Bellotti, Carl Matthew III AKA Belotti, Carl Mathew Iii

• Court: Court of Appeals of Texas
• Decided: March 11, 2015
• Docket: WR-53,835-05
• Status: Published

Opinion

I ()

-I IN TJIE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS I. .. EX PARTE § I § § WR-53,835-05 I CARL MATTHEW. BELLOTTI, ill. •§ § ; r:

I I fhf! document contains some pagas that are of poor q4ality ,.... RECEIVED IN COURT OF CRIMIMM APPF.:AI.S at the ilme of imaging. · I Abel Acosta, -Clerk I NOTICE I 0 • I

in re the Official R,eporter's- Record I ·I I I I I . .

I Philip W. "PhW' Moore, Petitioner Pro $e 15623 Fagerquist Road . Del Valle, Texas 78617-5~00 I Phone: (512) 667-1508 · e-:mail:. pwm11.07@gmail.com -I I I I IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS I EXPARTE § I § § WR-53,835-05 I CARL MATTHEW BELLOTTI, ill § §

I I I I NOTICE I in re the Official Reporter's Record I (

I I I I I Philip W. "Phil" Moore, Petitioner Pro $e 15623 Fagerquist Road Del Valle, Texas 78617-5800 I Phone: (512) 667-1508 e-mail: pwm11.07@gmail.com I I I I I I OREWOR I TO BE CLEAR, I A FRAUO has been perpetrated upon this Honorable Court I in the case at bar by Jefferson County officialdom's not-so-veiled insistence upon

I depriving our Texas Court of Criminal Appeals of the Official Court Reporter's (trial) Record despite the Strickland Court's mandate(s) that

I ''... a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of I the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance

I must identify the acts or omissions of counsel [shown in the Official Reporter's (trial) Record] that are alleged not to have been the result of reasonable professional judgment. The court I must then determine whether, in light of all the circumstances, the identified [in the Official Reporter's (trial) Record] acts or I omissions were outside the wide range of professionally competent assistance. . .. "

I 466 U.S.@ 690 (1984). Indeed, at least according to the State's Attorney who filed the State's Original Answer pleading(s) in the case at bar- "Rubber Stamped" by the I habeas court below that very next morning - anyway,

I "... the Official Reporter's (trial) Record is Off Limits on Habeas Corpusll?" I See, inter alia, pp. 2-3, infra. I -1-

I ~- I I Indeed,

I "...in a case such as this, where the alleged derelictions primarily are errors of omission de hors the record rather than commission I revealed in the trial record, collateral attack may be just the vehicle by which a thorough and detailed examination of alleged

I ineffectiveness [and/or Prosecutorial Misconduct] may be spread upon a record [IN OPEN COURT for all to see]." [emphasis in original/emphasis ADDed] I Ex parte Duffy, No. 64863,607 S.W.2d 507,513 (Tex. Crim. App.-EnBanc-10101/ I 1980) (the Most Honorable Samuel Houston "Sam" Clinton, Judge, writing for the Court), Rehearing Denied (11126/1980) and cases cited therein. I : .. and that "...thorough and detailed examination of alleged ineffectiveness [and/ or Prosecutorial Misconduct] ... spread upon a record [IN OPEN COURT for all I 11 to see] is exactly what the State and its licentious lackies don't want to see happen here and are so very determined to prevent that they have even had the unmitigated gall to

I perpetrate (or at least attempt to perpetuate) a fraud upon our Texas Court of Criminal Appeals in their not-so-veiled "C. Y .A." attempt( s) to protect the reputation( s) oftheir so- called "Brothers (and Sisters) of the Bar"- each of whom so proudly style themselves I "Officers of the Court(s)" but all-too-often act as though they are above the Law. . . .and you wonder why so many of our incarcerated citizens- each of whom is I nonetheless a human being deserving of that pseudo-aspirational thing known as Due Process (and/or Due Course) of Law- often lament that I "This isn't justice- it's Just U$11?" I ... and, as stated at page ten (10), infra, right now is the time for this Honorable I Court to set its jaw(s) squarely against the kind(s) of guile and chicanery foisted upon Carl Matthew Bellotti, III ab initio and, in the process, prevent The Great Writ ofHabeas

I Corpus from being "suspended" in contravention ofFederal and State constitutional law.

I ERRORES SCRIBENTIS NOCERE NON DEBENT I -11- I I I IN THE TEXAS COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS I I EXPARTE § §

I § § WR-53,835-05

CARL MATTHEW BELLOTTI, ill § I I NOTICE in re the Official ~eporter's Record I I TO THE HONORABLE JUDGES of said court:

I COMES NOW CARL MATTHEWBELLOTTI, III, APPLICANT Pro $e1 in the above-styled and numbered cause, by and through Philip W. "Phi I'' Moore, who presents I this his NOTICE in re the Official Reporter's Record pleading(s) in the above-

I styled and numbered cause in accordance with, inter alia, Article 11.12 {Who May

Present Petition)2 of our Texas Code ofCriminal Procedure and its "Hornbook Law" I progenies and who, in support thereof, would respectfully show this Honorable Court the

I following:

I I PROCEDURAL BACKGROUND

I 1 ALL "emphasi$" belongs to this writer unless otherwise indicated. 2 I Either the party for whom the relief is intended, or any person "for" him, may present a petition to the proper authority for the purpose of obtaining relief.

I Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

- 1- I I I In the interest(s) ofbrevity, Applicant has raised two (2) Grounds for Relief in the habeas pleading(s) filed on his behalf on Monday, February 9th, 2015- ineffective I "assistance" of trial counsel (a/k:/a lAC) based primarily on "trial" counsel's failure(s)

I to so much as attempt to impugn the testimony of the State's "Star" Witnesses identified infra and Prosecutorial Misconduct based primarily upon the State's knowing and I intentional subornation of perjured testimony (viz, Inconsistent Statements as defmed by V.T.C.A., Texas Penal Code §37.06) on the part of its two (2) "Star" Witnesses, I Groves Police Department Sergeant Kevin Russell White and a Lay Witness by the name

I of Aelisa Faye Sanders . . . .and despite prima facie evidence in support of Applicant's allegations and I lengthy verbatim quotations from the Strickland Court's two-pronged test now required for analysis of such lAC allegations,3 the habeas court below has entered its so-called I Findings of Fact and Conclusions of Law asserting that

I " ... [A]pplicant has failed to meet his twin-burden of production and persuasion for establishing his lAC claim, as required under I Strickland v. Washington, 466 U.S. 668, 687-688 (1984), by a preponderance of the evidence .... "

I " ...FINDINGS, CONCLUSIONS ..."@ p. 5. Worse yet, the habeas court below has ordered the Jefferson County District Clerk's Office to immediately forward to this I Honorable Court

I " ... [t]he [C]lerk's [R]ecord in ... [Cause] No. 09-072[83] ... ,"

ID.@ p. 6 (4), rather obviously intent upon compelling this Honorable Court to reach I the merits vel non of the case at bar without benefit ofthe Official Reporter's (trial)

I Record/?

...and then most alarmingly, when this writer placed a telephone call to I I 3 SeeMEMORANDUM@pp.l7-19.

- 2- I I I Deborah Ann (Ann) Manes-the Assistant Jefferson County District Attorney who filed the State's Original Answer pleading(s) in the case at bar- to question her about the I habeas court's exclusion of the Official Reporter's (trial) Record from its so-called

I "Transmittal" Order, Ann Manes actually had the unmitigated gall to respond that

I "...the Official Reporter's (trial) Record is Off Limits on Habeas Corpus/1?"

I REDUCTIO AD ABSURDUM I Even a cursory review of the Strickland Court's holding(s) reveals that

I " ... a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of . I the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel [shown in the I Official Reporter's (trial) Record] that are alleged not to have been the result of reasonable professional judgment. The court I must then determine whether, in light of all the circumstances, the identified [in the Official Reporter's (trial) Record] acts or I omissions were outside the wide range of professionally competent assistance. . .. "

I Strickland v. Washington, 4 No. 82-1554, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 (Argued 01/10/1984 - Decided 03/14/1984) (JUSTICE Sandra Day O'CONNOR I delivering the opinion of the Court).

I QUERY: HOW _ _ _ is this Honorable Court supposed to comply with

the Strickland Court's ".. .must judge the reasonableness of counsel's challenged I conduct [and/or, for that matter, the Prosecutorial Misconduct issue(s) intertwined

·I 4 ... a true and correct copy of which- downloaded from the Internet @ Google Scholar- I is attached hereto as Applicant's Exhibit "A" and included herein for the readers' perusal.

-3- ;I I I therewith] on the facts of[this] particular case, viewed at the time ofcounsel's [and/or the State's Attorneys 1 conduct"mandate(s) without the Official Court Reporter's I (trial) Record for crying out Loud/1//? I CLEARly, 5 if Jefferson County officialdom is allowed to place the Official

I Reporter's (trial) Record "Off Limits" in the case at bar, it will have been allowed to do so vis·a·vis the Supreme Law of the Land. I Just for starters,

I "The Privilege of the Writ of Habeas shall not be suspended, unless when in Cases ofRebellion or Invasion the public Safety may require it." I Article I, Section 9 of our "United" States Constitution. 6 I "The judicial Power of the United States shall be vested in one [S]upreme Court ... ," I Article Ill, Section 1 of our "United" States Constitution, and all courts in these

I "United" States of America- including our Texas Court of Criminal Appeals- are "bound" by the decisions of our United States "Supreme" Court. Put another way, I "... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of I I 5 For some definitions of the word clearly, see WEST'S LAW DICTIONARY, Ninth Edition (1990), West Publishing Co., St. Paul, Minnesota@ p. 267. I 6 ...and even in Texas

I "The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall enact laws to render the remedy I speedy and effectual."

Article I [Bill of Rights], Section 12 (Habeas Corpus), effective (with the approval of Texas I Proposition 13) on November 6th, 2007.

-4- I I I the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny I to any person within its jurisdiction the equal protection of the II 1aws. I Fourteenth (14th) Amendment to our "United" States Constitution- alkla the

I "Supremacy" Clause - adopted July 9th, 1868. 7 ... and, as stated at page three (3), ante, our United States "Supreme" Court has I already decided that

I ". . .a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the I facts of the particular case, viewed as ofthe time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions ofcounsel [shown I in the Official Reporter's (trial) Record] that are alleged not to have been the result ofreasonable professional judgment. The I court must then determine whether, in light of all the circumstances, the identified [in the Official Reporter's I (trial) Record] acts or omissions were outside the wide range of professionally competent assistance. . .. " I Strickland v. Washington, supra. Accordingly, Deborah Ann (Ann) Manes'

I noxious "Off Limits" dirge should be sent packing to Davey Jones' FootLocker to

take its rightful place among the other faulty and defective merchandise which I drummers representing the State have brought to the courts of Jefferson County, I Texas (and elsewhere) to sell//? What is really "Off Limits" here is the kind( s) of guile and chicanery foisted I upon the hard-working/ tax-paying/voting citizens of Jefferson County, Texas (and

I 7 " ...any person ... "folks, including Carl Matthew Bellotti, lll- his Judgment & Sentence I in the case at bar notwithstanding//?

- 5- I I I elsewhere) by licentious lackies who have forgotten that it is their ((...primary duty ... not to convict, but to see that justice is I done. They shall not suppress facts [including facts contained in the Official Court Reporter's (trial) I Record] nor secret witnesses capable of establishing the innocence of the accused [or providing prima facie I evidence of the Prosecutorial .Misconduct and/or Ineffective Assistance of Counsel (IAC) issues hotly I presented by Applicant, viewed as of the time of counsel's (and/or Prosecutors') conduct, as an aid to I this Honorable Court in assessing the merits vel non of Applicant's habeas claim(s)]." I V.A.C.C.P. Article 2.01 - Duties of District Attorneys. They rather obviously have

I also forgotten that all lawyers- each of whom so proudly style themselves "Officers of the Court(s)" but too often act as though they are above the Law- are responsible I for the pleading(s) they submit to a tribunal in a(ny) given case and are forbidden to

I "...bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous. " 8 I Rule 3.01 (Meritorious Claims and Contentions)-TEXAS DISCIPLINARYRULES I OF PROFESSIONAL CONDUCT- a/k/a the State Bar (of Texas) Rules. They have lost their Moral Compass and visited substantial (and substantive) violence upon I not only Carl Matthew Bellotti, III but upon the entire Criminal "Justice" System of

I Jefferson County, Texas (and elsewhere) as well ..

II I CONCLUSION

I 8 ... and there is certainly nothing "reasonable" about Ann Manes' "Off Limits"

I noxious dirge- WHAT WAS SHE THINKING?

-6- I I I Sadly, the State has been given its chances to "come clean" but has chosen instead to perpetuate its Dog & Pony Show routine in a series of"C.Y.A." attempts I to keep the hard-working/tax-paying/voting citizens of Jefferson County, Texas (and

I elsewhere) from finding out just how things really "work" in that Jefferson County Courthouse- all while attempting to shield their "Brothers (and Sisters) of the I Bar·· from the Eyes of Texas so-to-speak. Indeed, on Thursday, January 27th, 2015, Petitioner [accompanied by I Applicant's dearly-beloved eighty-four (84+)-year old ailing/Heart Patient/Pensioner

I father] met with thenewly-electedDistrictAttomey of Jefferson County, Texas (Bob Wortham) himself (Kimberly Ann "Kim" Hobbs, Assistant District Attorney, was I also present)9 in an attempt to provide Jefferson County officialdom with an opportunity to "take care of its own business" with a view towards avoiding the I contentious litigation within which we now all find ourselves ensnared and presented

I Bob Wortham with a complete BOUND copy of the entire Official Court Reporter's (trial) Record in the above-styled and numbered cause- BOTH TRIALS/all five I (5) Volumes -prepared by SummerTanner(the Official Court Reporter in the case

I at bar) and paid for by Applicant's father, CarlS. Bellotti, Jr.long before these habeas proceedings commenced. I BUT all Bob Wortham seemed to want to talk about was having Petitioner file

I a "Bill of Review" pleading in the 252nd Judicial District Court of Jefferson County, Texas (Hon. Raquel West,. Judge Presiding) seeking relief in the premises - I 9 ... a meeting "arranged" by a telephone call to Mr. Wortham from the Honorable John Burch

I "Johnny" Stevens, Judge of the Criminal District Court (right next door to Judge West's courtroom) of Jefferson County, Texas- one of the most impressive (if not the most impressive)·members of the Bench that this writer has ever encountered- urging him (Wortham) to meet with Petitioner

I in an attempt to avoid this Armageddon. Mr. Wortham allocated two (2) hours for that meeting- it lasted for slightly more than one- and-a-half (1 ~)hours and resulted in little (if any) more than Mr. Wortham's "Bill of Review" I ersatz.

- 7- I I I ostensibly, relief would come "faster" that way/? .. .but "that dog just won't hunt" so-to-speak- at least according to Randy I Schaffer anyway,

I " .. [a] Bill of Review is only applicable to CIVIL cases- the Texas Code of Criminal Procedure specifically states that I the Texas Court of Criminal Appeals is the only Court that can grant or deny relief to an applicant in cases I involving a final felony conviction. . .. " [emphasis in original] I Petitioner's January 28th, 2015letter to Bob Wortham 10 @ p. 1, ~ 3.

I It is against this backdrop that the State's Attorney (Ann Manes) vicariously tarred Petitioner with having utilized mere "snippets" from the Official Court I Reporter's (trial) Record in advancing Applicant's claims and then further stultified

I herself by asserting that

I "... [t]he snippets presented in Petitioner's memorandum (page 8 et seq.) are not presented in context, and without context the differences between the statements [made by Groves Police I Department Kevin Russell White and a Lay Witness by the name of Aelisa Faye Sanders] cannot be ascertained to rise to

I the level of perjury. . .. "

State's Original Answer @ p. 2. I OKay, so we'll just let those duly-elected members of our Texas Court of

I Criminal Appeals peruse the entire Official Court Reporter's (trial) Record germane

I I 10 ... a true and correct copy of which is attached hereto as Applicant's Exhibit "A" and I included herein for all purposes.

- 8- I I I to the case at bar -BOTH TRIALS/all five (5) Volumes 11 - prepared by

I Summer Tanner (the Official Court Reporter) and paid for by Applicant's father, Carl S. Bellotti, Jr. long before these habeas proceedings commenced and let those I "impartial triers of fact" decide who the "snippet" Shill is. In any event, right now is the time for this Honorable Court to set its jaws(s) I squarely against the kind(s) of guile and chicanery bitterly complained of by I Applicant so that those licentious lackies will all discover that

I it ain't no fun when 'da Rabbit gots 'da gun//? Ill I PRAYER

I WHEREFORE, PREMISES CONSIDERED, Applicant respectfully prays that this Honorable Court will 0 R D E R the habeas court below to ORDER the Official I Court Reporter of the 252nd Judicial District Court of Jefferson County, Texas to provide this Honorable Court with a certified copy of said trial Record to enable this I Honorable Court to comply with our United States "Supreme" Court's mandate(s)

I that

" ... a court deciding an actual ineffectiveness claim must I judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's I conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel [shown in the Official Reporter's (trial) Record] that are alleged not I I 11 ... a true and correct copy of which will be hand-delivered to the Clerk of this Honorable Court (Abel Acosta) commensurate ~th the filing of this NOTICE pleading- indeed, true and

I correct copies of said Official Court Reporter's (trial) Record can (and will) be delivered electronically to each member of this Honorable Court upon request, but the rather voluminous nature of that Record (and this writer's limited financial resources) make electronic transmission of I that Record the best (if not only) way to "make everybody happy" so-to-speak.

-9- I I I to have been the result ofreasonable professional judgment. The court must then determine whether, in light of all the I circumstances, the identified [in the Official Reporter's (trial) Record] acts or omissions that were outside the wide I range of professionally competent assistance. . .. "

Strickland v. Washington, supra. In the alternative, this Honorable Court could I (and probably should) rely upon the true and correct copy of the entire Official Court

I Reporter's (trial) Record- BOTH TRIALS/all five (5) Volumes 12 - being

provided to this Honorable Court by Petitioner at Petitioner's expense to enable it to I reach the merits vel non of Applicant's claims in the case at bar.

I CLEARly, 13 because Applicant has alleged facts which, if true, would surely entitle him to the relief sought, the proper course of action is to I ". . .remand this matter to the trial court for resolution of the factual issues presented in accordance with Article 11.07, § 3(d) I of the [Texas] Code of Criminal Procedure."

I Ex parte Patterson, No. 72,866,993 S.W.2d 114, 115 (Tex. Crim. App. -05/2611999) (Holland, J., delivering the unanimous opinion of the Court). I "... In these circumstances, additional facts are needed. As [this Honorable Court] held in Ex parte Rodriguez, 334 I S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. ... " I Ex parte Hinojosa, WR-82,619-01 & WR-82,619-02 [ORDER@ p. 3] (Tex. Crim. I 12 ... a true and correct copy of which will be hand-delivered to the Clerk of this Honorable

I Court (Abel Acosta) commensurate with the filing of this NOTICE pleading- indeed, true and correct copies of said Official Court Reporter's (trial) Record can (and will) be delivered electronically to each member of this Honorable Court upon request, but the rather voluminous I nature of that Record (and this writer's limited financial resources) make electronic transmission of that Record the best (if not only) way to "make everybody happy" so-to-speak.

I 13 See footnote five (5)@ p. 4, ante.

- 10- I I I App.- Per Curiam- 02/25/2015) 14 (not designated for publication) and cases cited

I therein. At the very least, this Honorable Court should 0 R D E R the habeas court below to

I " ... conduct a live [E]videntiary [H]earing [in this case], at which [Groves Police Department Sergeant Kevin Russell White,

I A elisa Faye Sanders and both Prosecutors- Ernest Perry Thomas and Patrick W. (Pat) Knauth] shall be called to testify.... "

I Ex parte Contreras, 15 WR-80,635-02 [ORDER @ p. 3] (Tex. Crim. App. - Per Curiam- February 4th, 2015) (not designated for publication) and cases cited therein. I The Challenge is issued - the Clarion Call is made. I Respectfully submitted, I ~~~ I Philip W. "Phil" Moore, Petitioner Pro $e

I IV CERTIFICATE OF SERVICE I I, Philip W. "Phil" Moore, Petitioner in the above-styled and numbered cause and

I the Amicus Curiae "person" alluded to throughout pleadings filed in the case at bar, hereby certify that the original and ten (1 0) true and correct copies of these NOTICE in I re the Official Reporter's Record pleading(s) have been served upon the members

I of this Honorable Court by hand-delivering them as follows:

I 14 I 15 Can't get much more "current" than that/?

Relief was finally GRANTED on February 25th, 2015 because "the truth, the whole I truth and nothing but the truth" was finally allowed to prevail///?

- 11 - I I I Hon. Abel Acosta, Clerk Texas Court of Criminal Appeals I Supreme Court Building 201 West 14th Street, Room 106 P.O. Box 12308 Austin, Texas 78711-2308 I Phone: (512) 463-1551 FAX: 512/463-7061 e-mail: a.acosta@courts.state. tx. us I I Date: C1? /u U

month/day/year ATTEST: Philip W. "P ~ 11" Moore, Petitioner Pro $e

I I further certify that- as soon as I can get to the Post Office from the Supreme

I Court Building where the Court of Criminal Appeals is located- three (3) true and correct date-stamped ((FILED ... " copies of these NOTICE in re the Official

I Reporter's Record pleadings will be served upon the below named individual(si 6 by placing the same in the United States Mail, First Class postage pre-paid, as follows: I Debbie Folse, Deputy District Clerk17 Felony Criminal Section I Jefferson County District Clerk's Office Jefferson County Courthouse 1085 Pearl Street, Room 203 I Beaumont, Texas 77701-3545 Phone: (409) 835-8580 FAX: 409/835-8527 I e-mail: dfolse@co.jefferson.tx.us

CERTIFIED MAIL I Article No. 7014 1200 0001 0065 9563 RETURN RECEIPT REQUESTED

I 16 ...with one (1) copy each being intended for the records and files of the Jefferson County District Clerk's Office, Hon. Raquel West, Judge Presiding ofthe 252nd Judicial District Court of

I Jefferson County, Texas and the State's Attorney, Deborah Ann (Ann) Manes. 17 ... and Petitioner hereby once again seizes upon the opportunity to laud Debbie Folse and

I the girls in that office (including Hope) for their style, aplomb and professionalism in their dealing( s) with this writer in the premises by calling this Honorable Court's attention to a much-welcomed, needed and appreciated asset of the Criminal "Justice" System there in Jefferson County, Texas. I LUKE 12: 2-3.

- 12- I I I Date: o.ij/L ~o/§ ATTEST:~~ month/d~y/year Philip W. "P "Moore, Petitioner Pro $e I I I I I I I I I I I I I I I I - 13- I I I ADDENDUM

I THE po$tage &return RECEIPTS I I I I I I I I I I I I I I I - 14- I JE X JHI II IB3 II 1f § I I I I I I I I I I 5 •• A c e

I I I I I I I I I I I Philip W. "Phil" Moore Phone: (512) 667-1508 P.O. Box 19471 + Austin, Texas 78760-9471 e-mail: pwmH.07@gm2ii.com I I Wednesday, January 28th, 2015

I Hon. Bob Wortham, District Attorney Jefferson County District Attorney's Office I 1085 Pearl Street, Suite 300 Beaumont, Texas 77701-3545

I in re Ex parte Carl Matthew Bellotti, III, No. 09-07283-A: I AN UNCOMMON PLEA from an all-too-common victim/

I Dear Mr. Wortham,

First, mere words cannot possibly express my gratitude to you and a certain I Kimberly Ann "Kim" Hobbs for graciously allowing me and Carl's 84-year-old father (CarlS. Bellotti, Jr.) so much ofy'alls valuable time yesterday morning in your office I to share our thoughts about the above-styled and numbered cause. All of that said, and all of that is said, it has come to my attention that your

I "Bill of Review" thoughts are misplaced. According to Randy Schaffer, one ofthe best (if not the Best) Criminal "Defense" Lawyers in these United States of America, 1 I " ... [a] Bill of Review is only applicable to CIVIL cases- the

I Texas Code of Criminal Procedure specifically states that the Texas Court of Criminal Appeals is the only Court that can grant or deny relief to an applicant in cases involving I a final felony conviction. . .. "

I I was a little bit embarrassed actually- I know Randy has one of the best Criminal Law minds ever and I didn't want to stultify myself before him by asking dumb questions;

I however, with so much at risk, I "made that call" anyway.

I See the attached printout of Randy's web site downloaded this date from the Internet.

- 1- I I I ... and, mirabile dictu, Randy returned my call @ 5:11PM and provided me with the above-quoted input. I ... and then I reviewed the relevant statute:

I (( ...Upon reviewing the record the [C]ourt [of Criminal Appeals] shall enter its judgment remanding the applicant to custody or ordering his release, as the law and the facts may I justify. ... " [emphasis added]

I V.A.C.C.P. Article 11.07, Section 5 - PROCEDURE AFTER CONVICTION WITHOUT DEATH PENALTY.

I SO in cases involving a final felony conviction, it is apparent that only the Texas Court of Criminal Appeals- and not the "convicting" Court- may grant or deny the relief sought. I We will not be seeking relief from Raquel West via a "Bill of Review" pleading; instead, we will be seeking relief from the Texas Court of Criminal Appeals via The I Great Writ of Habeas Corpus in accordance with Article 11.07 of our Texas Code of Criminal Procedure and its "Hornbook Law" progeny which, under the circumstances present here, I ('...where the alleged derelictions primarily are errors of I omission de hors the record rather than commission revealed in the 'trial' record, collateral attack may be just the vehicle by which a thorough and detailed examination of alleged I ineffectiveness [and Prosecutorial Misconduct et al] may be developed and spread upon a record." [emphasis in I original/emphasis added]

I Ex parte Duffy, No. 64863,607 S.W.2d 507,513 (Tex. Crim. App. -EnBanc-10/011 1980) (the Most Honorable Sam Houston Clinton, Judge, writing for the Court), Rehear- ing Denied (11126/1980) and cases cited therein. I • • • I .and I still expect a certain Ernest Perry Thomas to be held accountable for his patently ignominious Subornation of Perjury in the I premises!!? ... and you can tell him I said 'dot. I -2- I I I Respectfully submitted,

I -~?e-r~ Philip W. "Phil" Moore I PWM/pwm I Enclosure

I cc. Kimberly Ann "Kim" Hobbs, Asst. D.A. Jefferson County District Attorney's Office I 1085 Pearl Street, Suite 300 Beaumont, Texas 77701-3545 I Phone: (409) 835-8550 e-mail: khobbs@co.jefferson.tx.us // I ~file(s)

I I I I I I I I I -3- I I I I I I I I I the I I COVER I I . letter s I I I I I I I I I Philip W. "Phil" Moore Phone: (512) 667-1508 15623 Fagerquist Road+ Del Valle, Texas 78617-5800 e-mail: pwm11.07@gmail.com I I Wednesday, March lith, 2015

I Hon. Sharon Faye Keller, Presiding Judge Texas Court of Criminal Appeals I Supreme Court Building 201 West 14th Street, Room 106 P.O. Box 12308 I Austin, Texas 78711-2308

I in re Ex parte Carl Matthew Bellotti, III, No. WR-53 ,835-05: AN UNCOMMON PLEA - from an all-too-common victim! I Your Honor, I Just for starters, this is not a prohibited Ex Parte cqmmunication because this

I letter is being shared with not only all of the parties to the above-styled and numbered cause but each ofyour fellow Jurists on the Texas Court of Criminal Appeals as well. TO BE CLEAR, the unusual step of filing pleadings directly in the Texas Court I of Criminal Appeals - and communicating directly with each sitting Member of the Court - is being taken because

I A FRAUO has been perpetrated upon this Honorable Court

I in the above-styled and numbered cause by Jefferson County officialdom's not-so-veiled insistence upon depriving our Texas Court of Criminal Appeals of the Official Court

I Reporter's (trial) Record despite the Strickland Court's mandate(s) that

... . .a court [including our Texas Court of Criminal I Appeals] deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the I facts ofthe particular case, viewed as ofthe time ofcounsel's conduct. ... " [emphasis in original]

I - 1- I I I "NOTICE ... " pleading(s)@ p. i - fOREWORD. Indeed, at least according to the State's Attorney who filed the State's Original Answer pleading(s) in the case at bar I ("Rubber Stamped" by the habeas court below that very next morning) anyway,

I ". . .the Official Reporter's (trial) Record is Off Limits on Habeas Corpus II?"

I ID. While it is true that literally everything I know about the criminal law( s) of this I Great State of Texas could easily be written upon a cigarette butt with a crayola, what I do know is that Jefferson County officialdom has adopted a "Record" position in this Bellotti case which - if allowed to go unchecked - would do substantial (and I substantive) violence to our Court of Criminal Appeals' ability to follow the above- quoted mandate( s) of the Strickland Court in assessing the merits vel non of litigants' I Ineffective Assistance of Counsel (lAC) claims, all while allowing the State and its licentious lackies to escape scrutiny for committing and/or suborning Aggravated

I Perjury (a/k/a Inconsistent Statements) from the "Witness" Stand in violation of a cornucopia of"Hornbook Law" jurisprudence, including the fact that time has not eroded the force of Justice Sutherland's thoughtful remarks when he wrote for the Court that I " ... [t]he right to be heard would be, in many cases, oflittle avail if it did not comprehend the right to be heard by [effective] I counsel. Even the intelligent and educated layman has small and · sometimes no skill in the science of the law. If charged with

I crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on I trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately I to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he I faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how I much more true is it ofthe ignorant and illiterate, ot those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by I [or appointed to represent him] and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing and, therefore, [D ]ue [P]rocess [of Law] in the I constitutional sense." [emphasis added]

-2- I I I Powell v. Alabama, Nos. 98, 99 & 100,287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (Argued 10/10/1932 -Decided 11107/1932) (MR. WSTICE Thomas SUTHERLAND I delivering the opinion of the Court); cf., United States v. Cronic, No. 82-660, 466 U.S. 648,654@ fn. 8, 104 S.Ct. 2039,80 L.Ed.2d 657 (Argued 01110/1984 -Decided

I 05/ 1411984) (MR. WSTICE John Paul STEVENS delivering the opinion of the Court) and cases cited therein. In this Bellotti case, as eloquently stated by Mr. Justice Stevens, I "... [Applicant] can ... make out a claim ofineffective assistance I [of counsel and/or Prosecutorial Misconduct] only by pointing to specific errors made by 'trial' counsel [and/or specific I instances of Prosecutorial Misconduct," [emphasis added]

Cronic, supra, 466 U.S. @ 666, and Jefferson County officialdom knows that the only I place where those counsel errors and/or those instances of Prosecutorial Misconduct can be identified, viewed at the time of those errors/that I Prosecutorial Misconduct, is in the Official Court Reporter's trial Record. THEY KNOW those two (2) "Star" Witnesses committed "Aggravated Perjury" I as defmed by Texas Penal Code §37.06- Inconsistent Statements. THEY KNOW a certain Ernest Perry Thomas 1 knowingly and intentionally I suborned Aggravated Perjury on the part of the State's two (2) "Star" Witnesses- Groves Police Department Sergeant Kevin Russell White and a Lay Witness by the name of Aelisa Faye Sanders. I ... and THEY KNOW that

I "... [t]he State is not allowed to obtain a 'conviction' through the use of perjured testimony [or other false evidence]. Napue v. Illinois, 360U.S. 264,79 S.Ct. 1173,3 L.Ed.2d 1217. Further- I more, reversal must follow if the prosecutor presents a false picture of the facts by failing to correct its own I testimony when it first becomes apparent that it was false. Napue v. Illinois, supra; Means v. State, 429 S.W.2d 490, Tex. I Crim. App. [1968] .... " [emphasis in original]

MEMORANDUM pleading(s)@ p. 12. I I ...with a certain Patrick W. "Pat" Knauth witting right there beside him ...

- 3- I I I ...and that is exactly why those licentious lackies there in good 'ol Jefferson County, Texas don't want Applicant to be able to utilize the Official Court Reporter's I (trial) Record to provide our Texas Court of Criminal Appeals with prima facie evidence in support of his habeas claims I "... and are so very determined to prevent [Applicant from doing precisely that] that they have even had the unmitigated gall to I perpetrate (or at least attempt to perpetuate) a fraud upon our Texas Court of Criminal Appeals in their not-so-veiled "C.Y.A." I attempt( s) to protect the reputation( s) of their so-called "Brothers (and Sisters) of the Bar" - each of whom so proudly style themselves "Officers of the Court(s)" but all-too-often act as I though they are above the Law." [emphasis in original]

I ' 1 NOTICE ... " pfeading(s)@ p. ii., ... and it's got to stop NOW!!! I ... and failure(s) of you and your fellow Jurists to do exactly that in this case would at least tend to undermine Public confidence in our judiciary- this one isn't gonna go away, Your Honor: BELIEVE THAT!! I I • • • I would be easy enough for me to just go about my own Rat Killing and leave Carl Matthew Bellotti, III and/or his dearly-beloved eighty-four (84+)-year-old ailing/Heart I Patient/Pensioner father to their own devices,

I But I have promises to keep, And miles to go before I sleep, Arid miles to go before I sleep. I Robert Frost, Stopping By Woods on a Snowy Evening (1923). I To say that I "anxiously" await the Court's response to these onerous habeas efforts would be a classic understatement indeed.

I Respectfully submitte~ ~~ -z_u;-~~fL_ I I Philip W. "Phil" Moore, Petitioner Pro $e

- 4- I I I PWM!pwm

I cc. Hon. Lawrence E. Meyers, Judge

I Hon. Robert C. "Bert" Richardson, Judge

Hon. Kevin Patrick Yeary, Judge I Hon. Cheryl Johnson, Judge I Hon. Michael E. "Mike" Keasler, Judge

I Hon. Barbara Parker Hervey, Judge Hon. Elsa R. Alcala, Judge I Hon. David Christopher Newell, Judge

I Debbie Folse, Deputy District Clerk Felony Criminal Section I Jefferson County District Clerk's Office

Hon. Raquel West, Judge Presiding I 252nd Judicial District Court of Jefferson County, Texas

I Deborah Ann (Ann) Manes, Asst. Dist. Attn. Jefferson County District Attorney's Office I several

I ~e(s) I I I I - 5- I I I Philip W. "Phil" Moore Phone: (512) 667-1508 15623 Fagerquist Road+ Dei Valle, Texas 78617-5800 e-mail: pwm11.07@gmail.com I I Wednesday, March 11th, 2015

I Debbie Folse, Deputy Clerk Jefferson County District Clerk's Office I Jefferson County Courthouse, Room 203 1085 Pearl Street Beaumont, Texas 77701-3545 I in re Ex parte Carl Matthew Bellotti, III, No. WR-53,835-05: I AN UNCOMMON PLEA - from an all-too-common victim!

I Dear Debbie,

I Please fmd enclosed three (3) true and correct date-stamped "FILED ... "(in the Court ofCriminal Appeals) copies 1 ofmy NOTICE in re the Official Reporter's Record2 pleading(s) in the above-styled and numbered cause. I ... one copy being intended for the records and files of the Jefferson County District Clerk's I Office with one ( 1) copy each provided for Judge West and for the State's Postconviction Attorney, Deborah Ann (Ann) Manes.

I 2 ... the five (5) volume Record which Deborah Ann (Ann) Manes stated to me was Limits" in habeas cases despite the Strickland Court's mandate(s) that "Off

I "... a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted I defendant making a claim of ineffective assistance must identify the acts or omissions of counsel [shown in the Official Reporter's (trial) I Record] that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified [in the Official Reporter's (trial) I Record] acts or omissions were outside the wide range of professionally competent assistance. . .. "

I ld., 466 u.s. 668, 690 (1984). - 1- I I I ... and allow me to once again thank you (and all of the girls there in your office- including Hope) for y'alls style, aplomb and professionalism in your dealing(s) I with me in the premises! " ... and miles to go before I sleep, and miles to go before I sleep."

I Respectfully submitted,

I ~~~ Philip W. "Phil" Moore I PWM/pwm

I Enclosures

I cc. Carl Matthew Bellotti, III, 1755639 East Texas Treatment Facility P.O. Box 8000 I Henderson, Texas 75653-8000

I Carl S. Bellotti, Jr. 2122 Merriman Street Port Neches, Texas 77651-3728 I Phone: (409) 626-4542

I ~- Abel Acosta, Clerk Texas Court of Criminal Appeals Supreme Court Building I 201 West 14th Street, Room 106 P.O. Box 12308

I Austin, Texas 78711-2308 Phone:(512)936-1620 FAX: 512/463-7061 I e-mail: a.acosta@courts.state.tx.us

I s e v e r a 1 others

file(s) I I -2- I Philip W. "Phil" Moore Phone: (512) 667-1508 15623 Fagerquist Road + Del Valle, Texas 78617-5800 e-mail: pwm11.07@gmail.com

Wednesday, March 11th, 2015

Hon. Sharon Faye Keller, Presiding Judge- RECEIVED IN Texas Court of Criminal Appeals COURT OF CRIMINAL APPEALS Supreme Court Building 201 West 14th Street, Room 106 MAR-t 1 2015 P.O. Box 12308 Austin, Texas 78711-2308 Abel Acosta, Clerk

in re Ex parte Carl Matthew Bellotti, III, No. WR-53,835-05: AN UNCOMMON PLEA - from an all-too-common victim!

Your Honor,

Just for starters, this is not a prohibited Ex Parte communication because this letter is being shared with not only all of the parties to the above-styled and numbered cause but each ofyour fellow Jurists on the Texas Court of Criminal Appeals as well. TO BE CLEAR, the unusual step of filing pleadings directly in the Texas Court of Criminal Appeals - and communicating directly with each sitting Member of the Court - is being taken because

A FRAUO has been perpetrated upon this Honorable Court

in the above-styled and numbered cause by Jefferson County officialdom's not-so-veiled insistence upon depriving our Texas Court of Criminal Appeals of the Official Court Reporter's (trial) Record despite the Strickland Court's mandate(s) that

". . .a court [including our Texas Court of Criminal Appeals] deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts ofthe particular case, viewed as ofthe time ofcounsel's conduct. ... " [emphasis in original]

- 1- "NOTICE ..." pleading(s) @ p. i - fOREWORD. Indeed, at least according to the State's Attorney who filed the State's Original Answer pleading(s) in the case at bar ("Rubber Stamped" by the habeas court below that very next morning) anyway,

"... the Official Reporter's (trial) Record is Off Limits on Habeas Corpus/!?"

lD. While it is true that literally everything I know about the criminal law( s) of this Great State of Texas could easily be written upon a cigarette butt with a crayola, what I do know is that Jefferson County officialdom has adopted a "Record" position in this Bellotti case which - if allowed to go unchecked - would do substantial (and substantive) violence to our Court of Criminal Appeals' ability to follow the above- quoted mandate(s) of the Strickland Court in assessing the merits vel non of litigants' Ineffective Assistance of Counsel (lAC) claims, all while allowing the State and its licentious lackies to escape scrutiny for committing and/or suborning Aggravated Perjury (a/k/a Inconsistent Statements) from the "Witness" Stand in violation of a cornucopia of"Hornbook Law" jurisprudence, including the fact that time has not eroded the force of Justice Sutherland's thoughtful remarks when he wrote for the Court that

" ... [t]he right to be heard would be, in many cases, oflittle avail if it did not comprehend the right to be heard by [effective] counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of the law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it ofthe ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by [or appointed to represent him] and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing and, therefore, [D]ue [P]rocess [of Law] in the constitutional sense." [emphasis added]

- 2- Powell v. Alabama, Nos. 98, 99 & 100,287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. l58 (Argued 10/10/1932 -Decided 11107/1932) (MR. illSTICE Thomas SUTHERLAND delivering the opinion of the Court); cf., United States v. Cronic, No. 82-660, 466 U.S. 648,654@ fn. 8, f04 S.Ct. 2039,80 L.Ed.2d 657 (Argued 01/10/1984 -Decided 05/ 14/1984) (MR. illSTICE John Paul STEVENS delivering the opinion of the Court) and cases cited therein. In this Bellotti case, as eloquently stated by Mr. Justice Stevens,

..... [Applicant] can ... make out a claim ofineffective assistance [of counsel and/or Prosecutorial Misconduct] only by pointing to specific errors made by 'trial' counsel [and/or specific instances of Prosecutorial Misconduct," [emphasis added}

Cronic, supra, 466 U.S. @ 666, and Jefferson County officialdom knows that the only place where those counsel errors and/or those instances of Prosecutorial Misconduct can be identified, viewed at the time. of those errors/that Prosecutorial Misconduct, is in the Official Court Reporter's trial Record. THEY KNOW those two (2) "Star" Witnesses committed "Aggravated Perjury" as defmed by Texas Penal Code §37.06- Inconsistent Statements. THEY KNOW a certain Ernest Perry Thomas 1 knowingly and intentionally suborned Aggravated Perjury on the part of the State's two (2) "Star" Witnesses- Groves Police Department Sergeant Kevin Russell White and a Lay Witness by the name of Aelisa Faye Sanders . . . .and THEY KNOW that

..... [t]he State is not allowed to obtain a 'conviction' through the use of perjured testimony [or other false evidence]. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Further- more, reversal must follow if the prosecutor presents a false picture of the facts by failing to correct its own testimony when it first becomes apparent that it was false. Napue v. Illinois, supra; Means v. State, 429 S.W.2d 490, Tex. Crim. App. [1968] .... " [emphasis in original}

MEMORANDUM pleading(s)@ p. 12.

1 ... with a certain Patrick W. "Pat" Knauth witting right there beside him ...

- 3- ...and that is exactly why those licentious lackies there in good 'ol Jefferson County, Texas don't want Applicant to be able to utilize the Official Court Reporter's (trial) Record to provide our Texas Court of Criminal Appeals with prima facie evidence in support of his habeas claims

..... and are so very determined to prevent [Applicant from doing precisely that] that they have even had the unmitigated gall to perpetrate (or at least attempt to perpetuate) a fraud upon our Texas· Court of Criminal Appeals in their not-so-veiled "C.Y.A." attempt( s) to protect the reputation( s) of their so-called "Brothers (and Sisters) of the Bar" - each of whom so proudly style themselves "Officers of the Court(s)" but all-too-often act as though they are above the Law." [emphasis in original]

"NOTICE ... " pleading(s) @ p. ii., ... and it's got to stop NOW/II . . .and failure( s) of you and your fellow Jurists to do exactly that in this case would at least tend to undermine Public confidence in our judiciary- this one isn't gonna go away, Your Honor: BELIEVE THATI I

• • • •

I would be easy enough for me to just go about my own Rat Killing and leave Carl Matthew Bellotti, III and/or his dearly-beloved eighty-four (84+)-year-old ailing/Heart Patient/Pensioner father to their own devices,

But I have promises to keep, And miles to go before I sleep, And miles to go before I sleep.

Robert Frost, Stopping By Woods on a Snowy Evening (1923). To say that I "anxiously" await the Court's response to these onerous habeas efforts would be a classic understatement indeed.

Respectfully submitted,

4·~~· Philip W. "Phil" Moore, Petitioner Pro $e

-4- PWM!pwm

cc. Hon. Lawrence E. Meyers, Judge

Hon. Robert C. "Bert" Richardson, Judge

Hon. Kevin Patrick Yeary, Judge

Hon. Cheryl Johnson, Judge

Hon. Michael E. "Mike" Keasler, Judge

Hon. Barbara Parker Hervey, Judge Hon. Elsa R. Alcala, Judge

Hon. David Christopher Newell, Judge

Debbie Folse, Deputy District Clerk Felony Criminal Section Jefferson County District Clerk's Office

Hon. Raquel West, Judge Presiding 252nd Judicial District Court of Jefferson County, Texas

Deborah Ann (Ann) Manes, Asst. Dist. Attn. Jefferson County District Attorney's Office

s e v e r a 1 others

file(s)

- 5- J . ... I ·"'

I THE STATE OF TEXAS .§ IN THE DISTIUCT COURT OF § . I vs. § § JEFFERSON COUNTY, TEXAS

· CARL MATTBEW BELLOTTI, J11 § [252ND JUDICIAL DISTRICT] I I (}

I I \

I 4 REPORTER'S. RECORD I Volume 1 of 1 **************************** I BOND 'HEARING I <:l> . August26th,2009 ~****************************

IJ RECEIVED IN COURT OF CRIMINAl APPEALS

MAR .11 '2015 I Abel Acosta, Clerk

I . I I Philip. W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road Del Valle, Texas 78617-5800 o I~. Phone: (512) 667-1508 (I

e-mail: pwm11.07@gmail.com ·I .I I I THE STATE OF TEXAS § IN THE DISTRICT COURT OF § I V& § § JEFFERSON COUNTY, TEXAS

CARL MATTHEW BELLOTTI, III § [252ND JUDICIAL DISTRICT] I I I I I REPORTER'S RECORD I Volume 1 of 1

I **************************** BOND HEARING I August 26th, 2009 ****************************

I I I I I Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road Del Valle, Texas 78617-5800 ~I Phone: (512) 667-1508 e-mail: pwm11.07@gmail.com :I I I 1

I .-.,-.... -~--

• -~ ..

