Leija, Antonio Jr.

Opinion

PD-0241-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

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

In the Court of Criminal

Appeals of Texas

Antonio Leija, Jr.,

Appellant

v.

State of Texas,

Appellee

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

State’s Petition for Discretionary Review

Maureen Shelton John W. Brasher Criminal District Attorney Special Prosecutor Wichita County, Texas 900 8th Street, Suite 415 State Bar No. 24076904 State Bar No. 02907800 Maureen.Shelton@co.wichita.tx.us brasherappeals@gmail.com 900 8th Street

John Gillespie Wichita Falls, Texas 76301 First Asst. Criminal District Attorney (940) 244-0244 phone Wichita County, Texas (940) 244-0245 fax State Bar No. 24083252 John.Gillespie@co.wichita.tx.us

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

Identity of Parties and Counsel

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

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

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

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

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

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

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Table of Contents

Identify of Parties and Counsel ................................................................... ii Table of Contents .......................................................................................iii Index of Authorities ..................................................................................... v Statement of the Case .............................................................................. viii Statement Regarding Oral Argument ........................................................ viii Procedural History ..................................................................................... ix Questions Presented for Review ................................................................xii Argument .................................................................................................... 1

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

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

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

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

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

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

Prayer ....................................................................................................... 20 Certificate of Compliance .......................................................................... 22 Certificate of Service ................................................................................. 22

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Index of Authorities

Cases Page

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

Brazzell v. State, 481 S.W.2d 130 (Tex. Crim. App. 1972) .......................... 4 Caldwell v. Texas, 137 U.S. 692 (1891) .................................................. 3, 8 Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014) ........................... 6 Garrett v. State, 749 S.W.2d 784 (Tex. Crim. App. 1988) ......................... 14 Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................... 6 In re Murchison, 349 U.S. 133 (1955) ................................................... 2, 18

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

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

Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345 (Tex.

App.—Fort Worth Oct. 9, 2014) (en banc) ................................... 1, 19

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

Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—

Fort Worth June 4, 2009, no pet.) .............................................. 12, 13

Likety v. U.S., 510 U.S. 540 (1994) ........................................................... 11 Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ...................... 14, 16

Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]

1988—pet. ref’d) .............................................................................. 11

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Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet.

ref’d) ................................................................................................ 17

Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex.

App.—Fort Worth Jan. 8, 2015, no pet. h.) ............................... passim

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

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

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

State v. Woodard, 314 S.W.3d 86 (Tex. App.—Fort Worth 2010, pet.

filed), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011) .......................... 6

U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) .................................... 2 Statutes Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014) .................. 17 Rules Tex. Code Jud. Conduct, Preamble ............................................................ 3 Tex. Code Jud. Conduct, Canon 3(B)(4) ................................................... 10 Tex. Code Jud. Conduct, Canon 3(B)(5) ..................................................... 3 Tex. R. App. P. 9.4(i)(1) ............................................................................ 22 Tex. R. App. P. 16.3(c) ..............................................................................vii Tex. R. App. P. 33.1.................................................................................. 11 Tex. R. App. P. 44.4.................................................................................. 16

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Tex. R. App. P. 47.1.............................................................................. 8, 16 Tex. R. App. P. 68 .....................................................................................vii Tex. R. App. P. 68.2(a) .............................................................................. xi

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Statement of the Case

The State is asking for this Court to review the Second Court of Appeals’ 4-3 decision on its motion to recuse Justice Dauphinot. As Justice Dauphinot has irrevocably compromised any appearance of impartiality toward the Wichita County District Attorney (“WCDA”), the State asks this Court to grant review pursuant to Rule 68 and Rule 16.3(c) of the Texas Rules of Appellate Procedure, and to order recusal of Justice Dauphinot.

Statement Regarding Oral Argument The State respectfully requests Oral Argument. The WDCA and her staff appreciate the gravity of this situation. The WCDA has always had great respect and an excellent working relationship with the Second Court of Appeals and its honorable justices.

Thus, it was astonishing that Justice Dauphinot accused the WCDA and her attorneys of a pattern of constitutional discovery abuses in a dissent in a published opinion.1 As this alleged pattern of abuse was not an issue before the trial court, the WCDA had no opportunity to provide evidence to rebut the allegations and no forum for appeal since the WCDA

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

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had prevailed on the merits.2 Not only does the WCDA deny, in the strongest terms possible, Justice Dauphinot’s inappropriate, incendiary, and unsupported allegations that her office engages in a pattern of discovery abuses with constitutional dimensions, but the WCDA also requests the courtesy of being able to openly address any question by any judge on this Honorable Court as to why the WCDA had no choice but to seek Justice Dauphinot’s recusal.

The WCDA does not seek a recusal lightly. Yet, the ramifications of this dissent are too serious to ignore: questions about the integrity of the criminal justice system, potential disciplinary and licensure issues, potential civil claims, and wrongfully sullied reputations. Because of these significant ramifications, the WCDA requests Oral Argument.

Procedural History

Appellant appealed to the Second Court of Appeals and Justice Dauphinot was assigned to the panel.3 While the appeal was pending, the Second Court released Ex Parte Roberson on January 8, 2015.4 In Roberson, Justice Dauphinot issued a vitriolic dissent that made many

2 Id.

3 See Letter from Debra Spisak to Parties regarding submission (April 1, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b- 4a30-a6c8-72575b047add (last visited March 4, 2015). 4 Roberson, 2015 WL 148476, at *5-6 (Dauphinot, J. dissenting).

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unfounded allegations against the WCDA and even alleged a pattern of discovery abuses of constitutional proportions.5 As her dissent has dispelled any notion that she could be fair to the WCDA, on January 21, 2015, the WCDA filed a motion to recuse Justice Dauphinot.6 On January 26, 2015, the Second Court announced that Justice Dauphinot’s six remaining colleagues could not reach a decision on recusal.7 Half of Justice Dauphinot’s colleagues believed that the WCDA met the standard for recusal.8 Chief Justice Hecht appointed a justice to break the tie.9 On February 26, 2015, the Second Court denied the motion to recuse on a highly-divided 4-3 vote.10 On February 27, 2015, the WCDA asked the Second Court to stay the issuance of opinions in this case and notified the Second Court of its intent to appeal under T.R.A.P. 16.3(c).

5 Id. at *5.

6 See Docket Sheet for Leija v.State, No. 02-13-00473-CR in the Second Court of Appeals of Texas, available at http://www.search.txcourts.gov/Case.aspx?cn=02-13- 00473-CR (last visited Mar. 4, 2015); 7 See Letter from Chief Justice Livingston to Chief Justice Hecht (January 26, 2015), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5eee4ad1-a306- 41c8-a450-23d5860bdecb (last visited Mar. 4, 2015). 8 Id.

9 See Letter from Debra Spisak to Parties regarding appointment of visiting justice (Feb. 3, 2015), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3dfdc6bb-4bd2- 413e-8e0c-8f364fb5d33f (last visited Mar. 4, 2015). 10 State’s Attachment A, Order denying Motion to Recuse.

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The State timely files this Petition for Discretionary Review under Tex. R. App. P. 16.3(c) which states that “the denial of a recusal motion is reviewable.” Section 5(b) of the Texas Constitution states that for all matters other than death penalty appeals; thus, review by the Court of Criminal Appeals is discretionary, the State respectfully requests review of the recusal decision under Tex. R. App. P. 68.2(a) as Justice Dauphinot has irrevocably compromised any appearance of fairness toward the WCDA.

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Questions Presented for Review

(1) Is recusal required when half of Justice Dauphinot’s colleagues—

including Chief Justice Livingston—believe she has expressed such a significant antagonism toward the WCDA that she no longer appears to be fair and impartial?

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

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

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

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

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

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Argument

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

Chief Justice Terrie Livingston, Justice Sue Walker, and Justice Lee Gabriel all voted to recuse Justice Dauphinot.11 Half of Justice Dauphinot’s six colleagues on the Second Court believe that, based upon the dissent in which she expresses negative general opinions about the WCDA and departs from guiding judicial principles, she should not hear cases involving the WCDA. Additionally, these justices were aware of the background on the initial memorandum opinion authored by Justice Dauphinot in the Joe Johnson appeal (Johnson I) and all participated in the en banc reconsideration (Johnson II) that forms much of the context to the State’s recusal motion.12 Recusal is required when “a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge and the case, would have a reasonable doubt that the judge is actually impartial.”13 A reasonable member of the public at large would certainly

11 State’s Attachment A.

12 Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345, at *1 (Tex. App.—

Fort Worth Oct. 9, 2014) (en banc) (Johnson II). 13 Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995).

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have a reasonable doubt that a justice is actually impartial upon hearing that half of the justice’s colleagues—including her Chief Justice—doubt her ability to be fair and impartial.14 Importantly, the Fifth Circuit has emphasized that when a judge’s own colleagues publicly express a lack of confidence in the judge’s ability to appear impartial with a particular attorney or party, this factor militates in favor of recusal.15 Additionally, Due Process requires a neutral and detached hearing officer.16 As these Due Process rights are paramount, when half of a justice’s colleagues are willing to go on record and vote for recusal, this Court should seriously consider these justices’ concerns.17 These three justices’ courage to publicly vote against Justice Dauphinot heavily militates for recusal.18 Such an important matter with Due Process implications should not be left to a closely divided 4-3 vote. Permitting the decision to stand would cause serious questions to linger about Justice Dauphinot’s impartiality. Thus, this Court should grant review

14 See State’s Attachment A.

15 See U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) (explaining when a judge’s “own colleagues believed there would be at least an appearance of impropriety” if the judge presided over a case involving a particular attorney it would lead a reasonable person to harbor doubts as to the judge’s impartiality). 16 In re Murchison, 349 U.S. 133, 136 (1955).

17 See, e.g., U.S. v. Bremers, 195 F.3d at 227.

18 Id.

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and examine the evidence that lead Chief Justice Livingston, Justice Walker, and Justice Gabriel—all well-respected jurists—to conclude that their colleague should be recused.

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

Justice Dauphinot applies a different set of rules when the WCDA is a party than in other cases. The Code of Judicial Conduct requires judges to fairly apply the law without prejudice or bias toward any party.19 Foundational to American justice is the idea of “equal and impartial justice under the law” which is accomplished when “the laws operating on all alike.”20 Applying different standards to different parties is the antithesis of “an equal and impartial justice under the law.”21 Comparing Justice Dauphinot’s dissent in Roberson to her prior jurisprudence demonstrates that she applies a markedly different standard to the WCDA than to other litigants.

First, Justice Dauphinot treats motion in limine rulings differently with the WCDA. In Roberson to support her theory that the State intentionally prompted a mistrial, she conflates a ruling on a motion in limine with an

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

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

21 Id.

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evidentiary ruling on admissibility.22 A motion in limine is not a ruling on admissibility.23 Yet, Justice Dauphinot states “[t]he trial judge ruled that the notice of extraneous acts of misconduct that the State intended to offer into evidence was untimely and that the evidence, presumably, were inadmissible.”24 When he granted the limine, the trial judge said: “Without hearing [the witnesses], I’d be inclined to say they might have had previous contact or something like that that’s how they recognized. But to go any further might be a problem. But we’ll discuss that. So I’ll go ahead and grant that limine on that ground. Make sure you come up before you start with them.”25 For the WCDA, Justice Dauphinot considers a motion in limine an evidentiary ruling “that the notice of extraneous acts of misconduct that the State intended to offer into evidence was untimely” and that the evidence was inadmissible.26 Yet, the trial judge had made no ruling beyond requiring the parties to approach.27

22 Roberson, 2015 WL 148476 at *5-9.

23 Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).

24 Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting) (emphasis added).

25 See State’s Attachment B, III R.R. at 6 (transcript excerpts in Roberson).

26 Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).

27 See State’s Attachment B, III R.R. at 4-14 (hearing on motions in limine in Roberson).

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With other parties, she applies a different (and correct) standard to limine rulings: “The granting of a motion in limine is not a ruling on the admissibility of the evidence and does not preserve error. A motion in limine simply prohibits references to specific issues without first obtaining a ruling on the admissibility of those issues outside the presence of the jury.”28 Justice Dauphinot clearly understands the difference between a ruling on a motion in limine and an evidentiary ruling.29 Indefensibly, she applies a different standard with to WCDA.

Second, Justice Dauphinot applies a different standard of assessing credibility determination with to WCDA. In Roberson, she states that “[u]nlike trial judges, who primarily see only the conduct in the courtrooms over which they preside, appellate courts are presented with records from other courts in that county…Appellate judges are in a better position than the trial judge to see patterns of conduct.”30 Thus, she begins her dissent by stating why she believes she is in a better position than the trial judge to know what was really going on in his courtroom.

Justice Dauphinot cites the trial judge’s credibility determination of Investigator Cavinder: “And I’m not casting fault on Investigator Cavinder at

28 BNSF Railway Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth 2014, pet. filed) (opinion authored by J. Dauphinot). 29 Id.

30 Roberson, 2015 WL 148476 at *5-6. (Dauphinot, J., dissenting).

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all. I understand that was an honest mistake. I completely believe that he believed he was speaking to Ms. Steele.”31 Then, Justice Dauphinot promptly discards this credibility determination and instead substitutes her own judgment: “The record casts doubt on Cavinder’s testimony concerning his own knowledge.”32 Despite the trial judge stating on the record that he was not casting fault on Cavinder, that it was an “honest mistake” and that he completely believed Cavinder, Justice Dauphinot instead implicitly calls Cavinder a liar and relates that she does not believe him.33 For the WCDA, Justice Dauphinot rejects the trial judge’s credibility determination.34 With other parties, Justice Dauphinot applies a different (and correct)

standard: “We cannot and must not substitute our determination of the facts and the credibility of the witnesses in order to achieve the result we believe the trial court should have reached.”35 Additionally, Justice Dauphinot has explained the deference an appellate judge owes the trial judge: “When the findings are based on an evaluation of a witnesses’ credibility and

31 Id. at *7.

32 Id. at *7.

33 Id. at *8.

34 See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014); Guzman v.

State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). 35 See, e.g., State v. Woodard, 314 S.W.3d 86, 100 (Tex. App.—Fort Worth 2010, pet. filed) (Dauphinot, J., dissenting), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011).

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demeanor, the appellate court should afford almost total deference to the trial court’s fact findings.”36 Third, Justice Dauphinot ignores binding precedent of the Court of Criminal Appeals when the WCDA is the party.37 While Justice Dauphinot in Roberson recites that this Court requires proof that the prosecution intended to cause a mistrial for jeopardy to bar a second prosecution, she ignores that standard in favor of her own standard: “At some point, appellate courts must hold that the conduct is so egregious that the party cannot avoid its consequences.”38 Instead of applying the Court of Criminal Appeals factors in Ex parte Wheeler (as the majority opinion does), Justice Dauphinot ignores the Wheeler factors and seeks to apply her own standard formulated ad hoc, unmoored from the precedent of the Court of Criminal Appeals.39 This is not a situation where Justice Dauphinot simply disagrees with the majority about the particular Wheeler factors or how much weight to give them; rather, Justice Dauphinot would reverse the case without reference to Wheeler.40

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

(J. Dauphinot). 37 Roberson, 2015 WL 148476 at *5-9 (Dauphinot, J., dissenting).

38 Id. at *5.

39 Id. at *10-11 (Dauphinot, J., dissenting).

40 Id.

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Conversely, with other litigants, Justice Dauphinot carefully applies binding precedent of this Court, explaining that “Because a decision of the court of criminal appeals is binding precedent, we are compelled to comply with its dictates.”41 This disparate treatment of the WCDA versus other parties is the antithesis of “the laws operating on all alike.”42 These concrete, undeniable examples of a separate set of rules for the WCDA are likely why half of Justice Dauphinot’s colleagues believe she should be recused.

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

Rather than limit her dissent to the issues before the court in Roberson, as required by the T.R.A.P. 47.1,43 Justice Dauphinot vividly expresses general opinions that she has formed against the WCDA. First, as she directs her dissent to the popular, yet unclothed emperor (the District Attorney), it is clear this dissent is about far more than the issues before the Second Court in Roberson.44 Justice Dauphinot confirms this in

the second paragraph: “[a]ppellate judges are in a better position than trial 41 State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.)

(J. Dauphinot). 42 Caldwell v. Texas, 137 U.S. 692 (1891).

43 Tex. R. App. P. 47.1.

44 Roberson, 2015 WL 148476 at *1-9.

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judges to see patterns of conduct.”45 Justice Dauphinot then casts this case as part of an observed pattern: “appellate judges have an obligation to speak up when observed patterns show a course of conduct at odds with constitutional mandates and fundamental fairness.”46 It is clear from Justice Dauphinot’s own words that she is looking beyond the record in this case to “observed patterns” and that these “observed patterns” have prompted her to “speak up” and tell the popular, yet unclothed emperor that her office is “at odds with constitutional mandates and fundamental fairness.”47 Justice Dauphinot concludes her dissent by placing Roberson within an observed pattern by citing Dabney v. State, Pitman v. State, and Juarez v. State.48 Justice Dauphinot could not be clearer: she would not decide Roberson just on the record before the court, but would use an “observed pattern” as her rationale for deciding the case and impugning the motivations and integrity of the WCDA and staff, including the misdemeanor prosecutor and investigator.49 Thus, Justice Dauphinot has

45 Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).

46 Id. at *5-6. (emphasis added).

47 Id.

48 Id. at *5-9.

49 Id.

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admitted she has formed opinions about the WCDA that she carries from case-to-case that influence her judgment and even outweigh the record.50 First, her dissent reveals she has departed the realm of appellate judging and entered the realm of advocacy because she ignores T.R.A.P. 47.1’s limitation of an appellate court decision to the issues “raised and necessary to final disposition of the appeal.” Rather, her dissent far exceeds the issues necessary to decide whether jeopardy bars a re-trial.51 Second, she characterizes herself as needing to “speak-up” and tell a popular, yet naked emperor a few things about a pattern of discovery abuses.52 This is an odd tone for a supposedly dispassionate appellate justice required by the Texas Code of Judicial Conduct to be “dignified and courteous to litigants…with who the judge deals.”53 Regardless of Justice Dauphinot’s subjective motives for needing to “speak-up” against the WCDA, by becoming an advocate and expressing her general, negative opinion about the WCDA, she has compromised her ability to treat the WCDA fairly.

As Justice Kennedy has explained, “A judge may find it difficult to put aside views formed during some earlier proceeding. In that instance we

50 Id.

51 Id.

52 Id. at *5.

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

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would expect the judge to heed the judicial oath and step down, but that does not always occur. If through obduracy, honest mistake or simple inability to attain self-knowledge the judge fails to acknowledge a disqualifying predisposition or circumstance, an appellate court must order recusal…”54 Texas courts have also long-recognized that when a judge articulates such a predisposition against a party, recusal is required.55 Justice Dauphinot’s dissent demonstrates exactly such a disqualifying predisposition toward the WCDA.

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

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

(i.e. case) where the WCDA made a “conscious decision” to violate a discovery order is astounding.56 Texas law requires alleged error to be preserved by a timely objection before an appellate court will reach the ultimate issue.57 Without a timely objection, the appellate court will not reach the merits.58

54 Likety v. U.S., 510 U.S. 540 (1994) (J. Kennedy, concurring).

55 See, e.g., Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]

1988—pet. ref’d) (finding judge’s statement, which was tantamount to pre-judging a party, “was evidence of bias sufficient to require recusal.”). 56 Roberson, 2015 WL 148476 at *5-9.

57 Tex. R. App. P. 33.1.

58 Id.

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While this is basic legal procedure that any long-tenured appellate justice understands, Justice Dauhpinot’s actions in not following these basic prescripts in misusing Juarez proclaim her blatant unfairness to the WCDA.59 Although Justice Dauphinot cites Juarez as a “disturbing” example of a “conscious decision” of the WCDA “withholding mandated discovery,” a fair reading of Juarez shows no such discovery abuse.60 In Juarez, after a revocation hearing at which appellant’s court ordered sex offender treatment provider testified, appellant complained that this testimony constituted extraneous evidence and that the WCDA had failed to give notice.61 The Second Court declined to reach the merits of appellant’s claim because appellant “did not preserve his claim for review” because his only objection was to relevance.62 Simply reading the one- page opinion demonstrates that the Second Court did not reach the merits.63

59 Roberson, 2015 WL 148476 at *9.

60 Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—Fort Worth June 4, 2009, no pet.). 61 Id.

62 Id.

63 The State also doubts the merits of Juarez’s claim as he was ordered by the terms of probation to see the treatment provider; thus, the provider’s testimony would likely be contextual to the revocation. Regardless, the appellant failed to preserve the error, so the court of appeals never reached the merits. See id.

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To cite a one-page opinion where the merits were not reached and where the appellate court did not find a discovery violation as a “disturbing” example of a previous “conscious decision” of the WCDA to “withhold mandated discovery” violates every basic rule for the use of case authority.64 How could any reasonable member of the public expect Justice Dauphinot to be fair to the WCDA when she claims the unique power to look-behind the appellate court’s decision in Juarez and see a “disturbing” failure and pattern by the WCDA of “consciously deciding” not to give mandated discovery?

Her misuse of Juarez is further evidence that Justice Dauphinot applies a different set of rules to the WCDA. In State v. Taylor, an opinion she authored, she explains that when a party fails to preserve error, the appellate court does not reach the merits.65 Incredibly, she ignores this rule in her use of Juarez.66 As this Court is aware, many baseless claims are made in appellant points of error. Is there any Texas Rule of Appellate Procedure that empowers Justice Dauphinot to sua sponte re-determine the validity of an

64 Roberson, 2015 WL 148476 at *9.

65 264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no pet.).

66 Juarez, 2009 WL 1564926.

14

appellate point when the panel hearing the case did not reach the merits and she wasn’t even a member of the panel? It is hard to excuse Justice Dauphinot’s extreme misuse of Juarez as an honest mistake when the opinion is only one-page long and one of only three cases that she cited for her alleged pattern.67 No fair-minded person could read Juarez and believe that the court reached the merits or cite it as an example of a conscious discovery violation.

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

Justice Dauphinot’s violation of the proscription against advisory opinions without the WCDA being afforded the opportunity to present evidence or briefing on such an important issue demonstrates her abject lack of fairness.68 While Justice Dauphinot cites “observed patterns” that “show a course of conduct at odds with constitutional mandates and fundamental

67 Id.

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

15

fairness” as the basis for her dissent, this supposed pattern was not a controversy in issue before the trial judge.69 There was no allegation before the trial judge of any such pattern.70 Rather, the only issues before the trial court were (1) what had happened; and (2) why did it happen.71 The trial court never asked for, heard, or received any evidence about any pattern of misconduct by the WCDA.72 Therefore, the WCDA has never been afforded any opportunity to offer testimony or evidence rebutting any such pattern.

Incredibly, the WCDA never had the opportunity to brief this alleged pattern because the court requested submission without briefs.73 Since no Appellant’s brief raised a pattern, Justice Dauphinot‘s disqualifying predisposition alone lead her to lurch into this area.74

69 See State’s Attachment B, IV-V R.R. (motion for mistrial and hearing on habeas application). 70 Id.

71 Id.

72 Id.

73 See Letter from Debra Spisak to Parties regarding submission (Apr. 1, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b- 4a30-a6c8-72575b047add (last visited Mar. 4, 2015). 74 See Letter from Debra Spisak to Parties regarding immediate submission without briefing (Feb. 20, 2014), available at http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=10bed362-04fb- 49c7-9d7b-1d9a1d5cf937.

16

Appellate courts are not evidentiary courts.75 When an appellate court needs additional evidence, the remedy is to abate the appeal for an evidentiary hearing in a trial court.76 The WCDA never had the opportunity to offer any evidence to refute this erroneous claim. To state such a serious conclusion in the dissent of a published opinion when there has been no briefing or evidentiary hearing before a trial court is completely contrary to the tenets of judicial fairness, the Rules of Appellate Procedure, and the proscription against advisory opinions.77 Justice Dauphinot deprives the WCDA of the ability to rebut such a serious claim with evidence: what Brady training does the WCDA mandate? What processes does the WCDA have in place to comply with discovery requests? How many cases has the WCDA tried where there have been no discovery complaints? What training do prosecutors receive on compliance with discovery requests?

75 See, e.g., In the Interest of M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas 2013, no pet.) (explaining that appellate courts do not take testimony or receive evidence). 76 Tex. R. App. P. 44.4.

77 Tex. R. App. P. 47.1 (limiting an appellate court decision to the issues “raised and necessary to final disposition of the appeal); see also Garrett, 749 S.W.2d at 803 (explaining that “judicial power does not include the power to issue advisory opinions” which result “when a court attempts to decide an issue that does not arise from an actual controversy capable of a final adjudication.”), overruled on other grounds, Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).

17

A fair-minded jurist would give a party the ability to offer such evidence before making this sweeping pronouncement. Instead, Justice Dauphinot bases her improper advisory pronouncement on three cases in five years out of thousands of criminal cases handled by the WCDA.78 Remarkably, of the three cases that she cites for her pattern of constitutional discovery abuse, in two, the court of appeals made no finding of a discovery violation and affirmed the trial court.79 In Pitman, which Justice Dauphinot cites for a previous discovery abuse, she was on the panel that unanimously found no such abuse.80 The third case, Dabney v. State, had a petition for discretionary review pending at the time she cited it.81 On March 4, 2015, this Court granted review in Dabney.82 Neither the trial judge in Dabney nor Justice Sue Walker believed that the State committed a discovery violation.83 The State also questions the fairness of citing a case for such a momentous

78 Roberson, 2015 WL 148476 at *11 (Dauphinot, J., dissenting).

79 Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet. ref’d); Juarez, 2009 WL 1564926 at *1. 80 Pitman, 372 S.W.3d 261. While the appellate court, in dicta, expressed concerns about the WCDA’s policy relating to privacy of CPS records, the Legislature has since expressly recognized these concerns in 39.14(a) by expressly referencing the privacy of CPS records. Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014). Regardless, the appellate court did not hold there was a discovery abuse in Pitman. Id. 81 Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).

82 See Docket Sheet for Dabney v. State, No. PD-1514-14 in the Court of Criminal Appeals, available at http://www.search.txcourts.gov/Case.aspx?cn=PD-1514-14 (last visited Mar. 4, 2015). 83 Id.

18

proposition when the justice knows the contested issue is the subject of a pending petition for discretionary review.84 This advisory pronouncement and the failure to afford the WCDA the opportunity to brief or rebut with evidence irrefutably establishes Justice Dauphinot’s unfairness to the WCDA.85

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

While the State does not have to prove (nor does this Court have to find) actual bias or Justice Dauphinot’s subjective motivations for her significant departure from basic judicial norms for recusal to be required,86 the timing of the Roberson dissent with its vitriolic and unsubstantiated claims provides an important context to the Court. The Roberson dissent did not occur in a vacuum; rather, it occurred almost concomitantly with the State’s seeking and obtaining the extraordinary relief of en banc reconsideration and withdrawal of an opinion authored by Justice Dauphinot. The State prevailed on its motion for en banc reconsideration

84 Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).

