                                                                                        JANE HALL
 JANET McCONATHY                                                                   COURT COORDINATOR
  COURT REPORTER                                                                       jhall@co.hill.tx.us
jmcconathy@co.hill.tx.us
                                                                                          IDA ALCALA
                                                                                  ASST. COURT COORDINATOR
                                                                                       ialcala@co.hill.tx.us




                                          October 7,   ~015

                                                                                    RECEiVED IN
Sharon Keller, Chief Justice                                                COURT OF CRIMINAL APPEALS
Court of Criminal Appeals
P. 0. Box 12308                                                                     NOV 16 2015
Austin, TX 78711-2308

Re:      No. WR. 83,797-01
         In re: Darrell Curlee

Dear Judge Keller:

        I am new to the process of responding personally to an Application for Writ of
Mandamus. One ofthe briefing attorneys that I spoke with at the Court of Criminal Appeals said
that I could do so in letter form.

         I am a little confused over the filing of the Writ with your Court as the applicant entered
into a plea agreement and was sentenced on July 31, 2015. I am attaching certified copies of
each filing from Mr. Curlee's trial court file collectively as Exhibit A. I have also included a
letter that I received from Mr. Curlee complaining about his trial counsel just before I appointed
Mr. Lyle Gripp as additional and lead counsel. That letter is attached as Exhibit B. I have
included a copy of the Order Appointing Mr. Gripp as Exhibit C. As you can see, the
appointment does not remove Mr. Russell, it merely adds additional counsel.
                                      I

        This was done for two reasons. First,.Mr. Curlee complained. Second, at about the same
time as the appointment of Mr. Gripp, I learned of a troubling series of events that led me to
question Mr. Russell's fitness to practice law.

        When I served as the Judge of the County Court at Law of Hill County, I was, from time
to time, assigned to sit as the Judge of the 66th District Court. One of those assignments was in
Cause No. 37228, State of Texas v. James Ryder. Terence Russell had been appointed to
represent Mr. Ryder by the Honorable F. B. McGregor, Jr., prior to my assignment to the case. I
set the case for a jury trial on August 27, 20 14; however, I fell ill and the Honorable Alan
Mayfield, Retired Judge ofthe 74th District Court of McLennan County, was assigned to preside
over the jury trial.
        Mr. Ryder faced three felony counts. The first count had a range of punishment from 25
years to life, the second count was from two years to 20 years, and the third count was from two
years to 10 years. Ultimately, the juryfound Mr. Ryder guilty and sentenced Mr. Ryder to 99
years, 20 years, and 10 years, respectively. Although Mr. Ryder had been deemed indigent and
had counsel appointed to him, no Ake v. Oklahoma or similar motions were filed with the court
seeking funds for expert witnesses, investigators, or any other assistance.

       Mr. Ryder has now hired the Honorable Kristin R. Brown of Dallas to represent him on
appeal. Ms. Brown filed a Motion for New Trial wherein she alleges that Mr. Russell required
Mr. Ryder to provide $1 ,500 so that an expert could be hired. That expert, Dr. Trent Terrell,
required a fee of only $1,000 for his testimony. Unfortunately, because of an alleged
miscommunication, Dr. Terrell never appeared at the trial. Dr. Terrell did return an uncashed
$1,000 check written from Mr. Russell's personal checking account. A $1,000 check was
subsequently written to Mr. Ryder or his fiance as a refund. That check was not written on an
IOLTA trust account but instead seems to come from Mr. Russell's and his wife's personal bank
account. To this day, Mr. Russell has failed to account for or return the other $500 that he
required the indigent defendant to tender to him.

        I have attached as Exhibit D a copy of the Motion for New Trial, together with the
Affidavits of Dr. Terrell and Larenda Nichole Watkins (the fiance of Mr. Ryder who paid Mr.
Russell the $1 ,500), along with a copy of the check that refunded the money to Mr. Ryder, and
the receipt from Mr. Ryder when the money was deposited with Mr. Russell.

       I have attached as Exhibit E the transcript of the hearing on the Motion to Rescind and
Second Motion for New Trial filed by Mr. Ryder wherein Mr. Russell testified that he did not
maintain a trust account, and that he used his personal account for his client trust account. Also
attached is the attorney fee voucher and proof of payment by Hill County to Mr. Russell for
representing Mr. Ryder.

        Further, there is presently a case before your court styled In re Thomas Eric Lee, WR.
81,722-01. Mr. Russell represented Mr. Lee at the trial court and Mr. Lee has now alleged that
Mr. Russell coerced him into pleading no contest. Mr. Lee alleged that Mr. Russell told him
"that he was going to be elected district judge and Mr. Lee better hurry and plead to the charges
because counsel would throw the book at him once counsel took the bench."

       Attached as Exhibit F is a copy of the transcript from the hearing conducted as a part of
the Order issued by the Court of Criminal Appeals. Mr. Russell testifies, but never
unequivocally denies telling Mr. Lee what he was alleged to have said.

        I believe Mr. Lee's assertion to be true because in a previous case, another defendant,
Curtis Fields, made an allegation that "Russell emphasizes that he is utilizing political strategies
to win votes for the up-coming judge's position." Attached as Exhibit a'is a copy of Mr. Fields'
complaint. The above referenced allegation is made at the top of page 4.
        Because my understanding is that I have a fiduciary duty to appoint competent counsel
for indigent defendants, and because of my growing concerns regarding Mr. Russell, I appointed
additional counsel to an indigent defendant. I have also complied with my duty to report         \
misconduct to the State Bar of Texas as a result of the trust account issues referenced above.




Cc:    Terence Russell (w/o attachments)
       Mark Pratt (w/o attachments)
       Lyle Gripp (w/o attachments)
EXHIBIT A . ·
..
     "'   \
              ·~-

      r       ~




                                                        INDICTMENT


                    CAUSENO.      3Jt±58

                    THE STATE OF TEXAS VS. DARREL ALLEN CURLEE


                    CHARGE: AGGRAVATED ASSAULT WITH A DEADLY WEAPON
                               AGGRAVATED ASSAULT THREAT-WITH A DEADLY WEAPON
                                                                                                             -..
                    IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
                           THE GRAND JURY, for the County of Hill, ·State of Texas, duly selected,
                    empaneled, sworn, charged and organized as such at the JULY/DECEMBER term, A.D.,
                    2012 of the 66th Judicial District Court for said County, upon their oaths present in and to
                    said court at said term that DARREL ALLEN CURLEE hereinafter styled Defendant, on or
                    about the 15TH DAY OF JUNE 2012 and before the presentment ofthis indictment, in the
                    County of HiJI and State aforesaid, did then and there unlawfully, intentionally or knowingly
                    or recklessly cause bodily injury to Christopher Jordan Wally by cutting him with a knife,
                    and the defendant did use or exhibit a deadly weapon during the commission of the assault,
                    to-wit: a knife, that in the manner of its use-or intended use was capable of causing death or
                    serious bodily injury.


                    And it is further presented that prior to the commission of the primary offense by the said
                    Darrel Allen Curlee, to-wit: on the 25th day of February 1983, in the District Court of San
                    Miguel County, New Mexico in Cause No. 81-73-CR on the docket of said Court, the said
                    Darrel Allen Curlee, under the name of Darrerll Allen Curlee, was duly and legally convicted
                    in said last named Court of a felony, to-wit: Second Degree Murder upon an indictment then
                    legally pending in said last named Court and of which said Court had jurisdiction; and said
                    conviction was a final conviction and was a conviction for an offense committed by him, the
                    said Darrel Allen Curlee, prior to the commission of the primary offense.




                      A CERTIFIED COPY I
                      ATIEST    g_  -,~
                                   ANGELIAORR
                                                  .201£._
                                 DISTRICT CLERK
                               HILL COUNTY. T
·~·




      And it is further presented that before the commission of the primary offense and after the
      conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed
      the felony of Burglary and was convicted on the 91h day of May I 989 in the Seventh Judicial
      District Court of San Juan County, Utah, in Cause No. 767.


      And it is further presented that on or about the tsm DAY OF JUNE 2012 in the County of
      Hill and State of Texas, the defendant, DARREL ALLEN CURLEE , did then and there
      intentionally or knowingly threaten Jerry Wayne Vessells with imminent bodily injury by
      attempting to cut and/or stab him with a knife and the defendant did use or exhibit a deadly
      weapon during the commission of the assault, to-wit: a knife, that in the manner of its use or
      intended use was capable of causing death or serious bodily injury.




      And it is further presented that prior to the commission of the primary offense by the said
      Darrel Allen Curlee, to-wit: on the 25th day of February I 983, in the District Court of San
      Miguel County, New Mexico in Cause No. 81-73-CR on the docket of said Court, the said
      Darrel Allen Curlee, under the name of Darrell Allen Curlee, was duly and legally convicted
      in said last named Court of a felony, to-wit: Second Degree Murder upon an indictment then
      legally pending in said last named Court and of which said Court had jurisdiction; and said
      conviction was a final conviction and was a conviction for an offense committed by him, the
      said Darrel Allen Curlee, prior to the commission of the primary offense.


      And it is further presented that before the commission of the primary offense and after the
      conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed
      the felony of Burglary and was convicted on the 9th day of May 1989 in the Seventh Judicial
      District Court of San Juan County, Utah, in Cause No. 767.
                                             NO. 37,458

STATE OF TEXAS                                   §    IN THE DISTRICT COURT
                                                 §
vs.                                              §    66th JUDICIAL DISTRICT
                                                 §
DARRELL ALLEN CURLEE                             §    IDLL COUNTY, TEXAS


                                  WAIVER OF ARRAIGNMENT

        The undersigned Defendant, Darrell Allen Curlee, by counsel, waives formal pre-trial

arraignment and preparation time between arraignment and trial, and agrees to be arraigned at time

of trial, and enters a plea of not guilty.

        The undersigned attorney hereby enters appearance as attorney of record for Darrell Allen

Curlee and agrees that the cause be set for trial in the courtroom ofthe 66th Judicial District Court

ofHill County, Texas.

        SIGNED on September 6, 2012.

                                               Respectfully submitted,


                                               Terence A. (Tiger) Russell
                                               Attorney & Counselor at Law
                                               PO Box 306
                                               Hillsboro, TX 76645
                                               245-396-3219
                                               254-582-5593 (facsimle)



                                             ~~w/?.4
                                                  Terence A. Russel)
                                                  State Bar No. 17437070
                  ,_,2f'L ~                       Attorne~:~:~len Curlee ..- _ d L?
            .,....._ -7 '7' ~                    .,t.,__ - ~         ~ ~
              I               I'-                           ~~                            .
Approved by~:        ., J                                   f)                '
Signed on ,         /L~ /       y ,)J( 2-c:::= .
                                                                                         (OPV
                                                 N0.37,458
     STATK.OF TEXAS                                  ·§    IN THE DISTRICT COURT
                                                      §
     vs.                                              §    66th JUDICIAL DISTRICT
                                                      §
     DARRELL ALLEN CURLEE                             §    HILL COUNTY, TEXAS


                                      : WAIVER OF ARRAIGNMENT
            The undersigned Defendant, Darrell Allen Curlee, by counsel, waives formal pre-trial

     arraignment and preparation time between arraignment and trial, and agrees to be arraigned at time

     of trial, and enters a plea of not ~ilty.

            The undersigned attorney hereby enters appearance as attorney of record for Darrell Allen

     Curlee and agrees that the cause be set for trial in the courtroom of the 66th Judicial District Court

     ofHill County, Texas.

             SIGNED on September 6, 2012.

                                                    Respectfully submitted,


                                                    Terence A. (Tiger) Russell
                                                    Attorney & Counselor at: Law
                                                    POBox306
                                                    Hillsboro, TX 76645

·o                                                  245-396-3219
                                                    254-582-5593 (facsimle)



                                                 ~~uJ'?A
                                                      Terence A. Russell
                                                      State Bar No. 17437070
             J1,j_ £.4 /e?r~ ~ J.                     ~yfor Darrell Allen Curlee
             u·           .t4.. ~ ,.- z_ u.
                                                               ¥~·
                                                                  ~c;___.-
                                                                          __,.,
     Approved by          . Court:    ~-            /'/




                                        ~~--        JUDGE P        IDING
                      ?'0!!
            A CERTIFIED
            ATTEST    l..     ~   I     .20
                         ANGELIAORR
                       DISTRICT CLERK
                     HILL. COUNTY. T
             BY
      .,\: . . :1\..
               \




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Job No. : 033502                             Total Time:   o•oo'l7"        Page: 002



Complete
Document:                           doc033S0220120925081330



                       •·/   ,'




                                                                      CAUSE NO. 37,458

                         THE STATE OF TEXAS                                     §                      IN THE 66'1'11 JUDICIAL

                                                                                §                      DISTRICT COURT OF

                                                                                I                      HILL COUNTY, TEXAS


                                                                  $E'tTJNG ORQEBS
                                                            THIS CASE IS ORDERED SJT FQR

                             1.. _XX_PRE-TRIAL MOTIONS IIEAlUNG
                                  UNDERARTICLEl8.01CCPSETON-OCTOBER                                    18,2012 9:00A.M.
                                                                                            )

                         l._XX_FINALPRE-TRIALCON.FERENCE-NOVEl\tiBER                                        13,201.2 9:00 A.N.f..
                         3.       _XX_JURYTRW.JSSETFOR--JANUARY 14,2013 9:00A.M.
                         4. _PIAAIS SBTFOR _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

No.                Date and Time Destination                                        Times       Type           Result             Resolution/ECH
001                09/25/12 08: 14 Terence Russell                                  o•oo·1r FAX                OK                 200xl00 Normal/On




                                                                                                                                                        [ QWGOXOB415 ]
                                                                            l
                                     CAUSE NO. 37,458


THE STATE OF TEXAS                                 §

vs.                                                §

DARRELL ALLEN CURLEE                               §      HILL COUNTY, TEXAS


                  ORDER APPOINTING A DISINTERESTED EXPERT
                          TO EXAMINE DEFENDANT


       It is ORDERED that Dr. Veri 0. Childers, Jr. is hereby appointed to examine

DARRELL ALLEN CURLEE, Defendant in the above entitled and numbered cause, for the

purposes of determining whether Defendant is competent to stand trial and whether Defendant

is or was a person with mental illness at the time of the alleged offense or offenses.

       The Defendant, DARRELL ALLEN CURLEE is in the Hill County Jail on charges of

Aggravated Assault with a Deadly Weapon and Aggravated Assault-Threat-with a Deadly

Weapon, felony indictments.

       The meaning of competency to stand trial is whether the Defendant has sufficient

present ability to consult with defense counsel with a reasonable degree of rational

understanding and whether the Defendant has a rational as well as factual understanding of

the proceedings against him.

       For the purpose of competency you should determine whether if at the time of the

conduct charged, Defendant, as a result of mental disease or defect, did not know that his



ORDER APPOINTING A DIS!NIERESTED
EXPERT TO EXAMINE DEFENDANT
                                                                                         1
conduct was wrong. The term "mental disease or defect" does not include abnormality

manifested only by repeated criminal or otherwise antisocial conduct. IT IS FURTHER

ORDERED that the examiner appointed herein submit a written report ofthe examination to

the Court within thirty (30) days of the date of this ORDER, including a description of the

procedures used in the examination, the examiner's observations and findings pertaining to the

Defendant's competency to stand trial, and the recommended treatment. If the examiner

concludes that the Defendant is incompetent to stand trial, the report must also state the

examiner's observations and findings and whether there is a substantial probability that the

Defendant will attain the competency to stand trial within the foreseeable future.

                                        ' report be submitted to the Court setting
       IT IS FURTHER ORDERED that a separate

forth the examiner's observations and findings concerning:

       1.     Whether the Defendant is a person with mentally illness (and meets the criteria
for court-ordered inpatient mental health senrices under Subtitle C, Title 7, Health and Safety
Code.

        2.     Whether the Defendant is a person with mental retardation and meets the
criteria for commitment to a residential care facility under Subtitle D, Title 7, Health and
Safety Code.


       3.     Whether the Defendant was sane at the time of the alleged    offense~.


       IT IS FURTHER ORDERED if the examiner is a physician and concludes that the

defendant is a person with mental illness, the examiner shall complete and submit to the court

a Certificate of Medical Examination for Mental Illness. If the examiner is a physician or a

licensed psychologist and determines that the defendant is a person with mental retardation

and if the determination has been made in accordance with the standards established by

ORDER APPOINTING A DlSlNTERESTED
EXPERT TO EXAMINE DEFENDANT
                                                                                             2
'   '


        Section 593.005, Health and Safety Code, the examiner shall submit to the court an affidavit

        setting forth the conclusions reached as a result of the examination.



               SIGNED this the :2.   fl day of *-r:          '2012.


                                               ·~~7~
                                                   F. B. (Bob) McGregor, Jr., Judge
                                                   66th Judicial District Court
                                                   Hill County, Texas




        ORDER APPOINTING A DISINTERESTED
        EXPERT TO EXAMINE DEFENDANT
                                                                                                   3
                                   NO.     37,458

STATE OF TEXAS                                             IN THE 66TH JUDICIAL
VS.                                                       DISTRICT COURT OF
DARRELL ALLEN CURLEE                                       HILL COUNTY, TEXAS
230 S. Waco St. #108
Hillsboro, Tx 76645                        ORDER

TO:   DARRELL ALLEN CURLEE


You are hereby ORDERED to report to the Hill County Community
Supervision and Corrections Department at 126 South Covington
Street, on the North end of the Hill County Courthouse Annex,
Hillsboro, Texas, at 8:00A.M., TUESDAY, DECEMBER 11, 2012.                 You
are further ORDERED to provide the interviewing officer with true
answers to questions concerning your criminal history, social
history, work history, educational history and medical history.


All information obtained is for the purpose of a PRE-SENTENCE

INVESTIGATION required by Section 9, Article 42.12, Texas Code of
Criminal Procedure, and the report will be handled in accord with

said Section.                                                                                ~""!:r:~
                                                                                           -~. -~ ,:;~
                                                                                       :,:Ill
                                                                                       .       :-



             SIGNED this 3rd day of October, 2012.                            ·... ;

                                              -ka.-. ~-,)-                .~
                                            ~--~--~=-~~~~~~---=----~
                                            F. B.   (Bob) McGREGOR, JR.   a
                                            PRESIDING DISTRICT JUDGE      -a

ALLEGED OFFENSE:         AGG ASSLT W/DEADLY WEAPON
                         AGG ASSLT W/DEADLY WEAPON
ccm/frms

        A CER.TIFIED ~OPY
        ATTEST   .X - 3 /
               ~~~.,...;-.,.~_.20~
                                     1 r
                      ANGELIAORR
                    DISTRICT CLERK
                  HILL COUNTY. TEXAS
        BY
       .,


                                   Veri 0. Childers, Jr., Ph. D.
                                              192HCR4319
                                             Milford TX 76670
                                              (817) 707-6010



     Defendant: Curlee, Darrell A.
     County: Hill
c:::.!;ause #: 37,45~
     Date of Evaluation: 10/10/2012
     Date of Report: 10/16/2012
                                         .                                     '
    Specific Issues for Evaluation: Mr. Darrell A. Curlee is referred by the Honorable F. B.
    McGregor, Jr., Judge of the 66th District Court for evaluation of his competency to stand trial.
    The CoUrt requests information in regard to two questions: (1) does the defendant have a
    rational and factual understanding of the nature of the proceedings againsthim; and (2) does the
    defendant have sufficient present ability to consult with his attorney with a reasonable degree of
    rational understanding. The Court also seeks information as to his sanity at the time of the
    alleged offense and at present.

    Disclosures: Prior to any evaluation procedures, Mr. Curlee was provided with the following
    information and disclosure about the nature and purpose ·of this evaluation.
           The Court has ordered an evaluation ofyour mental status and characteristics
           with respect to the upcoming legal proceedings that you face. The information
           obtained during the evaluation process will be used in legal hearings about the
           charges pending against you, and I will be evaluating your competency to stand
           trial as well as your sanity. As part of this evaluation, I will be asking you a
           number ofquestions about your personal history as well as using standard
           procedures and instruments to gather information. What we say and do during
           the course of this evaluation is not privileged, private, or confidential. I am not
           treating you in a doctor-patient relationship. Regardless ofhow you participate
           or cooperate, I will write a report. The report will go to the Court, the
           prosecutor, and your attorney. As a result of the evaluation, I may be called upon
           by one of the attorneys to testify in the proceedings. Do you have any questions?

    Pro<!edures, Techniques, and Information Reviewed:
    Clinical interview and history
    Mental status examination
    Review of indictment and record of prior offenses
    Telephone interview with defense attorney Terrence Russell
    Interview with Mr. Freddie Bassinger, LMSW
    Review of letters and notes written by Mr. Curlee
    Competency interview
    Carlson Psychological Inventory
    Interview with Mr. Cory Cole and Ms. Stacy Beam of Citizens State B,ank-ltasca
Clinical Observations and Findings:
        Behavioral observations. Mr. Curlee was seen at the Hill County Jail. He arrived
promptly when summoned by jail staff and was appropriately and neatly attired in jumpsuit. His
motor activity was smooth and coordinated, with no sign of any spasticity, tic, or other anomaly.
His fme motor activity was good as indicated by his writing ability, grip, and gait. His facial
expressions and social behaviour were appropriate. He showed no signs of any type of agitation
and was cooperative and agreeable during the evaluation process. Rapport was deemed as being
satisfactory.
        Relevant background history. Mr. Curlee is presently injail with charges of aggravated
assault with a deadly weapon and aggravated assault-threat, with a deadly weapon. He was
arrested and detained in the jail in June 2012. His previous record includes the following items.
     • 1964: conviction in Michigan for misdemeanour assault; fine of $11
    • 1975: conviction in Michigan for assault with deadly weapon, 1-4 years confinement
     • 1986: conviction in New Mexico for homicide; 6 years confmement, paroled to Hill
        County Texas
     • 1989: conviction in Utah for burglary; 5 years confinement
     • 2010: conviction for criminal trespass in McLennan County, TX
        Mr. Curlee reported dropping out of school in the 1Oth grade; he has no GED certificate or
further formal education. By trade, he has been a production machine operator. Presently he is
unemployed and receives monthly disability compensation. He reported being divorced once
pbefore and presently is in an informal marriage with a local woman. He said that together they
have two children and that he has several other children in the Michigan area. His mother is
alive and living in a local nursing home; his father died in 2006 from complications related to
Alzeheimer's disease. He has a sister living in Itasca, TX.
        Mr. Curlee's health history has several significant items. He denied any difficulties with
alcohol, illicit drugs, seizures, or other physical difficulty. He reported a previous motorcycle
accident (date unknown) that resulted in a concussion; he recovered with no ill effects. He
admitted to being a patient at the local community mental health center since 1972, receiving
services for schizophrenia. In the past, he has taken antipsychotic medications (Prolixin,
Zyprexa, Abilify), but at present he is not on any antipsychotic medication. Interview with Mr.
Freddie Bassinger, the director of the Hillsboro office ofthe Heart ofTexas Region MHMR
Center, revealed that Mr. Curlee was diagnosed in 1992 with schizophrenia, paranoid type, and
that he was treated regularly until April2011, when his case was transferred to the Johnson
County MHMR Center because Mr. Curlee moved out of the Hillsboro area Mr. Curlee was
reliable and compliant with his treatment regimen and was considered well-controlled. During
his time in treatment with Mr. Bassinger, Mr. Curlee posed no major problem due to his mental
condition. Mr. Curlee reported-and Mr. Bassinbger verified-a history of auditory
hallucinations described as voices of unknown others, always behind or around him, talking
about him. He had no identification for the voices, simply referring to ''them." The voices do
not provide any directions or commands for him. The only other health concern for Mr. Curlee
is a non~insulin dependency diabetic condition, for which he is treated with Metformin and diet
management. Hill County Jail medical staff report that he is compliant with his treatment
regimen and that the condition is under control.
         Mental status at time of evaluation. The mental status examination revealed a generally
cooperative and forthcoming demeanor on Mr. Curlee's part. His mood is best described as
being even and appropriate. His emotional expression was normal, with no indications of any
problematic communication style or behaviour. Perceptually, he admitted to hearing voices
(described above) but said that they were not very problematic for him. He exhibited no overt
behaviours that commonly accompany serious mental thought problems, and jail staff did not
report any such behaviours either. He denied any thought of suicide/homicide. His thinking
processes during the interview and evaluation process were logical, focused, and relevant. He
denied any problems with thought blocking, phobias, compulsions or obsessions. He was alert
and oriented to his current situation, his personal status, and his current location, but he was not
accurate in the date, thinking that it was November. His memory was intact for remote things
such as previous charges and convictions and his previous mental health treatment regimen, and
for recent things such as his current medication, date of arrest, and current charge pending. He
concentrated and attended to interview questions as well as instructions for questionnaires
without difficulty. His insight into his current situation was good. Cognitively, he used a
vocabulary that was good for his educational level. While no formal assessment of his
intelligence level was made, based upon his responses and former occupational level, he
functions within the broad limits of the average range of intelligence, above the range of mental
retardation.              ,
         Mr. Curlee stated the charge pending against him as aggravated assault and said that he
allegedly stabbed somebody with a knife, trying to kill the other person. He correctly identified
his attorney as Mr. Terrence Russell and said that they had not yet discussed the possible penalty
if he is convicted. This is consistent with the indictment returned against him and information
provided by Mr. Russell. When asked about the actors and participants in a criminal proceeding,
he gave the following information as to their roles.
     • Defense attorney: to see that your rights are upheld and that I'm handled fairly by the
         judge ·
         Prosecutor: looking up evidence to use against you on the charge
         Trial judge: know the whole case, see the problem fairly, and deal with both parties fairly
         Jury: judge the case fairly. If they say you're guilty, you pay the penalty. The judge,
         jury, and district attorney decide who is guilty
When questioned about essential things that are part of the criminal trial process, Mr. Curlee
gave the following answers.
     • Right to remain silent: to protect yourself, say as little as possible. (Q: If the judra,e asks
         you a question, do you have to answer it?) you don't have to, you can plead the 5 but it
         makes you look guilty. I think it's best to answer questions.
     • Concept of Not Guilty: I go back to normal living in my RV in Grandview. I owe back
         rent of over $3000.
     • Concept of Guilty: admitting to doing what they allege'
          Probation: a period of observation, if you do as expected you get off on time; it keeps
         you from going to jail or prison; you go to jail or prison if you violate'
     • Consequences if found to be incompetent or insane: I don't know
          The results of psychological testing provided the following information. Intellectually,
test results show that is functioning within the broad limits of the average range of intelligence,
above the range of mental retardation. Based upon interview information provided by Mr.
 Bassinger, Mr. Cole, and Ms. Beam, Mr. Curlee's everyday adaptive behavior skills are adequate
 enough to allow him to take care of his personal needs in the community.




    Ll.AWl.J   "~.:JU.l]   U.lll..l.;:t   unu   V\.<llQ.Jlll   UlQ.I. WCIC   w uc i:liJH.!L   Ul 111:5   u:::gat srrategy.
    Capacity to consult with counsel. In spite of the ideas of reference that he harbors, Mr.
    Curlee's answers to questions and his engagement in the evaluation process, both in
    interview and testing, all suggest that he is able to consult with his attorney in a rational and
    factual manner.
•   Capacity to understand rationally the charges and potential consequences of the pending
    proceedings. Based upon his answers to questions during interview, Mr. Curlee has an
    accurate understanding of the charges pending against him and what they mean, but he is in
    need of a formal discussion with his attorney regarding possible consequences if convicted.
        The Carlson Psychological Survey is a personality screening instrument specifically
designed for use with offenders. On it, Mr. Curlee generated a valid profile. Of the four clinical
scales, Mr. Curlee's scores on the ones measuring chemical abuse, antisocial tendencies, and
self-degradation are all low, indicating no difficulties in those areas. On the one scale that
measures thought disturbance, his score surpasses 77% of those in the norm group, suggesting
the presence of perceptual distortion and hallucinations. This score is consistent with his long-
standing diagnosis of schizophrenia.

Diagnoses: The most likely DSM-IV diagnostic classification for Mr. Curlee is as follows.
   • Axis l: schizophrenia, paranoid type (295.30)
   • Axis II: none
   • Axis III: diabetes, by history
   • Axis IV: current stressors include problems related to arrest and detention, economic
      difficulties (due to loss of disability income while incarcerated), housing stress related to
      back rent, and removal of parent to nursing home care
   • Axis V: current GAF = 55

Areas of Competency:
•   Capacity to understand charges and potential consequences. Based upon his answers to
    questions about the charges pending, Mr. Curlee has an accurate understanding of the
    charges pending. He does not know possible consequences if convicted and needs to visit
    with his attorney on that matter.
•   Capacity to disclose pertinent material. Based upon his answers to questions during
    interview and his recounting of personal history, Mr. Curlee has no difficulty in relating
    relevant history concerning his background and current case. Hjs statements were
    corroborated by outside information and were accurate.
•   Capacity to engage in legal strategies. Mr. Curlee's previous experiences in the legal system
    along with his current understanding of his situation, his way of thought patterns, and his
    record of compliance in treatment, all suggest that he is able to work with his attorney in
    developing a reasonable legal strategy
•   Capacity to understand the adversarial nature of the proceedings. Based upon answers to
    specific questions about the nature of a trial and the roles of the various participants, Mr.
    Curlee has an accurate tinderstanding of the adversarial nature of a criminal trial and the risks
    involved.
•   Capacity to testify. Based upon his interpretation of his rights as a defendant and his
    understanding of the nature of a trial, along with his former experiences, Mr. Curlee could
    likely testify in his own behalf if that were to be a part of his legal strategy.
•   Capacity to consult with counsel. In spite ofthe ideas of reference that he harbors, Mr.
    Curlee's answers to questions and his engagement in the evaluation process, both in
    interview and testing, all suggest that he is able to consult with his attorney in a rational and
    factual manner.
•   Capacity to understand rationally the charges and potential consequences of the pending
    proceedings. Based upon his answers to questions during interview, Mr. Curlee has an
    accurate understanding of the charges pending against him and what they mean, but he is in
    need of a formal discussion with his attorney regarding possible consequences if convicted.
Opinion on Competence to Stand Trial: Although Mr. Curlee has a long-standing diagnosis of
a psychiatric disorder, based upon available historical information, current test and interview
data, and interviews with collateral sources, he has sufficient present ability at this time to
consult with his attorney with a reasonable degree of rational understanding. Further, he has a
rational and factual understanding of the proceedings pending against him. It is my opinion that
he is competent to stand trial on the charges pending.

Treatment Recommendations: With his long-term, known history of schizophrenia, paranoid
type, Mr. Curlee is in need of psychiatric evaluation to determine his present need for
antipsychotic medication. 1bis can be done on an outpatient basis without need for inpatient
hospitalization. According to mental health practitioners that have treated him in the past, he
needs a maintenance dose of an antipsychotic medication to manage his mental disorder
adequately. He has now been off of his prescribed medication for over a year. The antipsychotic
medication is likely necessary for Mr. Curlee to maintain a functional mental status and to care
for himself adequately outside of a hospital setting as well as for the management of his
symptoms of hallucinations and delusions. In addition, he will need to maintain a stable status
with respect to his diabetes in order to preclude mental difficulties resulting from fluctuations in
his blood sugar level. This includes compliance with both his medication for diabetes and his
dietary treatment recommendations as well as routine medical oversight and monitoring of his
blood sugar level.




Verl 0. Childers, Jr., Ph. D.
Psychologist #221 03
                               Veri 0. Childers, Jr., Ph. D.
                                        192 HCR4319                                                 j
                                       Milford TX .76670
                                        (817) 707-6010


16 October 2012


Honorable F. B. McGregor, Jr., Judge
661h District Court
PO Box 284
Hillsboro TX 76645

RE: Curlee, Darrell A., Cause #37,458

Dear Judge McGregor:
        Pursuant to order of the Court, I have seen and evaluated Mr. Darrell A. Curlee with
respect to his sanity for the upcoming activities in the above cause. As part of my evaluation, I
interviewed Mr. Curlee and, with his permission, Mr. Freddie Bassinger (Director of the Hill
County Office of Heart ofTexas Region MHMR Center and Mr. Curlee's former
psychotherapist), Mr. Cory Cole, and Ms. Stacy Beam, staff members ofthe Citizens State Bank
ofltasca. Mr. Cole and Ms. Beam had pertinent knowledge regarding an allegation made by Mr.
Curlee with respect to his personal checking account, which needed verification and assessment.
I administered a mental status examination, collected a personal history, and administered a
personality test to Mr. Curlee as part of the evaluation process.
        Mr. Curlee has a long-standing mental health diagnosis of schizophrenia, paranoid type,
that has been treated successfully in the past with medication, allowing him to live in the
community and to care for his own needs. He has been off his medication since April of2011,
when his case was closed at the local community mental health center and transferred to the
community mental health center in Johnson County, TX. He related an accurate history, verified
by outside information obtained from the Hill County Sheriff's Office and from interviews with
the individuals named above. Mr. Curlee's statements included accurate information about his
past criminal activity as well as an allegation he made of recent fraudulent activity in his
personal checking account. Review of his criminal history verified his statements about that
aspect of his life. Interviews with Mr. Cole and Ms. Beam revealed that there has been activity
on his checking account after the date ofMr. Curlee's incarceration resulting from checks he had
written prior to his arrest. There is no indication to bank personnel of any fraudulent activity,
only activity that as of the date of my interview with Mr. Curlee had not been clarified for him.
        Results of the testing suggested that Mr. Curlee has odd ideas that include hearing
nondescript and nearby voices talking about him. This thought pattern occurs without respect to
any particular location in which Mr. Curlee might be. When I asked him further about this, he
related that he hears the voices but that he does not give any great concern to them or that they
cause him any distress. The voices do not provide any commands or instructions to him, and he
does not act according to what he hears from them. He related only that "they talk about me."
These symptoms of thought difficulty have been treated successfully since 1992 with prescribed
medications.
        During interview, Mr. Curlee accurately outlined the charges pending against him,
including a history of his alleged actions that led to the charges. He did dispute the allegation
that he stabbed anyone, saying that allegation was incorrect. When asked about the allegations,
he gave the following answers.
    • What are you charged with? Assault with a deadly weapon, a knife
    • What does that mean? They say I stabbed him, attempted to murder him, drew blood
    • If someone does that, why is it wrong? You're not supposed to abuse someone. You can
        protect yourself. I used a paring knife to scare him; he was a pro boxer.
Without any knowledge about the identity of the putative victim in this incident, I can neither
verify nor dispute Mr. Curlee's interpretation of the level of his personal risk, however he does
appear to have a clear and accurate understanding of his action and the resulting charges.
        Given Mr. Curlee's expressed view about not abusing others yet being able to protect
himself, along with his statement of the lack of a sense of command or urgency he perceives
from the voices he hears, it is my opinion that his current mental disorder does not prevent him
from understanding that his conduct was wrong. Accordingly, it is my opinion that he is sane
with respect to the proceedings he now faces. While he may dispute with authorities the level of
personal risk that he perceived, his understanding of his alleged actions is not significantly
impaired as a result of his hallucinations and delusions. He does need to be evaluated by a
qualified psychiatrist to determine the need for re-instatement of antipsychotic medication and
regular psychotherapy. In my opinion, this can be accomplished on an outpatient basis and does
not require inpatient hospitalization.
                                i

Respectfully,




Veri 0. Childers, Jr., Ph. D.
Psychologist #22103




                                          I'
  Veri 0. Chffders, Jr., Ph. D.                                                                 Statement
  192 HCR 4319
  Milford TX 76670




           Bill To
           Hill County
           Hill County Treasurer
           PO Box 671
           Hillsboro TX 76645




        Date            Amount Due            Enclosed
      10116/12           $1,095.00


        Date                                  Description                        Amount            Balance
09/16/12             Balance forward                                                                         0.00

                     Curlee eval-
10/10/12                                                                               645.00           645.00
                     lntetVi9'Ns--Cur1ee, Bassinger, Cole/Beam; testing
                     ---Interview, 4.3@ $150.00 == 645.00
10/16/12                                                                               450.00         1,095.00
                     Written competency report Darrell Curlee, Cause #37,458
                                              =
                     --- Report, 3 @ $150.00 450.00


  I




       Current           1-30 Days           31-60 Days           61-90 Days   OVER 90 Days      Amount Due
                          Past Due            Past Due             Past Due      Past Due
      $1,095.00            $0.00                $0.00                $0.00        $0.00           $1,095.00
                                Veri 0. Childers, Jr., Ph. D.
                                        192 HCR4319
                                       Milford TX 76670
                                        (817) 707-6010             RECEIVED

                                                                  OCT 1 6 2012
16 October 2012
                                                                 DISTRICT JUDGE

Honorable F. B. McGregor, Jr., Judge
66th District Court
POBox 284
Hillsboro TX 76645

RE: Curlee, Darrell A., Cause #37,458

Dear Judge McGregor:
        Enclosed are my reports on Mr. Darrell A. Curlee in the above-mentioned cause pending
in the District Court. Should you or any of the attorneys in the matter have any questions or need
clarification on any point, please contact me at your convenience.
        Thank you for this referral and the opportunity to serve the Court in this matter.

Sincerely,




Verl 0. Childers, Jr., Ph. D.
Psychologist #221 03


Enclosures (3)
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Job No.: 034837                                               Total Time: 0"02'41"        Page: 009



Complete
Document:                           doc034837201210161SS322




                                                                          Verl 0. Childers, Jr., ;Fh. D.
                                                                                      192HCR4319
                                                                                     Milford TX 76610
                                                                                      (817) 70'7-6010



             Defendant: Curlee. Dwll A.
             Countv;H~
      ~use*; 174sC::::..
         ate of EvaJ.uaUon2 10/10/2012.
             Date ofReportz 10/16/2012

             Specific lasues for Evaluation: Mr. Darrell A. Curlee is referred by the Honorable F. B.
             McGregor, Jr., Judge of the 66th District Court for evaluation of his competency to stand trial.
             The Court requests information in regard to two questio.lli: (1) does the defendant have a
             rational and :factue1. unde:rstandhlg of the nature of the proceedings againstlrlm; and (2) does the
             defendant have sufflclent present ability to consult with his attorney with a. reasonable degree of
             rational undetstanding. Tho Court also seeks infonnation as to his sanity at the time of the
No.        Date and Time Destination                                                           Times     Type          Result          Resolutton/ECH
001        10/16/12 15:53 District Attorney                                                     0"01'18" FAY.          OK              200x100 Normal/On
002        10/16/12 15:56 Terence RusseU                                                        0"01'23" FAY.          OK              200x100 Normal/On




                                                                                                                                                     [ Qlo«;OXOS415 ]
,                                             CAUSE NO JAIL IC..SS832

    STATE OF TEXAS                                        §   3 fr c_f'S]       IN THE DISTRICT COURT OF

    vs                                                    §                     HILL COUNTY, TEXAS

    DARRELL ALLEN CURLEE                                  §                     66TH JUDICIAL DISTRICT


                                     ORDER APPOINTING AN ATTORNEY

    On the 13TH day of AUGUST, 2012, it was made known to the Court that the defendant Darrell Allen Curlee
    was in need of an attorney, and it :mne:uin(T to the Court that the said Defendant should have an attorney, it is
    ORDERED by the Court that \e..<'ro..~e ~u5.5t!. \\ a practicing attorney of this Court, be and is hereby appointed
    to represent the Defendant in the above cause.


                                     This defendant has been charged
                                                                .,   with:      AGG ASSAULT WI DEADLY
                                                                                WEAPON (2 COUNTS)

    NEXT HEARING DATE: NO DATE AT TIDS TIME

                               Signed this 13TH day of AUGUST, 2012.



                                                                   ~d~
    IZ!Defendant is in the Hill County Jail

    0    Defendant is not in' the Hill County Jail and can be reached as follows:



                ..... .··· .
                    ~

                .   '"




            /
,
    HP LaserJet 3055

    Fax Call Report
    Hi 11 County
    2545825933
    Aug-13-2012    1:47PM

    Job     Date            Time              Type                        Identification                         Duration   Pages·   Result
     4399    B/13/2012      1:46:57PM         Send                        5825593                                0:47       2        OK




                                                                                        tdO"dUUUI
                                                                             trod~..-t l>t(<..u Cr>oo'At.ultor
                                                                                    'P. 0. l!D,X.5:116
                                                                                   Hllld>oro. 'IX}'6645
                                                                                     ~--+1}1;1'
                                                                                   !~Sf~~ FAX


                                        FAX
                                        TO:

                                        ·n(rQ...,o.._ Rvs<;c l \
                                        ~-S<4.;!- ""~.3

                                        RE:          DARREU. ALLEN C'URl..EE
                                        IN .JAILr    181ns         C]No
                                        CHARGJ!.!    JAIL JD 55831


                                        PAGES:       INCLUDING COVER           1
                                    DATE:            8fJYJZ

                                    CC:



                                    COMMENTS:

                                    TinS PAX CONTAINS CONFIDBNrw) INFORMA noN. IF YOU ARE NOT TilE INTENDED
                                    RECIPIENT OF lli!S FAX, PLEAS.E CONTACT INDIGENT DEFENSI! OFFICE.
        -·
.-


             STATE OF TEXAS                             §              IN THE DISTRICT COURT OF
             vs                                         §              HILL COUNTY, TEXAS
                                                                       66TH JUDICIAL DISTRICT

             DARRELL ALLEN CURLEE




             Dear Mr. Curlee,                                                 August 13,202012


             After reviewing your application for Court-Appointed Attorney, the appointing
             authority hereby appoints you MARK MORRIS, as your attorney, who can be
             reached as follows:

     2121 W. WACO DR
     WACO, TX 76707
     254-752-1254
                           NEXT COURT DATE:             -NO DATE AT THIS TIME

             THANK YOU,


             IDA ALCALA
             INDIGENT DEFENSE
             COORDINATOR




                                                                                                 /




                                                                                                     (
,---------------------------
 '

                                                               NO. 37458

          STATE OF TEXAS                                           §       IN THE DISTRICT COURT.-·'                     -:.·;~.
                                                                                                          ....              . . ....
                                                                   §                                       ;.:::,
                                                                                                                 ~.)



                                                                                                                            .   ~~::.:;
          vs.                                                      §       66th JUDICIAL DISTRICT
                                                                   §
          DARRELL ALLEN CURLEE                                     §       fiLL COUNTY, TEXAS                      --
                                                  MOTION FOR CONTINUANCE                                                -':?.                ~-

                                                                                                                                          .,:..-~
                                                                                                                         \,•)
                                                                                                                          if
          TO THE HONORABLE JUDGE OF SAID COURT:

                     . Now comes Darrell Allen Curlee, Defendant, and files this Motion for Continuance of

          this cause from its present setting of February 25, 2013 and shows the following:

                       1.          This motion is filed in accordance with Article 29.03 of the Texas Code of

          Criminal Procedure.

                      2.           Counsel for Defendant is involved in a OWl with Child Passenger trial on

          February 25, 2013, State vs. Vicki Sanchez, cause number CR11916 in the 355th Judicial

          District Court of Hood County, Texas. This is the 41h trial setting of this case.

                      3.           This motion is not made for purposes of delay but that justice may be done.

                      WHEREFORE, PREMISES CONSIDERED, Defendant ptays that the Court enter its

          order continuing this cause until some future date, or, in the alternative, sets this motion for

          hearing.

                                                                 Respectfully submitted,

                                                                 Terence A. (Tiger) Russell
                                                                 Attorney & Counselor at Law
                                                                 PO Box 306
                                                                 Hillsboro, TX 76645
                                                                 245-396-3219
                                                                 254·582-5593 (facsimle)


                A CERTIFIED~OPY         }
                ATIEST        l_   -l           .20.1.1.
                               ANGELIAORR
                              DISTRICT CLERK
                            HILL COUNT TEX
                BY
·~   .
     ~.




                                                    Terence A. Russell
                                                    State Bar No. 17437070
                                                    Attorney for Darrell Allen Curlee


                                        VERIFICATION

STATE OF TEXAS                                      §
                                                    §
COUNTY OF HILL                                      §


          ON THIS DAY personally appeared Terence A. Russell, who, after being placed under

oath, stated the following:

          "My name is Terence A. Russell and I am the attorney of record for Darrell Allen Curlee

and have been so at all material times relevant to this proceeding.

          "I have read the Motion for Continuance and every statement is within my personal



                                       .___1~4~
knowledge and is true and correct."


                                              Terence A. Russell



          Sworn to and subscribed before me on   --=-:h~f.L""':r-t.u'=:--=-=-=~~;.r;::---'--(~-2<-J---'1......:3;;;__--:--::..---
                                                           ~~
                                              NOTARY PUBLIC
                SUSAN M. RUSSEll
              UY COMMISSION EXP1AES
                 January 21, Z015




          This is to certify that on February 14 2013, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, Hill County, 3rd Floor, Hill

County Courthouse, by hand delivery.



                                              Terence A. Russell
                           •                                          ••
                                            NO. 37458

STATE OF TEXAS                                    §   IN THE DISTRICT COURT
                                                  §
vs.                                               §   66th JUDICIAL DISTRICT
                                                  §
DARRELL ALLEN CURLEE                              §   HILL COUNTY, TEXAS



       NOTICE TO CLERK OF COURT:
                                                                                               ~
       This motion is to be considered .EX PARTE and Is filed for purposes of the record. Th~
       motion is required to be SEALED, by law, and disclosure shall be made ONLY to the
       TRIAL COURT and COUNSEL FOR DEFENDANT.


                     MOTION TO PROCEED EX PARTE AND
               MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE

THE FOLLOWING IS WORK PRODUCT OF THE UNDERSIGNED ATTORNEY AND IS
INTENDED FOR DISCLOSURE TO THE TRIAL COURT ONLY.

TO THE HONORABLE JUDGE OF SAID COURT:

       Now comes Darrell Allen Curlee, Defendant in the above entitled and numbered case, by and

through the undersigned counsel, and to proceed ex parte, in camera, and on a sealed record with

regard to applications for expert fees, and moves this Court pursuant to the Sixth and Fourteenth

Amendments to the United States Constitution, Article I, Sections 3, 3a, 10, 13 and 19 ofthe Texas

Constitution, and Article 26.05(d) of the Texas Code of Criminal Procedure, to appoint an expert

in police procedures to assist in the evaluation, preparation, and presentation of a defense, and for

good cause shows the following:

Factual Matters which establish Need for Expert Assistance
       The charged offense of aggravated assault with a deadly weapon occurred at a time when

Defendant is believed to be insane. Defendant has been a MHMR patient since 1993, diagnosed with

schizophrenia. Defendant's recollection of events relevant to this charge contain hallucinations

regarding the character of the actors and his involvement in the event.

Need for Expert Assistance

       Defendant has timely filed his intent to assert his insanity defense. Without expert assistance,

MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE                         Page I




                                                                                                            I
evidence which will be the subject of expert opinion is critical to a determination of Darrell Lee

Curlee's sanity at the time of the offense.

       3.      IfDarreU Lee Curlee is not provided with expert assistance, Darrell Lee Curlee will

be deprived of due process, due course, and equal protection of the laws, the effeetive assistance of

counsel, the right to confront witnesses, the right to a fair and impartial trial, the right to present

evidence on behalf of the defense, and the right to explain or deny evidence presented against the

defense in the punishment phase, in violation of the Sixth ruid Fourteenth Amendments to the United

States Constitution and Article I, Sections 3, 3a, 10, 13 and 19 of the Texas Constitution.

       WHEREFORE, PREMISES (;ONSIDERED, Darrell Lee Curlee requests that this Court
consider this motion and order that sufficient funds be provided to the Defense to have a competent

psychiatric or psychological expert assist in the investigation, evaluation, preparation and

presentation of the defense.

                                               Respectfully submitted,


                                                Terence A. (Tiger) Russell
                                                Attorney & Counselor at Law
                                                P0Box306
                                              · Hillsboro, Texas 76645
                                                Tel: (254) 396-3219
                                                Fax: (254) 582-5593



                                              )ly.,      £Autle ~
                                                   Terence A. Russell
                                                   State Bar No. 17437070
                                                   Attorney for Darrell Lee Curlee


       BEFORE ME, the undersigned authority, on this day personally appeared Terence A.

