Ledet, Desmond

Opinion

82 ,7'7

COURT OF CRIMINAL APPEALS WRIT NO. WR-82, 778~01

= TARRANT coUN_TY TEXAS,wRIT No. c-396-010272-115%§GEWE.§N COURT OF CR\M\NAL APPEALS EX PARTE § ;. _ k . § in THE coURT oF cRIMINALFH%§EKZUS § oF TEXAS, AUSTIN, TX. DESMoND LEDET § Ab@§Ac©Sia,©§@Fk

OBJECTION,#zz_THE TRIAL coURT's FINDINGS oF FACT, oN p.@, v23

H 1 S:Q(U o T'E S “,T H E R E¢P o R T E R' s R E c o R n “To

THIS HoNoRABLE coURT, EFFECTIVELY ALTERING THE coNsTRUcTIoN oF

THE REcoRD IN wHicH THE PROSECUTOR MISQOTED THE LAw BY INFoRMING

THE JURY THAT THE APPLICANT, IF HE DECIDED To TESTIFY, onLD No LoNGER BE covERED "o v E R" wITH THE PRESUMPTION oF INNocENcE.

TO THE HONORABLE JUDGES OF THE ABOVE SAID COURT:

The Applicant, Desmond Ledet, respectfully and humbly presents this OBJECTION to this honorable Court of Criminal Appeals. In support of this objection to the trial court's adoption of the Statelsjproposed`findings of fact;and legal conclusions regarding Applicant's Ground #24, the Applicant presents the following:'

l: A simple comparison between v.3 RR p.69 line 14 which sta- tes:

"presumption, there's no covering 0 V E R him....

&

page 6,0%23 of the trial court's findings of fact and con- clusions of law(adopted from the State) presented to this Courtl reveals that the word ”O V E R' is Omitted, ShOCk- ingly, from the trial court's findings presented to this Court of Criminal Appeals. The trial court's findings state; contrary to the Reporter?s Record:

"presumption, there”s no covering him."

22 ATTACHED TO THIS OBJECTION IS A COPY OF V.3 RR p.69. See it at p.ll of this objection. Look at line l4.please.

3: The Applicant has not yet had time to copy the "State's proposed Memorandum, Findings of Fact And Conclusions of Law" adopted by the trial Court and presented to this Court .. A copy should have been Forwarded to this Court.

'4: It is well settled that a defendant is covered "O V E R" with the presumption of innocence. In an attempt to mis-

p.l of ll (a one pa e exhibit is attached

construe the Reporter's Record in the minds of this.Court/

the State has dismantled a significant part of the recordl which does alter the meaning-;;-of the record before this Court. Specifically:

(a)

_€C>

(e)

the OnlY covering OVER the Applicant(or any defendant ) that was discussed prior to this point in the record was the presumption of innocence. v.33 RR, p.62.(the entire v.3 RR is attached to the writ Application, See Memorandum, Exhibit E} )

The State wants to. contrary to the record, convince this Court that the prosecutor was not talking about the presumption of innocence the Applicant was covered "OVER” with.

with the word "OVER” after the word Fcovering" at v.3 _ RR, p.69wline l4, viewed inylight of the record start- ing back atcp.$€,`it becomes exceedingly clear that

the prosecutor was telling the jury that if the Appli- cant chose to testify, which he did, he lost the pre- sumption of innocence. (Shown in_detail below.)

By presenting the;altered version to this Court in the trial court's adopted findings, and excluding what the prosecutor actually said(starting at p.56)leading up to v.3 RR p.69, the State has misdirected this Court from the record facts that prove the State;at trial lessened the State's burden of proof, misquoted the law, and deprived the Applicant of a fair trial. And also proves by the preponderance of the evidence, that defense counsel(who also told Applicant on record he lost the presumption of innocence by taking the stand- Ground #25) was ineffective as a matter of law for not objecting when the prosecutor misguoted the law during voir dire-Ground #24.