~ 1 REPORTER'S RECORD

2 VOLUME 1 OF 1

3 TRIAL COURT CAUSE NO. 08-04604 I 4 THE STATE OF TEXAS * IN THE 252ND DISTRICT I 5 * * 6 vs. * COURT OF I 7 * * CARL MATTHEW BELLOTTI, * I 8 I II, AKA CARL MATHEW BELLOTTI, III AKA CARL 9 MATHEW BELO.TTI, III, AKA * * * CARL MATTHEW BELLOTTI * JEFFERSON COUNTY, TEXAS I 10

11 I ,....... .... ·..:-· 12 * * * * * * * * * * * * * * * * * * * * BOND HEARING I 13 * * * * * * * * * * * * * * * * * * * * 14 I 15 On the 26TH day of AUGUST, 2009, the following

16 proceedings came on to be heard in the. above-entitled I 17 and numbered cause before the Honorable Layne Walker,

I 18 Judge Presiding, held in Beaumont, Jefferson County, 19 Texas: I 20

I 21 22 Proceedings reported by Machine Shorthand.

I ......... 23 24 I __jJi$' 25

I c, : y·- O~ p· ·~ SUMMER TANNER, CSR, RPR "' 252nd District Court

I 2

1··- 1 r:JII 1 2 A P P E A R A N C E S

3 FOR THE STATE: I 4 Mr. Perry Thomas SBOT NO. 19849120 I 5 Assistant District Attorney 1001 Pearl, 3rd Floor 6 Be a urn on t , Texas 7 7 7 0 1 I 7 FOR THE DEFENDANT:

I 8 Mr. Bryan Laine SBOT NO. 24011488 9 Attorney at Law 1045 Redwood I 10 Kountze, Texas 77625

11 I 12

I 13 14 I 15 16 I 17

I 18 19 I 20

I 21 22 I 23 24 ·(~ 25

I SUMMER TANNER, CSR, RPR 252nd District Court

I I 3 I- . . l~ ''-:JJI 1 VOLUME 1 1 2 BOND HEARING

~-- 3 PAGE

4 Case Called 4 I- 5 Motion to Amend Indictment 4

6 Motion Granted I 7 Court Orders Drug Test 6

I 8 Case Reset 9

9 Drug Test Results 9 I 10 Court Raises Bond 11 ~--- 11 Reporter's Certificate 13

12 1 ~ ~ 13 14 I 15

I 16 17 I 18 19 I 20

I 21 22 I 23 24

·J~ 25

I SOMMER TANNER, CSR, RPR 252nd District Court ~

I I 4

I I~~ 1 THE COURT: Carl Bellotti?

2 MR. LAINE~ He is present.

3 MR. THOMAS: Judge, we have a motion in I 4 that case, a Motion to Amend the Indictment. I would

I 5 like to file it at this time.

6 THE COURT: Okay, Y'all can come on up. I 7 Let me see the file on Carl Bellotti. This is

I 8 9 Cause No. 4604. H~w

MR. THOMAS: many prior DWI's does he have?

Quite a few. And the

I 10 amendment then adds some to that enhancement count,

11 too, Judge. I 12 THE CbURT: five, six -- am I right on . • 'fi:::; I ;,'::17~~.. . .=s:·-~ 13 that? 14 MR. THOMAS: Two misdemeanors, and then, I

I 15 think, four felony DWI 's, Judge.

16 THE COURT: 1999, 1999, 1998 -- what is I 17 the amendment?

I 18 MR. THOMAS: The amendment -- there's a

19 number of amendments, Your Honor. The first begins

I 20 with-- it's going to be in the second paragraph of the 21 indictment, the first enhancement counts. If the Court I 22 goes down, i t says, "January 19th, 1988." That should

I 23 be "January 5th, 1989."

24 THE COURT: Okay.

25 MR. THOMAS: Then if the Court goes down

SUMMER TANNER, CSR, RPR 252nd District Court

I I 5

I (·J}.Z!: 1 one, two -- the third line below that, and it says, I ... - ·<·;J . ·:·~'-

2 "and on driving while intoxicated -- second degree

1 3 felony" 4 THE COURT: Y.eah.

I 5 MR. THOMAS: -- that -- begin that, "and

6 on driving," line should be eliminated. I 7 THE COURT: Eliminate "and on driving

I 8 while intoxicated"?

9 MR. THOMAS: Yes, sir. And that would I 10 continue to the fourth line down whe~e it -- go past I ._ 11 wheres it says "in C~use No. 83727, the Defendant

12 committed the felony of driving while intoxicated," ~--~ 13 eliminate all that to that semicolon. 14 THE COURT: Okay. I. 15 MR. THOMAS: It then picks up and

I 16 17 continues correctly on there the two enhancement counts

coming out of the Criminal District Court. There's two

I 18 enhancement counts that are okay there. 19 THE COURT: Okay. I 20 MR. THOMAS: Then after that, it would

I 21 then add the langciage found in the motion here which

22 would state, "and on February lOth, 1999." That

I 23 language is going to have to be added at the end of 24 that paragraph right here, Judge (pointing) . This

25 first enhancement will begin with ...

SUMMER TANNER, CSR, RPR 252nd District Court I 6

I I (~ 1 2 THE COURT: That's numbers--

in the Criminal District Court, in Cause No. (reading),

690-

3 the Defendant was convicted of the felony offense of I 4 driving while intoxic:ated"

I 5 MR. THOMAS: Yes, sir.

I - 6 THE COURT: -- "and on February" --

7 MR. THOMAS: Yes, sir. That language

I 8

9 "and on February 10' 1999," that language to the end of

that paragraph.

I 10 Just for the record, that adds a

11 conviction of Guadalupe County and another conviction I 12 out of the Criminal District Court of Jefferson COunty, ~--l) 13 Texas.

14 THE COURT: Okay. I've made those I 15 amendments. Is there any objection to those

16 amendments? I 17 MR. LAINE: No objection, Your Honor.

I 18 THE COURT: Okay.

19 MR. THOMAS: Judge, this is for Court's I 20 file. That's been file marked (tendering).

I 21 22 THE COURT: Motion to Amend (signing). I will go ahead and sign the All right. That's done.

I 23 Okay~ And what is the offer in this case -~

24 Mr. Bellotti, c.ome on up. I (f) 25 (DEFENDANT APPROACHES BENCH)

I I 7

I .-~ 1 MR. THOMAS: It's 6 T.D.C., Your Honor. 2 THE COURT: How many prior DWI convictions

I 3 do you have, sir? 4 THE DEFENDANT: Dating back from, uh -- I

I 5 guess 198 7 is the first one up until the present. 6 THE COURT: How many? I 7 THE DEFENDANT: I think there's 12 or 1 3 .

I 8 THE COURT: 12 or 13? 9 THE DEFENDANT: Ye.s, sir. A lot of them. I 10 I figure I pleaded guilty just to get out of them. 11 THE COURT: Just to get rid of them, huh? I 12 THE DEFENDANT: Yes, sir.

li) 13 THE COURT: You didn't do them. I 14 understand. I 15 THE DEFENDANT: Yes, sir. 16 I 17 THE COURT:

THE DEFENDANT: Are you driving a vehicle?

Not right now, sir.

I 18 THE COURT: When's the last time you had 19 something to drink? I 20 THE DEFENDANT: Sir?

I 21 22 THE COURT: something to drink? When's the last time you had

I 23 THE DEFENDANT: I haven't had anything to 24 drink in quite awhile. lc~ 25 THE COURT: What is "quite awhile"?

I SUMMER TANNER, CSR, RPR 252nd District Court I I 8

I 1 Probably that September .-® 2 21st of 2008. THE DEFENDANT:

3 THE COURT: Any kind of drugs? I 4 THE DEFENDANT: No, sir.

I 5 THE COURT: So, if I tested you, you would

6 be clean on every bit of it? I 7 THE DEFENDANT: Yes, sir.

I 8 9 anyway. THE COURT:

Let's see. Okay. We are going to do that

I want to set this -- the offer's

I 10 6 years, and it's rejected?

11 THE DEFENDANT: Yes. I 12 THE COURT: 11 YeS 11 ? "Y e S 11 ? 'I)·:J;;.~'­ I :i)~'~~: ,. 13 THE DEFENDANT: (Nodding head up and down)

14 MR. LAINE: You have to speak up.

I 15 THE COURT: The offer's rejected?

16 THE DEFENDANT: Yes, sir. I 17 THE COURT: Okay. I'm going to set this

I 18 case for a trial next Wednesday. Y'all will be the

19 No. 1 case. I 20 MR. LAINE: Yes, sir. 21 I THE COORDINATOR:

22 docket on that Wednesday. Judge, we don't have a

I 23 THE COURT: All xight. The Wednesday

24 after that. What's the date? 101) 25 THE COORDINATOR: We're going tb have to

I SUMMER TANNER, CSR, RPR 252nd District Cou·rt

I I 9

I -· ® 1 do it the fbllowing Wednesday. I .

2 THE COURT: That's what I said. What's

3 that date? I 4 THE COORDINATOR: September 16th.

I 5 THE COURT: All right. You will not under

6 any circumstances operate a motor vehicle. Do not I 7 operate a motor vehicle --

I 8 9 THE DEFENDANT:

THE COURT: No,

under any sir. I haven't been.

c~rcumstances. I

I 10 also want to get you hooked Up to an alcohol bracelet

11 between now and the time you go to trial. We are going I 12 to get that done today.

I Cl 13 Let's get somebody over from

14 probation to test him to make sure th~t he hasn't had I 15 any alcohol or drugs. And we will get y'all back down

16 here on September 16th. If you will, have a seat over I 17 there in the jury box. We will get to you here in just

I 18 a minute.

19 MR. LAINE: Thank you, Your Honor. May I I 20 be excused?

I 21 22 THE COURT: You bet..

(PAUSE IN PROCEEDINGS)

I 23 THE COURT: Mr. Bellotti, it looks like

24 you studied hard, and you tested positive for marijuana

·~ 25 and cocaine.

I I 10

I I

I 1 TME DEFENDANT: Yeah. And, Your Honor, 2 I --

•... (j) 3 THE COURT: So, you failed.

4 I 5 THE DEFENDANT: haven't been doing that. -- I'm telling you, I

I 6 THE COURT: It's those Flintstones 7 vitamins? I 8 THE DEFENDANT: I am taking care of my

I 9 10 father; he's 80. she's 79. And I'm taking care of my mother;

1-- 11 THE COURT: I unders~and.

12 THE DEFENDANT: She has Alzheimer's full 13 -- full degree. 14 THE COURT: I understand.

15 THE DEFENDANT: That's all I do is take 16 care of their home.

17 THE COURT: I understand, but -- so, you 1--- 18 got it in some vitamins?

1- 19 THE DEFENDANT: I do take Centrum Silver 20 all the time. 1-- 21 THE COURT: Laced with cocaine? 22 THE DEFENDANT: No. 1 23 THE COURT: Okay.

1-- 24 THE DEFENDANT: Not that I know. 25 THE COURT: Anyway, long story short is, 1-- .j~ SUMMER TANNER, CSR, RPR 252nd District Court 11

1 you are going to jail. You're a danger to our

2 community. I'm going to set your bond at a million

3 dollars. You can go with the bailiff. Have a good

4 day.

I 5 THE DEFENDANT: Set my bond at a million

6 dollars? I 7 THE COURT: Yes, sir. I sure did. I sure

I 8 did. 9 1 rrdllion. You don't get to do cocaine a.nd · --

THE DEFENDANT: I don't do -- I 10 THE 'COURT: and marijuana. ~

• 11 THE DEFENDANT: cocaine. I don't have I 12 an attorney either --

I~ _,

{:~;{~)t~~ 5:..:::;. ~{" 13 THE COURT: I understand that.

14 THE DEFENDANT: -- okay? I 15 THE COURT: I understand that.

16 THE DEFENDANT: I don't have an attorney. I 17 THE COURT: I understand. You have a good

I 18 day. But you do have cocaine in your system.

19 Sir, do you understand everything I 20 that's going on?

I 21 22 MR. BELLOTTI, SR: THE COURT: Yes, sir. I am not trying to give him a

I 23 hard time, but with 13 prior convictions o.f DWI, I gave

24 him an opportunity to come clean, and to stand there

·-GJ 25 and lie to me -- cocaine doesn't creep into your system

I SUMMER TANNER, CSR, RPR 252nd District Court I I 12

I-- -- . 1 and neither does marijuana. Long story short, .he is 1 2 going to jail; that's where he will stay until this

3 case is resolved one way or the other. He will not get I 4 out and have the opportunity to hurt somebody. I

I 5 apologizs about all that, but long story short, he 6 doesn't run this show. We do. I 7 MR, BELLOTTI, SR: I understand.

I 8 9 day. THE COURT:

Thank y'all very much. All right. You have a great

I 10 11 I 12

I 18 19 I 20 21 I 22

I 23 24

·~ 25

I I 13

1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS) COUNTY OF JEFFERSON) 3

4 I, Summer Tanner, Official Certified Shorthand

I 5 Reporter in ahd for the State of Texas, do hereby 6 certify that the above and foregoing contains a true I 7 and correct transcription of all pOrtions of evidence 8 and other proceedings requested in writing by counsel I 9 for the parties to be included in this volume of the 10 Reporter's Record, in the above-styled and numbered 11 cause, all of which occurred in open court or in 1.2 chambers and were reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the I 17 preparation of this Reporter's Record is

I 18 $..a_:_1j___ and was paid by _&'_~_jr:l.irJc.,.Lc_· 19 WITNESS MY OFFICIAL HAND this is the

I 20 ___ _[)_~------ day of __ , 2009. 21 I 22 23 Summer Tanner, RPR Texas CSR #8208 24 Expiration Date: 12/31/10 Official Court Reporter 25 Jefferson County, Texas Beaumont, Texas 77701

SUMMER TANNER, CSR, RPR 252nd District Court I , . I THE STATE OF· TEXAS_ . § IN'THE DISTRICT COURT OF I) § I vs. § § JEFFERSON COUNTY, TExAS ~

CARL MATTHEW BELLOTTI, ill § · [252~ JUDICIAL DISTRICT] I I .I I , I REPORTER'S RECORD I Volume 1 of.4 n

I ***************************** . MASTER INDEX

I . October 13th, 2009 *******•********************* Q

I· • RECEIVED IN ' COURT OF CRIMINAL APPEAlS

I MAR l 1 2015 Abel Acosta, Clerk I I (';

I Philip W. "Phil". Moor~, Amicus Curiae 15623 Fagerquist Ro~d I Del Valle, Texas 78617-5800 Phone: (512) 667-.1508 e~mail: pwml1.07@gmail.com I. I 0

\ \ I I THESTATEOFTEXAS § IN THE DISTRICT COURT OF § I vs. § § JEFFERSON COUNTY, TEXAS

CARL MATTHEW BELLOTTI, III § [252ND JUDICIAL DISTRICT] I I I I I REPORTER'S RECORD I Volume 1 of4 I ***************************** MASTER INDEX

I October 13th, 2009 *****************************

I I I I I Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road I Del Valle, Texas 78617-5800 Phone: (512) 667-1508 e-mail: pwmll.07@gmail.com I I I I -...... .· . I~ 1 REPORTER'S RECORD

2 VOLUME 1 OF 4

3 TRIAL COURT CAUSE NO. 09-07283 I 4 I- 5 THE STATE OF TEXAS * * IN THE 252ND DISTRICT

* 6 vs. * COURT OF I 7 * * CARL MATTHEW BELLOTTI, * I 8 III, A/K/A CARL MATHEW BELLOTTI, IIr, A/K/A 9 CARL MATHEW BELLOTTI, * * * A/K/A CARL MATTH~W I 10 BELOTTI, III, A/K/A CARL MATHEW BELOTTI, III * * * JEFFERSON COUNTY, TEXAS 11 I ~'- \ 12

I 13 14 * * * * * * * * * * * * * * * * * * * * MAS'I'ER INDEX * * * * * * * * * * * * * * * * * * * * I 15 16 On the 13TH day of OCTOBER, 2009, the following I 17 proceedings ca~e.on to be heard in the above-entitled

I 18 and numbered cause before the Honorable Layne Walker, 19 Judge Presiding, held in Beaumont, Jefferson County, I 20 Texas: 21 I 22 Proceedings reported by Machine Shorthand.

23 24 25

SUMMER TANNER, CSR, RPR 2S2nd District Court

I I I .~ I -· \J!!i/J 1 2 A P P E A R A N C E S

I - 3 FOR THE STATE:

4 Mr. Perry Thomas SBOT NO. 19849120 I 5 Assistant District Attorney 1001 Pearl, 3rd Floor 6 Beaumont, Texas 77701 I 7 Mr. Pat Knauth SROT NO. 11585500

I 8 Assistant District Attorney 1001 Pearl, 3rd Floor 9 Beaumont, Texas 77701

I 10 FOR THE DEFENDANT: 11 I 12 Mr. Bryan Laine SBOT NO. 24011488 Attorney at L.aw I 13 1045 Redwood Kountze, Texas 77625 14 I 15 16 I 17

I 21 22

I 23 24 •...@) 25

I I I ····~ 1 VOLUME 2

2 GUILT/ INNOCENCE

I- 3 PAGE

4 Stipulations 5

I 5 Rule Invoked 8

6 Jury Sworn 9 I 7 State Reads Indictment 9 I- 8 Defendant Pleads Not Guilty 11

~--- 9 Defendant Pleads True to Enhancements 12

10 State Testimony Begins 13

11 STATE'S WITNESSES DIRECT CROSS I 12 Aleisa Sanders 13 21

I 13 Sergeant Kevin White 27 46

14 Deputy Robert Phillips 53 60 I 15 State Rests 65

I 16 Motion for Instructed Verdict by Defense 17 Court Denies Motion 67

I 18 Defense Rests 69

19 Reading of the Court's Charge 74 I 20 Closing Arguments by the Defense 81

I 21 Closing Arguments by the State 86 22 Jury Deliberations 91 I 23 In Chambers Hearing 91

2 4 Reporter's Certificate 93 25

SUMMER TANNER, CSR, RPR 252nd District Court I I

1 VOLUME 3

2 GUILT/INNOCENCE

I 3 4 Case Called PAGE

I 5 Jury Question 5

6 Defendant's Motion for Mistrial 6 I 7 Court Grants Motion for Mistrial 7

I 8 Foreman Announces Jury Deadlocked 8

9 Jury Dismissed 9

I 10 Reporter's Certificate 10

I 13 14 I 15

I 16 17

I 21 22 I 23

·-@ 24 25

I 1 VOLUME 4

2 EXHIBITS

3 JURY'S EXHIBITS

4 NO. DESCRIPTION I- 5 1 Jury Question No. 1

6 2 Jury Question No. ·2 ~-- 7 3 Jury Question No. 3

I 8 9 5 4 Jury Question No.

Jury Question No. 4

I ;, 13 14 I 15 16 I 17

I 23 24 25

I I' .. I THESTATEOFTEXAS § IN THE DISTRICT COURT OF § .

-I ' vs. § JEFFERSON COUNTY, TEXAS c

§ CARL MATTHEW BELLOTTI, Ill § [252ND JPDICIAL DISTRICT] I I I I I~ REPORTER'S RECORD I Volume 2 of4

I **************************~** GUlLT I INNOCENCE 0

I October 13th, 2009 ***************************** .. ...

·I . . RECEIVED IN COURT OF CRIMINAL ~PEALs

I flflAR.·i 1 2015 <> .Abel Acosta, Clerk I c

I I. Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist'Road I Dei Valle, Texas 78617-5800 Phone: (512) 667-1508 · e-mail: pwmll:07@gmail.com , I I ,'J I I THE STATE OF TEXAS § IN THE DISTRICT COURT OF § I vs. § § JEFFERSON COUNTY, TEXAS

CARL MATTHEW BELLOTTI, III § [252ND JUDICIAL DISTRICT] I I I I I REPORTER'S RECORD I Volume 2 of4

I ***************************** GUlLT I INNOCENCE

I I I I I Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road I Del Valle, Texas 78617-5800 Phone: (512) 667-1508 e-mail: pwml1.07@gmail.com I I I I 1

1 REPORTER'S RECORD

I 2 VOLUME 2 OF 4

3 .TRIAL COURT CAUSE NO. 09-07283 I 4 THE STATE OF TEXAS IN THE 252ND DISTRICT * 5 I 6 vs. * * * COURT OF * I 7 CARL MATTHEW BELLOTTI, * * 8 III, A/K/A CARL MATHEW * I BELLOTTI, III, A/K/A 9 CARL MATHEW BELLOTTI, A/K/A CARL MATTHEW * * * I 10 BELOTTI, III, A/K/A 11 CARL MATHEW BELOTTI, III * * JEFFERSON COUNTY, TEXAS

I ,·. 12 I ~r_;},· 13 * * * * * * * * * * * * * * * * * * * * GUILT/INNOCENCE 14 * * * * * * * * * * * * * * * * * * * *

I 15 16 On the 13TH day of OCTOBER, 2009, the following

I 17 proceedings came on to be heard i.n the above-entitled

18 I __ 19 and nUmbered cause before the Honorable Layne Walker,

Judge Presiding, held in Beaumont, Jefferson County,

I 20 Texas:

21 I 22 Proceedings reported by Machine Shorthand.

23 24 25 I I I 2

I .. ·rl"'j;;;J) 1 A P P E A R A N C E S

2 I 3 FOR THE STATE:

I 4 Mr. Perry Thomas SBOT NO. 19849120 5 Assistant District Attorney I 6 1001 Pearl, 3rd Floor Beaumont, Texas, 77701

I 7

8 Mr. Pat Knauth SBOT NO. 11585500 Assistant District Attorney 1001 Pearl, 3rd Floor I 9 Beaumont, Texas 7 7 7 01

10 I 11 FOR THE DEFENDANT:

Mr. Bryan Laine

I 12 13 SBOT NO. 24011488 Attorney at Law 1045 Redwood Kountze, Texas 77625 14 15 16 17 18 1- 19 20 1--- 21

1- 22 23 1-- 24 . 1 _\~ 25 I I I 3

1 VOLUME 2

3 PAGE

I 4 Stipulations 5

5 Rule Invoked 8 I 6 Jury Sworn 9

I 7 8 State Reads Indictment

Defendant Pleads Not Guilty 9

I 9 Defendant Pleads True to Enhancements 12

10 State Testimony Begins 13 I 11 STATE'S WITNESSES DIRECT CROSS

I ( . 12 Aleisa Sanders 13 21

C,.. ~A 13 Sergeant Kevin White 27 46 I_~ 53 14 Deputy Robert Phillips 60

I __ 15 State Rests

16 Motion for Instructed Verdict by Defense 65

1-- 17 18 Court Denies Motion

Defense Rests 69

1- 19 Reading of the Court's Charge 74

20 Closing Arguments by the Defense 81 21 Closing Arguments·by the State 86

1- 22 Jury Deliberations 91

23 In Chambers Hearing 91 1- 24 Reporter's Certificate 93

25 I I I 4

I JSP 1 VOLUME 4

2 EXHIBITS I 3 JURY'S EXHIBITS

I 4 NO. DESCRIPTION

5 1 Jury Question No. 1 I 6 2 Jury Question No. 2

8 3

4 Jury Question No.

Jury Question No. 3

I 9 5 Jury Question No. 5

10 I 11

I 12 13 ._~ 14 15 I __ 16

I._ 17 18 1-- 19 20 1--- 21

1- 22 23 1- 24 25 1---iJ I I I 5

I _(~ 1 (OPEN COURT, JURY NOT PRESENT, DEFENDANT PRESENT) I __ -··~- 2 THE BAILIFF: All rise. 252nd

3 District Court's now in session. The Honorable

1 4 Judge Layne Walker presiding.

5 THE COURT: Thank you. Please be seated. I 6 All right. Before we get the jury in -- I dealt with

I 7 the Motion to Compel. We need to clear up on the

8 stipulation before we read the indictment. I 9 And, Mr. Bellotti, I'm going to ask

10 you, sir: Have you had an opportunity to review this I 11 agreement in this stipulation?

I 12 THE DEFENDANT: Yes, sir,

13 THE COURT: Okay. And do you stipulate on I 14 the record that these prior convictions are true and

I 15 16 correct?

THE DEFENDANT: Yes, sir. Now, I've

I 17 got --

I_ 18 19 explanation. THE COURT:

I I don't I don't need an

just want to know if you agree and you

I 20 stipulate that your prior convictions, as they are

21 alleged in the indictment, are true and correct? I._. 22 THE DEFENDANT: Yes, sir.

23 THE COURT: Okay. ·And, Mr. Thomas, do you I 24 agree and stipulate that they'r~ true and correct?

1-~ 25 MR. THOMAS: They are, but there is one I I I 6

• I (~ 1 2 technical change that needs to be made to the document .

It reads (Reading):

3 prior felony -- DWI convictions. Agreement to stipulate to two

I 4 THE COURT: Okay.

5 I 6 MR. THOMAS:

s a y s s m a 1.1 1 e t t e r It should be -- down where it

" b , " it reads , " 0 n Jan u a r y 1 9th ,

I 7 1988." 8 It should read, "January 5th, 1989." I 9 THE COURT: Okay.

I 10 11 MR. THOMAS:

agree i t matches the indictment. With that change, I would

I 12 THE COURT: It would be the same as little .,- 13 ''a"? 1~ ·

_:~.;r-> .

14 MR. THOMAS: Yes. The dates would be the

I 15 same, yes, sir.

16 THE COURT: Mr. Laine, what do you say

I 17 about that?

18 MR. LAINE: I agree, Your Honor. I think I 19 I took the datB of the arrest of the firSt prior

I 20 conviction and not the date of the actual conviction.

21 THE COURT: Okay. So, is there an I 22 agreement to change your agreement to stipulate to two

I_ 23 24 prior DWI convictions where little "b" -- I'm going to

change that to "January 5th, 1989"

1-0 25 M.R. LAINE: Right. I I I 7

I ._. ( 1 THE COURT: Is that the agreement of the --~ I 2 parties?

3 MR. LAINE: Yes. No objections. I 4 MR. THOMAS: Correct.

I 5 THE COURT: Mr. Bellotti, to the agreement

6 as it's been changed, do you stipulate that these two

I 7 prior convictions are true and correct?

8 THE DEFENDANT: Yes, sir; but I 9 THE COURT: Okay. Here's t~e deal -- and

I 10 11 I want to make sure the record's clear-- there is no

"buts." You either agree to this or you disagree with

I 12 it, one of the two. If you disagree with it, he's

13 going to prove them up; and he's going to read this to I~ 14 the jury. So, whatever it is y6u want to do, that's

I 15 fine; but I don't want the record to have any confusion

16 a s to " but s " or "rna y b es " or " i f s . " So , you either

I 17 agree to this as it's submitted or you disagree with

18 it. I 19 THE DEFENDANT: I agree with it.

I 20 THE COURT: Okay. I'm going to make this

21 a part of the record. Anything further bef6re we get I 22 started?

I __ 23 MR. THOMAS: No, sir, Your Honor.

24 THE COURT: All right.

1-\~ 25 MR. THOMAS: Other than the State is going I I I 8

I 1 to invoke the Rule for trial. -CVJJ I 2 THE COURT: Okay. If there's anybody that

3 plans on testifying here I 4 MR. LAINE: ~ossibly Mr. Bellotti.

5 THE COURT: Okay. Then I need him to Btep I 6 out.

I 7 Sir, don't discuss your testimony or

8 anything about this case with anybody; okay? I 9 MR. LAINE: Your Honor, if I may have one

I 10 11 second with Mr.

outside? Bellotti to give him some instructions

I 12 THE COURT: Okay.

13 (PAUSE IN PROCEEDtNGS) I 14 MR. LAINE: Your Honor, if we could

I 15 16 admonish Mr. James Shipley. I believe he will

to be a FOssible -- possible punishment witness. ~tep out

I 17 THE COURT: I have already admonished any

18 witness not to talk to anybody or have any contact with

19 any other witnesses until they testify or thereafter.

20 Anything further before we get

21 .started?

22 MR. THOMAS: No, sir, Your Honor.

23 THE COURT: Ready whenever y'all are, I---- 24 Wayne.

1 -l .J_-_:;;1:1 \~ 25 (JURY ENTERS COURTROOM) I I I 9

1 THE COURT: Good morning to you.

2 THE JURY: (Response)

3 THE COURT: Let the record reflect all

4 members of the jury are present. 5 Ladies and gentlemen, will you raise

6 your right hand for ~e, please.

I 7 (JURY SWORN)

8 THE COURT: Okay. Is the State ready to I 9 proceed?

10 I 11 MR. THOMAS:

THE COURT: State is ready,

Is the Defense ready to Your Honor.

I 12 proceed?

I (~ 13 14 MR. LAINE:

THE COURT: Yesi Your Honor.

Would the defendant stand for

I 15 16 the reading of the i.ndictment.

THE DEFENDANT: (Standing)

I 17 MR. THOMAS: (Reading): In the name and

18 by the authority of the State of Texas, the grand

19 jurors for the County of Jefferson, State aforesaid,

20 duly organized as such at the July Term A.D., 2009, of

21 the Criminal District Court of Jefferson County, in

22 Said State, upon oath in said Court present that

23 Carl Matthew Bellotti, III, A/K/A Carl Mathew Bellotti,

24 III, A/K/A Carl Mathew Bellotti, A/K/A Carl Matthew

1--~ 25 Be 1 ott i , I I I , A I K/ A Car 1 Mathew Be 1 ott i , III, here aft e r I I I 1.0

I -I..JJJJ / 1 styled the Defendant, committed an offense hereafter

I 2 3 styled the primary offense, on or about the 21st day of

September of 2008, and anterior to the presentment of

I 4 this indictment, in the County of Jefferson and

5 State of Texas, did then and there unlawfully ope·rate a I 6 motor vehicle in a public place while the Defendant was

I 7 intoxicated.

8 And the grand jurors aforesaid, upon I 9 their oaths aforesaiq, do further present in and to

10 I 11 said Court, at said term,

presentment of this indictment, and anterior to the

and before the

I 12 tommission of th~ '\. primary offense by the Defendapt, on

January 5th, (~ 1989,) in the County Court at Law No. 2 of I .,----------------------L---~ 14 Jefferson County, in Cause No. 132178, the Defendant

I __ 15 was convicted of the misdemeanor offense of driving and

16 operating a motor vehicle in a public place while I __ 17 intoxicated; and on January 5th, 1989, in the County

18 Court at Law No. 2 of Jefferson County, Texas, in 1-- I - 19 Cause No~3803S., the Defendant was convicted of the

20 misdemeanor offense of driving and operating a motor 21 vehicle in a public place while intoxicated; against

1- 22 the peace and dignity of the State, signed by the

23 foreperson of the Grand Jury. 1--· 24 THE COURT: Mr. Bellotti, to this

25 indictment, sir, do you enter into a plea of guilty or I I I 11

I , _. ___ (?:JI·-;;:c,,< ·ic' --· 1 not guilty?

I 2 THE DEFENDANT: Not guilty.

3 THE COURT: And to the enhancement I 4 provision, sir, do you enter into a plea of true or not

I 5 true? 6 THE DEFENDANT: Not true.

I 7 THE COURT: Okay. Y'all approach the

8 bench, please. I 9 (PRIVATE BENCH CONFERENCE)

I 10 MR. LAINE:

THE COURT: I think he misunderstood.

Do you want to explain it to 11 I 12 him?

I (~ 13 14 (OPEN COURT, MR. LAINE: Yes, sir.

JURY PRESENT, DEFENDANT PRESENT)

I 15 MR. LAINE: Carl, was the --

16 THE COURT: You don't need to I 17 privately.

MR. LAINE: Your Honor, if you will read I 18 19 the indictment one more time.

I 20 THE COURT: I'll ask him. Again, to the 21 indictment, do you enter into a plea of guilty or not I 22 guilty? 23 THE DEFENDANT: Not guilty.

24 THE COURT: To the enhancement provision,

25 do yo_\1 enter ihto a plea of true or not true? .·' I I ~---

~--

T~~e .. 1~Cy 1

2 T_HE. __ DEFENDANT:

THE COURT: Have you pled true because

3 they are, in fact, true? I 4 THE DEFENDANT: Yes, sir.

I 5 THE COURT: Okay. You may be seated.

Is the State ready to proceed? 6 I 7 MR. THOMAS: Yes, sir, Your Honor.

8 THE COURT: Okay. You may. I 9 MR. THOMAS: Your Honor, the State would

I 10 call Aleisa Sanders.

11 (WITNESS ENTERS COURTROOM) I 12 THE COURT: Good morning. Raise your

13 right hand, please. I 14 (WITNESS SWORN)

I 15 THE COURT: Come on up and have a seat,

16 please, and watch your step. I 17 COURT- REPORTER: Spell ybur fitst na~~'

I 18 19 please.

THE WITNESS: A-1-E-I-S-A.

I 20 THE COURT: You may proceed.

21 MR. THOMAS,: Your Bonor, I'm tendering a I 22 copy of her st~ternent to Counsel (tendering) .

I 23 THE COURT: Okay. The record will so

---- 24 reflect.

I ---(6) 25 I I 1··- 13

1 ALEISA SANDERS,

2 having first been duly sworn, testified as follows:

3 DIRECT EXAMINATION

I 4 BY MR. THOMAS:

5 Q. Mrs. Sanders, would you state your full name I 6 for the· ladies and gentlemen.

I 7 A. Aleisa Sanders.

8 Q. And where do you live, Mrs, Sanders? I 9 A. North Vidor.

I 10 Q. Mrs. Sanders, do you have family living here

11 in Jefferson County? I 12 A. Yes, I do.

13 Q. Who is that? I lJ 14 A. My mother.

I 15 Q. Where does she live at?

16 A. On 32nd Street in Groves.

I 17 Q. The City of Groves?

18 A. Yes. I 19 Q. That's here in Jefferson County, Texas?

I 20 A. I -- if you think so. I don't know. I don't

21 know the counties. I'm sorry. I 22 Q. That's okay. But she lives here in Groves?

A. I 23 24 Q. Correct.

Okay. And on -- back oh September 21st,

1--\:.~ 25 2008 -- I I I 14

I 1 A. Uh-huh. J·;i) ,,·:

I 2 Q. -- did you go to your mother's house in

3 Groves? I 4 A. Yes, I did.

Q. I 5 6 A. Why?

To clean her yard from the storm.

I 7 Q. That was from Hurricane Ike?

8 A. Correct. I 9 Q. Okay. And was she home during that time?

I 10 11 A. Q. No.

Where did she go?

I 12 A. She and my stepdad were in Houston at my

13 sister's. ~~ I 14 Q. Okay. So, you went on after the storm you

I 15 had gone to your mother's house to clean up. And did

16 you go there with anybody? I 17 A. Yes, I did.

18 Q. Who was that? I 19 A. My husband and my two grandkids.

I 20 Q. While yo~ were workinq in the yard in the

21 afternoon of September 21st, 2008 -- you were working I 22 in the yard -- anything unusual happen to you?

23 A. I 24 Q. Yes.

What happened?

I ---· 'J \...· ..._,, 25 A. My twp. grandchildren and I were in the front I I I 15

1 yard picking up limbs and. things; and all o£ a sudden,

2 I heard . a . screech -- tires -- turned -.· . . . a.C... t u. a 11.. y .·to;· .. .. . . .. ,my

3 right and SC1_W _a little. rnaroon,·truck hit, a stop' E;igi1~··,' g.q :.,

I 4 in the· ditch~ ... ' . 5 Q. So, a maroon truck hii a stop sign and then I 6 went .into the ditch?

I 7 A. Correct.

8 Q. Okay. Went into the ditch -- did it stop when

I 9 it got down in ths ditch?

10 A. Yes, sir. It had to. It was nose-dived ·int"o· I 11 the -ditch~

I 12 Q. And when that happened, what did you do?

13 A. I hollered at my husband. He come around with I~ i "'" 14 the kids; and I got .. on.my .c~ll,_ phor1e, ca~led 9_::-1-1, and

15 I 16 ran· to Q. :the v.ehicle. to.. see .i:f anyb.ody was. hurt.

Okay. You got to the·v~hicl~~- W~~ there

I 17 somebody inside of it?

18 A. Yes, sir, there was. I 19 Q.· And was it a man br··a woman?

I 20 21 A.

Q. A male·.

What happened when you got to that truck with

1-- 22 the man inside of it?

23 A. Well, I looked around, and I -- he. was. sitti,ng 1- 24 straight up .. So, I was -- I was .afraid the way it hit

25 that. he might· have gone forward and gotten hurt. He I -·-·-· --- ----- ·--·- -·--···· .... - - - - - - - - ----·-·····---··

I I 16

I 1 was sitting straight up and I knocked on the window and (~ I 2 he kind of slowly turned and I was hollering, Are you 3 okay? Are you okay? I 4 And he was real' slow to answer·---

5 MR. LAINE: Your Honor, I'm going to I 6 ob j e c t to n a rr at i v e --

I 7 THE COURT: It's overruled.

8 MR. LAINE: -- and ask to stick to I 9 question and answer.

I 10 11 BY MR. THOMAS: THE COURT: It's overruled.

I -···- 12 Q. You were talking about what -- you knocked on

13 the door, he was slow to answer. I ~ 14 What happened then?

I 15 A. And I was asking him, Are you okay?

-~ 16 Are you· okay? And the window came down. And he didn't

I 17 really understand me but basically was saying I

18 said , Did you hit your head -- I was as king these I 19 questions you. normally ask -- and was saying, though

I 20 wasn't· making a whole lot of sense but talking, wenL to 21 get .. out of.·.his·truck·:'--·· I 22 MR. LAINE: Again, Your Honor, I'm going

23 to ask for a running objection to the narrative. I 24 THE COURT: You can have the running .···-- ..

I --ld 25 objection. It's overruled at this point. 252nd District Court I ----·····---· -----------·----·- ··-··-- - - - ·---- ----

I I 17

I . . (:gJ 1 MR. LAINE: Thank you .

I 2 BY MR. THOMAS:

3 Q. What ··happened· when he got ou.t -of- t-he truck?

I 4 A. He had to -lean on. his. tru:ck'.to,-get. out of the

5 t:ruck: I 6 Q. Why?

I 7 A. I -- and

8 MR. LAINE: Objection. That would call I 9 for speculation.

10 I 11 BY MR. THOMAS: THE COURT: It's overruled.

I 12 Q. Whi~did he have to-lean-on.the truck?

13 A. I felt he was -- I ~ .·.'(:._~;·"-

14 MR. LAINE: Your Honor, again, I'm going

I 15 to object. It calls for speculation.

16 THE COURT: And it's overruled.

I 17 A. He· couldn't. stand up. And. when I. got clo.::;e

18 enough, I-was·still ask~ng him .if he was okayj looking I 19 to go. see if there was any blood- or anything like that·;"

I ----- 20 BY MR. THOMAS:

21 Q. Did you see any blood? I_ 22 A. No. No.

23 Q. When you asked him if he hit his head, what 1- 24 did he answ.er you?

I --v 25 A. He kind of didn't quite understand-me,. He' I I 18

I I ,:;~ 1 kind of shook hi~·head but didn't quite understand. ~--- \~Slf;)' 2 Q. In looking- at ·him, did you- see that he was

3 hurt

5 Q. I 6 So,

leaning on the truck? you got up closer to him while he was

I 7 A. Uh-huh.

8 Q. What happened then? I 9 A. Well, like I say, cQntinued to ask him

I 10 questions. Are you hurt? Is there anyone I can call? . 11 I called 9-1-1. They were on their way.

I 12 And he starte_d •' - say,ing,_. ·.· '. Don't -ca_ll the :: ... ·:·.

13 pol~~e .. Do-n} t ·call- th,e: P:Olice; I 14 I said, Wel_l~ we needed to c~11, you

I 15 know. We've called them. You' need help; Is there

16 anyone else I c~n c~il?

I 17 But he· -would jus·t say, No, and just don't

18 call the- police. I 19 But he didn't speak the way we!re

I 20 speaking. It was slurry and~- I don't~ know the

21 correct word to- use;. but kind of disoriented, you; know.

I 22 Likej I knew something was wrong. When- I- smelled tl1_.e

I 23 alcohol, 24 Q. I

Okay. figured- that ·he- was· in-:---- intoxicated.

So, at some point in time talking to

25 him, you could smell alcohol on him? I I I 19

I 1 A. Yes . • -GrJ 2 Q. You start putting two and two together and

3 realize this guy's been drinking--

I 4 MR. LAINE: Your Honor, I object. That's

5 leading. I 6 THE COURT: That's sustained. Rephrase

I 7 it.

8 BY MR. THOMAS:

I 9 Q. Did you put two and two together and come to

10 some conclusion about why he was in the state he was I 11 in?

I 12 A. Well, my .. observations that I made of his

13 actions, the wa.y he was speaking, yes,.·· I - - . I .th-i-nk he I(~ 14 was-intoxicated.

He didn't want you to call the police? I 15 16 Q. A. Okay.

No.

I 17 Q. W.hile ·.you were waiting for- the police to get

18 there, what did he do? I_ 19 A. Staggered trying to stagger out in th~

I __ 20 street.. trying_ to stop people,- . Pul.l me' out. Pull me

21 out.> ·>-Pull .·me: ·•out ;-

1- 22 He couldn't· really sta.nd, '·but •..

23 Q. Did anybody·· stop to help- him? 1-~ 24 A. No. No.

1--fJ 25 Q. Did :the· police eventually get there? I I I 20

I .-.. 1 A. Oh, yes. I {z:J 2 Q. the person-- the person that's sittin~rig~t

3 there (pointing) on the far side of that table, is-·that

I 4 the ~an that 0as behind the wheel of that car?

5 A. Ye s , ·s i r , it i s . I 6 MR. THOMAS: Your Honor, I'd ask the

I 7 record reflect she's identified the defendant in this

8 case. I 9 THE COURT: The record will so reflect.

10 BY MR. THOMAS: I 11 Q. And is that the man -- the man you have

I .. ---....... 12 identified here today, is that the man the police came

13 and took charge of whan they got to the scane? I 14 A. Yes, sir.

I 15 16 Q. What ·was his· reaction when.· the .police pulled

up to the scene? .

I __ 17 A. He kind~ of. put his haad down and shook and

18 I_ 19 said;

Q. There· they are.

He

1. _ 20 A:. He wasn.' t happy.

21 Q. Okay. All right. I guess what I'm looking

22 for he was sad to see them there?

23 A. Correct. 1- 24 Q. Thank you, Mrs. Sanders.

1---~.JJ 25 MR. THOMA.S: I pass the witness. I I I· 21

1 THE COURT: Mr. Laine?

2 CROSS-EXAMINATION

3 BY MR. LAINE: I 4 Q. Mrs. Sanders, when the officer arrived, did he

5 arrive on his own; or was there another vehicle with I 6 him or

I 7 A. There were two.

8 Q. There were two officers? ... I • 0 ·~·· •• -, .-.

9 A. Correct.

I 10 11 Q. A. Two Groves police officers?

The

I ..... - .. 12 Q. Cars?

13 A. Yes. I 14 Q. Okay. Anyone else?

I 15 A. No.

16 Q. Okay. ·So, there was another officer involved.

I 17 Did both of those officers get out at the same time to

18 assist the accident? I 19 A. I don't know if they both got out at the exact

I 20 same time. 21 Q. Well, I guess they -- did they arrive at the I 22 same time? 23 A. I really -- I don't know. I really don't. It 24 wasn't far between each other, no.

25 Q. Oh, okay. Okay. And yo~ stated that your I I 22

1 husband-was- with you.

2 I.s he here today?

3 A. No.

4 Q. HoW long did you stay out, I guess, viewing

5 what was going on? Did you stay·until the officers I 6 drove off?.

I 7 A. Yes.···And they pulled.his truck. out._- Yes, we

8 watched.- I 9 Q. Okay. And you.stated ear~ier that he hit a

I 10 stop. si9n _and then went into the ditch;

11 __ co.r.rect? is that

I 12 A. Well, actually he had to go in the ditch

13 first. The stop sign is, like, in the ditch. So, the I 14 roads are small, s·o-you~d- h'ave:to _·go.in.the dit<::::h..·- to

I 15

16 hit· th_e sfop sign.

Q. Okay. So, he. didn.' t _- h,it the stop sigr1- first.

17 He went into the .di t.ch _-and then _:,. and then .ran .. over.. a

I_ 18 19 stop.sign;.·: correct?

A. You do it at the same time.

1. . 20 Q. Okay.

21 A. I mean, it's right there on the co~-~er; and

22 you have to hit one when you hit the other.

23 Q. Okay. 1--- 24 A. So, you don't travel any distance. It's

1_\ ._ . . ,J --.._j;/ 25 there. I I I 23

I .. .---.....

1 Q. Okay. About how,long afte~_he went into the .-(:$/ 2 ditch. did you approach his. vehicle?

3 A. Immediately. As soon as I

I 4 Q. Immediately?

I 5 6 A. Q. Sure. Yeah.

Was i t you that called 9-1-1 or your husband?

I 7 A. Myself.

8 Q. It was yourself? I 9 A. Uh-huh.

I 10 11 Q. in.j:urie s? And you stated when you· approached,. you saw, no

I 12 A. Not·· that t·s·aw that -.;;.tas visible, no. ;,

1,~ 13 Q. You, didh'·t:>no·ti-ce' that :the .·win.d"shie·ld ,was I \:·,; \ ....&..,.,.- >v<~'

14 cracKed,or·· anything. like.·that?

I 15 16 A. about, No:,.,, i·t: was· .h:ot·, • · • .That·' s what I

that he m:j.:gh.t·:have hit his·. head; was . wor._ried

out .the

I 17 windshield. was n,ot cracked ..

18 Q. You stated that it was your assumption after I 19 speaking with him, because· his. speech was slurred, that

I 20 he was intoxicated; is that correct? 21 A. Not jus.t. be.c;:ause. of the .. slurred speech, no.

I 22 Q. Okay.

I 23 24 A •.

my·opinion, But it was my 6bservation that -- I

he w~s intoxicated -- thought --

I _j_d 25 Q. Okay. _________ _ 1- . .:..;. _ __,

I I 24

I /- - -. 1 A. -- by his actions, his speech. .-01'§;9 2 Q. Did you assist him out of the car?·

I 4 Q. Did you help him get out of the car in any

5 way? I 6 A. No .. -

I 7 Q. Eventually he did get out of the car?