Russell, who, after being duly sworn, stated upon oath that the foregoing was true and correct.
                                   /

       Sworn to and subscribed before me on        1-~                /3) 2 0    f-3 ·

                                               NOfii~fl~
MOTION TO PROCEED EX PARTE AND MOTI N FOR APPOINTMENT OF EXPERT ASSISTANCE                        Page 3
·~




                                                  NO. 37458
     STATE OF TEXAS                                    §    IN THE DISTRICT COURT
                                                       §                                       ~
                                                              1                                ~
     vs.                                               §   66 JUDICIAL DISTRICT
                                                               h
                                                       §
     DARRELL ALLEN CURLEE                              §   HILL COUNTY, TEXAS



            NOTICE TO CLERK OF COURT:                                                              -..
                                                                                                   vJ
            This motion is to be considered EX PARTE and Is filed for purposes of the record. Tht?
            motion Is required to be SEALED, by law, and disclosure shall be made ONLY to the
            TRIAL COURT and COUNSEL FOR DEFENDANT.


                          MOTION TO PROCEED EX PARTE AND
                    MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE

     THE FOLLOWING IS WORK PRODUCT OF THE UNDERSIGNED ATTORNEY AND IS
     INTENDED FOR DISCLOSURE TO THE TRIAL COURT ONLY.

     TO THE HONORABLE JUDGE OF SAID COURT:

            Now comes Darrell Allen Curlee, Defendant in the above entitled and numbered case, by and
     through the undersigned counsel, and to proceed ex parte, in camera, and on a sealed record with
     regard to applications for expert fees, and moves this Court pursuant to the Sixth and Fourteenth
     Amendments to the United States Constitution, Article I, Sections 3, 3a, I 0, 13 and 19 of the Texas
     Constitution, and Article 26. 05(d) of the Texas Code of Criminal Procedure, to appoint an expert
     in police procedures to assist in the evaluation, preparation, and presentation of a defense, and for
     good cause shows the following:
     Factual Matters which establish Need for Expert Assistance

            The charged offense of aggravated assault with a deadly weapon occurred at a time when
     Defendant is believed to be insane. Defendant has been a MHMR patient since 1993, diagnosed with
     schizophrenia. Defendant's recollection of events relevant to this charge contain hallucinations
     regarding the character of the actors and his involvement in the event.
     Need for Expert Assistance

            Defendant has timely filed his intent to assert his insanity defense. Without e~pert assistance,

     MOTION TO PROCEED EX PARTE ANO MOTION FOR AI'POINTMENT OF EXPERT ASSISTANCE                         Page I
• f




      counsel cannot effectively present this defense to the jury and additionally is without the necessary

      knowledge to understand the nature of Defendants mental condition as far as mitigation evidence

      in the punishment phase of this case, provided he is found guilty.

      Legal Basis for Expert Assistance

                The United States Supreme Court held that an indigent defendant has a constitutional right

      to the assistance of a competent, independent expert. See Ake v. Oklahoml!, 4 70 U.S. 68 (1985). The

      purpose of this holding is to ensure that indigent defendants are given the same due process as .

      wealthier defendants, including, and perhaps especially, the right to the effective assistance of

      counsel. ld

                Appointing an expert whose purpose is to assist the court and whose findings are made public

      necessarily renders such an expert incapable of an undivided loyalty to the Defendant. Appointing

      any expert other than one whose findings are privileged and whose efforts and advice are rendered

      exclusively in the Defendant's best interests, is not an expert rendering assistance to Defendant or

      the defense, and therefore the due process requirements of Ake are not met. See Rey v. State, 897

      S.W.2d 333 (Tex.Crim.App.l995).

                When an indigent accused makes a clear showing to the trial judge that an expert's assistance

      is essential to assist in his defense, the judge has a clear duty upon request to appoint an expert to

      assist.

                Application for Fees

                1.     In the past, Counsel has spoken with Dr. Steve Karten, a competent and qualified

      specialist in the field of forensic psychology or psychiatry. At the time, this expert charged

      $2,000.00 to review mental health records; conduct an interview; and perform a psychological and

      social history examination and evaluation, including but not limited to a determination whether the

      Defendant was insane at the time of the alleged offense; and possibly testify at trial.

                2.     The services of a psychologist are necessary to enabie Darrell Lee Curlee to prepare

      effectively for trial, present favorable evidence and to cross-examine the state's witnesses. The


      MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE                        Page:Z
• i




      evidence which will be the subject of expert opinion is critical to a determination of Darrell Lee

      Curlee's sanity at the time of the offense.

             3.           lf Darrell Lee Curlee is not provided with expert assistance, Darrell Lee Curlee will

      be deprived of due process, due course, and equal protection of the laws, the effective assistance of

      counsel, the right to confront witnesses, the right to a fair and impartial trial, the right to present

      evidence on behalf of the defense, and the right to explain or deny evidence presented against the

      defense in the punishment phase, in violation of the Sixth and Fourteenth Amendments to the United

      States Constitution and Article I, Sections 3, 3a. 10, 13 and 19 of the Texas Constitution.

             WHEREFORE, PREMISES CONSIDERED, Darrell Lee Curlee requests that this Court
      consider this motion and order that sufficient funds be provided to the Defense to have a competent

      psychiatric or psychological expert assist in the investigation, evaluation, preparation and

      presentation of the defense.

                                                         Respectfully submitted,


                                                         Terence A. (Tiger) Russell
                                                         Attorney & Counselor at Law
                                                         PO Box 306
                                                         Hillsboro, Texas 76645
                                                         Tel: (254) 396-3219
                                                         Fax: (254) 582-5593



                                                        Jauk~
                                                            Terence A. Russell
                                                            State Bar No. 17437070
                                                            Attorney for Darrell Lee Curlee


              BEFORE ME, the undersigned authority, on this day personally appeared Terence A. .

      Russell, who, after being duly sworn, stated upon oath that the foregoing was true and correct.


              Sworn to and subscribed before me on          1- ~                I3 J 2   a /..3
                  .
              ti~s·"f\\
                       }"~
              " . ...,.g,·
                  m:.~-
                               SUSAN M. RUSSEU
                             MY COMMISSION EXPIRES
                                January 21, 2015
                                                         NO~~fl~
      MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF         E~PERT   ASSISl'ANCE               PageJ
,   1   I




                                                      N0.37458
            STATE OF TEXAS                                 §   IN THE DISTRICT COURT
                                                           §
            vs.                                            §   66 1h JUDICIAL DISTRICT
                                                           §
            DARRELL ALLEN CURLEE                           §   IDLLCOUNTY, TEXAS

                                                      ORDER
                   On _ _ _ _ _ _ _ _ _ , 20 ll, came on to be considered Darrell Lee Curlee's Motion

            to Proceed Ex Parte and Motion for Appointment of Expert Assistance, and said motion is hereby

                                                 (Granted) (Denied)




                                                        JUDGE PRESIDING




            MOTlON TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISl"ANCE              Page4
- - - - - - - - - - - - - - - · - - ---             -    -    -




  ---------------~----------------------------------------------------------------
  HILL COUNTY SHERIFF'S OFFICEL A W   EN F 0 R CEMENT                                           06 MAR 2
  TSG, INC.                   Inmate Incident History                                          PAGE    1
  ·--------------------------------------------------------------------------------
  Jail Id: 55832
  Name: CURLEE, DARRELL ALLEN
                                                        31, t+SC6 Race:     W Sex: M   DOB: 10/30/1946
  SO #: 23860      DL#: TX-04173584                          SS#: XXX-XX-XXXX  Date Booked: 06/16/2012
  Date ...... Time ... Location . . . . . . . . . . . . . . . . . . . . . . Reported By ..•.•.............
  03/06/2013 10:11am F-8                                                 · CAPT.· CASTRO
  Type: JI (JAIL INCIDENT)
  Victim:       MEDICAL
  Witnesses:
  Rpt Officer: 240 (CASTRO, A (SGT))
  Supervisor: 1000 (MICHAEL COX, SH::miFF}
  Narrative:    ON 6/15/2012 SUBJECT CURLEE.DARRELL ALLEN WAS BOOKED INTO THE HILL
                COUNTY JAIL. SUBJECT •:JAS PLACED IN HOLDING AFTER HE WAS BOOKED
                INTO THE JAIL. AFTER SUBJECT WAS ARRAIGNED HE WAS ALOWED TO MAKE
                HIS PHONE CALLS AND WAS CLASSIFIED TO SEPERATION FOR MEDICAL
                REASON. SUBJECT HAD SEVERAL INJURIES TO HIS FACE FROM AN INCIDENT
                PRIOR TO HIS ARREST. ON 8-09-2012 AFTER SUBJECT HAD BEEN RELEASE
                FROM MEDICAL SUBJECTNAS RECLASSIFIED TO POPULATION IN B-1 DORM.
                ON 08-16-2012 INMATES IN B-1 ASK TO SPEAK WITH ME ABOUT INMATE
                CURLEE. INMATES STATED CURLEE WAS JUMPING UP OUT OF HIS SLEEP~
                WOULD YELL OUT THAT SOMEONE WAS IN THE CELL TRYING TO GET TO HIM
                AND HURT HIM. INMATES STATED SUBJECT WOULD YELL IN THE DIRECTION
                OF THE SHOWER IN THE CELL AND MADE THE STATEMENT THERE WERE
                PERSONS COMING THRUOGH THE SHOW AND COMING FOR HIM. I ASKED CURLEE
                TO STEP OUT OF THE CELL AND SPEAK WITH ME ABOUT THIS MATTER.
                SUBJECT MADE THE STATEMENT HE COULDN'T BE IN THE CELL BECAUSE
                THERE WERE PEOPLE TRYIBG TO GET TO HIM. WHEN I ASKED CURLEE IF HE
                WAS TALKING ABOUT THE INMATE IN THE CELL WITH HIM CURLEE STATED
                NO. I~S THE ONES COMING OUT OF THE SHOWER I KNOW THEY ARE TRYING
                TO GET TO ME AND HURT ME. SUBJECT WAS THEN REMOVED FROM THE CELL
                AND PLACE IN SEPERATIQN FOR HIS SAFETY AND THE SAFETY OF THE OTHER
                INMATES. WHILE MAKING ROUNDS IN SEPERATION I CAPT.CASTRO AND OTHER
                FLOOR OFFICERS HAVE WITNESS CURLEE TALKING TO THE WALL IN HIS CELL
                OR IN THE DIRECTION OF HIS SHOWER. WHEN ASKED IF HE WAS DOING OK?
                CURLEE HAS MADE THE STATEMENT THESE PEOPLE ARE STILL AFTER ME AND
                BEGAN TO CURSE AT THE~.WALL OR IN THE DIRECTION OF THE SHOWER.END
                OF REPORT.                   \
                                              ~

  -----------~--------------------~-~--------------------------------------------
                                    .: ..
                                              .i'




                                   l
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                                                                                                                               03toa.'2013 16:30
      Firmware Version 2KS_2FOO.OOS.004 2010.04.13                                   (2KS_IOOO. 005.001) [21<5_1100 .001.002] [2KS~O. 005. 001]
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      Job No. : 044342               Total Time:   o•ot·ss·         Page: 012



      Complete
      Document:            doc04434220130306162730

,,.




                                                              Cause No. 37,458



            lHESTATE OF TEXAS                                     )(                           IN THE 66TH DISTRICT

            vs                                                    )(                           COURT OF

            DARREU ALLEN CURLEE .                                 )(                           HILL COUNTY, TEXAS

                                   JUQGMfNT OF COMM!IMENJi MENTAL INCOMPETENCE

            Date of Hearing:                                      MAROI 6, 2013

            Attorney for State:                                   Nicole Cl'aln,Asslstant Dlstrld Attorney

            Attorney for Defendant:                               Terence A. R~ll

            Data af Birth: 10-~0..46                              Raca:White

            TRN NO· , 14316336X A001and
      No.    Date and Time Destination                                   Times      Type          Result           Resolut1on/ECH
      001    03/06113 16:28 Jail                                         0"01"55"" FAX            OK               200xl00 Normal/On
                                                                                '          >-t.a . . f:>
                                            f/'-"'-            F[], .                            ~~
                                              ~~~~
                                              ~~ f i s;o.
                                                   ~~ 0-1/\
                                                                                                                                  [ QWGOX08415 ]
          I




                                           Cause No. 37,458




THE STATE OF TEXAS                               )(                      IN THE 66TH DISTRICT

vs                                               }(                      COURT OF

DARRELL ALLEN CURLEE                             )(                      HILL COUNTY, TEXAS

                      JUDGMENT OF COMMITMENT: MENTAL INCOMPETENCE

Date of Hearing:                                 MARCH 6, 2013

Attorney for State:                              Nicole Crain,Assistant District Attorney

Attorney for Defendant:                          Terence A. Russell                               ~
                                                                                                  -
                                                                                                          ~:
                                                                                                          .--1:-
                                                                                                                    4,
Date of Birth: 10-30-46                          Race: White                                      ; .b'j}
                                                                                                ~ 2.i:""l
TRN NO: 914316336X AOOl and                                                                   a-        r-o-
                                                                                                        '>'7;;Jr-
                                                                                             "rt       ,.:., A:l~
                                                                                              u        c::=oo
TRN NO: 914316336X A002                          Allen Reg. No: N/A                         ~
                                                                                                      ~(/)
                                                                                                      -;-1
                                                                                            T:'       :-<=tJ
Cause No: 37,458                                 Offense: Count One (1) Agg. Assault W/l:iJeaJJfi
                                                 Weapon and Count Two (2) Agg. Assault Threat
                                                 W/A Deadly Weapon With prior felonies alleged
                                                 following each count.

     The Defendant was charged by indictment for the offenses shown above In the above
numbered and entitled cause. The Court called the cause for trial on the issue of competency.
The State appeared by her Assistant District Attorney. As charged above, Defendant was
presented by counsel. In advance of the trial on the merits, it came to the attention of the
Court that a suggestion had been raised by the Defendant's attorney that the Defendant is
incompetent to stand trial.

     After an Inquiry, the Court found there Is some evidence that the Defendant may be
Incompetent to stand trial, and the Court is not required to hold a jury hearing to determine
Defendant's Incompetent to stand trial because 1) neither party requests a jury on the issue
of competence: 2) neither party opposes a finding of incompetency; and 3) the Court does
not find that a jury hearing is necessary to determine incompetency.




                              A CERTIFIED COPY
                              ATTEST    j ·- "\ f
                                          ANGEUA ORR . -    20./.Q_
                                        DISTRICT CLERK
                                       Hill COUNTY, TEX S
                              BY
.   '   .


              The Court heard the evidence submitted by the parties with Defendant and Defendant's
            counsel present. The Court then rendered its verdict and enters same upon the minutes of
            the Court as follows:

              The Court FINDS the Defendant Is INCOMPETENT to stand trial on this date. The Court finds
            defendant unable to effectively communicate with counsel at present, per representation of
            defense counsel, as an officer of the Court.

              The Court FINDS the Defendant is a person with MENTAL ILLNESS and requires obser~ation
            and/or treatment in a mental health facility, for his own welfare and protection or for the
            protection of others.

              The Court FINDS the Defendant's conduct does involve an act, attempt, or threat of a
            violent offense as defined in TEX.CODE CRIM.PROC. Art.17.032(a), and the indictment does
            allege a deadly weapon under Section 3g(a){2), Article 42.12.

              Accordingly, pursuant to Chapter 468 of the Texas Code of Criminal procedure, the Court
            ORDERS Defendant committed to and confined at the appropriate catchment facility within
            the state mental health system or the North Texas State hospital, Vernon, Texas, or other
            Mental Facility operated by the State of Texas as appropriate. The Court further ORDERS the
            Sheriff of Hill County, Texas to take the Defendant to North Texas State hospital, Vernon,
            Texas or other facility, as appropriate.

              The Court ORDERS that the Defendant is to be held for a period not to exceed one hundred
            twenty (120) days.

              The Court ORDERS the Clerk of this Court to send a certified copy of this judgment and any
            of the following documents available to the Court during the competency hearing:

              1. The report of each expert;
              2. Psychiatric, psychological, or sodal work reports that relate to the mental condition of
                  the Defendant, including Court's Exhibit "A";
              3. Documents provided by the attorney representing the State or the attorney
                  representing the Defendant that relate to the Defendant's current or past mental
                  condition;
              4. Copies of the indictment or Information and any supporting documents used to
                  establish probable cause in the case;
              S. The Defendant's criminal history record; and
              6. The addresses of the attorney representing the State and the attorney representing the
                  Defendant; and
              7. The Court reporter's record herein.
     ...
..
             A copy of this order is to be' delivered to the Sheriff of Hill County, Texas and that such
           documents above referenced accompany the Defendant to the North Texas State Hospital
           Vernon, Texas, or other facility as appropriate.

             IT IS ORDERED that DARRELL ALLEN CURLEE be remanded into the custody of the Sheriff of
           Hill County, Texas for lawful execution of this Judgment of commitment.



           Signed this the 6th day of March, 2013.




                                                               F.B. (Bob) McGregor, Jr.,Judge Presiding
                                                                                                                 10-22-2014             1/6
     2 54 582 7521        Jail
            10/2112014     10:36                                                                                                 P.003J003
                                                                                                                        FiU:_G



                                                                                                             lD/~ OCT 2? Milt: t 2
                                          !!NAL PRE..TRIAL CONFERENCE SUMMARY
                                 ~   CASE STATUS REAQINESS REPRESENTATIOri TO THE COURI
                                                                 CAUSE No.:J'/,4~~
                                                                            s

                         STATEOFTEXAS                                       §                 IN THE   "m DISTRicr
                         ~~~ dar /~t                                        •I
                                                                                              COVRTOF'
                                                                                              Hll.L COU'N'IY. T'£V,S

                                            pEFINSit lt.EJECJ;ION OF FINAL SET'l'LEMltNT Oli'Fitlg
                                                  'l'll.e l'roseeutol"tll\lllll Settlem.eD.t Otter of:

                         fL:IkiJ- /)uJ.XZ..
                     '-r.;!J       Cttarp
                                                                      2:5 u0:z
                                                                     S.teute"'
                                                                                        \,b_._t~C.C~~-
                                                                                            Otber (Speelfy)



                                                           .                                                                   ..
                         Is avaUable WltO the Flll.al Pre-Trial Coarertu.ee II eotteludecl J a~tderstlUlcl tkat 110 .etdemeat oUen

                         T.;;~~~The ~db_,..~~

                                            'tj~ROSECVTORS CEllTlFICATION OF TkiAL READJNESi
                         Tbe merit• o( the ease have bee11 thoroqhly l'C\'Iewed. Pntrlalsetftetllalt n9tlatlou lave beea
                         •llsuceessflltal4 tbe we l1i ready for trial.            t'\  ~          ('_
                                 \.o(e:\~H!.                                      ~~~ ,
·I
                         Tb PI'O$.Cator •nd De!easc Couuel het"eby •&ree to the fGIIowktf ltlpulatloae:
                                                                                                                                 J




                                                                                                                                     ----
                                          J;yS'i

CHIEF JUSTICE
 NATHAN l. HECHT
                                                     •
                              'Otbe ~upreme QCourt of 'CEexa5
                               201 Westl4thStreCI PostOfficeBox 12248 AI.ISiinTX78711
                                   Telephone:- 5121463·1 J 12 Facsimile: S121463-1365
                                                                                             CLERK
                                                                                              BLAKE A. HAWTHORNE

JUSTICES                                                                                     GENEFML COUNSEL
  PAUL W. GREEN                                                                               NINA HESS HSU
  PHIL JOHNSON
  DON R. WILLETT                                                                             ADMINISTRATIVE ASSISTANT
  EVA M. GUZMAN                                                                               NADINE SCHNEIDER
  DEBRA H. LEHRMANN
  JEFFREYS. BOYD                                                                             PUBLIC INFORMATION OFFICER
  JOHN P. DEVINE                                 May 14,2015                                  OSLER McCARTHY
  JEFFREY V. BROWN




       Hon. Ralph T. Strother                                              via regular and electronic mail
       19'h District Court
       McLennan County Courthouse
       501 Washington Ave., Suite 303
                                                                                         RECEIVED
       Waco, Texas 76701
                                                                                         MAY 1 4. 2015
       RE:    Case No.   10~15-00157-CR:    In re Darrell Curlee                        COURT OF APPEALS
                                                                                          WACO, TEXAS
       Dear Judge Strother:

               Pursuant to the request of the Honorable Tom Gray, Chief Justice of the Tenth Court of
       Appeals District, and to the authority vested in me by Texas Government Code § 74.003(h), you are
       hereby assigned to service as a Justice of the Tenth Court of Appeals, Waco, Texas, for adjudication
       of the above-referenced case.

              This assignment will continue for such period of time as may be necessary to complete
       consideration of this cause and to pass on any motions for rehearing.

                                                                ·Sincerely,

                                                                ~gp-
                                                                Nathan L. Hecht
                                                                Chief Justice


       cc:    Hon. Tom Gray, Chief Justice, Tenth Court of Appeals                via electronic mail
              Hon. Sharri Roessler, Clerk, Tenth Court of Appeals                 via electronic mail
              Ms. Nita Whitener, Deputy Clerk, Tenth Court of Appea(s             via electronic mail
              Comptroller's Office, Judiciary Section                             via electronic mail




                              A CERTIFIED COPY
                               ATTEST    E..-\ 1              . 20j;{_
                                           ANGELIAORR
                                          DISTRICT CLERK
                                        HILL COUNTY. TEXA
                               BY
                                TENTH COURT OF APPEALS
Chief Justice                                 McLennan County Courthouse
   Tom Gray                                 501 Washington Avenue, Rm. 415
                                                                                                   Clerk
Justices                                        Waco, Texas 76701-1373                               Sharri Roessler
  Rex D. Davis                       Phone: (254) 757-5200     Fax: (254) 757-2822
  AI Scoggins

                                                      May 15, 2015


       Mark F. Pratt                                           Terence A. Russell
       Hill County District Attorney                           Attorney at Law
       P.O. Box 400                                            1040 E. Elm St.
       Hillsboro, TX 76645                                     Hillsboro, TX 76645
       * DELIVERED VIA E-MAIL                *                 * DELIVERED VIA E-MAIL        *

       RE:          Court of Appeals Number:         10-15-00157-CR
                    Trial Court Case Number:         37,458

       STYLE:       In re Darrell Curlee



       Enclosed is a copy of a letter from the Texas Supreme Court assigning the Honorable Ralph T.
       Strother to sit with Justice Davis and Justice Scoggins in the above referenced proceeding.

                                                               Sincerely,

                                                               SHARRI ROESSLER, CLERK

                                                               By:    GA/i:b,_W~
                                                                     Nita Whitener, Deputy Clerk

       CC:      Hon. A. Lee Harris (DELIVERED VIA E-MAIL)
                LT. Butch" Bradt (DELIVERED VIA E-MAIL)
                Lyle Vincent Gripp (DELIVERED VIA E-MAIL)




                  A .~I;RTIFI~P COPY .
                  ~ffi;§T     -~ ~ '>    (       .2oj£_
                               ~NGELIAORR
                             C!ISTRICT CLERK
                            lbl, OOUNTY, TEXAS
                                               IN THE
                              TENTH COURT OF APPEALS




                                       No. 10-15-00157-CR

                                 IN RE DARRELL CURLEE


                                      Original Proceeding



                               MEMORANDUM OPINION


       Relator's petition for writs of mandamus and prohibition are denied.




                                                        ALSCOGGINS
                                                        Justice

Before Justice Davis,
       Justice Scoggins, and
       Judge Strothert
Petition denied
Opinion delivered and filed June 11,2015
(OT06)


         1Ralph T. Strother, Judge of the 19th District Court of McLennan County, sitting by assignment of
the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Texas Government Code.
See TEx. Gov'r ~~~~~~~~~-'LU.~
                                                                                             1·1Lt:: CUJJY




                                                                                2015 Jm: 15 Mi IO: 32
                                                         I
                            TENTH COURT OF APPEALS
Chief Justice                                            I
                                         McLennan County Courthouse
   Tom Gray                            501 W ashirlgton A venue, Rm. 415
                                                  I
                                                                                             Clerk
Justices                                   Waco, !Texas 76701-1373                              Sharri Roessler
   Rex D. Davis                 Phone: (254) 757-5200·      Fax: (254) 757-2822
  AI Scoggins


                                                        June 11,2015

       Mark F. Pratt                                              Terence A Russell
       Hill County District Attorney                              Attorney at Law
       P.O. Box400                                                1040 E. Elm St.
       Hillsboro, TX 76645                                        Hillsboro, TX 76645
       * DELIVERED VIA E-MAIL *                                   *DELIVERED VIA E-MAIL*

       RE:         Court of Appeals Number:            10-15-00157-CR
                   Trial Court Case Number:            37,~58
       STYLE:      In re Darrell Curlee


              The Court this day issued an opinion and judgment in the above referenced cause. TEx.
       R. APP. P. 48.


                                                                   Sincerely,

                                                                   SHARRI ROESSLER, CLERK




       CC:      Hon. A Lee Harris (DELIVERED VjiA E-MAIL)
                L. T. Butch" Bradt (DELIVERED VIA
                                               I
                                                  E-MAIL)
                Lyle Vincent Gripp (DELIVERED VIA E-MAIL)




                                A cERTIFIED coP:; /    j
                                ATIEST    ~   ,- .;>            , 20Jr_
                                             ANGELIAORR

                                                         rex
                                           "oiSTRICT c4ERK
                                         .HILL COUNTY.
                                 BY
                                              .·   .
                                                            ··-----·--·------




BE IT REMEMBERED:

       THAT at the term of the Honorable Court of Appeals for the Tenth District of the State of
Texas, begun and holden at Waco on the 1st day ofJanuary, 2015, present Justices REX D. DAVIS
and AL SCOGGINS and Judge RALPH STROTHER

       In the cause

No. 10-15-00157-CR

IN RE DARRELL CURLEE

Original Proceeding

the following Judgment was entered on the 11th day of June, 2015:

        "Came on to be heard the original Petition for Writ of Mandamus filed in this Court on May
5, 2015, by Relator Darrell Curlee, and the same having been considered, because it is the opinion of
the Court that the Petition for Writ ofMandamus should be denied; it is therefore ordered, adjudged
and decreed that the Petition for Writ of Mandamus be, and hereby is, denied. It is further ordered
that the Relator Darrell Curlee, pay all costs in this behalf expended and incurred in this Court."

        I, SHARRI ROESSLER, Clerk ofthe Court of Appeals for the Tenth District ofTexas, at the
City of Waco, hereby certify that the foregoing is a true copy of the Judgment entered herein by this
Court in the above entitled and numbered cause as appears of record in Minute Book 13, Page 519.

                                               IN WITNESS WHEREOF, I hereunto set my hand
                                               and affix the seal of said Court at Waco, this 11th day
                                               of A.D. June 2015.

                                               Sharri Roessler, Clerk

                                               By:   di:J::L w~
                                                      Nita Whitener, Deputy Clerk




                                         ··"
                                                            .-     - ..   ·-·-   .   ---------------------
....   ...        ~   .... ~-"



                                                 ·c~)
       'I    -·




                       CAUSE NO.      -sJ ~58
                       THE STATE OF TEXAS VS. DARREL ALLEN CURLEE


                       CHARGE: AGGRAVATED ASSAULT WITH A DEADLY WEAPON
                                   b~SAJJLLTHREALW!I!!A PEADIY WEArPN

                       IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
                                                                            ·'
                                 THE GRAND JURY, for the County of Hill, State of Texas, duly selected,
                       empaneled, sworn, charged and organized as such at the JULY/DECEMBER term, A.D.,
                       2012 of the 66th Judicial District Court for said County, upon their oaths present in and to
                       said court at said term that DARREL ALLEN CURLEE hereinafter styled Defendant. on or
                       about the 15TH DAY OF JUNE 2012 and before the presentment of this indictment, in the
                       County of Hill and State aforesaid, did then and there unlawfully, intentionally or knowingly
                       or recklessly cause bodily injury to Christopher Jordan Wally by cutting him with a knife,
                        and the defendant did use or exhibit a deadly weapon during the commission of the assault,
                        to-wit: a knife, that in the manner of its use or intended use was capable of causing death or
                        serious bodily injury.


                        And it is further presented that   ior to the commission of the primary offense by the said
                        Darrel Allen Curlee, to-wit: on th 25th day of February 1983, in the District Court of San
                        Miguel County, New Mexico inCa e No. 81-73-CR on the docket of said Court, the said
                        Darrel Allen Curlee, under the name o Darrerll Allen Curlee, was duly and legally convicted
                        in said last named Court of a felony, to          it: Second Degree Murder upon an indictment then
                        legally pending in said last named Court nd of which said Court had jurisdiction; and said
                        conviction was a final conviction and was            conviction for an offense committed by him, the
                        said Darrel Allen Curlee, prior to the commis ion of the primary offense.
    '
                                                                                   •
•



            And it is further presented that before the commission of the primary offense and after the
        1

            conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed
            the felony of B glary and was convicted on the 9th day of May I989 in the Seventh Judicial
            District Court of an Juan County, Utah, in Cause No. 767.


            And it is further pre nted that on or about the 15m DAY OF JUNE 2012 in the County of
            Hill and State of Tex , the defendant, DARREL ALLEN CURLEE, did then and there
            intentionally or knowin ly threaten Jerry Wayne Vessells with imminent bodily injury by
            attempting to cut and/or       b him with a knife and the defendant did use or exhibit a deadly
            weapon during the comm is ·on of the assault, to-wit: a knife, that in the manner of its use or
            intended use was capable of c using death or seriotis bodily injury.




            And   it is   further presented that p ·or to the commission of the primary offense by the said
            Darrel Allen Curlee, to-wit: on the 5th day of February 1983, in the District Court of San
            Miguel County, New Mexico in Cau e No. 81-73-CR on the docket of said Court, the said
            Darrel Allen Curlee, under the name o Darrell Allen Curlee, was duly and legally convicted
            in said last named Court of a felony, to- it: Second Degree Murder upon an indictment then
            legally pending in said last named Court       d of which said Court had jurisdiction; and said
            conviction was a final conviction and was a onviction for an offense committed by him, the
            said Darrel Allen Curlee, prior to the commiss n of the primary offense.


            And it is further presented that before the com 'ssion of the primary offense and after the
            conviction in Cause No. 81-73-CR was final, the         endant, Darrel Allen Curlee, committed
            the felony of Burglary and was convicted on the 9th day of May 1989 in the Seventh Judicial
            District Court of San Juan County, Utah, in Cause No. 767.
                                           Certification of Defendant's Rigbt of Appeal

                                                           No.    :JJ 1'-\S!
       The State ofTexas                                                            In the   \   \~    Court

       v.                                                                           of

     Ci,.c- c~\ \            (~,\-!(~                                                 ~ ~, ~ \
                                                                                    ~~--"-'--~'------County, Texas
       Defendant

                             TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL•

       I, judge of the trial court, certify this criminal case:

     Dis     not a plea-bargain ease, and the defendant has the right of appeal. [or l

     Di• a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn
      or waived, and the defendant has the right of appeal. [or]

    Dis a plea-bargain case, but the trial eoun has given permission to appeal, and the defendant has the right of appeal.
            [or]

" i ; ] i s a piea·barxain ca , nd the defendant his N 0 right of appeal. [or]




       I have received a copy of this cenification. I have also been infonned of my rights concerning any appeal of this
       criminal case, including any right tO file a prose petition for discretionary review pursuant to Rule 68 of the Texas
       Rules of Appellate Procedure. I have been admoni5hed that my attorney must mail a copy of the court of appeals's
       judgment and opinion to my last known address and that I have only 30 days in which to file a prose petition for
       discretionary review in the Coun of Criminal Appeals. TEX. R. APP. P. 68.2 I acknowledge that,!{[ wish to appeal
       chis case and if l am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of
       any cb&nge in the addres5 at which I am currently living or any change in my current prison unit. I understand tbat,
       because of appellate deadlines, if I fail to timely inform my appeUate attorney of an change in my address, 1 may
       l    the opportu ·       fil{;pro "/)tition for discretionary review.

       ~~~~A~.~                                                            .
        e ndant                                                                       e ndant's Counsel         ~\-e.G~; q~
       Mailing Address~~ \                                                          Sta~e. Bar ofTexas ID numbe_r (')~ ~ O<:;::J(,
       Telephone number:                                                            MaJhng Address:      \OO N"':' \j.     +(\\<J''.
       Fax number (if any)                                                          Telephone number:           ~         , _

                                                                                                           ~ '::> '-~- \\ \ (
                                                                                                                       1
                                                                                    Fax number (if any):

                   • u A defendant in a criminal case has the right of appeal under these rules. The trial coun shall enter a

                   certification of the defendant's right to appeal in every case in which it enters a judgment of guilt or other
                   appealable order. In a plea bargain case-· that is, a ca!IC in which a defendant's plea was guilty or nolo
                   contend~:~r~:~ and the punishment did not exceed the punishment recommended by the prosecutor and agreed
                   to by the defendant·· a defendant may appeal only: (A) those matters that were raise:d by written motion
                   filed &lid ruled on before trial, or (B) after getting the trial court's permission to appeal." TEXAS Ruu: Of
                   APPELLATE PROCEOURF. 25.2(a){2)
                           STATEMENT OF FACTS FOR.c\1

 TO:           Q[RECTOR, BUREAU OF CLASSIFICATO:.I
               TEXAS DEPARTME~T OF CORRECTIONS
               BOX99
               HUNTSVILLE, TEXAS

 FROM:         NICOLE CR.AlN, PROSECUTfNG ATTOR.i'IEY
               HILL COUNTY, TEXAS

Cause No.:              3¥£5: <g
Name of Inmate:                })   i.cz.u\\     l)Je,fe. .-e
Date of Sentence:      :) t~   \\ot6 lz:5          Penal Code: _   _..~~:::..::..'-->00""-'~=--
 1.    Statement of offense or offenses (including time, date, place, manner in vvhich
       committed, mitigating or aggravating circumstances).


      !~N~~J:~!'~~~n "tit~~
2.     0:ame of co-defend ts, disposition of their cases




.J.    Name and addresses of injured party, value of property stolen or the amount of
       loss sustained by injured paftiJ. Was stolen property returned to owner without


       loss?~~~~ ?Ja~
4.     Other cases again -r det~ndant, dismissed or pending:




Prosecuting Attorney
Hill County, Texas
  Incident Report #2012181816
  HILL COUNTY SHERIFFS OFFICE
  SHERIFF JEFFREY T. LYON
  406 HALL STREET
  HILLSBORO, TX
  TEL 254-582-5313
  FAX. 254·582-3848
  sheriff@co.hill.tx.us



/Event Info

 Date Reported                Time Reported               J'_hne ·Pispatched ·       time Arttved                 Time Completed
 06/15/2012                   21:09                       21:09                       21:11                       22:10
 Addr. Of Occ.                City'                       District                   Grid                         Shift
 322 CR 3108                  HILLSBORO                   H                                                       8
 How Reported                 Dispatch. Disposition
 911                          OR
 Synopsis     ·· ..
 CALL TYPE: ASSAULT
 Dispatch Notes
 CURLEE IN CUSTODY 6/15/2012 9:14:02 PM
 HEMS ENR TO SCENE 6/15/2012 9:16:26 PM
 109 HAS RECOVERED WEAPON, IS SECURED IN HIS VEHICLE FOR EVIDENCE 6/15/2012 9:30:31 PM

 Agency1                        Event StatUs/Dis po       E~tStatus/Dlsp              Initial Investigator
 HCSO                           CLEARED ADULT             06/1512012                  BARNES, HUNTER
                                ARREST

§ssificatlon
                                    ------------~----------~
Classification Info                                                      COMPLETED
 Class                                                                   S.ubclass.
 ASSAULT                                                                 AGGRAVATED ASSAULT, NONFAMIL Y, KNIFE/CUT INSTR

EventMO
 Hate/Bias Motivation                 Domestic VIolence                  Premise                             Auto Weapon Indicator
 NONE                                 N                                  OTHER LOCATION                      N

 Type WeapJForce                                                         S1.4spectad Using
 KNIFE/CUTTING INSTRUMENT                                                NOT APPLICABLE


[ Arrested._P_e_rs_o_n_.& - - - - - - - - - - - - - - - · - - - - - - - - - -.. ---·--·--·--·-]
Arrestee Information
  Name Type               ~~me
  ARRESTEE                CURLEE, DARREL ALLEN
  Address                                         City                   Stat&                 DLNo                       OLStata
  804 S. 3RD ST, LOT #6                           GRANDVIEW              lX                    04173584                   lX
  DOB                     ~EX                     RACE                   EO                    HT                         WT
  10/30/1946              M                       WHITE                  NON-HISPANIC          600                        200
  HAIR                    EYES


  Incident Report •                                                                                                             Page 116
     GRY                  BLU

    Arrestee Details

     Charge Code             Charge D~crl~ion                                                 Charge Dispo
     22.02(A)(2)           AGG ASSAULT W/DEADL Y WEAPON                                       ARRESTED
     22.02(A)(2)           AGG ASSAULT W/DEADLY WEAPON                                        ARRESTED

     Ref Date                   ArrTime                  Arrf3y             ArrAgency            Arrest Location
     06/15/2012                 10:00                    BARNESH            HCSO                 HCR 3108 AND HCR
                                                                                                 3121
     Type Arrest                Anne,dWitf1
     ON-VIEW ARREST             LETHAL CUTTING
                                INSTRUMENT


    [suap~cts . ·---------~­                              --------------------------1
                                                                                                                        I
    suspect Information
     Name Type            Name
     SUSPECT              CURLEE, DARREL ALLEN
     Relationships
     ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT INSTR
     Address                                    City               State           DLNo              DLState
     804 S. 3RD ST, LOT #6                      GRANDVIEW          1X              04173584          1X
     DOB                  sex                   RACE               EO              HT                WT
     10/30/1946           M                     WHITE              NON-HISPANIC    600               200
     HAIR                 EYES
     GRY                  BLU


    Suspect Information
     Name. Type           Name
     SUSPECT              CURLEE, DARREL ALLEN

     Relationships
\    ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT INSTR
     Addre$&                                    City.              State           DLNo              DL State
     804 S. 3RD ST, LOT #6                      GRANDVIEW          lX              04173584          lX
     COB·                 s~                    ~­                 EO              HT                WT
     10130/1946           M                     INHITE             NON-HISPANIC    600               200
     HAIR                 EYES
     GRY                  BLU

    ~i_m_s____________________________________                                                  _____ j
    Victim Information
     Name Type            Name
     VICTIM               WALLY, CHRI~TOPHER JORDAN

      Relationships
     ASSAULT/AGGRAVATED ASSAULT, NONFAMIL Y, KNIFE/CUT INSTR

      Address                                   City               State           Zip               COB
      164 REAGON RD                             WHITNEY            lX              76692             03/13/1994
     SEX-                 RACE                  EO                 HT              WT                HAIR

      Incident Report -                                                                                      Page 2/6
             -------~------··




' M                              WHITE                             NON-HISPANIC                    604                             185                             BRN
  Res Phone
  (254)479-1296

Victim Details
  Type VIctim                                                                      Aggravated Assault/Homicide Circumstances
  INDIVIDUAL                                                                       OTHER CIRCUMSTANCES
  Type InJury
  APPARENT MINOR INJURY


Victim Information
  Name Type                      ~arne
  VICTIM                         VESSELS, JERRY WAYNE
  Relationships
  ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT lNSTR
  Address                                                          City                            State                           Zip                             SSN
  322 HCR 3108                                                     HILLSBORO                       lX                              76645                           XXX-XX-XXXX
  MlsciDNo                           DLNo                          OLState                         008                             SEX                             RACE
  7035                               lX-16098630                   lX                              01/03/1977                      M                               WHITE
  EO                                 tfT                           WT                              HAIR                            EVES                            Res Phone
  NON-HISPANIC                       600                           170                             BRO                             BRO                             254-266-0133
  Occupat,ron                        "ar(~J $jatus                 R.!lsld Status                  POB
  CONSTUCTION                        MARRIED                           RESIDENT                    UGOTE, TX

Victim Details
  Type Victim                                  Aggravated Assault/Homicide Circumstances
  INDIVIDUAL                                   OTHER CIRCUMSTANCES
  Type Injury
  NONE

~_a_rt~y-·__________________________________________________,___________
RPTG PARTY Information
  NameTy.pe                      Name
  RPTG PARTY                     VESSELS, SHEILA
  Address                                                                                               City                           State                           Res Phone
  322 CR 3108                                                                                           HILLSBORO                      lX                              (254) 266-0487


IProperty                                                                                                                                                                                    ~
L _ .-   -   -   -   -   -   -   -   -     -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   -   ·   -   -   -   -   -    -   -   -   -   -   _j
EVIDENCE
   Date Reported                           Status                                  Evidence Item No.                   Property Type                           Color
   06/1512012                              EVIDENCE IN                             2012181816-1                        WEAPON, NON                             BLK/ Sll
                                           CUSTODY                                                                     FIREARM
   Brah.d                                  Property Quantity
   EMIRIL                                  1

[~ehlcle
                                                                                                                                                                                             l
                                                                                                                                                                                __ .I
Record Type - IMPOUNDED


   Incident Repor1 -                                                                                                                                                         Page 3/6
'
            '

     Date Reported             Status
                                        e         UCPiateNo             State                 Vehicle 10 No
     06/16/2012                POLICE TOW         207XPM                1X                    1G4HP54K214208555
     Year                      Make               Model                 Style                 Color
     2001                      BUIC               4-DOOR                PC                    TAN/fAN

     Comments
     BIG DADDYS WRECKER SERVICE

    lr'~
       JaJOra. -
            t_ ive
                 --·      - - - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · . .1
                                                                                                                     I
     Written By:
     BARNES, HUNTER

        On 06/15/2012 at approximately 9:09P.M. SGT.Bames and Deputy Sanchez were dispatched to HCR
     31 08 in reference to an Aggravated Assault. Dispatch stated that the suspect had possibly stabbed two
     victims with a knife, and that the suspect was in the roadway. Dispatch al.so stated that the suspect who was
     an older man was driving a Gold Buick passenger car. Dispatch stated that the caller advsied that the suspect
     was trying to get her 16 year old daughter.

     Deputies arrived on location and observed a Gold in color Buick four door passenger vehicle in parked with
     the driver side door that was open, and a white male who was later identified as Darrel Allen Curlee (W!M
     10/30/46) sitting in the driver seat. SGT. Barnes observed that as he activated his overhead red and blue
     lights, the brake lamps carne on the vehicle. With the information that was provided from the caller and that
     it was unkown if Curlee was still armed, SGT. Barnes via his patrol units P.A. system was able to get Curlee
     out of the vehicle and on the grotmd where he was safely detained.

     Deputy Sanchez remained on location with Curlee who appeared to have an injury to his right eye until
     Hillsboro Fire and EMS arrived to treat Curlee who later refused transport.

     SGT. Barnes went back to the complainants residence located at 322 HCR 3108 and made contact with the
     caller who was identified as Shiela Vessels (W/F 0 l/28/77). Sheila stated that her 16 year old daughter
     Megan Vessels (W!F 06114196) was walking with some friends down the road, and that an older white male
     (later ID as Curlee) attemtped to get Megan and possibly try to rape her. Shiela stated that Megan called her
     and was crying as she was telling her what happened. SGT. Barnes asked Megan if Curlee ever touched her or
     grabbed her, she stated no he didn't, he only was making comments towards her and repeatedly kept saying
     "hey girl". Megan stated that the man (Curlee) then got out ofthe car and started towards h_er and attempted
     to grab her, at which point (Jordan) also known as Christopher Jordan Wally (W/M 03/13/94) stepped
     between her and Curlee and told him to quit. Megan stated that Curlee then pulled a knife out on Jordan, who
     in return hit Curlee and she took off running and called her mother. Mega~ stated that her dad was able to get
     the knife away from Curlee.

     SGT. Barnes then spoke with Christopher Jordan Wally (W/M 03/13/94) (victim #1) who stated that they
     were walking down the roadway throwing rocks and running, when they passed the Gold vehicle, they turned
     back around to head back home and that there was a man standing outside of the car at this point. Wally stated ,
     at this point the man (Curlee) went after Megan and tried to grab her, in which he couldn't allow to happen so
     he attempted to stop him, when Curlee pulled a knife on him and said " you pussy's want some". Christopher
     stated that the man (Curlee) then cut him with the knife so he in self defense hit Curlee twice and pushed him
     to the ground at which point he left to go back to the house.

      SGT. Barnes observed a small minor cut on the left shoulder and left chest of Christopher where he advised

      Incident Report -                                                                                   Page 4/6
         ..
· that he was cut by Curlee. SGT. Barnes captured digital images of the injury.

  SGT. Barnes then spoke with Megan1s Father, who was identified as Jerry Vessels (W/M 01103/77)
  (victim#2). Jerry stated that Megan called his wife saying that there was a man that was trying to attack her
 -and was saying nasty things to her and Jordan. Jerry stated that Megan advised that Jordan Wally was trying
  to keep the man (Curlee) from getting Megan. Jerry stated that he then left his residence at 322 HCR 3108
  and ran as fast as he could to stop things from getting worse.

   Jerry stated he got there and asked what was going on, and the man that was on the ground pulled a knife and
   came towards him trying to cut him. Jerry stated that he at this point did strike the man and was able to get
   the knife away from him and returned to his residence and waited on Deputies to arrive.

   SGT. Barnes took possession of one Black handle with metal blade knife and captured digital images. SGT.
   Barnes later secured the knife that was used in the offense into the evidence lockers at the Hill County
   Sheriffs Office.

  Hillsboro Fire and EMS checked all subjects involved in which all including Curlee advised they didn't want
  to be transported to the hospital.

                                                                     an
   Both Jerry Vessels and Christopher Jordan Wally were provided affidavit of complaining witness form in
   which they both showed the desire to prosecute Curlee for Agg. Assault with Deadly Weapon(knife). SGT.
   Barnes also obtained voluntary statements from Wally, Jerry Vessels, and Megan Vessels as to the events in
   which they happened.

   SGT. Barnes asked Curlee to provide his side of the story, at which point he stated he never had a knife, then
   said he did have a knife in which he did pull out but doesn't remember trying to stab anyone with it. Curlee
   stated that he thought he pulled the knife because he thought that the kids were going to hurt him.

   With the evidence that was gathered on location and witness statements gathered, it was determined that
   Curlee did then and there while being located in Hill County, Texas commit two seperate offenses against
   two seperate victims of Aggravated Assault with a Deadly Weapon. Curlee was hit by the victims in self
   defense to prevent Cudee from stabbing them.

   Curlee was then transported to the HCLEC without further incident

 [supplem~ntal Narrative
                                                                                    ------~
   Date.Written:                                      Wrttten·.By:
   06/16/2012                                         SANCHEZ, ALBERTO

      On 06-15-2012 at approximately 9:09pm I, Deputy Albert Sanchez along with Sgt.H.Barnes were
   dispatched to 322 HCR 3108 in reference to an Aggravated Assault. HCSO dispatch advised that a male
   subject had possibly stabbed two victims, advised that he was out by the roadway.

      Deputies observed a W/M later identified as one CURLEE, DARREL ALLEN (WIM 10-30-1946) sitting
   in his Gold Buick 4 door passenger vehicle bearing Texas LIP 207 -XPM just past HCR 3121 right before
   the Hill College Rodeo grounds.

      CURLEE was detained until the incident could be investigated. I observed CURLEE to have dried blood on

   Incident Report·                                                                                    Page 5/6
         j   ...   0




 'his right eye and some on his body. CURLEE was not wearing a shirt, had jeans on and boots. CURLEE
  appeared to have an injury to his right eye.        ·

   CURLEE advised that he had stopped on HCR 3108 and was fixing himself a sandwich and was drinking
 water. He advised that before he knew it that he had been jumped by some people down the road. He advised
 that he did not know why he got jumped and assaulted. I remained on scene with CURLEE while Sgt.H.Bames
 went back to 322 HCR 3 I 08 to speak with the complainants and get written statements in reference to the
 incident.

   Paramedics arrived on scene and attended to CURLEE. He later refused transport to the hospital.
 Sgt.H.Bames was provided with written statements in reference to the assault by two separate victims.
 Sgt.H.Barnes placed CURLEE under arrest for aggravated assault with a deadly weapon times two. CURLEE
 was transported to HCSO jail where he was booked in. End of report.

 A.S.

