Gamboa, Joseph

• Court: Texas Supreme Court
• Decided: January 8, 2015
• Docket: WR-78,111-01
• Status: Published

Opinion

. H E COURT OF CRIMINAL AP~S OF TEXAS ORDER ADOPTING SUMMARY SHEET. FOR POST -CONVICTION APPLICATIONS FOR WRIT OF HABEAS CORPUS -SUPPLEMENTAL CLERK'S RECORD- DEATH PENALTY

Application for Writ of Habeas Corpus Ex Parte GAMBOA, from BEXAR ·County JOSEPH Name of Applicant) D379 Court

TRIAL COURT WRIT NO. 200SCR7168A-Wl

CLERK'S SUMMARY SHEET RECEIVED IN COURT OF CRIMINAL APPEALS APPLICANT'S NAME: JOSEPH GAMBOA (As reflected in judgment) JAN 08 2015 OFFENSE: CAPITAL MURDER- OTHER FELONY (As reflected in judgment) Aoe• Acosta, Clerk CAUSE NO: 2005CR7168A (As reflected in judgment) PLEA: GUILTY X NOT GUILTY NOLO CONTENDERE SENTENCE: DEATH DATE: MARCH 8, 2007 (Terms of years reflected in judgment) TRIAL DATE: FEBRUARY 23,2007 JUDGE'S NAME: BERT RICHARDSON (Judge presiding at trial) APPEAL NO: _ _ _ _ _ _ ___;__ _ _ _ _ _ __ (If applicable) CITATION TO OPINION: _ _S.W.3d._ _ (If applicable) HEARING HELD: _ _YES NO (Pertaining to the application for writ of habeas corpus) FINDINGS & CONCLUSIONS FILED:_x_YES NO (Pertaining to the application for writ ofhabeas·corpus) · RECOMMENDATION: _GRANT_DENY_DISMISS . (Trial court's recommendation regarding application for writ of habeas corpus) JUDGE'S NAME: BERT RICHARDSON (Judge presiding over habeas corpus proceeding) NAME OF COUNSEL IF APPLICANT IS REPRESENTED: _ _ _ _ _ __ NO. 200SCR7168A-Wl

·sUPPLEMENTAL WRIT INDEX

CAPTION ................................................................................................•........ ~ ............................. 0

REPORTER'S RECORD VOLUME 5 OF 6 VOLUME (S) APPLICATION FOR POST-CONVICTION HABEAS CORPUS (PG 39-120) .............. 1-82

CERTIFICATE ............................................................................................................................ 83 (

• CAPTION

THE STATE OF TEXAS * COUNTY OF BEXAR * At a regular term of the 379TH Judicial District Court of Bexar County, Texas,

begun and held at San Antonio, State of Texas, before the Honorable BERT

RICHARDSON Presiding thereof, which opened on the 18T day of JANUARY A.D~, 2015,

and will adjourn. on the 28™ day of FEBRUARY A.D., 2015, the following cause came on

for trial, to-wit:

NO. 2005CR7168A-Wl

EX PARTE: GAMBOA, JOSEPH

vs THE STATE OF TEXAS

****************** e·. Page 39

1 Q Now,. your mitigation expert did not testify at

2 trial, I believe.

3 A Linda Mockridge did not testify.

4 Q Okay. And that's pretty much the protocol, you

5 use them as kind of a support team and they're, generally,

6 not going to testify, you get other people to testify for

7 you; is that correct?

8 A Yeah. I think that's been certainly-- let me

9 just think for a s~cond. Certainly, Ms. Mockridge didn't

10 testify in this trial. I'm trying to think if I've ever had

11 a mitigation expert testify in other trials and I don't

12 believe I have.

13 I think, you know, whatever mitigation they uncover, I

14 think it's -- we either try to put on some family to support

15 it or -- or, if we had the actual records from Child

16 Protective Services, I think we probably offered those

17 through the.appropriate custodian and then had Ms. Milam

18 consider those in her -- in giving som~ background on this

19 young man.

20 Q Very good.

21 MR. LANGLOIS: I don't have any further

22 questions.

23 THE COURT: Anything else?

24 BY MS. WELSH:

25 Q Just one last question, just to clear up on this

ANGIE RANGEL JIMENEZ, CSR (210) 288-0312 Page 40

1 Dr. Milam thing. In fact, other than a statement that she

2 makes in her affidavit, that says something about brain

3 damage, at trial she actually testified that he is not

4 mentally retarded~ not doing well, it is not from a brain

5 injury, like an accident of some kind, but more genetic.

6 Does that sound familiar?

7 A Yeah. That's --you know, I think that's --that

8 was more the -- the theme and that certainly supported, I

9 think, the evidence that we were -- that we were trying to

10 put on.

11 MS. WELSH: I have nothing further, your

12 Honor.

13 THE COURT: Anything else?

14 MR. LANGLOIS: I have no further questions.

15 THE COURT: Okay. Mr. Hancock, this question

16 has come up in the last two Writs I have done here in Bexar

17 County: In your career, have you had anybody acquitted o£

18 murder or capital murder charges?

19 THE WITNESS: Well, the answer to that

20 question is "yes," your Honor. I've had-- I represented a

21 young man years ago in the 290th District Court that was

22 found not guilty of capital murder.

23 And I certainly, have had multiple cases where I

24 represented people that are charged with murder and they

25 have been found not guilty by juries, as well.

ANGIE RANGEL JIMENEZ, CSR (210) 288-0312

2 Page 41

1 THE COURT: Was that capital case a death

2 penalty case? '

3 THE WITNESS: It was not. It was -- it

4 was -- even predated life without parole. It was just a

5 life in prison case.

6 THE COURT: Okay. Anything else from either

7 side?

8 MS. WELSH: No, your Honor.

9 THE COURT: Okay. Mr. Langlois?

10 MR. LANGLOIS: No.

11 THE COURT: Okay. All right. Thankryou.

12 THE WITNESS: Thank you, judge.

13 And may I be excused for the entire time?

14 THE COURT: Yes, sir. Yeah.

15 Okay. Lunch?

16 MR. LANGLOIS: I would like to start with

17 Dr. De France.

18 THE COURT: We can start right now and go for

19 a few minutes, or if Dr. De France or anybody else is hungry

20 we can go to lunch and start right after lunch, whatever you

~1 prefer: We started late, so it makes no difference to me.

22 Dr. De France, how are you doing?

23 MR. DE FRANCE: Fine, your Honor.

24 THE COURT: Do you want to start rolling? We

25 can get your qualifications out. That'll probably take us

3 Page 42

1 15 minutes, I think.

2 Come on up and have a seat.

3 (Whereupon, the Witness, Jon De France was

4 (called to the Witness stand.)

5 THE COURT: Raise your right hand, please.

6 State your name.

7 MR. LANGLOIS: Identify yourself, please.·

8 THE WITNESS: Jon F. De France.

9 (Whereupon, the Witness, Jon De France was

10 (sworn in by the Court.)

11 THE COURT: Okay. All right. You can

12 proceed, Mr. Langlois. If you want to just go ~head and get

13 started and you can find a logical breaking point. I'm sure

14 he's going to be on the stand longer than ten or 15 minutes.·

15 MR. LANGLOIS: Okay.

16 THE COURT: We can get some lunch and then

17 come back and finish after lunch.

18 JON DE FRANCE,

19 The witness, having been first duly cautioned and sworn to

20 tell the truth, the whole truth and nothing but the truth,

21 testified as follows:

22 DIRECT EXAMINATION

23 BY MR. LANGLOIS:

24 Q Okay. Dr. De France, would you give us your

25 professional background.

4 Page. 43

1 A I'm a clinical neuropsychologist, licensed in the

2 State of Texas.. I'm a neuroscientist. So, I have a very --

3 I have a varied background.

4 Q All right. And you were actually hired by Jay

5 Brandon to do a examination of Mr. Gamboa; is that correct?

6 A He -- he requested the examination, but he didn't

7 hire us.

8 Q Okay.

9 A He --

10 Q Okay. You were retained as an expert, I believe.

11 A Pardon me?

12 Q You're an -- you were an expert in the case? He

13 , asked you to be an expert

14 A ' Yeah. He asked for us to do an evaluation.

15 Q Okay. And tell us what you did for the

16 examination.

17 A Well, it was a little -- it was a little bit

18 different, since Dr. Milam had already conducted an

19 evaluation. So, my recollection is that Mr. Brandon wanted

20 us to -- he came to his own conclusion there was something

21 missing in the evaluation and he wanted us to kind of focus

22 in on some of the areas that that, perhaps, were not

23 sampled or not examined, and so we did that.

24 Q Okay. So, you had the availability of Dr. Milam's

25 work; is that correct?

5 Page 44

1 A Well, not originally. We -- I remember reviewing

2 her ,court testimony or a deposition, but I didn't get her

3 raw data or the background until afterwards, after I

4 finished and started the writing process --

5 Q Okay.

6 A -- but it was very useful after all.

7 Q Let me ask you this: Given what you observed from

8 Dr. Milam's testimony and the tests that she conducted, did

9 you design your evaluation for a specific purpose; other

10 than what she did?

11 A Yes., We did.

12 Q Okay. And could you tell us what -- how you

13 designed your evaluation -- your evaluation and what were

14 the factors you took into considera~ion.

15 A Well, in any kind of what -- any kind of a

16 question when there's violence, we-- we look at the the

17 task, in terms of what we consider dr~ve factors versus

18 control factors.

19 And what we were trying to do is -- what we want to do

20 is -- is determine not guilt or innocence, of course, but

21 determine the likelihood of -- of future violence, but also

22 try -- try to ~xplain -- and it's not -- not assuming guilt

23 or innocence, but it is trying to explain how something

24 might occur, how an action might occur.

25 Q Okay. Now, were you aware at the time that

6 Page 45

1 Dr~ Milam, basically, focused on .what the Halstead-Reitan

2 batteries

3 A Yeah. That was clear from what we read.

4 Q And you're talking about drive versus control.

5 Does that have anything to do with what's called the

6 executive functioning portion of the brain?

7 A Yes. It does. And we kind of reframe it for

8 for a legal proceeding, in terms of a person's capacity for

9 rational thinking and making rational decisions versus their

10 capacity to conform to society's standards.

11 Q Okay.

12 A So, executive functions come into play there. And

13 also Reitan is a well accepted battery of tests, but it

14 doesn't sample the critical tests. Mr. Hancock mentioned

15 this issue of MR, the question of MR.

16 If I may put an aside comment -- and I don't know about

17 the legal standard for mental retardation--· but in terms of

18 psychological standards, we look at -- not only at

19 intelligence level, but you look adaptive behavior.

20 Q All right.

21 A And so -- so, there's two facets of that that need

22 to be looked at for the MR determination. And adaptive

23 behavior is very much going into the quality of a person's

24 executive functioning.

25 Q Okay. Now, the Halstead, the Reitan --

7 Page 46

1 A Halstead-Reitan.

2 Q -- do they, basically, focus upon the executive

3 functioning or do they not?

4 A They do not. As a matter of fact, there's only

5 one subtest of many that -- that samples executive .functions 6 in any -- in any way at all. And I don't think that was

7 given, actually, at least it wasn't in her -- it wasn't in

8 her file that I had.

9 Q So, basically, Jay Brandon had asked you to look

10 at executive functioning elements of Mr. Gamboa?

11 A Yes, that and -- of course, in order to -- to do

12 that, we had to look at other functions as well. Basically, 13 the executive functions are the responsibility of the

14 prefrontal cortex and they are invo~ved in other functions

15 as well.

16 So, one important set of functions for predicting

17 antisocial behaviors is working memory. So, we looked at

18 that as well -- a~ well as attention.

19 Q And you -- based upon examining Dr. Milam's

20 testimony, did it appear to you that she had not

21 concentrated on or not focused on the executive functioning

22 at all in her testimony?