85 Roberson, 2015 WL 148476 at *5-9.

86 Murchison, 349 U.S. at 136.

19

on October 9, 2014.87 Justice Dauphinot dissented.88 Then, the Roberson dissent was released a mere three months later on January 8, 2015.89 In Johnson, Justice Dauphinot authored an opinion that made many factual assertions that were not supported by the record.90 Justice Dauphinot’s opinion was premised upon a false open-door theory.91 Because reversal would have caused a child rape victim to re-testify, the WCDA had no choice but to seek the extraordinary relief of en banc reconsideration.92 The State’s motion detailed with exhaustive record cites how drastically Justice Dauphinot’s memorandum opinion deviated from the actual trial record and referred to this departure as “troubling.”93 On October 9, 2014, a majority of the Second Court agreed, thereby withdrawing Justice Dauphinot’s memorandum opinion, and affirming the conviction.94 Justice Dauphinot dissented.95 Justice Walker and Justice

87 Johnson v. State, 449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en banc) (Johnson II). 88 Id. (J. Dauphinot, dissenting).

89 Roberson, at *1.

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

(mem. opinion) (Johnson I), opinion withdrawn and superseded by Johnson v. State, 449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en banc). 91 Id.

92 Johnson II, 449 S.W.3d at 240.

93 State’s Attachment C, State’s Motion for En Banc Reconsideration.

94 Johnson II, 449 S.W.3d at 240.

95 Id.

20

Gabriel, who had joined in the memorandum opinion, reversed their votes, and Justice Gabriel authored the majority opinion.96 While neither the State nor this Court can gauge Justice Dauphinot’s subjective motives, the objective facts demonstrate that three months after the State prevailed on a motion for extraordinary relief whereby two of her colleagues abandoned her opinion, which the State had called “troubling,” Justice Dauphinot dissented in Roberson with her incendiary, gratuitous, and unfounded accusations against the WCDA.97 The State hopes this timing is an unfortunate coincidence, but the fact remains that the appearance is so troubling as to call into question Justice Dauphinot’s ability to be fair and impartial. A party should be able to exercise its rights under T.R.A.P. 49.7 and seek extraordinary relief when an opinion dramatically departs from the trial record without fearing reprisal. Regardless of subjective intent, the objective appearance of a retaliatory motive supports recusal.

Prayer

The State prays that this Court grant discretionary review of the Second Court of Appeals’ recusal decision; that the Second Court of Appeals’ decision be reversed; and that Justice Dauphinot be recused.

96 Id.

97 Roberson, 2015 WL 148476 at *5-9.

21

Respectfully submitted,

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

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

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

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

22

Certificate of Compliance I certify that this document contains 4,452 words, counting all parts of the document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in 14 point font, and the footnote text is in 12 point font.

/s/Maureen Shelton

Maureen Shelton

Certificate of Service

I do certify that on March 4, 2015, a true and correct copy of the above document has been served electronically to Michael F. Payne (attorney for Antonio Leija, Jr.) at michaelfpayne@gmail.com and the State Prosecuting Attorney’s Office at information@spa.texas.gov.

/s/Maureen Shelton

Maureen Shelton

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COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00319-CR

MICHAEL OLIVER SMITH APPELLANT V.

THE STATE OF TEXAS STATE

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

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NO. 02-13-00473-CR

ANTONIO LEIJA, JR. APPELLANT V.

THE STATE OF TEXAS STATE

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

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NO. 02-13-00482-CR

KURLEY JAMES JOHNSON APPELLANT V.

THE STATE OF TEXAS STATE

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

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ORDER

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Currently pending before this court in each of the above referenced causes is a “State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot,” filed January 21, 2015, requesting the recusal of Justice Lee Ann Dauphinot in each cause under Texas Rule of Appellate Procedure 16.

Rule 16 states that the grounds for recusal are the “same as those provided in the Rules of Civil Procedure.” Tex. R. App. P. 16.2; see also Tex. R. Civ. P. 18a, 18b. Rule 18b(b) of the Texas Rules of Civil Procedure identifies the grounds for recusal. Tex. R. Civ. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, pet. denied) (order). Rule 18b(b)(1) provides that a judge must recuse himself or herself in a proceeding in which the judge’s

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impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(b)(1). The State’s motions challenge the impartiality of Justice Dauphinot under this rule.

Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the procedure to be followed for recusal of an appellate justice or judge:

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

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

Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the recusal motions and prior to any further proceedings in these appeals, Justice Dauphinot considered the motions in chambers. Id. Justice Dauphinot found no reason to recuse herself and certified the matter in writing to the remaining members of the court en banc. See id.; McCullough, 50 S.W.3d at 88. This court then followed the accepted procedure set out in rule 16.3(b). Tex. R. App. P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50 S.W.3d at 88. A majority of the remaining justices of the court could not agree on a decision, so that fact was certified to the Chief Justice of the Supreme Court. The Chief Justice temporarily assigned former Justice Rebecca Simmons as a visiting justice to sit with the court of appeals to consider the motions. See Tex. R. App. P. 41.2(b).

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The visiting justice then met with the six remaining justices to deliberate and decide the motions to recuse Justice Dauphinot by a vote of a majority of the justices. Justice Dauphinot did not sit with the other members of the court when her challenges were considered. See Tex. R. App. P. 16.3(b); McCullough, 50 S.W.3d at 88. The determination of whether recusal was necessary was made on a case-specific, fact-intensive basis. See McCullough, 50 S.W.3d at 89; Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no pet.) (order).

The en banc court, Justice Dauphinot not participating, has carefully examined the motions and the records as to the allegations pertaining to Justice Dauphinot. The majority of the remaining justices have concluded that the motions should be denied. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(b). Accordingly, the State’s motion to recuse Justice Dauphinot in each of the above referenced causes is denied.

DATED February 26, 2015.

PER CURIAM

EN BANC; with REBECCA SIMMONS (Former Justice, Sitting by Assignment). DAUPHINOT, J., not participating. LIVINGSTON, C.J.; WALKER and GABRIEL, JJ., would grant.

1 REPORTER'S RECORD 2 VOLUME 3 OF 6 3 TRIAL COURT CAUSE NO. 58017-E

4 THE STATE OF TEXAS § IN THE COUNTY COURT §

5 VS. § AT LAW NO. 1 §

6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS

7 8

9 ***************************************************** 10 JURY TRIAL ON MERITS

11 ***************************************************** 12

13 14 15 16 17 18 On the 21st day of August, 2013, the 19 following proceedings came on to be heard in the 20 above-entitled and numbered cause before the Honorable 21 Gary W. Butler, Judge presiding, held in Wichita Falls, 22 Texas, Wichita County, Texas: 23 Proceedings reported by computerized 24 stenotype machine in real-time. Reporter's Record 25 produced by computer-aided transcription.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266

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

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

8 -AND-

9 Mr. Mark Richard Briley SBOT NO. 24069418 10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE 600 Scott Ave 11 Suite 204 Wichita Falls, TX 76301-2531 12 940.766.8199 Ms. Kristen Homyk Howcroft 13 SBOT NO. 24032433 THE LAW OFFICES OF JEFF MCKNIGHT, P.C.

14 900 8th Street Suite 815 15 Wichita Falls, TX 76301 940.687.1576 16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON

17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 I N D E X 2 VOLUME 3 3 JURY TRIAL ON MERITS 4 AUGUST 21, 2013 Page Vol. 5 Appearances................................. 2 3 6 Motions In Limine........................... 4 3 7 Preliminary Instructions by the Court....... 14 3 8 Jury Voir Dire Examination by the State..... 21 3 9 Jury Voir Dire Examination by the Defendant. 89 3 10 Court's Instructions To Jury................ 150 3

11 WITNESSES Direct Cross Voir Dire Vol.

12 DONNIE CAVINDER 156 3

13 Adjournment................................. 158 3 14 Court Reporter's Certificate................ 159 3 15 16 17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 P R O C E E D I N G S 2 (Open court, defendant present, no panel) 3 MOTIONS IN LIMINE 4 THE COURT: Court's going to call Cause No. 5 58017-E, styled the State of Texas versus Byrias 6 Roberson. The Court will call that case for trial. 7 We're here on pretrial matters which the Court has found 8 through its motion in limine by both the State and the 9 defense. The Court will note for the record the State's 10 present through their attorneys from the District 11 Attorney's office; the defendant is present with his 12 attorneys. I have Mr. Roberson's motion in limine 13 sitting here, so we'll just go ahead and take it up first 14 if you don't mind. 15 Mr. Briley, I know you've provided a copy of 16 this to the District Attorney's office, and I assume that 17 y'all have conferred with regard to the motion in 18 limines, and I've reviewed it as well. So we'll take it 19 up in this matter. Is there any -- tell me this. Which 20 numbers does the State object to on the motion in 21 limine? 22 MS. HONEY: No. 1, 2, 3, 4 and 15. 23 THE COURT: 1, 2, 3, 4 and what? 24 MS. HONEY: Fifteen. 25 THE COURT: All right. Let's take them up in CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 order. No. 1? 2 MS. HONEY: I have an objection to No. 1 if it 3 includes felony convictions and crimes of moral 4 turpitude. The rules provide for impeachment if there's 5 a felony conviction or crime of moral turpitude. 6 THE COURT: Mr. Briley? 7 MR. BRILEY: I don't see my reason that we 8 couldn't approach the bench before those were got into. 9 THE COURT: We can, but if it's a crime of moral 10 turpitude or a felony conviction, wouldn't you agree 11 that's subject to cross-examination? I'll let you 12 approach so we can determine if it's a felony or crime of 13 moral turpitude at that point and we'll go forward. 14 MS. HONEY: No. 2, I anticipate that there will 15 be testimony in this case regarding the officer's entry 16 into the home. If defense counsel intends to challenge 17 the legality of that entry, I would like the opportunity 18 to question some of the State's witnesses regarding a 19 prior encounter between the defendant and these witnesses 20 about and regarding a disturbance call. He had 21 barricaded himself and his family inside his home. The 22 SWAT team was called to get him out of the home. Two of 23 the members of the SWAT team are witnesses in this case. 24 This prior incident between the defendant and these 25 officers is important for several reasons. It goes to CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 their familiarity with the defendant, their ability to 2 identify him on the date of the offense. It's part of 3 how they recognized him on the date of the offense. It 4 also goes to their state of mind on the date of the 5 offense, goes to why gang task force officers were asked 6 to serve these warrants on the defendant, and also goes 7 to their reason to believe that the defendant lived in 8 this particular residence. 9 THE COURT: Mr. Briley? 10 MR. BRILEY: Well, Your Honor, we've asked or 11 requested notice of any bad acts or convictions, and we 12 haven't received any of those. 13 THE COURT: Well, let's do it this way. I'll go 14 ahead and sustain or grant on this limine that y'all will 15 approach, and then we would get into exactly what the 16 officers could or could not go into. Without hearing 17 them, I'd be inclined to say they might have had previous 18 contact or something like that that's how they 19 recognized. But to go any further might be a problem. 20 But we'll discuss that. So I'll go ahead and grant that 21 limine on that ground. Make sure you come up before you 22 start with them. No. 3? 23 MS. HONEY: No. 3, I have an objection to No. 3 24 if bad reputation or character as stated in No. 3 25 includes a witness's character for truthfulness or CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 untruthfulness. Again, that is proper impeachment under 2 Texas Rules of Evidence. 3 THE COURT: As long as the proper predicate is 4 laid. 5 MS. HONEY: Yes, Your Honor. 6 THE COURT: Mr. Briley? 7 MR. BRILEY: No response. 8 THE COURT: Okay. So as long as the proper 9 predicate is laid, of course. So that essentially will 10 be denied. However, I understand there could be an 11 objection for proper predicate not being laid if you want 12 to go into that. Four? 13 MS. HONEY: I don't anticipate there being any 14 testimony in this case regarding the defendant ever being 15 a member of a criminal street gang, currently being a 16 member of a street gang. However, I do anticipate that 17 as part of some of the State's witnesses talking about 18 their work experience, their training, their job 19 assignments on the date of the offense, they're going to 20 testify that they were part of the gang task force. 21 THE COURT: Mr. Briley, if their testimony is 22 limited to what their duties were at the time, do you 23 still have a problem with that? 24 MR. BRILEY: No. And I don't anticipate any 25 evidence is going to be shown that Byrias was part of a CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 gang. But if it was to go to that, then I would ask that 2 they -- 3 THE COURT: I'll grant it as to that specific 4 according to their assignments. It is what it is. 5 Fifteen? 6 MS. HONEY: No. 15, this -- I guess my objection 7 is if the defendant takes the witness stand during the 8 defendant's case in chief -- the State's not saying the 9 defendant has to or will -- but if the defendant takes 10 the witness stand and attempts to bolster his credibility 11 with the jury by talking about his law enforcement 12 background, and in talking about that law enforcement 13 background creates a false impression in the mind of the 14 jurors, we would ask for the opportunity to correct that 15 false impression in the mind of the jurors. 16 Additionally, his law enforcement background 17 goes to the heart of this case, the facts of our case, 18 the force that he used against the officers. He was 19 trained as a police officer, familiar with how to 20 effectuate an arrest, and trained on how to do hand-to- 21 hand combat. 22 MR. BRILEY: With the first part, you know, if 23 we had brought it up. 24 THE COURT: If you open the door, I understand. 25 MR. BRILEY: I understand that, but my motion is CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 any reference by them to begin with. I don't see how 2 that it's relevant and it is holding Byrias to a higher 3 standard, which I would disagree that they should be able 4 to do. 5 THE COURT: The motion in limine will be granted 6 as to that and approach before you go into it. As to the 7 others, you agree that they should be granted? 8 MS. HONEY: Yes, Your Honor. On numbers 5 9 through 14, the State has no objection. 10 THE COURT: Those will be granted. With regard 11 to the State's motion, Mr. Briley, you had an opportunity 12 to review that? 13 MR. BRILEY: Yes and no, Your Honor. I received 14 an e-mail. I didn't actually see the final copy. And 15 there was only one that I initially had an objection to, 16 but let me re-read No. 6. 17 THE COURT: Okay. 18 MR. BRILEY: Our only objection to No. 6 is that 19 we plan on talking about the use of force that day. But 20 if they're only talking about official claims made by 21 either Byrias or people in the past, we have no objection 22 to that. 23 MS. HONEY: And, Your Honor, if I could have an 24 opportunity to clarify? 25 THE COURT: That's fine.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. HONEY: No. 6 may have been overly broad 2 whenever I wrote it. Obviously, we have no objection to 3 them going into the facts of this particular case and 4 questioning officers about the facts of this particular 5 case. 6 THE COURT: Okay. All right. It sounds like 7 there's actually an agreement then with regard to 6 as 8 long as we're just talking about this case. I think you 9 would -- I would stay away from using the terms excessive 10 force as I think that creates -- is -- it's almost like a 11 term of art because it creates some -- it has some legal 12 concepts to it. 13 If we get there, the jury's going to determine 14 what amount of force was necessary. So I would say that 15 I grant the motion in limine as to anything outside of 16 the date in question. If you're wanting to get into 17 that, then let's approach and talk about it. As far as 18 the date in question, whatever the use of force was, of 19 course, it will come out in testimony with, I assume, 20 your witnesses, and the jury is the fact finder and they 21 can go from there. 22 With regard to the others, Mr. Briley, have any 23 objections to 1, 2, 3, 4, 5, and 7? 24 MR. BRILEY: No, Your Honor. 25 THE COURT: Of course, those would be granted CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 then. Is there anything else with regard to pretrial 2 matters that we need to take up? 3 MS. HONEY: I don't believe so. 4 MR. BRILEY: None from the defense. 5 THE COURT: One thing. There have been rulings 6 by the court yesterday on in camera inspection of the 7 documents that were provided by the City Attorney's 8 office. I've reviewed those thoroughly, and in my review 9 I find nothing that would be exculpatory or would tend to 10 lead to that with regard to this matter. So those are 11 under seal and will remain under seal. All right. We're 12 going to start with the jury at 9:30, so y'all have got 13 some time. Please be back in here at 9:15 so we can be 14 ready to go right at 9:30 when the jury comes in. I know 15 you've each been provided yesterday a copy of the venire 16 panel list. At this time, do you believe that a shuffle 17 is necessary or -- 18 MS. HONEY: Your Honor, the State would request 19 a shuffle. 20 THE COURT: The State's going to request a 21 shuffle. 22 MR. BRILEY: We did not receive the 23 questionnaires from jurors No. 16, 17, and 18, or they 24 were misplaced by my office. 25 THE COURT: Mr. Briley, I have it in my packet.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Maybe it was not copied to you. 2 MR. BRILEY: Could I make a copy? 3 THE COURT: They want a shuffle. Let's go off 4 the record for a second. 5 (Discussion off the record) 6 THE COURT: Let's go back on the record. With 7 regard to the jury, I believe the State's saying they're 8 going to request a shuffle just by looking at the array. 9 MS. HONEY: Yes, Your Honor, that's correct. 10 THE COURT: Mr. Briley, typically, I would have 11 to bring the jury in and seat them so you could see the 12 array before we do the shuffle, and then it would be done 13 without you having an opportunity to shuffle again. Are 14 you okay with not seeing the array and going ahead and 15 shuffling and waiving what I would assume would be your 16 right to ask for another shuffle? 17 MR. BRILEY: Yes, Your Honor. 18 THE COURT: All right. We'll go off the record. 19 (Recess taken) 20 THE COURT: On the record. Back in cause 58017- 21 E parties are present. Defendant's present. There's an 22 issue with one of the jurors. It's now 10:20. She's 23 supposed to be here at 9:30. The juror No. 22, Claudia 24 Sciarra has issues with child care today. No. 22 is 25 outside the cut line. We are waiting on one other juror, CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 but are being told he's right on his way outside. That 2 would leave us with 23 potential jurors. Ms. Honey, do 3 you have any objection to going forward with 23? 4 MS. KUCERA: No, Your Honor. 5 THE COURT: Mr. Briley? 6 MR. BRILEY: No, Your Honor. 7 THE COURT: Twenty-two will be excused for 8 cause. I will deal with her and the ones who were late 9 after trial. I'm not going to say anything during trial. 10 I just want to get through the trial and get going. I'm 11 still going to leave a spot for No. 22. That way it 12 makes it easier on y'all. Okay. We'll go off the 13 record. 14 (Open court, defendant and jury panel present) 15 THE BAILIFF: Everyone's present, Your Honor. 16 THE COURT: All right. Thank you. If the 17 venire panel will remain standing, I'm going to issue an 18 oath. Would each of you please raise your right hand for 19 me? 20 (The jury panel was sworn) 21 THE COURT: Thank you. Y'all be seated, please. 22 All right. This is Cause No. 58017-E, State of Texas 23 versus Byrias Roberson. The Court will note for the 24 record the venire panel is seated with the exception of 25 one member, No. 22.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266