IGraphics




IAttachment List
 Attacltment TIUe.       eate Entel'&d           Entered By ·           FileName
 2012181816 CURLEE       06/1612012              BARNESH                2012181816lMPOUND SHEET CURLEE.POF
 2012181816 CURLEE       06/1612012              BARNESH                20121818162012181816 CURLEE.PDF


ICase Manag~ment                                                                                                  _j
~.----~----~--------------------------------
 Initial Investigator       EventStatusJDispo                   Event Status/Dispo Date        Report Status
 BARNES, HUNTER             CLEARED ADULT ARREST                06/1512012                     APPROVED
 Approved By                Solvability PercE!otage
 BARNES, HUNTER             0.00%




  Incident Report -                                                                                            Page6/6
         vs.
     Q
                    ,,
                    \.
          C'l c (S' ' \
                          c (\ .
                          ~}...'       \~'Z
                                                                           O£STRICl'COURTOF

                                                                           HILL COUNn'. TEXAS
          ..
                                       WAIVER OFTIUAL BY JURY AND OTHER MA1TE8S

     .         Cameaowfttedefeada~~ ()o..('           (e_\\   c'-'- (     \0 -£             ,OQ I   l  "?:1\   .~o \~
      the above styled and a umbered cause 1a opea. Court a ad before havi~gpled to the indidatent herdu., ann.ouoces
                                                                                                                       Ia.

      that deCeadant will piad guilty to said charge a ad herebyreque$ts the coasen.t aCJ,d approval o(the Caul-t a ad or
      ~ actoraey for dle State that defendant may mive the right to trial by jury herein and 'd~ upon the co nseot or
                          1
     the Coun aud State s A«orueyy waive trial by Jury and eater hlslher plea of guilty; and defendant aad hlslher
     auoraey waive the 10 day waltlag period for trial aftet appointment of counsel; u11der Article l1.1B Ca the
     dd'eudaa.t aad the aUorney l"epr'e$elltlng the state ao.d the attorney representing the defeadaat file this their
     writtea. coueat tO the use or d.Gsed clrcutt video taecoafecucla.g, iC applkabfe, aad stipulate aUprerequ lsltes o(


    !r::rr;~
    Defeudaot
                                                            .~
                                                            AUomey for lh.e Defeadant

          . · Befoce file sald de!eadaac a.tea hlsJher- plea hereln, the .above m.atten aa.d requeSts o( tbe defend.aat
   herei11. are her6Jy coaseated to; and approved by me. the .attorney r-epresea.tln~e State herein..


                                                             \(\l~. ~
                                                        D~iney, Hili County, Texas
          Th~ aboveud foreg<~iag applicatioa oft.&.ede~daat and approval of the districtat~y h~ having
       dul co        by the Cocut and It appeario.g to the court that the defe~daa.t is hereia charged witb a
  -"--.-.~=:oo~"--.;....,~---.J that the defeodant is repceseuted by eoullSel, and that ~c attorney
                        ela hu given the coa.seet and approval to same, that deCeudant aad his attorney have
                         period Cor erial after appolatmea.t o( counsel,    eCore consent aod approval o( the
                              aad aU ot.&.cc .utters aa appUcabl   re •P·Dr!CWC.O:




                                       AGREEMENT TO STIPULATE TESTlMONY

         Said defendant, defendant's counsel, and the State's Attorney do hereby eater into aa. agreement that the
 deCendaat waives the appear-a nee, coafron.tation, and cross es:aminatlon o( witnesses i.o. the above entitted and
 nurub«ed cause and agrees that tb.e testiro.ony oC said ~tnes:ses. may be stipulated into the record by the State's
Attorney, such testimony being the same as testifying under cath :~utd the defendant farther consents to the
iD.troductloll or testlmoay by affidavit, written statements or witnesses, :and all other documcn.t.ary evidence tha(
may be introduced by the Stale, snd w.aiV'es the filing o .alhucb. testimony~ affidaV'its and statements alllong th~



~CkP~
 EFENDANT                          .

 0

                                              BY
                                     e
                           Cause No.     ~'1. ,'-\~~

   THE STATE OF TEXAS                                       §

   vs.                                                      §

  Oc, r       \5L_ \ \   chl-, \~~                          §              HILL COUNTY, TEXAS


                         WAIVER OF TX C.C.P., ART. 39.14 ADDITIONAL DISCLOSURES,

         Comes now the defendant and hereby waives any additional right to inspection or copying of discoverable items
in the State's possession as pennitted by Texas Code of Criminal Procedure article 39.14, other than to the State's
continuing duty under article 39.14(k), as well as under the United States and Texas Constitutions, to provide
exculpatory, impeachment. or. mitigation evidence tending to negate the defendant's guilt or tending to reduce his
punishment for the charged offense. My attorney has fully and completely explained to me my right to further discovery
pursuant to article 39.14, and I understand that right. I am freely, knowingly, and voluntarily waiving that right after
my attorney has fully infonned me of the consequences oftbis waiver. I am waiving the right to additional discovery in
order to accept the State's recommended punishment. I am choosing to agree to the State's recommendation of my own
volition because l believe it is in my best interests to accept the agreement after receiving the full advice of counsel and
explanation of    ?I' righ~ n
1,1.aAJ.Yf!.C~
 efendant
                                                    1.h\
                                                   Date
                                                                \ll



Defense A orne (print)
              ~




Date

         This document was executed by the defendant, defendant's attorney, and then fl.}ed with the papers of the case.
The defendant came before me and I approved the above waiver along with the defendant's plea of guilty or no contest.
After I admonished the defendant of the consequences of his waiver, I ascertained that defendant entered it knowingly
and voluntarily after discussing it with defendant's attorney. It appears that the defendant is mentally competent to
waive any additional discovery, and is doing so freely and voluntarily. 1 find that the defendant's attorney adequately
informed defendant of his article 39.14 ri ts a the effects of this waiver.

Signed this   __j_ day of                             ,   ·LA/ )~
 STATE OF TEXAS                                      §                   IN THE 66TH DISTRICI'

 vs.                                                 §                   COURT OF

Do- \   '{>___ \ \   C.v- (' \£_~                    §                   BILL COUNTY, TEXAS



                      WAIVER OF PRE-SENTENCE INVESTIGATION



       Now comes          Q
                       G ( c.o \\ G 5 r l1-E.'R    , Defendant and waives a pre-
sentence lnvesdgadon in the above captioned cause, Code of Criminal Procedure
42.12, Section 9.

        Signed this_ day o(                                              · 20_.



                                        ~~A.~
                                    Defendant




                                                    \

                             A CERTIFIErOP~
                             ATTEST .   ,.      I            .20_}_;f_
                                           ANGELIAORR
                                         DISTRICT CLERK
                                    f'\1illl COUNTY. TEXAS
                             BY     I \.
·'
     '




            SI'ATE OF TEXAS                                              §               lN mE 66nl JUDICIAL

            vs.                                                          J               DISTRICT COURT OF

         ~\<;"(2 \\                                                      §               HILL COUNTY, TEXAS


                                                     CQURT'S APMQmSHftiENJ' TO DEf'ENDANT


                 11ae Co11rt, prior tG acceptlaj the ~e IWDtCl Defcadaat'r plea Ia. this cause. admocablaes uicf Def'eaclaat,

           . .     \_ . (l)    ~          raJIIt     .   or    paltlaaeat .. · for      tile     otreaH       of     A ~ A~S:;,._                u_   \-J.
         U ) '"" \\    o..do~\, l'<QoJ;;)f'•sECOND DEGREE, wbkb b                      all'ELONY, alleged Ia. dais cause           lshable by           .
           can.c.-.t la O.e           doul          ioa. ofdae Departtaeat ofCrlmlaal.JIIfdce for a t.ena o(aot IIUIR daaa. Cftllty (20) yean
           or lesl Uaaa two (l) yean; ha additioa tG lmpriloa.eat, aalacliYidldl.Sjaclgedpllty ofa feloDy of file MCOild clecne may be
           paalsfled by a fiae aot to o:c:eed SlO,I;)OO.

                       (l) A.Jty n:eommeadatloa of the prosect~dq attoney u eo paais.haaeat b caot bla.dlaa oa tl&e Court. ud tbe Court
           1111.y set pcsaiskmeat wWIIa tile I'UI' recited above;                                 ·

                    (J) Uyoo 1111d JUUr a~raey ltave reached a plea barpln with tfte proseeuda.gattorMy1die Court will lalorat you tr
          It .cceptJ or rejects 111ch agriemea.t Wore aay fiadlag oa your plea. [{ the Court rejects the plea bupia. you wiU be
          permitted to withdraw yoar plea or pllty or nofo c:onteedere;

                      (4) A plea of.aolo coatendcrc (or "ao eoate$t") has the ume legal efl'ect Ia this uiminal case as a plea of guilty;

                    (5) (f the paa1shateRt assessed does aot a:ceo4 the pua.lsbmeat reeommeaded by Che ptoSeWtlag attorney aad agreed
          to by yea aad your actontey, tb.is Court must give its permissioa to you before you may prosecute an appeal to a ltigfler court
          ott any auttcl' ill this case except   for Chose matten ratted by written motioat filed prior to trial;

                      (6) [(you are 11ot a dtizea of the United Stata of America. k Is presumptlvcly mandatory arul vlrta.ally eertaiu nQder
          federal law Chat a plea of guiUy 0(' aolo coa(CIId~e tor this otreue wtU resalt io deportatioa, the c:xdiUioa &o.n ad miss lou to
          ttlil eocaat.ry, or tbe deo.lal of aaturallmtioa uader federal law. CoaQCI for defenclaa.t certifies tllst proper legal advice about
          the adverse COIISCqueaccs of such a plea lw beea provided to tiN defeaclant prior to the plea h.erein.

                    (7) Uyoa are coavic:ted of a a o((eu.se lovolving violeac:c: whece you are or were a spouse, intimate partaer, pareat, or
         guard faa of~e vktha or are or wa-e iovolved in aoothu, similar relatioosblp with the victim, or aala'Wfidly po:rse:su fit'earm,
         • felotly, it wocdd be uobwful for you to possess or purchase a firear~no lndudlog a handgun or loag guo. or ammunition,
         pursuaaUo f~f law aader 18 U.S. C. SecCloo 922(gl{91 or Sectioa46.04(bJ, Teus Penal Code. ({you ban aay questions
         wllether these or other applicable laws make it illegal for you to possess or purchase a tlreann, you should coasult an attoruey.

              -' {8) You may not be compdC«< to give evidence or testify agaiost yoarself. You have the right to remain siteat and not
         kStify. Kowever.lf you. elect to waive these rights and testify, anything you say can and will be used as eviden(e against you.




         sgcoND OBGRH£          ::f'Q.n. c:;tO 15                                                                                    Page 1
        '
                (9) Wilen Deterred Adjudicatlod Probation ill pated. and ICtlaere Is a later violation of a eoadltioa ofprobatioa.
    you lll.lf be arrested aad detained. You d thea be entitled to a hearlag Utnited to the determination ~J' Ur.e Court of'Wfl«her
    lt proteedt .ur. aa adJudkatloa of guUt 00 the original ehargr.. No appeal     mar      be taka~ fn~m thls detennlnatioll. After Ill
    adJudicatloa. of pl11y, all proeeeclia:gs., llldudlag IISielllllet\t ofpullftb~t, proa.oanteoleilts ofseatence, graa.dng ofprobafioa,
    ud your appeal; if any, eoatfnue u lfefle adjudication of &uift llad ut been defernd, ud the range of pua.isbmca t: for tile
    orilfna( charge could then be coaaldeced by the Court and latpOteel on you.

              {lD} Uaw HB 1106 oUIIe 26llltg&f.atlvuealoa. you are adcnollirhd, betorebdag pl.ued oa deferred ad}ndJcatica
   coauaualty aupen'llloa.lf applicable, ot,Yoar right to petldoa tbe Court far aa order ofllondbdosure. ullless you are lnellglble
   to pul'llle ctlat rfP.t becatUC oC: (A) the nature of the oft'eose Cor wbkh you wo~ald be placed oa deferred adjqdicatlon
   eommaiiJty supervbloa; or (B) yoar ulmlUJ IJJJtoey.

              (11) U'(fait proeeed(q ta(ca place oa or after January 1, 2014, aacf the allqed otrease wu comml((ecf Ott or after
   Jacuaary 1, 2014 and before the Court ac:tepCS a plea or guilty or aolo cooteadere. or before trial, each party ackaowledges by
   tills wriCing, or oa the record, in open court. that disclosure. mdpt, aa.d a I~ of all documents, lteuu and infon11ation a
   reqfdred afldao S81611, 2013 hgislatlve ICI:floa, uaeodlag A.rtldeJ9.l~ CCP,Iw bee4 prO'I'ided die deleadant.




                                                                          .lO~

  APPROVED A.S




                                                                               JUDICIAL
                                                                        T OF lULL COUNTY, TEXAS


     On tlds the  ~ day of ~· lO_, I. (b_f rg_ \ \ .\. \..\ C \s.~ , Defclldallt herein, aad
            ll    \~ (;-\ p (' , Counsd for the Defeadan.t, hereby cerdty that we flaw receMd. read &lld
 uadCI1Uad the foregoing Court'aadmollltloas, are fully aware of the consequeaces of the Defcadaat's plea ill tills case, waive

the Defeadaat'a right to reanaift silent, and ex




SECOND DEGREE :fl:\f.\.~\.S                                                                                                    Page2
                                                                                                      I

                                             l •.


                                      Caus~ ~o.- 3J \\.\£] ':i

   STATE OF TEXAS                                        §

   vs..                                                  §     DISTRICf COURT OF

  Cbs t€...\\ Cu r. \~ ~                                 §     HILL COUNTY, TEXAS

                                   STfPULATION OF EVIDENC~

  TO THE HONORABLE JUDGE OF SAID COURT:


          COMES NOW, The State ofTexas, by and through her District Attorney, an.d the

 Defea.dant, ( ) u_ \ C' s... \\     C~ ( \9 :±:                  , in person aa.d by and tht-ough
 bis/her attorney,     b._,\ \-s     G\ \ q ~)                    ,in open Court stipulates t:o the
 fo((owiag facts: ·

          At the trial of this ~use the State could and would produce witnesses who would testify

aad establis~ beyond a reasonable doubt, the truth of all of the matedal allegations in the

indictment and/or information and charging instrum.ent herein, (including eo.haacelUent

eharges} and such anegations are in fact tr11e.

       SIGNED AND STIPULATED IN            OPE~ COURT this ~y of_!lo!:-;z:---"~::....~..J.--
21l}f                                                                                {

  ~~
Mark F. Pratt, District Attorney
                                                               i1.d2/) ~
                                                               Defendant
Nicole Cram., Assistant Distdct Attorney



                                             Attorney for Defendant (if applicable)

                                           . •ri. . .   ~~;,.':::f.   r),; ·~ r
        THE STATE OF TEXAS                                §            IN THE DISTRICT COURT

        vs.                                              .§            OF
  Q_(\~ \\              Cu <\~--s;_                       §            HILL COUNTY. TEXAS


                            ARTICLE 39.14 DISCOVERY DISCLOSURE FORM
        The State of Texas and the Defendant in the above styled and nuinbered cause hereby
acknowledge, prior to the Court's acceptance of the Defendant's plea or before trial, the disclosure,
receipt and a list of all documents, items, and information required to be made available by the State
to the Defense.

Said documents, items and information made available to the Defendant include those items set forth
in Exhibit A attached hereto.


                              SIGNATURES AND ACKNOWLEDGEMENTS
              Defendant Represented by Attorney
:::,.         I. the Defendant herein, acknowledge that my attorney has explained to me, and provided
               me the opportunity to review the above referenced items.

              Pro-Se Defendant
              I, the Defendant herein, acknowledge that the State has provided me an opportunity to
              review the above referenced items.




                                                                  Defendant's PrinteCi Name




                                                     1
                      ..
                      _
                                                                    -- · - -   ----------------------
    .'   '
                         Pursuant to CCP 39.14, by my signature below, I certify, as counsel for the Defendant
                        that the documents, items, and infonnation set forth above have been made available to
                        Qle. I understand that non-public information received pursuant to 1J.l4 is not subject to disclosure
                      · without a Court order. I further understand that I cannot allow the Defendant, witnesses, or
                        prospective witnesses to have copies of this information other than a copy of the witness's own
                        statement and before showing this infonnation to' a defendant, I must redact it as set forth in the
                        statute. I approve and agree to all waivers, statements, and agreements ofthe defendant herein and
                        ask the Court to accept them and the defendant's plea.




                                                                                                           Date


                          As attorney for the State, I represent that the above referenced materials have been available as set forth
             above.



             Date                                                   MARK F. PRATI, District Attorney, Hill County




                                                            By:~
                                                             Nl ~SSISTANT D.A., Hill                              County




             The Court accepts these documents as compliance with Art. 39.14 of the Texas Code of Criminal
             Procedure.



                                              :r4
                                                                                                                         /




             Signed this     31 day of



                                                                         2




--------------                            -
-------,---------------

        I


       "·
      !-
        ._I                                        -
                                            DISTRICT ATTORNEY
                                                MARKFPRAIT
                                           66rn JUDICIAL DISTRICT
                                            HILL COUNTY, TEXAS


              DEFENDANT'S NAME: DARREL ALLEN CURLEE
              CAUSE NO: 37,458
              ATTORNEY: LYLE GRIPP
              DATE: 3-16-15

                                          REQUEST FOR DISCOVERY

                            INCLUDED IN DISCOVERY IS THE FOLLOWING
                              REPORTS AND/OR VIDEO IF APPLICABLE:

                1.    INDICTMENT- CAUSE NO. 37,458
                2.    STATE'S ANNOUNCEMENT OF READY -CAUSE NO. 37,458
                3.    COMPLAINT
                4.    (10) SETTING ORDERS
                5.    HILL COUNTY SllERIFF'S OFFICE (HCSO) INCIDENT REPORT #2012181816
                6.    VEHICLE IMPOUND SHEET .
                7.    HILL COUNTY ARREST REPORT
                8.    AFFIDAVIT FOR WARRANTLESS ARREST
                9.    VOLUNTARY STATEMENT- MEGAN VESSELS
                10.   AFFIDAVIT OF COMPLAINING WITNESS- JERRY W. VESSELS
                11.   VOLUNTARY STATEMENT-JERRY VESSELS
                12.   AFFIDAVIT OF COMPLAINING WITNESS- CHRISTOPHER WALLY
                13.   VOLUNTARY STATEMENT- CHRISTOPHER WALLY
i               14.   HCSO PROPERTY DISPOSITION REPORT
                15.   LETTER & ENVELOPE FROM DARREL CURLEE TO DAN DENT
                16.   STATE OF NEW MEXICO CORRECTIONS DEPARTMENT COVER LETTER
                17.   CERTIFICATION BY THE RECORDS MANAGER, STATE OF NEW MEXICO
                18.   STATE OF NEW MEXICO JUDGMENT AND SENTENCE
                19.   (5) BOOKING PHOTOS FROM NEW MEXICO
                20.   (2) COPIES OF FINGERPRINT CARDS FROM NEW MEXICO PENITENTIARY
                21.   FINDINGS, JUDMENT AND COMMITMENT FROM STATE OF UTAH
                22.   COPY OF FINGERPRINT CARD FROM UTAH STATE PRISON
                23.   CERTIFICATE OF RECARDS AUTHENTICITY, UTAH STATE PRISON
                24.   BOOKING PHOTO FROM UTAH STATE PRISON
                25.   LETTER & ENVELOPE FROM DARREL CURLEE TO JUDGE LEE HARRIS
                26.   LETTER FROM TEXAS DEPARTMENT OF STATE HEALTH SERVICES
                27.   TRIAL COMPETENCY EXAMINATION
                28.   EVALUATION BY DR. OLUMUYIWA ABDUL, NORTH TEXAS STATE HOSPITAL
                29.   LETTER FROM NORTH TEXAS STATE HOSPITAL
                30.   WAIVER OF APPEARANCE/JURY TRIAL
                31.   PHYSICIAN'S CERIFICATE OF MEDICAL EXAM FOR MENTAL ILLNESS
                32.   COMPETENCY EVALUATION
                JJ.   EVALUATION BY DR. VERL CHILDERS
                34.   DR. VERL CHILDERS INVOICE
                35.   LETTER FROM DR. VERL CHILDERS TO JUDGE BOB MCGREGOR
                36.   LETTER FROM DARREL CURLEE TO JUDGE BOB MCGREGOR'
                37.   RESPONSE LETTER FROM JUDGE BOB MCGREGOR TO DARREL CURLEE
                38.   INMATE SICK CALL SLIP
                39.   LETTER FROM JUDGE BOB MCGREGOR REGARDING MEDICAL EVALUATION
                40.   ORDER APPOINTING A DISINTERESTED EXPERT TO EXAMINE DEFENDANT
                41.    INDICTMENT- CAUSE NO. 37,458
                42.   FAX FROM NICOLE CRAIN TO TERRENCE RUSSEL
                43.   STATE'S POTENTIAL WITNESS LIST
.f.   -·                                  ---
       44.   STATE'S NOTICE OF INTENT TO OFFER EXTRANEOUS OFFENSES
       45.   HCSO TRANSPORTATiON MILEAGE REPORT INVOICE
       46.   COMPENTENCY REPORT FROM NORTH TEXAS STATE HOSPITAL
       47.   COMPENTENCY EVALUATION




      SIGNATURE~
      RETAINE~                                                       \
                  . '.;;
 ....                      J




 THE STATE OF TEXAS                                                                §
                                                                                   §
 v.                                                                                §
                                                                                   §
 DARRELL ALLEN CURLEE                                                              §            HILL    COUNTY,      TEXAS
                                                                                   §
 STATE ID     No.: TX027l7859                                                      §
             JUDGMENT OF CONVICTION BY COURT-WAIVER OF JURY TRIAL
                                                                                   Date Judgment
 Judge Presiding:                   HoN.   LEE HARRIS                              Entered:                 7/31/2015
                                                                                   Attorney for
 Attorney for State:                NICOLE CRAIN                                   Defendant:              LYLE GRIPP
 Offense for which Defendant Convicted:
 AGGRAVATED ASSAJLT WITH A DEADLY WEAPON
 Charging Instrument;                                                            Statute for Offense:
 INDICTMENT                                                                       22.02 Penal Code
 Date ofOffense:
 6/15/2012
 Degree of Offense:                                                              P~ea   to Offense:                  Findings on Deadly Weapon:
 2ND DEGREE FELONY                                                               GUILTY                              YES - A KNIFE
 Terms of Plea Bargain:
 SIX YEARS INSTITUTIONAL DIVISION, TDCJ
 Plea to !•1 Enhancement                                                      Plea to 2nd Enhancement/Habitual
 Paragraph:                                         N/A                       Paragraph;                                 NIA
 Findings on 1st Enhancement                                                  Findings on znd
 Paragraph:                                         N/A                       Enhancement/Habitual Paragraph:            NIA
 Date Sentence Imposed:                  7/31/201.                            Date Sentence to Commence:      7/31/2015
 Punishment and Place
 of Confinement:                         SIX YEARS INSTITUTIONAL DIVISION, TDCJ
                                                      THIS SENTENCE SHALL RUN CONCURRENTLY.

         0   SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A
 Fine:                          Court Costs: Restitution:  Restitution Payable to:
 $NIA                           $ 316        $NIA            .oo
                                                           0 VICTIM (see below) 0 AGENCY/AGENT (see below)
         Attachment A. Order to Withdraw Funds, is incorporated into this udgment and made a art hereof.
 Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRL\1. PRoc. chapter 62
 The age of the victim at the time of the offense was N/A .
                 lf Defendant is to serve sentence in TDCJ. enter incarceration periods in chronological order.
                   From                  to                  From        to            From       to
 Time              From                  to                  From        to            From       to
 Credited:
                   If Defendant is to serve sentence in county jail or i!l given credit toward fine and cost§, enter days credited below.
1143 DAYS
                                              DAYS           NOTES: NIA
 All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by Nference.
          This cause was called for trial in Hill County, Texas. The State appeared by her District Attorney.
          Counsel/ Waiver of Counsel (select one)
 18] Defendant appeared in person with Counsel.
 0 Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
           Both parties announced ready for trial. Defendant waived the right of trial by jury and entered the plea indicated above.
 The Court then admonished Defendant as required by law. It appeared to the Court that Defendant was mentally competent to
 stand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea. The Court received the plea and
 entered it of record. Ravin heard the evidence submitted, the Court found Defendant guilty of the offense indicated above. In the
 presence of Defen ~lllrti'"@?lfl'tol}ounce sen e          gainst Defendant.
                           ATTEST           __.K_ - w    I          .20Jr._
                                              ANGELIAORR
                                     .       DISTRICT Qb.SQI(.jdg                                       Page 1 of2
                                           HILL COUNTY. T      S
                               BY
                ,,
                ...
        The Court 'FINDS Defendant com&d the above offense and ORDERS, ADJ&s AND DECREES that Defendant is
GUlL TY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable
provisions of TEX. CODE CRTM. PROC. art. 42.12 § 9,
         The Court ORDERS Defendant punished as indicat&d above. The Court ORDERS Defendant to pay all fines, court costs, and
restitution as indicated above.
         Punishment Options (select one)
I:8J Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas or the
Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court
ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the
custody of the Sheriff of this (;Ounty until the Sheriff can obey the directions of this sentence. The Court ORDERS that upon release
from confinement, Defendant proceed immediately to the Hill County District Clerk. Once there, the Court ORDERS Defendant to
pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above.
0 County Jail-Confinement I Confinement in Lieu of Payment. The Court ORDERS Defendant immediately committed to
the custody of the Sheriff of        County, Texas on the date the se~tence is to commence. Defendant shall be confined in the
County Jail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant shall proceed
immediately to the         . Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid
fines, court costs, and restitution as ordered by the Court above.
0 Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant to proceed
immediately to the Office of the         County District Clerk. Once there, the Court ORDERS Defendant t{l pay or make
arrangements to pay all fines and court costs as ordered by the Court in this cause.
         Execution I Suspension of Sentence (select one)
121 The Court ORDERS Defendant's sentence EXECUTED.
0 The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community
supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of
community supervision. The order setting forth the terms and conditions of community SUpervision is incorporated into this
judgment by reference,
         The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated.




Signed and entered on July 31, 2015



                                •.    ~




Clerk: Angelia Orr, District Clerk ~I ~----b             ---
     h'. .,-c=-..         ~~--v-- .....              -:;:r

                                                                                                  Right Thumbprint




                                       dcurlee.jdg                                     Page2of2
        ..

                                                      Cause No. 37,458

STATE OF TEXAS                                           §        IN THE 66rn DISTRICT COURT
                                                         §
v.                                                       §
                                                         §        HILL COUNTY, TEXAS
DARRELL ALLEN CURLEE                                     §
                                                         §

                                                 ATTACHMENT A
                                            ORDER TO WITHDRAW FUNDS

TO:   INMATE TRUST ACCOUNT, TEXAS DEPARTMENT OF CRIMINAL JUSTICE
COPY TO: Darrell Allen Curlee    TDCJ #:   SID#: TX027l7859

GREETINGS:

THE ABOVE named Texas Department of Criminal Justice offender has of this date been assessed court costs, fees
and/or fines and/or restitution in the 661h District Court of Hill County, Texas, in the above entitled cause in
accordance with the sentence imposed as reflected in the judgment to which this Order is attached. The Court fmds
that the offender is unable to pay the court costs, fees and/or fmes and/or restitution on this date and that the funds
should be withdrawn from the offender's Inmate Account. Court costs, fees and/or fmes and/or restitution have
been incurred in the amount of$; 316 • 00

         THE COURT ORDERS that payment be made out of the offender's Inmate Account as follows:
         Pay an initial amount equal to the lesser of:
                   (1) IS% of the account balance up to and including $100, plus 25% of any portion of the account
                         balance that is between $100.0 l and $500 inclusive, plus 50% of any portion of the account
                         balance that is more than $500; or
                   (2) The total amount of court costs, fees and/or fines and/or restitution that remains unpaid.
         After the payment of the initial amount, the offender shall pay an amount equal to the lesser of:
                   (I) I 0% of each deposit in the offender's Inmate Account; or
                   (2) The total amount of court costs, fees and/or fines and/or restitution that remains unpaid.
         Payments are to continue until the total amount of the court costs, fees and/or fines and/or restitution are
         paid, or the offender is released from confinement.

On receipt of a copy of this Judgment, the department (Inmate Trust Account) shall withdraw money from the
account of the offender, hold same in a separate account, and shall forward said money to the 66th County District
Clerk, P.O. Box 634, Hillsboro, Texas 76645 monthly.

THIS ORDER is entered and incorporated into the Judgment and Sentence of this Court and pursuant to
Government Code, Section 501.014, on this 30th day of July, 2015.




Attachment A Order to Withdraw Funds Updated 9·2-14
                        e Cause No.   37,458




The State of Texas                             IN THE 66th JUDICIAL

                                               DISTRICT COURT


                                               OF HILL CO TEXAS
VS.                                                                   .   .......
                                                                          ~~i
                                                                           ..-..-··
                                                                             ...

DARRELL ALLEN CURLEE




                        E N D 0 R S E ME N T


             The Defendant DARRELL ALLEN CURLEE, in the above
cause, is given credit on his/her sentence for 1143 days spent in
jail pending dispostion of the above cause.

             The Sheri££ of Hill County, Texas is hereby directed
to attach to the commitment papers in this cause a statement
assessing the defendant's conduct while in jail during this time.

              Signed and Entered this the 3rd aay of August,
A.D., 2015.
                                 e                              e
                                           COMMITMENT
                                        TO PENITENTIARY
                                           NO 37,458
                                       THE STATE OF TEXAS
                                                vs
                                       DARRELL ALLEN CURLEE

THE STATE OF TEXAS                                          IN THE 66TH DISTRICT COURTS
COUNTY OF HILL                                              JULY-DEC. TERM, 2015

To the Director of Corrections of the Institutional Division of The Texas
Department of Criminal Justice, or any other officer legally authorized -to
receive convicts, greeting;

Whereas by the judgment of the Honorable 66th Judicial District Court of Hill
County Texas in the above styled and numbered cause, made and entered on the
31st of July 2015,    on optical       Page ON, the above named defendant was
adjudged to be guilty of the offense of AGG ASSLT W/DEADLY WEAPON a 2nd
Degree Felony, on his plea of Guilty; and whereas by proper sentence of said
court, dated 07/31/15, and recorded in VOL. BASE , Page ON , the above named
defendant was sentenced to 6 Years 0 Months 0 Days ,;


              sentence to be served CONCURRENT WITH                  the   service   of       any
other
sentence(s) imposed upon said defendant, to-wit:

              And whereas, the Sheriff has been instructed to include with
this commitment the following report(s):
              __xx__ A written report to the director of the Department of
              Corrections that states:
              1} the offense or offenses for which the defendant has been
              sentenced;
              2) the nature and seriousness of each offense.
              in jail.
                                                                                          '
              Wherefore, you are hereby commanded that you take into custody
the above named defendant and convey him to said penitentiary, and that you
execute the sentence herein as required of you by law confining the said
defendant in the State Penitentiary for the term stated above, subject to the
rules and regulations of the penitentiary authorities.


                                         ANGELIA ORR, Clerk, District Court
                                                 Hill County, Texas

                                        BUt!\                                    Deputy

                  Capias                       '~li
                                        b y placJ.ng t e defendant under arrest on the
                                        20    , at            o'clock      .M.


      :~~~~FlED r~'i   , . -s-
                ANGEUAORR
                                 20,

                                         Sheriff Hill County,Texas
               DISTRICT CLERK
             HILL COUNTY. T AS
       BY
---------------·---··-                                                   -·




    Plea Date:       1l~\j JuInformation
    By: Indictment -X_
                                 IG •
                                         __
                                                                                     "4/ic~[II.E:o
                                                                                             f!?!? /-~IS
                                                                                     ,_.1_ ff?F(ff!t       1FOe i
                                                   CAUSE NO,      ~1'-l'5<l         ZQIS JUL        - '·    i: ; ;.
   THE STATE OF TEXAS                                               §                            31 PH 3~'b~E 66Tri JUDICIAL
   VS.                                                             §                                       DISTRICT COURT
         D(,lg£(H ~(\etJ            Llue,lt.e.,.                   §                                       HILL COUNTY, TEXAS
···--------.. ·----------~LEA BARGAIN AGREEMEIITAND WAIVER OF RIGHTS                                                      i ,;~ .
 ~.S.C.JT.C.              2~.0                            OFFENSE.             ftqa As$lk:             ttvi ~ .                     ~ -;
 '-i:i6REE OF FELONY: y(V J           STATE JAlL               tJ ,     CLASStlF       MISDEMEANOR:~ ~                Q
                                                               ~>Jitf3tt,?3bX Ao(()f
                                                                                  02.}173.50
  COMES NOW Defendant, Counsel for Defendant, and Counsel for the State of Texas herein, and would show that the
  following plea bargain agreement has been entered into be~Neen the undersigned:

  Defendant will plead:   t--   GUlL TY __ NOLO CONTENDERE                    __ TRUE
  _2(      Imprisonment in the Texas Dept. of Criminal Justice -Institutional Division for
           Confinement in State Jail for         months.
                                                                                             Uyears.

                    _Punishment under 12.44 (a) Tex. Penal Code
                    _ Offense under 12.44 (b) Tex. Penal Code
          Confinement in County Jail for __ days. (o as a condition of community supervision)
          Fine ~f $       ·
          No Community Supervision to be granted.
                                                  ·                *
                                                          c. c- 3} (Q. oo
          Deferred adjudication and community supervision.
          Community Supervision to be granted for _ _ years, subject to all the terms and conditions imposed by tne trial
          court. Further, the judge may at any time during the period of community supervision alter or modify tile conditions.
          Restitution of$                           Payable to: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
                                                     Address:-----------------
          The parties request the additional offense{s) of _ _ _ _ _ in Cause No.(s)_ _ _ _ _ _ _ __
          be pled in bar under 12.45 of the Tex. Penal Code.

 Additional provisions: Defendant will pay court costs, including indigent health, restitution, attorney fees and processing fees
 as ordered by the Court. Defendant waives right to appeal and to file motion for new trial or in arrest of judgment; and, if
 community supervision {probation) is granted, such standard and other terms of supervision as may be set by or at the
 direction of the court, and· Defendant waives any right to early release from communit'J supervision and to time credits under
 Texas Code of Criminal Procedure Art. 42.12 sec. 20 and 20A, except by written agreement of the State of Texas

                                                     }JL/--317~> ~
The ~ndersigned certify that they have read the terms of the above agreement and state that it fully contains all of the
provisions of said agreement.


                                                                        Defendant




                                                    BY
                      &
                                                  CRIMINAL DOCKET                                                        Case#: 37,458

     r"\
    iJJ
    ::;o                      Style of Case                  Attorneys                                         Offense
     ,.                                                                                                                           Date of Filing
    i!                       State Of Texas                DAN V DENT                 State           AGGRAVATED ASSAULT W/ A
J]                                vs.
                                                   z
                                                                            /I

                                                                          ,,~
                                                                                                         DEADLY WEAPON      I Mo. I Day 1 Year
                                                                                                     AGGASSAULTTHREAT-WITHA I 8 I 241 2012
                          DARREL ALLEN CURLEE                '<   !=7-~
                                                                                                         DEADL\' WEAPON

     Date of Orders
                1
                      •                                ORDERSOFCOURT                                                                 Process
     tP1I2'Tirz.l ki4         J- ~~~ 1~1~          z..e..= ·H'~ lZ7          c{J.r_     0"-'Lf       ~/           114 -~ ,__
                      rr.~(/ .q-- ~ • tJ ~~ .~ ~ L-.z:., . '2.7/ .dVM/~-
                      . !'./,!";> L,r/' lj h-:7:
                                              u  ~     4.,.?'~---h :?J~ ~ 1.-"'- 0-L..< d
         q 13t:j],lJ P'7 ~ ;n ·t Jr7. rf.        FP7 G    11- L3 -fl. 'J 7 "/-'iY-' 7.,-=-----,
         ..,17_ z.t,>l ~ ?tt.-t.~~~-6 .~ ltA-:;;;Lko. ~ 9---1<-~~~-~&-----
                        /J.,L;yJ 'ivfJ~-6u:-f-~e:.-#-~ ~- 1£.. ~

    I ~~~#~~~;;r~~
II~~L-:~.:~~~:t=. ~~:;.;.;. ~~--'j
                      ~ {(;4.-i~ .~.:~~~a#~·-!.~.~~~&~




                      IJM    JJ/A. ~~. //1A;__/);J)A- a_;_____)_] ~ ~~LL!f6 {)'
                      ~JhUIAJ      ....... ~(~__A,)_p~ ? ,          y __,
                                                                  .....,-~~/?50:rx::ae..-k
         1 . . . "' , : . ., V' '1" ---;!flf:::f(&C~'_t-:!:::7~~
                                                          ~/.
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    ~1 ~pE[r~~- ~-~~==~;3:>?;;--·'='-~-/------~-1-----
                          ~ ~~                                                                                                   -                 --J
~,
                     State of Texas
                     VS. No 37,458
             ..__   ·"'!!1
                                                                                                                                                                                                Page Number: _ _ __
                     DARREL ALLEN CURLEE

                       Date of Orders                                                                                                                   ORDERS OF COURT

                        i.,..,
                         _,--        ·:S I ·'   ....
                                                _...f·:r-"   "'    ,·,.., T . ..-- ..P. A·
                                                             ·i' ' . _.._, .· I .l
                                                                                             ...
                                                                                         :. !J·'-'             ..t.........



                         ~       I2.4 II? I     ar 1h3!1.(4b 'l:n:u6A
                       -1131            11lf                 State by Dlslrict Anomey. Defendant in person and
                                                             . . . . --..---t                                                                                 12~ 'M_ __.._
                                                             ten (10) day waiting
                                                                                   A-~-- .... ~




                                                                                rifoonation. _Pled
                                                                                               _
                                                                                                     l~




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EXHIBIT C
                                          CAUSE NO 37;458

STATE OF TEXAS                                        §                     66TH DISTRICT COURT

VS                                                    §                     HILL COUNTY, TEXAS

DARRELL CURLEE                                        §

                               ORDER APPOINTING ATTORNEY
On the 27TH day of february, 2015, the Court determined that additional counsel was needed in the above
reference case. Therefore, it is ORDERED that Lyle Gripp be appointed as additional counsel and designated as
lead counsel in the above cause.                                                                     ·


This defendant has been charged with:         AGO ASSAULT W /DEADLY WEAPON X 2 COUNTS
ATTORNEY CONTACT INFO:
100 N. 6TH STE. 703
WACO, TEXAS 76701
254-756-1112

NEXT HEARING DATE: JURY TRIALA-p·ri/.                     13, ClOr5 ~Cf~

                        Signed this 27TH day of February, 2015




IZJDefendant is in the Hill County Jail

D     Defendant is not in the Hill County Jail and can be reached as follows:




CC:     ATTORNEY VIA FAX
        TERRENCE RUSSELL VIA FAX
        DEFENDANT VIA        0
                         US MAIL              [g) JAIL MAIL
EXHIBIT D
         - - - - - - · - - ---- --· -·-·     --      -.
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                                                                                           NO. 37228                                                                ?.                      .   '·    ···'
                                                                                                                                                                    .... '·      . ..
                                                                                                                                                                                   ~




                  STATE OF TEXAS                                                                                   . INTHE66THJuDICIAL

                . vs.                       ''   '   -·••   ·••'   '•••••   •••••u ..   ••-•··••-••·•   ••·-,,
                                                                                                                   i   DISTRICT COURT
                                                                                                                 ~-~ - • • ' '   ••••   ' • • •'• ' • • - '   '•'        ''•''




                                                                     ··--····-···-·-·-. ..                 ... -.... ·-·-· ·······
                • JAMES RYDER                                                                                . L.I:I!L~ c.:c;nr~:r.y, 'I'~XA.~

                                                               MOTION FOR NEW TRIAL

                 TO THE HONORABLE JUDGE OF SAID COURT:

                         Under Texas Rules of Appellate Procedure 21 and 22, Defendant, James Ryder, files this

                 Motion/or New Trial:

                         1.      Defendant was sentenced on August 28, 2014. This Motion for New Trial, filed

                         within the thirty-day timetable following sentencing is therefore timely. A hearing must

                         be commenced before the 75th day after sentencing, or this motion is overruled by

                         operation of law.

                         2.     The verdict in this cause is contrary to the law and the evidence. See Tex. Rule

                         App. Proc. 21.3.

                         3.     The trial court has the discretion to grant a new trial in the interests of justice, as

                         courts have emphasized in Mullins v. State, 37 Tex. 337, 339-340 (1873) and State v.

                         Gonzalez, 855 S. W.2d 692 (Tex. Crim. App. 1993).

                         4.     Trial counsel was ineffective in the course of this trial by failing to subpoena a

                         necessary expert witness, Dr. Jonathan Trent Terrell.. See Affidavit of Terrence Russell.

                         5.     When this witness did not appear, the Court denied trial counsel's motion for

                         continuance to secure the expert witness's presence. See Affidavit of Terrence Russell.

                         6.     'Dr. Terrell is an expert in cognitive psychology, including memocy formation and

                        . retrieval, as well as eyewitness testimony. See Exhibit B of Affidavit of Terrence
•.




     Russell, Exhibit A of Declaration Under Penalties of Perjury of Dr. Jonathan Trent
          c


     Terrell.

     7.         Had Dr. Terrell been properly subpoenaed, he would have testified that the

     memory, especially in young children, is often inaccurate and is shaded by suggestion

     and therefore, often unreliable. See Affidavit of Terrence Russell, Declaration Under

     Penalties ofPerjwy of Dr. Jonathan Trent Terrell.

     8.         Dr. Terrell would have also testified about the phenomena known as "childhood

     amnesia," which is present in varying degrees in all persons. See Affidavit ofTerrence

     Russell, Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell.

     9.         Dr. Terrell would have presented valuable testimony, which was material to the

     Defendant's case. See Affidavit of Terrence Russell and Declaration Under Penalties of

     Perjury of Dr. Jonathan Trent Terrell.

     10.        Had trial counsel secured the expert witness's presence through subpoena, the

     outcome of the trial would likely have been different. See Affidavit of Terrence Russell

     and Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell.

     11.        Trial counsel was ineffective in the course of this trial by failing to seek

     appointment of an expert, despite the Defendant's indigent status. See Declarations

     Under Penalties of Perjury of Dr. Jonathan Trent Terrell and Larenda Nichole Watk1ns.

     12.        Defendant would ask the Court to take judicial notice of the Court's file,

     particularly the lack of an Ake motion seeking expert assistance for an indigent defendant.

     13.        Trial Counsel required Defendant to pay an expert fee of $1500.00, despite the

     fact that Defendant was indigent. See Declaration ofLarenda Nichole Watkins.
.   \




        14;    Trial Counsel paid Dr. Jonathan Trent Terrell, by check, a total of$1000.00-c---the

        amount agreed upon for Dr. Terrell's expert opinion an,d testimony. See Declaration of
                                                                   (             .



        Dr. Jonathan Trent Terrell.

        15.    After the trial was over, Dr. Terrell returned Mr. Russell's check to him, un-

        cashed. See Declaration of Dr. Jonathan Trent Terrell.

        16.    Mr. Russell refunded, to Larenda Nichole Watkins, $1000.00 ofthe $1500.00

        paid for Dr. Terrell's assistance. See Declaration ofLarenda Nichole Watkins.

        17.    Mr. Russell has not refunded, and has failed to account for, the remaining $500.00

        paid by the Defendant for Dr. Terrell's expert services. See Declaration ofLarenda

        Nichole Watkins.

        18.    The Affidavit of Material Fact of Terrence Russell, Defendant's Trial Counsel, is

        attached and Defendant incorporates it, in full, into this motion.

        19.    The Declaration Under Penalties of Perjury ofLarenda Nichole Watkins is

        attached and Defendant incorporates it, in full, into this motion.

        20.   ' The Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell is

        attached and Defendant incorporates it, in full, into this motion.

        21.    For the foregoing reasons, and for such other reasons that may arise on the

        hearing of this Motion, Defendant requests a new trial.

        Defendant prays that the Court set aside the judgment of conviction entered in this cause

        and order a new trial on the merits.

                                               Respectfully submitted,


                                               The Law Office of Kristin R. BroWn, PLLC
..


                                                  1701 North Market St., Suite 402
                                                  Dallas, Texas 75202
                                                  Tel: 214-446-3909
                                                  Fax: 214-481-4868
                                                  Email: kbrown@ide.fenddfw.com



                                                      /SiKri~
                                                  By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
                                                      Kristin R. Brown
                                                      State Bar No. 24081458
                                                      Attorney for James Duval Ryder


                                        Certificate ofPresentment

            I certify that a true and correct copy of this document will be hand-delivered to the court

     through the Clerk on the same day this document is received by the clerk.


                                                  Is/ Kristin R. Brown

                                                  Kristin R. Brown




                                           Certificate of Service

     This certifies that on _ _ _ _ _, a true and correct copy of this document was served on

     - - - - - - - - - - of the Hill County District Attorney, Appellate Division, PO Box

     400, Hillsboro, Texas 76645-0400, phone (254) 582-4070, fax (254) 582-4036, by email to



                                                  lsi Kristin R. Brown

                                                  Kristin R. Brown
     'I
.·   i.




                                         Order for a Setting on this Motion

                 On
                      ------------------------- - - - - - " the Defendant flied a Motion for
          New TriaL The Court fmds that the party is entitled to a hearing on this matter, and it is

          THEREFORE ORDERED that a hearing on this motion is set f o r - - - - - - - - - -

          Signed on----------------------




                                                        JUDGE PRESIDING
\   '·




                                                                  NO. 37,228

             STATE OF TEXAS                                           §    IN THE DISTRICT COURT
                                                                      §
             vs.                                                      §    66 1h JUDICIAL DISTRICT
                                                                      §
             .lAMES DUVAL RYDER                                       §    HILL COUNTY, TEXAS


                                                  AFFIDAVIT OF MATERIAL FACT


             STATE OF TEXAS                                            §
                                                                       §
             COUNTY OF HILL                                            §
         r

                      On September II, 2014, Terence A. Russell appeared before the undersigned notary public

             and made the following affidavit:

                      "1, Terence A. Russell, was trial counsel for the above referenced Defendant in a trial

             beginning on August 25, 2014. In anticipation of such trial, I had, on July 22, 2014 contacted an

             expert on memory and memory development to assist me in defending against ou!cries from a young
                             '
             girl who was almost an infant at the time of the supposed events described in such outcries.

                      "On August 20, 2014, arrangements were made with Dr. Trent Terrell, Psychology Chair at

             Mary Hardin Baylor (CV attached as Exhibit 'A') to appear and testify on Defendant's behalf. Dr.

             Terrell sent to me a copy of the proposed direct examination he felt would be appropriate in this

             case, a copy of such is attached hereto as Exhibit 'B.'

                      "In an email received on the morning of August 25, 2014 (a copy ofwhich is attached as

             Exhibit 'C'), Dr. Terrell had said that Wednesday would be the only day open for him to come to

             Hillsboro to testify. Prior to the beginning of voir dire, in chambers, trial scheduling was discussed.

             The court determined that Dr. Terrell's testimony would not be needed until Wednesday.

                      "In an email on the morning of August 26, 2014 (a copy of which is attached as Exhibit 'D'),

             I advised Dr. Terrell that his testimony would not be needed until the following day, Wednesday.

             AFFIDAVIT OF MA H.: RIAL FACr • T~rtnce A. Russell
     't
''
     ,,



                    "During that day, an email exchange took place wherein Dr. Terrell advised that he woould

          be free the whole next day and wanted to know what time he be testifYing; I responded that he

          should be present at 12:30 p.m. (email attached as Exhibit 'E')

                    "At some point during August 26, 2014, my emails to Dr. Terrell did not all go through (see

          attached Exhibit 'F' and compare to Exhibit 'G').

                    "Desperately, I began, during every break in the trial, attempts to contact Dr. Terrell via

          email to an alternate address, texting and calling his cell phone, calling his mother's cell phone, and

          finally, during the lunch hour, spoke with Dr. Terrell who stated that he would be unable to appear

          given such late notice ofthe time of his testimony.