23 A That's true. She did not.

24 THE COURT: What part did he say?

25 THE WITNESS: Executive functioning.

ANGIE RANGEL JIMENEZ, ·csR (210) 288-0312

8 Page 47

1 THE COURT: Okay.

2 Q (MR. LANGLOIS) Okay. Now, why is that why did

3 that appear to be important to you, in this case, on

4 .Mr. Gamboa?

5 A Well, executive functioning, the concept is a

6 little complicated. But, basically, it -- it -- the

7 executive functions are involved in sort of harmonizing the

8 person's resources of the brain processes and trying to

9 .harmonize those with the man's situation, whether external

10 or internal.

11 A way to think of it is sometimes people think about a

12 CEO function, and I was thinking about how to describe it.

13 One important executive function is the -- is the judgmental

14 function, self-evaluation and judgmental, and the way the

1~ executive function is sort of like His Honor, in the sense

16 that executive functions tend to be very deliberate,

17 cautious, attentive, but they tend to be quite slow.

18 THE WITNESS: ·No offense, your Honor.

19 THE COURT: None taken.

20 Q (MR. LANGLOIS) The part of the brain that

21 controls the executive functioning, is that a different part

22 of the brain than the areas that Ms. Milam concentrated on?

23 A Yes.

24 Q And what part of the brain controls executive

25 function?

9 Page 48

1 A The prefrontal cortex.

2 Q Okay. Now, Ms. Milam looked at certain issues,

3 such as genetics, congenital, childhood, early childhood,

4 maybe middle/late childhood, adolescence and other factors,

5 perhaps.

6 Did you determine -~ during your investigation, did you

7 find any evidence of, like, repeated concussions, or

8 anything like that, or a brain injury?

9 .A Well, if we progress in the evaluation, and that's

10 the way we sort of structure the evaluation, how we kind

11 of -- that was -- the framework that we used for for

12 interpreting the results as an aggregate.

13 Q Now, you prepared an affidavit --

14 A Yes, sir.

15 Q -- for Mr. Brandon?

16 A Uh-huh.

17 Q And within that affidavit, did you mention

18 anything about traumatic brain injury?

19 A Yes.

20 Q Why did you mention that?

21 A Well, the data that -- everything is data-driven

22 and his -- the pattern of executive function weakness and

23 also of the working memory weakness, were suggestive of --

24 of -- of concussions, perhaps repeated concussions.

25 Q Okay. Now, let me talk -- what is working memory?

ANGIE RANGEL JIMENEZ, CSR . (210) 288-0312

10 Page 49

1 A Working memory, you can think of it as

2 consciousness, but it has various components. Working

3 memory is sort of like a -- a operating space, a fan, a

4 vessel, where all information comes from all the senses and

5 from our memories and as sort of put together it's used for

6 a guided guiding present and future behavior.

7 The the important thing about -- well, there are

8 certain patterns of working memory to consider which are

9 signals for -- for traumatic brain injuries, but the

10 important thing is that -- to kind of realize is that the

11 working memory is extremely important for a person being

12 flexible in their thinking.

13 And a person who is defficient in working memory

14 functions is -- it's not a matter of being of poor memory,

15 which is one facet, but it's --basically, a person is -- is

16 kind of forced into stereotypical or kind of a rigid way of

17 responding, rigid way of pehaving oftentimes.

18 Q Now, executive functioning is pretty essential to

19 the issue of behavioral control; is that correct?

20 A Yes.

21 Q And that gets into the issue of violent,

22 antisocial behavior?

23 A Yes. The literature is quite vast on that. But

24 the certainly, it is important for, you know, what used

25 to be called psychoactive or sociopathic behaviors and

11 Page 50

1 actions.

2 But, basically, it's the breaking mechanisms. It's the

3 control mechanisms that keep -- that drives and keeps .that

4 in check.

5 Q Okay. Now, that was a situation of Joseph Gamboa.

6 Obviously, he was charged with a violent crime; is that

7 correct?

8 A Yes, sir.

9 Q And central to that, you felt that a thorough

10 examination of the executive functioning needed to be done

11 and was not done by Dr. Milam; is that correct?

12 A That's correct.

13 Q Okay. Did Ms. Milam assess working memory?

14 A No.

15 Q Okay. And working memory, does that bear on a

16 person's capacity for making rational decisions?

17 A Yes. It does.

18 Q Okay. Now, the executive functioning, does that

19 control a person's ability to make rational decisions and

20 decision making?

21 A It is a -- it is a factor, yes.

22 Q Okay. Is it a critical factor?

23 A Well, the the way that _we the way that we

24 structure the evaluation, a person can be deficient in

25 executive functioning to a great degree, but -- but they

12 Page 51

1 may be able to think rationally, but their thinking has a

2 certain characteristic to it. I don't know if that answers

.3 your question or. not, but

4 Q Okay. Now, you also did some evaluation and you

5 had information about Joseph Gamboa's development and

6 injuries and stuff like that; is that correct?

7 A Yes. We had --

8 Q You had to work up --

9 A Yeah. Dr. Milam did quite an extensive

10 psychosocial history, so it's --

11 Q You also had available family history and stuff

12 like that?

13 A Yes.

14 Q Interviews with different family members?

15 A From Dr. Milam's --yeah, report and from her--

16. from her file.

17 Q What are the consequences of impaired executive

18 functioning and working memory functioning?

19 A The consequences?

20 Q. Yes.

21 A Well, that's only part of the equation,· but the

22 consequences by and large with those deficientcies, the

23 person's going to be operating on a fairly concrete or

24 literal level, they are going to be -- tend to be --

25 function fairly stereotypically, because the executive

13 Page 52

1 functions are important for controlling our emotional

2 responses.

3 People who have executive functioning weaknesses tend

4 to be emotionally labile, tend to sometimes hyper-react,

5 they tend to make bad dec£sions, they tend to be

6 maladaptive, while -- you know, there's been classic studies

7_ for, you know, many years that-- showing that you can take

8 a person and give them an IQ test and you can do a frontal

9 lobotomy on them, separating executive functions and

10 eliminating their control, and the person will do the same

11 on the IQ test. And, in fact, sometimes they do better.

12 Q Okay.

13 A So, it's --the --the issue of intelligence is --

14 is -- is separate. But, yet -- but the executive functions,

15 trying to put it simply, they -- they control how

16 effective -- how effective they control the intelligence

17 modules of the brain, if you will, but -- to kind of

18 determine how effective a person is in negotiating their

19 environment, how adaptive they are.

20 Q Now, you spent, like, three days examining

21 Mr. Gamboa; is that correct?

22 A Yes.

23 Q And about 15 hours or more of time?

24 A Of actual testing, yes.

25 Q And you made some informal observations, you

ANGIE RANGEL JIMENEZ, CSR (210) 288-'-0312

14 Page 53

1 started out with some informal observations, and I, believe

2 you observed some -- what you called echopraxia?

3 A Yes.

4 Q Can you explain what echopraxia is.

5 THE COURT: Why don't we just -- it's about

6 five after 12:00. It sounds like this is going to get kind

7 of deep. It's probably a good time to stop and just get

.8 something to eat.

9 MR. LANGLOIS: Okay.

10 THE COURT: Okay. Is that okay with

11 everybody?

12 MR. LANGLOIS: We can do that.

13 THE COURT: Okay. Come back at 1:15.

14 MR. LANGLOIS: 1:15?

15 THE COURT: It's about five after 12:00· right

16 now.

17 MR. LANGLOIS: All right.

18 (Lunch recess from 12:05 p.m. to 1:28 p.m.)

19 THE COURT: Okay. We're back on the record.

20 Dr. De France is still on the stand and everybody's had

21 their --

22 MS. WELSH: We have no Defendant.

23 THE COURT: everybody's had their shot of

24 caffeine, so -- correct?

25 THE WITNESS: Yes, your Honor.

15 Page 54

1 THE COURT: So, I think we're good to go.

2 (Off the record.)

3 (Open court, Defendant-present.)

4 THE COURT: Okay. Mr. Gamboa's back in the

5 courtroom, so we can proceed.

6 Mr. Langlois, your Witness.

7 Q (MR. LANGLOIS) Dr. De France, let me start this

8 afternoon with-- do a comparison to what,you did versus

9 what Dr. Milam did.

10 Okay?

11 A Okay.

12 Q And you, obviously, had an opportunity to look at

13 her results and her testimony and her affidavit, where she,

14 basically, stated that she did her testing and found that

15 Mr. Gamboa was severely impaired; is that correct?

16 A Yes. But the caveat is that I didn't see her

17 notes or her test results until after I finished my

18 evaluation --

19 Q Okay.

20 A -- but I did read her deposition -- or, her notes.

21 Q Okay. And I think her results's, basically, that

22 Mr. Gamboa exhibited severe impairment on all measures of

23 language that required reading comprehension, his sight

24 reading, sounding out words ability, was at the fourth grade

25 level, but due to his reading comprehension problems,

16 Page 55

1 distraction measures, or personality could not be

2 administered?

3 A That's correct.

4 Q And she did the MMPI and the second requirement,

·5 sixth grade reading comprehension and Personality Assessment

6 Inventory, PAI, required a reading comprehension which she

7 did not do or invaliditied it; is that correct?

8 A Well, she chose the PAI. That was -- that was --

·9 that's the protocol of hers that I have in my file and that

10 was that was considered invalid.

12 A I re-administered it, however.

13 Q Okay. Now, basically, before we took a break, you

14 indicated that your focus was on the executive functioning;

15 is that correct?

16 A That was -- that was part of it. And in a

17 situation like this, we're also -- we're also interested in

18 personality organization.

19 Q Okay. And let's focus on the executive

20 functioning first, okay, then we'll go to the personality.

21 A Okay.

22 Q And -- and the -- you mentioned the executive

23 functioning is a prefrontal area of the brain; is that

24 correct?

25 A That's correct.

17 Page 56

1 Q And I think you told me that it occupies about 25

2 percent of the brain?

3 A About 25 percent of the anatomic brain.

4 Q Okay. Now, what are the primary functions of the

5 executive function, what does that control?

6 A Well, it -- it controls how adaptive a person is.

7 THE COURT: What?

8 THE WITNESS: How adaptive a person is.

9 THE COURT: Okay.

10 THE WITNESS: There's a lot of different

11 components to executive functioning, but, basically, it's

12 like a conductor in a symphony. It -- it sets the tempo of

13 different processes.

14 It calls -- it recruits different processes at

15 different times. It, basically, is responsible for goal ( 16 directedness, being able to carry through a plan, make a

17 plan, carry through the plans, switch plans if one doesn't

18 work.

19 The characteristics of people who have difficulties

20 with executive function, no matter what the reason is, is

21 that they tend to go through life in a very simplistic mode

22 and they tend not to handle stress very well and they --

23 they usually function pretty well in routine, consist'ent

24 environments, where -- where the boundaries or the rules are

25 well known, but they don't -- they don't negotiate the world

18 Page 57

1 very well, socially.

2 Q (MR. LANGLOIS) Can decision making and being able

3 to create -- kind of like what we call a career path or

4 something like that, you know, what your goals are and stuff

5 like that?

6 A Well, by and large, people who have the kinds of

7 deficiencies that we uncovered, they tend to live moment to \

8 moment and it -- basi~ally, the executive functioning is

9 really not part of the equation. Their controls are the

10 ·brakes, behavioral brakes, people who have behavioral

11 brake~, like car brakes.

12 The executive function is kind of an analogy I started

13 off with this morning, is like His Honor, who is very

14 deliberate, but the executive functioning tends to be very

15 s·low. If if -- if, for example, there was a threat

16 ' perceived in the courtroom here, there's operations that

17 would take over, and that would be the officers, who would

18 respond very fast.