1 The State is present through its attorneys, 2 defendant present, defendant's attorneys. What I'm going 3 to do first, I'm going to give you some instructions that 4 you'll have to go by during this voir dire process and 5 then what I'll do is introductions and I'll explain the 6 process to you and what's going on. 7 PRELIMINARY INSTRUCTIONS FOR JURORS 8 CRIMINAL CASES 9 "1. Turn off all phones and other electronic 10 devices. While you are in the courtroom and while you 11 are deliberating, do not communicate with anyone through 12 any electronic device. For example, do not communicate 13 by phone, text message, email, chat room, blog, or social 14 networking sites such as Facebook, Twitter, or Myspace. 15 Do not post information about the case on the Internet 16 before these court proceedings end and you are released 17 from jury duty. Do not record or photograph any part of 18 these court proceedings, because it is prohibited by law. 19 2. To avoid looking like you are friendly with 20 one side of the case, do not mingle or talk with the 21 lawyers, the witnesses, the parties, or any other person 22 who might be connected with or interested in the case. 23 Do not remain within the hearing of anyone who might be 24 discussing the case. These persons have to follow these 25 same instructions as you, so you should not be offended CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 when they follow these instructions. 2 3. Do not accept from, nor give to, any of 3 these persons any favors, no matter how slight the favor, 4 such as rides, food or refreshments. 5 4. Do not discuss or mention anything about 6 this case, the defendant, the alleged victim, or 7 witnesses to anyone, including your spouse, family 8 members, co-workers, and do not permit anyone to mention 9 anything about this case in your presence or your hearing 10 until you are discharged as jurors or excused from the 11 case. Do not communicate with anyone via any electronic 12 means, including, but not limited to text messages, 13 emails, Tweets or any other method of communication. Do 14 not permit anyone to communicate with you by any such 15 electronic means. 16 If anyone attempts to discuss anything about the 17 case, the defendant, the alleged victim or the witnesses 18 with you, you must report it to me at once. We do not 19 want you to be influenced by something other than the 20 evidence admitted in court. 21 5. Do not even discuss anything about this 22 case, the defendant, the alleged victim or the witnesses 23 among yourselves until after you have heard all the 24 evidence, the Court's Charge, the attorneys' arguments 25 and until I have sent you to the jury room to consider CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 your verdict. Even then, you cannot discuss the case 2 among yourselves except when you are all together in the 3 jury room. Do not form or express any opinions about 4 this case until you begin your deliberations." 5 The supreme court said I have to read that to 6 you before we start since all the electronic devices and 7 phones that we have now. Of course when I started, we 8 didn't have to deal with that, but, man, do times change. 9 My name is Gary Butler. I'm the judge here for 10 County Court At Law No. 1. I took over about three years 11 ago for Judge Hogan, who was here some 30 years. This is 12 a very active court. We don't waste time. We move very 13 quickly as I have general jurisdiction, which means I 14 hear criminal misdemeanor cases, all family law types of 15 cases, probate, mental health, civil cases under 16 $200,000. So you can tell we'd be quite busy just with 17 those. And that's just the jurisdictions I can remember 18 off the top of my head. 19 What we have here today is a criminal matter 20 that will be tried and be heard. I expect this trial to 21 last quite possibly to Friday noon. Of course, we're 22 gonna to move through this trial as quickly as we can. 23 However, the defendant, of course, in this matter is 24 entitled to a fair trial, and we're gonna take as much as 25 time as we need to ensure that that happens. I think CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 that would be what each and every one of you would want 2 if you were on trial. 3 Let me introduce everybody to you. I've already 4 said who I am. They're going to be asking a little bit 5 about your background in this voir dire process. What 6 they're trying to do is make educated strikes, so they 7 really need to know a little bit about you. If they ask 8 questions of such a personal nature as you do not feel 9 comfortable asking those questions in front of 20 10 something or 30 something people, then you can ask to 11 come after and speak with just myself and the attorneys 12 and, of course, the court reporter as well. 13 Now, I'm here from Wichita Falls. I've always 14 livid here. I went to Old High, went to college here. 15 Went off for law school, came back. So I'm about as 16 Wichita Falls as you get. I recognize a few of the 17 people here on the venire panel. Some I've known for a 18 number of years, so that shouldn't come as a shock to 19 anybody. 20 I have a daughter in Florida and two little boys 21 here and a wife that I've been married to for, ooh, 20 22 years. Over 20. Over 20 years, let's go with that. Let 23 me introduce who you're going to be seeing. Karen James 24 back there, you've already had dealings with. She's my 25 court coordinator and bailiff. She keeps everything CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 running as smoothly as possible. She doesn't carry a 2 gun, thank goodness, but still she still has the 3 classification of bailiff. 4 The other people you're going to see in the 5 courtroom, probably the most important but that you're 6 not going to hear anything from, is Ms. Cayce Coskey 7 who's sitting right over here to my right. She's my 8 court reporter. She's taking down everything that I say 9 and everything that you say. When a question is asked, 10 you have numbers, if you would stand and give your name 11 and or show your number, that's gonna let her make a more 12 accurate record during the voir dire process. The only 13 time we use those numbers is during voir dire. 14 Also, if you'll stand when answering questions, 15 it just makes it easier for everybody to hear. This air 16 conditioner that is only for my court is going, and 17 sometimes it makes it difficult to hear. When I first 18 started, we didn't have an air conditioner, and in a 19 trial in about August, I believe it was, the temperature 20 was 80 degrees. So thank goodness we've got an air 21 conditioner. The other people that you're going to see 22 is going to be from the State's attorneys, being Victoria 23 Honey. 24 MS. HONEY: Good morning. 25 THE COURT: Allyson Kucera.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Good morning. 2 THE COURT: The investigator for the District 3 Attorney's office who will be assisting them is Donnie 4 Cavinder. 5 MR. CAVINDER: Good morning. 6 THE COURT: For the defense, you have Mr. Mark 7 Briley. 8 MR. BRILEY: Good morning. 9 THE COURT: And Ms. Kris Howcroft. 10 MS. HOWCROFT: Good morning. 11 THE COURT: And the defendant Byrias Roberson. 12 THE DEFENDANT: Good morning. 13 THE COURT: A little bit about the process. 14 This is what's known as voir dire, to seek and tell the 15 truth or to question and tell the truth is what they said 16 when I was in law school. Jury selection process is a 17 better way of saying it for me. Since I'm from Wichita 18 Falls, if I butcher voir dire, I apologize. But I didn't 19 take French in high school. 20 The process we'll go through is the voir dire 21 will commence; the State will ask questions; the defense 22 will ask questions. Once we get through that, they're 23 going to exercise their strikes. I'd like to get through 24 the voir dire process hopefully by lunch. We'll see. 25 And then if not, it will be shortly thereafter. We CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 should have a jury seated by two o'clock today. So those 2 of you who are not one of the lucky six, as I call them, 3 will be released at that time. 4 Now, we don't keep substitute or alternative 5 jurors in this court, so it will just be the six. After 6 that, there will be opening statements, and we'll move 7 forward into the presentation of evidence and closing 8 statements, and then you'll get other instructions at 9 that time. This does -- everybody's familiar with trials 10 pretty much. It's somewhat like in the movies and TV 11 shows, but really not. There are more delays and it's 12 just inevitable, and that's part of the process. I'll 13 keep those delays to a minimum if possible and move this 14 trial as quickly as possibly while still affording a fair 15 trial for the defendant in this matter. 16 All right. With that, I'm going to turn it over 17 to Ms. Kucera to do voir dire for the State. 18 Oh, sorry, one more thing. Somebody said this 19 in a prior trial. If you see me on my computer, I'm not 20 playing on the Internet or anything like that. I'm the 21 only judge in the courthouse who is lucky enough to have 22 real time court reporting. And so if I'm on the 23 computer, nine times out of ten I'm going back through 24 testimony or I'm looking at some legal cases or 25 precedence. One lady mentioned that to me before, so I CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 always want to tell you that. Go ahead. 2 JURY VOIR DIRE EXAMINATION 3 BY MS. KUCERA: 4 Good morning. How are you guys doing? All 5 right. Fun group. First of all, thank you so much for 6 showing up today. We appreciate you for doing that. 7 This process cannot work if you guys don't show up, so I 8 wanna thank you so much for doing that. That's the first 9 step of the process. Okay. 10 First, I just want to ask a general question, 11 easy one. Raise your hand if this is your first time 12 you've been in a courtroom on a jury selection panel. 13 Excellent. So a fair amount of you. All right. Well, 14 you are in good company today because this is my very 15 first voir dire or jury selection. So if it is a train 16 wreck, I apologize, but we'll work through it today. I'm 17 going to introduce myself and talk a little bit about 18 myself and my trial partner and the type of questions I'm 19 going to ask you and talk to you about today. 20 My name is Allyson Kucera, as the judge said. I 21 grew up in Houston Texas, and I grew up -- I was an 22 athlete growing up. I ended up playing soccer for the 23 University of Oklahoma and stayed there for law school. 24 So I apologize for being a Sooner, but I am happy to be 25 back in Texas.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Let's see. What else about me? Okay. I 2 decided to share a personal story because I am going to 3 ask you guys to sort of talk about yourselves a little 4 bit. I am a huge fan of sports. I guess that probably 5 goes without saying. But what comes with that is growing 6 up with an older brother and an athletic background is 7 that I'm not an emotional person. I don't really cry a 8 lot in real life. The problem with that is that when 9 great sporting events occur, I am a disaster. I'm 10 bawling. You just worked so hard; I'm so proud of you. 11 You know, so I pretty much only cry in sporting events. 12 I think that's pretty weird that I only cry in sporting 13 events, but there you go. That's a weird fact about me. 14 Essentially, today this is just going to be a 15 jury selection process. I'm going to ask you some 16 questions and ask you to just be honest with us and talk 17 to us about your experiences, your feelings, your 18 opinions, okay. So I'm going to put a slide show up to 19 help you guys follow along with what I'm going to tell 20 you. If you can't see it, you can't understand it -- 21 another weird fact about me is that I talk incredibly 22 fast. So if you don't understand what I'm saying, need 23 me to repeat something, let me know, raise your hand, 24 stand up and we'll all get through this process together. 25 Does this sound like something everyone can do. Nods?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Yes. 2 Okay. This is the State of Texas versus 3 Mr. Byrias Roberson. Okay. Mr. Roberson has been 4 charged with the offense of resisting arrest. Okay? So 5 welcome jurors. I thought this might help us a little 6 bit. So these are some helpful hints. I will attempt to 7 take deep breaths and slow down. I will ask you guys to 8 do the same. Don't be nervous. This is gonna be easy. 9 We'll get you out of here before lunchtime hopefully. 10 All right. There are no wrong answers. These 11 are opinion questions. These are things that I'm going 12 to ask you guys and just ask you to be honest, okay. 13 There's no trick questions or anything like that, okay. 14 Honesty is the best policy, okay. We really want you 15 guys to be honest, all right. And the reason we want you 16 to be honest is that the goal of this process is to 17 ensure that Mr. Roberson gets a fair trial, okay? And 18 that's what the State wants and that's what the defense 19 wants, okay? So we wanna make sure that we get the best 20 six jurors that are going to sit appropriately for this 21 case. Okay? So just be honest and make sure that we get 22 this guy a fair trial. Okay? 23 All right. So the offense he has is resisting 24 arrest. All right. I'm going to back up and ask you why 25 do you think the offense resisting arrest is something CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 that we should try people for? Why do you think it's a 2 crime. Can anyone think of a reason why we wouldn't want 3 someone to arrest a person resisting arrest? Anyone have 4 any idea, try to help me out, why we think resisting 5 arrest might be -- might be an offense under the Texas 6 Penal Code? Yes! 7 VENIREPERSON FOSTER: Chris foster. 8 MS. KUCERA: Okay. Mr. Foster, why do you think 9 that -- 10 VENIREPERSON FOSTER: We need to protect the 11 people that are out there protecting us. 12 MS. KUCERA: Okay. And who are some of those 13 people? 14 VENIREPERSON FOSTER: Police officers. 15 MS. KUCERA: Okay. So you appear to be a police 16 officer. Is that in fact true? 17 VENIREPERSON FOSTER: Yes. 18 MS. KUCERA: Great. So your statement is that 19 resisting arrest is something we need to protect the 20 officers that are generally making the arrests? 21 VENIREPERSON FOSTER: Right. 22 MS. KUCERA: Okay. Are there any other people 23 you can think we would want to protect? 24 VENIREPERSON FOSTER: Well, protect the citizens 25 by making the arrest.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Good. Absolutely. Anyone else 2 have an idea why we think it's important to protect the 3 citizens who might be near the arrest? Anyone have an 4 idea as to why that might be the case? Anyone just raise 5 your hand. I know you can do this. Anyone think of a 6 reason? Let's say there are a group of people all 7 together and they're in -- let's say they're in a bar. 8 Alcohol is being served and there's someone who's 9 becoming rowdy, maybe had too much to drink. There are a 10 lot of people in a bar, and if the officers go to make an 11 arrest in a bar, wouldn't it be safer if that person 12 didn't resist arrest for all the people in the bar that 13 could possibly be injured, you know, by that person who 14 needs to be arrested? Does that make sense? Okay. Can 15 everybody understand how would be the case? 16 So the officer says we want to protect the 17 officers who are making the arrest and also the citizens 18 around the arrest. We don't want anyone to be hurt by 19 the officers who are trying to make an arrest. Okay? 20 Understand? Nod with me. Everyone got it? Okay. What 21 about the defendant? Wouldn't we also want to protect 22 him? Okay, good. All right. Can you understand why 23 it's safer if the defendant doesn't also resist arrest? 24 Everyone understand why that would be important? Good. 25 Okay. All right. So now we're going to go over CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 the definition of -- up here on this slide is the 2 definition of resisting arrest, okay. Everyone following 3 along so far? Great. All right. Texas Penal Code 4 Section 38.03. All right. It's a long definition. 5 We're going to go through it and break it down for you 6 guys so we all understand it together. Okay? 7 All right. A person commits an offense if he 8 intentionally prevents or obstructs a person he knows is 9 a peace officer from effecting an arrest. It's just that 10 sentence right there. He intentionally prevents or 11 obstructs a person he knows is a peace officer, okay, 12 from effecting an arrest or effecting a search or 13 transportation of that actor -- so the person who is 14 being arrested is the actor in this case -- or another 15 person by using force against that peace officer or 16 another person. 17 Okay. I know it's a little confusing, but did 18 everyone follow that and understand? Okay. He has to 19 intentionally know that he is preventing or obstructing a 20 person who he knows to be a peace officer -- and that's 21 important, all right -- from effecting an arrest. Okay. 22 So if someone goes to try and arrest him, he can not, if 23 he knows they're a peace officer and they're arresting 24 him, he can not use force and potentially prevent them 25 from arresting him. Everyone understand? Everyone CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 good? Okay. 2 All right. The second part of that is that it's 3 no defense to prosecution under this section if the 4 arrest or search is unlawful. 5 Okay. So I'm going to try to explain that as 6 best I can. Officer Foster, I'm going to try and use you 7 to help us understand that. Okay? All right. Let's say 8 you go to make an arrest of an individual. What do you 9 need in order to make an arrest? 10 VENIREPERSON FOSTER: Probable cause. 11 MS. KUCERA: Okay. So you need to believe that 12 that person has committed an offense; is that correct? 13 VENIREPERSON FOSTER: Yes. 14 MS. KUCERA: Okay. If you go to make an arrest 15 and you believe you have probable cause, right? 16 VENIREPERSON FOSTER: Yes. 17 MS. KUCERA: What if for some reason you might 18 arrest the guy's twin brother who you think is that 19 person, but he's not. He's actually his twin brother. 20 Okay? Does that make sense? Everyone following me? So 21 he's actually arresting the wrong person, right? But he 22 believes that he's arresting the right person. Okay? So 23 we would consider that an arrest. He's trying to arrest 24 the right person. He believes he's arresting the right 25 person. Even though he arrests the wrong person, the CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 wrong person still, the law says, cannot resist arrest. 2 Does that make sense? Okay. Everyone understand? 3 Okay. Now we're gonna break it down a little 4 bit and we're gonna go over the elements, okay. All 5 right. Okay. All right. So this is the elements, okay. 6 Mr. -- this is what -- okay. Let me explain. This is 7 what Victoria and I have to prove to you, okay, that 8 we're going to go through this trial and this is what we 9 have to prove to you, okay. The first element that we 10 have to demonstrate to you guys is that Mr. Roberson is 11 the particular person in this case, okay. Second is that 12 the offense occurred on or about July 10, 2012. Okay? 13 Second, is that it occurred in Wichita County, Texas, did 14 then and there intentionally prevent or obstruct Officer 15 Gabriel Vasquez, a person the defendant knew was a peace 16 officer, from effecting the arrest of the defendant 17 Mr. Roberson by using force against that said peace 18 officer. 19 Now, does anybody know what a peace officer is? 20 Anybody? Somebody's gotta raise their hand. Yes! Let 21 me get your name. Hang on just a second. Your name is 22 Clay Parsons, No. 23. 23 VENIREPERSON PARSONS: My definition is a person 24 who was in some kind of uniform, carrying a weapon, that 25 I could distinguish him from just a common person who was CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 just hanging out at the bar where this was taking place. 2 MS. KUCERA: Okay. 3 VENIREPERSON PARSONS: You'd have to visually 4 know this person has some kind of authority to be doing 5 what he was doing. 6 MS. KUCERA: Okay. Very good. Does anyone else 7 agree with what Ms. Parsons said, about that they would 8 have to have some sort of demonstration that they're a 9 police officer? Raise your hand if you agree with what 10 Ms. Parsons said. There you go. Did you raise your 11 hand, sir? Good. Do you believe it as well? 12 VENIREPERSON TEAKELL: Yes, I do. 13 MS. KUCERA: Excellent. Okay. Do you wanna 14 stand up, sir, for me? Do you think there's any other -- 15 say your name. 16 VENIREPERSON TEAKELL: Ronnie Teakell, No. 2. 17 MS. KUCERA: Great. Do you think there is any 18 other -- is there anything you want to add to 19 Ms. Parsons' definition? 20 VENIREPERSON TEAKELL: I think a police officer 21 is somebody who's supposed to -- supposed to protect you. 22 MS. KUCERA: Okay. 23 VENIREPERSON TEAKELL: He should have a badge or 24 some kind of emblem on his shirt so that you know he's a 25 police officer.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Okay. Great. Mr. Cavinder, could 2 you stand up, please? This is our investigator. This is 3 Mr. Cavinder. I forgot to introduce him, but I'll 4 introduce him to y'all now. Mr. Cavinder's our 5 investigator. Can you see anything on him that 6 demonstrates that he's a peace officer? Ms. Wright, what 7 do you see on him? 8 VENIREPERSON WRIGHT: The badge. 9 MS. KUCERA: He's not wearing a police uniform, 10 though, right? You can see the badge and it demonstrates 11 he's a police officer, correct? 12 VENIREPERSON WRIGHT: Correct. 13 MS. KUCERA: Good story about Mr. Cavinder. 14 This morning he sat in the witness chair and he broke it. 15 So that is a sub witness chair. 16 The next thing we're going to do is go through 17 the elements one by one. So we have the first three and 18 we're going to talk about intentionally. So the 19 defendant has to have intentionally resisted the arrest, 20 right? Okay. Anybody a baseball fan out here? Yes, oh, 21 I got a small hand. All right. Stand up and say your 22 name. 23 VENIREPERSON THOMASON: Tyler Thomason, No. 11. 24 MS. KUCERA: No. 11, okay. What's your favorite 25 baseball team?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON THOMASON: The Rangers. 2 MS. KUCERA: Okay. Good choice. Excellent 3 choice. All right. So is Yu Darvish the pitcher for the 4 Rangers? 5 VENIREPERSON THOMASON: Yes, he is. 6 MS. KUCERA: Good. Good job. Okay. Who is the 7 catcher for the Rangers? Do you know? 8 VENIREPERSON THOMASON: There's been three so 9 far. 10 MS. KUCERA: Okay. Give me a name, one name. 11 VENIREPERSON THOMASON: A.J. Pierzynski. 12 MS. KUCERA: A.J. Pierzynski. Okay. So Yu 13 Darvish is the pitcher for the Rangers and A.J. 14 Pierzynski, okay, is the catcher. Okay. You're a 15 baseball fan, you said, right? 16 VENIREPERSON THOMASON: Yes. 17 MS. KUCERA: Okay. So let's say the Rangers are 18 playing the Yankees, and it's bottom of the ninth and the 19 Rangers are up one-nothing. Okay? There is a man on 20 first base and there's two outs, okay, and the No. 1 home 21 run hitter in the league is going to come up to bat. All 22 right. Do you think that it's a possibility that the 23 Rangers might decide to walk that batter? 24 MR. BRILEY: It's a possibility. 25 MS. KUCERA: Okay.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON THOMASON: Wouldn't be smart, but 2 it's a possibility. 3 MS. KUCERA: Okay. All right. 4 Let's pretend that it is a smart idea. I'm not super 5 knowledgeable about baseball, but I know this is what 6 they do. Okay. So what do they call that when they 7 decide to walk the batter? 8 VENIREPERSON THOMASON: An intentional walk. 9 MS. KUCERA: Very good. He's doin' great, you 10 guys. Okay. So it's an intentional walk, yes. Okay. 11 So how do you, when you're the batter and/or you're a 12 fan, how do you know that they're going to do an 13 intentional walk? 14 VENIREPERSON THOMASON: Normally, the catcher 15 will stand up and move over to the side of where the 16 batter stands and hold up that other arm and the pitcher 17 will throw four balls out that way. 18 MS. KUCERA: Okay. So nowhere near the strike 19 zone, right? 20 VENIREPERSON THOMASON: Yes. 21 MS. KUCERA: Okay. Now, is the -- so is the 22 pitcher going to talk to the batter? 23 VENIREPERSON THOMASON: He could, but normally 24 no. 25 MS. KUCERA: Normally, no, right? The pitcher CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 doesn't normally talk to the batter. All right. Does 2 the batter know that he's going to be intentionally 3 walked, though? 4 VENIREPERSON THOMASON: When he sees the catcher 5 stand up and hold his arm up. 6 MS. KUCERA: Right. Very good, yeah. So the 7 catcher will stand up and stand way outside the batter's 8 box way behind the batter's box, and he'll hold his glove 9 up way outside the strike zone to catch the ball, okay. 10 He doesn't want his pitcher throwing it anywhere near the 11 strike zone, right? He wants to walk the batter all the 12 way to first base. Okay? He wants to throw four balls 13 in a row. All right. So would it be fair to say -- 14 you're doing great so you're going to keep standing up, 15 okay. 16 So intentionally. Under the Texas Penal Code, 17 it says a personal acts intentionally or with intent with 18 respect to the nature of his conduct, okay, or to a 19 result of his conduct when his conscious objective or 20 desire is to engage in the conduct or cause the result. 21 Okay? All right. I know I say okay a lot. Just bear 22 with me. We're going to get through this. Would it be 23 fair to say in an intentional walk that the pitcher is 24 aware of his conduct? 25 VENIREPERSON THOMASON: Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Okay. So is it also fair to say 2 that he desires to engage in that particular conduct? 3 VENIREPERSON THOMASON: Yes. 4 MS. KUCERA: Okay. he is standing on the 5 pitcher's mound and intentionally throwing it way outside 6 the batter's box, correct? 7 VENIREPERSON THOMASON: Yes. 8 MS. KUCERA: Excellent. All right. Does he 9 know what the result's gonna be? 10 VENIREPERSON THOMASON: I would hope he would 11 know. 12 MS. KUCERA: Right. One of the two, yeah. 13 VENIREPERSON THOMASON: But, yes, normally he 14 would. 15 MS. KUCERA: Yeah. Normally, he would know, 16 right? He knows he's gonna walk that batter, okay. 17 VENIREPERSON THOMASON: Yes. 18 MS. KUCERA: So he's aware of his conduct, 19 right? He is acting with intent. He's intentionally 20 walking. They call it an intentional walk for a reason. 21 All right. Does everyone understand where I'm going with 22 this? We have to recognize we've got a person who's 23 acting with a conscious objective. He knows what his 24 actions are causing or may cause, okay. He knows that it 25 may cause this particular result or he is aware of the CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 actions that he is currently making. Okay? He is acting 2 with purpose. Everyone understand? Yes. You've done 3 beautifully. Thank you so much. Have a seat. All 4 right. Everyone understand intentionally? You're 5 nodding. Great. 6 Okay. Now, the next part of the definition we 7 talked about is force, okay. All right. What -- let's 8 see. Mr. Garcia, would you stand up for a second? Okay. 9 And you are Anthony Garcia. Excellent. All right. What 10 does the word force mean to you? 11 VENIREPERSON GARCIA: Applying pressure. 12 MS. KUCERA: Applying pressure, okay. Good. 13 What -- you can think of it in terms of a person acting. 14 How could they use force? 15 VENIREPERSON GARCIA: They could use force to 16 get what you want. 17 MS. KUCERA: Okay. Let's work on that a little 18 bit. What would you do if you're using force. You said 19 apply pressure. Is there any other ways you could think 20 of that you would use force? 21 VENIREPERSON GARCIA: Physically. 22 MS. KUCERA: Okay. Good. What might you do if 23 you're using force physically, specifically in terms of 24 this. 25 VENIREPERSON GARCIA: Use your body, use your, CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 you know, arms, whatever you need to do to. 2 MS. KUCERA: Yeah. No, you're right. 3 Absolutely. So you could use your arms. What about your 4 legs? 5 VENIREPERSON GARCIA: Yeah. Arms, legs, teeth. 6 MS. KUCERA: Great. You've done well. Have a 7 seat. Good job. So can anyone think of something that 8 might be less than what Mr. Garcia said, which was using 9 his arms, his legs, punching out. Is there anything else 10 anyone can think of that might possibly be considered 11 force? Yes, Ms. Parsons. 12 VENIREPERSON PARSONS: Being a teacher, I think 13 you could also use verbal force, presenting the case to 14 them. If you don't do this, this is going to happen to 15 you. To me, that would be a way of forcing the 16 situation, too. 17 MS. KUCERA: Excellent suggestion. So that is 18 great. So we have sort of two extremes here. We have 19 Ms. Parsons saying that force is, you know, it could be 20 mere words, right? And then you have Mr. Garcia 21 suggesting using your arms and legs; it's punching out, 22 it's kicking out; it's being aggressive or violent to get 23 force. That's correct? Everyone understood Mr. Garcia 24 to say that? Okay. What if I were to tell you that the 25 law falls in the middle of those two things, okay. That CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 it has to be more than your words, but it doesn't have to 2 be as excessive as punching out, kicking out, applying 3 pressure, those sorts of things. Okay. So this is what 4 the law says. It says that it's more than mere passive 5 resistance. Okay. So I think words might qualify as 6 passive resistance. But it says that one who uses force 7 to shake off an officer's detaining grip, by pushing or 8 pulling, may be guilty of resisting arrest. Okay. So if 9 an officer has a detaining grip -- Ms. Hair, stand up. 10 VENIREPERSON HAIR: No. 4, Jamie. 11 MS. KUCERA: Jamie, okay. When I say detaining 12 grip, what does that word mean to you? 13 VENIREPERSON HAIR: Like when they have you in 14 handcuffs and I try to pull away or I push them off. 15 MS. KUCERA: Okay. Do you think detaining grip 16 could mean something less than being in handcuffs? Can 17 you think of something that's less detaining? 18 VENIREPERSON HAIR: Like if they're going to 19 grab me by the shoulder and you push them away or shake 20 them off. 21 MS. KUCERA: Very good. Absolutely right, yeah. 22 It can be just a detaining grip. Now, the law says that 23 one who uses force to shake off an officer's detaining 24 grip whether by pushing or pulling may be guilty of 25 resisting arrest. Does that sound right? Do you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 understand that? 2 VENIREPERSON HAIR: Yes. 3 MS. KUCERA: Okay. Detaining grip could be 4 less. Could be -- resisting arrest could be they shake 5 it off, they push, they pull away. Those are things that 6 the law is talking about that could be resisting arrest. 7 Done great. Have a seat. Gonna keep going. 8 All right. So this is the second definition of 9 force. The statute is also satisfied by evidence of 10 jerking against, okay, turning in circles to resist and 11 struggling against an officer's efforts at making an 12 arrest. Okay? Mr. Billing, would you stand up, please? 13 VENIREPERSON BILLING: Douglas Billing, No. 7. 14 MS. KUCERA: Mr. Billing, the jerking against or 15 turning in circles, what do you think that means to you. 16 VENIREPERSON BILLING: Basically turning away 17 from the officer. 18 MS. KUCERA: Okay. If there is -- yes, 19 absolutely right. What about struggling against an 20 officer's efforts at making an arrest? What does that 21 mean? 22 VENIREPERSON BILLING: I imagine it would be 23 trying to step away from him or get space between you and 24 him. 25 MS. KUCERA: Okay. Excellent. Yes, you're CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 absolutely right. If I were to tell you that the law, 2 like I said, is more than -- have a seat. Great job. So 3 we talked about, Ms. Parsons, how that it's more than 4 your words, but it's not -- it doesn't have to be as 5 violent or aggressive as punching or pulling and kicking 6 out. It can be that. If, in fact, it is that, 7 that can also be resisting arrest. But it can also be 8 less than that. Does everyone understand? Ms. Vale, do 9 you understand what that means? 10 VENIREPERSON VALE: Yes. 11 MS. KUCERA: The law is somewhere between those 12 two, and I've given you two cases that talk about what -- 13 something less than words -- or something more than 14 words, less than violence? 15 VENIREPERSON VALE: Yes. 16 MS. KUCERA: If that's how the statute is 17 defined, can you follow the law? 18 VENIREPERSON VALE: Great. Mr. Billing, you 19 understand? 20 VENIREPERSON BILLING: Yeah. 21 MS. KUCERA: Officer Foster? 22 VENIREPERSON FOSTER: Yeah. 23 MS. KUCERA: Mr. Garcia, do you understand 24 that? 25 VENIREPERSON GARCIA: Yeah.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: And Ms. Hair? 2 VENIREPERSON HAIR: Yes. 3 MS. KUCERA: Okay. Ms. Wright, you understand 4 that? 5 VENIREPERSON WRIGHT: Yes. 6 MS. KUCERA: Good. Mr. Teakell, make sense to 7 you? 8 VENIREPERSON TEAKELL: Yes. 9 MS. KUCERA: Great. Ms. Taylor? 10 VENIREPERSON TAYLOR: I haven't heard from you. 11 I'm probably going to call on you in a second, okay? 12 You'll be great. Don't worry. Okay. Can anyone talk to 13 me about what an arrest means just generally? What do 14 you think of when you hear the word arrest? 15 Ms. McClesky, stand on up, No. 12. What do you think of 16 when you hear the word arrest? 17 VENIREPERSON MCCLESKY: To me it means like if 18 you're doing something wrong, outside the law, you get 19 arrested; you get in trouble. 20 MS. KUCERA: Okay. Absolutely right. What do 21 you think of as an example of when you can get arrested? 22 VENIREPERSON MCCLESKY: Maybe when you're in a 23 fight with somebody. 24 MS. KUCERA: Okay. So let's say -- good. Great 25 example. Let's say you are in a supermarket shopping and CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 you see two people getting in an argument, right? You 2 see it. You tell someone to call the cops. The cops 3 arrive and they see, physically see, the two people 4 fighting. 5 VENIREPERSON MCCLESKY: Right. 6 MS. KUCERA: Do you think it's a reasonable time 7 to arrest them? 8 VENIREPERSON MCCLESKY: I would think it would 9 be a reasonable time to detain them. I don't know if it 10 would result in an arrest. 11 MS. KUCERA: Okay. So let's say they -- all 12 right. All right. So what they did is they actually 13 physically committed a -- all right. 14 Maybe they -- let's say they stole from the supermarket. 15 You watched them; the officer saw them steal; and then 16 they decided that they had enough to arrest them. Okay. 17 The officer has physically witnessed the crime. That 18 would be a reasonable time to arrest them? 19 VENIREPERSON MCCLESKY: Yes. 20 MS. KUCERA: Great. You've done great. 21 Awesome. Have a seat. All right. Ms. Taylor, I told 22 you I was gonna call on you. You're good. 23 VENIREPERSON TAYLOR: Yes. Cheryl Taylor, No. 24 1. 25 MS. KUCERA: Juror No. 1. It's a good place to CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 be. Ms. Taylor, can you think of a time where maybe the 2 officer didn't physically witness the crime occur, but 3 that he would still maybe have showed up later and still 4 have reason to arrest the person who committed the 5 crime? 6 VENIREPERSON TAYLOR: Yeah, the eyewitnesses 7 and, you know, just what he sees there and -- 8 MS. KUCERA: Excellent. Okay. So he may not 9 have seen it, but he shows up later and let's say 15 10 eyewitnesses all tell him the same story and they all 11 point to this person and say I saw it; he committed this 12 crime; you know, I witnessed it. Does that seem like a 13 reasonable time to make an arrest? 14 VENIREPERSON TAYLOR: Uh-huh. 15 MS. KUCERA: Ms. Taylor, you've done great. 16 Have a seat. Mr. Foster, I'm going to have you stand up 17 again. What is -- let's say that the police department 18 gets a tip about a crime that may have occurred. Okay? 19 And then they conduct an investigation. Right? Okay. 20 You know, they might conduct interviews. What else might 21 they do in this investigation? 22 VENIREPERSON FOSTER: Look at all the evidence 23 involved. 24 MS. KUCERA: Okay. 25 VENIREPERSON FOSTER: Witnesses, even speaking CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 with the person that's accused and determining what all 2 they have. 3 MS. KUCERA: All right. Let's say that they -- 4 after doing all that you said, witnesses, reviewing 5 evidence, talking to people, talking to victims, maybe, 6 let's say that they think they're almost positive they 7 know who committed the crime. Okay. What would the 8 steps be? What would happen if that was the case? What 9 would they do if they were almost positive that was the 10 person who committed the crime? 11 VENIREPERSON FOSTER: If they had probable cause 12 to believe they committed the crime and it was arrestable 13 at that time, they would go make the arrest. 14 MS. KUCERA: What would they have to do before 15 they make the arrest, though? Would they have to see a 16 judge about something? 17 VENIREPERSON FOSTER: Depends on the 18 circumstances. 19 MS. KUCERA: Okay. If I were to tell you they 20 were issued a warrant, what is that? How does that work? 21 What does that do? 22 VENIREPERSON FOSTER: Well, that's already 23 signed by a judge ordering the arrest of that person. 24 MS. KUCERA: Okay. 25 VENIREPERSON FOSTER: Usually, it's a command to CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 the police officer to make that arrest. 2 MS. KUCERA: Okay. So that's also another time. 3 If they think they have probable cause to make an arrest, 4 they can go get a warrant issued by what is called a 5 neutral magistrate or a judge to say that you have 6 probable cause to arrest this person; I'm issuing a 7 warrant for this person's arrest? 8 VENIREPERSON FOSTER: Right. 9 MS. KUCERA: Is that a fair assessment of how 10 that works? 11 VENIREPERSON FOSTER: Yes. 12 MS. KUCERA: So if they have a warrant for the 13 arrest, can they go and make the arrest? 14 VENIREPERSON FOSTER: Yes. 15 MS. KUCERA: Great. Officer, you did good 16 again. Well done. So we talked about three different 17 ways that we can make an arrest, right? One of the ways 18 is the officer personally witnesses the crime. Okay? 19 The second way is that they show up to the crime later, 20 but all the eyewitnesses confirm what happened and they 21 can arrest the person based on what they've seen at the 22 scene and then also spoken to the eyewitnesses. Then 23 Mr. Foster talked about the way that they can -- you 24 know, if they, as a result of an investigation, they 25 believe they have probable cause, they get a warrant CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 issued for his arrest and they can go make the arrest of 2 that person. Anybody have any questions about those 3 three ways that we talked about? Feel free to raise your 4 hand. It's okay. I can go slower. Everyone got it? 5 Okay. All right. So very good. 6 All right. So warrants and arrests. We kind of 7 talked about it briefly. We'll go into a little more 8 detail. The Texas Code of Criminal Procedure says that 9 officers executing an arrest warrant, which is the type 10 that Mr. Foster talked about, they must have a reasonable 11 belief, okay, that the suspect resides at the place to be 12 entered and they must also have reason to believe the 13 suspect is present at the time the warrant is executed. 14 All right. I'm going to try and explain that a 15 little bit but use you guys to explain. All right. Now, 16 when -- Mr. Teakell, stand up again. You're doing great. 17 VENIREPERSON TEAKELL: No. 2. 18 MS. KUCERA: Okay. If I were to say that the 19 officers executing an arrest warrant must have a 20 reasonable belief, okay, that the suspect resides at that 21 time place that they are entering in order to arrest him, 22 what does reasonable belief mean to you. 23 VENIREPERSON TEAKELL: He has information that 24 he's there. 25 MS. KUCERA: Okay. Does that mean they have to CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 know 100 percent that sure he's there. 2 VENIREPERSON TEAKELL: I wouldn't think so. 3 MS. KUCERA: Right. Reasonable belief doesn't 4 say hundred percent. It just says reasonable belief, 5 okay. What do you think they could use to find out -- 6 let's say it's his home. What do you think they could 7 use to find out that he is at the home at the time. 8 VENIREPERSON TEAKELL: Information that he lives 9 there, his neighbors, whoever lives there, if he lives 10 there. 11 MS. KUCERA: Okay. Great. Have a seat. You've 12 done great. See, I told you guys he this is easy. So 13 reasonable belief that he's there. What about -- let's 14 see. Ms. Schmidt, stand up. 15 VENIREPERSON SCHMIDT: Tina Schmidt, No. 13. 16 MS. KUCERA: Okay. Ms. Schmidt, we talked about 17 they had information or talked to their neighbors. What 18 other information do you think they might be able to use 19 to determine if they have a reasonable belief that that 20 person's home? 21 VENIREPERSON SCHMIDT: If they've done any 22 surveillance or checked his work record, his work, know 23 he's off and when he would probably be home. 24 MS. KUCERA: Great. That's excellent. You're 25 absolutely right. That is something they could use. He CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 works at this time every day; he comes home from work, 2 checks the mail. Excellent. Very, very good. All 3 right. It also says in the second part of the definition 4 that they also have reason to believe that the suspect is 5 present at the time the warrant is executed. So we 6 talked about how we might know that he's at that 7 particular place. How would we know that he's actually 8 present? 9 VENIREPERSON SCHMIDT: Someone had watched him 10 go in, set up surveillance and seen him come and go, 11 maybe some other neighbors or something. 12 MS. KUCERA: What about if his car is in the 13 driveway? 14 VENIREPERSON SCHMIDT: Yeah. 15 MS. KUCERA: Would that make sense that he was 16 there? 17 VENIREPERSON SCHMIDT: That seems reasonable. 18 MS. KUCERA: Very excellent. Done great. Have 19 a seat. Okay. All right. So warrants and arrests in 20 Texas. We talked about how the -- that particular case 21 that we're talking about that defines when officers can 22 make an arrest using a warrant, that comes from the 23 Supreme Court of the United States. Okay. So the 24 Supreme Court is the highest court in the whole land. 25 Every court in the nation has to follow what they say.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Now, state courts like the Texas Supreme Court 2 can qualify what the Supreme Court says and help the 3 lower courts understand. That's what happens in this 4 case. So I'm going to explain to you warrants and 5 arrests in Texas, okay. So in Texas, a warrant for a 6 Class C offense -- anyone know what a Class C offense 7 is? Someone I haven't heard from? Class C offense? 8 Anyone. Okay. 9 VENIREPERSON RIPPERGER: Debbie Ripperger, 20. 10 A Class C is a misdemeanor. 11 MS. KUCERA: It is a misdemeanor. Good, yes. 12 If I were to say a speeding ticket is a Class C offense, 13 does that sound like that's a correct answer? 14 VENIREPERSON RIPPERGER: Yes. 15 MS. KUCERA: Yes, you are correct. So a 16 speeding ticket is a Class C offense. Okay. Very good. 17 All right. So what this case says is that a warrant for 18 a Class C offense and failure to appear warrant, which 19 is, you know, can be enough to justify entry into a 20 defendant's home to make an arrest. The officers still 21 have to have reason to believe that the defendant is home 22 at that time, okay. 23 So what I'm gonna try to explain is -- who's 24 going to be the lucky person? Mr. Litteken? You're 25 good.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266