By removing the word "OVER” after the word covering it changes the record to be misread as if it was saying that if Applicant took the stand and testified there would be no covering for him(example: NO VOUCHING FOR HIM, ETC.).F When actually the true record says that l if the Applicant "does testify he waives all those ri- ghts"Hright to be presumed innocent, & right not to testify} only 2 rights the prosecutor just finished explaining].v."there's no special protection ANYMORE”[ certainly the jury did not interpret this to refer to a right to be presumed a truth tellerl Applicant;can‘ not ever lose a right("no special protection ANYMORE") that he never had. The prosecutor had never prior to alleging the Applicant lost the presumption of inno+-¢ cence for taking the stand, informed the jury panel that the Applicant had a right to be presumed a trut

l

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teller, so surely when the prosecutor said "there's no special protection AN¥HORE" the jury interpreted that to refer to the only special protection the State had just finished explaining the Applicant had(right to be presumed.innocent, right not to testify-starting at p. 56 leading up to p.69).

(f) after saying there's no special protection ANYMORE(v.3 RR. p.69 line-l3!) The prosecutor goes on to say: .. "There's no presumption¥[again, theyonly.presumption ever spoken of in the State's voir dire prior to this statement being made on the record, was the "PRESUHPT- ION OF INNOCENCE']-surely this was the only protection ever mentioned that Applicant had that had anything to do with a presumption_ The only other right spoken of prior to-this, was the right to not testify- THE RIGHT NOT TO TESTIFY IS'NOT A PRESUMPTION#TEE RECORD INDISPU- .TABLY PROVES; THAT AT THIS POINT("There's no presumpt-@ tion") THE ONLY:PRESUHPTION/PROTECTION IN THE MINDS OF THE JURY THAT TBEY COULD INTERPRET THE PROSECUTOR COULD POSSIBLY BE REFERRING TO-WAS THE PRESUMPTION OF INNO&LW@ CENCE THE PROSECUTOR HAD JUST EXPLAINED.(ShOwn below).

`(starting at p.56 leading up to p.69 only two rights are explained as rights(plural) the Applicant has-#l: "presumption of innocence, #2 right "not to testify".

(g) after that the prosecutor goes on to say: "There's no covering O V E R him.F

(h) the State's removal of the word O V E R” in it's alter- ation of the Reporter‘s Record adopted by the trial court presents this Court with false facts and misr. representations of the record~ This Court can not re- ly on the findings of fact adopted by`the trial court1 because those findings are not credible.

See Ex parte Flores, 387 S.W. 3d 626, 635(Tex.Crim.App.2012)( holding that the findings of the habeas trial judge "are gener- ally accorded great deference, but when the findings are not sup- ported by the record,.-.the rationale for this deference disap- pears”)("...we will enter alternative or contrary findings that the record supports" Id.o.' The Applicant respectfully urges this Court of Criminal Appeals to once again take up that same posi-

tion in this case. Respectively.

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THESE ARE THE TRUE AND ACCURATE FACTS THAT ARE SUPPORTED BY THE RECORD THAT THIS COURT SHOULD DOUBLE CHECK FIRST, AND THEN, ADOPT IN REGARDS TO GROUND #241 MAKING WHATEVER'MODIFICATIONS THIS HONORABLE COURT DEEMS NECESSARY.

The Reporter's Record proves that prior to the point in the record complained about in Ground #2§, the prosecutor explained two specific rights that the Applicant had(not a right that he never has, such as a right to be presumed a truth teller). Then after that(as explained in Ground #24) misinformed the jury that if the Applicant chose to take the standl then he waives all those rights. ONLY TWO RIGHTS WERE EXPLAINED PRIOR TO THIS. (l) The right to be presumed innocent unless proven guilty beyond a reasonable doubt; and (2) the right to choose not to testify. Specifically the prosecutor said: "If the Defendant does testify , he waives all those rights...there's no special protection anymore. There's no presumption, there's no covering OVER him." v.3 RR, p.69 lines lO-l3. At that point the mistatement of the law was complete. Had State's Voir dire ended right there the jury would have heard enough to ensure that it was instilled in their minds that the Applicant was covered over in the presumpt- ion of innocence, but if he does testify, “he waives that righti and based on the record,another right(since the record say's "he waives alliall being defined as the whole amount, guantity, or extent of, the entire number of] those rights“[not right in the singular, but rights with an § in the plural meaning more than

\ _ , one right§is waived if he testifies]. Since there were only two

rights discussed prior to this, the prosecutor was referring to

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all of those 2 rights. There is no other practical way to in-

terpret the record before this honorable Court.

