                                                                                  PD-0241-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                                Transmitted 3/4/2015 4:20:51 PM
                                   PD-0241-15                     Accepted 3/4/2015 6:29:05 PM
MARCH 5, 2015               Cause No. ___________                                  ABEL ACOSTA
                                                                                           CLERK



                            In the Court of Criminal
                                Appeals of Texas


                               Antonio Leija, Jr.,
                                   Appellant

                                           v.

                                State of Texas,
                                   Appellee

                 On Review from Cause No. 02-13-00473-CR
                      in the Second Court of Appeals
                             Fort Worth, Texas


                 State’s Petition for Discretionary Review


         Maureen Shelton                              John W. Brasher
      Criminal District Attorney                     Special Prosecutor
       Wichita County, Texas                     900 8th Street, Suite 415
      State Bar No. 24076904                      State Bar No. 02907800
  Maureen.Shelton@co.wichita.tx.us              brasherappeals@gmail.com
                                                       900 8th Street
             John Gillespie                      Wichita Falls, Texas 76301
  First Asst. Criminal District Attorney           (940) 244-0244 phone
         Wichita County, Texas                       (940) 244-0245 fax
        State Bar No. 24083252
    John.Gillespie@co.wichita.tx.us

         900 Seventh Street
      Wichita Falls, Texas 76301
       (940) 766-8113 phone
         (940) 716-8530 fax                     Oral Argument Requested
                      Identity of Parties and Counsel

Hon. Judge Barney Fudge
Judge, 78th District Court of Wichita County
Cause No. 52,563-B

Antonio Leija, Jr., Appellant
TDCJ #01874593
West Texas Intermediate Sanction Facility
2002 Lamesa Hwy
Brownfield, Texas 79316

Michael Payne
Counsel for Antonio Leija on appeal
1211 Bluff Street
Wichita Falls, TX 76301

Maureen Shelton
Criminal District Attorney
Wichita County
Attorney for the State
900 Seventh Street
Wichita Falls, Texas 76301

John Gillespie
First Assistant Criminal District Attorney
Wichita County
Attorney for the State
900 Seventh Street
Wichita Falls, Texas 76301

John Brasher
Special Prosecutor
Attorney for the State before the C.C.A.
900 8th Street
Wichita Falls, Texas 76301




                                       ii
                                         Table of Contents

Identify of Parties and Counsel ................................................................... ii

Table of Contents .......................................................................................iii

Index of Authorities ..................................................................................... v

Statement of the Case .............................................................................. viii

Statement Regarding Oral Argument ........................................................ viii

Procedural History ..................................................................................... ix

Questions Presented for Review ................................................................xii

Argument .................................................................................................... 1

        1.       Recusal is required because half of Justice Dauphinot’s
                 colleagues—including Chief Justice Livingston—believe she
                 has expressed such a significant antagonism toward the
                 WCDA that she no longer appears to be fair and impartial ....... 1

        2.       Recusal is required because Justice Dauphinot applies a
                 different set of rules when the WCDA is a party than she
                 applies in other cases. .............................................................. 3

        3.       Recusal is required because, regardless of her motivations,
                 by speaking out and plainly stating that she has formed a
                 negative opinion about the WCDA that influences her on
                 every case, Justice Dauphinot departed the realm of
                 impartial judging and improperly entered the realm of
                 advocacy. ................................................................................. 8

        4.       Recusal is required because Justice Dauphinot’s bias was
                 clearly revealed by her astounding claim that she can
                 discern a discovery abuse from a case where the issue was
                 neither preserved nor reached by the court of appeals. .......... 11



                                                      iii
        5.       Recusal is required because Justice Dauphinot’s lack of
                 fairness is evidenced by her sweeping advisory
                 pronouncement of a pattern of constitutional abuse when
                 this alleged pattern A) was not an active controversy before
                 her; B) was not necessary to the determination of the
                 appeal; and C) when the WCDA had no opportunity to
                 provide testimony, evidence, or briefing on such a
                 consequential accusation. ...................................................... 14

        6.       Recusal is required because the timing of Justice
                 Dauphinot’s abject lack of judicial fairness in Roberson
                 suggests it may have been retaliatory and motivated by the
                 State prevailing on its motion for en banc reconsideration in
                 the Joe Johnson case after the State referred to her
                 memorandum opinion’s drastic departure from the trial
                 record as “troubling.”............................................................... 18

Prayer ....................................................................................................... 20

Certificate of Compliance .......................................................................... 22

Certificate of Service ................................................................................. 22




                                                       iv
                                        Index of Authorities

Cases                                                                                                   Page

BNSF Railway Co. v. Phillips, 434 S.W.3d 675 (Tex. App.—Fort
    Worth 2014, pet. filed) ....................................................................... 5

Brazzell v. State, 481 S.W.2d 130 (Tex. Crim. App. 1972) .......................... 4

Caldwell v. Texas, 137 U.S. 692 (1891) .................................................. 3, 8

Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014) ........................... 6

Garrett v. State, 749 S.W.2d 784 (Tex. Crim. App. 1988) ......................... 14

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................... 6

In re Murchison, 349 U.S. 133 (1955) ................................................... 2, 18

In the Interest of M.C.B., 400 S.W.3d 630 (Tex. App.—Dallas 2013,
      no pet.) ............................................................................................ 16

Johnson v. State, 2013 WL 531079 (Tex. App.—Fort Worth Feb. 14,
     2013) (mem. opinion) ....................................................................... 19

Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345 (Tex.
     App.—Fort Worth Oct. 9, 2014) (en banc) ................................... 1, 19

Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no
     pet.) ................................................................................................... 7

Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—
     Fort Worth June 4, 2009, no pet.) .............................................. 12, 13

Likety v. U.S., 510 U.S. 540 (1994) ........................................................... 11

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ...................... 14, 16

Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]
     1988—pet. ref’d) .............................................................................. 11
                                                       v
Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet.
     ref’d) ................................................................................................ 17

Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex.
     App.—Fort Worth Jan. 8, 2015, no pet. h.) ............................... passim

Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) ......................................... 1

State v. Stevenson, 993 S.W.2d 857 (Tex. App.—Fort Worth 1999,
      no pet.) .............................................................................................. 8

State v. Taylor, 264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no
      pet.) ................................................................................................. 13

State v. Woodard, 314 S.W.3d 86 (Tex. App.—Fort Worth 2010, pet.
      filed), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011) .......................... 6

U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) .................................... 2

Statutes

Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014) .................. 17

Rules

Tex. Code Jud. Conduct, Preamble ............................................................ 3

Tex. Code Jud. Conduct, Canon 3(B)(4) ................................................... 10

Tex. Code Jud. Conduct, Canon 3(B)(5) ..................................................... 3

Tex. R. App. P. 9.4(i)(1) ............................................................................ 22

Tex. R. App. P. 16.3(c) ..............................................................................vii

Tex. R. App. P. 33.1.................................................................................. 11

Tex. R. App. P. 44.4.................................................................................. 16


                                                      vi
Tex. R. App. P. 47.1.............................................................................. 8, 16

Tex. R. App. P. 68 .....................................................................................vii

Tex. R. App. P. 68.2(a) .............................................................................. xi




                                                    vii
                          Statement of the Case

     The State is asking for this Court to review the Second Court of

Appeals’ 4-3 decision on its motion to recuse Justice Dauphinot.         As

Justice Dauphinot has irrevocably compromised any appearance of

impartiality toward the Wichita County District Attorney (“WCDA”), the State

asks this Court to grant review pursuant to Rule 68 and Rule 16.3(c) of the

Texas Rules of Appellate Procedure, and to order recusal of Justice

Dauphinot.

                  Statement Regarding Oral Argument

     The State respectfully requests Oral Argument. The WDCA and her

staff appreciate the gravity of this situation. The WCDA has always had

great respect and an excellent working relationship with the Second Court

of Appeals and its honorable justices.

     Thus, it was astonishing that Justice Dauphinot accused the WCDA

and her attorneys of a pattern of constitutional discovery abuses in a

dissent in a published opinion.1 As this alleged pattern of abuse was not

an issue before the trial court, the WCDA had no opportunity to provide

evidence to rebut the allegations and no forum for appeal since the WCDA


1
 See Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex. App.—Fort
Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J. dissenting)
                                     viii
had prevailed on the merits.2

      Not only does the WCDA deny, in the strongest terms possible,

Justice Dauphinot’s inappropriate, incendiary, and unsupported allegations

that her office engages in a pattern of discovery abuses with constitutional

dimensions, but the WCDA also requests the courtesy of being able to

openly address any question by any judge on this Honorable Court as to

why the WCDA had no choice but to seek Justice Dauphinot’s recusal.

       The WCDA does not seek a recusal lightly. Yet, the ramifications of

this dissent are too serious to ignore: questions about the integrity of the

criminal justice system, potential disciplinary and licensure issues, potential

civil claims, and wrongfully sullied reputations. Because of these significant

ramifications, the WCDA requests Oral Argument.

                               Procedural History

      Appellant appealed to the Second Court of Appeals and Justice

Dauphinot was assigned to the panel.3 While the appeal was pending, the

Second Court released Ex Parte Roberson on January 8, 2015.4                      In

Roberson, Justice Dauphinot issued a vitriolic dissent that made many


2
        Id.
3
        See Letter from Debra Spisak to Parties regarding submission (April 1, 2014),
available                                                                          at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b-
4a30-a6c8-72575b047add (last visited March 4, 2015).
4
        Roberson, 2015 WL 148476, at *5-6 (Dauphinot, J. dissenting).
                                         ix
unfounded allegations against the WCDA and even alleged a pattern of

discovery abuses of constitutional proportions.5

      As her dissent has dispelled any notion that she could be fair to the

WCDA, on January 21, 2015, the WCDA filed a motion to recuse Justice

Dauphinot.6

      On January 26, 2015, the Second Court announced that Justice

Dauphinot’s six remaining colleagues could not reach a decision on

recusal.7 Half of Justice Dauphinot’s colleagues believed that the WCDA

met the standard for recusal.8 Chief Justice Hecht appointed a justice to

break the tie.9

      On February 26, 2015, the Second Court denied the motion to recuse

on a highly-divided 4-3 vote.10 On February 27, 2015, the WCDA asked

the Second Court to stay the issuance of opinions in this case and notified

the Second Court of its intent to appeal under T.R.A.P. 16.3(c).

5
        Id. at *5.
6
        See Docket Sheet for Leija v.State, No. 02-13-00473-CR in the Second Court of
Appeals of Texas, available at http://www.search.txcourts.gov/Case.aspx?cn=02-13-
00473-CR (last visited Mar. 4, 2015);
7
        See Letter from Chief Justice Livingston to Chief Justice Hecht (January 26,
2015),                                    available                                    at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5eee4ad1-a306-
41c8-a450-23d5860bdecb (last visited Mar. 4, 2015).
8
        Id.
9
        See Letter from Debra Spisak to Parties regarding appointment of visiting justice
(Feb.                 3,               2015),               available                  at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3dfdc6bb-4bd2-
413e-8e0c-8f364fb5d33f (last visited Mar. 4, 2015).
10
        State’s Attachment A, Order denying Motion to Recuse.
                                           x
     The State timely files this Petition for Discretionary Review under

Tex. R. App. P. 16.3(c) which states that “the denial of a recusal motion is

reviewable.” Section 5(b) of the Texas Constitution states that for all

matters other than death penalty appeals; thus, review by the Court of

Criminal Appeals is discretionary, the State respectfully requests review of

the recusal decision under Tex. R. App. P. 68.2(a) as Justice Dauphinot

has irrevocably compromised any appearance of fairness toward the

WCDA.




                                     xi
                    Questions Presented for Review

       (1) Is recusal required when half of Justice Dauphinot’s colleagues—
including Chief Justice Livingston—believe she has expressed such a
significant antagonism toward the WCDA that she no longer appears to be
fair and impartial?

      (2) Is recusal required because Justice Dauphinot applies a different
set of rules when the WCDA is a party than she applies in other cases?

     (3) Is recusal required when, regardless of her motivations, by
speaking out and plainly stating that she has formed a negative opinion
about the WCDA that influences her on every case, Justice Dauphinot
departed the realm of impartial judging and improperly entered the realm of
advocacy?

      (4) Is recusal required because Justice Dauphinot’s bias was clearly
revealed by her astounding claim that she can discern a discovery abuse
from a case where the issue was neither preserved nor reached by the
court of appeals?

      (5) Is recusal required because Justice Dauphinot’s lack of fairness to
the WCDA is evidenced by her sweeping advisory pronouncement of a
pattern of constitutional abuse when this alleged pattern A) was not an
active controversy before her; B) was not necessary to the determination of
the appeal; and C) the WCDA had no opportunity to provide testimony,
evidence, or briefing on such a consequential accusation?

       (6) Is recusal required because the timing of Justice Dauphinot’s
abject lack of judicial fairness in Roberson suggests it may have been
retaliatory and motivated by the State prevailing on its motion for en banc
reconsideration in the Joe Johnson case after the State referred to her
memorandum opinion’s drastic departure from the trial record as
“troubling”?




                                     xii
                                 Argument

1.   Recusal is required because half of Justice Dauphinot’s
     colleagues—including Chief Justice Livingston—believe she has
     expressed such a significant antagonism toward the WCDA that
     she no longer appears to be fair and impartial.

     Chief Justice Terrie Livingston, Justice Sue Walker, and Justice Lee

Gabriel all voted to recuse Justice Dauphinot.11            Half of Justice

Dauphinot’s six colleagues on the Second Court believe that, based upon

the dissent in which she expresses negative general opinions about the

WCDA and departs from guiding judicial principles, she should not hear

cases involving the WCDA. Additionally, these justices were aware of the

background on the initial memorandum opinion authored by Justice

Dauphinot in the Joe Johnson appeal (Johnson I) and all participated in the

en banc reconsideration (Johnson II) that forms much of the context to the

State’s recusal motion.12

     Recusal is required when “a reasonable member of the public at

large, knowing all the facts in the public domain concerning the judge and

the case, would have a reasonable doubt that the judge is actually

impartial.”13 A reasonable member of the public at large would certainly


11
      State’s Attachment A.
12
      Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345, at *1 (Tex. App.—
Fort Worth Oct. 9, 2014) (en banc) (Johnson II).
13
      Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995).
                                      1
have a reasonable doubt that a justice is actually impartial upon hearing

that half of the justice’s colleagues—including her Chief Justice—doubt her

ability to be fair and impartial.14

      Importantly, the Fifth Circuit has emphasized that when a judge’s own

colleagues publicly express a lack of confidence in the judge’s ability to

appear impartial with a particular attorney or party, this factor militates in

favor of recusal.15

      Additionally, Due Process requires a neutral and detached hearing

officer.16   As these Due Process rights are paramount, when half of a

justice’s colleagues are willing to go on record and vote for recusal, this

Court should seriously consider these justices’ concerns.17

      These three justices’ courage to publicly vote against Justice

Dauphinot heavily militates for recusal.18 Such an important matter with

Due Process implications should not be left to a closely divided 4-3 vote.

Permitting the decision to stand would cause serious questions to linger

about Justice Dauphinot’s impartiality. Thus, this Court should grant review


14
       See State’s Attachment A.
15
       See U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) (explaining when a
judge’s “own colleagues believed there would be at least an appearance of impropriety”
if the judge presided over a case involving a particular attorney it would lead a
reasonable person to harbor doubts as to the judge’s impartiality).
16
       In re Murchison, 349 U.S. 133, 136 (1955).
17
       See, e.g., U.S. v. Bremers, 195 F.3d at 227.
18
       Id.
                                          2
and examine the evidence that lead Chief Justice Livingston, Justice

Walker, and Justice Gabriel—all well-respected jurists—to conclude that

their colleague should be recused.

2.    Recusal is required because Justice Dauphinot applies a
      different set of rules when the WCDA is a party than she applies
      in other cases.

      Justice Dauphinot applies a different set of rules when the WCDA is a

party than in other cases. The Code of Judicial Conduct requires judges to

fairly apply the law without prejudice or bias toward any party.19

Foundational to American justice is the idea of “equal and impartial justice

under the law” which is accomplished when “the laws operating on all

alike.”20 Applying different standards to different parties is the antithesis of

“an equal and impartial justice under the law.”21

      Comparing Justice Dauphinot’s dissent in Roberson to her prior

jurisprudence demonstrates that she applies a markedly different standard

to the WCDA than to other litigants.

      First, Justice Dauphinot treats motion in limine rulings differently with

the WCDA. In Roberson to support her theory that the State intentionally

prompted a mistrial, she conflates a ruling on a motion in limine with an


19
      Tex. Code Jud. Conduct, Preamble & Canon 3(B)(5).
20
      Caldwell v. Texas, 137 U.S. 692 (1891).
21
      Id.
                                       3
evidentiary ruling on admissibility.22 A motion in limine is not a ruling on

admissibility.23 Yet, Justice Dauphinot states “[t]he trial judge ruled that the

notice of extraneous acts of misconduct that the State intended to offer into

evidence was untimely and that the evidence, presumably, were

inadmissible.”24

      When he granted the limine, the trial judge said: “Without hearing

[the witnesses], I’d be inclined to say they might have had previous contact

or something like that that’s how they recognized. But to go any further

might be a problem. But we’ll discuss that. So I’ll go ahead and grant that

limine on that ground.      Make sure you come up before you start with

them.”25

      For the WCDA, Justice Dauphinot considers a motion in limine an

evidentiary ruling “that the notice of extraneous acts of misconduct that the

State intended to offer into evidence was untimely” and that the evidence

was inadmissible.26     Yet, the trial judge had made no ruling beyond

requiring the parties to approach.27



22
      Roberson, 2015 WL 148476 at *5-9.
23
      Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).
24
      Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting) (emphasis added).
25
      See State’s Attachment B, III R.R. at 6 (transcript excerpts in Roberson).
26
      Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).
27
      See State’s Attachment B, III R.R. at 4-14 (hearing on motions in limine in
Roberson).
                                        4
      With other parties, she applies a different (and correct) standard to

limine rulings: “The granting of a motion in limine is not a ruling on the

admissibility of the evidence and does not preserve error. A motion in

limine simply prohibits references to specific issues without first obtaining a

ruling on the admissibility of those issues outside the presence of the

jury.”28 Justice Dauphinot clearly understands the difference between a

ruling on a motion in limine and an evidentiary ruling.29 Indefensibly, she

applies a different standard with to WCDA.

      Second, Justice Dauphinot applies a different standard of assessing

credibility determination with to WCDA.       In Roberson, she states that

“[u]nlike trial judges, who primarily see only the conduct in the courtrooms

over which they preside, appellate courts are presented with records from

other courts in that county…Appellate judges are in a better position than

the trial judge to see patterns of conduct.”30 Thus, she begins her dissent

by stating why she believes she is in a better position than the trial judge to

know what was really going on in his courtroom.

      Justice Dauphinot cites the trial judge’s credibility determination of

Investigator Cavinder: “And I’m not casting fault on Investigator Cavinder at

28
      BNSF Railway Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth
2014, pet. filed) (opinion authored by J. Dauphinot).
29
      Id.
30
      Roberson, 2015 WL 148476 at *5-6. (Dauphinot, J., dissenting).
                                      5
all. I understand that was an honest mistake. I completely believe that he

believed he was speaking to Ms. Steele.”31              Then, Justice Dauphinot

promptly discards this credibility determination and instead substitutes her

own judgment: “The record casts doubt on Cavinder’s testimony

concerning his own knowledge.”32 Despite the trial judge stating on the

record that he was not casting fault on Cavinder, that it was an “honest

mistake” and that he completely believed Cavinder, Justice Dauphinot

instead implicitly calls Cavinder a liar and relates that she does not believe

him.33 For the WCDA, Justice Dauphinot rejects the trial judge’s credibility

determination.34

      With other parties, Justice Dauphinot applies a different (and correct)

standard: “We cannot and must not substitute our determination of the facts

and the credibility of the witnesses in order to achieve the result we believe

the trial court should have reached.”35 Additionally, Justice Dauphinot has

explained the deference an appellate judge owes the trial judge: “When

the findings are based on an evaluation of a witnesses’ credibility and



31
         Id. at *7.
32
         Id. at *7.
33
         Id. at *8.
34
         See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014); Guzman v.
State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
35
         See, e.g., State v. Woodard, 314 S.W.3d 86, 100 (Tex. App.—Fort Worth 2010,
pet. filed) (Dauphinot, J., dissenting), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011).
                                          6
demeanor, the appellate court should afford almost total deference to the

trial court’s fact findings.”36

        Third, Justice Dauphinot ignores binding precedent of the Court of

Criminal Appeals when the WCDA is the party.37 While Justice Dauphinot

in Roberson recites that this Court requires proof that the prosecution

intended to cause a mistrial for jeopardy to bar a second prosecution, she

ignores that standard in favor of her own standard: “At some point,

appellate courts must hold that the conduct is so egregious that the party

cannot avoid its consequences.”38 Instead of applying the Court of Criminal

Appeals factors in Ex parte Wheeler (as the majority opinion does), Justice

Dauphinot ignores the Wheeler factors and seeks to apply her own

standard formulated ad hoc, unmoored from the precedent of the Court of

Criminal Appeals.39 This is not a situation where Justice Dauphinot simply

disagrees with the majority about the particular Wheeler factors or how

much weight to give them; rather, Justice Dauphinot would reverse the

case without reference to Wheeler.40




36
       See Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.)
(J. Dauphinot).
37
       Roberson, 2015 WL 148476 at *5-9 (Dauphinot, J., dissenting).
38
       Id. at *5.
39
       Id. at *10-11 (Dauphinot, J., dissenting).
40
       Id.
                                        7
      Conversely, with other litigants, Justice Dauphinot carefully applies

binding precedent of this Court, explaining that “Because a decision of the

court of criminal appeals is binding precedent, we are compelled to comply

with its dictates.”41

      This disparate treatment of the WCDA versus other parties is the

antithesis of “the laws operating on all alike.”42 These concrete, undeniable

examples of a separate set of rules for the WCDA are likely why half of

Justice Dauphinot’s colleagues believe she should be recused.

3.    Recusal is required because, regardless of her motivations, by
      speaking out and plainly stating that she has formed a negative
      opinion about the WCDA that influences her on every case,
      Justice Dauphinot departed the realm of impartial judging and
      improperly entered the realm of advocacy.

      Rather than limit her dissent to the issues before the court in

Roberson, as required by the T.R.A.P. 47.1,43 Justice Dauphinot vividly

expresses general opinions that she has formed against the WCDA. First,

as she directs her dissent to the popular, yet unclothed emperor (the

District Attorney), it is clear this dissent is about far more than the issues

before the Second Court in Roberson.44 Justice Dauphinot confirms this in

the second paragraph: “[a]ppellate judges are in a better position than trial
41
       State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.)
(J. Dauphinot).
42
       Caldwell v. Texas, 137 U.S. 692 (1891).
43
       Tex. R. App. P. 47.1.
44
       Roberson, 2015 WL 148476 at *1-9.
                                        8
judges to see patterns of conduct.”45 Justice Dauphinot then casts this

case as part of an observed pattern: “appellate judges have an obligation to

speak up when observed patterns show a course of conduct at odds with

constitutional mandates and fundamental fairness.”46

     It is clear from Justice Dauphinot’s own words that she is looking

beyond the record in this case to “observed patterns” and that these

“observed patterns” have prompted her to “speak up” and tell the popular,

yet unclothed emperor that her office is “at odds with constitutional

mandates and fundamental fairness.”47

     Justice Dauphinot concludes her dissent by placing Roberson within

an observed pattern by citing Dabney v. State, Pitman v. State, and Juarez

v. State.48 Justice Dauphinot could not be clearer: she would not decide

Roberson just on the record before the court, but would use an “observed

pattern” as her rationale for deciding the case and impugning the

motivations and integrity of the WCDA and staff, including the

misdemeanor prosecutor and investigator.49 Thus, Justice Dauphinot has




45
     Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
46
     Id. at *5-6. (emphasis added).
47
     Id.
48
     Id. at *5-9.
49
     Id.
                                        9
admitted she has formed opinions about the WCDA that she carries from

case-to-case that influence her judgment and even outweigh the record.50

      First, her dissent reveals she has departed the realm of appellate

judging and entered the realm of advocacy because she ignores T.R.A.P.

47.1’s limitation of an appellate court decision to the issues “raised and

necessary to final disposition of the appeal.”        Rather, her dissent far

exceeds the issues necessary to decide whether jeopardy bars a re-trial.51

      Second, she characterizes herself as needing to “speak-up” and tell a

popular, yet naked emperor a few things about a pattern of discovery

abuses.52 This is an odd tone for a supposedly dispassionate appellate

justice required by the Texas Code of Judicial Conduct to be “dignified and

courteous to litigants…with who the judge deals.”53

      Regardless of Justice Dauphinot’s subjective motives for needing to

“speak-up” against the WCDA, by becoming an advocate and expressing

her general, negative opinion about the WCDA, she has compromised her

ability to treat the WCDA fairly.

      As Justice Kennedy has explained, “A judge may find it difficult to put

aside views formed during some earlier proceeding. In that instance we

50
      Id.
51
      Id.
52
      Id. at *5.
53
      Tex. Code Jud. Conduct, Canon 3(B)(4).
                                       10
would expect the judge to heed the judicial oath and step down, but that

does not always occur. If through obduracy, honest mistake or simple

inability to attain self-knowledge the judge fails to acknowledge a

disqualifying predisposition or circumstance, an appellate court must order

recusal…”54 Texas courts have also long-recognized that when a judge

articulates such a predisposition against a party, recusal is required.55

Justice Dauphinot’s dissent demonstrates exactly such a disqualifying

predisposition toward the WCDA.

4.    Recusal is required because Justice Dauphinot’s bias was
      clearly revealed by her astounding claim that she can discern a
      discovery abuse from a case where the issue was neither
      preserved nor reached by the court of appeals.

      Justice Dauphinot’s citation of Juarez v. State as a “similar decision”

(i.e. case) where the WCDA made a “conscious decision” to violate a

discovery order is astounding.56

      Texas law requires alleged error to be preserved by a timely objection

before an appellate court will reach the ultimate issue.57 Without a timely

objection, the appellate court will not reach the merits.58


54
        Likety v. U.S., 510 U.S. 540 (1994) (J. Kennedy, concurring).
55
        See, e.g., Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]
1988—pet. ref’d) (finding judge’s statement, which was tantamount to pre-judging a
party, “was evidence of bias sufficient to require recusal.”).
56
        Roberson, 2015 WL 148476 at *5-9.
57
        Tex. R. App. P. 33.1.
58
        Id.
                                       11
      While this is basic legal procedure that any long-tenured appellate

justice understands, Justice Dauhpinot’s actions in not following these

basic prescripts in misusing Juarez proclaim her blatant unfairness to the

WCDA.59

      Although Justice Dauphinot cites Juarez as a “disturbing” example of

a “conscious decision” of the WCDA “withholding mandated discovery,” a

fair reading of Juarez shows no such discovery abuse.60

      In Juarez, after a revocation hearing at which appellant’s court

ordered sex offender treatment provider testified, appellant complained that

this testimony constituted extraneous evidence and that the WCDA had

failed to give notice.61 The Second Court declined to reach the merits of

appellant’s claim because appellant “did not preserve his claim for review”

because his only objection was to relevance.62 Simply reading the one-

page opinion demonstrates that the Second Court did not reach the

merits.63



59
        Roberson, 2015 WL 148476 at *9.
60
        Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—Fort Worth
June 4, 2009, no pet.).
61
        Id.
62
        Id.
63
        The State also doubts the merits of Juarez’s claim as he was ordered by the
terms of probation to see the treatment provider; thus, the provider’s testimony would
likely be contextual to the revocation. Regardless, the appellant failed to preserve the
error, so the court of appeals never reached the merits. See id.
                                          12
      To cite a one-page opinion where the merits were not reached and

where the appellate court did not find a discovery violation as a “disturbing”

example of a previous “conscious decision” of the WCDA to “withhold

mandated discovery” violates every basic rule for the use of case

authority.64

      How could any reasonable member of the public expect Justice

Dauphinot to be fair to the WCDA when she claims the unique power to

look-behind the appellate court’s decision in Juarez and see a “disturbing”

failure and pattern by the WCDA of “consciously deciding” not to give

mandated discovery?

      Her misuse of Juarez is further evidence that Justice Dauphinot

applies a different set of rules to the WCDA. In State v. Taylor, an opinion

she authored, she explains that when a party fails to preserve error, the

appellate court does not reach the merits.65        Incredibly, she ignores this

rule in her use of Juarez.66

      As this Court is aware, many baseless claims are made in appellant

points of error.   Is there any Texas Rule of Appellate Procedure that

empowers Justice Dauphinot to sua sponte re-determine the validity of an


64
      Roberson, 2015 WL 148476 at *9.
65
      264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no pet.).
66
      Juarez, 2009 WL 1564926.
                                        13
appellate point when the panel hearing the case did not reach the merits

and she wasn’t even a member of the panel? It is hard to excuse Justice

Dauphinot’s extreme misuse of Juarez as an honest mistake when the

opinion is only one-page long and one of only three cases that she cited for

her alleged pattern.67 No fair-minded person could read Juarez and believe

that the court reached the merits or cite it as an example of a conscious

discovery violation.

5.    Recusal is required because Justice Dauphinot’s lack of fairness
      is evidenced by her sweeping advisory pronouncement of a
      pattern of constitutional abuse when this alleged pattern A) was
      not an active controversy before her; B) was not necessary to
      the determination of the appeal; and C) the WCDA had no
      opportunity to provide testimony, evidence, or briefing on such
      a consequential accusation.

      Justice Dauphinot’s violation of the proscription against advisory

opinions without the WCDA being afforded the opportunity to present

evidence or briefing on such an important issue demonstrates her abject

lack of fairness.68

      While Justice Dauphinot cites “observed patterns” that “show a

course of conduct at odds with constitutional mandates and fundamental


67
        Id.
68
        Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988) (explaining that
“judicial power does not include the power to issue advisory opinions” which result
“when a court attempts to decide an issue that does not arise from an actual
controversy capable of a final adjudication.”) overruled on other grounds, Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997).
                                           14
fairness” as the basis for her dissent, this supposed pattern was not a

controversy in issue before the trial judge.69          There was no allegation

before the trial judge of any such pattern.70 Rather, the only issues before

the trial court were (1) what had happened; and (2) why did it happen.71

The trial court never asked for, heard, or received any evidence about any

pattern of misconduct by the WCDA.72 Therefore, the WCDA has never

been afforded any opportunity to offer testimony or evidence rebutting any

such pattern.

      Incredibly, the WCDA never had the opportunity to brief this alleged

pattern because the court requested submission without briefs.73 Since no

Appellant’s brief raised a pattern, Justice Dauphinot‘s disqualifying

predisposition alone lead her to lurch into this area.74




69
        See State’s Attachment B, IV-V R.R. (motion for mistrial and hearing on habeas
application).
70
        Id.
71
        Id.
72
        Id.
73
        See Letter from Debra Spisak to Parties regarding submission (Apr. 1, 2014),
available                                                                           at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b-
4a30-a6c8-72575b047add (last visited Mar. 4, 2015).
74
        See Letter from Debra Spisak to Parties regarding immediate submission without
briefing            (Feb.          20,           2014),           available         at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=10bed362-04fb-
49c7-9d7b-1d9a1d5cf937.
                                         15
        Appellate courts are not evidentiary courts.75 When an appellate

court needs additional evidence, the remedy is to abate the appeal for an

evidentiary hearing in a trial court.76

      The WCDA never had the opportunity to offer any evidence to refute

this erroneous claim. To state such a serious conclusion in the dissent of a

published opinion when there has been no briefing or evidentiary hearing

before a trial court is completely contrary to the tenets of judicial fairness,

the Rules of Appellate Procedure, and the proscription against advisory

opinions.77

      Justice Dauphinot deprives the WCDA of the ability to rebut such a

serious claim with evidence: what Brady training does the WCDA

mandate? What processes does the WCDA have in place to comply with

discovery requests? How many cases has the WCDA tried where there

have been no discovery complaints? What training do prosecutors receive

on compliance with discovery requests?


75
       See, e.g., In the Interest of M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas
2013, no pet.) (explaining that appellate courts do not take testimony or receive
evidence).
76
       Tex. R. App. P. 44.4.
77
       Tex. R. App. P. 47.1 (limiting an appellate court decision to the issues “raised
and necessary to final disposition of the appeal); see also Garrett, 749 S.W.2d at 803
(explaining that “judicial power does not include the power to issue advisory opinions”
which result “when a court attempts to decide an issue that does not arise from an
actual controversy capable of a final adjudication.”), overruled on other grounds, Malik
v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
                                          16
      A fair-minded jurist would give a party the ability to offer such

evidence before making this sweeping pronouncement. Instead, Justice

Dauphinot bases her improper advisory pronouncement on three cases in

five years out of thousands of criminal cases handled by the WCDA.78

Remarkably, of the three cases that she cites for her pattern of

constitutional discovery abuse, in two, the court of appeals made no finding

of a discovery violation and affirmed the trial court.79 In Pitman, which

Justice Dauphinot cites for a previous discovery abuse, she was on the

panel that unanimously found no such abuse.80

      The third case, Dabney v. State, had a petition for discretionary

review pending at the time she cited it.81 On March 4, 2015, this Court

granted review in Dabney.82 Neither the trial judge in Dabney nor Justice

Sue Walker believed that the State committed a discovery violation.83 The

State also questions the fairness of citing a case for such a momentous


78
        Roberson, 2015 WL 148476 at *11 (Dauphinot, J., dissenting).
79
        Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet. ref’d); Juarez,
2009 WL 1564926 at *1.
80
        Pitman, 372 S.W.3d 261. While the appellate court, in dicta, expressed concerns
about the WCDA’s policy relating to privacy of CPS records, the Legislature has since
expressly recognized these concerns in 39.14(a) by expressly referencing the privacy of
CPS records. Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014).
Regardless, the appellate court did not hold there was a discovery abuse in Pitman. Id.
81
        Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).
82
        See Docket Sheet for Dabney v. State, No. PD-1514-14 in the Court of Criminal
Appeals, available at http://www.search.txcourts.gov/Case.aspx?cn=PD-1514-14 (last
visited Mar. 4, 2015).
83
        Id.
                                          17
proposition when the justice knows the contested issue is the subject of a

pending petition for discretionary review.84

      This advisory pronouncement and the failure to afford the WCDA the

opportunity to brief or rebut with evidence irrefutably establishes Justice

Dauphinot’s unfairness to the WCDA.85

6.    Recusal is required because the timing of Justice Dauphinot’s
      abject lack of judicial fairness in Roberson suggests it may have
      been retaliatory and motivated by the State prevailing on its
      motion for en banc reconsideration in the Joe Johnson case
      after the State referred to her memorandum opinion’s drastic
      departure from the trial record as “troubling.”