1 VENIREPERSON LITTEKEN: No. 9, Gerald Litteken. 2 MS. KUCERA: Ms. Ripperger suggested that a 3 Class C offense is a misdemeanor. We classify offenses, 4 I guess, in two different ways. We have misdemeanors and 5 then we have the more serious offenses. Do you know what 6 those are called? 7 VENIREPERSON LITTEKEN: A felony. 8 MS. KUCERA: Felony. Very good. So if I tell 9 you a felony is more serious than a misdemeanor, and I'm 10 telling you that the Court says that we can or that 11 officers, if they have a reason to believe that the 12 defendant is home at that time, they can make an arrest 13 for not only something as serious as a felony, but also 14 something for a Class C misdemeanor, which is the lowest 15 offense. Does that right? Does that make sense? Do you 16 understand that? 17 VENIREPERSON LITTEKEN: Uh-huh. 18 MS. KUCERA: Okay. So if I were to tell you 19 that the law says they can make an arrest by a Class C 20 offense if they believe that the defendant is home at 21 that time, does that sound like something that you could 22 follow if I tell you that if the judge instructs you that 23 if you believe that the officers had reason to believe 24 that they could make an arrest, that you could follow the 25 judge's instructions?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON LITTEKEN: Sure. 2 MS. KUCERA: What about you, Ms. Taylor? 3 VENIREPERSON TAYLOR: No. 1. 4 MS. KUCERA: If you believe that the officers 5 had reason to believe that they were making -- that the 6 defendant was home and that they could arrest him for 7 something as low as a Class C offense, but also something 8 that's as serious as a felony, that they could go into 9 his home and make an arrest? 10 VENIREPERSON TAYLOR: Yes. 11 MS. KUCERA: If the judge told you that that was 12 something, an instruction you have to follow, you could 13 do that? 14 VENIREPERSON TAYLOR: Yes. 15 MS. KUCERA: Okay. Good. What about you, 16 Mr. Teakell? 17 VENIREPERSON TEAKELL: I believe that's correct. 18 MS. KUCERA: Okay. You could follow the judge's 19 instructions? 20 VENIREPERSON TEAKELL: Yes. 21 MS. KUCERA: Great. Ms. Wright, what about you? 22 VENIREPERSON WRIGHT: Yes. 23 MS. KUCERA: Okay. Ms. Hair? 24 VENIREPERSON HAIR: Yes. 25 MS. KUCERA: Perfect. Mr. Garcia, do you think CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 you could follow those instructions? 2 VENIREPERSON GARCIA: Yes. 3 MS. KUCERA: Okay. Do you have any questions 4 about what we talked about? 5 VENIREPERSON GARCIA: No. 6 MS. KUCERA: Mr. Foster, what about you? 7 VENIREPERSON FOSTER: Yes. 8 MS. KUCERA: You could? 9 VENIREPERSON FOSTER: I think I could. 10 MS. KUCERA: What about you, Mr. Billing? 11 VENIREPERSON BILLING: Yes. 12 MS. KUCERA: And Ms. Vale? 13 VENIREPERSON VALE: Yes. 14 MS. KUCERA: Ms. McKinley, is that something you 15 could you follow? 16 VENIREPERSON MCKINLEY: Yes. 17 MS. KUCERA: Okay. Ms. Steele? 18 VENIREPERSON STEELE: Yes. 19 MS. KUCERA: Great. Mr. Jantz, is that correct? 20 VENIREPERSON JANTZ: Yes, ma'am. 21 MS. KUCERA: Okay. Is that something you could 22 follow if it's an instruction? 23 VENIREPERSON JANTZ: Yes, ma'am. 24 MS. KUCERA: If you believed that officers had 25 reasonable belief to be in the home that they could CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 arrest the defendant for something like a felony or Class 2 C offense, they could enter his home to do that? 3 VENIREPERSON JANTZ: Yes, ma'am. 4 MS. KUCERA: Okay, great. And Ms. Schmidt? 5 VENIREPERSON SCHMIDT: Yes. 6 MS. KUCERA: Good. And Ms. McClesky? 7 VENIREPERSON MCCLESKY: Yes. 8 MS. KUCERA: Mr. Thomason, my baseball guy? 9 VENIREPERSON THOMASON: Yes. 10 MS. KUCERA: You could do that. All right. 11 Mr. Vasquez, what about you? 12 VENIREPERSON VASQUEZ: Yes. 13 MS. KUCERA: Great. Okay. All right. So we're 14 going to review what we talked about to make sure you 15 understand the Penal Code. We have to prove that 16 Mr. Roberson, on or about July 10th of 2012, in Wichita 17 County, Texas, did then and there intentionally -- my 18 baseball fan over here gave us a definition of 19 intentionally, right -- did then and there obstruct 20 Gabriel Vasquez, a person the defendant knew was a peace 21 officer, from effecting an arrest of the defendant by 22 using force against said peace officer. 23 And Mr. Garcia and Ms. Parsons gave us the range 24 of or definition of force, right? Everyone got it? 25 Everyone understand? Okay. All right.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 So the next thing we're going to talk about is 2 the burden of proof. Anyone here know what the burden of 3 proof is in a criminal case? Some of you have served on 4 a criminal jury before; is that correct? Anyone remember 5 what the burden is? Anybody. 6 VENIREPERSON BILLING: Beyond a reasonable 7 doubt. 8 MS. KUCERA: Mr. Billing. Stand up. You got it 9 right. Five points. What did you say? 10 VENIREPERSON BILLING: Beyond a reasonable 11 doubt. 12 MS. KUCERA: Beyond a reasonable doubt. 13 Mr. Billing, great job. That is true. Beyond a 14 reasonable doubt is the standard that Victoria and I will 15 have to approve to you the elements of the case that we 16 just went over, okay. All right. So beyond a reasonable 17 doubt, what is it? Do you have a suggestion for what 18 beyond a reasonable doubt is, or is it self-explanatory? 19 VENIREPERSON BILLING: It's self-explanatory. 20 MS. KUCERA: Okay. By the way, you're doing a 21 great job. Thank you. All right. Let me tell you what 22 beyond a reasonable doubt is not. It's not beyond all 23 doubt, okay. It's not beyond the shadow of a doubt or 24 not beyond any doubt, okay. It's beyond a reasonable 25 doubt, okay. So you can have a doubt, but it has to be CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 based in reason. All right. 2 This is the best example I could come up with. 3 I'm going to try to help you understand what beyond a 4 reasonable doubt means. I don't know if you guys are 5 familiar with the process of law school, but we have 6 professors and they teach us different subjects. My 7 professor, which I lovingly refer to, we call him Uncle 8 Murray, of course not in class. But his name is 9 Professor Tabb. He taught us contracts and torts and a 10 class called law and literature. 11 All right. In torts, they were things like 12 were they acting with negligence or were their actions 13 reasonable under the circumstances? Torts is civil, so 14 we don't have to worry about that right now. But the 15 reason I bring up Professor Tabb is that he kept 16 explaining to us that the courts, when they're doing 17 negligence evaluations, always use a demonstration of the 18 reasonable man. So it kind of became a joke in our law 19 school class that Professor Tabb, who drinks coffee; he's 20 a deacon at his church and loves the book to kill a 21 mocking bird; he wears argyle, has the same cup of coffee 22 every morning; he's just Mr. Practical. So we used to 23 joke that he was a reasonable man. What Mr. Tabb thinks 24 is reasonable may not be the same thing that Mr. Garcia 25 thinks is reasonable. Okay? Reasonableness is sort of CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 subjective. It's what each individual thinks is 2 reasonable. Okay? everyone understand what I'm talking 3 about? 4 All right. Is there anyone in here that is a 5 television fan of, let's say, NBC's, in the late 90's, 6 the Must See TV lineup? Anyone watch those shows? 7 Seinfeld? Frasier? Mr. Jantz, all right. All right. 8 Mr. Jantz, stand up for just a second. 9 VENIREPERSON JANTZ: Fourteen, Chris Jantz. 10 MS. KUCERA: Okay. Mr. Jantz, you watched that 11 lineup, right? You watched Seinfeld? Frasier? Did you 12 watch the whole lineup? Did you watch Friends as well? 13 VENIREPERSON JANTZ: I watched them all. 14 MS. KUCERA: Great. Okay, so you're familiar 15 with the shows then? 16 VENIREPERSON JANTZ: Yes. 17 MS. KUCERA: Okay. If I were to show you this 18 picture, could you tell me what that's a picture of? Not 19 a trick question. 20 VENIREPERSON JANTZ: Some of the friends. 21 MS. KUCERA: Okay. Do you see those parts that 22 are blacked out? 23 VENIREPERSON JANTZ: Yes, ma'am. 24 MS. KUCERA: Okay. So do you see there are two 25 people that are sort of blacked out, but you can see that CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 they're still in the photograph, right? 2 VENIREPERSON JANTZ: Yes, ma'am. 3 MS. KUCERA: So if I were to ask you what that's 4 a picture of, what would you say? 5 VENIREPERSON JANTZ: Some of the friends. 6 MS. KUCERA: Okay. How many friends are there? 7 Do you remember? 8 VENIREPERSON JANTZ: Six. 9 MS. KUCERA: Six. Very good. Are there six 10 people in the photo? 11 VENIREPERSON JANTZ: Yes. 12 MS. KUCERA: Yes, there are. So it is a picture 13 of the cast of Friends. Mr. Jantz, you are correct. It 14 is a picture of the cast of Friends. Anyone else 15 recognize that photograph? Okay. All right. 16 Ms. Wright, do you recognize that photograph? 17 VENIREPERSON WRIGHT: Yes. 18 MS. KUCERA: Did you watch Friends? 19 VENIREPERSON WRIGHT: I did. 20 MS. KUCERA: Okay. Stand up. Mr. Jantz, good 21 job. Ms. Wright, you watched Friends, right? 22 VENIREPERSON WRIGHT: Yes. 23 MS. KUCERA: Okay. Did you look at this picture 24 and also know that it was the cast of Friends? 25 VENIREPERSON WRIGHT: Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Okay. Now, let me ask you this. 2 You can't see the whole picture, right? 3 VENIREPERSON WRIGHT: Right. 4 MS. KUCERA: But you can see four of them and 5 you can see that there are two other people in that 6 photograph; is that correct? 7 VENIREPERSON WRIGHT: That's correct. 8 MS. KUCERA: Okay. Now, did you know beyond a 9 reasonable doubt that it was the cast of Friends? 10 VENIREPERSON WRIGHT: No. 11 MS. KUCERA: You didn't? Okay. Why not? 12 VENIREPERSON WRIGHT: The left hand side of the 13 picture is faded. 14 MS. KUCERA: Okay. We talked with Mr. Jantz 15 about how he liked the Must See TV lineup, all that kind 16 of stuff, right? He talked about how he liked the show 17 Friends. Okay. And if I were to show you a picture and 18 you could see four of them, but you couldn't see the 19 other two -- 20 VENIREPERSON WRIGHT: I would assume that it's 21 the cast of Friends. 22 MS. KUCERA: Okay. Yes, you would assume that 23 it's the cast of Friends, right? 24 VENIREPERSON WRIGHT: Right. 25 MS. KUCERA: Okay. Let me ask you this. Do you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 think if I was doing a demonstration that it would be, 2 let's say, reasonable for me to put four of the cast of 3 Friends but two people that are like arbitrary and aren't 4 related. Does that seem like a reasonable thing that I 5 would do? 6 VENIREPERSON WRIGHT: No. 7 MS. KUCERA: No. Okay. So maybe it would be 8 fair to say that you knew or your assumed beyond a 9 reasonable doubt that that was the cast of Friends? 10 Okay? 11 VENIREPERSON WRIGHT: I assumed, yes. 12 MS. KUCERA: Yes, okay. Have a seat. Great 13 job. 14 Okay. Now, in this particular case, you know, I 15 obviously was trying to do a demonstration where I 16 blacked out some of the photographs because you can't see 17 the whole picture. In this particular case, if you -- 18 let's say Officer Foster was on duty that day and he 19 witnessed the entire event taking place, we would 20 probably call him as a witness, correct? He saw the 21 whole thing take place, right? He would be a witness in 22 that case. He would have seen all the elements take 23 place of that offense. So we would call him as a 24 witness. So he couldn't be a juror because he would have 25 seen the whole picture. Understand?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 So in this case we're going to bring in 2 witnesses who will tell you what they saw and try to fill 3 in as much of the picture as they can. There may be 4 things blacked out, but they're going to try to give you 5 as much of the picture that happened. Now, I'm going to 6 ask each of you if you can follow the law and not hold 7 the State to a higher burden than beyond a reasonable 8 doubt, okay. Understand what I'm asking you? 9 All right. Ms. Taylor, I'll have you stand up 10 again. All right. Do you think that you can -- 11 reasonable is different for each person, right? 12 VENIREPERSON TAYLOR: Yes. 13 MS. KUCERA: We talked about that. Okay. So 14 your definition of reasonable may be different than 15 Mr. Teakell's, right? 16 VENIREPERSON TAYLOR: Uh-huh. 17 MS. KUCERA: Do you think that you can still 18 promise not to hold the State to a higher burden than 19 beyond a reasonable doubt? Can you do that? 20 VENIREPERSON TAYLOR: I think so. 21 MS. KUCERA: Is that yes? 22 VENIREPERSON TAYLOR: Yes. 23 MS. KUCERA: Yes or no only. 24 VENIREPERSON TAYLOR: Yes. 25 MS. KUCERA: All right. Mr. Teakell, can you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 stand up? We talked about this. Beyond a reasonable 2 doubt. It's different for you. Professor Tabb is the 3 epitome of practicality. His may be different than 4 yours. Can you promise not to hold the State to a higher 5 burden than beyond a reasonable doubt? 6 VENIREPERSON TEAKELL: Yes. 7 MS. KUCERA: You can. Excellent. Great job. 8 Ms. Wright, stand up again. All right. Do you think 9 that you could promise not to hold the State to a higher 10 burden than beyond a reasonable doubt? 11 VENIREPERSON WRIGHT: Yes. 12 MS. KUCERA: Okay. And you could be fair in 13 this case? 14 VENIREPERSON WRIGHT: Yes. 15 MS. KUCERA: Great. Have a seat. Ms. Hair. 16 All right. Do you understand that reasonableness is 17 different for each person? 18 VENIREPERSON HAIR: Yes. 19 MS. KUCERA: Okay. And you're not going to 20 require us to fill in the whole picture, just the same 21 standard that's beyond a reasonable doubt, and that's 22 reasonable in your mind? 23 VENIREPERSON HAIR: Yes. 24 MS. KUCERA: Have a seat. Mr. Garcia, stand up. 25 Same question. Do you think that you can -- you can CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 promise not to hold the State to a higher burden than 2 beyond a reasonable doubt in this case? You're not going 3 to require us to fill out every single detail of every 4 picture, but you're gonna hold us to the standard of 5 beyond a reasonable doubt? And reasonableness is your 6 own opinion. 7 VENIREPERSON GARCIA: The State? 8 MS. KUCERA: Well, okay. Let me say this. 9 You're not going to hold the State to a higher burden 10 than beyond a reasonable doubt? 11 VENIREPERSON GARCIA: Yes. 12 MS. KUCERA: Okay. All right. Have a seat. 13 Mr. Foster, could you please stand up. 14 VENIREPERSON FOSTER: Yes to the question you 15 asked No. 5, Mr. Garcia. 16 MS. KUCERA: Okay. All right. Just -- I know, 17 I know. Do you think that you can hold -- promise not to 18 hold the State to a higher burden than beyond a 19 reasonable doubt? 20 VENIREPERSON FOSTER: Yes. 21 MS. KUCERA: What's reasonable is different to 22 you than Mr. Garcia, than Ms. Hair, than Ms. Wright. 23 VENIREPERSON FOSTER: I promise. 24 MS. KUCERA: Okay. Mr. Billing, do you 25 understand what we're talking about when we say beyond a CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 reasonable doubt? 2 VENIREPERSON BILLING: Yes. 3 MS. KUCERA: You said it's self-explanatory; you 4 understand it. Very good. And you promise not to hold 5 the State to a higher burden than beyond a reasonable 6 doubt? 7 VENIREPERSON BILLING: Yes. 8 MS. KUCERA: Okay. And that you're not going to 9 require us to fill the whole picture, but just beyond a 10 reasonable doubt to you, with reasonableness as your own 11 definition? 12 VENIREPERSON BILLING: Yes. 13 MS. KUCERA: Have a seat. Doing great. 14 Ms. Vale, same question. Do you promise not to hold the 15 State to a higher burden than beyond a reasonable doubt? 16 VENIREPERSON VALE: (Nods head) I will. 17 MS. KUCERA: Now, I'll try to go a little bit 18 slower, but I need a confirmation. I need a yes or a no 19 from each juror. Mr. Litteken, can you promise not to 20 hold the State to a higher burden than beyond a 21 reasonable doubt? 22 VENIREPERSON LITTEKEN: Yes, ma'am. 23 MS. KUCERA: Mr. Vasquez? 24 VENIREPERSON VASQUEZ: Yes. 25 MS. KUCERA: Okay. Mr. Thompson? I'm sorry.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Mr. Thomason? 2 VENIREPERSON THOMASON: Yes. 3 MS. KUCERA: Okay. Ms. McClesky? 4 VENIREPERSON MCCLESKY: Yes. 5 MS. KUCERA: Ms. Schmidt? 6 VENIREPERSON SCHMIDT: Yes, I can. 7 MS. KUCERA: Mr. Jantz? 8 VENIREPERSON JANTZ: Yes, ma'am. 9 MS. KUCERA: Okay. Ms. Steele? 10 VENIREPERSON STEELE: Yes. 11 MS. KUCERA: Ms. McKinley? 12 VENIREPERSON MCKINLEY: Yes. 13 MS. KUCERA: And Mr. Davis? 14 VENIREPERSON DAVIS: Yes. 15 MS. KUCERA: Ms. Parsons? 16 VENIREPERSON PARSONS: Yes. 17 MS. KUCERA: And Ms. Reno? 18 VENIREPERSON TREJO: Yes. 19 MS. KUCERA: Okay. And Ms. Ripperger? 20 VENIREPERSON RIPPERGER: Yes. 21 MS. KUCERA: What about you, Ms. Logsdon? 22 VENIREPERSON LOGSDON: Yes. 23 MS. KUCERA: And Mr. Young? 24 VENIREPERSON YOUNG: Yes, ma'am. 25 MS. KUCERA: Okay. And Mr. Chavez?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON CHAVEZ: Yes. 2 MS. KUCERA: Okay. All right. 3 So one of the things we're going to talk about 4 is a lot of times in the case the defense is going to 5 assert, properly named, a defense, right. In this case, 6 the Penal Code provides a defense of self-defense, okay. 7 Now, in the case of resisting arrest, can anyone think of 8 a reason why the legislature might carve out a defense of 9 self-defense? Any reason? Let me ask it this way. 10 Mr. Foster, how long have you been an officer? 11 VENIREPERSON FOSTER: Total of 15 years. 12 MS. KUCERA: So quite a while? 13 VENIREPERSON FOSTER: Yes. 14 MS. KUCERA: Okay. In your 15 years, using your 15 own observations and your own experiences, are you aware 16 of that there are good cops and there are occasionally 17 maybe a cop that isn't the best at being a cop; is that 18 correct? 19 VENIREPERSON FOSTER: Any time you have humans 20 doing a job, there's going to be some. 21 MS. KUCERA: Okay. So is it fair to say that 22 there might be a time when an officer might potentially 23 abuse his authority? 24 VENIREPERSON FOSTER: Yeah. 25 MS. KUCERA: And it doesn't happen often, but CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 they might abuse their authority; okay? 2 VENIREPERSON FOSTER: Right. 3 MS. KUCERA: Is that fair? 4 VENIREPERSON FOSTER: Yeah, that's fair. 5 MS. KUCERA: So in resisting arrest, can you 6 think of a reason why they might allow in a limited 7 circumstance this defense of self-defense? 8 VENIREPERSON FOSTER: Yeah, if you had an 9 officer who was -- their intent was hurting or killing 10 that person or using excessive force to inflict serious 11 bodily injury or death, I think the law would allow for a 12 person to fight back in that instance. 13 MS. KUCERA: That's an excellent point. If it's 14 the officer's goal to use physical violence, you know, 15 that person might be able to defend themselves against 16 something that severe? 17 VENIREPERSON FOSTER: Yes. 18 MS. KUCERA: Is that what you're saying? 19 VENIREPERSON FOSTER: Yes. 20 MS. KUCERA: Okay. Does everyone understand 21 what Officer Foster is saying? That they could protect 22 themselves from that kind of extreme violence. All 23 right. This is the statutory definition of self-defense 24 in this type of case, in resisting arrest. "The use of 25 force to resist an arrest is justified," -- all right, CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 the statute says it's limited, but allowed in this 2 particular circumstance: "if, before the actor", who is 3 the person who is being arrested, "offers any 4 resistance." So if before the actor offers any 5 resistance -- which means, we talked about what resisting 6 arrest means, shake off a grip, twist, turn, step away 7 from the officer. Those are all types of resisting 8 arrest, right? "If before the actor offers any 9 resistance at all, the peace officer uses or attempts to 10 use what we call greater force than necessary," all 11 right, "to make an arrest." 12 So that's the first part of the definition. 13 Let's see. Mr. Vasquez, can you stand up for me? 14 VENIREPERSON VASQUEZ: Ten, Thomas Vasquez. 15 MS. KUCERA: Okay. If I were to give you this 16 scenario: A seven-year-old walks into Walgreen's, and 17 she takes -- let's see. I don't even know if they sell 18 iPods at Walgreen's, but let's pretend that they do. So 19 let's say this seven-year-old really wants an iPod and, 20 okay, and she takes an iPod and goes out of the store 21 with it. 22 And let's say Officer Foster is in the store. 23 He witnesses the seven-year-old take the iPod out of the 24 store, and he runs up to the seven-year-old when she 25 exits the store, and he uses his taser on a seven-year-