In closingvhere's some brief detailed facts establishing the a-

bove supported by the record. We willlbegin several pages be+.;

fore the prosecutor began to state that if the Applicant chose

to testify he would lose all of the only two rights discussed:

ii

PLEASE FOLLOW ALONG IN V-3 RR(voir dire); that entire volu- me labeled Exhibit E in the Hemorandum's Appendix.

At v.3 RR p.56 line 19-p.6O line 19 the prosecutor's voir dire consist of explaining to the prospective jurors the that they can prove their case with only one witness.

At the bottom of page 60 at line 20 the prosecutor quickly changes the subject of her voir dire to explain that if a person breaks the law while voluntarily intoxicated, they are responsible for the conduct.

The voir dire on voluntary intoxication continues up until v.3 RR p.6l,line 14.

Instantly, after that,at v.3 RR p.61, line 15- p.62, line 4 the prosecutor again changes the subject and states: ` "All right. I want to talk to you a little bit about wit- nesses that you'll hear...Judge Vick mentioned this, and these are rights that are based on our constitution. We c` all have these rights." (Compare with: "If the defendant does testify he waives all those rights...There's no pre- sumptioni there's no covering over him."-Ground #24)

At this point the final answer to what RIGHTS the prosecu- tor informs the jury panel Applicant waives by taking the stand to testify,can only be found(Based on the record)be~ tween the point shown above where she first begins to make mention of the rights she eventually states are waived by taking the stand, and the point in which she states: "he waives.all those rights."

The indisputable record adequately shows that between thor se two points two rights are mentioned. (l) the right to be presumed innocent unless proven guilty beyond a reasons ble doubt, and (2) the right to chooose not to testify.

Next, the prosecutor goes on to say at v.3 RR p.62, line l 4a line lO: "...If we were committed--convicted of a crime , accused of a crime, we each and every one have these rightS. If you get a traffic ticket, you still have these right§;. ' 7 "p`.5 "'f:o`~f ll"

ll:

12:

13:

A defendant has a presumption of innocence, and that stays with him until and unless we prove beyond a reasona- ble doubt that he is guilty."

Two very important facts can be gleaned from the above:

a) The first right the prosecutor explained, before even- tually stating that "If the defendant does testify he waives all those rights...There's no presumption, ther- e's no covering OVER himV, WAS THE RIGHT TO BE PRESUMED INNOCENT UNLESS PROVEN GUILTY BEYOND A REASONABLE DOUBT.

b) & the prosecutor originally stated the law correctly on the presumption of innocence-BUT LATER ADDED A FALH$ 'SE AND UNCONSTITUTIONAL STIPULATION ON THAT RlGHTvNAME- LY, THAT IF THE APPLICANT CHOSE TO TESTIFY) HE WOULD THEN WAIVE THAT RIGHT.

After that the prosecutor goes on to lessen the State's burden of proof by next explaining that proof beyond a reasonable doubt could be found by GUESSING that elements of the crime have been proven just like people do on the "WHEEL OF FORTUNE". v.3 RR p.63- pnۤ( WHEEL OF FORTUNE DE- FINITION-GUESSING GAMESHOW METHOD OF FINDING ELEMENTS TO O- VERCOME THE PRESUMPTION OF INNOCENCE BEGINS AT v.3 RR p.63 line Zl,and continues all the way until p.65 line 5).

Although not raised in this writ, but relevant to the to- tal context of the record leading up to the statement: "If the defendant does testify he waives all those right§“, the prosecutor who had at first stated the law correctly, begin to covertly and subliminally mistate the law and al- ter the burdens of proof in favor of the State starting with the ”wheel of fortune' guessing gameshow method ex- plained to the jury for finding elements of a crime to o- ver come the presumption of innocencevand reach the level in their minds of proof beyond a reasonable doubt.

The Applicant raised an ineffective assistance of counsel ground on direct appeal for failure to object to the above said "wheel of fortune" guessing gameshow method for over- coming the presumption of innocence explained by the pro- SeCutOr. WHICH CAUSED A HEATED DISPUTE BETWEEN THE JUSTI- CES OF THE SECOND DISTRICT COURT OF APPEALS.