                    "1 had no strategy in not having Dr. Terrell present. I was of the belief that continued

          communication by email was the most suitable form, _but believe I failed to provide effective

          awssistance of counsel in not subpoenaing Dr. Terrell or otherwise use a form of communication

          that would have ensured that this most essential witness would have appeared to testify on behalf of

          Defendant.

                    "I feel that the testimony of Dr. Terrell was material to the defense. Prior to closing of

          testimony, I made an oral motion for continuance to allow for the time necessary to secure the

          presence of Dr. Terrell, which was denied by the Court.

                    "Further Affiant sayeth not."




                    Sworn to and subscribed before me on           --'~=·==---:.·><'--~-----/_f-L...1_'2_-0_/--J.f___
                                                                      ~;J1,~
                                                                   NOTARY PUBLlC



          i\fFIIM. VlT OF 1\-IATERI.-\L FACT- TerMce A. R11ssell
--:--~--------                ---     --
       'l

  ..

                                      Jonathan Trent Terrell, Ph.D.
                                       University of Mary Hardin-Baylor
                        Assistant Professor and Chairperson, Department of Psychology
                                              900 College Street
                                               Belton, TX 765 13
                                                  254-295-4630
                                              806-570-6849 (cell)
                                               tterrell@umhb.edu

            EDUCATION

            Bachelor of Arts in Psychology, Baylor University, May 2003

            Master of Arts in Neuroscience, Baylor University, August 2005

            Doctor of Philosophy in Experimental Psychology, Baylor University, May 2008

            Specialization: Cognitive Psychology, Eyewitness Memory
            Academic Mentor: Charles A. Weaver, III


            COURSES TAUGHT

            General Psychology                  Psychological Methods
            Experimental Psychology             Developmental Psychology
            Cognition                           Neurophysiological Psychology
            Psychology and Film
            freshman Seminar

            PROFESSIONAL AFFILIATIONS

            Association for Psychological Science
            American Association for the Advancement of Science
            Psychonornic Society-Associate
            Annadillo {Association for Research in Memory, Attention, Decision making,
            Intelligence, Language, Learning, and Organization)

            CONFERENCES ATTENDED

            Annual Meeting ofthe Psychonomic Society: 2006,2007,2009, 2010, 2011
            Annadillo: 2006,2007
            Texas A&M Annual Assessment Conference: 2010, 2011
     ,.
              ..   'I

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          .
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                              CONSlJLTING WORK

                              I have consulted and testified in many criminal cases as an expert on eyewitness memory.
                              My testimony addresses the basic processes of memory formation and retrieval, as 'well
                              as estimator variables (such as event duration, stress, weapon focus, witness intoxication)
                              and system variables (such as lineup construction, instructions given to witnesses, etc).

                              COM!\'fiTTEE WORK

                              Academic Institutional Quality Committee
                              Student Success Team Committee
                              Online Education Task Force
                              Strategic Planning Stewardship Committee
                              Chair-Student Scholars Day and Research Symposium Planning Committee, 2010-2011
                              UMHB Quality Enhancement Project Planning Team
                                             I



                              PUBLICATIONS, PRESENTATIONS & AWARDS

                                 Weaver, C. A III & Terrell~ T. (2004). Laboratory in cognitive psychology:, Student
                              Manual. Published by Baylor University.

                                  Weaver, C. A. III, Terrell, T., & Krug, K. S. (2004). Evaluating the reliability of
                              witness memories in product identification cases. In Andrews Publications' Asbestos
                              Litigation 2004 (Section 19, pp. 1-18). New Orleans, LA: Thompson-West.

                                 Weaver, C. A Ill, Terrell, T. & Krug, K. (2004, April). Remembrance of thing past:
                              Evaluating the reliability of witness memories in product identification cases. Andrews
                              Publications' Asbestos Litigation 2004 Conference: New Orleans.

                                  Weaver, C. A III. & Terrell, J. T . (2005, May). Eyewitness memory and product
                              identification? Harris Martin Publications Asbestos Litigation Conference: The
                              Increasing Prominence of Equipment, Gasket and Friction Defendants. Las Vegas.

                                  Weaver, C. A. III, Terrell, J. T., Krug, K.; & Kelemen, W. L. (2005, November). The
                              delayed JOL effect with very long delays: Evidence from Flashbulb Memories. Paper
                              presented at Memory and Metamemory: Papers in Honor of Thomas 0. Nelson, Toronto.

                                 Terrell, T. J., & Weaver, C. A, III (2005, November). The effects of misinformation
                              on eyewitness memory and product identification. Paper presented at the 45th annual
                              meeting of the Psychonornic Society, Toronto.

                                 Terrell, J. T. (2006, February). The effects of misinformation on eyewitness memory
                              and product identification. Invited address. Baylor University Interdisciplinary
I


'I   ..
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         •   •




                  Scholarship Forum.
                                                                                        I•

                     Terrell, J. T. (2006, May). Winner, Outstanding Graduate Research, Baylor
                  University Interdisciplinary Scholarship Forum.

                      Weaver, C. A. III., Terrell, J. T., & Holmes, A. E. (2006, October). Evaluating the
                 reliability of eyewitness memory in product identification cases, Asbestos Litigation in
                 the 21st Century. New Orleans: American Law Institute/American Bar Association.

                    Terrell, J. T. (2006, October). Creating new memories, destroying old ones:
                 Refreshing recollections ofeyewitnesses. Invited address. Baylor University Nu Rho Psi
                 Society.

                     Terrell, J. T., & Weaver, C. A. III. (2006, October). Eyewitness memory in civil
                 cases: Photo refreshing, suggestion, and product identification. Poster presented at the
                 16th annual Southwest Conference on Cognition, Texas Tech University: Lubbock.

                    Terrell, J. T., & Weaver, C. A., III. (2006, November). "Refreshing recollection" of
                 eyewitnesses: Memory retrieval or memory creation? Poster presented at the 47th annual
                 meeting of the Psychonomic Society, Houston.

                    Weaver, C. A., III, & Terrell, J. T. (2007, October). Remembering bad things, not
                 bad guys: Eyewitness memory in product liability cases. Paper presented at the 17th
                 annual Southwest Conference on Cognition. Trinity University: San Antonio.

                    Terrell, J. T. (2007, October). Eyewitness memory and product identification:
                 Suggestibility andfalse memory creation. Poster presented at the 17th annual Southwest
                 Conference on Cognition. Trinity University: San Antonio.

                     Terrell, J. T., & Weaver, C. A., III. (2007, November). Remembering products; not
                 faces: "Refreshing recollection" of eyewitnesses in product liability situations. Paper
                                                       of
                 presented at the 48th annual meeting the Psychonomic Society, Long Beach.

                     Weaver, C. A III, Terrell, J. T., Krug, K. S., & Kelemen, W. L. (2008, May). The
                 Delayed JOL Effect with very long delays: Evidence from flashbulb memories. In J.
                 Dunlo sky and R. A. Bjork (Eds. ), A handbook of memory and metacognition. Hillsdale,
                 NJ: Lawrence Erlbaum Associates.

                    Terrell, J. T. & Weaver, C. A. III (2008). Eyewitness testimony in civil litigation:
                 Retention, suggestion, and misinformation in product identification. North American
                 Journal of Psychology, 10, 323-346.

                     Terrell, J. T. (2009, November). Repeated photo refreshing and product
                 identification. Poster presented at the 501h annual meeting of the Psychonomic Society,
                 Boston.
                 'I

I   ~   . J •   . r!   ...




                               Weaver, C. A. III, Parra, K. F, & Terrell, J. T. (20 10, November). Addressing
                             memory-related issues in asbestos cases. San Diego: Defense Research Institute.

                                Weaver, C. A., III, Krug, K. S., Terrell, J. T., & Holmes, A. E. (in press). Eyewitness
                             memory Issues in civil litigation. In A. Jamieson & A. Moenssens (Eds.), Wiley
                             Encyclopedia of Forensic Science: Behavioral Sciences. Chichester, UK: John Wiley &
                             Sons, Ltd.

                                Terrell, J. T. (2011, April). Invited response to Frederick, K. (2011). The creation of
                             a measurement instrument. The Evolution of a Psychometric Tool from Development to
                             Application. Baylor University, Department of Educational Psychology Spring, 201 I
                             Doctoral Student Symposi urn.

                                 Terrell, J. T. (20 11, July). The dynamics ofeyewitness identification. Paper
                             presented at the Texas State Bar CLE Advanced Criminal Law Course and Criminal Law
                             l 01, Houston.

                                 Parra,. K. F., Terrell, J. T., & Weaver, C. A. III (20 11, October). Differing cognitive
                             loads affect knowledge updating in jurors. Poster presented at the 21st annual Armadillo
                             Conference on Cognition: Texas A&M Commerce University: Commerce, TX.

                                Parra, K. F., Terrell, J. T., & Weaver, C. A. III (2011, October). Do common
                             misunderstandings of memory extend to attorneys? Poster presented at the 21st annual
                             Armadillo Conference on Cognition: Texas A&M Commerce University: Commerce, TX.

                                 Terrell, J. T. (20 ll, November). Effects ofrepeated photo refreshing on eyewitness
                             identification. Poster presented at the 52"d annual meeting of the Psychonomic Society,
                             Seattle.

                             INVITED PRESENTATIONS

                             2008, October: Eyewitness Testimony in Civil Litigation: Retention, Suggestion and
                             Misinformation in Product Identification. UMHB College of Sciences Brown Bag
                             Presentation

                             2010, March: Assessment Brown Bag, part of UMHB IQ CoWlcil 's Assessment Series.

                             2010, November: Presenter at UMHB Central Texas Book Club's discussion of .. The
                             Screwtape Letters" by C.S. Lewis.

                             2011, March_: Presenter at UMHB Central Texas Book Club's discussion of"Into the
                             Wild" by Jon Krakauer.

                             2011, April: Class Size 60: How I Put General Psychology Online and Lived to Tell
                             About It. Faculty Conversation sponsored by UMHB's Center for Effectiveness in
                             Learning and Teaching.
       . ..'     l

I' •   I   .'   1.~




                                                                    \


                      2011, July: Dynamics ofEyewitness Identification. Paper presented at the 371h Annual
                      State Bar of Texas Advanced Criminal Law Course, Houston.

                      2012, July: Eyewitness ldentifcation: Exploring the Relevant Factors Through Case
                      Examples. Paper to be presented at the 38th Annual State Bar of Texas Advanced
                      Criminal Law Seminar, San Antonio.

                      2012, September (pending): Counter Evidence of Eyewitness Unreliability: The Science.
                      Paper to be presented at a training sponsored by the National District Attorneys
                      Association in Harris County.
                                                        --    -- --       ------~-----            ----         -
       ·, '
  I.    !}    f   f




                                               Direct Examination of Dr. Terrell
                  Name: Dr. Trent Terrell
              Where do you live? Temple, Texas
              How are you currently employed?
                         9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor,
                         Belton, TX.
              What are your areas of Specialization? Learning, Memory, and Cognition
                                               EDUCATIONAL BACKGROUND
              Academic Degrees?
              B.A., Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from
              Baylor University, Waco, TX
              What type of graduate training did you receive in the area of Memory at tbat time?
                         Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research,
                         dissertation.
                                             PROFESSIONAL RESPONSIBILITlES
              Could you describe your current responsibilities at the University of Mary       Hardin~ Baylor?

                         Cognitive psychologist with emphasis in memory
                         Psychology Department Chairperson, August 201 0-present
                         Teach 4 classes a semester-General Psychology, Psychological Methods, Experimental
                         Psychology, Cognitive Psychology, Theories ofLearning, Neurophysiological
                         Psychology, Developmental Psychology
                         Supervise undergraduate research in Memory
                         Numerous campus committees
              Do you belong to any Professional Associations?
              Association for Psychological Science
              Psychonomic Society-Associate Member
              American Association for the Advancement of Science


              PRIMARY RESEARCH INTERESTS

                      Confidence and Accuracy in Evewitness Testimony




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                     In general, confident witnesses are perceived as more credible than less confident witnesses.
                    However, confident witnesses are not necessarily more accurate. This research investigates
                    factors that may inflate confidence without improving memory accuracy.
             Lineup Construction and Photo Refreshing
                    How does the construction and presentation of lineups affect the likelihood of correct
             identifications? How do multiple opportunities to view lineups affect the likelihood of correct
             identifications?
             Have you published any works in the field of Eyewitness Identification memory accuracy?
             Yes
             Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the
             lab
             Have you testified as an expert at other hearings? Yes
             Have you given any presentations about eyewitness memory? Yes, I presented at the Texas
             State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio
             in 2012. I've also spoken to the National District Attorneys Association in Houston and the
             Center for American and JntemationaJ Law in Plano.
             Are you being paid by the defense to testify in this case? Yes.
·,    l


 '·



          What is the most common mistaken belief about memory?
          That memory works like a video recorder or computer disk. Both these metaphors suggest that
          memory retains everything that has ever happened to us, implying that all events are ultimately
          retrievable. Memory is a reconstructive phenomenon, not a video recorder:
                  In essence, all memory is false to some degree. Memory is inherently a reconstructive
                  process, whereby we piece together the past to form a coherent narrative that becomes
                  our autobiography. In the process of reconstructing the past, we color and shape our
                  life s experiences based on what we know about the world. (Bernstein & Loftus, 2009)
          How does memory work then?
          Memory has three processes-encoding, storage, and retrieval. (NOTE: If you look to the
          bottom, there's a general Q&A about memory section. I can go into as much or as little detail as
          you think \vould be necessary here. rve worked with people who want to dl!vote titteen minutes
          to it others who just \Vane a brief answer. Whatever works for you.)
          Are memories of alleged sexual abuse the same as eyewitness memories?
          Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime
          being committed by someone they do not know, and later trying to identify that person after a
          very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but
          what and if. They're different kinds of memories, but the same factors can affect their reliability.
          Will we discuss some of those factors today?
          Yes.
          What documents have you reviewed?
          Very little. l've looked at an amended summary of what outcries would be described in court.
          Is it usual for you to review so few documents in a case like this?
          Each case is different, but especially in cases of alleged sexual abuse, my role is not to interpret
          the specifics of what happened, but rather to talk about factors that have been experimentally
          demonstrated to affect the reliability of such memories.
          So to clarify, you will not be testifying that the alleged abuse in this case did not take place?
          No, my testimony will only involve descriptions of how memory works and doesn't work.
          Have we spoken Defore today?
          Yes, via phone and email.
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         Before we begin, let's be clear: are you going to offer testimony that the witnesses in this
         case are lying, or that they are not credible?
         No. Credible witnesses can experience and report false memories without intending to be
        · deceptive or lying. The empirical evidence from years of false memory research indicates that
         most false memories seem as subjectively real to witness as true memories.
         Why are you here, then?
         To provide information to the jury about how memory works from a scientific background, to
         identify some of the factors known to affect reliability, and to provide tools that the jury can use
         as they evaluate the reliability of the child in this case.
         In general, how do memory researchers classify factors that alter witness                reliabili~?

         In the Eyewitness Memory literature, researchers discuss two broad classes of factors: Estimator
         variables and system variables. That distinction is not as important in this kind of case, but I do
         want to discuss one estimator variable, so I'll mention it. Estimator variables are those that
         cannot be controlled by the criminal justice system-they are simply the facts of what happened.
         How long something lasted, how long it has been since the event took place, stress levels of the
         victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly
         remembered later. These are called estimator variables because we can only estimate the impact
         they might have had on memories. System variables are those that investigators have some
         degree of control over, such as how information is gathered after the event In a case of alleged
         sexual abuse, system variables in play are how the child is interviewed, who conducts the
         interview, and in what context that interview takes place.
         What estimator variables do you feel might be relevant to this case?
        Latency, or the time between the event and the time when memories of that event were first
         reported. One of the most basic findings of eyewitness memory research is that memories decay over
        time. Just about every experimental protocol that manipulates the interval between exposure and testing
         has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In
        some scenarios, witnesses may not be prompted to think about an event at all after it has occurred,
        enhancing decay from memory (also called transience). This is true of lab studies, information learned in
        school, and eyewitness memory (Shapiro & Penrod, 1986).
        NOTE: Stress is also an estimator variable that reduces accuracy of subsequent memories. lfs a double-
        edged. sword though. If abuse did happen, it \vas likely stressfu I for the children. But if it's your case
          '   I


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                   that it didn't happen. it wouldn't   mak~   sense to talk about the stres:; of it interfering with subsequent
                   recall. In the previous sex abuse case J did. the state was eager to make the argument that
                   stn~ssfulitraumatic events are more likely to be remembere)d than more run-of-the-mill encounters. llhink
                    it"s pwbably best to not mention this in the direct, and if the state mentions it in cross, I can talk about
                   ho1.v stressful events are actually less likely to be   wdl-rem~rnbered.

                   What system variables could be relevant?
                   Most research suggests that children are very suggestible witnesses. It is difficult to question
                   young children about sexual acts without being suggestive to what may
                                                                                       \
                                                                                         have happened.
                   Why is it difficult to not be su~&estive with them?
                   The clearest and most obvious guideline for how to conduct interviews non-suggestively is to use
                   open-ended questions. Open-ended questions are ones that contain no information in them, and
                   require an expository answer, such as "What happened next?" In contrast, closed questions
                  , contain information in the question, and generally only require a yes/no answer. Such as "Did he
                   touch you here?'' Young children will likely be able to fully articulate the details of sexual abuse
                   without being guided by closed questions.
                   Is there empirical evidence that closed or suggestive questionin& can cause children to
                   create memories?
                   Yes. While there are numerous experimental protocols that have demonstrated this, one of the
                   most commonly discussed is known as the "Sam Stone" paradigm of research. In short, in these
                   protocols someone named Sam Stone visits a classroom of young children, and subsequently the
                   students are presented with the idea that Sam is a clumsy man who is always breaking things.
                   Teachers or adults may say things like "Sam certainly was a clumsy man." Over a period of
                   weeks, tbey are interviewed with suggestive questions like "Do you remember when Sam Stone
                   ripped the book?" Eventually, many of the students incorporate the suggestions into their
                   memory, and will tell you about the time Sam Stone visited and ripped the book, and in some
                   cases even add additional components of cJumsiness not mentioned by adults in the questions.
                   Naturally, the actor portraying Sam was very careful not to be clumsy during the visit. While
                   some of the things the interviewers asked about did happen, all of the clumsy things referred to
                   by the questions did not
                           There are myriad factors that affect the likelihood that children will come to accept these
                   suggestions and modify their memories accordingly, including the age of the children and the
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        strength and modality (open/closed) of the suggestions. Generally speaking, the younger the
        children the more likely they are to incorporate suggestions, and the more likely they are to
        answer yes to a closed question (whether yes        is the correct answer or not). The take-home fact is
        that if children are asked questions that presume something has happened and are placed in an
        environment where others seem to think it happened, there's empirical data illustrating they can
        and often will come to believe it themselves.
        The Sam Stone experiments seem to discuss children modifying their memories of
        something that reaJly h_appened. Is there any evidence that people can come to remember
        things from their childhood that did not occur at all?
        Yes, there are several examples. One experimental protocol involves what is known as the "Lost
        in the Mall" procedure. In this protocol, researchers enlist the help of family members to help
        make false suggestions to experimental participants that they were lost in the mall for an
        extended period of time when they were a child. When family members combine suggestions
        about true events along with the suggestion ofbeing lost in the mall (or being hospitalized
                                                                                          \
        overnight, or other traumatic events), many subjects not only come to accept that the event
        happened, but begin to elaborate add their own details of the event in subsequent recollections.
        When family are able to provide convincing details, such as the name of the mall they would've
        been lost in as a child, or even a store which they frequently shopped at, the subjects are able to
        imagine how th'at event might've occurred. There's a well-documented phenomenon known as
        imagination inflation-when subjects are asked to imagine somethirig occurring for just one
        minute, they are subsequently more likely to remember what they imagined as something that
        actually occurred. There's also a natural tendency to think that if everyone else in the family
        remembers this, I probably should, too.
        NOTE: DA's like to pick apart the lost in tl1e mall experiment, because the original study tried it
        with 25 pt.>op!e, and only produced the phenomenon in 6 of them. The small sample_ size ha~ to
        do with the complexities of recruiting family involv~ment, etc. lt's a very time-intensive and
        personal   proto~;ol.   And they'll say that creating this in 6 people is hardly ovenvhelming
        evidence, but   th~   point is that it's possible at all-ifs really a pretty surprising thing that it
        happens at all. The protocol is also used on adults. not children, and all the evidence supports tl1c
        idea that the younger the child, the more suggestible they are. The broad, concrete point is that
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            \ve've taken things that we know didn't happen, and convinced people it did so that they
            remember it as if it did. And the stak~s are IO\·Vcr in experiments-it doesn't really matter if you
            got lost in the mall or not. But, there's a lot more pressure to report sexual abuse, so it's not
            really a one-to-one comparison.
            Are there any developmental factors that may be relevant to this case?
            Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll
            explain below), "magical thinking" and an underdeveloped "Theory of Mind.
            Taking these one-by-one: ·
            Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and
            all of us have virtually no episodic memories of the first two years of our lives. The time of
            offset of childhood amnesia (the ability to start to form long-term memories accessible as adults)
            is different for all people. Most of us would say our first memory is from around age 3 or 4.
                   What causes childhood amnesia?
            A few things, the most important of which is the progression of language development. Our
            long-term memories are anchored in meaning and are rehearsed and stored phonologically (using
            language),. In short, children can't form memories accessible as adults in the first 2-3 years of
            life because they do not have the vocabulary necessary to represent those ideas in their minds
            and rehearse them. When children start learning language proficiently, they are able to rehearse
            better and begin to store memories that will be accessible as adults. Another factor potentially
            relevant here is a bit complicated to explain--the concept of encoding specificity. This means
            that memories are encoded in a certain way, using a certain way of thinking and a certain
            viewpoint, and that they need to be retrieved with.that same way of thinking and that san1e
            viewpoint. (Another more formal way of putting is to say that recreating the context of encoding
            at the time of retrieval makes it more likely to remember what was encoded). Most of the
            memories we have from childhood are encoded from a child's point of view, using childlike
            interpretations and childlike terminology. When we grow up, we are unable to access those
            memories because we no longer view the world in that childlike way-we think in adult terms
            and from adult viewpoints, and find it virtually impossible to remember the world the way we
            did when we were children.
'
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                          Encoding Specificity. This idea of encoding specificity may be particularly important in a
                          sexual abuse case, especially involving very young children. Young children (hopefully) do not
                          understand sexual actions and      ~exual   terms as abuse is taking place. It's not at all likely that
                          yotmg children immediately understand that they have been sexually abused. They may have
                          been uncomfortable or upset or scared, but they're likely not able to encode what happened as
                          sexual abuse. Therefore, when asked about sexual abuse as an adult (or an older child), the adult
                          definition of abuse calls to mind different things than were likely .encoded during the abuse as a
                          very young child. This explains why directive and closed questioning often has to be used, and
                          illustrates the difficulty of interviewing children about possible abuse without being suggestive.
                                                       "-.
                          Investigators likely use euphemistic questions about touching and parts of the body touched, and
                          the possibility must at least be considered that children cannot separate innocuous touching (such
                          as diaper changing) from harmful touching. As an example, many children will respond to the
                          closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the
                          doctor just gave the child an injection. The child doesn't understand that the injection was for
                          his/her benefit, and is just as upset with the doctor as would be if he/she had touched the child
                          malevolently.
                          It is vital to !liJderscore that not being able to remember abuse doesn't mean it didn't happen. It
                          is nearly an impossible task to derive the pertinent infonnation without speaking vaguely (with
                          euphemism) or suggesting the possibility of actions with closed questions.
                          Magical Thinkine!fbeory of Mind. Refers to the idea that children in Piaget's Pre-operational
                          stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily
                          bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical
                          thinking is often seen during the grieving process as children are first encountering the concept
                          of death. Not able to understand the finality of death, they rationalize the absence in the only
                          way they have experienced-by assuming the loved one is out of town or has a gone away
                          temporarily but will return. When presented with other information that is outside what they
                          understand (such as the idea that Sam Stone was very clumsy), children of this young age are
                          much more likely than adults to bridge the gap in what they understand than to challenge
                          discrepancies. Often the shortest bridge is to accept what the adult says is true, or to accept what
                          the other children are saying as true, and then build upon that concept subsequently. This
         '   '
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                  happens frequently when children are corrected by their parents about the names of things, colors
                  of things, about language usage and other areas in which they make wrong assumptions. It is a
                  normal part of cognitive development to accept ideas presented by an adult-Piaget calls this
                  assimilation and accommodation. This all relates to the process of the child developing a Theory
                                                                            '
                  of Mind. A Theory of Mind is the understanding that all individuals have their own minds and
                  their own way of seeing the world, and that different people have different opinions and not
                 ~everyone knows the same information. While adults take this for granted, children have to learn

                  this through trial and error. Piaget called this stage "egocentrism", because children do not
                  understand that people have different feelings and desires as they do. Young children often
                  exemplifY egocentrism when, for example, they are asked to show their mother the picture they
                  drew, and they hold the picture out with the back of the picture facing mom and the actual
                  picture visible to them. They feel that because they can see the picture, mom can too. lt's
                  understandable that this concept can be reversed. If a non-fact is suggested to young children as
                  if.it is fact, children are likely to accept this fact because they don't understand that the adult
                  could have a different set of knowledge than they do, or that the adult might be lying or be
                  mistaken. All of this speaks to why young children are more suggestible than adults and have a
                  harder time saying "no" to closed questions.
                  Are there protocols that can be used to reduce the su~&estiveness of child interviews?
                  While there is not a formally-agreed upon process, there are suggestions for how to reduce the
                  likelihood of suggesting information to children:
                     •   Use open-ended questions when possible

                     •   Listen as much as possible and try to let the child be in control of the direction of the
                         conversation
                             o   In other words, refrain from pushing them back towards what is suspected to have
                                 happened as much as possible
                     •   Have someone not emotionally-involved with the situation conduct the interview
                             o   This reduces demand characteristics placed on the child to be a good boy or girl
                                 for a known authority figure

                     •   Attempt to establish rapport with the child with a series of unrelated questions before
                         moving on to the more important questions
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             •   Conduct a formal, documented interview a'i soon as possible after initial outcry. Try to
                 limit other discussions/interviews with family members before this interview, as these
                 discussions can be very suggestive
             •   Limit repeat interviews if possible. The Sam Stone paradigm of research has
                 demonstrated that off-the-cuff and non-factual narrative offered by children in one
                 interview are often recalled as factual memories in subsequent interviews, especially if
                 the content of that narrative is encouraged or met with positive response by the
                 interviewers.
         Ask this if you want, I think it'd be a decent way to end: It's the defense's argument that the
         children in this case were brainwashed to believe that these events happened. Is there any
         evidence in your field that this is possible?
         Brainwashing is really more of a colloquial term than one we use routinely in the field. What
         I'm comfortable saying is that there is .empirical evidence that people can come to remember
         things that didn't occur because that suggestion,was made to them. Sometimes those suggestions
         are deliberate and purposeful, as in the lost in the mall procedure, and other times those
         suggestions are unintentional-such as might occur when an investigator asks if something
         happened.
:                I would reiterate that the biggest and most persistent misconception about memory is that
         once they're formed in the brain, they don't change. Memories are not shrink-wrapped facts
         stored in the brain waiting to be opened. They're reconstructed each time an event is re-
         experienced mentally, and every time that happens whafs re-experienced is different. Ho\h:' you
         ask questions can change how memories are reconstructed, just as how an interviewer responds
         to answers can change how memories are reconstructed next time. It's an incredibly dynamic
         process. I wouldn't call that brainwashing, I would say that memories are very malleable and
         change over time.
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           Baclq:round information

           Just an FYI seclio11-i1 soumL'i like you've already got a lot ofhackgrowzd info. Some of this is
           very similar ro my talk in Houston.


           General Memory O&A
           Probably the most common metaphors used to describe human memory are that "memory
           is a videotape" and "memory works like storage on a computer disk.'' Are these good
           analogies for human memory?
                   No, and this is probably the most important finding of the last 100 years or so in memory
           research. Both videotapes and computer disks are reproductive media, meaning that they store
           information in a more-or-less literal manner.
                   Both represent memory as being static and unchanging, and imply that what is stored in memory
           is always a faithful representation of the actual event. Furthermore, both metaphors suggest that
           memory retains everything that has ever happened to us, implying that all events are ultimately
           retrievable. For example, we may have a difficult time remembering something, just as we might have
           troubling finding a certain 5-second clip on a videotape. Since we will eventually find this 5-second
           segment if we keep rewinding and reviewing the videotape, we often assume memories will be similarly
           accessible.
                   But memory is not like a videotape or hard disk. Videotape and hard disks are
           reproductive storage device, always retrieving the same information. In addition, what is stored
           on the tape or disk is a literal represe11tation of the original event. But memory does not work
           this way. In fact, the single most important principle underlying memory is this: memory is a
           dynamic, creative, and reconstructive process. Memory works by storing bits and pieces of the
           original events, combining those fragments with other sources of information to reconstruct the
           original event.
           What are the basic processes used in memory formation and retrieval?
                  Memory researchers typically speak of memory formation as having three distinct stages,
           encoding ofnew information, consolidation and storage of the information, and retrieval of the
           memory. The process of encoding refers to the conversion of perceptual and sensory
                                                                            ---··---·
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        information into a form that the brain can represent and store. In virtually all cases, encoding
        alters the sensory information in some way In fact, two people listening to the same
        conversation may have drastically different recollections of the same event Memory researchers
        would say that these two individuals encoded the infonnation in different ways.
                A great deal of what we call "forgetting" is often a failure of the encoding process. One
        classic demonstration involves the inability of most people to recall the front of a penny from
        memory. Which way does Lincoln face? Where is the date? What is written across the top and
        bottom of the coin? Some people can get close, but few are able to draw the coin with complete
        accuracy. Even when shown several possible alternatives and asked to identify th~ correct one--
                                                                                               '
        usually, recognition is easier than recall--this task is still difficult We might be tempted to say
        that we ''forgot" what a penny looks like, but it would be more accurate to say we never knew in
        the first place. Memory fails because the information was never encoded to begin with.
                2. Consolidation and Storage
                Consolidation is the term used to refer to the process by which short-tenn memories are
        converted into long-term memories. Consolidation of memories in the brain is something like
        water being frozen into ice cubes. Both processes take time, and both can be disrupted. For
        example, if an ice cube tray filled with water is taken from the freezer and vigorously shaken
        before the cubes have started forming, the process of ice cube formation has been irreversibly
        stopped. Once the water is spilled from the tray, there is nothing that can be done to get that
        water back in. Generally speaking, the degree of disruption is directly related to the severity of
        the injury.
                Storage refers to the preservation of the memory over a period of time. One of the most
        profound generalizations one can make about memory is that memory strength and accuracy
        declines predictably with the passage of time.
                3. Retrieval
                Finally, retrieval is the process of finding and accessing previously stored memories.
        Retrieval does not occur in a vacuum. It is guided by retrieval cues, or bits of information that
        are related to items stored in memory_ Retrieval cues can exert powerful effects on memory.
        Unfortunately, retrieval is the stage of memory where errors are most likely to be introduced
        Memory is a reconstructive phenomenon, and most of the reconstruction occurs during retrieval.
When misleading or biasing cues exist at retrieval, they can seriously compromise the accuracy
                                                                                                       .\
of retrieval.
If memory is reconstructive, then, it must make errors. Has a taxonomy of memory errors
and distortions been developed?
        Harvard University psychologist Daniel Schacter, one of the country's most prolific and
distinguished memory researchers, recently identified seven factors clearly shown to reduce the
                                                         j



reliability of memory. He identifies these as follows:
    •   transience, or forgetting that occurs with the passage of time. As discussed earlier this is
        perh.aps the most profound generalization one can make about memory.
    •   absent-mindedness, a lapse in attention during an event that inhibits (or precludes
        entirely) the successful encoding of a memory. As noted earlier, such encoding failures
        are devastating; one cannot retrieve what was never encoded to begin v.ith.
    •   blocking, or the inability to retrieve information due to interference by other items stored
        in memory. For example, learning a new computer password is often complicated by the
        intrusive recollection of previous passwords.
    •   misattribution, whereby an event that occurred in one context is mistakenly attributed to
        another. Furthermore, sometimes current feelings of familiarity are mistakenly attributed
        to past events. Phenomena such as source confusion and even dej(1 vu result from
        misattri bution.
   •    suggestibility, in which misleading information from external sources are used to
        influence memory. In product identification cases, this can often result from reviewing
        photobooks or reviewing information obtained from Internet searches. (The same factors
        can also result in misattribution, in which a product is identified as familiar, and thus
        selected. Having reviewed the product in a book of photos can induce a sense of
        familiarity, even when a product was never actually used.)
   •    bias, where various factors cause distortions in memory. Change and consistency biases
        cause us to reconstruct the past in a way that is different from (for change biases) or
        similar to (for consistency biases) the present. If memory of our past behavior is
        disturbing in some way, we may reconstruct the memory in a less threatening manner.
        Hindsight biases occur when we reinterpret past events in terms of currently available
.,   '




                 (but initially unavailable) infonnation. Egocentric biases occur when we exaggerate our
                 role or importance in past events. Finally, stereotypical biases influence memory by
                 distorting them based on generic memories, what "usually" or "probably" happened.
             • persistence, in which (usually) emotionally charged memories intrusively come to mind,
                 even when we attempt to suppress them. Persistence is responsible for such clinical
                 phenomena as post-traumatic stress disorder and flashbulb memories.


         Does inaccurate identification by eyewitnesses cause innocent people to be convicted?
                 Memory's reconstructive nature has profound implications one the role eyewitness
         memory testimony in the courtroom. Recent advances in DNA technology has further
         demonstrate eyewitness fallibility. Based on information tracked by the Innocence Project, by
         August, 2007, more that 200 falsely convicted individuals have been exonerated by DNA
         evidence. Mistaken eyewitness identification was involved in more than 75% of those fa.lse
         convictions (see Innocence Project,   2008~   The Justice Project, 2007).


         What kind of errors are common among eyewitnesses?                                                     (

                 1. Source Monitoring and Source Confusion
                 Source monitoring is defmed as the ability to recall not only the content of memories,
         but also the source from which the information was obtained. According to Johnson et al,
         (1993), "source monitoring is based on qualities of experience resulting from combinations of
         perceptual and reflective processes, usually requires relatively differentiated phenomenal
         experience, and involves attributions varying in deliberateness. These judgments evaluate
         information according to flexible criteria and are subject to error and disruption". (p. 3).
                Source confusion, then, results from a failure of source memory. Source confusion
         occurs when information is learned from one source but misattributed to another source. This
         can occur when witnesses are shown photographs of suspects or objects prior to questioning, and
         later are asked to identify the suspects or objects. In cases where the source of the information is
         entirely forgotten, source confusion can still exert effects by increasing self-reported confidence.
                Source confusion can also result from simply thinking about something. For example.
         individuals who are asked to imagine that a remote event happened to them later have difficult)·
----------·




        in distinguishing actual events from imagined events, a phenomenon known as "imagination
        inflation" (M. Garry & Polaschek, 2000; Roediger & McDermott, 2000). A person's subjective
        confidence in these memories is similarly inflated by imagination (Maryanne Garry, Manning,
        Loftus, & Shennan, 1996), further illustrating why confidence is not a reliable indicator of
        accuracy. The erroneous memories are quickly and easily fanned; they can be created in real-
        world settings with a single imagination episode, within a few days of the imagined event
        (Seamon, Philbin, & Harrison, 2006).
                2. Demand Characteristics
                Demand characteristics refer to biases introduced in research by the expectations of the
        researchers, the participants, or both. Well-known "halo effects" often occur in education
        settings, with teachers assigning higher grades to students from which they had expected better
        performance.
                In eyewitness memory settings, demand characteristics operate in any situation where
        there is an expectation of the witness. Most witnesses in criminal cases want to be helpful to the
        investigators, to be "good witnesses." When asked to view lineups in the presence of police
        officers, witnesses frequently make an identification even when they are uncertain (Wells &
        Luus, 1990). For this reason, the US. Dept. of Justice now recommends that lineups be
        conducted by individuals who are unaware which person is the actual suspect (U.S. Department
        of Justice, 1999).
                Demand characteristics combine Schacter's "bias" and "suggestibility."
               3. Leading Questions
               Leading questions, as described in an earlier section, introduce errors through the
        reconstructive processes of retrieval. Information present in the questions themselves becomes
        incorporated into a witness's memory. Furthermore, these effects are persistent; the biasing
        effects may permanently change the memory for an event. Leading questions result from
        Schacter's "suggestibility" and are exaggerated by the problems of transience.
               4~ Hindsight bias.

               Hindsight bias refers to the tendency of witnesses to report higher subjective confidence
        after making an identification than before. The diagnostic value of the confidence judgment,
        however, is impaired. This effect is exacerbated by any verbal reinforcement given after an




---------·-·---- ····---
'   I



        .   \




            identification is made. Wells (Wells & Bradfield, 1998) found that telling eyewitnesses "good,
            you identified the suspect" distorted further report. These biases need not be explicit, however.
                                                                                                                    \

            If a witness makes an identification but is asked to "look again," the implied message (i. e., the
            demand characteristics) is that the first identification was wrong (Wells & Bradfield. 1999).
                    5. Encoding Failures
                    Some memory errors can be overcome. Sometimes retrieval of information is
            temporarily blocked, as in so-called "Tip of the Tongue" states. When retrieval blocks are
            removed (either experimentally, or by the passage of time), the correct answer can often be
            retrieved.
                    Encoding failures, however, are "fatal" memory errors. Information that was never
            encoded in the first place is impossible to retrieve. Poorly encoded information, on the other
            hand, is more likely to suffer suggestibility effects (Hyman & Loftus, 2002).
                   Encoding failures are the cause ofSchacter's "absent-mindedness."
                    6. Post-Event Information
                    Because memories are not static snapshots in time, they can be influenced by events or
            information learned after the event in question. That is, our memories for the past are influenced
            not only by the events itself, but by what we have learned since the event happened. Post-event
            information has its greatest effect when there is a relatively long delay between the-event and
            post-event information and a short delay between the infonnation and the test (Loftus, Miller, &        r

            Burns, 1978). Furthermore, it is difficult or impossible for witnesses to distinguish post-event·
            information from real event information, a phenomenon known as the "knew-it-all-along effect"
            (Metcalfe, 2000).
                   Mazzoni and her colleagues (Mazzoni, Loftus, & Kirsch, 2001) have proposed that the
            creation of false memories can be understood as a   3~phase   process. First, individuals have to see
            the event as plausible, something that could have happened to them. Second, individuals come
            to believe that the event did happen to them, and begin imagining or generating elaborations
            concerning the fictitious event. Finally, individuals begin to mistake these internally generated
            events and details for external, real events (a problem of source confusion).
9/11/2014                                                       Print


    Subject:    RE: Creating memories

    From:       Terrell, Dr. Trent (Tierrell@umhb.edu)

    To:         tiger_russell@att.net;

    Date:       Monday, August 25, 2014 8:40AM




   Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably the earliest
   I could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university
   assembly, so that would be a perfect day for me to be there at any time.



   Thanks ...



  Trent Terrell, Ph.D.

   Associate Professor and Chair, Psychology

   University of Mary Hardin-Baylor

  900 College Street, Box 8014

  Belton, TX 76513

  254-295-4630

  tterrell@umhb.edu




  From: Terence Russell [mailto:tiger_russell@att.net]
  Sent: Sunday, August 24,2014 9:11PM
  To: Terrell, Dr. Trent
  Subject: Re: Creating memories




  I am hopeful. I should know tomorrow if it will be Tuesday or Wednesday.

  Terence A. "Tiger" Russell

  Attorney & Counselor at Law

  PO Box 306
                                                                                     /
  Hillsboro, Texas 76645

about:blank                                                                                                            1/9
 '    '
9/11/2014                                                         Print


      Subject:     Re: Creating memories

      From:        Tiger Russell (tiger_russell@att.net)

      To:          TTerrell@umhb.edu;

      Date:        Tuesday, August 26, 2014 8:57AM




     From discussions with the State and Judge yesterday, it was confirmed that you would not be called
     before Wednesday.

     Terence A. "Tiger" Russell
     Attorney at Law
     PO Box 306
     Hillsboro, Texas 76645

     254-396-3219
     254-582-5593 (fax)

     Sent from my awesome new iPad!

     On Aug 25, 2014, at 8:40AM, "Terrell, Dr. Trent" <TTerreli({V.umhb.edu> wrote:


     Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably the earliest
     I could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university
     assembly, so that would be a perfect day for me to be there at any time.



     Thanks ...



     Trent Terrell, Ph.D.

     Associate Professor and Chair, Psychology

     University of Mary Hardin-Baylor

     900 College Street, Box 8014                                  r

     Belton, TX 76513

     254-295-4630

     ttenc I]((:uum hb .edu




     From: Terence Russell [mailto:tiger russell@att.net]
about:blank                                                                                                                  1/9
     .
 '       <


911112014                                                             Print


         Subject:   Re: Creating memories

         From:      Tiger Russell (tiger_russell@att.net)

         To:        nerrell@umhb.edu;

         Date:      Tuesday, August 26, 2014 4:04PM



     Location is correct. Just talked with Court and judge said it would be safe to be here by 12:30 p.m. State
     has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court
     say we will take early lunch and start earlier following lunch.

     Terence A. "Tiger" Russell
     Attorney at Law
     PO Box 306
     Hillsboro, Texas 76645

     254-396-3219
     254-582-5593 (fax)

     Sent from my awesome new iPad!

     On Aug 26, 2014, at 9:17 AM, "Terrell, Dr. Trent" <TTerrellCw.umhb.edu> wrote:


     Good deaL If you can just let me know sometime tonight what time you think you'll need me, anytime tomorrow
     should work. I would be great with getting there at 9 AM and being first up, if that's when court starts.



     Is this where I'm headed?: Hill County Courthouse, 1 North Waco Street, Hillsboro, Texas 76645



     l updated the direct a little bit (see attached). I really didn't change the content, but I just incorporated some more
     questions for you to ask me so as to keep me on point.
                                                                  \


     Thanks,

     Trent



     Trent Terrell, Ph.D.

     Associate Professor and Chair, Psychology

     University of Mary Hardin-Baylor

     900 College Street, Box 8014

about:blank                                                                                                                    1111
9/11/2014                                                  Print


    Subject:   Re: Creating memories

    From:      Terrell, Dr. Trent (Tierrell@umhb.edu)

   To:         tiger_russell@att. net;

    Date:      Wednesday, August 27, 2014 7:02AM



  Terence,

  I still haven't received any info from you about when I should appear in court. I'm persisting in emailing
  you because you said this was the best way to contact you.

  Lacking any further information, I'm heading into the office this morning. I have obligations there that I
  can work around with notice, but without a concrete time to plan around I have to give my full-time job
  priority. As I said, I have a night class this evening and a 9:30-2:30 teaching schedule
  Tuesday/Thursday. I also 4ave meetings scheduled today that I could've missed, but I'll move forward
  with my regular schedule unless I hear from you very soon.

  Thanks,
  Trent

  Sent from my iPhone

  >.On Aug 26,2014, at 7:40PM, "Tiger Russell" <tiger_russell@att.net> wrote:
  >
  > Did you receive my earlier message about the time?
  >
  >Terence A. "Tiger" Russell
  > Attorney at Law         ·
  >PO Box 306
  >Hillsboro, Texas 76645
  >
  > 254-396-32191
  > 254-582-5593 (fax)
  >
  > Sent from my awesome new iPad!
  >
  >>On Aug 26,2014, at 6:22PM, "Terrell, Dr. Trent" <TTerrell@umhb.edu> wrote:
  >>
  >>Please advise as soon as possible this evening when you'll need me tomorrow, so I can plan out my
  day. It's at least an hour drive, depending on 35. I do have an evening class starting at 6, so need to be
  done before the end of the day in order to get back in time.
  >>
  >>Thanks ..
  >>
  >> Sent from my iPhone
  >>
  >>On Aug 26,2014, at 8:57AM, "Tiger Russell" <tiger_russell@att.net<mailto:tiger_russell@att.net>>
  wrote:
about:blank                                                                                                    1/9
~·   r



9rl 1/2014                                                    Print


         Subject:   Re: Creating memories

      From:         Terence Russell (tiger_russell@att.net)

      To:           TTerrell@umhb.edu;

      Date:         Tuesday, August 26, 2014 10:23 PM



     Judge said it would be safe to be here by 12:30 p.m . State has 3 witnesses for the morning, so we should
     reach you after lunch. If State finishes before lunch, Court say we will take early lunch and start earlier
     following lunch.

     Terence A. "Tiger" Russell
     Attorney & Counselor at Law
     PO Box 306
     Hillsboro, Texas 76645
     254-580-9282
     254-582-5593 (fax)

     On Aug 26, 2014, at 7:41 PM, "Terrell, Dr. Trent" <TTerrell@umhb.edu> wrote:


               No, all I got this morning was that you wouldn't need me before Wednesday. So, what time
               will you need me?

               Sent from my iPhone


                     On Aug 26, 2014, at 7:40PM, "Tiger Russell" <tiger_russell@att.net> wrote:



                     Did you receive my earlier message about the time?



                     Terence A. "Tiger" Russell

                     Attorney at Law

                     PO Box 306

                     Hillsboro, Texas 76645



                     254-396-3219

                     254-582-5593 (fax)



about: blank                                                                                                       1/16
.   ,,




                                      Cause No. 37228

          STATE OF TEXAS                            §        IN THE 66TH JUDICIAL
                                                    §
          vs.                                       §        DISTRICT COURT OF
                                                    §
          JAMES DUVAL RYDER                         §        HILL COUNTY, TEXAS


                     DECLARATION UNDER PENALTIES OF PERJURY

         STATE OF TEXAS,

         COUNTY OF      lie(I
         I, Jonathon Trent Terrell, declare under penalties of perjury that the
         foregoing information and allegations of this Declaration are true and
         correct, and I say:

         1.     I have personal knowledge of the facts stated in this declaration.

         2.     I have not been compelled or threatened to sign this declaration in
                any manner.

         3.     lam signing this declaration knowingly, voluntarily, and freely.

         4.     My date of birth is October 9, 1980.

         5.     I fully understand the contents of this declaration, and I read,
                write, and speak English.

         6.     I am trained in the field of Psychology, specifically Cognitive
                Psychology and Eyewitness Memory.

         7.     I regularly consult and testify as an expert witness on matters
                related to my specialty.

         8.     I am educated as a Doctor of Philosophy in Experimental
                Psychology.
    •.   :




             9.      In addition to consulting and testifying as an expert witness, I am
                     an Assistant Professor and the Chairperson of the Psychology
                     Department at the University of Mary Hardin-Baylor.
/


             10.     I have published numerous articles and presented numerous
                     times on the subject matter of memory formation and retrieval
                     and eyewitness testimony.

             11.     My curriculum vitae is attached as Exhibit A.

             12.    I was contacted initially by Tiger Russell regarding testifying on
                    behalf of the defense in the matter of State of Texas v. james Duval
                    Ryder, Cause No. 37228, in Hill County, Texas.

             13.    Because Mr. Russell did not want to approach the judge about
                    securing funds for an expert witness citing the Defendant's
                    indigence, I agreed to a minimal fee--$1000.00, and was sent a
                    check from Mr. Russell.

             14.    Because I have a full time job at the University of Mary Hardin-
                    Baylor, I told Mr. Russell, in advance and up front, that I must have
                    24 hours notice that my presence would be expected at trial.

             15.    I was not served with a subpoena to appear.

             16.    As the week of the trial began, Mr. Russell was unable to confirm
                    when I would be needed in court.

             17.    It ultimately appeared that I would be needed on August 27, 2014.

             18.    On the evening of August 26, 2014, I emailed Mr. Russell three
                    times, but received no response from him.

             19.    At approximately 10:15 the following morning, August 27, 2014, I
                    received a phone call from Mr. Russell telling me that I would be
                    needed for testimony at 12:30p.m.

             20.    I was not able to retrieve that message and return Mr. Russell's
                    call until approximately noon on August 27, 2014.

             21.    Unfortunately, I could not leave my job responsibilities and travel
                    two hours to Hill County at a moment's notice.