19 And by -- and by habit, and this is, basically, what

20 happens with a person like Mr. Gamboa. What happens is that

21 his -- his executive functions are not strorig enough to

22 to handle a lot of stress and a lot of triggers, but what

23 happens is his priorities flip from from -- you know,

24 from whatever it is.

25 The executive functions go offline as part of their

19 Page 58

1 fight or flight response and then -- but that takes over

2 as -- part of the flight or fight response, the executive

3 functions or memory functions go offline.

4 So, if there's a threat coming into the room, the

5 officers are going to take charge, because His Honor's in

6 charge of the courtroom now, but if the if there's a

7 threatening person coming in, they take charge and they

8 operate very fast, and that's what we want. If the brain is

9 operating fairly normally, that's what you want. You want

10 the fast, stereotypical reflexive systems to take over.

11 And this is what happens in a -- in a person like

12 Mr. Gamboa. They get caught in a -- in a setting where the

13 emotions, basically, drive the fight or flight response.

14 The executive functions are offline, so the rules, or the

15 brakes, are gone; and so, they -- they tend to make these

16 bad decisions, basically. They tend to react reflexively,

17 without thinking through, without deliberation.

18 Q So, does this get into when you talk about the --

19 the drive and control functions?

20 A Drive versus control, yes.

21 Q Okay. Now, you have to look at some of the

22 factors, the characteristics, you know, like his stress

23 tolerance; is that correct?

24 A That's correct.

25 Q And what did you determine about stress tolerance?

ANGIE RANGEL JIMENEZ, CSR (210) 288-0312.

20 Page 59

1 A· Well, his stress --well, there's there's

2 multiple factors, but his stress tolerance, as a simple

3 statement, is it's very low. But what we really want to

4 know is what are the triggers, what causes the -~ what

5 causes the emotional response, and we have some answers to

6 that.

7 Q What are those answers?

8 A Well, part of it is wiring, part of it is genetic

9 or what he is born with. When we did our physiological

10 studies, we found that his fight or flight response w~s

11 about five times normal.

12 THE COURT: His what now?

13 THE WITNESS: About five times normal.

14 Q (MR. LANGLOIS) The childhood

15 A It's the amount of the physiological energy going

16 in, you know, that is -- that is operating all the time.

17 Basically, a person like that, even though they may not

18 perceive to be nervous, because they are habitually at some

19 level, but, basically, there's a basic-- there's a part of

20 their brain that is called the amygdala, that's saying, Go,

21 go, go, threat, threat, threat, all the time and it's ~ort

22 of like a - - it's as a setting function.

23 So, when people have this kind of physiological

24 p~ofile, they tend to hyperreact, they tend to go off, like

25 you said, drive, they go off like a rocket, like a two-stage

21 Page 60

1 rocket.

2 Q So, basically, he doesn't have much stress

3 tolerance because his executive functioning control is

4 controlled -- is driven by factors that make him kind of

5 overreact to situations?

6 A That's --that's --that's a way to put it, yes.

7 Q Okay.

8 A But none of it's simple. Because, basically, the

9 the the stress and tolerance is due not only to

10 biological factors, maybe it's some congenital factors, put

11 also have to do with experiential factors, which are -- have

12 to do with attachment schemes.

13 Q Right. And the attachment, basically, goes to

14 what happens in the early parts of life, you don't hav~ good

15 parenting and other factors like that and you become kind

16 of

17 A Right. The way -- the way -- if -- if I can just

18 use another analogy. The way the brain kind of works is it

19 works like this: If I'm walking through the forest, going

20 down to a river and I see a -- a -- something wiggling, you

21 know, on the ground, before the light reaches the back part

22 of my brain to perceive what it is, my -- my physiology is

23 already changing and going into fight or flight response.

24 My heart is starting to race, my breathing stops,, my muscles

25 start getting intense.

22 Page 61

1 And that happens before I actually can perceive go

2 over and perceive it and to see that it's this piece of

3 string and not a snake. And this is what happens. See, the

4 emotions are elicited at a pre-conscious level.

5 Q Okay. So,- basically, if somebody is somewhat

6 makes a remark towards Mr. Gamboa,. or says something to him,

7 normal people will sit there and say, Well, it's not really

8 a threat, but Mr. Gamboa may perceive it as a threat and

9 then react to that threat in a degree far above than what is

10 necessary.

11 Is that true?

12 A That's true.

13 Q Okay.

14 A That's true.

15 Q Okay. Well, that goes t o - - you know, that's --

16 his stress tolerance is very low because he's affected more

17 severely by perceived threats or something like that; is

18 that correct?

19 A Right. That's true.

20 Q And then, he has a -- executive function goes to a

21 coping style, that he can't cope with that threat; is that

22 correct?

23 A Because he doesn't have the tools or the

24 resources, he hasn't learned those, yes.

25 Q So, he can't deal with the stress and he doesn't

23 Page 62

1 have any defensive maneuvers; is that correct?

2 A Well, he doesn't have the adaptive ones. He --

3 when the person who is emotionally driven, overdriven as

4 this gentleman is, he doesn't have the capacity to put the

5 space of time between the initial -- his initial reaction

6 and his -- and his behavioral r~action.

7 Most of -- most people can put some time between it and

8 think about it and deliberate and say, Okay. They didn't

9 really mean to insult me. But a person with that kind of

10 biological makeup, they don't have that capacity, or it's a

11 lessened capacity.

12 But there's another part to it, if I may add, is the

13 appraisal part. Because emotions last about 30 seconds,

14 unless we unless we do something or think about something

15 to make them-- to prolong them, and that's the appraisal

16 part.

17 So, one of the keys -- the reason I say that is what

18 are the triggers, what are the triggers for a,person to make

19 them walk like a two-stage rocket. And so, you have to look

20 at what are the templates, what are the what are the

21 appraisal templates that a person uses and those are related

22 and in many people's cases and in his case to the detachment

23 schemes.

24 Q So, to kind of give a overview of it: Low stress,

25 deficient coping techniques, no -- very limited appraisal of

24 • Page 63

1 the situation, and then he has an anger management problem.

2 And then, if he does something that is out of the normal

3 scope of what other people would do, that have those

4 factors, that have good executive functioning, so then he's

5 tagged as having an antisocial behavior problem.

6 Is that correct?

7 A The antisocial is by definition. But the only

8 thing that's interesting is that he may not have a anger

9 problem per se. It's an it's a hyper-reactivity, it's an

10 impulsivity problem. And most aggression, as it turns out,

11 to violence is impulsive, but -- and that's very true in his

12 case.

13 All the evidence suggests that that's really the core

14 of the problem. It's not that he is an angry person. It's

15 that he doesn't have the capacity to control. And what

16 happens because of the way his -- he sees human

17 ~elationships, for whatever reasori -- And we can get into

18 that later -- but, you know, instead of quieting down his

19 fight or flight response, his appraisal templates increase,

20 they amplify the emotion because they -- he looks at the

21 enemy, I'm going to get them first, you know.

22 Q So, with respect to the situation, we make those

23 observations and that's the character that he's displaying

24 to people, then you go back and you develop~ then you

25 determine what the neurological breakdown is; is that

25 Page 64

1 correct?

2 A Yes.

3 Q Okay. And does he have a neurological

4 sensitivity, you look at that; is that correct?

5 A That's correct, yes.

6 Q And you look at his, as you said, emotional

7 accelerators, emotional brakes and a capacity for empathy or

8 developing attachments and also cognitive controls. Now,

9 those are, basically, regulated by the executive functioning

10 part of the brain; is that correct?

11 A That's correct. It's regulated.

12 Q And in his first part, the observations are,

13 basically, his personality makeup and the second part

14 defines whether or not he has any mental deficiencies, is

15 that correct, in the executive functioning?

16 A I don't know what the word "mental deficiencies"

17 really means.

18 Q Well, is that the drive side?

19 A Well, I don't know. I don't think that's a useful

20 term. I think I understand the spirit of whatever your

21 question is.

22 Q Okay. What I'm trying to get at is can you

23 explain to the Court -- well, I guess, we have the drive

24 side and the control side?

25 A Right.

ANGIE RANGEL JIMENEZ, CSR ( 210) 288-0312

26 Page 65

1 Q Okay.

2 A Right. The capacity for rational thinking and

3 deliberation versus --

4 Q Now, is the drive side equated to the -- the

5 characteristic or is it related to what the brain is telling

6 you to do?

7 THE COURT: Are we talking -- did you say

8 "drive side" or "dry side"?

9 THE WITNESS: Drive.

10 THE COURT: Okay.

11 THE WITNESS: Drive.

12 Q (MR. LANGLOIS) You said the drive is kind of like

13 the

14 A The driver's side, yeah.

15 Q You said the drive is kind of like a software?

16 A Right. But, again, it'~ a mix of biological

17 predisposition, plus a person's habits or templates that

18 they develop in early childhood usually. So, ~t's a mixture

19 of the two --

20 Q Okay.

21 A -- where one precedes the other.

22 Q Okay. Now, can you tell us what your findings

23 were that Daneen Milam did not find, regarding executive

24 functions deficiency.

25 A Well, she didn't explore those, nor did she look

27 Page 66

1 at working memory, which is also important, but also

2 personality organization. She didn't explore that, either.

3 But we found this gentleman to have significant deficiencies

4 in all areas of executive functioning, practically all

5 areas. Some are quite striking, you know.

6 There were deficits, in terms of working memory

7 functions, a pattern which suggests traumatic brain injury.

8 The term that they use now is traumatic encephalopathy. He

9 certainly fits that pattern.

10 His memory function has an organic flavor to it and his

11 personality organization, while it may not be asocial, per

12 se, does look to have the risk of asocial behavior because

13 the emotional controls are deficient, but also his view of

14 human interaction is not adaptive, put it that way, it's

15 distorted.

16 And kids learn -- let me briefly mention about the

17 experiential side. Kids learn by modeling. They don't

18 learn by -- you know, they don't do what you say. They

19 learn by modeling.

21 A And it's not only from the parents, but it's from

22 the familial, the friends, peer groups, all these things.

23 That has a big determination, especially in a person with

24 weakenned executive functions. Those things tend to be the

25 real determinants on how a person is going to react in a

28 Page 67

1 particular situation.

2 Q Now, you identified these things, and the affect,

' 3 basically, is emotional -- emotional style and his ability

4 to differentiate the emotional responses. And I believe

5 you're telling us that they were very low, he has high

6 emotions?

7 THE COURT: Can you hold that question for

8 one second?

9 (Interruption.)

10 THE COURT: Okay. Go ahead.

11 Q (MR. LANGLOIS) So, you defined the affect part of

12 the drive side, you identified the --

13 A Well --

14 Q -- the fact that, you know, his emotional

15 responses were, you know, in high gear at times and that --

16 and also prevented his potential to organize his thoughts

17 and behavior; is that correct?

18 A That's correct.

20 A The -- it comes from two differ~nt directions.

21 The one direction is the physiological direction. We know,

22 physiologically, the -- the part of the brain, the medulla

23 are part of the temporal brain, the medulla, is saying, Go,

24 go, go, threat, threat, threat.

25 The other part comes from more the emotionality, just

29 Page 68

1 his emotions are just his -- it's part physiological, but

2 his emotional -- what we call emotionality, his reactive

3 part is extremely strong.

4 And then, on the other side of the equation, on the

5 control side of the equation, those controls are deficient.

6 So, you know, the accelerator is strong, you know, the

7 brakes are weak.

8 Q Okay. And on the cognitive side, we call those

9 emotional triggers, is -- you know, you determined his

10 capacity for realistic,, logical and constructive thinking

11 and, obviously, that was very deficient; is that correct?