8 A. Yes; . hanging onto.. the. doop and the side of the I 9 truck- and things like that. But,. no, I did not touch

I 10 11 hi_m.

Q. No.

So, was the ditch deep. enough for you to not

I --· 12 ba.c k ou-t.>'of it? · It had to· have· a wrecker?

13 A. Co.rrect .· ~- I 14 Q. When you -- when the officers got there, did

I 15 16 you talk with the officers?

A. Yes.

I 17 Q. Do you remember who you talked with?

18 A. Gentlemen, uh-huh. I 19 Q. Who was that?

I 20 A. Uh, I don't know their names. One of them is

21 White, I believe. I 22 Q. Okay. Sergeant White?

23 A. I thin.k so. 1-.-- 24 Q. Okay. And at that time, did-you give a

1-(<~ 25 statement to Sergeant Whit.e? "7"···-~------· · - - - - ·· - - - - - · - - - - - - - --~----··--·-·-------------~----:--·.---:-- ··. - - - - - - -· _,; ____,_:..._.. ...:..._______ _:..._. _ _ _ _ _ _ _ _ _ _ _ ,. . __ -··-·--·- .....

I I 25

I 1 A. Yes. JJd) I 2 MR. LAINE: May I approach, Your Honor?

3 THE COURT: Yes, sir.

I 4 BY MR. LAINE:

5 Q. I.f you would, please·. r~view: th.is,. to yourself I 6 qui tely ·(tendering) .

I 7 A. (Reading) .

8 Uh-huh (tendering). I 9 Q. Thank you, Mrs. Sanders.

I 10 11 day? Is that t.he ·statement· that you gave that

I 12 A. Correct. Uh-htih.

13 Q. Okay. And within your statementi did you say I 14 anything about him staggering in the road or anything

I 15 like that?

16 A. I did, yes.

I 17 Q. Let me ask you again

18 A. Verbally. I 19 Q. You didn't write that in your statement;

I __ 20 correct?

21 A. No, ·r·didn't;·

1-- 22 Q. Did you· s~y anything in your statement about

23 him smelling of alcohol -- 1-- 24 A. No.

25 Q. -- that you just read? --···--·--------·---·--·.- ._,·--·--- ---·----·--·-------------·-··-----····--··-------······-···--·-··- ·----·--·--·---- ------ - --·-·--

I I I 26

I /-- 1 A. No, I did not .. f(~ 2 Q. Did you say anything in your statemeht about

3 him_h~ttihq·a stop sign that you just read?

I 4 A. No.

5 Q. About .him. s:taggering• and tryTng to:stop-:cars I 6 in- that -:;·.··. .. s.tateme·nt:?

I 7 A. NO.~··

8 Q. Thank you, Mrs. Sanders.

I 9 MR . LAINE : I pass the witness .

10 THE COURT: Mr. Thomas? I 11 MR. THOMAS: I have no further questions

I 12 of this witness, Your Honor.

13 THE COURT: Ma'am, you may step down. I 14 MR. THOMAS: Your Honor, can she be

I 15 16 excused?

THE COURT: Any objection?

I 17 MR. LAINE: (Pausing)

18 THE COURT: No, she cannot. Call your I __ 19 next witness.

I __ 20 You can step down. 21 MR. LAINE: Thank you.

I ~- 22 THE COURT: Call your next witness.

23 MR. THOMAS: Call Sergeant Kevin White. 1-- ···--- 24 THE COURT: Kevin White?

1--

1 I 27

I -\'Jf!J , . 1 (WITNESS ENTERS COURT!)OOM}

I 2 THE COURT: Good morning, sir. Will you

3 raise your right hand for me.

I 4 (WITNESS SWORN}

5 THE COURT: Come on up and have a seat, I 6 please, sir.

I 7 You may proceed.

8 MR. THOMAS: Thank you, Your Honor. I am I 9 tendering a copy of his offense report (t~ndering).

I 10 11 THE COURT: The record will so reflect.

KEVIN' R .. WHITE,-.

12 hav~ng first been duly sworn, testified as follows:

13 DIRECT EXAMINATION

14 BY MR. THOMAS:

I __ 15 Q. Will you state your full name for the ladies

16 and gentlemen of the jury, please?

1- 17 A. Yes. It's Kevin R. White.

18 Q. What do you do for a living, sir? 1-- 19 A. I'm a Sergeant with the Groves Police

1-- 20 Department. 21 Q. How long have you been employed with the 1-- 22 Groves Police Department?

23 A. Five years. Since 2003. 1--- 24 Q. Prior to working for Groves, did you have any

25 prior law enforcement experience? I ------------------------

I I 28

I -·- __ l:::J 1 A. Yes.

I 2 Q. Who with?

3 A. Beaumont Police for several years, Houston

I 4 Police. I was with the State Police in Vermont, a

5 couple other agencies, Altogether, about 30 years. I 6 Q. Okay. Back on September 21s·t~ 2'008, .-.last

I 7 ye9--r, ·whaf>h·ad·. just occurred· in·soutl:leas-t 'rexas back ·.,,,·on

8 September 21st? I 9 A. Hurricane Ike·.

I 10 11 Q. And September 21st, was that -- was that the

day that the Evacuation Order was lifted for

I 12 Jefferson County? (, .1 13 A. Yes,· it was. I ~

14 Q. Did you re·c:eive· ·a caTr of· a -,_ of a wrec'~'- that

I __ 15 had occurred in the City of Groves?

16 A. Yes. I __ 17 Q. Where was that wreck located at?

18 A. The 5200 block of 32nd Street. 1--- 19 Q. City of Groves, is that here in

1-- 20 Jefferson County, Texas?

21 A. Yes, it is.

1-- 22 Q. When you got to that location, what did you

23 observe? 1--- 24 A. There was a maroon Ford Ranger pickup truck. in

25 the ·ditch on the westbound. side. In other words, on I I I 29

I·-~);P. 1

2 the north side of 32nd Street, ·. ~ .

at the intersection with a street called Kleepsies. facing westbound right

3 And standing outside the truck was a gentleman. I 4 Q. That person you said standing outside the

I 5 truck, do you see him in the courtroom today? 6 A. Yes, I do.

I 7 Q. Point to him and describe for us what he's

8 wearing. I 9 A. This gentlemart to the right with the ~- kind

I 10 of the tannish-colored suit jacket (pointing). 11 MR. THOMAS: I ask that the record reflect I 12 he's identified the defendant.

13 THE COURT: The record will so indicate. I 14 BY MR. THOMAS:

I 15 Q. When' you got' there· and saw that man, what, did

16 you do first? I 17 A. .I approached him.

I 1.8 19 Q. A. And what happened?

Well, I asked him if he was the driver of the

I_ 2 0 truck. I was just as king general quest ions like what

21 had happened and so forth. I __ 22 Q. What did he respond to you?

1. . 23 A. He· really didn't respond.

24 Q. Ho~ was he acting~

1.-J,~ 25 A. He seemed confused. I could almost -- L~LnO UlS~rlC~ ~our~

I - - - - - - - - - - - - - · - · · - - - - · ......... ···---- ------····------ - - -

I I 30

I r· _j~ 1 immediately as I got close to him, I detected an odor

I 2 of. alcoh.ol. When he d.id try to· talk, his speech was

3 ve-ry< garbled·. · And ab()ut the:- only· 'question· that~. he I 4 really ·answered was whe·n I asked him if· he knew where

He said-he was· in POrt N~~he~. I 5 he. was-"· 6 Q. In fact, you were in Groves?

I 7 A. Yes.

8 Q. Other than saying he .. was .in,Port Neches, cquld I 9 yo.u .get any other. information. really ou.t of him?

The condition of his speech, how was it?

I .. --,_ 12 A. It was gC).rbled or slurred.

I 0!!d 13 Q. Did he appear to be hurt in any way from the

14 wreck?

I 15 A. Not that I saw.

16 Q. What did you do with him at that time?

I 17 A. Well, based on what I was observing,. I began

18 to suspect that.he was intoxicated. I started to move I 19 out into a into a flatter area on the street to do

I 20 what. we would norrna.lly do, field ~ebriety tests;<_but.I

21 noticed ·that h·e ·_was ha vihg, e·x.treme·· difTiculty wa·l·k:ihg I 22 or even standing up without falling down .. And· almost

I_ 23 immediately I was holding on to him.

24 Q. You had to hold him up?

1-u 25 A. Yes, si.r. 1·-- 31

1·-· 1 Q. Did you try to -- 1·--(ZIJ 2 THE COURT: Excuse me just

1·- 3 Mr. Laine, approach the bench, please. 4 (PRIVATE BENCH CONFERENC ~-- ,.//.

5 THE COURT: You need to tell Mr. ·Bel-lotti

6 that·-.if T-hear "bullshit 11 come out of his . . ..mouth . .. . . . one. · ..-·

7 mo1:e· tirtte~ . .-he 1 s: going to hear the remainder·'o;f_ this.·

8 trial· f:r:om'.::t:he hqldi·ng .cel.l.:_ That 1 s the .,second. time I

9 have _hear.cJ. ,him:speak-loud enoug.h ..f.or -me.:.t·o hear.and,

10 po.tent::t.ally, ._·.the ·jury. I want you to admonish him

~-- 11 that will be the only time he will be admonished. If

12 he wants to voluntarily absence himself from the

1-r\~A \{~ 13 proceeding, tell him to open his mouth again.

14 MR. LAINE: Okay. I 15 (OPEN COURT, JURY PRESENT, DEFENDANT PRESENT)

I 16 17 a £aver, THE COURT: Just one

take the jury in the jury room real briefly. mo~ent. Wayhe, do me

I 18 I will get you right back out.

19 THE BAILIFF: Ladies and. gentlemen. I 20 (JURY EXITS COURTROOM)

I 21 THE COURT: Let the record reflect the

22 jury is not present. Mr. Bellotti is pr~sent, along

23 with his attorney. I want the record to reflect I am

24 taking a break.

25 I will admonish you one time. During

SUMMER TANt>l"ER, CSR, RPR 252nd District Court I I I I 32

I 1 the brief time that we have been here -- less than .-\JJ) 2 30 minutes -- I've h·e,ard 'you speak now twice. The last

3 comment you made was the term "bullshi t." I will tell I 4 you one time and one time only: If you want to sit in

I 5

6 here during your trial,

I encourage you to do so. you are more than welcome to.

It's in yout best interest

I 7 to remain in the courtroom. If T he.a,r you· spea·k-:'one

8 more .time, ,you, will be• removed .. from the courtroom. I 9 Your outbursts, if I can hear them~ the jury can hear

I 10 them. So, if you can sit there and keep your mouth

11 shut, then you're more than welcome to stay in this I 12 courtroom. If you apeak again where I can hear it,

I~ 13 then I'm going to put you in the holding cell; and 14 that's where you will spend the rest of the trial. Do

I 15 you have any questions abdut that?

16 THE DEFENDANT: No, I don't. I 17 THE COURT: Okay. Ready for the jury --

18 the jury is still not present. I 19 know there I want both sides to

you mentioned·a name of James Shipley,

I 20 Mr. Laine? 21 MR. LAINE: Yes, s lr.

I 22 THE COURT: There was a. James·shipley that

I 23 tr·ied to come back and talk to me this morning a):)_qut

24 this case, and I want the record to .reflect tha~ he

I -- -~-~

I <-

/ 1 Ma~k. Stiles, and I don't know who else, and wanted to I __(..;';.';<:;;il -~J 2 come back and talk to me about the case.

3 But I want .. the· record. to be ·clear: I

I 4 did . not communicate ·with Mr .. Shipley~ I. do not know

5 Mr. ,.Sf1iple.y, · and there was no communication between the I 6 Court and your potential witness. I did not know ~t

I 7 the time -that· he was -calling· back. th~at. h.e, was- a

8 potentia'l ·.witness~ · l3·ut he· was, not. allowed. to- come. back I 9 simply. because-- I· was· coming in· the courtroom;-· ·But

I 10 11 there· wa-s-:n·o· contact: between-me·'and thei-r. witness;

okay?: ·I -just wa'ht:'to· make' s-ure everybody· kriows that.

I 12 Ready when you are.

13 THE BAILIFF: We had another one take a I 14 break.

I 15 THE COURT: It may have been a good time

16 for a break. Do you want to ask them if they need a

I 17 few minutes to where they can all -- if they need it,

18 great. If not, we will go.forward. But i~ there's I 19 more, I will let everybody take a break.

I __ 20 (PAUSE IN PROCEEDINGS) 21 THE BAILIFF: As soon as that one's

22 finished, they are comihg back in.

I __ 23 (JURY ENTERS COURTROOM)

24 THE COURT: Let the i~cord reflect all

I (J·.'· - - ..---:~.-- ............ 25 members of the . jury are present, The defendant is I I I 34

I 1 present, along with his attorney. ._(~ 2 Mr. Thomas, you may proceed.

3 MR. THOMAS: Thank you, Your Honor.

5 Q. I 6 Sergeant White,

you were going to try to perform some field sobriety I think we left at -- off at

I 7 tests.

8 And, again, what was the defendant's I 9 condition when you ·though.t: about ,trying to give him a

I 10 11 field sobriety test?

A. It was pretty· ~pp~rent t() me>tha:t he.:was

I 12 intoxicated:-:-::-: 1-?-?,.ghly; • • • -· ~ • • • • '·' •• • • • • •• • 2 •.•.• - • •• • ·.: • • ~ntoxic;at~d,- • • • ••• -~ • •• ·.~: •• • •• and_ :- • '': ,r . jus,;t::~fel:t li~e

13 I '""-. L'Ne .made I -.:···· .... ', ...

14 se;ve·.ra;L.o_f- tne~e :arrest::>:•. < T ''v_e: ,:seen, ·people_ fall down

I 15 dur:ii1g> the~-~·: f,ie.ld; sobr·iety fe·s-fs-- .,..-~ · _-. _,_--

16 MR. LAINE: Your Honor, I'm going to

I 17 object to the narrative --

18 THE COURT: Overruled. I- 19 MR. LAINE: -- and nonresponsiveness.

I __ 20 THE COURT: Overruled.

21 A. Jus~_ b_ased,, on_ ey~Fyth,_ing:. I wa-s·, s~eing, I; felt I_ 22 like~the best course-of action then was to get him in

23 custody~-_

1--- 24 BY MR. THOMAS:

1--~,<~ 25 Q. So; you d:idn 1 t- -- didn 1 t perform any field I I I 35

I 1 sobriety tests on him? .-~ 2 A. That's correct.

3 Q. And your bE;! lief was. had ,you tried to p.erform I 4 those tests, that he actually would .have fallen. down

I 5 6 ins.tead of being able to

MR. LAINE: Objection. That's leading,

I 7 Your Honor.

8 THE COURT: It's overrule<:!. I 9 A. Yes. Again, I've performed these tests

I 10 11 several times. It was ap'pare:i:it· he' wasn't goi.ng .to_. be

able to perform them; .and· to do so would have "been

I 12 further, .endahgerirrg. him·.: ·It would have endangered me.

y 13 I'm not going to sit out there and tell some- I .

14 somebody -- at that time, I was by myself.

I 15 BY MR. THOMAS:

16 Q. Okay. Eventualij;·anoth~i offi6~t ctid·~bme to I 17 asS'ist ·you?·

18 A. Yes,, .a-fter I placed him ·in· handcuff-s. I 19 Q. Now, at some point -- about the time you were

I- 20 going to place him in handcuffs, did h.is: nature or ·his

21 behavior"beg·i·n to:·change ·a little·· bit. to caus.e' you I.__ 22 concern?

23 A. 1-- 24 Initially he was fairly indifferent to

everything that was going on; but as· my contact went

1--·(_J 25 further with him, I was starting to pick up on some -·-------- -------------. -~------------ . --~k ·----··-····.

I I I 36

I 1 sig~s that he was possibly going to get aggressive, .-(:::J 2 which .. is anoth.er rea:son why I fe·l t I ne·edeq to· get _,him

3 in-nandcuffs. He was a rather large man, and it would I 4 have been a pretty good fight.

I 5 6 Q. Is that .. another Bign of intoxica,tion,

happy _one minute, ready to fight the .next?. this

I 7 MR. LAINE: Your Honor, again, that calls

8 for speculation. I 9 THE COURT: It's overruled.

I 10 11 A. Yes. It's very common.

being happy-go-lucky, indifferent, People will go from

to wanting to fight

I 12 and back and forth the whole time you are with them.

13 BY MR. THOMAS: I~ 14 Q. You sta.rted to. begin to fear tha.t he was about

I 15 to maybe start becoming aggressive? 16 A. Yes.

I 17 Q. You put him into custody -- or put handcuffs

18 on him? I 19 A. Yes, I did.

I 20 Q. And what did you do with him then? 21 A. Well, I began to walk him back towards my I 22 unit; but then the other officer arrived on scene. And

I 23 I knew that I was going to have some other work to do 24 out there, so I put him in the 6ther Officer's-unit and

1-~ 25 .told him to take him back to the porice station. I I I 37

I (~;;;;) 1 Q. Did that officer take him back to the stat.ion?

I 2 A. Yes, he did.

3 Q. Did he take him to the Groves police station?

I 4 A. Yes, he did.

5 Q. Now, in .the·. .days after Hurricane Ike, w.hat was I 6 th~·condit~on of·th~ p6lide Station and· law enforcement

I 7 gene :tally-, in the days after the hurricane?

8 A. We were dealing with art ~metgency situ~tion;

I 9 and like- everypl·ace else~ we had.·darriage. We had damage

I 10 11 at the police station, had damage at the jail here in

Jeffe-rson. County.---·. So, we weren't necessarily operating

I 12 under our'ri6~mal ways of doing ~hings. We were having

(~ 13 to basically "fly by· night." I ··:_~;_.t,

14 Q. Okay. More of a routine when you have a

I 15 person that you've taken into. cus_tod_y for driving while 16 intoxicated, would you take them to the Mid-County I 17 jail?

18 A. Yes. I 19 Q. At the Mid-County jail, there's -- they. have

I 20 the video carn~ras, they t~ve a~ Intoxilyzer to -- for a

21 DWI suspect to blow into to ~e~~tite-their blood I_ 22 a 1 coho 1 -- or breath a l coho 1 .

I_ 23 24 the County Jail? At .that time what was the condition of

25 A. The County J~il had been evacuated due to I I ~--- 38

1 1 damage and Hurricane Ike. All the prisDners were being

--~ 2 brought to the old jail here in Beaumont.

3 Q. So,· yo.u. coulci.n' t take> him t·o where you I 4 n6rmalL~·take dti~ing-whil~~intoxlcaf~d suspects? •·s correct. I 5 6 A. Q. That

So, you took him to the Groves Police

I 7 Department?

8 A. That's correct. I 9 Q. And there; with the condition of· t.he

I 10 Groves· ~alice Department, were you able to

11 any video camera or -- operating, ·anything at that wa~ there

I 12 time?

13 10:ui 14 A. Q. The-re's no- Breathalyzer rnachirie at the

I 15 County Jail -- I mean at· the Groves· Police· .Department;

16 is there? I 17 A. No, thete isn't.

18 Q. Okay. When you get him back to the I 19 Groves Police Department, what was his conditiDn when

I 20 you got ~- when you get back there and he's there, 21 what's his condition?

I-- 22 A. Well, we have what we call a patrol room,

1 23 which has a bench where we usually sit our prisoners.

24 When !~Walked in, he was sitting on the bench.

25 Q. And what condition was he in then? I I I 39

I / 1 A. When I first got in there, he appeared .-\:eJ 2 MR. LAINE: Your Honor --

3 A. to be sieeping. I 4 MR. LAINE: Your Honor, if I can, I object

I 5 to the relevance of these particular questions. 6 THE COURT: It's overruled,

I 7 BY MR. THOMAS:

8 Q. When you first walked in, he was what? I 9 A. He: appeared to be sleeping.

I 10 Q. About what time of the afternoon was the

11 first -- when you got the call initially?

I 12 A. It was ri~ht ~ro~nd 5:22 p.m.

13 Q. I~ When you get to the Groves Police Department,

14 he appeared to be sleeping on the bench; is that

I 15 correct?

16 A. That's correct. I 17 Q. What happened then?

18 A. I Well, I began the paperwork that's involved in

19 a DWI arrest; and it includes a series of questions I 20 that we ask, read him his Miranda warningB and 21 request·ing. t'o subml t a. speciiri"en·, :which~. 'in. this I 22 p~rticular case, I was asking for blood becaus~ I knew

I __ 23 .the hospital was open. 24 Q. Okay. You couldn't get a Breathalyzer test;

1-~ 25 but yo~ ·thou~ht~ Maybe I could ask him for blood? I I I 40

I 1 A. That's correct. I-\J7 ( . .4

2 Q. What's the purpose of taking a blood test?

3 A. To -- we get a sample of blood, and it's I 4 sub.mi tted to the crime lab for examination and

5 determine if there's alcohol content and/or any drugs. I 6 Q .• Did you think, based on your experience.' that .····!

I 7 drugs···might- also be a factor?-

8 MR. LAINE: Yotir Honor~ I'm going to I 9 object to the speculation of this question.

I 10 11 A. Yes, THE COURT:

I did. It's overruled.

I 12 BY MR. THOMAS:

I~ 13 Q. So, you asked him for a blood sample.

14 What did he tell you about giving a blood

I 15 sample?

16 A. He refused to give a specimen.

I 17 Q. And like you said, the blood sample would

18 have -- could have been analyzed to determine alcohol I 19 and/or drug contents; is that right?

I __ 20 A. That's correct.

21 Q. But he didn't want to give you that? I_ 22 A. That's correct.

I -- 23 24 Q. Did yo a t·ry to perform any of the field

sobriety tests back at the Groves Police Department?

1--(~~ 25 A. No. I I I 41

I 1 Q. Did you think it was actually more .-~ 2 endangering him more to try to do those tests --

3 MR. LAINE: Your Honor -- Your Honor, I 4 again, I'm going to object to the speculation and

I 5 6 leading the witness with his question.

THE COURT: Overruled.

I 7 A. The patrol room's not set up for that. It's a

8 very small room. It's got desks. It's got computers. I 9 Again, ~·ve seen people fall in our patrol room; and I

I 10 just -- you don't want to take a chance they're going It's -'- 11 to fall downr strike their head on something.

I 12 and to be quite honest with you, I

I t~ 13 14 MR. LAINE:

object to the narrative of his testimony. Your Honor, I'm going to

I 15 THE COURT: It's overruled.

16 A. I generally was -- if I've got somebody in I 17 c~stody an~~handcuf£s are on them, the hand~affs don't

18 come off until they go to jail. I 19 BY MR. THOMAS:

I 20 Q. Arid while you're still at the Groves. Police

21 Department, is th~ odcir of ~lcohol stil~ present on his I 22 person?

I 23

24 A.

Q. Yes.

Go back out to the scene where the wreck I _ _\J 25 occurred. You did an inventory of the. truck that he I I I 42

I __ (_jj;} 1 was driving; is that right?

I 2 A. That's correct.

3 Q. And inside:.. the.truck you. found no evidence

I 4 of -- there was no bottl~s or anything !ike that, was

5,.there? I 6 A. No, .there w~sn't anything.

I 7 Q. Now back to the Groves Police De~artment

8 station. Was there -- back to the confusion of the I 9 days after the hurricane, did you -.,.. some question in

I 10 your mind, Whatare 11 we've got ,·him? }'le going to. d-o with· him .now that

What .. do we do. with him? Where:do we

I 12 ta.ke him?

I I~ 13 A. 14 Q. Did you finally determine where they were

I 15 taking prisoners?

16 A. At that time, we were st~ll bringing them he~e

I 17 to Beaumont.

18 Q. And that's not normally where the County Jail I 19 houses their prisoners; is that right?

I 20 A. That's correct. 21 Q. That was where they had to make do after the I_ 22 storm?

I_ 23 A. Right.

24 Q. This street that you described in Groves where

1.-..,~j, 25 he wrecked from, is that a public street? I I I 43

1 A. Yes, it is.

2 Q. Public place?

3 A. Yes, it is. I 4 Q. And was there some work being done on the

5 street? I 6 A. Yes, there was.

I 7 Q. What was going on on the street?

8 MR. LAINE: Your Honor, again, I object to I 9 the relevance of the question.

I 10 11 A. THE COURT:

Thera~were.utility. It's overruled.

crews out-there do~ng storm

I 12 debri-s.· .......- cl-eanup·" The_ 5200 block of 32nd 'St'ree-t is

I~ 13 almost Twin City Highway where the H-E-B store is, and

14 they were probably in the 5100 block. So, they were

I 15 just west of where he had gone off in the ditch.

Q. Was he'driving·in a direction toward whe·re 16 I 17 those workers were?

18 A. Yes. He· was driving westbound towards I __ 19 T w·i n city Highway .

1. . 20 Q. Did it appear, based on your experience as a 21 p o 1 ice officer --

22 MR. LAINE: Your Honor, I'm going to

23 object to any speculative questions that he's asking

24 the witness.

25 THE COURT: It's overruled. ...... -- ...---------..--------------------------------------~---·--'---~---'-,----

I I I 44

I f_>:c-~:-1 1 BY MR. THOMAS: --\~

I 2 Q. Bas:ed on· your experience, did i t appear he --

3 the 8efendarit was .d-rivin.g a-long, ·looks up and realizes, I 4 oh, there's. these workers in the road, and drives off

5 into -- I 6 MR. LAINE: Your Honor, if I may have a

I 7 running objection to these questions. They're highly

8 speculative. I 9 THE COURT: It's overruled.

I 10 A. That.' s ·the conclusion .I reached.

11 cr.e.w- had. the enti.r.e. west. lane blocked.· The -work

They had

I .-- .... 12 tr.affic: cones .an.d tr.ucks with lights- going~. ·• They: even

I~ 13 had a;_Llagil\an ~oqt. there·-. So,. -they: were bas-ically dqi;ng

14 what we calL a "default" ~·-back in :t-he- mil-ita-ry, ~whe:re

I_ 15 .yoli'.r~--- using ,one •. lane for··both directions.

16 BY MR. THOMAS: 1. . 17 Q. And in the days after Ike, that -- that was

18 going on all over Southeast Texas, wasn't it? 1-- 19 A. Very much so.

1. . 20 Q. For most of us, that would have not been a 21 surprise to drive along a power line crew or I~ 22 tree-trimming road crew, would it?

23 A. 1- 24 No, it wouldn't

MR. LAINE: Your Honor, I object to

25 relevance. I I I 45

I ( 1 THE COURT: He's already answered it. --~lil I . 2 BY MR . THOMAS :

3 Q. Sergean~ White, based. on your training and I 4 experience and your years in law enforcement, on

I 5 September 2ls.t, 2008, was that man

6 your opinion, was he intnxicated? (pointing) in

I 7 MR ... LAit-JE: Again, I object to that,

8 Your Honor. .· TI:ere' s no s~-- he's not I 9 . == ::;z: - qualified to answer that, and calls for speculation.

I 10 THE COURT: It's .overruled.

11 BY MR. THOMAS:

I .~··-~ .. 12 Q. Was he intoxicated? ( 13 A. Yes, he was. I '-J:d 14 Q. Did he have any business being behind a wheel

I 15 of a vehicle? 16 A. No, he didn't. I 17 Q. Your investigation of this man, did it reveal

18 him to be Carl Matthew Bellotti, III? I 19 A. Yes, it did.

I 20 Q. The Ford Ranger truck, is that a motor

21 vehicle? I 22 A. Yes, it is.

I 23 24 Your Honor . MR. THOMAS: I pass the witness,

.... - .. I '' --'~ 25 THE COURT: Mr. Laine? I I I 46

I 1 MR. LAINE: Thank you, Your Honor. •...(z!iJ 2 CROSS-EXAMINATION

3 BY MR. LAINE: I 4 Q. Sergeant White, was there any -- ever any t~me

I 5 t.hat you called an E.M.S. or anything of that nature 6 out? I 7 A. No, I didn't.

8 Q. You stated earlier that you were possibly I 9 goinq. to get blood because you wanted to take him to

I 10 the hospital; is that correct? 11 A. That~s correct. I 12 Q. How many offi~ers arrived on the scene? Do

I~~ 13 you remember? 14 A. Just ·myself and De~uty Phillips.

I 15 Q. You· stated earlier that' you attempted· to do

16 field··.sobriety tests with Mr. Bellotti;· is that I 17 correct?

I 18 19 A. I considered-doing them:

out to arr area where it would have been level ground to I began to walk him

I 20 do them. 21 Q. Okay. I 22 MR. LAINE: Your Honor, may I approach the

I 23 witness? 24 THE COURT: Yes, sir.

1--<~ 25 I I ~----

I !' 1 BY MR. LAINE: I \:g 2 Q. If you could, read that. silently to ·yciurself

3 to- ·refresh your memory -(tendering) . I 4 A. Which part?

I 5 6 Q. A. Just refresh your memory.

I will read the whole thing.

I 7 Q. Okay.

8 A. (Reading) I 9 Okay (tendering)

I 10 11 Q. Thank you, sir.

Sergeant, you testified earlier that it

I 12 wasn't long after you got there that Mr. .;· ·.. '.;·: ··~ . . .. ..., >': Bellotti was I 13 hang::i~g,_on -you, o-r,. y9u. were having to-. hold him up. I ~ 14 Is .. that:. what ypu test:ified. :to',?,_._.

I 15 A. I didn't say he was hanging onto me. I~had

16 hold of him with my left hand walking hi~-out--onto the

I 17 leve~ portion of the roadway.

18 Q. Is· that what you put in your statement? Did I 19 you put that in your statement?

I 20 A. It may not. be all ih there worded th~~ way. 21 Q. That would be a "yes" or "no." Did ·you'put I 22 that in your statement?

I 23 24 A.

Q. No.·

At what point di<;i you turn on your video or

I _j:J 25 the detective _:_ or Offi.cer Phillips turn on the.ir I I ~-- 48

I ..J~J;;J 1 video?

I 2 A. My····vehicie 'didt{'' t have. a- video· system.

3 Q. Did hi~ haVe a· video system? I 4 A. I honestly don't know.

I 5 Q. Is -- have you done DWI ·' s where you '.ve· used a

6 video? I 7 A. Yes.

8 Q. Whileat the Groves P"olice Department? I 9 A.

I 10 Q. But it's your testimony that you had no video

11 this.,day;·is that·correct? I 12 A. Tha-t's correct.

I :0!11 13 14 Q. A. Or that Officer Phillips had any video? I-- I dortit''kri:ow . the unit he·was· driving·, if

I 15 his . .v.l,deo system was working or 'not; · ·our v·ideo· systems

16 at that··time were getting outdated and· ~ere br~~-kihg

I 17 down. ,. Spme cars th·ey were s-till working; some units

I 18 19 they weren't.

Q. Okay. You also testified that you -- that you

I 20 took him back to the station, and you gave him no 21 I_ 22 Breath~lyter;

A. correct?

That's correct.

I 23 Q. Breathalyzers aren't portable?

24 A. No. I __~ ·:·-.,.\ '-~ 25 Q. No? I I I 49

I 1 A. The only place in Jefferson County that~s got I -.0:;;1. 2 a Br~athalyz~i is at the County Jail -- Mid-County

3 Jail. I 4 ·• · Q. You don't have portable Breathalyzers that you

5 use on the side of the road? I 6 A. No.

I 7 Q. You stated when you got back to the jail, he

8 was asleep? I 9 A. No. I said when he got back when I got

I 10 11 back to the Groves Police Department,

the bench and appeared to be sleeping. he w~s seated on

I 12 Q. Okay.

I v~ 13 14 A. Q. He:was slumped over. Okay. And that's when you·· decided· to do a

I 15 blood test; correct?

16 A. That's when-- as part ·of the normal

I 17 processing -- I ieque.sted a specimen of his blo.od.

Q. Why woUld yo~ consider a blood test after all I __ 18 19 you've testified to the jury that you saw out there on

I 20 the street? 21 A. Because it's stand~rd to ask for a breath I 22 and/or a blood test. Generally I'm going to ask for a

if~ drug~ I 23 blood test believe there's also

24 because it's not going to show up on a breath test. involved,

1-::.~ 25 Q. You in~entoried the dai; correct? I I I 50

I .- - A. lr~ 1 That's cortect.

2 Q. You stated·. that >there was no evidence :of --

3 yo.u. -found no ··i·riven·tory in the di.r of alcohol; .corr.ec.t? I 4 A. That's correct.

I 5 6 Q. A. What:abo~t

Nothing. druqs?

I 7 Q. And that you then later took him from the --

8 Port Neches to I guess i t ' s GEO -- over here, the I 9 downtown jail?

I 10 A. He. was .. taken from 'the Gr·oves Police· Department

11 and . boo ked into the· downtown' jail.

I :12' · Q. Okay. Was· he :as ked for. a_ Breat:.haly;z;er there? ... I(~ 13 A. No~ ·But he wouldn ~ t 'have. been 'able to.

14 Ther.e's ·no Breathalyzers at this .jai·l anymore·,)

I 15 Q. Did you- ask. for any type- of, video or, a.nything

16 of. that -- of him at that time?

I 17 A. There's no-- I'm not aware that there would

I __ 18 19 be any video.

Q. Did you -- There's no DWI process-. at this}--

I_ 20 A. -- jail. 21 Q. I'm sorry, Sergeant. I_ 22 Did you drop him off? Did you transport

24 him?

A. No. I had one of the officers do it.·

1--\,:J 25 Q. Okay. So, you woul~n't know what they did at . .-:· .. · --------·-- ---- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · --

I I I 51

I ~ 1 the j ai 1; correct? I J"'?fi 2 A. Not specifically, but the paperwork was done.

3 All they were doing was transporting. I 4 Q. But wasn't the entire County Jail basically

I 5 6 transported to the downtown jail; correct?

your testimony? Wasn't that

I 7 A. The prisoners were transported down here.

8 When we would get dowrt here, we were having to do I 9 paperwork that we wguld normally do by computer by hand

I 10 because they didn't have it set ~P here for that.

11 Q. I understand.

I ----... _ 12 But~you didn.'t -- you didn't transport r. ,i!JdJ 13 him down; correct? I 14 A. No. r· really- don I t transport.. L~ ID- a

I 15 supervisor.

16 Q. And you didn't ttansport him from the street I 17 to the Groves Police Department, did you?

I_ 18 19 A.

Q. No. - Deputy -:PhilTips did->:

How lon~ after Deputy ~- how long was it from

I __ 20 the time Deputy Phillips left the street till the time

21 Deputy Phillips got to the station --_I mean, until you 1-- 22 got to the station? I'm sorry.

23 A. 20 at the most, 30 minutes. I had to wait for 1-- 24 the wrecker.

25 Q. Mr. Thomas went into a lot about what you saw ··-··-----------

I I I 52

I 1 or what you did at the station.

I 2 3 that he wa& Did you write any. of that

~leeping i~

pr appeared to be sleepipg? your_ report, -,- -.. . -~--·

I 4 A. No, I didn't put that in the report.

5 Q. Did yqu take. any pictures or photos or I 6 anything of that nature?

I 7 A. No, I .did not.

8 Q. You talked' about aggression ··and him· going from I 9 angry .to happy; or based on your experience, that often

10 happens. I 11 Did you • put that in· your report?

I 12 A. · · No ~ I did not .

13 MR. LAINE: No further questions. I 14 THE COURT: Mr. Thomas?

I 15 16 Your Honor. MR. THOMAS: No further questions,

I_ 17 THE COURT: Sir, you mai step down.

18 Call your next witness.

19 MR. THOMAS: Call Deputy Robert Phillips,

I 20 Your Honor. 21 (WITNESS ENTERS COURTROOM)

1- 22 THE COURT: Good morning, sir.

23 THE WITNESS: Good morning. I 24 THE COURT: Will you raise your right hand

I '·:J· --·· ·....:·. .. --~:.' :-;· 25 for me, please. I I I 53

I 1 (WITNESS SWORN) (?§J I 2 THE COURT: Come on up and have a seat,

3 please. I 4 You may proceed.

5 I 6 Your Honor, MR. THOMAS: Thank you, Your Honor.

I have tendered a copy of his report to

I 7 Counsel.

8 ROBERT' ANTHONY PHILLIPS~ I 9 having first been duly sworn, testified as follows:

I 10 11 BY MR THOMAS: DIRECT EXAMINATION

I 12 Q. Could you state your name for the ladies and

13 I '0...PJ{.::·~--~·~ito, ':.-."':...,~ gentlemen of the jury.

14 A. My name is Robert Anthony Phillips.

I 15 Q. What do you do for a living?

16 A. I'm employed by the City of Groves as a police

I 17 officer.

18 Q. I_ How long have you been employed with the

19 City of Groves?

I - ·- 20 A. Since F~bruary of '08,

21 Q. What are your job duties with the City of I 22 Groves?

23 A. I do patrol, I field calls for service,

24 investigate motor vehicle accidents, do citations, work

25 traffic, just basic stuff. I I I 54

I .Ju 1 Q. Back on Septe~ber 2l~t, 2008, were you working

I 2 that day?

3 A. Yes, sir. I 4 Q. Did you·get a call to gp out and,assist

5 Sergeant White? I 6 A. Yes, sir. He.called for me over the radio to

I 7 come assist him ..

8 Q. Why did he need your assistance? I 9 A. To. transport his prisoner~·

I 10 11 Q. A. Okay. Where was he at?

He was at the 5200 block of 32nd. It

I 12 intersects with Kleespies. ty 13 Q. And that was in the City of Groves? I 14 A. Yes, sir.

I 15 Q. Here in Jefferson County, Texas?

16 A. Yes, sir.

I 17 Q. When you got there, did Sergeant White tell

18 you about where his prisoner was at? I. 19 A. Yes, sir.·

1. . 20 Q. Where was he at? 21 A. He was over next to his car already in

1--·- 22 custody.

23 Q. So, what did you do? 1-- 24 A. I theh went over to his car~ I talked to him

I '<. ::.::/ 25 to see -- because I wasn't sure what he had, because . ·---.. ·------------~------.··------------·--····---,·-·····--·· .. ·-·-· _ ______ .. , -· .. ·------------·-·---·-·-·--------··'··-- ..·-··-··-.

I I I 55

II

--~~ 1 the very beginning of our shift, I was just coming on.

I 2 And he was early, so that's why he got there first. I

3 was ·. j us t, .-.as king . . --- - .· him what was going on . · .. •.. .. He then I 4 request:ed for rhe to take the prisoner

MR. LAINE: I 5

6 object to the hearsay with Officer White -- Your Honor, I'm going to

I 7 Sergeant White.

8 . THE COURT: Rephrase it . I 9 BY MR. THOMAS:

I 10 11 Q. was working? Did Sergeant White tell you what he -- what he

I 12 A. Yes

I (~ ~ •:;-: 13 MR. LAINE: Your Honor, that would be

14 requesting for hearsay.

I 15 THE COURT: He's already answered it.

16 BY MR. THOMAS:

I __ 17 Q. Abd did you see a vehicle in the ditch?

18 A. I __ 19 Q. Yes, sir.

Did you see a person in custody?

I .. 20 A. Yes, sir. 21 Q. The man seated right here (·pointing), is that 1-. 22 the man that was in custody?

23 1-- 24 A. Yes, sir.

MR. THOMAS: Your Honor, I ask that the

1-'J 25 record reflect he's identified the defendant. ~-------- -~------·-··---··-····- -----·------··--·- - - - - · - - - - - - - ------·---·---.

I I 56

I 1 THE COURT: The record will so indicate. -lJJ I 2 BY MR. THOMAS:

3 Q. Did you appro.ach th9t man. at the request of

I 4 Sergeant White?

5 A. Yes, sir. I 6 Q. When you;got up to him, describe for us what

I 7 you.observed about him.

8 A. He was leaning again~t Sergeant White's patrol I 9 unit. I then hel~ed him back to-my patrol unit to put ..

I 10 11 him Into my car. I had to physically. support him --

MR. LAINE: Your Honor, I'm going to

I 12 object. The question -- the answsr is nonresponsive.

13 THE COURT: It's overruled. I 14 BY MR. THOMAS:

I __ 15 Q. You•sai.d you had to support. him?

1. - 17 Q. Describe for us what· you-mean by that.

18 A. I attempted to let him·walkon his own, but I 1- 19 felt it would·. be· dangerous for him because we were

1-- 20 close to a ditch and I didn't- want him to fall and 21 injure ... himself while he's in custody. So, I helped to I~ 22 support him because he was wobbling. I didn't want him

23 to get hurt or me be responsible if he fell down while 1- 24 he was in custody.

25 Q. He was wobbling while he was walking? -------------- I ---------- --------------

I ~---

1 I _r0!J 1

2 A. Q. Yes_, sir. He was unsteady on his feet.

How did you have to -- how did you have to

3 hold him up? Describe for the jury how you were having I 4 to support him.

I 5 A. I used my arm, and when he -- cuffed like

6 this (indicating). I put my arm under his arm like

I 7 this (indicating), and put (indicating) --on the back

8 of his shoulder so -- to support his whole body to I 9 where he couldn't grab my gun, to where I could

I 10 maneuver him to which way I needed him to go and me not 11 being able to fall and me having to support him. I 12 Q. Did younot"ice anything about his breath?

13 A. I c·ould--smell a.' stro'ng· odor of an alcoholic I (.'c-o:G:J \~

14 beve:rage· coming fr·a·m:· his breath and person because,

I 15 like r ·said~ I'm right' next to him. We were very close

16 when I was walking him to my vehicle. I 17 Q. You've arrested people that are intoxicated

I 18 19 before,

A. haven't you?

Yes, sir.

I 20 Q. Was he intoxicated? 21 A. Yes, sir I ___ 22 MR. LAINE: Objection, Your Honor. That

I __ 23 calls for speculation --

24 THE COURT: It's overruled ..

25 MR. LAINE: --he's not qualified to 1------------------ --- --- . -·---·---·-·--·- -~ . ·- - - -·- ·- - ·- - - - - - · · - - - - · · · · - - - - · .... ·-··· -

I I 58

I . .(JEP 1 answer that. I . 2 THE COURT: It's overruled.

3 BY MR. THOMAS: I 4 Q. Was he intoxicated?

5 A. I 6 Q. Yes,

So, sir.

you support him back to the -~ your patrol

I 7 car?

8 A. Yes, si.r:-. I 9 Q. How was it getting him into the car?

I 10 11 A. Due to his size and.his level of intoxication,

it was a little difficult getting him into the car

I 12 because, for one, the car is not made for somebody of

I [.

,_JiV 13 his stature; and it was difficult 'getting in the car

14 because somebody that is intoxicated --

I 15 MR. LAINE: Your Honor, I'm going to

16 object to the narrative. I __ 17 THE COURT: It's overruled.

I __ 18 A. unsteady on his feet,

19 manipulate to get somebody in there. it's kind of hard to

I had to assist

1-- 20 him by helping him sit down and then get his legs in

21 the car. 1--- 22 BY MR. THOMAS:

23 1-- 24 A. Q. You had to put his legs in the car?

1 .Jy 25 Q. And did he say or do anything on the way to 1-c----------··· -- -·-- --- ···---~-·----------····------ ---- -·--····-- ---------

1 59

1 the Groves Police Department?

2 A. He was slur~ing his words. I wasn't really

3 sure.wbat . . .. - he, .-:·.was-saying. . I . ·,· -

4 Q. He was trying to talk, but you couldn't

I 5 understand what he was saying? 6 A. Yes, sir.

I 7 Q. When you get him hack to the Grove.s police

8 station, how was it getting him out of the car? I 9 A. Same way it was putting him in. I had to-

I 10 ass.isf ·him to. get. out o.f. the vehicle, Again, I had··to

11 suppo-rt- him ·an'd- walk him up to the back of the station I 12 to· open·the.door and assist him until we got inside

I C;i!i 13 MR. LAINE: Your Honor, again, that's a

14 narrative. Just --

16 MR. LAINE: -- question and answer. I 17 THE COURT: It's overruled.

A. I 18 19 assist him inside until he was sitting

where we set our prisoners on the bench in our of£ice.

I 20 BY MR. THOMAS:

21 Q. The whole way you .had to assist him in I 22 walking?

I 23 A. Yes, sir, because I felt it would be a danger

I didn't want him to fall and hurt 24 if I did not.

1-i~ 25 himself. ~---". ----------------- --------":"-. .- · - - . -----.-. ···-··· -· ··-----' ·-'··- -- .,. _____ __ --- ·-·--- -·---·-----------·-- -------·. -- --··-· -· -· ; ~-

I I 60

1 Q. Pr~tty bad shape?

2 A. In my opinion, yes, sir.

3 MR. THOMAS: I pass the witness,

4 Your Honor. 5 THE Mr. I 6 COURT~

CROSS-EXAMINATION Lain~?

I 7 BY MR. LAINE:

8 Q. Officer. Phillips, did you· have a . video in your I 9-· car?··

I 10 11 A. Q. No, sir.

Yours wasn't working, or you just didn't have

I 12 one? 13 A. M~~P?Iticular.unit wasn't equipped and the I 14 rest of.. pur pa.t.ro.Lu.nits. -- the.equiprnent._was run .down

I 15 becaus.e it was out...,of-date _and a lot. of it was. broke.n . . ~-~-- . ~ .. :. '. ·; ~ ·. :- :· '-

16 Q. So; every ~- every car within the Gro~es

I_ 17 Police Department didn't have· an active. video; is that

I __ 18 19 what you're saying?

A. Not a work·ing video, yes-, sir.

1-.- 20 Q. Because they were old and run down?·· 21 A. (Nodding head up and down} 1- 22 MR. LAINE: Your Honor, may I approach?