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 old girl in pig tails and a girl scout uniform, okay. 2 And he takes her to the ground because, you know what, 3 she committed an offense and that is against the law. 4 Okay? If I were to give you that scenario, would you 5 think tasing a seven-year-old would be maybe greater 6 force than necessary? 7 VENIREPERSON VASQUEZ: Yes. 8 MS. KUCERA: Okay, great. You've done great. 9 Have a seat. All right. Now, officer foster, would you 10 tase a seven-year-old if she stole an iPod? 11 VENIREPERSON FOSTER: No. 12 MS. KUCERA: Okay. But is that protocol to tase 13 a seven-year-old for stealing an iPod? 14 VENIREPERSON FOSTER: No. 15 MS. KUCERA: Okay, good. So greater force than 16 necessary, you get an idea of what that means. Can you 17 think of another example of greater force than 18 necessary? I gave you a seven-year-old taking an iPod. 19 Mr. Vasquez, I know I had you stand up a second ago, but 20 can you give another example of greater force than 21 necessary? 22 VENIREPERSON VASQUEZ: No. I mean -- 23 MS. KUCERA: Yes, Mr. Garcia. A suggestion. I 24 love it. 25 VENIREPERSON GARCIA: Multiple cops if they're CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 not resisting -- 2 MS. KUCERA: Okay. 3 VENIREPERSON GARCIA: -- putting up that much of 4 a fight. Or if he's willing to go, but then you've got 5 like five or six cops that slam down and take him down. 6 MS. KUCERA: Yes. He's not resisting at all and 7 25 cops pull up in their squad cars and start wailing on 8 this guy. Yeah, that's what we consider greater force 9 than necessary. The stipulation is if it's only before 10 the actor offers any resistance. So if he offers 11 resistance in this case, then it doesn't qualify for the 12 self-defense, and then they're allowed to use certain 13 necessary force to arrest him, right? Make sense? 14 Remember, we've got to keep the people safe; 15 we've gotta keep the cops safe; we've gotta keep the 16 defendant safe. We've gotta keep everybody involved in 17 this particular situation safe, right? 18 Okay. Now, the second part of this definition 19 is this. And it's two parts, right? He's got to meet 20 this standard and he's got to meet this standard. "When 21 and to the degree the actor reasonably believes that the 22 officers are using greater force than necessary to arrest 23 him, and he thinks it's immediately necessary to protect 24 himself. So not only can the actor not resist arrest 25 first, but he's got to be passive and, I don't know, very CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 stoic, and he's got to reasonably believe that force is 2 immediately necessary to protect himself against the 3 greater force than necessary the officer is using. 4 To use the seven-year-old, for example. If he 5 pulls out his weapon and is aiming to tase her, she 6 hasn't resisted arrest yet; she's only walked out of the 7 store. She's got to reasonably believe that he's going 8 to use the taser on her and that he's using greater force 9 than necessary, and then she can act in self-defense, 10 right? Everyone understand? Okay. Ms. Hair, you're 11 nodding. You understand? 12 VENIREPERSON HAIR: Uh-huh. 13 MS. KUCERA: Ms. -- I can do this. Ms. Wright, 14 you understand? 15 VENIREPERSON WRIGHT: Yes. 16 MS. KUCERA: Mr. Teakell? 17 VENIREPERSON TEAKELL: Yes. 18 MS. KUCERA: Make sense? Mr. Teakell, you 19 understand that's a limited circumstance, right? They 20 can't have resisted first, and they have to reasonably 21 believe that the officers are using greater force than 22 necessary and that they need to use force in order to 23 protect themselves from the greater force than necessary 24 the officers are using. Everyone understand? Limited 25 circumstance, right? Ms. Parsons?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON PARSONS: Let me see if I'm 2 understanding. 3 MS. KUCERA: Okay. 4 VENIREPERSON PARSONS: So to reasonably believe 5 this, 6 MS. KUCERA: Uh-huh. 7 VENIREPERSON PARSONS: -- the person that 8 they're going to arrest, in their mind, they have to be 9 seeing something in the demeanor of the police officers 10 or something that they can verifiably say, They were 11 going to do this or that, and that's why I resisted? 12 MS. KUCERA: Right. Yes. To answer your 13 question, you are correct and I'm going to help you 14 through that, all right. So the first part is that they 15 can't have resisted at all before the actor -- it has to 16 happen before the actor offers any resistance, okay. And 17 the actor has to believe that the officers are using 18 greater force than necessary to make the arrest. Okay? 19 So they have to meet those two things. And the second 20 part of the definition -- and this is kind of where it 21 gets confusing -- the person who is being arrested has to 22 reasonably believe that the force is immediately 23 necessary -- he has to believe it right then -- to 24 protect himself against the police officer's use of 25 greater force than necessary.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON PARSONS: Right. That's what I'm 2 saying. 3 MS. KUCERA: Uh-huh. 4 VENIREPERSON PARSONS: To think that he was 5 reasonable in doing that, who would purposely do that to 6 make their situation worse? He would have to, in my 7 mind, be seeing something that alerts him to, hey, this 8 is not right. I do need to act. 9 MS. KUCERA: Absolutely right, yes. There would 10 need to be some reason that he thought he needed to use 11 that force. It would be, like I was saying, immediately 12 necessary. Okay? Great. You've done a great job. 13 That's a great question. Does everyone else understand? 14 Does everyone else agree with Ms. Parsons' understanding 15 of what we talked about, about this wonderful example of 16 self-defense? Great. 17 VENIREPERSON TAYLOR: Yes. 18 MS. KUCERA: Great. Okay. We're almost done. 19 All right. How do you evaluate truthfulness? Does 20 anyone have children? I haven't heard from you yet. You 21 are Ms. Steele. Ms. Steele, how many children do you 22 have? 23 VENIREPERSON STEELE: I have five. 24 MS. KUCERA: Oh my gosh. This is good. This is 25 a great question for you. All right. so you've got five CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 children. How old are they? 2 VENIREPERSON STEELE: Two stepchildren -- 3 MS. KUCERA: Okay. 4 VENIREPERSON STEELE: -- but 16, 15, two 5 12-year-olds and a two-year-old. 6 MS. KUCERA: Oh my goodness. That is awesome. 7 Have your children ever lied to you before? 8 VENIREPERSON STEELE: Yes. 9 MS. KUCERA: Okay. How do you know they're 10 lying? 11 VENIREPERSON STEELE: Sometimes it's very 12 obvious that they're lying, and sometimes I know by their 13 demeanor that they're not being truthful with me. 14 MS. KUCERA: Okay. Fair enough. What in their 15 demeanor suggests to you that they might be lying? 16 VENIREPERSON STEELE: Well, my oldest son 17 doesn't look me in the eye, and my 15-year-old daughter 18 gets real fidgety. 19 MS. KUCERA: Okay. She shifts her weight, 20 doesn't look you in the eye. 21 VENIREPERSON STEELE: Yeas. 22 MS. KUCERA: What else? 23 VENIREPERSON STEELE: And my middle daughter 24 gets very -- her voice gets kind of shaky. I can tell in 25 the tone of her voice she's not really being honest with CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 me. 2 MS. KUCERA: Very good. Those are all things to 3 think about that someone might want, right? Okay. 4 Mr. -- raise your hand if you have children again. 5 Ms. Taylor, all right. Ms. Taylor, how many children do 6 you have? 7 VENIREPERSON TAYLOR: Two. 8 MS. KUCERA: Okay. Did you agree with what 9 Ms. Steele said about how you tell someone's lying? 10 VENIREPERSON TAYLOR: Yes. 11 MS. KUCERA: Okay. Would you have anything to 12 add to that? Are there some other things you can look 13 for? 14 VENIREPERSON TAYLOR: Well, like if you're 15 questioning one of them about something and they get real 16 defensive with you, like, you know, kind of angry and 17 defensive and they're -- one of mine, I have trouble with 18 that. 19 MS. KUCERA: Okay. Very good. So has anyone 20 seen the YouTube video -- Ms. Hair, you may be my only 21 hope for this, but it's a mom who's questioning her child 22 about whether or not he ate a cupcake, and he's got 23 sprinkles all over his face and it's all on his ears and 24 eyes, and he is, I mean, standing there and he's like, "I 25 did not eat a cupcake; I did not." I mean she is like --

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266

1 you can -- the camera is shaking she's laughing so hard 2 because he is just adamant about not eating a cupcake, 3 right? But the evidence is there all over his face. I 4 mean he ate the cupcake, all right. 5 So even though they might be saying something, 6 are there other things you can interpret or reasons to 7 know that they're lying? You can make inferences, right? 8 He's got sprinkles all over his face; there's a cupcake 9 that was sitting on the counter; it's missing and all 10 over his face. He ate it, okay. 11 Do you guys have pets? Okay. Very good. 12 Ms. Vale, what kind of animals do you have? 13 VENIREPERSON VALE: Eileen Vale, No. 8. I have 14 three dogs and a cat. 15 MS. KUCERA: Three dogs and a cat. Okay. Have 16 your dogs ever misbehaved before? 17 VENIREPERSON VALE: Yes. 18 MS. KUCERA: Okay. Did you know that they 19 misbehaved? 20 VENIREPERSON VALE: Yes. 21 MS. KUCERA: Okay. what did they do? 22 VENIREPERSON VALE: They ripped up a couch 23 cushion. 24 MS. KUCERA: Okay. So you came home one day and 25 your couch cushion is in shreds, right?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON VALE: Yes. 2 MS. KUCERA: Did you rip the couch cushion? 3 VENIREPERSON VALE: No. 4 MS. KUCERA: Okay. How did you know the dogs 5 did? 6 VENIREPERSON VALE: Well, they had it in their 7 mouths and their stool. 8 MS. KUCERA: Yeah, evidence all over the place. 9 Yeah, I have a dog. He eats stuff off the counter all 10 the time. I can't get him to stop. Yeah. I mean, how 11 do I know that he ate the loaf of bread? It's all over 12 the place, right. I mean you can make an inference. You 13 may not have seen your dogs eat the couch, but you know 14 that they ate it, right? 15 VENIREPERSON VALE: Right. 16 MS. KUCERA: Okay. Very good. This is that 17 same type of thing we're going to talk about today. 18 Witnesses are going to tell you about things that 19 happened, and we ask you as jurors to evaluate each 20 witness and their credibility. How do you know they're 21 telling the truth? Are they telling the truth? What 22 sort of things are you going to look for to determine 23 whether or not they're telling the truth? Ms. Steele 24 suggested they're shifty, maybe not answering the 25 question correctly, dodging it.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Ms. Taylor talked about how they're getting 2 really defensive. Okay. So you guys as jurors are going 3 to have to evaluate a witness's credibility. Does 4 everybody understand that that's your role? Okay? So as 5 a juror, in order to be a juror in this case, you have to 6 use what we call the same standards when evaluating the 7 truthfulness of a witness. Okay? I guess to explain 8 that, you can't -- you can't automatically start one 9 witness off higher than another witness, okay. You have 10 to wait until that witness gets on the stand and 11 testifies and you observe their demeanor, what they're 12 saying, how they're talking, how they're acting, what 13 they're talking about. You have to evaluate what they're 14 talking about. You have to weigh their credibility when 15 they get on the stand. 16 In other words, you can't hear that there's 17 going to be a witness and automatically give them a bunch 18 of points just because they're going to be a witness. So 19 does everybody understand? Okay. Ms. Taylor, you can, 20 as a witness -- as a juror, you can accept all of what 21 the witness says; you can accept some of what the witness 22 says -- I think he was telling the truth here, may not 23 have been telling the truth here -- or none of what the 24 witness says. I don't think he's credible at all, right. 25 He was shifting his weight; he wasn't telling the truth, CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 those sorts of things. He was defensive. Those are the 2 sorts of things we're going to ask you to do as jurors. 3 So can you evaluate, as jurors, police officers 4 as witnesses and wait until that particular police 5 officer gets on the stand before you evaluate his 6 credibility? Okay. Now, as a police officer, you have 7 to evaluate their credibility the same way you evaluate 8 other witnesses' credibility. We talked about that, 9 right? You can't, because they're a police officer, 10 automatically give them -- you know, automatically assume 11 they're telling the truth or automatically assume they're 12 not telling the truth. It has to be the same standard. 13 You have to wait until they get on the stand, okay. 14 You can look at their training and experience 15 when evaluating their credibility, all right. So when we 16 have an expert come testify in court, generally we have 17 to qualify them as an expert. So if it's a doctor, 18 they've got to have a medical degree. And they've got to 19 be sort of familiar with the particular reason that we 20 need them to testify. 21 So my best friend's a doctor, okay, and she 22 deals with infectious disease. So it's kind of weird, 23 but she really likes diseases like the ebola virus and 24 things and sort of weird off the wall diseases that you 25 deal with in other countries. So if we had a case -- I CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 don't know why we would have a case like this -- but she 2 could be an expert, right. We could call her to testify 3 about certain things that she knows about infectious 4 diseases, right? So you can, in that particular 5 instance, look at her credibility, right? She's an M.D.; 6 she's a resident. You know, she's been through all the 7 training that she needs to be to become a doctor. So you 8 can say, yeah, she's a doctor and I can evaluate her 9 truthfulness based on her being a doctor. Everyone 10 understand what I'm saying? 11 All right. So a police officer, I'm going to 12 need you guys to tell me that you can look at the 13 training and experience, but you're not going to 14 automatically start them out higher or automatically 15 start them out lower because they're a police officer. 16 You're gonna wait until they get on the stand and hear 17 what they have to say and then evaluate their 18 credibility. Ms. Taylor, does that sound like something 19 you can do? 20 VENIREPERSON TAYLOR: Yes. 21 MS. KUCERA: Okay. What about you, 22 Mr. Teakell? Can you do that? 23 VENIREPERSON TEAKELL: Yes. 24 MS. KUCERA: What about Ms. Wright? 25 VENIREPERSON WRIGHT: Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Okay. Ms. Hair? 2 VENIREPERSON HAIR: Yes. 3 MS. KUCERA: Mr. Garcia? 4 VENIREPERSON GARCIA: Yes. 5 MS. KUCERA: Mr. Foster? 6 VENIREPERSON FOSTER: I'm kind of struggling 7 with the automatically give more, because I deal with 8 them every day. They're held to a higher standard, and 9 I'm going to assume they know more. 10 MS. KUCERA: Okay. 11 VENIREPERSON FOSTER: -- and take more into 12 account when they -- like they could walk into this room 13 and observe the scene, and they're going to take more 14 into account when they're processing information than the 15 average witness would. 16 MS. KUCERA: Right. So -- 17 VENIREPERSON FOSTER: So that's probably the 18 part that I would -- 19 MS. KUCERA: Fair enough. So I guess what this 20 is saying is that you recognize as a police officer that 21 you've had an extensive amount of training and background 22 in observation, you know, crime scene investigation, 23 evaluating people. 24 VENIREPERSON FOSTER: That would probably fall 25 under the experience.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Yeah. 2 VENIREPERSON FOSTER: You're talking about a 3 bias towards them just because they have a uniform? 4 MS. KUCERA: Exactly. 5 VENIREPERSON FOSTER: I'm not going to give them 6 more or less credit for that, yes. 7 MS. KUCERA: Exactly. Does everyone understand 8 what the officer is saying? He's saying, listen, I'm a 9 police officer. I know the training they go through. I 10 know certain things that they have to do to become a 11 police officer. But he says -- and I'm going to ask 12 you -- can you set aside not necessarily your knowledge 13 about a police officer, but can you wait until that 14 police officer gets on the stand and testifies before you 15 make an evaluation as to whether or not he's telling the 16 truth? 17 VENIREPERSON FOSTER: Yes. 18 MS. KUCERA: Yes. Great. Mr. Billing, what 19 about you? 20 VENIREPERSON BILLING: Yes. 21 MS. KUCERA: And Ms. Vale? 22 VENIREPERSON VALE: Yes. 23 MS. KUCERA: What about Ms. McKinley? Stand up 24 for a second. So you understood what Officer Foster was 25 saying?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON MCKINLEY: Yes. 2 MS. KUCERA: Okay. And you think that even 3 though he's a police officer, that if the police officer 4 testifies, that you can wait until he gets on the stand 5 before you evaluate his credibility? 6 VENIREPERSON MCKINLEY: Yes. 7 MS. KUCERA: Okay. And, Ms. Steele, same 8 question. 9 VENIREPERSON STEELE: Yes. 10 MS. KUCERA: What about Mr. Jantz? 11 VENIREPERSON JANTZ: Yes. 12 MS. KUCERA: What about Ms. Schmidt? 13 VENIREPERSON SCHMIDT: Yes. 14 MS. KUCERA: Okay. And Ms. McClesky? 15 VENIREPERSON MCCLESKY: Yes. 16 MS. KUCERA: Mr. Thomason? 17 VENIREPERSON THOMASON: Yes. 18 MS. KUCERA: Mr. Vasquez? 19 VENIREPERSON VASQUEZ: Yes. 20 MS. KUCERA: Mr. Litteken? 21 VENIREPERSON LITTEKEN: Yes. 22 MS. KUCERA: All right. Mr. Davis? 23 VENIREPERSON DAVIS: Yes. 24 MS. KUCERA: Ms. Parsons? 25 VENIREPERSON PARSONS: Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: Okay. Ms. Trejo? 2 VENIREPERSON TREJO: Yes. 3 MS. KUCERA: Ms. Ripperger? 4 VENIREPERSON RIPPERGER: Yes. 5 MS. KUCERA: What about you, Ms. Logsdon? 6 VENIREPERSON LOGSDON: Yes. 7 MS. KUCERA: Mr. Young? 8 VENIREPERSON YOUNG: Yes. 9 MS. KUCERA: And Mr. Chavez? 10 VENIREPERSON CHAVEZ: Yes. 11 MS. KUCERA: Okay. All right. The last thing 12 we're gonna talk about -- actually, let me ask a question 13 really quick. Had anyone had a bad experience here with 14 a police officer before? Anyone ever had a bad 15 experience? You or someone you know has had a bad 16 experience? Mr. Jantz, stand up for me just a second. 17 What was the experience? 18 VENIREPERSON JANTZ: Family disturbance. 19 MS. KUCERA: Okay. And it was just because you 20 didn't appreciate what the police officers did in that 21 case or -- 22 VENIREPERSON JANTZ: Well, at the time -- you 23 told me to be honest here, right? 24 MS. KUCERA: Uh-huh. 25 VENIREPERSON JANTZ: At the time when I was CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 there, they just took one side of it all. 2 MS. KUCERA: Okay. Do you think because of that 3 experience you might not be able to be fair in this case 4 and put aside what happened there and evaluate these 5 witnesses just based on what they testify to in this 6 particular case? 7 VENIREPERSON JANTZ: No, I wouldn't have a 8 problem with that at all. 9 MS. KUCERA: Okay. So you're saying even though 10 you've had a bad experience, you could be a fair juror in 11 this case? In other words, you could evaluate what all 12 the witnesses say and evaluate them for their credibility 13 and what they say on the stand? 14 VENIREPERSON JANTZ: Yes, ma'am. 15 MS. KUCERA: Okay. All right. Last thing we're 16 going to talk about is the defendant's constitutional 17 rights. The Fifth Amendment says, "No person shall be 18 compelled to be a witness against himself." Mr. Billing, 19 that means that the defendant in a case does not have to 20 get on the stand and testify, all right? If the 21 defendant in this -- you know, we don't have the right to 22 compel somebody to testify against themselves, right? 23 That you're allowed under the Fifth Amendment the 24 constitutional right that you don't have to testify. 25 Now, Ms. Taylor, do you think that you could, if CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 the defendant chooses not to testify, that you could -- 2 and the judge instructs you that you cannot because he 3 didn't testify, hold that against -- I'm sorry. If the 4 judge instructs you that if he didn't testify, you cannot 5 hold that against him, if the judge makes that 6 instruction, do you think you could follow what the judge 7 tells you to do? 8 VENIREPERSON TAYLOR: Yes. 9 MS. KUCERA: Okay. What about you, Mr. Teakell? 10 VENIREPERSON TEAKELL: Yes. 11 MS. KUCERA: Ms. Wright? 12 VENIREPERSON WRIGHT: Yes. 13 MS. KUCERA: Ms. Hair? 14 VENIREPERSON HAIR: Yes. 15 MS. KUCERA: Mr. Garcia? 16 VENIREPERSON GARCIA: Yes. 17 MS. KUCERA: Mr. Foster? 18 VENIREPERSON FOSTER: Yes. 19 MS. KUCERA: Mr. Billing? 20 VENIREPERSON BILLING: Yes. 21 MS. KUCERA: Okay. Mr. Vale? 22 VENIREPERSON VALE: Yes. 23 MS. KUCERA: Mr. Jantz? 24 VENIREPERSON JANTZ: Yes. 25 MS. KUCERA: Ms. Schmidt?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON SCHMIDT: Yes. 2 MS. KUCERA: Ms. McClesky? 3 VENIREPERSON MCCLESKY: Yes. 4 MS. KUCERA: Thomason? 5 VENIREPERSON THOMASON: Yes. 6 MS. KUCERA: Vasquez? 7 VENIREPERSON VASQUEZ: Yes. 8 MS. KUCERA: And Mr. Litteken? 9 VENIREPERSON LITTEKEN: Yes, ma'am. 10 MS. KUCERA: Okay. Chavez? 11 VENIREPERSON CHAVEZ: Yes. 12 MS. KUCERA: Mr. Young? 13 VENIREPERSON YOUNG: Yes. 14 MS. KUCERA: Ms. Logsdon? 15 VENIREPERSON LOGSDON: Yes. 16 MS. KUCERA: Ms. Ripperger? 17 VENIREPERSON RIPPERGER: Yes. 18 MS. KUCERA: Ms. Trejo? 19 VENIREPERSON TREJO: Yes. 20 MS. KUCERA: What about you, Ms. Parsons? 21 VENIREPERSON PARSONS: I could, but I'd rather 22 hear what he has to say. 23 MS. KUCERA: Okay. But even if he doesn't, you 24 won't hold it against him? 25 VENIREPERSON PARSONS: No.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. KUCERA: And you, Mr. Davis? 2 VENIREPERSON DAVIS: Yes. 3 MS. KUCERA: Okay. Well, that is all I have to 4 talk to you about. Do you guys have any questions for 5 me? Okay. You guys have done so well. Thank you so 6 much. I appreciate it. Oh, I'm sorry. Really quickly. 7 Does anyone know anyone that is here today? Anyone know 8 the judge? I know he said he knew a few of you. Raise 9 your hand if you know the judge. Okay. Mr. Vasquez and 10 Ms. Ripperger, do you think your knowledge of the judge 11 would cause you to not be fair in this case? Do you 12 think even though you know the judge, you could set aside 13 your knowledge of him and move forward and be fair in 14 this case? 15 VENIREPERSON VASQUEZ: Yes. 16 VENIREPERSON RIPPERGER: Yes. 17 MS. KUCERA: What about -- anyone know the 18 officers? Does anyone know any people listed on this 19 board? Officer Vasquez? 20 VENIREPERSON FOSTER: Oh, yes. 21 MS. KUCERA: Officer Foster, okay. Beesinger, 22 Lee and Iper? Ms. Wright, which one do you know? 23 VENIREPERSON WRIGHT: Mr. Iper. 24 MS. KUCERA: Okay. Do you think that even 25 though you know Mr. Iper in this case that you could set CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 aside that and be a fair juror in this case? 2 VENIREPERSON WRIGHT: Yes. 3 MS. KUCERA: Okay. Mr. Teakell, you raised your 4 hand. 5 VENIREPERSON TEAKELL: I was a firefighter. I'm 6 a retired firefighter. I think I know all of them. 7 MS. KUCERA: Okay. Even though you're a retired 8 firefighter and you sort of have some knowledge of them, 9 do you think you could set that aside and evaluate this 10 case to you as it is today? 11 VENIREPERSON TEAKELL: Sure. 12 MS. KUCERA: Okay. Anyone else? 13 VENIREPERSON STEELE: This gentleman right 14 here. 15 MS. KUCERA: Mr. Cavinder? 16 VENIREPERSON STEELE: I don't know him 17 personally, but I know of him. 18 MS. KUCERA: Okay. Do you think that your 19 knowledge of Mr. Cavinder would prevent you from being a 20 fair and impartial juror in this case? 21 VENIREPERSON STEELE: No. 22 MS. KUCERA: Anyone else? 23 VENIREPERSON PARSONS: I've known Charlie Iper 24 since he was a little boy. 25 MS. KUCERA: Okay. Do you think even though you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 know Mr. Iper, you could be a fair and impartial juror in 2 this case? 3 VENIREPERSON PARSONS: Yes. 4 MS. KUCERA: Anyone else? All right. Now, I'm 5 done. Thank you so much. 6 THE COURT: All right. Let's go ahead and I 7 think what I need to do is let's go ahead and take a 8 little bit of an early lunch. If you could be back at 9 11:45 -- excuse me, 12:45. Sorry. Be back at 12:45 and 10 we'll get going right at that time with the defense voir 11 dire. And, also, that might help you find a parking 12 spot, too because I know it's hard to park around here, 13 but if you get back before one, you usually have better 14 luck. So be back at 12:45. Yes, Karen. 15 THE BAILIFF: Back in the same order. 16 THE COURT: Yes. I apologize. See, I told you 17 she keeps me straight. If you will, when you come back 18 in, just wait in the hall, assemble in the hall. We'll 19 call you in just like we did. And come back in and sit 20 in the same order. You can see how that's important now 21 to keep track of everybody. All right. Be back at 22 12:45. Thank you. 23 (Jury panel exits courtroom) 24 (Lunch recess taken) 25 (Open court, defendant and jury panel present)