12 A This is it's not a simple answer. But to put

13 it most simply is that he -- his capacity -- he has the

14 capacity for rational thinking and emotional being at times,

15 but what the data indicates, what our evidence indicates or

16 predicts, is that he would -- when he gets emotional, his

17 thinking is going to be very fragile and it's going to --

18 it's going to be not very coherent or rational.

19 Q All right. So, in other words, he does·things he

20 shouldn't be doing? \ 21 A Well, part of it because he doesn't -- there's the

22 impulsivity part, but also there's another layer of control

23 where a person kind of looks at foresight or looks at the

24 consequences and the person -- once the fight or flight

25 takes over, then they are not going to be.able to have that

30 Page 69

1 foresight or think about consequences.

2 Q Now, on the control side, you talk about his

3 affect, his coping resources and how he'd cope with things.

4 Now, that's a factor of, obviously, upbringing and, you

5 know, his history and stuff like that; is that correct?

6 A That~s correct.

7 Q Okay. And there, we had a long history of no

8 parental -- he had no parental guidance, basically, very

9 limited parental guidance, very unstructured childhood?

10 A Well, that's what Dr. Milam's notes would suggest.

11 Q Okay. So, basically -- that, basically, went into

12 affect, his emotional containment; is that right?

13 A A defective emotional containment, yes, that would

14 be exactly right.

15 Q Now, getting to the executive part, at the upper

16 levels of emotional control, you determined his ability to

17 organize, his cognitive resources to handle frustrating

18 circumstances and his capacities for flexible thought

19 developing hypotheses or verified conclusions.

20 So, in other words, if a person's out there and he's

21 got these stress factors going on, his capacity to think

22 through the situation is limited; .is that correct?

23 A Yes. It would be diminished.

24 Q Okay. "biminished."

25 And, you know, obviously, it diminishes his attention

ANGIE RANGEL JIMENEZ, CSR (210) 2S8-0312 Page 70

1 ability to suppress the extraneous thoughts and dealing with

2 conflicting information; is that correct?

3 A That's technical~ but that's --

4 Q Okay. And working memory. Explain working

5 memory. Is that something that, you know, you develop as

6 you go through life and -- to make sure that you work in a

7 controlled atmosphere and that you logically work out

8 things?

9 A Working memory is like consciousness. It's not

10 awareness, but it's like consciousness and it's the-- it's

11 the operating space that we're using at the moment, but it

12 allows us to integrate a whole bunch of different

13 information;

14 But we look at three different aspects of it. One, we

15 look at the ability at the capacity of a person's working

16 memory, how big is the hard drive, so to speak, or -~ I

17 guess RAM is a better metaphor for it, what is their

18 capacity, so so how long can they sustain information and

19 working memory, which is critically important, in terms of

20 executive functioning.

21 Q Did your testing establish that Mr. Gamboa had a

22 very limited working memory?

23 A Yes --.

24 Q Okay.

25 A -- woefully working memory.

32 Page 71

2 A But we look at the maintenance of information, the

3 manipulation of information, and then we look at the

4 interference effects of information.

5 Q So, all the testing you did was to sit there and

6 determine his deficiencies in these functions; is that

8 A Well, we're looking for strengths and

9 deficiencies, but he was -- he was deficient in all areas of

10 working memory. But the more important thing, too, is not a

11 matter of -- is not just an academic exercise in a sense,

12 but it tells us something about what the cause is. And in

13 his particular case, his profile looks like a head injury

14 pattern. It looks like a pattern that we commonly see in a

15 person who sustains a head injury.

16 Now, when we get a finding like that, we have to go

17 back and we have to look for external validity. Well, he

18 didn't have any -- he had one pretty good bump on the noggin

19 with a baseball bat, but I don't think he was -- the

20 notes -- I couldn't read whether he lost consciousness or

21 not, but Dr. Milam's, when I reviewed her notes, she made

22 some notes on it and I couldn't decipher them. Her

23 handwriting's much better than mine, but I couldn't make out

24 whether he had lost consciousness.

25 But regardless, when he was --- when he was in middle

33 Page 72

1 school, or high school, or junior high, he was in -- he was

2 in fights regularly. And then, he took up -- unfortunately,

3 as a sport, he took up boxing, which is not recommended, you

4 know, because-- so, it's very likely that --you know,

5 that -- that all the other things that -- as he developed

6 along his cognitive personality and emotional development,

7 most likely he got a head injury factor here as well, which

8 further diminished his capacities.

9 Q Now, talking about head injuries -- and I want to

10 go to the behavioral factors under the control side,

11 behavioral factors create a strong bias that he has towards

12 impulsiveness, that is, you know, acting without thinking

13 and inability to express appropriate responses.

14 Now, would -- you know, I know that recently there's

15 been more emphasis on observing brain injuries, the

16 consequences of, you know, football concussions or boxing

17 and stuff like this, or where people have had multiple--

18 not very traumatic head injuries, but then repeatedness of

19 those irijuries kind of -- kind of creates a situation where

20 it becomes more serious; is that correct?

21 A That's very correct, yes.

22 Q Okay. And so, are you saying that Mr. Gamboa, at

23 least the test results demonstrated, that he had some type

24 of influence from brain injury?

25 A From a traumatic brain injury; that's what the--

34 Page 73

1 particularly, the memory results suggest. There's other

2 indications as well. But the memory results, it was fairly

3 clear that his pattern fits the injury profile.

4 Q So, all these factors you observed, you know,

5 were, basically, factors that you tested for; is that

6 correct?

7 A Well, there's evidence for it. We're very

8 data-driven.

9 .Q Does Mr. Gamboa have some type of personality

10 disorder or psychopathic disorder, based upon your

11 examination?

12 A He doesn't have a psychopathic disorder.

i4 A He doesn't have a personality -- I mean,

15 psychopathic/sociopathic, in terms of the old definition

16 commonly used, no, he doesn't have that. By definition,

17 he's got the asocial part, but that's by definition.

18 Q Okay. Attachment, how -- how important is

19 attachment?

20 A It's extremely important.

21 Q Can you explain what attachment is.

22 A The attachment scheme is developed in the first

23 three years of life. So, basically, preverbal, okay, so --

24 which makes th~m very difficult to remediate. But,

25 basically, the attachment scheme sets the stage for -- for

35 Page 74

1 telling a person how to interact with the world and whether

2 the world is safe and secure, trusting, or whether the world

3 is inconsistent, potentially hostile or uncaring.

4 These -- these kinds of templates become become the

5 basis of -- in part, morality, but in part in large part,

6 basically, how a person engages the world, whether they

7 engage the worid with worriness, being hypervigilant, or

8 whether they engage the world as being welcomeing and

9 trusting.

10 Q Now, with regard to attachment, do you also look

11 at the children of -- learn by modeling, in other words,

12 parents model their behavior?

13 A Children mbdel parents' behavior. They don't do

14 what the parents say. They do what the -- what they see the

15 parents do.

16 Q Did you determine, based upon his attachment

17 deficits, that he Joseph Gamboa is not very trusting?

18 A Well, that came through, but his attachment scheme

19 lboked to be insecure as a particular type. Now, it doesn't

20 mean he's got an attachment disorder, but in the context

21 it's an explanatory factor and how-- and to explain how did

22 he get to where he is today.

23 Q Okay. And does he view the world as being hostile

24 towards him?

25 A He has to answer that. But my prediction would

36 Page 75

1 be, yes, to some extent. He doesn't have the same at ease

2 with people that most people have.

3 Q What did you determine about Mr. Gamboa's level of

4 empathy?

5 A He does have basic empathy. He does have it,

6 so -~ we were interested in that because we were looking at

7 issues of autistic kind of behaviors. But he does have the

8 basic empathy. That's why when he put everything-- when

9 you put everything together, we think of his aggression --

10 the episodes of aggression are not predatory, they're not

11 sociopathic, they're not out of control, they're not

12 repetitive, they're not about pressure.

13 They're basically impulsive, which tells us, you know,

14 the kinds of settings in which he is going to do well and

15 the kinds of settings in which he would do very poorly.

16 Q But while he does have empathy, does he have the

17 capacity to use it?

18 A Well, no. The executive functions that are -- you

19 know, they determine how it's used, in large part. Now, a

20 sociopath or a psychopath can have knowledge of -- and

21 they're very good at reading body language and so forth, but

22 they just don't care, you know, where an autistic child is

23 not going to have that capacity, to read the facial

24 expressions, or body postures, or gestures.

25 Q Okay. So, where does Joseph Gamboa fit into that?

37 Page 76

1 A Well, he's kind of like a person who wants to

2 dance, but doesn't know the steps.

3 Q Okay. He's the type of person that what?

4 A He's the kind of person that wants to dance, but

5 doesn't know the steps.

6 Q Okay.

7 A He's got the basic empathy, but he can't -- again,

8 when emotions take over, when a fight or flight kicks in,

9 everything else is sidelined, everything else just takes --

10 everything else is taken off the list.of priorities. The

11 priorities are survival, either that or tension relief.

12 (Interruption.)

13 THE COURT: Can you hold on one second?

14 (Recess from 2:01p.m. to 2:06p.m.)

15 THE COURT: Okay. We're back on the record.

16 The class is going to be a few more minutes. So, as

17. soon as they get here, we'll just put it on pause and let

18 the~ quietly file in.

19 Okay. Mr. Langlois, go ahead.

20 Q (MR. LANGLOIS) Okay. So, basically, we've gone

21 over the executive functioning that controls certain

22 emotions and your ability to, you know, control those

23 emotions and things like that; is that correct?

24 A Yes, sir.

25 Q Okay. And what society sees often is a

38 Page 77

1 person's -- commits a crime, you know, commits a murder or

2 something lik~ that, and they translate that into antisocial

3 behaviors, psychopathic behaviors; is that correct?

4 A I can't answer that for sure.

5 Q Okay. Well, if they do, those are the

6 psychological explanations for them; is that correct?

7 A Yes.

8 Q Okay. First off is would you determine or be able

9 to classify Mr. Gamboa as a person who would initiate that

10 type of, quote/unquote, antisocial behavior or behavior that

11 results in criminal conduct or a reason that he's here?

12 A No. I mean, it's a reflection-- it's a

13 reflection of his character or personality and he's very

14 passive. He's --he's --he's a follower, not a leader. He

15 doesn't -- he doesn't initiate it, and we saw that in -- not

16 only behavioralally, but in terms of some of the mental

17 processes. He's kind of slow to get started. It's like

18 he's going in first gear all the time for a long period of

19 time.

20 Q Now, I think you found that the evidence kind of

21 argues against a psychopathic personality?

23 Q But that doesn't mean that his perionality is not

24 fraught with contradictions or incompatible dynamics by

25 various circles that -- that he kind of acquired during his

39 Page 78

1 development; is that correct?

2 A That's correct. And·it doesn't mean he has --his

3 personality development isn't adaptive. It can be adaptive

4 in some circumstaBces. It's going to be, predictably, very

5 maladaptive in other circumstances.

6 Q But his personality shows a heightened --

7 heightened degree of anxiety?

8 A Yes.

9 Q Okay. And that anxiety is developed because he

10 doesn't have those trust factors and he feels the world to

11 be hostil~?

12 A That's part of it. But there's also the

13 physiological -- or, the physiological overdriving is the

14 is the is the underlying factor of the anxiety.

15 Q Which shows lots of breakdown and --

16 A It provides the momentum for the anxiety. And

17 that's just physiological. That's part of genetics.

18 Q All right.

19 A I could just add that, normally, that's a

20 protective factor. People who have that kind of overdriving

21 tend to learn from negative consequences very well. So,

22 when they don't, they wonder why.

23 Q So, given the -- the fact that Dr. Milam did not

24 screen the executive functioning portion and, you know, she

25 testified as a mitigating expert, if you were to testify

40 Page 79

1 before a jury, or had the opportunity to testify to a jury

2 at a punishment phase to discuss the consequences of

3 impaired executive functioning and working memory

4 functioning, what would the jury have received from your

5 testimony that they would not have received from Dr. Milam'S

6 testimony?