      While the State does not have to prove (nor does this Court have to

find) actual bias or Justice Dauphinot’s subjective motivations for her

significant departure from basic judicial norms for recusal to be required,86

the timing of the Roberson dissent with its vitriolic and unsubstantiated

claims provides an important context to the Court. The Roberson dissent

did not occur in a vacuum; rather, it occurred almost concomitantly with the

State’s seeking and obtaining the extraordinary relief of en banc

reconsideration and withdrawal of an opinion authored by Justice

Dauphinot. The State prevailed on its motion for en banc reconsideration



84
      Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).
85
      Roberson, 2015 WL 148476 at *5-9.
86
      Murchison, 349 U.S. at 136.
                                          18
on October 9, 2014.87 Justice Dauphinot dissented.88 Then, the Roberson

dissent was released a mere three months later on January 8, 2015.89

      In Johnson, Justice Dauphinot authored an opinion that made many

factual assertions that were not supported by the record.90 Justice

Dauphinot’s opinion was premised upon a false open-door theory.91

Because reversal would have caused a child rape victim to re-testify, the

WCDA had no choice but to seek the extraordinary relief of en banc

reconsideration.92 The State’s motion detailed with exhaustive record cites

how drastically Justice Dauphinot’s memorandum opinion deviated from

the actual trial record and referred to this departure as “troubling.”93

      On October 9, 2014, a majority of the Second Court agreed, thereby

withdrawing Justice Dauphinot’s memorandum opinion, and affirming the

conviction.94   Justice Dauphinot dissented.95 Justice Walker and Justice




87
       Johnson v. State, 449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en
banc) (Johnson II).
88
       Id. (J. Dauphinot, dissenting).
89
       Roberson, at *1.
90
       Johnson v. State, 2013 WL 531079 (Tex. App.—Fort Worth Feb. 14, 2013)
(mem. opinion) (Johnson I), opinion withdrawn and superseded by Johnson v. State,
449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en banc).
91
       Id.
92
       Johnson II, 449 S.W.3d at 240.
93
       State’s Attachment C, State’s Motion for En Banc Reconsideration.
94
       Johnson II, 449 S.W.3d at 240.
95
       Id.
                                        19
Gabriel, who had joined in the memorandum opinion, reversed their votes,

and Justice Gabriel authored the majority opinion.96

      While neither the State nor this Court can gauge Justice Dauphinot’s

subjective motives, the objective facts demonstrate that three months after

the State prevailed on a motion for extraordinary relief whereby two of her

colleagues abandoned her opinion, which the State had called “troubling,”

Justice Dauphinot dissented in Roberson with her incendiary, gratuitous,

and unfounded accusations against the WCDA.97

      The State hopes this timing is an unfortunate coincidence, but the

fact remains that the appearance is so troubling as to call into question

Justice Dauphinot’s ability to be fair and impartial. A party should be able to

exercise its rights under T.R.A.P. 49.7 and seek extraordinary relief when

an opinion dramatically departs from the trial record without fearing reprisal.

Regardless of subjective intent, the objective appearance of a retaliatory

motive supports recusal.

                                    Prayer

      The State prays that this Court grant discretionary review of the

Second Court of Appeals’ recusal decision; that the Second Court of

Appeals’ decision be reversed; and that Justice Dauphinot be recused.

96
      Id.
97
      Roberson, 2015 WL 148476 at *5-9.
                                      20
 Respectfully submitted,

 /s/Maureen Shelton
 Maureen Shelton
 Criminal District Attorney
 Wichita County, Texas
 State Bar No. 00786852
 Maureen.Shelton@co.wichita.tx.us

  /s/John Gillespie
 John Gillespie
 First Asst. Criminal District Attorney
 Wichita County, Texas
 State Bar No. 24010053
 John.Gillespie@co.wichita.tx.us

 900 Seventh Street
 Wichita Falls, Texas 76301
 (940) 766-8113 phone
 (940) 766-8177 fax

 /s/John Brasher
 John Brasher
 Special Prosecutor
 State Bar No. 02907800
 brasherappeals@gmail.com
 900 8th Street
 Wichita Falls, Texas 76301
 (940) 244-0244 phone
 (940) 244-0245 fax




21
                          Certificate of Compliance

      I certify that this document contains 4,452 words, counting all parts of

the document except those excluded by Tex. R. App. P. 9.4(i)(1). The

body text is in 14 point font, and the footnote text is in 12 point font.

                                         /s/Maureen Shelton
                                         Maureen Shelton


                            Certificate of Service

      I do certify that on March 4, 2015, a true and correct copy of the

above document has been served electronically to Michael F. Payne

(attorney for Antonio Leija, Jr.) at michaelfpayne@gmail.com and the State

Prosecuting Attorney’s Office at information@spa.texas.gov.

                                         /s/Maureen Shelton
                                         Maureen Shelton




                                       22
                                                         FILE COPY




                     COURT OF APPEALS
                     SECOND DISTRICT OF TEXAS
                          FORT WORTH

                        NO. 02-13-00319-CR


MICHAEL OLIVER SMITH                               APPELLANT

                                 V.

THE STATE OF TEXAS                                        STATE


                             ------------

        FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                    TRIAL COURT NO. 52,047-B

                             ------------

                        NO. 02-13-00473-CR


ANTONIO LEIJA, JR.                                 APPELLANT

                                 V.

THE STATE OF TEXAS                                        STATE


                             ------------

        FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                    TRIAL COURT NO. 52,563-B

                             ------------
                                                                         FILE COPY




                              NO. 02-13-00482-CR


KURLEY JAMES JOHNSON                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                     TRIAL COURT NO. 53,445-C

                                    ------------

                                    ORDER
                                    ------------

      Currently pending before this court in each of the above referenced causes

is a “State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot,” filed

January 21, 2015, requesting the recusal of Justice Lee Ann Dauphinot in each

cause under Texas Rule of Appellate Procedure 16.

      Rule 16 states that the grounds for recusal are the “same as those

provided in the Rules of Civil Procedure.” Tex. R. App. P. 16.2; see also Tex. R.

Civ. P. 18a, 18b. Rule 18b(b) of the Texas Rules of Civil Procedure identifies the

grounds for recusal. Tex. R. Civ. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d

87, 88 (Tex. App.—Waco 2001, pet. denied) (order). Rule 18b(b)(1) provides

that a judge must recuse himself or herself in a proceeding in which the judge’s




                                         2
                                                                            FILE COPY




impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(b)(1). The

State’s motions challenge the impartiality of Justice Dauphinot under this rule.

      Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the

procedure to be followed for recusal of an appellate justice or judge:

      Before any further proceeding in the case, the challenged justice or
      judge must either remove himself or herself from all participation in
      the case or certify the matter to the entire court, which will decide the
      motion by a majority of the remaining judges sitting en banc. The
      challenged justice or judge must not sit with the remainder of the
      court to consider the motion as to him or her.

Tex. R. App. P. 16.3(b).

      Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the

recusal motions and prior to any further proceedings in these appeals, Justice

Dauphinot considered the motions in chambers. Id. Justice Dauphinot found no

reason to recuse herself and certified the matter in writing to the remaining

members of the court en banc. See id.; McCullough, 50 S.W.3d at 88. This

court then followed the accepted procedure set out in rule 16.3(b). Tex. R. App.

P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50

S.W.3d at 88. A majority of the remaining justices of the court could not agree on

a decision, so that fact was certified to the Chief Justice of the Supreme Court.

The Chief Justice temporarily assigned former Justice Rebecca Simmons as a

visiting justice to sit with the court of appeals to consider the motions. See Tex.

R. App. P. 41.2(b).




                                         3
                                                                        FILE COPY




      The visiting justice then met with the six remaining justices to deliberate

and decide the motions to recuse Justice Dauphinot by a vote of a majority of the

justices. Justice Dauphinot did not sit with the other members of the court when

her challenges were considered. See Tex. R. App. P. 16.3(b); McCullough, 50

S.W.3d at 88. The determination of whether recusal was necessary was made

on a case-specific, fact-intensive basis.   See McCullough, 50 S.W.3d at 89;

Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no

pet.) (order).

      The en banc court, Justice Dauphinot not participating, has carefully

examined the motions and the records as to the allegations pertaining to Justice

Dauphinot. The majority of the remaining justices have concluded that the

motions should be denied. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(b).

Accordingly, the State’s motion to recuse Justice Dauphinot in each of the above

referenced causes is denied.

      DATED February 26, 2015.



                                            PER CURIAM

EN BANC; with REBECCA SIMMONS (Former Justice, Sitting by Assignment).

DAUPHINOT, J., not participating.

LIVINGSTON, C.J.; WALKER and GABRIEL, JJ., would grant.




                                       4
                                02-13-00582-CR                        1

1                            REPORTER'S RECORD

2                              VOLUME 3 OF 6

3                     TRIAL COURT CAUSE NO. 58017-E

4    THE STATE OF TEXAS             §      IN THE COUNTY COURT
                                    §
5    VS.                            §      AT LAW NO. 1
                                    §
6    BYRIAS ROBERSON                §      WICHITA COUNTY, TEXAS

7

8

9
       *****************************************************
10
                           JURY TRIAL ON MERITS
11
       *****************************************************
12

13

14

15

16

17

18              On the 21st day of August, 2013, the

19   following proceedings came on to be heard in the

20   above-entitled and numbered cause before the Honorable

21   Gary W. Butler, Judge presiding, held in Wichita Falls,

22   Texas, Wichita County, Texas:

23              Proceedings reported by computerized

24   stenotype machine in real-time.       Reporter's Record

25   produced by computer-aided transcription.

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        2

1                       A P P E A R A N C E S

2    Ms. Victoria Honey
     SBOT NO. 24073195
3    Ms. Allyson Renee Kucera
     SBOT NO. 24081858
4    Assistant District Attorneys
     WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5    900 7th Street
     Third Floor
6    Wichita Falls,TX 76301-2402
     940.766.8113
7    ATTORNEYS FOR THE STATE OF TEXAS

8    -AND-

9    Mr. Mark Richard Briley
     SBOT NO. 24069418
10   WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
     600 Scott Ave
11   Suite 204
     Wichita Falls, TX 76301-2531
12   940.766.8199
     Ms. Kristen Homyk Howcroft
13   SBOT NO. 24032433
     THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14   900 8th Street
     Suite 815
15   Wichita Falls, TX 76301
     940.687.1576
16   ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        3

1                              I N D E X

2                              VOLUME 3

3                       JURY TRIAL ON MERITS

4    AUGUST 21, 2013                                Page     Vol.

5    Appearances.................................       2     3

6    Motions In Limine...........................       4     3

7    Preliminary Instructions by the Court.......     14      3

8    Jury Voir Dire Examination by the State.....     21      3

9    Jury Voir Dire Examination by the Defendant.     89      3

10   Court's Instructions To Jury................ 150         3

11   WITNESSES
                            Direct    Cross    Voir Dire     Vol.
12   DONNIE CAVINDER         156                              3

13   Adjournment................................. 158         3

14   Court Reporter's Certificate................ 159         3

15

16

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                      4

 1                        P R O C E E D I N G S

 2               (Open court, defendant present, no panel)

 3                            MOTIONS IN LIMINE

 4               THE COURT:   Court's going to call Cause No.

 5   58017-E, styled the State of Texas versus Byrias

 6   Roberson.     The Court will call that case for trial.

 7   We're here on pretrial matters which the Court has found

 8   through its motion in limine by both the State and the

 9   defense.     The Court will note for the record the State's

10   present through their attorneys from the District

11   Attorney's office; the defendant is present with his

12   attorneys.     I have Mr. Roberson's motion in limine

13   sitting here, so we'll just go ahead and take it up first

14   if you don't mind.

15               Mr. Briley, I know you've provided a copy of

16   this to the District Attorney's office, and I assume that

17   y'all have conferred with regard to the motion in

18   limines, and I've reviewed it as well.        So we'll take it

19   up in this matter.       Is there any -- tell me this.   Which

20   numbers does the State object to on the motion in

21   limine?

22               MS. HONEY:   No. 1, 2, 3, 4 and 15.

23               THE COURT:   1, 2, 3, 4 and what?

24               MS. HONEY:    Fifteen.

25               THE COURT:    All right.   Let's take them up in

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                          5

1    order.   No. 1?

2              MS. HONEY:    I have an objection to No. 1 if it

3    includes felony convictions and crimes of moral

4    turpitude.   The rules provide for impeachment if there's

5    a felony conviction or crime of moral turpitude.

6              THE COURT:    Mr. Briley?

7              MR. BRILEY:    I don't see my reason that we

8    couldn't approach the bench before those were got into.

9              THE COURT:    We can, but if it's a crime of moral

10   turpitude or a felony conviction, wouldn't you agree

11   that's subject to cross-examination?      I'll let you

12   approach so we can determine if it's a felony or crime of

13   moral turpitude at that point and we'll go forward.

14             MS. HONEY:    No. 2, I anticipate that there will

15   be testimony in this case regarding the officer's entry

16   into the home.    If defense counsel intends to challenge

17   the legality of that entry, I would like the opportunity

18   to question some of the State's witnesses regarding a

19   prior encounter between the defendant and these witnesses

20   about and regarding a disturbance call.      He had

21   barricaded himself and his family inside his home.         The

22   SWAT team was called to get him out of the home.         Two of

23   the members of the SWAT team are witnesses in this case.

24   This prior incident between the defendant and these

25   officers is important for several reasons.      It goes to

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                          6

 1   their familiarity with the defendant, their ability to

2    identify him on the date of the offense.      It's part of

 3   how they recognized him on the date of the offense.         It

 4   also goes to their state of mind on the date of the

 5   offense, goes to why gang task force officers were asked

 6   to serve these warrants on the defendant, and also goes

 7   to their reason to believe that the defendant lived in

 8   this particular residence.

 9            THE COURT:    Mr. Briley?

10            MR. BRILEY:     Well, Your Honor, we've asked or

11   requested notice of any bad acts or convictions, and we

12   haven't received any of those.

13            THE COURT:    Well, let's do it this way.    I'll go

14   ahead and sustain or grant on this limine that y'all will

15   approach, and then we would get into exactly what the

16   officers could or could not go into.      Without hearing

17   them, I'd be inclined to say they might have had previous

18   contact or something like that that's how they

19   recognized.   But to go any further might be a problem.

20   But we'll discuss that.      So I'll go ahead and grant that

21   limine on that ground.      Make sure you come up before you

22   start with them.   No. 3?

23            MS. HONEY:    No. 3, I have an objection to No. 3

24   if bad reputation or character as stated in No. 3

25   includes a witness's character for truthfulness or

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                         7

 1   untruthfulness.    Again, that is proper impeachment under

 2   Texas Rules of Evidence.

 3            THE COURT:    As long as the proper predicate is

 4   laid.

 5            MS. HONEY:    Yes, Your Honor.

 6            THE COURT:    Mr. Briley?

 7            MR. BRILEY:    No response.

 8            THE COURT:    Okay.     So as long as the proper

 9   predicate is laid, of course.       So that essentially will

10   be denied.   However, I understand there could be an

11   objection for proper predicate not being laid if you want

12   to go into that.   Four?

13            MS. HONEY:    I don't anticipate there being any

14   testimony in this case regarding the defendant ever being

15   a member of a criminal street gang, currently being a

16   member of a street gang.       However, I do anticipate that

17   as part of some of the State's witnesses talking about

18   their work experience, their training, their job

19   assignments on the date of the offense, they're going to

20   testify that they were part of the gang task force.

21            THE COURT:    Mr. Briley, if their testimony is

22   limited to what their duties were at the time, do you

23   still have a problem with that?

24            MR. BRILEY:    No.     And I don't anticipate any

25   evidence is going to be shown that Byrias was part of a

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                      8

1    gang.     But if it was to go to that, then I would ask that

2    they --

3                THE COURT:    I'll grant it as to that specific

4    according to their assignments.       It is what it is.

5    Fifteen?

6                MS. HONEY:    No. 15, this -- I guess my objection

7    is if the defendant takes the witness stand during the

8    defendant's case in chief -- the State's not saying the

9    defendant has to or will -- but if the defendant takes

10   the witness stand and attempts to bolster his credibility

11   with the jury by talking about his law enforcement

12   background, and in talking about that law enforcement

13   background creates a false impression in the mind of the

14   jurors, we would ask for the opportunity to correct that

15   false impression in the mind of the jurors.

16               Additionally, his law enforcement background

17   goes to the heart of this case, the facts of our case,

18   the force that he used against the officers.       He was

19   trained as a police officer, familiar with how to

20   effectuate an arrest, and trained on how to do hand-to-

21   hand combat.

22               MR. BRILEY:    With the first part, you know, if

23   we had brought it up.

24               THE COURT:    If you open the door, I understand.

25               MR. BRILEY:    I understand that, but my motion is

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                          9

1    any reference by them to begin with.        I don't see how

2    that it's relevant and it is holding Byrias to a higher

3    standard, which I would disagree that they should be able

4    to do.

5               THE COURT:    The motion in limine will be granted

6    as to that and approach before you go into it.         As to the

7    others, you agree that they should be granted?

8               MS. HONEY:    Yes, Your Honor.    On numbers 5

 9   through 14, the State has no objection.

10              THE COURT:    Those will be granted.     With regard

11   to the State's motion, Mr. Briley, you had an opportunity

12   to review that?

13              MR. BRILEY:    Yes and no, Your Honor.     I received

14   an e-mail.    I didn't actually see the final copy.         And

15   there was only one that I initially had an objection to,

16   but let me re-read No. 6.

17              THE COURT:    Okay.

18              MR. BRILEY:    Our only objection to No. 6 is that

19   we plan on talking about the use of force that day.           But

20   if they're only talking about official claims made by

21   either Byrias or people in the past, we have no objection

22   to that.

23              MS. HONEY:    And, Your Honor, if I could have an

24   opportunity to clarify?

25              THE COURT:    That's fine.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                         10

1             MS. HONEY:     No. 6 may have been overly broad

2    whenever I wrote it.     Obviously, we have no objection to

3    them going into the facts of this particular case and

4    questioning officers about the facts of this particular

5    case.

6             THE COURT:     Okay.   All right.    It sounds like

7    there's actually an agreement then with regard to 6 as

8    long as we're just talking about this case.        I think you

9    would -- I would stay away from using the terms excessive

10   force as I think that creates -- is -- it's almost like a

11   term of art because it creates some -- it has some legal

12   concepts to it.

13            If we get there, the jury's going to determine

14   what amount of force was necessary.        So I would say that

15   I grant the motion in limine as to anything outside of

16   the date in question.     If you're wanting to get into

17   that, then let's approach and talk about it.        As far as

18   the date in question, whatever the use of force was, of

19   course, it will come out in testimony with, I assume,

20   your witnesses, and the jury is the fact finder and they

21   can go from there.

22            With regard to the others, Mr. Briley, have any

23   objections to 1, 2, 3, 4, 5, and 7?

24            MR. BRILEY:     No, Your Honor.

25            THE COURT:     Of course, those would be granted

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        11

1    then.     Is there anything else with regard to pretrial

2    matters that we need to take up?

3                MS. HONEY:    I don't believe so.

4                MR. BRILEY:    None from the defense.

5                THE COURT:    One thing.   There have been rulings

6    by the court yesterday on in camera inspection of the

7    documents that were provided by the City Attorney's

8    office.    I've reviewed those thoroughly, and in my review

 9   I find nothing that would be exculpatory or would tend to

10   lead to that with regard to this matter.          So those are

11   under seal and will remain under seal.          All right.    We're

12   going to start with the jury at 9:30, so y'all have got

13   some time.     Please be back in here at 9:15 so we can be

14   ready to go right at 9:30 when the jury comes in.            I know

15   you've each been provided yesterday a copy of the venire

16   panel list.     At this time, do you believe that a shuffle

17   is necessary or --

18               MS. HONEY:    Your Honor, the State would request

19   a shuffle.

20               THE COURT:    The State's going to request a

21   shuffle.

22               MR. BRILEY:    We did not receive the

23   questionnaires from jurors No. 16, 17, and 18, or they

24   were misplaced by my office.

25               THE COURT:    Mr. Briley, I have it in my packet.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                            12

 1   Maybe it was not copied to you.

 2            MR. BRILEY:     Could I make a copy?

 3            THE COURT:     They want a shuffle.     Let's go off

 4   the record for a second.

 5            (Discussion off the record)

 6            THE COURT:     Let's go back on the record.        With

 7   regard to the jury, I believe the State's saying they're

 8   going to request a shuffle just by looking at the array.

 9            MS. HONEY:     Yes, Your Honor, that's correct.

10            THE COURT:     Mr. Briley, typically, I would have

11   to bring the jury in and seat them so you could see the

12   array before we do the shuffle, and then it would be done

13   without you having an opportunity to shuffle again.              Are

14   you okay with not seeing the array and going ahead and

15   shuffling and waiving what I would assume would be your

16   right to ask for another shuffle?

17            MR. BRILEY:     Yes, Your Honor.

18            THE COURT:     All right.     We'll go off the record.

19                (Recess taken)

20            THE COURT:     On the record.     Back in cause 58017-

21   E parties are present.     Defendant's present.        There's an

22   issue with one of the jurors.        It's now 10:20.     She's

23   supposed to be here at 9:30.     The juror No. 22, Claudia

24   Sciarra has issues with child care today.        No. 22 is

25   outside the cut line.     We are waiting on one other juror,

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                            13

1    but are being told he's right on his way outside.              That

2    would leave us with 23 potential jurors.          Ms. Honey, do

3    you have any objection to going forward with 23?

4                MS. KUCERA:     No, Your Honor.

5                THE COURT:     Mr. Briley?

6                MR. BRILEY:     No, Your Honor.

7                THE COURT:     Twenty-two will be excused for

8    cause.     I will deal with her and the ones who were late

9    after trial.     I'm not going to say anything during trial.

10   I just want to get through the trial and get going.              I'm

11   still going to leave a spot for No. 22.          That way it

12   makes it easier on y'all.        Okay.    We'll go off the

13   record.

14               (Open court, defendant and jury panel present)

15               THE BAILIFF:     Everyone's present, Your Honor.

16               THE COURT:     All right.    Thank you.   If the

17   venire panel will remain standing, I'm going to issue an

18   oath.     Would each of you please raise your right hand for

19   me?

20               (The jury panel was sworn)

21               THE COURT:     Thank you.    Y'all be seated, please.

22   All right.     This is Cause No. 58017-E, State of Texas

23   versus Byrias Roberson.        The Court will note for the

24   record the venire panel is seated with the exception of

25   one member, No. 22.

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                     14

1               The State is present through its attorneys,

2    defendant present, defendant's attorneys.      What I'm going

3    to do first, I'm going to give you some instructions that

4    you'll have to go by during this voir dire process and

5    then what I'll do is introductions and I'll explain the

6    process to you and what's going on.

7                    PRELIMINARY INSTRUCTIONS FOR JURORS

8                              CRIMINAL CASES

9               "1.    Turn off all phones and other electronic

10   devices.    While you are in the courtroom and while you

11   are deliberating, do not communicate with anyone through

12   any electronic device.      For example, do not communicate

13   by phone, text message, email, chat room, blog, or social

14   networking sites such as Facebook, Twitter, or Myspace.

15   Do not post information about the case on the Internet

16   before these court proceedings end and you are released

17   from jury duty.      Do not record or photograph any part of

18   these court proceedings, because it is prohibited by law.

19              2.    To avoid looking like you are friendly with

20   one side of the case, do not mingle or talk with the

21   lawyers, the witnesses, the parties, or any other person

22   who might be connected with or interested in the case.

23   Do not remain within the hearing of anyone who might be

24   discussing the case.      These persons have to follow these

25   same instructions as you, so you should not be offended

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        15

1    when they follow these instructions.

2              3.   Do not accept from, nor give to, any of

3    these persons any favors, no matter how slight the favor,

4    such as rides, food or refreshments.

5              4.   Do not discuss or mention anything about

 6   this case, the defendant, the alleged victim, or

7    witnesses to anyone, including your spouse, family

 8   members, co-workers, and do not permit anyone to mention

9    anything about this case in your presence or your hearing

10   until you are discharged as jurors or excused from the

11   case.   Do not communicate with anyone via any electronic

12   means, including, but not limited to text messages,

13   emails, Tweets or any other method of communication.        Do

14   not permit anyone to communicate with you by any such

15   electronic means.

16             If anyone attempts to discuss anything about the

17   case, the defendant, the alleged victim or the witnesses

18   with you, you must report it to me at once.     We do not

19   want you to be influenced by something other than the

20   evidence admitted in court.

21             5.   Do not even discuss anything about this

22   case, the defendant, the alleged victim or the witnesses

23   among yourselves until after you have heard all the

24   evidence, the Court's Charge, the attorneys' arguments

25   and until I have sent you to the jury room to consider

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       16

1    your verdict.     Even then, you cannot discuss the case

2    among yourselves except when you are all together in the

3    jury room.     Do not form or express any opinions about

4    this case until you begin your deliberations."

5                The supreme court said I have to read that to

6    you before we start since all the electronic devices and

7    phones that we have now.     Of course when I started, we

8    didn't have to deal with that, but, man, do times change.

9                My name is Gary Butler.   I'm the judge here for

10   County Court At Law No. 1.     I took over about three years

11   ago for Judge Hogan, who was here some 30 years.       This is

12   a very active court.     We don't waste time.    We move very

13   quickly as I have general jurisdiction, which means I

14   hear criminal misdemeanor cases, all family law types of

15   cases, probate, mental health, civil cases under

16   $200,000.     So you can tell we'd be quite busy just with

17   those.   And that's just the jurisdictions I can remember

18   off the top of my head.

19               What we have here today is a criminal matter

20   that will be tried and be heard.      I expect this trial to

21   last quite possibly to Friday noon.       Of course, we're

22   gonna to move through this trial as quickly as we can.

23   However, the defendant, of course, in this matter is

24   entitled to a fair trial, and we're gonna take as much as

25   time as we need to ensure that that happens.       I think

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                        17

 1   that would be what each and every one of you would want

 2   if you were on trial.

 3               Let me introduce everybody to you.       I've already

 4   said who I am.        They're going to be asking a little bit

 5   about your background in this voir dire process.          What

 6   they're trying to do is make educated strikes, so they

 7   really need to know a little bit about you.          If they ask

 8   questions of such a personal nature as you do not feel

 9   comfortable asking those questions in front of 20

10   something or 30 something people, then you can ask to

11   come after and speak with just myself and the attorneys

12   and, of course, the court reporter as well.

13               Now, I'm here from Wichita Falls.       I've always

14   livid here.     I went to Old High, went to college here.

15   Went off for law school, came back.          So I'm about as

16   Wichita Falls as you get.        I recognize a few of the

17   people here on the venire panel.        Some I've known for a

18   number of years, so that shouldn't come as a shock to

19   anybody.

20               I have a daughter in Florida and two little boys

21   here and a wife that I've been married to for, ooh, 20

22   years.     Over 20.     Over 20 years, let's go with that.       Let

23   me introduce who you're going to be seeing.          Karen James

24   back there, you've already had dealings with.          She's my

25   court coordinator and bailiff.        She keeps everything

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        18

1    running as smoothly as possible.      She doesn't carry a

2    gun, thank goodness, but still she still has the

3    classification of bailiff.

4             The other people you're going to see in the

5    courtroom, probably the most important but that you're

6    not going to hear anything from, is Ms. Cayce Coskey

7    who's sitting right over here to my right.      She's my

8    court reporter.   She's taking down everything that I say

9    and everything that you say.    When a question is asked,

10   you have numbers, if you would stand and give your name

11   and or show your number, that's gonna let her make a more

12   accurate record during the voir dire process.      The only

13   time we use those numbers is during voir dire.

14            Also, if you'll stand when answering questions,

15   it just makes it easier for everybody to hear.      This air

16   conditioner that is only for my court is going, and

17   sometimes it makes it difficult to hear.      When I first

18   started, we didn't have an air conditioner, and in a

19   trial in about August, I believe it was, the temperature

20   was 80 degrees.   So thank goodness we've got an air

21   conditioner.   The other people that you're going to see

22   is going to be from the State's attorneys, being Victoria

23   Honey.

24            MS. HONEY:   Good morning.

25            THE COURT:   Allyson Kucera.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                      19

1                MS. KUCERA:     Good morning.

2                THE COURT:    The investigator for the District

3    Attorney's office who will be assisting them is Donnie

4    Cavinder.

5                MR. CAVINDER:     Good morning.

 6               THE COURT:    For the defense, you have Mr. Mark

7    Briley.

 8               MR. BRILEY:     Good morning.

9                THE COURT:    And Ms. Kris Howcroft.

10               MS. HOWCROFT:     Good morning.

11               THE COURT:    And the defendant Byrias Roberson.

12               THE DEFENDANT:     Good morning.

13               THE COURT:    A little bit about the process.

14   This is what's known as voir dire, to seek and tell the

15   truth or to question and tell the truth is what they said

16   when I was in law school.        Jury selection process is a

17   better way of saying it for me.        Since I'm from Wichita

18   Falls, if I butcher voir dire, I apologize.          But I didn't

19   take French in high school.

20               The process we'll go through is the voir dire

21   will commence; the State will ask questions; the defense

22   will ask questions.       Once we get through that, they're

23   going to exercise their strikes.        I'd like to get through

24   the voir dire process hopefully by lunch.          We'll see.

25   And then if not, it will be shortly thereafter.          We

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                         20

 1   should have a jury seated by two o'clock today.        So those

 2   of you who are not one of the lucky six, as I call them,

 3   will be released at that time.

 4            Now, we don't keep substitute or alternative

 5   jurors in this court, so it will just be the six.        After

 6   that, there will be opening statements, and we'll move

 7   forward into the presentation of evidence and closing

 8   statements, and then you'll get other instructions at

 9   that time.     This does -- everybody's familiar with trials

10   pretty much.    It's somewhat like in the movies and TV

11   shows, but really not.     There are more delays and it's

12   just inevitable, and that's part of the process.        I'll

13   keep those delays to a minimum if possible and move this

14   trial as quickly as possibly while still affording a fair

15   trial for the defendant in this matter.

16            All right.     With that, I'm going to turn it over

17   to Ms. Kucera to do voir dire for the State.

18            Oh, sorry, one more thing.       Somebody said this

19   in a prior trial.     If you see me on my computer, I'm not

20   playing on the Internet or anything like that.        I'm the

21   only judge in the courthouse who is lucky enough to have

22   real time court reporting.     And so if I'm on the

23   computer, nine times out of ten I'm going back through

24   testimony or I'm looking at some legal cases or

25   precedence.     One lady mentioned that to me before, so I

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                           21

1    always want to tell you that.        Go ahead.

2                       JURY VOIR DIRE EXAMINATION

3    BY MS. KUCERA:

4                Good morning.     How are you guys doing?       All

5    right.   Fun group.    First of all, thank you so much for

 6   showing up today.     We appreciate you for doing that.

7    This process cannot work if you guys don't show up, so I

8    wanna thank you so much for doing that.           That's the first

9    step of the process.        Okay.

10               First, I just want to ask a general question,

11   easy one.     Raise your hand if this is your first time

12   you've been in a courtroom on a jury selection panel.

13   Excellent.     So a fair amount of you.        All right.    Well,

14   you are in good company today because this is my very

15   first voir dire or jury selection.           So if it is a train

16   wreck, I apologize, but we'll work through it today.              I'm

17   going to introduce myself and talk a little bit about

18   myself and my trial partner and the type of questions I'm

19   going to ask you and talk to you about today.

20               My name is Allyson Kucera, as the judge said.            I

21   grew up in Houston Texas, and I grew up -- I was an

22   athlete growing up.     I ended up playing soccer for the

23   University of Oklahoma and stayed there for law school.

24   So I apologize for being a Sooner, but I am happy to be

25   back in Texas.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        22

 1              Let's see.    What else about me?   Okay.     I

 2   decided to share a personal story because I am going to

3    ask you guys to sort of talk about yourselves a little

 4   bit.    I am a huge fan of sports.     I guess that probably

 5   goes without saying.       But what comes with that is growing

 6   up with an older brother and an athletic background is

 7   that I'm not an emotional person.       I don't really cry a

 8   lot in real life.       The problem with that is that when

 9   great sporting events occur, I am a disaster.          I'm

10   bawling.    You just worked so hard; I'm so proud of you.

11   You know, so I pretty much only cry in sporting events.

12   I think that's pretty weird that I only cry in sporting

13   events, but there you go.       That's a weird fact about me.

14              Essentially, today this is just going to be a

15   jury selection process.       I'm going to ask you some

16   questions and ask you to just be honest with us and talk

17   to us about your experiences, your feelings, your

18   opinions, okay.     So I'm going to put a slide show up to

19   help you guys follow along with what I'm going to tell

20   you.    If you can't see it, you can't understand it --

21   another weird fact about me is that I talk incredibly

22   fast.    So if you don't understand what I'm saying, need

23   me to repeat something, let me know, raise your hand,

24   stand up and we'll all get through this process together.

25   Does this sound like something everyone can do.          Nods?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                            23

1    Yes.

2                Okay.     This is the State of Texas versus

3    Mr. Byrias Roberson.        Okay.     Mr. Roberson has been

4    charged with the offense of resisting arrest.           Okay?        So

5    welcome jurors.        I thought this might help us a little

6    bit.    So these are some helpful hints.         I will attempt to

7    take deep breaths and slow down.           I will ask you guys to

8    do the same.        Don't be nervous.     This is gonna be easy.

9    We'll get you out of here before lunchtime hopefully.

10               All right.     There are no wrong answers.        These

11   are opinion questions.        These are things that I'm going

12   to ask you guys and just ask you to be honest, okay.

13   There's no trick questions or anything like that, okay.

14   Honesty is the best policy, okay.           We really want you

15   guys to be honest, all right.           And the reason we want you

16   to be honest is that the goal of this process is to

17   ensure that Mr. Roberson gets a fair trial, okay?              And

18   that's what the State wants and that's what the defense

19   wants, okay?        So we wanna make sure that we get the best

20   six jurors that are going to sit appropriately for this

21   case.     Okay?     So just be honest and make sure that we get

22   this guy a fair trial.        Okay?

23               All right.     So the offense he has is resisting

24   arrest.     All right.     I'm going to back up and ask you why

25   do you think the offense resisting arrest is something

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                        24

1    that we should try people for?        Why do you think it's a

2    crime.     Can anyone think of a reason why we wouldn't want

3    someone to arrest a person resisting arrest?         Anyone have

4    any idea, try to help me out, why we think resisting

5    arrest might be -- might be an offense under the Texas

6    Penal Code?     Yes!

7                VENIREPERSON FOSTER:     Chris foster.

8                MS. KUCERA:   Okay.    Mr. Foster, why do you think

9    that --

10               VENIREPERSON FOSTER:     We need to protect the

11   people that are out there protecting us.

12               MS. KUCERA:   Okay.    And who are some of those

13   people?

14               VENIREPERSON FOSTER:     Police officers.

15               MS. KUCERA:   Okay.    So you appear to be a police

16   officer.     Is that in fact true?

17               VENIREPERSON FOSTER:     Yes.

18               MS. KUCERA:   Great.    So your statement is that

19   resisting arrest is something we need to protect the

20   officers that are generally making the arrests?

21               VENIREPERSON FOSTER:     Right.

22               MS. KUCERA:   Okay.    Are there any other people

23   you can think we would want to protect?

24               VENIREPERSON FOSTER:     Well, protect the citizens

25   by making the arrest.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                               25

 1             MS. KUCERA:     Good.     Absolutely.     Anyone else

 2   have an idea why we think it's important to protect the

 3   citizens who might be near the arrest?            Anyone have an

 4   idea as to why that might be the case?            Anyone just raise

 5   your hand.    I know you can do this.       Anyone think of a

 6   reason?   Let's say there are a group of people all

 7   together and they're in -- let's say they're in a bar.