23 THE COURT: Yes, sir. 1-- 24 BY MR. LAINE: 25 Q. I ' l l just have you read -- R'f'IB~GF refresh quietly I 61

I I ---lJ:sJ 1 your statement {tendering).

2 A. (Tendering) ~--- 3 Q. Thank you.

4 Officer, what -- what time did yau -- or I- 5 what point did you write this statement?

~--- 6 A. When did I write that statement?

7 Q. Yes, sir.

I 8 A. I do not recall when -- when I wrote that

9 particular report. Is that what you are asking? I 10 Q. Yes, sir.

11 A. I don't recall. I 12 Q. Do you recall giving it to the D.A. 's Office? i·:-.,.,~,,j I \;g 13 A. Me, personally, I did not give it to the

14 D.A. 's Office. I'm sure someone from my office did. I 15 Q. So, you don't recall write -- when you wrote

16 this statement; correct? I 17 A. No, sir.

I 18 Q. Was there ~ date on this statement that you

19 saw just now? I 20 A. Excuse me? The date on the top of the

I 21 statement?

22 Q. No. The date on -- when you wrote the

I 23 statement. 24 A. I'm sorry. Could you ~- I don't understand 25 .the question.

SUMMER TANNER, CSR, RPR 252nd District Court I I I I 62

I _(:;;;) .--·-.

1 Q. Do you remember seeing a date or time that you

I 2 wrote this statement? 3 A. Yeah. There's a date. at: the top·; yes, sir. I 4 Q. Thatis the date of the' arrest; right?

I 5 6 A. Q. Yes, sir.

Did you write this shortly: afterwards· or -- I 7 A. I don't recall if I wrote it -- it depends on

8 the call load if I wrote it that day; or I could I 9 have wrote it if I worked midnights, which I do. I

I 10 could have wrote i t the day after that in the a.m.; but 11 like I said, I don't recall wheh I wrote it -- or typed

I 12 it, I would say.

I ~f!J 13 Q. Okay. Do you recall when it was sent to the

14 District Attorney's Office?

I 15 A. No, sir.

16 MR. LAINE: Your Honor, may I approach? I -- 17 THE COURT: Yes, sir.

I_ 18 19 BY MR.

Q. LAINE:

You see that date (pointing)?

1-. 20 A. Uh-huh. 21 Q. Okay. Would it be £air to say it was faxed 1--- 22 August 27th

23 MR. THOMAS: Your Honor -- 1---- .--·-~. 24 BY MR. LAINE:

1--IJ ' ···.'·" 25 Q. -- of 2009 -- I I I 63

I .-(~ 1 MR. THOMAS: -- I'm going to object

2 THE COURT: Hang on. Hang on.

3 MR. THOMAS: I'm going to object to I 4 something that's testified to that's not in evidence.

I 5 6 BY MR. LAINE: T.HE COURT: That's sustained.

I 7 Q. Aft·er. refreshing your memory;, do .you .remember

8 what time- it was when it was faxe.d.or .what -date? I 9 MR. THOMAS: Your Honor, again, I'm going

I 10 to object to statements not in evidence

11 THE COURT: Susta~ned.

I 12 MR. THOMAS: -- calls --

I Q;s} 13 MR. LAINE; Your Honor, was that '·'":fd - "!'''~-'!'?' ~,~: ... <

14 sustained?

I 15 THE COURT: It was.

16 BY MR. LAINE: I ___ 17 Q. Was· it·sent in August?

18 MR. THOMAS: Your Honor, again, I'm going I---- 19 to obj e.ct. He's still try~ng to get around the same

1-- 20 question. 21 THE COURT: He can testify as to his I._ 22 personal knowledge.

23 A. Sir, I did not fax the report to the 1--- 24 D.A.'s Office or have knowledge

1-\:;;J 25 I I ...

I 64

I ...(!if) 1 BY MR. LAINE:

I 2 Q. My question was: Was it in August of 2009?

3 A. I did not fax it. I have no idea when it was I 4 faxed.

I 5 6 Q. Did·you ~rite in:your statement about how you

helped him ·into· the car and. put his legs in the c::ar and

I 7 alL.that? Did you·put that in your statement?

8 A. No, s~ir, that wa:,s no.t iri my statement. I 9 Q. You stated earl~er that you have done several

I 10 DWI stops or arrests; is that correct?

11 A. No, sir, I did not state that.

I 12 Q. Have you done several? (',

I,~ 13 A~ Yes, sir.

14 Q. And what is your policy? Do you give a

1. . 15 Breathalyzer?

16 A. I'm not certified to give Breathalyzers I_ 17 personally.

1. . 18 19 Q. A. Okay. Do other officers give Breathalyzers?

For my DWI's?

1- 20 Q. For their DWI's. 21 A. It just depends on if I belie.ve it's drug 1-·- 22 related or alcohol related if I ask for either a

23 Breathalyzer or a blood sample. 1---- 24 Q. Okay. And if-you believe thBy're intoxicated,

25 do you -- do you haVe an officer give a Breathalyzer or I I I 65

I ( ..,.,:;:3 1 you ~---,~ 2 A. If the --

3 Q. take them -- I'm sorry. Go ahead. I 4 A. If I request for breath, do I give it is what

I 5 6 you ' r e as king me ?

Q. Or you reques·t .. it- be' given, s ..ince· you are not

I 7 certified?

8 A. We 11 , yes , . sir • I 9 MR. LAINE: No further questiohs.

I 10 11 THE COURT:

MR. THOMAS: Mr. ~homas?

I have n6 further questions

I 12 of this witne~s, Your .Honor.

13 THE COURT: Sir, you may step down. I 14 Call your next witness.

I 15 MR. THOMAS: Your Honor, at this time the

16 State of Texas would rest. I __ 17 THE COURT: Okay. Ladies and gentlemen,

I_ . 18 let's take our morning break . 19 break. We will start back We will take a 20-minute

let's just make it

I __ 20 10:30 even. We will start back at 10:30. On the

21 break, please remember the instructions I gave you. 1-- 22 Don't talk amongst yourselves or with anybody else

1·- 23 about this case. 24 If you need anything on the break,

just let us know; and we will help you out, if we can.

1---\J 25 We will start back at 10:30, and we will see you at I I I 66

1 that time. You are free to go.

2 (JURY EXITS COURTROOM)

3 THE COURT: Okay. The jury's not present.

4 I don't kno0 how much you have, but do y'all have your

I 5 proposed charges? Do you have it with you?

6 MR. LAINE: No, sir.

I 7 THE COURT: Okay. On the break, call your

staff and have them send it over to me so I can get I 8

9 I want to get the charge done. As soon as y'all

I 10 finish, we can go into argument.

11 MR. LAINE: Your Honor, I just need a I .······-. 12 quick motion .

I 13 14 I get back. THE COURT: I will deal with it as soon as

I 15 (RECESS FROM 10:06 A.M. TO 10:35 A.M.)

16 THE BAILIFF: All rise. I 17 (OPEN COURT, JURY NOT PRESENT, DEFENDANT PRESENT)

I 18 19 THE COURT: Thank you. Please be seated.

Mr. Laine, you had something you

I 20 wanted to say before I left -~ where•s Bryan?

21 (MR. LAINE ENTERS COURTROOM) I __ 22 THE BAILIFF: There he is.

I_ 23 THE COURT: Let the record reflect the

24 jury is not present, the defendant is, with his

25 attorney. I I ---

I 67

I / . J___ -~ 1 You had something you wanted to say

I 2 before I took a break, Mr. Laine?

3 MR. LAINE: Yes, sir, Your Honor. I was I 4 going to ask -- I know that the State has a chance to

I 5 rebuttal, so I don't know if it's premature or not

6 an election. If the Court will allow me, I ju~t spoke I 7 to we were ~oing td put on one witness.· We may

9 rest. If we rest, I was going to ~sk the State

an. election-. for the_ jury· c[large .. and also .a.sk. for- an. ~o make

I 10 instructed. verdict. So, that's .where 1-'-m at right now ...

11 THE COURT: I _thinkit's.premature at this I 12 point. . ·. . . ··~

I ;~ 13 14 MR. LAINE:

THE COURT: Okay.

So --

I 15 MR. LAINE: Can I have just a moment,

16 Your Honor, because we may rest? I 17 THE COURT: You can have like 10 seconds.

I 18 I'm almost 5 minutes past what time I told them to be

19 back. I 20 MR. LAINE: Then I would like to go ahead 21 I 22 and make the Motion for Instructed Verdict right now,

if the State has rested.

I_ 23 THE COURT: Go ahead. You can do it from

24 your table. That's fine.

25 MR. LAINE: Your Honor, now comes I I I 68

I 1 Carl Bellotti. We move for an instructed verdict in .-(JJ 2 that the State has not prov~n each and every element of

3 the offense beyond a reasonable doubt. Basically, the I 4 State indicted Mr. Bellotti with driving -- (Reading);

I 5 Unlawfully operating a motor vehicle in a public place 6 while the defendant was intoxicated.

I 7 The State has not proven beyond a

8 reasonable doubt, nor do they supply any probable cause I 9 for the arrest of Mr. Bellotti. It was not proven that

I 10 Mr. Bellotti was, per se, intoxicated -- that being

11 with a Breathalyzer or some type of blood analysis. It I 12 was also not proven that Mr. Bellotti was given any

I~ 13 field sobriety tests. In that particular matter, he

14 was not even challenged as his -- to field sobriety

I 15 tests. We heard. the officer state that they assumed

16 that. he was intoxicated. They gave him nothing that 1. . 17 wou~d·e~en relate to a field sobriety test.

I 18

19 Also, second, that the combination of

substances has not been proven. No blood was taken; no

I __ 20 alcohoT·--·test was given. And because no sobriety test

21 I_ 22 was given, the only evidence that they've offered to

this Court amounts to reasonable suspicion. Nothing

1--· 23 amounts to probable cause, and certainly no evidence

.. - .. 24 amounts to beyond a reasonable doubt . 1-~J 25 So, therefore, we would ask the I I 69 I I ,, ~{!::?.. > 1 Court, based on that, to ~rant an instructed verdict.

2 THE COURT: Okay. It's denied.~ I 3 Tony, we are ready.

(JURY ENTERS COURTROOM) I 4 5 THE COURT: Let the record reflect all

I 6 members of the jury are present. The defendant is

7 present, along with his attorney. I 8 Mr. Laine, you may proceed.

I 9 MR. LAINE: Your Honor, at this time the

10 Defense would rest. I 11 THE COURT: Okay. Ladies and gentlemen,

12 the Defense has rested. What I'm going to do, at this I ~~- .. . _-;,.a• :'2! 13 point I've got to prepare a charge. I will read that ~"-

I 14 charge to you. That will be the document that you take

15 back there that c.ontains all of the law th~t's

I 16 necessary to enable you to reach a verdict. What I~ll do is this: We are going I 17 18 to try -- and I hate to keep you waiting around, but we

I_ 19 are going to try 2 0 minutes. We will try to start back

20 at 11:00. I think that we can reasonably do that. As I ·- 21 soon as we come back, I ' l l read the charge. I'm going

1- 22 23 to give the attorneys 10 minutes a side to argue th.e

case to you. At that point, I'm going to turn you

I 24 loose to the jury room; and you can begin your 25 deliberations. If you will give us -- now it I I I 69

I \~ 1 Court, based on that, to ~rant an instructed verdict. II f

2 THE COURT: Okay. It's denied.

3 Tony, we are ready. I 4 (JURY ENTERS COURTROOM)

I 5 THE COURT:

6 members of the jury are present. Let the record refle~t

The defendant is ~11

I 7 present, along with his attorney~

8 Mr. Laine, you may proceed. I 9 MR. LAINE: Your Honor, at this time the

I 10 Defense would rest.

11 THE COURT: Okay. Ladies and gentlemen,

I 12 the Defense has rested. What I'm going to do, at this

~ 13 point I've got to prepare a charge. I will read that I 14 charge to you . That will be the document that you take

i,l I 15 back there that_ contains all of the law that's

16 necessary to enable you to reach a verdict. I 17 What I'll do is this: We are going

I __ 18 19 to try -- and I hate to keep you waiting around, but we

are going to try 2 0 minutes. We will try to start back

I __ 20 at 11:00. I think that we can reasonably do that. As

21 soon as we come back, I'll read the 9harge. I'm going 1-- 22 to give the attorneys 10 minutes a side to argue the

1-- 23

24 case to you. At that point, I'm going to turn you

loose to the jury room; and you can begin your

25 deliberations. If you will give us -~ now it I I I 70

I ~--_·

.{JfJ) 1 will be right at 21 minutes. Meet back out front at

I 2 11:00 o'clock, and we will try to have everything ready

3 to argue to you at that time; okay? I 4 Remember the instructions I gave you.

I 5 Don't start 6 done. de~iberating now. Wait until everything's

And we will get you back in here at 11:00. You

I 7 are free to go.

8 (JURY EXITS COURTROOM) I 9 THE COURT: Let the record reflect the

I 10 jury is not present.

11 And I want to make. sure that we get I 12 it pn· the re.cord. that _ -- Mr .. Bello.tti, you' understand

I c~ 13 you, had a right. to testify;.· qnd. you gave -up ... that right . ,• ; ·-, ..

14 t 0\ test it Y? I 15 THE DEFENDANT: Yes·, Your. Honor.

16 THE COURT: Mr. Laine explained a~l that I__ 17 to you?

I_ _ 18 THE DEFENDANT: Yes, sir.

19 THE COURT: And do you have any questions ,I __ . 20 of me about the right that you gave up? I 21 THE DEFENDANT: No, sir. 1- 22 THE COURT: Okay. I need -- do you have

24 your proposed charge?

MR. LAINE: Your Honor, I looked at one

25 an old one .that the State had; and I'm in agreem~nt I I I 71

I ___(_>x,/1 I -'0J]V 1 with it.

THE COURT: Okay. Do you have a propo~ed 2

3 charge? I 4 MR. LAINE: No, I don't have a proposed

I 5 charge.

6 THE COURT: Okay. You understand that the

I 7 Discovery Order says that you're to have that --

I 8 9 provide it to me? MR. LAINE: No, sir.

I 10 THE COURT: Well, that's· what. the, order

11 says~

I 12 MR. LAINE: Okay. ' I am in . agr_eement, with

I~ 13 theirs, -·Your Honor.

14 ~ ~ THE C'oU!iT:',, Okay. But that -- l,didn',t

I 15 ask you i,f .. you was in· agreement.·· I

16 MR. LAINE: Well, you have I 17 THE COURT: ~- asked you -- and~you)re

18 talking. while I am talki:ng; okay? My quest·ion is·: Did

19 you do what the Discovery Order- re.quires?

20 MR. LAINE: Not at this time. I have been

21 in the process of doing -- 22 THE COURT: Well, thiS ~s the time. So,

1- 23 are you -- anticipate havin~ that to me in the next

24 10 minutes? 1-{:_J 25 MR. LAINE: Yes, sir. I I I 72

1 THE COURT: You do?

2 MR. LAINE: Yes, sir.

3 THE COURT: Okay. As so.on as you can, get I 4 that to me.

I 5 6 MR. LAINE:

THE BAILIFF: Okay.

All rise.

I 7 (RECESS FROM 10:42 A.M. TO 11:07 A.M.)

8 (OFEN COURT, JURY NOT PRESENT, DEFENDANT PRESENT) I 9 THE COURT: Let the record reflect the

I 10 jury's not present. The defendant is present, along

11 with his attorney.

I 12 I have tendered a copy of the charge

.~ 13 to both State and Defense counsel. The first page is

14 the "Introduction" page, second page is "Definitions,"

I _ __ 15 third page is "Driving While Intoxicated," fourth page,

16 "Prior Conviction," the next page is "Felony Offenser" I __ 17 the next one is the "Intoxication" definition, "Public

18 Place"- definition, "Unlawfully" definition, "Vehicle" 1-- 19 definition, ".Defendant's Failure to Testify," the

1-- 20 charge, three pages of "Genera 1 Instruct ions, " a "not

21 guilty" verdict form and·a "guilty" verdict form. 1-- 22 Is there any objections to the charge

23 by the Defense? 1--- 24 MR. LAINE: Your Honor, the only objection 1--/J 25 that we would have would be that in the "Intoxication" I I I 73

I 1 definition -- we would ask that the State make an .-V:?JJ 2 election at this time whether they would want to use

3 "mental or physical faculties," and whether they were I 4 going to use "by the induction of alcohol or drugs."

I 5 Basically, we ask the election not be made. We don't

6 feel that there was any --

I 7 THE COURT: Any other objections to the

8 I 9 charge?

MR. LAINE: No, sir, Your Honor.

I 10 THE COURT: Okay. That's overruled.

11 Mr. Thomas, does the State have any I 12 objections to the charge?

I 13 14 MR. THOMAS:

I wilL sir, Your Honor.

givey'a:ll._lOminutes .···;-·::·..... · ' . .

I 15 to argue. I will hold you 100 percent to those t~mes.

16 Please don't make me cut either one of you off. I will I 17 giv~ you a 2-minute warning. I will give you a

I 18 1-minute warning; but after that minute expires, I'm

19 going to ask you to stop.

I--- 20 We are ready. I'm sorry.

I __ 21 22 (JURY ENTERS

THE COURT: COURT~OOM)

Let the record reflect all

23 members of the jury are present. The defendant is

24 present, along with his attorney.

25 Ladies and gentlemen, at this time I I I 74

I -- 1 I'm going to read to you this charge; and as I go I·····DJJ 2 through this, remember, you're going to take this

3 entire document back with you. The attorneys will have I 4 10 ~inutes to argue their case to you. I will cut them

I 5 off at 10 minutes. 6 warning, I'm going to give them a 2-minute

a 1-minute warning; and the reason it is that

I 7 way is bscause the arguments are not evidence. You've

8 heard all the evidence, but th~y will have an I 9 opportunity to argue that. But, again, you'll take

I 10 this back with you. At that particular point in time,

11 you'll select a foreperson; and then you will begin I 12 your deliberations.

I ($Jj) 13 READING OF THE .COURT'S CHARGE

14 THE COURT: (Reading): Members of the

I 15 jury, Introduction: The defendant~s~ands charged with

16 the offense of felony driving while intoxicated, I __ 17 alleged to have been committed in Jefferson County,

1. . . 18 Texas, on or about the 21st day,of September of 2008, 19 and that the defendant was convicted of the offens-e of I __ 20 driving ~bile intoxicated on two -~revious caseg~ in 21 Caus.e No. 132178 on January -S.th, 198-9, and in Cause 1- 22 No. 138038 on January 5th, 1989, in Jefferson County,

1- 23 24 Texas, and those convictions became final prior to the

offense for wh~ch the defendant stands charged. To.

I __( .· _ \~ .,j 25 these jurisdictional elements, the de"feridant· has agreed I I I 75

I (:::} ... 1 that. these convicti~n~ were final and true. The

I 2 defendant has entered a plea of not guilty to the

3 indictment. I 4 Our law requires that I submit the

I 5 following charge to you in this case. This charge

6 contains all of the law necessary to enable you to I 7. reach a verdict. If any evidence was presented to

8 raise an issue, the law on that issue must be provided. I 9 Definitions: So that you can better

I 10 understand some of the words and terms used in the

11 charge, the law provides the following definitions. I 12 Drivi-ng While··rntoxic'ated: A person

I\0J!) 13 commits an offense if the p·erson is' intoxicated-.wh:ile 14 dfivfng or ··operating a motor vehicle in a public. place.

I 15 The offense is a felony if the person has been

16 convicted twice before for this same offense. I 17 Prior Conviction - DWI: Evidence has

I 18 been admitted in this case concerning the defendant's

19 having been at leas~ two times previously convicted of

1~­ 20 being intoxicated while driving or operating a motor 21 ·vehicle in a public place. If- he was, you are ~-- 22 instructed that such evidence cannot- be con·sidered hy

1-- 23 you as in any manner proving or teriding to prove that

24 the defendant was intoxicated while driving or l_ _i _j ~ 25 operating a motor vehicle in a public place on or about I I ,/ 1- 76

I 1 SepternbE:r 21st, 2008. 2 Felony Offense: Our law further

3 provides that a person commits a felony offense if he I 4 commits the crime of driving while intoxicated at a

I 5 time when he had been pre~~ously convicted of two

6 offenses of driving while intoxicated. The de f.endant I 7 has .stip,ulated and agreed that he has· been previously

I 8 convicted of. driving while intox-icated- on two"- s.eparate

9 occasiocns previous- to the offense for- which.-he _stands I 10 charged.

11 Intoxication: Int6xication means I 12 that the defendant does- not- have ,the> normal· u·se of·_, his

I 13 mentaL or. physical -faculties>.hY rea:son- of· the -voluntary 14 introd1J);:tion of. aJco.hoL.o.r drugs intoc,hi_~ boqy.,,

I 15 Public Place: Public place means any

16 place to which the public or a substantial group of the I 17 public has ac~ess and includes, but is not limited to,

I 18 streets, highway$, in the common areas of schools,

19 hospitals, apartment houses, office building, transport I __ 20 facilities and shops.

I __ 21 Unlawfully: Unlawfully means

22 criminal or tortuous or both and includes what would be I _ __ 23 criminal or tortuous but for a -- but for a defense not

24 amounting to justification or privilege. l_i. ~ 25 Vehicle: Vehicle includes any device I I I 77

I r

~ --- C•·-~Y;' 1 in, on, or by which a person or.property is or may be

I 2 propelled, moved or drawn in the course of commerce or 3 transportation except such devices as classified as I 4 habitations.

I 5 Defend;c3.nt' s·; Fa-ilure> to ,Te.s-tify: Our

6 law provides that a defendant may testify in his own I 7 behalf if he elects to do so. This is a right given to

8 a de fen dan t; and in . the event he elects; -·not to testify, I 9 that fact cannot_.be taken as circumstances again$t him.

I 10 In this case, the defend(int has elected not to. te.sti fy,

11 and you are instructed that you cannot .and must not I 12 r~fer .- _.-.- ·-· . to or. allude to that fact .:_: "·- . '·: . throug~out your (;

I l$11 13

14 deliberations. or. take it into consideration;.for any

pu~~,o~_e s whatsoever.

I 15 Charge: If you bel_ieve ..:- -.. .. from. the . . .

16 evidence beyond a reasonable doubt. that in I 17 . ..

Jefferson County, ' . .. '; ' .--

Texas, that on or about the 21st day

I 18 of September of 2008, and anterior to the presentment

19 of this indictment, in the County of Jefferson and

I 20 State of Texas, that the defendant Carl Matthew

I_ 21 22 Bellotti, III, did then and there unlawfully operate a

motor vehicle in a public place while the defendant wa$

I_ 23 intoxicated~ and you further find that, as agreed, the

I -- I. 24 defendant was previously convicted of two prior driving .:..J 25 while intoxicated offenses and those convictions became I I 1

I 78

I 1 .-<:;zj final prior to this alleged offense, then you shall

2 find the defendant guilty of felony driving while

3 intoxicated, as alleged in the indictment. I 4 SO' fi.rid,: or_ if you have a. reasonable doubt· thereoC you

I 5 shall ftnd-the-defen~ant not guilt~:

6 General Instructions: You have. a I 7 right to consider all the facts· that' are shown by the

8 evidenceand to draw natural-and reasonable inferences I 9 from such .facts-. YoU alone have the authority and duty

I 10 to determine what the facts are in this case. In

11 evaluating the evidence, you must totally disregard I 12 what you believe is my opinion about any factual

I~ 13 matter.

14 All. person~ are presumed to b~ .-:. ··':.'-·

I 15 ·~... . . and no person may be convi.cted :for. .a-n' offense innocent,,:. ·. .

16 unless ·_each. ele!Tlent- of the· offense' is·. proved beyond a I 17 reasonable doubt. The fact that a persdrr ha& been

I 18 a~rested, confined or indicted for, or otherwise

19 charged with the offense, gives rise to no inference o£~

I __ 20 guilt at his trial. The 12w doe@require a ~ I __ 21 defendant to prove hi·s innocence or. produce. a.ny.,

22_ evidence at all. The presumption of innocence alone is

1- 23 sufficient to acquit the defendant unless the jur_ors ~

24 are satisfied beyond a reasonable doubt of the 1-j~~ 25 defendant's guilt a£ter careful and-impartial I I I 79

I (···;A 1 consideration of the evidence in the case. ~-- '0/ 2 The prosecution has the burden of

3 proving the defendant guilty, andsLt -must do.so_by I 4 p.iov1ng each and every. eleme.nt of· the. offense charged

I 5 beyond a reasonable doubt; .. and if it fails to do s-o,

6 ~~@a:quit t.he., defendanL It is not requ;tred. that I 7 the prosecution-prove guilt beyond all c possibls•. doubt. .

8 u@requir·ed that. the prosec\,lt.ion'$ proof excludes I 9 alL r·e·asohable doubt·. concerning the defendant! s _guilt. ~::;:::--=-=:;..;;;~======== ......-- I 10 You cannot question the bailiff

11 concerning the testimony or the law, nor should you I 12 discuss the case in his presence. If a question about

I 13 the law develops during your deliberations,

14 reduced to writing, signed by your foreperson and given it must be

I 15 to the ba i 1 i f f . The question will then be answered by

16 the Court as sooh as possible to the extent allowed by I 17 law.

I 18 Questions and comments of the

19 attorneys do not constitute testimony and must not be I_ 20 considered as evidence. Ypu must also disregard any

I_ 21 statement of the attorneys that is inconsistent with 22 the law contained in this charge.

1--- 23 Any physical exhibits admitted into

24 evidence will be furnished to you by the bailiff upon 25 your request. You must not consider facts that have I I I 80

I ()£!) 1 not bsen introduced into evidence or legal principles

I 2 not contained in this charge. It is improper for any

3 juror to discuss or consider anything which they know I 4 or have learned outside the testimony presented to you

I 5 and the law contained i.n this charge. If a juror

6 should discover that they have any outside information, I 7 they must not mention this information to any other

8 juror, nor consider it themselves in arr~ving at a I 9 verdict.

I 10 You ar~ the, exclusive judges of- _the

11 fact.s proven,-_ -t.he. believ_ab:ility of the _witnesses :and I 12 the \-.'_eight- to- be given:· to their- testimony.-_ However,

~ I 13 you must be bound by and strictly follow the law 14 contained in this charge. Your failure to follow the

I 15 law could result in a mistrial being declared, and your

16 deliberate violatiDn of this charge could subject you I 17 to being held in contempt of court.

I_ 18 After the attorneys present their

19 arguments to you, you will retire, select a foreperson I_ 20 and consider your verdict. The arguments are not

21 evidence, and you should- give the arguments onTy the, I -- 22 consideration you feel they ·deserve during your

1- 23 evaluat'ion of the evidence:. It is the duty of your ·-·· 24 forepersoh to make certain that your deliberations are I w 25 conducted in accordance with this charge. When you I I I 81

I _(esJ 1 have reached a unanimOus decision; .your· foreperson I 2 should sign ·the ~ppropriate verdict attached to the

3 returning your· verdict, it. is. your I 4 to see that · j us t ice iS· done in t hi s ~ ~

I 6 ------ 5 ca.se. That's signed by me. I 7 Verdict Form No. 1: We, the jury,

8 I 9 find the defendant not guilty.

Verdict Form No. 2: We, the jury,

I 10 find the defendant guilty of the offense of felony

11 driving while intoxicated, as alleged in the I 12 indict·ment. y I . 13 14 close the arguments. The State has the right to open and

I 15 MR. THOMAS: Your Aonor, the State would

16 waive its opening but reserve its right to close. I 17 THE COURT: Mr. Laine, you'll have

I 18 10 minutes. I ' l l give you a 2~minute warning and a

19 1-minute warning. I 20 CLOSING ARGUMENTS BY THE DEFENSE

I_ 21 22 MR. LAINE:

Okay. Thank you. Your Honor. From the defense standpoint, I

I 23 hope you see the inconsistencies. The State's going to

24 come up and say it's ~hort and sweet. and there -- 1--(J - , .... 25 -------- there you go. What's the problem here? Basically I I I 82

I (- ,.,,, .• 1 there's a lot of problems. There's a. lot of problems ~---·~ 2 with proof. There's a lot of problems with what the

3 people saic:i happened at the time~ then come and I 4 testify here today about things they never wrote in .. I 5 their statements, never said in thei~ statements that

6 Mr. Bellotti, would be reasonable to assume, never did. I 7 So, the fact of the matter is, I hope you can see those

8 consistencies that differentiate what those people -- I 9 the o.tficers were saying~ versus what they wrote in

I 10 their statements when this occurred. And when this

11 occurred, what evidence do we have? I 12 Well, we have no field

I (::zJ 13 be c au s e t h e o f f i c e r 1 in h;;;i;.;s::...·_.:::.s..l;;t..l;;a~t::..e::::.::;m:.::e::.:n.:..t::::...L.,._L::::~:.....:~..:::.:.::._.:::_~ 14 COJ:te \ We also have the fact that there is /i._o vid~os,

I 15 but we heard the other young officer say, what, every

16 C§r in the wbol~ Groves Police Department doesn't have I 17 a~o, wh~re they're alJ. -- they're all being worked

I 18 on; - and that's why we don't have on~.

19 Then we go to the actual evidence of

I 20 intoxication other than a field sobriety test. The

21 State's going to come and say, Well, we couldn't do a I 22 field sobriety test because of all these -- he was so

I- 23 drunk .... he couldn't stan~, had to drag him out -- drag

24 him to the Groves Police Department where he fell 25 asleep and everything else~hen you ask the I I I 83

I 1- ( :_.,.,.,,:·J "3 1

2 individuals -- they asked the officers and you -- asked ~

the young lady, Did ....... you write this in your statement? '

I 3 4 - Is this what you said happened at the time this

occurred? None of that happened. None of they

I 5 wrote none of that in their statements. They said none r ~

6 of that; but, yet, they Come today and testify . to that. - I 7 And I just submit to you that that

I 8 e level o

Then we have no video. We have two

I 10 officers with no video. Then, of course, we have no

11 Brea.-t..halyzer. And the reason for that is, is because I 12 the officer says that it's the hurricane -- because of i0Jij I ·.:·7~":'· 13 14 the hurricane, r .__ I can't giv.e get a video because the

only place I can do a video is down at the Sheriff's

I 15 Department -~ down at the jail -- the Jefferson County

16 Jail. The only reason -- the only way I could do a I 17 breath test was down at t~at jail.

I 18 Well, ~ will submit to you, - ladies

19 and gentlemen, that you give that th~ that you I 20 feel i t deserves. Not being able to do a video at the

21 Groves Police Department, you give that the weight on I 22 the realistic end of that -- or over here at this

I._ 23 downtown jail, once he was transported to the downtown 24 jail -- which ty everybody was over here, which

25 included nurses and everything at Jefferson County was I I I 84

I --·G:J 1 over here -- the defense would submit csrtainly that

I " 2 could happen OJ;: ~~.t:tain1~ i;l br:eatb analysis could

3 happen and :take t . I 4 j

Then, of course, the officer is

I 5 saying again, he didn't write in his statement

6 that Mr. Bellotti was asleep or felt like he was asleep I 7 when he got there. But he didn't have a blood test

I 8 because he refused. 9 we have ~o Again, the testimony that

corroborating evidence, which is fair to

I 10 assume is in most every DWI cas~. And we have no

11 breath test. We have no video. We have some I 12 statements from -- from individuals that when they were J)jjj I ~<{~;i~ 13 on the stand contradicted what they said now versus 14 what they wrote in their statements then. I 15 So, we have a young man after the

16 storm, gets in a wreck, taken to the Groves Police I 17 .... Department, and then taken to GEO. - And I would submit,

I 18 ladies and gentlemen, that it was G~nyen~ _No

19 ambulance was ever callen. Wa~ that n o t p rat a c Q..l? ..If I_ 20 you have a wreck and a guy seems disoriented, you just

I __ 21 automatically just assume, We're going to take their

22 testimony that he's drunk and that you are going to 1. _ 23 send him on down to the jail?

24 I will submit to you, yes, most of

25 us - - I don't know if you did. I stayed during Ike. I -~--~-----··-·----,---·-·--·····--··-·----•---~--· ·---···-~-"- ····-···-······-··----·-------·--·---·-·- -·--··

I I I 85

I __ (:d .~ ---

1 didn't stay during Rita. But certainly after those,

I 2 there's of lot of poleax on law enforcement. Without

3 doing anything further, then -- then from the defense I 4 standpoint -- you just take the guy on to j ai 1. And in

I 5 Of.._der to take the guy on to jail. jTAll have to go ahe.ad

6 and create facts that you want to present to a jury for I 7 reasons to take him to the jail. But we heard the

8 facts -- or we heard what happened there versus what I 9 happened in the seat today.

I 10 So, ladies and gentlemen, I -- I

11 guess you would ask yourself, (! s this the type of I 12 evidence that ' I would want to be found guilty on? t ~ '

I \d 13 this the type of evidence that raises to 14 reasonable donQ.t? Is the inconsistencies and the lack peyop~ a

I 15 of what the individualr::}.d ==at the~ of the ~ncident I 16 versus what they're saying here today. does that raise '-""' - I 17 to the level of beyond a reasonable doubt? And I - will

18 19 say I hope it doesn't. and gentlemen, - to find Mr We are asking you today, Bellotti not gni 1 ty. ladies The

I 20 facts that were from the stand, fro~ the aefense

21 stand p o in t , does n ' t prove . that . And if I said it in I 22 voir dire, I' 11 say it again maybe I didn't

I 23 sometimes -- - the State of Texas "'I we are all the State

...----........ 24 of Texas. We never win or lose in cases lik is. We I i -· - \:.:_;.;1 25 alwa;t:s~ Q__Go9. And I appreciate your ---------------~~------'- - - - - - - - - - - ···-·-------- - - - - - - - - - - - - --· •.. -·------

I I I 86

I 0:;; ___.. 1 time and consideration in this case. I look forward to

I 2 your verdict. Thank you.

3 THE COURT: Mr. Thomas, you will have I 4 10 minutes.

I 5 CLOSING ARGUMENTS BY THE STATE

6 MR. THOMAS: Thank, you Your Honor. I 7 I guess the officers are just liars.

I 8 I guess that's the defense -- Sergeant White and

9 Deputy Phillips are just liars. They didn't have

I 10 enough to do in the days after Hurricane Ike, they had 11 to make up -- make up a char~e against Mr. Bellotti. I 12 That's what they want you to believe apparently.

I 0Jd 13 Ose your common sense, folks. Do you

14 really think that's the case? Do you really think they

I 15 had nothing else to do other than to make up a story to 16 look for something to do in the days after Ike? Use I 17 your common sense.

I~ 18 In our lives we have a pretty good

19 idea when someone's intoxicated when we are around I __ 20 them, when they're not their normal selves. You and I

21 do, and we are not even police officers. We can 1.-- 22 recognize when someone's been drinking, had no business

1-- 23 driving. But that's certainly what Deputy Phillips

24 and Sergeant White observed that day out of that

25 man (pointing). They smelled alcohol, words weren't I- ...... ----. ------ ·------------ - ------------·---

I I 87

I __(:sJ 1 even making sense. I 2 Where are you?

3 Port Neches. I 4 Try Groves. Can't understand

I 5 anything else he's be·en saying. He can't even get away

6 from the side of his truck because he can't stand up. I 7 I was going to try to do some field sobriety tests, try

I 8 to take him over to some level ground. 9 even stand lJ.P. He was trying to make a decision, He couldn't

Do I

I 10 want to do some field sobriety tests and him fall down

11 in the middle of the street and get hurt; or is it I 12 better to s t a y beside his t r u c k s a f e 1 y ? If we did the

I ~ ~ . 13 field sobriety test and he falls down and hurts 14 himself, we'd be in this courtroom griping about how I 15 they didn't take good care of him, letting him get

16 hurt. That would be their fault and the police I 17 officer's fault, too, I guess.

I 18 Deputy Phillips comes up. He smelled 19 alcohol. I had to help him to the car. I had to put I 20 my arm on his back and help the man walk, then I had to 21 pick his feet up, put them inside the car for him, get I 22 his feet back out the car. What's an intoxicated

I- 23 person want to do? They're happy, they love you, 24 everything's great; and the next minute they want to 1-<~ 25 fight you. That's just what Sergeant White observed, - --:·~ ---~-- ·-----·----

I I I 88

I ~ .¥• ....

-C~jJ) 1 He got to the point where he was going the other way I 2 and was fixing to become combative. I just put him in

3 cuffs before it got out, of control. I 4 He gets back to the jail -~ ex~use

I 5 me -- the Groves Police Department; and he's asleep on 6 the bench -- more evidence that he is intoxicated, had I 7 no business being behind the wheel of that truck. In

I 8 the days after Ike, as you-all know, everything is ,torn

I 9 -- up around here.

10 The Groves Police Department was torn up.

... jail that has the videos for QWI's and

I 11 12 - Breathalyzer,

there for the storm. it's closed. They had to get out of

What do we do with this guy? We

I ~ "' . 13 have Carl B·ellotti here intoxicated . Where are we

14 supposed to take Qim? Apparently the downtown jail's , I 15 ----~~

now open. ___..;-..---- T~at's not -~we don't normally take geople

16 there; but that's only place we've got. That's I 17 where they had to take him. the

I 18 So they didn't have an opportunity to

19 videotape him or give him a Breathalyzer. They were I 20 trying to make do under bad conditions, as if they

I -- 21 didn't have enough tQ do alread~ in the time after Ike.

22 As if i t wasn't busy enough for our first responders - I 23 after Ike, they had to stop and take care of him -··· . 24 (pointing) I ·-··v 25 If you think the police officers are 1- --------- -'----------·-··------------------·--··-··--·--.. ·- · ·-·- · · - · · -·- - -·-· · - . . -----·--·----·--···--------- I I 89

I ~"·g; -\, :.: 1 liars, like they want you to believe, how about this: I 2 How about the lady standing out in the front yard of 3 her mother's home? When you get the first clue that I 4 this guyrs intoxicated and shouldn't have been

I 5 operating a motor vehicle is when he wrecks in her 6 front yard. How about that for the first sign that guy I 7 doesn't have any business driving? And like it comes

I 8 to a b i g s u r p r i s e to us a 11 after we ' v e a 11 been

9 through all these hurricanes, that there's work crews, I 10 there's tree trimmers and ever_ybody else on the road

I 11 working on the days after a storm. ('"""" -.. Well, it caught . him

12 b& surer is e. I gue.,es when you're in the condition he --------------------------~. I lJ1j·:·,_-.,.;, ··'_,~?· 13 is, ' you look up and you -- uh-oh, crash.

14 I guess we should be fortunate that I 15 that ditch was there, because Aleisa and her two 16 grandchildren in the front yard -- had that ditch not I 17 been there -- we'd be here on something even more worse

I 18 than driving while intoxicated.

19 Sergearit White said, I suspected I 20 drugs, all the signs of an intoxicated person sadly

I 21 22 behind the wheel of a vehicle.

last piece of the puzzle that we need to talk about. But then there's one

I 23 S~rgeant White said the hospitals were open. The ,--~ .. 24 hospital's open. Carl Bellotti, can I have a specimen I -0 .. 25 of blood? Let's not worry about an Intoxily~er ·-·· --------· -------------------·------·-- -·--- -- --·-··--· ··---- ·-·----·-· -----------.-------------- ---··

I I 90

I I .(J!1 1 machine, whatever that might do. How about a specimen

2 of blood, take it to a hospital. They don't work for

3 the police. They don't work for you and me. They are. I 4 going to do scientific testing on your blood to tell

I 5 12 jurors just what your blood contains. Carl, can I

6 have a sample of that blood so we can tell those I 7 12 jurors just what your blood contained?

I 8 9 blood. I am not gi~ing you a sample of. my

I 10 11 Because he doesn't want you to know I 12 just what all he had in his syst~. That was his .r- . ---

I 13 opportunity to prove to you that he had not been

14 drinking, had not been using drugs, that he had been

I 15 fine behind the wheel of a vehicle. And what he did

16 say? I don't want the 12 of you to have it. It was I ~arne 17 that attitude that was telling Mrs. Aleisa - 1. -~ 18 Sanders, Don't call the police. Don't call the

19 police -- here they are -- because he knows he's I_ 20 caught.

I_ 21 Use your common sense. That man on

22 September 21st, 2008 -- as if we didn't have enough

23 trouble in our county -- is driving around our county

24 intoxicated, endangering the lives of workmen, Aleisa 25 and her grandchildren, and whoever else was driving 1- --------·-·-·--·--·- ----·- -· -- ~-

I I 91

I ' ---VJ;j 1 around that day . A11 s i g n s p o in t to one thing , that I 2 man (pointing) was intoxicated behind the wheel of that

I 3 truck. 4 The 12 of you need to hold him responsible and

find him guilty.

I 5 THE COURT: Okay. Ladies and gentlemen,

6 if you will please qo with the bailiff and begin your I 7 deliberations.

I 8 THE BAILIFF: Ladies and gentlemen, if you

9 were taking notes, would you please put your notes here

I 10 on the bar.

11 (JURY EXITS COURTROOM FOR DELIBERATIONS) I 12 THE COURT: We will be in recess until

I 0%1 13 they get a verdict. 14 THE BAILIFF: All rise. I 15 (RECESS FROM 11:34 A.M. ' TO 6:30P.M.)

16 IN CHAMBERS HEARING I 17 THE COURT: Okay. We have a question that

I 18 carne out -- Question No. 2 that will be made part of 19 the record -- and the Court will send back the response I_ 20 that is attached to Question No. 2. And Mr. Laine had

I 21 22 an objection to that.

MR. LAINE: Well, Your Honor, I agree with

I 23 basically the response, except I would like an

24 admission or something to be included with that. I I 0 -~--1 . 25 guess within the response, second paragraph -- one, L.J.L.!lU LJ....L.::>L...L...J...VL... ..._..._.,u...1.. ~

- - - - - - - - - - - - - - - - - -------- --·- -- - -------------- - - - - - · -~- --- --

I I 92

I ---0;p 1 two, three, four, five, six, seven -- eighth line down,

I 2 we would ~- the eighth line starts with "have

3 disagreed." I would like it to say "comma during I 4 direct or cross-examination comma," then to read on

I 5 from there. So, I guess it would read this way -- the

6 whole sentence, "unless the jury had disagreed upon I 7 some part of the testimony, under the law you are not

I 8 9 entitled to have any of the testimony reread; but if

you have disagreed upon any point or points in the

I 10 testimony, you will so state to the Court in writing 11 and point out in writing the point or points upon which I 12 you have disagreed" -- I put "during direct or

I~ 13 cross-examination comma" -- "then the Court will have 14 the court reporter read back to you only the testimony

I 15 on the point or points in dispute and no other." 16 THE COURT: And the Court's response is I 17 that I don't even know if they have a disagreement at

I __ 18 all as to what the testimony is, and I will send this 19 in and see where we go from there. I __ 20 So, your request 1s denied; and I

21 will send this in to them. 1--- 22

1- 23 -- 24 1-,:,J 25 I I I 93

I ---~~f 1 REPORTER'S CERTIFICATE

I 2 THE STATE OF TEXAS) COUNTY OF JEFFERSON) 3 I 4 I, Summer Tanner, Official Certif~ed Shorthand

I 5 Reporter in and for the State of Texas, do hereby 6 certify that the above and foregoing contains a true I 7 and correct transcription of all portions of evidence

8 and other pr6.ceedings requested in writing by counsel I 9 for the parties to be included in this volume of the

I 10 Reporter's Record, in the above-styled and numbered

r1 ,-- .\Jji 11 12 13 cause, all of which occurred in open court or in

chambers and were reported by me.

I further certify that this Reporter's Record o£

14 the proceed~ngs truly and correctly reflects the

15 exhibits, if any, admitted by the respective parties.

16 I further certify that the total cost for the

17 preparation of this Reporter's Record is 18 $ ___ (f_{t_j__tJ}!_____ and was paid bY _iJdn._J/MltU------· 19 WITNESS MY OFFICIAL HAND this is t~ 20 ___ _}~--~------day of--~~----' 2009. 21 22 ~-------- 23 Summer Tanner, RPR Texas CSR #8208 24 Expiration Date: 12/31/10 Official Court Reporter --v- 25 Jefferson County, Texas I I THE STATE OF TEXAS § ' IN THE DISTRICT COURT OF 1._ § VS. § JEFFERSON COUNTY, TEXAS §. CARL MATTHEW BELLOTTI, Ill § . [252ND JUDICIAL DISTRICT] I D

I. I •

I- I I . REPORTER'S RECORD I Volume 3 of4 'l·

I. I ·***********************~***** GUlLT I INNOCENCE

I (HUNG JURY) October 13th, 2009 0

' ***************************** I I ' RECEIVED IN. COURT OF CRIMINAL APPEALS a -I. MAR. "1 1 2015' 0 Abel Acosta, Clerk I I· , 1': Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road I Del Valle, Texas 78617-5800 Phone: (512) 667-1508 e-mail: pwmll.07@gmail.com I 0

I d I I THE STATE OF TEXAS § IN THE DISTRICT COURT OF § I vs. § § JEFFERSON COUNTY, TEXAS

CARL MATTHEW BELLOTTI, III § [252ND JUDICIAL DISTRICT] I I I I I REPORTER'S RECORD I Volume·3 of 4

I (HUNG JURY) October 13th, 2009 ***************************** I I I I I _Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road I Del Valle, Texas 78617-5800 Phone: (512) 667-1508 e-mail: pwmll.07@gmail.com I I I 1

1 REPORTERiS RECORD

2 VOLUME 3 OF 4

3 TRIAL COURT CAUSE NO. 09-07283

4 THE STATE OF TEXAS * IN THE 252ND DISTRICT I 5 * * 6 vs. * COURT OF I 7 * * CARL MATTHEW BELLOTTI, * I 8 III, A/K/A CARL MATHEW BELLOTTI, III, A/K/A 9 CARL MATHEW BELLOTTI, * * * A/K/A CARL MATTHEW I 10 BELOTTI, III, A/K/A CARL MATHEW BELOTTI, III * * JEFFERSON COUNTY, TEXAS * 11 I I .~r~.:-·

I 13 * * * * * * * * * * * * * * * * * * * * GUI.LT/INNOCENCE 14 * * * * * * * * * * * * * * * * * * * * I 15 16 On the 14TH day of OCTOBER, 2009, the following I 17 '

proceedings carne on to be heard in the above-entitled

I 18 and numbered cause before the Honorable Layne Walker,

19 Judge Presiding, held in Beaumont, Jefferson County, I 20 Texas:

I --- .. •:h.tf.i,i': I 23 24 I_Cfli 25

I SUMMER TANNER, CSR, RPR 252nd District Court \. r.C· . · ,.