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: Y'all be seated, please. I 2 apologize for that. We are technologically challenged 3 here in Wichita County. Actually, there was a proposal 4 that went through the commissioner's court to update all 5 the courts on technology. We're still operating in 6 about, by my estimation, somewhere in the early nineties. 7 So with that comes some problems every once in a while. 8 I apologize for the delay, but we'll be moving forward 9 with Mr. Briley's voir dire. Mr. Briley? 10 MR. BRILEY: Thank you, Your Honor. 11 JURY VOIR DIRE EXAMINATION 12 BY MR. BRILEY: 13 Hello, everybody. Thank you for your time 14 today. Good afternoon. Again, my name is Mark Briley. 15 I'm happy to be here with Mr. Byrias Roberson. I'm also 16 here with Ms. Kristen Howcroft who has been trying to 17 help me throughout the trial. I went to Midwestern State 18 for college. I went on down to San Antonio to St. Mary's 19 for law school. For about a year I worked in Abilene 20 doing family law and criminal defense and then I came 21 back here and married my wife Jennifer and have been 22 doing criminal defense here. Again, I'm happy to be here 23 to talk to you about Byrias' defense. 24 There's about four or five topics that I have to 25 talk with you about. I think the State covered quite a CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 bit, so this should be a little bit shorter. I did have 2 a Power Point prepared. I apologize. A few things are 3 hard, but there's probably only two things that might be 4 a little bit difficult. I'll write it on the board. 5 The first topic that I want to talk to you about 6 are police interactions. The courts have made law or 7 categorized three different types of police interactions. 8 The first one would be a voluntary encounter. That might 9 be something where an officer comes to you on the street 10 and maybe wants to ask you a few questions about 11 something you may or may not have seen, maybe they give 12 you a call or something like that. That would be a 13 voluntary encounter. The citizen would be free to walk 14 away at any time. 15 The other two would be seizures and the police 16 officers basically tell them, You have to stay here, or 17 they force them to stay there, something like that. 18 The first one would be an investigative 19 detention. The most common example would be a police 20 officer coming behind you, turning on their lights and 21 pulling you over. And maybe they think that you're 22 committing a crime or they're there to give you a traffic 23 ticket, but they tell you with a show of authority that 24 you need to stop. They have some kind of reason to do 25 so. But it would be a brief amount of time. They're CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 just looking to investigate something. 2 The third type of police interaction would be an 3 arrest. This would also be something where the police 4 display official authority. You know, they force you to 5 stop or they take you into custody. 6 My first question to you all is about your 7 experiences with police interactions. So, Ms. Taylor, 8 I'll just kind of start with you since you're No. 1. 9 VENIREPERSON TAYLOR: Okay. Want me to stand? 10 MR. BRILEY: Have you had a lot of police 11 interactions in your life? 12 VENIREPERSON TAYLOR: No, I have policemen in my 13 family, but I don't have -- just normal stops with your 14 car or something. 15 MR. BRILEY: Okay. 16 VENIREPERSON TAYLOR: Inspection sticker or 17 maybe speeding once, stuff like that. 18 MR. BRILEY: So other than your family, just 19 speeding tickets, things like that? 20 VENIREPERSON TAYLOR: Uh-huh. I have two sons, 21 you know, and they've gotten tickets before, so you know. 22 MR. BRILEY: Okay. When the police approached 23 you when they were going to pull you over, what did they 24 do to tell you to pull over, I suppose? 25 VENIREPERSON TAYLOR: Well, usually, they do CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 their lights, you know. They come up behind you, or you 2 need them and they turn around and they come up behind 3 you and make you pull over. 4 MR. BRILEY: Okay. thank you. You mentioned 5 that you had some family members who are police officers? 6 VENIREPERSON TAYLOR: Yeah. My nephew is a 7 current Wichita Falls Policeman, and my brother-in-law 8 used to be with the sheriff's department a couple years 9 ago. 10 MR. BRILEY: Okay. Thank you very much. 11 VENIREPERSON TAYLOR: Uh-huh. 12 MR. BRILEY: Mr. Teakell, what about you? Do 13 you have a lot of experiences with police interactions? 14 VENIREPERSON TEAKELL: Well, I was a fireman for 15 28 years and, you know, I'd see policemen here or there, 16 call policemen over here or there. I know a lot of 17 policemen. I've had a lot of dealings with policemen at 18 fires, car wrecks. 19 MR. BRILEY: How about as a citizen? When 20 you're off duty, has a policemen ever approached you to 21 ask you some questions or -- 22 VENIREPERSON TEAKELL: I got pulled over one 23 time, but I didn't get a ticket. 24 MR. BRILEY: Okay. And, again, they just put 25 their lights on and stopped you and that was about it?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON TEAKELL: Yeah, that was about it. 2 MR. BRILEY: Thank you very much. Ms. Wright, 3 how about you? 4 VENIREPERSON WRIGHT: Same. Speeding tickets, 5 same thing. Lights flashed, pulled over. That's it. 6 MR. BRILEY: Thank you very much. Ms. Hair, 7 what about you? 8 VENIREPERSON HAIR: No. I mean I've been pulled 9 over for my inspection sticker, but never had a ticket 10 for speeding or anything like that. 11 MR. BRILEY: Same thing. They pulled you over 12 with their lights and came up and talked to you? 13 VENIREPERSON HAIR: Gave me a warning. 14 MR. BRILEY: All right. Thank you. 15 Mr. Garcia? 16 VENIREPERSON GARCIA: Speeding, taillight out. 17 Usually, a warning. Not a ticket yet. 18 MR. BRILEY: Same thing. They put their lights 19 on and let you know to stop? 20 VENIREPERSON GARCIA: Uh-huh. 21 MR. BRILEY: Sergeant Foster, I know you're a 22 police officer, so you've had many interactions with 23 police officers. 24 VENIREPERSON FOSTER: Yes. 25 MR. BRILEY: But as a citizen, perhaps when you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 were off duty or maybe it was before you were a police 2 officer, did you have any police officers pull you over? 3 VENIREPERSON FOSTER: Oh, yeah, when I was 4 younger, I had a lot of tickets. I served my time, did 5 my time. I've never been to jail for anything, but, yes, 6 as far as just getting stopped for speeding or traffic 7 violations. 8 MR. BRILEY: And in your role as a police 9 officer, how often do you perhaps follow up with a 10 witness, maybe somebody investigating crimes? 11 VENIREPERSON FOSTER: Oh, yeah. 12 MR. BRILEY: And how do you contact witnesses? 13 VENIREPERSON FOSTER: My stuff, since I'm on 14 patrol, is pretty immediate right there at the scene 15 talking to people. Usually, the way our stuff works, we 16 write up that stuff and a detective may or may not 17 contact the witnesses. It depends on the case. 18 MR. BRILEY: Okay. Are most of the people that 19 you encounter in those stops, would you say that they are 20 detained? 21 VENIREPERSON FOSTER: You're talking about a 22 traffic stop? 23 MR. BRILEY: Well, yeah. I mean any kind of. 24 VENIREPERSON: Traffic stop, yes. 25 MR. BRILEY: So most of the people -- I guess CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 most of the citizens that you deal with, would you say 2 that they're detained? 3 VENIREPERSON FOSTER: If it's not a consensual 4 stop, like you said, then they're detained. 5 MR. BRILEY: Can you tell us about a consensual 6 stop? 7 VENIREPERSON FOSTER: You're in a convenience 8 store and a cop walks up to you and says, Do you mind if 9 I talk to you for a second? I may not have anything to 10 really connect you to anything at that point, but I may 11 recognize you, may want to just talk to you, maybe 12 develop something like maybe you -- maybe your behavior 13 looked like you're casing the store or something. I'm 14 still trying to formulate if I have enough to detain you 15 or if I even need to be concerned with you. And with 16 consensual, you know, if they tell me to get bent and 17 turn around and walk off, that's what I do. I turn 18 around and walk off. At that point, it's consensual and 19 they have the right to break it. 20 MR. BRILEY: Does that happen often or is it 21 rare? 22 VENIREPERSON FOSTER: Where I'm working now, 23 there's not much enforcement, but when I was an officer, 24 there would be times, yeah. But the majority of the time 25 most citizens will talk to you, you know, just out of CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 respect or -- but, yeah, it happens. 2 MR. BRILEY: Thank you very much. Mr. Billing, 3 how about you? 4 VENIREPERSON BILLING: Most people get pulled 5 over for speeding. I've had family members that are in 6 law enforcement. My neighbor across the street is on the 7 police force in Wichita Falls. 8 MR. BRILEY: What kind of family members? 9 VENIREPERSON BILLING: My nephew is highway 10 patrol in Minnesota. 11 THE REPORTER: I need you to speak up a little 12 bit. I'm having trouble hearing you. 13 VENIREPERSON BILLING: Highway patrol in 14 Minnesota. 15 MR. BRILEY: But most of your interactions as a 16 citizen with police officers are traffic stops, something 17 like that? 18 VENIREPERSON BILLING: Yeah. Daily or weekly 19 interactions with my neighbor who's a police officer. We 20 don't discuss any type of police activity. 21 MR. BRILEY: Okay. Thank you very much. 22 Ms. Vale? 23 VENIREPERSON VALE: Yes. As a citizen, just the 24 last speeding ticket I got was in 1998 going to school. 25 Twelve years ago I did go through the game warden CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 academy. A lot of my family members are in law 2 enforcement, but that's -- I have one in Edinburg, 3 working the border. So that's my experience. 4 MR. BRILEY: Are your family members your 5 siblings? Cousins? 6 VENIREPERSON VALE: Cousins. 7 MR. BRILEY: Ms. McKinley? 8 VENIREPERSON MCKINLEY: Just the same usual, 9 nothing out of the ordinary. Speeding. 10 MR. BRILEY: No knocks on your door to see if 11 you were a witness to something? 12 VENIREPERSON MCKINLEY: No. 13 MR. BRILEY: Okay. Thank you. And, Ms. Steele, 14 how about you? 15 VENIREPERSON STEELE: I've been pulled over for 16 speeding and things like that and gotten warnings and 17 also tickets. I work in an environment where I work in 18 an ER environment so there are police officers and 19 detectives and things like that that come in and out of 20 our emergency room department. 21 MR. BRILEY: Do they ever ask you questions 22 about an investigation that they have? 23 VENIREPERSON STEELE: Well, it depends. Well, I 24 don't know. 25 MR. BRILEY: Where you might be a witness? You CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 saw somebody that came in? 2 VENIREPERSON STEELE: The only time that would 3 ever would be is if I was a nurse for that patient and 4 maybe something was said, but I've never encountered 5 that. 6 MR. BRILEY: Okay. Thank you. Mr. Jantz, have 7 you had a lot of dealings with police officers? 8 VENIREPERSON JANTZ: Not a lot. One bad 9 experience, and that was it. 10 MR. BRILEY: Okay. 11 VENIREPERSON JANTZ: My father was a police 12 officer for many years, federal officer in Wisconsin. 13 MR. BRILEY: Ms. Schmidt? 14 VENIREPERSON SCHMIDT: I just can't remember the 15 last encounter. Just regular warnings for speeding. I 16 have a nephew that's a police officer. 17 MR. BRILEY: Okay. Thank you. And 18 Ms. McClesky? 19 VENIREPERSON MCCLESKY: Speeding. 20 MR. BRILEY: Okay. 21 VENIREPERSON MCCLESKY: Seems to be the norm, 22 but, yeah, that's about it. 23 MR. BRILEY: All right. Thank you. 24 Mr. Thomason? 25 VENIREPERSON THOMASON: Just the same as CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 everybody else. Just a couple speeding tickets. 2 MR. BRILEY: Okay. And Mr. Vasquez? 3 VENIREPERSON VASQUEZ: Yeah. It's been some 30 4 years. Speeding ticket, normal. I did have them come in 5 my house one time in the middle of the night through the 6 back door. But it wasn't a problem, you know. 7 MR. BRILEY: Can you tell us more about that 8 experience? 9 VENIREPERSON VASQUEZ: Well, I think it was a 10 family disturbance. My niece and her mother, they were 11 having problems, and they thought my niece was staying 12 with us, so they were checking into it. 13 MR. BRILEY: Okay. Did they -- I'm sorry. Go 14 ahead. 15 VENIREPERSON VASQUEZ: Everyone was asleep, woke 16 up by the dog. They came in through the back door, a 17 couple policemen. 18 MR. BRILEY: Okay. 19 VENIREPERSON VASQUEZ: But, you know, we talked 20 to them and everything was all right. 21 MR. BRILEY: So they just -- they knocked on 22 your back door? 23 VENIREPERSON VASQUEZ: No. Well, we were asleep 24 so, you know, they just came in, which I don't think 25 they're supposed to do, but that's what happened.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: I suppose they asked you some 2 questions? 3 VENIREPERSON VASQUEZ: Yeah. 4 MR. BRILEY: Did you feel free to leave or to 5 turn them away? 6 VENIREPERSON VASQUEZ: Yeah. I mean we just 7 told the truth, that we didn't know what was going on, 8 you know. 9 MR. BRILEY: Okay. Was that a positive or 10 negative experience for you? 11 VENIREPERSON VASQUEZ: It's -- well, you never 12 want to be awoken in the middle of the night and see a 13 couple policemen, you know, in the home with your dog 14 fixing to, you know, attack them or whatever. So it was 15 kind of negative, I guess, because they had their guns 16 for the dog, you know, because he's a big dog. But, you 17 know, other than that. 18 MR. BRILEY: Okay. Thank you very much. And 19 Mr. Litteken? 20 VENIREPERSON LITTEKEN: I've been pulled over 21 for illegal left hand turn in front of the courthouse. 22 And usually when I get pulled over, I'll put my keys on 23 top of the dashboard and I'll get my driver's license out 24 and my registration, letting that officer know, you know, 25 I ain't going nowhere.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: And same thing? I guess they used 2 their sirens, flashing lights to pull you over? 3 VENIREPERSON LITTEKEN: Yeah, because I'm half 4 deaf. They've gotta (makes siren noise). 5 MR. BRILEY: Okay. Thank you very much. I'm 6 sorry if it feels like I'm prying about these type of 7 things. I'm guess I'm not trying to pry too much. That 8 might be a sensitive issue, how many times you've been 9 pulled over by the police, things like that. Anybody 10 here -- I know that I didn't reach the back row, but is 11 there anybody here that's had what they would call a 12 voluntary encounter that they haven't spoken about so 13 far, where a police officer approached them, wanted to 14 ask them questions? Not just a, Hey, how are you doing, 15 but, you know, I have an investigation; I would like to 16 talk with you, but you're not necessarily detained or 17 under arrest. Anybody had that type of experience? 18 How about has anybody been a victim of a crime? 19 I see a couple nods. Sergeant Foster? 20 VENIREPERSON FOSTER: Oh, I was just laughing 21 because it seems like that most everybody is at some 22 point a victim of a crime if you live on this planet long 23 enough. 24 MR. BRILEY: Anybody's cars been broken into, 25 anything like that? Ms. McKinley, can you tell us about CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 that experience. 2 VENIREPERSON MCKINLEY: I was at work in the 3 middle of the day, came back from lunch. I kept my purse 4 in the car, which is stupid, I know, but tons of people 5 there, you know, in and out. Within an hour, someone 6 busted the window and took off with it. 7 MR. BRILEY: Did you call the police? 8 VENIREPERSON MCKINLEY: Yes. 9 MR. BRILEY: And they came out and took a 10 report? 11 VENIREPERSON MCKINLEY: Took a report. That was 12 it. 13 MR. BRILEY: Okay. I suppose you didn't get 14 your purse back, did you? 15 VENIREPERSON MCKINLEY: No, I did not. 16 MR. BRILEY: I've had my car broken into once or 17 twice. Ms. Steele, you raised your hand. Did you have 18 some kind of police interaction or did you contact the 19 police in your situation? 20 VENIREPERSON STEELE: No, I didn't. 21 MR. BRILEY: Okay. 22 VENIREPERSON STEELE: I had my wallet stolen 23 once and my son just recently actually had his 24 registration sticker taken out of his vehicle. That's 25 really about it. I did speak to a police officer and CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 kind of got his advice, but it wasn't official. I was at 2 work and he was in the emergency room with somebody. I'm 3 not sure why he was there, but he was there. 4 MR. BRILEY: Anybody else here who's had police 5 interactions because they were perhaps the victim of a 6 crime or a close family member? Yes, sir. 7 VENIREPERSON BILLING: I was attending a 8 basketball game in Burkburnett in a suburban. While I 9 was in the game, somebody broke the window out and stole 10 the DVD player that was cosmetically in the vehicle. 11 MR. BRILEY: I suppose you called the police? 12 VENIREPERSON BILLING: Well, they actually came 13 and got me. It had an alarm system on it. So they broke 14 in pretty quick and it did some damage to my seats and 15 stuff like that. 16 MR. BRILEY: Okay. And your dealings with the 17 police are negative? Positive? 18 VENIREPERSON: Positive dealings. 19 MR. BRILEY: Anybody else? Thank y'all. Thank 20 you, Mr. Billing. 21 The next question I have, and, you know, still 22 talking about this topic of police interactions, is if 23 you were approached by a police officer like Sergeant 24 Foster has probably approached some people just kind of 25 wanting to feel things out or maybe a police officer has CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 approached you just to ask you some questions. Is there 2 anybody here -- and let's just take the first row -- how 3 many here would walk away from a police officer or 4 terminate that voluntary encounter just because you don't 5 want to talk to the police? Is there anybody here who 6 would do that? How about the second row? Is there 7 anybody here who would just walk away for anything? It 8 may not be in every situation, but you could think of a 9 situation where you might just not want to talk to the 10 police? Anybody in the second row? Third row? And for 11 those of y'all who said no, which was everybody, my 12 question to you is why not? Ms. McKinley -- sorry, 13 Ms. Vale, what would be some reasons? 14 VENIREPERSON VALE: Why I wouldn't talk to 15 them? I've never been threatened by any authority figure 16 anyway. To me, they're a public servant there to help 17 you and protect people's property and the public's 18 rights. That's the way I see a police officer. 19 MR. BRILEY: So you're trying to help them? 20 VENIREPERSON VALE: Right. 21 MR. BRILEY: And be polite? 22 VENIREPERSON VALE: And be polite, because 23 they're doing a service for us. 24 MR. BRILEY: Mr. Billing, is there any other 25 reasons that you could think of?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON BILLING: I mean there are -- just 2 out of respect, a person of authority. So just general 3 conversation, there's nothing wrong with that. 4 MR. BRILEY: Okay. Thank you. On the first 5 row, with a show of hands, is there anybody here who's 6 had an experience with a police officer maybe pulling you 7 over just for a speeding ticket and you felt they were 8 rude to you? Second row? 9 VENIREPERSON JANTZ: Just for speeding tickets? 10 MR. BRILEY: Any kind of police interaction? 11 Mr. Jantz, I know that you spoke a little bit about that 12 situation, but could you tell us a little bit more about 13 how you felt. 14 VENIREPERSON JANTZ: Well, after decisions were 15 made, after all the decisions were made of who was going 16 where and what was going to happen, people were taking 17 care of their business, doing what they were supposed to 18 do, there was three young cops there and, like I said, I 19 was packing up, leaving. One of them said, out of the 20 blue, Mr. Jantz, it seems like you've got a problem with 21 something here. I personally -- I felt like I was 22 invaded at the time. 23 MR. BRILEY: Did they kind of make you feel like 24 you were a criminal, perhaps? 25 VENIREPERSON JANTZ: Well, I don't know. Nobody CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 asked me what happened. Nobody asked me what was going 2 on. They just took one person's side over -- like I 3 said, up to that point it was -- it was a done deal. 4 People were leaving; the decisions were made. There was 5 no reason for that public servant to say that to me. 6 MR. BRILEY: Okay. Thank you very much for 7 sharing that with us. Anybody else like Mr. Jantz who 8 had some kind of experience where they felt like they 9 were mistreated or a police officer was rude to them? 10 Thank y'all. 11 Moving on to my next topic, second topic. 12 The elements of resisting arrest, I think the State 13 covered this. You know, but the State is going to have 14 to approve each of these elements beyond a reasonable 15 doubt: That a person intentionally prevents or obstructs 16 a person they know as a police officer from effecting an 17 arrest by using force against the peace officer. Of 18 course, if you have, you know, even one reasonable doubt 19 as to any one of those elements, the law would require 20 you to acquit Mr. Roberson. 21 And really the main element that I want to talk 22 about is that intent. The law gives us various mental 23 states that the statute may require the State to approve, 24 intentionally, knowingly, recklessly, with criminal 25 negligence. And the State went over the baseball CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 situation with intentionally. And, you know, some 2 statutes require not just intentional, but it might be 3 intentionally or knowingly, intentionally, knowingly, or 4 recklessly. This statute requires that they prove 5 intentionally. And, again, that is when a person acts 6 intentionally with respect to their nature or conduct or 7 to the result of their conduct when it's their conscious 8 objective or desire to engage in that conduct or to cause 9 that result. 10 Ms. Taylor, if I could pick on you again. Can 11 you think of just really any action that would be 12 intentional? 13 VENIREPERSON TAYLOR: Intentional? Like 14 murder? Is that what you're saying, like, intentional? 15 Yes. 16 MR. BRILEY: Somebody intended -- 17 VENIREPERSON TAYLOR: Premeditated. 18 MR. BRILEY: That was their conscious desire, to 19 cause that result, the death of another person? 20 VENIREPERSON TAYLOR: Do I think. Okay, so what 21 are you asking me now? 22 MR. BRILEY: You already answered me. I'm sorry 23 I'm confusing you. 24 VENIREPERSON TAYLOR: Intentional act, yes. 25 MR. BRILEY: Murder. Okay. Mr. Teakell, could CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 you think of an act that's not intentional? 2 VENIREPERSON TEAKELL: I really don't understand 3 what you're saying. 4 MR. BRILEY: For example, breaking something 5 or -- 6 VENIREPERSON TEAKELL: A policemen breaking 7 something? 8 MR. BRILEY: No, just anybody. 9 VENIREPERSON TEAKELL: Anybody? 10 MR. BRILEY: Something that's not intentional, 11 something that perhaps you -- you know, your body's 12 moving, but that is not your intended result. 13 VENIREPERSON TEAKELL: I guess that could 14 happen, yeah. 15 MR. BRILEY: Okay. Thank you. Third topic that 16 I wanted to talk about was the presumption of innocence. 17 Of course, all persons are presumed to be innocent and 18 the presumption of innocence alone is sufficient to 19 acquit. Of course, the defense does not have to put on 20 any evidence, just that presumption alone is enough to 21 acquit. And, you know, it's not about which case is 22 better, the defense's case or the State's case. The 23 State must prove their case beyond a reasonable doubt and 24 each element beyond a reasonable doubt. 25 And my question to you all is do you believe CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 that an innocent person should be brought to trial for a 2 charge such as resisting arrest? So just this first row, 3 who would answer yes to that question, I do believe that 4 an innocent person could be brought to trial for a charge 5 such as resisting arrest? 6 VENIREPERSON: They're innocent coming into it? 7 MR. BRILEY: Let's say, first of all, there's an 8 allegation that somebody was resisting arrest, but 9 they're innocent. Could they be brought to trial? Could 10 it get so far as the trial process when they're 11 innocent? 12 VENIREPERSON: Sure. 13 MR. BRILEY: Yes, okay. Who here would agree? 14 First row? Sergeant Foster, how about you? You don't 15 believe that? 16 VENIREPERSON FOSTER: No, by the time -- just in 17 my experience, by the time it goes through detectives, my 18 level of patrol sergeant signing off on it and the 19 detective section, and the D.A.'s prosecution packet is 20 put together, and the D.A.'s office looks at it, I don't 21 see it. Again, it's my opinion. But it seems we err on 22 the side of caution with this stuff, as we should. And 23 it just doesn't go to trial if the D.A.'s office sees 24 that there's not enough there. 25 MR. BRILEY: Thanks for your honest opinion. Of CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 course, that's what we're looking for is just your 2 opinion. The law may say one thing, but that doesn't 3 necessarily mean that that's what you believe, and you 4 may believe something different than what the law is. In 5 the instructions, that's what we're looking for. So 6 would you say you believe Mr. Roberson is guilty just 7 sitting in the defendant's chair? 8 VENIREPERSON FOSTER: I'm not saying I couldn't 9 look at everything objectively, but I'm more inclined to 10 believe that he is knowing the experience that I have 11 within the criminal justice system. I'm not saying that 12 it doesn't occur, but having a personal knowledge of how 13 things happen here, it seems more often than not people 14 that should be going, don't go. You know, so it's just 15 my opinion. 16 MR. BRILEY: Well, so would you say that just 17 his allegation, just the fact that we're here in trial 18 would be some evidence in your mind against him? 19 VENIREPERSON FOSTER: Yeah, to be honest, it 20 would be. And it's not that I couldn't look at 21 everything objectively. There may be something that, you 22 know, with the officer's testimony, his testimony. I 23 don't know if he's going to testify, and I wouldn't hold 24 that against him. But I understand he's innocent. I 25 guess I'm talking in circles here. It's probably just my CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 15 years of experience as a police officer seeing the 2 this stuff and seeing how it works. I can look at it 3 objectively and come to a decision, but, yeah, I think 4 I'm prone to believe somebody is guilty, right or wrong. 5 MR. BRILEY: So you'd say the State is probably 6 starting off just a little bit ahead? I mean just the 7 fact they we're even here? 8 VENIREPERSON FOSTER: Yeah, I think I'd be 9 dishonest in saying that that would be even in my mind. 10 MR. BRILEY: And if the judge or, you know, if 11 we called you back in later on, the judge and the D. A. 12 talked to you and said, I know that's your opinion, but 13 can you set that opinion aside? 14 VENIREPERSON FOSTER: Oh, yeah. We're being 15 honest, just like you said. That's my honest opinion. 16 MR. BRILEY: Would you say it's a pretty strong 17 thing? 18 VENIREPERSON FOSTER: It's not something I 19 couldn't put aside to look at a case. Just everything 20 that I've seen plays on what I feel right now and your 21 question. It's not that -- if they don't prove beyond a 22 reasonable doubt, they don't prove it. And then I would 23 vote to show not guilty. 24 MR. BRILEY: Okay. Would you say just the 25 allegation, the fact that he's here, is in your mind a CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 little bit of evidence that's already in your mind? 2 VENIREPERSON FOSTER: Yes. I can't help it. 3 We're being honest here. Maybe it's my 15 years 4 experience as a police officer, but to say that it's even 5 at this point would be a lie. 6 MR. BRILEY: Thank you very much. Who here 7 agrees with Sergeant Foster, that in their mind the 8 State's going to start off a little bit ahead just 9 because of the allegation? Okay. So on the second row, 10 would everybody here say that an innocent person could be 11 brought to trial? Yes? And, Mr. Thomason, I didn't see 12 a hand. Would you say, No, I don't think an innocent 13 person probably could be brought to trial in a resisting 14 case? 15 VENIREPERSON THOMASON: You know, you are 16 innocent until proven guilty, but I'm not really a 17 hundred percent sure how that whole process is going to 18 work. But I mean if it comes to something whether you 19 stole a piece of candy from the store or you didn't 20 cooperate with the officer when he was trying to do his 21 job, you know, I mean I guess I would kind of go along 22 with what Officer Foster is saying, you know. If it 23 comes, you know, all the way through here, there would 24 probably be, you know, just that inkling of, you know, 25 well if it's come this far, you know, he might be.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 But for me, I would have to go with what the 2 evidence is telling me, go with what the witnesses there 3 are and judge based off the witnesses' testimony on that. 4 So I'm kind of, you know, in between here on something 5 like that, but until I was able to hear all the evidence 6 and/or see all the evidence and hear the witness's 7 statements, I don't know if I'd be able to give an 8 accurate assessment of that whole process until I was 9 able to hear it. 10 MR. BRILEY: Okay. Well, you know, and if the 11 judge -- let's say that you're chosen as a juror and the 12 judge instructs you that Mr. Roberson is presumed 13 innocent and that the allegation is not to be used 14 against him, that's what the law says. But is your 15 opinion something different, and is it strong enough that 16 you could not put that aside? 17 VENIREPERSON THOMASON: Well, like I said a 18 while ago, I do believe that you are innocent until 19 you've been proven otherwise. So if the judge told me to 20 set aside, you know, the fact that he is here and whether 21 he could be guilty or not, you know, I would set that 22 aside and, you know, really focus on the evidence, focus 23 on the witness's statements and determine for myself 24 based on those whether he's innocent or not. 25 MR. BRILEY: Okay. Thank you very much. On CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 that third row, with a show of hands, who here believes 2 that an innocent person could be brought to trial for 3 resisting arrest? That's everybody. Thank y'all very 4 much. 5 This is where it's going to get tricky. I'm 6 going to go down the row and ask each person for a 7 number, and that number corresponds to an answer. The 8 question -- I'll repeat it a couple times -- is "If the 9 police charge a person with resisting arrest, that person 10 is probably guilty." The first answer is, "I strongly 11 agree." 12 VENIREPERSON LITTEKEN: I'm sorry. I didn't 13 hear what you said. I can't hear. 14 MR. BRILEY: The statement is: "If the police 15 charge a person with resisting arrest, that person is 16 probably guilty." And there's six answers, and the first 17 one would be, "I strongly agree with that statement." 18 The second one would be, "I agree with that statement." 19 The third would be, "I slightly agree with that 20 statement." The fourth would be, "I slightly disagree 21 with that statement." The fifth is, "I disagree with 22 that statement." And the sixth is, "I strongly disagree 23 with that statement." Is everybody -- do y'all have a 24 number in your mind? If I could just go down the line 25 here. Juror No. 1, Ms. Taylor?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON TAYLOR: Uh-huh. 2 MR. BRILEY: Could you -- 3 VENIREPERSON TAYLOR: Three. 4 MR. BRILEY: Three, okay. And, Mr. Teakell? 5 VENIREPERSON TEAKELL: Two. 6 MR. BRILEY: Mrs. Wright? 7 VENIREPERSON WRIGHT: Two. 8 MR. BRILEY: Ms. Hair? 9 VENIREPERSON HAIR: Two. 10 MR. BRILEY: Mr. Garcia? 11 VENIREPERSON GARCIA: Four. 12 MR. BRILEY: Mr. Foster? 13 VENIREPERSON FOSTER: The one that's the 14 strongest? 15 MR. BRILEY: Yes. 16 VENIREPERSON FOSTER: One. 17 MR. BRILEY: Mr. Billing? 18 VENIREPERSON BILLING: Three. 19 MR. BRILEY: Ms. Vale? 20 VENIREPERSON VALE: Three. 21 MR. BRILEY: And I'll go back down to No. 9. 22 Mr. Litteken? 23 VENIREPERSON LITTEKEN: Four. 24 MR. BRILEY: Mr. Vasquez? 25 VENIREPERSON VASQUEZ: Three.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: Mr. Thomason? 2 VENIREPERSON THOMASON: Three. 3 MR. BRILEY: Ms. McClesky? 4 VENIREPERSON MCCLESKY: Three. 5 MR. BRILEY: Ms. Schmidt? 6 VENIREPERSON SCHMIDT: Three. 7 MR. BRILEY: Mr. Jantz? 8 VENIREPERSON JANTZ: Five. 9 MR. BRILEY: Ms. Steele? 10 VENIREPERSON STEELE: Two. 11 MR. BRILEY: Ms. McKinley? 12 VENIREPERSON MCKINLEY: Four. 13 MR. BRILEY: Mr. Chavez? 14 VENIREPERSON CHAVEZ: Two. 15 MR. BRILEY: Mr. Young? 16 VENIREPERSON YOUNG: Four. 17 MR. BRILEY: Mr. Logsdon? I'm sorry, 18 Ms. Logsdon? 19 VENIREPERSON LOGSDON: Three. 20 MR. BRILEY: Ms. Ripperger? 21 VENIREPERSON RIPPERGER: Two. 22 MR. BRILEY: Ms. Trejo? 23 VENIREPERSON TREJO: Four. 24 MR. BRILEY: Ms. Parsons? 25 VENIREPERSON PARSONS: Three.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: And Davis? 2 VENIREPERSON DAVIS: Two. 3 MR. BRILEY: Thank you. I'll come back and I'll 4 probably follow up with that toward the end of my jury 5 selection presentation. 6 The fourth topic that I want to talk to y'all 7 about is witness credibility. Like the State went over, 8 a juror has the right to believe all, part or none of the 9 testimony of any witness that takes the stand. But that 10 witness credibility comes from the stand. It shouldn't 11 be something that you already assign to a person before 12 they take the stand. We talked about police officers. 13 Many people -- some people hold police officers in high 14 esteem, but the law is going to require that you assess 15 their credibility from the stand. 16 Sergeant Foster, I believe that you told the 17 State that -- and correct me if I'm wrong; I could have 18 easily have gotten it wrong -- that you are going to 19 assess their credibility from the stand, but you might 20 consider their training and experience before they take 21 the stand because you know them as, one, being a police 22 officer, which you know what goes into that, and, two, 23 you might know some of these police officers. 24 VENIREPERSON FOSTER: Right. I don't see how 25 you get around not taking into account their training and CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 experience. And I just want to be clear. It doesn't 2 matter if it's a police officer up there or not. If -- I 3 have -- it's just like me as a sergeant dealing with 4 officers. You know, I -- I'm objective and I look at 5 both sides, and then I formulate my decision on what I'm 6 gonna do. The same way with somebody on the stand, 7 regardless if it's an officer or not, what they say, if 8 there's no contradiction, stuff just like we talked about 9 with body language, stuff like that, it applies to that 10 side, also. I just want to be clear on that. 11 MR. BRILEY: Thank you. 12 VENIREPERSON FOSTER: Did I answer your 13 question? 14 MR. BRILEY: I think you did answer my question. 15 But if police officers take the stand, are you going to 16 assign them even a little bit of credibility just on 17 their training and experience? You're going to assume 18 that they have certain training and experience? 19 VENIREPERSON FOSTER: Right. If you're dealing 20 with this case of resisting arrest. You have an officer, 21 obviously, that was right there seeing everything happen, 22 probably multiple officers who are trained from the 23 get-go of noting things, you know, just more than, I 24 would think, than the average person. 25 MR. BRILEY: But you're going to give them, I CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 guess, the benefit of the doubt that they already have 2 that training before they even take the stand? 3 VENIREPERSON FOSTER: Well, every person on that 4 screen that you put up there is a Wichita Falls police 5 officer. I'm fully aware of their training. I'm also a 6 field training sergeant, so I understand completely with 7 having been part of that process, the field training 8 process. So I know once they get cut loose and on their 9 own, I have an understanding of what they've been through 10 to get to that point. So maybe if it was an outside 11 agency, I'm not real familiar with their training. A lot 12 of times I've had experience with those people you put on 13 the screen in working with them. So I know what all they 14 do and training and everything like that. All that 15 together, you know. So -- 16 MR. BRILEY: Okay. 17 VENIREPERSON FOSTER: I can't discount that. I 18 mean it's -- now, I'll still analyze what they say and 19 see if it meets with what was presented as evidence. And 20 to me it's no different than what I'm doing when I'm 21 checking a report at the end of a shift for an arrest 22 that I have to sign off on a probable cause. I have sent 23 people back to jail and dropped charges on people because 24 they didn't meet probable cause. I'm not afraid to work 25 either side.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: Okay. Thank you very much. And 2 this is my second perhaps confusing question because it's 3 not up on the screen. But my question or my statement, I 4 suppose, is, "I will start a police officer off with 5 added credibility before hearing his or her testimony." 6 And the answers are the same. No. 1, "I strongly agree"; 7 No. 2, "I agree;" No. 3, "I slightly agree;" No. 4, 8 "Slightly disagree;" No. 5, "Disagree;" and No. 6, 9 "Strongly disagree." And if I could go down the line 10 again. 11 VENIREPERSON FOSTER: I've got a question. 12 MR. BRILEY: Yes, sir. 13 VENIREPERSON FOSTER: I don't know if everybody 14 else remembered the slide, but the State put a slide up 15 there. And that's when I got hung up on I was trying to 16 decipher, okay, are you talking about a bias or are you 17 talking about training and experience? And if I remember 18 your slide right, the very first one was assigning more 19 or less credibility to a police officer, and the second 20 one you put up there was taking into account their 21 training and experience. Which -- is that what we're 22 talking about, or are we talking about -- is your 23 question better put, Am I going to be biased towards him 24 since he's an officer? Or are we talking about an actual 25 question of, Am I going to take into account his training CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 and experience? Which to me is two different things. 2 MR. BRILEY: Well, I think my question would 3 include both of those things. Many people may have 4 police officers in their families here. And so that 5 might, one, create a bias towards I believe police 6 officers are going to be truth tellers; and, second, that 7 they have certain training and experience before we ever 8 hear what kind of training they have, what kind of 9 experience they have. Just being in uniform, you might 10 assign them credibility both in their knowledge and 11 experience and training. And, also, you know, any kind 12 of bias toward -- you know, I have the utmost respect for 13 police officers and I believe that they always tell the 14 truth. By the way, will you say that police officers 15 sometimes lie? 16 VENIREPERSON FOSTER: Will I say that? Yeah, 17 that's human nature type stuff right there. I mean 18 that's -- I would like to say that our HC does a good job 19 of getting rid of those kind of people. Yeah, it 20 happens. I guess I'm going to have to hear the 21 questions, how you're putting the questions. Because I 22 separate the two. That's why -- you remember me asking 23 that? What are we talking about, because I'm confused. 24 If you get up there and you ask them about their training 25 and experience, are you not supposed to take that into CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 consideration when they're telling us what they saw and 2 stuff? 3 THE COURT: Will you approach, please? I think 4 I have a solution for this. 5 (At the bench, off the record) 6 MR. BRILEY: I'm sorry about the confusion, 7 everybody. So let me rephrase my question. I suppose 8 the statement is, "I'm going to assign more credibility 9 before I ever hear the police officer simply because of 10 the fact that he wears a police officer's uniform and a 11 badge and that he is a police officer." So before we 12 hear them testify at all, I'm going to assign them more 13 credibility because they are a police officer? And No. 1 14 is, "I strongly agree with that statement;" No. 2 is 15 "Agree;" No. 3 is, "Slightly agree;" four is "Slightly 16 disagree;" five is, "Disagree;" and six is, "Strongly 17 disagree." Everybody got a number in mind? Ms. Taylor, 18 what would you say? 19 VENIREPERSON TAYLOR: Two. 20 MR. BRILEY: And Mr. Teakell? 21 VENIREPERSON TEAKELL: Two. 22 MR. BRILEY: And Ms. Wright? 23 VENIREPERSON WRIGHT: Two. 24 MR. BRILEY: Ms. Hair? 25 VENIREPERSON HAIR: Two.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: And Mr. Garcia? 2 VENIREPERSON GARCIA: Two. 3 MR. BRILEY: Mr. Foster? 4 VENIREPERSON FOSTER: Three. 5 MR. BRILEY: And Mr. Billing? 6 VENIREPERSON BILLING: Two. 7 MR. BRILEY: Ms. Vale? 8 VENIREPERSON VALE: Two. 9 MR. BRILEY: And Mr. Litteken? 10 VENIREPERSON LITTEKEN: Four. 11 MR. BRILEY: Mr. Vasquez? 12 VENIREPERSON VASQUEZ: Three. 13 MR. BRILEY: Mr. Thomason? 14 VENIREPERSON THOMASON: Three. 15 MR. BRILEY: Ms. McClesky? 16 VENIREPERSON MCCLESKY: Three. 17 MR. BRILEY: Ms. Schmidt? 18 VENIREPERSON SCHMIDT: Five. 19 MR. BRILEY: Mr. Jantz? 20 VENIREPERSON JANTZ: Four. 21 MR. BRILEY: Ms. Steele? 22 VENIREPERSON STEELE: Two. 23 MR. BRILEY: Ms. McKinley? 24 VENIREPERSON MCKINLEY: Four. 25 MR. BRILEY: Mr. Chavez?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON CHAVEZ: Two. 2 MR. BRILEY: Mr. Young? 3 VENIREPERSON YOUNG: Four. 4 MR. BRILEY: Ms. Logsdon? 5 VENIREPERSON LOGSDON: Four. 6 MR. BRILEY: Ripperger? 7 VENIREPERSON RIPPERGER: Three. 8 MR. BRILEY: And Ms. Trejo? 9 VENIREPERSON TREJO: Four. 10 MR. BRILEY: And Ms. Parsons? 11 VENIREPERSON PARSONS: Three. 12 MR. BRILEY: And Mr. Davis? 13 THE REPORTER: I'm sorry. What was Mr. Davis' 14 answer? 15 MR. BRILEY: Mr. Davis was two. 16 THE REPORTER: Two. 17 MR. BRILEY: Okay. Let me go down the first row 18 here. Ms. Taylor, do you agree that you would start off 19 a police officer with added credibility before he took 20 the stand and spoke anything, right? 21 VENIREPERSON TAYLOR: Uh-huh. 22 MR. BRILEY: And my question now, I suppose, is 23 if the judge tells you that the law says something 24 different -- you're familiar with police officers. 25 VENIREPERSON TAYLOR: Uh-huh.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: That may be why you give them added 2 credibility. Do you think that's something you could put 3 aside, or are your feelings so strong that you would say, 4 No, I'm still going to give them added credibility even 5 if the judge says, you know, the law is something 6 different? 7 VENIREPERSON TAYLOR: No, I could put it aside 8 because, you know, like he was saying, there's good cops 9 and there's bad ones. So I just -- I think it would just 10 depend with me what was said, too, you know. I mean, 11 yeah, would start off thinking they know a lot because 12 like, you know, with my family, I know what they go 13 through, the training and their experience and 14 everything. But then it would ultimately matter to me, 15 you know, actually what they did say. 16 MR. BRILEY: Okay. 17 VENIREPERSON TAYLOR: And with everything else 18 into account, you know, the witnesses and all that. Did 19 I answer that, or did I get off of that? 20 MR. BRILEY: You answered it, but I heard two 21 things. 22 VENIREPERSON TAYLOR: Okay. 23 MR. BRILEY: You know, thank you very much for 24 your answer, but -- 25 VENIREPERSON TAYLOR: Just to be sure, I mean CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 I'm more -- I more lean towards their experience. I mean 2 that's what they do. That's their living. They do this 3 every day. Like my brother-in-law was like a detective. 4 They read people and they -- I just -- I just go more 5 with that, you know, with their experience. 6 MR. BRILEY: And I heard that you could put it 7 aside, but it was -- but you also said, you know, after 8 you heard some of what they said -- and what the rule, I 9 suppose, is going to be is that before -- 10 VENIREPERSON TAYLOR: Well, I mean you're asking 11 me -- I have the previous -- yes, I do believe when I'm 12 probably going in that I am a little more on the side 13 with the law enforcement, but I wouldn't make a decision 14 just on that. I would weigh in what -- everything I 15 heard. But I do -- I do have a preconceived idea before 16 because if they're going to, you know, bring an 17 experienced person in, I'm gonna think they're really 18 experienced in that area, you know. Does that make 19 sense? 20 MR. BRILEY: Yes, I appreciate that. 21 VENIREPERSON TAYLOR: Okay. 22 MR. BRILEY: But would you say that even 23 starting off, before the officer testifies, you would 24 probably have a little bit -- 25 VENIREPERSON TAYLOR: I'd probably have some, CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 yeah, I will. 2 MR. BRILEY: -- a little bit of added 3 credibility? 4 VENIREPERSON TAYLOR: Yeah, I do. Yeah. 5 MR. BRILEY: Okay. And if the judge said that 6 you can't do that; you have to put that aside, do you 7 think that that's still going to be there in the back of 8 your mind? You're going to give them a little bit more 9 credibility? 10 VENIREPERSON TAYLOR: Well, I don't know. I've 11 never had to do this. I've never had to do it. I mean I 12 would hope that I would do what the judge told me to do 13 and I would try. 14 MR. BRILEY: Okay. 15 VENIREPERSON TAYLOR: But -- 16 MR. BRILEY: Okay. Thank you. 17 VENIREPERSON TAYLOR: I can't say as a matter of 18 fact. I've mean I've never done it so I don't know. I 19 don't have any experience at doing that. 20 MR. BRILEY: Okay. Thank you, Ms. Taylor. 21 VENIREPERSON TAYLOR: Okay. 22 MR. BRILEY: Mr. Teakell, you also agreed that 23 you would give the police officer added credibility 24 before he took the stand. And, again, if the judge tells 25 the jury that's --