 8   Alcohol is being served and there's someone who's

 9   becoming rowdy, maybe had too much to drink.            There are a

10   lot of people in a bar, and if the officers go to make an

11   arrest in a bar, wouldn't it be safer if that person

12   didn't resist arrest for all the people in the bar that

13   could possibly be injured, you know, by that person who

14   needs to be arrested?      Does that make sense?        Okay.     Can

15   everybody understand how would be the case?

16             So the officer says we want to protect the

17   officers who are making the arrest and also the citizens

18   around the arrest.      We don't want anyone to be hurt by

19   the officers who are trying to make an arrest.            Okay?

20   Understand?    Nod with me.       Everyone got it?     Okay.     What

21   about the defendant?      Wouldn't we also want to protect

22   him?   Okay, good.   All right.       Can you understand why

23   it's safer if the defendant doesn't also resist arrest?

24   Everyone understand why that would be important?               Good.

25             Okay.   All right.       So now we're going to go over

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                          26

1    the definition of -- up here on this slide is the

2    definition of resisting arrest, okay.         Everyone following

3    along so far?     Great.     All right.   Texas Penal Code

4    Section 38.03.     All right.     It's a long definition.

5    We're going to go through it and break it down for you

6    guys so we all understand it together.         Okay?

7             All right.        A person commits an offense if he

8    intentionally prevents or obstructs a person he knows is

9    a peace officer from effecting an arrest.            It's just that

10   sentence right there.        He intentionally prevents or

11   obstructs a person he knows is a peace officer, okay,

12   from effecting an arrest or effecting a search or

13   transportation of that actor -- so the person who is

14   being arrested is the actor in this case -- or another

15   person by using force against that peace officer or

16   another person.

17            Okay.     I know it's a little confusing, but did

18   everyone follow that and understand?         Okay.     He has to

19   intentionally know that he is preventing or obstructing a

20   person who he knows to be a peace officer -- and that's

21   important, all right -- from effecting an arrest.               Okay.

22   So if someone goes to try and arrest him, he can not, if

23   he knows they're a peace officer and they're arresting

24   him, he can not use force and potentially prevent them

25   from arresting him.        Everyone understand?      Everyone

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                          27

1    good?     Okay.

2                All right.    The second part of that is that it's

3    no defense to prosecution under this section if the

4    arrest or search is unlawful.

5                Okay.    So I'm going to try to explain that as

6    best I can.       Officer Foster, I'm going to try and use you

7    to help us understand that.         Okay?     All right.   Let's say

8    you go to make an arrest of an individual.            What do you

9    need in order to make an arrest?

10               VENIREPERSON FOSTER:      Probable cause.

11               MS. KUCERA:     Okay.   So you need to believe that

12   that person has committed an offense; is that correct?

13               VENIREPERSON FOSTER:      Yes.

14               MS. KUCERA:     Okay.   If you go to make an arrest

15   and you believe you have probable cause, right?

16               VENIREPERSON FOSTER:      Yes.

17               MS. KUCERA:     What if for some reason you might

18   arrest the guy's twin brother who you think is that

19   person, but he's not.        He's actually his twin brother.

20   Okay?     Does that make sense?      Everyone following me?        So

21   he's actually arresting the wrong person, right?             But he

22   believes that he's arresting the right person.             Okay?    So

23   we would consider that an arrest.            He's trying to arrest

24   the right person.        He believes he's arresting the right

25   person.     Even though he arrests the wrong person, the

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                            28

1    wrong person still, the law says, cannot resist arrest.

2    Does that make sense?       Okay.   Everyone understand?

3                Okay.    Now we're gonna break it down a little

4    bit and we're gonna go over the elements, okay.          All

5    right.     Okay.    All right.   So this is the elements, okay.

6    Mr. -- this is what -- okay.        Let me explain.    This is

7    what Victoria and I have to prove to you, okay, that

8    we're going to go through this trial and this is what we

9    have to prove to you, okay.         The first element that we

10   have to demonstrate to you guys is that Mr. Roberson is

11   the particular person in this case, okay.         Second is that

12   the offense occurred on or about July 10, 2012.          Okay?

13   Second, is that it occurred in Wichita County, Texas, did

14   then and there intentionally prevent or obstruct Officer

15   Gabriel Vasquez, a person the defendant knew was a peace

16   officer, from effecting the arrest of the defendant

17   Mr. Roberson by using force against that said peace

18   officer.

19               Now, does anybody know what a peace officer is?

20   Anybody?     Somebody's gotta raise their hand.       Yes!     Let

21   me get your name.       Hang on just a second.    Your name is

22   Clay Parsons, No. 23.

23               VENIREPERSON PARSONS:      My definition is a person

24   who was in some kind of uniform, carrying a weapon, that

25   I could distinguish him from just a common person who was

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                        29

1    just hanging out at the bar where this was taking place.

2             MS. KUCERA:      Okay.

3             VENIREPERSON PARSONS:         You'd have to visually

4    know this person has some kind of authority to be doing

5    what he was doing.

6             MS. KUCERA:      Okay.    Very good.    Does anyone else

7    agree with what Ms. Parsons said, about that they would

8    have to have some sort of demonstration that they're a

9    police officer?      Raise your hand if you agree with what

10   Ms. Parsons said.      There you go.     Did you raise your

11   hand, sir?   Good.     Do you believe it as well?

12            VENIREPERSON TEAKELL:         Yes, I do.

13            MS. KUCERA:      Excellent.     Okay.   Do you wanna

14   stand up, sir, for me?      Do you think there's any other --

15   say your name.

16            VENIREPERSON TEAKELL:         Ronnie Teakell, No. 2.

17            MS. KUCERA:      Great.    Do you think there is any

18   other -- is there anything you want to add to

19   Ms. Parsons' definition?

20            VENIREPERSON TEAKELL:         I think a police officer

21   is somebody who's supposed to -- supposed to protect you.

22            MS. KUCERA:      Okay.

23            VENIREPERSON TEAKELL:         He should have a badge or

24   some kind of emblem on his shirt so that you know he's a

25   police officer.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                           30

1              MS. KUCERA:    Okay.   Great.    Mr. Cavinder, could

2    you stand up, please?     This is our investigator.          This is

3    Mr. Cavinder.    I forgot to introduce him, but I'll

4    introduce him to y'all now.      Mr. Cavinder's our

5    investigator.    Can you see anything on him that

6    demonstrates that he's a peace officer?           Ms. Wright, what

7    do you see on him?

8              VENIREPERSON WRIGHT:       The badge.

9              MS. KUCERA:    He's not wearing a police uniform,

10   though, right?    You can see the badge and it demonstrates

11   he's a police officer, correct?

12             VENIREPERSON WRIGHT:       Correct.

13             MS. KUCERA:    Good story about Mr. Cavinder.

14   This morning he sat in the witness chair and he broke it.

15   So that is a sub witness chair.

16             The next thing we're going to do is go through

17   the elements one by one.     So we have the first three and

18   we're going to talk about intentionally.           So the

19   defendant has to have intentionally resisted the arrest,

20   right?   Okay.   Anybody a baseball fan out here?           Yes, oh,

21   I got a small hand.     All right.     Stand up and say your

22   name.

23             VENIREPERSON THOMASON:       Tyler Thomason, No. 11.

24             MS. KUCERA:    No. 11, okay.     What's your favorite

25   baseball team?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                           31

1                VENIREPERSON THOMASON:     The Rangers.

2                MS. KUCERA:    Okay.   Good choice.       Excellent

3    choice.     All right.    So is Yu Darvish the pitcher for the

4    Rangers?

5                VENIREPERSON THOMASON:     Yes, he is.

6                MS. KUCERA:    Good.   Good job.       Okay.   Who is the

7    catcher for the Rangers?       Do you know?

8                VENIREPERSON THOMASON:     There's been three so

9    far.

10               MS. KUCERA:    Okay.   Give me a name, one name.

11               VENIREPERSON THOMASON:     A.J. Pierzynski.

12               MS. KUCERA:    A.J. Pierzynski.        Okay.   So Yu

13   Darvish is the pitcher for the Rangers and A.J.

14   Pierzynski, okay, is the catcher.          Okay.     You're a

15   baseball fan, you said, right?

16               VENIREPERSON THOMASON:     Yes.

17               MS. KUCERA:    Okay.   So let's say the Rangers are

18   playing the Yankees, and it's bottom of the ninth and the

19   Rangers are up one-nothing.        Okay?    There is a man on

20   first base and there's two outs, okay, and the No. 1 home

21   run hitter in the league is going to come up to bat.               All

22   right.     Do you think that it's a possibility that the

23   Rangers might decide to walk that batter?

24               MR. BRILEY:    It's a possibility.

25               MS. KUCERA:    Okay.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        32

 1              VENIREPERSON THOMASON:      Wouldn't be smart, but

 2   it's a possibility.

 3              MS. KUCERA:    Okay.   All right.

 4   Let's pretend that it is a smart idea.         I'm not super

 5   knowledgeable about baseball, but I know this is what

 6   they do.    Okay.   So what do they call that when they

 7   decide to walk the batter?

 8              VENIREPERSON THOMASON:      An intentional walk.

 9              MS. KUCERA:    Very good.    He's doin' great, you

10   guys.    Okay.   So it's an intentional walk, yes.      Okay.

11   So how do you, when you're the batter and/or you're a

12   fan, how do you know that they're going to do an

13   intentional walk?

14              VENIREPERSON THOMASON:      Normally, the catcher

15   will stand up and move over to the side of where the

16   batter stands and hold up that other arm and the pitcher

17   will throw four balls out that way.

18              MS. KUCERA:    Okay.   So nowhere near the strike

19   zone, right?

20              VENIREPERSON THOMASON:      Yes.

21              MS. KUCERA:    Okay.   Now, is the -- so is the

22   pitcher going to talk to the batter?

23              VENIREPERSON THOMASON:      He could, but normally

24   no.

25              MS. KUCERA:    Normally, no, right?     The pitcher

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                             33

1    doesn't normally talk to the batter.             All right.     Does

2    the batter know that he's going to be intentionally

3    walked, though?

4                VENIREPERSON THOMASON:        When he sees the catcher

5    stand up and hold his arm up.

6                MS. KUCERA:     Right.     Very good, yeah.       So the

7    catcher will stand up and stand way outside the batter's

8    box way behind the batter's box, and he'll hold his glove

9    up way outside the strike zone to catch the ball, okay.

10   He doesn't want his pitcher throwing it anywhere near the

11   strike zone, right?        He wants to walk the batter all the

12   way to first base.        Okay?   He wants to throw four balls

13   in a row.     All right.     So would it be fair to say --

14   you're doing great so you're going to keep standing up,

15   okay.

16               So intentionally.        Under the Texas Penal Code,

17   it says a personal acts intentionally or with intent with

18   respect to the nature of his conduct, okay, or to a

19   result of his conduct when his conscious objective or

20   desire is to engage in the conduct or cause the result.

21   Okay?   All right.    I know I say okay a lot.          Just bear

22   with me.     We're going to get through this.          Would it be

23   fair to say in an intentional walk that the pitcher is

24   aware of his conduct?

25               VENIREPERSON THOMASON:        Yes.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                       34

1                MS. KUCERA:   Okay.    So is it also fair to say

2    that he desires to engage in that particular conduct?

 3               VENIREPERSON THOMASON:     Yes.

4                MS. KUCERA:   Okay.    he is standing on the

5    pitcher's mound and intentionally throwing it way outside

6    the batter's box, correct?

 7               VENIREPERSON THOMASON:     Yes.

 8               MS. KUCERA:   Excellent.    All right.   Does he

9    know what the result's gonna be?

10               VENIREPERSON THOMASON:     I would hope he would

11   know.

12               MS. KUCERA:   Right.    One of the two, yeah.

13               VENIREPERSON THOMASON:     But, yes, normally he

14   would.

15               MS. KUCERA:   Yeah.    Normally, he would know,

16   right?     He knows he's gonna walk that batter, okay.

17               VENIREPERSON THOMASON:     Yes.

18               MS. KUCERA:   So he's aware of his conduct,

19   right?     He is acting with intent.     He's intentionally

20   walking.     They call it an intentional walk for a reason.

21   All right.     Does everyone understand where I'm going with

22   this?    We have to recognize we've got a person who's

23   acting with a conscious objective.         He knows what his

24   actions are causing or may cause, okay.         He knows that it

25   may cause this particular result or he is aware of the

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                             35

1    actions that he is currently making.            Okay?     He is acting

2    with purpose.        Everyone understand?      Yes.     You've done

3    beautifully.        Thank you so much.      Have a seat.     All

4    right.     Everyone understand intentionally?            You're

5    nodding.     Great.

 6               Okay.     Now, the next part of the definition we

7    talked about is force, okay.         All right.        What -- let's

8    see.     Mr. Garcia, would you stand up for a second?              Okay.

9    And you are Anthony Garcia.         Excellent.        All right.     What

10   does the word force mean to you?

11               VENIREPERSON GARCIA:      Applying pressure.

12               MS. KUCERA:     Applying pressure, okay.         Good.

13   What -- you can think of it in terms of a person acting.

14   How could they use force?

15               VENIREPERSON GARCIA:      They could use force to

16   get what you want.

17               MS. KUCERA:     Okay.   Let's work on that a little

18   bit.     What would you do if you're using force.            You said

19   apply pressure.        Is there any other ways you could think

20   of that you would use force?

21               VENIREPERSON GARCIA:      Physically.

22               MS. KUCERA:     Okay.   Good.     What might you do if

23   you're using force physically, specifically in terms of

24   this.

25               VENIREPERSON GARCIA:      Use your body, use your,

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                           36

1    you know, arms, whatever you need to do to.

2                MS. KUCERA:     Yeah.    No, you're right.

3    Absolutely.     So you could use your arms.        What about your

4    legs?

5                VENIREPERSON GARCIA:       Yeah.   Arms, legs, teeth.

6                MS. KUCERA:     Great.    You've done well.     Have a

7    seat.     Good job.   So can anyone think of something that

8    might be less than what Mr. Garcia said, which was using

9    his arms, his legs, punching out.          Is there anything else

10   anyone can think of that might possibly be considered

11   force?     Yes, Ms. Parsons.

12               VENIREPERSON PARSONS:       Being a teacher, I think

13   you could also use verbal force, presenting the case to

14   them.     If you don't do this, this is going to happen to

15   you.     To me, that would be a way of forcing the

16   situation, too.

17               MS. KUCERA:     Excellent suggestion.     So that is

18   great.     So we have sort of two extremes here.          We have

19   Ms. Parsons saying that force is, you know, it could be

20   mere words, right?        And then you have Mr. Garcia

21   suggesting using your arms and legs; it's punching out,

22   it's kicking out; it's being aggressive or violent to get

23   force.     That's correct?     Everyone understood Mr. Garcia

24   to say that?     Okay.     What if I were to tell you that the

25   law falls in the middle of those two things, okay.             That

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                           37

1    it has to be more than your words, but it doesn't have to

2    be as excessive as punching out, kicking out, applying

3    pressure, those sorts of things.           Okay.   So this is what

4    the law says.     It says that it's more than mere passive

5    resistance.     Okay.     So I think words might qualify as

6    passive resistance.        But it says that one who uses force

7    to shake off an officer's detaining grip, by pushing or

8    pulling, may be guilty of resisting arrest.            Okay.   So if

9    an officer has a detaining grip -- Ms. Hair, stand up.

10               VENIREPERSON HAIR:      No. 4, Jamie.

11               MS. KUCERA:     Jamie, okay.     When I say detaining

12   grip, what does that word mean to you?

13               VENIREPERSON HAIR:      Like when they have you in

14   handcuffs and I try to pull away or I push them off.

15               MS. KUCERA:     Okay.   Do you think detaining grip

16   could mean something less than being in handcuffs?             Can

17   you think of something that's less detaining?

18               VENIREPERSON HAIR:      Like if they're going to

19   grab me by the shoulder and you push them away or shake

20   them off.

21               MS. KUCERA:     Very good.     Absolutely right, yeah.

22   It can be just a detaining grip.           Now, the law says that

23   one who uses force to shake off an officer's detaining

24   grip whether by pushing or pulling may be guilty of

25   resisting arrest.       Does that sound right?       Do you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                          38

1    understand that?

2               VENIREPERSON HAIR:         Yes.

3               MS. KUCERA:      Okay.     Detaining grip could be

4    less.     Could be -- resisting arrest could be they shake

5    it off, they push, they pull away.           Those are things that

6    the law is talking about that could be resisting arrest.

7    Done great.     Have a seat.        Gonna keep going.

 8               All right.     So this is the second definition of

9    force.    The statute is also satisfied by evidence of

10   jerking against, okay, turning in circles to resist and

11   struggling against an officer's efforts at making an

12   arrest.    Okay?   Mr. Billing, would you stand up, please?

13              VENIREPERSON BILLING:         Douglas Billing, No. 7.

14              MS. KUCERA:      Mr. Billing, the jerking against or

15   turning in circles, what do you think that means to you.

16              VENIREPERSON BILLING:         Basically turning away

17   from the officer.

18              MS. KUCERA:      Okay.     If there is -- yes,

19   absolutely right.        What about struggling against an

20   officer's efforts at making an arrest?             What does that

21   mean?

22              VENIREPERSON BILLING:         I imagine it would be

23   trying to step away from him or get space between you and

24   him.

25              MS. KUCERA:      Okay.     Excellent.    Yes, you're

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                         39

1    absolutely right.     If I were to tell you that the law,

2    like I said, is more than -- have a seat.          Great job.    So

3    we talked about, Ms. Parsons, how that it's more than

4    your words, but it's not -- it doesn't have to be as

5    violent or aggressive as punching or pulling and kicking

6    out.    It can be that.    If, in fact, it is that,

7    that can also be resisting arrest.          But it can also be

8    less than that.     Does everyone understand?       Ms. Vale, do

9    you understand what that means?

10              VENIREPERSON VALE:     Yes.

11              MS. KUCERA:    The law is somewhere between those

12   two, and I've given you two cases that talk about what --

13   something less than words -- or something more than

14   words, less than violence?

15              VENIREPERSON VALE:     Yes.

16              MS. KUCERA:    If that's how the statute is

17   defined, can you follow the law?

18              VENIREPERSON VALE:     Great.     Mr. Billing, you

19   understand?

20              VENIREPERSON BILLING:     Yeah.

21              MS. KUCERA:    Officer Foster?

22              VENIREPERSON FOSTER:     Yeah.

23              MS. KUCERA:    Mr. Garcia, do you understand

24   that?

25              VENIREPERSON GARCIA:     Yeah.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                           40

 1              MS. KUCERA:   And Ms. Hair?

 2              VENIREPERSON HAIR:     Yes.

 3              MS. KUCERA:   Okay.    Ms. Wright, you understand

 4   that?

 5              VENIREPERSON WRIGHT:     Yes.

 6              MS. KUCERA:   Good.    Mr. Teakell, make sense to

 7   you?

 8              VENIREPERSON TEAKELL:     Yes.

 9              MS. KUCERA:   Great.    Ms. Taylor?

10              VENIREPERSON TAYLOR:     I haven't heard from you.

11   I'm probably going to call on you in a second, okay?

12   You'll be great.    Don't worry.     Okay.     Can anyone talk to

13   me about what an arrest means just generally?          What do

14   you think of when you hear the word arrest?

15   Ms. McClesky, stand on up, No. 12.          What do you think of

16   when you hear the word arrest?

17              VENIREPERSON MCCLESKY:        To me it means like if

18   you're doing something wrong, outside the law, you get

19   arrested; you get in trouble.

20              MS. KUCERA:   Okay.    Absolutely right.     What do

21   you think of as an example of when you can get arrested?

22              VENIREPERSON MCCLESKY:        Maybe when you're in a

23   fight with somebody.

24              MS. KUCERA:   Okay.    So let's say -- good.     Great

25   example.    Let's say you are in a supermarket shopping and

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                           41

1    you see two people getting in an argument, right?             You

2    see it.     You tell someone to call the cops.          The cops

3    arrive and they see, physically see, the two people

4    fighting.

5                VENIREPERSON MCCLESKY:       Right.

6                MS. KUCERA:     Do you think it's a reasonable time

7    to arrest them?

8                VENIREPERSON MCCLESKY:       I would think it would

 9   be a reasonable time to detain them.            I don't know if it

10   would result in an arrest.

11               MS. KUCERA:     Okay.    So let's say they -- all

12   right.     All right.     So what they did is they actually

13   physically committed a -- all right.

14   Maybe they -- let's say they stole from the supermarket.

15   You watched them; the officer saw them steal; and then

16   they decided that they had enough to arrest them.             Okay.

17   The officer has physically witnessed the crime.             That

18   would be a reasonable time to arrest them?

19               VENIREPERSON MCCLESKY:       Yes.

20               MS. KUCERA:     Great.    You've done great.

21   Awesome.     Have a seat.     All right.      Ms. Taylor, I told

22   you I was gonna call on you.          You're good.

23               VENIREPERSON TAYLOR:       Yes.     Cheryl Taylor, No.

24   1.

25               MS. KUCERA:     Juror No. 1.      It's a good place to

          CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        42

1    be.    Ms. Taylor, can you think of a time where maybe the

2    officer didn't physically witness the crime occur, but

3    that he would still maybe have showed up later and still

4    have reason to arrest the person who committed the

5    crime?

6                VENIREPERSON TAYLOR:    Yeah, the eyewitnesses

7    and, you know, just what he sees there and --

8                MS. KUCERA:   Excellent.   Okay.   So he may not

9    have seen it, but he shows up later and let's say 15

10   eyewitnesses all tell him the same story and they all

11   point to this person and say I saw it; he committed this

12   crime; you know, I witnessed it.       Does that seem like a

13   reasonable time to make an arrest?

14               VENIREPERSON TAYLOR:    Uh-huh.

15               MS. KUCERA:   Ms. Taylor, you've done great.

16   Have a seat.     Mr. Foster, I'm going to have you stand up

17   again.    What is -- let's say that the police department

18   gets a tip about a crime that may have occurred.         Okay?

19   And then they conduct an investigation.        Right?   Okay.

20   You know, they might conduct interviews.        What else might

21   they do in this investigation?

22               VENIREPERSON FOSTER:    Look at all the evidence

23   involved.

24               MS. KUCERA:   Okay.

25               VENIREPERSON FOSTER:    Witnesses, even speaking

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                         43

1    with the person that's accused and determining what all

2    they have.

3                MS. KUCERA:   All right.    Let's say that they --

4    after doing all that you said, witnesses, reviewing

5    evidence, talking to people, talking to victims, maybe,

6    let's say that they think they're almost positive they

7    know who committed the crime.        Okay.   What would the

8    steps be?     What would happen if that was the case?         What

9    would they do if they were almost positive that was the

10   person who committed the crime?

11               VENIREPERSON FOSTER:     If they had probable cause

12   to believe they committed the crime and it was arrestable

13   at that time, they would go make the arrest.

14               MS. KUCERA:   What would they have to do before

15   they make the arrest, though?        Would they have to see a

16   judge about something?

17               VENIREPERSON FOSTER:     Depends on the

18   circumstances.

19               MS. KUCERA:   Okay.    If I were to tell you they

20   were issued a warrant, what is that?         How does that work?

21   What does that do?

22               VENIREPERSON FOSTER:     Well, that's already

23   signed by a judge ordering the arrest of that person.

24               MS. KUCERA:   Okay.

25               VENIREPERSON FOSTER:     Usually, it's a command to

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                      44

1    the police officer to make that arrest.

2              MS. KUCERA:     Okay.    So that's also another time.

3    If they think they have probable cause to make an arrest,

4    they can go get a warrant issued by what is called a

5    neutral magistrate or a judge to say that you have

6    probable cause to arrest this person; I'm issuing a

7    warrant for this person's arrest?

8              VENIREPERSON FOSTER:       Right.

9              MS. KUCERA:     Is that a fair assessment of how

10   that works?

11             VENIREPERSON FOSTER:       Yes.

12             MS. KUCERA:     So if they have a warrant for the

13   arrest, can they go and make the arrest?

14             VENIREPERSON FOSTER:       Yes.

15             MS. KUCERA:     Great.   Officer, you did good

16   again.   Well done.     So we talked about three different

17   ways that we can make an arrest, right?        One of the ways

18   is the officer personally witnesses the crime.        Okay?

19   The second way is that they show up to the crime later,

20   but all the eyewitnesses confirm what happened and they

21   can arrest the person based on what they've seen at the

22   scene and then also spoken to the eyewitnesses.        Then

23   Mr. Foster talked about the way that they can -- you

24   know, if they, as a result of an investigation, they

25   believe they have probable cause, they get a warrant

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                          45

 1   issued for his arrest and they can go make the arrest of

 2   that person.     Anybody have any questions about those

 3   three ways that we talked about?           Feel free to raise your

 4   hand.     It's okay.     I can go slower.     Everyone got it?

 5   Okay.     All right.     So very good.

 6               All right.     So warrants and arrests.        We kind of

 7   talked about it briefly.        We'll go into a little more

 8   detail.     The Texas Code of Criminal Procedure says that

 9   officers executing an arrest warrant, which is the type

10   that Mr. Foster talked about, they must have a reasonable

11   belief, okay, that the suspect resides at the place to be

12   entered and they must also have reason to believe the

13   suspect is present at the time the warrant is executed.

14               All right.     I'm going to try and explain that a

15   little bit but use you guys to explain.              All right.   Now,

16   when -- Mr. Teakell, stand up again.              You're doing great.

17               VENIREPERSON TEAKELL:        No. 2.

18               MS. KUCERA:     Okay.   If I were to say that the

19   officers executing an arrest warrant must have a

20   reasonable belief, okay, that the suspect resides at that

21   time place that they are entering in order to arrest him,

22   what does reasonable belief mean to you.

23               VENIREPERSON TEAKELL:        He has information that

24   he's there.

25               MS. KUCERA:     Okay.   Does that mean they have to

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                             46

1    know 100 percent that sure he's there.

2                VENIREPERSON TEAKELL:     I wouldn't think so.

3                MS. KUCERA:   Right.    Reasonable belief doesn't

4    say hundred percent.      It just says reasonable belief,

5    okay.     What do you think they could use to find out --

6    let's say it's his home.      What do you think they could

7    use to find out that he is at the home at the time.

8                VENIREPERSON TEAKELL:     Information that he lives

9    there, his neighbors, whoever lives there, if he lives

10   there.

11               MS. KUCERA:   Okay.    Great.    Have a seat.     You've

12   done great.     See, I told you guys he this is easy.          So

13   reasonable belief that he's there.          What about -- let's

14   see.     Ms. Schmidt, stand up.

15               VENIREPERSON SCHMIDT:     Tina Schmidt, No. 13.

16               MS. KUCERA:   Okay.    Ms. Schmidt, we talked about

17   they had information or talked to their neighbors.             What

18   other information do you think they might be able to use

19   to determine if they have a reasonable belief that that

20   person's home?

21               VENIREPERSON SCHMIDT:     If they've done any

22   surveillance or checked his work record, his work, know

23   he's off and when he would probably be home.

24               MS. KUCERA:   Great.    That's excellent.       You're

25   absolutely right.     That is something they could use.             He

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                            47

1    works at this time every day; he comes home from work,

2    checks the mail.      Excellent.     Very, very good.      All

3    right.     It also says in the second part of the definition

 4   that they also have reason to believe that the suspect is

5    present at the time the warrant is executed.             So we

6    talked about how we might know that he's at that

7    particular place.      How would we know that he's actually

8    present?

9                VENIREPERSON SCHMIDT:      Someone had watched him

10   go in, set up surveillance and seen him come and go,

11   maybe some other neighbors or something.

12               MS. KUCERA:   What about if his car is in the

13   driveway?

14               VENIREPERSON SCHMIDT:      Yeah.

15               MS. KUCERA:   Would that make sense that he was

16   there?

17               VENIREPERSON SCHMIDT:      That seems reasonable.

18               MS. KUCERA:   Very excellent.        Done great.     Have

19   a seat.     Okay.   All right.     So warrants and arrests in

20   Texas.     We talked about how the -- that particular case

21   that we're talking about that defines when officers can

22   make an arrest using a warrant, that comes from the

23   Supreme Court of the United States.            Okay.   So the

24   Supreme Court is the highest court in the whole land.

25   Every court in the nation has to follow what they say.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                           48

1                Now, state courts like the Texas Supreme Court

2    can qualify what the Supreme Court says and help the

3    lower courts understand.      That's what happens in this

4    case.     So I'm going to explain to you warrants and

 5   arrests in Texas, okay.      So in Texas, a warrant for a

6    Class C offense -- anyone know what a Class C offense

7    is?     Someone I haven't heard from?       Class C offense?

8    Anyone.     Okay.

9                VENIREPERSON RIPPERGER:     Debbie Ripperger, 20.

10   A Class C is a misdemeanor.

11               MS. KUCERA:   It is a misdemeanor.         Good, yes.

12   If I were to say a speeding ticket is a Class C offense,

13   does that sound like that's a correct answer?

14               VENIREPERSON RIPPERGER:     Yes.

15               MS. KUCERA:   Yes, you are correct.         So a

16   speeding ticket is a Class C offense.          Okay.     Very good.

17   All right.     So what this case says is that a warrant for

18   a Class C offense and failure to appear warrant, which

19   is, you know, can be enough to justify entry into a

20   defendant's home to make an arrest.          The officers still

21   have to have reason to believe that the defendant is home

22   at that time, okay.

23               So what I'm gonna try to explain is -- who's

24   going to be the lucky person?       Mr. Litteken?        You're

25   good.

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                            49

1               VENIREPERSON LITTEKEN:      No. 9, Gerald Litteken.

2               MS. KUCERA:   Ms. Ripperger suggested that a

3    Class C offense is a misdemeanor.        We classify offenses,

4    I guess, in two different ways.        We have misdemeanors and

5    then we have the more serious offenses.           Do you know what

6    those are called?

7               VENIREPERSON LITTEKEN:      A felony.

8               MS. KUCERA:   Felony.     Very good.     So if I tell

9    you a felony is more serious than a misdemeanor, and I'm

10   telling you that the Court says that we can or that

11   officers, if they have a reason to believe that the

12   defendant is home at that time, they can make an arrest

13   for not only something as serious as a felony, but also

14   something for a Class C misdemeanor, which is the lowest

15   offense.    Does that right?     Does that make sense?      Do you

16   understand that?

17              VENIREPERSON LITTEKEN:      Uh-huh.

18              MS. KUCERA:   Okay.     So if I were to tell you

19   that the law says they can make an arrest by a Class C

20   offense if they believe that the defendant is home at

21   that time, does that sound like something that you could

22   follow if I tell you that if the judge instructs you that

23   if you believe that the officers had reason to believe

24   that they could make an arrest, that you could follow the

25   judge's instructions?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        50

1               VENIREPERSON LITTEKEN:        Sure.

2               MS. KUCERA:   What about you, Ms. Taylor?

3               VENIREPERSON TAYLOR:      No. 1.

4               MS. KUCERA:   If you believe that the officers

5    had reason to believe that they were making -- that the

6    defendant was home and that they could arrest him for

7    something as low as a Class C offense, but also something

8    that's as serious as a felony, that they could go into

9    his home and make an arrest?

10              VENIREPERSON TAYLOR:      Yes.

11              MS. KUCERA:   If the judge told you that that was

12   something, an instruction you have to follow, you could

13   do that?

14              VENIREPERSON TAYLOR:      Yes.

15              MS. KUCERA:   Okay.    Good.      What about you,

16   Mr. Teakell?

17              VENIREPERSON TEAKELL:      I believe that's correct.

18              MS. KUCERA:   Okay.    You could follow the judge's

19   instructions?

20              VENIREPERSON TEAKELL:      Yes.

21              MS. KUCERA:   Great.     Ms. Wright, what about you?

22              VENIREPERSON WRIGHT:      Yes.

23              MS. KUCERA:   Okay.    Ms. Hair?

24              VENIREPERSON HAIR:     Yes.

25              MS. KUCERA:   Perfect.     Mr. Garcia, do you think

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        51

1    you could follow those instructions?

2             VENIREPERSON GARCIA:     Yes.

3             MS. KUCERA:   Okay.    Do you have any questions

4    about what we talked about?

5             VENIREPERSON GARCIA:     No.

6             MS. KUCERA:   Mr. Foster, what about you?

 7            VENIREPERSON FOSTER:     Yes.

8             MS. KUCERA:   You could?

9             VENIREPERSON FOSTER:     I think I could.

10            MS. KUCERA:   What about you, Mr. Billing?

11            VENIREPERSON BILLING:      Yes.

12            MS. KUCERA:   And Ms. Vale?

13            VENIREPERSON VALE:     Yes.

14            MS. KUCERA:   Ms. McKinley, is that something you

15   could you follow?

16            VENIREPERSON MCKINLEY:        Yes.

17            MS. KUCERA:   Okay.    Ms. Steele?

18            VENIREPERSON STEELE:     Yes.

19            MS. KUCERA:   Great.    Mr. Jantz, is that correct?

20            VENIREPERSON JANTZ:     Yes, ma'am.

21            MS. KUCERA:   Okay.    Is that something you could

22   follow if it's an instruction?

23            VENIREPERSON JANTZ:     Yes, ma'am.

24            MS. KUCERA:   If you believed that officers had

25   reasonable belief to be in the home that they could

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                         52

1    arrest the defendant for something like a felony or Class

2    C offense, they could enter his home to do that?

3             VENIREPERSON JANTZ:      Yes, ma'am.

4             MS. KUCERA:   Okay, great.        And Ms. Schmidt?

5             VENIREPERSON SCHMIDT:      Yes.

6             MS. KUCERA:   Good.     And Ms. McClesky?

7             VENIREPERSON MCCLESKY:      Yes.

8             MS. KUCERA:   Mr. Thomason, my baseball guy?

9             VENIREPERSON THOMASON:      Yes.

10            MS. KUCERA:   You could do that.        All right.

11   Mr. Vasquez, what about you?

12            VENIREPERSON VASQUEZ:      Yes.

13            MS. KUCERA:   Great.     Okay.     All right.   So we're

14   going to review what we talked about to make sure you

15   understand the Penal Code.      We have to prove that

16   Mr. Roberson, on or about July 10th of 2012, in Wichita

17   County, Texas, did then and there intentionally -- my

18   baseball fan over here gave us a definition of

19   intentionally, right -- did then and there obstruct

20   Gabriel Vasquez, a person the defendant knew was a peace

21   officer, from effecting an arrest of the defendant by

22   using force against said peace officer.

23            And Mr. Garcia and Ms. Parsons gave us the range

24   of or definition of force, right?         Everyone got it?

25   Everyone understand?   Okay.     All right.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                       53

1              So the next thing we're going to talk about is

2    the burden of proof.        Anyone here know what the burden of

3    proof is in a criminal case?         Some of you have served on

4    a criminal jury before; is that correct?           Anyone remember

5    what the burden is?     Anybody.

6              VENIREPERSON BILLING:        Beyond a reasonable

7    doubt.