I I 2

1 A P P E A R A N C E S 1® 2

~-- 3 FOR THE STATE:

4 Mr. Perry Thomas SBOT NO. 19849120 I 5 Assistant District Attorney 1001 Pearl, 3rd Floor 6 Beaumont, Texas 77701

I 7 Mr. Pat Knauth SBOT NO. 11585500

I 8 9 Assistant Di strict Attorney 1001 Pearl, 3rd Floor Beaumont, Texas 77701

I 10 FOR THE DEFENDANT: 11 I 12 Mr. Bryan Laine SBOT NO. 24011488 Attorney at Law

I 13 14 1045 Redwood Kountze, Texas 77625

I 15 16 I 17

I I 3

I-- 1 VOLUME 3

1 -·

4 Case Called 5

6 Defendant's Motion for Mistrial 6

I 7 Court Grants Motion for Mistrial 7

I 8 9 Foreman Announces Jury Deadlocked

Jury Di smi.s sed 8

I 13 14 I 15 16 I 17 18 19 20 21 I 22

I 23 24 I_~ 25

I SUMMER TANNER, CSR, RPR 252nd District Court 1··- 4

1 VOLUME 4

4 NO. DESCRIPTION ~---- 5 1 Jury Question No. 1

1-· 6 7 2

3 Jury Question No. 2

Jury Question No. 3 ~--- 8 4 Jury Question No. 4

9 5 Jury Question No. 5

1 10 11 I 12 13 14 I 15 16 I 17

I 23 24 I_~~ 25

I 1- 5

~-­

•....(~) 1 (OPEN COURT, JURY NOT PRESENT, DEFENDANT NOT PRESENT)

2 THE COURT: I just got a deal from the

I -- 3 jury. I want the record to reflect that the jury began

4 deliberating yesterday at 15 minutes until 12:00. 5 Yesterday was October the 13th, 2009. They went to the

~-­ 6 jury room at 15 minutes until 12:00 and deliberated

7 until -- somebody corr~ct me i£ I'm wrong -- 2:05, took ~-- 8 a break from 2:05 for lunch, returned at 3:00 o'clock,

9 deliberated without a break until 6:30 I 10 MR. THOMAS: Yes, sir.

11 THE COURT: -- yesterday afternoon. I I 12 ordered that they return at 8:00 o'clock this morning.

I 13 They actually went into the jury room at what time?

14 THE BAILIFF: 8: 09. I 15 THE COURT: 8:09. And have been

16 deliberating since 8:09. I 17 has just sent out a note. It is now 10:12. The jury

I 18 It says (Reading) : Judge, we are

19 split. No one will change their position and haven't I 20 since the beginning. We see no additional evidence

I 21 ideas to change current position. Please advise. We

22 understand what we were asked to do based on the charge I 23 but see no way to a resolution.

24 And I think I have read that correct.

25 Y'all take a look (tendering). What do y'all want to

I 1-- 6

1-- ·····~ 1 do -- and I want to let the record reflect Mr. Laine is

2 present and Mr. Thomas is present while we are having

~-- 3 this discussion.

4 MR. LAINE: Your Honor, just from the ~--- 5 defense standpoint, we've -- I have read a proposed ~--- 6 Allen Charge or Dynamite Charge from the CoUrt. I

7 believe since -- based on t~o notes previous yesterday

1- 8 that we -- that they could not make a decision. I

9 think the 6:30 note basically said the same thing, our ~--- 10 decision's been the same

1- 11 THE COURT: I agree.

12 MR. LAINE: since the start, that the

I ·'· (\ 13 Court was -- it -- under its authority, we would ask

14 for a mistrial at this time. I 15 THE COURT: Mr. Thomas, do you have any

I 16 objection? 17 MR. THOMAS: Your Honor, I will agree with

I 18 whatever Mr. Laine wants to do at this point in time.

19 THE COURT: I want the record to be clear, I 20 I have tried a lot of cases; and most of the time

I 21 it's -- there's a little bit of confusion in light

22 this jury has been dead set, in my opinion, since the

I 23 very first question that they are deadlocked; and t}1ey 24 just never have used the magical terms. But I cion't

···~ I 25 think there's any question in my mind that they are

SUMMER TANNER, CSR, RPR 252nd District Court I I 7

I ._(~ 1 deadlocked, and continued deliberation would be futile.

2 And, therefore, I'm going to grant Mr. Laine's Motion ~-- 3 for Mistrial. We will reset this matter for -- I will

4 take a look at it, see when we can get y'all back down ~-­ 5 here and get the case tried.

~--- 6 MR. LAINE: Yes, sir.

7 THE COURT: Let ' s do t hi s . If I can, ~-- 8 let's get Bellotti -- Mr. Bellotti, let 1 s get him in

9 here and then I will get them in here and I will cut

I 10 them loose. While y'all do that, I'm going to do this

11 plea real quick. I 12 (PAUSE IN PROCEEDINGS)

I 13 (OPEN COURT, JURY NOT PRESENT, DEFENDANT PRESENT)

14 THE COURT: Okay. I am ready for the I 15 jury. 16 MR. THOMAS: Judge, I think we both would I 17 like for you to inquire with the foreman first.

I 18 THE COURT: That they are hopelessly

19 deadlocked? I 20 MR. THOMAS: Yes, sir. 2'1 I 22 THE COURT: Okay.

(JURY ENTERS COURTROOM)

I 23 THE COURT: Let the record reflect all

24 members of the jury are present. The defendant is l_c~ 25 present, along with his attorney. A note was sent out

I ~ I --\;q 1 saying that the jury was not able to reach a verdict.

2 Mr. Hopson, I'm going to ask you,

I 3 sir: 4 Are you satisfied that the jury is hopelessly

deadlocked in this matter? I-- 5 THE FOREPERSON:· Yes, sir.

6 THE COURT: No chance of reaching I 7 resolution in this case? I - 8 THE FOREPERSON: No, sir.

9 THE COURT: Okay. The request has been

10 made by Mr. Laine for a mistrial withDut objection,

11 I'm going to grant this Motion for Mistrial. I 12 At this time, your job here is done.

13 If you don't mind, give us the badges back. Next week

14 we will go through the process, again. We will select I 15 another jury and try the case, and we will continue to

16 I 17 do so until there's resolution.

your instructions. You are released from

If you want to talk to anybody,

I 18 feel free to do so. If you need a work excuse signed,

19 go straight across the hall to Ms. Ramos' o£fice; and I 20 she will get that taken care of for you. You are free

I 21 22 to go.

attorney, If somebody wants to hang around and talk to an

if y'all will, just wait outside and tell

I 23 Wayne or Tony who it is you want to speak with, and

24 they will be happy to speak with you. Y'all are free I® 25 to go.

I SUMMER TANNER, CSR, RPR 252nd District Co~rt I I -··

I --·

.._(]) 1 (JURY DISMISSED)

I 2 3 I 4

I 5 --· 6 I 7 ---

I 8 9

I 10 11 I I --- 12 13 14 I 15 16 I 17

I 23 24 I ~-® 25

I I_,J· ~., 1 REPORTER'S CERTIFICATE

2 THE STATE OF TEXAS) COUNTY OF JEFFERSON) I 3 4 I, Summer Tanner, Official Certified Shorthand

I 5 Reporter in and for the State of Texas, do hereby

I- 6 certify that the above and foregoing contains a true 7 and correct transcription of all portions of evidence

I 8 and other proceedings requested in writing by counsel

9 for the parties to be included in this volume of the I 10 Reporter's Record, in the above~styled and numbered

11 I 12 cause, all of which occurred in open court or in

I 13 I further certify that this Reporter's Record of

14 the proceedings truly and correctly reflects the I 15 exhibits, if any, admitted by the respective parties.

I 16 17 I further certify that the total cost for the

preparation of this Reporter's Record iJ~--~---· ~s

I 18 $ ___ ~V'__ ~6-~~--- and was paid by _ . 19 WITNESS MY OFFICIAL HAND this is the I 20 ____jL~--~--~ day of --~---' 2009.

I -~~------ 21 22 I 23 Summer Tanner, RPR Texas CSR #82.08 24 IJ~ Expiration Date: 12/31/10 Official Court Reporter 25 Jefferson County, Texas Beaumont, Texas 77701 I SUMMER TANNER, CSR, RPR 252nd Di5trict Court I I I , THE STATE OF~TEXAS §, · IN THE DISTRICT COURT OF § ,I VS. § § JEFFERSON COUNTY, TEXAS

CARL MATTHEW BELLOTTI, ill § [252ND JUDICIAL DISTRICT] I I a '

I •,

·' I. REPORTER'S RECORD I Volume 1 ofl

I *********************************** GUILT I INNOCENCE & I PUNISHMENT .& I . OF GUILTY AND SENTENCING PLEA October 18th, 2011 I ***********************************' . I' ' • RECEIVED IN COURT OF CRIMINAl APPEALS

MAR- -t 1 2015 I Abel Acos~a. Clerk 'I I' Philip W. "Phil" Moore, Amicus Curiae . 15623 Fagerquist Road I 0 _Del Valle, Texas 78617-5800 Phone: (512) 667-1508

I v e-mail: ' pwm11.07@gmail.comt

I I -1 THE STATE OF TEXAS § IN THE DISTRICT COURT OF § I vs. § § JEFFERSON COUNTY, TEXAS

CARL MATTHEW BELLOTTI, Ill § [252ND JUDICIAL DISTRICT] -I I I I REPORTER'S RECORD I Volume 1 ofl

I *********************************** GUILT I INNOCENCE I & PUNISHMENT & I PLEA OF GUILTY AND SENTENCING October 18th, 2011 I ***********************************

I I I I Philip W. "Phil" Moore, Amicus Curiae 15623 Fagerquist Road I Del Valle, Texas 78617-5800 Phone: (512) 667-1508

I e-mail: pwm11.07@gmail.com

I 1-· 1

·1·- 1- (., _ 1 2 SUMMER TANNER, CSR, RPR 252ND DIST~ICT COURT (409) 835-8637

·1·-- 3 TO: Mr. Carl Bellotti, Jr .. 4 2122 Merriman Street ~---- Port Neches, Texas 77651 5 FROM: Summer Tanner 6 Official Court Reporter I 7 252nd District Court 1001 Pearl I- 8 Beaumont, Texas 77701

RE: Cause No. 09-07283 9 The State of Texas vs. Carl Matthew Bellotti, III ~----·

10 REPORTER'S RECORD: Vol. 1 BILLED - 11/21/2013 11 ******************************************************* Original and 1 Copy 12 Vol. 1 - ~uilt/~nnocence,Punishment and 13 Plea of Guilty 145 pages@ $5.50 pp . . . . . . . . . . . . . . . . . . . . • . . . . . $797.50 14 I 15 Binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $15.00

16 I 17 TOTAL .. , . . . . . . ,., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $812.50

I . . . .. 24 I . ( 25 - --'-. ____ ...

I I I 1

I (~~'It 1 REPORTER'S RECORD

I --\··~ ..

3 TRIAL COURT CAUSE NO. 09-07283 I 4 THE STATE OF TEXAS * IN THE 252ND DISTRICT I 5 * * 6 vs. * COURT OF I 7 CARL MATTHEW BELLOTTI, * * * 8 III, A/K/A CARL MATHEW I BELLOTTit III, A/K/A 9 CARL MATHEW BELLOTTI, * * * A/k/A CARL MATTHEW * I 10 BELOTTI, III, A/K/A CARL MATHEW BELOTTI, III * * JEFFERSON COUNTY, TEXAS 11 I ;;;-; :..,~

I ·:f.·. 12 ;-"""·,,

I 13 14 * * * * * * * * * * * * * * * * * * * * GUILT/INNOCENCE & PUNISHMENT I 15 & PLEA OF GUILTY AND SENTENCING 16 * * * * * * * * * * * * * * * * * * * * I 17

I 18 On the 18TH day of OCTOBER, 2011, the following 19 proceedings came on to be heard in the above-entitled I 20 and numbered cause before the Honorable Layne Walker, 21 Judge Presiding, held in Beaumofit, Jefferson Co~nty, I 22 Texas:

I 23 24 Proceedings reported by Machine Shorthand. I ("' --~~- ·--'·,. ~· 25

I_ SUMMER TANNER, CSR, RPR c.op~ 252nd District Court 11 I ·~. 2

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

3 FOR THE STATE:

4 Mr. Perry Thomas SBOT NO. 19849120 5 Assistant District Attorney 1001 Pearl, 3rd Floor 6 Beaumont, Texas 77701

7 Mr. Pat Knauth SBOT NO. 11585500 8 Assistant Dist.rict Attorney 1001 Pearl, 3rd Floor 9 Beaumont, Texas 77701

10 FOR THE DEFENDANT: 11 Mr. Norman Desmarais 12 SBOT NO. 00795925 Attorney at Law 13 1233 Nederland Avenue Nederland, Texas 77627 14 (409) 729-2777

15 16 17 18 19 20 21 22 23 24 25

SUMMER TANNER,. CSR, RPR 252nd District Court 1-- 3

1- --~· ·~

I -_ .· ( --~'- 1 VOLUME 1

2 GOI~T/INNOCENCE & PUNISHM~NT

1- 3

4 PLEA OF GUILTY AND SENTENCING PAGE

~--- 5 Stipulations 5

6 Jury Sworn 7 ~-- 7 State Reads Indictment 8 ~--- 8 Defendant Pleads Not Guilty 8

9 State Testimony Begins 9 1- 10 STATE'S WITNESSES DIRECT CROSS

~--- 11 Aeli.sa Sanders 9 17

12 Kevin White 36 48

I 13 State Rests 91

14 Defendant Admonished 91

I 15 Motion for Instructed Verdict by Defense 92

16 Court Denies Motion I 17 Defense Rests 93

I 18 Jury Instructions 97

19 Defendant's Closing Statements 104 I 20 State's Closing Statements 111

I 21 22 Jury Deliberations

Jury's Verdict 116

I 23 Defendant Rejects Plea Offer 120

24 Defendant Pleas Not True to Enhancements 122 I - ~- .. 25 State's Testimony Begins 123

I 1-- 4

1-- . ( 1 PAGE 1--·-. 2 STATE S WITNESSES 1 DIRECT CROSS

3 James Carl Rose .123 132

4 State Rests 135 ~-­ 5 Defense Rests 135

~--- 6 Defendant Pleads Guilty 138

7 Defendant Pleads True to Enhancements 139

8 Defendant Sentenced 141 9 Jury Dismissed 144 ~-- 10 Reporter 1 s Certificate 145

1- 11 EXHIBITS

--/·--- 12 STATE'S EXHIBITS

1 ''- .. 13 NO. DESCRIPTION TENDERED ADMITTED VOL. 14 1 Stipulation 75 76 1 I 15 3-7 Judgment & Sent. 131 131 1

I 16 17 8-10

1 Pen Packets

Plea Papers 126

138 127

138 1

I 21 22 I 23 24 25

SUMMER TANNER, CSR, RPR 252nd District Court I -- 5

1··· I

1-\. 1

2 (OPEN COURT, DEFENDANT PRESENT, NO JURY)

THE BAILIFF: All rise. 252nd District

3 Court is now in session. The Honorable Layne Walker 4 presiding. ~-- 5 THE COURT: Thank y'all. Please be

1-- 6 seated. Is everybody ready?

7 MR. THOMAS: Ready. I just had one

1- 8 question, Judge: How y'all want to handle the reading 9 of the indictment? You have to read the two that he's

10 pled true to? Do you want to read the first part about

~--- 11 intoxication first and then enter a plea and then the

- -/-· · -. 12 two enhancement paragraphs and he can plea to that two

1 ·... __ .... ~ 13 separate times? 14 THE COURT: Yes, sir. Is he going to plea I 15 true7 Is there a stipulation?

16 I 17 before, Your Honor. MR. DESMARAIS: We've already stipulated

I 18 THE COURT: That's what I want to make

19 sure of.

20 MR. THOMAS: I think I need to read it for

21 the -.-

22 THE COURT: I understand. I guess the

23 question is what if he stands up and says they are not

24 true? I 25 MR. THOMAS: Then we would go forward with

I SUMMER TANNER, CSR., RPR 252nd District Court

( 1 the two priors. ~---''-- 2 TH~ COURT: Okay.

~--- 3 MR. DESMARAIS: We stipulated. I don't

4 know why you have to read them. They are not gbing to ~--- 5 make a decision on them. There's no jury decision, so

1-- 6 there's no reason to let them know we stipulated to the 7 two priors. ~--- 8 MR. KNAUTH: I'd be concerned about the

9 jury instructions.

I 10 THE COURT: I think he's right about that.

11 MR. THOMAS: Last time in the charge you I 12 had instructed the jury that he'd pled true to two I ~: - 13 priors. 14 THE COURT: Right.

1 15 MR. THOMAS: Is that -- you can do that

16 again. I 17 THE COURT: I -- yeah, I think you have

I 18 to. 19 MR. THOMAS: Right, to get the -- I 20 that's -- essentially just read this first paragraph?

21 THE COURT: I'd just read the first I 22 paragraph. And let the record reflect that the

I 23 defendant has stipulated to the jurisdictional 24 enhancements and agrees that he was convicted of those I( __:_,, ·· ...... - 25 offenses. Is that the case, Mr. Desmarais?

1-- r''"' I \_ 1 MR. DESMARAIS: I think that's the way we

2 have to do it. If the Court decides to read the two

I 3 4 enhancements, he'll plea true to them.

THE COURT: We will go on the first ~-- 5 paragraph. 6 MR. THOMAS: Yes, sir. ~-- 7 THE COURT: We're ready.

1- 8 (JURY ENTERS COU~TROOM)

9 THE COURT: Good morning to you. ~-- 10 THE JURY: (Response)

I- 11 THE COURT: 12 members of the jury are present. Let the record reflect all

-/···· The defendant is

I ....,,.. -.· 13 present, along with his attorney. At this time, would

14 you each raise your right hand for me please. I 15 (JURY SWORN)

II 16 17 ready to proceed? THE COURT: Jury's sworn. Is the State

II 18 MR. THOMAS: We are, Your Honor.

19 THE COURT: Defense ready to proceed? I 20 MR. DESMARAIS: Defense is ready. Hold on

I 21 22 just so I can switch the seat.

THE COURT: You got it. Mr. Thomas, you

I 23 can read the indictment.

24 Would the defendant stand for the I 25 reading of the indictment?

I 1- 8

1-- I _ -' I 1 THE DEFENDANT: (Standing) ~-. 2 MR. THOMAS: (Reading): In the name and

1-- 3 by the authority of the State of Texas, the Grand 4 Jurors for the County of Jefferson, State aforesaid, ~--- 5 duly organized as such at the July Term, A.D., 2009, in 6 the Criminal District Court of Jefferson County, in ~--- 7 said County and State, upon oath in said Court, present ~-- 8 that Carl Matthew Bellotti, III a/k/a Carl Mathew

9 Bellotti, III a/k/a Carl Mathew Bellotti a/k/a Carl I -- 10 Matthew Belotti, III a/k/a Carl Mathew Belotti, III,

~-- 11 hereafter styled the defendant, on or about the 21st 12 day of September, 2008, and anterior to the presentment

I ........... 13 of this indictment, in the County of Jefferson, State

14 of Texas, did then and there operate a motor vehicle in I 15 a public place while the defendant was intoxicated, 16 against the peace and dignity of the State. It's I 17 signed by the foreperson of Grand Jury.

I 18 THE COURT: Mr. Bellotti, to the

19 indictment, do you enter into a plea of not guilty or I 20 guilty?

21 I 22 THE DEFENDANT: THE COURT: Okay. Not guilty. You may be seated.

I 23 Does the State desire to make an opening statement?

24 MR. THOMAS: No, sir. I 25 THE COURT: Okay. Call your first

I SUMMER TANNER, CSR, RPR 2.52nd District Court

I I- 9

1- I

(_ 1 witness. ~---·. 2 MR. THOMAS: We would call Aelisa Sanders.

1- 3 THE COURT: Aelisa Sanders.

4 (WITNESS ENTERS COURTROOM) 1- 5 MR. THOMAS: I'm tendering a copy of her

I- 6 7 statement to Counsel. (WITNESS ENTERS COURTROOM)

1- 8 TH~ COURT: Good morning. Will you raise

9 your right hand for me, please. ~-- 10 (WITNESS SWORN)

11 THE COURT: Come on up and have a seat, I 12 please. Watch your step. ,' --

I 13 You may proceed.

14 MR. THOMAS: Thank you, Your Honor. I 15 AELISA SANDERS,

16 having first been duly sworn, testified as follows: I 17 DIRECT EXAMINATION

I 18 BY MR. THOMAS:

19 Q. Mrs. Sanders, would you state your full name I 20 for the ladies and gentlemen of the jury?

21 A. I 22 Q. Aelisa F., as in Fay, Sanders.

And, Mrs. Sanders, do you work for a living?

I 23 A. No, I do not.

24 Q. Okay. And where do you live? I 25 A. I live in north Vidor --

I 10

1 Q. Okay. 2 A. Texas.

3 Q. Do you have some relatives or did you have

4 relatives that had a home here in Jefferson County, 5 Texas? 6 A. Yes. 7 Q. Who was that? 8 A. My mother.

9 Q. And where was that located at? 10 A. In Groves. 11 Q. Okay. 12 A. On 32nd. 13 Q. Back on September 21st, 2008, were you at your 14 mother's home that day? 15 A. Yes.

16 Q. What time of day were you at your mother's 17 home?

18 A. I was there all day -- 19 Q. Okay.

20 A. -- until

21 Q. Why were you over there at your mother's

22 house? 23 A. We were cleaning up after a stor~ for her. 24 Q. I think was that a.fter Hurricane Ike, one 25 of the hurricanes?

------- 1--- 11

1- lj·_. 1 A. Yes. Yes. The house was okay. Yard was 2 horrible.

~-- 3 Q. Okay. And, so, sometime after this storm,

4 you're cleaning up your mother's yard; is that correct? ~-- 5 A. Correct.

1- 6

7 Q. A. And your mother's home is located in Groves? Uh-huh.

1- 8 Q. Is that a "yes"?

9 A. Yes. I'm sorry. "Ye·s." ~-- 10 Q. That's all right. Now, as you're working in

~-- 11 your mother's yard, did something unusual happen? 12 A. Yes, it did.

I '• 13 Q. And about what time of the day was that? 14 A. Ugh, 5:00, 5:30, somewhere around there. I 15 Q. Was it still daylight?

16 A. Yes. I 17 Q. Well, what happened that was unusual?

I 18 A. Well, urn, screeching of tires, you know, and

19 look up and see a a small truck go off the road and I 20 go into the ditch nosedive in the ditch.

I 21 22 Q. house? Okay. Was that in front of your mother's

I 23 A. Yes. 24 Q. Kinda in her yard? I ,. \ 25 A. If it would have gone to the left, it would

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 12

I __c-- 1 have been her yard, yes. I 2 Q. Okay.

I- 3 A. But it -- uh-huh.

4 Q. You were out there in the yard working when I- 5 this occurred; right? 6 A. Correct. I 7 Q. And what first got your attention, the

I 8 9 screeching of the tires?

A. The noise, uh-huh. Yes, sir.

I 10 Q. And you see the truck go into the ditch?

11 A. Yes. As I was turning, it was in the process I 12 of -- in the ditch, yes. ,..--" ~~

I 13 Q. Okay.

14 what did you do? After that truck went into the ditch,

I 15 A. I hollered for my husband to come around the

16 house so that he could take charge of my two I 17 grandchildren I had with me in the front yard.

I 18 Q. Okay. And what did you do after that?

19 A. I ran across the street to see if the person

I 20 needed assistance of any kind.

21 Q. Was the person still behind the wheal of the I 22 car when you got there?

I 23 A. Yes.

24 Q. And what were they doing? l_c·· 25 A. Ugh, staring.

I ( 1 Q. What do you mean? Describe for us what you

I 2 mean by "staring."

~-- 3 A. Urn, was not frantic, just a -- what I would

4 describe as, maybe, hesitating to see what happened. 1- 5 Just sitting.

I- 6 Q. Okay. Did he just sit there or did he

7 eventually get out or what happened? 8 A. I knocked on the window. Eventually rolled it I 9 down, asked if they were hurt, if they needed any kind

I 10 of assistance. And first thing that was said was just,

11 Don't call the police. Don't call the police. I 12 But something was not right. (

I \

' 13 14 Q. A. What was not right?

With the way the person was acting, I didn't

I 15 know if maybe the way the truck went in if they hit

16 their head or what. Ugh, real slurred speech, not I 17 really knowing exactly where they were or what had

I 18 happened. Yeah, eventually did get out of the truck.

19 Q. Okay. So, how many people were in the truck?

I 20 A. One.

21 Q. And was it male, female? I 22 A. Male.

I 23 Q. The person that got out of the truck, do you

24 see him in the courtroom today? l_c · 25 A. Yes, sir.

I 1- 14

1-- ( 1 Q. Point to him and describe what he's wearing 1---· 2 for us, please.

1- 3 A. (Pointing) He's right to my right. He's got

4 a blue tie and I guess that's a green khaki-colored ~-- 5 suit and a white shirt.

1- 6 7 MR. THOMAS:

she's identified the de£endant. I'd ask the record reflect

8 THE COURT: The record will so indicate.

9 Q. ( BY MR . THOMAS ) : So, when he rolled the 1- 10 window down, the first thing he said was, Don't call ~-- 11 the police?

12 A. Yeah. It was kind of in the process of me --- __ ,.--, __

I 13 asking, Are you okay, did you hit your head -- it's 14 just common questions, I guess, you would ask. I 15 And it he kept shaking his head and

16 wouldn't really look at me but, Don't call the police. I 17 Don't call the police. Because I was asking if he waB '

I 18 hurt. 19 Q. And you said he eventually -- then he got out I 20 of the truck?

I 21 22 A. Q. Uh-huh.

What happened when he got out of the truck?

I 23 A. Staggery, just kept saying, What happened. I

24 need to get my truck out. What happened? Didn't

25 really make any sense.

I 1- 15

I ! \, 1 And I just continue~ to ask if he was I .... "• .... ··

2 okay, if he needed any -- you know, an ambulance. It

1- 3 registered, but it didn't. It was just kinda like I

4 wasn't there. Stumbling, leaned propped against the

I 5 truck. He couldn't hold himself up very well. He

I. 6 7 s t umb 1 e d i f he tried to w a l k . Q. Okay. Did you see any evidence that he'd been

I 8 hurt -- 9 A. No. ~-- 10 Q. -- like a knot on the head? 11 A. No, I did not. I 12 Q. Blood "

I ' ............ · 13 A. No . 14 Q. -- scratches, anything like that? I 15 A. No.

16 Q. Did you come to any conclusions about the I 17 man's condition?

I 18 A. Yes.

19 Q. What did you conclude? I 20 A. In my mind, I thought he was drunk.

21 I 22 Q. A. Okay.

I would say sloppy drunk.

I 23 Q. Okay. He was not able to hold himself up?

24 A. No. He never fell to the ground. I _\_ 25 Q. Okay.

I 16

1-- I·.( 1 A. But very stumbly, holding on and grasping for

2 things, and then he just learied against his truck. 3 Q. Did -- did you -- did you or your husband or

4 someone call the police?

I 5 A. Yeah. I did.

6 Q. And the police eventually carne to where you I 7 were at? I. 8 A. Yes.

9 Q. I guess when the police got there they took ~-- 10 charge of the situation?

1- 11 A. Correct. Uh-huh.

12 Q. Did you have any more conversations with the ... ...

I ,.~~~-

13 man after he got out? You noticed he was trying to

14 suppnrt himself on the truck. Did you have any more I 15 conversations with him before the police got there? 16 A. I 17 Basically occasionally, Are you okay?

are you going? Where

I 18 He said he was going horne. He said,

19 Right down the road. I 20 I said, Where do you live.

I 21 22 And I Something to the effect of Port Neches.

knew we weren't in Port Neches.

I 23 Q. Okay.

24 A. Said he'd just got off of work. He said he I 25 worked on a -- offshore, and just something like that,

I 1-· 17

1- c·· I·-- 1 nothing --- but he did try to flag down cars.

2 Q. That's what I was just fixing to ask you.

I 3 4 A. Q. Uh-huh.

Tell me about that.

I 5 A. Well, he'd stumbled out, and I'd tell him,

1- / 6 7 Come back over here, you know, Don't get in the road. come back over here.

~-- 8 Trying to get somebody to pull him out.

9 Q. Okay. ~-- 10 A. A couple cars did stop --

11 Q. Okay. I 12 A. -- but nobody -- he just kept saying, I need ....

I '· -.~-. 13 to get my truck out. I need to get my truck out. 14 Q. No one -- no one pulled him out? I 15 A. Oh, no. No.

16 Q. And did the police department then eventually I 17 come to your scene?

I 18 A. Right! 19 Q. To that location? I 20 A. Uh-huh.

I 21 22 Honor. MR. THOMAS: I pass the witness, Your

I 23 THE COURT: Mr. Desmarais?

24 CROSS-EXAMINATION I 25 BY MR . DESMARAIS :

I I I I I I I I I I I I I I I I I I I I 1-- 18

1- 1--c-.- 1 2 Q. A. Good morning, Mrs. Sanders.

Good morning.

1--- 3 Q. Your mother's house was across the stxeet from

4 him? 1·-·· 5 A. Correct.

6 Q. Okay. So, there was an intersection, and he 1- 7 was in --when you say ditch, you're talking about a ~-- 8 drainage culvert -- culvert? 9 A. It was a ditch. 1- 10 Q. Grass-filled?

~-- 11 A. No. It was kinda steep. It wasn't one of 12 these great big ditches because the streets are very · .. ~--~- 13 narrow, but it was -- fuy mother's house -- and here 14 is -- can I do my hands? ~-- 15 Q. Sure.

I 16 17 A. 32nd runs this way (indicat£ng). side street right here (indicating). There's a

I 18 Q. And that's --

19 A. And my mother's hou~e is here {indicating). I 20 There's not a side street where my mother's house is.

I 21 The side street actually goes into her driveway. It's

22 a crossover.

I 23 Q. Okay. And he was taking a right turn onto the

24 side street? I __ t\ 25 A. I don't think he was turning.

I SUMMER TANNER, CSR, RPR 252nd District Court I 1·-- 19

1-- {·-- 1 Q. Was he traveling on 35 -- 32nd Street? ~--'-···· 2 A. Right.

1··-- 3 Q. Okay. And then when he went off the thing

1___ 4 that he werit off -- the ditch off the intersection,

5 Kleespies Street?

~-· 6 A. Yes. That's right here (indicating) on this

7 corner. But it wasn't like he was making a turn. He 1···- 8 went straight into the ditch -- hit the stop sign and 9 he nosed into 1- 10 Q. W~en you say "straight into the ditch," did he

1·-- 11 cross over the ditch -- how wide is the ditch? 12 A. I don't know. Normal ditch. I don't I

1··-~·~:-·- 13 don't know what --two feet, three feet? I don't know. 14 Q. So, you had your back to him. Your mot.her's I 15 yard, ho~ far offset is her house from there?

16 A. It's not far. I 17 It's enough for two cars to pass. The road is an older town road.

The ditches ar~ not

I 18 wide, and it's just right there. 19 Q. Okay. But it is across the street -- I 20 A. Correct.

I 21 22 Q. A. -- parallel to 32nd?

Uh-huh.

I 23 Q. Did you make a .statement to the police?

24 A. Yes. l_r ·-··· 25 Q. Okay. Do you remember when you made that

I ·------------~---·------ --·-----· 1--- 20

•..•.. ,

I _ _(_ _ .- 1 statement?

2 A. Uh-huh. Yes, sir.

3 Q. And that was on the 25th of December --

4 September? 1- 5 A. I believe it was the 21st.

~-­ 6 Q. Did you ever sign a statement?

7 A. Yes. ~-- 8 Q. Okay. And you signed that on the 25th of

9 September? ~-- 10 A. 21st, I believe.

11 MR. DESMARAIS: May I approach the I 12 witness? !'-------. I \ ·. .. - ~ 13 THE COURT: Yes, sir.

14 Q. (BY MR. DESMARAIS): Let me show you this I 15 document.

I 16 17 A. Q. I could be wrong.

If you want to read it just to re£resh your

I 18 memory. 19 A. Oh, okay. 25th. Okay. That's what it says I 20 at the top. Oh, it happened on the 21st.

I 21 Q. So, on the 25th, you ~ent down to the police

22 station to give another statement?

I 23 A. I don't remember. I don't thipk I went to the 24 police station. I 25 Q. Did they come to your place --

I SUMMER TANNER, CSR, RPR 252nd District Court I 1- 21

1-- l __ I l .. _ .· " 1 A. I talked to the police officer that day.

2 Q. When they -- let me see if I can make this

1- 3 clear. When did you sign the statement -- you signed

4 it on the 25th. Where did you sign it? ~-- 5 A. I made the statement to the officer there

1- 6 after the accident. 7 Q. Okay. ~-- 8 A. And I signed what he had. When I made my

I -- 9

10 statement,

Q. I signed it.

So, there's another statement out there, a

11 handwritten statement? I 12 A. It was on the form that they gave me. r·--···. I 13 MR. DESMARAIS: Your Honor, I'd like the 14 prosecution to provide that handwritten statement or I 15 the form statement.

16 MR. THOMAS: (Tendering) I 17 Q. (BY MR. DESMARAIS): Do you remember signing

I 18 the typewritten statement?

19 A. If my signature's on there, I signed tt. I 20 Q. Okay. The question is do you remember doing

21 I 22 it?

A. I don't -- yes. I know I signed my

I 23 statements.

24 Q. Right now we have two statements. I ..J. ( 25 A. Okay .

I ~--- 22

1- Q. .~ 1 A handwritten one and a typed one.

2 A. Are they the same?

~-- 3 Q. Do you remember signing

4 A. Yes. ~-·- 5 Q. -- both of them? 6 A. Yes, I do. I 7 Q. Okay.

I 8 9 A. Q. I remember signing, yes.

One was given on the 21st at 5:22.

I 10 A .• Okay.

11 Q. One was given on the 25th. We don't know what I 12 time. Do you agree so far? ;-'

I '· 13 14 A. If it's there, it was, yes. Q. Okay. Now, in the statement you gave to the

I 15 police officer, you -- he asked you questions; you 16 answered them? I 17 A. No. He asked what happened --

I 18 Q. Okay. And then --

19 A. and I told him. I 20 Q. told him what happened?

21 A. I 22 Q. Correct.

And then he wrote it all down on this thing,

I 23 and then he asked you to sign it; correct?

24 A. I _ (. 25 Q. No. I believe I

This is your handwriting? wrote it.

I__ SUMMER TANNER, CSR, RPR 252nd District Court

I 1- 23

IL ' 1 A. Right.

2 MR. DESMARAIS: May I approach again, Your

1- 3 4 Honor?

THE COURT: Yes, sir. I -- 5 A. Let me see.

~-~- 6 Q. (BY MR. DESMARAIS}: (Tendering} 7 A. This has been awhile back. A lot has happened ~-- 8 since then.

9 No. I stated that. I did not write

I 10 that. That's not my handwriting. 11 Q. So, the policeman wrote this, showed it to I 12 you, probably, and said, Is this what happened, and you --~t-~-- .

I 13 said, Yes, and signed it; correct? 14 A. Yes. I told him -- he didn't write what he I 15 wanted. I told him what happened. 16 Q. Okay. That's fair. I 17 And then at some point he went down ahd

I 18 he provided you with a typewritten statement, had you

19 review it and asked you to sign it on the 25th? I 20 A. Again, I don't remember. It's been awhile. A

I 21 22 lot has happened since then, but if it's typed and my signature is on it, I signed it. No one came to my

I 23 house.

24 Q. Okay. When you approached the car, was the I 25 car running?

I 24

1 A. I don't remember. 2 Q. You said the window was up?

~-- 3 A. Correct.

4 Q. Was it a hot day that day? I- 5 A. I don't remember.

1··-· 6 Q. Okay. When he opened up the window, could you 7 fee.l the air-condition?

8 A. I don't remember that. I was more concerned 9 that he was hurt.

I 10 Q. Did you help him out of the car? 11 A. No, I did not. 12 Q. At any time did you touch him?

13 A. No, I did not. 14 Q. Did you make the police the call to the I 15 Groves Police before you crossed the street or after 16 you had gotten to his car? I 17 A. Let me think. The best I can remember, I

I 18 believe I asked if he was okay and then called.

19 Q. Say again. I 20 A. I believe to the best of my memory I went

I 21 directly and asked if he was okay 22 Q. Okay.

I 23 A. ~nd called at that time. 24 Q. At the time you're asking him if he was okay?

25 A. Well, I stepped off.

SUMMER TANNER, CSR, RPR 252nd District Court 1-- 25 ~---

I \._.- ( 1 Q. And your husband stayed at -- 2 A. He was in the yard.

1- 3 Q. your mother's house?

4 A. Uh-huh. ~-- 5 Q. He never approached the car? 6 A. No. ~-- 7 Q. Did he make any statements on the scene? ~-- 8 A. My husband?

9 Q. Yes.

I 10 A. No. 11 Q. Did the police officer ever approach him to I 12 ask him what he saw.?

I ~ ... ___ .. 13 A. No.

14 Q. Was he in the front yard or was he around thB

I 15 back?

16 A. He was around the back. I 17 Q. Okay. Was your mother there?

I 18 A. No.

19 Q. Anybody else approach? I. 20 A. Sorry?

21 Q. I 22 A. Any other neighbors -- No.

I 23 Q. there? Was there any work crews on that

I /' ( 24

25 street that day?

A. Yes, sir.

I - - - - - - - - - --·--··--·--·-- ~-- 26 ~--·

1 Q. Where was the work crew? I 2 A. Urn, not far in front of ~- or past the street

~-- 3 that he went in the ditch.

4 Q. When you say -- he was heading east or west? ~-- 5 A. I -- I don't know my directions very well. Q. have -- 1··-- 6 Okay. I

7 A. He was heading towards the main street. I

I 8 don't know what street it even is. 9 highway, heading the other way. Not toward the

I 10 Q. Well, let's make it simple. You're in front 11 of your mother's house? I 12 A. Correct. I :·_- 13 Q. The street is catty-corner or directly across

14 from your mother's?

1 15 A. Directly across from her driveway.

16 Q. All right. And he's pointing to the left side I 17 or to the right side?

I 18 A. I'm my mother's house. He's coming this way

19 (indicating). I 20 Q. So, he's go1ng from your right to left? 21 A. Yes. I 22 Q. Okay. Where were -- where were the workmen?

I 23 A. My left.

24 Q. To your left. How far down the road? l_t '~' . .· . 25 A. If he had not hit the d~tch, a couple seconds

I_ SUMMER TANNER, CSR, RPR 252nd District Court

I ~-- 27

1·-·· 1 later he would have hit the workmen; they were that It 2 close. 3 Q. They were a hundred feet down?

4 A. They were close. I don't know how many feet, I- 5 but ugh, two car lengths, maybe. 6 Q. They were down two car lengths? I 7 A. Maybe.

8 Q. Did they have any cones down? I 9 A. Yes.

I 10 Q. And the cones, that's where you're saying they

11 were down two car lengths? The cones start at two car I 12 lengths down?

I ::·~·-·, 13 A. No. The actual work vehicle -- I don't know

14 what they were doing, but it was some type of maybe

I 15 electrical truck that they use with the lift. It was

16 there. They are doing some type of work. I 17 Q. Okay.

I 18 A. And ·the cones were off the back, toward where

19 he hit the ditch, so they weren't far. The -- from the

I 20 corner to the back of the work truck, maybe, was two

21 car lengths. I 22 Q. So, 28 feet, 30 feet?

I 23 A. I don't know. I don't know. 24 Q. Were they off the road or on the road? I_J.. 25 A. The workmen?

I 28

( 1 Q. (Nodding head up and down) ~--- .. 2 A. On the road. They had to be -- 3 Q. I mean, was the truck parked on the road, or I 4 was it parked off in the grass? ~-- 5 A. No. 6 Q. Off the road. So, it was right in the middle 1 7 of the road closing down the lane? 8 A. It was in the lane, yes. You could still pass I 9 in the other lane.

I 10 Q. And you say he stopped several cars. How many

11 cars did he try to attempt to stop? I 12 A. Two that I remember.

I ·~- 13 Q. And were they going towards the trucks or away 14 from the truck?

I 15 A. Toward.

16 Q. Toward. And just -- I 17 A. Like where he came from.

I 18 Q. So, he just tried to wave them down and say

19 give me a hand? I 20 A. He was stumbling in the road and hollering, 21 Stop, stop. I need my truck out. I 22 But it wasn't -- it was slurry, and he

I 23 was not ... 24 Q. Now, in this first statement you made, you I 25 never mentioned the fact -- you never said that he was

I 1- 29

1- 1__(,_ .' 1 slurring his words or he was stumbling around or he

2 tried to stop any traffic; is that correct?

1- 3 A. I don't know. It's there in front of you. I

4 don ' t know . ~-- 5 MR. DESMARAIS: May I approach, again, 6 Your Honor? ~-- 7 THE COURT: Yes, sir.

I 8 9 Q. review it (BY MR. DESMARAIS):

(tendering). If you'll just read that,

I 10 A. That's basically at the time hurried and 11 nervous and whatever was going on. That's what

12 Q. Okay. About him being blank-faced and not

13 paying attention to you when you first went to the 14 thing, that's not in this first statement either, i_s I 15 it?

16 A. No. I 17 Q. Now, in your second statement, made four days

I 18 later, you say he stumbled around and tried and 19 attempted to stop cars? I 20 A. That's true.

21 Q. Okay. Stumbled around through traffic. There I 22 were two cars that passed him?

23 A. No, sir. Two cars that turned down the little

24 side street that he was able to stop. 25 Q. So, he did stop cars?

I 30

~- ....... .. --~

( 1 A. They slow-rolled. They didn't want to stop. ~--c ..

2 A man was just about to fall into their car and

~-· 3 hollering, "stop," so, they stopped.

4 Q. So, he was never on 32? He was -- ~-­ 5 A. No. 6 Q. -- on the side street? ~-· 7 A. No. Because I kinda stood anci said, Don't get

8 on this road. I 9 But he was trying -- because he wanted to

I 10 stop a car. He kept saying, Don't call the police. 11 And I said, The police are on their way. I 12 The ambulance is on the way. ~-~~~---- 13 Q. The ambulance is on its way. Dici you call an

14 ambulance?

I 15 A. I just called 911 and they said, Is the person

16 hurt. Well, I didn't know. I 17 Q. Right.

I 18 A. 19 ambulance -- Tha~'s a normal response, usually an

I 20 Q. And that's what you told whoever took the 911

21 call? I 22 A. Yeah. I couldn't say if he was hurt.

I 23 Q. Did they say they would send an ambulance?

24 A. They said help's on the way. I(. 25 Q. After you made this cali,' how long was it that

I I- 31

I-- - \ i 1 you that the first policeman arrived? I ..

2 A. Oh, not very long. Ugh, I don't know. Five,

1- 3 ten minutes at the longest. 4 but it was not very long. I don't really remember,

1- 5 Q. Okay. Did any other vehicles arrive on the 6 scene? ~-­ 7 A. A police car and a police SUV of some type. ~-- 8 They weren't both patrol cars, but they were both 9 police vehicles. ~-- 10 Q. So, two different policemen? 11 A. Uh-huh, yes. I 12 Q. Did they arrive at the same time or did I /, 13 they -- 14 A. Directly after each other.

I 15 Q. Did the wrecker arrive at the same time? 16 A. The who? I 17 Q. The wrecker, the tow truck?

I 18 A. I I don't remember if they drove up at the 19 same time. I don't know. I 20 Q. Did you see any skid marks?

21 A. At the time, no. I 22 person. I was concerned with the

I 23 Q. Okay. I understand. 24 How damaged was the front of the truck? I 25 A. I didn't go around to see.

I · - - · - - - - --··------··-···-------------··· .. 1-- 32

1·- l_c. I . 1 Q. So, you didn't see that?

2 A. Stop sign was down.

~-- 3 Q. When you say "down," was it just laying right

4 down in front or was it pulling away or -- 1- 5 A. It wasn't pulled out of the ground, but it was 6 (indicating) -- 7 Q. Flat on the ground or

8 A. Not all the way down. It was angled -- 9 Q. Angled. ~--- 10 A. -- close to the ground. It was angled close

~--­ 11 to· the ground.

12 Q. Now, you testified that he ~- you smelt ~-:--.-~--. 13 alcohol? 14 A. That I smelled alcohol? I 15 Q. (Nodding head up and down)

16 A. When did I testify to that? I 17 Q. He asked you if -- you said that they we.uld -- I 18 he had -- you smelt alcohol on him? 19 A. I didn't say I smelt alcohol. I said -- I 20 Q. Did you smell -- I 21 22 A. Q. -- I -- Did you smell alcohol?