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON TEAKELL: I can go along with what 2 the judge says. 3 MR. BRILEY: Okay. 4 VENIREPERSON TEAKELL: But I've been brought up 5 all my life to respect officers because they put a badge 6 on and take an oath. And that's just the way I feel. 7 And if the judge says take that out, I can. But in the 8 back of my mind, I respect the police department. 9 MR. BRILEY: Well, and the question is would you 10 give them added credibility? Would you say that your 11 opinion that you're going to give them added credibility 12 is pretty strong? 13 VENIREPERSON TEAKELL: I would think so. 14 MR. BRILEY: And if the judge asks you to put 15 that opinion aside, can you do that? 16 VENIREPERSON TEAKELL: I can do it, yeah. 17 MR. BRILEY: Thank you. Ms. Wright, you also 18 agreed with that statement, and you have an opinion that 19 you might start off a police officer with added 20 credibility. Is that something you can put aside, or is 21 that going to be something that remains? 22 VENIREPERSON WRIGHT: No, I could put it aside, 23 you know, if that's something that, again, they stated 24 that the judge order ordered us to do. But I just think 25 in general probably the notion is that most of us -- my CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 opinion is citizens feel like we should be able to trust 2 police officers and those that protect us. So I -- not 3 knowing a lot of the training and stuff that goes on 4 behind the scenes or prior to, I can't weigh that in. 5 And I don't have anybody in my family that's a police 6 officer or anything like that, so I mean I think I could 7 be partial, I mean not one side or the other, I guess, if 8 you will. 9 MR. BRILEY: Okay. 10 VENIREPERSON WRIGHT: Does that make sense? 11 MR. BRILEY: Yes, it does. Okay. Ms. Hair, you 12 also agreed with that statement. Would you say that you 13 could put that opinion that you're going to start a 14 police officer with added credibility aside, or is that 15 something that, you know, is a strong enough opinion that 16 you probably couldn't put that aside? 17 VENIREPERSON HAIR: Yes, I could put it to the 18 side. There's good cops and there's bad cops. I would 19 listen to both sides. I wouldn't just automatically go 20 to one side. I could put it aside. 21 MS. KUCERA: Judge, can we approach? 22 (At the bench, off the record) 23 MR. BRILEY: Mr. Garcia, you also agreed that, 24 you know, just because a police officer is in a uniform 25 or badge, you might give them added credibility before CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 they took the stand? 2 VENIREPERSON GARCIA: Right, because there's a 3 certain respect that. But I could -- you know, if you 4 can't do that, you can't do that. 5 MR. BRILEY: Okay. Thank you. Sergeant Foster, 6 you said you slightly agree with that statement? 7 VENIREPERSON FOSTER: Right. We're talking 8 about -- you said credibility, added credibility. I want 9 to clarify again on that because I think we've gone back 10 to the original question, and that is what I'm having a 11 problem with resorting back to that. To answer your 12 question, if somebody's in a uniform, just the mere fact 13 that they wear a uniform and a badge, it's the slightly, 14 if I remember right. It's just a little bit just like I 15 felt with the D. A.'s office, just a little bit is why I 16 slightly agree with that. Now, if you're going to use 17 added credibility by being a police officer, then you 18 take into account the credibility and experience, and my 19 number would probably be higher if you're going to 20 include that. 21 MR. BRILEY: Okay. Mr. Billing? 22 VENIREPERSON BILLING: I'd give them a slight 23 edge on credibility just due to the nature of their job, 24 put them in the same category as firemen, those people 25 that serve in the military, just the risks that they take CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 with their job. So right off the bat, I give them more 2 credibility. 3 MR. BRILEY: Okay. 4 VENIREPERSON billing: But I could set that 5 aside. The individual is presumed innocent until proven 6 guilty. 7 MR. BRILEY: So if the judge instructed you, do 8 you think that you could put that opinion aside? 9 VENIREPERSON BILLING: Yeah. 10 MR. BRILEY: And judge their credibility only 11 from the stand? 12 VENIREPERSON BILLING: Yeah. 13 MR. BRILEY: Ms. Vale? 14 VENIREPERSON VALE: Yes, I could set it aside 15 and just base it on the facts and put my faith in the 16 process. 17 MR. BRILEY: Okay. Thank you. Actually, let me 18 skip to Ms. Steele. You said that you agree with the 19 fact that you would give a police officer added 20 credibility just because of the fact that he's in a 21 uniform and badge before he takes the stand? 22 VENIREPERSON STEELE: Yes. 23 MR. BRILEY: Are you saying that could you put 24 that aside if the judge asked you, or is that a pretty 25 strong opinion and you're probably going to give them CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 added credibility before they take the stand even if the 2 judge tells you differently? 3 VENIREPERSON STEELE: I could put it aside. 4 MR. BRILEY: Thank you. Carlos Chavez, would 5 you say that your opinion is strong enough that you 6 couldn't put it aside, or if the judge told you to judge 7 the credibility only from the stand? 8 VENIREPERSON CHAVEZ: I could put it aside. 9 MR. BRILEY: You could put it aside? 10 VENIREPERSON CHAVEZ: Yes. 11 MR. BRILEY: Okay. Thank you. I'll move on to 12 my next question. Actually, it's a new topic. That's 13 the standards of proof. Mr. Billing let us know that in 14 this case the State is going to have to prove beyond a 15 reasonable doubt every element of the crime. There's 16 other standards of proof such as reasonable suspicion, 17 probable cause, preponderance of the evidence, and clear 18 and convincing evidence. And those are all in order up 19 to the highest, which is beyond a reasonable doubt. 20 Sergeant Foster, could I pick on you, I suppose, and use 21 your knowledge? 22 VENIREPERSON FOSTER: Sure. 23 MR. BRILEY: Could you tell us about reasonable 24 suspicion a little bit? 25 VENIREPERSON FOSTER: Well, it's like having --