8              MS. KUCERA:       Mr. Billing.     Stand up.   You got it

9    right.   Five points.       What did you say?

10             VENIREPERSON BILLING:        Beyond a reasonable

11   doubt.

12             MS. KUCERA:       Beyond a reasonable doubt.

13   Mr. Billing, great job.        That is true.     Beyond a

14   reasonable doubt is the standard that Victoria and I will

15   have to approve to you the elements of the case that we

16   just went over, okay.        All right.    So beyond a reasonable

17   doubt, what is it?      Do you have a suggestion for what

18   beyond a reasonable doubt is, or is it self-explanatory?

19             VENIREPERSON BILLING:        It's self-explanatory.

20             MS. KUCERA:       Okay.   By the way, you're doing a

21   great job.     Thank you.     All right.     Let me tell you what

22   beyond a reasonable doubt is not.          It's not beyond all

23   doubt, okay.     It's not beyond the shadow of a doubt or

24   not beyond any doubt, okay.         It's beyond a reasonable

25   doubt, okay.     So you can have a doubt, but it has to be

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                         54

 1   based in reason.    All right.

 2            This is the best example I could come up with.

 3   I'm going to try to help you understand what beyond a

 4   reasonable doubt means.     I don't know if you guys are

 5   familiar with the process of law school, but we have

 6   professors and they teach us different subjects.       My

 7   professor, which I lovingly refer to, we call him Uncle

 8   Murray, of course not in class.      But his name is

 9   Professor Tabb.    He taught us contracts and torts and a

10   class called law and literature.

11                All right.     In torts, they were things like

12   were they acting with negligence or were their actions

13   reasonable under the circumstances?       Torts is civil, so

14   we don't have to worry about that right now.       But the

15   reason I bring up Professor Tabb is that he kept

16   explaining to us that the courts, when they're doing

17   negligence evaluations, always use a demonstration of the

18   reasonable man.    So it kind of became a joke in our law

19   school class that Professor Tabb, who drinks coffee; he's

20   a deacon at his church and loves the book to kill a

21   mocking bird; he wears argyle, has the same cup of coffee

22   every morning; he's just Mr. Practical.       So we used to

23   joke that he was a reasonable man.       What Mr. Tabb thinks

24   is reasonable may not be the same thing that Mr. Garcia

25   thinks is reasonable.     Okay?   Reasonableness is sort of

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                        55

1    subjective.     It's what each individual thinks is

2    reasonable.     Okay?     everyone understand what I'm talking

3    about?

4                All right.     Is there anyone in here that is a

5    television fan of, let's say, NBC's, in the late 90's,

6    the Must See TV lineup?        Anyone watch those shows?

7    Seinfeld?     Frasier?     Mr. Jantz, all right.    All right.

8    Mr. Jantz, stand up for just a second.

9                VENIREPERSON JANTZ:       Fourteen, Chris Jantz.

10               MS. KUCERA:     Okay.    Mr. Jantz, you watched that

11   lineup, right?     You watched Seinfeld?       Frasier?     Did you

12   watch the whole lineup?        Did you watch Friends as well?

13               VENIREPERSON JANTZ:       I watched them all.

14               MS. KUCERA:     Great.    Okay, so you're familiar

15   with the shows then?

16               VENIREPERSON JANTZ:      Yes.

17               MS. KUCERA:     Okay.    If I were to show you this

18   picture, could you tell me what that's a picture of?             Not

19   a trick question.

20               VENIREPERSON JANTZ:       Some of the friends.

21               MS. KUCERA:     Okay.    Do you see those parts that

22   are blacked out?

23               VENIREPERSON JANTZ:       Yes, ma'am.

24               MS. KUCERA:     Okay.    So do you see there are two

25   people that are sort of blacked out, but you can see that

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                           56

1    they're still in the photograph, right?

2              VENIREPERSON JANTZ:     Yes, ma'am.

3              MS. KUCERA:   So if I were to ask you what that's

4    a picture of, what would you say?

5              VENIREPERSON JANTZ:     Some of the friends.

6              MS. KUCERA:   Okay.    How many friends are there?

7    Do you remember?

8              VENIREPERSON JANTZ:     Six.

9              MS. KUCERA:   Six.    Very good.     Are there six

10   people in the photo?

11             VENIREPERSON JANTZ:     Yes.

12             MS. KUCERA:   Yes, there are.       So it is a picture

13   of the cast of Friends.    Mr. Jantz, you are correct.         It

14   is a picture of the cast of Friends.         Anyone else

15   recognize that photograph?      Okay.     All right.

16   Ms. Wright, do you recognize that photograph?

17             VENIREPERSON WRIGHT:     Yes.

18             MS. KUCERA:   Did you watch Friends?

19             VENIREPERSON WRIGHT:     I did.

20             MS. KUCERA:   Okay.    Stand up.     Mr. Jantz, good

21   job.   Ms. Wright, you watched Friends, right?

22             VENIREPERSON WRIGHT:     Yes.

23             MS. KUCERA:   Okay.    Did you look at this picture

24   and also know that it was the cast of Friends?

25             VENIREPERSON WRIGHT:     Yes.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                          57

1               MS. KUCERA:   Okay.    Now, let me ask you this.

 2   You can't see the whole picture, right?

 3              VENIREPERSON WRIGHT:     Right.

 4              MS. KUCERA:   But you can see four of them and

 5   you can see that there are two other people in that

6    photograph; is that correct?

 7              VENIREPERSON WRIGHT:     That's correct.

8               MS. KUCERA:   Okay.    Now, did you know beyond a

 9   reasonable doubt that it was the cast of Friends?

10              VENIREPERSON WRIGHT:     No.

11              MS. KUCERA:   You didn't?      Okay.   Why not?

12              VENIREPERSON WRIGHT:     The left hand side of the

13   picture is faded.

14              MS. KUCERA:   Okay.    We talked with Mr. Jantz

15   about how he liked the Must See TV lineup, all that kind

16   of stuff, right?     He talked about how he liked the show

17   Friends.    Okay.   And if I were to show you a picture and

18   you could see four of them, but you couldn't see the

19   other two --

20              VENIREPERSON WRIGHT:     I would assume that it's

21   the cast of Friends.

22              MS. KUCERA:   Okay.    Yes, you would assume that

23   it's the cast of Friends, right?

24              VENIREPERSON WRIGHT:     Right.

25              MS. KUCERA:   Okay.    Let me ask you this.       Do you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                           58

 1   think if I was doing a demonstration that it would be,

 2   let's say, reasonable for me to put four of the cast of

 3   Friends but two people that are like arbitrary and aren't

4    related.     Does that seem like a reasonable thing that I

 5   would do?

 6               VENIREPERSON WRIGHT:        No.

7                MS. KUCERA:     No.     Okay.     So maybe it would be

 8   fair to say that you knew or your assumed beyond a

 9   reasonable doubt that that was the cast of Friends?

10   Okay?

11               VENIREPERSON WRIGHT:        I assumed, yes.

12               MS. KUCERA:     Yes, okay.        Have a seat.   Great

13   job.

14               Okay.   Now, in this particular case, you know, I

15   obviously was trying to do a demonstration where I

16   blacked out some of the photographs because you can't see

17   the whole picture.        In this particular case, if you --

18   let's say Officer Foster was on duty that day and he

19   witnessed the entire event taking place, we would

20   probably call him as a witness, correct?              He saw the

21   whole thing take place, right?              He would be a witness in

22   that case.     He would have seen all the elements take

23   place of that offense.        So we would call him as a

24   witness.     So he couldn't be a juror because he would have

25   seen the whole picture.           Understand?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                           59

1              So in this case we're going to bring in

2    witnesses who will tell you what they saw and try to fill

3    in as much of the picture as they can.         There may be

4    things blacked out, but they're going to try to give you

5    as much of the picture that happened.         Now, I'm going to

6    ask each of you if you can follow the law and not hold

7    the State to a higher burden than beyond a reasonable

8    doubt, okay.   Understand what I'm asking you?

9              All right.     Ms. Taylor, I'll have you stand up

10   again.   All right.     Do you think that you can --

11   reasonable is different for each person, right?

12             VENIREPERSON TAYLOR:     Yes.

13             MS. KUCERA:     We talked about that.     Okay.     So

14   your definition of reasonable may be different than

15   Mr. Teakell's, right?

16             VENIREPERSON TAYLOR:     Uh-huh.

17             MS. KUCERA:     Do you think that you can still

18   promise not to hold the State to a higher burden than

19   beyond a reasonable doubt?      Can you do that?

20             VENIREPERSON TAYLOR:     I think so.

21             MS. KUCERA:     Is that yes?

22             VENIREPERSON TAYLOR:     Yes.

23             MS. KUCERA:     Yes or no only.

24             VENIREPERSON TAYLOR:     Yes.

25             MS. KUCERA:     All right.     Mr. Teakell, can you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                           60

1    stand up?     We talked about this.        Beyond a reasonable

2    doubt.   It's different for you.          Professor Tabb is the

3    epitome of practicality.      His may be different than

4    yours.   Can you promise not to hold the State to a higher

5    burden than beyond a reasonable doubt?

6                VENIREPERSON TEAKELL:      Yes.

7                MS. KUCERA:   You can.     Excellent.     Great job.

8    Ms. Wright, stand up again.        All right.      Do you think

9    that you could promise not to hold the State to a higher

10   burden than beyond a reasonable doubt?

11               VENIREPERSON WRIGHT:      Yes.

12               MS. KUCERA:   Okay.    And you could be fair in

13   this case?

14               VENIREPERSON WRIGHT:      Yes.

15               MS. KUCERA:   Great.     Have a seat.     Ms. Hair.

16   All right.     Do you understand that reasonableness is

17   different for each person?

18               VENIREPERSON HAIR:     Yes.

19               MS. KUCERA:   Okay.    And you're not going to

20   require us to fill in the whole picture, just the same

21   standard that's beyond a reasonable doubt, and that's

22   reasonable in your mind?

23               VENIREPERSON HAIR:     Yes.

24               MS. KUCERA:   Have a seat.        Mr. Garcia, stand up.

25   Same question.     Do you think that you can -- you can

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                         61

1    promise not to hold the State to a higher burden than

2    beyond a reasonable doubt in this case?         You're not going

3    to require us to fill out every single detail of every

4    picture, but you're gonna hold us to the standard of

5    beyond a reasonable doubt?      And reasonableness is your

6    own opinion.

7              VENIREPERSON GARCIA:     The State?

8              MS. KUCERA:   Well, okay.       Let me say this.

9    You're not going to hold the State to a higher burden

10   than beyond a reasonable doubt?

11             VENIREPERSON GARCIA:     Yes.

12             MS. KUCERA:   Okay.    All right.     Have a seat.

13   Mr. Foster, could you please stand up.

14             VENIREPERSON FOSTER:     Yes to the question you

15   asked No. 5, Mr. Garcia.

16             MS. KUCERA:   Okay.    All right.     Just -- I know,

17   I know.   Do you think that you can hold -- promise not to

18   hold the State to a higher burden than beyond a

19   reasonable doubt?

20             VENIREPERSON FOSTER:     Yes.

21             MS. KUCERA:   What's reasonable is different to

22   you than Mr. Garcia, than Ms. Hair, than Ms. Wright.

23             VENIREPERSON FOSTER:     I promise.

24             MS. KUCERA:   Okay.    Mr. Billing, do you

25   understand what we're talking about when we say beyond a

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                           62

1    reasonable doubt?

2             VENIREPERSON BILLING:        Yes.

3             MS. KUCERA:     You said it's self-explanatory; you

4    understand it.     Very good.     And you promise not to hold

5    the State to a higher burden than beyond a reasonable

6    doubt?

7             VENIREPERSON BILLING:        Yes.

8             MS. KUCERA:     Okay.     And that you're not going to

9    require us to fill the whole picture, but just beyond a

10   reasonable doubt to you, with reasonableness as your own

11   definition?

12            VENIREPERSON BILLING:        Yes.

13            MS. KUCERA:     Have a seat.        Doing great.

14   Ms. Vale, same question.        Do you promise not to hold the

15   State to a higher burden than beyond a reasonable doubt?

16            VENIREPERSON VALE:        (Nods head) I will.

17            MS. KUCERA:     Now, I'll try to go a little bit

18   slower, but I need a confirmation.           I need a yes or a no

19   from each juror.     Mr. Litteken, can you promise not to

20   hold the State to a higher burden than beyond a

21   reasonable doubt?

22            VENIREPERSON LITTEKEN:        Yes, ma'am.

23            MS. KUCERA:     Mr. Vasquez?

24            VENIREPERSON VASQUEZ:        Yes.

25            MS. KUCERA:     Okay.     Mr. Thompson?     I'm sorry.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        63

1    Mr. Thomason?

 2            VENIREPERSON THOMASON:      Yes.

3             MS. KUCERA:   Okay.    Ms. McClesky?

4             VENIREPERSON MCCLESKY:      Yes.

5             MS. KUCERA:   Ms. Schmidt?

6             VENIREPERSON SCHMIDT:      Yes, I can.

 7            MS. KUCERA:   Mr. Jantz?

8             VENIREPERSON JANTZ:     Yes, ma'am.

9             MS. KUCERA:   Okay.    Ms. Steele?

10            VENIREPERSON STEELE:     Yes.

11            MS. KUCERA:   Ms. McKinley?

12            VENIREPERSON MCKINLEY:      Yes.

13            MS. KUCERA:   And Mr. Davis?

14            VENIREPERSON DAVIS:     Yes.

15            MS. KUCERA:   Ms. Parsons?

16            VENIREPERSON PARSONS:      Yes.

17            MS. KUCERA:   And Ms. Reno?

18            VENIREPERSON TREJO:     Yes.

19            MS. KUCERA:   Okay.    And Ms. Ripperger?

20            VENIREPERSON RIPPERGER:        Yes.

21            MS. KUCERA:   What about you, Ms. Logsdon?

22            VENIREPERSON LOGSDON:      Yes.

23            MS. KUCERA:   And Mr. Young?

24            VENIREPERSON YOUNG:     Yes, ma'am.

25            MS. KUCERA:   Okay.    And Mr. Chavez?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        64

1               VENIREPERSON CHAVEZ:     Yes.

2               MS. KUCERA:   Okay.    All right.

3               So one of the things we're going to talk about

4    is a lot of times in the case the defense is going to

5    assert, properly named, a defense, right.       In this case,

6    the Penal Code provides a defense of self-defense, okay.

7    Now, in the case of resisting arrest, can anyone think of

8    a reason why the legislature might carve out a defense of

9    self-defense?    Any reason?     Let me ask it this way.

10   Mr. Foster, how long have you been an officer?

11              VENIREPERSON FOSTER:     Total of 15 years.

12              MS. KUCERA:   So quite a while?

13              VENIREPERSON FOSTER:     Yes.

14              MS. KUCERA:   Okay.    In your 15 years, using your

15   own observations and your own experiences, are you aware

16   of that there are good cops and there are occasionally

17   maybe a cop that isn't the best at being a cop; is that

18   correct?

19              VENIREPERSON FOSTER:     Any time you have humans

20   doing a job, there's going to be some.

21              MS. KUCERA:   Okay.    So is it fair to say that

22   there might be a time when an officer might potentially

23   abuse his authority?

24              VENIREPERSON FOSTER:     Yeah.

25              MS. KUCERA:   And it doesn't happen often, but

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       65

1    they might abuse their authority; okay?

2              VENIREPERSON FOSTER:     Right.

3              MS. KUCERA:    Is that fair?

4              VENIREPERSON FOSTER:     Yeah, that's fair.

5              MS. KUCERA:    So in resisting arrest, can you

6    think of a reason why they might allow in a limited

7    circumstance this defense of self-defense?

8              VENIREPERSON FOSTER:     Yeah, if you had an

9    officer who was -- their intent was hurting or killing

10   that person or using excessive force to inflict serious

11   bodily injury or death, I think the law would allow for a

12   person to fight back in that instance.

13             MS. KUCERA:    That's an excellent point.      If it's

14   the officer's goal to use physical violence, you know,

15   that person might be able to defend themselves against

16   something that severe?

17             VENIREPERSON FOSTER:     Yes.

18             MS. KUCERA:    Is that what you're saying?

19             VENIREPERSON FOSTER:     Yes.

20             MS. KUCERA:    Okay.   Does everyone understand

21   what Officer Foster is saying?      That they could protect

22   themselves from that kind of extreme violence.        All

23   right.   This is the statutory definition of self-defense

24   in this type of case, in resisting arrest.      "The use of

25   force to resist an arrest is justified," -- all right,

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                       66

1    the statute says it's limited, but allowed in this

2    particular circumstance:      "if, before the actor", who is

3    the person who is being arrested, "offers any

 4   resistance."     So if before the actor offers any

5    resistance -- which means, we talked about what resisting

6    arrest means, shake off a grip, twist, turn, step away

 7   from the officer.     Those are all types of resisting

8    arrest, right?     "If before the actor offers any

9    resistance at all, the peace officer uses or attempts to

10   use what we call greater force than necessary," all

11   right, "to make an arrest."

12               So that's the first part of the definition.

13   Let's see.     Mr. Vasquez, can you stand up for me?

14               VENIREPERSON VASQUEZ:    Ten, Thomas Vasquez.

15               MS. KUCERA:   Okay.   If I were to give you this

16   scenario:     A seven-year-old walks into Walgreen's, and

17   she takes -- let's see.      I don't even know if they sell

18   iPods at Walgreen's, but let's pretend that they do.        So

19   let's say this seven-year-old really wants an iPod and,

20   okay, and she takes an iPod and goes out of the store

21   with it.

22               And let's say Officer Foster is in the store.

23   He witnesses the seven-year-old take the iPod out of the

24   store, and he runs up to the seven-year-old when she

25   exits the store, and he uses his taser on a seven-year-

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                            67

1    old girl in pig tails and a girl scout uniform, okay.

2    And he takes her to the ground because, you know what,

3    she committed an offense and that is against the law.

4    Okay?   If I were to give you that scenario, would you

5    think tasing a seven-year-old would be maybe greater

6    force than necessary?

7               VENIREPERSON VASQUEZ:     Yes.

8               MS. KUCERA:   Okay, great.       You've done great.

9    Have a seat.     All right.   Now, officer foster, would you

10   tase a seven-year-old if she stole an iPod?

11              VENIREPERSON FOSTER:     No.

12              MS. KUCERA:   Okay.    But is that protocol to tase

13   a seven-year-old for stealing an iPod?

14              VENIREPERSON FOSTER:     No.

15              MS. KUCERA:   Okay, good.       So greater force than

16   necessary, you get an idea of what that means.           Can you

17   think of another example of greater force than

18   necessary?     I gave you a seven-year-old taking an iPod.

19   Mr. Vasquez, I know I had you stand up a second ago, but

20   can you give another example of greater force than

21   necessary?

22              VENIREPERSON VASQUEZ:     No.     I mean --

23              MS. KUCERA:   Yes, Mr. Garcia.       A suggestion.      I

24   love it.

25              VENIREPERSON GARCIA:     Multiple cops if they're

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                       68

 1   not resisting --

2                MS. KUCERA:   Okay.

 3               VENIREPERSON GARCIA:     -- putting up that much of

 4   a fight.     Or if he's willing to go, but then you've got

 5   like five or six cops that slam down and take him down.

 6               MS. KUCERA:   Yes.    He's not resisting at all and

 7   25 cops pull up in their squad cars and start wailing on

 8   this guy.     Yeah, that's what we consider greater force

 9   than necessary.      The stipulation is if it's only before

10   the actor offers any resistance.        So if he offers

11   resistance in this case, then it doesn't qualify for the

12   self-defense, and then they're allowed to use certain

13   necessary force to arrest him, right?        Make sense?

14               Remember, we've got to keep the people safe;

15   we've gotta keep the cops safe; we've gotta keep the

16   defendant safe.      We've gotta keep everybody involved in

17   this particular situation safe, right?

18               Okay.   Now, the second part of this definition

19   is this.     And it's two parts, right?     He's got to meet

20   this standard and he's got to meet this standard.          "When

21   and to the degree the actor reasonably believes that the

22   officers are using greater force than necessary to arrest

23   him, and he thinks it's immediately necessary to protect

24   himself.     So not only can the actor not resist arrest

25   first, but he's got to be passive and, I don't know, very

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                           69

1    stoic, and he's got to reasonably believe that force is

2    immediately necessary to protect himself against the

3    greater force than necessary the officer is using.

4                To use the seven-year-old, for example.        If he

5    pulls out his weapon and is aiming to tase her, she

6    hasn't resisted arrest yet; she's only walked out of the

7    store.     She's got to reasonably believe that he's going

8    to use the taser on her and that he's using greater force

9    than necessary, and then she can act in self-defense,

10   right?     Everyone understand?     Okay.     Ms. Hair, you're

11   nodding.     You understand?

12               VENIREPERSON HAIR:     Uh-huh.

13               MS. KUCERA:   Ms. -- I can do this.       Ms. Wright,

14   you understand?

15               VENIREPERSON WRIGHT:     Yes.

16               MS. KUCERA:   Mr. Teakell?

17               VENIREPERSON TEAKELL:     Yes.

18               MS. KUCERA:   Make sense?       Mr. Teakell, you

19   understand that's a limited circumstance, right?           They

20   can't have resisted first, and they have to reasonably

21   believe that the officers are using greater force than

22   necessary and that they need to use force in order to

23   protect themselves from the greater force than necessary

24   the officers are using.        Everyone understand?     Limited

25   circumstance, right?      Ms. Parsons?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                            70

1             VENIREPERSON PARSONS:     Let me see if I'm

2    understanding.

3             MS. KUCERA:   Okay.

4             VENIREPERSON PARSONS:     So to reasonably believe

5    this,

6             MS. KUCERA:   Uh-huh.

7             VENIREPERSON PARSONS:     -- the person that

8    they're going to arrest, in their mind, they have to be

9    seeing something in the demeanor of the police officers

10   or something that they can verifiably say, They were

11   going to do this or that, and that's why I resisted?

12            MS. KUCERA:   Right.    Yes.    To answer your

13   question, you are correct and I'm going to help you

14   through that, all right.   So the first part is that they

15   can't have resisted at all before the actor -- it has to

16   happen before the actor offers any resistance, okay.          And

17   the actor has to believe that the officers are using

18   greater force than necessary to make the arrest.          Okay?

19   So they have to meet those two things.       And the second

20   part of the definition -- and this is kind of where it

21   gets confusing -- the person who is being arrested has to

22   reasonably believe that the force is immediately

23   necessary -- he has to believe it right then -- to

24   protect himself against the police officer's use of

25   greater force than necessary.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                            71

 1             VENIREPERSON PARSONS:         Right.     That's what I'm

 2   saying.

 3             MS. KUCERA:      Uh-huh.

 4             VENIREPERSON PARSONS:         To think that he was

 5   reasonable in doing that, who would purposely do that to

 6   make their situation worse?          He would have to, in my

 7   mind, be seeing something that alerts him to, hey, this

 8   is not right.     I do need to act.

 9             MS. KUCERA:      Absolutely right, yes.        There would

10   need to be some reason that he thought he needed to use

11   that force.     It would be, like I was saying, immediately

12   necessary.    Okay?     Great.    You've done a great job.

13   That's a great question.         Does everyone else understand?

14   Does everyone else agree with Ms. Parsons' understanding

15   of what we talked about, about this wonderful example of

16   self-defense?     Great.

17             VENIREPERSON TAYLOR:         Yes.

18             MS. KUCERA:      Great.     Okay.     We're almost done.

19   All right.    How do you evaluate truthfulness?           Does

20   anyone have children?       I haven't heard from you yet.         You

21   are Ms. Steele.       Ms. Steele, how many children do you

22   have?

23             VENIREPERSON STEELE:         I have five.

24             MS. KUCERA:      Oh my gosh.        This is good.   This is

25   a great question for you.         All right.      so you've got five

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                        72

1    children.     How old are they?

 2               VENIREPERSON STEELE:     Two stepchildren --

3                MS. KUCERA:   Okay.

 4               VENIREPERSON STEELE:     -- but 16, 15, two

5    12-year-olds and a two-year-old.

6                MS. KUCERA:   Oh my goodness.    That is awesome.

7    Have your children ever lied to you before?

8                VENIREPERSON STEELE:     Yes.

9                MS. KUCERA:   Okay.    How do you know they're

10   lying?

11               VENIREPERSON STEELE:     Sometimes it's very

12   obvious that they're lying, and sometimes I know by their

13   demeanor that they're not being truthful with me.

14               MS. KUCERA:   Okay.    Fair enough.   What in their

15   demeanor suggests to you that they might be lying?

16               VENIREPERSON STEELE:     Well, my oldest son

17   doesn't look me in the eye, and my 15-year-old daughter

18   gets real fidgety.

19               MS. KUCERA:   Okay.    She shifts her weight,

20   doesn't look you in the eye.

21               VENIREPERSON STEELE:     Yeas.

22               MS. KUCERA:   What else?

23               VENIREPERSON STEELE:     And my middle daughter

24   gets very -- her voice gets kind of shaky.         I can tell in

25   the tone of her voice she's not really being honest with

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        73

1    me.

2                MS. KUCERA:   Very good.    Those are all things to

3    think about that someone might want, right?          Okay.

4    Mr. -- raise your hand if you have children again.

5    Ms. Taylor, all right.      Ms. Taylor, how many children do

6    you have?

7                VENIREPERSON TAYLOR:     Two.

8                MS. KUCERA:   Okay.    Did you agree with what

9    Ms. Steele said about how you tell someone's lying?

10               VENIREPERSON TAYLOR:     Yes.

11               MS. KUCERA:   Okay.    Would you have anything to

12   add to that?     Are there some other things you can look

13   for?

14               VENIREPERSON TAYLOR:     Well, like if you're

15   questioning one of them about something and they get real

16   defensive with you, like, you know, kind of angry and

17   defensive and they're -- one of mine, I have trouble with

18   that.

19               MS. KUCERA:   Okay.    Very good.    So has anyone

20   seen the YouTube video -- Ms. Hair, you may be my only

21   hope for this, but it's a mom who's questioning her child

22   about whether or not he ate a cupcake, and he's got

23   sprinkles all over his face and it's all on his ears and

24   eyes, and he is, I mean, standing there and he's like, "I

25   did not eat a cupcake; I did not."          I mean she is like --

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                              74

1    you can -- the camera is shaking she's laughing so hard

2    because he is just adamant about not eating a cupcake,

3    right?     But the evidence is there all over his face.          I

4    mean he ate the cupcake, all right.

5               So even though they might be saying something,

6    are there other things you can interpret or reasons to

7    know that they're lying?     You can make inferences, right?

8    He's got sprinkles all over his face; there's a cupcake

9    that was sitting on the counter; it's missing and all

10   over his face.     He ate it, okay.

11              Do you guys have pets?       Okay.   Very good.

12   Ms. Vale, what kind of animals do you have?

13              VENIREPERSON VALE:    Eileen Vale, No. 8.         I have

14   three dogs and a cat.

15              MS. KUCERA:   Three dogs and a cat.       Okay.     Have

16   your dogs ever misbehaved before?

17              VENIREPERSON VALE:    Yes.

18              MS. KUCERA:   Okay.   Did you know that they

19   misbehaved?

20              VENIREPERSON VALE:    Yes.

21              MS. KUCERA:   Okay.   what did they do?

22              VENIREPERSON VALE:    They ripped up a couch

23   cushion.

24              MS. KUCERA:   Okay.   So you came home one day and

25   your couch cushion is in shreds, right?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                             75

1                VENIREPERSON VALE:      Yes.

2                MS. KUCERA:     Did you rip the couch cushion?

3                VENIREPERSON VALE:      No.

4                MS. KUCERA:     Okay.   How did you know the dogs

5    did?

6                VENIREPERSON VALE:      Well, they had it in their

7    mouths and their stool.

8                MS. KUCERA:     Yeah, evidence all over the place.

9    Yeah, I have a dog.       He eats stuff off the counter all

10   the time.     I can't get him to stop.         Yeah.     I mean, how

11   do I know that he ate the loaf of bread?               It's all over

12   the place, right.     I mean you can make an inference.              You

13   may not have seen your dogs eat the couch, but you know

14   that they ate it, right?

15               VENIREPERSON VALE:      Right.

16               MS. KUCERA:     Okay.   Very good.     This is that

17   same type of thing we're going to talk about today.

18   Witnesses are going to tell you about things that

19   happened, and we ask you as jurors to evaluate each

20   witness and their credibility.            How do you know they're

21   telling the truth?        Are they telling the truth?         What

22   sort of things are you going to look for to determine

23   whether or not they're telling the truth?               Ms. Steele

24   suggested they're shifty, maybe not answering the

25   question correctly, dodging it.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                         76

 1            Ms. Taylor talked about how they're getting

 2   really defensive.    Okay.     So you guys as jurors are going

 3   to have to evaluate a witness's credibility.        Does

 4   everybody understand that that's your role?        Okay?   So as

 5   a juror, in order to be a juror in this case, you have to

 6   use what we call the same standards when evaluating the

 7   truthfulness of a witness.       Okay?   I guess to explain

 8   that, you can't -- you can't automatically start one

 9   witness off higher than another witness, okay.        You have

10   to wait until that witness gets on the stand and

11   testifies and you observe their demeanor, what they're

12   saying, how they're talking, how they're acting, what

13   they're talking about.       You have to evaluate what they're

14   talking about.    You have to weigh their credibility when

15   they get on the stand.

16            In other words, you can't hear that there's

17   going to be a witness and automatically give them a bunch

18   of points just because they're going to be a witness.           So

19   does everybody understand?       Okay.   Ms. Taylor, you can,

20   as a witness -- as a juror, you can accept all of what

21   the witness says; you can accept some of what the witness

22   says -- I think he was telling the truth here, may not

23   have been telling the truth here -- or none of what the

24   witness says.    I don't think he's credible at all, right.

25   He was shifting his weight; he wasn't telling the truth,

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       77

 1   those sorts of things.     He was defensive.   Those are the

 2   sorts of things we're going to ask you to do as jurors.

 3             So can you evaluate, as jurors, police officers

 4   as witnesses and wait until that particular police

 5   officer gets on the stand before you evaluate his

 6   credibility?   Okay.    Now, as a police officer, you have

 7   to evaluate their credibility the same way you evaluate

 8   other witnesses' credibility.     We talked about that,

 9   right?   You can't, because they're a police officer,

10   automatically give them -- you know, automatically assume

11   they're telling the truth or automatically assume they're

12   not telling the truth.     It has to be the same standard.

13   You have to wait until they get on the stand, okay.

14             You can look at their training and experience

15   when evaluating their credibility, all right.      So when we

16   have an expert come testify in court, generally we have

17   to qualify them as an expert.     So if it's a doctor,

18   they've got to have a medical degree.     And they've got to

19   be sort of familiar with the particular reason that we

20   need them to testify.

21             So my best friend's a doctor, okay, and she

22   deals with infectious disease.     So it's kind of weird,

23   but she really likes diseases like the ebola virus and

24   things and sort of weird off the wall diseases that you

25   deal with in other countries.     So if we had a case -- I

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        78

1    don't know why we would have a case like this -- but she

2    could be an expert, right.       We could call her to testify

3    about certain things that she knows about infectious

4    diseases, right?    So you can, in that particular

5    instance, look at her credibility, right?       She's an M.D.;

6    she's a resident.     You know, she's been through all the

7    training that she needs to be to become a doctor.          So you

8    can say, yeah, she's a doctor and I can evaluate her

9    truthfulness based on her being a doctor.       Everyone

10   understand what I'm saying?

11            All right.    So a police officer, I'm going to

12   need you guys to tell me that you can look at the

13   training and experience, but you're not going to

14   automatically start them out higher or automatically

15   start them out lower because they're a police officer.

16   You're gonna wait until they get on the stand and hear

17   what they have to say and then evaluate their

18   credibility.   Ms. Taylor, does that sound like something

19   you can do?

20            VENIREPERSON TAYLOR:       Yes.

21            MS. KUCERA:     Okay.    What about you,

22   Mr. Teakell?   Can you do that?

23            VENIREPERSON TEAKELL:       Yes.

24            MS. KUCERA:     What about Ms. Wright?

25            VENIREPERSON WRIGHT:       Yes.

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 1            MS. KUCERA:     Okay.    Ms. Hair?

 2            VENIREPERSON HAIR:       Yes.

 3            MS. KUCERA:     Mr. Garcia?

 4            VENIREPERSON GARCIA:       Yes.

 5            MS. KUCERA:     Mr. Foster?

 6            VENIREPERSON FOSTER:       I'm kind of struggling

 7   with the automatically give more, because I deal with

 8   them every day.   They're held to a higher standard, and

 9   I'm going to assume they know more.

10            MS. KUCERA:     Okay.

11            VENIREPERSON FOSTER:       -- and take more into

12   account when they -- like they could walk into this room

13   and observe the scene, and they're going to take more

14   into account when they're processing information than the

15   average witness would.

16            MS. KUCERA:     Right.    So --

17            VENIREPERSON FOSTER:       So that's probably the

18   part that I would --

19            MS. KUCERA:     Fair enough.      So I guess what this

20   is saying is that you recognize as a police officer that

21   you've had an extensive amount of training and background

22   in observation, you know, crime scene investigation,

23   evaluating people.

24            VENIREPERSON FOSTER:       That would probably fall

25   under the experience.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                         80

 1             MS. KUCERA:    Yeah.

 2             VENIREPERSON FOSTER:      You're talking about a

 3   bias towards them just because they have a uniform?

 4             MS. KUCERA:    Exactly.

 5             VENIREPERSON FOSTER:      I'm not going to give them

 6   more or less credit for that, yes.

 7             MS. KUCERA:    Exactly.    Does everyone understand

 8   what the officer is saying?       He's saying, listen, I'm a

 9   police officer.     I know the training they go through.        I

10   know certain things that they have to do to become a

11   police officer.     But he says -- and I'm going to ask

12   you -- can you set aside not necessarily your knowledge

13   about a police officer, but can you wait until that

14   police officer gets on the stand and testifies before you

15   make an evaluation as to whether or not he's telling the

16   truth?

17             VENIREPERSON FOSTER:      Yes.

18             MS. KUCERA:    Yes.    Great.     Mr. Billing, what

19   about you?

20             VENIREPERSON BILLING:      Yes.

21             MS. KUCERA:    And Ms. Vale?

22             VENIREPERSON VALE:      Yes.

23             MS. KUCERA:    What about Ms. McKinley?       Stand up

24   for a second.     So you understood what Officer Foster was

25   saying?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                      81

1                VENIREPERSON MCKINLEY:      Yes.

2                MS. KUCERA:   Okay.    And you think that even

3    though he's a police officer, that if the police officer

4    testifies, that you can wait until he gets on the stand

5    before you evaluate his credibility?

6                VENIREPERSON MCKINLEY:      Yes.

7                MS. KUCERA:   Okay.    And, Ms. Steele, same

8    question.