I 23 A. No, I did not. I didn't get that close. 24 Q. Okay. So, when you were t1P at the window and I( --'·· 25 he was right in front of ye.u, you smelt no alcohol?

I SUMMER TANNER, CSR, RPR 252nd District Court I 33

( 1 A. I -- I don't get that close to a person. I ~--, 2 don't know.

1- 3 4 Q. Understandable.

So, my question is you at no time sme.lt ~-- 5 any alcohol? 6 A. I did not, no. I 7 Q. . Did you see the size of his eyes?

8 A. The size of his eyes? I 9 Q. Yes. I meC~.n, you said you thought he was

I 10 intoxicated?

11 A. Yes. I 12 Q. Okay. You smelt no alcohol on him?

I < __ - 13 A. Correct.

14 Q. So, did you think 11.e was on drugs?

I 15 A. First thing that came to my mind is he looks

16 like he's drunk -- sloppy drunk. I 17 Q. That's the first thing that came to your mind?

I 18 19 A. Q. After he said he was okay.

Okay.

I 20 A. Of course, you always wonder if they hit their

21 head, whatever. I 22 Q. Correct.

I 23 Did you see any evidence o£ him having

24 drUgs in his system or being drugged? I_~ 25 A. I -- I couldn't say that.

I_ SUMMER TANNER, CSR, RPR 252nd District Cotirt

I 1-- 34

1·-· l_i·. . 1 Q. So, you would have no experience seeing people

2 that are under the influence of any type of drugs?

~-- 3 A. Medication. I don't -- I don't know what

4 you ' r e as king . ~-·· 5 Q. He looked like he had been under medication? 6 A. He looked drunk to me. ~-- 7 Q. Okay. When you say "drunk," you smelt no

1 8

9 alcohol?

A. Correct.

I 10 Q. Okay. Did he look like he could have had an 11 injury? I 12 A. No, not to me. I --

I :c ....: 13 Q. Wasn't that your first reaction, you didn't

14 know whether he had hit his head or had an injury?

I 15 A. I asked him if he hit his head. He said no.

16 Q. O.kay. I 17 A. I saw no evidence that he -- I can't be 100

I 18 percent sure of any of it becaus~ I had no testing

19 equipment. I hadn't -- I'm not a doctor. I don't I 20 know.

21 MR. DESMARAIS: Pass the witness. I 22 rHE COURT: Mr. Thomas?

I 23 MR. THOMAS: I have no further questions 24 of this witness, Your Honor. I 25 THE COURT: Ma'am, you can step down.

I 1- 35

1--- IJ 1

2 THE WITNESS:

MR. DESMARAIS: May I say one thing?

Objection, Your Honor.

1- 3 THE COURT: Can she step down?

4 MR. THOMAS: Yes, sir.

5 THE COURT: Is she free to go?

~--- 6 MR. THOMAS: She is. May she be excused? 7 THE COURT: Yes, sir. Any objection to 1- 8 that, Mr. Desmarais?

9 MR. DESMARAIS: (Pause) ~-- 10 THE COURT: Wayne, have them stay out in

1- 11 the hall.

--__ .- - . ,. 12 MR. DESMARAIS: At this time, I don't

1 ·,

.......... ~ -- . 13 believe I'm going to call her back . I may want to call 14 her back. I 15 THE COURT: Is she not free to go? 16 I 17 at this time. MR. DESMARAIS: Not excused, Your Honor,

I 18 THE COURT: Okay. Just bave her wait out 19 in the hall. Who's your next witness, please? I 20 MR. ~HOMAS: Kevin White, Your Honor.

I 21 22 THE COURT: Who?

MR. THOMAS: Kevin White.

I 23 THE BAILIFF: Your Honor, may I approach? 24 THE COURT: Yes, sir. I ( 25 (WITNESS ENTERS COURTROOM)

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 36

I- 1 MR. DESMARAIS: May I approach, Your 1- 2 Hono.t? May I approach?

~-·- 3 THE COURT: Yes, ~ir.

4 MR. DESMARAIS: May I approach?

5 THE COURT: Yes, sir. 6 (AT THE BENCH, ON THE RECORD)

7 MR. DESMARAIS: Why was Mr. Bellotti

8 THE COURT: We'll deal with that later.

9 (OPEN COURT, DEFENDANT AND JURY PRESENT)

10 THE COURT: Raise your right hand, please.

11 (WITNESS SWORN) I 12 THE COURT: Thank you, sir. Please have a

1-::~: 13 seat. 14 MR. THOMAS: Your Honor, I'm tendering a

I 15 copy of his report to Counsel (tendering).

16 THE COURT: Okay. The record will so I 17 reflect .. You may proceed.

I 18 MR. THOMAS: Thank you, Your Honor.

19 KEVIN RUSSELL WHITE,

I 20 having first been duly sworn, testified as follows:

21 DIRECT EXAMINATION I 22 BY MR. THOMAS:

I 23 Q. Would you state your na~e for the ladies and 24 gentlemen of the jury?

25 A. Yes. Kevin Russell White.

SUMMER TANNER, CSR, RPR 252nd District Court I- 37

I-·- 1··-(_ 1 O. And what did you used to do for a living?

2 A. I was a Groves Police Sergeant. I retired in

1-- 3 December of 1 09.

4 Q. How long were you with Groves Police 1-- 5 Department?

6 A. I initially hired with Groves in November of 7 2003 -- ~--· 8 Q. And prior to that? 9 A. -~ six, seven years. Before that, I was ~-- 10 Beaumont Police Department for several years. I worked

1- 11 up in the Dallas area for several years. I was a

12 Houston police officer. Altogether about 23, 24 years

1 -1/--:· .••

'--· . 13 in law enforcement.

~-- 14 Q. Then after you retired in 2009, you did an 15 overseas adventure. What did you do?

1 16 17 A. I was a -- working for the US Army as a

counterinsurgency investigator.

I 18 Q. Okay. And you're home now? 19 A. Yes. I 20 Q. Okay. Back on September 21st, 2008, you were

I 21 still working for the Groves Police Department at that 22 time; is that correct? I 23 A. That 1 s correct. 24 I ,-~ 25 Q. And on September 21st, 2008, what were the

circumstances in Southeast Texas during that time?

I SUMMER TANNER, CSR, RPR 252nd District Court I · · · - - - ··------···--- ---- 1-- 38

1·- 1 A. Well, we were dealing with the aftermath 0£ 1·-- ..· 2 Hurricane Ike.

1- 3 Q. Okay. And on that day in particular, was that

4 the day that the evacuation order had been lifted? 1--- 5 A. Yeah. I believe it was effective at midnight.

1·- 6 7 If I remember right,

Q. Okay. it was Sunday.

8 A. So, people we~e starting to flow back in.

9 Q. Okay. On September 21st, 2008, did you get a I- 10 call in referenee to a true~ driving into a ditch? ~---- 11 A. Yes, I did. 12 Q. And where was that ~~ supposedly take place

1 --_.~---. ' .

'~- ¥ 13 at?

~--- 14 A. The 5200 block of 32nd Street in the city of

15 Groves, Jefferson County, Texas.

1 16 17 Q. A. And when you got that call, what did you do?

I responded. I think I left from the station.

I 18 Q. Did you go straight to that location?

19 A. Yes, I did. I 20 Q. When you got to that location, what did you

I 21 see? 22 A. I -- as I pulled up, there was a I 23 maroon-colored Ford Ranger pickup truck that'd driven 24 off into a ditch traveling westbound on 32nd Street. I _j 25 So, it was in the ditch on the north side of the

I SUMMER TANNER, CSR, RPR 252nd District Court I ··--------------- I- 39

I-- IJ 1

2 street. And then there was a gentleman standing

outside the truck.

~-- 3 Q. Okay. The person that was standing outside

4 the truck, do you see him in the courtroom today? 5 A. Yes, I do. 6 Q. Point to him and describe what he's wearing. 7 A. (Pointing) Gentleman seated here in the ~-- 8 brownish-colored jacket -- suit coat. 9 MR. THOMAS: I'd ask the record reflect ~-- 10 he's identified the defendant.

1- 11 THE COURT: The record wi.ll so indicate. 12 Q. - .,.-.· . (BY MR. THOMAS): Do you remember about where

1 ··-., .. ··· 13 he was standing when you got there when you £irst saw 14 him? I 15 A. I want to say it was on the driver's side

16 probably towards the rear of the pickup truck. I 17 Q. What did you do when you got there?

I 18 A. I pulled up behind, turned on my emergency 19 light~, stepped out and approached him. I 20 Q. When you approached him, what took place?

I 21 A. I asked him if he was the driver of the truck 22 in the ditch, and I asked him what happen~d.

I 23 Q. Did he -- d~d he say he was the driver?

24 A. No. 25 Q. Did he say anything?

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 40

I- 1-C 1 A. 2 the only reply No. Just asked him general questions.

I got out of him was he thought he was About

1- 3 in Port Neches.

4 Q. When, in fact, he's in Groves? ~-­ 5 A. Correct.

~--- 6 Q. So, you're asking him a series of questions,

7 and he's really not answering any of them? I- 8 A. That's correct.

9 Q. What did you notice about his condition? ~--- 10 A. I noticed he was having a lot of problems with

~-- 11 his balance, and I detected a very strong odor of 12 alcohol about his person.

I 13 Q. He'd been drinking? 14 A. Yes, in my opinion. I 15 Q. You've made DWI arrests, ran into some people

I 16 that are intoxicated before? 17 A. Several.

I 18 Q. You know what to -- you know what an

19 intoxicated person looks like; right? I 20 A. Yes.

I 21 Q. Was this individual -- he's intoxicated on

22 that day?

24 Q. You smelled an odor of alcohol about his I _j -... ·- 25 person; is that correct?

I SUMMER TANNER, CSR, RPR 252nd District Court I 1-- 41

1--· 1·-( 1 A. That's correct.

What else did you notice about his condition? 2 Q.

1·- 3 A. Speech was very garbled, very hard to

4 understand when he did talk, just wasn't making sense. 1-·· 5 He wasn't coherent. Again, he was having a lot of

~--- 6 problems with his balance. I actually truck was Off

7 in a ditch. It's got a shoulder. The road wasn't ~-- 8 necessarily real level there, so I had asked him .to

9 step out into the level portion of the road with the 1- 10 intention of doing some field sobriety tests; but as I

~--- 11 walked him in that directi&n, I had to actually hold

-,. . ._ ,. 12 onto his arm because I felt like he was about to fall

1 '•, . -. 13 down. 14 Q. Did you do some field sobriety tests with l)im? I 15 A. No, I did not.

I 16 17 Q. A. Why not?

Because I just felt like in my opinion the

I 18 level of intoxication was obvious, and 1 just thought

19 that these tests -- he was going to fall down, and it I 20 would have probably resulted in more injury to him and

I ~

21 just general difficulties. So, I just made a

22 determination that I already had enough evidence that I 23 he was under the influence of alcohol, and I placed him

24 under arrest. I --i . ·~ . 25 Q. During this time you're having to support him

I SUMMER TANNER, CSR, RPR 252nd District Court I 1---- 42 1-- 1--(__ . 1 physically?

2 A. Correct.

3 MR. DESMARAIS: Sorry, Your Honor. I

4 didn't hear that. Can he repeat that question? I 5 Q. (BY MR. THOMAS) I said you had to support him

~---- 6 physically. And you answered yes?

7 A. Yes. 1-~ 8 Q. You put him in your patrol car, or did you do

9 something else with him? ~--- 10 A. No. Actually, he went in another officer -- ~--- 11 Deputy Ph~llips arrived on the scene, and I put him in

-- 12 Deputy Phillips's vehicle. 1 ,,..,--..

\, 13 Q. I got you.

14 Descri~e for me the scene, the -- kinda I 15 the street where the truck is wrecked. Describe for

I 16 us, if you would, what that looked like. 17 A. Okay. It was late afternoon. 32nd Street's a

I 18 two very narrow two-lane paved street coming off

19 Twin City Highway in the vicinity of the H-E-B grocery I 20 store. There was a work crew. I believe it was a

I 21 power line crew that was out there removing storm 22 debris. They had a flagman up, they had trucks and I 23 cones out. They had yellow amber lights flashing on

24 the trucks. They pretty much had the entire ~estbound I __J I 25 lane going towards 32nd Street blocked. And he had ··~ .. ~

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 43 I-- .~(· 1 gone off in the ditch, as I recollect, probably les.s 2 than 50 yards away from the -- from the last truck in

~-- 3 the line.

4 Q. Did it appear he was traveling toward those ~-- 5 work trucks when he went into the ditch?

~--·- 6 A. Yes, because the vehicle was clearly had

7 been traveling westbound, dropped off in the ditch

1- 8 still facing the westbound direction. And it's a very

9 deep ditch. When the vehicle went off, it was ~-- 10 basically -- it was at a good angle. 11 Q. But there was still room for a person to pass I 12 around the side of those work crews; is that correct?

I /.

13 A. Yeah. That's why the flagman was out there.

14 He was directing people around going into the incoming I 15 lane.

16 I 17 Q. I guess the first concern I have is,

the possibility this individual was maybe just hurt in is what's

I 18 the wreck? Did you see any evidence that he was

19 injured in any way in the wreck? I 20 A. I didn't observe any physical injuries on him,

I 21 and it didn't seem that the -- there was any real

22 damage to the truck that would suggest the impact with

I 23 the ditch was that great.

24 Q. Sometimes you see on the windshield -- when a I -~ 25 person goes forward, they'll hit the~r head on the

I SUMMER TANNER, CSR, RPR 252nd District Court I I 44 1-- 1 windshield. Any evidence on the steering wheel -- I 2 A. There was no evidence like that.

1- 3 Q. Sometimes, you know, maybe you can tell a

4 person banged their head on the steering wheel. Did 1- 5 you see anything like that'?

1- 6 7 A. I observed no physical injuries at all. was just staggering and basically incoherent. He

1- 8 Q. This street that he was driving on, is that a

9 public place? 1- 10 A. Yes., it is.

1- 11 Q. Public highway?

12 A. It's a public highway. .. .·· I .. ... 13 Q. And that truck's a motor vehicle; correct?

14 A. Correct. I 15 Q. And this took place here in Jefferson County,

I 16 Texas ; is that correct ? 17 A. That's correct.

I 18 Q. During your investigation, did you learn this

19 individual's name to be Carl Matthew Bellotti? I 20 A. Yes, I did.

I 21 22 Q. You said Deputy Phillips transported him.

Where did he transport him to?

I 23 A. Took him back to the Groves Police Station. 24 Q. Now, is that routine with an intoxicated I 25 person?

I SUMMER TANNER, CSR, RPR 252nd District Court I 1- 45

1-· ( 1 A. It's 50/50. A lot of times we'll bring them I ... !>.,

2 back to our station and do paperwork and then we take ~--- 3 them up to the County Jail to do the rest of processing

4 there. In this particular case, because of the ~-- 5 hurricane, the County Jail on Highway 69 was not 6 available. It had been damaged in the hurricana. ~-- 7 Everybody was coming to downtown Beaumont to the old

1- 8 jail. So, the entire process with prisoners had to be

9 revamped. We -- we basically were doing all the 1- 10 paperwork in Groves and then just transporting them 11 with the paperwork, because they really had no place at I 12 the jail up here for ~s to sit down and do our ·-- ,~-d ....

I ' ...... __ ~> .• 13 paperwork.

14 Q. Normally with an intoxicated person, a person I 15 arrested for driving while intoxicated, would be to

16 proceed -- to take them to the Mid-County jail to I 17 videotape them in the jail

19 Q. -~ offer a Breathalyzer test, things like I 20 that?

21 A. Yes. I 22 But the main County Jail on Highway 69

is equipped with what they call DWI rooms, and they're

I 23 equipped with the video cameras, they're marked out to

24 do the field sobriety tests, and it's just where we go I -·-\ I { .. -- 25 to do our standardized processing. Also, we usually

I SUMMER TANNER, CSR, RPR 252nd District Court I I· 46

I 1 have somebody there to operate the Intoxilyzer machine, IC 2 a trained deputy.

1- 3 Q. None of that's available that day?

4 A. None of it was aVailable. ~-- 5 Q. So, you you were not able to offer him a

6 breath test; is that correct? ~-- 7 A. That's correct.

I. 8 Q. Did you offer him an opportunity for any other 9 sort of testing?

I 10 A. Yes, I did.

11 Q. What did you offer him? I 12 A. The only other option is blood test. /1

\ 13 Q. When you asked him to provide a sample of his 14 b 1 o o d, w.h at did he t e 11 you? I 15 A. "No."

16 Q. If he would have wanted to have given a blood I 17 test, what would you have done to have obtained a

I 18 sample of blood?

19 A. Would have taken him -- I believe Renaissance I 20 Hospital had reopened by then, so I would have taken

I 21 him over to the emergency room at Renaissance Hospital, 22 and a certified lab tech would have drawn his blood for

I 23 us.

24 But he didn't want that to happen? I 25 That's correct.

I 1-·· 47

1-- 1 Q. Did you ask him that before or after he was 1-C 2 transported to the Groves police station? 1-- 3 A. After I got back. Deputy Phillips

4 transported. I stayed on scene for about 20, 30 I- 5 minutes waiting on a wrecker. I went back to the

6 station and started my paperwork, and that was part of I·-- 7 the paperwork.

1- 8 Q. When you first got back -- or first got to the

9 Groves station, was Carl Bellotti already at the 10 station when you got there?

11 A. Yes. He was seated in -- it doubles as a 12 patrol room, and it's also our area where we bring

13 prisoners. It has a bench there that's set up to put

I- 14 15 the prisoners on.

I walked in. So, he was seated on the bench when

I 16 17 Q. And when you walked in, he's seated on the

bench, what was he doing?

I 18 A. Sleeping.

19 Q. When you get back to the Groves station, could I 20 you still smell the odor of alcohol about his person?

I 21 A. Yes. It was strong.

22 Q. While there, while processing your paperwork, I 23 that's when you do the procedure where you ask him if

24 he wanted to provide a sample of blood? I 25 A. Yes.

I SUMMER TANNER, CSR, RPR 252nd District Court I 1-- 48

1·- 1··( 1

2 Q. There's no -- there's no DWI room at the

Groves police station?

1-- 3 A. That's correct.

4 Q. Am I -- I get the feeling after this

5 hurricane, law enforcement, other first responders are

~-- 6. kinda working on the fly what to do -- do in certain 7 situations; is that correct? 1. 8 A. Yeah. We all sustained damage. We had damage

9 at City Hall and at the police department. We were ~-····

10 running on a generator. We had water in the building.

~-- 11 Everything was disorganized.

-- .-·-. . 12 Q. Because of that, you were not able to take and

1 I \ \, _____ ... · 13 do a video of Mr. Bellotti that day?

~--· 14 A. That's correct.

15 Q. Officer White, in your opinion, on September

I 16 17 21st,

A. 2008,

Yes. was Carl Bellotti intoxicated?

I 18 Q. Did he have any busin~ss opB.rating a motor

19 vehicle? I 20 A. No.

I 21 MR. THOMAS: I pass the witness, Your

22 Honor.

24 CROSS-EXAMINATION I 25 BY MR. DESMARAIS:

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 49

I-· ( 1 Q. Good morning, sir. 1·--"' ... 2 A. Good morning.

1··- 3 Q. Were you at the station at that time when the

4 call came in? ~-- 5 A. I was either at the station or en route to the

6 station from my home. We have take-home vehicles. 1'' 7 Like, normally we come on shift about -- my shift would

8 normally start at six o'clock at night; but because I'm 9 a supervisor, I go in a little early. So, it's not ~---

10 uncommon if a call is dropping at that time of day and

~--- 11 I'm available, or a night shift officer is available,

· -. .- - · . 12 we ~ould take the call so that the day shift officers

1 . .

''·~~-··· ·_:· .' 13 don't have to handle it. 14 Q. So, that day you were just begtnning your I 15 shift?

16 I 17 A.,

Q. That's correct.

And you got a call -- 911 called or you -- or

I 18 dispatch called you and said -- 19 A. Well, it came generally through the police I 20 dispatch. I don't know if it was a 911 call or not.

I 21 22 Q. correct? Okay. All you have on one call is hit record;

I 23 A. Correct.

24 Q. Okay. Was the 911 recording equipment I J. 25 working?

I 1--· 50

1-·- 1 A. ·-C 2 To the best of my knowledge, but that's at the

police dispatch in Nederland that we -- we share a

1- 3 police dispatch center here; Nederland, Port Neches and

4 Groves. ~--- 5 Q. Okay. So, there -- there's possibly a tape of

1··- 6 that 911 call?

7 A. It's possible. ~-- 8 Q. Did Nederland Police Department have power by

9 that time? ~--- 10 A. They e~thar run on City power or they were off

1- 11 of generators just like us. I honestly don't remember.

--/,·----.. 12 Power was coming on throughout the county, but ...

1 ·............... _ ~. 13 Q. When you say you were on a generator, what

14 size generator? Is this one of these commercial I 15 generators? 16 A. I 17 It's a large commercial generator that they

had installed at City Hall. It runs all of City Hall.

I 18 But when we're on it, we have to conserve power. We

19 can't have eve~ything running. We can't have computers I 20 up and running and so forth.

I 21 Q. Well, this was on a Sunday.

22 the police department, So, other than

was any part of City Hall open?

24 Q. They were doing business I / I •. c ••\... 25 A. There were people therei because, again, we

I SUMMER TANNER, CSR, RPR 252nd District Court I 1- 51

1- 1 were in emergency, operations, so the entire city staff IJ~ 2 was working 24 hours.

~-- 3 Q. Okay. And this was, you say, the day that

4 they lifted the evacuation? 5 A. Yeah. I -- again, if I remember right, the

1- 6 7 evacuation was either lifted midnight or maybe that morning at 6:00 in the morning. I -- it was the first ~--- 8 day that people were coming back into the area. 9 Q. And the hurricane had happened a week before? 10 A. Approximately a week. I forget the exact day. 11 Q. So, the hurricane h.ad happened like Friday -- 12 the Friday night -- week ago Friday?

13 A. That sounds right, yeah. 14 Q. And people had been coming back into Groves I 15 all week long? 16 A. Not officially well, I mean, some people I 17 were authorized to come in because we have -- at that

I 18 time, they had the -~ I forget what we were calling it, 19 but some people were authorized. They set up a system I 20 where people had-- their driver's licenses were

I 21 stamped, and they were -- for example, at one bf the

22 plants, if they were considered key personnel, they

I 23 were allowed back in. But the general public wasn't

24 allowed back in. Now, you know as well as I do that we I 25 don't necessarily enforce htirricane evacuations in

I 52

1- IJ 1

2 Texas.

Q. Right.

~-- 3 A. So, I'd say 25 -~ 20 to 25 percent of the

4 population was back in Groves. ~-- 5 Q. In fact, probably that many never even left or

6 evacuated? 7 A. Yeah. That was a problem during Hurricane

8 Ike. 9 Q. A lot of people that never evacuated. Traffic

I 10 was pretty normal?

11 A. Exactly. I 12 Q. And when was power restored in Groves?

1 --~~---.

'• .. , : . • 13 A. I honestly can't remember. I mean, I live in

14 Groves. I want to say. it came on probably within ten

I 15 days or so of landfall. 16 Q. Because I lived in Port Neches, and my power I 17 came on that Friday

I 18 A. Yeah. 19 Q. -- Saturday morning.

I 20 A. And~ again, it was staggered. It was coming

21 on -- I remember complaining because two streets down I 22 from ~e they had power for two days before I had power.

I 23 Q. But how about the police station?

24 A. We probably carne on relatively early because 25 it's normal to try to get the power up at the City H~ll

I 1-- 53

1·-- 1 and whatnot. I remember we were still on a generator 1 2 that day. Maybe the power had came on that night or

1- 3 4 following day.

Q. Do you have security cameras in the police ~-·- 5 station? 6 A. The one in the patrol room is -- it's ~-- 7 installed there, but it hasn't worked well, I ~-­ 8 haven't been in there since 2009, but it hadn't been

9 working for about a year. ~--- 10 Q. Do you have security cameras outside the

~--- 11 police station?

-(···-. 12 A. No, not in Groves.

1 ........ _< ___ • 13 Q. So, the only security camera you had was in

14 the patrol room -- I 15 A. They have

16 Q. -- and it wasn't working? I 17 A. It's not a security camera. It was installed

I 18 there for interviews and whatnot, but it hasn't worked

19 ih I 20 Q. It didn't work?

21 A. I 22 Q. No. It hasn't worked in probably --

Did you have -- I 23 A. -- two or three years. They were talking

24 about getting a new system when I left there. I ---\ ... i 25 Q. . Did you have any handheld video cameras as

I 1-- 54

1--,,.· 1 part of your equipment? 1·-~-- 2 A. No.

1-- 3 Q. Did you have any cameras -- regular, digital

4 cameras? 5 A. Yeah, we had cameras. 6 Q. Okay. Did you have a flat enough floor and ~-­ 7 space to perform your roadside tests? ~--- 8 A. At the station?

9 Q. Yes. ~--- 10 A. The floor is flat enough, but it's a small

1- 11 room. 12 computers. It's got the patrol desk there with the

It's just not for somebody-- if I feel ~--:__--.~ 13 like they're going to fall down, I'm not going to do it 14 in there because we've had -- we've had people fall in I 15 that room and suffer injuries.

16 Q. And you couldn't do it out in the hallway? I 17 A. No, not sa£ely. Not at that time, because we

I 18 had stuff stacked up in the hallway, and, like I said, 19 we had water in the building. We still had -- there I 20 were still parts of the building 21 I Q. So, there's no place in this whole building

22 where you're saying the whole staff of City Hall and I 23 the police were coming in, that was long enough to do a 24 ten-pace walking? 25 A. Oh, I'm sure there was. Again, though, it's

I 1-- 55

1-- I-L- 1 just like what I said at the scene that his condition

2 was such that I just felt like if I asked him to do his

l- 3 field sobrieties he was going to fall down and injure 4 himself. ~-- 5 Q. So, you never asked him to do field sobriety?

1-· 6 7 A. Q. No.

Did you call out an ambulance on the scene?

8 A. No, I did not.

9 Q. Now, one of the field sobriety tests was the 1- 10 HGN test?

1- 11 12 A. Q. Correct. You're familiar with that? ,.~

I 13 A. Yes, I am.

14 Q. And he was standing there? I 15 A. Yes.

16 Q. And you could have done that test, couldn't I 17 you have?

I 18 A. Again, he was staggering all over the place.

19 I don't think -- I don't think he would have done it. I 20 I don't think I could have gotten the instructions

I 21 across to him. 22 with. It was the circumstances I was dealing

He just was not coherent.

I 23 Q. At no point did he stand still, are you

24 telling me? I ~ --- ''--._, 25 A. He was moving around, and.he was staggering

I 1·-- 56

1--- / 1 about. At one point, he almost fell in the ditch. In ~--\ 2 fact, when I went to handcuff him, we both almost went

~-- 3 into the ditch. 4 Q. Okay. We'll get to that in ·a minute. ~-- 5 So, you're telling me he's staggering all

1- 6 7 around you, and you were trying to talk to him? A. Yes. The whole time -- I- 8 Q. And he didn't do anything?

9 A. The whole time I'm trying to talk to him, he's

I 10 just moving about. 11 Q. And you're following him around? I 12 A. Well, it wasn't like we were covering several 1-:--- 13 yards, but we were basically doing a circle. 14 Q. And at no point did you say, okay when you I 15 first carne in, you said he was standing up against the.

16 truck. I 17 A. Right.

I 18 Q. Okay. So, he was stationary?

19 A. He was leaning against his truck. I 20 Q. Okay. He was stationary?

I 21 22 A. Q. Right.

And at that point you couldn't go up, say, Get

I 23 stationary again, and let me give you the HGN test?

24 A. I t .. ·---', .. Well, we were -- when we are talking to him

25 and interviewing him, we ask him to step away. We

I 1- 57

1- IJ_ ~

1 don't let them lean against their truck. The moment :t

2 had him step away from his truck, he was staggering and

1- 3 nearly falling down. I was literally reaching and

4 holding him by the arm the whole time I was talking to ~--­ 5 him. 6 Q. The whole time? ~-- 7 A. Yes. 8 Q. Now, at .some point, did you ask for his

9 license?

I 10 A. I don't know if I specifically asked him for

11 it or if I just found it on him when I -- when I I 12 searched him. ~--:--: 13 Q. So, you did a pat down on him?

14 A. I searched him after his arrest.

I 15 Q. How about his insurance card?

16 A. It would have been in the truck in the glove I 17 box.

I 18 Q. In fact, you asked him to get his insurance

19 and his license, and he got into the truck and got his I 20 insurance card for you; correct?

21 A. I 22 Not that I recall.

recall that I would have In fact, I -- I don't that I did ask that, but

I 23 I'd be very surprised if I did because the way the

24 truck was sitting on the side of the road. He was I __.- ... 25 Q. You didn't ask him to provide a license, so

I 58

1- I_L_ 1 you didn't ask him to provide any insurance?

2 A. I don't recall asking him for his insurance ~--- 3 card. I may have asked him for his driver's license.

4 Q. Did he provide it to you? 1- 5 A. I honestly don't remember if he provided it or 6 if I found it on my own. 7 Q. Did you handcuff him or did Officer Phillips ~---- 8 handcuff him? 9 A. As I recollect, I placed the handcuffs on him 10 just about the time Officer Phillips was pulling up,

11 and then I searched him, handed him off to Of£icer 12 Phillips.

13 Q. Did you call Officer Phillips to the scene? 14 A. I think he was dispatched once he checked I 15 into -- ~hecked into service.

16 Q. Okay. Did you call them back to ask him to do I 17 it?

I 18 A. To do what? I'm sorry.

19 Q. To send somebody else out? I 20 A.. I may have directed dispatch to send another

I 21 22 officer because, again, I'm the supervisor, so I'm not

supposed to necessarily be getting tied up on stuff.

I 23 So, I honestly don't recall if I told dispatch to send

24 him or they just sent him. 25 Q. Now, he arrived at about the same t~me you did

SUMMER TANNER, CSR, RPR 252nd District Court 1- 59

1- 1_ \( 1 or how much longer after you were there?

2 A. No. He was several minutes, probably at least

I 3 five, maybe as much as ten minutes later. 4 dispatched -- I was

I- 5 Q. He came in, and what were you doing at the

I- 6 7 time when he arrived?

A. As I recall, I was in the process of placing

I- 8 him under arrest, putting handcu£fs on him when Officer

9 Phillips pulled up.

I 10 Q. Okay. Did you at any point sit him down in

11 your car? I 12 A. In my vehicle?

1- :~ 1·3 Q. Yes.

14 A. I don't believe so. I'm-- best that I I 15 remember is we walked him straight -- I remember

16 telling Phillips, Let's put him in your car, take h.im I 17 back to P.O.

I 18 Q. So, for ten minutes, he's stagging, falling

19 around -- according to you -- you're chasing him I 20 around, asking him .questions. Then Detective Phillips

I 21 comes up and you say, Here, take him and put him in the

22 car? I 23 A. Right.

24 Q. At what point did you ask Mrs. Sanders for a I 25 statement?

I SUMMER TANNER; CSR, RPR 252nd District Court

I 1- 60

1-(-·. 1 A. That was after -- after Deputy Phillips got ~---- 2 there and left the scene.

I. 3 Q. Okay. And at no time did you ~ay that he --

4 you asked him for his card or his license? I 5 A. I don't remember asking him. Again, I may

1-- 6 have. I don't remember. I know I got his driver's

7 license off him because I remember running a check on

I 8 9 his driver's license.

Q. After you put the cuffs on him, did you lean

I 10 him over and pat him down? 11 A. I'm spre I did. I 12 Q. Did you find any drugs on him? ···. >-~·

I '""-... .... · 13 14 A. No. Q. Okay. Any prescription drugs on him?

I 15 A. I don't remember if I did or not.

16 Q. Did you write it down in your r.eport or I 17 would you have written it down in your report?

I 18 A. If I found drugs on him? 19 Q. (Nodding head up and down) I 20 A. Yeah, it would ha~e been indicated in ~y

21 report. I 22 Q. So, if it's not included in your report, then

I 23 you didn't?.

24 A. I would say no, I didn't find them, because I ,. . \ 25 I'm sure I would have -- even if they were

I 1- 61

I- 1 prescriptions prescribed to him, I'm sure I would have I 2 noted them in my report.

~-- 3 Q. Did you do a search of the vehicle? 4 A. Yes.

5 Q. Did you find any evidence o£ any drugs in

6 there? 7 A. No, I did not.

8 Q. Did you find any evidence of alcohol?

9 A. No, I did not.

I 10 Q. Now, you went off and -- why didn't you 11 transport him down to the police st;ation? I 12 A. Because I knew I was going to be on the scene -·

I '·. 13 for several more minutes waiting on a wrecker. I knew

14 that I had to take a stat~ment from Mrs. Sanders. I 15 Q. When did the wrecker arrive?

16 A. Probably within 15 to 20 minutes. I 17 Q. When you got there or when?

I 18 A. From when I called for it. So, at one point,

19 I called for it. They have 20 minutes to respond. I 20 Q. So, you're saying they got there 20 minutes

I 21 22 after you called for them?

A. Could have been a little sooneri but probably

I 23 no later than 20 minutes.

24 Q. When did you call for it?

25 A. Probably within about 15 minutes of being on

I 1--. 62

1·- 1 scene . So , pro b a b 1 y around 5 : 4 0 , 5 : 45 . I c 2 Q. Now, you say you asked him regular questions.

I 3 So, as you approached him, you don't

4 you asked him for his insurance and license. reme~ber whether

Did you

I 5 ask him where he was coming from?

1-- 6 7 A. Q. Yes.

Did he know the answe-r?

I 8 A. No.

1.. 9 10 Q. A. He didn't know where he was coming from?

The only answer he -- only answer that he

11 supplied to me was that he was on his way back to Port I 12 Neches. /,···

I \. 13 Q. Did ·he know his name? Did you ask him his ·~--·

14 name? I 15 A. Whether I asked him or not, I don't honestly

16 remember. At some point, I got his driver's license I 17 with his name op it.

I 18 Q. And then you said -- did you ask him where he

19 was going? I 20 A. Yes.

I 21 22 Q. A. And he couldn't answer that, you said? No.. He said he was going to Port Neches. He

I 23 said he was in Port Neches. He was going to his home

24 in Port Neches. I 25 Q. But he didn't answer you where he was coming

I 1-·- 63 I- 1 from? I 2 A. No, he did not.

~-- 3 Q. Did he tell you why he was there, where he was

4 heading; and you -- 1. . 5 A. No. 6 Q. Did he tell you where he lived? I 7 A. I don't think he gave me a specific address.

I 8 9 I r~member he just said he lived in Port Neches. Q. So, you asked him that question, also?

I 10 A. I either asked it or he volunteered it.

11 Q. Did you ask him what happened? I (,· · . 12 A. Yes. That was one of the first things I asked

I .......... 13 when I walked up: Ar~ you the driver and what

14 happened. I 15 Q. And he knew that he was the driver?

16 A. No. I 17 question. Didn't give me a response to either

I 1.8 Q. You testified that he said that he had been 19 the driver. I 20 A. Huh?

I 21 22 Q. A. You testified

No. No, I didn't. I didn't.

I 23 Q. So, he didn't answer you. He didn't know that 24 he was the driver of the vehicle? I 25 A. No.

I SUMMER TANNER, CSR, RPR 252nd Distritt Court

I I- 64

I-· 1 Q. According to you.

2 So, he knew where he was going, but he

1- 3 didn't know where he was coming from or he didn't

4 answer you? 1. . . 5 A. Again, the only answer that he provided was,

~-­ 6 I'm in Port Neches, and I'm on my way back home to 7 Port Neches. ~-­ 8 Q. But you asked him where he's -- 9 A. I asked, Do you know where you're at. ~-- 10 Port Neches.

11 Q. Now, in the ten minutes, how did you secure I 12 him?

1 --:,···. .. 13 A. Handcuffs behind his back . 14 Q. Well, you said that you were handcuffing him I 15 when Officer Phillips came. Officer Phillips arrived

16 ten minutes after you did on the scene. For that I 17 ten-minute period-- according to you, he's stumbling

I 18 around~ falling around, he's a danger -- how did you 19 secure him for that ten minutes? I 20 A. Again, I was talking to him and holding him by

I 21 one arm. 22 At some point, I finally decided I'm just placing you under arrest for drunk dr±ving

I 23 Q. And what point --

24 A. -~ and that's when I handcuffed him. I say I( ---·\ .... 25 ten minutes. It may have been five minutes. It's hard

I 65

~-·

c···.· 1 to -- you're out there dealing with it, time goes by ~--···-·-··

2 fast or slow. It was no more -- or no less than five,

3 no more than ten minutes after I was on scene.

4 Q. As part of your paperwork, when you got

I 5 back -- withdraw that question. 6 When you said, You're under arrest, at

I 7 that point did you Mirandize him?

8 A. At that point, no. I 9 Q. Okay. At what point did you Mirandiz.e him?

I 10 A. At the station.

11 Q. So, did Officer Phillips Mirandize him? I ~-- .. ~· ··~ 12 A. You'd have to ask Officer Phillips, but I

I~ ....... _ . 13 don't believe he would have . 14 Q. Okay. So, he's in the cuffs. You put him in

I 15 the car, and you said, You're under arrest. You

16 haven't Mirandized him yet. How long between the time I 17 that he left the scene and you got back to the police

I 18 19 station?

A. No more than 30 minutes.

I 20 Q. So, 30 minutes? Less than 30 minutes?

21 A. I would say that I was -- again, 30 minutes I 22 25, 30 minutes at the most.

I 23 Q. Then you go in, you wake him up?

24 A. {Nodding head up and down)

25 Q. Was he lying down on the bench flat on the

L SUMMER TANNER, CSR, RPR 252nd District Court

I ~-- 66'

1- 1 bench? .-C 2 A. No. He was sitting slumped over on the bench.

~-- 3 Q. When you say "slumped over," leaning forward?

4 A. No. Leaning against the wall. The bench is

I 5 seated the bench is up against the back wall. It

6 sits in a corner so that you can move to one side of I 7 the bench and you can --

I 8 9 Q. A. So, he wasn't slumped. He was leaning back?

Leaning back or leaning to the side, as I

I 10 remember him.

11 Q. Well, which one was he? I 12 A. Probably both. I remember he was sitting in I :~-- . 13 the very corner of the bench. And, again, the corner

14 of the bench is in the corner of the ~alls where two

I 15 walls come together so you can lean ~ith your head

16 against the wall. I 17 Q. Okay. Do you have an interview table in that

I 18 room? Do you have a table in that room?

19 A. No, not for interviews.

I 20 Q. Do you have a table in the room?

21 A. Yeah. There's a large table with computers on I 22 it the officers sit at to do their work.

I 23 Q. Okay. And you have chairs around that?

24 A. Office chairs. I _ _( 25 Q. You already had another person in custody in

I 1- 67

1 the police station at that t.ime, didn't ya?

2 A. I didn't. Maybe another officer did.

1-- 3 Q. Was there another person in custody at that

4 time? ~-- 5 A. I think that -- I can~t remember if it was day

1- 6 shift had somebody in there or one of my officers maybe 7 made an arrest during the same time frame. I remember ~-~­ 8 two prisoners were in there because two prisoners went 9 to jail that night. ~---- 10 Q. And is it possible that when you came in that

11 Mr. Bellotti was sitting on a chair at the table and

12 the other person was on the bench? 13 A. No. 14 Q. Was the other person sleeping on the bench? I 15 A. No.

16 Q. I 17 A. What was the other person doing on the bench?

I honestly don't remember. My focus was on

I 18 Mr. Bellotti. He was my prisoner. 19 Q. So, you woke him up? I 20 A. Yes.

I 21 22 Q. A. Then you Mirandized him?

Yes, part of standard DWI process.

I 23 Q. At this time were the cuffs in front of him or 24 behind him still? I .· _.. _\\ 25 A. I honestly don't remember. It's possible that

I SUMMER TANNER, CSR, RPR 252nd District Court I -- --------------------------------------------· 1-- 68

1- ,r

1_ _;. I 1 we would have moved the cuffs up front. Some officers

2 will do that once we get to the station. ~-- 3 Q. Now, you made a you write up reports;

4 correct? ~-- 5 A. Corr.ect.

~--- 6 Q. With all your experience, these reports are 7 supposed to be accurate?

9 A. Q. Uh-huh.

And complete?

I 10 A. Uh-huh. Yes.

11 Q. And you've made a hundred DWI arrests in your I 12 career

I ~~--~ ..... ·. 13 A. Yeah, at least. 14 Q. -- a hundred or so?

I 15 A. Between DWI's, public intoxication and other

16 alcohol-related arrests, well over a hundred. I 17 Q; So, writing reports and making them complete

I 18 and accurate and everything else is standard operating 19 procedure? I 20 A. Yes.

I 21 22 Q. Now, in your report you didn't write down

anyplace that you had to hold him up, did you?

I 23 A. I'd have to look at my report.

24 MR. DESMARAIS: May I approach, Your I ( '

·- ... 25 Honor?

I I- 69

I-- 1_\.( 1 THE COUR'I': Yes, sir.

2 Q• ( BY MR . DESMARAIS ) : (Tendering) If you will

1- 3 review this. 4 A. No, You can read it.

I did not specifically say I had to hold 1--· 5 him up in the report.

1··- 6

7 Q. In fact, in your report you said he wasn't able to perform any of the tests; is that correct? 8 A. That's correct.

9 Q. Nowhere did you say you didn't give it to him

10 because you were afraid he was going to injure himself?

~-- 11 A. That's the wording. I mean, maybe I could 12 have worded it better, but that's what I intended was -/'' "--. 1 ' '··-·· .· 13 he was just physically unable to perform any test.

~---- 14 Q. He never performed any test. You never asked 15 him to perform any test; is that correct? 16 A. That's correct. I 17 Q. So, you didn't know whether he was able to or

I 18 not?

19 A. The man couldn't stand up on his own. These I 20 tests require you to stand still and not fall down. He

I 21 22 was falling down without even doing the test.

going to subject him to the te§t or §ubject myself to I wasn't

I 23 the test

24 Q. You didn't l_l. 25 A. -- to have

I 1- 70

l-- Ie! 1 2 Q. A. -- No, write that in your report

I did not. --

1-- 3 Q. Okay -- that he was falling down?

4 A. I indicated in the report that he was 1- 5 staggering about. 6 Q. 1--- At what point did you Mirandize him -- I want 7 to get back to that when you told him that he had 1_ _ 8 the right to remain silent, the right to have an 9 attorney? ~-- 10 A. It's part of the DWI paperwork. It's all part

~-- 11 of the process in there. When you read them the

12 Mirandize, then you read them -,_ there's a series of I /·--- 13 questions on the paperwork that follow.

1-- 14 15 Q. A. And do you have that paper that

I'm sure it's part of the --

I 16 17 Q. A. -- you gave him Mirandizing I don't have it. It should b~ in the

I 18 paperwork, the case --

19 Q. Are you talking about the statutory warning? I 20 A. Statutory

I 21 Q. Statutory warning? 22 A. The DIC-23is, -24, and the statutory warning's I 23 all

I --(. - __ _ 24 25 Q. Yes. I'm talking about the Miranda rights. Did you read them to him --

I SUMMER TANNER, CSR, RPR 252nd District Court I 1-·- 71 I- 1( 1

2 A. Q. Yes.

-- off the card?

1- 3 A. Yes. 4 Q. You didn't have him sign it? They don't sign ~--- 5 them?

~-- 6 A. No. There's nowhere on that form that they 7 sign it. ~-- 8 Q. Do you think he understood all his rights? 9 A. I wouldn't be able to answer that. I -- ~-- 10 again, the man was incoherent. So, chances are, he

~-- 11 didn't, but .•. 12 Q. So, at this time, he's still incoherent?

1 13 A. He was highly intoxicated is the answer -- 14 Q. I didn't ask that, sir. I 15 A. Okay.

16 I 17 Q. incoherent? At this time, you're saying he was still

I 18 A. Right. 19 Q. He didn't understand his Miranda right.s, I 20 you're saying, in your opinion?

I 21 22 A. for sure. Whether he understood them or not, I can't say

I 23 Q. Did you ask, "Do you understand these rights"? 24 A. Yes, I did. lj ··-···· 25 Q. Did he answer you?

I SUMMER TA~NER, CSR, RPR 252nd District Court I 1-- 72 1-- I_(. 1 A. I don't remembe~ his specific response. I'm 2 certain it wasn't a no, but just because somebody nods ~-- 3 the i.r head 11 yes 11 or says 11 yes 11 when they're in that

4 state of intoxication doesn't necessarily mean that ~-- 5 they're understanding them.

1·- 6 7 Q. He indicated that he understood his r~ghts;

correct? ~--·· 8 A. He probably did. I don't know. It's in my 9 report ~---

10 Q. You're the arresting officer. Are the Miranda 1. 11 rights rather important to get? 12 A. Yes.

I 13 Q. Okay. Now you're saying the statutory 14 warnings. Did you read this document to him, or did I 15 you have him read it? 16 I 17 A. Q. I read it. I read it to him.

And you filled it all out complete?

I 18 A. Complete.

19 Q. And there are some things which you don't fill I 20 out because?

I 21 A. Some things aren't always applicable. 22 Q. Physi.cal description, if he was licensed? I 23 A. Correct.

24 Q. Because you had gotten his license at this 25 time?

I SUMMER TANNER, CSR, RPR 252nd District Court I 1--- 73

1-- 1 A. Right. 1-·-( - --- 2 Q. So, did you give his license back to him?

~--- 3 A. No.