7 A Well, I \ think by factoring in the executive

8 functioning and working memory personality organization, I

9 think the jury may understand how a person can get to his

10 situation. I mean, you always seek an explanation why, why

11 this, why that.

12 Well, it's not a mystery, you know. In a way, you look

13 at -- you know, if you look at his development from the womb

14 to today, then, yeah, you would say, yeah, the prediction

15 would be that, yeah, he would get in serious trouble.

16 Q Okay. Now, that goes into just being able to

17 explain to a jury the fight or flight response, is that

18 correct, in terms of whether it's physiologically or

19 personality?

20 A Yes, sir.

21 Q Is that correct?

22 A That would be -- that would be part of it. In

23 this stage of the proceedings, the question is, I mean,

24 could he have made other choices? Could he have made other

25 choices?

41 Page 80

1 Well

2 Q Well, of course, he could have made other choices,

3 but he doesn't have the capacity to make those choices?

A That's what I meant to say.

6 A Because he is limited in a number of choices that

7 he makes and -- and because of the executive functions,

8 he's --and there's his strong emotionality. Even the pro

9 social choices that are available to him, he'd probably have

10 a difficult time making. So, the question is -- is does he

11 really have a choice.

12 Q Now, is that what you would explain to the jury,

13 that the implications of a strong fight or flight response

14 in the face of a weak executive and working function --

15 working memory functions result in being very impulsive?

16 A Yes, . very impulsive.

17 Q Okay. And so, the display by Mr. Gamboa to be

18 impulsive -- impulsive would cause a person to shoot a

19 person sometimes, would it not, because he's not --he

20 doesn't have the ability to determine that really, you know,

21 this isn't a fight situation, this is a flight situation or

22 be able to work out the situation because --but he can't

23 because he has a very damaged executive functioning portion

24 of his brain?

25 A Not -- what you say is true, but not all impulsive

42 Page 81

1 people shoot people, hurt people. But, basically, you know,

2 when the fight or flight comes online, the thinking part or

3 the rationality goes offline.

4 Q Okay. And you said that Joseph Gamboa's not a

5 person who initiates things, or I guess he's not likely to

6 be aggressive. But if he's provoked or if he has that false

7 belief he's provoked, due to a lack of executive

8 functioning, then he does appear to be aggressive?

9 A Yes. That's a good way of putting it.

10 Q Okay.

11 A He's not going to intentionally harm somebodyj

12 but but he may -- he may take it as an insult, you know,

13 some fairly benine or innocuous kind of statement on the

14 part of someone else. And once that initiates that's the

15 appraisal part, and once the appraisal part is his

16 appraisal templates just amplify the emotionality.

17 The initial gut reaction is "huh," and then-- and then

18 the appraisal part just amplifys it and then he -- the fight

19 or flight takes off and he's --and he starts to fight or, I

20 mean, gets in a fight.

21 Q That pretty much summarizes what you --

22 A But he's reactive. That's the point. What you're

23 saying, he's reactive, not proactive. He's not a predator,

24 but, you know, you need to understand how he might get into

25 real trouble.

43 Page 82

1 Q One of your findings, that you thought was kind of

2 interesting echopraxia?

4 THE REPORTER: Pardon me?

5 THE WITNESS: It's E-C-H-0-P-R-A-X-I-A . . .'!:~.

6 Q (MR. LANGLOIS) Kind oftell us what that is and

7 why it surprised you to find that or what you

8 A Well, it's a frontal lobe sign or a primitive sign

9 and normally disappears. You see it in children. It

10 normally disappears by the age of seven. But, basically,

11 it's very uncommon to find that in an adult. And why we

12 took such great note of it was because it fits some of the

13 other stuff. But, basically, it told us about how severe --

14 severely deficit the executive functions are.

15 Q What is echopraxia? Is it if you look at somebody

16 doing a motion, or something like that, they can't duplicate

17 it?

18 A It's the ability to reverse. If you have a

19 five-year-old child and ask them to do this and use the same

20 hand sign, they will mirror that. They don't have the

21 ability to reverse it.

22 Q Okay. And Mr. Gamboa doesn't have that ability?

23 A Well, he made those errors; that was quite

24 striking. But also, once you have that, then you can never

25 rely on things. So, we also found his -- he couldn't

44 Page 83

1 reverse mental images. We would -- did some tests for

2 reversing mental images, doing rotations. That was fairly

3 tough. That's fairly uncommon, to find that in an adult .

.4 Q So, in other words, it's kind of like reading with

5 a mirror and the like, I mean, you can't translate the

6 A Yeah. You can't translate. This is doing a

7 rotation, you know. I can imagine what that monitor looks

8 like. If -- if I would sit in front, I would do that

9 rotation in my head, but that's something which is very

10 difficult for him.

11 And, again, that's very uncommon to find and it sort of

12 adds to the weight of the evidence about having some sort of

13 brain damage. And I hate that term, actually, but --

14 because it doesn't mean anything. But --but -- but our

15 results do -- do echo Dr. Milam's results in that regard,

16 she -- the specificity, but she noted he did have some

17 organic brain damage.

18 Q Now, when you ever ~- you do any type of

19 psychological testing that has to do with, obviously,

20 determining, you know, IQ or adaptive behavior or ability to

21 learn or anything like that, like this, is there some type

22 of validity testing to make sure that the person's not,

23 creating false answers or just trying to randomly guess or

24 something like that?

25 Do you do some type of validity testing?

45 Page 84

1 A Well, we do some -- we do validity testing, but we

2 look at every test individually for -- for consistentcy, for

3 what doesn't make sense. Everything -- everything that a

4 person does is a datapoint for us. Even if the -- if the

5 if the results are invalid, it's a datapoint, because you

6 have to ask why.

7 So, I looked-- looked at --Dr. Milam's PDI was

8 considered invalid, but if you look at his -- at the

9 sequence of his iesponses, one of the -~ one of the -- one

10 of the hypotheses could be that he couldn't read, didn't

11 understand them, an overhypotheses, though, but that he was

12 highly persevered, because once he started off with a false

13 answer he kept on going. So, there was a string of false

14 answers that was -- that was quite stunning.

15 Q So, that kind of established he doesn't really

16 know whether it's true or false?

17 A It was an overhypotheses, it has a couple of

18 you know, it has implications, but has possibilities. But

19 you look elsewhere to confirm or -- or -- rule in or rule

20 out one of the hypotheses.

21 But, certainly, we saw high levels of separation on

22 some of the sight tests, but there's no question there's

23 no question that reading comprehension is a real was a

24 real problem.

25 Q Okay. Were you able to validate your test?

46 Page 85

1 A We were, yes, our tests were validated.

2 MR. LANGLOIS: At this time, judge, I'll pass

3 the Witness.

4 THE COURT: Okay. Why don't we take about a

5 five-minute break.

6 Okay?

7 You can take Mr. Gamboa out for a second. We're just

8 going to take a quick break for a second.

9 Okay.

10 (Recess from 2:20p.m. to 2:35p.m.)

11 THE COURT: Okay. All right.

12 CROSS-EXAMINATION

·13 BY MS. WELSH:

14 Q Dr. De France, my name is Mary Beth Welsh. We met

15 briefly right before we. started.

16 A Yes 1 ma'am.

17 Q I have a few questions that I want to go over. If

18 you don't understand my question, which is entir~ly

19 possible, just ask me to repeat it or -- repeat it in a

20 different way and I'll try to do that.

21 A Sure.

22 Q As far as assessment tools for neuropsychology,

23 the Halstead-Reitan is one of many; is that correct?

24 A It's one of many. That's right.

25 Q And the Delis-Kaplan is, in fact, one of many,

47 Page 86

1 which is one you use; correct?

2 A Well, they sample different kinds of functions,

3 but, yes, you're right.

4 Q If you're looking at the tools used-- not looking

5 at what they test, but there's a whole list of tools that

6 are used to assess all kinds of functions, like -- and even

7 in the executive function, the Delis-Kaplan is listed as one

8 of the different tools, as well as the Halstead,

9 specifically, the category test. And I think you alluded

10 during direct that there was a test on the Halstead-Reitan

11 that does test executive functioning, but you didn't name

12 it.

13 Were you referring to the category test?

14 No, ma'am, to the Trails B test.

15 Q Okay.

16 A The category test was actually designed to sample

17 frontal function, but the research shows that it's more

18 of -- it's sensitive to generalized brain damage, moderate

19 to severe.

20 Q As a neuropsychologist, part of what you do is

21 determi0e what -~ which of all of these assortments of the

22 tests you're going to use to make your as~essment; is that

23 correct?

24 A Yes.

25 Q And we could have five neuropsychologists in this

48 Page 87

1 room and all five of you may very· well come up with a

2 decision to use different tests. Wouldn't that be fair to

3 say?

4 A Depending on what were trying to sample, they

5 wouldn't be remarkably different. There might be a lot of

6 overlap. There may be one or two different, but there would

7 be a lot of overlap.

8 Q But -- but there's a lot of tools to choose from

9 and you have to assess which ones to choose?

10 A That's correct.

11 Q Now, in your assessing what needed to be done for

12 this trial or what should have been done for the trial, did

13 you at any time actually talk to Dr. Milam?

15 Q Did you at any time talk to the defense attorneys

16 that tried the case?

17 A The defense attorney?

18 Q The defense attorneys. There were two attorneys

19 that tried the case, one of which was in here this morning.

20 A Yes. I did. I talke~ to Mr. Brandon. I talked

21 to

22 Q No. The two -- Mr. Brandon came --

23 A He came later. I'm sorry.

24 Q into this case much later. I'm talking about

25 the trial attorneys.

49 Page 88

1 A No. I didn't. No.

2 Q So, you were not aware at -- when you were doing

3 this assessing of exactly what the strategy was of the

4 defense attorneys; correct?

5 A That's correct.

6 Q You don't know what they wanted to achieve, what

7 they wanted Dr. Milam to look at?

8 A That's -- that's very true.

9 Q And wouldn't it be fair to say that even -- even

10 you, when you perform tests, could come back how, or even

11 taking Mr. Gamboa's, you could look it and say, Do you know

12 what, we probably ought to do this test and this test and

13 this test that we didn't do before?

14 A Well, that's very true. Because we were-- we

15 were on a time limit. There were some tests that we would

16 like to have done.

17 Q It's true of all of us; right?

18 A Absolutely.

19 Q In our capacities as professionals, we -- you

20 know, I'll walk out of here this afternoon and say, Manj I

21 could have asked this question, or I should have asked this

22 question, or I should have argued.

23 We can look back and see where we could have done

24 things differently?

25 A That's very true. I have that experience often.

L ANGIE RANGEL JIMENEZ, CSR (210) 288-0312

50 Page 89

\

1 Q Yes. In your practice -- you stated in your -- I

2 believe it was your affidavit and even with your listings of

3 your credentials and all, that you had been an expert in a

4 number of legal cases.

5 Can you be a little bit more definitive?

6 A Well, without -- well, there are certain things

7 that I want to talk about, but --

8 Q Well, no, I mean, number wise, a number of legal

9 cases. Have you worked on ten legal cases, 15 legal cases,

10 a hundred?

11 A Oh, not a hundred, no, because I don't do this for

12 a living. Probably probably 20. I've been doing more

13 and more recently, but I have been involved-- I don't want

14 to get too much in detail, but --but I've done some capital

15 cases and did some sexual predator cases.

16 Q So, of the number of legal cases, how many -- and,

17 again, I'm not asking for any detail. What those legal

18 cases are is really irrelevant here.

19 A Yeah.

20 Q But what I want to know is how many of the cases

21 you have been involved in are actually criminal cases.