             DECLARATION UNDER PENAL TIES OF PERJURY-DR.JONATHAN TRENT TERRELL       '     2
'.   I




         22.     I have returned the $1000.00 check, un-cashed to Mr. Russell.

         23.     I believe that my testimony would have been material to the
                 defense of James Ryder.

         24.     The attached planned line of testimony would have been my
                 testimony and opinion had I been properly subpoenaed, and I
                 incorporate it in full into this affidavit.

         Further Affiant sayeth not.
                                              DECLARATION



         Under 28 U.S.C. § 1746 and Texas Civil Practice and Remedies Code§
         132.001 et seq., I declare that my name is Jonathan Trent Terrell. I am
         over the age of 18 years, and am competent to make this declaration.
         My date of birth is October 9, 1980. I have not been forced to sign this
         declaration. I declare that under the penal~ies of perjury that all
         assertions provided in this document are correct and true.


                                              2~(/. County, Texas.
         Executed on September 25, 2014, in __,_H_-=--'---,--



                                                         ~
                                                        Jonathan Trent Terrell, Ph. D.




         DECLARATION UNDER PENALTIES OF PERJURY-DR. JONATHAN TRENT TERRELL
                                                                                         3
     't /
11




                                          Cause No. 37228

             STATE OF TEXAS                            §        IN THE 66TH JUDICIAL
                                                       §
             vs.                                       §        DISTRICT COURT OF
                                                       §
             JAMES DUVAL RYDER                         §        HILL COUNTY, TEXAS


                           DECLARATION UNDER PENALTIES OF PERJURY

            STATE OF TEXAS,

            COUNTY OF LEON



                   I, Larenda Nichole Watkins, declare under penalties of perjury
            that the foregoing information and allegations of this Declaration are
            true and correct, and I say:

                  1.     I have personal knowledge of the facts stated in this
            declaration.

                  2.    I have not been compelled or threatened to sign this
            declaration in any manner.

                      3.   I am signing this declaration knowingly, voluntarily, and
            freely.

                      4.   My date of birth is December 29, 1985.

                  5.     I fully understand the contents of this declaration, and I
            read, write, and speak English.

                 6.    I am engaged to be married to James Duval Ryder, the
            Defendant in Cause No. 37228.

                 7.    Because the Defendant was found to be indigent, he was
            appointed an attorney, Mr. Terrence Russell, for his defense.
I   \   I




                  8.   In preparing for trial on this case, Mr. Russell informed us
            that we needed an expert on memory and that the expert's testimony
            would be key to the defense.

                 9.     Mr. Russell did not suggest that he could have the court
            appoint an expert
                    10. Mr. Russell informed tis that to have the expert that was
            vital to the case, and we would need to pay $1500.00 for that expert's
            services.
                  11.   On August 14, 2014, we paid Mr. Russell $1500.00.
                  12.   We received receipt no. 067001 for that payment.

                  13. A photograph was taken of that receipt, a copy of which is
            attached and I incorporate in full into this affidavit.

                   14. Mr. Russell hired Jonathan Trent Terrell, Ph.D. as a
            testifying expert in this case.

                  15. Mr. Russell failed to secure the presence of Dr. Terrell
            through a subpoena.

                  16. Dr. Terrell did not appear and did not testify on behalf of the
            defense in this case.

                 17. Mr. Russell refunded $1000.00 of the $1500.00 payment
            made to him to secure Dr. Terrell's presence at trial.

                  18.   The refund was issued to me by check number 1221.

                  19. A photograph was taken of this check, a copy of which is
            attached and I,incorporate in full into this affidavit.


                  Further affiant says not.
(




,   C.




                                      DECLARATION

         Under 28 U.S.C. § 17 46 and Texas Civil Practice and Remedies Code§
         132.001 et seq., I declare that my name is Nichole Watkins. I am over
         the age of 18 years, and am' competent to make this declaration. My
         date of birth is December 29, 1985. I have not been forced to sign this
         declaration. I declare that under the penalties of perjury that all
         assertions provided in this document are correct and true.

         Executed on September 25, 2014, in Leon County, Texas.


         ~~C/Y·d~/ 6J14:)Je. 0\A~t~~?
         La'renda Nichole Watkins, Declarant
            /




EXHIBIT E
                                                                                                                       1
         •• 'I'll .... ;.~; •

                       '\',:>'~';
                . l.
                          ....
..
''
     ,
                         ,
                        ~·           1                              REPORTER'S RECORD


•••                                  2

                                     3
                                                                  VOLUME 1 OF 1 VOLUME

                                                           TRIAL COURT CAUSE NO.              37,228

                                         STATE OF TEXAS                                     IN THE DISTRICT COURT
                                     4

                                     5   vs.                                                HILL COUNTY,       TEXAS

                                     6
                                         JAMES DUVAL RYDER                                  66TH JUDICIAL DISTRICT
                                     7

                                     8

                                     9
                                                                           onta\ns some
                                                       ·r~1 is documen" c
                                                                      (>
                                                                                   \"hi
                                    10                   ·               f poor qua '"»
                                                        pages that ar~ o .
                                                       at the time of nnagmg.
                                    11

                                    12
                 . ';;tt~                ****************~***************************************




••
         h
..,.
                       . ..   ,     13

                                    14                 HEARING ON MOTION TO RESCIND AND

                                    15                      SECOND MOTION FOR NEW TRIAL

                                    16
                                         ********************************************************
                                    17

                                    18

                                    19                      On the 6th day of November,                2014,    the

                                    20   following proceedings came on to be heard in the

                                    21   above-entitled and numbered cause before the Honorable

                                    22   Alan Mayfield,     Judge presiding,              held in Hillsboro,

                                    23   Texas:

                                    24                      Proceedings reported by machine



••                                  25   shorthand .




                                                                                                   ORIGINAL
                                                      2




•
     1                         APPEARANCES

     2   MS. NICOLE CRAIN
         Assistant District Attorney
     3   SBOT NO. 24034548
         Post Office Box 400
     4   Hillsboro, Texas   76645
         Phone: (254) 582-4070
     5   ATTORNEY FOR STATE

     6

     7
         MS. KRISTIN R. BROWN
     8   The Law Office of Kristin R. Brown,   PLLC
         SBOT NO. 24081458
     9   1701 North Market Street, Suite 402
         Dallas, Texas 75202
    10   Phone: (214) 446-3909
         ATTORNEY FOR DEFENDANT
    11

    12




•
    13

    14

    15

    16

    17

    18

    19

    20

    21

    22

    23

    24




•   25
                                                                                            3


     1                                        VOLUME 1


•    2

     3

     4   November 6,
                       HEARING ON MOTION TO RESCIND AND
                          SECOND MOTION FOR NEW TRIAL


                       2 014                                                  Page   Vol.

     5   Announcements    . . . . . . . . . . . . . . . . . . . . . . . . .     4     1

     6   DEFENDANT'S WITNESSES                 Direct              Cross             Vol.
         Terence Russell                       5' 19                 16               1
     7   Nicole Watkins                          24                  II               1

     8   Defendant Rests                                                       31     1

     9   State Rests    .......................... .                           31     1

    10   Closing Arguments by Ms.              Brown                           31     1

    11   Closing Arguments by Ms.              Crain                           36     1

    12   Closing Arguments by Ms.              Brown,        Cont ...          39     1




•
    13   Court's Ruling     ....................... .                          41     1

    14   Adjournment    .......................... .                           42     1

    15   Court Reporter's Certificate . . . . . . . . . .                      43     1

    16

    17

    18
                                         EXHIBIT INDEX
    19
         DEFENDANT'S
    20   NO.       DESCRIPTION                 OFFERED            ADMITTED           VOL.
         1         Terrell
    21             affidavit                       24                  24             1
         2         Receipt                         28                  28             1
    22   3         Copy of
                   check                           30                  30             1
    23   4         Proposed
                   testimony of
    24             J. Terrell                         9                   9           1
         5 - 9     E-mails                         13                  13             1



•   25
                                           PROCEEDINGS
                                                                                      4




•
     1                      THE COURT:     We are here in Cause Number

     2   37,228      for the purpose of a hearing to determine if the

     3   Court should rescind its prior ruling in regard to a

     4   motion for new trial and to consider the grounds                     for a

     5   possible new trial in the event that it does                  rescind.

     6   And the motion has been filed by Mr.               Ryder's attorney,

     7   Ms.    Brown.    You're ready to proceed?

     8                      MS.   BROWN:   We are ready,        Your Honor.

     9                      THE COURT:     Thank you.

    10                      And the State is ready to proceed?

    11                      MS.   CRAIN:   We're ready,        Your Honor.

    12                      THE COURT:     Thank you very much.




•
    13                      All right.     We 11,    I    think the burden is

    14   on you at this point or at least you'd like it to be.

    15   You'd like to go first,       right?

    16                      MS.   BROWN:   Yes,     please,    Your Honor.

    17                      THE COURT:     Okay.         You may proceed.

    18                      MS.   BROWN:   Your Honor,        do you want to

    19   take up the motion to rescind first               or do you want to

    20   just

    21                      THE COURT:     Let's     just do them together.

    22                      MS.   BROWN:   Okay.         Thank you.

    23                      THE COURT:     I   don't see any reason not

    24   to.     I   think that.the evidence that you want to put on




•   25   in regard to the other one applies to that,                  so --
                                                                                     5


     1                        MS.     BROWN:    Okay.



•    2

     3

     4
                              THE COURT:

         at the same time and then make a

         the end.
                                                -- so I    think we just do both

                                                         ruling when we get to



     5                        MS ..   BROWN:    Okay.     Thank you.    We'll call

     6   Terence Russell.

     7                        THE COURT:        Mr.   Russell.   If you'll raise

     8   your right hand.

     9                           (Witness sworn)

    10                        THE COURT:        Thank you very much.       Please

    11   be seated.

    12                                 TERENCE RUSSELL,




•
    13   having been first duly sworn,                testified as   follows:

    14                                DIRECT EXAMINATION

    15   BY MS.   BROWN:

    16        Q       Good morning.            Could you please state your

    17   name for the court reporter?

    18        A       Terence Russell.            Often I 'm called Tiger.

    19        Q       Tiger,      what do you do for a        living?

    20        A       I 'm an attorney.

    21        Q       Okay.       Were you the attorney appointed to

    22   represent James Duval Ryder in Cause Number 37,228 in

    23   Hill County,      Texas?

    24        A       I   was.




•   25        Q       Okay.       And do you see Mr.        Duval in the
                                                                                 6


     1   courtroom   tod~y?




•    2

     3

     4
              A

              Q
                     I do.

                     Could you identify him for us?

         where he's sitting and describe an article of clothing
                                                                  Just tell us



     5   he's wearing.

     6        A      Yes.        He'd be seated to your right,        and he's

     7   wearing the green jail uniform.

     8                       MS.    BROWN:     The record

     9                       THE COURT:        The record will reflect that

    10   the witness has identified Mr.              Ryder as the person that

    11   was his client at the prior hearing.

    12        Q      (By Ms.       Brown)    And,   Tiger,   were you the




•
    13   attorney for James Russell during the trial on this

    14   matter which began on August 25th of 2014?

    15                       THE COURT:        James Ryder.

    16                       MS.    BROWN:     James Ryder.      Sorry.

    17        A      Yes,    I   was.

    18        Q      (By Ms.       Brown)    Thank you.      What were the

    19   charges in this case?

    20        A      He had one charge of aggravated assault --

    21   sexual assault of a child,            one charge of indecency with

    22   a child by contact,         and one charge of indecency with a

    23   child by exposure.

    24        Q      Okay.        How old was the complaining witness at




•   25   the time of this alleged event?
                                                                                    7




•
     1        A      At the time it happened they -- it was my

     2   belief that they were in -- about two to -- I                  mean,

     3   three to four years old.

     4        Q      Okay.        In contemplation of trial,          did you

     5   contact an expert on July 22nd of 2014 to help in

     6   James's defense?

     7        A       I   did.

     8        Q      And who was this expert?

     9        A      His name was Trent Terrell.

    10        Q      What was Dr.          Terrell's expertise?

    11        A      Dr.    Terrell is an expert on basically memory

    12   and memory development.




•
    13        Q      Okay.        You exchanged e-mails with Dr.          Terrell

    14   regarding his testimony and the questions that you

    15   planned to ask and answers that he expected to be

    16   giving.     Is that correct?

    17        A      That's correct.

    18                          MS.    BROWN:    May I   approach,   Your Honor?

    19                          THE COURT:       You may.

    20        Q       (By Ms.         Brown)    I'm showing you what has been

    21   marked as Defendant's Exhibit 4.                 Do you recognize that

    22   document?

    23        A      I    do.

    24        Q      What do you recognize it to be?




•   25        A      This was the proposed direct examination that
                                                                             8




•
     1   Dr.    Terrell sent me regarding the exact type of

     2   testimony he expected to give in this case.

     3          Q     And were those the questions you planned to

     4 ask him in his direct testimony?

     5          A     Yes.     I would ask him every one of these

     6   questions.

     7          Q     And the answers that he expected to be

     8   giving?

     9          A     Yes.

    10          Q     Okay.     And is this,      in fact,   the Exhibit B

    11   that was attached to your affidavit in our motion for

    12   new trial?




•
    13          A     It is.

    14          Q     Okay.     Is that a true and.correct copy of

    15   that

    16          A     It

    17          Q          affidavit or that exhibit from that

    18   affidavit?

    19          A     It is.

    20          Q     Thank you.

    21                        MS.   BROWN:   Tendering to defense -- or to

    22   the State.

    23                        MS.   CRAIN:   I   have no objection.

    24                        MS.   BROWN:   Offer Defendant's Exhibit 4.




•   25                        THE COURT:     Defendant's Exhibit 4 has
                                                                            9




•
     1   been offered.        No objection has been made.      It is

     2   admit ted.

     3           Q    (By Ms.    Brown)   Tiger,   you believed and still

     4   believe that the testimony of Dr.           Terrell was material
                                                        \
     5   to James's defense.        Is that correct?

     6           A    Not only material but essential to my theme

     7   which I announced in my opening argument.

     8           Q    And what was that?

     9           A    Was that these children were just mistaken

    10   about what they saw and had created the events that they

    11   described from things that they had viewed within the

    12   home.




•
    13           Q    Okay.     Were there other reasons that you

    14   believed that Dr.       Terrell's testimony was material to

    15   James's defense?

    16           A    That was primary the reason I was going to

    17   have him here

    18           Q    Was

    19           A    -- was due to the fact that he could describe

    20   the development of memory and how memories were

    21   developed and how children use various objects and

    22   visions and surroundings -- will incorporate those into

    23   memories that they believe they have.

    24           Q    And who was the witness to that event -- to



•   25   the alleged event?
                                                                           10


     1        A     Kira Ryder and Cole Ryder.



•    2

     3

     4
              Q     Okay.     And these were both very small children

         at the time of the alleged event.

              A     That's correct.

     5        Q     And did you believe that        Dr.   Terrell would

     6   testify that suggestion is a powerful influence on a

     7   young child's memory?

     8        A     Yes.     He would testify to that.

     9        Q     And that that was material to James's

    10   defense?

    11        A     Yes,    it was material.

    12        Q     Did you believe that Dr.        Terrell would testify




•
    13   that children have difficulty in correctly remembering

    14   events

    15        A     Yes.

    16        Q     -- that happened when they were young?

    17        A     Yes.

    18        Q     And do you believe that that testimony is

    19   material and favorable to James's defense?

    20        A     Yes.

    21                      THE COURT:     You know,   what this witness

    22   believed the witness might testify to --

    23                      MS.   BROWN:   What the --

    24                      THE COURT:         is kind of hearsay on top




•   25   of that hearsay .        So i t ' s not terribly relevant.
                                                                                11


     1   However,    Dr.    Terrell's statements as to what he would


•    2

     3

     4
         have been asked and what he would have testified to have

         been admit ted.       So that's there.       Anything else that

         this witness believed is simply a subjective belief that

     5   can't be established unless Dr.            Terrell were here,    and I

     6   understand he's not available.             So --

     7                        MS.   BROWN:   I   understand.

     8                        THE COURT:     Thank you.

     9                        MS.   BROWN:   One note on that,      Your Honor.

    10   Dr.   Terrell is available by phone if we should need him

    11   for anything.

    12                        THE COURT:     Thank you.




    18   would be called after lunch on Wednesday,               August 27th,

    19   2014?

    20           A    We did do that prior to beginning trial on

    21   Monday.

    22           Q    Did you subpoena Dr.         Terrell,    requiring his

    23   presence on August 27th of 2014?

    24           A    I    did not.




•   25           Q    Did you attempt to contact him via e-mail to
                                                                                          12




•
     1   let him know that his presence was needed at 12:30 on

     2   that day?

     3        A       I   did.      On more than one occasion,          actually.

     4                        MS.    BROWN:     May I    approach?

     5                        THE COURT:        Yes.

     6        Q       (By Ms.       Brown)    Tiger,    I'm showing you what has

     7   been marked Defendant's Exhibits 5 through 9.                    Do you

     8   recognize those documents?

     9        A       Yes.       These are hard copies of some e- -- of

    10   some of the e-mails that I was doing with Dr.                   Trent

    11   trying to secure his appearance at trial.

    12        Q       And are these true and correct copies of the




•
    13   e-mails that were exchanged between you and Dr .

    14   Terrell?

    15        A       Yes.

    16        Q       And are these,          in fact,    Exhibits C,    D,    E,   F,

    17   and G from the affidavit that was filed by you with

    18   excuse me,       in conjunction with our motion for new

    19   trial?

    20        A       I didn't file an affidavit

    21        Q       Okay.       I understand.

    22        A       -- but I did create one

    23        Q       You did create one?

    24        A       -- and they were exhibits to that,                yes.




•   25        Q       And this was created with your affidavit.                      Is
                                                                                      13


     1   that correct?


•    2

     3

     4
              A




         objection.
                        Yes.

                                MS.
                                   I   attached those to my affidavit.

                                         CRAIN:    Your Honor,    I   have no



     5                          MS.      BROWN:    Offer Defendant's 5 through

     6   9.

     7                          THE COURT:          5 through 9 are admitted.

     8        Q         (By Ms.         Brown)    Did you -- in your attempts to

     9 contact Dr.          Terrell,       did you try more than one e-mail

    10   address?

    11        A         I   did.

    12        Q         Okay.          Did you ever receive an e-mail




•
    13   confirmation back from him stating that he would be

    14   present at 12:30 p.m.              on August 27th of 2014?

    15        A         I   did not.

    16        Q         When you were unsuccessful at contacting Dr.

    17   Terrell via e-mail,              did you attempt to contact him by

    18   phone?

    19        A         I   did on the day that he was supposed to

    20   testify because I              assumed that maybe he had gotten the

    21   information and just had not responded.

    22        Q         Okay.          Did you,    in fact,   call him on multiple

    23   numbers?

    24        A         I   actually -- yes.           I   called him,   I   called his




•   25   mother,    I   called -- and I            finally called the actual
                                                                              14


     1   psychology department and asked them to have him contact


•    2

     3

     4
         me.



         times,
                   Q     After calling those multiple numbers multiple

                       were you finally able to reach Dr.      Terrell on

     5   August 27th of 2014?

     6             A      I was.    It was sometime between 12:00 and

     7   1: 0 0.

     8             Q     So this was less than an hour before testimony

     9   would resume?

    10             A     That's correct.

    11             Q     And before he was supposed to be there to

    12   testify?




•
    13             A     That's correct .

    14             Q     Where would Dr.     Terrell have been traveling

    15   from?

    16             A     He would -- he is the psychology chair at Mary

    17   Hardin Baylor,          and I   believe that's in Belton.

    18             Q     That's about two hours      aw~y.   Is that

    19   correct?

    20             A     I wouldn't say two,      but somewhere between one

    21   and two.

    22             Q     Okay.     Did Dr.   Terrell ultimately appear to

    23   testify on behalf of James?

    24             A     No .




•   25             Q     Did you move the Court for a continuance so
                                                                              15


     1   that you could secure Dr.               Terrell's presence?


•    2

     3

     4
              A

         to appear,

         to that date,
                      Dr.   Terrell did tell me when he would be"able

                          and I did ask the Court to continue the trial

                             which would have been Thursday afternoon,

     5   I believe.

     6        Q       Was that motion granted?

     7        A       No.

     8        Q       Do you believe that Dr.            Terrell would have

     9   been present to testify on behalf of the defense had you

    10   properly secured his presence via subpoena or some other

    11   method?

    12        A       I   do.




•
    13                          MS.    CRAIN:    Your Honor,   I'm going to

    14   object.   That calls for speculation.

    15                          THE COURT:       Sustained.

    16        Q       (By Ms.         Brown)    Did you have any trial strategy

    17   in not subpoenaing Dr.            Terrell?

    18        A       No.

    19        Q       Do you believe that you were ineffective as

    20   trial counsel in not securing the presence of a material

    21   witness on behalf of the defense?

    22        A       I do,      regrettably.

    23        Q       Is it your belief that the outcome of trial

    24   would have been different had you not been ineffective




•   25   in your representation?
                                                                                      16


     1           A      Yes .


•    2

     3

     4
         James,
                 Q



                 A
                        You were appointed by the Court to represent

                      correct?

                        That's correct.

     5           Q      Okay.        Did you seek to have Dr.        Terrell

     6   appointed by filing an Ake motion?

     7           A      No.

     8           Q      Why not?

     9           A       I   did not really discover that Dr.           Terrell

    10   might be useful to our case until like right before the

    11   trial,      and I    felt     like it was probably a        little bit too

    12   late to be asking the Court to appoint an expert at that




•
    13   point .       So we were able to retain him.

    14           Q       So you hired Dr.         Terrell?

    15           A       The family did.          Yes.

    16           Q       So it wasn't with your own funds.               It was from

    17   funds       from James's family.

    18           A      That's correct.

    19           Q      Okay.

    20                           MS.   BROWN:     Pass the witness,     Your Honor.

    21                                  CROSS-EXAMINATION

    22   BY MS.      CRAIN:

    23           Q      Now,     in regards to Mr.        Terrell,   what did you

    24   provide him for trial preparation?




•   25           A       I   sent him,     I   believe,   the offense reports.        I
                                                                                   17


     1   believe that's all I       sent him,      was    just the offense


•    2

     3

     4
         reports,

         alleged.

              Q
                    so he would have some kind of idea what was



                      Okay.     So if he stated in his affidavit that

     5   he was only provided with the outcry notice,               then that

     6   would be incorrect?

     7        A       No.     That may be what I         did send him.    My -- I

     8   was trying to recollect.          I    knew I    didn't send him very

     9   much because I       wanted him to just basically testify as

    10   to generalities and not specifically to this situation.

    11        Q       Okay.     And he had not interviewed the

    12   defendant?




•
    13        A       No.

    14        Q       And he had not interviewed the victim?

    15        A       No.

    16        Q       And you       I   mean,    just to clarify,    you only

    17   wanted him to testify to generalities and nothing

    18   specific in regards to this case?

    19        A       Yes.

    20        Q       Okay.

    21        A       And that    just -- or I      did -- yeah.     I   did not

    22   expect him to testify regarding the specific incident in

    23   this case but just to the development of memory and

    24   where children's memory exist at the time that these




•   25   children initially indicated that these offenses had
                                                                               18


     1   occurred .


•    2

     3

     4
         Mr.
               Q



         Terrell.
                   I
                       Okay.     And you had an oral contract with

                       can't remember what his last name is,

                        Is that correct?
                                                                    but Mr.



     5         A        I   believe so.

     6         Q       To appear?

     7         A        I   believe so.

     8         Q       Okay.     You had contacted him by phone,      and it

     9   was       you felt     like that he had agreed to appear?

    10         A       We had been communicating via e-mail.

    11         Q       Okay.     And y'all had agreed even on a price in

    12   regards to this case on how much he would accept for his




•
    13   testimony?

    14         A       We did agree on the price.

    15         Q       Okay.     So while you did not subpoena him,      you

    16   did have an oral contract with him to appear as an

    17   e~pert    in this case,     you believed?

    18         A       I'd have to review the actual correspondence

    19   we had to find out if there actually had been an

    20   acceptance of that because I do know that he did tell me

    21   at one time that if for some reason he could not

    22   testify,      he would refund the money.      So it had to

    23   whether he -- you know,          the scheduling was very

    24   important to him when he was going to appear.




•   25         Q       Okay.     So he had not made it clear to you that
                                                                                 19


     1   he was going to be available for this trial?


•    2

     3

     4
              A

         certain day,

              Q
                      He stated that he could be available on a



                      Okay.
                            yes,    and certain time.

                                   And you testified that these were some

     5   of the e-mails that y'all had exchanged between the two

     6   of you.     Were there other e-mails in regards to date and

     7   time and appearance?

     8        A       No.     I believe that's all of them.

     9        Q       And he stated that he could not appear until

    10   almost the close of business 4:00 on Thursday afternoon,

    11   correct?

    12        A       That's correct,         due to his class schedule and




•
    13   other commitments he had .

    14                        MS.    CRAIN:    I ' l l pass the witness.

    15                              REDIRECT EXAMINATION

    16   BY MS.    BROWN:

    17        Q       Mr.    Russell,    had you subpoenaed him,      he would

    18   be required by the Court by law to be here,               right?   Is

    19   that correct?

    20        A       That's my understanding of the law.

    21        Q       Okay.        Did you ever at any time believe that

    22   you had actually secured his presence for Wednesday

    23   afternoon at 12:30?

    24        A       No.     He -- I tried to notify him more than




•   25   once via e-mail of the date and time that we had
                                                                           20


     1   secured,    which was going to be within the window he

~    2   discussed.     He never responded to any of those e-rnails,

     3   and then actuaily it was two or three days after the

     4   trial was over I      started getting these Daemon failure

     5   notices or whatever they call those things corning back

     6   saying that he -- that those e-rnails had not even gone

     7   through to him.

     8          Q     So although you had an oral contract with him

     9   to testify on James's behalf if the date and time could

    10   be worked out,      you were never able to let him know that

    11   that date and time actually was worked out.

    12          A     That's correct.

    13                       THE COURT:     You could have telephoned

~   14   him,   and you did eventually telephone him and talk to

    15   him on the telephone.       Is that correct?

    16                       THE WITNESS:     That's correct,   Your Honor.

    17                       THE COURT:     Okay.   And you were able to

    18   reach him by telephone.

    19                       THE WITNESS:     With great difficulty,    yes.

    20                       THE COURT:     And you reached him on the

    21   day,   Wednesday,    prior to proceeding forward with the --

    22   your presentation of the defense.

    23                       THE WITNESS:     That's correct,   Your Honor.

    24   It was -- I    contacted him at lunchtime on Wednesday

    25   because I    was wanting to make sure that he was going to
~
                                                                                    21


     1   be here after lunch as we had planned .



•    2

     3

     4
                              THE COURT:     Thank you.        Now,

         represent to the Court that you had paid him a thousand

         dollars out of your personal funds?
                                                                      did you not




     5                        THE WITNESS:     I   don't think I       said out of

     6   my personal funds,       no,   Your Honor.

     7                        THE COURT:     Well,    that's what I

     8   remembered you saying to me.              And did I     not tell you

     9   that you shouldn't have done that but that you should

    10   have petitioned the Court so that                    the Court would

    11   have paid experts and that attorneys are not expected to

    12   pay experts for their appointed clients?




•
    13                        THE WITNESS:     I   do recall the Court

    14   advising me of such.

    15                        THE COURT:     Okay.     On the petitions here

    16   it indicates that you received $1500 from Mr.                  Ryder's

    17   family?

    18                        THE WITNESS:     That's correct,         Your Honor.

    19                        THE COURT:     You sent a thousand dollars

    20   to Dr.    Terrell?
                                                          \


    21                        THE WITNESS:     That's correct,         Your Honor.

    22                        THE COURT:     He returned the thousand

    23   dollar check uncashed?

    24                        THE WITNESS:     That's correct,         Your Honor.




•   25                        THE COURT:     And you've returned that
                                                                             22


     1   money to the family?


•    2

     3

     4   difference?
                           THE WITNESS:

                           THE COURT:
                                            I have,   Your Honor.

                                          What about the $500



     5                     THE WITNESS:     That's still in my trust

     6   account currently.

     7                     THE COURT:     The check that was returned

     8   was on your personal account.

     9                     THE WITNESS:     That's correct,      Your Honor.

    10                     THE COURT:     So you put 500 in your trust

    11   account and put the balance of the money in your

    12   personal account,     paid it out of the personal account to




•
    13   Dr.   Terrell,   and you have a separate trust account that

    14   holds $500?      You didn't put the entire amount in your

    15   trust account?

    16                     THE WITNESS:     Well,   that is my trust

    17   account,   Your Honor.

    18                     THE COURT:     You use your personal account

    19   as your client trust account?

    20                     THE WITNESS:     I   -- generally I    just put

    21   the money in there and write the check.          That's the way

    22   I do it.

    23                     THE COURT:     You do not have a separate

    24   trust account?




•   25                     THE WITNESS:     I'm in the process of doing
                                                                            23


     1   that currently,    Your Honor .     I've had some difficulty


•    2

     3

     4
         getting the bank to understand what I want,

         have to go to a different bank.

                           THE COURT:      Thank you.
                                                                so I may




     5                     MS.    BROWN:   I have, no further questions,

     6   Your Honor.

     7                     THE COURT:      Any other questions from the

     8   State for this witness?

     9                     MS.    CRAIN:   I have no further questions.

    10                     THE COURT:      You may step down.

    11                     As I    recollect the evidence at the trial,

    12   the child testified of an -- the incidents occurring




•
    13   when she was age six.

    14                     MS.    CRAIN:   That is my recollection as

    15   well,   Your Honor,     when she was five and six.

    16                     THE COURT:      The record will show that,

    17   but not when she was three or four.            The brother was

    18   three or four.     He did not testify and was not a

    19   testifying witness at the trial.

    20                     MS.    BROWN:   Your Honor,    I would ask the

    21   Court at this time to take judicial notice of the

    22   Court's file,    particularly the lack of an Ake motion.

    23                     THE COURT:      The Court will take judicial

    24   notice of the Court's file.




•   25                     MS.    BROWN:   And,   Your Honor,   regarding
                                                                                  24


     1   our unavailable witness,           Dr.   Terrell,   the defendant


•    2

     3

     4
         would like to admit his affidavit testimony and the

         incorporated exhibits which I

         Exhibit 1.
                                                    have marked as Defendant's



     5                       MS.   CRAIN:     Your Honor,      I   have no

     6   objection to that.         I believe that affidavits are

     7   allowed in motions for new trial.

     8                       THE COURT:       Defendant's Exhibit 1 is

     9   admitted.

    10                       MS.   BROWN:     Your Honor,      at this time we

    11   would call Nicole Watkins.

    12                       THE COURT:       Ms.   Watkins.       Please raise




•
    13   your right hand .

    14                        (Witness sworn)

    15                       THE COURT:       Thank you.

    16                               NICOLE WATKINS,

    17   having been first duly sworn,              testified as follows:

    18                             DIRECT EXAMINATION

    19   BY MS. BROWN:

    20        Q       Good morning.

    21        A       Good morning.

    22        Q       Please state your name for the record.

    23        A       Nicole Watkins.

    24        Q       And,   Nicole,   how old are you?




•   25        A       28.
                                                                           25


     1        Q    Okay.     Do you know James Ryder?



•    2

     3

     4
              A

              Q

              A
                   Yes.

                   James Duval Ryder.

                   We're currently engaged.
                                                And how do you know him?



     5        Q    Okay.     And is he in the courtroom today?

     6        A    Yes.

     7        Q    Could you tell me where he is sitting and

     8   describe what he's wearing?

     9        A    Yes.     He's to the right of you and he's

    10   wearing a green jumper.

    11        Q    Okay.

    12                     MS.    BROWN:     Record reflect that the




•
    13   witness has identified James Ryder .

    14                     THE COURT:        So noted.

    15        Q    (By Ms.       Brown)    And is James the subject of the

    16   Hill County Cause Number 37,228?

    17        A    Yes.

    18        Q    And that is the case that we are here for

    19   today on a motion for new trial?

    20        A    Yes.

    21        Q    Nicole,       after James was charged in this case,

    22   was he appointed an attorney due to being unable to

    23   afford one on his own?

    24        A    Yes.




•   25        Q    Okay.     And who was the attorney that was
                                                                          26


     1   appointed to represent James?


•    2

     3

     4   Mr.
               A

               Q
                    Terence Russell.

                    Okay.     During the preparations for trial,

               Russell inform you that an expert was needed for
                                                                    did



     5   James's defense?

     6         A    Yes,    ma'am.

     7         Q    And did Mr.       Russell tell you that this expert

     8   was vital to James's defense?

     9         A    He said that he was very well needed in this.

    10         Q     Did he find a suitable expert?

    11         A    Yes.

    12         Q    Who was that?




•
    13         A    Mr.    Terrell.

    14         Q    Jonathan Terrell?

    15         A    Yes.     Yes,    Trent Terrell.

    16         Q    Did Mr.    Russell tell you that he would try to

    17   have the Court appoint Dr.        Terrell as an expert?

    18         A    No.

    19         Q    Did he suggest that was an option?

    20         A    No.

    21         Q    Did he ask for the family to come up with the

    22   payment for that expert?

    23         A    Yes.

    24         Q    Okay.     How much did Mr.    Russell tell you was




•   25   needed?
                                                                               27


     1           A    1500.


•    2

     3

     4
                 Q

                 A

                 Q
                      Did you pay that amount?

                      Yes.

                      Who did you pay that to?

     5           A    To Mr.    Russell.

     6                        MS.    BROWN:    Approach the witness,   Your

     7   Honor?

     8                        THE COURT:       You may.

     9                        MS.    BROWN:     (Indicating)

    10                        MS.    CRAIN:     I have no objection.   No

    11   objection.

    12           Q    (By Ms.       Brown)    I 'm showing you what has been




•
    13   marked as Defendant's Exhibit 2 .             Do you recognize

    14   that?

    15           A    Yes.

    16           Q    And what do you recognize it to be?

    17           A    That's the receipt for the 1500 for the

    18   expert.

    19           Q    And is that a true and correct copy of the

    20   receipt that you received on that day?

    21           A    Yes,    ma'am.

    22           Q    And who is that signed by?

    23           A    Mr.    Russell.

    24           Q    Okay.     And what was the amount on that?




•   25           A    1500.
                                                                                   28


     1                And what was the date of that receipt?


•
                Q

     2          A     August 14th.

     3          Q     And was the number of that receipt 067001?

     4          A     Yes.

     5                          MS.    BROWN:    Offer Defendant's Exhibit 2.

     6                          THE COURT:        Defendant's 2 is offered.     No

     7   objection.        It   is admitted.

     8          Q     (By Ms.         Brown)    Did you believe that

     9   Mr.    Russell had hired Dr.            Terrell to appear on James's

    10   behalf?

    11          A     Yes.

    12          Q     And that Mr.         Russell would use whatever legal




•
    13   means necessary to secure his presence at trial?

    14          A     Yes.

    15          Q     Okay.       Did Dr.       -- or did Mr.   Russell subpoena

    16   Dr.    Terrell?

    17          A     No.

    18          Q     Did Dr.         Terrell appear and testify on James's

    19   behalf?

    20          A     No.

    21          Q     Did Mr.         Russell refund you the $1500 paid to

    22   secure the presence of Dr.               Terrell at trial?

    23          A     He refunded a thousand.

    24          Q     Okay.       How was that partial refund given to




•   25   you?
                                                                             29




•
     1           A   A check.

     2                       MS.    BROWN:    Permission to approach?

     3                       THE COURT:       You may.

     4           Q   (By Ms.       Brown)    I'm showing you what has been

     5   premarked as Defendant's Exhibit 3.             Do you recognize

     6   that?

     7           A   Yes.

     8           Q   What do you recognize it to be?

     9           A   The check for the refund for the thousand

    10   dollars.

    11           Q   And is this photograph of this check that you

    12   received a true and correct copy?




•
    13           A   Yes.

    14           Q   Okay.     And who is that signed by?

    15           A   Mr.    Russell's wife.

    16           Q   And what account is that drawn on?

    17           A   Terence A.       Russell and Susan Russell.

    18           Q   Okay.     Check Number 1221.        Is that correct?

    19           A   Yes.

    20           Q   And what is the amount of that check?

    21           A   1,000.

    22           Q   And the date?

    23           A   9-6 of    '14.

    24           Q   Okay.




•   25                       MS.    BROWN:    Offer Defendant's Exhibit 3.
                                                                              30


     1                       THE COURT:       Any objection to 3?


•    2

     3

     4
         in the --
                             MS.    CRAIN:



                             THE COURT:
                                              Your Honor,   was that included



                                               I think that she showed that

     5   to you a moment ago.          I don't know if it's included in

     6   the others.

     7                       MS.    CRAIN:     I don't think -- I have no

     8   objection.

     9                       THE COURT:        Defendant's 3 is admitted.

    10           Q    (By Ms.      Brown)    Who was that delivered to you

    11   by?

    12           A    The check?




•
    13           Q    (Moving head up a'nd down).

    14           A    From his wife.

    15           Q    And have you received any further refund from

    16   Mr.   Russell?

    17           A    No,   ma'am.

    18                       MS.    BROWN:    No further questions for this

    19   witness.

    20                       MS.   CRAIN:     Your Honor,   I have no

    21   questions of this witness.

    22                       THE COURT:       Thank you.    You may step

    23   down.

    24                       MS.    BROWN:     Defense rests,   Your Honor.




•   25                       THE COURT:        Defense rests.    Does the
                                                                              31


     1   State wish to present anything?


•    2

     3

     4
                        MS.

         present any evidence,
                               CRAIN:



                        THE COURT:
                                         The State does not wish to

                                  Your Honor.

                                         Thank you very much.        We'll

     5   take a short break.     The Court will review the exhibits

     6   and then come back with a ruling.

     7                  MS.    BROWN:    Could we argue on that,       Your

     8   Honor?

     9                  THE COURT:       Sure.     Let's take a short

    10   break and let me review the exhibits before you argue.

    11                  MS.    BROWN:    Thank you.

    12                  THE COURT:       Thank you.




•
    13                  (Recess from 9:44a.m.          to 10:00 a.m.)

    14                  THE COURT:       Okay.     The Court will

    15   entertain closing statements at this point.

    16                  MS.    BROWN:    Thank you,    Your Honor.     First

    17   I'd just like to note for the record that the sentence

    18   in this case was imposed on August 28th of 2014, making

    19   our 75-day window on which the Court can rule on this

    20   matter open through November 11th of 2014,         next week.

    21                  On our motion to rescind,         defendant would

    22   request that you grant our motion to rescind the order

    23   denying the first motion for new trial,         which was filed

    24   by his trial counsel Mr.       Russell.    It was simply a form




•   25   motion and was not in any way substantive .
                                                                               32




•
     1                     If the Court does not grant our motion to

     2   rescind,    this hearing and the record created is a legal

     3   nullity.     Even if you're not inclined to grant our

     4   second motion for a new trial,        we ask that you please

     5   grant our motion td rescind so that we -- so the

     6   appellate court on direct appeal will have the benefit

     7   of this record.        As Your Honor has noted,    much time and

     8   effort has been put into this by all sides,          you being

     9   here today and taking the time to get James here today

    10   and everything else.         It would be a   shame for that to be

    11   for nothing,    and even if you choose not to grant our

    12   second motion,        it saves the County money and the




•
    13   taxpayers money to be able to have this record to be

    14   able to use on direct appeal instead of having to go

    15   through the appellate process to a writ process.              So we

    16   would ask that you please grant our motion to rescind.

    17                     Regarding the motion for new trial,

    18   defendant requests the Court grant our motion for new

    19   trial based on the ineffectiveness of trial counsel.              In

    20   order to show effective assistance,          two things are

    21   required.     First we must show that trial counsel's
                           (

    22   performance wai deficient at trial,          and we must show

    23   that the deficient performance prejudiced the defendant.

    24   These two components must be proven to a preponderance




•   25   of the evidence .
                                                                            33


     1                      Regarding counsel's deficient


•    2

     3

     4
         performance,      where it can be argued that counsel made a

         decision based on reasonable strategy,

         shouldn't find a deficiency.
                                                         the Court

                                              That can exist here,

     5   though,    because trial counsel has admitted both in his

     6   affidavit and before the Court today in his testimony

     7   that he had every intention of having Dr.          Terrell here;

     8   that Dr.    Terrell's testimony was material to the defense

     9   of James Ryder;      that he was,   in fact,   deficient in

    10   failing to secure Dr.        Terrell's presence;   that he had no

    11   strategic method or decision or anything that went into

    12   his not having Dr.      Terrell here.     There was no strategy




•
    13   involved.     Therefore,     trial counsel's performance must

    14   be found to be deficient because a reasonable attorney

    15   would have done so.

    16                      Second,   prejudice to the defendant.      To

    17   demonstrate prejudice from the failure to call a

    18   witness,    it must be shown that the witnesses would have,

    19   in fact,    testified and that the testimony would have

    20   been favorable to the accused.          You have testimony in

    21   front of you via Defendant's Exhibit 1,          the affidavit of

    22   Jonathan Trent Terrell and his incorporated exhibits,

    23   that show that if he had been subpoenaed or otherwise

    24   secured,    Dr.   Terrell would have been present to testify




•   25   at trial;    that Dr.   Terrell would have testified as to
                                                                               34


     1   the susceptibility of young children to suggestion and


•    2

     3

     4
         what is remembered;

         childhood amnesia,

         is remembered;
                                  that all persons are subject to

                                 a period in which little to nothing

                             that the complaining witness was in this

     5   age that would be affected by childhood amnesia;          that a

     6   child often believes they are telling the truth and is,

     7   in fact,      credible even though what they say may have

     8   little to no truth to it because of false memory;             and

     9   Dr.   Terrell believed his testimony would not only be

    10   favorable to the defense,      but material.

    11                      Regarding what opposing counsel said

    12   regarding no specifics of the case would be testified




•
    13   to,   Dr.   Terrell stated that each case is different,         but

    14   especially in cases of alleged sexual abuse,         his role is

    15   not to interpret the specifics of what happened,          but

    16   whether to talk about factors      that have been shown to

    17   affect the reliability of such memories in young

    18   children.

    19                      Trial counsel also testified that Dr.

    20   Terrell's testimony would have been favorable and was

    21   vital to his defense.       Because Dr.   -- or counsel '.s

    22   performance at trial in failing to secure the presence

    23   of Dr.      Terrell was deficient and because that prejudiced

    24   the defendant and there was a      reasonable likelihood that




•   25   the outcome of the trial would have been different had
                                                                                 35


     1   Dr.   Terrell's presence been secured,        a motion for new


•    2

     3
         trial should be granted,



     4 May I approach,
                                         Your Honor.

                          I have a case on point,

                            Your Honor?
                                                            Ex Parte Briggs.



     5                    THE COURT:      You may.

     6                    MS.   BROWN:    Out of the Court of Criminal

     7 Appeals in 2005 in which trial counsel did not secure

     8   the -- secure an expert because -- in this situation

     9 because they wanted -- paid for the expert.                  The Court

    10   stated that a reasonably competent attorney,               regardless

    11   of whether he is appointed        o~   retained,    must seek to

    12   advance the client's best interest in a reasonably




•
    13   competent matter.      In that case the clear and obvious

    14   defense was one that was recognized,          f ocu·s ing on the

    15   medical history and the cause of death of the child.                   In

    16   this case it was also recognized by trial counsel,               and

    17   it was focusing on the reliability of children's

    18   memories.

    19                    In that case the Court said a reasonably

    20   competent attorney where the applicant could not come up

    21   with fees for medical experts would either subpoena the

    22   treating doctors or would withdraw from the case or

    23   would file an Ake motion.         Your Honor,      Mr.   Russell did

    24   not subpoena Dr.    Terrell.      He has admitted that both in




•   25   his affidavit and today in testimony .             He did not
                                                                           36




•
     1   attempt to withdraw from the case,        and we know that he

     2   did not file an Ake motion either.

     3                      The Court stated that the failure by an

     4   attorney to take any steps to subpoena a treating

     5   doctor,     withdraw from the case,    or file an Ake motion

     6   provided ineffective assistance of counsel,          it

     7   constituted a deficient performance,        and in that case it

     8   did prejudice the defendant because the examination

     9   would raise considerable doubt as to the reliability of

    10   the records.

    11                      And in that -- in this case the testimony

    12   of Dr.    Terrell would have raised doubt as to the




•
    13   reliability of the child witness's memory.           So,   in fact,

    14   it was material to the defense,        it was favorable to the

    15   defense,     and it would have changed -- and it could have

    16   changed the outcome of the trial.         And we would ask that

    17 you grant our motion for new trial.
    18                      THE COURT:     You may proceed.

    19                      MS.   CRAIN:   Your Honor,   the State would

    20   object to this amended motion for new trial under

    21   21.4 (b),    which states that the time to amend on a motion

    22   for new trial is within 30 days after the date when the

    23   trial court imposes or suspends sentence in open court,

    24   but before the Court overrules any preceding motion for




•   25   a new trial,     and that -- then it goes on to say,
                                                                          37




•
     1   Defendant may,   without leave of court,    file one or more

     2   amended motions for new trial.

     3                    In this particular situation we would

     4   object to the amended motion for new trial being timely

     5   filed as the Court had previously overruled -- I mean,

     6 had previously overruled the motion for new trial,           and

     7   we would ask the Court to rely on its initial ruling in

     8   this case.

     9                    In regards to the determination on

    10   whether or not counsel is ineffective in providing

    11   expert witness testimony,   there is no blanket rule that

    12   if counsel does not provide an expert's testimony in a




•
    13   sexual assault case that that is first,      per se,

    14   ineffective assistance of counsel,      Your Honor.

    15                    It should be -- and,   in fact,   in this

    16   particular situation what you have to show is that the

    17   witness would have been -- or that the witness was

    18   unavailable and that -- well,    I guess technically that

    19   the witness was available to testify at trial and that

    20   the result of the proceeding would have been different.

    21                    In this particular situation that is not

    22   true.   It is very clear from the testimony that Mr.

    23   Terrell made himself unavailable,    Your Honor.       It sounds

    24   like it was -- precautions were put in place to have him



•   25   here and he was -- he made himself unavailable to the
                                                                                 38




•
     1   Court when he knew that he was requested to be here .

     2   Belton is maybe an hour,       at most an hour and a half

     3   away.     We're talking about 12:00 in the afternoon.             He

     4   could have been here well before the close of business

     5   on that day,    and he chose to make himself unavailable to

     6   the Court.

     7                     Your Honor,    also,   the testimony has been

     8   from affidavits as well as from Mr.          Russell that it was

     9   just going to be generic testimony,          that it was nothing

    10   specific to the facts of this case,          and,    therefore,   Your

    11   Honor,    there is nothing that would change the result.

    12   You're just testifying to generalities,             and there's




•
    13   nothing specific to the case that can point out and say,

    14   Hey,    this was wrong,    this was wrong,    this is why in this

    15   case the memory of the child is ineffective,               this is why

    16   the -- her memory has been influenced -- improperly

    17   influenced.     And there was nothing from that case -- in

    18   this case.

    19                     And,    in addition,   Your Honor,       the defense

    20   counsel had the opportunity to cross-examine the State's

    21   witnesses in regards to these matters and,             in fact,   did

    22   cross-examine in regards to several memory issues and

    23   procedures used.     And therefore         and he presented his

    24   defense through othe.r witnesses as well,           and,    therefore,



•   25   he had the opportunity to put on his case.
                                                                               39




•
     1                     It's not reasonable to say that if you

     2   just present general and unspecific testimony in regards

     3   to a case where a child is younger that that's

     4 automatically going to be reasonable doubt in the minds

     5   of the   juries because then the State could never get a

     6   conviction if an expert was presented that said a child

     7   was of that age.        And,   therefore,   that does not show

     8   that the result of the proceeding would have been

     9   different in any way.

    10                     And,    Your Honor,   in addition,      in this

    11   situation I    think i t ' s clear that even in the situation

    12   where Mr.    Russell hadn't contacted an expert,           he would




•
    13   not have been ineffective for not providing an expert in

    14   this case.     And,   therefore,    the fact   that Mr.    Terrell

    15   did not make himself available to the Court is something

    16   similar,    and by not providing an expert in the case,

    17   i t ' s not automatically going to be ineffective

    18   assistance of counsel since i t ' s not necessary in every

    19   case to provide an expert.