4 Q. So, you read him all the statutory warnings? 1- 5 A. That's correct. 6 Q. In your opinion, did he understand them? ~-- 7 A. He acknowledged them. Whether he actually ~-- 8 understood them or not, again, I can't say. 9 Q. So, these, he acknowledged (indicating)? 1- 10 A. Yes.

~--- 11 Q. In the statutory warnings, he does not have a 12 right to have an attorney before he signs th.is; is that

I /

....... ·' 13 correct?

14 A. That's correct. I 15 Q. So, you just tell the man he has a right to

16 an attorney, he has the right to remain silent, and I 17 then you read him a dodument that says, well, you don't

I 18 have a right to an attorney, and you don't have to 19 remain silent as far as the test goes, but -- and you I 20 think he understood that? He acknowledged that he

I 21 22 understood the difference? A. He signed the paperwork acknowledging that he

I 23 understood that statutory warning. 24 Q. Actually, he didn't sign the paperwork. I,~-\.,.... 25 A. Okay. I would have to look at the form. Did

I SUMMER TANNER, CSR, RPR 252nd District Court I 1-- 74

1·- 1· -(·. . . .. 1 he refuse to sign it? It is possible. It's been since

2 2008.

~--· 3 Q. Is th,is the copy (tendering)?

4 A. Okay. I'm mistaken. He did. The subject ~-- 5 refused to allow the taking and further refused to sign

1·-· 6 below by the requesting officer. 7 Q. So, he refused to sign? ~-- 8 A. Correct.

9 Q. It's not mandatory to sign this; correct? ~--·

10 A. That's correct.

11 Q. You explained to him what -- why he's signing I 12 it; correct? ,.- ·-·._. I _,, .. -· 13 A. Correct.

14 Q. You think he understood it? I 15 A. I am not in h~s head. I don't know if he's

16 understanding it or not. I 17 Q. I'm asking your impression, sir. In your

I 18 opinion

19 A. Did he I 20 Q. -- did you feel comfortable, a£ter everything

I 21 22 you just read to him,

A. that he understood?

I think he understood what. he was under arrest

I 23 for. I think he understood what I was asking him to

24 do, which was to give a sample of his blood. I .(. 25 Q. So, he did have some understanding?

I SUMMER TANNER, CSR, RPR 252nd District Court I 1--- 75 ~-­

I_( 1 A. To that point, yes.

2 Q. Okay. Now, it's one part of your arrest, ~--- 3 when you brought him down to GEO 4 THE COURT: Let me interrupt you. We're ~--­ 5 going to take our morning break. We'll start back at

~-- 6 15 minutes until 11:00; that's 10:45. Remember the

7 instructions I gave you yesterday, and I'll see you

8 back here at 10:45. You're free to go. Everybody else

9 remain seated.

I 10 (JURY EXITS COURTROOM)

11 THE COURT: See y'all at 10:45. I 12 THE BAILIFF: All rise.

13 (RECESS FROM 10:26 A.M. TO 10:51 A.M.)

14 (OPEN COURT, DEFENDANT PRESENT, NO JURY)

15 THE BAILIFF: All rise.

16 THE COURT: Thank y'all. Please be

17 seated.

I 18 MR. THOMAS: Before we bring the jury iq,

19 I want to tender for the record that stipulation that's I 20 in the Court's file. Stipulation's in the record. I

I 21 22 think we did it yesterday, but I want to make sure.

THE COURT: Hand me that file.

I 23 MR. DESMARAIS: I have no objections to

24 him making sure of something ~e did yesterday. I,· 25 THE COURT: Are you offering it as State's

I ~---- 76

~---

( 1 1? ~--------·

2 MR. THOMAS: Yes, sir.

~-- 3 THE COURT: Is there any objection?

4 MR. DESMARAIS: No objection. ~-- 5 MR. KNAUTH: And it's -- 6 MR. THOMAS: Is it admitted? ~-- 7 THE COURT: Let's take a look at it and

8 just make sure. Mr. Desmarais, do you want to come up I 9 here and take a look at this? This is the agreement

I 10 that stipulates the two prior DWI convictions, and I'm

11 going to remove the Order. There's no reason for an 12 Order, and I think that will be a comment by me on the

13 weight of the evidence. Sa, if y'all don't have any

14 objection, I'll remove that.

I 15 MR. THOMAS: That's fine.

16 THE COURT: I'll hand that to you. You I 17 mark it.

I 18 MR. THOMAS: Yes, sir.

19 THE COURT: Did you want this in?

I 20 MR. DESMARAIS: No, sir.

21 THE COURT: I don't know why he had that I 22 Order with that, but I'm going to take it out.

I 23 Okay. Mr. Desmarais, State's tender

24 No. 1. Any objection to State's 1? I ___\ ~- 25 MR. DESMARAIS: No objections, Your Honor.

I I -- 77 ~---

I. ( ' 1 THE COURT: Okay. State's 1 will be

2 admitted.

~-- 3 (STATE'S EXHIBIT NQ. 1 ADMITTED)

4 THE COURT: And that's the agreement that 1- 5 stipulates to the two prior convictions. Okay. Are we

~-- .. 6 ready to go now?

7 MR. THOMAS: Yes, sir.

I 8 9 THE COURT:

MR. DESMARAIS: All right.

Could I We're ready.

I 10 THE COUR'I': Sir? Hang on. Hang on.

11 MR. DESMARAIS: Could I get a glass of I 12 water before we start? I /--_ 13 THE COURT: Why certainly. You can have 14 whatever you want, Mr. Desmarais. Ready. Norm, how I 15 much longer do you need him? 16 MR. DESMARAIS: Maybe half an hour, could I 17 be shorter.

I 18 THE COURT: Whatever. Just a guesstimate.

19 (JURY ENTERS COURTROOM) I 20 THE COURT: Let the record reflect all

I 21 members of the jury are present. 22 present, alOng with his attorney. The defendant is

Mr. Desmarais, the

I 23 witness is yours.

24 MR. DESMARAIS: Thank you, Your Honor.

25 Q. (BY MR. DESMARAIS): I may repeat myself just

SUMMER TANNER, CSR, RPR 252nd District Court 1---- 78

1·- I J ·, . 1 to review a couple o£ -- where I was last time. I ._ .

2 Now, the police -- the Jefferson County

1- 3 Jail facility, they were manned. They just didn't have

4 any prisoners; correct? ~--- 5 A. You're talking about the facility on 69 right

I. 6 now? 7 Q. Yes, sir. ~-- 8 A. I honestly don't know. \I just know it was ( 9 closed down during the hurricane. ~--·

10 Q. When -- yes, but this was a week after the

11 hurricane. Like you said, all law enforcement and all I 12 county, government, everybody -- everybody was working ,r···-..

I ......... ·· 13 24/7 trying to recover and everything else; correct? 14 A. Yeah. I 15 Q. So, they had personnel at the police statioh,

16 but they had moved the prisoners for security reasons. I 17 Is that a correct statement?

I 18 A. It's possible. I don't know.

19 Q. Did you check to see if that was the case? I 20 A. Well, I checked to see if the jail was open,

I 21 again. 22 1 was told no, we were still bringing them here

to Beaumont ..

I 23 Q. Who did you check with?

24 A. Through dispatch. So, dispatch would have I . -. .-l, '·· .. 25 called either here to the jail on 69 or --

I ~-- 79

1·- 1J.;_ 2 1 Q. So,

the jail's open? you specifically asked dispatch to see if

I -- 3 A. Yes.

4 Q. If anybody's down there?

5 A. Yes, sir. Q. 1'·- 6 7 A. You were driving an SUV?

Yes.

I- 8 Q. Did you have camera equipment installed?

9 A. No. I- 10 Q. You had no equipment installed, not that it

11 wasn't working? You had I · -"/·- . 12 A. Oh, I'm sorry. It was installed, but it

1 ··..... -· 13 hasn't worked. 14 Q. So, it wasn't working?

I 15 A. No, not in that vehicle.

16 Q. Okay. Officer Phillips, did he have camera I 17 equipment installed?

I 18 A. I honestly don't know because I don't remember

19 which vehicle he was driving. It's possible. You'd I 20 have to ask him.

I 21 22 Q. Okay. Let me ask a question:

vehicles did the Grove Police Department have at the How many

I 23 time? 24 A. 12 ve.hicles off the top of my head, eight,

25 nine, maybe ten; but at any given time, we have new

I 1- 80

~-- .---"'··. ( 1 vehicles coming in that haven't had the equipment 1-' \

2 installed yet. And at that timeframe, we just had

3 equipment that had broken down. We hadn't replaced it I 4 with new stuff. I- 5 Q. All right. On the 21st of September, 2008 -- 6 A. Right. 1-' 7 Q. ~- how many vehicles did the Groves Police 8 Department have? I 9 A. Again, off the top of my head I'd have to say

I 10 in patrol we probably had ten assigned to patrol, I 11 believe. I 12 Q. All right. I'll go with that. /

I ..... _... 13 14 A. Q. Yeah .

Of those ten, how many had video equipment

I 15 installed? '16 A. I -- I don't know. I wasn't in charge of I 17 vehicles, so I really never kept track. I mean, I'm

I 1B wanting to say that we actually had put a couple of

19 vehicles back into use for the hurricane that we had I 20 pulled off the line and then we put them back in use to

21 use during the hurricane. So, I know for a fact those I 22 didn't even have radios in them. We had a couple of

I 23 new vehicles that had come in from the -- from the

24 dealership that were !n the. process of having all the I i \. ....... · 25 equipment installed, and I think we put thQse on the

I 1--- 81

I .- \' 1 line to use during the hurricane, again, w~thout the I 2 radios and the, necessarily, VCR equipment. So, what

I 3 Phillips was driving that night, I don't remember.

4 Q. How long was your video equipment out? I 5 A. Oh, it'd been out for as long as I'd been

1- 6 driving that vehicle. 7 Q. How long is that?

I 8 A. Probably at that time -- let's see. It was a

9 Ford Expedition. 1- 10 I'd probably been driving it at least six months, maybe -- maybe six to eight months. It was ~--·· 11 just a matter they weren't going to repair it because 12 they were going to replace it.

I /'

'·· 13 Q. Okay. So, the video equipment, did you -- was 14 this the type of equipment that you could either take I 15 video or you could also just have sound without the

I 16 video? 17 A. No. Ours, if you're recording, it was going

I 18 to record video even if you're recording the sound.

19 Q. Okay. Was your video part out or was your I 20 sound out or was the whole thing out?

I 21 A. As I recall, the whole system didn't work. It

22 powered up, but it did not record. It hadn't worked I 23 correctly the ~hole time I drove that vehicle.

24 Q. So, when you were making stops or you were I \, -·

25 doing anything, normally people have --

I SUMMER TANNER, CSR, RPR 252nd District Court I I· 82

I /.~~ ·-

t 1 A. Right. I ., '

2 Q. -- the little radio, and that also works the

I. 3 recording equipment; correct?

4 A. Correct.

I 5 Q. And you went around for six months, you're

6 saying, without any protection with the recording I 7 equipment?

I 8 A. Correct. Small department, limited funds.

9 Q. Did the County Jail down here in the GEO, did

I 10 they have electricity back yet?

11 A. Yeah. I 12 Q. Okay. Did they have a room where they could t'----

I ., '~·. 13 perform tests? 14 A. No. I 15 Q. They had no area where they could perform

16 tests? I 17 A. No.

I 18 Q. Did they have any security cameras?

19 A. I'm sure they had cameras. I 20 Q. Were they working?

I 21 22 A. I wouldn't know. I mean,

ask the jail staff at the time. I -- you'd have to

I 23 Q. Okay. So, there was no way you could take a

24 video down here? I ... { \. ,.; ..

25 A. There was no way to come here to take a video

I I·· 83

1-- 1. ( 1 intended for -- for that kind of processing. If you're

2 talking about interviewing and doing DWI processing, ~-- 3 that wasn't available. 4 Q. Well, did you ever check to see if they had ~-- 5 any videos of Mr. Bellotti when he was down here?

1- 6 7 A. Q. Did I ever check? No. So, they coUld have had a video with him when

1- 8 he checked in; right?

9 A. They could have.

I 10 Q. But you didn't check him in. You didn't bring

11 him down here? I 12 A. I did not bring him down here. .-~--

I (' ... ~.

13 Q. You arrested him, but you didn't bring him ·-·

14 down here? I 15 A. That's correct.

16 I 17 Q. A. There's a reason for that?

I assigned one of the officers -- I don't

I 18 remember which one. But, again, I'm~- you've already

19 asked me, and I think that I do remember there was I 20 another prisoner that. was brought down. So, two

I 21 22 prisoners came down at once in one vehicle.

Q. Do you r~member who brought them down?

I 23 A. Maybe Phillips. If not, then probably ofie of 24 I (-·- ----\ the other officers working, maybe Guerrero, or Georgie 25 would have been on my team at the time. But I -- I'm

I 1-- 84

1--· 1 almost wanting to say it was Guerrero, because I think I 2 the other prisoner was Guerrero's case. 1- 3 Q. Was Officer Phillips the same guy that

4 transported them to the Groves Police Station? 5 A. Philips brought him to the police station in

~-- 6 Groves, but I think I had Officer Guerrero transport 7 him to the jail, along with the other prisoner. 1··-- 8 Q. Now, DIC-25 is you're basically explaining to

1-- 9

10 him again because he refused to take a blood test, you

said, and his license gets suspended.; correct? ~--- 11 A. Correct. 12 Q. And you read that whole document to him?

I 13 A. The DIC-25?

14 Q. (Nodding head up and down) I 15 A. No.

I 16 17 Q. A. You didn't read it to him?

I read the portion where it's warning him that

I 18 it could be -- I'd have to look at the form, sir. I

19 don't I can't ever remember which one's the 23 or 24 I 20 or 25 without looking at the form. There's one form

I 21 that we just hand it to them. It's the copy that goes

22 to the State, and they get a copy. We don't I 23 generate 24 Q. (Tendering) Review that.

25 A. Okay. No. My answer's no, I do not -- I did

SUMMER TANNER, CSR, RPR 252nd District Court I 1-- 85 1-- i 1 not specifically read this form to him. That's the l _j '·· . ... · 2 form that he gets a copy of.

1- 3 Q. Okay. So, you just -- you allow him to read

4 it be£ore you fill it out, or do you just give it to ~-- 5 him after?

1-- 6 A. My general -- I usually hand it to them at the

7 jail to put in their pocket or put it in their jail 1··-·· 8 pocket, wherever I fill the form out.

9 Q. So, you handed it to him and he put i.t in his

10 pocket and went on the way? ~-- 11 A. Yeah.

_.-· -. 12 Q. And he knew what it was and everything else?

1 . '

13 A. I presume he dici.

14 Q. Just to review: At this time, when you're I 15 giving him all these things and reading the~, his cuffs

I 16 -- they switched over his cuffs in front of him; 17 correct? I 18 A. Sir, I honestly don't remember. It's possible

19 they were. I can't -- it's been three years. At some I 20 point, I would say they were switched in front of him

I 21 because at some point I would have been trying to get

22 him to sign paperwork. I 23 Q. Did you switch it over, or, once again, did

24 Officer Phillips switch it?

25 A. I believe Officer Phillips. But, again, there

SUMMER TANNER, CSR, RPR 252nd District Court I 1--- 86

1- ~'·'. '

(' 1 would have been a transfer of handcuffs -- he probably ~--0.. >··· .

2 was in two or three different sets of handcuffs. He

1- 3 went from my handcUffs to -- I'm gpeculating --when 4 Guerrero, or whoever transported him, would probably ~-- 5 switched cuffs out ai that point. In other words,

~-- 6 Officer Guerrero would have put his handcu£fs on him so 7 that I had my handcuffs on me if I needed them for some ~-- 8 other reason. And that's just standard.

9 Q. Just to straighten out something: I .believe I 10 in your statement you directed Detective -- Detective 11 Phillips to bring him down to the Beaumont thing? I 12 A. I'd have to look. Again, I don't remember if

I ,, --- 13 Phillips brought him or one of the other officers. All

14 I remember is Phillips brought him from the scene to I 15 the Groves police station.

16 Q. Well, let me ask you a question: Do you I 17 remember when you got your handcuffs ba~k?

I 18 A. Specifically?

19 Q. Yeah. I 20 A. No. Again, I --

I 21 22 Q. A. Did you go back out on patrol that night?

I 23 Q. Okay. You would have had your handcuffs when 24 you went back out on patrol; right? I --\ .. - .

....... .. ~ ~ 25 A. That's what I'm saying. We normally would

I SUMMER TANNER, CSR, RPR 252nd District Court I 87

1- ·-( 1

2 switch them out before somebody takes -- when we switch

out -- we don't -- we wouldn't necessarily do it on the

~-- 3 scene but at the station where things are a little bit 4 more controlled; and, generally, the people that are ~---· 5 handcuffed are usually calmed down by then. If they've

6 been giving us any problems -- it's all about officer 1- 7 safety. If somebody's going to tussle with us, we

I 8 9 don't take the handcuffs off. Q. Let me ask you a question -- the reason I keep

I 10 harping on this is are you sure at the scene that 11 Officer Phillips was not the one that handcuffed him I 12 and then transported him down to the jail?

I 13 A. At the scene, I'm pretty sure I'm the one that

14 handcuffed him. Now, did Officer Phillips transport

I 15 him to Beaumont jail? It's possible. You'd have to

16 ask him. I 17 Q. And then it would have been his handcuffs?

I 18 A. I'm saying that ~ould have been the standard

19 practice, yes, to switch out handcuffs. I 20 Q. As part of the paperwork, do you also fill out

21 a probable cause affidavit to get an arrest warrant? I 22 A. Yes.

I 23 Q. And you filled one out that night?

24 A. Yes. I _ J- 25 Q. Okay. And where do you bring that probable

1 SUMMER TANNER, CSR, RPR 252nd District Court

I 1··- 88

II ··-·· 1 2 cause affidavit to get the arrest warrant?

A. When somebody's in custody, it goes with them

~-- 3 to the jail and then -- the copies go to the jail and

4 other copies go with the paperwork to the D.A. 's ~-- 5 Office. 6 Q. And then they look at it, and they send it to I 7 a Magistrate, Justice of the Peace?

I 8 9 A. Well, when someone's in jail, some Magistrate

at the jail, whoever's doing the arraignments.

I 10 Q. Would be -- a Magistrate is any judge, Justice 11 of the Peace? I 12 A. Right. ,. I 13 Q. Was the Justice of the Peace that had handled ' 14 Groves in town that night? I 15 A. I wouldn't know. We wouldn't take them before

16 the Justice of the Peace that night. I 17 Q. So, you don't know if there was a Justice of

I 18 t~e Peace around?

19 A. Right. I 20 Q. Did you know if any of the judges were around? 21 A. I 22 Q. No, I don't. Because you could have gotten a search warrant

I 23 to have him take a blood test; correct? 24 A. We could have, but it l_j· ' 25 Q. All it takes is a probable cause affidavit and

I __ SUMMER TANNER, CSR, RPR 252nd District Court

I I -- 89 ~--

I_J. I 1 a judge's signature and you could h~ve gotten your

2 blood- test; correct?

I 3 4 A. Yes, sir.

practice to do that. It's just -- it's not standard

You've got to go find a judge and I- 5 there's a time delay involved and it's just again~

~--- 6 we were-operating during hurricane operations. It just

7 wasn't being done like that. It was basically

I 8 9 Q. A. My question is: I could have done it. Could you have done that?

I 10 Q. Yes. 11 Did you even think about doing that? I 12 A. No. (

I ' 13 Q. If you had done that, you would have had blood 14 test results and evidence to present; right? I 15 A. Presumably, yes.

16 Q. That was your decision not to go get a search I 17 warrant, though?

I 18 A. That's correct.

19 Q. It was your decision not to give any roadside I 20 tests? A. I 21 22 Q. That's correct. For various reasons, it was your decision not

I 23 to give any roadside tests back at th~ station?

24 A. 'That's correct. I( ,_ '-- .. _. 25 Q. How far did you say the workmen was down from

/

I_J 1 the 2 A. From where the vehicle ended up in the ditch? 3 Q. (Nodding head up and down) I 4 A. I'd say between 25 and 50 yards, maybe even

I 5 closer. 6 Q. Okay. If you said in your report 200 feet, I 7 that's within the ballpark?

I 8 A. If that's what's in my report, that's probably 9 accurate because that would have been when my memory

I 10 was fresh. 11 Q. Okay. So, all these reports -- what's in I 12 these reports are at the time you remember everything

I 13 14 fresh?

A. Well, yeah, because I'm writing it that night.

I 15 Yeah. 16 Q. And witness statements, any statements they I 17 ~ade, that's what happened; that's the freshest

I 18 recollection? 19 A. That's why you try and take statements I 20 immediately, yes.

21 Q. So, that's why it's important to have complete I 22 statements with all your impressions on it?

I 23 .A. Correct.

24 Q. Would you think it's fair to say that if l_j 25 there's any difference to what you're testifying to

I 1- 91

1-- ..

I \ f ---\., ··-·· .-· 1 that's not included in the statement that there's a

2 reason for that?

1-· 3 A. It's possible that I'm not remembering

4 everything from three years ago, but that's ... ~--- 5 Q. It's more likaly that whatever's in that

1- 6 statement is closer to really what happened then. 7 Would you say that's a fair statement? ~-- 8 A. The report is accurate, yes.

9 MR. DESMARAIS: Pass the witness. ~--- 10 THE COURT: Mr. Thomas?

11 MR. THOMAS: I have no further questions, I 12 Judge.

I "~------· 13 THE COURT: Sir, you may step down. Call 14 your next witness. I 15 MR. THOMAS: Your Honor, at this time, the

16 State of Texas would rest. I 17 THE COURT: Okay. Mr. Desmarais?

I 18 MR. DESMARAIS: May I talk to him?

19 THE COURT: Yeah. Tony, take the jury in I 20 the jury room real quick.

I 21 22 MR. DESMARAIS:

THE COURT: Before I rest, I have one.

I'LL get y'all right back out.

I 23 (JURY EkiTS COURTROOM)

24 THE COURT: Okay. Let the record reflect I_ _(_ 25 the jury is not present. I wanted to put on the record

I SUMMER TANNER, CSR, RPR 252nd District Court I 1--- 92 1- .,.,-

1 I just saw you visit with Mr. Bellotti about his right _l- 2 to testify, and I saw him indicate that he did not wish ~--· 3 to testify. I just simply make to sure you know,

4 Mr. Bellotti, you have a right to testify. Once you ~-- 5 get on the stand, naturally the State can ask you a lot ~--·- 6 of questions. It may hurt your case. It may help your

7 case. I don't know. Bottom line to it is, you 1- 8 understand what your legal right is to testify?

9 THE DEFENDANT: Yes, sir. I 10 THE COURT: And do you wish to testify or

I 11

12 not testify?

THE DEFENDANT: Not testify. ,-··--- ..: I \, 13 THE COURT: Not testify. I find that he's

14 made that decision intelligently and knowingly. I 15 Mr. Desmarai~, you had something else you wanted to

I 16 bring up? 17 MR. DESMARAIS: At this time, I woUld like

I 18 to make a motion for a directed verdict of not guilty

19 and judgement of acquittal. I 20 THE COURT: Okay. On what --

I 21 MR. DESMARAIS: The State has failed to 22 prove beyond a reasonable doubt or to present enough I 23 evidence beyond a reasonable doubt that -- that he was

24 intoxicated at the time. There's been no evidence of I '~ ....... 25 what -- whether he lost his normal physical things.

I SUMMER TANNER, CSR, RPR 252nd District Court I -· ------- ·-·---- ---------···---- I 93

I /" _L 1 There's only been opinion. There's been no hard I 2 evidence or circumstantial evidence. There's been

I 3 opinion evidence, that's it, as far as that goes. And

4 as far as the first witness, she .said, I can't tell. I 1- 5 don 1 t know. I can't tell whether he was intoxicated or

~-- 6 not. 7 This officer said only in his

1- 8 opinion. He smelt the alcohol, but alcohol is not 9 probable cause for a DWI arrest because it is legal to I 10 drink and have alcohol on your breath and drive. The

11 issue is intoxication, not whether he was drinking. I 12 Therefore, there's no ev~dence ~hatsoever that he was

I ... ~...---

'- 13 intoxicated, so we are asking for an instructed verdict 14 at this time. I 15 THE COURT: That's denied. Let's do t-his:

I 16 Let's run back in the back. 17 the jury loose. I'm going to -- let•s· cut

I'm going to give y'all both 15

I 18 minutes to argue. I think we've got the charge ready.

19 Do you honestly think you'll take 15 minutes? I 20 MR. THOMAS: No.

I 21 MR. DESMARAIS: Yes.

22 THE COURT: We'll have it to the jury

I 23 MR. DESMARAIS: Yes, I will take -- give

24 me·16, I will take 16. I , --J. \. 25 THE COURT: I know. Let's do this: Let's

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 94 ~---

I _(·- · 1 let the jury out. We're going to start back at 11:30,

2 and tell them we're going to get the jury charge ready. ~-- 3 And let's get them on through here, and then we'll take 4 our break and get the charge done. ~-- 5 {JURY ENTERS COURTROOM)

~-- 6 THE COURT: Y'all can go with Tony. WB

7 will get you back in at 11:30, and we will argue the 1- 8 case. 9 {JURY EXITS COURTROOM) I 10 THE COU~T: Let the record reflect the

11 I 12 jury is not present. Just to make sure,

you have rested on the record? you say that

. I ...... __ 13 MR. DESMARAIS: Yes, I've rested . 14 THE COURT: Okay. Has the State rested? I 15 MR. THOMAS: Yes, sir.

I 16 17 go back, THE COURT: Both sides have rested.

let's work on this charge. Let's

I 18 THE BAILIFF: All rise.

19 (RECESS FROM 11:15 A.M. TO 11:33 A.M.) I 20 (OPEN COURT, DEFENDANT PRESENT, NO JURY)

I 21 THE BAILIFF: All rise.

22 THE COURT: Thank y_'all. Please be I 23 seated. 24 MR. KNAUTH: Judge, Norm, is it okay if we I --~ \ 25 release Kevin White, the Groves Marshall, the police

I SUMMER TANNER, CSR, RPR 252nd Distr~ct Court I I 95

I l ; i 1 officer? Yes? I ··-:-·:-

2 MR. DESMARAIS: Yeah, I guess. You can ~-- 3 release Mrs. Sanders, too. I don't think we're going

4 to need either one of them back.

I 5 THE COURT: Let the record reflect the

6 jury's not present, The defendant is present, along I 7 with his ~ttorney. The State has made a motion to

I 8 abandon the word "unlawfully" in the indictment. I'm

9 going to scratch that out. Mr. Desmarais, I'm going to I 10 put an "AB" by that. So, that will be abandoned. I

11 have tendered a copy of the proposed charge to both I 12 State and Defense counsel. And, Mr. Desmarais, do you ·'

I .... _ ... 13 have any objections to the Court's charge? 14 MR. DESMARAIS: On Page 3, "Driving While I 15 intoxicated," Your Honor, the last sentence, "The 16 offense is a felony if the person has been convicted I 17 twice before for the same offense," is not part of the

I 18 definition of d~iving while intoxicated; and if nothing

19 else, I also think it's redundant because on Page -- I 20 THE COURT: 5.

definition of what a felony offense was. -- 5 or 6, you include a

But that il 23 line, "The offense is a felony" is not part of the 24 definition of driving while intoxicated. So; it's also I 25 redundant because you do make a definition later in the

I SUMMER TANNER, CSR, RPR 252nd District Court I 1- 96 1-- ~--(~-. 1 charge. It will cause -- it hops on the point a little

2 bit too much and, I believe, leads the jury -- possibly ~-- 3 lead the jury down the wrong incorrect path.

4 THE COURT: Okay. Your request -- I 5 objection is overruled. ~ny objections by the State?

1- 6 MR. THOMAS: Before I comment, Judge, I

7 informed the Court earlier that I wanted to abandon a I - 8 word "unlawfully"

9 THE COURT: We did that in your absence. ~-- 10 And Mr. Knauth -- ~-- 11 MR. THOMAS: Did he handle it okay?

;""'_. .. 12 THE COURT: -- handled that. He did you

I _

13 proud. "·...-~-- .·

14 MR. KNAUTH: I didn't say a word. I 15 THE COURT: That's why he did such a good

I 16 job. The word "unlawfully'.! has been deleted. There

17 was no objection to that. And I scratched it out, and

I 18 I put an "AB" for abandoned.

19 MR. THOMAS: Thank you, sir. I 20 THE COURT: All right.

I 21 MR. THOMAS: And I have no objection to

22 the. charge. I 23 THE COURT: Okay. 15 minutes a side. I

24 will hold both sides very, very, very, very one more I _l 25 time -- very strictly to this. So, whenever I -- I'm

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 97

I- 1- \__--.· r~·-._ 1 going to give you a two-minute warning, I'm going to

2 give you a one-minute warning, and whenever I say "ten ~---- 3 seconds," you get the hook after that; okay?

4 We're ready. ~-- 5 (JURY ENTERS COURTROOM)

1- 6 7 THE .COURT:

the jury is present. Let the jury record reflect

The defendant is present, along ~-- 8 with his attorney. I'm going to read to you the 9 Court's charge. This is a document we just got

I 10 prepared. This charge will contain all of the law

11 necessary to enable you to reach a verdict. You can I 12 take this charge back there with you. I'm going to /--·--. .._

I ·,~ 13 give each attorney 15 minutes to argue their side. The

14 arguments are not evidence. You've heard all the I 15 evidenca. These argumants are just their opinion. You

16 can take it or leave it, whatever you want to do with I 17 that. But since it i$ not evidence, I 0ill hold each

I 18 side strictly to the 15-minute time limit. And these

19 lawyers are professional, and they'll abide by that. I 20 But, again, as I go through this, remember you're going

I 21 22 to take this document back there with you.

time, you'll select a foreperson, At that

and then you will

I 23 begin your deliberations.

24 JURY INSTRUCTIONS I _j_ /c

25 THE COURT: (Reading): Members of the

I - - - ...... _, _____ 98

1 jury, Instructions: The defendant stands charged with

2 the offense of felony driving whi.le intoxicated,

3 alleged to have been committ~d in Jefferson County,

4 Texas, on or about the 21st day of September, 2008, and I. 5 that the defendant was convicted of the offense of

6 driving while intoxicated on two previous occasions in I 7 Cause No. 132178 on January 5th, 1989, and in Cause No.

I 8 138038 on January 5th, 1989, in Jefferson County,

9 Texas, and these convictions became final prior to the I- 10 offense for which the defendant stands charged. These

11 jurisdictional elements the defendant has stipulated I 12 that these convictions wer~ final and true. The

I 13 defendant has entered a plea of not guilty to this 14 indictment. Our law requires that I submit the I 15 following charge to you in this case. This charge

I 16 contains all of the law necessary to enable you to 17 reach a verdict. If any evidence was presented to

I 18 raise an issue, the law on that issue must be provided.

19 Definitions: So that you can better I 20 understand some of the words used in the charge, the

I 21 law provides the following definition. 22 Driving while intoxicated: A person

I 23 commits an offense if the person is intoxicated while

24 driving or operating a motor vehicle in a public place. I 25 The offense is a felony if the person has been

I SUMMER TANNER, CSR, RPR 252nd District Court I 1-- 99

I 1- 1 2 convicted twice before of the same offense.

PriDr conviction, DWI: Evidence has I- 3 been admitted in this case concerning the defendant's

4 having been at least two times previously convicted of I 5 being intoxicated while driving or operating a motor 6 vehicle in a public place. If he was, you are I 7 instructed that such evidehce cannot be considered by

I 8 you as any manner of proving or tending to prove that

9 the defendant was intoxicated while ~riving or ~-- 10 operating a vehicle in a public place on or about

1- 11 September 21st, 2008. 12 Felony offense: Our law further

I ' .. _ 13 provides that a person commits a felony offense if he 14 commits the crime of driving while intoxicated at a I 15 time when he had been previously convicted of two

I 16 17 offenses of driving while intoxicated. The defendant

has stipulated and agreed that he has been previously

I 18 convicted of driving while intoxicated on two separate

19 occasions pravious to the offense for which he -- for I 20 which the defendant stands charged. I 21 Intoxication: Intoxication --- or 22 intoxicated means not having the normal use of mental I 23 or physical faculties by reason of the introduction of

24 alcohol, a controlled substance, a drug, a dangerous I !\ 25 drug or a combination of two or more of those

I SUMMER TANNER, CSR, RPR 252nd District Court I I 100

I 1-( 1 substances or any other substances into the body.

2 Public place: Public place means any

1-- 3 place to which the public or substantial group of the 4 public has access and includes, but is not limited to, 5 streets, highways, and common areas of schools,

6 hospitals, apartment houses, office buildings, 7 transport facilities and shops.

8 Vehicle: Vehicle includes any device

9 in, on or by which a party or property is or may be I 10 propelled, moved or drawn in the course of comme.rce or

12 transportation, except such devices as are classified

as "habitation."

13 Defendant's failure to testify: Our 14 law provides that a defendant may testify in his own I 15 behalf if he elects to do so. This is a right given to

I 16 a defendant, and in the event he elects pot to testify, 17 that fact cannot be taken as circumstances against him.

I 18 In this case, the defendant has elected not to testify, 19 and you are instructed that you cannot and must not I 20 refer to or allude to that fact throughout your

I 21 deliberations or take it into consideration for any 22 purposes whatsoever. I 23 Charge: Now, if you believe beyond a

24 I - ( 25 reasonable doubt that in Jefferson county, Texas, that

on or about the 21st day of September~ 2008, and

I SUMMER TANNER, CSR, RPR 252nd District Court I -------- --- -- ··- 1·- 101

1··- 1· ( 1 anterior to the presentment of this indictment, in the 2 County of Jefferson, State of Texas, the defendant,

I 3 Carl Matthew Bellotti, III, did then and there 4 unlawfully operate a motor Vehicle in a public place I· 5 while the defendant was intoxicated, and you further

1- 6 7 find that as agreed, the defendant was previously

convicted of two prior driving while intoxicated

8 offenses and those convictions became final prior to

1. . 9 the alleged offense, then you shall find the defendant 10 guilty of felony driving while intoxicated, as alleged ~--- 11 in the indictment. Unless you so find, or if you have

· ·- - · · 12 a reasonable doubt thereof, you shall find the

1 ,- ........ ___ -- .·.._

~. 13 defendant not guilty . 14 General instructions: You have a I 15 right to consider all the facts that are shown by the

I 16 evidence and to draw natural and reasonable inferences 17 from such facts. You alone have the authority and duty

I 18 to determine what the facts are in the case. In 19 evaluating the evidence, you must totally disregard I 20 what you believe is my opinion about any factual

I 21 matter. All persons are presumed to be innocent, and

22 no person may be convicted of an offense unless each I 23 person or unless each element of the offense is 24 proved beyond a reasonable doubt. The fact that a I 25 person has been arrested, cohfined or indicted for, or

I SUMMER TANNER, CSR, R~R 252nd District Court I 1- 102 1·-·- 1·· . ........... 1 otherwise charged with the offense gives rise to no

The law does not 2 inference of guilt at his trial.

1-·· 3 require a defendant to prove his innocence or produce

4 any evidence at all. The presumption of innocence 1·- 5 alone is sufficient ~o acquit the defendant, unless the

~--- 6 jurors are satisfied beyond a reasonable doubt of the 7 defendant's guilt, after a careful and imp~rt.ial ~--··· 8 consideration of all the evidence in the case. The

~---- 9 prosecution has the burden of proving the defendant 10 guilty, and it must do so by proving each and every ~--- 11 element of the offense charged beyond a reasonable 12 doubt, and if it fails to do so, you must acquit the ~--·~~ ... 13 defendant. It is not required that the prosecution

14 prove guilt beyond all possible doubt. It is required I 15 that the prosecution's proof excludes all reasonable

I 16 doubt concerning the defendant's guilt. You cannot

17 question the bailiff concerning the law or the I 18 testimony. If a question abotlt the law develops during

19 your deliberations, it must be reduced to writing, I 20 signed by your foreperson and given to the bailiff.

I 21 The question will then be answered by the Court to the 22 extent allowed by law. Questions and comments of the I 23 attorneys do not constitute testimony and must not be

24 I 25 considered as evidence. statement of the attorney~ You must also disregard any that is inconsistent with

I SUMMER TANNER, CSR, RPR 252nd District Court I 1-- 103

1--- 1 the law contained in this charge. Any physical 1- 2 exhibits admitted into evidence will be furnished to 1--- 3 you upon your request by the bailiff. You must not

4 consider facts that have not been introduced into 1- 5 evidence or legal principles not contained in this ~---- 6 charge. It is improper for any juror to discuss or

7 consider anything which they may know or have learned ~-- 8 outside the testimony presented to you and the law 9 contained in this charge. If a juror should discover ~-- 10 that they have any outside information, they must not ~--- 11 mention this information to any other juror, nor 12 consider it themselves in arriving at a verdict. You r··--,_ I 13 are the exclusive judges of the facts proven, the

14 believability of the witnesses and the weight to be I 15 given to their testimony. However, you must be bound

I 16 by and strictly follow the law contained in the charge. 17 Your failure to follow the law could result in a

I 18 mistrial being declared, and your deliberate violation 19 of the charge could subject you to being held in I 20 contempt of court. After the attorneys present their

I 21 arguments to you, you will retire, select a foreperson, 22 and then consider your verdict. The arguments are not I 23 e~idence, and you should give the arguments only the

24 I __ J. 25 consideration you feel they deserve during your

evaluation_ of the evidence. It is the duty of your

I SUMMER TANNER, CSR, RPR 252nd District Court I --~-------- ----- ____ ,___ _ 1-- 104

1- l_.f 1 foreperson to make certain that the deliberations are

2 conducted in accordance with this charge. When you

1-· 3 have r~ached a unanimous decision, your foreperson

4 should sign the appropriate verdict attached to the 1- 5 charge. In returning your verdict, i t is your

~--- 6 responsibility to make sure that justice is done in 7 this case. That's signed by me. ~-­ 8 Verdict Form No. 1: We, the jury,

~---· 9 find the defendant not guilty.

10 Verdict Form No. 2: We, the jury, ~---· 11 find the defendant guilty of the offense of felony

12 driving while intoxicated~ as alleged in the

I 13 indictment.

14 The State has the right to open and I 15 close the arguments.

I 16 17 MR. THOMAS: The State would waive its

opening but reserve its right to close.

I 18 THE COURT: Okay. Mr. Desmarais, you'll·

19 have 15 minutes. I'll give you a two-minute and a I 20 one-minute.

I 21 MR. DESMARAIS: Thank you, Your Honor. 22 DEFENDANT'S CLOSING STATEMENT I 23 MR. DESMARAIS: This is what it all comes

24 down to. This is where you do your job. You'll go I 25 back soon into a room, elect a foreman, and you'll make

I SUMMER TANNER, CSR, RPR 252nd District Court I 1- 105 1- I_~_ ···...... ~ , .. . 1 decision. You'll look at all the evipence and make a

2 decision. It was a short trial, but it's an important ~-- 3 trial. Mr. Bellotti's freedom is on the line. The

4 State has the burden, and they must present enough ~-- 5 evidence to have you find him guilty beyond a

1- 6 reasonable doubt. Let's look at the evidence.

7 evidence has -- Mrs. Sanders came in. The

She made two ~-- 8 statements which I think is important in her testimony. 9 One was that she smelt no alcohol; and, two, her last 1- 10 statement was, I can't be sure of anything. Other than

12 that, it was her opinion and her observations.

observations changed from her statement she made when Her

I ,. 13 her memory was fresh to four days later when she made 14 another statement to today, three years later, when she I 15 testifies. The problem with three years after an

I 16 incident happens, yes, memory has sl~pped.

17 to think something, and it becomes what it is. You start

That's

I 18 why you make statements and write documents on the 19 first day or soon afterwards. That's when your memory I 20 is fresh, and it won't be cluttered hy what you think

I 21 happened. Beyond a reasonable doubt's a level -- it 's

22 not, gee, yeah, I think that's possible. Opinion, I 23 theories~ hyperbole; those things are not evidence. 24 What we have is we have Mr. Bellotti driving his truck I 25 into a culvert; call it a ditch. And the police

I SUMMER TANNER, CSR, RPR 252nd District Court I 1- 106

1- IJ 1 officer referred to it as a deep ditch.

2 hyperbole. Like I said,

But he also made the statement there was no

1-- 3 damage. The car wasn't really damaged up in the front.

4 And the post wasn't knocked out of the ground. The

5 stop sign on those little metal things wasn't knocked

~-­ 6 out of the ground. You didn't hear anything about 7 speeding or start thinking about speed; that kinda ~---- 8 negates the fact there's no damage on the front end if 9 it was driven into a deep ditch and knocked over a stop

10 sign, and he didn't even take it out of the ground.

~-- 11 They brought up the workers 200 feet

1- -/·-· - . _: 12 down the road. You may hear something how they were in

13 danger because he was speeding down the road. You had ., ·--~--··'

~---- 14 people across the street, not even on the same side, at

15 the front of their house. Yes, there was young kids.

1 16 That's not evidence of intoxication. 17 you have of intoxication? What evidence do

What did the State bring

I 18 you? They brought you Sergeant White -- or ex-Sergeant

19 White, whose testimony differed substantially from his I 20 statements. several times he said, Well, no, I didn't

I 21 write that down, or I don't remember; I don't remember; 22 I don't actually recall; I don't actually recall. I 23 He recalls some things. As far as

I - ,- \ --"\...._ 24 testifying to different than what's in your 25 statement -- they could have reviewed his statements

I SUMMER TANNER, CSR, RPR 252nd District Court I 1·- 107

1- 1-( .· 1 before they get on the stand and testify the same way. 2 I'm not doing -- I don't attribute any deviousness to 1·--- 3 the prosecution or to the police officer or definitely

4 not Mrs. Sanders. That happens. You make things worse 1-- 5 as time goes along, especially when you get in here and

~-- 6 you say, wait a minute. What evidence do I have? Oh,

7 I didn '.t give him any roadside tests. Oh, well, excuse ~-- 8 for that, I don't write it down. The excuse is for 9 that, Oh, he was falling down, He was a danger to ~--- 10 himself. He was standing there leaning up against the

1- 11 truck. I don't know whether he's supposed to stand

12 there in attention, but he was upright. He was walking

I ,r··-..

.... ~ ..... 13 around. It was their choice not to give him any 14 roadside tests. They couldn't give him a HGN test, I 15 which is that eye test. While he was leaning up

I 16 against the car, all he has to do is just lean upright. 17 Oh, no, I didn't -- decided not to do that.

I 18 Granted, it was a week after the

19 hurricane. No, we can't get him a Breathalyzer test. I 20 No, we can't do a video. No, none of the vehicles we

I 21 had had any working videos. No, the camera that we had

22 at the Groves Police Department, that wasn't working. I 23 It hadn't been working for years. Oh, the video --

24 possible videos down here at GEO to show the condition, I 25 Oh, no, we don't have any of that. No, we don't even

I SUMMER TANNER, CSR, RPR 252nd District Court I ·······- ·····-------- 1--- 108 1-- I_.J·., __ 1 have any cameras, which are all probably bona fide

2 reasons. None of this equipment worked in any of the

1-- 3 vehicles. It's still the State's burden to bring in

4 the evidence. They have to bring in the evidence. If ~-­ ·s there's cameras that don't work in the car, get them ~--- 6 fiKed. If you have a security camera that doesn't work

7 in the police department, get it fixed. Bring in the 1- 8 evidence. The only evidence you have is Officer White 9 now standing here saying, yes, and not that he was

10 intoxicated. You .haven't heard that evidence at all.

11 He was highly intoxicated in my opinion. His opinion

12 is not evidence. Just like what I'm saying when I'm I /- - -. ., 13 talking to you right now is not evidence. A~ far as a ···-· 14 blood test -- Breathalyzer test, they had no I 15 Breathalyzer test. You hear the words "drug use."

I 16 There was absolutely no evidence of any drug use, so 17 nobody even should say that he was intoxicated because

I 18 of drug use. There was no evidence of bottles. I find

19 it funny that the police officer said -- Officer White I 20 said that there was a strong odor. That's just the way

I 21 it is. There's no such thing as an odor of alcohol,

22 even though it's an odorless liquid. There is no odor I 23 of alcohol. It's one word, strong. Mrs. Sanders 24 and she was up at the window talking to him -- I didn't I 25 smell any alcohol. Officer White, when he was down at

I SUMMER TANNER, CSR, RPR 252nd District Court I ------· ..... ____ _____ ___ ___ , , .. I 109

I 1 the police station, he implied, at least for Groves, I 2 the government was all there, it was Sunday afternoon,

1-- 3 and we were working 24/7. Some of you may have been

4 around. He could have gone to any judge -- locate any 1-- 5 judge, got a search warrant and gotten a blood test

1- 6 that he needed to present to you for evidence. We 7 don't do that. That's not our policy. Well, once ~-- 8 again, that's not a reason. Btit because you have

9 decided to take the easy way out and the quick way out, I 10 don't come in and say, oh, no, we don't have any

I 11 12 evidence. He refused any evidence. That was an interesting thing, also, which -- he was given the

I 13 Miranda rights. One of the things -- one of the final

14 questions you ask, "Do you understand this." He I 15 acknowledged those. Then he's read this long document,

I 16 ·the DIC-24, about you don't have a right to an attorney 17 and all that. You understand this?

I 18 Yes.

19 Do you w~nt to sign it? I 20 No.

I 21 Oh, he understood all that. Yeah, we

22 gave him a copy of the suspension of license. He I 23 understood all that. I asked him questions. I don't 24 I ( .--.. think he knew where he was.