The honorable Lee Ann Dauphinot concurred only because de- fense counsel had not yet had a chance to explain his con- duct, but firmly argued against the majority opinion con- cerning the wheel of fortune guessing gameshow method ci- ted above, contending:

";.;I cannot agree with the majority's conclusion that

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the prosecutor's Wheel of Fortune analogy was a proper hypothetical fact situation to explain the State's bur- den of proof. As explained to the jury,-the burden of proof is merely A BEST GUESS STANDARD. ;The anology could have been used if the prosecutor had said, When you have enough letters you are no longer guessing.

You know. And you know beyond any reasonable doubt. BUT TELLING THE JURY THAT THEIR BEST GUESS IS PROOF BE- YOND A REASONABLE DOUBT IS A H*I S T A T E M E N T

0 F T H E L A W, AND WE SHOULD SAY SO."

Desmond Ledet v. State, NO. OZ-lO-OOZBl-CR, Concurring Op. at p.9,(Tex. App.-Fort Worth, May 2, 2013)§Slip Op.)

Please see a copy of it in the Appendix of the Memorandum attached to the Application. It is Exhibit D, at p.9.

14: EMPHASISLit‘s only about 4 or 5 pages later in the record 1 that the prosecutor, coming from another anglel again mis- states the law asserting: "If the defendant does testify he waives all those rights...There's no presumption, there 's no covering O y E R him."

lS: Thus the record reveals that the prosecutor made questions able statements affecting the burden of proof leading up to the error complained of in Ground #24, and defense ~' n counsel, though present made no objections .

162 Immediately after that, the prosecutor next explains to 'h the panel that: "Another right that a defendant has is the "Fifth Amendment right not to testify." v.3 RR, p.65 lines 24-25.

17: The Fifth Amendment right not to testify is the second ri- ght(of all of the rights explained) explained to the pa- nel by the prosecutor/prior to telling them: "If the de- fendant does testify he waives all those rights...There's no presumption, there's no covering over him."

18: The prosecutor continues to speak to the jury on the Fisv fth Amendment right not to testify all the way up until the point where she again changes the subject matter and states: "If the Defendant.does testify, he waives all those rightS...there's,no presumption, there's no cover- ing over him.

19: A very relevant point is that even while making mention of the right not to testifyl the prosecutor reached over the boundaries of the law, and explained(again attacking the presumption of innocence)to:the:juryjpanel;thatxsome of the reasons a defendant might utilize his right not to testify included: ”Haybe there's some kind of appellate i. reason. Haybe THEY'RE G-U I L T Y and they just don't wa- nt to testify." v.3 RR p.68, lines lO-ll.

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20: When the prosecutor made that statement she had no know- H;h ledge whether or not the Applicant would testify or not, nevertheless had he chose not to testify his presumption of innocence would have been destroyed in the minds of the jury. Although not raised in this writ, defense counsel id did not object towthat either. 21: And finally, after making mention of only two rights the Applicant was protectedlby(#l presumption of innocence un- less proven guilty beyond a reasonablr doubt, & #2, the right not to testify) the prosecutor inflicted the final blow to the right to be presumed innocent by asserting: "If the Defendant does testify he waives ALL THOSE RIGHT§

, and gets up there and tells you what he wants to tell you, there's no special protection ANYMORE. THERE'S NO PRE- SUMPTION, THERE'S NO COVERING`OWER HIH.” (Ground #24)

Defense counsel did not object. Respectfully he should have objeted and sought currative instructions even before it led up to that point,when the prosecutor explained that the proven guilty beyond a reasonable doubt level could be reached by guessing like on the wheel of fortunel and when the prosecutor explained that the reason a defendant might not testify is because they might be GUILTY of have an appellate reason.

Lastly,for the sake of the record facts, after completing the destruction of the Applicant's presumption of innocence in the mi- nds of the jury if he testifiedl the prosecutor went on to change the subject again and said: "He can be treated like any other witness. He might be presumed to be innocent, but he's not presu- med to be a truth teller, You judge him like anyone else." Id li- nes 14-17. THE HARM WAS ALREADY DONE, AND THAT DID NOT IN ANY WAY RECOGNIZABLE BY LAW:CURE THE ERROR THAT HAD ALREADY TAKEN PLACE. THAT ALSO CAN NOT BE CONSIDERED A RE-CANTATION OF THE HIS-

STATEMENT OF LAW THAT WAS ALREADY PLACED lN THE MINDS OF THE JURY

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)

And being presumed a truth teller is definately, based on the record, NOT one of the two rights, explained to the jury that the Applicant had, prior to the prosecutor stating:

"If the Defendant does testify he waives ALL THOSE RIGHT§,...

there's no special protection ANYMORE. THERE'S NO PRESUMPTION

} THERE'S NO COVERING QXEB_HIH."