    20                     And that's all we have,       Your Honor.

    21                     THE COURT:       Thank you very much.

    22                     Anything further?

    23                     MS.    BROWN:    Brief response on the

    24   timeliness issue,       Your Honor.     As the Court will note




•   25   from the Court's file,         the motion to rescind and the
                                                                               40


     1 motion for new trial filed by us was filed within the


•    2

     3
         30-day time line on September the 26th of 2014.

         noted in our motion to rescind in State versus

     4 Awadelkariem -      sorry if I did not pronounce that right -
                                                                    And as




     5   874 S.W.2d 721,    texas Court of Criminal Appeals 1998,          a

     6   court can rescind orders granting or denying motions for

     7   new trial so long as it does so within the 75-day limit.

     8   As -- and as we've discussed,         we are within that limit.

     9                     THE COURT:      Thank you very much.

    10                     MS.    BROWN:   Thank you.

    11                     MS.    CRAIN:   Your Honor,   if I may just

    12   briefly respond to that?




•
    13                     THE COURT:      Yes .

    14                     MS.    CRAIN:    I would point out to the

    15   Court that it's actually at 974.          When I was looking it

    16   up last night,    I did notice that,      so just for the Court.

    17                     But,    also,   in State versus Moore,   225

    18   S.W.3d 556,   the Court of Criminal Appeals,        in that case

    19   the defendant filed a motion outside of the 30 days,             and

    20   the Court said that the Court did have jurisdiction to

    21   hear that motion as long as the State did not object,

    22   and that's why the State has objected under 21.4 in this

    23   case,   so that 21.4 will take application.

    24                     MS.    BROWN:   Brief response,   Your Honor?




•   25                     THE COURT:       I understand that you filled
                                                                             41


     1   within the 30 .


•    2

     3

     4   what they are,
                              MS.   BROWN:

                              THE COURT:
                                             Exactly.

                                             Okay.
                                                        Thank you.

                                                     And the filings are

                              so I ' l l take a look at that and somebody

     5   smarter than I       am can review those issues if they come

     6   up at that level.

     7                        At this point in time,     having considered

     8   the evidence in the motion that was brought forward

     9   today -- in the motion brought forward today under the

    10   Court's direction,         I've been requested to rescind and

    11   then hear the motion for -- another motion for new

    12   trial.     The Court is of the opinion that the evidence




•
    13   that's been submitted today,           were it to be heard as a

    14   motion for new trial,         would be irrsufficient to grant a

    15   new trial anyway.          But in addition to that,    since that's

    16   the case,    there's no need for the Court to rescind its

    17   first order.      So at this point the Court denies the

    18   motion to rescind its previous order denying the motion

    19   for new trial and denies also -- were it to have done

    20   that,    it would have denied this motion for new trial

    21   that's present·today.          If, that's error,   there's others

    22   that can    deci~e    that,   but I don't believe it is.     I

    23   don't think that there's sufficient evidence to justify

    24   a new trial.      Thank you.        You'll prepare an order for




•   25   the Court?
                                             42


                        Yes,   Your Honor.


•
     1   MS.   CRAIN:

     2   (Proceedings concluded)

     3

     4

     5

     6

     7

     8

     9

    10

    11

    12




•
    13

    14

    15

    16

    17

    18

    19

    20

    21

    22

    23

    24




•   25
                                                                          43


      1   THE STATE OF TEXAS


•     2

      3

      4
          COUNTY OF HILL

                           I,   Cindy Kocher,   Official Court Reporter

          in and for the 66th District Court of Hill County,       State

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

      6   contains a true and correct transcription of all

      7   portions of evidence and other proceedings requested in

      8   writing by counsel for the parties to be included in

      9   this volume of the Reporter's Record,       in the

     10   above-styled and numbered cause,       all of which occurred

     11   in open court or in chambers and were reported by me.

     12                    I further certify that this Reporter's




•
     13   Record of the proceedings truly and correctly reflects

     14   the exhibits,    if any,   admitted by the respective

     15   parties.

     16                    I further certify that the total cost for

     17   the preparation of this Reporter's Record is $~~~---

     18   and was paid/will be paid by     ~~~\_~~~~-----------·
     19   WITNESS MY OFFICIAL ·HAND this the     ~~day of~~
     20   2014.


                                            ~~
     21
                                       ----------------------------
     22                                CINDY KOCHER, Texas CSR 5387
                                       Expiration Date: 12/31/15
     23                                Official Court Reporter,
                                       Hill County, Texas


,.   24

     25
                                       Post Office Box 274
                                       Hillsboro, Texas 76645
                                       (254)582-4045
•
    21 .




•          2
... 1




•
                                        :   ·,

                . 22,       I haver~tlirn~d the $iOOO,OO check,un~cashed.toMr.R~ssell .

                . 23c · .   ~~~~~s:·:~~~~~~~:~orY ~o~Id have b~~~ ~~tetial to the .•

                            ;::~~i~:;~~~~r~~E~hbJ~iil~~~~~cr!:~:n~~~r.~~~
                 Further Affiants~y~thJlot.       ..




•   ·
    . .
          ...




•
 • • • ••




    . .
•   Name: Dr. Trent Terrell
                                  Direct Examination of Dr. Terrell


    Where do you live? Temple, Texas
    How are you currently employed?
           9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor,
           Belton. TIC
    What are your areas of Specialization? Learning, Memory, and Cognition
                                  EDUCATIONAL BACKGROUND
    Academic Degrees?
    B.A.• Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from
    Baylor University, Waco, TX
    What type of graduate training did you receive in the area of Memory at that time?
           Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research,
           dissertation.
                               PROFESSIONAL RESPONSIBILITIES
•   Could you describe your current responsibilities at the University of Mary Hardin-Baylor?
           Cognitive psychologist with emphasis in memory
           Psychology Department Chairperson, August 201 0-present
           Teach 4 classes a semester-General Psychology, Psychological Methods. Experimental
           Psychology, Cognitive Psychology, Theories of Learning, Neurophysiological
           Psychology, Developmental Psychology
           Supervise undergraduate research in Memory
           Numerous campus committees
    Do you belong to any Professional Associations?
    Association for Psychological Science ·
    Psychonomic Society-Associate Member
    American Association for the Advancement of Science


    PRIMARY REsEARCH INTERESTS

       Confidence and Accuracy in Eyewitness Testimony




•
    '·




•               In general, confident witnesses are perceived as more credible than less confident witnesses.
                However, confident witnesses are not necessarily more accurate. This research investigates
                factors that may inflate confidence without improving memory accuracy.
         Lineup Construction and Photo Refreshing
                How does the construction and presentation of lineups affect the likelihood of correct
         identifications? How do multiple opportunities to view lineups affect the likelihood of correct
         identifications?
         Have you published any works in the field of Eyewitness Identification memory accuracy?
         Yes
         Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the
         lab
         Have you testified as an expert at other hearings? Yes
         Have you given any presentations about eyewitness memory? Yes. I presented at the Texas
         State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio
         in 2012. I've also spoken to the National District Attorneys Association in Houston and the
         Center for American and International Law in Plano.
•        Are you being paid by the defense to testify in this case? Yes.




•
•
    What is the most common mistaken belief about memorv?
    That memory works like a video recorder or computer disk. Both these metaphors suggest that
    memory retains everything that bas ever happened to us, implying that all events are ultimately
    retrievable. Memory is a reconstructive phenomenon, not a video recorder:
            In essence, all memory is false to some degree. Memory is inherently a reconstructive
            process. whereby we piece together the past to form a coherent narrative that becomes
            our autobiography. In the process ofreconstructing the past, we color and shape our
            life s experiences based on what we know about the world (Bernstein & Loftus, 2009)
    How does memory work then?
    Memory has three processes-encoding. storage. and retrieval. (NOTE: If you look to the
    bottom. there ·s a general Q&A about memory section. I can go into as much or as little detail as
    you think would be necessary here. rve worked with people who want to devote fifteen minutes
    to it, others who just want a brief answer. Whatever works for you.)
    Are memories of aUeged sexual abuse the same as eyewitness memories?
    Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime
    being committed by someone they do not know, and later trying to identify that person after a



•   very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but
    what and if. They're different kinds of memories, but the same factors can affect their reliability.
    Will we discuss some of those factors todav?
    Yes.
    What documents have you reviewed?
    Very little. I've looked at an amended summary of what outcries would be described in court.
    Is it usual for you to review so few documents in a case like this?
    Each case is different, but especially in cases of alleged sexual abuse, my role is not to interpret
    the specifics of what happened, but rather to talk about factors that have been experimentally
    demonstrated to affect the reliability of such memories.
    So to clarify, you will not be testifying that the alleged abuse in this case did not take place?
    No, my testimony will only involve descriptions of how memory works and doesn't work.
    Have we spoken before today?
    Yes. via phone and email.




•
•
     Before we begin, let's be clear: are you going to offer testimony that the witnesses in this
    case are lying, or that they are not credible?
    No. Credible witnesses can experience and report false memories without intending to be·
    deceptive or lying. The empirical evidence from years of false memory research indicates that
    most false memories seem as subjectively real to witness as true memories.
    Why are you here, then?
    To provide information to the jury about bow memory works from a scientific background, to
    identify some of the factors known to affect reliability, and to provide tools that the jury can use
    as they evaluate the reliability of the child in this case.
    In general, how do memory researchers classify factors that alter witness reliability?
    In the Eyewitness Memory literature. researchers discuss two broad classes of factors: Estimator
    variables and system variables. That distinction is not as important in this kind of case, but I do
    want to discuss one estimator variable, so I'll mention it. Estimator variables are those that
    cannot be controlled by the criminal justice system-they are simply the facts of what happened.
    How long something lasted. how long it has been since the event took place. stress levels of the
    victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly



•   remembered later. These are called estimator variables becaUse we can only estimate the impact
    they might have had on memories. System variables are those that investigators have some
    degree of control over, such as bow information is gathered after the event. In a case of alleged
    sex1.18.l abuse, system variables in play are how the child is interviewed, who conducts the
    interview, and in what context that interview takes place.
    What estimator variables do you feel might be relevant to this case?
    Latency. or the time between the event and the time when memories of that event were first
    reported. One of the most basic findings of eyewintess memory research is that memories d~ over
    time. Just about every experimental protocol that manipulates the interval between exposure and testing
    has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In
    some scenarios, witnesses may not be prompted to think about an event at all after it has occurred,
    enhancing decay from memory (also called transience). This is true of lab studies, information learned in
    school, and eyewintess memory (Shapiro & Penrod. J986).
    NOTE: Stress is also an estimator variable. that reduces accuracy of subsequent memories. Jfs a double-
    edged. sword though. If abuse did happen, it ""1lS likely stressful for the children. But if if:; your case




•                                                                                                           .   ----··---·-·---
•   strength and modality (open/closed) of the suggestions. Generally speaking, the younger the
    children the more likely they are to incorporate suggestions, and the more likely they are to
    answer yes to a closed question (whether yes is the correct answer or not). The take-home fact is
    that if children are asked questions that presume something has happened and are placed in an
    environment where others seem to think it happened, there's empirical data illustrating they can
    and often will come to believe it themselves.
    The Sam Stone experiments seem to discuss ehUdren modifying their memories of
    something that really happened. Is there any evidence that people can come to remember
    things from their childhood that did not occur at aD?
    Yes, there are several examples. One experimental protocol involves what is known as the '"Lost
    in the Mall" procedure. In this protocol, researchers enlist the help of family members to help
    make false suggestions to experimental participants that they were lost in the mall for an
    extended period of time when they were a child. When family members combine suggestions
    about true events along with the suggestion ofbeing lost in the mall (or being hospitalized
    overnight, or other traumatic events), many subjects not only come to accept that the event
    happened, but begin to elaborate add their own details of the event in subsequent recollections.
•   When family are able to provide convincing details, such as the name of the mall they would've
    been lost in as a child, or even a store which they frequently shopped at, the subjects are able to
    imagine how that event might've occurred. There's a well-documented phenomenon known as
    imagination inflation--when subjects are asked to imagine something occurring for just one
    minute, they are subsequently more likely to remember what they imagined as something that
    actually occurred. There's also a natural tendency to think that if everyone else in the family
    remembers this, I probably should, too.
    NOTE: DA"s like to pick apart the lost in the mall experiment, because the original study tried it
    with ::!5 people. and only produced the phenomenon in 6 of th~m. The small sample size has to

    do \Yith the complexities of recruiting family involvement, etc. lfs a very time-intensive and
    personal protocol. And they'll say that creating this in 6 people is hardly overwhelming
    evidence, but the point is that it's possible at all-it·s really a pretty surprising thing that it
    happens at all. The protocol is also used on adults. not children, and all the evidence supports the
    idea that the younger the child, the more suggestible they are. The broad, concrete point is that




•
•
    we've taken things that we know didn't happen, and convinced people it did so that they
    remember it as if it did. And the stakes are lower in experiments-it doesn·t really matter if you
    got lost in the mall or not But. there's a lot more pressure to report sexual abuse. so ifs not
    really a one-to-one comparison.
    Are there any developmental factors that may be relevant to this case?
    Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll
    explain below), •'magical thinking.. and an underdeveloped "Theory of Mind.
    Taking these one-by-one:
    Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and
    all of us have virtually no episodic memories of the first two years of our lives. The time of
    offset of childhood amnesia (the ability to start to form long-term memories accessible as adults)
    is different for all people. Most of us would say our first memory is from around age 3 or 4.
           What causes childhood amnesia?
    A few things. the most important of which is the progression of language development Our
    long-term memories are anchored in meaning and are rehearsed and stored phonologically (using
    language). In short, children can't form memories accessible as adults in the first 2-3 years of



•   life because they do not have the vocabulary necessary to represent those ideas in their minds
    and rehearse them. When children start learning language proficiently, they are able to rehearse
    better and begin to store memories that will be accessible as adults. Another factor potentially
    relevant here is a bit complicated to explain-the concept of encoding specificity. This means
    that memories are encoded in a certain way, using a certain way of thinking and a certain
    viewpoint, and that they need to be retrieved with that same way of thinking and that same
    viewpoint (Another more formal way of putting is to say that recreating the context of encoding
    at the time of retrieval makes it more likely to remember what was encoded). Most of the
    memories we have from childhood are encoded from a child's point of view, using childlike

    interpretations and childlike terminology. When we grow up, we are unable to access those
    memories because we no longer view the world in that childlike way-we think in adult terms
    and from adult viewpoints, and find it virtually impossible to remember the world the way we
    did when we were children.




•
•   Encoding Specificity. This idea of encoding specificity may be particularly important in a
    sexual abuse case, especially involving very young children. Young children (hopefully) do not
    understand sexual actions and sexual terms as abuse is taking place. It's not at all likely that
    young children immediately understand that they have been sexually abused. They may have
    been uncomfortable or upset or scared, but they're likely not able to encode- what happened as
    sexual abuse. Therefore. when asked about sexual abuse as an adult (or an older child), the adult
    definition of abuse calls to mind different things than were likely encoded during the abuse as a
    very young child. This explains why directive and closed questioning often has to be used, and
    illustrates the difficulty of interviewing children about possible abuse without being suggestive.
    Investigators likely use euphemistic questions about touching and parts of the body touched, and
    the possibility must at least be considered that children cannot separate innocuous touching (such
    as diaper changing) from harmful touching. As an example, many children will respond to the
    closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the
    doctor just gave the child an ~ection. The child doesn't understand that the injection was for
    his/her benefit, and is just as upset with the doctor as would be if he/she had touched the child




•
    malevolently.
    It is vital to underscore that not being able to remember abuse doesn't mean it didn't happen. It
    is nearly an impossible task to derive the pertinent information without speaking vaguely (with
    euphemism) or suggesting the possibility of actions with closed questions.
    Magical ThinkinWJheorv of Mind. Refers to the idea that children in Piaget's Pre-operational
    stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily
    bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical
    thinking is often seen during the grieving process as children are first encountering the concept
    of death. Not able to understand the finality of death, they rationalize the absence in the only
    way they have experienced--by asswning the loved one is out of town or has a gone away
    temporarily but will return. When presented with other information that is outside what they
    understand (such as the idea that Sam Stone was very clumsy), children of this young age are
    much more likely than adults to bridge the gap in what they understand than to challenge
    discrepancies. Often the shortest bridge is to accept what the adult says is true. or to accept what
    the other children are saying as true. and then build upon that concept subsequently. This




•
•   happens frequently when children are corrected by their parents about the names of things, colors
    of things, about language usage and other areas in which they make wrong assumptions. It is a
    nonnal part of cognitive development to accept ideas presented by an adult-Piaget calls this
    assimilation and accommodation. This all relates to the process of the child developing a Theory
    of Mind. A Theory ofMind is the understanding that all individuals have their own minds and
    their own way of seeing the world, and that different people have different opinions and not
    everyone knows the same information. While adults take this for granted. children have to learn
    this through trial and error. Piaget called this stage ••egocentrism", because children do not
    understand that people have different feelings and desires as they do. Young children often
    exemplify egocentrism when, for example. they are asked to show their mother the picture they
    drew, and they hold the pictw'e out with the back of the picture facing mom and the actual
    picture visible to them. They feel that because they can see the picture, mom can too. It's
    understandable that this concept can be reversed. If a non-fact is suggested to young children as
    if it is fact; children are likely to accept this fact because they don't understand that the adult
    could have a different set of knowledge than they do, or that the adult might be lying or be
    mistaken. All of this speaks to why young children are more suggestible than adults and have a
•   harder time saying ..no" to closed questions.
    Are there protocols that can be used to reduce the suggestiveness of child interviews?
    While there is not a formally-agreed upon process, there are suggestions for how to reduce the
    likelihood of suggesting information to children:
       •    Use open-ended questions when possible
       •   Listen as much as possible and try to let the child be in control of the direction ofthe
           conversation
               o   In other words, refrain from pushing them back towards what is suspected to have
                   happened as much as possible
       •   Have someone not emotionally-involved with the situation conduct the interview
               o   This reduces demand characteristics placed on the child to be a good boy or girl
                   for a known authority figure
       •   Attempt to establish rapport with the child with a series of unrelated questions before
           moving on to the more important questions




•
•       •




        •
            Conduct a formal, docwnented interview as soon as possible after initial outcry. Try to
            limit other discussions/interviews with family members before this interview, as these
            discussions can be very suggestive
            Limit repeat interviews if possible. The Sam Stone paradigm of research has
            demonstrated that off-the-cuff and non-factual narrative offered by children in one
            interview are often recalled as factual memories in subsequent interviews, especially if
            the content of that narrative is encouraged or met with positive response by the
            interviewers.
    Ask this if you w-ant, I think it'd be a decent way to end: It's the defense's argument that the
    children in this case were brainwashed to belieye that these events hapoened. Is there any
    evidence in your field that this is possible?
    Brainwashing is really more of a colloquial term than one we use routinely in the field. What
    I'm comfortable saying is that there is empirical evidence that people can come to remember
    things that didn't occur because that suggestion was made to them. Sometimes those suggestions
    are deliberate and purposeful, as in the lost in the mall procedure, and other times those




•
    suggestions are unintentional-such as might occur when an investigator asks if something
    happened.
            I would reiterate that the biggest and most persistent misconception about memory is that
    once they're formed in the brain, they don't change. Memories are not shrink-wrapped facts
    stored in the brain waiting to be opened. They're reconstructed each time an event is re-
    experienced mentally, and every time that happens what's re-experienced is different. How you
    ask questions can change how memories are reconstructed, just as how an interviewer responds
    to answers can change how memories are reconstructed next time. It's an incredibly dynamic
    process. I wouldn't call that brainwashing, I would say that memories are very malleable and
    change over time .




•
•   Background information

    .lus1 an FYI seclioH-il sounds like you '\.·e already got ttlot ofbackgrowzd info. Some ofiizis is
    wr:v similar 10 my talk in Houston.


    General Memory O&A
    Probably the most common metaphors used to describe human memory are that "memory
    is a videotape" and "memory works like storage on a computer disk." Are these good
    analogies for human memory?
            No, and this is probably the most important finding of the last 100 years or so in memory
    research. Both videotapes and computer disks are reproductive media. meaning that they store
    information in a more-or-less literal manner.
            Both represent memory as being static and unchanging, and imply that what is stored in memory
    is always a faithful representation of the actual event. Furthermore, both metaphors suggest that
    memory retains everything that has ever happened to us, implying that all events are ultimately




•
    retrievable. For example, we may have a difficult time remembering something, just as we might have
    troubling finding a certain 5-second clip on a videotape. Since we will eventually find this 5-second
    segment if we keep rewinding and reviewing the videotape, we often assume memories will be similarly
    accessible.
            But memory is DQtlike a videotape or bard disk. Videotape and hard disks are
    reproductive storage device, always retrieving the same information. In addition, what is stored
    on the tape or disk is a literal representation of the original event. But memory does not work
    this way. In fact, the single most important principle underlying memory is this: memory is a
    dvnamic. creative. and reconstructive process. Memory works by storing bits and pieces of the
    original events, combining those fragments with other sources of information to reconstruct the
    original event.
    What are the basic processes.used in memory formation and retrieval?
           Memory researchers typically speak of memory formation as having three distinct stages,
    encoding of new information, consolidation and storage of the information, and retrieval of the
    memory. The process of encoding refers to the conversion of perceptual and sensory




•
•   information into a form that the brain can represent and store. In virtually all cases, encoding
    alters the sensory information in some way In fact, two people listening to the same
    conversation may have drastically different recollections of the same event Memory researchers
    would say that these two individuals encoded the information in different ways.
            A great deal of what we call ..forgetting" is often a failure of the encoding process. One
    classic demonstration involves the inability of most people to recall the front of a penny from
    memory. Which way does Lincoln face? Where is the date? What is written across the top and
    bottom of the coin? Some people can get close, but few are able to draw the coin with complete
    accuracy. Even when shown several possible alternatives and asked to identify the correct one--
    usually, recognition is easier than recall-this task is still difficulL We might be tempted to say
    that we "forgot" what a penny looks like, but it would be more accurate to say we never knew in
    the ftrst place. Memory fails because the information was never encoded to begin with.
            2. ConsoHdation and Storage
            Consolidation is the term used to refer to the process by which short-term memories are
    converted into long-term memories. Consolidation of memories in the brain is something like
    water being frozen into ice cubes. Both processes take time. and both can be disrupted. For
•   example, if an ice cube tray filled with water is taken from the freezer and vigorously shaken
    before the cubes have started forming, the process of ice cube formation has been irreversibly
    stopped. Once the water is spilled from the tray, there is nothing that can be done to get that
    water back in. Generally speaking, the degree of disruption is directly related to the severity of
    the injury.
            Storage refers to the preservation of the memory over a period of time. One of the most
    profound generalizations one can make about memory is that memory strength and accuracy
    declines predictably with the passage of time.
            3. Retrieval
            Finally, retrieval is the process of finding and accessing previously stored memories.
    Retrieval does not occur in a vacuum. It is guided by retrieval cues. or bits of information that
    are related to items stored in memory. Retrieval cues can exert powerful effects on memory.
    Unfortunately, retrieval is the stage of memory where errors are most likely to be introduced
    Memory is a reconstructive phenomenon, a.'ld most of the reconstruction occurs during retrieval.




•
•
    When misleading or biasing cues exist at retrieval, they can seriously compromise the accuracy
    of retrieval.
    If memory is reconstructive, then, it must make errors. Has a taxonomy of memory errors
    and distortions been developed?
            Harvard University psychologist Daniel Schacter, one of the country's most prolific and
    distinguished memory researchers, recently identified seven factors clearly shown to reduce the
    reliability of memory. He identifies these as follows:
        •   transience, or forgetting that occurs with the passage of time. As discussed earlier this is
            perh.aps the most profound generalization one can make about memory.
        •   absent-mindedness, a lapse in attention during an event that inhibits (or precludes
            entirely) the successful encoding of a memory. As noted earlier, such encoding failures
            are devastating; one cannot retrieve what was never encoded to begin with.
        •   blocking, or the inability to retrieve information due to interference by other items stored
            in memory. For example. learning a new computer password is often complicated by the
            intrusive recollection of previous passwords.




•
        •   misattribution, whereby an event that occurred in one context is mistakenly attributed to
            another. Furthermore, sometimes current feelings of familiarity are mistakenly attributed
            to past events. Phenomena such as source confusion and even deja vu result from
            misattribution.
        •   suggestibility, in which misleading information from external sources are used to
            influence memory.    In product identification cases, this can often result from reviewing
            photobooks or reviewing information obtained from Internet searches. (The same factors
            can also result in rnisattribution, in which a product is identified as familiar, and thus
            selected. Having reviewed the product in a book of photos can induce a sense of
            familiarity, even when a product was never actually used.)
       •    bias, where various factors cause distortions in memory. Change and consistency biases
            cause us to reconstruct the past in a way that is different from (for change biases) or
            similar to (for consistency biases) the present. If memory of our past behavior is
            disturbing in some way, we may reconstruct the memory in a less threatening manner.
            Hindsight biases occur when we reinterpret past events in terms of currently available




•
•           (but initially unavailable) information. Egocentric biases occur when we exaggerate our
            role or importance in past events. Finally, stereotypical biases influence memory by
            distorting them based on generic memories, what "usually" or "probably" happened.
        • persistence, in which (usually) emotionally charged memories intrusively come to mind.
            even when we attempt to suppress them. Persistence is responsible for such clinical
            phenomena as post-traumatic stress disorder and flashbulb memories.


    Does inaccurate identification by eyewitnesses cause innocent people to be convicted?
            Memory's reconstructive nature has profound implications one the role eyewitness
    memory testimony in the courtroom. Recent advances in DNA technology bas further
    demonstrate eyewitness fallibility. Based on information tracked by the Innocence Project, by
    August, 2007. more that 200 falsely convicted individuals have been exonerated by DNA
    evidence. Mistaken eyewitness identification was involved in more than 75% of those false
    convictions (see Innocence Project, 2008; The Justice Project, 2007).




•
    What kind of errors are common among eyewitnesses?
            1. Souree Monitoring and Source Confusion
            Source monitoring is defined as the ability to recall not only the content of memories,
    but also the source from which the information was obtained. According to Johnson et al,
    (1993), ''source monitoring is based on qualities of experience resulting from combinations of
    perceptual and reflective processes, usually requires relatively differentiated phenomenal
    experience, and involves attributions varying in deliberateness. These judgments evaluate
    information according to flexible criteria and are subject to error and disruption" (p. 3).
           Source confusion, then, results from a failure of source memory. Source confusion
    occurs when information is learned from one source but misattributed to another source. This
    can occur when witnesses are shown photographs of suspects or objects prior to questioning. and
    later are asked to identify the suspects or objects. In cases where the source of the information is
    entirely forgotten, source confusion can still exert effects by increasing self-reported confidence.
           Source confusion can also result from simply thinking about something. For example.
    individuals who are asked to imagine that a remote event happened to them later have difficulty




•
•
    in distinguishing actual events from imagined events, a phenomenon known as ''imagination
    inflation" (M. Garry & Polaschek, 2000; Roediger & McDermott, 2000). A person's subjective
    confidence in these memories is similarly inflated by imagination (Maryanne Garry, Manning,
    Loftus, & Sherman, 1996), further illustrating why confidence is not a reliable indicator of
    accuracy. The erroneous memories are quickly and easily formed; they can be created in real-
    world settings with a single imagination episode, within a few days of the imagined event
    (Seamon, Philbin, & Harrison, 2006).
            2. Demand Characteristics
            Demand characteristics refer to biases introduced in research by the expectations of the
    researchers. the participants, or both. Well-known "halo effects" often occur in education
    settings. with teachers assigning higher grades to students from which they had expected better
    performance.
            In eyewitness memory settings, demand characteristics operate in any situation where
    there is an expectation of the witness. Most witnesses in criminal cases want to be helpful to the
    investigators, to be "good witnesses." When asked to view lineups in the presence of police
    officers, witnesses frequently make an identification even when they are uncertain (Wells &



•   Luus, 1990). For this reason, the US. Dept. of Justice now reCommends that lineups be
    conducted by individuals who are unaware which person is the actual suspect (U.S. Department
    of Justice, 199'9).
            Demand characteristics combine Schacter's "bias" and "suggestibility."
            3. Leading Questions
            Leading questions, as described in an earlier section, introduce errors through the
    reconstructive processes of retrieval. Information present in the questions themselves becomes
    incorporated into a witness's memory. Furthermore, these effects are persistent; the biasing
    effects may permanently change the memory for an event. Leading questions result from
    Schacter's "suggestibility" and are exaggerated by the problems of transience.
            4. Hindsight bias.
            Hindsight bias refers to the tendency of witnesses to report higher subjective confidence
    after making an identification than before. The diagnostic value of the confidence judgment,
    however, is impaired. Tills effect is exacerbated by any verbal reinforcement given after an




•
•
    identification is made. Wells (Wells & Bradfield, 1998) found that telling eyewitnesses "good,
    you identified the suspect" distorted further report. These biases need not be explicit, however.
    If a witness makes an identification but is asked to "look again." the implied message (i.e., the
    demand characteristics) is that the first identification was wrong (Wells & Bradfield, 1999).
            S. Encoding Failures
            Some memory errors can be overcome. Sometimes retrieval of information is
    temporarily blocked, as in so-called "lip of the Tongue" states. When retrieval blocks are
    removed (either experimentally, or by the passage of time), the correct answer can often be
    retrieved.
            Encoding failures, however, are "fatal" memory errors. Information that was never
    encoded in the first place is impossible to retrieve. Poorly encoded information, on the other
    hand, is more likely to suffer suggestibility effects (Hyman & Loftus, 2002).
            Encoding failures are the cause ofSchacter's "absent-mindedness."
            6. Post-Event Information
            Because memories are not static snapshots in time, they can be influenced by events or
    information learned after the event in question. That is, our memories for the past are influenced
•   not only by the events itself, but by what we have learned since the event happened. Post-event
    information has its greatest effect when there is a relatively long delay between the event and
    post-event information and a short delay between the information and the test (Loftus. Miller, &
    Burns, 1978). Furthermore, it is difficult or impossible for witnesses to distinguish post-event
    information from real event information, a phenomenon known as the "knew-it-all-along effect"
    (Metcalfe, 2000).
           Mazzoni and her colleagues (Mazzoni, Loftus, & Kirsch, 2001) have proposed that the
    creation of false memories can be understood as a 3-phase process. First, individuals have to see
    the event as plausible, something that could have happened to them. Second, individuals come
    to believe that the event did happen to them, and begin imagining or generating elaborations
    concerning the fictitious event. Finally, individuals begin to mistake these internally generated
    events and details for external, real events (a problem of source confusion).




•
•                             Jonathan Trent Terrell, Ph.D.
                               University of Mary Hardin-Baylor
                Assistant Professor and Chairperson. Department of Psychology
                                     900 College Street
                                      Belton, TX 76513
                                       254-295-4630
                                     806-570-6849 (cell)
                                     nerrell@umhb.edu

    EDUCATION
    Bachelor of Arts in Psychology, Baylor University, May 2003

    Master of Arts in Neuroscience, Baylor University, August 2005

    Doctor of Philosophy in Experimental Psychology, Baylor University, May 2008

    Specialization: Cognitive Psychology, Eyewitness Memory
    Academic Mentor: Charles A. Weaver, III


    COURSES TAUGHT



•   General Psychology
    Experimental Psychology
    Cognition
    Psychology and Film
    Freshman Seminar
                                        Psychological Methods
                                        Developmental Psychology
                                        Newophysiological Psychology



    PROFESSIONAL AFFILIATIONS
    Association for Psychological Science
    American Association for the Advancement of Science
    Psychonomic Society-Associate
    ArmadiJJo (Association for Research in Memory, Attention, Decision making,
    Intelligence, Language, Learning, and Organization)

    CONFERENCES ATTENDED
    Annual Meeting of the Psychonomic Society: 2006, 2007, 2009,2010,2011
    Armadillo: 2006, 2007
    Texas A&M Annual Assessment Conference: 20 I 0, 20 II




•
•   CONSULTING WORK

    I have consulted and testified in many criminal cases as an expert on eyewitness memory.
    My testimony addresses the basic processes of memory formation and retrieval, as well
    as estimator variables (such as event duration, stress, weapon focus, witness intoxication)
    and system variables (such as lineup construction, instructions given to witnesses, etc).

    COMMITTEE WORK

    Academic Institutional Quality Committee
    Student Success Team Committee
    Online Education Task Foree
    Strategic Planning Stewardship Committee
    Chair-Student Scholars Day and Research Symposium Planning Committee, 20 J0-2011
    UMHB Quality Enhancement Project Planning Team


    PUBLICATIONS. PRESENTATIONS & AWARDS

        Weaver, C. A Ill &   Terrel~ T. (2004).   Laboratory in cognitive psychology: Student
    Manual. Published by Baylor University.




•
         Weaver, C. A. Ill, Terrell, T., & Krug, K. S. (2004). Evaluating the reliability of
    witness memories in product identification cases. In Andrews Publications' Asbestos
    Litigation 2004 (Section 19, pp. 1-18). New Orleans, LA: Thompson-West.

       Weaver, C. A III, Terrell, T. & Krug, K. (2004, April). Remembrance oflhing past:
    Evaluating the reliability ofwitness memories in product identification cases. Andrews
    Publications' Asbestos Litigation 2004 Conference: New Orleans.

        Weaver, C. A. III. & TerreU, J. T . {2005, May). Eyewitness memory and product
    identification? Harris Martin Publications Asbestos Litigation Conference: The
    Increasing Prominence of Equipment, Gasket and Friction Defendants. Las Vegas.

        Weaver, C. A. III. Terrell, J. T., Krug, K., & Kelemen, W. L. (2005, November). The
    delayed JOL effect with very long delays: Evidence from Flashbulb Memories. Paper
    presented at Memory and Metamemory: Papers in Honor ofThomas 0. Nelson, Toronto.

        TerreU, T. J., & Weaver, C. A•• Ill (2005, November). The effects ofmisiriformation
    on eyewitness memory and product identification. Paper presented at the 45th annual
    meeting of the Psychonomic Society, Toronto.

       TerreU, J. T. (2006, February). The e./focts ofmisiriformation on eyewitness memory
    and product identification. Invited address. Baylor University Interdisciplinary




•
•    Scholarship Forum.

        Terre~ J. T. (2006, May). Winner, Outstanding Graduate Research, Baylor
     University Interdisciplinary Scholarship Forum.

         Weaver, C. A. III., Terre~ J. T., & Holmes, A. E. (2006, October). Evaluating the
    reliability of eyewitness memory in product identification cases, Asbestos Litigation in
    the 21st Century. New Orleans: American Law Institute/American Bar Association.

       TerreU, J. T. (2006, October). Creating new memories, destroying old ones:
    Refreshing recollections ofeyewitnesses. Invited address. Baylor University Nu Rho Psi
    Society.

        Terre~ J. T., & Weaver, C. A. III. (2006, October). Eyewitness memory in civil
    cases: Photo refreshing, suggestion, and product idemijicalion. Poster presented at the
    16ch annual Southwest Conference on Cognition, Texas Tech University: Lubbock.

       Terrell, J. T., & Weaver, C. A.• III. (2006, November). "'Refreshing recollection" of
    eyewitnesses: Memory retrieval or memory creation? Poster presented at the 47th annual
    meeting of the Psycbonomic Society, Houston.

       Weaver, C. A, ID, & Terrell, J. T. (2007, October). Remembering bad things, not
    bad guys: Eyewitness memory in product liability cases. Paper presented at the 17th
    annual Southwest Conference on Cognition. Trinity University: San Antonio .




•      Terrell, J. T. (2007, October). Eyewitness memory and product identification:
    Suggestibility andfalse memory creation. Poster presented at the 1-rt' annual Southwest
    Conference on Cognition. Trinity University: San Antonio.

         Te~ J. T., & Weaver, C. A., III. (2007, November). Remembering products, nol
    faces: "Refreshing recollection" ofeyewitnesses in product liability situations. Paper
     presented at the 48th annual meeting of the Psycbonomic Society, Long Beach.

        Weaver, C. A. III, Terrell, J. T., Krug, K. S., & Kelemen, W. L. (2008, May). The
    Delayed JOL Effect with very long delays: Evidence from flashbulb memories. In J.
    Dunlosky and R. A. Bjork (Eds.), A handbook ofmemory and metacognition. Hillsdale,
    NJ: Lawrence Erlbaum Associates.

       Terrell, J. T. & Weaver, C. A. Ill (2008). Eyewitness testimony in civil litigation:
    Retention. suggestion, and misinformation in product identification. North American
    Journal of Psychology. 10, 323-346.

        Terrell, J. T. (2009, November). Repeated photo refreshing and product
    identification. Poster presented at the 50cb annual meeting of the Psychonomic Society,
    Boston .




•
•     Weaver, C. A. III, Parra. K. F. & Terrell, J. T. (2010, November). Addressing
    memory-related issues in asbestos cases. San Diego: Defense Research Institute.

       Weaver, C. A., 111, K.rug, K. S., TerreU, J. T., & Holmes, A. E. (in press). Eyewitness
    memory Issues in civil litigation. In A. Jamieson & A. Moenssens (Eds. ), Wiley
    Encyclopedia of Forensic Science: Behavioral Sciences. Chichester, UK: John Wiley &
    Sons, Ltd.

        TerreU, J. T. (20Jl, April). Invited response to Frederick, K. (2011). The creation of
    a measurement instrument. The Evolution of a Psychometric Tool from Development to
    Application. Baylor University, Department of Educational Psychology Spring, 201 J
    Doctoral Student Symposium.

        Terrell, J. T. (20II, July). Tire dynamics ofeyewitness identification. Paper
    presented at the Texas State Bar CLE Advanced Criminal Law Course and Criminal Law
    101, Houston.

       Parra, K. F., Terrell, J. T.., & Weaver, C. A. UI (20 I I, October). Difforing cognitive
    loads affect knowledge updating in jurors. .Poster presented at the 2 I st annual Annadillo
    Conference on Cognition: Texas A&M Commerce University: Commerce, TX.

       Parra, K. F., Terrell, J. T.., & Weaver, C. A. III (20 II, October). Do common
    misunderstandings ofmemory extend to attorneys? Poster presented at the 21st annual
    Armadillo Conference on Cognition: Texas A&M Commerce University: Commerce, TX.



•       TerreD, J. T. (20 I I, November). Effects ofrepeated photo refreshing on eyewitness
    identification. Poster presented at the 52"" annual meeting of the Psychonomic Society,
    Seattle.

    INVITED PRESENTATIONS

    2008, October: Eyewitness Testimony in Civil Litigation: Retention, Suggestion and
    Misinformation in Product Identification. UMHB College of Sciences Brown Bag
    Presentation

    2010, March: Assessment Brown Bag, part ofUMHB IQ Council's Assessment Series.

    2010, November: Presenter at UMHB Central Texas Book Club's discussion of"The
    Screwtape Letters" by C.S. Lewis.

    2011. March: Presenter at UMHB Central Texas Book Club's discussion of"Into the
    Wild" by Jon K.rakauer.

    2011. April: Class Size 60: How I Put General Psychology Online and Lived to Tell
    About It Faculty Conversation sponsored by UMHB's Center for Effectiveness in
    Learning and Teaching.




•
    •




•       2011. July: Dynamics ofEyewitness Identification. Paper presented at the 37'h Annual
        State Bar of Texas Advanced Criminal Law Course. Houston.

        2012. July: Eyewitness Identifcation: Exploring the Relevant Factors Through Case
        Examples. Paper to be presented at the 38'h Annual State Bar ofTexasAdvanced
        Criminal Law Seminar. San Antonio.

        2012. September (pending): Counter Evidence of Eyewitness Unreliability: The Science.
        Paper to be presented at a training sponsored by the National District Attorneys
        Association in Harris County.




•



•
                                  Direct Examination of Dr. Terrell
•   Name: Or. Trent Terrell
    Where do you live? Temple, Texas
    How are you currently employed?
           9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor,
           Belton, TX.
    What are your areas of Specialization? Learning, Memory, and Cognition
                                  EDUCATIONAL BACKGROUND
    Academic Degrees?
    B.A., Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from
    Baylor University, Waco, TX
    What type of graduate training did you receive in the area of Memory at that time?
           Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research,
           dissertation.
                               PROFESSIONAL RESPONSIBILITIES
    Could you describe your current responsibilities at the University of Mary Hardin-Baylor?




•
           Cognitive psychologist with emphasis in memory
           Psychology Department Chairperson, August 20 I 0-present
           Teach 4 classes a semester-General Psychology, Psychological Methods, Experimental
           Psychology, Cognitive Psychology, Theories ofLearning, Neurophysiological
           Psychology, Developmental Psychology
           Supervise undergraduate research in Memory
           Numerous campus committees
    Do you belong to any Professional Associations?
    Association for Psychological Science
    Psychonomic Society-Associate Member
    American Association for the Advancement of Science


    PRIMARY RESEARCH INTERESTS

       Confidence and Accuracy in Evewitness Testimony




•                                                                                          ..MtJrEXHIBrt.
                                                                                           (p.V.,'" ~1tli'
                                                                                            '·~~. ~. ~~Nl
           In general, confident witnesses are perceived as more credible than less confident witnesses .



•          However, confident witnesses are not necessarily more accurate. This research investigates
           factors that may inflate confidence without improving memory accuracy.
    Lineup Construction and Photo Refreshing
           How does the construction and presentation of lineups affect the likelihood of correct
    identifications? How do multiple opportunities to view lineups affect the likelihood of correct
    identifications?
    Have you published any works in the field of Eyewitness Identification memory accuracy?
    Yes
    Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the
    lab
    Have you testified as an expert at other hearings? Yes
    Have you given any presentations about eyewitness memory? Yes, I presented at the Texas
    State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio
    in 2012. I've also spoken to the National District Attorneys Association in Houston and the
    Center for American and International Law in Plano.




•
    Are you being paid by the defense to testify in this case? Yes .




•
    What is the most common mistaken belief about memory?



•   That memory works like a video recorder or computer disk. Both these metaphors suggest that
    memory retains everything that has ever happened to us, implying that all events are ultimately
    retrievable. Memory is a reconstructive phenomenon, not a video recorder:
             In essence, all memory is false to some degree. Memory is inherently a reconstructive
             process. whereby we piece together the past to form a coherent narrative that becomes
             our autobiography. In the process ofreconstructing the past, we color and shape our
             life s experiences based on what we know about the world (Bernstein & Loftus, 2009)
    How does memory work then?
    Memory has three processes---encoding, storage, and retrieval. (NOTE: If you look to the
    bottom. there's a general Q&A about memory section. I can go into as much or as little detail as
    you think would be necessary here. I've worked with people who want to devote tifteen minutes
    to   it, others who just want a brief answer. Whatever works for you.)
    Are memories of alleged sexual abuse the same as eyewitness memories?
    Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime
    being committed by someone they do not know, and later trying to identify that person after a




•
    very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but
    what and if. They're different kinds of memories, but the same factors can affect their reliability.
    Will we discuss some of those factors today?
    Yes.
    What documents have you reviewed?
    Very little. I've looked at an amended summary of what outcries would be described in court.
    Is it usual for you to review so few documents in a case like this?
    Each case is different, but especially iii cases of alleged sexual abuse, my role is not to interpret
    the specifics of what happened, but rather to talk about factors that have been experimentally
    demonstrated to affect the reliability of such memories.
    So to clarify, you will not be testifying that the alleged abuse in this case did not take place?
    No, my testimony will only involve descriptions of how memory works and doesn't work.
    Have we spoken before today?
    Yes, via phone and email.




•
    Before we begin, let's be clear: are you going to offer testimony that the witnesses in this



•   case are lying, or that they are not credible?
    No. Credible witnesses can experience and report false memories without intending to be
    deceptive or lying. The empirical evidence from years of false memory research indicates that
    most false memories seem as subjectively real to witness as true memories.
    Why are you here, then?
    To provide information to the jury about how memory works from a scientific background, to
    identifY some of the factors known to affect reliability, and to provide tools that the jury can use
    as they evaluate the reliability of the child in this case.
    In general, how do memory researchers classify factors that alter witness reliability?
    In the Eyewitness Memory literature, researchers discuss two broad classes of factors: Estimator
    variables and system variables. That distinction is not as important in this kind of case, but I do
    want to discuss one estimator variable, so I'll mention it. Estimator variables are those that
    cannot be controlled by the criminal justice system-they are simply the facts of what happened.
    How long something lasted, how long it has been since the event took place, stress levels of the
    victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly




•
    remembered later. These are called estimator variables because we can only estimate the impact
    they might have had on memories. System variables are those that investigators have some
    degree of control over, such as how information is gathered after the event. In a case of alleged
    sexual abuse, system variables in play are how the child is interviewed, who conducts the
    interview, and in what context that interview takes place.
    What estimator variables do you feel might be relevant to this case?
    Latency, or the time between the event and the time when memories of that event were first
    reported. One of the most basic findings of eyewitness memory research is that memories decay over
    time. Just about every experimental protocol that manipulates the interval between exposure and testing
    has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In
    some scenarios, witnesses may not be prompted to think about an event at all after it has occurred,
    enhancing decay from memory (also called transience). This is true of lab studies, information learned in
    school, and eyewitness memory (Shapiro & Penrod, 1986).
    NOTE: Stress is also an estimator variable that reduces accuracy of subsequent memories. lfs a double-
    edged. sword though. If abuse did happen, it was likely strcssfi1l for the children. But if it's your case




•
    that it didn ·t happen. it wouldn't make sense to talk about the stress of it interfering with subsequent




•   recall. In the previous sex abuse case I did. the state \Vas eager to make the argument that
    stressful/traumatic events are more likely to be remembered than more run-of-the-mill encounters. I think
    if s probably best to not mention this in the direct, and if the state mentions it in cross, I can talk about

    how stressful events are actually less likely to be well-remembered.

    What system variables could be relevant?
    Most research suggests that children are very suggestible witnesses. It is difficult to question
    young children about sexual acts without being suggestive to what may have happened.
    Why is it difficult to not be suggestive with them?
    The clearest and most obvious guideline for how to conduct interviews non-suggestively is to use
    open-ended questions. Open-ended questions are ones that contain no information in them, and
    require an expository answer, such as "What happened next?" In contrast, closed questions
    contain information in the question, and generally only require a yes/no answer. Such as "Did he
    touch you here?'' Young children will likely be able to fully articulate the details of sexual abuse
    without being guided by closed questions.
    Is there empirical evidence that closed or suggestive questioning can cause children to
    create memories?



•   Yes. While there are numerous experimental protocols that have demonstrated this, one of the
    most commonly discussed is known as the "Sam Stone" paradigm of research. In short, in these
    protocols someone named Sam Stone visits a classroom of young children, and subsequently the
    students are presented with the idea that Sam is a clumsy man who is always breaking things.
    Teachers or adults may say things like "Sam certainly was a clumsy man." Over a period of
    weeks, they are interviewed with suggestive questions like "Do you remember when Sam Stone
    ripped the book?" Eventually, many of the students incorporate the suggestions into their
    memory, and will tell you about the time Sam Stone visited and ripped the book, and in some
    cases even add additional components of clumsiness not mentioned by adults in the questions.
    Naturally, the actor portraying Sam was very careful not to be clumsy during the visit. While
    some of the things the interviewers asked about did happen, all of the clumsy things referred to
    by the questions did not
           There are myriad factors that affect the likelihood that children will come to accept these
    suggestions and modify their memories accordingly, including the age of the children and the




•
    strength and modality (open/closed) of the suggestions. Generally speaking, the younger the



•   children the more likely they are to incorporate suggestions, and the more likely they are to
    answer yes to a closed question (whether yes is the correct answer or not). The take-horne fact is
    that if children are asked questions that presume something has happened and are placed in an
    environment where others seem to think it happened; there's empirical data illustrating they can
    and often will come to believe it themselves.
    The Sam Stone experiments seem to discuss children modifying their memories of
    something that really happened. Is there any evidence that people can come to remember
    things from their childhood that did not occur at aU?
    Yes, there are several examples. One experimental protocol involves what is known as the "Lost
    in the Mall" procedure. In this protocol, researchers enlist the help of family members to help         I, .
    make false suggestions to experimental participants that they were lost in the mall for an
    extended period of time when they were a child. When family members combine suggestions
    about true events along with the suggestion ofbeing lost in the mall (or being hospitalized
    overnight, or other traumatic events), many subjects not only come to accept that the event
    happened, but begin to elaborate add their own details of the event in subsequent recollections.