25 doesn't remember getting his license. And he wasn't clear. He doesn't He

I SUMMER TANNER, CSR, RPR 252nd District Court I ______ _ , .. .. ___ ----- .. - 1·-. 110 1-- 1_{ 1 remember getting his insurance card. In the dharge, it

2 says reasonable inferences -- or you can make I 3 reasonable inferences. That's the way-- you got to be

4 careful with that that you don't add two and two and I 5 come up with five. Any t~me an officer is stopped

I 6 7 or somebody is stopped on a traffic violation, you ask

for their license and for their insurance. Did the ~--· 8 police officer get it? Did he get it? That's the

9 first thing. Oh, I don't remember asking him for his ~-- 10 insurance card. I don't know that I ever saw his

1 11 insurance card.

-·-·- 12 Why?

1 /"'~··

-....., ____ , .. ·.

. 13 Oh, he was falling down. 14 Well, you just testified and you said I 15 in your statement he was leaning up against his truck

I 16 standing there. The other witnesses say he was walking 17 around trying to wave down cars. You have to be I 18 careful. They have to brihg you the evidence; that's

19 the thing. And he did testify that, In my opinion, he I 20 was intoxicated, and fortunately -- or unfortunately, I 21 depending on which side of the stand you're on. As the 22 judge told you, our opinions as an attorney is not I 23 evidence. His opinion you can only use -- you can base

I 24 your judgment on what his opinion's worth. 25 what his opinion's worth. You decide

This is too serious; that's

I SUMMER T~NER, CSR, RPR 252nd District Court I I 111

I /~····.

1 why the burden's so high, by a reasonable doubt, IJ '--:.

2 especially in a case like this. Another citizen's

1-- 3 fellow citi.zen's liberty is on the line. The

4 government's trying to put -- take his liberty away, so I 5 we put the burden on them and say, Okay, get 12 people 6 in here and bring in all the evidence you can have, I 7 convince them beyond a reasonable doubt, don't give

I 8 them theories or hyperboles and confusion, and say, Oh,

1. . 9 well, folks, use your common sense; and just, wink, 10 wink, we all know what's going on. I- 11 THE COURT: Two minutes. 12 MR. DESMARAIS: They need to bring in

I ' ~ ..... -·. 13 evidence. They did not meet their burden, I suffice.

14 What we're requesting is go back, consider everything I 15 you've heard this morning and send Mr. Bellotti home

I 16 this afternoon. 17 listening. I thank you for your patience and time Thank you.

I 18 THE COURT: Thank you, sir~ Mr. Thomas,

19 you' 11 have 15 minutes. I 20 MR. THOMAS: Thank you, Your Honor.

I 21 STATE'S CLOSING STATEMENT 22 MR. THOMAS: Housekeeping matter or two I 23 before I start: The only issue is was Mr. Bellotti 24 intoxicated September the 21st, 2 0 0 8. It's already I j ., 25 agreed --he's agreed twice before he 'd been convicted

I SUMMER TANNER, CSR, RPR 252nd District Court I I· 112 1-· I j_ 1 of driving while intoxicated, so that's not an issue

2 for you. Your only issue is was he intoxicated

1·-· 3 S~ptember 21st, 2008. I'm going to disagree with

4 Mr. Desmarais. Opinion is evidence. That's how you I -· 5 base your decision is on the opinions and observations,

1·--·· 6 the training and experience that -- that people that we 7 hire that work for you and me, ~e base our decisions in

I 8 this courtroom on their opinions and their observations

9 and the things that they saw, heard and smelled on 1··-· 10 September 21st, 2008. ~-- 11 SD, what evidence do we have of Carl 12 Bellotti being intoxicated on that day? Well, it

I ,,.~· •' ~' ~.

, ___ .~· 13 begins by Mr. Bellotti driving off intD a ditch for no 14 apparent reason other than he's intoxicated. He's I 15 driving down a straight road. Now, you and I normally

I 16 make it down the road okay. Even if there's an

17 electrical worker's truck in the road, we all have

I 18 driven around those during hurricanes or after 19 hurricanes before. That's just life. Everyone else I 20 that was driving that JOad made it around just fine but

I 21 not Mr. Bellotti. That's how all this begins; for no

22 apparent reason, he just drives off into a ditch. And I 23 there's Mrs. Sanders ~orking in her mother's front

I 24 25 yard. She goes up to him, and what's he say?

call the police. Don't call the police. Don't

He gets out,

I SUMMER TANNER, CSR, RPR 252rtd District Court I ··-···--····---- ~-­ 113 ~----

_( r .. ------ 1 he's staggering around out of the car, and what's he 1 ··....

2 try to do? Please, somebody stop and pull me out of

~-- 3 this ditch so I can get outta here. Why? Mr. Bellotti

4 knows he's messed up drunk. Please pull me out. ~-- 5 Please pull me out. He's staggering around. Police

1- 6 7 are called. Much to Mr. Bellotti's chagrin, they come.

And Officer White, whO's had a lot of experience ~-- 8 dealing with intoxicated people, says this guy's leaned 9 up against the car, and he's a mess. I have to take I 10 him by the arm to help him out to the street, and.he's 11 in such bad shape I had to hold onto him the whole I 12 time. It's not an opportunity for me to let go and let r---... -- I '"······ 13 him do tests. If I let go, he's going to fall down and 14 hurt himself. That's how out of shape he's in. You I 15 want him t.o do field sobriety test, and, what, fall 16 down and then sue us all? No. Officer White did the I 17 correct thing in holding onto him and not letting

I 18 him -- not letting him fall down.

19 Now, remember the standard for I 20 intoxication is a person has lost normal use of their

I 21 mental or physical faculties. 22 normal. They've lost what is

So, as we talk about. this, let's consider

I 23 Mr. Bellotti's behavior. Is it normal just to drive 24 off into a ditch? Okay. Let's say it was. Let's say I -(- 25 it was just an accident. Is it normal for Mr. Bellotti

I I 114

I .J 1 to not be able to stand up on his own and have to lean I 2 up on his truck? Is it normal to stagger around in the

I 3 4 street? Is it normal that an of.ficer has to hold him

by the arm to keep him from falling down? That's not I- 5 his normal behavior, and we know why. Why did Officer

6 White tell you why he believes he was intoxicated? I I 7 could smell alcohol. I could smell it on him. Yeah,

I 8 it was a strong odor of alcohol. 9 statement. Look at his

I bet it was a strong odor of alcohol. The

I 10 odor of alcohol. He can't stand up on his own.

11 Please don't call the police. Please I 12 someone call and drag me out of this ditch so I can get ,...... -·~. ·-...

I '···· ·. 13 outta here before the police get here. Why? Because

14 he knows he's intoxicated. He knows he's about to be I 15 in some trouble. So, he's arrested and taken to the

16 Groves police station where he has a nice nap s~tting I 17 on the bench; there's another sign of Mr. Bellotti's

I 18 condition. He just falls asleep. Most of. us, if we'd

19 been arrested and taken to jail, we'd be scared to I 20 death. What have I done? What's going to happen to

I 21 me? 22 Not hitn. Right at home. He just went to sleep.

And then Mr. Bellotti is offered the opportunity to

I 23 prove to the 12 of you something. He had the

24 opportunity that day to prove to you that he was not I~· 25 intoxicated.

I I - 115 ~-- .. ;···--.

I( 1 2 MR. DESMARAIS: MR. THOMAS: Objection, Your Honor.

Officer White

3 I MR. DESMARAIS:

4 burden of proof to Mr. Bellotti. He's tr_ying to shift the

1- 5 THE COURT: Overruled. 6 MR. THOMAS: Officer White looked through I 7 those statutory forms and asked him the big questLon:

I 8 Would you like to provide a sample of your blood for 9 testing. A sample of that blood could be shown to the

I 10 12 of you. We've all had blood work done. 11 Scientifically reliable things to have our blood I 12 tested. Would you like to have an opportunity -- would

13 you like to give a sample of your blood so these 12 14 jurors would know just what's in your blood?

15 No, sir. I'm not going to do that.

16 Why? Because he knows what that blood sample's going 17 to show. Drives into a ditch. Don't call the police.

I 18 He staggers about in the street trying to get away. 19 The odor of alcohol about his person. I'm in Port I 20 Neches headed to my house in Port Neches.

I 21 22 Groves. Try again, Mr. Bellotti.

Mr. Bellotti, would you like to provide a We're in

I 23 scientific sample for the jury to see?

I ..· · 24 No, sir. If that alone's not enough, _i 25 based on the ·training and experience of a police

I I·. 116

1- I J,__ , / 1 officer telling you that Mr~ Bellotti's intoxicated and

2 has no business being behind the wheel of a car, then

I 3 let's just -- let's talk about an unbiased opinion.

4 How about Mrs. Sanders, who's in her mother's front 1. 5 yard cleaning up after the storm with two grandchildren 6 out there with her. What did she say about I 7 Mr. Bellotti? What was her description? I decided he 1··- 8 was sloppy drunk. Sloppy drunk. No training needed

9 for that. No years as a police officer needed for I 10 that. That was just one o£ your fellow citizens using

11 I 12 her common sense. coming to an easy and obvious

conclusion that that man {pointing) was intoxicated ,..,- ...... I ' 13 September 21st, 2008. That was not a man that had the

14 normal use of his mental or physical faculties because, I 15 ladies and gentlemen, he was sloppy drunk. Say by your

I 16 verdict he's guilty, and hold him accountable and 17 responsible for his actions that day.

I 18 THE COURT: Okay. Ladies and gentlemen,

19 if you will go with the bailiff and begin your I 20 deliberations.

I 21 (JURY DELIBERATIONS)

22 (RECESS FROM 12:08 A.M. TO 2:12 P.M.) I 23 (OPEN COURT, DEFENDANT PRESENT~ NO JURY)

24 THE BAILIFF: All rise. I 25 THE COURT: Thank you. Y'all please be

I SUMMER TANNER, CSR, RPR 252nd District Court I I- 117 1-- I _(-· -.. ' 1

2 seated. Did you get lunch?

THE DEFENDANT: Yes, sir.

1- 3 THE COURT: Was it good?

4 THE DEFENDANT: Yes, sir. I- 5 THE COURT: We're ready.

~-· 6 (JURY ENTERS COURTROOM)

7 THE COURT: I just saw somebody say it's

I 8 cold in here.

9 THE JURY: No. It's fine, Judge. I 10 THE COURT: Thank you, Lord. Most the

11 time I sit in here, it's just so -- it's burning up I 12 hot. So, it actually feels pretty good. Let the

I ,r'· '··

"' 13 record refl~ct all members of the jury are present. 14 The defendant is present, along with his attorney. Has I 15 the jury reached its verdict?

I 16 17 THE FOREPERSON:

THE COURT: Would Yes,

y~u sir, we have.

hand that form to

I 18 the Bailiff, please?

19 THE FOREPERSON: (Tendering) I 20 THE BAILIFF: (Tendering)

I 21 THE COURT: Okay. Would y~u please stand

22 and read your verdict? I 23 Would the defendant stand for the

2 4 reading of the verdict? I J .. .,._ . 25 THE DEFENDANT: (Standing)

I SUMMER TANNER, CSR, RPR 252nd District Court I - - - - - - ·- ·-· . 1-- 118 I ·- ..

1_ / _1. '·· ...... ~. 1 THE FOREPERSON: (Reading) We, the jury,

2 find the defendant guilty of the offense of felony

I 3 driving while intoxicated, as indicated in the -- as 4 alleged in the indictment.

I 5 THE COURT: Thank you. You may be seated.

6 You may be seated. I 7 Is the State ready to proceed with I. 8 the punishment phase? 9 MR. THOMAS: Can we have maybe five I 10 minutes to get organized? 11 I 12 THE COURT:

MR. THOMAS: Sure.

Is that okay? ..

I ,;" ··~···~

., 13 THE COURT: Let's make it a seven-minute 14 break . We will start back-- I'll give you time to I 15 stretch your legs. We'll start back at 2:20. What

I 16 we'll do, we'll go through the punishment phase. 17 Mr. Thomas will have an opportunity to present

I 18 evidence, if any, to you. Mr. Desmarais will have that

19 same opportunity, if any. Once both sides have rested, I 20 I'll prepare another charge, and then it will be your

I 21 22 duty to determine the appropriate punishment. a six-and-a-half-minute break. Remember the So, take

I 23 instructions; don't talk about the case anymore amongst

24 yourselves until we get the next charge to you. I'll I ··-~ ( ,.

• .. 25 see you back here at 2:20. You're free to go.

I SUMMER TANNER, CSR, RPR 252nd District Court I 1--- 119

1-- .-

1__\( ·-......~ .. ·' 1 (JURY EXITS COURTROOM)

2 THE COURT: Okay. Let the recozd reflect

I- 3 the jury is not present. What -- is this

4 MR. THOMAS: It's habitual.

I 5 THE COURT: That's what I'm wondering. Do

~--- 6 you want an opportunity talk to see if y'al.l can't get 7 this resolved? I mean, I'm not going to get in your ~-- 8 business, but I just want to -- if y'all want that 9 opportunity -- what is it, minimum 25? ~-- 10 MR. THOMAS: Yes, sir.

~-- 11 THE COURT: Carl, do whatever you want to

12 do. Norm, I trust you. But if y'all want to have --

'· 13 MR. DESMARAIS: I'll talk with him, Judge.

14 THE COURT: a small opportunity to try I 15 to get it resolved, that's great. If hot, we'll start

I 16 back. 17 How long do you need or

MR. THOMAS: All I have is Mr. Rose.

I 18 THE COURT: I guess my question is: Are

19 y'all going to plea true to the enhancements? I 20 MR. DESMARAIS: I believe we are going to

I 21 plea -- make them prove it up just for the r~cord, Your

I 23 THE COURT: Okay. And are you ready to do 24 that? I ... 25 MR. THOMAS: Yes, sir •

I SUMMER TANNER, CSR, RPR 252nd District court I 1--- 120 ~-- ... ····. l_j,_ • .... 1 THE COURT: Okay.

2 (RECESS FROM 2:17P.M. TO 2:30P.M.)

~-- 3 (OPEN COURT, DEFENDANT PRESE~T, NO JURY)

4 THE BAILIFF: All rise. ~-- 5 THE COURT: Thank y-ou. Please be seated.

~-- 6 All right. Any movement? Are y'all going to get it

7 resolved or -- what was the offer? 1- 8 MR. THOMAS: 30. 9 THE COURT: 30 years? I 10 MR. THOMAS: Yes, sir. 11 THE COURT: 30 months? 12.44? I 12 MR. THOMAS: 30 years.

' 13 THE COURT: All right. The offer was 30 14 years. And reject? I 15 MR. DESMARAIS: Yes, sir, we reject the

I 16 offer. 17 THE COURT: Okay. Good deal. All right.

I 18 We're ready. 19 (JURY ENTERS COURTROOM) I 20 THE COURT: Let the record reflect all

I 21 members of the jury are present. The defendant is

22 present, along with his attorney. Is the State ready

I 23 to proceed with the punishment phase? 24 MR. THOMAS: We are, Your Honor. I 25 THE COURT: Would the defendant stand for

I SUMMER TANNER, CSR, RPR 252nd District Court I I 121 1··- ..

1-r 1

2 the reading of the enhancements, please?

THE DEFENDANT: (Standing) ~--- 3 MR. THOMAS: (Reading) : And the Grand

1. . 4 Jurors, upon their oaths aforesaid, do further present 5 in and to said Court at said term, and before the

~-- 6 commission of the primary offense, the defendant was 7 finally convicted of the felony of attempted theft, a ~--·· 8 third~degree felony, on or about January 19th, 1999, in

9 Cause No. 48779, in the Criminal District Court of I 10 Jefferson County, Texas; and the Grand Jurors 11 aforesaid, upon their oaths aforesaid, do further I 12 present in and to said Court at said term that bef6re

13 the commission of the primary offense the defendant was '"'·--··'

14 fin~lly convicted of the felony of driving while I 15 intoxicated, a third-degree felony, on February lOth,

I 16 1999, in Cause No. 97-0605-CR in the 25th Judicial 17 District Court of Guadalupe County, Texas; and the

I 18 Grand Jurors aforesaid, upon their oaths aforesaid, do 19 further present in and to said Court at said term, that I 20 before the commission of the primary offense, and after

I 21 the conviction in Cause N~. 48179 became final, and

22 after the conviction in Cause No. 97-0605-CR became

I 23 final, the defendant committed the felony of driving 24 while intoxicated, third~degree felony, and was finally I /- __ j \ .. 25 convicted of such felony on March 12th, 2002, in Cause

I SUMMER TANNER, CSR, RPR 252nd District Court I I I I 122

I ). " .. 1 No. 83727 in the Criminal District Court of Jefferson ....,

I 2 County, Texas. Against the peace and dignity of the 3 State, signed by the foreperson of the Grand Jury. I 4 THE COURT: Okay. Mr. Bellotti, to these

I 5 enhancements, do you enter into a plea of true or not 6 true?

I 7 THE DEFENDANT: Not true. 8 THE COURT: Okay. You may be seated. I 9 Mr. Thomas, call your first witness.

I 10 MR. THOMAS: Call Carl Rose, Your Honor. 11 THE COURT: Okay. Will raise your right I .... .,....-- .... 12 hand for me .

13 (WITNESS SWORN) I ''··~--~·"

14 THE COURT: Could y'all approach the bench

I 15 real quick, please, Mr. Desmarais?

16 (AT THE BENCH, ON THE RECORD) I 17 THE COURT: Is that --

I_ 18 MR. THOMAS: I'm not going to read that

19 because that was used to enhance it to just a felony. I __ 20 THE COURT: I just wanted to make sure. 21 MR. THOMAS: But I am going to prove those 1-- 22 up, too. 23 THE COURT: That's what I wanted to make 1-·- .. 24 sure. 1 . ·· i __j 25 MR. THOMAS: Yes, sir. I I I 123

I ( -· ~. .. 1 THE COURT: Good deal.

I 2 (OPEN COURT, DEFENDANT AND JURY PRESENT)

3 THE COURT: You may proceed. I 4 MR. THOMAS: Thank you, sir. 5 JAMES CARL ROSE, I 6 having first been duly sworn, testified as follows:

I 7 DIRECT EXAMINATION

8 BY MR. THOMAS: I 9 Q. Mr. Rose, would you state your full name for

10 the ladies and gentlemen of the jury. I 11 A. James Carl Rose.

I /·····- 12 Q. And what do you do for a living, sir?

·... ·-··' 13 A. I work for the Jefferson County Criminal I .. . - 14 District Attorney's Office as an investigator .

I __ 15 Q. What are the duties of an investigator with

16 the Criminal District Attorney's Office?

I __ 17 A. We assist in the prosecution of criminal cases

18 in Jefferson County to assist the prosecutors in any 1-- 19 form and fashion which they need to make their cases

1-- 20 better. We also investigate criminal cases that are 21 proposed to us by the District Attorney'S Office. 1-- 22 Q. How long have you been employed in this

23 capacity? 1-- 24 A. I've worked for the D.A.'s Office 19 years.

1--·:··... · 25 Q. Prior to that, where were you employed? I I I 124

I { ·--. 1 A. I worked for Groves Police Department 18 ···-

I 2 years. 3 Q. Do you have any training in fingerprints?

I 4 A. Yes, sir, I do.

5 Q. What type training and experience do you have I 6 with fingerprints?

I 7 A. I attended the Texas Department of Public

8 Safety basic ID officer's course in 1975. I've also I 9 attended the DPS intermediate and advanced latent 10 fingerprint course. In addition to the Texas I 11 Department of Public Safety, I also attended the FBI

I /,·· 12 basic, intermediate and advanced latent fingerprint 13 course, as well. I __ - 14 Q. So, about 35 years or so you've been doing

I_ 15 fingerprints?

16 A. I've been looking at a lot of ridges for 35

1- 17 years, yes, sir.

18 Q. And sometimes you're called upon to testify in 1-- 19 court about the results of a fingerprint analysis 20 you've done; is that correct? 1--- 21 A. That's correct.

1--- 22 Q. Let me show you what I've marked as State's

23 Exhibit No. 2. Do you recognize what State's 2 is 1- 24 (tendering)?

25 A. Yes, sir. rt~s a set of inked fingerprints I I I I 125

I .J- - -· . .-· 1 took from the defendant . .......

I 2 Q. When you say "the defendant," who are you

3 talking about? I 4 A. Mr. Bellotti in the blue tie and kinda khaki

5 jacket. I 6 MR. THOMAS: I ask the record reflect he's

I 7 identified the defendant.

8 THE COURT: The record will so indicate. I 9 Q. (BY MR. THOMAS): So, you took fingerprints

10 I 11 from Mr. Bellotti, and that's what's contained in No. 2; is that correct?

I 12 A. Yes, sir.

I .,_ 13 Q. And at my request, did you take a series of

14 docqments and look to compare to see -- first of all,

I__ 15 see if there's any fingerprints in these documents and

16 compare the fingerprints in 2 with these documents? I_ 17 A. That's correct.

18 II _ _ 19 Q. Let me show you what I've marked as State's 8, 9 and 10 first. Have you seen 8, 9 and 10 before

1-- 20 {tendering)?

21 A. Yes, sir, I have. 1-- 22 Q. And what are those documents?

23 A. These are what we refer to as pen packets. 1- 24 Q. What's a pen packet? 25 A. It's a certified document from the Texas I I I 126

Ij ,- 1 Department of Criminal Justice Institutional Division. ·....

I 2 It normally includes a photograph, a set of 3 fingerprints and a judgment and sentence, which I 4 indicates why the subject was in prison.

I 5 Q. Okay. A judgment and a sentence,

6 the documents that are use by the court to; I guess, those are

I 7 put on paper why they're be~ng sent to prison?

8 A. That's correct. I 9 Q. Did you -- in those, 8, 9 and 10, you said you

I 10 11 found fingerprints?

I ~ ... · .. 12 Q. Did you compare the fingerprints in that 8, 9

13 and 10 with the fingerprints you found on State's I 14 Exhibit No. 2?

I 15 A. Yes, sir, I did.

16 Q. The fingerprints found in 8, 9 and 10, did I __ 17 they match the fingerprints of Carl Bellotti?

I __ 18 19 A. Q. Yes, sir, they did.

Is it your testimony those fingerp- -- those

I __ 20 documents ~- the fingerprints in those document$, 8, 9 21 and 10, belong to this defendant (po~nting)?

1-- 22 A. Yes, sir.

23 1- 24 MR. THOMAS:

would tender State's 8, Your Honor,

9 and 10. at this time, I

I -{ "'-·" 25 MR. DESMARAIS: No objections at this I I I 127

1 time.

2 THE COURT: State ' s 8 , 9 and 1 0 wi 11 be 3 admitted.

4 (STATE'S EXHIBITS NO. 8, 9 AND 10 ADMITTED)

I 5 Q. (BY MR. THOMAS) Mr. Rose, have you ever 6 heard of two people having the same set of

I 7 fingerprints?

8 A. No, sir. I 9 Q. Let's --walk me through some of these

I 10 documents, if you will. We're going to start with No. 11 8, Exhibit No. 8. Inside of that, flip through to the

I •' 12 first set of j u d gme n t and s e h ten c e s . State's No. 8,

13 if I understand correct, has a number of judgments and I _ _, 14 sentences for various offenses; is that correct?

I_ 15 A. That's correct.

16 Q. Okay. The first one you come to in State's I __ 17 No. 8, what's the cause number in that?

I __ 18 19 A. Q. 48779.

Okay. And for "Carl Mathew Bellotti"?

1--- 20 A. That's correct. 21 Q. Take a look and compare that with State's 22 Exhibit No. 9. What does No. 9 say in that? 23 1- 24 A. It's also a judgment and sentence of Cause No. 48779 of "Carl Mathew Bellotti." 1-(_~_:- 25 Q. And State's No. 9, though, is a judgment I I I 128

I _{ 1 adjudication -- adjudicating guilt, and what else is '· .......

I 2 contained in that right underneath that writing?

3 A. First Amended Nunc Pro Tunc. I 4 Q. Okay. And that State's No. 9, the nunc pro

I 5 tunc judgment and sentence, what's the offense he was 6 convicted of?

I 7 A. In No. 9, it was attempted theft.

8 Q. So, this No. 9 apparently corrects some I 9 paperwork errors in State's No. 8; is that correct?

I 10 A. That's my understanding. Yes, sir. 11 Q. Okay. Go to the next one, please, sir. I 1..,---.. ,__ 12 A. Cause No. 65217.

13 Q. ·And what is that --who's the person, the I 14 subject of that?

I 15 A. "Carl Matthew Belotti, III. "

16 Q. And what offense was he convicted of in that? I 17 A. Felony driving while intoxicated.

18 Q. -- I Okay. And the offense

19 of that judgment and sentence? or the judgment date

I_ 20 A. January 19th, 1999. 21 Q. Okay. If you'll go forward to the next one, I_ 22 please, sir. What is that one?

23 A. Cause No. 69062. 1---- 24 Q. Okay. Out of -- Carl Matthew Belotti, again? I j~- . '~~ 25 A. Yes, sir . I I I 129

I _j 1 Q. Was that out of the Criminal District Court of '• .. •'

I 2 Jefferson County, Texas? 3 A. That's correct. I 4 Q. What was the offense that he was convicted of

I 5 6 in that judgment and sentence? A. Felony driving while intoxicated.

I 7 Q. Was, again, the judgment date of January 19th, 8 1999? I 9 A. Yes, sir.

I 10 Q. Okay. Move on forward. What is that one for? 11 A. That is Cause No. 97-0605-CR. I .. 12 Q. Okay .

13 A. It's in District Court of Guadalupe County, I ·-. .... ·

14 25th Judicial District.

I 15 Q. And is that Carl Matthew Bellotti, also? 16 A. That's correct, sir. I 17 Q. What was Mr. Bellotti convicted of in

18 Guadalupe County? 1.-.. 19 A. All these are different, so just hang with me.

I __ 20 Driving while intoxicated, felony. 21 Q. All right, sir. Any more judgments and I._ 22 sentences in that particular --

23 A. 1.-- 24 No, E;ir. Q. Okay. This is how State's No. 10. Look

I ·-' '· 25 through that pen packet, if you would, please. What I I I 130

I .J i 1 was the cause number for that?

I 2 A. Cause No. 83727.

3 Q. Okay. Out of the Criminal District Court of I 4 Jefferson County, Texas?

And what was the conviction?

I 7 A. Driving while intoxicated, second. 8 Q. Okay. And then, again, Carl Matthew Bellotti; I 9 is that correct?

I 10 11 A. Q. That's correct. Okay. So, if we use that one, and then

I --· 12 there's apparently three DWI -- felony DWI convictions ' 13 in this pen packet, so there's four -- there's I ,_ "·· .

-- . 14 paperwork for four different prior felony DWI

I_ 15 convictions; is that correct?

16 A. That's correct. I__ 17 Q. And in addition to that, the felony of 18 attempted theft; is that correct? 1-- 19 A. That's correct.

1-- 20 Q. Now, let me show you -- this is State's

21 Exhibit 3, 4, 5, 6, and 7 1-- 22 THE COURT: Did you say "2"? 23 MR. THOMAS: No, sir. 1--- 24 THE COURT: What did you say?

1 25 MR. THOMAS: I said 3 through 7. I I I 131

I ! .. l 1 THE COURT: Thank you . . ~~--

I 2 MR. THOMAS: Yes, sir. 3 Q. (BY MR. THOMAS): Have you seen 3 through 7? I 4 A. Yes, sir.

5 Q. I 6 A. And what are those?

These are judgments and sentences out of

I 7 County Court at Law. 8 Q. Okay. For misdemeanor convictions; is that I 9 correct?

I 10 11 A. Q. That's correct.

Did you compare the fingerprints you took off

I I _, .... 12 your fingerprint card, State's No. 2, with the

13 fingerprints found in those exhibits? I ···~ ...

14 A. Yes, sir, I did.

I_ 15 Q. And the fingerprints in those exhibits, they 16 belong to Car 1 Bellotti? I_ 17 A. That's correct.

I_ 18 MR. THOMAS: Your Honor, at this time, 19 would tender State's 3 through 7, Your Honor. I

1-- 20 21 THE COURT: Okay. MR. D~SMARAIS: No objections, Your Honor. 1-- 22 THE COURT: 3, 4, 5, 6 and 7 will be 23 admitted. 1- 24 (STATE'S EXHIBITS NO. 3-7 ADMITTED)

I 25 Q. (BY MR. THOMAS): State's No. 3, sir, what was ---------------- ~-- ------ ----------------

I I I 132

II 1 the convi~tion of for -- misdemeanor conviction in that

I 2 case (tendering)? 3 A. Controlled substance possession. I 4 Q. And then State's No. 4, what was the 5 misdemeanor conviction in that case? I 6 A. Controlled substance possession.

I 7 Q. No. 5, what was the misdemeanor conviction in 8 that case? I 9 A. Possession of marijuana. 10 Q. I 11 one? State's No. 6, what was the conviction in that

I 12 A. Possession of dangerous drugs. 13 Q. And No. 7, what's the misdemeanor conviction I 14 in that one?

II_ 15 A. Possession of dangerous drugs. 16 MR. THOMAS: Your Honor, I pass the I_ 17 witness at this time. 18 THE COURT: Mr. Desmarais? I 19 CROSS-EXAMINATION

1- 20 BY MR. DESMARAIS: 21 Q. Are all these -- those cases are based upon 1- 22 the amount of money involved; correct?

23 A. Sorry? 1-- 24 Q. Theft cases are based on the money ihvolved?

l_ __j' ,_ 25 A. That's correct. I I I 133

I (- ·. . 1 Q. Attempted theft takes the least -- one of the

I 2 a reduction of one grade -- 3 A. Yes, sir. I 4 Q. felony?

5 I 6 attempted theft Now, this case he was found guilty of,

I 7 A. Okay.

8 Q. -- is that correct? I 9 A. I'll have to look at it, sir. I believe

I 10 11 that's correct.

Q. Theft is a third degree?

I 12 A. It all depends on what the value of the

I, 13 property was. 14 Q. Do you know what the value of the property was

I_ 15 of this or what the indictment was that they said 16 this was? 17 A. Sir, I don't know anything about the case

18 I __ 19 itself.

Q. I don't have any knowl.edge of it at all.

You read the indictment on this case; correct?

I 20 A. I would have to look at it, sir. 21 Q. (Tendering) I 22 A. Yes, sir, I did. 23 Q. 1- 24 A. Misdemeanors are qualified here as C, B and A? I'm sorry. I couldn't hear you.

1- 25 Q. Misdemeanors are qualified as C, B, and A? ---------··------- ·-·-·- - - - · - -------

I I I 134

I .I 1 A. That's correct .

I 2 Q. C's are the ones that they handle in municipal 3 courts and justice of the peace court? I 4 A. Yes, si.r. They're kinda like a traffic 5 ticket. I 6 Q. And then B's would be the lowest level that's

I 7 handled by the county courts? 8 A. That's correct. I 9 Q. And what are usually dangerous drugs?

I 10 11 A. They're drugs that don't qualify for the

well, controlled it's not a controlled substance.

I 12 It's one grade less than controlled substance. It

13 comes in as a dangerous drug. I 14 Q. A lot of prescription medicine?

I 15 A. Mostly, yes, sir.

16 Q. Mostly prescription medication. I_ 17 So, possessing something like that, you

I __ 18 don't have a proper prescription or something like 19 that?

1- 20 A. That could be it, yes, sir. 21 Q. Now, on these identify -- where you identified 1-- 22 the fingerprints, how many prints did you identify? 23 A. I 24 On each one of the county court cases,

stopped at 10. On the pen packets, I I

w.ent all the way

I \ ··-\..... 25 up to 15. _ _ _ _ _ _...c.__ _ _ _ _ _ _ .. _,, ____________ _

-----------·---

I I I 135

I.. I I \. /

1 Q. 10 and 15?

I 2 A. Yes, sir. 3 MR. DESMARAIS: Pass the witness. Thank I 4 you.

I 5 6 THE COURT: MR. THOMAS: Mr. Thomas? I have nothing further, Your

I 7 Honor.

8 THE COURT: Sir, you may step down. I 9 MR. THOMAS: State of Texas rests -- well,

I 10 11 I would ask the Court to admit any evidence in the

guilt/innocence phase of the trial here in the

I 12 punishment phase. ( 13 THE COURT: Okay. It will be. I \_

14 MR. THOMAS: With.that, the State of Texas

I 15 would rest. 16 THE COURT: Mr. Desmarais? I 17 MR. DESMARAIS: Defense rests, Your Honor.

18 THE COURT: Okay. Ladies and gentlemen, I 19 I'm going to prepare the second charge. Give us --

I 20 give me until 10 minutes after three o'clock. We'll

21 try to have it done. I may not be that quick, so bear I 22 with me. Let's check back at 10 minutes after 3:00.

I 23 If we're ready, I'm going to give the attorneys ten

24 minUtes a side to argue, then you'll have the case. 1. . ( 25 But ten minutes until 3:00. If we need a few more ------

I I ···-

I 136

I 1 minutes, I' 11 tell Wayne and Tony, and we' 11 get you

I 2 back as soon as I'm ready. You're free to go. 3 Everybody else remain seated. I 4 (JURY EXITS COURTROOM)

I 5 THE COURT: Let the record reflect the 6 jury's not present-.· Mr. Bellotti is, along with his

I 7 attorney. Mr. Bellotti, I want to make sure yqu 8 understand you have the same right to testify in the I 9 punishment phase, and I know Mr. Desmarais has covered

I 10 that with you. Do you want to ~aive your right to 11 testify, or do you wish to testify? I ,~·' ..... 12 THE DEFENDANT: I will waive my right.

13 THE COURT: Okay. So, you do not want to I 14 testify?

I 15 THE DEFENDANT: No, sir.

16 THE COURT: Okay. I find that you I 17 intelligently and knowingly made that decision. I need

18 I 19 to see y'all in the back.

MR. THOMAS: Can I make one request on the

I 20 record? 21 THE COUET: Sure~

I -- 22 MR. THOMAS: The last paragraph of the

I 23 indictment, it says the defendant committed the felony 24 of driving while intoxicated, dash, third-degree I 25 felony, I just want to drop that language "third-degree 1- --···--

I I 137

I ( \ ---·1 " 1 felony" in there. I think there's a misspelling of the

I 2 word "felony." I'll just drop that phrase, leave it as

3 "committed the felony of driving while intoxicated," I 4 and then it goes on from there.

I 5 THE COURT: 6 that, Mr. Desmarais? Got you. Any objection to

I 7 MR. DESMARAIS: No.

8 THE COURT: Okay. It's done. Y'all come I 9 on back.

I 10 11 (RECESS FROM 2:52 P.M. TO 3:13P.M.)

(OPEN COURT, DEFENDANT PRESENT, NO JURY}

I I' 12 THE BAILIFF: All rise. 13 THE COURT: Thank you. Please be ~eated.

I 14 Have you sent that?

I 15 MR. THOMAS: Yes, sir. Cause No. 7283 on

16 Carl Matthew Bellotti. If y'all don't m:ind, come on I_ 17 up, please. I need the indictment.

18 Okay. Are you Carl Matthew Bellotti? I 19 Are you Mr. Bellotti?

I 20 THE DEFENDANT: Yes, sir. 21 THE COURT: Mr. Desmarais, will he waive I 22 the formal reading of the indictment?

I 23 24 reading. MR. DESMARAIS: We'll waive the formal

I- 25 THE COURT: The indictment in this case ~-- -~--- ------------------------··------------- - - -- -·--- ---- ----------··-···--------- ----- . ···- __ ., __ _

1 I 138

I 1 alleges that on or about the 21st day of September,

I 2 2008, that you committed the offense of felony driving 3 while intoxicated. To the indictment, do you enter I 4 into a plea of guilty or not guilty?

I 5 6 THE DEFENDANT:

THE COURT: Guilty.

Have you pled guilty freely

I 7 and voluntarily?

8 THE DEFENDANT: Yes. I 9 THE COURT: And is that is this your

I 10 11 signature on State's Exhibit No. 1?

I Jr·· 12 THE COURT: Prior to signing that

13 documeht, did you read it and/or did Mr. Desmarais I --~-....

14 explain it to you to your full and complete

I 15 satisfaction?

16 THE DEFENDANT: Yes, sir, he did. I 17 THE COURT: Do you have any questions

18 about it? I -- 19 THE DEFENDANT: No, sir.

I 20 THE COURT: State's tender No. 1. 21 MR. DE.SMARAI S: No object ion. I 22 THE COURT: State's No. 1 is admitted.

I 23 24 (STATE'S EXHIBIT NO.

THE COURT: 1 ADMITTED)

Any evidence that he is

I 25 incompetent? 1·-· --------·-··---·-----·-· ----·----.-·-. -· -·-- I I. 139

I ( ... \ r"

1 MR. DESMARAIS: No evidence, Your Honor.

I 2 THE COURT: The third paragraph states

3 that before the commission of the primary offense that I 4 you were finally convicted of the felony of attempted

I 5 theft, a third-degree felony, on January 19th, 1999, in 6 Cause No. 48779, in the Criminal District Court of

I 7 Jefferson County, Texas. Is that provision true or not

8 true? I 9 THE DEFENDANT: That's true.

I 10 11 THE COURT: The next paragraph says that

before the commission of the primary offense that you

I f ....... 12 were finally convicted of the felony of driving while

13 intoxicated, a third-degree felony, on February lOth, I '· .... _.

14 1999, in Cause No. 97-0605-CR, in the 25th Judicial

I 15 District Court of Guadalupe County. Is that true or

16 not true? I 17 THE DEFENDANT: That's true.

I_ 18 19 THE COURT:

MR. THOMAS: That's all we need, isn't it?

I think we need that last

I -- 20 one, Judge. 21 THE COURT: Sorry. And the last paragraph 1- 22 says that before the commission of the primary offense,

1.:. 23 and after the conviction in Cause No. 48779 became 24 final, and after the conviction in Cause No. 97-0605-CR

1--( 25 became final, you committed the felony of driving while ---- 1--·- - - - - - - - · - - - - - -- - - - - - - - ·---------- - - - - - - - - - - ·-··-· ···---·····--

I I 140

I I \ i

1 intoxicated, and that you were finally convicted of

I 2 that felony on March i2th, 2002, in Cause No. 83727, in 3 the Criminal District Court of Jefferson County. Is I 4 that provision true or not true?

T.HE COURT: True.

Have you pled true to all

I 7 enhancement paragraphs freely and voluntarily?

8 THE DEFENDANT: Yes, sir, I have. I 9 THE COURT: Okay. You've entered into a

I 10 proposed plea bargain agreement with the State. The

11 recommendation is that I find you guilty -- and a

I / 12 jury's already found you guilty -- assess your

13 punishment at 30 years' confinement in the I -- .... -

14 Institutional Division and you're waiving all rights to

I 15 appeal and you'~l have no right of appeal. Is that

16 your understanding of the agreement, Carl? I __ 17 THE DEFENDANT: Yes, sir.

I __ 18 19 do? THE COURT: Is that what you want me to

I._ 20 THE DEFENDANT: Yes, sir. 21 THE COURT: Now, you know we just -·- the 1-- 22 jury's out in the hallway. We went through punishment

1-- 23 and went through the guilt/innocence phase. 24 They found !

1_ _(. '·· 25 you guilty beyond a reasonable doubt of the offense of felony driving while intoxicated. ~---·------ ---··--·····-·------·· ... ------- ···- ·-··

I I 141

I _( ~

1 THE DEFENDANT: (Nodding head up and down)

I 2 THE COURT: We were preparing the Court's

3 charge to get the jury back in here to make the I 4 determination as to what would be the appropriate 5 punishment, and while they're out, that's when you-all I 6 worked out this agreement, and you're asking me to

I 7 approve a 30-year deal before that jury comes back in?

8 THE DEFENDANT: Yes, sir, Your Honor. I 9 THE CQURT: If I do this, the jury doesn't

I 10 11 have any say. I will cut them lose, send them home, and your day in court is done.

I /" 12 THE DEFENDANT: That's it.

13 THE C:OURT: Understanding all that, do you I .. ..

14 want me to accept this agreement?

I_ 15 THE DEFENDANT: Yes, I do. 16 THE COURT: Okay. Mr. Desmarais, is there I_ 17 any reason not to do it today?

18 MR. DESMARAIS: No, sir. 1--·- 19 THE COURT: I, and the jury, find the

1- 20 evidence to be sufficient the find you guilty of the 21 offense of felony driving while intdx~cated. I find

1- 22 the enhancement provisions to be true. You are guilty. 23 I assess your punishment, pursuant to your agreement, 1-- 24 at 30 y~ars' confinement in the Institutional Division. 1-_i, .. 25 You will receive credit for any time that you're 1- - - - - - - - - - - - - - - - - - ------· ------------------

I I 142

I /-·---.

~-' 1 entitled to by la.w. If you have any other case out

I 2 there, this will run concurrently with those cases. 3 You have waived all rights to an appeal. You have no I 4 right of appeal, Let me ask you this: Are you a

5 hundred percent satisfied with Mr. Desmarais? I 6 THE DEFENDANT: Yes, I was.

I 7 THE COURT: Do you halfway like me now?

8 THE DEFENDANT: Never have disliked you. I 9 THE COURT: All right. I just want to

I 10 make sure. 11 certification. I'm going to get you a copy of the

I truly do wish you the best.

I ,,-· ·:·. 12 THE DEFENDANT: Wish you the best, too,

13 Your Honor. I '• ...-

14 THE COURT: I will give you and your

I 15 mother -- I didn't know about that. Sorry to hear

16 about that. I 17 THE DEFENDANT: Thank you.

18 I __ THE COURT:

19 few minutes back in the back. I will g~ve you and your dad a

Do this, Tony: Put him

I __ 20 up for just a second. Let me dismiss the jury so they 21 can get their stuff out of the jury room. Then we will 1--- 22 put y'all in there together; okay? Good luck t6 you,

2~ man. See.you later. 1--- 24 Norm, we should have that printed up I/ ___ \ '·· . . 25 right about now. I I I 143

I _( 1 Carl, good luck man. See you later. -.....

I 2 (JURY ENTERS COURTROOM) 3 THE COURT: All righty. I guess y'all are I 4 wondering why in the world we're so late, and the

I 5 reason we are, while you were on a break,

6 were available to reach an agreement. the parties

Mr. Bellotti

I 7 just pled guilty, in conformity with your verdict, and

8 agreed to a 30-year sentence in the Institutional I 9 · Division. Now, understand this: By .finding him

I 10 guLlty, if you believed that two of those prior 11 felonies were true, which I'll tell you there's no I ,....-····-- 12 evidence otherwise ~- there it is -- and if you follow

13 the law and you follow the evidence, you go, yeah, he I ., .. ,_ .. ..

14 was convicted of those other felonies, the minimum

I 15 punishment for him would have been 25 years' 16 confinement in the Ins tit u t ion a 1 Di v.i s ion . So , I_ 17 Mr. Desmarais has been do~ng this a long time.

I __ 18 Mr. Tho~as has been doing this a long time.

19 justice prevailed, but it took getting y'all down here And

I~ 20 and going through this process. And just so you'll 21 know, we tried this case a year ago? Two years ago 1-- 22 and the jury had -- it was a hung jury. So, it's just

1-- 23 been we have been trying to get it back up. 24 hard to try something twice. Without y'all coming down It's

I . _.}' . 25 here giving up your time, we wouldn't have a _______ __ 1- - ·---·-~-··-· - - - - - - · - - - - - -.. ------·-·-·-·- .. · - - - - - - - - - - - · - · - - - --- , ..

I I 144

I f 1 disposition of the case. But Mr. Bellotti will be ___ :· ' ........

I 2 going to the Instit~tional D~vision for 30 years. And

3 with that, you are now released from the instructions I I 4 gave you. If you want to talk to me, you are more than

I 5 welcome. If you want to talk to the attorneys, you're

6 more than welcome to. If you don't want to talk to

I 7 anybody and you want to get outta here and need a work 8 excuse signed, Wayne or Tony is going to show you where I 9 Ms. Ramos's office is. We are going to get all of

I 10 y'all's stuff out of the jury room. You run in there,

11 grab your stuff. You get 40 bucks for eVery day you've

I ,-· '· -. 12 been here. Don't spend it all in one place. I'll say

13 this much to you: Any time 12 people can come toget.h~r

I \_.

14 and make a decision, justice always prevails. Y'all

I 15 did -a great j o b . Thank you so much. See you next jury

16 service. Go·get your stuff and get outta here.

I 17 (JURY DI SMI S S.ED)

18 I 19 I 20 21 I 22

I J\..__ . .- 25 I --------------------·----·- -·····- ---------·---------·--·-···

I I 145

I (---.'; --\. _____ ,....,., 1 REPORTER'S CERTIFICATE

I 2 THE STATE OF TEXAS) COUNTY OF JEFFERSON) 3 I 4 I, Summer Tanner, Official Certified Shorthand

5 Reporter in and for the State of Texas, do hereby I 6 certify that the above and foregoing contains a trUe

I 7 and correct transcription of all portions of evidence

8 and other proceedings requested in writing by counsel I 9 for the parties to be included in this volume of the

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

I I ,.-, . '. 12 chambers and were reported by me.

13 I further certify that this Reporter's Record of I '-···· 14 the proceedings truly and correctly reflects the

I 15 exhibits, if any, admitted by the respective parties.

I 17 preparation of this Reporter's Record is 18 _iU_:__1.Q_____ and was paid by l!JY..:.fU.'J__]_dj__p_Jjj_ · I_ 19 $ __

WITNESS lq~ I 20 day of 2013.

21 I 22 23 I 24 Summer Tanner, RPR Texas CSR #8208 Expiration Date: 12/31/14 Official Court Reporte;· I -(,> 25 Jefferson County, Texas Beaumont, Texas 77701