The record makes it more than clear that the prosecutor was speaking of the: #l?right to be presumed innocent, & #2 the ri- ght not to testify, no ifs and and buts about it. Respectively. "A prosecutor may neither dispense with the presumption of inno- cence nor dinigrate the function of the trial." Hall v. Unitedi state'$, 419 F.2d 532, 537(5th cir.1969). The prosecutor'a mis~ conduct undermined the reliability of the fact finding process, altering the very framework in which the trial was held. The su- preme Court has long recognized that a prosecutor has a strong influence over a jury §erger v. U.S., 295 U.S. 78, 88(1935).

The Applicant has already cited the correct)law on the subject in the Memorandum based on this honorable Court of Criminal Ap- peals well-established precedent. See Memorandum, p.46-47.

Ground #24 is an ineffective assistance of counsel Ground. Hon. Fortinberry failed to present any strategy for not objecting in his affidavit. Instead he attempted to deceive this Court and artfully sidestep the actual issue raised.

The error affected the very framework in which the trial was had, and deprived the Applicant of the fundamental right to a fair trial and to due process.- The second prong of Strickland,

as well as the first is surely met. As shown in Ground #25, de-

fense counsel himself made the same mistatement of law to ithe

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the Applicant. His failure to object was based on ignorance of the Applicable law, not strategy. Even worse he attempted to v misleadmthis Court in his affidavit, falsely claiming he never

ever told the Applicant that if he tookwthe stand he would lose the presumption of innocence when all the time the record proves

other wise. Applicant's writ should be grantedl respectively.

PRAYER

The Applicant humbly prays that this honorable Court will ack- nowledge this objection to the trial court's adopted factual fi-i ndings and legal conclusions concerning Ground #24; The Applicant further prays that this Court will reject them,and instead, enter credible fact findings and legal conclusions that the lawl the facts, and the record supports. Ultimately please Grant the hum- ble Applicant immediate habeas corpus relief.

Respectfully S bmitted.

Desmond Ledet #01651095 Telford Unit

3899 State Hwy.98

New Boston, TX 75570

CERTIFICATE OF SERVICE

A`true copy of the above has been mailed to the Tarrant County, Texas Criminal District Attorney's Office, located at 401 W. ill

Belknap, Fort Worthl TX 76196 on Feb. Bth, 2015,(Pu

mailbox). Desmond Ledet

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Cause No.

The State of Texas vs.

1152016D - Vol.

_\ '~‘».