9                VENIREPERSON STEELE:     Yes.

10               MS. KUCERA:   What about Mr. Jantz?

11               VENIREPERSON JANTZ:     Yes.

12               MS. KUCERA:   What about Ms. Schmidt?

13               VENIREPERSON SCHMIDT:      Yes.

14               MS. KUCERA:   Okay.    And Ms. McClesky?

15               VENIREPERSON MCCLESKY:      Yes.

16               MS. KUCERA:   Mr. Thomason?

17               VENIREPERSON THOMASON:      Yes.

18               MS. KUCERA:   Mr. Vasquez?

19               VENIREPERSON VASQUEZ:      Yes.

20               MS. KUCERA:   Mr. Litteken?

21               VENIREPERSON LITTEKEN:      Yes.

22               MS. KUCERA:   All right.       Mr. Davis?

23               VENIREPERSON DAVIS:     Yes.

24               MS. KUCERA:   Ms. Parsons?

25               VENIREPERSON PARSONS:      Yes.

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1             MS. KUCERA:     Okay.     Ms. Trejo?

2             VENIREPERSON TREJO:        Yes.

3             MS. KUCERA:     Ms. Ripperger?

4             VENIREPERSON RIPPERGER:           Yes.

5             MS. KUCERA:     What about you, Ms. Logsdon?

6             VENIREPERSON LOGSDON:        Yes.

7             MS. KUCERA:     Mr. Young?

8             VENIREPERSON YOUNG:        Yes.

9             MS. KUCERA:     And Mr. Chavez?

10            VENIREPERSON CHAVEZ:        Yes.

11            MS. KUCERA:     Okay.     All right.     The last thing

12   we're gonna talk about -- actually, let me ask a question

13   really quick.     Had anyone had a bad experience here with

14   a police officer before?     Anyone ever had a bad

15   experience?     You or someone you know has had a bad

16   experience?     Mr. Jantz, stand up for me just a second.

17   What was the experience?

18            VENIREPERSON JANTZ:        Family disturbance.

19            MS. KUCERA:     Okay.     And it was just because you

20   didn't appreciate what the police officers did in that

21   case or --

22            VENIREPERSON JANTZ:        Well, at the time -- you

23   told me to be honest here, right?

24            MS. KUCERA:     Uh-huh.

25            VENIREPERSON JANTZ:        At the time when I was

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        83

1    there, they just took one side of it all.

2              MS. KUCERA:   Okay.   Do you think because of that

3    experience you might not be able to be fair in this case

4    and put aside what happened there and evaluate these

5    witnesses just based on what they testify to in this

6    particular case?

7              VENIREPERSON JANTZ:    No, I wouldn't have a

8    problem with that at all.

9              MS. KUCERA:   Okay.   So you're saying even though

10   you've had a bad experience, you could be a fair juror in

11   this case?   In other words, you could evaluate what all

12   the witnesses say and evaluate them for their credibility

13   and what they say on the stand?

14             VENIREPERSON JANTZ:    Yes, ma'am.

15             MS. KUCERA:   Okay.   All right.     Last thing we're

16   going to talk about is the defendant's constitutional

17   rights.   The Fifth Amendment says, "No person shall be

18   compelled to be a witness against himself."        Mr. Billing,

19   that means that the defendant in a case does not have to

20   get on the stand and testify, all right?       If the

21   defendant in this -- you know, we don't have the right to

22   compel somebody to testify against themselves, right?

23   That you're allowed under the Fifth Amendment the

24   constitutional right that you don't have to testify.

25             Now, Ms. Taylor, do you think that you could, if

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        84

1    the defendant chooses not to testify, that you could --

2    and the judge instructs you that you cannot because he

3    didn't testify, hold that against -- I'm sorry.      If the

4    judge instructs you that if he didn't testify, you cannot

5    hold that against him, if the judge makes that

6    instruction, do you think you could follow what the judge

7    tells you to do?

8             VENIREPERSON TAYLOR:      Yes.

9             MS. KUCERA:   Okay.    What about you, Mr. Teakell?

10            VENIREPERSON TEAKELL:      Yes.

11            MS. KUCERA:   Ms. Wright?

12            VENIREPERSON WRIGHT:      Yes.

13            MS. KUCERA:   Ms. Hair?

14            VENIREPERSON HAIR:     Yes.

15            MS. KUCERA:   Mr. Garcia?

16            VENIREPERSON GARCIA:      Yes.

17            MS. KUCERA:   Mr. Foster?

18            VENIREPERSON FOSTER:      Yes.

19            MS. KUCERA:   Mr. Billing?

20            VENIREPERSON BILLING:      Yes.

21            MS. KUCERA:   Okay.    Mr. Vale?

22            VENIREPERSON VALE:     Yes.

23            MS. KUCERA:   Mr. Jantz?

24            VENIREPERSON JANTZ:     Yes.

25            MS. KUCERA:   Ms. Schmidt?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        85

1             VENIREPERSON SCHMIDT:      Yes.

 2            MS. KUCERA:   Ms. McClesky?

3             VENIREPERSON MCCLESKY:      Yes.

4             MS. KUCERA:   Thomason?

5             VENIREPERSON THOMASON:      Yes.

6             MS. KUCERA:   Vasquez?

7             VENIREPERSON VASQUEZ:      Yes.

8             MS. KUCERA:   And Mr. Litteken?

9             VENIREPERSON LITTEKEN:      Yes, ma'am.

10            MS. KUCERA:   Okay.    Chavez?

11            VENIREPERSON CHAVEZ:      Yes.

12            MS. KUCERA:   Mr. Young?

13            VENIREPERSON YOUNG:      Yes.

14            MS. KUCERA:   Ms. Logsdon?

15            VENIREPERSON LOGSDON:      Yes.

16            MS. KUCERA:   Ms. Ripperger?

17            VENIREPERSON RIPPERGER:         Yes.

18            MS. KUCERA:   Ms. Trejo?

19            VENIREPERSON TREJO:      Yes.

20            MS. KUCERA:   What about you, Ms. Parsons?

21            VENIREPERSON PARSONS:      I could, but I'd rather

22   hear what he has to say.

23            MS. KUCERA:   Okay.    But even if he doesn't, you

24   won't hold it against him?

25            VENIREPERSON PARSONS:      No.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                           86

 1               MS. KUCERA:     And you, Mr. Davis?

 2               VENIREPERSON DAVIS:      Yes.

 3               MS. KUCERA:     Okay.   Well, that is all I have to

 4   talk to you about.        Do you guys have any questions for

 5   me?     Okay.    You guys have done so well.        Thank you so

 6   much.     I appreciate it.     Oh, I'm sorry.       Really quickly.

 7   Does anyone know anyone that is here today?             Anyone know

 8   the judge?       I know he said he knew a few of you.        Raise

 9   your hand if you know the judge.            Okay.   Mr. Vasquez and

10   Ms. Ripperger, do you think your knowledge of the judge

11   would cause you to not be fair in this case?             Do you

12   think even though you know the judge, you could set aside

13   your knowledge of him and move forward and be fair in

14   this case?

15               VENIREPERSON VASQUEZ:      Yes.

16               VENIREPERSON RIPPERGER:         Yes.

17               MS. KUCERA:     What about -- anyone know the

18   officers?       Does anyone know any people listed on this

19   board?     Officer Vasquez?

20               VENIREPERSON FOSTER:      Oh, yes.

21               MS. KUCERA:     Officer Foster, okay.       Beesinger,

22   Lee and Iper?       Ms. Wright, which one do you know?

23               VENIREPERSON WRIGHT:      Mr. Iper.

24               MS. KUCERA:     Okay.   Do you think that even

25   though you know Mr. Iper in this case that you could set

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       87

1    aside that and be a fair juror in this case?

2             VENIREPERSON WRIGHT:      Yes.

3             MS. KUCERA:     Okay.   Mr. Teakell, you raised your

4    hand.

5             VENIREPERSON TEAKELL:      I was a firefighter.   I'm

6    a retired firefighter.     I think I know all of them.

7             MS. KUCERA:     Okay.   Even though you're a retired

8    firefighter and you sort of have some knowledge of them,

9    do you think you could set that aside and evaluate this

10   case to you as it is today?

11            VENIREPERSON TEAKELL:      Sure.

12            MS. KUCERA:     Okay.   Anyone else?

13            VENIREPERSON STEELE:      This gentleman right

14   here.

15            MS. KUCERA:     Mr. Cavinder?

16            VENIREPERSON STEELE:      I don't know him

17   personally, but I know of him.

18            MS. KUCERA:     Okay.   Do you think that your

19   knowledge of Mr. Cavinder would prevent you from being a

20   fair and impartial juror in this case?

21            VENIREPERSON STEELE:      No.

22            MS. KUCERA:     Anyone else?

23            VENIREPERSON PARSONS:      I've known Charlie Iper

24   since he was a little boy.

25            MS. KUCERA:     Okay.   Do you think even though you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    know Mr. Iper, you could be a fair and impartial juror in

2    this case?

3               VENIREPERSON PARSONS:        Yes.

4               MS. KUCERA:     Anyone else?        All right.   Now, I'm

5    done.    Thank you so much.

6               THE COURT:     All right.     Let's go ahead and I

7    think what I need to do is let's go ahead and take a

8    little bit of an early lunch.          If you could be back at

9    11:45 -- excuse me, 12:45.        Sorry.       Be back at 12:45 and

10   we'll get going right at that time with the defense voir

11   dire.    And, also, that might help you find a parking

12   spot, too because I know it's hard to park around here,

13   but if you get back before one, you usually have better

14   luck.    So be back at 12:45.      Yes, Karen.

15              THE BAILIFF:     Back in the same order.

16              THE COURT:     Yes.   I apologize.       See, I told you

17   she keeps me straight.       If you will, when you come back

18   in, just wait in the hall, assemble in the hall.              We'll

19   call you in just like we did.          And come back in and sit

20   in the same order.       You can see how that's important now

21   to keep track of everybody.        All right.       Be back at

22   12:45.    Thank you.

23              (Jury panel exits courtroom)

24              (Lunch recess taken)

25              (Open court, defendant and jury panel present)

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       89

 1             THE COURT:    Y'all be seated, please.   I

2    apologize for that.     We are technologically challenged

 3   here in Wichita County.     Actually, there was a proposal

 4   that went through the commissioner's court to update all

 5   the courts on technology.     We're still operating in

 6   about, by my estimation, somewhere in the early nineties.

 7   So with that comes some problems every once in a while.

 8   I apologize for the delay, but we'll be moving forward

 9   with Mr. Briley's voir dire.     Mr. Briley?

10             MR. BRILEY:    Thank you, Your Honor.

11                     JURY VOIR DIRE EXAMINATION

12   BY MR. BRILEY:

13             Hello, everybody.    Thank you for your time

14   today.   Good afternoon.    Again, my name is Mark Briley.

15   I'm happy to be here with Mr. Byrias Roberson.         I'm also

16   here with Ms. Kristen Howcroft who has been trying to

17   help me throughout the trial.     I went to Midwestern State

18   for college.     I went on down to San Antonio to St. Mary's

19   for law school.     For about a year I worked in Abilene

20   doing family law and criminal defense and then I came

21   back here and married my wife Jennifer and have been

22   doing criminal defense here.     Again, I'm happy to be here

23   to talk to you about Byrias' defense.

24             There's about four or five topics that I have to

25   talk with you about.     I think the State covered quite a

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                         90

1    bit, so this should be a little bit shorter.          I did have

2    a Power Point prepared.      I apologize.      A few things are

3    hard, but there's probably only two things that might be

4    a little bit difficult.      I'll write it on the board.

5               The first topic that I want to talk to you about

6    are police interactions.      The courts have made law or

7    categorized three different types of police interactions.

8    The first one would be a voluntary encounter.          That might

9    be something where an officer comes to you on the street

10   and maybe wants to ask you a few questions about

11   something you may or may not have seen, maybe they give

12   you a call or something like that.          That would be a

13   voluntary encounter.      The citizen would be free to walk

14   away at any time.

15              The other two would be seizures and the police

16   officers basically tell them, You have to stay here, or

17   they force them to stay there, something like that.

18              The first one would be an investigative

19   detention.     The most common example would be a police

20   officer coming behind you, turning on their lights and

21   pulling you over.     And maybe they think that you're

22   committing a crime or they're there to give you a traffic

23   ticket, but they tell you with a show of authority that

24   you need to stop.     They have some kind of reason to do

25   so.    But it would be a brief amount of time.        They're

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                           91

1    just looking to investigate something.

2              The third type of police interaction would be an

3    arrest.   This would also be something where the police

4    display official authority.      You know, they force you to

5    stop or they take you into custody.

6              My first question to you all is about your

7    experiences with police interactions.         So, Ms. Taylor,

8    I'll just kind of start with you since you're No. 1.

9              VENIREPERSON TAYLOR:     Okay.     Want me to stand?

10             MR. BRILEY:   Have you had a lot of police

11   interactions in your life?

12             VENIREPERSON TAYLOR:     No, I have policemen in my

13   family, but I don't have -- just normal stops with your

14   car or something.

15             MR. BRILEY:   Okay.

16             VENIREPERSON TAYLOR:     Inspection sticker or

17   maybe speeding once, stuff like that.

18             MR. BRILEY:   So other than your family, just

19   speeding tickets, things like that?

20             VENIREPERSON TAYLOR:     Uh-huh.     I have two sons,

21   you know, and they've gotten tickets before, so you know.

22             MR. BRILEY:   Okay.    When the police approached

23   you when they were going to pull you over, what did they

24   do to tell you to pull over, I suppose?

25             VENIREPERSON TAYLOR:     Well, usually, they do

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                            92

1    their lights, you know.   They come up behind you, or you

2    need them and they turn around and they come up behind

3    you and make you pull over.

4             MR. BRILEY:   Okay.    thank you.     You mentioned

5    that you had some family members who are police officers?

6             VENIREPERSON TAYLOR:     Yeah.     My nephew is a

7    current Wichita Falls Policeman, and my brother-in-law

8    used to be with the sheriff's department a couple years

9    ago.

10            MR. BRILEY:   Okay.    Thank you very much.

11            VENIREPERSON TAYLOR:     Uh-huh.

12            MR. BRILEY:   Mr. Teakell, what about you?          Do

13   you have a lot of experiences with police interactions?

14            VENIREPERSON TEAKELL:     Well, I was a fireman for

15   28 years and, you know, I'd see policemen here or there,

16   call policemen over here or there.        I know a lot of

17   policemen.   I've had a lot of dealings with policemen at

18   fires, car wrecks.

19            MR. BRILEY:   How about as a citizen?       When

20   you're off duty, has a policemen ever approached you to

21   ask you some questions or --

22            VENIREPERSON TEAKELL:     I got pulled over one

23   time, but I didn't get a ticket.

24            MR. BRILEY:   Okay.    And, again, they just put

25   their lights on and stopped you and that was about it?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1             VENIREPERSON TEAKELL:        Yeah, that was about it.

2             MR. BRILEY:    Thank you very much.         Ms. Wright,

3    how about you?

4             VENIREPERSON WRIGHT:     Same.     Speeding tickets,

5    same thing.   Lights flashed, pulled over.       That's it.

6             MR. BRILEY:    Thank you very much.         Ms. Hair,

7    what about you?

8             VENIREPERSON HAIR:     No.     I mean I've been pulled

9    over for my inspection sticker, but never had a ticket

10   for speeding or anything like that.

11            MR. BRILEY:    Same thing.      They pulled you over

12   with their lights and came up and talked to you?

13            VENIREPERSON HAIR:     Gave me a warning.

14            MR. BRILEY:    All right.      Thank you.

15   Mr. Garcia?

16            VENIREPERSON GARCIA:     Speeding, taillight out.

17   Usually, a warning.    Not a ticket yet.

18            MR. BRILEY:    Same thing.      They put their lights

19   on and let you know to stop?

20            VENIREPERSON GARCIA:     Uh-huh.

21            MR. BRILEY:    Sergeant Foster, I know you're a

22   police officer, so you've had many interactions with

23   police officers.

24            VENIREPERSON FOSTER:     Yes.

25            MR. BRILEY:    But as a citizen, perhaps when you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                        94

1    were off duty or maybe it was before you were a police

2    officer, did you have any police officers pull you over?

3                VENIREPERSON FOSTER:      Oh, yeah, when I was

4    younger, I had a lot of tickets.          I served my time, did

5    my time.     I've never been to jail for anything, but, yes,

6    as far as just getting stopped for speeding or traffic

7    violations.

8                MR. BRILEY:     And in your role as a police

9    officer, how often do you perhaps follow up with a

10   witness, maybe somebody investigating crimes?

11               VENIREPERSON FOSTER:      Oh, yeah.

12               MR. BRILEY:     And how do you contact witnesses?

13               VENIREPERSON FOSTER:      My stuff, since I'm on

14   patrol, is pretty immediate right there at the scene

15   talking to people.        Usually, the way our stuff works, we

16   write up that stuff and a detective may or may not

17   contact the witnesses.        It depends on the case.

18               MR. BRILEY:     Okay.   Are most of the people that

19   you encounter in those stops, would you say that they are

20   detained?

21               VENIREPERSON FOSTER:      You're talking about a

22   traffic stop?

23               MR. BRILEY:     Well, yeah.    I mean any kind of.

24               VENIREPERSON:     Traffic stop, yes.

25               MR. BRILEY:     So most of the people -- I guess

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        95

1    most of the citizens that you deal with, would you say

2    that they're detained?

3             VENIREPERSON FOSTER:     If it's not a consensual

4    stop, like you said, then they're detained.

5             MR. BRILEY:     Can you tell us about a consensual

6    stop?

7             VENIREPERSON FOSTER:     You're in a convenience

8    store and a cop walks up to you and says, Do you mind if

9    I talk to you for a second?     I may not have anything to

10   really connect you to anything at that point, but I may

11   recognize you, may want to just talk to you, maybe

12   develop something like maybe you -- maybe your behavior

13   looked like you're casing the store or something.        I'm

14   still trying to formulate if I have enough to detain you

15   or if I even need to be concerned with you.     And with

16   consensual, you know, if they tell me to get bent and

17   turn around and walk off, that's what I do.     I turn

18   around and walk off.     At that point, it's consensual and

19   they have the right to break it.

20            MR. BRILEY:     Does that happen often or is it

21   rare?

22            VENIREPERSON FOSTER:     Where I'm working now,

23   there's not much enforcement, but when I was an officer,

24   there would be times, yeah.     But the majority of the time

25   most citizens will talk to you, you know, just out of

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                       96

1    respect or -- but, yeah, it happens.

2                MR. BRILEY:     Thank you very much.    Mr. Billing,

3    how about you?

4                VENIREPERSON BILLING:      Most people get pulled

5    over for speeding.        I've had family members that are in

6    law enforcement.     My neighbor across the street is on the

7    police force in Wichita Falls.

8                MR. BRILEY:     What kind of family members?

9                VENIREPERSON BILLING:      My nephew is highway

10   patrol in Minnesota.

11               THE REPORTER:     I need you to speak up a little

12   bit.   I'm having trouble hearing you.

13               VENIREPERSON BILLING:      Highway patrol in

14   Minnesota.

15               MR. BRILEY:     But most of your interactions as a

16   citizen with police officers are traffic stops, something

17   like that?

18               VENIREPERSON BILLING:      Yeah.   Daily or weekly

19   interactions with my neighbor who's a police officer.            We

20   don't discuss any type of police activity.

21               MR. BRILEY:     Okay.   Thank you very much.

22   Ms. Vale?

23               VENIREPERSON VALE:      Yes.   As a citizen, just the

24   last speeding ticket I got was in 1998 going to school.

25   Twelve years ago I did go through the game warden

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1    academy.     A lot of my family members are in law

2    enforcement, but that's -- I have one in Edinburg,

3    working the border.       So that's my experience.

 4               MR. BRILEY:    Are your family members your

 5   siblings?     Cousins?

 6               VENIREPERSON VALE:     Cousins.

 7               MR. BRILEY:    Ms. McKinley?

 8               VENIREPERSON MCKINLEY:     Just the same usual,

 9   nothing out of the ordinary.        Speeding.

10               MR. BRILEY:    No knocks on your door to see if

11   you were a witness to something?

12               VENIREPERSON MCKINLEY:     No.

13               MR. BRILEY:    Okay.   Thank you.   And, Ms. Steele,

14   how about you?

15               VENIREPERSON STEELE:     I've been pulled over for

16   speeding and things like that and gotten warnings and

17   also tickets.     I work in an environment where I work in

18   an ER environment so there are police officers and

19   detectives and things like that that come in and out of

20   our emergency room department.

21               MR. BRILEY:    Do they ever ask you questions

22   about an investigation that they have?

23               VENIREPERSON STEELE:     Well, it depends.    Well, I

24   don't know.

25               MR. BRILEY:    Where you might be a witness?      You

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                           98

 1   saw somebody that came in?

 2            VENIREPERSON STEELE:     The only time that would

 3   ever would be is if I was a nurse for that patient and

 4   maybe something was said, but I've never encountered

 5   that.

 6            MR. BRILEY:   Okay.    Thank you.    Mr. Jantz, have

 7   you had a lot of dealings with police officers?

 8            VENIREPERSON JANTZ:     Not a lot.      One bad

9    experience, and that was it.

10            MR. BRILEY:   Okay.

11            VENIREPERSON JANTZ:     My father was a police

12   officer for many years, federal officer in Wisconsin.

13            MR. BRILEY:   Ms. Schmidt?

14            VENIREPERSON SCHMIDT:      I just can't remember the

15   last encounter.   Just regular warnings for speeding.        I

16   have a nephew that's a police officer.

17            MR. BRILEY:   Okay.    Thank you.    And

18   Ms. McClesky?

19            VENIREPERSON MCCLESKY:      Speeding.

20            MR. BRILEY:   Okay.

21            VENIREPERSON MCCLESKY:      Seems to be the norm,

22   but, yeah, that's about it.

23            MR. BRILEY:   All right.     Thank you.

24   Mr. Thomason?

25            VENIREPERSON THOMASON:      Just the same as

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1    everybody else.     Just a couple speeding tickets.

2              MR. BRILEY:    Okay.   And Mr. Vasquez?

3              VENIREPERSON VASQUEZ:     Yeah.     It's been some 30

4    years.   Speeding ticket, normal.     I did have them come in

5    my house one time in the middle of the night through the

6    back door.    But it wasn't a problem, you know.

7              MR. BRILEY:    Can you tell us more about that

8    experience?

9              VENIREPERSON VASQUEZ:     Well, I think it was a

10   family disturbance.     My niece and her mother, they were

11   having problems, and they thought my niece was staying

12   with us, so they were checking into it.

13             MR. BRILEY:    Okay.   Did they -- I'm sorry.     Go

14   ahead.

15             VENIREPERSON VASQUEZ:     Everyone was asleep, woke

16   up by the dog.    They came in through the back door, a

17   couple policemen.

18             MR. BRILEY:    Okay.

19             VENIREPERSON VASQUEZ:     But, you know, we talked

20   to them and everything was all right.

21             MR. BRILEY:    So they just -- they knocked on

22   your back door?

23             VENIREPERSON VASQUEZ:     No.     Well, we were asleep

24   so, you know, they just came in, which I don't think

25   they're supposed to do, but that's what happened.

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 1               MR. BRILEY:   I suppose they asked you some

 2   questions?

 3               VENIREPERSON VASQUEZ:    Yeah.

 4               MR. BRILEY:   Did you feel free to leave or to

 5   turn them away?

 6               VENIREPERSON VASQUEZ:    Yeah.   I mean we just

 7   told the truth, that we didn't know what was going on,

 8   you know.

 9               MR. BRILEY:   Okay.   Was that a positive or

10   negative experience for you?

11               VENIREPERSON VASQUEZ:    It's -- well, you never

12   want to be awoken in the middle of the night and see a

13   couple policemen, you know, in the home with your dog

14   fixing to, you know, attack them or whatever.        So it was

15   kind of negative, I guess, because they had their guns

16   for the dog, you know, because he's a big dog.        But, you

17   know, other than that.

18               MR. BRILEY:   Okay.   Thank you very much.     And

19   Mr. Litteken?

20               VENIREPERSON LITTEKEN:    I've been pulled over

21   for illegal left hand turn in front of the courthouse.

22   And usually when I get pulled over, I'll put my keys on

23   top of the dashboard and I'll get my driver's license out

24   and my registration, letting that officer know, you know,

25   I ain't going nowhere.

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1               MR. BRILEY:    And same thing?    I guess they used

2    their sirens, flashing lights to pull you over?

3               VENIREPERSON LITTEKEN:     Yeah, because I'm half

4    deaf.     They've gotta (makes siren noise).

5               MR. BRILEY:    Okay.   Thank you very much.   I'm

6    sorry if it feels like I'm prying about these type of

7    things.    I'm guess I'm not trying to pry too much.      That

8    might be a sensitive issue, how many times you've been

9    pulled over by the police, things like that.        Anybody

10   here -- I know that I didn't reach the back row, but is

11   there anybody here that's had what they would call a

12   voluntary encounter that they haven't spoken about so

13   far, where a police officer approached them, wanted to

14   ask them questions?      Not just a, Hey, how are you doing,

15   but, you know, I have an investigation; I would like to

16   talk with you, but you're not necessarily detained or

17   under arrest.     Anybody had that type of experience?

18              How about has anybody been a victim of a crime?

19   I see a couple nods.      Sergeant Foster?

20              VENIREPERSON FOSTER:     Oh, I was just laughing

21   because it seems like that most everybody is at some

22   point a victim of a crime if you live on this planet long

23   enough.

24              MR. BRILEY:    Anybody's cars been broken into,

25   anything like that?      Ms. McKinley, can you tell us about

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                                02-13-00582-CR                        102

 1   that experience.

 2              VENIREPERSON MCKINLEY:     I was at work in the

 3   middle of the day, came back from lunch.        I kept my purse

4    in the car, which is stupid, I know, but tons of people

 5   there, you know, in and out.       Within an hour, someone

 6   busted the window and took off with it.

 7              MR. BRILEY:    Did you call the police?

 8              VENIREPERSON MCKINLEY:     Yes.

 9              MR. BRILEY:    And they came out and took a

10   report?

11              VENIREPERSON MCKINLEY:     Took a report.    That was

12   it.

13              MR. BRILEY:    Okay.   I suppose you didn't get

14   your purse back, did you?

15              VENIREPERSON MCKINLEY:     No, I did not.

16              MR. BRILEY:    I've had my car broken into once or

17   twice.    Ms. Steele, you raised your hand.      Did you have

18   some kind of police interaction or did you contact the

19   police in your situation?

20              VENIREPERSON STEELE:     No, I didn't.

21              MR. BRILEY:    Okay.

22              VENIREPERSON STEELE:     I had my wallet stolen

23   once and my son just recently actually had his

24   registration sticker taken out of his vehicle.         That's

25   really about it.     I did speak to a police officer and

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    kind of got his advice, but it wasn't official.          I was at

2    work and he was in the emergency room with somebody.           I'm

3    not sure why he was there, but he was there.

4             MR. BRILEY:     Anybody else here who's had police

5    interactions because they were perhaps the victim of a

6    crime or a close family member?       Yes, sir.

7             VENIREPERSON BILLING:       I was attending a

8    basketball game in Burkburnett in a suburban.        While I

9    was in the game, somebody broke the window out and stole

10   the DVD player that was cosmetically in the vehicle.

11            MR. BRILEY:     I suppose you called the police?

12            VENIREPERSON BILLING:       Well, they actually came

13   and got me.   It had an alarm system on it.       So they broke

14   in pretty quick and it did some damage to my seats and

15   stuff like that.

16            MR. BRILEY:     Okay.   And your dealings with the

17   police are negative?     Positive?

18            VENIREPERSON:     Positive dealings.

19            MR. BRILEY:     Anybody else?    Thank y'all.     Thank

20   you, Mr. Billing.

21            The next question I have, and, you know, still

22   talking about this topic of police interactions, is if

23   you were approached by a police officer like Sergeant

24   Foster has probably approached some people just kind of

25   wanting to feel things out or maybe a police officer has

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1    approached you just to ask you some questions.          Is there

2    anybody here -- and let's just take the first row -- how

3    many here would walk away from a police officer or

4    terminate that voluntary encounter just because you don't

5    want to talk to the police?      Is there anybody here who

6    would do that?     How about the second row?     Is there

7    anybody here who would just walk away for anything?          It

8    may not be in every situation, but you could think of a

9    situation where you might just not want to talk to the

10   police?    Anybody in the second row?      Third row?    And for

11   those of y'all who said no, which was everybody, my

12   question to you is why not?      Ms. McKinley -- sorry,

13   Ms. Vale, what would be some reasons?

14               VENIREPERSON VALE:   Why I wouldn't talk to

15   them?     I've never been threatened by any authority figure

16   anyway.     To me, they're a public servant there to help

17   you and protect people's property and the public's

18   rights.    That's the way I see a police officer.

19               MR. BRILEY:   So you're trying to help them?

20               VENIREPERSON VALE:   Right.

21               MR. BRILEY:   And be polite?

22               VENIREPERSON VALE:   And be polite, because

23   they're doing a service for us.

24               MR. BRILEY:   Mr. Billing, is there any other

25   reasons that you could think of?

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1             VENIREPERSON BILLING:      I mean there are -- just

2    out of respect, a person of authority.        So just general

3    conversation, there's nothing wrong with that.

4             MR. BRILEY:    Okay.    Thank you.   On the first

5    row, with a show of hands, is there anybody here who's

6    had an experience with a police officer maybe pulling you

7    over just for a speeding ticket and you felt they were

8    rude to you?    Second row?

9             VENIREPERSON JANTZ:      Just for speeding tickets?

10            MR. BRILEY:    Any kind of police interaction?

11   Mr. Jantz, I know that you spoke a little bit about that

12   situation, but could you tell us a little bit more about

13   how you felt.

14            VENIREPERSON JANTZ:      Well, after decisions were

15   made, after all the decisions were made of who was going

16   where and what was going to happen, people were taking

17   care of their business, doing what they were supposed to

18   do, there was three young cops there and, like I said, I

19   was packing up, leaving.      One of them said, out of the

20   blue, Mr. Jantz, it seems like you've got a problem with

21   something here.    I personally -- I felt like I was

22   invaded at the time.

23            MR. BRILEY:    Did they kind of make you feel like

24   you were a criminal, perhaps?

25            VENIREPERSON JANTZ:      Well, I don't know.    Nobody

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1    asked me what happened.      Nobody asked me what was going

2    on.    They just took one person's side over -- like I

3    said, up to that point it was -- it was a done deal.

4    People were leaving; the decisions were made.         There was

5    no reason for that public servant to say that to me.

6               MR. BRILEY:    Okay.   Thank you very much for

7    sharing that with us.      Anybody else like Mr. Jantz who

8    had some kind of experience where they felt like they

9    were mistreated or a police officer was rude to them?

10   Thank y'all.

11              Moving on to my next topic, second topic.

12   The elements of resisting arrest, I think the State

13   covered this.     You know, but the State is going to have

14   to approve each of these elements beyond a reasonable

15   doubt:    That a person intentionally prevents or obstructs

16   a person they know as a police officer from effecting an

17   arrest by using force against the peace officer.         Of

18   course, if you have, you know, even one reasonable doubt

19   as to any one of those elements, the law would require

20   you to acquit Mr. Roberson.

21              And really the main element that I want to talk

22   about is that intent.      The law gives us various mental

23   states that the statute may require the State to approve,

24   intentionally, knowingly, recklessly, with criminal

25   negligence.     And the State went over the baseball

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                          107

1    situation with intentionally.      And, you know, some

2    statutes require not just intentional, but it might be

3    intentionally or knowingly, intentionally, knowingly, or

4    recklessly.    This statute requires that they prove

5    intentionally.    And, again, that is when a person acts

6    intentionally with respect to their nature or conduct or

7    to the result of their conduct when it's their conscious

8    objective or desire to engage in that conduct or to cause

9    that result.

10             Ms. Taylor, if I could pick on you again.        Can

11   you think of just really any action that would be

12   intentional?

13             VENIREPERSON TAYLOR:     Intentional?     Like

14   murder?   Is that what you're saying, like, intentional?

15   Yes.

16             MR. BRILEY:    Somebody intended --

17             VENIREPERSON TAYLOR:     Premeditated.

18             MR. BRILEY:    That was their conscious desire, to

19   cause that result, the death of another person?

20             VENIREPERSON TAYLOR:     Do I think.     Okay, so what

21   are you asking me now?

22             MR. BRILEY:    You already answered me.      I'm sorry

23   I'm confusing you.

24             VENIREPERSON TAYLOR:     Intentional act, yes.

25             MR. BRILEY:    Murder.   Okay.   Mr. Teakell, could

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    you think of an act that's not intentional?

2              VENIREPERSON TEAKELL:    I really don't understand

3    what you're saying.

4              MR. BRILEY:   For example, breaking something

5    or --

6              VENIREPERSON TEAKELL:    A policemen breaking

7    something?

8              MR. BRILEY:   No, just anybody.

9              VENIREPERSON TEAKELL:    Anybody?

10             MR. BRILEY:   Something that's not intentional,

11   something that perhaps you -- you know, your body's

12   moving, but that is not your intended result.

13             VENIREPERSON TEAKELL:    I guess that could

14   happen, yeah.

15             MR. BRILEY:   Okay.   Thank you.    Third topic that

16   I wanted to talk about was the presumption of innocence.

17   Of course, all persons are presumed to be innocent and

18   the presumption of innocence alone is sufficient to

19   acquit.   Of course, the defense does not have to put on

20   any evidence, just that presumption alone is enough to

21   acquit.   And, you know, it's not about which case is

22   better, the defense's case or the State's case.       The

23   State must prove their case beyond a reasonable doubt and

24   each element beyond a reasonable doubt.

25             And my question to you all is do you believe

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    that an innocent person should be brought to trial for a

2    charge such as resisting arrest?         So just this first row,

3    who would answer yes to that question, I do believe that

4    an innocent person could be brought to trial for a charge

5    such as resisting arrest?

6                VENIREPERSON:     They're innocent coming into it?

7                MR. BRILEY:     Let's say, first of all, there's an

8    allegation that somebody was resisting arrest, but

9    they're innocent.     Could they be brought to trial?      Could

10   it get so far as the trial process when they're

11   innocent?

12               VENIREPERSON:     Sure.

13               MR. BRILEY:     Yes, okay.   Who here would agree?

14   First row?     Sergeant Foster, how about you?      You don't

15   believe that?

16               VENIREPERSON FOSTER:      No, by the time -- just in

17   my experience, by the time it goes through detectives, my

18   level of patrol sergeant signing off on it and the

19   detective section, and the D.A.'s prosecution packet is

20   put together, and the D.A.'s office looks at it, I don't

21   see it.     Again, it's my opinion.      But it seems we err on

22   the side of caution with this stuff, as we should.         And

23   it just doesn't go to trial if the D.A.'s office sees

24   that there's not enough there.

25               MR. BRILEY:     Thanks for your honest opinion.      Of

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    course, that's what we're looking for is just your

2    opinion.     The law may say one thing, but that doesn't

3    necessarily mean that that's what you believe, and you

4    may believe something different than what the law is.             In

5    the instructions, that's what we're looking for.         So

6    would you say you believe Mr. Roberson is guilty just

7    sitting in the defendant's chair?

 8               VENIREPERSON FOSTER:   I'm not saying I couldn't

 9   look at everything objectively, but I'm more inclined to

10   believe that he is knowing the experience that I have

11   within the criminal justice system.         I'm not saying that

12   it doesn't occur, but having a personal knowledge of how

13   things happen here, it seems more often than not people

14   that should be going, don't go.      You know, so it's just

15   my opinion.