•
    When family are able to provide convincing details, such as the name of the mall they would've
    been lost in as a child, or even a store which they frequently shopped at, the subjects are able to
    imagine how that event rnight've occurred. There's a well-documented phenomenon known as
    imagination inflation-when subjects are asked to imagine something occurring for just one
    minute, they are subsequently more likely to remember what they imagined as something that
    actually occurred. There's also a natural tendency to think that if everyone else in the family
    remembers this, I probably should, too.
    NOTE: DA"s like to pick apart the lost in the mall experiment. because the original study tried it
    \Vith 25 people, and only produced the phenomenon in 6 of them. The small sample size has to
    do with the complexities of recruiting family involvement, etc. It's a very time-intensive and
    personal protocol. And they'll say that creating this in 6 people is hardly overwhelming
    evidence, but the point is that ifs possible at all-it"s really a pretty surprising thing that it
    happens at all. ·rhc protocol is also used on adults. not children, and all the evidence supports the
    idea that the younger the child, the more suggestible they are. The broad, concrete point is that




•
    'vve've taken things that ,.,-e know didn't happen, and convinced people it did so that they



•   rc:mcmher it as if it did. And the stakes are lower in experiments-it doesn ·t really matter if you
    got lost in the mall or not. But, there's a lot more pressure to report sexual abuse, so ifs not
    really a one-to-one comparison.
    Are there any developmental factors that may be relevant to this case?
    Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll
    explain below), "magical thinking" and an underdeveloped "Theory of Mind.
    Taking these one-by-one:
    Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and
    all of us have virtually no episodic memories of the first two years of our lives. The time of
    offset of childhood amnesia (the ability to start to form long-term memories accessible as adults)
    is different for all people. Most of us would say our first memory is from around age 3 or 4.
           What causes childhood amnesia?
    A few things, the most important of which is the progression of language development. Our
    long-term memories are anchored in meaning and are rehearsed and stored phonologically (using
    language). In short, children can't form memories accessible as adults in the first 2-3 years of




•
    life because they do not have the vocabulary necessary to represent those ideas in their minds
    and rehearse them. When children start learning language proficiently, they are able to rehearse
    better and begin to store memories that   ""ill be accessible as adults. Another factor potentially
    relevant here is a bit complicated to explain--the concept of encoding specificity. This means
    that memories are encoded in a certain way, using a certain way of thinking and a certain
    viewpoint, and that they need to be retrieved with that same way of thinking and that same
    viewpoint. (Another more formal way of putting is to say that recreating the context of encoding
    at the time of retrieval makes it more likely to remember what was encoded). Most of the
    memories we have from childhood are encoded from a child's point of view, using childlike
    interpretations and childlike terminology. When we grow up, we are unable to access those
    memories because we no longer view the world in that childlike way-we think in adult terms
    and from adult viewpoints, and find it virtually impossible to remember the world the way we
    did when we were children .




•
    Encoding Specificity. This idea of encoding specificity may be particularly important in a



•   sexual abuse case, especially involving very young children. Young children (hopefully) do not
    understand sexual actions and sexual terms as abuse is taking place. It's not at all likely that
    young children immediately understand that they have been sexually abused. They may have
    been uncomfortable or upset or scared, but they're likely not able to encode what happened as
    sexual abuse. Therefore, when asked about sexual abuse as an adult (or an older child), the adult
    definition of abuse calls to mind different things than were likely encoded during the abuse as a
    very young child. This explains why directive and closed questioning often has to be used, and
    illustrates the difficulty of interviewing children about possible abuse without being suggestive.
    Investigators likely use euphemistic questions about touching and parts of the body touched, and
    the possibility must at least be considered that children cannot separate innocuous touching (such
    as diaper changing) from harmful touching. As an example, many children will respond to the
    closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the
    doctor just gave the child an injection. The child doesn't understand that the injection was for
    his/her benefit, and is just as upset with the doctor as would be ifhe/she had touched the child
    malevolently.




•
    It is vital to underscore that not being able to remember abuse doesn't mean it didn't happen. It
    is nearly an impossible task to derive the pertinent information without speaking vaguely (with
    euphemism) or suggesting the possibility of actions with closed questions.
    Magical Thinkingffheory of Mind. Refers to the idea that children in Piaget's Pre-operational
    stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily
    bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical
    thinking is often seen during the grieving process as children are first encountering the concept
    of death. Not able to understand the finality of death, they rationalize the absence in the only
    way they have experienced--by assuming the loved one is out of town or has a gone away
    temporarily but will return. When presented with other information that is outside what they
    understand (such as the idea that Sam Stone was very clumsy), children of this young age are
    much more likely than adults to bridge the gap in what they understand than to challenge
    discrepancies. Often the shortest bridge is to accept what the adult says is true, or to accept what
    the other children are saying as true, and then build upon that concept subsequently. This




•
    happens frequently when children are corrected by their parents about the names of things, colors



•   of things, about language usage and other areas in which they make wrong assumptions. It is a
    normal part of cognitive development to accept ideas presented by an adult-Piaget calls this
    assimilation and accommodation. This all relates to the process of the child developing a Theory
    of Mind. A Theory of Mind is the understanding that all individuals have their own minds and
    their own way of seeing the world, and that different people have different opinions and not
    everyone knows the same information. While adults take this for granted, children have to learn
    this through trial and error. Piaget called this stage "egocentrism", because children do not
    understand that people have different feelings and desires as they do. Young children often
    exemplify egocentrism when, for example, they are asked to show their mother the picture they
    drew, and they hold the picture out with the back of the picture facing mom and the actual
    picture visible to them. They feel that because they can see the picture, mom can too. It's
    understandable that this concept can be reversed. If a non-fact is suggested to young children as
    if it is fact, children are likely to accept this fact because they don't understand that the adult
    could have a different set of knowledge than they do, or that the adult might be lying or be
    mistaken. All of this speaks to why young children are more suggestible than adults and have a




•
    harder time saying "no" to closed questions .
    Are there protocols that can be used to reduce the suggestiveness of child interviews?
    While there is not a formally-agreed upon process, there are suggestions for how to reduce the
    likelihood of suggesting information to children:
       •   Use open-ended questions when possible
       •   Listen as much as possible and try to let the child be in control of the direction of the
           conversation
               o   In other words, refrain from pushing them back towards what is suspected to have
                   happened as much as possible
       •   Have someone not emotionally-involved with the situation conduct the interview
               o   This reduces demand characteristics placed on the child to be a good boy or girl
                   for a known authority figure
       •   Attempt to establish rapport with the child with a series of unrelated questions before
           moving on to the more important questions




•
        •   Conduct a fonnal, documented interview as soon as possible after initial outcry. Try to




•       •
            limit other discussions/interviews with family members before this interview, as these
            discussions can be very suggestive
            Limit repeat interviews if possible. The Sam Stone paradigm of research has
            demonstrated that off-the-cuff and non-factual narrative offered by children in one
            interview are often recalled as factual memories in subsequent interviews, especially if
            the content of that narrative is encouraged or met with positive response by the
            interviewers.
    Ask this if you \vant, I think it"d be a decent way to end: It's the defense's argument that the
    children in this case were brainwashed to believe that these events happened. Is there any
    evidence in your field that this is possible?
    Brainwashing is really more of a colloquial tenn than one we use routinely in the field. What
    I'm comfortable saying is that there is empirical evidence that people can come to remember
    things that didn't occur because that suggestion was made to them. Sometimes those suggestions
    are deliberate and purposeful, as in the lost in the mall procedure, and other times those
    suggestions are unintentional-such as might occur when an investigator asks if something
    happened.



•           I would reiterate that the biggest and most persistent misconception about memory is that
    once they're formed in the brain, they don't change. Memories are not shrink-wrapped facts
    stored in the brain waiting to be opened. They're reconstructed each time an event is re-
    experienced mentally, and every time that happens what's re-experienced is different. How you
    ask questions can change how memories are reconstructed, just as how an interviewer responds
    to answers can change how memories are reconstructed next time. It's an incredibly dynamic
    process. I wouldn't call that brainwashing, I would say that memories are very malleable and
    change over time .




•
•   Bac1<2round information

    .lust an FYI seCiion-il sounds like yozi 've already got a lot ofbackgrowul info. Some ofiizis is
    voy similar 10 my talk in Houston.


    General Memory Q&A
    Probably the most common metaphors used to describe human memory are that "memory
    is a videotape" and "memory works like storage on a computer disk." Are these good
    analogies for human memory?
            No, and this is probably the most important finding of the last 100 years or so in memory
    research. Both videotapes and computer disks are reproductive media, meaning that they store
    information in a more-or-less literal manner.
            Both representmemory as being static and unchanging, and imply that what is stored in memory    I
    is always a faithful representation of the actual event. Furthermore, both metaphors suggest that       ·
    memory retains everything that has ever happened to us, implying that all events are ultimately
    retrievable. For example, we may have a difficult time remembering something, just as we might have




•
    troubling finding a certain 5-second clip on a videotape. Since we will eventually find this 5-second
    segment if we keep rewinding and reviewing the videotape, we often assume memories will be similarly I
                                                                                                            I
    accessible.
            But memory is not like a videotape or hard disk. Videotape and hard disks are
    reproductive storage device, always retrieving the same information. In addition, what is stored
    on the tape or disk is a literal representation of the original event. But memory does not work
    this way. In fact, the single most important principle underlying memory is this: memozy is a
    dynamic, creative, and reconstructive process. Memory works by storing bits and pieces of the
    original events, combining those fragments with other sources of information to reconstruct the
    original event.
    What are the basic processes used in memory formation and retrieval?
           Memory researchers typically speak of memory formation as having three distinct stages,
    encoding of new information, consolidation and storage of the information, and retrieval of the
    memory. The process of encoding refers to the conversion of perceptual and sensory




•
    information into a form that the brain can represent and store. In virtually all cases, encoding



•   alters the sensory information in some way In fact, two people listening to the same
    conversation may have drastically different recollections of the same event Memory researchers
    would say that these two individuals encoded the information in different ways.
            A great deal of what we call "forgetting" Is often a failure of the encoding process. One
    classic demonstration involves the inability of most people to recall the front of a penny from
    memory. Which way does Lincoln face? Where is the date? What is written across the top and
    bottom of the coin? Some people can get close, but few are able to draw the coin with complete
    accuracy. Even when shown several possible alternatives and asked to identify the correct one--
    usually, recognition is easier than recall--this task is still difficult. We might be tempted to say
    that we "forgot" what a penny looks like, but it would be more accurate to say we never knew in
    the first place. Memory fails because the information was never encoded to begin with.
            2. Consolidation and Storage
            Consolidation is the term used to refer to the process by which short-term memories are
    converted into long-term memories. Consolidation of memories in the brain is something like
    water being frozen into ice cubes. Both processes take time, and both can be disrupted. For




•
    example, if an ice cube tray filled with water is taken from the freezer and vigorously shaken
    before the cubes have started forming, the process of ice cube formation has been irreversibly
    stopped. Once the water is spilled from the tray, there is nothing that can be done to get that
    water back in. Generally speaking, the degree of disruption is directly related to the severity of
    the injury.
            Storage refers to the preservation of the memory over a period of time. One of the most
    profound generalizations one can make about memory is that memory strength and accuracy
    declines predictably with the passage of time.
            3. Retrieval
            Finally, retrieval is the process of finding and accessing previously stored memories.
    Retrieval does not occur in a vacuum. It is guided by retrieval cues, or bits of information that
    are related to items stored in memory. Retrieval cues can exert powerful effects on memory.
    Unfortunately, retrieval is the stage of memory where errors are most likely to be introduced
    Memory is a reconstructive phenomenon, a.'ld most of the reconstruction occurs during retrieval.




•
    When misleading or biasing cues exist at retrieval, they can seriously compromise the accuracy



•   of retrieval.
    If memory is reconstructive, then, it must make errors. Has a taxonomy of memory errors
    and distortions been developed?
            Harvard University psychologist DanielSchacter, one of the country's most prolific and
    distinguished memory researchers, recently identified seven factors clearly shown to reduce the
    reliability of memory. He identifies these as follows:
        •   transience, or forgetting that occurs with the passage of time. As discussed earlier this is
            per~aps   the most profound generalization one can make about memory.
        •   absent-mindedness, a lapse in attention during an event that inhibits (or precludes
            entirely) the successful encoding of a memory. As noted earlier, such encoding failures
            are devastating; one cannot retrieve what was never encoded to begin with.
        •   blocking, or the inability to retrieve information due to interference by other items sto~ed
            in memory. For example, learning a new computer password is often complicated by the
            intrusive recollection of previous passwords.
       •    misattribution, whereby an event that occurred in one context is mistakenly attributed to




•
            another. Furthermore, sometimes current feelings of familiarity are mistakenly attributed
            to past events. Phenomena such as source confusion and even deji1 vu result from
            misattribution.
       •    suggestibility, in which misleading information from external sources are used to
            influence memory. In product identification cases, this can often result from reviewing
            photobooks or reviewing information obtained from Internet searches. (The same factors
            can also result in misattribution, in which a product is identified as familiar, and thus
            selected. Having reviewed the product in a book of photos can induce a sense of
            familiarity, even when a product was never actually used.)
       •    bias, where various factors cause distortions in memory. Change and consistency biases
            cause us to reconstruct the past in a way that is different from (for change biases) or
            similar to (for consistency biases) the present. If memory of our past behavior is
            disturbing in some way, we may reconstruct the memory in a less threatening manner.
            Hindsight biases occur when we reinterpret past events in terms of currently available




•
            (but initially unavailable) infonnation. Egocentric biases occur when we exaggerate our



•       •
            role or importance in past events. Finally, stereotypical biases influence memory by
            distorting them based on generic memories, what "usually" or "probably" happened.
            persistence, in which (usually) emotionally charged memories intrusively come to mind,
            even when we attempt to suppress them. Persistence is responsible for such clinical
            phenomena as post-traumatic stress disorder and flashbulb memories.


    Does inaccurate identification by eyewitnesses cause innocent people to be convicted?
            Memory's reconstructive nature has profound implications one the role eyewitness
    memory testimony in the courtroom. Recent advances in DNA technology has further
    demonstrate eyewitness fallibility. Based on infonnation tracked by the Innocence Project, by
    August, 2007, more that 200 falsely convicted individuals have been exonerated by DNA
    evidence. Mistaken eyewitness identification was involved in more than 75% of those false
    convictions (see Innocence Project, 2008; The Justice Project, 2007).


    What kind of errors are common among eyewitnesses?




•
            1. Source Monitoring and Source Confusion
            Source monitoring is defined as the ability to recall not only the content of memories,
    but also the source from which the infonnation was obtained. According to Johnson et al,
    ( 1993 ), •'source monitoring is based on qualities of experience resulting from combinations of
    perceptual and reflective processes, usually requires relatively differentiated phenomenal
    experience, and involves attributions varying in deliberateness. These judgments evaluate
    information according to flexible criteria and are subject to error and disruption" (p. 3).
            Source confusion, then, results from a failure of source memory. Source confusion
    occurs when infonnation is learned from·one source but misattributed to another source. This
    can occur when witnesses are shown photographs of suspects or objects prior to questioning, and
    later are asked to identify the suspects or objects. In cases where the source of the infonnation is
    entirely forgotten, source confusion can still exert effects by increasing self-reported confidence.
            Source confusion can also result from simply thinking about something. For example,
    individuals who are asked to imagine that a remote event happened to them later have difficulty




•
    in distinguishing actual events from imagined events, a phenomenon known as "imagination




•   inflation" (M. Garry & Polaschek, 2000; Roediger & McDermott, 2000). A person's subjective
    confidence in these memories is similarly inflated by imagination (Maryanne Garry, Manning,
    Loftus, & Sherman, 1996), further illustrating why confidence is not a reliable indicator of
    accuracy. The erroneous memories are quickly and easily formed; they can be created in real-
    world settings with a single imagination episode, within a few days of the imagined event
    (Seamon, Philbin, & Harrison, 2006).
            2. Demand Characteristics
           Demand characteristics refer to biases introduced in research by the expectations of the
    researchers, the participants, or both. Well-known "halo effects" often occur in education
    settings, with teachers assigning higher grades to students from which they had expected better
    performance.
           In eyewitness memory settings, demand characteristics operate in any situation where
    there is an expectation of the witness. Most witnesses in criminal cases want to be helpful to the
    investigators, to be "good witnesses." When asked to view lineups in the presence of police
    officers, witnesses frequently make an identification even when they are uncertain (Wells &
    Luus, 1990). For this reason, the US. Dept. of Justice now recommends that lineups be



•   conducted by individuals who are unaware which person is the actual suspect (U.S. Department
    of Justice, 19g9).
           Demand characteristics combine Schacter's "bias" and "suggestibility."
           3. Leading Questions
           Leading questions, as described in an earlier section, introduce errors through the
    reconstructive processes of retrieval. Information present in the questions themselves becomes
    incorporated into a witness's memory. Furthermore, these effects are persistent; the biasing
    effects may permanently change the memory for an event. Leading questions result from
    Schacter's "suggestibility" and are exaggerated by the problems of transience.
           4~   Hindsight bias.
           Hindsight bias refers to the tendency of witnesses to report higher subjective confidence
    after making an identification than before. The diagnostic value of the confidence judgment,
    however, is impaired. This effect is exacerbated by any verbal reinforcement given after an




•
    identification is made. Wells (Wells & Bradfield, 1998) found that telling eyewitnesses "good,




•   you identified the suspect" distorted further report. These biases need not be explicit, however.
    If a witness makes an identification but is asked to "look again," the implied message (i. e., the
    demand characteristics) is that the first identification was wrong (Wells & Bradfield, 1999).
            5. Encoding Failures
            Some memory errors can be overcome. Sometimes retrieval of information is
    temporarily blocked, as in so-called "Tip of the Tongue" states. When retrieval blocks are
    removed (either experimentally, or by the passage of time), the correct answer can often be
    retrieved.
            Encoding failures, however, are "fatal" memory errors. Information that was never
    encoded in the first place is impossible to retrieve. Poorly encoded information, on the other
    hand, is more likely to suffer suggestibility effects (Hyman & Loftus, 2002).
            Encoding failures are the cause ofSchacter's "absent-mindedness."
            6. Post-Event Information
            Because memories are not static snapshots in time, they can be influenced by events or
    information learned after the event in question. That is, our memories for the past are influenced
    not only by the events itself, but by what we have learned since the event happened. Post-event



•   information has its greatest effect when there is a relatively long delay between the event and
    post-event information and a short delay between the information and the test (Loftus, Miller, &
    Burns, 1978). Furthermore, it is difficult or impossible for witnesses to distinguish post-event
    information from real event information, a phenomenon known as the "knew-it-all-along effect"
    (Metcalfe, 2000).
           Mazzoni and her colleagues (Mazzoni, Loftus, & Kirsch, 2001) have proposed that the
    creation of false memories can be understood as a 3-phase process. First, individuals have to see
    the event as plausible, something that could have happened to them. Second, individuals come
    to believe that the event did happen to them, and begin imagining or generating elaborations
    concerning the fictitious event. Finally, individuals begin to mistake these internally generated
    events and details for external, real events (a problem of source confusion) .




•
•



•

    I

    I·
    I




•
     911112014                                                      Print


         Subject:   RE: Creating memories

         From:      Terrell, Dr. Trent (TTerrell@umhb.edu)

    .To:            tiger_russell@att.net;

         Date:      Monday, August 25, 2014 8:40AM




                                                                                                                             '
       Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably the earliest 1




       I could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university        '
       assembly, so that would be a perfect day for me to be there at any time.



       Thanks ...



       Trent Terrell, Ph.D.

        Associate Professor and Chair, Psychology

        University of Mary Hardin-Baylor

       900 College Street, Box 8014

•      Belton, TX 76513

       254-295-4630

       tterrell@umhb.edu




       From: Terence Russell [mailto:tiger_ russell@att.net]
       Sent: Sunday, August 24, 2014 9: II PM
       To: Terrell, Dr. Trent
       Subject: Re: Creating memories



       I am hopeful. I should know tomorrow if it will be Tuesday or Wednesday.

       Terence A. "Tiger" Russell

       Attorney & Counselor at Law

       PO Box 306




•      Hillsboro, Texas 76645

     about:blank
        9/11/2014                                                      Print


            Subject:   Re: Creating memories



    .To:    From:



            Date:
                       Tiger Russell (tiger_russell@att.net)

                       TT errell@umhb.edu;

                       Tuesday, August 26, 2014 8:57AM



          From discussions with the State and Judge yesterday, it was confirmed that you would not be called
          before Wednesday.

          Terence A. "Tiger" Russell
          Attorney at Law
          PO Box 306
          Hillsboro, Texas 76645

          254-396-3219
          254-582-5593 (fax)

          Sent from my awesome new iPad!

          On Aug 25, 2014, at 8:40AM, "Terrell, Dr. Trent" <TTerrellCw.umhb.edu> wrote:


          Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably. the earliest
          l could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university
          assembly, so that would be a perfect day for me to be there at any time.
    •


          Thanks ...



          Trent Terrell, Ph.D.

          Associate Professor and Chair, Psychology

          University of Mary Hardin-Baylor

          900 College Street, Box 8014

          Belton, TX 76513

          254-295-4630

          tterreiiCliiumhb.edu




•         From: Terence Russell [mailto:tiger russell@att.net]



                                                                                                                               r
        aboul:blank




                                                                                                                                   I
    9/11/2014                                                       Print


        Subject:   Re: Creating memories

        From:      Tiger Russell (tiger_russell@att.net)




•       To:
        Date:
                   TTerrell@umhb.edu;

                   Tuesday, August 26, 2014 4:04PM



       Location is correct. Just talked with Court and judge said it would be safe to be here by 12:30 p.m. State
       has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court
                                                                                                                  1
       say we will take early lunch and start earlier following lunch.                                            ·
                                                                                                                                 I
      Terence A. "Tiger" Russell                                                                                                 I
      Attorney at Law                                                                                                            I
      PO Box 306
      Hillsboro, Texas 76645

      254-396-3219
      254-582-5593 (fax)

       Sent from my awesome new iPad!

      On Aug 26, 2014, at 9:17AM, "Terrell. Dr. Trent" <TTerrellCiV.umhb.edu> wrote:


      Good deal. If you can just let me know sometime tonight what time you think you 'II need me, anytime tomorrow ,
      should work. I would be great with getting there at 9 AM and being first up, if that's when court starts.     I
•
                                                                                                                                 I



      Is this where I'm headed?: Hill County Courthouse, 1 North Waco Street, Hillsboro, Texas 76645



      1 updated the direct a little bit (see attached). I really didn't change the content, but I just incorporated some more
      questions for you to ask me so as to keep me on point.



      Thanks,

      Trent



      Trent Terrell, Ph.D.

      Associate Professor and Chair, Psychology

      University of Mary Hardin-Baylor

•     900 College Street, Box 8014
    about:blank                                                                                                                 1/11
    9/11/2014                                                  Print


        Subject:   Re: Creating memories



.To:    From:



        Date:
                   Terrell, Dr. Trent (TTerrell@umhb.edu)

                   tiger_russell@att.net;

                   Wednesday, August 27, 2014 7:02AM



       Terence,

       I still haven't received any info from you about when I should appear in court. I'm persisting in emailing
       you because you said this was the best way to contact you.

      Lacking any further information, I'm heading into the office this morning. I have obligations there that I
      can work around with notice, but without a concrete time to plan around I have to give my full-time job
      priority. As I said, I have a night class this evening and a 9:30-2:30 teaching schedule
      Tuesday/Thursday. I also have meetings scheduled today that I could've missed, but I'll move forward
      with my regular schedule unless I hear from you very soon.

      Thanks,
      Trent

      Sent from my iPhone

      >On Aug 26,2014, at 7:40PM, "Tiger Russell" <tiger_russell@att.net> wrote:

•     ~ Did you receive my earlier message about the time?
      >
      > Terence A. "Tiger" Russell
      > Attorney at Law
      >PO Box 306
      >Hillsboro, Texas 76645
      >
      > 254-396-3219
      > 254-582-5593 (fax)
      >
      > Sent from my awesome new iPad!
      >
      >>On Aug 26, 2014, at 6:22PM, "Terrell, Dr. Trent" <TTerrell@umhb.edu> wrote:
      >>
      >>Please advise as soon as possible this evening when you'll need me tomorrow, so I can plan out my
      day. It's at least an hour drive, depending on 35. I do have an evening class starting at 6, so need to be
      done before the end of the day in order to get back in time.
      >>
      >>Thanks ..
      >>
      >>Sent from my iPhone
      >>



•
      >>On Aug 26, 2014, at 8:57 AM, "Tiger Russell" <tiger_russell@att.net<mailto:tiger_ russell@att.net>>
      wrote:
    about:blank                                                                                                     1/9
9/11/2014                                                     Print


     Subject:. Re: Creating memories

     From:         Terence Russell (tiger_russell@att.net)




•    To:

     Date:
                   Tierrell@umhb.edu;

                   Tuesday, August 26, 2014 10:23 PM



    Judge said it would be safe to be here by 12:30 p.m. State has 3 witnesses for the morning, so we should
    reach you after lunch. If State finishes before lunch, Court say we will take early lunch and start earlier
    following lunch.

    Terence A. "Tiger" Russel1
    Attorney & Counselor at Law
    PO Box 306
    Hillsboro, Texas 76645
    254-580-9282
    254-582-5593 (fax)

    On Aug 26, 2014, at 7:41 PM, "Terrell, Dr. Trent" <TTerrell@umhb.edu> wrote:


               No, all I got this morning was that you wouldn't need me before Wednesday. So, what time
               will you need me?




•
               Sent from my iPhone


                    On Aug 26, 2014, at 7:40PM, "Tiger Russell" <tiger_russell@att.net> wrote:



                    Did you receive my earlier message about the time?



                    Terence A. "Tiger" Russell

                    Attorney at Law

                    PO Box 306

                    Hillsboro, Texas 76645



                    254-396-3219

                    254-582-5593 (fax)




•
about: blank                                                                                                      1/16
.J

                                                                                               038732

                                                                                           10/06/2014

                    TERENCE   A.    RUSSELL     **                                      *****2, 633.00

     ---- TWO THOUSAND SIX HUNDRED THIRTY THREE & 00/10D DOLLARS ----



           ** TERENCE A. RUSSELL **
           P. 0. BOX 306
           HILLSBORO, TX 76645-0306




     01-6260           TERENCE     A.   RUSSELL                                   038732 (10/06/2014

         DATE       I. D.                  PO   ll                                             AMOUNT
                         --------------------- G/L
       8/29/2014   201409157394                                                              2, 633.00
             37228  IN/CT: (7/14/14, 8/20/14,8/29/14
             (8/25-28/14 @ $300)




                                                                          CHECK TOTAL        2,633.00




     01-6260                            RUSSELL      **                           038732   10/06/2014

                                                                                               AMOUNT
                                                                  JAMES   DUVAL              2,633.00




                •• TERENCE A. RUSSELL **
                P. 0. BOX 306
                HILLSBORO, TX 76645-0306                                  CHECK TOTAL        2,633.00
.·
                                                               HILL COUNTY, TEXAS ATTORNEY FEE VOUCHER
     I. Jurisdiction                         2. County                  3. Cause Number                          Offense                              4. Proceedings
     181 District      OCounty
                                                                        37 228                      Agg Sexual Assault - Child                        181T rial-Jury DTrial-Court
                                                                                                                                   (Count I)
     0 County Court at Law                   Hill
                                                                                                  lndecenc:t w/Child - Contact     (Count 2)          DPJea-Open OPiea- Bargain
     Court# 66th
                                                                                                  lndecenc:t w/Child -   ExQ~ure   jCount 3)          DOther

     5. In the case of:
                            State of Texas v James Duval R_r_der
     6. Case Level
     181 Felony D Misdemeanor 0 Juvenile D Appeal 0 Capital Case                                                            i


     D Revocation - Felony         0 Revocation- Misdemeanor DNo Charges Filed 0 Other

     7. Attorney (Full Name)                                                         9. Attorney Address (Include Law Firm Name if                     10. Telepho'le,..
                                                                                                                                                      (254);~
     Terence A. (Tiger) Russell, Attorney at Law                                     Applicable)
                                                                                     Terence A. (Tiger) Russell, Attorney at Law
     8. State Bar Number                18a. Tax JD Numher                           P. 0. Box 306                                                     II. l;ax.
     17437070                            XXX-XX-XXXX                                 Hillsboro, TX 76645-0306                                         .(2~) 582~ ~
     12. Flat Fee · ( ourt Apoointed Services                                                                                                   ~      12a~~tFee

                                                                                                                                                     ~
                                                                                                                                               ,£
                                        l                                                                                                A\ ,
     13.       In Court Services                                                                     Hours             Dates               ~         13a}'l'otal In Court Compensation.
               (Non-Jury) Hearing                                                                      I               7/14114 ~'1-b.-=-::           ,.,.,                                   ~.>•
                                                                                                                                                                                              :·· ..     ,
                                                                                                                                                                                                       ....._,   ~.
               (Non-Jury) Hearing                                                                      I               8/20/14""' •7 ,)\,                                                    -~ ~~·-
               Jury Selection & begin Jury Trial                                                       7               8/25/l't\,.- ~tc>l.,
               J_ury Trial                                                                             7               8/26114 '            .,                                               J'-' ''1-
                                                                                                                                     .3C:t>                                                   l'    "'" e
               Jury Trial                                                                              7               8/2'71J4 - '\'?{DO "                                                        t<-:"J)
                                                                                                                                                                                             .£(<!.;(-~
               Jury Trial                                                                              7          'b . 8/28il42- _, 'Oof) ,/
               (Non-Jury) Hearing                                                                      I           '•'8129/14          ']{)     ,                                            ,I     <;' ..
                                                                                                                                                       $2700.00                              /Z ()tJ-
               **Rate per Day =$70.00 (NON-JURY),
                                 $300/per half dav (JUR Yl
                                                                        Hours: 3 NJ ~ $ 300
                                                                                    28 J = $2400
                                                                                                     31.
                                                                                                     Ail.                V''V                                                               -"!,   .:,,/.'~ ·.··

     14.        Out of Court Services                                                                IIO.urs           (,)ates                         14a. Total Out of Court
               Consultation/Communications with Defendant                                    Ap:IJ_ ~.'5 "             06/28/201:!                     Compensation.
               Investigation & Research, Prep of Motions, etc. (past & future)             L"          3.m..\. .•      through 08/29/20 14
               Watching Videos, Listening to Interviews                                 K~             1.5 Y_
               lnterviewi11g_ witnesses, com:sl'_ondence/phone w/Expert A'                                                                                                                       I '7)\
                                                                                              ~ 3.5                                                                                          _.,
               Preparation of ooening/closing, trial strategy, questions
               Discussions with DA
               **Rate per Hour= $70.00
                                                                        ,-..;
                                                                       T'OtarHours -20
                                                                                         '
                                                                                              ,'.
                                                                                                    V"'4.0
                                                                                                       1.5
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                                                                                                                                                       s 2000.00                              -I
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                                                                                         "
                                                                  ,.(
     15.       I nvesti2ator                                        ~     <
                                                                                   '\
                                                                                        ,                              Amount                           I Sa. Total Investigator Expenses
                                                           ~~            ...._.... !l                                                                  s
     16.       Expert Witness                                .A~
                                                                   ~\
                                                                    'll
                                                                               '\\                                        Amount                       16a. Total Expert W1tness
                                                          I!    ~..,/                                                                                  Expenses
                                                          g.
                                                                                                                                                       $       .
                                                                 \
     17.       Other Litig_ation Ex_11_enses     \.~        J                                                             Amount                       17a. Total Other Lit1gat10n                ..
               Purchase of Certified CQI>Y of Pleadiif!fftlim Hill Co.                                                                                 Expenses
                                                                                                                                                          $33.00
                                   """'""                                                ./                                 /
     18. Time Period      ofserv".Rende~om
                            A '~.,.       ~t,
                                                                        06/28/2012
                                                                            Date
                                                                                                        to      08/29/2014
                                                                                                                        Date
           Addition2~'\-Y                                                                                                                               20. Total Compensation and
                                                                                              <

     19.                                                                                                                                                Expenses Claimed     ·
                                                                                                                                                        $4733.00
     21. Attorney Certification~!, the undersigned attorney, certify that the above infnrmation is' true and correct and in accordance with the laws of the State of
     Texas. The compeiisation' and expenses claimed were reasonable and necessary to provide effective assistance of counsel.
                              y -..                  '                               /
     181 Final Payment OPartial
                                            --.      Ju.,,_ /{. ;.Z.h-f-'~{_                                                                        08129/2014
                                                                                                                                                                                             t
                                                           Signature                                                                                  Date


     22. SIGNATURE OF PRESIDING JUDGE:
                                                                L_p,p_,                                                          L1                    ~OZJ)~
                                                                                         .L *·~
                                                         _.,.,.....-L_ . _ . -                                                   ~                                                   I1A
     Reason(s)      ~r Denial or V;t;;,on           t.4 .£              J.~~                      ~          ~~~_j)- ~-                                                              ~
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                                                                                    ,             "'~            '"'       ...       -
                          '
                       Adopted I0123/02 - Task Force on lodigenl Defense
                                                                      \.




Receipt# 44595
Cause #                                                       33.00
                                               Total Paid:   $33.00

Total Paid:          $33.00    by
PAYEE:
         Terence Russell




Angeli a orr, Districrcler ··
P. 0. Box 634        ~   1
Hillsboro, Tx 7~5 ~
(254) 582-4042 . ' -
Make online   ·dayme~ss~24    hours a day at
http://www~.ov~~.com/hillcountydccivil/
1   ..r   •   J   f




                                                                                                                                             . I




                                                                                 CAUSE NO. 37,228


                      STATE OF TEXAS                                                            §      IN THE 66TH JUDICIAL
                                                                                                §
                      v.                                                                        §      DISTRICT COURT OF
                                                                                                §
                      JAMES DUVAL RYDER                                                         §      HILL COUNTY, TEXAS


                                                                   ORDER ON MOTION TO WITHDRAW

                                                                                   as~~ o
                                  After considering Stephanie W. Johnson's Motion to Withdraw

                      Court GRANTS the Motion and orders Stephanie W. Johnson withp~~orney of record for

                      Defendant, James Duval Ryder.                        ~""Y
                                  ORDERS                \e_r.e. .vtQ..c__ ~..S.S -e. //'t'~ ·                            be substituted as attorney

                      in charge for Defendant.                                                      L '\    '<;:. Y                      .

                                  SIGNED on             ?.z        day   o~April, 201(~

                                                                             ~.:61£~
                                                                    ~::......'     .. . . .--          Judge Presiding




                      ORDER ON MOTION TO WITHDRAW AS ATTORNEY OF RECORD                                                                        Page I
                      K:'"SWJ1Rydci-12.222\Withdraw2.ord.wpd•50c
EXHIBIT F
                                                                                                         1


 1                               REPORTER'S RECORD
 2                 TRIAL COURT CAUSE NO. 37,695-A
 3                           VOLUME .1 OF 1 VOLUMES
 4

 5   STATE OF TEXAS                                )(          IN THE DISTRICT COURT
                                                   )(
 6                                                 )(
     v.                                            )(          HILL COUNTY, TEXAS
 7                                                 )(
     THOMAS ERIC· LEE                              )(
 8                                             I   )   (

                                                   )(          66TH JUDICIAL DISTRICT
 9
10   --------------   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -' - - - - - - -
11                    HEARING ON FINDINGS OF FACT
12                           WRIT OF HABEAS CORPUS
13
14
15             On the 25th of November, 2014, the following
16   proceedings came on to be held in the above-titled and
17   numbered cause before the Honorable Alan M. Mayfield,
18   Senior District Judge·, held in Hillsboro, Hill County,
19   Texas:
20             Proceedings reported by machine shorthand.
21
22
23
24
25



                        SHERRY FOLCHERT, CSR               *   817-946-5399
                                                        2
                           ·f



 1                     A P P EA RA NC E 5
 2   PRESIDING JUDGE:
          Alan M. Mayfield
 3        Senior District Judge
          15826 Wortham Bend Road
 4        China Spring, TX 76633
          254-723-6360
 5
     FOR THE STATE:
 6        Mark Frederick Pratt
          SBOT NO. 16240550
 7        District Attorney, Hill County
          Hill County Courthouse
 8        PO Box 400
          Hillsboro, TX 76645
 9        254-582-4070
10
     FOR THE DEFENDANT:
11        Edward Alan Bennett
          SBOT NO. 02140700
12        SHEEHY, LOVELACE & MAYFIELD, P.C.
          510 North Valley Mills Drive, Suite 500
13        Waco, Texas 76710
          254-772-8022
14
15
16
17
18
19
20
21
22
23
24
25



                                                    (
                                                                                                           3


 1                                                 INDEX
 2                              HEARING - FINDINGS OF FACT
                                  WRIT OF HABEAS CORPUS
 3
 4   NOVEMBER 25, 2014
 5

 6                                                                                                PAGE
 7   Caption............................................                                               1
     Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        2
 8
     Thomas Eric Lee
 9
     Examination by Mr. Bennett.........................                                            6
10   Examination by Mr. Pratt...........................                                           15
     Further Examination by Mr. Bennett.................                                           25
11   Further Examination by Mr. Bennett .................                                          41
     Further Examination by Mr. Pratt. . . . . . . . . . . . . . . . . . .                         44
12
     Terence Russell
13
     Examination by Judge Mayfield......................                                           31
14   Examination by Mr. Bennett .........................                                          33
     Examination by Mr. Pratt...........................                                           35
15   Further Examination by Mr. Bennett .................                                          37
     Further Examination by Mr. Pratt...................                                           38
16
     Court Reporter's Certificate .......................                                          48
17

18                                       STATE'S EXHIBITS
19   NO.     DESCRI PT I O'N                                             OFFERED         ADMITTED
20   1        Final Pretrial conference summary                                28                 28

21
22

23
24
25
                                                                               4


 1                          P R0 C E E D I NGS
 2                   (Open court, Defendant present)
 3                   THE COURT:       We are here in Cause No.
 4     37,695-A in regard to a Writ of Habeas Corpus that's
 5     been filed by Thtimas Eric Lee with the Court of Criminal
 6     Appeals.   The Court of Criminal Appeals has directed
 7     that the originating court hold a hearing to establish
 8     and enter findings of fact to be sent to the Court of
 9     Criminal Appeals for their consideration.
10                   Judge A. Lee Harris has appointed me, Alan
11     Mayfield, by order to hold the hearing.                 And so that's
12     what we're here for.
13                   Present in the court today is the District
14     Attorney, Mr. Alan Bennett and Mr. Thomas Eric Lee.
15                   And also subpoenaed as a witness and
16     present is. Mr. Terence Russell.
17 ·                 So I'm ready to proceed ..
18                   Are you ready to proceed, Mr. Bennett?
19                   MR. BENNETT:        Yes, Your Honor.
20                   THE COURT:       Is the State ready?
21                   MR. PRATT:       Ready, Your Honor.
22                   THE COURT:       Thank you very much.
23                   You may call your first witness.
24                   MR. BENNETT:        Your Honor, I will call
25     Mr. Thomas Lee.




                         SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                              5


 1                THE COURT:         Okay.        Mr. Lee, if you would
 2   I tell you what I'm going to do, if you can hear him
 3   from where he's at, I'm going to let you testify from
 4   where you're at, because getting up and down to this
 5   witness stand is going to be awkward.
 6                MR. BENNETT:         Your Honor, we'd also invoke
 7   the Rule.
 8                THE COURT:         Okay.
 9                Mr. Russell, if you will wait out in the
10   the foyer, .outside the hearing and the presence of the
11   witness.
12                Just go ahead and close the door if you
13   would.
14                 (Mr. Russell excused from the hearing)
15                THE COURT:         Mr. Lee, raise your hand.
16                 (Defendant was sworn)
17                THE DEFENDANT:         Yes, sir.
18                THE COURT:         Thank you very much.
19                I'm going to ask that if the witness -- or
20   if the court reporter can't hear you, that we'll move
21   your chair over closer to her           -~


22                THE DEFENDANT:         Yes, sir.
23                THE COURT:     I      if she has any difficulty.
24                But do keep your           ~oice     reasonably up.   But
                             I

25   we don't want it real loud because we don't want it




                    SHERRY FOLCHERT, CSR      *   817-946-5399
                                                                 6


 1   overheard out in the foyer.
 2                    MR. BENNETT:     Thank you, Your Honor.
 3                           THOMAS ERIC LEE,
 4   having been first duly sworn, testified as follows:
 5                               EXAMINATION
 6   BY MR. BENNETT:
 7       Q.   Mr. Lee, will you please state your name for
 8   the record.
 9       A.   Thomas Eric Lee.
10       Q.   And you are currently serving a sentence for
11   unauthorized use of a motor vehicle; is that right?
12       A.   Yes, sir.
13       Q.   Was that enhanced with prior convictions?
14       A.   Yes, sir.
15       Q.   And what is your sentence for that?
16       A.   Eight years.
17       Q.   Okay:     And that was in this cause number that
18   we're here in court on today, 37,695; is that right?
19       A.   Yes, sir.
20       Q.   And you were sentenced on August the 9th of
21   2013; i s that right?
22       A.   Yes, sir.
23       Q.   Okay.     Now, I believe you pleaded no contest or
24   nolo contendere; is that right?
25       A.   Yes, sir.




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                              7


 1        Q.   All right.     So let's talk a little bit about
 2    the hearing when you did that.              Okay?
 3        A.   Okay.
 4'       Q.   Now, at that time you were charged with two
 5    felonies; is that correct?                                          \

 6        A.   Yes, sir.
 7        Q.   You were charged with unauthorized use of a
 8    motor vehicle and you were charged with being a felon in
 9    possession of a weapon?
10        A.   Yes, sir.
11        Q.   Okay.   Were there two separate indictments or
12    were they both in this case?
13        A.   I'm not sure.
14        Q.   Okay.   But there were two            charge~?


15        A.   Yes, sir.
16        Q.   And had the State made a plea offer in your
17    case?
18        A.   Yes, sir.
19        Q.   And what was the offer?
20        A.   It was four years for the un-- unlawful use of
21    a motor vehicle and a felon with a firearm.                Four years
22    altogether.
23        Q.   Four years on both charges?
24        A.   Yes, sir.     Not -- not separate, but
25    altogether




                       SHERRY
                         ,_
                              FOLCHERT, CSR   *   817-946-5399
                                                                    8


 1       Q.    To run together?
 2       A.    Yes, sir.
 3       Q.    Okay.     And Mr. Terence Russell was your
 4   attorney; is that right?
 5       A.    Yes.
 6       Q.    Was he court appointed?
 7       A.    Yes, sir.
 8       Q.    Okay.     And did you convey to Mr. Russell that
 9   you felt like you were not guilty for the weapons
10   charge?
11       A.    What's "convey" mean?
12       Q.    Did you tell him that you didn't feel like you
13   were guilty of the weapons charge?
14       A.    Right.     Yes, sir.
15       Q.    And so you were trying to get just a plea
16   bargain on the unauthorized use charge, but the deal
17   that was given to you involved both?
18       A.    Right.
19       Q.    All right.      And you instructed Mr. Russell that
20   you wanted to contest       th~   weapons charge; is that right?
21       A.    Yes.     Yes.
22       Q.    And did you go to court for the purpose of
23   accepting a plea offer or were you just in the context
24   of a normal setting?
25       A.    Well, I was-- I-- I-- I wanted to go to




                        SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                  9


 1   trial.
 2       Q.    Okay.     You wanted to fight the charges?
 3       A.    Yes.
 4       Q.    Okay.     And did Mr. Russell do or say anything
 5   to you to persuade you that you ought to consider
 6   pleading guilty or no contest?
 7       A.    He just told me to hurry up because when he
 8   makes the bench, he's going to throw --.he's going to
 9   make sure I get the book thrown at me.
10       Q.    Okay.     So let's stop right there.
11                     Make the bench, was he running for election
12   for district judge?
13       A.    That's what he told me.
14       Q.    Okay.     And your case was pending in the
15   district court; is that right?
16       A.    Yes.
17       Q.    Okay.
18       A.    And - - can I speak on - - can I say something?
19   Oh, go ahead.
20       Q.    Okay.     So he told you he was going to be the
21   judge?
22       A.    Yes, sir.
23        Q.   And that he was going to throw the book at you
24   if your case was not resolved before --
25        A.   Yes, sir.




                        SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                               10


 1          Q.    --   before that time?
 2          A.   Right.
 3          Q.   Okay.
 4          A.   And he told me that several times.
 5          Q.   All in that one - - the same day or at different
 6   times?
 7          A.   He told me -- he told me that befo_re, too.              He
 8   told me that a couple of other times before I even
 9   came        because I think I came down here a couple of
10   times for hearings and stuff like that and he told me
11   that a couple of times, even told it right in front of
12   my wife.
13          Q.   Okay.      And so did that make you reconsider what
14   you were going to do with your case?
15          A.    I was just -- I was scared.             You know, I
16   didn't        I didn't know what was going to happen.              I --
17   you know, I take my 1 awyer' s advice.               You know.
18          Q.   So you trusted him and followed his advice?
19          A.   Yes, sir.
20          Q.   And because of what he told you repeatedly
21   about him taking the bench and then throwing the book at
22   you, that was what made you ultimately decide to plead
                        I


23   no contest?
24          A.   Yes, sir.
25          Q.   To the unauthorized use charge?




                            SHERRY FOLCHERT, CSR * 817-946-5399
                                                                                    11



      1        A.    Yes.
                      \


      2        Q.    And you did that without any kind of plea
      3   bargain or plea offer?
      4        A.    Right.
      5        a.                  I
                     But you were concerned that if you didn't do
      6   that, that Mr. Russell would be elected the judge and
      7   throw the book at you?
      8        A.    Yes, sir.
      9        Q.    If he had not made those statements to you,
     10   would you have insisted on having a trial in your case?
     11        A.    A trial or -- I'd have to go from there.
     12   Be c au s e I know for , one , I was n ' t g u i 1 t y of the pi st o 1
     13   charge.    And I was told -- Mr. -- Mr. Russell came and
     14   told me that if you drop -- they're going to -- that
     15   Mark Pratt would drop the pistol charge -- if you went
     16   in front of the trial by judge right now for sentencing,
(/



     17   he would drop the pistol charge.
     18        Q.    And that's what ultimately happened was you - -
     19   you pleaded no contest before the Judge?
     20        A.    Right.     Right.
     21         Q.   And there was kind of a mini trial - -
     22         A.    (Witness indicates.)
     23         Q.    - - j u.st in front of the judge, no jury?
     24         A.   Yes.
     25         Q.   And so your result - - you ended up waiving your




                              SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                             12


 1   right to a jury trial?
 2       A.   Yes.
 3       Q.   And just basically throwing yourself on the
 4   mercy of the Court?
 5       A.   Yes, sir.
 6       Q.   And you wouldn't have done that if Mr. Russell
 7   had told you differently?
 8       A.   No, sir.     No, sir.
 9       Q.   Okay.     And what ultimately happened was you
10   were sentenced to eight years?
11       A.   Yes.     And I -- I never did get a plea offer for
12   just the one, which I know I don't have to have a plea
13   offer on, right?
14       Q.   Right.     Okay.    So Judge Harris was the one that
15   sentenced you: is that right?
16       A.   Yes, sir.
17       Q.   And he sentenced you to eight years?
18       A.   Yes, sir.
19       Q.   That same afternoon?
20       A.   So -- and I have one question, too.                If he's a
21   misdemeanor judge -- and I know Mark Pratt just took
22   office the same time, why did we go in front of Mark
23   Pratt's judge, which it probably doesn't matter
24       Q.   Okay.     Well , I can -- I can help .you with that.
25       A.   Okay.