22 A I'd say a dozen, talking about serious felony

23 cases.

24 Q At the time

25 A And I'm not talking about drug arrests and stuff

51 Page 90

1 like that.

2 Q Okay. At the time that you, I believe, did your

3 affidavit and you got your credentials, you had stated you

4 had direct involvement. in a capital case for the State. Is

5 it one capital case you have been involved in or is there

6 more and some were for the defense?

7 A Well, no. I have done -- I have worked for the

8 prosecution and defense -- for the prosecutor.

9 Q And how many capital cases did you do?

10 I guess I shouldn't say that you do. How many have you

11 been an expert for?

12 A Oh, gees, it's probably-- Oh, boy. It's

13 probably-- I'd say six to eight, something like six or

14 eight, six capital. I've done a couple of -- for the

15 prosecution. I've got a couple ongoing .

16 Q . Well, you just you just made the statement,

17 which is going to lead sort of to my next question, that

18 it's not what you do for a living.

19 A That's correct.

20 Q In fact, yours is a clinical neuropsychology and

21 that's what--

22 A Well, I'm a -- yeah. I'm a clinical

23 neuropsychologist, ,but I have -- I see patients of all age

24 groups, children, adults, adolescents.

25 Q So, I don't see anywhere in-- in your

52 Page 91

1 credentials, which, by the way, they are I'm not

2 questioning your expertise. However, I, in my studies, have

3 seen that forensic neuropsychology has become a specialty

4 where the neuropsychologist actually spends time and focuses

5 on the legal aspects of the nuances of what they are testing

6 for.

7 Is that fair to say?

8 A Well, not quite, but that's -- I understand the

9 sense of the question. The -- yeah, you know, in the last,

10 say, six years, there's been-- there's been some attempt at

11 getting special -- doing specialties in forensic psychology.

12 And I will say in my own defense that I have been trained,

13 of course because I've had a lot of CEUs.

14 Q Okay. It's not a defense. Again, I'm not

15 questioning your expertise. I'm just looking at the fact

16 that -- are you familiar with the -- a forensic clinical

17 neuropsychology textbook?

18 You're familiar with those kind of textbooks; correct?

19 And this actually --

20 A Well, there's a number of them.

21 Q Okay. This one -- I'm sorry. Let me rephrase

22 that because it'll be more specific for you. It's Applied

23 Clinical Neuropsychology, 2011 copyright (indicating).

24 A I don't think that's in my library, but I've

25 probably got equivalents. I mean, there's a number of them

53 Page 92

1 out there.

2 Q And they talk about forensic clinical

3 neuropsychology, where they specialize in the forensic

4 application of your knowledge and skill.

5 A Well, I -- well, I do have some of those books in

6 my library, but I try to stay current with the literature,

7 too, because, like, over the last four or five years I have

8 been doing more and more of these kinds of cases, so

9 Q Well, bottom line, with the forensic, in dealing

10 with the legal aspects or the nuances in fact, she

11 they talk about in this -- in this book, that, in the

12 forensic setting, many other issues, other than just the

13 the clinical issues, surface, such as -- one of the big ones

14 is mallingerring and some of the things that will affect

15 for example, you didn't evaluate Mr. Gamboa until he was on

16 death row for nearly a year versus her, as in Dr. Milam,

17 evaluating him during the trial;

18 That could -- that could bring some nuances and

19 differences; correct?

20' A Well, that's very true. But let me say this: I

21 have had a lot of experience in evaluating for

22 mallingerring. Because most of the legal cases we have done

23 have been in-civil court, they have to do with injury and

24 there malingering is a real issue.

25 But I will say, too, that we -- we pay a lot of

54 Page 93

1 attention to internal consistency and, eventually, the

2 external consistency doesn't make sense, so -- but we

3 evaluate everything, in terms of level of effort and we

4 evaluate everything -- every test, in terms of authenticity

5 of effort. That's really a major -- a major point for any

6 kind of evaluation. So, we spend a lot of time with that.

7 Q And the bottom line for my point is you, as an

8 expert, or Dr. Milam as an expert, it's important to

9 understand within the legal setting exactly what needs to be

10 obtained, exactly what the defense attorneys want to convey

11 to the jury; correct?

12 A That's --that's true.

13 Q And it may be part of their decision process as to

14 whether or not they want to put on the technical stuff that

15 we heard for an hour and a half, which I'm not questioning,

16 is not -- it's probably very valid and there's no denying

17 that he had a horrible childhood, but they have to decide

18 what impressions the jury's going to be left with, are they

19 going to -- are they going to listen to his family, give

20 this heartwrenching background of how horrible his life was,

21 or are they going to want more technical stuff.

22 Do you see what -~ it's a decision-making process, do

23 you understand that?

24 A Well, I --

25 Q "Yes" or "no"?

55 Page 94

1 Is it a decision-making process the defense attorneys

2 have to do when they are trying a case?

3 A Well, in a sense-- well, of course, it's the--

4 the attorneys are the -- they are sort of the quarterback.

5 Q Well -- and they have to decide whether they want

6 to go into more detail in one area or get on the -- the --

7 that he's brain-impaired and he suffers from this terrible

8 childhood, that nobody denies or what to do, it's a

9 decision; correct?

10 A Yes. It's their decision.

11 Q Now, you did speak a little bit -- first of all,

12 when you were getting preparing for this and you were

13 talking to or, evaluating Mr. Gamboa, you mentioned that

14 you looked at Dr. Milam's -- I'm not sure if you actually

15 just looked at her notes or did you actually read the

16 record?

17 A I didn't get wh9t I have in my file. This is

18 this is my file for him.

20 A What I have in there, I did not receive until --

21 her work, I did not receive until I finished the evaluation

22 and started writing the report.

23 MS. WELSH: May I approach

24 THE WITNESS: I did

25 MS. WELSH: Hold on just a minute.

56 Page 95

1 Your Honor, may I approach?

2 THE COURT: One at a time -- You can

,3 approach -- ~o the Court Reporter can get it down.

4 Q (MS. WELSH) This is my copy of the record, but I

5 just wanted you to look -- do you remember looking at

6 anything that was -- looked like this, like it was a record

7 or transcript (indicating)?

8, A Yes. Well, yeah, I think I did.

9 Q Okay. Well, you were flipping

10 A That was -- that was for

11 THE COURT: Hold on a second. One of you at

12 a time. Let him finish if he is talking.

13 Q (MS. WELSH) You were talking of her notes and

14 then you said "deposition" a few times, so I just wanted to

15 clear up for the record that you actually did look at the

16 record, that you got the record.

17 A I don't recall-- I don't recall whether it was a

18 deposition or a court recording. I didn't review that

19 before we did the evaluation. I didn't review all her

20 her details of the family history and her actual test

21 results until we were, essentially, completed, because I

22 was -- otherwise, I would have designed the tests -- the

23 battery of tests a little bit differently, but -- but,

24 anyway

25 Q Which, again, brings us to the fact that you

57 Page 96

1 looked at Mhat she did and then you 6an decide to do more or

2 different testing, which is very -- it doesn't mean she was

3 wrong, it just means you could add to it; correct?

4 A No. I never said that she was wrong, because our

5 testing -- our results, basically, complement each other and

6 we both say the same things, in terms of -- in terms of the

7 summary.

8 Q When you reached your conclusions on Mr. Gamboa,

9 had you read any of the police reports having to do with

10 this particular offense that he was on trial for?

11 A No.

12 Q Had you talked to Mr. Gamboa at all about this

13 offense?

14 A I don't do that. They tell you. I don't ask any

15 questions about that as part of -- never -- never ask a

1£ question about that. Now, they tell you. Along the way, we

17 have notes.

18 Q Did Mr. Gamboa tell. you anything about this

19 offense?

20 A I have some sketchy notes, but --

21 Q What did he tell you?

22 A Well, he said he didn't do it.

23 Q Okay. Did he say who did it?

24 A Well, that's all --basically, from--

25 Q No.

58 Page 97

1 "Yes" or "no"?

2 Did he say who did it?

3 A Well, no, not -- not definitely, but there was --

4 but that's to me, that's hearsay and I don't

5 Q Well, it's not hearsay because it was coming from

6 him and we are allowed to ask questions about what he said.

7 A Right.

8 Q So, did he offer who might have done it, if he

9 didn't do it?

10 A Well, there are some names and I can show you the

11 names, but I don't

12 Q And they were?

13 A I can show them to you, but I --

14 Q You can't just say them?

15 A -- I don't want to -- Pardon me?

16 Q You can't just say it?

17 A I'd rather not, but I can show-- no, I can get

18 THE COURT: Well, here's how it works. If he

19 told you-- unless there's an objection, if he told you who

20 did it or anything that he said to you is fair game in this

21 proceeding~ unless there's an objection.

22 So, you can go ahead and testify as to what he told you

23 or --about who did it. I don't thi~k there's any--

24 MR. LANGLOIS: Your Honor --

25 THE COURT: I think it's fair game, unless

59 Page 98

1 there's some legal objection to it.

2 MR. LANGLOIS: I don't know what discussion

3 he had. I thought he already told him that -- he didn't go

4 into anything about the facts of the case and that's pretty

5 much the answer.

6 THE COURT: Well, I think his answer was that

7 he was told who did it and he had some names and he didn't

8 want to answer it and -- because it was hearsay. And, quite

9 frankly, that's not his call.

10 I think he's --there's not any reason why he can't

11 answer her question as she has posed it, unless, number one,

12 he didn't tell him or, number two, he doesn't know.

13 THE WITNESS: I'm sorry.

14 THE COURT: Okay. So -- so-- and there's

15 not a need to show it. I mean, if you've got a document in

16 front of you.where he said who else did it, then you can

17 answer that question.

18 THE WITNESS: I'm sorry, but I don't think

19 if I said that he said who did it, I think I misspoke.

20 THE COURT: I'll tell you what: Let's start

21 over. Ask your ·question again.

22 Q (MS. WELSH) When you were speaking with

23 Mr. Gamboa -- I'll ask both quest1ons again -- did he

24 ever -- what did he tell you about whether or not he

25 committed the crime?

60 Page 99

1 A He denied doing the crime.

2 Q And in denying doing the crime, did he tell you

3 who did the crime?

4 THE COURT: That just calls for a "yes" or

5 "no" at this point.

6 THE WITNESS: Well, what level of -- Okay.

7 Your Honor, what level of certitude?

8 Well, I would have to say, you know, my -- my

9 interpretation, no. 10 . Q (MS. WELSH) Okay.

11 A He gave a name, but I --

12 Q Did Mr. Gamboa suggest to you other individuals,

13 by name, that may have been involved with this offense that

14 he did not commit?

15 A I think -- yes. There were some --

16 Q And those names were?

17 A there was some conjecture, but it's -- it's

18 conjecture. Look, I'm not -- I wasn't part of the police

19 investigation and that's not -- it wasn't my job.

20 Q Okay. Dr. De France, the point is perhaps you're

21 making it without even giving the names. The reason the

22 defense attorneys oftentimes do not expose their clients to

23 this type of evaluation is because they talk and they give

24 information that may come back to hurt them.

25 Do you see that?

61 Page 100

1 Do you agree with that?

2 A I agree with that.

3 Q Okay. So, the defense attorneys, in making their

4 decisions on what -- how in-depth they go and who is

5 evaluating their client, that all comes into play because 6 the clients talk; correct?

7 A The clients talk, yes.

8 Q Okay. And he told you he didn't do it. But did

9 you see any other reports on -~ of the other offenses that

10 he committed?

11 A I -- I heard about them, but I didn't see any

12 reports.

13 Q Because you've talked in terms about Mr. Gamboa

14 being reactive, perceiving threats and -- in fact, I think

15 in your -- your -- you talk about he would be rather passive

16 and feels comfortable in structure and routine. Those were

17 your words in your affidavit.

