _SAfPF (Comm SupervisionXAmended Comrn Supv;)
                                                                                                                                                                                  _ ThetapeUtic Community Program
                                                                                                                                                                               _ _ _ HRSComtt~unity Service __ DYS ELM :
                                                                                                                                                                               _ _ DYS MOS (BCAocXSTATE JAJLXConq ofSupv)
                                                                                                                                                                               · - (Work)(Weekend) Release Program (Cond ofS~)
                                                                                                                                                                               _.Found TRUE,to Enhancement Paragraph as a Re}ieater
                                                                                                                                                                               _Found    _ _ _Enhancement
                                                                                                                                                                                _Other: TRUE.to  _ _ _ _ParUgraphs
                                                                                                                                                                                                               ____         Habitual
                                                                                                                                                                                                                        as a_ __



                                                                                                                                                                                                  • DONNAKAYMsiQNNEY      ,
                                                                                                                                                                                               BEXAR COUNTY DISTRICI' CLERK



                                                                                                                                                                                  By:,                             -r(fJ       DEPUTY      c:n
                                                                                                                                                                                                                                           ""
                                                                                                                                                                                                                                           ~