3 of 8 Desmond Ledet

( l Page 68 _ page 70 l - into account at all? 1 subpoena, you have to come to court, and each side has the ' 2 ‘ MS. McCORMlCK: Not for any reason. 2 right to issue them. . ` 3 PROSPECTIVE JUROR: That’s tough. l mean, 3 Our office has an open-f le policy, so they 4 you know, it's tough for a person to say they're not 4 get everything that we have. But it doesn't go the other ' 5 guilty and not want to testify. Why would they not want 5 way, and that's by constitution That’s' just the way this 6 to testify? 6 works. There' s no reciprocal discovery 15 what it's ' 7 MS. M¢cokchK. ca11 be a variety of 7 cain-d 111 Texas. so ney know what we know but we aunt § 8 reasons Like Ms. Ernest said, maybe people just aren‘t 8 necessarily know what they know. And that's because he' s f 9. good at talking Maybe they think we haven't done our 9 the Defendant and he has that right. l 0 job. Maybe there's some kind of appellate reason. Maybe 1 0 Okay. As we talked about, this case 11 they're guilty and uthey just don't want to testify. 111ere 1 l . involves sexual behavior. lt may involve a sexual act § _1 2 can be a lot of reasons 1 2 And that may involve you, the ones that are selected for ` 1 3 But for whatever reason, if a defendant 13 the' jury, talking about that with fellow jurors. Is there 1`", l 4 decides not to` testify, youjust'can‘t talk about it. You l 4 anyone who just can't do that? Can`t go back there and jj . 1 5 might think, you know, if lwere' m this situation and l 1 5 talk about this stuff with anybody else?- , § """` ““1‘6` ` didn‘t do this, l would tell them. But someone else may , 16 -_~-_-(Nosesponse)~» _ ` : l 7 not feel the same way as you. So the judge 1s just going 17 MS. McCORMICK: Let's see Ms. Utley, if 1.8 to say don't think about it y 1 8 you were selected on the' jury, do_ you think you could _do " 1 9 PROSPECTIVE JUROR: lf l was instructed not 19 that? § 2 0 ' to, you know, not to take that into consideration, then l 20 PROSPECTIVE IUROR: Oh, absolutely ' § l2 l ' believe I could d'o that :. 2 1 MS. McCORMICK: Anyone else?_ 2 2 MS. McCORMICK: Okay. Mr. Austin, what 22 (No response) ' § 2 3 about you? 23 MS McCORMICK: Ms. Kiani, how do you feel 2 4 PROSPECTIVE JUR_OR: Sure. 2 4 about that? ' 2 5 MS McCORMICK: You could do that? 25 PROSPECTIVE IUROR: l'm okay with that _ Page 69 Page 715 . . i 1 PROSPECT!VE IUROR: Uh-huh. 1 MS; McCORMlCK. Okay Probably not what ?1 2 MS. McCORM]CK: Even though that might not 2 you signed up for when you showed up yesterday ’I'here you 3 be your personal decision if you were in that situation, ` 3 ' go ‘ § 4 could you respect someone else' s decision not to? 4 is there anyc`>ne who has any kind of j 5 ' PRQSPECTIVE JUROR: Sure. - - 5 ' religious or moral reasons that you can't sit in judgment § 6 ` MS. McCORMlCK: _Oka`y. Ms. Frost, what 6 on anyone else? ' . 7 about you?- 7 (N° "“’P°“s°) - § B. ' _ PROSPECTIVE JUROR: They might think 8 _ MS. McCORMTCK: l know that some religious l 9 they're doing themselves more harm than good, so yeah. ' 9 have tenets that they just aren‘t able to sit on juries. l 0 _ . MS. McCORMICK: You never know. Okay._ lf 1 0 Anyone feel that way? l l t_h`e Defendant does testify, he waives all those §gh_ts and _ 1 1 (No response) l _ _ '? -1-2 gets up there and tells you what he wants to fell you, 12 . MS. McCORMICK: l know some people, l `1 3 ' =there' s no special protection anymore There's no 13 think, had some scheduling conflicts The judge mentioned l 4 presumption, there's no covering over him. He can be l 4` that l do think we'll finish this week. Probably not .l 5 . treated just like any other witness. He might be presumed 1 5 more than a couple of days. The judge usually keeps about 16 to be innocent, but he's not presumed to be a 1 6 ` a 9: 00 to 5: 00 schedule, and that's subject to what y’a|l l 7 truth- teller. You judge him like anyone else. l 7 are doing at the time. With that 1n mind, does anyone 1 8 Mr Marks, could you do that? 1 8 have any scheduling conflicts, anything that you can't be 1 9 PROSPEC'I`IVE JUROR: lthink so 1 9 here for? 2 0 MS. McCORMICK: Could you subject him to 20. (Hands raised) _ 2- l. the same scrutiny as you did everyone else? 21 _ MS McCORMICK: Ms. Kirkland '2 2 ' PROSPE_C'I'IVE JUROR: l would think so. 2 2 ` PROSPBCTIVE IUROR: l already have plans to 2 3 MS McC_ORMICK: There' s some other 2 3 leave Friday ahemoon to go to Houston to go to a 2 4 information Each side has the same right to bring 2 4 wedding 2 5 witnesses lt's called a subpoena If you get a 2 5 MS. McCORMlCK: Okay. lthinlt you 'll be

20 (Pages 68 to 71)

Lisa G. Morton, CSR - Official Court Reporter 396th Judicial District Court

- Tarrant County, Texas

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