18 Are you aware that, on June 25~h of 2005, which was

19 right about the same time of this capital murder, that

20 Appellant was just hanging out with a buddy of his, found

21 some bullets for his revolver, put the bullets in it -- This

22 is testimony straight from the trial record, so I'm not

23 going on anything that -- it's not conjecture -- (reading)

24 He put some bullets in the gun, put the gun in his pocket

25 and told his friend to start his car, which his friend did

62 Page 101

1 because he thought that Gamboa might shoot him.

2 (Reading) They drove to an area -- by the way,

3 Appellant told the guy where he wanted him to go. They went

4 to the Prime Time Bar, Appellant got out, started talking to

5 some people and th~n just started shooting. He did the same

6 thing at a gas station, no apparent threat, no -- he went up

7 to the people with the gun.

8 (Reading) In fact, there was one incident where

9 Appellant saw a Corvette and said he was going to jack the

10 guy, he told his friend. Appellant saw two girls and asked

11 them to pretend to be prostitutes, so that the guy would

12 stop, but the girls refused.

13 This doesn't sound like a person reacting. He sounds

14 like he's he's planning something, he wants that Corvette

15 and he has a plan to get it.

16 Wouldn't you agree?

17 A Well, I'm not familiar with the-- those

18 scenarios.

19 Q Those --that's not just a scenario, sir. Those

20 were facts --

21 A Well, they may be.

22 Q -- that came out at trial.

23 A They may be, but you're asking me to comment on

24 it. The -- I don't think that's totally inconsistent

25 with -- with our findings, but our findings are pretty clear

63 Page 102

1 that he tends to be more passive than being proactive.

2 Q So, in the facts of this case --

3 A But I can't speak -- I can't speak to the facts

4 and the circumstances. That's why when we do these

5 evaluations -- I mean, we're not the judge or the jury. I

6 mean, we don't determine guilt or innocence. What we are

7 asked to do is provide information to the court.

8 Q Well, in fact, that brings -- you talked about

9 you're there to ask -- answer the question "why" and we've

10 done studies /

11 A Sure.

12 Q -- throughout history trying to understand why,

13 right, why people do bad things

15 Q -- right?

16 A Absolutely.

17 Q And as a society, would you agree that it makes us

18 feel better sometimes to think that there's some reason that

19 a person is committing crimes, other than they are just flat

20 out mean?

21 A I would very much agree with that.

22 Q You talked about him being good in organized

23 settings or he would be passive .

24 .Are you aware that, in December 14th, 2007, shortly

25 after being sent to death row he assault~d one of the other

64 Page 103

1 inmates with a spear that he made himself?

2 And this is not out in general population. He pushed

3 the spear through his the hole in his door, in his cell,

4 to try to attack this person, unprovoked, he's in his own

5 secure cell, he modifies whatever he can come up with and

6 makes a spear, so that he can stab someone and then flushes

7 it down the toilet.

8 Were you aware of that?

9 A I was aware of the -- of the event, but I don't

10 know the particulars of the circumstance; so, I'm not sure

11 what you want me to comment on. I mean --

12 Q I am just stating that he is in prisGn now, he is

13 on death row, he is in a very secure situation, he

14 shouldn't -- if he's as passive as yqu say he is, then on

15 11 -- November 21st of 2008, he assaulted an officer.

16 On January 11th of 2009, he assaulted an offic~r, again

17 with a weapon that he made, 12-inch piece of rolled up

18 newspaper with razor blades attached, that required

19 treatment beyond first aid.

20 Again, he stabbed through the slot in his cell door, so

21 nobody's even safe to walk by his cell, and then he flushed

22 it down the toilet, so that no one would find any evidence

23 of it.

24 January 30th of 2009, he assaulted an officer by

25 throwing a homemade spear. He likes to make weapons,

65 Page 104

1 apparently, because then he flushes them, so he has to

2 remake them. So, he made another weapon and he attacked the

3 officer as they tried to remove him from the day room. He

4 speared him in the leg.

5 February of 2009, he possessed a weapon, intended to

6 injure, again something he made, rolled up -~ paper rolled

7 up, with a piece of metal four inches in length, attached to

8 the end and sharpened, so -- and the list goes on, I might

9 add. I mean, it's -- it continues to go on, which seems to

10 suggest that even in the prison environment he's not

11 necessarily going to be passive and he

12 A Well, I think I think the point that Dr. Milam

13 made and our data suggests or indicates that he's going to

14 do best when ~here's a lot of routine and consistency and

15 where things are simple, but he's going to be reactive, not

16 going to be proactive.

17 Now, I don't know the circumstance for those things. I

18 believe what you say, because I'm sure it's documented, but

19 I think you need to look at the motive, if there was -- if

20 something was triggered in this gentleman.

21 I don't know. Now, I -~ and nobody -- nobody is

22 claiming that he's a saint, that all of his behavior has

23 been exemplary and nobody's saying it's excuseable, okay,

24 but what we are trying to do is figure out why.

25 And like you were asking, we want to know why, because

ANGIE RANGEL JIMENEZ, CSR (210) 288--'0312

66 Page 105

1 it makes - - i t ' s helpful. But more than that, it's -- it

2 comes down to the basics that says what is his level of --

3 of blameworthyness.

4 Yes, he may have done some of those deeds, but if we

5 look at -- if we take his behavior and look -- take a

6 broader view of it, if we understand it, then maybe we

7 can -- it's not to excuse it, but maybe we can see another

8 way for justice to be s~rveed.

9 Q Do you see how statements like lack of adequate

10 controls -- let's see, I think you .used some statements

11 like -- I can't find them-- basically, that he had no

12 impulse control.

13 Do you see how that could be -- no doubt -- Here we go,

14 (reading) No doubt he would have been acting reflexively, 15 without regard to the consequences; he has -- doesn't have

16 the ability to understand those consequences; he has total

17 lack of control.

18 Do you see how that might come across as or be a

19 two-edged sword when it comes to deciding what to put before

20 a jury?

21 A Well, I think-- I think that's --that is a

22 fairly accurate reflection of the situation. I don't know

23 all the -- the jury needs to make their own decisions, but

24 that's the-- I think that's --reflects the facts of the--

25 of the situation.

67 Page 106

1 Q Well, the fact that it's a two-edged sword,

2 meaning that somebody could look at.that and say, Oh, poor

3 thing, let's give him a bre~k, somebody else could look at

4 it and say, Oh, my gosh, this person's got to go, he's a

5 total danger --

6 A Absolutely.

7 Q -- those are things that the defense attorney has

8 to weigh; right?

9 A Well -- and we weigh, too. Because when we do

10 these things -- I'm going to digress. The one place where

11 I've got to disagree with Dr. Milam is we do make risk

12 assessments, because public safety is an important issue.

13 And ~ot everybody likes to hear what we have to say, in

14 terms of defense attorneys, about -- about their clients,

15 but it is a two-edged sword, definitely.

16 But if there is -- if there is a history of unprovoked

17 assault, then that needs to be handled and controlled --

18 Q Well --

19 A ~-but that's not --all we're-- all we're doing

20 is -- is -- when -- when people -- people have different

21 styles of -- varying styles of the way that they handle

22 things, and that's .what we are --that's what we're testing,

23 in part.

24 We're testing trait factors, in part, but sometimes

25 we're testing these trait factors, that there are -- there

68 Page 107

1 are predictable ways of responding, and that's what

2 Dr. Milam and I were looking at, in part.

3 We are making our judgments, our conclusions, about how

4 they respond in a -~ in a prison environment, based upon

5 those kinds of traits. And the literature shows, I think,

6 that the level of service -- you know, it helps us determine

7 the level of service, that, you know, he should do best in

8 a -- in a controlled setting, but we are not saying that he

9 would be doing well to be released---

10 Q I'm going to say, if that's his best, then we're

11 in big trouble; right?

12 A Well, I think we need to know the circumstances,

13 with all due respect. There's more to the story.

14 Q Well, with all due respect, he is in his cell, he

15 has fa~hioned a dagger or a spear and he reaches out to

16 someone that is crossing by his cell door. That's the

17 facts.

18 A But that's --

19 MR. LANGLOIS: Judge --

20 THE COURT: Hold on a second.

21 Mr. Langois?

22 MR. LANGLOIS: ~- we are getting into the

23 punishment phase of the trial. This doctor, you know,

?4 talked about executive functioning and how it affects a

25 person. It has nothing to do with the behavioral, and we

69 Page 108

1 are past things like that.

2 He never testified that he wouldn't do anything. He

3 just explained exactly -- you know, based upon his brain

4 damage and stuff like that, at how that affects certain

5 things, having the controls, affect and stuff like that.

6 All this testimony here is just not even relevant --

7 THE COURT: Okay.

8 MR. LANGLOIS: to this Hearing and I would

9 object to it

10 MS. WELSH: Your Honor --

11 MR. LANGLOIS: -- if she wants to make the

12 point, you know, he did this, those are things up in TDC.

13 That has nothing to do with how his brain is functioning;

14 that's all.

15 THE COURT: Okay.

16 MR. LANGLOIS: If she wants to be -- certify

17 herself as an expert, that certainly has more authority and

18 more knowledge than our doctor does, then she should get up

19 on the stand and take it.

20 But, you know, the questions relate to whether or not

21 these studies were valid and whether or not the executive

22 functioning is something that the jury should have heard.

23 That's the whole ,thing, not what he's done up in prison, you

24 know. That would go to, you know, future dangerousness and

25 we are not into that area.

70 Page 109

1 MS. WELSH: May I respond?

2 THE COURT: I'll give you a little latitude

3 on that, just tie it into his expertise, rather than just

4 questioning him on whether or not he knows it happened.

5 MS. WELSH: Well, I --

6 THE COURT: That's my ruling, so you can

7 continue your questions.

8 MS. WELSH: I actually don't have that much

9 more on that.

11 Q (MS. WELSH) The -- the bottom line being that in

12 your affidavit that you did talk about whether or not he

13 would be -- do well in these settings and -- and Dr. Milam

14 did the same thing, talked about the same thing; correct?

15 A That's correct.

16 MS. WELSH: Your Honor, at this time, I would

17 like to offer into evidence the prison records, just because

18 I had referred to them, just so that they are part of the

19 record.

20 You have the originals along with the business

21 affidavit in the court's file. I filed them and gave

22 notice. Just because I did refer to· those incidents, they

23 will be part of the record.

24 THE COURT: Okay. Is that -- it was file

25 stamped the 9th of April?

71 Page 110

·1 MS. WELSH: It's -- it's in a manila

2 envelope, yes, sir.

3 THE COURT: Okay. Mr. Langlois, any

4 objections?

5 MR. LANGLOIS: Judge, I don't understand the

6 relevancy of those criminal records. It has nothing to do

7 with this. This is not a punishment hearing.

8 THE COURT: Okay.

9 MR. LANGLOIS: It has to do .with whether or

10 not -- you know, the issues that I raised in the Writ. I

11 don't understand why she is bringing that in. It has

12 nothing to do with it. It's post-trial.

13 · The whole issue here is what happened at trial, whether

14 or not Mr. Gamboa received the effective assistance of

15 counsel and whether or not there was, you know, testimony

16 that should have been provided at that time.

17 I don't see anything that happened after· the conviction

18 that is relevant in this case and that's exactly what those

19 reports are about.

20 THE COURT: Okay. Is there an exhibit number

21 on them or are they just part of the

22 MS. WELSH: No. I need to have them marked.

23 THE COURT: Just so I can rule on that.

24 (State's Exhibit No. 1 marked.)

25 MS. WELSH: And, again, the purpose that the

72 Page 111

1 State is offering those is simply because I did allude to

2 them, based on the doctor's affidavit on what --kind of how

3 he would be in controlled situations, and I'm going to move

4 away from that at this point.