16               MR. BRILEY:   Well, so would you say that just

17   his allegation, just the fact that we're here in trial

18   would be some evidence in your mind against him?

19               VENIREPERSON FOSTER:   Yeah, to be honest, it

20   would be.     And it's not that I couldn't look at

21   everything objectively.      There may be something that, you

22   know, with the officer's testimony, his testimony.            I

23   don't know if he's going to testify, and I wouldn't hold

24   that against him.     But I understand he's innocent.         I

25   guess I'm talking in circles here.         It's probably just my

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1    15 years of experience as a police officer seeing the

2    this stuff and seeing how it works.        I can look at it

3    objectively and come to a decision, but, yeah, I think

4    I'm prone to believe somebody is guilty, right or wrong.

5                MR. BRILEY:   So you'd say the State is probably

6    starting off just a little bit ahead?        I mean just the

7    fact they we're even here?

8                VENIREPERSON FOSTER:     Yeah, I think I'd be

9    dishonest in saying that that would be even in my mind.

10               MR. BRILEY:   And if the judge or, you know, if

11   we called you back in later on, the judge and the D. A.

12   talked to you and said, I know that's your opinion, but

13   can you set that opinion aside?

14               VENIREPERSON FOSTER:     Oh, yeah.     We're being

15   honest, just like you said.        That's my honest opinion.

16               MR. BRILEY:   Would you say it's a pretty strong

17   thing?

18               VENIREPERSON FOSTER:     It's not something I

19   couldn't put aside to look at a case.        Just everything

20   that I've seen plays on what I feel right now and your

21   question.     It's not that -- if they don't prove beyond a

22   reasonable doubt, they don't prove it.           And then I would

23   vote to show not guilty.

24               MR. BRILEY:   Okay.    Would you say just the

25   allegation, the fact that he's here, is in your mind a

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    little bit of evidence that's already in your mind?

2                VENIREPERSON FOSTER:     Yes.     I can't help it.

3    We're being honest here.      Maybe it's my 15 years

4    experience as a police officer, but to say that it's even

5    at this point would be a lie.

6                MR. BRILEY:   Thank you very much.       Who here

7    agrees with Sergeant Foster, that in their mind the

8    State's going to start off a little bit ahead just

9    because of the allegation?      Okay.       So on the second row,

10   would everybody here say that an innocent person could be

11   brought to trial?     Yes?   And, Mr. Thomason, I didn't see

12   a hand.    Would you say, No, I don't think an innocent

13   person probably could be brought to trial in a resisting

14   case?

15               VENIREPERSON THOMASON:      You know, you are

16   innocent until proven guilty, but I'm not really a

17   hundred percent sure how that whole process is going to

18   work.     But I mean if it comes to something whether you

19   stole a piece of candy from the store or you didn't

20   cooperate with the officer when he was trying to do his

21   job, you know, I mean I guess I would kind of go along

22   with what Officer Foster is saying, you know.           If it

23   comes, you know, all the way through here, there would

24   probably be, you know, just that inkling of, you know,

25   well if it's come this far, you know, he might be.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1             But for me, I would have to go with what the

2    evidence is telling me, go with what the witnesses there

3    are and judge based off the witnesses' testimony on that.

4    So I'm kind of, you know, in between here on something

5    like that, but until I was able to hear all the evidence

6    and/or see all the evidence and hear the witness's

7    statements, I don't know if I'd be able to give an

8    accurate assessment of that whole process until I was

9    able to hear it.

10            MR. BRILEY:   Okay.    Well, you know, and if the

11   judge -- let's say that you're chosen as a juror and the

12   judge instructs you that Mr. Roberson is presumed

13   innocent and that the allegation is not to be used

14   against him, that's what the law says.     But is your

15   opinion something different, and is it strong enough that

16   you could not put that aside?

17            VENIREPERSON THOMASON:     Well, like I said a

18   while ago, I do believe that you are innocent until

19   you've been proven otherwise.     So if the judge told me to

20   set aside, you know, the fact that he is here and whether

21   he could be guilty or not, you know, I would set that

22   aside and, you know, really focus on the evidence, focus

23   on the witness's statements and determine for myself

24   based on those whether he's innocent or not.

25            MR. BRILEY:   Okay.    Thank you very much.     On

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    that third row, with a show of hands, who here believes

2    that an innocent person could be brought to trial for

3    resisting arrest?     That's everybody.     Thank y'all very

4    much.

5                This is where it's going to get tricky.     I'm

6    going to go down the row and ask each person for a

7    number, and that number corresponds to an answer.        The

8    question -- I'll repeat it a couple times -- is "If the

9    police charge a person with resisting arrest, that person

10   is probably guilty."       The first answer is, "I strongly

11   agree."

12               VENIREPERSON LITTEKEN:    I'm sorry.   I didn't

13   hear what you said.       I can't hear.

14               MR. BRILEY:    The statement is:   "If the police

15   charge a person with resisting arrest, that person is

16   probably guilty."     And there's six answers, and the first

17   one would be, "I strongly agree with that statement."

18   The second one would be, "I agree with that statement."

19   The third would be, "I slightly agree with that

20   statement."     The fourth would be, "I slightly disagree

21   with that statement."       The fifth is, "I disagree with

22   that statement."     And the sixth is, "I strongly disagree

23   with that statement."       Is everybody -- do y'all have a

24   number in your mind?       If I could just go down the line

25   here.     Juror No. 1, Ms. Taylor?

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1             VENIREPERSON TAYLOR:      Uh-huh.

2             MR. BRILEY:   Could you --

3             VENIREPERSON TAYLOR:      Three.

4             MR. BRILEY:   Three, okay.        And, Mr. Teakell?

 5            VENIREPERSON TEAKELL:      Two.

6             MR. BRILEY:   Mrs. Wright?

7             VENIREPERSON WRIGHT:      Two.

8             MR. BRILEY:   Ms. Hair?

9             VENIREPERSON HAIR:     Two.

10            MR. BRILEY:   Mr. Garcia?

11            VENIREPERSON GARCIA:      Four.

12            MR. BRILEY:   Mr. Foster?

13            VENIREPERSON FOSTER:      The one that's the

14   strongest?

15            MR. BRILEY:   Yes.

16            VENIREPERSON FOSTER:      One.

17            MR. BRILEY:   Mr. Billing?

18            VENIREPERSON BILLING:      Three.

19            MR. BRILEY:   Ms. Vale?

20            VENIREPERSON VALE:     Three.

21            MR. BRILEY:   And I'll go back down to No. 9.

22   Mr. Litteken?

23            VENIREPERSON LITTEKEN:        Four.

24            MR. BRILEY:   Mr. Vasquez?

25            VENIREPERSON VASQUEZ:      Three.

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1             MR. BRILEY:   Mr. Thomason?

2             VENIREPERSON THOMASON:      Three.

3             MR. BRILEY:   Ms. McClesky?

4             VENIREPERSON MCCLESKY:      Three.

5             MR. BRILEY:   Ms. Schmidt?

6             VENIREPERSON SCHMIDT:      Three.

7             MR. BRILEY:   Mr. Jantz?

8             VENIREPERSON JANTZ:     Five.

9             MR. BRILEY:   Ms. Steele?

10            VENIREPERSON STEELE:     Two.

11            MR. BRILEY:   Ms. McKinley?

12            VENIREPERSON MCKINLEY:      Four.

13            MR. BRILEY:   Mr. Chavez?

14            VENIREPERSON CHAVEZ:     Two.

15            MR. BRILEY:   Mr. Young?

16            VENIREPERSON YOUNG:     Four.

17            MR. BRILEY:   Mr. Logsdon?      I'm sorry,

18   Ms. Logsdon?

19            VENIREPERSON LOGSDON:      Three.

20            MR. BRILEY:   Ms. Ripperger?

21            VENIREPERSON RIPPERGER:      Two.

22            MR. BRILEY:   Ms. Trejo?

23            VENIREPERSON TREJO:     Four.

24            MR. BRILEY:   Ms. Parsons?

25            VENIREPERSON PARSONS:      Three.

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1             MR. BRILEY:   And Davis?

 2            VENIREPERSON DAVIS:    Two.

3             MR. BRILEY:   Thank you.      I'll come back and I'll

4    probably follow up with that toward the end of my jury

5    selection presentation.

6             The fourth topic that I want to talk to y'all

7    about is witness credibility.    Like the State went over,

8    a juror has the right to believe all, part or none of the

9    testimony of any witness that takes the stand.       But that

10   witness credibility comes from the stand.       It shouldn't

11   be something that you already assign to a person before

12   they take the stand.   We talked about police officers.

13   Many people -- some people hold police officers in high

14   esteem, but the law is going to require that you assess

15   their credibility from the stand.

16            Sergeant Foster, I believe that you told the

17   State that -- and correct me if I'm wrong; I could have

18   easily have gotten it wrong -- that you are going to

19   assess their credibility from the stand, but you might

20   consider their training and experience before they take

21   the stand because you know them as, one, being a police

22   officer, which you know what goes into that, and, two,

23   you might know some of these police officers.

24            VENIREPERSON FOSTER:    Right.     I don't see how

25   you get around not taking into account their training and

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1    experience.     And I just want to be clear.      It doesn't

2    matter if it's a police officer up there or not.         If -- I

3    have -- it's just like me as a sergeant dealing with

4    officers.     You know, I -- I'm objective and I look at

5    both sides, and then I formulate my decision on what I'm

6    gonna do.     The same way with somebody on the stand,

7    regardless if it's an officer or not, what they say, if

8    there's no contradiction, stuff just like we talked about

9    with body language, stuff like that, it applies to that

10   side, also.     I just want to be clear on that.

11               MR. BRILEY:   Thank you.

12               VENIREPERSON FOSTER:   Did I answer your

13   question?

14               MR. BRILEY:   I think you did answer my question.

15   But if police officers take the stand, are you going to

16   assign them even a little bit of credibility just on

17   their training and experience?         You're going to assume

18   that they have certain training and experience?

19               VENIREPERSON FOSTER:   Right.     If you're dealing

20   with this case of resisting arrest.         You have an officer,

21   obviously, that was right there seeing everything happen,

22   probably multiple officers who are trained from the

23   get-go of noting things, you know, just more than, I

24   would think, than the average person.

25               MR. BRILEY:   But you're going to give them, I

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1    guess, the benefit of the doubt that they already have

2    that training before they even take the stand?

3               VENIREPERSON FOSTER:    Well, every person on that

4    screen that you put up there is a Wichita Falls police

5    officer.    I'm fully aware of their training.    I'm also a

6    field training sergeant, so I understand completely with

7    having been part of that process, the field training

8    process.    So I know once they get cut loose and on their

9    own, I have an understanding of what they've been through

10   to get to that point.      So maybe if it was an outside

11   agency, I'm not real familiar with their training.         A lot

12   of times I've had experience with those people you put on

13   the screen in working with them.      So I know what all they

14   do and training and everything like that.      All that

15   together, you know.      So --

16              MR. BRILEY:    Okay.

17              VENIREPERSON FOSTER:    I can't discount that.     I

18   mean it's -- now, I'll still analyze what they say and

19   see if it meets with what was presented as evidence.         And

20   to me it's no different than what I'm doing when I'm

21   checking a report at the end of a shift for an arrest

22   that I have to sign off on a probable cause.      I have sent

23   people back to jail and dropped charges on people because

24   they didn't meet probable cause.      I'm not afraid to work

25   either side.

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1              MR. BRILEY:    Okay.   Thank you very much.       And

2    this is my second perhaps confusing question because it's

3    not up on the screen.     But my question or my statement, I

4    suppose, is, "I will start a police officer off with

5    added credibility before hearing his or her testimony."

6    And the answers are the same.        No. 1, "I strongly agree";

7    No. 2, "I agree;" No. 3, "I slightly agree;" No. 4,

8    "Slightly disagree;" No. 5, "Disagree;" and No. 6,

9    "Strongly disagree."     And if I could go down the line

10   again.

11             VENIREPERSON FOSTER:       I've got a question.

12             MR. BRILEY:    Yes, sir.

13             VENIREPERSON FOSTER:       I don't know if everybody

14   else remembered the slide, but the State put a slide up

15   there.   And that's when I got hung up on I was trying to

16   decipher, okay, are you talking about a bias or are you

17   talking about training and experience?        And if I remember

18   your slide right, the very first one was assigning more

19   or less credibility to a police officer, and the second

20   one you put up there was taking into account their

21   training and experience.     Which -- is that what we're

22   talking about, or are we talking about -- is your

23   question better put, Am I going to be biased towards him

24   since he's an officer?     Or are we talking about an actual

25   question of, Am I going to take into account his training

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1    and experience?     Which to me is two different things.

2                MR. BRILEY:   Well, I think my question would

3    include both of those things.      Many people may have

4    police officers in their families here.      And so that

5    might, one, create a bias towards I believe police

6    officers are going to be truth tellers; and, second, that

7    they have certain training and experience before we ever

8    hear what kind of training they have, what kind of

9    experience they have.     Just being in uniform, you might

10   assign them credibility both in their knowledge and

11   experience and training.      And, also, you know, any kind

12   of bias toward -- you know, I have the utmost respect for

13   police officers and I believe that they always tell the

14   truth.     By the way, will you say that police officers

15   sometimes lie?

16               VENIREPERSON FOSTER:   Will I say that?     Yeah,

17   that's human nature type stuff right there.      I mean

18   that's -- I would like to say that our HC does a good job

19   of getting rid of those kind of people.      Yeah, it

20   happens.     I guess I'm going to have to hear the

21   questions, how you're putting the questions.      Because I

22   separate the two.     That's why -- you remember me asking

23   that?    What are we talking about, because I'm confused.

24   If you get up there and you ask them about their training

25   and experience, are you not supposed to take that into

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1    consideration when they're telling us what they saw and

2    stuff?

3             THE COURT:    Will you approach, please?    I think

4    I have a solution for this.

5             (At the bench, off the record)

6             MR. BRILEY:    I'm sorry about the confusion,

7    everybody.   So let me rephrase my question.    I suppose

8    the statement is, "I'm going to assign more credibility

9    before I ever hear the police officer simply because of

10   the fact that he wears a police officer's uniform and a

11   badge and that he is a police officer."     So before we

12   hear them testify at all, I'm going to assign them more

13   credibility because they are a police officer?      And No. 1

14   is, "I strongly agree with that statement;" No. 2 is

15   "Agree;" No. 3 is, "Slightly agree;" four is "Slightly

16   disagree;" five is, "Disagree;" and six is, "Strongly

17   disagree."   Everybody got a number in mind?    Ms. Taylor,

18   what would you say?

19            VENIREPERSON TAYLOR:       Two.

20            MR. BRILEY:    And Mr. Teakell?

21            VENIREPERSON TEAKELL:       Two.

22            MR. BRILEY:    And Ms. Wright?

23            VENIREPERSON WRIGHT:       Two.

24            MR. BRILEY:    Ms. Hair?

25            VENIREPERSON HAIR:     Two.

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1         MR. BRILEY:    And Mr. Garcia?

2         VENIREPERSON GARCIA:       Two.

3         MR. BRILEY:    Mr. Foster?

4         VENIREPERSON FOSTER:       Three.

5         MR. BRILEY:    And Mr. Billing?

6         VENIREPERSON BILLING:       Two.

7         MR. BRILEY:    Ms. Vale?

8         VENIREPERSON VALE:     Two.

9         MR. BRILEY:    And Mr. Litteken?

10        VENIREPERSON LITTEKEN:        Four.

11        MR. BRILEY:    Mr. Vasquez?

12        VENIREPERSON VASQUEZ:       Three.

13        MR. BRILEY:    Mr. Thomason?

14        VENIREPERSON THOMASON:        Three.

15        MR. BRILEY:    Ms. McClesky?

16        VENIREPERSON MCCLESKY:        Three.

17        MR. BRILEY:    Ms. Schmidt?

18        VENIREPERSON SCHMIDT:       Five.

19        MR. BRILEY:    Mr. Jantz?

20        VENIREPERSON JANTZ:     Four.

21        MR. BRILEY:    Ms. Steele?

22        VENIREPERSON STEELE:       Two.

23        MR. BRILEY:    Ms. McKinley?

24        VENIREPERSON MCKINLEY:        Four.

25        MR. BRILEY:    Mr. Chavez?

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1                VENIREPERSON CHAVEZ:       Two.

2                MR. BRILEY:     Mr. Young?

3                VENIREPERSON YOUNG:       Four.

 4               MR. BRILEY:     Ms. Logsdon?

5                VENIREPERSON LOGSDON:        Four.

6                MR. BRILEY:     Ripperger?

 7               VENIREPERSON RIPPERGER:        Three.

 8               MR. BRILEY:     And Ms. Trejo?

 9               VENIREPERSON TREJO:       Four.

10               MR. BRILEY:     And Ms. Parsons?

11               VENIREPERSON PARSONS:        Three.

12               MR. BRILEY:     And Mr. Davis?

13               THE REPORTER:     I'm sorry.      What was Mr. Davis'

14   answer?

15               MR. BRILEY:     Mr. Davis was two.

16               THE REPORTER:     Two.

17               MR. BRILEY:     Okay.    Let me go down the first row

18   here.     Ms. Taylor, do you agree that you would start off

19   a police officer with added credibility before he took

20   the stand and spoke anything, right?

21               VENIREPERSON TAYLOR:       Uh-huh.

22               MR. BRILEY:     And my question now, I suppose, is

23   if the judge tells you that the law says something

24   different -- you're familiar with police officers.

25               VENIREPERSON TAYLOR:       Uh-huh.

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1              MR. BRILEY:   That may be why you give them added

2    credibility.    Do you think that's something you could put

3    aside, or are your feelings so strong that you would say,

4    No, I'm still going to give them added credibility even

5    if the judge says, you know, the law is something

6    different?

7              VENIREPERSON TAYLOR:   No, I could put it aside

8    because, you know, like he was saying, there's good cops

9    and there's bad ones.    So I just -- I think it would just

10   depend with me what was said, too, you know.     I mean,

11   yeah, would start off thinking they know a lot because

12   like, you know, with my family, I know what they go

13   through, the training and their experience and

14   everything.    But then it would ultimately matter to me,

15   you know, actually what they did say.

16             MR. BRILEY:   Okay.

17             VENIREPERSON TAYLOR:   And with everything else

18   into account, you know, the witnesses and all that.        Did

19   I answer that, or did I get off of that?

20             MR. BRILEY:   You answered it, but I heard two

21   things.

22             VENIREPERSON TAYLOR:   Okay.

23             MR. BRILEY:   You know, thank you very much for

24   your answer, but --

25             VENIREPERSON TAYLOR:   Just to be sure, I mean

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 1   I'm more -- I more lean towards their experience.         I mean

 2   that's what they do.    That's their living.    They do this

 3   every day.   Like my brother-in-law was like a detective.

 4   They read people and they -- I just -- I just go more

5    with that, you know, with their experience.

 6             MR. BRILEY:   And I heard that you could put it

 7   aside, but it was -- but you also said, you know, after

 8   you heard some of what they said -- and what the rule, I

 9   suppose, is going to be is that before --

10             VENIREPERSON TAYLOR:   Well, I mean you're asking

11   me -- I have the previous -- yes, I do believe when I'm

12   probably going in that I am a little more on the side

13   with the law enforcement, but I wouldn't make a decision

14   just on that.   I would weigh in what -- everything I

15   heard.   But I do -- I do have a preconceived idea before

16   because if they're going to, you know, bring an

17   experienced person in, I'm gonna think they're really

18   experienced in that area, you know.      Does that make

19   sense?

20             MR. BRILEY:   Yes, I appreciate that.

21             VENIREPERSON TAYLOR:   Okay.

22             MR. BRILEY:   But would you say that even

23   starting off, before the officer testifies, you would

24   probably have a little bit --

25             VENIREPERSON TAYLOR:   I'd probably have some,

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1    yeah, I will.

2              MR. BRILEY:    -- a little bit of added

3    credibility?

 4             VENIREPERSON TAYLOR:       Yeah, I do.   Yeah.

5              MR. BRILEY:    Okay.     And if the judge said that

6    you can't do that; you have to put that aside, do you

7    think that that's still going to be there in the back of

8    your mind?     You're going to give them a little bit more

9    credibility?

10             VENIREPERSON TAYLOR:       Well, I don't know.      I've

11   never had to do this.     I've never had to do it.         I mean I

12   would hope that I would do what the judge told me to do

13   and I would try.

14             MR. BRILEY:    Okay.

15             VENIREPERSON TAYLOR:       But --

16             MR. BRILEY:    Okay.     Thank you.

17             VENIREPERSON TAYLOR:       I can't say as a matter of

18   fact.   I've mean I've never done it so I don't know.           I

19   don't have any experience at doing that.

20             MR. BRILEY:    Okay.     Thank you, Ms. Taylor.

21             VENIREPERSON TAYLOR:       Okay.

22             MR. BRILEY:    Mr. Teakell, you also agreed that

23   you would give the police officer added credibility

24   before he took the stand.        And, again, if the judge tells

25   the jury that's --

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1             VENIREPERSON TEAKELL:      I can go along with what

2    the judge says.

3             MR. BRILEY:   Okay.

4             VENIREPERSON TEAKELL:      But I've been brought up

5    all my life to respect officers because they put a badge

6    on and take an oath.   And that's just the way I feel.

7    And if the judge says take that out, I can.      But in the

8    back of my mind, I respect the police department.

9             MR. BRILEY:   Well, and the question is would you

10   give them added credibility?     Would you say that your

11   opinion that you're going to give them added credibility

12   is pretty strong?

13            VENIREPERSON TEAKELL:      I would think so.

14            MR. BRILEY:   And if the judge asks you to put

15   that opinion aside, can you do that?

16            VENIREPERSON TEAKELL:      I can do it, yeah.

17            MR. BRILEY:   Thank you.     Ms. Wright, you also

18   agreed with that statement, and you have an opinion that

19   you might start off a police officer with added

20   credibility.   Is that something you can put aside, or is

21   that going to be something that remains?

22            VENIREPERSON WRIGHT:     No, I could put it aside,

23   you know, if that's something that, again, they stated

24   that the judge order ordered us to do.      But I just think

25   in general probably the notion is that most of us -- my

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 1   opinion is citizens feel like we should be able to trust

 2   police officers and those that protect us.         So I -- not

3    knowing a lot of the training and stuff that goes on

 4   behind the scenes or prior to, I can't weigh that in.

 5   And I don't have anybody in my family that's a police

 6   officer or anything like that, so I mean I think I could

 7   be partial, I mean not one side or the other, I guess, if

 8   you will.

 9               MR. BRILEY:   Okay.

10               VENIREPERSON WRIGHT:     Does that make sense?

11               MR. BRILEY:   Yes, it does.    Okay.   Ms. Hair, you

12   also agreed with that statement.        Would you say that you

13   could put that opinion that you're going to start a

14   police officer with added credibility aside, or is that

15   something that, you know, is a strong enough opinion that

16   you probably couldn't put that aside?

17               VENIREPERSON HAIR:     Yes, I could put it to the

18   side.   There's good cops and there's bad cops.        I would

19   listen to both sides.      I wouldn't just automatically go

20   to one side.     I could put it aside.

21               MS. KUCERA:   Judge, can we approach?

22               (At the bench, off the record)

23               MR. BRILEY:   Mr. Garcia, you also agreed that,

24   you know, just because a police officer is in a uniform

25   or badge, you might give them added credibility before

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1    they took the stand?

2             VENIREPERSON GARCIA:       Right, because there's a

3    certain respect that.    But I could -- you know, if you

4    can't do that, you can't do that.

5             MR. BRILEY:    Okay.     Thank you.     Sergeant Foster,

6    you said you slightly agree with that statement?

7             VENIREPERSON FOSTER:       Right.     We're talking

8    about -- you said credibility, added credibility.          I want

9    to clarify again on that because I think we've gone back

10   to the original question, and that is what I'm having a

11   problem with resorting back to that.         To answer your

12   question, if somebody's in a uniform, just the mere fact

13   that they wear a uniform and a badge, it's the slightly,

14   if I remember right.    It's just a little bit just like I

15   felt with the D. A.'s office, just a little bit is why I

16   slightly agree with that.       Now, if you're going to use

17   added credibility by being a police officer, then you

18   take into account the credibility and experience, and my

19   number would probably be higher if you're going to

20   include that.

21            MR. BRILEY:    Okay.     Mr. Billing?

22            VENIREPERSON BILLING:       I'd give them a slight

23   edge on credibility just due to the nature of their job,

24   put them in the same category as firemen, those people

25   that serve in the military, just the risks that they take

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1    with their job.     So right off the bat, I give them more

2    credibility.

3                MR. BRILEY:    Okay.

4                VENIREPERSON billing:       But I could set that

5    aside.     The individual is presumed innocent until proven

6    guilty.

7                MR. BRILEY:    So if the judge instructed you, do

8    you think that you could put that opinion aside?

9                VENIREPERSON BILLING:       Yeah.

10               MR. BRILEY:    And judge their credibility only

11   from the stand?

12               VENIREPERSON BILLING:       Yeah.

13               MR. BRILEY:    Ms. Vale?

14               VENIREPERSON VALE:     Yes, I could set it aside

15   and just base it on the facts and put my faith in the

16   process.

17               MR. BRILEY:    Okay.   Thank you.    Actually, let me

18   skip to Ms. Steele.       You said that you agree with the

19   fact that you would give a police officer added

20   credibility just because of the fact that he's in a

21   uniform and badge before he takes the stand?

22               VENIREPERSON STEELE:       Yes.

23               MR. BRILEY:    Are you saying that could you put

24   that aside if the judge asked you, or is that a pretty

25   strong opinion and you're probably going to give them

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1    added credibility before they take the stand even if the

2    judge tells you differently?

3             VENIREPERSON STEELE:     I could put it aside.

4             MR. BRILEY:   Thank you.    Carlos Chavez, would

5    you say that your opinion is strong enough that you

6    couldn't put it aside, or if the judge told you to judge

7    the credibility only from the stand?

 8            VENIREPERSON CHAVEZ:     I could put it aside.

9             MR. BRILEY:   You could put it aside?

10            VENIREPERSON CHAVEZ:     Yes.

11            MR. BRILEY:   Okay.    Thank you.   I'll move on to

12   my next question.   Actually, it's a new topic.     That's

13   the standards of proof.    Mr. Billing let us know that in

14   this case the State is going to have to prove beyond a

15   reasonable doubt every element of the crime.      There's

16   other standards of proof such as reasonable suspicion,

17   probable cause, preponderance of the evidence, and clear

18   and convincing evidence.    And those are all in order up

19   to the highest, which is beyond a reasonable doubt.

20   Sergeant Foster, could I pick on you, I suppose, and use

21   your knowledge?

22            VENIREPERSON FOSTER:     Sure.

23            MR. BRILEY:   Could you tell us about reasonable

24   suspicion a little bit?

25            VENIREPERSON FOSTER:     Well, it's like having --

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        133

1    say I work third shift, and there's a business closed and

2    I see somebody walking around behind the building, and I

3    have a reasonable suspicion at that point that he's

4    probably committing a crime like burglary or some kind of

5    theft or something like that, which would give me enough

6    to detain him to either prove or disprove if you get to

7    the point of probable cause and that stuff.

8             MR. BRILEY:   Okay.    And then let's say that you

 9   investigated and you found some additional facts and that

10   gave you probable cause that the crime had been

11   committed, what could you do then?

12            VENIREPERSON FOSTER:     Make an arrest.

13            MR. BRILEY:   Okay.    Thank you.   After a

14   reasonable suspicion and probable cause, the next

15   standard of proof that the law provides is -- or at least

16   one of them is by a preponderance of the evidence.      And

17   that would be something that we use in civil cases, and

18   that would be a case where like one side versus the other

19   and whose case is more likely than not.      Perhaps at the

20   end of the trial you wouldn't have a firm belief to

21   either one of them, but it's more likely than not.      And

22   that would be preponderance of the evidence.

23            I don't know that that alone makes sense.      Does

24   that make sense to you, Mr. Billing?

25            VENIREPERSON BILLING:     Yes.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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 1               MR. BRILEY:   Okay.    Does anybody have a question

 2   on that?     Okay.   Like I said, that would be used in civil

 3   trials.     The next thing would be clear and convincing

 4   evidence.     The best example of that would be if the State

 5   was going to come and take somebody's children away, they

 6   would need clear and convincing evidence of their

 7   allegations.     And the definition for that is that the

 8   proof would have to be so much to produce in the mind of

 9   the trier of fact or the jury or the judge that it would

10   produce a firm belief as to the allegations, that the

11   allegations were true.      So they have to produce enough

12   evidence to give you a firm belief that those allegations

13   are true.

14               And the reason I bring all this up is I kind of

15   want to compare that with beyond a reasonable doubt,

16   since we can't tell you what beyond a reasonable

17   doubt is.     We don't have a definition.     Like the State

18   said, what's reasonable to one person might be different

19   than another person's, so we don't have a definition of

20   beyond a reasonable doubt.        But we do know that it's

21   higher than clear and convincing evidence, and we know

22   that that is enough evidence that would produce in your

23   mind a firm belief.

24               So I suppose my question is -- Ms. Vale, can I

25   ask you this question?      Could you imagine a situation

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       135

 1   where you firmly believe something but still have a

 2   reasonable doubt as to the allegation?

 3              VENIREPERSON VALE:   It's hard.    I'd have to have

 4   all the facts.    I'm a facts person.     I'm a trained person

 5   with the government, so based on facts and processes.

 6   Yeah.

 7              MR. BRILEY:   I suppose -- have you ever seen a

 8   news story where maybe you haven't seen the trial, you

 9   haven't heard all the facts?

10              VENIREPERSON VALE:   Right.

11              MR. BRILEY:   But you've heard a little bit, and

12   you firmly believe something happened.

13              VENIREPERSON VALE:   Like the Trevon Martin case

14   or any of the special cases that you hear on the media or

15   stuff?    It's not enough for me to make a decision on

16   unless I'm there listening to all the facts.       I'm a facts

17   person.

18              MR. BRILEY:   Thank you.

19              VENIREPERSON VALE:   Uh-huh.

20              MR. BRILEY:   Is there anybody here who would say

21   on the first row that, you know, they couldn't

22   differentiate between that.     If I firmly believed

23   something, if they prove something enough that I firmly

24   believe it, it wouldn't be possible for me to have a

25   reasonable doubt?    Anybody here?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                           136

1              VENIREPERSON FOSTER:     Say it again.

2              MR. BRILEY:   Actually, let me ask it this way.

3    Who here on the first row would say, yes, to the

4    statement, I could firmly believe something and still

5    have a reasonable doubt?    So how about no to that

6    answer?   Everybody said no.     Okay.     And, you know, the

7    State gave the situation of the Friends picture.            And my

8    example, there's been times where I've parked in the

9    garage and I'm heading to work and I get halfway down the

10   street and I start to think, did I close the garage door,

11   did I not close the garage door.         Anybody had that

12   experience?   There are times where I may firmly believe

13   that I did close the garage door, but I have enough of a

14   hesitation, I have enough of a reasonable doubt to say I

15   might need to turn back and actually go see if the garage

16   door actually closed.   Most of the times the garage is

17   closed.   There have been a couple of times where it

18   hasn't been, and I'm glad I did turn back.         That's where

19   clear and convincing evidence where you have a firm

20   belief of something to beyond a reasonable doubt where

21   you still may have a reasonable doubt.

22             Does anybody have any questions about that?

23   Sorry if I made it confusing.      Well, that -- that's all

24   the questions that I have for you.         Thank y'all very much

25   for your time and attention.

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 1            THE COURT:     All right.     Ladies and gentlemen,

 2   that was the conclusion of the voir dire process.        This

 3   will take a few minutes.        There will be some of you that

4    will be called back in to clarify possibly some of your

 5   answers, so they can exercise their strikes after that.

 6   This process will take a little bit longer, usually about

 7   30 minutes.    But in the meantime, like I said, people

 8   will be coming back in.     I think there are some we need

 9   to call back in.     And then once we get done with that,

10   they're gonna exercise their strikes; I'll bring you back

11   in and let you know who the lucky six are like I said

12   before; and then at that time I'll be able to release the

13   rest of you.

14            So this will be a little bit longer delay, but

15   it's worth it to all of you except six.        So if you'll

16   just have a seat out in the hall, go to the restroom,

17   whatever you need to do, and we'll bring you back in.

18   When you come back in, you don't need to sit in any

19   order, either.     Thank you.

20            (Open court, defendant present, no panel)

21            I'll start with the State.        Is there anybody

22   that you think we need to bring back in to clear up?

23            MS. HONEY:     Can we bring in juror No. 6?

24            THE COURT:     Juror No. who?

25            MS. HONEY:     Six, Mr. Foster.

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1             THE COURT:     Really?     You can, that's fine.

2             MR. BRILEY:     From the defense, just 1 and 3.

3             THE COURT:     That's one of the ones I had.         Okay.

4    Just one and three and six.        Okay.     Ms. Taylor, please.

5             THE BAILIFF:     No. 1?

 6            THE COURT:     No. 1.

7             THE BAILIFF:     Cheryl Taylor?        Ms. Taylor?   And

8    you can go up on the front bench.

9             THE COURT:     Yeah, you can just stand right up

10   here, Ms. Taylor, or you can sit if you'd like.           This is

11   a little bit less formal here.

12            VENIREPERSON TAYLOR:        Okay.

13            THE COURT:     There were some questions with

14   regard to your answers.

15            VENIREPERSON TAYLOR:        Okay.

16            THE COURT:     Unfortunately, in this process,

17   sometimes your answers have to be yes or no.           So I

18   understand the difficulty with it, especially with the

19   areas that we're dealing with.

20            VENIREPERSON TAYLOR:        Yes.

21            THE COURT:     But, unfortunately, we have to kind

22   of narrow it down.     Mr. Briley, you wanted Ms. Taylor?

23            MR. BRILEY:     Ms. Taylor, we talked about you

24   having feelings for police officers and you may give them

25   added credibility before they take the stand.           And you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                      139

 1   would try to set that aside, but you wouldn't -- I'm not

 2   trying to put words in your mouth.

 3              VENIREPERSON TAYLOR:     Yes.

 4              MR. BRILEY:     But you may not be able to put

 5   those feelings aside.       And we're just trying to get a yes

 6   or no.

 7              VENIREPERSON TAYLOR:     Well, I would honor the

 8   judge if that's what he told me to do.       You know, I would

 9   do that.    But -- yes.

10              MR. BRILEY:     I know you want to follow.

11              VENIREPERSON TAYLOR:     Yes.

12              THE COURT:     Yes, that you would set it aside?

13              VENIREPERSON TAYLOR:     Yes, because I would want

14   to do what I was -- what you would want me to do.

15              MR. BRILEY:     I know that you want to follow the

16   rules --

17              VENIREPERSON TAYLOR:     Yes.

18              MR. BRILEY:     And I'm not saying anything about

19   that.    But you might have feelings so strong that it

20   might not be possible.