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                                 13



 1           a.   Just -- the record will reflect that Judge
 2   Harris is authorized to appear on behalf of Judge-
 3   McGregor.
 4           A.   Yes, sir.         Yes.    Yes, sir.
         (
 5           a.   Okay.
 6           A.   Yes.
 7           a.   And so that's why you were in front of Judge
 8   Harris.
 9           A.   Okay.
10           a.   Does that help you?
11           A.   Yes, sir.
12                           THE COURT:     In this county.
13                           MR. BENNETT:      In this county.
14                           THE COURT:     The County Court at Law has
15   con~urrent     jurisdiction in most cases with the district
16   court.
                         \
17                           THE DEFENDANT:      Okay.
18                           THE COURT:     And can by assignment be --
19   from the district court take cases.                       The Judge from that
20   court can then handle some of the district court --
21                           THE DEFENDANT:      Right.
22                           THE COURT:         cases.
23                           THE DEFENDANT:      Okay. (
24                           THE COURT:     And -- and that's done
25   occasionally.            Doesn't handle capital cases, but he




                               SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                          14


 1    could handle this type of case.
 2                 THE DEFENDANT:         Yes, sir.
 3                 THE COURT:        So that's how Judge Harris
 4    handles both misdemeanor and felony cases --
 5                 THE DEFENDANT:         Okay.
 6                 THE COURT: -- in his court, because of
 7    the -- the special jurisdiction that -- that the County
 8    Court at Law has been given in this county.
' 9                THE DEFENDANT:         Yes, sir.
10                 MR. BENNETT:         And every county is
11    different.
12                 THE DEFENDANT:         Right.
13        Q.   (By Mr. Bennett)        Okay.      So basically you have
14    the two charges.     Mr. Russell told you on more than one
15    occasion that you better hurry up and take a deal
16    because he was about to be elected judge and he would
17    throw the book at you if --
18        A.   Right.
19        Q.   --he was the judge?
20        A.   Right.
21        Q.   Did you know that if Mr. Russell had, in fact,
22    been elected judge, that he would not be allowed to
23    preside on your case?
24        A.   I -- I did not know that.
25        Q.   You had no reason to know that?




                        SHERRY FOLCHERT, CSR * 817-946-5399
                                                                       15


 1       A.   (Witness indicates.)
 2       Q.   And so as a result of these comments and
 3   statements that he made to you, you ended up pleading no
 4   contest to the unauthorized use charge?
 5       A.   Yes, sir.
 6       Q.   Because that's what he told you to do?
 7       A.   Uh-huh.
 8       Q.   And you were concerned about what would happen
 9   if he ended up being elected judge?
10       A.   Yes, sir.      He was always so fast i n talking
11   with me, you know, that          yeah.        I mean, yes, sir,
12   that's what happened.
13                   MR. BENNETT:      I'll pass the witness, Judge.
14                   THE COURT:     Do you have any questions?
15                   MR. PRATT:     Yes, Your Honor, I do.
16                               EXAMINATION
17   BY MR. PRATT:
18       Q.   So, Mr. Lee, as you understand it, the
19   indictment to which you plead is the one that's file
20   marked February 28, 2013, in which you were charged with
21   unauthorized use of a motor vehicle, two prior state
22   j ai 1 final felony convictions, and then it also alleged
23   an aggravated assault with a deadly weapon final felony
24   conviction.     Although, that didn't actually enhance your
25   punishment range in this particular case; is that right?




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                                    16


     1           A.     I don't know.
     2           Q.    You don't know what you plead to?
     3           A.     No, I mean I'm talking about the -- you said
     4   that it didn't enhance me and I didn't know what you             I




     5   meant.
     6           Q.     Okay.     Well, I believe that Judge Mayfield

I    7   already stated that your state jail felony punishment
     8   range for unauthorized use of a motor vehicle was
     9   enhanced to a third-degree felony punishment range
    10        A.       Yes, sir.      But you said something about the
    11   state jail;        The other I didn't know what you meant on
    12   that.        I'm sorry.
    13           Q.     Due to your two prior third degree -- I mean
    14   your two prior state j ai 1 felony convictions; is that
    15   correct?
    16           A.     Uh-huh.
    17           Q.     Is that a yes?
    18           A.    Yes, it was enhanced because of my last two
    19   state jail felonies.            I thought it was enhanced, too,
                                                                      (
    20   because of that other one, too.                   But you're saying it's
    21   not, so ...
    22           Q.     Okay.     And so you're saying you haven't had a
    23   chance to visit with          Mr~   Bennett, your current attorney,
    24   about any of that?
    25           A.     About what?




                                SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                         17


  1           Q.   What I -- what you just spoke about, sir.          What
  2    you just stated, that you didn't understand that about
  3    your indictment and what your range of punishment was.
  4           A.   I   know it was enhanced to a -- a third-degree
  5    felony, which carries two to ten on -- on state- j ai 1
  6    felonies.
  7           Q.   All right.
  8           A.   And I thought I was aware -- and I thought also
  9    my second-degree felony was part of that enhancement,
10     too, and I even took that as part of my enhancement,
 11    too.
12            Q.   Well, it certainly could be considered.by a
13     jury in assessing your punishment
14            A.   Right.
                                                                  ~




15            Q.       or a judge, for that matter, in deciding
16     what to do.
17            A.   Okay.
18            Q.   And you did agree that you were offered four
. 19   years in both this case and your other pending felony
 20    case, the weapons case, correct?
 21           A.   I   knew I was offered four years for both
 22 ·charges, yes.
 23           Q.   All right.      And when you actually went to court
 24    in this case, after having rejected that plea bargain
 25    offer, that was on July 29th, 2013, with a jury sitting




                            SHERRY FOLCHERT, CSR * 817-946-5399
                                                                             18


 1   in the courtroom ready to try that case at that moment,
 2   correct?
 3          A.   Well, I didn't know -- I wasn't aware of no
 4   trial, jury being there.
 5          a.   There was a jury sitting in the courtroom with
 6   you,   wasn'~    there?
 7          A.   I   don't remember, sir.
 8          a.   You don't remember that?
 9          A.   No, sir.
10          a.   Okay.    And while that jury was sitting there
11   well , 1 et me ask you this way, because you're saying
12   that what you were afraid of was somehow your attorney
13   becoming judge and sentencing you to something more,
14   right?
15          A.   I was just going by what he's saying, he's
16   going to throw the book at me.                 That's all I know.
17          a.   But you knew you could avoid that with the jury
18   that was sitting right there, because it was your jury
19   trial day and we all appeared in court to try your case,
20   when you decided to change your plea to no contest,
21   correct?
22          A.   I didn't know I was there for a trial day.              I
23   did not know that.
24          a.   So you didn't receive from Judge Harris a
25   notice that that was your jury trial day?




                         SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                          19


 1       A.   Not that I remember, no, sir.
 2       Q.   And you never discussed with your attorney that
 3   you had a-- a jury trial sitting?
 4       A.   No, sir.     Not that I remember.
 5       Q.   So you think it's possible you maybe forgot
 6   about that?
 7       A.   No, sir.     Not-- not-- not my trial, no, sir.
 8       Q.   All right.     So you don't believe that there'll
 9   be a record from our final pretrial conference setting
10   where you rejected the final pretrial offer and the jury
11   trial date was set July 29th, 2013, at 9:00a.m., and
12   that was signed by Judge Harris, signed by your
13   attorney, and it appears signed by yourself as well?
14       A.   I don't know, sir.
15       Q.   So you believe if we look at that transcript
16   that just -- that hearing won't have existed?
17       A.   I'm sure you could look at it and I may have
18   signed it.    But I     Mr. -- Mr. Russell was always going
19   so fast with signing stuff with my -- my deal, you know
20   what I mean, at my desk.
21       Q.   Well, didn't the Court go over that with you,
22   Judge McGregor or Judge Harris in court, in open court,
23   on what your trial date was and that you're rejecting
24   that offer and that was your jury trial date?              And, in
25   fact, when you came in, there was a jury sitting




                      SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                             20


 1   there--
 2          A.   We 11 --
 3          Q.   - - as we all handled       --

 4          A.   Well , if there was - -
 5          Q.   - - and then y'all came up and told me that you
 6   changed your mind, you didn't want to have the jury
 7   trial, you wanted to plead to the case?
 8          A.   If there        if there was a -- if_ that, in fact,
 9   did happen - -
10          Q.   Right.
11          A.   -- I was told to hurry up and get it over with
12   now.
13          Q.   Well, it wouldn't have been because you were
14   afraid of the judge being on the bench because he
15   obviously wasn't sitting on the bench.                    He was your
16   defense attorney and there.was a jury that was about to
17   decide your fate, right?
18          A.   I really wasn't aware of what was going on
19   because I just was told what Mr. Tiger -- Mr. Russell
20   told me.
21          Q.   And then, in fact, after pleading before --
22   pleading there in the courtroom, then you had a choice
23   of going to the jury for punishment or to the Judge for
24   punishment and you elected that you wanted to go before
25   Judge Harris for punishment, rather than a jury, didn't




                          SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                            21


 1   you?
 2          A.    Because I was told that my plea bargain -- I
 3   was told that my pistol charge would be dropped if I
 4   went to a trial with sentencing by a judge.               I was told
 5   that my pistol charge would be dropped.
 6          Q.    And that's the way you wanted to proceed to
 7   have your pistol charge dropped and proceed with
 8   sentencing before the judge on the -- on the UUMV
 9   charge?
10          A.     It happened so fast, I really didn't know what
11   was going on.       I mean I didn't have time to think or
12   any         nobody explained anything to me.          All I know i s I
13   was i n     a hurry - - to hurry up and get done so I didn't
14   get, you know, a harsher - - a harsher punishment.
15   That's all I know.        That's all I know.
16          Q.    So you believe that if - -
17          A.     I don't know what I believe.         All I know is
18   that         this i s what I'm telling you.        That Mr. Russell
19   told me if I don't hurry up, that I'm going to - - he's
20   going to throw the book at me when he takes the stand.
21   That's all I know.        That's why things went so fast and
22   this, that and the other.
23                     THE REPORTER:      Sir, I need you to slow down
24   just a little bit, please.
25                     THE DEFENDANT:       I'm sorry, ma'am.




                         SHERRY FOLCHERT, CSR * 817-946-5399
                                                                              22


 1          Q.     (By Mr. Pratt)       Now, you say when your attorney
 2    takes the stand, do -- do you believe that your attorney
 3    now is going to take the witness stand?
 4          A.    Take the stand, judge, whatever.                That's what I
 5    meant.     . Take the judge ...
 6                         Because he was running fo~ judge.           He told
 7    me that several times.           Several times that I came down.
 8          Q.    Well, if -- if -- really what you're trying to
 9    do was to get this matter over --
10          A.    I   --

11          Q.         with either by trial or by plea prior to
12    what you're saying is your belief that perhaps your
13    attorney was going to become judge.               I still don't
14    understand why that would have caused you to choose
15    not
16          A.    Just the way - -
17.         Q.    Can you please.
18          A.         he - -
19          Q.         let me finish asking my questions.
20          A.    Yes, sir.
21          Q.   . Thank you.
22                         Why that would have caused you to have
23    chosen to not have gone before a jury right then, when
24    you had one.         Either you had to -- if you were going to
25    try the matter, 'it was either going to have to be before




                            SHERRY FOLCHERT, CSR * 817-946-5399
                                                                             23


 1   a jury or a judge, wasn't it, one of the two?
 2       A.      I don't -- you're the DA.               I don't know.   I
 3   everything happened so fast.            He -- he was just like you
 4   better hurry up and get this over with be-- before I
 5   become judge or I'm going to throw the book at you and
 6   that - - that's all I did was just listen to my court - -
 7   my court-appointed lawyer, my           represen~ation.

 8       Q.      And, in fact, that day, July 29, 2013, you had
 9   both,a jury and/or a judge to have your case tried in
10   front of and then you selected, signed and stated on the
11   record that you didn't want the jury and you wanted the
12   judge to do it.        Which is exactly what you got, right?
13       A.      I have no idea.        I don't -- I did not -- I was
14   not aware I was there for a jury trial.
15       Q.      Well, the truth is is that you just aren't
16   happy that ultimately Judge Harris gave you eight years
17   and you feel he treated you unfairly, correct?
18       A.      No, sir.     That's not correct.
19       Q.      Isn't that why you are alleging in your various
20   letters and your statement here on the record earlier
21   today that you believe that somehow --
22       A.      I'm here--
23       Q.            he was --
24                      Can you, again, please let me finish my
25   question.        Because she can't
                 \_




                          SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                          24


 1                       THE COURT:    Wait.     Let him finish.
 2       Q.      (By Mr. Pratt)        I'm not trying to bully you.
 3   It's just she can't take both of us talking at the same
 4   time and    type~

 5       A.      Yes, sir.
 6       Q.      All right.      So that - - because really what you
 7   thought was that Judge Harris was somehow my judge and
 8   that he treated you unfairly and that's why you got
 9   eight years, right?
10       A.      No, I'm just asking.          I -- I -- I just -- I
11   don't know.     I'm just asking.          I don't -- I just -- the
12   only thing I feel is that the way Mr. Terence Russell
13   approached me, that I was -- I was afraid that he was
14   going to -- it was going to be a harsher punishment.
15   Even though now that I found out he cannot be the judge
16   over me if he was elected.
17                       Now, all that other stuff, I -- I don't
18   know because I'm-- I don't know the               sy~tem.   Yes, every
19   time I -- I've been -- this is my third time to TDC
20   prison and I -- I am aware, you know, I do do -- go do
21   my time, you know, but I don't know the system.                I don't
22   know how it's supposed to work, you know, the court and
23   all that.     I'm-- I'm green at that.             But I do -- if
24   there is one thing I do know is that Mr. Terence Russell
25   told me if I do not hurry up and do this and get it over




                          SHERRY FOLCHERT, CSR * 817-946-5399
                                                                        25


 1   with, he's going to throw the book at me when he takes
 2   the stand or becomes the         j~dge.   Whatever that means.
 3   Stand, judge, whatever.
 4        Q.     Well, ultimately since you were going to be
 5   tried one way or another on July 29th, either before
 6   that jury or judge, I guess that ultimately doesn't
 7   matter, but what I guess my question is, is that had
 8   Mr. Rus$ell not made those statements, which you allege
 9   that he made, what would you have done differently that
10   day on July 29, 2013, on your trial date?
11        A.     I haven't thought about it.         But talk to my
12   lawyer.     Go to trial.
13        Q.     Which would have been right there that day,
14   correct?
15        A.     I don't know.        I --
16        Q.     Well, let's say that it was.
17        A.     I don't have no idea.         I don't know because I
18   can't ...
19                   MR. PRATT:        I don't have any further
20   questions, Your Honor.
21                   THE COURT:        Thank you.
                                 ,-
22                   Mr. Bennett.
23                   MR. BENNETT:        Just briefly.
24                         FURTHER EXAMINATION
25   BY MR. BENNETT:




                       SHERRY FOLCHERT, CSR * 817-946-5399
                                                                       26

                                                             /

 1       Q.   So apparently you went to court last year at
 2   the end of July and you ended up being sentenced in
 3   early August.     And I think we've already discussed that.
 4   Is that correct?
 5       A.   Yes, sir.
 6       Q.   Okay.     Now, are you telling the Court you did
 7   not understand that on that day, July 29th, or whatever
 8   date it was, you did not understand at that point that
 9   you were either going to have a jury trial on that day
10   or you were going to plead something in front of the
11   judge?
12       A.   Yeah.     I mean ...
13       Q.   Did you understand that?
14       A.   No, sir.
15       Q.   Okay.     Did Mr. Russell not explain that to you?
16       A.   I really can't remember, but I don't - - as
17   today, no, I don't -- no.        No, sir.
18       Q.   And what you wanted was either, like we've
19   talked about, a plea offer on an unauthorized use
20   charge, you wanted to contest the weapons charge?           You
21   wanted -- you wanted -- you wanted a trial on the
22   weapons charge?
23       A.   A trial, yes.
24       Q.   And you're saying to Judge Mayfield, to the
25   Court, you would not have pleaded no contest on this




                       SHERRY FOLCHERT, CSR   *   817-946-539~
                                                                             27


 1       A.    Right.
 2       Q.         charge except for the fact that Mr. Russell
 3   told you he was going to be the judge and he'd throw the
 4   book at you?
 5       A.    Yes, sir.
 6       Q.    And that's a paraphrase.               I don't know exactly
 7   what he told you, but something to that effect .
 8      . A.   That's what it was.
 9       Q.    Okay.     And you understand that if you had not
10   pleaded no contest to the Judge, then the other option
11   would have been a trial?
12       A.    Yes, sir.
13       Q.    Okay.     And what you're telling the Court i s
14   you're not aware, you don't recall that the trial would
15   have actually happened that day?
16       A.    I was not aware of that, no, sir.
17       Q.    Okay.     Do you feel 1 ike your plea was
18   involuntarily because of that advice he gave you?
19       A.    Yes, sir.
20                     MR. BENNETT:     That's all I have, Judge.
21                     THE COURT:     Thank you.
22                     Anything further?
23                     MR. PRATT:     Your Honor, I'd 1 ike to ask the
24   Court to take judicial of the Court's file in this
25   matter.




                        SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                                     28


         1                   THE COURT:     All right.
         2                   MR. PRATT:     Additionally, I do not see a
         3   file mark on the particular document, so I'd like to
         4   show it to the witness and ask him if that's his
         5   signature on that document.
         6                   THE DEFENDANT:      Yes, it is my signature.
         7                   MR. PRATT:     All right.          I would like to
         8   mark this as State's Exhibit 1.
         9                   (State's Exhibit No. 1 was marked)
        10                   THE DEFENDANT:      Is there any way I can use
        11   the restroom?
        12                   THE COURT:     Sure.         We'll take a short
        13   break.
        14                   (A break was taken)
        15                   THE COURT:     All right.          We're back on the
        16   record.
        17                   And you had had the exhibit marked as
        18   State's 1?
        19                   MR. PRATT:     Yes, Your Honor.             The State
        20   offers State Exhibit 1.
    '
'
        21                   (State's Exhibit No. 1 offered)
        22                   MR. BENNETT:      No objection, Your Honor.
        23                   THE COURT:     State's 1 is admitted.
        24                   (State's Exhibit No. 1 admitted)
        25                   MR ..PRATT:    The State has no further




                               SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                       29


 1    questions, Your Honor.
 2                 THE COURT:     Thank you.
 3                 Any other witnesses?
 4                 MR. BENNETT:      Your Honor, I have no further
 5    witnesses.
 6                 THE COURT:     Okay.         Did you wish to call
 7    Mr. Russell, or question Mr. Russell?
 8                 MR. BENNETT:      Well, Judge, I think the only
 9    evidence before the Court is what my client heard
10    Mr. Russell say and so I don't think there's any
11    evidence to contradict what Mr. Russell told him under
12    this current record.
13                 THE COURT:     And that's why you don't want
14    to call any other witness.     That's fine.
15                 Does the State wish to call any witnesses?
16                 MR. PRATT:      No, Your Honor.
.17                THE COURT:     That's very interesting.         I

18    think at this opportunity I'm acting more as a hearing
19    examiner than a judge and I think I have the right to
20 .call Mr. Russell and ask him so that I can enter
21    findings of fact.   If I haven't the authority, then that
22    can be discussed with the Court of Appeals.
23                 Ask Mr. Russell to step in.
24                  (Mr. Russell enters the proceedings)
25                 THE COURT:      Mr. Russell, if you'd take the




                     SHERRY FOLCHERT, CSR   *   817-946-5399
                    r
                                                                                    30


     1   witness stand.
     2                    (Witness was sworn)
     3                  THE WITNESS:       I do.
     4                  THE COURT:       Thank you.             Please be seated.
     5                    Neither side has elected to call you, but
     6   as the hearing officer i n this particular case I've
     7   asked -- or I've had you subpoenaed and placed you on
     8   the stand.
     9                  You remember this particular case with
10       Mr. Lee?
    11                  THE WITNESS:       I do recall the majority of
12       it.   I recall the actual incident for which he was
13       arrested and almost all of my negotiations with the DA
14       and then what we eventually did in this case.
15                      THE COURT:       Okay.        And what do you remember
16       of the -- the plea bargain that was made at the final
17       hearing on July the 29th, 2013, when he entered a plea
18 ·of no contest, or was there a plea bargain?
    19                    THE WITNESS:     Well, if I -- if I may begin
    20   from the beginning, Your Honor, and kind of let you know
    21   how this ·case came to .the point that it did.
I

    22                    I recall that at arraignment when Mr. Lee
    23   and I showed up, Mr. Pratt looked into the case that was
    24   a felon in possession and said I don't believe we can
    25   prove that he did this.         We can't prove this case
                                                           'I




                           SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                             31


 1   because I can't -- I -- I can't -- I don't think I can
 2   prove that he knew it was there.              c
 3                   THE COURT:      The firearm?
 4                   THE WITNESS:      Right.          So he plead not
 5   guilty to both of those cases.
 6                   The next thing that we had was we - - we
 7   went to       the case got assigned to Nicole Crain.                And I
 8   went in to Nicole Crain and Nicole said, Well, I '11
 9   offer him four on the UUMV case and we'll 12.45 the
10   other case.     I tal d her       I say, Well, we can't 12.45
11   it because that's not a dismissal.                That-- that is like
12   a -- a     a -- basically a -- a plea and avoidance
13   thing.    I said -- I said you got to dismiss that case.
14                   I talked that over with Mr. Lee and Mr. Lee
15   understood exactly what we were saying.                 I went back and
16   told her the same thing.         So we agreed that since she
17   wouldn't do that that we were going to have to do
18   something else.     So we went before the Court with the
19   plea recommendation           should be at the top .of the
20   thing -- and told the Court that we were not accepting
21   that plea bargain.      Now
22                   THE COURT:      And that was on the pretrial
23   conference?
24                   THE WITNESS:      Right.          The final pretrial
25   conference date.




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                     32


 1                THE COURT:         Okay.
 2                THE WITNESS:         And Mr. Lee and I both went
 3   in the Court and advised the Court that that was our
 4   decision.
 5                    Now, it seems to me -- and I don't really
 6   remember why, but this case was really expedited very
 7   fast to court.     And where we'd been in front of Judge
 8   McGregor and gave our decision that we were going to
 9   proceed to -- not proceed to a guilty plea or a no
10   contest plea at that point and we were going to do
11   something else.     We were in front of Judge McGregor and
12   then it got really expedited and the next time -- I
13   remember this -- we were somehow set in front of Judge
14   Harris and Mark Pratt was going to -- going to be
15   handling the case.
16                    Now, between that date and the date we
17   actually had the hearing, I remember Mr. Lee called me
18   back up and he said, Look, I'll take the four years.
19   And I contacted Mark and I said Mr. Lee said that he's
20   agreeable to take the four years and Mark told me -- he
21   said, Well, we're past the final pretrial date so there
22   is no more plea bargains available.
23                    THE COURT:     So the plea bargain had been
24   withdrawn.
25                    THE WITNESS:     So the plea bargain had been




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                       33


\
     1 withdrawn at that point.       So we go into the hearing and
     2   we actually had the hearing.      And I think that what we
     3   did we decided to plead no con-- no contest to the -- to
     4   the UUMV charge and go to the Court for the punishment,
     5   if I -- if I -- to the best of my recollection, I
     6   believe that's what we did.
     7                And Mr. Pratt announced to the Court at
     8   that time that he was going to dismiss the felon in
     9   possession case.   So we only proceeded on the UUMV
    10/charge.    And-- and at the result of the hearing, the
    11   the Judge sentenced him to eight years, which -- which
    12   was twice the amount that was actually offered in the
    13   original plea bargain.     I pointed to the Court in -- in
    14   my closing argument that that final pretrial conference
    15   sheet was in the file and exactly why we had set the
    16   case for this hearing was because that we -- that they
    17   would    would not dismiss the felon in possession case
    18   if we plead to the UUMV in that -- in that material.
    19   And that was exactly why we     h~d   the hearing and I was
    20   just hoping that the Court would understand that and
    21   would give him the four years that he had agreed to take
    22   once the -- the felon in possession case had been
    23   dismissed.
    24                 THE COURT:    Any questions?
    25                            EXAMINATION




                        SHERRY FOLCHERT, CSR * 817-946-5399
                                                                                    34


 1   BY MR. BENNETT:
 2          Q.   Mr. Russell, do you remember telling Mr. Lee
 3   that you were running for judge at that time?
 4          A.    I don't recollect when this was.                      I don't think
 5   that I had announced at that point.                     I may have
 6   discussed to him that I was             contem~lating             that, yes.
 7          Q.   Do you recall telling him anything about if you
 8   were elected judge, that you would throw the book at him
 9   if you were the judge?
10          A.    I never would have told him that at all.
11          Q.    Did Mr. Lee understand on July 29th, or
12   whatever the date was, that y'all were actually set for
13   a jury trial?       r



14          A.    I believe -- yes, I believe that was what was
15   reflected in the trial readiness certificate we had
16   that        that we were set for a jury trial, but at the
17   time we did not go forth with the jury trial.
18          Q.   Yeah.        I understand what the paperwork says.
19   I'm just asking you if you fully explained that to him,
20   if he understood that it was actually set for a jury
21   trial on that day?
22          A.   Well, I explained to him what we were doing,
23   yes, that -- that -- I mean he sign-- he signed off on
24   the paperwork and I showeq him down there where the date
25   was at and -- and, you know, what -- that -- that it was




                             SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                            35   ~




 1   set for a jury trial, yes.
 2         Q.   So you explained it to him; what he was
 3   signing?
 4         A.   Yes.
 5         Q.   And you felt like he understood what was going
 6   on?
 7         A.   Yes.
 8                     MR.    BEN~ETT:     I'll pass the witness, Judge.
 9                     THE COURT:        Mr. Pratt.
10                                 EXAMINATION
11   BY MR. PRATT:
12         Q.   July 29, 2013, actually was the jury trial date
13   for this case.          Is that not right?
14         A.   Yes, I believe that's right.                To the best of my
15   recollection.
16         Q.   What your client, Mr. Lee, did not want to do
17   is take a conviction in both cases with four year
18   concurrent sentences, which was his final offer in this
19   case; is that right?
20         A.   My understanding was the offer was basically
21   that he would plead to the UUMV case and that the felon
22   in possession was to be 12.45'd, which means it was
23   going to be taken into consideration on the sentencing
24   of the other case.          Which 1 ike I say, is a plea and
25   avoidance type of plea.




                         SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                           36


 1       Q.   That was something you said that you discussed
 2   with my assistant Ms. Crain, and y'all ultimately
 3   rejected handling something like that?
 4       A.   Right.     When we couldn't get the dismissal,
 5   we -- we didn't know what to do at that point.              Because
 6   that was -- that was Mr. Lee's contention that he
 7 wouldn't accept anything but a dismissal of the felon in
 8   possession case.
 9       Q.   Mr. Lee ultimately decided that he did not want
10   to have a jury determine his guilt or innocence in the
11   UUMV case; is that correct?
12       A.   Yes.
                              I
13       Q.   And, in fact, he entered a plea because he
14   didn't contest whether or not he was guilty of that
15   particular charge; is that right?
16       A.   I   believe that's correct, to the best of my
17   recollection.     I- do remember that we stipulated all
18   the -- all the police reports that we didn't have any
19   actual witnesses.
20       Q.   And then, although, he had a jury there for
21   July 29th to have had this matter -- his sentence
22   determined by a jury, he -- he decided he wanted that to
23   be done by a judge and waived his right to a jury for
24   sentencing and decided to proceed before a judge; isn't
25   that correct?




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                            37



 1          A.    That's correct.
 2                    MR. PRATT:     I'll pass the witness.
 3                    THE COURT:     He's passed the witness.
 4                    MR. BENNETT:      I'm sorry, Your Honor.
 5                    THE COURT:     That's all right.
 6                          FURTHER EXAMINATION
 7   BY MR. BENNETT:
 8          Q.    Mr. Russell , did you advise Mr. Lee that it
 9   would be in his best interest not to have a jury trial
10   i n this case?
11          A..   I don't recall .    Given the circumstances
12   that - - that existed at the time, I would - - I would
13   suspect that I told him that it probably was not his
14   best option, yes.      But I don't recall whether I actually
15   told him that or not at this time.
16          Q.    Well, he acted on someone's advice or -- to --
17   to decide to waive the jury and just have a                  a bench
18   trial, did he not or--
19                    MR. PRATT:     Objection; calls for
20   speculation.      We don't know whether or not he -- he did
21   that on his own volition or based on someone's advice.
22   It would be purely speculation.
23                    THE COURT:     The witness can answer the
        (
24   question if he knows.
25          Q.    (By Mr. Bennett)     What do you think?




                        SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                                38


 1         A.   Yeah.     I'm pretty sure that I'd -- I would have
 2   advised him of that.        Like I say, that's what I believe
 3   today and I don't think I would have believed anything
 4   other at      at that time.
 5         Q.   So you -- you thought it was in his best to
 6   plead no contest to the Court.                 Is that a fair
 7   statement?
 8         A.   Yes.
 9         Q.   And you advised him of -that?
10         A.   Like I say, the best of my recollection, I
11   don't recall.       But I-- I-- I do believe that I-- I
12   would have done so, yes.
13         Q.   Okay.     But -- but you're still telling the
14   Court you never told him that -- that you were about to
15   be elected judge and that you would throw the book at
16   ~im   if you were on the bench in this trial?
17         A.   I don't recall that.            Because, like I say, I
18   I wouldn't have made that determination.                      I may have
19   told him that -- that I felt like the jury might do that
20   because of his prior record.
21                      MR. BENNETT:     That's all I have, Judge.
22                           FURTHER EXAMINATION
23   BY MR. PRATT:
24         Q.   So were your recommendations then taking into
25   account the strength of the case in this matter, which




                         SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                             39


 1   involved a videotape of the Defendant actually
 2   committing this particular offense, as well as his
 3   criminal record showing at least three prior final
 4   felony convictions, including a couple of trips to
 5   state jail and one to the penitentiary for aggravated
 6   assault with a deadly weagon?
 7         A.     I took that -- all that into consideration.
 8   The fact that the -- that -- that there was a videotape
 9   and there was also a LoJack in the vehicle.                    So it
10   was        he was found easily, yes.             And found behind the
11   wheel.
12         a.    Yeah.      He was actually observed and caught
13   while driving the stolen vehicle en route from the place
14   from which he stole it heading down the interstate,
15   correct?
16         A.     That's correct.
17         a.     And, in fact,     in there there were a number of
18   items taken out of the center console of that vehicle,
19   which contained the weapon
20                       MR. BENNETT:     Judge, I don't think--
21         a.     (By Mr. Pratt)        -- in which he was charged
22   with, correct?
23         A.     I don't
24                       MR. BENNETT:     I don't see the --
25         A.        recall that --




                          SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                        40


 1                 MR. BENNETT:             relevance of going into
 2   the facts of the underlying offense here.
 3                 MR. PRATT:     Well, I believe if we're
 4   what we're going in to is whether or not his
 5   recommendations regarding how to proceed with the matter
 6   were reasonable or not, then what else would you look at
 7   except for the facts in this particular case.
 8                 THE COURT:     Well, I don't know that we were
 9   going in to whether or not his recommendations were --
10   was reasonable under the facts.            But I think is -- the
11   question was whether he had made certain representations
12   or -- or recommendations.      Whether or not they're
13   reasonable recommendations is -- is another matter.               But
14   as you say, it would necessitate knowing what the basis
15   of those recommendations were.
16                 I'll overrule the objection, but there's no
17   need to go in any great depth on the underlying case.
18                 MR. PRATT:     I'll withdraw my question then,
19   Your Honor.
20                 THE COURT:     Thank you.
21                 All right.     Anything further?
22                 MR. BENNETT:      No, Your Honor.
23                 THE COURT:     All right.          Thank you very
24   much.
25                 THE WITNESS:      May I be excused, Your Honor?




                     SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                 (




                                                                      41



 1                THE COURT:          Any objection to this witness
 2   being excused?
 3                    MR. PRATT:      No objection.
 4                    MR. BENNETT:      No, Your Honor.
 5                    (Witness was excused)
 6                THE COURT:          All right.
 7                Any further witnesses or any further
 8   evidence to be submitted to the Court?
                            \


 9                    MR. BENNETT:      Your Honor, could I recall
10   Mr. Lee just briefly?
11                THE COURT:          Certainly.
12                    Mr. Lee, I'll let you testify from where
13   you're seated.
14                THE DEFENDANT:          Yes, sir.
15                THE COURT:          And you may proceed.
16                You're still under oath, Mr. Lee.
17                              FURTHER EXAMINATION
18   BY MR. BENNETT:
19       Q.   All right.          Mr. Lee, now after thinking a
20   little bit further about it, do you -- you understood
                        /
21   when you guys went back to court on July 29th
22                    MR. PRATT:      Objection; leading.
23                    THE COURT:      Sustained.
24       Q.   (By Mr. Bennett)          Could you state whether or
25   not when you went to court on July 29th that you




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                           42


 1   understood that that was for jury selection?                Yes or no?
 2       A.   I think I did know that it was for jury
 3   selection.
 4       Q.   Could you state whether or not you understood
 5   jury selection was the same thing as the actual jury
 6   trial beginning on that day?
 7       A.   No, I did not.        I did not know that.
 8                   THE COURT:     Have you ever been to a jury
 9   trial, Mr. Lee?
10                   THE DEFENDANT:      No, sir.
11                   THE COURT:     Okay.
12       Q.   (By Mr. Bennett)        The -- the intlictment refers
13   to three prior felony convictions.               So are you telling
14   the Court that you pleaded guilty in all those cases?
15       A.   Yes.
16                   MR. BENNETT:      That --
17       A.   Or no contest.
18                   MR. BENNETT:      -- that's all I have, Judge.
19   I just wanted to clarify his understanding of --
20                   THE COURT:     What the process was.
21                   MR. BENNETT:             what that process was, at
22   least from his perspective.
23                   THE COURT:     So you understood that a jury
24   was going to be selected that day.
25                   THE DEFENDANT:       I know a jury was going to




                       SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                ~
                                                               I




                                                                          43


 1   be selected.     I -- I don't know -- if going to be held
 2   that day or not, I did not know.
 3                   THE COURT:         Okay.    But you didn't know it
 4   wasn't going to be, you just didn't know exactly.
 5                   THE WITNESS:         Right.
 6                   THE COURT:         But you knew that it would --
 7   that you were going to enter a plea of some sort, either
 8   not guilty or
 9                   THE DEFENDANT:         I
10                   THE COURT:            no contest or something?
11                   THE DEFENDANT:              I didn't know if I was
12   going to enter a plea or not.              I wasn't ...
13                   THE COURT:         Okay.    You had previously
14   entered a plea of not guilty and -- and requested a jury
15   trial, according to the documents I have here.                 Did you
16   understand that that was going to be happening?
17                   THE DEFENDANT:         That I was going to go to
18   trial?                         '
19                   THE COURT:         Yeah.
20                   THE DEFENDANT:         I could -- yes, sir.
21                   THE COURT:         Okay.    And you knew that was
22   the day the jury was going to be selected?
23                   THE DEFENDANT:         I knew it was, yes, sir.
24                   THE COURT:         You became aware of that when
25   you got there?




                       SHERRY FOLCHERT, CSR * 817-946-5399
                                                                               44


 1                   THE DEFENDANT:( It's--
 2                   THE COURT:     Yeah.          Okay.
 3                   THE DEFENDANT:       I just didn't know that
 4   there was going to be a court date then.
 5                   THE COURT:      That's fine.          That's fine.
 6                   MR. PRATT:      Was that your last question?
 7                   MR. BENNETT:      Yeah.
 8                   MR. PRATT:      Pass the witness?
 9                   MR. BENNETT:       I pass the witness, Your
10   Honor.
11                   THE COURT:      You pass and I pass.
12                         FURTHER EXAMINATION
13   BY MR. PRATT:
14       Q.   And so, Mr. Lee, despite your testimony under
15   oath here earlier that you had no knowledge or -- or
16   memory that there was going to be a jury that day,
17   you're saying that -- that now your memory is starting
18   to come back and you remember that, right?                   You're not
19   saying that you were lying earlier, but you're just
20   saying that now
21       A.   I knew that there wasn't going to be -- I was
22   not aware there was going to be a trial right then and
23   there.   I that knew that there-- there)was a bunch of
24   people coming in in street clothes, going in there and
25   just sitting down waiting for whoever's in there to get




                       SHERRY FOLCHERT, C.SR   *   817-946-5399
                                                                          45


 1   done with -- that's what -- how I took it.              And
 2   that's how I took it.        I didn't know that there was
 3   going to be a trial date.           I thought there was like a
 4   jury selection.     I didn't know how that -- I don't know
 5   how that process works at all.             Just a jury selection.
 6   Like they were going to pick -- like the -- the
 7   courthouse had 50 people in it.             40 -- 40 or 50 people
 8   in there.    I didn't --
 9                   THE COURT:         In the courtroom?
10                   THE DEFENDANT:        Yes, sir.
11                   THE COURT:     Okay.
12                   THE DEFENDANT:         I     I didn't -- how much
13   does the jury trial take?           Six or 12?    So I didn't that
14   they were going to have all -- you !<now ...
                                    I
15                   THE COURT:     Okay.
16                   THE DEFENDANT:         Do you understand what I
17   I'm saying at all?
18                   THE COURT:         I -- I think I do.    I
19   understand your answer.
20                   Do you have any further questions,·
21   Mr. Pratt?
            _;;


22       Q.      (By Mr. Pratt)     Are you making any claim today
23   that you're incompetent to proceed with this particular
24   hearing or have any type of mental issues that --
25   that --




                       SHERRY FOLCHERT, CSR * 817-946-5399
                                                                           46


 1         A.     No, I'm not.
 2         Q.     -- would cloud your testimony today?
 3         A.    No, sir.
 4                    MR. PRATT:     I'll pass the witness.
 5                    THE COURT:     Okay.         Mr. Bennett, do you have
 6   any further questions?
 7                    MR. BENNETT:      No further questions.
 8                    THE COURT:     Okay.         The Court has no further
 9   questions        or I have no further questions.             I keep
10   calling myself the Court because I'm kind of used to
11   doing that in other context.            This is a hearing to make
12   certain findings of fact.
13                    THE DEFENDANT:      Yes, sir.
14                    THE COURT:     And I guess technically I'd be
15   called a Hearing Officer.         But I'm not exactly sure.
16   The        the statute I'm appointed under is 11.07 (c) of
17   the Code of Criminal Procedure.               I think (c) (e) or
18   something.      Anyway ...
19                    I've heard everything y'all wanted to put
20   forward.      I've asked the questions that I needed to have
21   answered.      I'll prepare findings of fact in regard to
22   this matter and submit those back to Judge -- Judge
23   Harris and he will submit them on or determine what he's
24   going to do with them.        Submit them on, I think to the
25   Court of Criminal Appeals, who will take them into




                        SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                              47


  1   consideration in regard to your writ.
  2                    And then we'll proceed forward on your
  3   writ.    Okay?
  4                    THE DEFENDANT: , Do I -- do I go back to TDC
  5   or do I stay here -- stay here in town?
  6                    THE COURT:     You'll be going baGk to TDC.
  7   You'll get more time credit that way.
  8                    THE DEFENDANT:      It don't matter.          I'm in
  9   seg anyway.      I don't get good time.
10                     THE COURT:     Well, you need to get out of
11    there.
12                     Okay.
13                     THE DEFENDANT:      All right.
14                     THE~coURT:     All right.          You can visit with
15    your attorney if you need to any more.                  If you have some
16    question~   before you go back, you can.
17                     (Proceedings concluded)
18

19

20

 21

22
,23

 24
25




                         SHERRY FOLCHERT, CSR   *   817-946-5399
                                                                    48


    1   STATE OF TEXAS
 2      COUNTY OF HILL
 3               I, Sherry Folchert, Court Reporter, do hereby
 4      certify that the above and foregoing contains a true and
 5      correct transcription of all portions of evidence and
 6      other proceedings requested in writing by counsel for
 7      the parties to be incluped in this volume of the
 8      Reporter's Record, in the above-styled and numbered

)
 9      cause, all of which occurred in open court or in
10      chambers and were reported by me.
11                I further certify that this Reporter's Record
12      of the proceedings truly and correctly reflects the
13      exhibits, if any, admitted, tendered in an offer of
14      proof or offered into evidence.
15                I further certify that the total cost for the
16      preparation of this Reporter's Record is $216.00 and was
17      paid by Hill County.
18               WITNESS MY OFFICIAL HAND this 2nd day of
19      December, 2014.
20
                             Is/ Sherry Folchert
21
                             Sherry Folchert, CSR 6259
22                           11001 Deer Trail
                             Fort Worth, Texas 76140
23                           817-946:5399
24
25




                          SHERRY FOLCHERT, CSR   *   817-946-5399
r·




     EXHIBIT G
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                                                                                                     HII.    r      COUNTY AFFIDAVIT OF IN.Jll.GENCE
                                                                                                                                                                                                                                              )
.I
,;

           This section to he filled out by Court Personnel

                                                                                                                                No. ------------------
          The State of Texas                                                                                                                                 In the ---------------- Court

           vs.

                                                                                                                                                             _____________________Councy

                                                                                                                                                             Level of Offense
           Offense - - - - - - - - - - - - - - -                                                                                                                                                         ----------
        j ..................   ·~······-··~··~·~   .. ........... -•..A>-·---....-.. -·.........
                                                    ~·                                             ~---·...._    ............... ,_.._,.._.._ ....,_, ...   ~-   ........   ~_...._.~.--   ..,...   -.-...~   ............. ..
                                                                                                                                                                                                                         ~       ~J.oo:..<'""~----~....._   ............_ ... ____....._...........   ,,.~   •...,.._...,..._., •.. .... ,._......_ ........,.,._"""\'
                                                                                                                                                                                                                                                                                                                                  ~.,




        l All information must be completed by the defendant and must be current, accurate, and true.  Intentionally j
        ~or knowingly giving false information may result in your prosecution for the offense of aggravated perjury, 1
        !a felony. The punishment for aggravated perjury includes impris?nment not to exceed ten (IO~ar~ al
        i ~ne not .to exc.eed ten thousand dollars ($1 0,000).' Please fill m all ~lanks. .If you. do n_~kn~~he.
        pnformatlon bemg aske~, enter DO NOT KNOW m the blank. If the mformatwn bemg as~ do~~:;!lot;



     ~J :::~.~~;~~~:;~~::\~~~:~7:::;:;~:::~~::.~:;--·&~·~~-;;-c~~
                                            Street Address
                                            Cicy, State, Zip
                                                                                                         '~      o' lh!rs1t"eV/
                                                                                                         ; . J.}J//J t:lJ ro .J I?-, 7 b Gl f j
                                                                                                                                                                      rr. ·                                                                                                     ·                                               -&. -; ~
                                            Social Securicy#                                              Lftr- 71- K3J-f
                                            Driver's License#                                            .                                                   . /Jf ISS Lf'l
                                            Date of Birth
                                            Name of Spouse

                                            Dependents:     .                                                .AI/1
                                            Name(s) (list below):                                                                                                                                     Age                                  Relation                                                   Income




                                            Are you currently in jail or in a correctional institution?
                                                 No
                                            ~es          lfyes, grovide nameofinstitution:

                                            Are you currently residing in a m~tal health facility?
                                                                                                      /J; /f u1-vul1 :k/1
                                                     ~
                                                                Yes                           lfyes, provide name offacilicy:

                                            DQ yoy have an application pending at a mental health facility?
                                                   L./No
                                                                Yes                          If yes, provide name of facility



            Hill Cnunty Indigent Defense
'       .,
                    Employer lnfor.mation
    /
                    Employer
                    Phone Number
                    Supervisor's Name
                    Street Address:
                    City, State, Zip
                    Hours worked            _per week or _per month
                    Pay rate
                    Spouse's Employer
                    Street Address:
                    City, State Zip
                    Hours worked          . _ per week o·r per month
                    Pay rate

                     If unemployed, list: .


                  .~~;~d~~~:o:;;;~;,ed~mp~;f ~;~~ .
                     City, State, Zip         /)VI-/£) 7;>o     7,5)..   /ij
                                                                                 fJr<Jc.,(l-   tfv:<- .
                                               ...    .,/
                                                              Defendant's Financial Information

               Public Assistance                                                                    Income (Monthly)            Monthly
               Are you currently receiving (check all that apply)                                                               Amount
                    Food Stamps                                                                      Take Home Pay
                    Medicaid                                                                         Spouse's Take Home Pay
             M~ Temporary
                    Public housing
                               Assistance to Needy Families (TANF)
                                                                                                     Investment Income
                                                                                                       Stock Dividend
                    Supplemental Security Income (SSI)                                                 Bond Dividend
                          Expenses (Monthly)                               Monthly                   Rental Income
                                                                           Pay!llent               . Pension Payments
                          Rent or Mortgage Payment                                                   Unemployment
                          Car Payment                                                                Social Security Benefits
                          Insurance (Life, Health, Car,                                            . Chit~ Support .
                          Homeowners, etc)                     .     •.    jtvJ                    · Public Assistance
                          Child Care
                          Child Support
                          Water
                                               . .
                                             ·....
                                                   ~
                                                     ~·'/
                                                            f
                                                        ·······l····J~j/'1. . .
                                                            '.It,    .
                                                                                                       TANF
                                                                                                       SSI
                                                                                                       Medicaid
                          Gas
                          Telephone . . .
                          Electricity
                                                     .. e
                                                       r--               . ..      .
                                                                                                       Other
                                                                                                     Cash Gifts
                          Food                                                                     . Other (Describe)
                          Clothes
                          Medical                                                                   TOTAL GROSS
                          Cable TV or Satellite TV                                                  MONTHLY INCOME
                          Pager
                          Cell Phone
                          Loan and Debt Payments
                          Outstanding Loans (list type of Loans)


                          Credit Card Debt (list name of cards)

                          $      'v
                                J. 1
                                    {J-v-{
                                                Balance:

                                                Balance:
                          $      ;u~
                          Other Monthly Expenditures (Describe)


                          TOTAL MONTHLY EXPENSES
               Hill County Indigent Defense
                                                                                         !I
Assets
                                       Asset                                                             Value
 A. Place of Residence          - Rent - Own                                        $
      Describe if house, condominium, apartment, other:                                         ;UaV'-L_
 B.   Real Property Owned; Description/Location:                                    $

 c. Automobile(s)
 Make                          Model              Year                              $               j(J~
                                                             L
 Make                          Model              Year
                                                          jVJrL.                    $
 Make                          Model              Year
                                                                                    $
 D. Stock and Bonds (provide description)
                                                                                    $

                                                         fJ~                        $               /f/Jy\Q_
                                                                                    $
 E. Other Property (list all jewelry, equipment, watercrafts, etc.)
                                                                                    $                    ,/

                                                                 Alb)-<_            $               /J(~
                                                                                    $
 F. Bank Accounts
   Bank Name                                Type of Account                         Balance
                                                                                    $
                     jf /\,.,~                        /II\                                          //~
                    I..,                              IVV
                                                                                    $
                                                                                    $           /    -
                                                                                    $
 G. Other Assets (ldent~:
                f:artfer '-,...;
 ASSETS TOTAL VALUE
                    v I
                                       o6v&
                                                                                    VALUE



                                                                                    $
                                                                                     $        /ljt)CJ..
                                                                                                              -
                                                                                                              Or,.)




                                                                                                r--/     Dt/"         c..   o

I have I have not (circle one) attempted to h~ry an attorney. The names of the att~?eys ~e contacted are as follows:
Cwre..nr       Cvw--1- ~~ Afil                    w-ry                           g_, ~rk/1
                                                                      Rrr-e-1'\e.e
   fr;J'         ifO £         ·c&'/R          C.OI-\,A.C/-:=_._,_·_ _ _ _ _ __

On this     b      day of       a        , 20 /J, I have been advised by the (name of the court) Court of my right to
representation by counsel in the ial of the charge pending against me. I am without means to employ counsel of my own
choosing and I hereby request the court to appoint counsel for me. By signing my name below, I swear, that all of the above
information about my financial condition is current, accurate, and true. By signing below, I understand that a court official
can verify any of the informatio   r accuracy as r quired to determine my eligibility.

                                                          P~
SUBSCRIBED and SWORN to before me, the undersigned authority, this_ day of _ _ _ _ _ _ _ , 20_


                                                                      Clerk's Signature, Notary, Magistrate, or Peace Officer

This court tinds the defendant          is I is not       indigent.


                                                                      Signature· of Judge
Hill County Indigent Defense