5 THE COURT: Okay. Here's my ruling: For

6 now, they are admitted. When you submit your proposed

7 findings of fact and conclusions of law, quite frankly, they

8 would be relevant and admissible only as it goes to his

9 testimony and how he reached his opinions about the

10 Defendant, not as to any issues of future danger or about

11 his conduct in prison, so --

12 MR. LANGLOIS: He never testified about his

13 future dangerousness, your Honor.

14 THE COURT: That's what I'm saying. So, my

15 point is they are only relevant to the extent that he has

16 interviewed the Defendant, he's testified about his

17 functioning. And so, I don't I don't believe, at this

18 point, that they are relevant to any issues of future danger

19 in prison.

20 So, quite frankly, I'm going to let them in. I don't

21 know how they are really going to factor into any proposed

22 findings of fact and conclusions of law. Now, you can

23 submit them to me, I'll I'll consider them, and then you

24 can make any objections on those proposed findings that you

25 want.

73 Page 112

1 I'm just going to allow them in, only because he's

2 referred to them a couple of times and he's aware of them.

3 Okay.

4 MS. WELSH: And, again, your Honor, just

5 because I referred to many of the incidences that are in

6 there, that's just to show that I wasn't making something

7 up --

8 THE COURT: Correct.

9 MS. WELSH: -- that I had it on paper.

10 THE COURT: Correct.

11 Q (MS. WELSH) Just a few final questions and then

12 I'm finished. When you were reviewing things for your

!3 evaluation of Mr. Gamboa, as well as testifying here, did

14 you review any findings made by a Dr. Gilbert Martinez?

15 A No. I did not.

16 Q Did you see any reports or any findings made by a

17 Nadine Maz?

18 A No.

19 Q Did you talk to any people that know the Defendant

20 but aren't his f~mily?

21 A No.

22 Q In fact, from what I gathered from you, really,

23 you're concentrated on your testing and -- and him pretty

24 much. Is that fair?

25 A That. And Dr. Milam•s file, yes, that's true.

74 Page 113

1 MS. WELSH: Pass the Witness, your Honor.

2 THE COURT: Mr. Langlois?

3 REDIRECT EXAMINATION'

4 BY MR. LANGLOIS:

5 Q Dr. De France, you were questioned by the

6 prosecution over the issue of who made the decision to

7 decide, you know, what was going to be presented at trial

8 and, obviously, you had-- weren't even concerned with what

9 happened at trial; is that correct?

11 Q All your involvement in this case has been

12 post-trial?

13 A That's correct. Yes, sir.

14 Q Okay. And you were asked by Mr. Jay Brandon, who

15 was the original Writ lawyer for Mr. Gamboa, to evaluate the

16 executive functioning; is that correct?

17 A That's right.

18 Q Okay. And executive functioning, basically, is a

19 consistent factor, is it not?

20· A It is.

21 Q Okay. And it has -- it is a determination of

22 whether or not there is brain damage or brain impairment; is

23 that correct?

24 A Well, those are separate questions in a way, but

25 we found that -- deficits of executive functioning, some of

75 Page 114

1 which could be developmental. But we found evidence, too,

2 that it looked like it was actual acquired brain trauma.

3 Q And your evaluation established that Dr. Milam

4 certainly did some thorough testing; is that correct?

5 A Yes. I mean, our -- our testing actually agrees

6 with hers: The issue -- the issue is that she -- she didn't

7 explore some critical areas that should have been explored.

8 Q And that was your -- and that was your

9 determination, that there's other areas, particularly the

10 executive function area, that she did ' not cover in her

11 testing?

12 A That. And personality organization --

14 A -- and a working memory, yes.

15 Q And based upon that, that evidence likely would

16 have benefited the jury in making their decision on

17 mitigating factors; is that correct?

18 A Yes.

19 MR. LANGLOIS: Okay. No further questions.

20 THE COURT: Anything else?

21 MS. WELSH: Nothing further, your'Honor.

22 THE COURT: Okay. Can he be excused to go

23 back to

24 MS. WELSH: Yes. ~ 25 THE COURT: -- Houston or Maine.

76 Page 115

1 THE WITNESS: I'm going to Houston, sir.

2 THE COURT: Okay. Doctor, thanks again. I

3 appreciate it.

4 Anything else, Mr. Langlois? Any other witnesses?

5 MR. LANGLOIS: Not at this time, judge.

6 THE COURT: Okay. State?

7 MS. WELSH: Nothing, your Honor.

8 THE COURT: Okay. Any other evidence I need

9 to consider? I know there was some rumblings about an

10 affidavit that was mentioned yesterday. Do you have another

11 expert that could not be here

12 MR. LANGLOIS: Yeah, Dr. Weaver.

13 THE COURT: Okay.

14 MR. LANGLOIS: At this time, judge, I'll

15 offer intb evidence -- well, it's evidence -- his

16 affidavit's been submitted with the Writ and ask the Court

17 to consider that-- or, within the Court's power to consider

18 affidavits in the use of findings of fact and conclusions of

19 law, if it becomes applicable.

20 THE COURT: Anything from the State?

21 MS. WELSH: Yes, your Honor. The affidavit

22 is attached to the Writ, which simply makes it -- supports

23 the Writ and perhaps gets him in a hearing; however, we are

24 now in a hearing and the affidavit is in violation of the

25 rules of .evidence. It's hearsay, inadmissible and we object

ANGIE RANGEL JIMENEZ, CSR. (210) 288-0312

77 Page 116

1 on that basis.

2 THE COURT: Okay. Let me just ask the

3 parties real quick: I understand, at least in a proceeding

4 like this, that the rules of evidence, typically, apply that

5 an affidavit, although it's sworn to, would not afford the

6 opposing side the opportunity to question or cross-examine

7 the affiant in that matter.

8 Mr. Langlois, any-- any response to that, that {t's

9 just been attached to the Writ?

10 I know it's common that affidavits are attached, which

11 kind of gets us into court.

12 MR. LANGLOIS: I believe that, while the

13 rules of evidence do apply at the hearing, the judge can

14 also, you know, regulate or have the discretion to allow

15 affidavits and -- and the testimony.

16 THE COURT: Okay.

17 MR. LANGLOIS: My position is that I think

18 that they are admissible if the judge, you know, allows them

19 to be considered.

20 THE COURT: Okay. Let me just make

21 MR. LANGLOIS: Certainly, the State has a

22 right to file an opposing affidavit to his affidavit and

23 they did not.

24 THE COURT: Let me just make this ruling on

25 it: Before we formally rest and close on this, I'll give

78 Page 117

1 the State the opportunity to file any opposing affidavit, if

2 they feel it's appropriate.

3 Alternatively, I think it's already part of the Writ,

4 so it's there for consideration. What I will do is e-mail

5 each of the parties. If I have any concerns about the

6 affidavit or any questions about it, I'll advise the

7 parties. And if the State, at that time, chooses to file an

8 opposing affidavit, they can. Or, rather, than resting and

9 closing today, if my position is -- is that the affidavit is

10 sufficient for consideration based on the content of it, or

11 my review of any case law that relates to that, I'll advise

12 both parties and just come back and hear what that witness

13 has to say, if, in fact, you want to put him on.

14 So, I' 11 just I'll let you know within the next few

15 days how I'll proceed on that and then if, for some reason,

16 the State feels like it's appropriate to just file an

17 opposing affidavit, if you'll just let me know how long you

18 need to get somebody to respond to that, I'll give you the

19 .time to do it.

20 I'll have the Court Reporter go ahead and prepare the

21 record, based on everything we have done so far, and at

22 least we can kind of get things going and you can get your

23 proposed findings of fact and conclusions of law ready, or

24 just anticipate doing those as soon as Angie's done with the

25 record.

79 Page 118

1 Let me make it real 6lear on the TDC records, I don't

2 think this Hearing was about future danger. It was more

3 along the lines of merital issues involving the Defendant;

4 so, those records are being admitted not to establish that

5 the Defendant is a future danger, but simply to support the

6 State's position that Dr. De France either reviewed them or,

7 had he not reviewed them, that the representations made by

8 the State were accurate in the cross-examination of that

9 witness, not in supporting any claim that, in fact, the

10 Defendant's a future danger, so that the death penalty was

11 valid in this case.

12 Anything else that needs to be brought to my attention,

13 Mr. Langlois?

14 MR. LANGLOIS: No.t that I'm aware of at this

15 time, judge.

16 THE COURT: Okay. All right. Ms. Welsh?

17 MS. WELSH: The prosecution does not present

18 themselves as an expert in any type of neuropsychology, just

19 for the record.

20 THE COURT: Okay. So, what I'll do is I'll

21 advise I'll advise each of the parties, probably

22 within I may be able to do it tomorrow, since I had

23 planned to be here tomorrow to just do a little research on

24 the affidavit, I'll review it.

25 If I'm uncomfortable with the content of it, or if I

80 Page 119

1 just decide, Hey, it's all fair game, I'll let you know. If

2 you want to -- if you want to file an opposing affidavit,

3 everybody just gets a copy of the e-mail, just let me know

4 how long you think you'll take.

5 If -- if I feel that it's appropriate just to exclude

6 it and you want to bring in that expert, we can cross that

7 bridge on another day.

8 Okay. Anything else?

9 MS. WELSH: No, your Honor.

10 THE COURT: Okay. Mr. Gamboa, do you need to

11 talk to Mr. Langlois for anything?

12 THE DEFENDANT: No, sir.

13 THE COURT: Okay. Take care of yourself.

14 Okay.

15 P R 0 C E E D I N G C 0 N C L U D E D

81 Page 120

1 THE STATE OF TEXAS

2 COUNTY OF BEXAR

3 I, ANGELITA RANGEL JIMENEZ, Certified Shorthand

4 Reporter in and for the County of Bexar, State of Texas, do

5 hereby certify that the above and foregoing contains a true

6 and correct transcription of all portions of evidence and

7 other proceedings requested in writing by counsel for the

8 parties to be included in this volume of the Reporter's

9 Record, in the above-styled and numbered cause, all of which

10 occurred in open court or in chambers and were reported by

11 me.

12 I further certify that this Reporter's Record of

13 the proceedings truly and correctly reflects the exhibits,

14 if any, admitted by the respective parties.

15 I further certify that the total cost for the

16 preparation of this Reporter's Record is $ _________ and will

17 be paid by THE STATE OF TEXAS, COUNTY OF BEXAR.

18 WITNESS MY OFFICIAL HAND this the day of

19 ____________ , 2013.

20 /s/Angelita Rangel Jimenez 21 Angelita Rangel Jimenez, Texas CSR 6016 Expiration Date: 12/31/14 22 P.O. Box 680665 San Antonio, Texas 78268 23 Phone: (210) 288-0312 E-mail: . Srradj@sbcglobal.net 24 Court Cause No. 2005-CR-7168A-W1, Ex Parte: J. Gamboa Vol. 5 of 6, 4/24/2013 25

82 • Certificate THESTATEOFTEXAS * COUNTY OF BEXAR

I, Donna Kay M£Kinney, Clerk of the 379TH Judicial District Court, in

and for Bexar County, State of Texas, do hereby certify that the above and foregoing are

true and correct copies of all the proceedings had in the case of .

EX PARTE: GAMBOA, JOSEPH 2005CR7168A-Wl I

HONORABLE BERT RICHARDSON PRESIDING the same appear from

the originals now on file and record in this office.

GIVEN UNDER MY HAND AND SEAL of said Court at office in the City of

San Antonio, Texas, on this the 6TH day of JANUARY, A.D., 2015.

Donna Kay M£Kinney Clerk of the District Courts Bexar County, Texas

By__~r+~~~~~-------- JAM . OSlO DEP ~ DISTRICT CLERK

************