21              VENIREPERSON TAYLOR:     Well, you know, I do

22   respect law enforcement.       I think they're, you know,

23   they're authoritive.       And I know in courts that's the

24   reason they bring in specialists or doctors or, you know,

25   people, you know, that have experience in that particular

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                               02-13-00582-CR                      140

1    area.   And that's -- you know, we kind of think, well,

2    they know something or they wouldn't be bringing them in.

3    That's kind of just my -- you know, what I think, but --

4                THE COURT:   Let me ask it this way.   You're

5    going to have possibly in this trial witnesses that are

6    officers and witnesses that are not officers.

7                VENIREPERSON TAYLOR:   Yes, uh-huh.

 8               THE COURT:   When they take the stand, you know

9    nothing about them, either one.

10               VENIREPERSON TAYLOR:   Uh-huh.

11               THE COURT:   You have no idea what their

12   experience may be.

13               VENIREPERSON TAYLOR:   Yes.

14               THE COURT:   Are you going to assign the officer

15   extra credibility, before you hear any testimony at all,

16   over a layperson, a normal person, simply because he

17   takes the stand wearing a badge and a uniform?

18               VENIREPERSON TAYLOR:   I don't know how to ask --

19   I don't -- I want to be truthful, but I don't --

20               THE COURT:   You haven't heard anything about his

21   experience.     You haven't heard anything about his

22   training.

23               VENIREPERSON TAYLOR:   If I don't know anything

24   about his experience -- because you're gonna bring in the

25   ones that was actually -- you had listed on the thing?

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1               THE COURT:    That's them.      They will, possibly.

2               VENIREPERSON TAYLOR:     Oh.     I mean the ones to

3    see if we knew or not.

4               THE COURT:    But what I'm saying is before they

5    even start testifying, you know nothing about his

6    experience.

 7              VENIREPERSON TAYLOR:     Uh-huh.

8               THE COURT:    You know nothing about his training,

 9   who trained him, how he was trained, what he was trained

10   in.    He walks in just like any other person.        The only

11   difference is he wears a badge and possibly a uniform.

12   Are you going to give that person extra credibility

13   simply because he is an officer?          There's no wrong

14   answer, so either way.

15              VENIREPERSON TAYLOR:     I know.     I know.   I just

16   want to be truthful.      I'll say no, but because, like you

17   said, I think they have some credibility and experience

18   or they wouldn't be there.       But, like you say, I don't

19   know the individual policeman or whoever, so I don't know

20   how much credibility they do have.

21              THE COURT:    Okay.

22              VENIREPERSON TAYLOR:     Did I -- I don't know.         I

23   guess I don't really know how to answer it.

24              THE COURT:    I understand.

25              VENIREPERSON TAYLOR:     You know, so I'm -- I was

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        142

1    brought up to respect officers and --

2              THE COURT:    There's a difference between

3    respecting somebody and giving them credibility.

4              VENIREPERSON TAYLOR:    I know, but, you know, I

5    -- that's their job and I just think most of them, I

6    think, are credible.     But, like you say, the particular

7    ones, I don't know.     So I would have to put it aside

8    because I don't know that individual, how credible he is,

9    until he testified or whatever.

10             MS. KUCERA:    I think everyone understands what

11   you're saying, so, one, thank you for being honest.       We

12   appreciate that because it makes our jobs a little

13   easier.   What we're asking is -- what my slide said was,

14   you know, officers, obviously, we understand that they go

15   through certain training and experience, right?

16             VENIREPERSON TAYLOR:    Uh-huh.

17             MS. KUCERA:    What we're asking you to do is --

18   let's say the officer, before you hear anything about --

19   he could have one day of training or he could have 15

20   years, okay.

21             VENIREPERSON TAYLOR:    Uh-huh.

22             MS. KUCERA:    Before we talk about anything in

23   his training and experience, if he gets on the stand, it

24   sounds to me like you're saying if the judge tells you

25   you can't automatically assume he's telling the truth

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                         143

 1   before he gets on the stand, then as long as you can wait

 2   until you hear what he has to say and what his training

 3   and experience is, is that -- do you understand what I'm

 4   saying?    That you can wait until he gets on the stand

 5   before you evaluate his training and his experience, his

 6   demeanor, like we talked about.       Do you think you could

 7   do that?

 8              VENIREPERSON TAYLOR:     Yes.   I would have to wait

 9   till after he told what experience they had.         But then

10   after he did that, I might have some -- is that wrong?

11              MS. KUCERA:   The law says you can, when you're

12   evaluating what he's saying, you can consider that he's

13   had this much training or this much experience.         You can

14   consider that when you're evaluating his ability to tell

15   the truth.    We talked about demeanor and is he consistent

16   in what he says.    Those are things you can think about

17   and consider.    The only thing the law says you can't do

18   is automatically assume he's telling the truth before he

19   ever gets on the stand.

20              VENIREPERSON TAYLOR:     I understand.

21              MS. KUCERA:   You understand, okay.      Do you think

22   you could follow the law in that case?        Because the law

23   says --

24              VENIREPERSON TAYLOR:     Yes.

25              MS. KUCERA:   Okay.    You could follow the law?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1             VENIREPERSON TAYLOR:        Yes.

2             THE COURT:     Anything further, Mr. Briley?

3             MR. BRILEY:     Ma'am, you stated that you had a

4    nephew who works for the Wichita Falls Police

5    Department.

6             VENIREPERSON TAYLOR:        Uh-huh.

7             MR. BRILEY:     Who is that nephew?

8             VENIREPERSON TAYLOR:        Tristan Dosier.

9             MR. BRILEY:     Thank you.

10            THE COURT:     All right.     Okay.   Thank you,

11   Ms. Taylor.

12            (Venireperson Taylor exits courtroom)

13            Is there a challenge for cause?

14            MR. BRILEY:     Yes.

15            THE COURT:     Challenge for cause on the basis

16   of --

17            MR. BRILEY:     She would give added credibility to

18   police officers before they take the stand.

19            THE COURT:     Challenge for cause denied.         Next

20   one would be Karen Wright.

21            THE BAILIFF:     Ms. Wright?

22            THE COURT:     Hello, Ms. Wright.      We wanted to

23   call you back in to try to clarify an answer.

24            VENIREPERSON WRIGHT:        Okay.

25            THE COURT:     And like I tell people, I know it's

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                         145

 1   difficult in this situation with some of these

 2   concepts -- you can sit down.       It's okay.   With some of

 3   these concepts, it's hard to say yes or no.        However, in

 4   these situations, sometimes we have to narrow it down to

 5   get to a yes or no answer.       Mr. Briley, I believe.

 6            MR. BRILEY:     Yes.    Ms. Wright, I think we were

 7   pretty clear on the credibility issue, but you also

 8   mentioned that you know Officer Iper.

 9            VENIREPERSON WRIGHT:       I do.

10            MR. BRILEY:     How well do you know Officer Iper?

11            VENIREPERSON WRIGHT:       Through our kids sports.

12            MR. BRILEY:     Okay.    Do you think you would give

13   him specifically more credibility before he takes the

14   stand because --

15            VENIREPERSON WRIGHT:       No.

16            MR. BRILEY:     Thank you.

17            THE COURT:     Anything from the State?

18            MS. HONEY:     No.

19            THE COURT:     Thank you, Ms. Wright.

20            VENIREPERSON WRIGHT:       Uh-huh.

21            (Venireperson Wright exits courtroom)

22            THE COURT:     Any challenge with regard to

23   Ms. Wright for cause?

24            MR. BRILEY:     No, Your Honor.

25            THE COURT:     I believe the last one that you were

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                      146

 1   asking to have brought back in was Sergeant Foster?

 2               MS. HONEY:    Yeah.   You can disregard our

 3   request.

 4               THE COURT:    All right.     And I believe,

 5   Mr. Briley, you had No. 11?

 6               MR. BRILEY:    No, I think that's all that we

 7   need.

 8               THE COURT:    Okay.   I'm sorry.    All right.

 9   Mr. Briley, do you have your challenges for cause ready?

10               MS. HONEY:    There are none from the State.

11               MR. BRILEY:    Just No. 6.

12               THE COURT:    No. 6 challenge for cause will be

13   granted.     All right.    So let me see if I got this

14   straight.     There's a challenge for cause on Ms. Taylor.

15   I believe that was denied.        Challenge for cause on

16   Ms. Wright.     There was a challenge for cause on Sergeant

17   Foster, correct?     That was granted.       No other challenges

18   for cause by either the State or defense?

19               MS. HONEY:    No, Your Honor.

20               THE COURT:    Good.   How long do you need to make

21   your strikes?     Ten minutes?

22               MS. HONEY:    Yes.

23               THE COURT:    Three strikes each.     Let's see if we

24   can get it done in 10 minutes.         Off the record.

25               (Preemptory strikes exercised)

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                       147

1                (Open Court, defendant present, no panel)

2                THE COURT:     Let's go back on the record now in

3    Cause No. 58017-E.        State's present; defendant's present;

4    defendant's attorney is present, outside the presence of

5    the venire panel.        The State and the defense have been

6    given time to exercise their strikes.          Has the State got

 7   theirs and the defense?        If you would hand them to me,

8    please.     All right.

9                The State has struck Anthony Garcia, No. 5;

10   Gerald Litteken, No. 9; and Thomas Vasquez, No. 10.          The

11   defense has struck No. 1, Cheryl Taylor; No. 2, Ronnie

12   Teakell; No. 7, Douglas Billing, leaving us with a jury

13   of -- keep up and make sure I've got this right -- No. 3,

14   Karen Wright; No. 4, Jamie Hair; No. 8, Eileen -- is it

15   Vale?     Is that correct?

16               THE BAILIFF:     Yes, sir.

17               THE COURT:     Okay.   No. 11, Tyler Thomason and

18   No. 12, Linda McClesky and No. 13, Tina Schmidt.          Is that

19   what y'all have?

20               MS. HONEY:     Yes, Your Honor.

21               THE COURT:     Mr. Briley, is that correct?

22               MR. BRILEY:     Yes, Your Honor.

23               THE COURT:     All right.    Just so the record is

24   clear, No. 22 was previously stricken by the court or

25   excused by the court and No. 6, Sergeant Foster, the

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
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1    challenge for cause was granted.          Anything further at

2    this time from the defense or the State before we bring

3    the jury back in and seat them?

4                MS. KUCERA:     No, Your Honor.

5                MR. BRILEY:     No, Your Honor.

6                THE COURT:    All right.     Let's go off the record.

7                (Discussion off the record)

 8               (Open court, defendant and jury panel present)

 9               THE COURT:     Okay.    Y'all be seated, please.      All

10   right.     As I call your name, will you please come forward

11   and have a seat here in the jury box.            Just so the record

12   is clear, back on in this cause, 58071, I believe?

13   58017-E.     Venire panel, of course, is back present in the

14   courtroom, defendant, defendant's attorneys, and the

15   State.     Let's see.     Karen Wright, No. 3.      And there's --

16   as you come forward to have a seat in the jury box,

17   there's instructions and a button for you.            No. 4, Jamie

18   Hair,; No. 8, Eileen Vale.          Did I pronounce your name

19   right?     Is it Vale?

20               JUROR VALE:     Uh-huh.

21               THE COURT:     Okay.    Thank you.    No. 11, Tyler

22   Thomason; No. 12, Linda McClesky; and finally, No. 13,

23   Tina Schmidt.     All right.       If each member of the jury

24   will please stand and raise their right hand for me.

25               (The jury was sworn)

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                          149

1              THE COURT:   All right.    Thank you.    Be seated,

2    please.   All right.   That's our lucky six.      For everybody

 3   else who's here on the panel, I spoke with the district

4    clerk, and me releasing you here today here in just a

5    couple minutes will end your service for the week.

6    There's no other trials starting this week, so you don't

 7   have to check back in like you have been doing.           I

8    appreciate you being here.    I appreciate you going

9    through the voir dire process.      I hope it's been somewhat

10   of a learning experience if you've never been through it

11   before.

12             I apologize for all the technical difficulties

13   and the delays we've had today.      I try to do things to

14   limit those, but there's always going to be a certain

15   amount of those with this system.      Another thing, too, I

16   really appreciate you being here, because you serve a

17   very important role just by sitting through the voir dire

18   process to give these attorneys to question you and your

19   feelings and to seat a jury in this matter.        It's

20   important to everybody:    The State, the defendant and

21   also the Court.   And on behalf of everyone, I thank you

22   for your service and you're released at this time.

23             (Remaining jury panel exits courtroom)

24             (Open court, defendant and jury present)

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       150

1                     COURT'S INSTRUCTIONS TO JURY

2              THE COURT:    All right.   Y'all be seated.   All

3    right.   Ladies and gentlemen of the jury, I'm going to

4    read to you some more instructions.       I believe you have a

5    copy in front of you.     The first five instructions are

6    the instructions I gave to you previously, so I'm going

7    to start with No. 6.

8              6.   Do not investigate this case on your own.

9    For example, do not:

10             A.   Try to get any information about the case,

11   the lawyers, the witnesses, or issues from outside this

12   courtroom;

13             B.   Go to places mentioned in the case to

14   inspect the places;

15             C.   Inspect items mentioned in this case unless

16   they are presented as evidence in court;

17             D.   Look anything up in a law book, dictionary,

18   or public record to try to learn more about the case;

19             E.   Look up anything on the Internet to try to

20   learn more about the case; or

21             F.   Let anyone else do any of these things for

22   you.

23             This rule is very important because we want a

24   trial based only on evidence admitted in open court.

25   Your conclusions about this case must be based only on

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        151

1    what you see and hear in this courtroom because the law

2    does not permit you to base your conclusions on

3    information that has not been presented in open court.

4    All the information must be presented in open court so

5    the parties and their lawyers can test it and object to

6    it if necessary.    Information from other sources, such as

7    the Internet, will not go through this important process

8    in the courtroom.    In addition, information from other

9    sources could be completely unreliable.     As a result, if

10   you investigate this case on your own, you could

11   compromise the fairness to all parties in this case and

12   jeopardize the results of this trial.

13             7.   Do not tell the other jurors your own

14   personal experiences or other people's experiences.      For

15   example, you may have special knowledge of something in

16   the case, such as technical or professional information.

17   You may even have even have expert knowledge or opinions,

18   or you may know what happened in this case or a similar

19   case.   If you have expert knowledge or opinions, you may

20   not share that expert knowledge or those opinions with

21   other jurors and you may not rely on your expert

22   knowledge or opinions in arriving at your verdict.      If

23   you share such information or rely on such information,

24   you and the other jurors will be considering things that

25   were not admitted in court.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       152

1             8.     I will decide matters of law in this case.

2    It is your duty to listen to and consider the evidence

 3   and to determine fact issues that I expect to submit to

4    you at the end of the trial.       After you have heard all of

5    the evidence, I will give you instructions to follow as

6    you make your decision.     The instructions also will have

7    questions for you to answer.

8             Every juror must obey all the instructions you

 9   have received and others that you will be given during

10   the trial.     If you do not follow the instructions, you

11   will be guilty of juror misconduct, and I may have to

12   order a new trial and start the process over again.        This

13   would waste your time and the parties' money, and would

14   require the taxpayers of the county to pay for another

15   trial.

16            Please keep these instructions and review them

17   as we go through the case.     If anyone does not follow

18   these instructions, please tell me."

19            All right.     At this time I'll call the State to

20   come forward and read the information.

21            MS. HONEY:     May I approach?

22            THE COURT:     You may.    And if the defendant would

23   please rise.

24            MS. HONEY:     "In the name and by the authority of

25   the State of Texas, before me, the undersigned assistant

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                         153

1    criminal district attorney of Wichita County, Texas, in

2    behalf of the State of Texas, and presents in and to the

3    County Court At Law 1 of Wichita County, Texas that in

4    Wichita County, Texas, Byrias Robert Roberson, herein

5    after called defendant, on or about the 10th day of July,

6    A. D., 2012, in said county and state, did then and there

7    intentionally prevent or obstruct officer Gabriel

8    Vasquez, a person defendant knew to be a peace officer,

9    from effecting an arrest of the defendant by using force

10   against said peace officer, against the peace and dignity

11   of the state.

12               THE COURT:   To that, how does the defendant

13   plead?     Guilty or not guilty?

14               THE DEFENDANT:   Not guilty.

15               THE COURT:   Thank you.    Be seated, please.   All

16   right.     Ladies and gentlemen of the jury, it's about 3

17   o'clock.     We've had kind of a rough day going back and

18   forth.     So, all right, what I'm gonna do is I'm gonna

19   release you at this time, give you a little bit of an

20   earlier day to make some arrangements hopefully with work

21   or with child care for the next day.

22               Optimistically, we can get this case to you late

23   tomorrow afternoon.      Possibly could run into Friday.     I

24   would expect it to be done by Friday at noon after

25   talking with the attorneys.        So that would be your

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                             154

 1   service.     You're lucky this is not a three-week long

 2   products liability trial or something along those lines.

 3   So your service will be completed this week.

 4               One question I have for you is, typically,

 5   courts start at nine o'clock.     If you would like to start

 6   at 8:30 and get an extra 30 minutes in, those 30 minutes

 7   do add up and can help move this along for your

 8   convenience.     Would you like to start at 8:30, or would

 9   you like to start at 9:00?     The Court can do whatever

10   y'all would like to do.     Let me ask it this way.      I'm

11   sorry.     Is there anybody who does not want to start at

12   8:30 and would rather start at 9:00?        You'd rather start

13   at 9:00?     Sometimes it's hard to get here at 8:30, and I

14   understand that, because we have other commitments.            So

15   let's do this.     We will start with our testimony tomorrow

16   morning, opening statements and then testimony at nine

17   o'clock.     The parties and I are going to work for the

18   rest of this afternoon and a little bit earlier than

19   y'all get here in the morning to try to move things along

20   once the trial does get started.     Okay?

21               So with that, I'm going to release you today and

22   ask that you be back here about ten till nine tomorrow so

23   we can get started at nine o'clock.        Okay.   One other

24   thing, I'm sorry.     Wear your buttons.     It lets everybody

25   know that you're a juror and lets them know that you're

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        155

1    under the rules that we've talked about and that they're

2    not supposed to speak with you or speak about the case in

3    your presence, okay.    Thank you very much.     We'll see you

4    in the morning.

5             (Open court, defendant present, no jury)

6

7             THE COURT:    Back on the record.     Ms. Honey, just

8    after we went off the record and released the jury, I

9    believe there was an incident with your investigator?

10            MS. HONEY:    Yes, Your Honor.    As I was

11   proceeding upstairs to our office, I spoke to our

12   investigator, Donnie Cavinder, and he mistakenly spoke to

13   one of the now jurors in this particular case.

14            THE COURT:    Okay.   And, Mr. Briley, would you

15   like for Mr. Cavinder to be sworn to testify as to what

16   was said between --

17            MR. BRILEY:    Yes, Your Honor.

18            THE COURT:    All right.   Mr. Cavinder, if you'd

19   raise your right hand for me, please.

20            (Witness sworn)

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                           156

1                          MR. DONNIE CAVINDER,

2       having been first duly sworn, testified as follows:

3                              EXAMINATION

4    BY THE COURT:

5             All right.     Mr. Cavinder, an issue has come up

6    that there might have been some contact between you and a

7    juror who was just sworn in; is that correct?

8             INVESTIGATOR CAVINDER:      Yes.

9             THE COURT:     All right.   Could you tell the Court

10   what that contact was, please, in as much detail as you

11   can?

12            INVESTIGATOR CAVINDER:      Yes.     I left the

13   courtroom prior to the jury being sat and took the

14   equipment back upstairs.     As I was coming down the ramp,

15   I noticed a female coming out of the courtroom, which I

16   believed to be Ms. Steele, Juror No. 15, I believe, who

17   had made a comment during voir dire that she recognized

18   me or knew of me or something to that effect.

19            THE COURT:     Juror No. -- to be clear for the

20   record, Juror No. 15 was released from service?

21            INVESTIGATOR CAVINDER:      Right.     And that's who I

22   believed I was speaking to.     And when I was starting to

23   talk to her, she goes, No, that was Ms. Steele.            So I

24   didn't realize at the time the lady I was talking to had

25   actually made the jury, either, and it came up that she

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                           157

 1   was the one that went to game warden school a couple

 2   years ago.   And I asked her what had happened there, and

 3   she told me she did it for two years, but it was down

 4   south of the border and it was dangerous down there and

 5   that's why she got out of it.        And we just kind of

 6   exchanged pleasantries about that.

 7             Nothing was brought up about the trial, the

8    defendant, anything like that.        And then I saw her, she

 9   had a button down in her right hand next to her side.

10   And that's when I said, Oh, you are on the jury.           She

11   said, yes, sir.   And I said, Okay, thank you.       We didn't

12   discuss the case at all.

13             THE COURT:    Mr. Briley, is there any inquiry you

14   would like to make as to the conversation?

15             MR. BRILEY:    No, Your Honor.

16             THE COURT:    Ms. Honey?

17             MS. HONEY:    Nothing from the State, Your Honor.

18             THE COURT:    I'll speak with Ms. Vale in the

19   morning when they come back just before we go back on the

20   record.   If she confirms what Investigator Cavinder was

21   saying, I don't see that there's been any misconduct or

22   any type of tampering with regard to this matter, since

23   the case wasn't discussed, unless you have anything

24   otherwise that you'd like me to hear.

25             MR. BRILEY:    Not at this point, Your Honor.          I'd

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        158

1    like to hear what she says in the morning.

2              THE COURT:   Sure.     Like I said, up to this

3    point, I don't see anything, but we'll speak with

4    Ms. Vale in the morning.       Anything else?

 5             MS. HONEY:   None from the State.

6              THE COURT:   All right.     Let's go off the record.

7    Thanks.

8                  (Evening recess taken)

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                  02-13-00582-CR                    159

 1   STATE OF TEXAS         )

 2   COUNTY OF WICHITA      )

 3       I, Cayce Coskey, Official Court Reporter in and

 4   for the County Court At Law No. 1 of Wichita County,

 5   State of Texas, do hereby certify that the above and

 6   foregoing contains a true and correct transcription of

 7   all portions of evidence and other proceedings

 8   requested in writing by counsel for the parties to be

 9   included in this volume of the Reporter's Record, in

10   the above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13       I further certify that this Reporter's Record of

14   the proceedings truly and accurately reflects the

15   exhibits, if any, admitted, tendered in an offer of proof

16   or offered into evidence.

17       I further certify that the total cost for the

18   preparation of this Reporter's Record is $______ and

19   was paid/will be paid by Wichita County.

20       WITNESS MY OFFICIAL HAND this the 4th day of

21   February, 2014.
                                Digitally signed by Cayce Coskey

22                Cayce Coskey  DN: cn=Cayce Coskey, o, ou,
                                email=clcoskey@att.net, c=US
                                Date: 2014.02.04 11:34:56 -06'00'
                  ____________________________
23                CAYCE COSKEY, CSR 6938, RPR
                  Expiration Date: 12/31/2014
24                900 7th Street, Suite 201
                  Wichita Falls, Texas 76301
25                940.766.8266 Fax 940.766.8156

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        1

1                            REPORTER'S RECORD

2                              VOLUME 4 OF 6

3                     TRIAL COURT CAUSE NO. 58017-E

4    THE STATE OF TEXAS             §      IN THE COUNTY COURT
                                    §
5    VS.                            §      AT LAW NO. 1
                                    §
6    BYRIAS ROBERSON                §      WICHITA COUNTY, TEXAS

7

8

9
       *****************************************************
10
                  DEFENDANT'S MOTION FOR MISTRIAL
11                 FOLLOWING JUROR COMMUNICATION
       *****************************************************
12

13

14

15

16

17

18              On the 22nd day of August, 2013, the

19   following proceedings came on to be heard in the

20   above-entitled and numbered cause before the Honorable

21   Gary W. Butler, Judge presiding, held in Wichita Falls,

22   Texas, Wichita County, Texas:

23              Proceedings reported by computerized

24   stenotype machine in real-time.       Reporter's Record

25   produced by computer-aided transcription.

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        2

1                       A P P E A R A N C E S

2    Ms. Victoria Honey
     SBOT NO. 24073195
3    Ms. Allyson Renee Kucera
     SBOT NO. 24081858
4    Assistant District Attorneys
     WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5    900 7th Street
     Third Floor
6    Wichita Falls,TX 76301-2402
     940.766.8113
7    ATTORNEYS FOR THE STATE OF TEXAS

8    -AND-

9    Mr. Mark Richard Briley
     SBOT NO. 24069418
10   WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
     600 Scott Ave
11   Suite 204
     Wichita Falls, TX 76301-2531
12   940.766.8199
     Ms. Kristen Homyk Howcroft
13   SBOT NO. 24032433
     THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14   900 8th Street
     Suite 815
15   Wichita Falls, TX 76301
     940.687.1576
16   ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        3

1                              I N D E X

2                              VOLUME 4

3                  (DEFENDANT'S MOTION FOR MISTRIAL
                    FOLLOWING JUROR COMMUNICATION)
4
     AUGUST 22, 2013                                Page     Vol.
5
     Appearances.................................       2     4
6
     WITNESSES
7                           Direct    Cross    Voir Dire     Vol.
     EILEEN VALE               5                              4
8
     Defendant's Motion For Mistrial.............       7     4
9
     Court's Ruling..............................       9     4
10
     Adjournment.................................     10      4
11
     Court Reporter's Certificate................     11      4
12

13

14

15

16

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       4

1                       P R O C E E D I N G S

2             (Open court, defendant present, no jury)

3             THE COURT:    Mr. Briley, with regard to the --

4    yesterday when investigator Cavinder testified with

5    regard to his contact with Ms. Vale.      Would you like me

6    to get Ms. Vale in here to inquire as to that, or would

7    his testimony yesterday be sufficient?      It's up to you.

8    What I'll tell you is what I'm gonna do is I'm gonna

9    reiterate my warnings to the jury this morning about

10   contact with anybody, so that may -- that may help.

11            But if you would like to -- if you would like to

12   have her come in and let me ask her about the contact

13   yesterday, I'd be more than happy to do that for you on

14   the record.

15            MR. BRILEY:     I would like that, Your Honor.

16            THE COURT:    All right.   Let's go off the record

17   while we get Ms. Vale.

18            (Juror Vale enters courtroom)

19            Good morning.     How are you, Ms. Vale?

20            JUROR VALE:     Good.

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        5

1                           MS. EILEEN VALE,

2      having been subsequently sworn, testified as follows:

 3                            EXAMINATION

4    BY THE COURT:

5             It's my understanding that yesterday as we were

6    all leaving, Investigator Cavinder and you had a

7    conversation.   Investigator Cavinder has already, when he

8    realized you were an actual seated juror in this, came

9    in, made the Court aware of it, made both sides aware of

10   it, and told us what the conversation was about.      Would

11   you please tell us, in your own words, what the

12   conversation was you had with Investigator Cavinder?

13            JUROR VALE:    He was just asking me about my

14   experience as a game warden.     And I told them that I did

15   cross fit with Marissa Cervantes.

16            THE COURT:    Okay.   And Marissa Cervantes is?

17            JUROR VALE:    She's a detective on the police

18   criminal vice squad.

19            THE COURT:    Okay.   Thank you.   Did he inquire

20   anything about this case?

21            JUROR VALE:    From what I remember, he -- he kind

22   of made a comment about -- I'm trying to -- because I was

23   heading down the stairs and he was telling me and then

24   saying about -- I'm trying to remember.      Let me just -- I

25   just said it was okay, but we stopped the conversation

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        6

 1   right there because he didn't realize that at point I was

 2   a juror, a selected juror, I guess.

 3            THE COURT:    You don't remember?     We just have to

 4   be very specific.

 5            JUROR VALE:     I know.

 6            THE COURT:    Because it pertains to this case.

 7            JUROR VALE:     Right.

 8            THE COURT:    You're sure his question or comment

 9   pertained to this particular case?

10            JUROR VALE:     He just said -- uh, I think he

11   said, "You were struck, but then we got you on" or

12   something, or something to that effect, which I think --

13   which I think -- it didn't -- I mean, to me, it didn't --

14   I kinda said, okay, whatever.      I'm going to leave right

15   now.

16            THE COURT:    Was that all?

17            JUROR VALE:     Yeah, I'm being honest.

18            THE COURT:    I want you to be.     I'm sorry.   I

19   guess I should have put you under oath before we did

20   that, but let me go ahead and do that.       Would you raise

21   your right hand for me?

22            JUROR VALE:     Yes.

23            (Juror sworn)

24            THE COURT:    The statements that you previously

25   made to me, they were the truth; is that correct?

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                         7

 1               JUROR VALE:     Yes, correct.

 2               THE COURT:    Even though you weren't under oath,

 3   you understood that you were to tell me the truth?

 4               JUROR VALE:     Yes, right, because that's the way

 5   I was --

 6               THE COURT:    Mr. Briley?

 7               MR. BRILEY:     Where was your juror badge at the

 8   time that you were talking?

 9               JUROR VALE:     On my purse.     I was wearing it on

10   my purse.

11               THE COURT:    Okay.   Anything further?

12               MR. BRILEY:     No, Your Honor.

13               THE COURT:    Okay, Ms. Vale.      Thank you.

14               (Juror Vale exits courtroom)

15               THE COURT:    Mr. Briley, any motions?

16               MR. BRILEY:     Would you mind if I took two

17   minutes with my client.

18               THE COURT:    Go right ahead.

19               (Attorney-client discussion)

20               THE COURT:    Back on the record.      Mr. Briley?

21                   DEFENDANT'S MOTION FOR MISTRIAL

22               MS. HOWCROFT:     Your Honor, at this time the

23   defense has a motion.        We're going to move for a mistrial

24   in this case.     It's our belief that Ms. Vale's testimony

25   here before the court today was, "You were struck, but

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                     8

 1   then we got you on."        That's her recollection of what

 2   occurred.     The problem with that, obviously, is there's a

 3   "we."    We got you on; we liked you; we, from the State,

 4   wanted you on it and you were struck, being the defense

 5   obviously did not want you.        The statement creates

 6   relationships with the State and against the defense, and

 7   I think we have no choice at this point but to ask the

 8   Court to strike this entire panel and start this process

 9   over.

10               THE COURT:   Response from the State?

11               MS. HONEY:   Your Honor, I would just ask the

12   Court if we could re-call Donnie Cavinder, our

13   investigator, just so we can clear up this discrepancy

14   between him and this juror.

15               MS. HOWCROFT:     Whether or not there's a

16   discrepancy, Judge, the juror clearly believes that

17   that's the conversation she had, and no clearing up of

18   the testimony, whether or not it factually happened --

19   and we're certainly not casting dispersions on

20   Mr. Cavinder --

21               THE COURT:   I know.

22               MS. HOWCROFT:     This is her recollection, and the

23   question is whether or not she was influenced by the

24   event.   We believe that the statement can't reflect

25   anything but influence.        She was clearly uncomfortable

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                      9

1    when presenting it to the court.      And we would ask for a

2    mistrial.

3                MS. HONEY:   Your Honor, can we allow for the

4    opportunity to have Ms. Vale come back to ask whether or

5    not she was influenced at all by what she recalls?

6                             COURT'S RULING

7                THE COURT:   No, I don't think that's necessary.

8    What I'm dealing with now is something that would --

9    whether there was any -- and I'm not saying there was any

10   intention on it; I'm not saying who said what.      However,

11   what remains is the appearance.      And the appearance that

12   there was in her, at least in her mind, from her

13   testimony -- I mean that's -- Ms. Howcroft stated

14   correctly.     That's exactly what I heard.

15               And I want both sides to have a fair trial.     And

16   with that appearance that there was some influence with

17   regard to that juror, I am left with no option except

18   granting a mistrial.      There is no way it can be remedied.

19   And I -- I know y'all have -- we have been through a

20   rough day yesterday.      And I apologize that that work is

21   for naught.     And I'm not casting fault on Investigator

22   Cavinder at all.     I understand that was an honest

23   mistake.     I completely believe that he believed he was

24   speaking to Ms. Steele.

25               However, it's that appearance that we just

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        10

1    cannot get by in this matter.    So for that reason, I'm

2    going to grant a mistrial.   Now, we'll talk later whether

3    double jeopardy has attached.    I don't think it has, in

4    my opinion, at this point, but I haven't done any

5    research on it.   We'll deal with that issue at another

6    time.

7             So what I'm going to do this morning, I'll bring

8    the jurors in; I'm gonna declare a mistrial.     I'll just

9    say there was a motion brought up this morning outside

10   their presence.   I'll declare a mistrial and I'm going to

11   release them.

12            And then if neither party has a problem with it,

13   I'm going to have the jurors come back to my chambers and

14   I'm going to explain to them what's happened.      I'm not

15   going to go into a lot of detail about a mistrial, but

16   it's just part of the legal process.     And then I'm gonna

17   try to talk to them about this nightmare we had

18   yesterday.   So if y'all don't have any problem with that,

19   I think it's appropriate in this instance.

20            So give me just a couple minutes.     I'm going to

21   go ahead and get my robe on and I'll have Karen bring the

22   jury in and I'll do it at that time, okay.     All right.

23   Off the record.

24            (Proceedings concluded)

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                  02-13-00582-CR                    11

 1   STATE OF TEXAS         )

 2   COUNTY OF WICHITA      )

 3       I, Cayce Coskey, Official Court Reporter in and

 4   for the County Court At Law No. 1 of Wichita County,

 5   State of Texas, do hereby certify that the above and

 6   foregoing contains a true and correct transcription of

 7   all portions of evidence and other proceedings

 8   requested in writing by counsel for the parties to be

 9   included in this volume of the Reporter's Record, in

10   the above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13       I further certify that this Reporter's Record of

14   the proceedings truly and accurately reflects the

15   exhibits, if any, admitted, tendered in an offer of proof

16   or offered into evidence.

17       I further certify that the total cost for the

18   preparation of this Reporter's Record is $_______ and

19   was paid/will be paid by Wichita County.

20       WITNESS MY OFFICIAL HAND this the 4th day of

21   February, 2014.
                                Digitally signed by Cayce Coskey

22                Cayce Coskey  DN: cn=Cayce Coskey, o, ou,
                                email=clcoskey@att.net, c=US
                                Date: 2014.02.04 11:37:16 -06'00'
                  ____________________________
23                CAYCE COSKEY, CSR 6938, RPR
                  Expiration Date: 12/31/2014
24                900 7th Street, Suite 201
                  Wichita Falls, Texas 76301
25                940.766.8266 Fax 940.766.8156

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        1

1                            REPORTER'S RECORD

2                              VOLUME 5 OF 6

3                     TRIAL COURT CAUSE NO. 58017-E

4    THE STATE OF TEXAS             §      IN THE COUNTY COURT
                                    §
5    VS.                            §      AT LAW NO. 1
                                    §
6    BYRIAS ROBERSON                §      WICHITA COUNTY, TEXAS

7

8

9
       *****************************************************
10
                  APPLICATION FOR WRIT OF HABEAS CORPUS
11                 SEEKING RELIEF FROM DOUBLE JEOPARDY
                                    AND
12                  MOTION TO DISMISS THE INFORMATION
                        BASED ON PREVIOUS MISTRIAL
13
       *****************************************************
14

15

16

17

18              On the 12th day of November, 2013, the

19   following proceedings came on to be heard in the

20   above-entitled and numbered cause before the Honorable

21   Gary W. Butler, Judge presiding, held in Wichita Falls,

22   Texas, Wichita County, Texas:

23              Proceedings reported by computerized

24   stenotype machine in real-time.       Reporter's Record

25   produced by computer-aided transcription.

           CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        2

1                       A P P E A R A N C E S

2    Ms. Victoria Honey
     SBOT NO. 24073195
3    Ms. Allyson Renee Kucera
     SBOT NO. 24081858
4    Assistant District Attorneys
     WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5    900 7th Street
     Third Floor
6    Wichita Falls,TX 76301-2402
     940.766.8113
7    ATTORNEYS FOR THE STATE OF TEXAS

8    -AND-

9    Mr. Mark Richard Briley
     SBOT NO. 24069418
10   WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
     600 Scott Ave
11   Suite 204
     Wichita Falls, TX 76301-2531
12   940.766.8199
     Ms. Kristen Homyk Howcroft
13   SBOT NO. 24032433
     THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14   900 8th Street
     Suite 815
15   Wichita Falls, TX 76301
     940.687.1576
16   ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                          3

1                              I N D E X

2                               VOLUME 5

3              APPLICATION FOR WRIT OF HABEAS CORPUS
                SEEKING RELIEF FROM DOUBLE JEOPARDY
4                                AND
                 MOTION TO DISMISS THE INFORMATION
5                    BASED ON PREVIOUS MISTRIAL

6
     NOVEMBER 12, 2013                                Page      Vol.
7
     Appearances.................................           2    5
8
     Defendant's Oral Motion For Continuance.....           3    5
9
     Defendant's Writ of Habeas Corpus...........           3    5
10
     DEFENDANT'S WITNESSES
11                           Direct   Cross      Voir Dire      Vol.
     CHRISTINA ROBERSON        10       13          7,10         5
12
     Court's Ruling..............................       18       5
13
     Defendant's Motion To Withdraw..............       19       5
14
     Court's Ruling..............................       21       5
15
     Adjournment.................................       21       5
16
     Court Reporter's Certificate................       22       5
17
                             EXHIBIT INDEX
18
     APPLICANT'S
19   NO.         DESCRIPTION           OFFERED      ADMITTED    VOL.
     1           Volume 1 of 3
20               Reporter's Record
                 Defendant's Motion
21               For Mistrial              16          16        5
     2           Volume 2 of 3
22               Reporter's Record
                 Defendant's Motion
23               For Mistrial              16          16        5
     3           Volume 3 of 3
24               Reporter's Record
                 Defendant's Motion
25               For Mistrial              16          16        5

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                         4

 1                           P R O C E E D I N G S

 2              THE COURT:     Court's going to take up 58017-E

 3   styled the State of Texas versus Byrias Roberson.             We're

 4   here on a writ of habeas corpus based upon the mistrial

 5   that's been filed October 7th by Mr. Briley based on a

 6   double jeopardy claim barring prosecution.          The reply

 7   from the State was filed today.       I've had opportunity to

 8   read both the, of course, the application and its brief

 9   and the bench brief in opposition.

10              Mr. Briley, this is your motion.        Is there

11   anything that you would like to submit to the court other

12   than what you have already stated in your brief?

13              MR. BRILEY:     Yes, Your Honor.     And, actually, at

14   this time I'm going to ask for a continuance on this

15   hearing to secure another witness, Donnie Cavinder.

16   There were just a few questions that I was going to

17   follow up with him.       I did not subpoena him to this

18   hearing.     I asked if he could be made available for this

19   hearing last week.       I was told that they would check.        I

20   didn't hear back.       I did not subpoena him.     I just have a

21   few questions for him.       I have a few questions for

22   Ms. Roberson and the transcript.

23              MS. HONEY:     Your Honor, the State is absolutely

24   opposed to defense counsel's motion for a continuance in

25   this case.    Your Honor, the Court has already granted the

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                       5

 1   mistrial.     We're confined to the record as it was on the

 2   date the Court granted the mistrial.         Defense counsel

 3   moved for a mistrial on August 22nd, almost two months

 4   ago.     He had the opportunity at that point to ask

 5   Investigator Cavinder questions if he felt the need to do

 6   so and did not.     He can't now come into court and try to

 7   recreate the record that he should have created at the

 8   time that he moved for a mistrial in this case.

 9               THE COURT:    Mr. Briley, this is typically legal

10   argument based upon the situation that occurred on a

11   mistrial.

12               MR. BRILEY:    And, Your Honor, actually, the

13   questions that I would be following up with Mr. Cavinder

14   really wouldn't be about what took place that day, but

15   rather that he was an experienced investigator and was

16   familiar with the rules.

17               MS. HONEY:    And, Your Honor, I object to that,

18   one, as being outside the record in the case.         At the

19   time defense counsel moved for mistrial, none of that

20   testimony was ever brought forward.         Again, he failed to

21   ask any questions when he was given the opportunity.           If

22   he had wanted to ask Investigator Cavinder questions at

23   the time that he moved for the mistrial, it would have

24   been on August 22nd, not November 12th, almost two months

25   later.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        6

1              MR. BRILEY:    This is a separate motion.     I don't

2    know of any rule that prohibits me to put on evidence for

3    my motion.

4              MS. HONEY:    But, Your Honor, the motion has

5    already been granted by the court.

6              MR. BRILEY:    That was the motion for mistrial.

7    This is a motion to dismiss the case.

8              MS. HONEY:    But it's based on double jeopardy

9    based on the court's granting of the mistrial.        It all

10   goes back to what happened on August 22nd.      You can't

11   come back in almost two months later and try to re-ask

12   the questions you should have asked then.

13             THE COURT:    Mr. Briley, what efforts were made

14   to try to secure the attendance of the investigator at

15   this hearing?

16             MR. BRILEY:    Only making the criminal district

17   attorney Ms. Honey aware that we did intend to call him

18   and asked would he be available today.      She told me, I

19   will check.     That's it.

20             THE COURT:    All right.   Motion to continue is

21   denied.   Go forward.

22             MR. BRILEY:    Your Honor, I would call

23   Ms. Roberson, Ms. Christine Roberson.

24             MS. HONEY:    Your Honor, prior to defense counsel

25   questioning Ms. Roberson, I would like to take the

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       7

1    witness on voir dire to determine what -- to determine

2    what relevance her testimony is going to have to our

3    current proceeding today.

4             THE COURT:    That's fine.     Come on up, ma'am.

5    Raise your right hand.

6                    (Witness sworn)

7             THE COURT:    Thank you.     Just have a seat.

8    Ms. Honey?

9                        MS. CHRISTINA ROBERSON,

10      having been first duly sworn, testified as follows:

11                        VOIR DIRE EXAMINATION

12   BY MS. HONEY:

13       Q    Ms. Roberson, where are you currently employed?

14       A    I'm not.

15       Q    Have you -- have you ever been employed by the

16   State of Texas?

17       A    No.

18       Q    You were not employed with the State of Texas on

19   August 22nd of this year?

20       A    No.

21       Q    Are you familiar with the -- the proceeding that

22   took place on August 22nd of this year?

23       A    Yes.

24       Q    How are you familiar with it?

25       A    I was in the courtroom.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                               02-13-00582-CR                      8

 1          Q   And what was your role in the courtroom on that

 2   day?

 3          A   I was an observer sitting in the back.

 4          Q   So you weren't an employee of the State of Texas

 5   on that day, were you?

 6          A   No.

 7          Q   You weren't an agent of the State of Texas that

 8   day?

 9          A   No.

10          Q   You didn't speak to anyone who was employed by

11   the State of Texas that day, did you?

12          A   No -- my --

13          Q   That's a no?

14          A   No.

15          Q   So are you familiar with what the State of

16   Texas's intent, if any, was on August 22nd?

17          A   Yes.

18          Q   How are you familiar with the State of Texas'

19   intent on August 22nd?

20          A   I'm married to Byrias Roberson.

21          Q   Let me rephrase my question.    Are you familiar

22   with -- are you familiar with why Investigator Cavinder

23   spoke to Juror Vale?

24          A   Am I?

25          Q   Are you familiar with why Investigator Cavinder

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                         9

1    spoke to Juror Vale in this case?

2        A    Yes.

3        Q    Did you personally observe the conversation

4    between the two of them?

5        A    No.

6        Q    Did you overhear anything that was said?

7        A    No.

8        Q    Did you see them speaking to each other?

9        A    No.

10       Q    Did you speak to Investigator Cavinder after

11   that conversation took place?

12       A    No.

13       Q    Did you speak to Juror Vale after that

14   conversation took place?

15       A    No.

16            MS. HONEY:    Pass the witness.

17            MR. BRILEY:    Ms. Roberson, I was just going to

18   ask you a few questions about where you were and what you

19   saw that day.

20            MS. HONEY:    Objection, Your Honor.     We've

21   already addressed this during voir dire of the witness.

22            THE COURT:    Mr. Briley, I'm puzzled.     She took

23   the witness on voir dire.    She said she didn't observe

24   the conversation, observe the two, didn't hear the

25   conversation.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       10

 1            MR. BRILEY:     I'm sorry.     Could I proceed?

 2            THE COURT:     Go ahead.     I'll give you some rope.

 3                      VOIR DIRE EXAMINATION

 4   BY MR. BRILEY:

 5       Q    Ms. Roberson, did you witness when and where

 6   Investigator Cavinder was at certain times in this

 7   courtroom?

 8       A    Yes.

 9            MR. BRILEY:     Nothing further, Your Honor.

10            MS. HONEY:     Nothing further from this witness,

11   Your Honor.

12            THE COURT:     You may step down.

13            MR. BRILEY:     Your Honor, there may have been

14   some objection to her testimony, but I wanted to create

15   for the record what she saw that day and where

16   Mr. Cavinder was at certain times.

17            THE COURT:     So you have further questions for

18   the witness?

19            MR. BRILEY:     Yes, I do, not on voir dire.

20            THE COURT:     Go ahead and take the stand, ma'am.

21                          DIRECT EXAMINATION

22   BY MR. BRILEY:

23       Q    Ms. Roberson, were you in the courtroom during

24   Byrias' trial earlier this year?

25       A    Yes.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        11

1        Q    Where were you seated most of the time?

2        A    The back row in the corner.

3        Q    Were you there the whole time or did you miss

4    parts?

5        A    No, I was there the whole time.

6        Q    When the panel was dismissed so that the

7    attorneys could decide which panel members they wanted to

8    strike, were you there at that point?

9        A    Yes.

10       Q    Did you see Mr. Cavinder in the court at that

11   point?

12       A    Yes.

13       Q    When the attorneys came back from deciding which

14   preemptory strikes they wanted to use and they gave those

15   strikes to the court, were you in the courtroom at that

16   point?

17       A    Yes.

18       Q    Did you see Mr. Cavinder at that point?

19       A    Yes.

20       Q    When the panel was called back in, was

21   Mr. Cavinder back in the courtroom at that point?

22       A    Yes.

23       Q    When the jury was seated, was Mr. Cavinder in

24   the courtroom at that point?

25       A    Yes.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        12

 1       Q    When the panel was dismissed for the day, was

 2   Mr. Cavinder in the courtroom at that point?

 3       A    Yes.

 4       Q    When the jurors, six jurors that were picked,

 5   were read further instructions, was Mr. Cavinder in the

 6   courtroom?

 7       A    Yes.

 8       Q    And when the six jurors were dismissed for the

 9   day, was he in the courtroom at that point?

10       A    Yes.

11       Q    And when did he leave the court?

12       A    He left when the jurors had left.     Everybody was

13   out of the courtroom.

14       Q    How many minutes would you estimate between the

15   time that the panel was dismissed and the time that the

16   six jurors were dismissed?

17       A    Ten to fifteen minutes.

18       Q    And how many minutes would you estimate between

19   the time that the six jurors were released and when

20   Mr. Cavinder and the assistant district attorney's came

21   back in to alert the court and the defense about the

22   conversation that took place?

23       A    Between, I would say, maybe 5 and 10 minutes.

24   It wasn't that long.

25            MR. BRILEY:    Pass the witness.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                       13

1                           CROSS-EXAMINATION

2    BY MS. HONEY:

3        Q    Ms. Roberson, you're married to the defendant in

4    this case; is that correct?

5        A    Correct.

6        Q    How long have y'all been married?

7        A    We've been married 23 years.

8        Q    Do y'all have kids together?

9        A    Yes, we do.

10       Q    How many kids do y'all have?

11       A    Two.

12       Q    Now, because you're married to the defendant,

13   you don't want to see him get in trouble, do you?

14       A    I wanna tell the truth.

15       Q    You wanna tell the truth, but you also want this

16   case to go away, don't you?

17       A    I want it resolved, yes.

18       Q    Okay.   In order to make that case go away,

19   you're willing to say a lot of things, aren't you?

20       A    No, ma'am.

21       Q    Okay.   Now, Investigator Cavinder testified on

22   August 21st that he was not present in the courtroom

23   whenever the jurors were sworn in.        Were you here when he

24   testified to that?

25       A    No.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                      14

 1          Q   So you weren't in the courtroom the entire time

 2   that this case was going on, were you?

 3          A   No.

 4          Q   So there are parts --

 5          A   Well, yes, when the case was going on, yes.

 6          Q   So when Investigator Cavinder testified under

 7   oath that he was not present in the courtroom when the

 8   the jurors were sworn in, you were in here, weren't you?

 9          A   Yes.

10          Q   And you heard him say that, didn't you?

11          A   Yes.

12          Q   Ms. Roberson, do you have any formal training

13   involving conducting observations?

14          A   Just my eyes.

15          Q   Okay.   So you don't have any formal training

16   doing observations?

17          A   No, ma'am.

18              MS. HONEY:    Pass the witness.

19              THE COURT:    Mr. Briley, any further questions?

20              MR. BRILEY:     No.

21              THE COURT:    You may step down, ma'am.   Thank

22   you.

23              MR. BRILEY:     Your Honor, at this time I'd like

24   to ask the Court to take judicial notice of all the court

25   proceedings that happened in this Cause No. 58017-E.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        15

 1            THE COURT:    Were you also -- for the record as

 2   well, the previous record?

 3            MR. BRILEY:     Sorry?

 4            THE COURT:    The previous record as well as the

 5   testimony?

 6            MR. BRILEY:     Yes, all records that have -- of

 7   any hearings.

 8            THE COURT:    Okay.      The Court will take judicial

 9   notice notice of that.

10            MR. BRILEY:     And I'd offer Applicant's Exhibits

11   1, 2, and 3, which are the Reporter's Records Volume 1,

12   2, and 3 of the trial.

13            MS. HONEY:    I have no objections to that.

14            THE COURT:    One, two, and three are admitted.

15   Thank you.    Any further witnesses or evidence,

16   Mr. Briley?

17            MR. BRILEY:     No, Your Honor, although I would

18   just re-urge my motion for continuance, adding only that

19   shortly -- within five minutes of this hearing, I did go

20   to the front desk and ask for Mr. Cavinder.        I also

21   e-mailed him.    That's the only additional actions that

22   I've taken.

23            THE COURT:    All right.      I understand.     The

24   court's previous ruling will stand.        I note your

25   objection to the ruling for the record.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                        16

1                MR. BRILEY:    Applicant rests.

2                THE COURT:    Ms. Honey?

3                MS. HONEY:    State rests, Your Honor.

4                THE COURT:    All right.   Anything -- argument

5    that's not in the briefs, Mr. Briley?

6                MR. BRILEY:    Well, yes, Your Honor.    I hope I

7    don't --

8                THE COURT:    That's all right.    Go ahead.

9                MR. BRILEY:    -- repeat too much.    But, of

10   course, we're here today on our application for writ of

11   habeas corpus, seeking dismissal of the information based

12   on double jeopardy grounds.       The defendant does have a

13   right to have his trial completed by the first jury

14   impaneled.     Although we were the ones who asked for the

15   mistrial in this case, the State's conduct was the cause

16   of that mistrial, and we believe that the objective facts

17   show that it was with the intent to goad us into a

18   mistrial.

19               Investigator Cavinder intentionally approached

20   Ms. Vale.     Certain statements were made that showed

21   partiality on the part of Ms. Vale.         We believe that it

22   was not a mistake, and I'll go into it shortly in just

23   one second.     They then approached the defense counsel and

24   the court letting us know about the conversation, which I

25   assume happened either way.       And as far as motive, I

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                             02-13-00582-CR                        17

 1   don't believe that we are forced to show a motive, but

 2   there were certain parts in the pretrial hearing that

 3   could cause a motive to want more time.     For example,

 4   more time to give notice of any extraneous bad acts.

 5            As far as -- I think this really comes down to

 6   whether or not this was a mistake or this was something

 7   with the intent to goad.    I believe that Mr. Cavinder is

 8   an experienced investigator in this case or certainly an

 9   experienced investigator.   He's familiar with the rules

10   and procedures of the trial process.     He participated in

11   this case.   He helped pick which jurors would be struck.

12   He was present for most of the proceedings.     There might

13   be a difference in what he said than what Ms. Roberson

14   says as far as when he was there, but he was present for

15   a lot of the proceedings.

16            Several minutes went by between when 25 people

17   were released into the hallway, the jurors were read the

18   Court's instructions, and then six people were let out

19   into the hallway.   An experienced investigator, I don't

20   think, would have made that mistake.

21            Further, the statement, "You were struck, but

22   then we got you on."   When a person would say something

23   like that or something to that effect, they would show

24   that they knew at that time that that person was a juror.

25   We ask that you dismiss based on double jeapordy.

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                          18

1             THE COURT:     Ms. Honey, any response that's not

2    already addressed in your brief?

3             MS. HONEY:     Your Honor, I will keep it very,

4    very, very brief.     Defense counsel has not met his burden

5    in this case.     His burden is intentional misconduct.      I

6    just want to leave the court with something that the

7    court said at the time of the granting of the motion:

8    "I'm not casting fault on Investigator Cavinder at all.

9    I understand that that was an honest mistake.       I

10   completely believe that he believed he was speaking to

11   Ms. Steele."     Your Honor, even defense counsel just said

12   "I don't believe an experienced investigator would make

13   that mistake."     Your Honor, we were all on the same page.

14   It was a mistake.     It was not intentional.    He is not

15   entitled to a dismissal of this case.

16                            COURT'S RULING

17            THE COURT:     Okay.   All right.   I'm going to take

18   that under advisement and have a ruling by five o'clock

19   tomorrow because I want to review the State's brief a

20   little bit further with regard to the standard that was

21   appropriately set forth in Wheeler.

22            Mr. Briley, we're set tomorrow on a motion to

23   withdraw as counsel for you in this same matter.        Would

24   -- did you want to address that today, or would you wait

25   until tomorrow?     And, Mr. Roberson, the same.    Do you

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                02-13-00582-CR                           19

1    want to address it today and save yourself having to come

2    back up tomorrow?       That would be fine with the Court if

3    you're ready to do that.

4               MR. ROBERSON:     I think we can go ahead and do

5    this today.

6                    DEFENDANT'S MOTION TO WITHDRAW

7               THE COURT:     Go ahead and do it today?     Okay.       So

8    you both know, I've read the motion to withdraw as

9    counsel.    I've also read the letter that you had filed as

10   well.   If you want to add more to that, you certainly can

11   at these proceedings.       You don't have to.     You can stand

12   upon -- if that's all you have to say, that's fine.             I

13   understand.     Mr. Briley, the same.       It's up to you.

14              MR. BRILEY:     Your Honor, could we have just two

15   or three minutes?

16              THE COURT:     Sure.   Let's go off the record.

17              (Discussion off the record)

18              THE COURT:     Back on the record.     Mr. Briley?

19              MR. BRILEY:     Thank you, Your Honor.     The only

20   thing that I would change about my motion for

21   withdrawal --

22              THE COURT:     Yes, sir.

23              MR. BRILEY:     -- would be in Paragraph 2 where it

24   says that defendant has lost confidence in his

25   representation and does not trust counsel.          I mean, I

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                 02-13-00582-CR                       20

1    would withdraw that or take that away.         Really, my only

2    concern would be that in this last trial, you know, in

3    the quickness of things, there was a conflict of

4    personality that led to some miscommunication or lack of

5    communication, which after the trial was done led to an

6    argument, which is what caused the motion to withdraw.

7                THE COURT:     Okay.

8                MR. BRILEY:     Since then, I've spoken with

9    Byrias.     We're civil.     I don't have a personal problem

10   with him.     My only concern would be that when we come

11   back to trial, if we do come back to trial, that that

12   problem would exist again.         The only changing factor, I

13   think, is that Ms. Kristen Howcroft, who was counsel at

14   the time, she would not be here at this time.         That might

15   have been a factor then, but --

16               THE COURT:     Okay.

17               MR. BRILEY:     That's the only thing that I would

18   have to change about the motion to withdraw.

19               THE COURT:     All right.   Mr. Roberson, you can

20   speak to the motion if you like.         However, I've reviewed

21   your letter again, so --

22               MR. ROBERSON:     Well, everything that I wrote to

23   you, Your Honor, in my letter stands.         I agree with

24   Mr. Briley.     I think that the conflict that existed that

25   day has been resolved, so I don't see any future

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                              02-13-00582-CR                        21

1    conflicts at this time.       I don't have a problem with

2    Mark.   I think we work very well together.       So I would

3    like to keep him on as my attorney.

4              THE COURT:   Okay.     Now, I assume the State

5    doesn't have a dog in the fight?

6              MS. HONEY:   Your Honor, we don't.

7                            COURT'S RULING

8              THE COURT:   Okay.     All right.   I'll issue a

9    ruling on that at the same time that I issue the ruling

10   on the writ, okay.     And it will be by five o'clock

11   tomorrow that I send it out.       I'll send it out by fax or

12   e-mail, okay.    All right.     Thank you.

13                   (Proceedings concluded)

14

15

16

17

18

19

20

21

22

23

24

25

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
                                  02-13-00582-CR                    22

 1   STATE OF TEXAS         )

 2   COUNTY OF WICHITA      )

 3       I, Cayce Coskey, Official Court Reporter in and

 4   for the County Court At Law No. 1 of Wichita County,

 5   State of Texas, do hereby certify that the above and

 6   foregoing contains a true and correct transcription of

 7   all portions of evidence and other proceedings

 8   requested in writing by counsel for the parties to be

 9   included in this volume of the Reporter's Record, in

10   the above-styled and numbered cause, all of which

11   occurred in open court or in chambers and were

12   reported by me.

13       I further certify that this Reporter's Record of

14   the proceedings truly and accurately reflects the

15   exhibits, if any, admitted, tendered in an offer of proof

16   or offered into evidence.

17       I further certify that the total cost for the

18   preparation of this Reporter's Record is $_______ and

19   was paid/will be paid by Wichita County.

20       WITNESS MY OFFICIAL HAND this the 4th day of

21   February, 2014.
                                Digitally signed by Cayce Coskey

22                Cayce Coskey  DN: cn=Cayce Coskey, o, ou,
                                email=clcoskey@att.net, c=US
                                Date: 2014.02.04 11:37:44 -06'00'
                  ____________________________
23                CAYCE COSKEY, CSR 6938, RPR
                  Expiration Date: 12/31/2014
24                900 7th Street, Suite 201
                  Wichita Falls, Texas 76301
25                940.766.8266 Fax 940.766.8156

        CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
r   i
        ÿÿ




                                       NO.     02-11-002 53-CR

                                        COURT OF APPEALS

                                     SECOND DISTRICT OF TEXAS

                                             FORT WORTH


             JOE DALE JOHNSON                    ){      ON APPEAL IN NO. 46,432-C

             V.                                  ) {     FROM THE     89th   DISTRICT COURT

             STATE OF TEXAS                      ) {     OF WICHITA COUNTY, TEXAS

                                                 ) (     THE HONORABLE MARK T.
                                                         PRICE, PRESIDING




                    STATE'S MOTION FOR EN BANC RECONSIDERATION




             TO THE COURT OF APPEALS:



                  Pursuant      to    Rule   49.7       of   the    Rules of        Appellate

             Procedure,   the        State   submits         its motion       for    en   banc

             reconsideration of          the    court' s        reversal     of     two   Life

             sentences    for    aggravated            sexual      assault    of     a    child

             committed by a previously-convicted sex-offender.
      The     State       seeks       en    banc     reconsideration     for    two

reasons:       1)       because    the      memorandum opinion         issued on

February          14,    2013     makes       repeated       factual   assertions

that do not comport with the reporter' s record of the

actual testimony and statements of the attorneys in the

case;       and 2)       because the memorandum opinion fails                       to

apply the Court of                Criminal Appeals            Irby analysis     for

determining             whether       the         juvenile    adjudication      was

admissible        .
 .
I The     memorandum opinion contains multiple factual
     inaccuracies that do not comport with the trial
     record   .
        .
      1 While the memorandum opinion claims the State
        left a false impression with the jury about the
        reason for counseling, the record reveals that it
        was defense counsel, not the prosecutor, who
        interjected counseling into the proceeding.

      The memorandum opinion states                        "The State left the

impression            with      the        jury     that     the   complainant's

emotional problems, watching pornography, conflict with

his parents,             and need for             counseling all arose         as   a

result of          his victimization by school bullies and by

Appellant     ...This        was a false impression that Appellant



                                              2
was       entitled to rebut...'7                See   Memorandum Opinion at

10.

          The    record,    however,      reveals that             it was     defense

counsel, not the State, who interjected counseling into

the       proceedings.           During         cross-examination             of   the

State's          first     witness,       the     child's         father,     defense

counsel         asked    for    permission outside                the   presence of

the       jury    to     question     the       witness       about     the    victim

undergoing counseling in the fall of 2007.                              (R.R. 7:58-

63)   .    The trial court permitted the defense attorney to

question          the      witness     about          the     victim        attending

counseling.             (R.R.   7:63).      Then,      in front of the jury,

the defense attorney asked the witness about the victim

attending          counseling       and     why    he       was    in   counseling.

(R.R. 7:64-65).             Thus, it was defense counsel who first

interjected counseling into the proceedings.

           .
          2 A fair reading of the record reveals that the
            prosecutor only mentioned the victim' s counseling
            in response to the defense attorney's questions.

          On re-direct after the defense attorney had brought

up counseling, the prosecutor asked the father two very



                                            3
short questions about the counseling: "Did you consider

it   counseling       or   therapy?"         and    "So    was     he    seeing      a

counselor?"      (R.R. 7:67)


     Then,     when    the    child          testified,      the        prosecutor

asked   the    child       three    short          questions       relating         to

counseling :

     "Were you seeing a counselor during that time
     period?"
     "Were you having some emotional troubles?" and
     "Did you tell your counselor about those things?"
     (R.R. 7 : 106)    .
     This     minimal       inquiry,          initiated          after       defense

counsel had already asked the father about counseling,

is   completely        unrecognizable               from     the        memorandum

opinion's     characterization of                 the    State     leaving      "the

impression      with       the     jury           that     the     complainants

emotional problems, watching pornography, conflict with

his parents,      and need         for       counseling all arose              as   a

result of     his victimization by school bullies and by

Appellant,     who     caused      him       to    participate          in   sexual

activities.     This was a false impression that Appellant

was entitled to rebut..." See Memorandum Opinion at 10.


                                         4
          .
      3 The fact that the State did not mention anything
        related to counseling in opening or closing
        conflicts with the memorandum opinion' s assertion
        that the State was relying upon some false
        impression in front of the jury.

      The prosecutor did not mention anything relating to

the       victim        attending          counseling            in      his        opening

statement         or    in his         closing argument.                (R.R.       7:9-17;

9:85-91,          98-108).             Thus,       the     prosecution          was       not

advancing         any     false        impression         about    the       reason       the

victim was in counseling.

      4   . The    defense could not open its own door to the
              juvenile adjudication by interjecting counseling
              into the trial       .
      The memorandum opinion strangely opines that                                       "the

State's questioning of                   the complainant              and his        father

painted an             incomplete        and       misleading picture               of    the

complainant            and the      circumstances of              his outcry.              By

developing the            testimony as              it did,       the    State      opened

the       door     to     evidence         that       could       have        accurately

conveyed why            the    complainant           was       in counseling,            what

motivation         he        may    have       had        to    make     up     a     false

accusation,            and    the      degree        to    which        he    understood


                                               5
sexual matters and to which he personally appreciated

legal consequences           imposed upon sex           offenders."     See

Memorandum Opinion at 13.

      This statement oddly overlooks the fact that it was

the     defense,     not     the     State,     who    first     interjected

counseling into the proceedings.                  (R.R. 7:58-63).      This

statement       also completely mischaracterizes the minimal

questions       by   the   prosecutor       about     counseling.      (R.R.

7:67;       106).    Finally, this         statement    ignores the fact

that the State made no mention to the victim attending

counseling in either its opening or its closing.                       (R.R.

7:9-17; 9:85-91, 98-108).

      Rather, it was defense counsel who opened-the-door

to    the discussion of         counseling through his questions

of    the    victim's      father.      (R.R.    7:58-63).        Under the

open-door doctrine, the defense cannot broach a subject

and    then    complain when         the    State     inquires    into that

subject.        See Heidelberg v.          State,     36 S.W.3d 668,    672

(Tex. App.—Houston [14th Dist.], no pet.).




                                       6
       Furthermore,         a     party        cannot       through           its   own

questioning and maneuvering open                       a    door     to    get      into

collateral matters,              extraneous      offenses,          and bad acts

that    would       otherwise be inadmissible.                    See    Shipman      v.

State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980).

Thus,        the      law       prohibits        defense           counsel          from

questioning          the    victim's          father       about        the     victim

attending          counseling,      and       then     claiming          because      he

raised the subject and interjected counseling into the

proceedings,          he    has    now        opened       the     door       for    the

juvenile adjudication to be admitted.

       The    fact     that      the   memorandum           opinion        fails      to

acknowledge that it was defense counsel who interjected

the     victim' s      counseling         into       the         proceedings        and

instead incorrectly claims that                      it was        the    State     who

opened the door is troubling.




                                          7
            .
        5 The memorandum opinion confuses and conflates
          counseling that the child was receiving in the
          fall of 2007 with court-ordered sex offender
          treatment that the child received after his
          adjudication in July 2008.

        The memorandum opinion also confuses and conflates

counseling the child received in the fall of 2007 with

court-ordered treatment in July 2008:                    "The complainant

also testified that his parents put him in counseling

because he was sexually abusing his sister.                      There was

evidence         that    the   counseling     was     court-ordered     as   a

result of the complainant's sexual abuse of his younger

sister over several years."                  See Memorandum Opinion at

6   .
        This statement is not accurate.                Both the child and

the child's father             testified that his parents put him

in counseling in the             fall of      2007.     (R.R.   7:61,   161-

162)    .       The child was    not   ordered into treatment by a

court until he was             adjudicated on July 18, 2008         .    See

Defense Exhibit 1 July 18, 2008 Order of Probation.

        This offense was reported to the Burkburnett Police

Department          on    November     29,     2007.        (R.R.     8:16).



                                       8
Therefore/ any court-ordered counseling of the child in

July       2008     was    irrelevant         to    this    case,          and     to   the

child' s       mental      state        at    the    time        the       offense      was

reported. And, it is simply erroneous to say that there

"was       evidence       that    the      counseling was              court-ordered"

when the counseling that the child was referring to was

the fall 2007 counseling, which was clearly not court-

ordered.           (R.R. 7:61,        161-162).

       6   . The memorandum opinion incorrectly asserts that
            the State created a false impression that the
            child was innocent in sexual matters                       .
       While       the    memorandum          opinion       suggests             that   the

State       left     a    false       impression          that     the       child      was

innocent in sexual matters, the record reveals no such

impression.           See Memorandum Opinion at 6, 13.

       In     fact,       the     State      did    not     object          to    defense

counsel's          request       to   go     into the      child's pornography

issues.           (R.R.   7:63).        The defense attorney asked both

the father and the child about the child's issues with

pornography.               (R.R.       7:64-65,      149).             Additionally,

during closing argument the prosecutor never argued or



                                              9
implied that the child was innocent in sexual matters.

(R.R. 9 :85-89,      98-108)   .
  .
II The memorandum opinion fails to conduct the     Irby
  analysis required by the Court of Criminal Appeals in
   determining       whether         a         juvenile      adjudication          is
   admissible.

      The Court of Criminal Appeals mandates that                            for    a

juvenile adjudication to be admissible, there must be a

logical     connection        between           the    adjudication      and        a

motive or bias that could affect the child's testimony.

See Irby v.       State,   327 S.W.3d 138, 153 (Tex. Crim. App.

2010)   .
      The   memorandum opinion                 fails   to    conduct   the    Irby

analysis,1 or explain              what        the    logical connection           is

between     the    juvenile    adjudication and any motive                     the

child had to lie.           In fact,            the juvenile       charges were

filed in May        2008,     and    the        adjudication        happened in

July 2008.        See Defense Exhibit 1 May 12, 2008 Original

Petition     and    July    18,     2008        Order       of   Probation.    The



LThe State's Brief extensively cited the Irby opinion and
explained the Court of Criminal Appeals' requirement for a
logical connection between the juvenile adjudication and a bias
or motive that could affect the witness's testimony. See
State's Brief 4-15.
                                          10
child's outcry about                       this case was      in November              2007.

(R.R.    8:16).             The memorandum opinion fails to explain

how a juvenile adjudication 8 months after the child's

outcry        of       sexual       abuse     provided any          motive       for     the

child's allegations of sexual abuse.                            Therefore,         under

the     Irby        rubric,          the    juvenile       adjudication          was     not

admissible         .
       While the memorandum opinion cites Rule of Evidence

101(c)        for        the        proposition       that    the     rule       barring

impeachment by a juvenile                      adjudication was            trumped by

the     right          to    confrontation,           in     Irby    the     Court        of

Criminal Appeals                limits this          situation to "a specific

mode     of        impeachment—bias            and     motive—when         the    cross-

examiner           can      show      a    logical     connection      between           the

evidence           suggesting bias            or   motive     and the        witness's

testimony."              See        Irby at    151.     The Court of Criminal

Appeals explained the important interest "in protecting

the     anonymity              of    juvenile      offenders."             Id.          The

memorandum opinion violates this very interest without

demonstrating               the       logical        connection       between           the



                                               n
juvenile    adjudication and any potential motive or bias

affecting the child's testimony.


                           PRAYER




     The State prays that the Court grant the motion for

en   banc    reconsideration,        withdraw   the   opinion   of

February 14, 2013, and affirm the judgment of the trial

court   .


                   Respectfully submitted,




                   Jpmn Gillespie
                   Fwrst Asst. Criminal District Attorney
                   Wichita County, Texas
                   State Bar No. 24010053




                   Jol   W. Brasher
                                                 Attorney
                   Wichita County, Texas
                   State Bar No. 02907800
                   Wichita County Courthouse
                   900 Seventh Street
                   Wichita Falls, Texas 76301
                   (940) 766-8113
                   FAX:   (940) 766-8177


                                12
                  CERTIFICATE OF COMPLIANCE

     The State certifies that the brief contains 1723

words, after the applicable exclusions.

                                                    f




                      CERTIFICATE OF SERVICE


     I certify that a correct copy of the State's Motion

For En Banc Reconsideration was mailed to the office of

Jeff Eaves,   900     8th   Street,    Suite 1400, Wichita Falls,

TX   76301,   (940)     322-2002,      on   this   the   21st   day   of

February, 2013.




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