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 say I work third shift, and there's a business closed and 2 I see somebody walking around behind the building, and I 3 have a reasonable suspicion at that point that he's 4 probably committing a crime like burglary or some kind of 5 theft or something like that, which would give me enough 6 to detain him to either prove or disprove if you get to 7 the point of probable cause and that stuff. 8 MR. BRILEY: Okay. And then let's say that you 9 investigated and you found some additional facts and that 10 gave you probable cause that the crime had been 11 committed, what could you do then? 12 VENIREPERSON FOSTER: Make an arrest. 13 MR. BRILEY: Okay. Thank you. After a 14 reasonable suspicion and probable cause, the next 15 standard of proof that the law provides is -- or at least 16 one of them is by a preponderance of the evidence. And 17 that would be something that we use in civil cases, and 18 that would be a case where like one side versus the other 19 and whose case is more likely than not. Perhaps at the 20 end of the trial you wouldn't have a firm belief to 21 either one of them, but it's more likely than not. And 22 that would be preponderance of the evidence. 23 I don't know that that alone makes sense. Does 24 that make sense to you, Mr. Billing? 25 VENIREPERSON BILLING: Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: Okay. Does anybody have a question 2 on that? Okay. Like I said, that would be used in civil 3 trials. The next thing would be clear and convincing 4 evidence. The best example of that would be if the State 5 was going to come and take somebody's children away, they 6 would need clear and convincing evidence of their 7 allegations. And the definition for that is that the 8 proof would have to be so much to produce in the mind of 9 the trier of fact or the jury or the judge that it would 10 produce a firm belief as to the allegations, that the 11 allegations were true. So they have to produce enough 12 evidence to give you a firm belief that those allegations 13 are true. 14 And the reason I bring all this up is I kind of 15 want to compare that with beyond a reasonable doubt, 16 since we can't tell you what beyond a reasonable 17 doubt is. We don't have a definition. Like the State 18 said, what's reasonable to one person might be different 19 than another person's, so we don't have a definition of 20 beyond a reasonable doubt. But we do know that it's 21 higher than clear and convincing evidence, and we know 22 that that is enough evidence that would produce in your 23 mind a firm belief. 24 So I suppose my question is -- Ms. Vale, can I 25 ask you this question? Could you imagine a situation CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 where you firmly believe something but still have a 2 reasonable doubt as to the allegation? 3 VENIREPERSON VALE: It's hard. I'd have to have 4 all the facts. I'm a facts person. I'm a trained person 5 with the government, so based on facts and processes. 6 Yeah. 7 MR. BRILEY: I suppose -- have you ever seen a 8 news story where maybe you haven't seen the trial, you 9 haven't heard all the facts? 10 VENIREPERSON VALE: Right. 11 MR. BRILEY: But you've heard a little bit, and 12 you firmly believe something happened. 13 VENIREPERSON VALE: Like the Trevon Martin case 14 or any of the special cases that you hear on the media or 15 stuff? It's not enough for me to make a decision on 16 unless I'm there listening to all the facts. I'm a facts 17 person. 18 MR. BRILEY: Thank you. 19 VENIREPERSON VALE: Uh-huh. 20 MR. BRILEY: Is there anybody here who would say 21 on the first row that, you know, they couldn't 22 differentiate between that. If I firmly believed 23 something, if they prove something enough that I firmly 24 believe it, it wouldn't be possible for me to have a 25 reasonable doubt? Anybody here?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON FOSTER: Say it again. 2 MR. BRILEY: Actually, let me ask it this way. 3 Who here on the first row would say, yes, to the 4 statement, I could firmly believe something and still 5 have a reasonable doubt? So how about no to that 6 answer? Everybody said no. Okay. And, you know, the 7 State gave the situation of the Friends picture. And my 8 example, there's been times where I've parked in the 9 garage and I'm heading to work and I get halfway down the 10 street and I start to think, did I close the garage door, 11 did I not close the garage door. Anybody had that 12 experience? There are times where I may firmly believe 13 that I did close the garage door, but I have enough of a 14 hesitation, I have enough of a reasonable doubt to say I 15 might need to turn back and actually go see if the garage 16 door actually closed. Most of the times the garage is 17 closed. There have been a couple of times where it 18 hasn't been, and I'm glad I did turn back. That's where 19 clear and convincing evidence where you have a firm 20 belief of something to beyond a reasonable doubt where 21 you still may have a reasonable doubt. 22 Does anybody have any questions about that? 23 Sorry if I made it confusing. Well, that -- that's all 24 the questions that I have for you. Thank y'all very much 25 for your time and attention.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: All right. Ladies and gentlemen, 2 that was the conclusion of the voir dire process. This 3 will take a few minutes. There will be some of you that 4 will be called back in to clarify possibly some of your 5 answers, so they can exercise their strikes after that. 6 This process will take a little bit longer, usually about 7 30 minutes. But in the meantime, like I said, people 8 will be coming back in. I think there are some we need 9 to call back in. And then once we get done with that, 10 they're gonna exercise their strikes; I'll bring you back 11 in and let you know who the lucky six are like I said 12 before; and then at that time I'll be able to release the 13 rest of you. 14 So this will be a little bit longer delay, but 15 it's worth it to all of you except six. So if you'll 16 just have a seat out in the hall, go to the restroom, 17 whatever you need to do, and we'll bring you back in. 18 When you come back in, you don't need to sit in any 19 order, either. Thank you. 20 (Open court, defendant present, no panel) 21 I'll start with the State. Is there anybody 22 that you think we need to bring back in to clear up? 23 MS. HONEY: Can we bring in juror No. 6? 24 THE COURT: Juror No. who? 25 MS. HONEY: Six, Mr. Foster.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: Really? You can, that's fine. 2 MR. BRILEY: From the defense, just 1 and 3. 3 THE COURT: That's one of the ones I had. Okay. 4 Just one and three and six. Okay. Ms. Taylor, please. 5 THE BAILIFF: No. 1? 6 THE COURT: No. 1. 7 THE BAILIFF: Cheryl Taylor? Ms. Taylor? And 8 you can go up on the front bench. 9 THE COURT: Yeah, you can just stand right up 10 here, Ms. Taylor, or you can sit if you'd like. This is 11 a little bit less formal here. 12 VENIREPERSON TAYLOR: Okay. 13 THE COURT: There were some questions with 14 regard to your answers. 15 VENIREPERSON TAYLOR: Okay. 16 THE COURT: Unfortunately, in this process, 17 sometimes your answers have to be yes or no. So I 18 understand the difficulty with it, especially with the 19 areas that we're dealing with. 20 VENIREPERSON TAYLOR: Yes. 21 THE COURT: But, unfortunately, we have to kind 22 of narrow it down. Mr. Briley, you wanted Ms. Taylor? 23 MR. BRILEY: Ms. Taylor, we talked about you 24 having feelings for police officers and you may give them 25 added credibility before they take the stand. And you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 would try to set that aside, but you wouldn't -- I'm not 2 trying to put words in your mouth. 3 VENIREPERSON TAYLOR: Yes. 4 MR. BRILEY: But you may not be able to put 5 those feelings aside. And we're just trying to get a yes 6 or no. 7 VENIREPERSON TAYLOR: Well, I would honor the 8 judge if that's what he told me to do. You know, I would 9 do that. But -- yes. 10 MR. BRILEY: I know you want to follow. 11 VENIREPERSON TAYLOR: Yes. 12 THE COURT: Yes, that you would set it aside? 13 VENIREPERSON TAYLOR: Yes, because I would want 14 to do what I was -- what you would want me to do. 15 MR. BRILEY: I know that you want to follow the 16 rules -- 17 VENIREPERSON TAYLOR: Yes. 18 MR. BRILEY: And I'm not saying anything about 19 that. But you might have feelings so strong that it 20 might not be possible. 21 VENIREPERSON TAYLOR: Well, you know, I do 22 respect law enforcement. I think they're, you know, 23 they're authoritive. And I know in courts that's the 24 reason they bring in specialists or doctors or, you know, 25 people, you know, that have experience in that particular CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 area. And that's -- you know, we kind of think, well, 2 they know something or they wouldn't be bringing them in. 3 That's kind of just my -- you know, what I think, but -- 4 THE COURT: Let me ask it this way. You're 5 going to have possibly in this trial witnesses that are 6 officers and witnesses that are not officers. 7 VENIREPERSON TAYLOR: Yes, uh-huh. 8 THE COURT: When they take the stand, you know 9 nothing about them, either one. 10 VENIREPERSON TAYLOR: Uh-huh. 11 THE COURT: You have no idea what their 12 experience may be. 13 VENIREPERSON TAYLOR: Yes. 14 THE COURT: Are you going to assign the officer 15 extra credibility, before you hear any testimony at all, 16 over a layperson, a normal person, simply because he 17 takes the stand wearing a badge and a uniform? 18 VENIREPERSON TAYLOR: I don't know how to ask -- 19 I don't -- I want to be truthful, but I don't -- 20 THE COURT: You haven't heard anything about his 21 experience. You haven't heard anything about his 22 training. 23 VENIREPERSON TAYLOR: If I don't know anything 24 about his experience -- because you're gonna bring in the 25 ones that was actually -- you had listed on the thing?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: That's them. They will, possibly. 2 VENIREPERSON TAYLOR: Oh. I mean the ones to 3 see if we knew or not. 4 THE COURT: But what I'm saying is before they 5 even start testifying, you know nothing about his 6 experience. 7 VENIREPERSON TAYLOR: Uh-huh. 8 THE COURT: You know nothing about his training, 9 who trained him, how he was trained, what he was trained 10 in. He walks in just like any other person. The only 11 difference is he wears a badge and possibly a uniform. 12 Are you going to give that person extra credibility 13 simply because he is an officer? There's no wrong 14 answer, so either way. 15 VENIREPERSON TAYLOR: I know. I know. I just 16 want to be truthful. I'll say no, but because, like you 17 said, I think they have some credibility and experience 18 or they wouldn't be there. But, like you say, I don't 19 know the individual policeman or whoever, so I don't know 20 how much credibility they do have. 21 THE COURT: Okay. 22 VENIREPERSON TAYLOR: Did I -- I don't know. I 23 guess I don't really know how to answer it. 24 THE COURT: I understand. 25 VENIREPERSON TAYLOR: You know, so I'm -- I was CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 brought up to respect officers and -- 2 THE COURT: There's a difference between 3 respecting somebody and giving them credibility. 4 VENIREPERSON TAYLOR: I know, but, you know, I 5 -- that's their job and I just think most of them, I 6 think, are credible. But, like you say, the particular 7 ones, I don't know. So I would have to put it aside 8 because I don't know that individual, how credible he is, 9 until he testified or whatever. 10 MS. KUCERA: I think everyone understands what 11 you're saying, so, one, thank you for being honest. We 12 appreciate that because it makes our jobs a little 13 easier. What we're asking is -- what my slide said was, 14 you know, officers, obviously, we understand that they go 15 through certain training and experience, right? 16 VENIREPERSON TAYLOR: Uh-huh. 17 MS. KUCERA: What we're asking you to do is -- 18 let's say the officer, before you hear anything about -- 19 he could have one day of training or he could have 15 20 years, okay. 21 VENIREPERSON TAYLOR: Uh-huh. 22 MS. KUCERA: Before we talk about anything in 23 his training and experience, if he gets on the stand, it 24 sounds to me like you're saying if the judge tells you 25 you can't automatically assume he's telling the truth CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 before he gets on the stand, then as long as you can wait 2 until you hear what he has to say and what his training 3 and experience is, is that -- do you understand what I'm 4 saying? That you can wait until he gets on the stand 5 before you evaluate his training and his experience, his 6 demeanor, like we talked about. Do you think you could 7 do that? 8 VENIREPERSON TAYLOR: Yes. I would have to wait 9 till after he told what experience they had. But then 10 after he did that, I might have some -- is that wrong? 11 MS. KUCERA: The law says you can, when you're 12 evaluating what he's saying, you can consider that he's 13 had this much training or this much experience. You can 14 consider that when you're evaluating his ability to tell 15 the truth. We talked about demeanor and is he consistent 16 in what he says. Those are things you can think about 17 and consider. The only thing the law says you can't do 18 is automatically assume he's telling the truth before he 19 ever gets on the stand. 20 VENIREPERSON TAYLOR: I understand. 21 MS. KUCERA: You understand, okay. Do you think 22 you could follow the law in that case? Because the law 23 says -- 24 VENIREPERSON TAYLOR: Yes. 25 MS. KUCERA: Okay. You could follow the law?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 VENIREPERSON TAYLOR: Yes. 2 THE COURT: Anything further, Mr. Briley? 3 MR. BRILEY: Ma'am, you stated that you had a 4 nephew who works for the Wichita Falls Police 5 Department. 6 VENIREPERSON TAYLOR: Uh-huh. 7 MR. BRILEY: Who is that nephew? 8 VENIREPERSON TAYLOR: Tristan Dosier. 9 MR. BRILEY: Thank you. 10 THE COURT: All right. Okay. Thank you, 11 Ms. Taylor. 12 (Venireperson Taylor exits courtroom) 13 Is there a challenge for cause? 14 MR. BRILEY: Yes. 15 THE COURT: Challenge for cause on the basis 16 of -- 17 MR. BRILEY: She would give added credibility to 18 police officers before they take the stand. 19 THE COURT: Challenge for cause denied. Next 20 one would be Karen Wright. 21 THE BAILIFF: Ms. Wright? 22 THE COURT: Hello, Ms. Wright. We wanted to 23 call you back in to try to clarify an answer. 24 VENIREPERSON WRIGHT: Okay. 25 THE COURT: And like I tell people, I know it's CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 difficult in this situation with some of these 2 concepts -- you can sit down. It's okay. With some of 3 these concepts, it's hard to say yes or no. However, in 4 these situations, sometimes we have to narrow it down to 5 get to a yes or no answer. Mr. Briley, I believe. 6 MR. BRILEY: Yes. Ms. Wright, I think we were 7 pretty clear on the credibility issue, but you also 8 mentioned that you know Officer Iper. 9 VENIREPERSON WRIGHT: I do. 10 MR. BRILEY: How well do you know Officer Iper? 11 VENIREPERSON WRIGHT: Through our kids sports. 12 MR. BRILEY: Okay. Do you think you would give 13 him specifically more credibility before he takes the 14 stand because -- 15 VENIREPERSON WRIGHT: No. 16 MR. BRILEY: Thank you. 17 THE COURT: Anything from the State? 18 MS. HONEY: No. 19 THE COURT: Thank you, Ms. Wright. 20 VENIREPERSON WRIGHT: Uh-huh. 21 (Venireperson Wright exits courtroom) 22 THE COURT: Any challenge with regard to 23 Ms. Wright for cause? 24 MR. BRILEY: No, Your Honor. 25 THE COURT: I believe the last one that you were CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 asking to have brought back in was Sergeant Foster? 2 MS. HONEY: Yeah. You can disregard our 3 request. 4 THE COURT: All right. And I believe, 5 Mr. Briley, you had No. 11? 6 MR. BRILEY: No, I think that's all that we 7 need. 8 THE COURT: Okay. I'm sorry. All right. 9 Mr. Briley, do you have your challenges for cause ready? 10 MS. HONEY: There are none from the State. 11 MR. BRILEY: Just No. 6. 12 THE COURT: No. 6 challenge for cause will be 13 granted. All right. So let me see if I got this 14 straight. There's a challenge for cause on Ms. Taylor. 15 I believe that was denied. Challenge for cause on 16 Ms. Wright. There was a challenge for cause on Sergeant 17 Foster, correct? That was granted. No other challenges 18 for cause by either the State or defense? 19 MS. HONEY: No, Your Honor. 20 THE COURT: Good. How long do you need to make 21 your strikes? Ten minutes? 22 MS. HONEY: Yes. 23 THE COURT: Three strikes each. Let's see if we 24 can get it done in 10 minutes. Off the record. 25 (Preemptory strikes exercised)

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 (Open Court, defendant present, no panel) 2 THE COURT: Let's go back on the record now in 3 Cause No. 58017-E. State's present; defendant's present; 4 defendant's attorney is present, outside the presence of 5 the venire panel. The State and the defense have been 6 given time to exercise their strikes. Has the State got 7 theirs and the defense? If you would hand them to me, 8 please. All right. 9 The State has struck Anthony Garcia, No. 5; 10 Gerald Litteken, No. 9; and Thomas Vasquez, No. 10. The 11 defense has struck No. 1, Cheryl Taylor; No. 2, Ronnie 12 Teakell; No. 7, Douglas Billing, leaving us with a jury 13 of -- keep up and make sure I've got this right -- No. 3, 14 Karen Wright; No. 4, Jamie Hair; No. 8, Eileen -- is it 15 Vale? Is that correct? 16 THE BAILIFF: Yes, sir. 17 THE COURT: Okay. No. 11, Tyler Thomason and 18 No. 12, Linda McClesky and No. 13, Tina Schmidt. Is that 19 what y'all have? 20 MS. HONEY: Yes, Your Honor. 21 THE COURT: Mr. Briley, is that correct? 22 MR. BRILEY: Yes, Your Honor. 23 THE COURT: All right. Just so the record is 24 clear, No. 22 was previously stricken by the court or 25 excused by the court and No. 6, Sergeant Foster, the CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 challenge for cause was granted. Anything further at 2 this time from the defense or the State before we bring 3 the jury back in and seat them? 4 MS. KUCERA: No, Your Honor. 5 MR. BRILEY: No, Your Honor. 6 THE COURT: All right. Let's go off the record. 7 (Discussion off the record) 8 (Open court, defendant and jury panel present) 9 THE COURT: Okay. Y'all be seated, please. All 10 right. As I call your name, will you please come forward 11 and have a seat here in the jury box. Just so the record 12 is clear, back on in this cause, 58071, I believe? 13 58017-E. Venire panel, of course, is back present in the 14 courtroom, defendant, defendant's attorneys, and the 15 State. Let's see. Karen Wright, No. 3. And there's -- 16 as you come forward to have a seat in the jury box, 17 there's instructions and a button for you. No. 4, Jamie 18 Hair,; No. 8, Eileen Vale. Did I pronounce your name 19 right? Is it Vale? 20 JUROR VALE: Uh-huh. 21 THE COURT: Okay. Thank you. No. 11, Tyler 22 Thomason; No. 12, Linda McClesky; and finally, No. 13, 23 Tina Schmidt. All right. If each member of the jury 24 will please stand and raise their right hand for me. 25 (The jury was sworn)

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: All right. Thank you. Be seated, 2 please. All right. That's our lucky six. For everybody 3 else who's here on the panel, I spoke with the district 4 clerk, and me releasing you here today here in just a 5 couple minutes will end your service for the week. 6 There's no other trials starting this week, so you don't 7 have to check back in like you have been doing. I 8 appreciate you being here. I appreciate you going 9 through the voir dire process. I hope it's been somewhat 10 of a learning experience if you've never been through it 11 before. 12 I apologize for all the technical difficulties 13 and the delays we've had today. I try to do things to 14 limit those, but there's always going to be a certain 15 amount of those with this system. Another thing, too, I 16 really appreciate you being here, because you serve a 17 very important role just by sitting through the voir dire 18 process to give these attorneys to question you and your 19 feelings and to seat a jury in this matter. It's 20 important to everybody: The State, the defendant and 21 also the Court. And on behalf of everyone, I thank you 22 for your service and you're released at this time. 23 (Remaining jury panel exits courtroom) 24 (Open court, defendant and jury present) 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 COURT'S INSTRUCTIONS TO JURY 2 THE COURT: All right. Y'all be seated. All 3 right. Ladies and gentlemen of the jury, I'm going to 4 read to you some more instructions. I believe you have a 5 copy in front of you. The first five instructions are 6 the instructions I gave to you previously, so I'm going 7 to start with No. 6. 8 6. Do not investigate this case on your own. 9 For example, do not: 10 A. Try to get any information about the case, 11 the lawyers, the witnesses, or issues from outside this 12 courtroom; 13 B. Go to places mentioned in the case to 14 inspect the places; 15 C. Inspect items mentioned in this case unless 16 they are presented as evidence in court; 17 D. Look anything up in a law book, dictionary, 18 or public record to try to learn more about the case; 19 E. Look up anything on the Internet to try to 20 learn more about the case; or 21 F. Let anyone else do any of these things for 22 you. 23 This rule is very important because we want a 24 trial based only on evidence admitted in open court. 25 Your conclusions about this case must be based only on CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 what you see and hear in this courtroom because the law 2 does not permit you to base your conclusions on 3 information that has not been presented in open court. 4 All the information must be presented in open court so 5 the parties and their lawyers can test it and object to 6 it if necessary. Information from other sources, such as 7 the Internet, will not go through this important process 8 in the courtroom. In addition, information from other 9 sources could be completely unreliable. As a result, if 10 you investigate this case on your own, you could 11 compromise the fairness to all parties in this case and 12 jeopardize the results of this trial. 13 7. Do not tell the other jurors your own 14 personal experiences or other people's experiences. For 15 example, you may have special knowledge of something in 16 the case, such as technical or professional information. 17 You may even have even have expert knowledge or opinions, 18 or you may know what happened in this case or a similar 19 case. If you have expert knowledge or opinions, you may 20 not share that expert knowledge or those opinions with 21 other jurors and you may not rely on your expert 22 knowledge or opinions in arriving at your verdict. If 23 you share such information or rely on such information, 24 you and the other jurors will be considering things that 25 were not admitted in court.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 8. I will decide matters of law in this case. 2 It is your duty to listen to and consider the evidence 3 and to determine fact issues that I expect to submit to 4 you at the end of the trial. After you have heard all of 5 the evidence, I will give you instructions to follow as 6 you make your decision. The instructions also will have 7 questions for you to answer. 8 Every juror must obey all the instructions you 9 have received and others that you will be given during 10 the trial. If you do not follow the instructions, you 11 will be guilty of juror misconduct, and I may have to 12 order a new trial and start the process over again. This 13 would waste your time and the parties' money, and would 14 require the taxpayers of the county to pay for another 15 trial. 16 Please keep these instructions and review them 17 as we go through the case. If anyone does not follow 18 these instructions, please tell me." 19 All right. At this time I'll call the State to 20 come forward and read the information. 21 MS. HONEY: May I approach? 22 THE COURT: You may. And if the defendant would 23 please rise. 24 MS. HONEY: "In the name and by the authority of 25 the State of Texas, before me, the undersigned assistant CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 criminal district attorney of Wichita County, Texas, in 2 behalf of the State of Texas, and presents in and to the 3 County Court At Law 1 of Wichita County, Texas that in 4 Wichita County, Texas, Byrias Robert Roberson, herein 5 after called defendant, on or about the 10th day of July, 6 A. D., 2012, in said county and state, did then and there 7 intentionally prevent or obstruct officer Gabriel 8 Vasquez, a person defendant knew to be a peace officer, 9 from effecting an arrest of the defendant by using force 10 against said peace officer, against the peace and dignity 11 of the state. 12 THE COURT: To that, how does the defendant 13 plead? Guilty or not guilty? 14 THE DEFENDANT: Not guilty. 15 THE COURT: Thank you. Be seated, please. All 16 right. Ladies and gentlemen of the jury, it's about 3 17 o'clock. We've had kind of a rough day going back and 18 forth. So, all right, what I'm gonna do is I'm gonna 19 release you at this time, give you a little bit of an 20 earlier day to make some arrangements hopefully with work 21 or with child care for the next day. 22 Optimistically, we can get this case to you late 23 tomorrow afternoon. Possibly could run into Friday. I 24 would expect it to be done by Friday at noon after 25 talking with the attorneys. So that would be your CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 service. You're lucky this is not a three-week long 2 products liability trial or something along those lines. 3 So your service will be completed this week. 4 One question I have for you is, typically, 5 courts start at nine o'clock. If you would like to start 6 at 8:30 and get an extra 30 minutes in, those 30 minutes 7 do add up and can help move this along for your 8 convenience. Would you like to start at 8:30, or would 9 you like to start at 9:00? The Court can do whatever 10 y'all would like to do. Let me ask it this way. I'm 11 sorry. Is there anybody who does not want to start at 12 8:30 and would rather start at 9:00? You'd rather start 13 at 9:00? Sometimes it's hard to get here at 8:30, and I 14 understand that, because we have other commitments. So 15 let's do this. We will start with our testimony tomorrow 16 morning, opening statements and then testimony at nine 17 o'clock. The parties and I are going to work for the 18 rest of this afternoon and a little bit earlier than 19 y'all get here in the morning to try to move things along 20 once the trial does get started. Okay? 21 So with that, I'm going to release you today and 22 ask that you be back here about ten till nine tomorrow so 23 we can get started at nine o'clock. Okay. One other 24 thing, I'm sorry. Wear your buttons. It lets everybody 25 know that you're a juror and lets them know that you're CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 under the rules that we've talked about and that they're 2 not supposed to speak with you or speak about the case in 3 your presence, okay. Thank you very much. We'll see you 4 in the morning. 5 (Open court, defendant present, no jury) 6 7 THE COURT: Back on the record. Ms. Honey, just 8 after we went off the record and released the jury, I 9 believe there was an incident with your investigator? 10 MS. HONEY: Yes, Your Honor. As I was 11 proceeding upstairs to our office, I spoke to our 12 investigator, Donnie Cavinder, and he mistakenly spoke to 13 one of the now jurors in this particular case. 14 THE COURT: Okay. And, Mr. Briley, would you 15 like for Mr. Cavinder to be sworn to testify as to what 16 was said between -- 17 MR. BRILEY: Yes, Your Honor. 18 THE COURT: All right. Mr. Cavinder, if you'd 19 raise your right hand for me, please. 20 (Witness sworn) 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. DONNIE CAVINDER, 2 having been first duly sworn, testified as follows: 3 EXAMINATION 4 BY THE COURT: 5 All right. Mr. Cavinder, an issue has come up 6 that there might have been some contact between you and a 7 juror who was just sworn in; is that correct? 8 INVESTIGATOR CAVINDER: Yes. 9 THE COURT: All right. Could you tell the Court 10 what that contact was, please, in as much detail as you 11 can? 12 INVESTIGATOR CAVINDER: Yes. I left the 13 courtroom prior to the jury being sat and took the 14 equipment back upstairs. As I was coming down the ramp, 15 I noticed a female coming out of the courtroom, which I 16 believed to be Ms. Steele, Juror No. 15, I believe, who 17 had made a comment during voir dire that she recognized 18 me or knew of me or something to that effect. 19 THE COURT: Juror No. -- to be clear for the 20 record, Juror No. 15 was released from service? 21 INVESTIGATOR CAVINDER: Right. And that's who I 22 believed I was speaking to. And when I was starting to 23 talk to her, she goes, No, that was Ms. Steele. So I 24 didn't realize at the time the lady I was talking to had 25 actually made the jury, either, and it came up that she CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 was the one that went to game warden school a couple 2 years ago. And I asked her what had happened there, and 3 she told me she did it for two years, but it was down 4 south of the border and it was dangerous down there and 5 that's why she got out of it. And we just kind of 6 exchanged pleasantries about that. 7 Nothing was brought up about the trial, the 8 defendant, anything like that. And then I saw her, she 9 had a button down in her right hand next to her side. 10 And that's when I said, Oh, you are on the jury. She 11 said, yes, sir. And I said, Okay, thank you. We didn't 12 discuss the case at all. 13 THE COURT: Mr. Briley, is there any inquiry you 14 would like to make as to the conversation? 15 MR. BRILEY: No, Your Honor. 16 THE COURT: Ms. Honey? 17 MS. HONEY: Nothing from the State, Your Honor. 18 THE COURT: I'll speak with Ms. Vale in the 19 morning when they come back just before we go back on the 20 record. If she confirms what Investigator Cavinder was 21 saying, I don't see that there's been any misconduct or 22 any type of tampering with regard to this matter, since 23 the case wasn't discussed, unless you have anything 24 otherwise that you'd like me to hear. 25 MR. BRILEY: Not at this point, Your Honor. I'd CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 like to hear what she says in the morning. 2 THE COURT: Sure. Like I said, up to this 3 point, I don't see anything, but we'll speak with 4 Ms. Vale in the morning. Anything else? 5 MS. HONEY: None from the State. 6 THE COURT: All right. Let's go off the record. 7 Thanks. 8 (Evening recess taken) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 STATE OF TEXAS ) 2 COUNTY OF WICHITA ) 3 I, Cayce Coskey, Official Court Reporter in and 4 for the County Court At Law No. 1 of Wichita County, 5 State of Texas, do hereby certify that the above and 6 foregoing contains a true and correct transcription of 7 all portions of evidence and other proceedings 8 requested in writing by counsel for the parties to be 9 included in this volume of the Reporter's Record, in 10 the above-styled and numbered cause, all of which 11 occurred in open court or in chambers and were 12 reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and accurately reflects the 15 exhibits, if any, admitted, tendered in an offer of proof 16 or offered into evidence. 17 I further certify that the total cost for the 18 preparation of this Reporter's Record is $______ and 19 was paid/will be paid by Wichita County. 20 WITNESS MY OFFICIAL HAND this the 4th day of

21 February, 2014.

Digitally signed by Cayce Coskey

22 Cayce Coskey DN: cn=Cayce Coskey, o, ou, email=clcoskey@att.net, c=US Date: 2014.02.04 11:34:56 -06'00'

____________________________

23 CAYCE COSKEY, CSR 6938, RPR Expiration Date: 12/31/2014 24 900 7th Street, Suite 201 Wichita Falls, Texas 76301 25 940.766.8266 Fax 940.766.8156

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 REPORTER'S RECORD 2 VOLUME 4 OF 6 3 TRIAL COURT CAUSE NO. 58017-E

4 THE STATE OF TEXAS § IN THE COUNTY COURT §

5 VS. § AT LAW NO. 1 §

6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS

7 8

9 ***************************************************** 10 DEFENDANT'S MOTION FOR MISTRIAL 11 FOLLOWING JUROR COMMUNICATION ***************************************************** 12

13 14 15 16 17 18 On the 22nd day of August, 2013, the 19 following proceedings came on to be heard in the 20 above-entitled and numbered cause before the Honorable 21 Gary W. Butler, Judge presiding, held in Wichita Falls, 22 Texas, Wichita County, Texas: 23 Proceedings reported by computerized 24 stenotype machine in real-time. Reporter's Record 25 produced by computer-aided transcription.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266

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

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

8 -AND-

9 Mr. Mark Richard Briley SBOT NO. 24069418 10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE 600 Scott Ave 11 Suite 204 Wichita Falls, TX 76301-2531 12 940.766.8199 Ms. Kristen Homyk Howcroft 13 SBOT NO. 24032433 THE LAW OFFICES OF JEFF MCKNIGHT, P.C.

14 900 8th Street Suite 815 15 Wichita Falls, TX 76301 940.687.1576 16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON

17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 I N D E X 2 VOLUME 4

3 (DEFENDANT'S MOTION FOR MISTRIAL FOLLOWING JUROR COMMUNICATION)

4 AUGUST 22, 2013 Page Vol.

5 Appearances................................. 2 4 6 WITNESSES 7 Direct Cross Voir Dire Vol.

EILEEN VALE 5 4 8 Defendant's Motion For Mistrial............. 7 4 9 Court's Ruling.............................. 9 4 10 Adjournment................................. 10 4 11 Court Reporter's Certificate................ 11 4 12

13 14 15 16 17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 P R O C E E D I N G S 2 (Open court, defendant present, no jury) 3 THE COURT: Mr. Briley, with regard to the -- 4 yesterday when investigator Cavinder testified with 5 regard to his contact with Ms. Vale. Would you like me 6 to get Ms. Vale in here to inquire as to that, or would 7 his testimony yesterday be sufficient? It's up to you. 8 What I'll tell you is what I'm gonna do is I'm gonna 9 reiterate my warnings to the jury this morning about 10 contact with anybody, so that may -- that may help. 11 But if you would like to -- if you would like to 12 have her come in and let me ask her about the contact 13 yesterday, I'd be more than happy to do that for you on 14 the record. 15 MR. BRILEY: I would like that, Your Honor. 16 THE COURT: All right. Let's go off the record 17 while we get Ms. Vale. 18 (Juror Vale enters courtroom) 19 Good morning. How are you, Ms. Vale? 20 JUROR VALE: Good. 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MS. EILEEN VALE, 2 having been subsequently sworn, testified as follows: 3 EXAMINATION 4 BY THE COURT: 5 It's my understanding that yesterday as we were 6 all leaving, Investigator Cavinder and you had a 7 conversation. Investigator Cavinder has already, when he 8 realized you were an actual seated juror in this, came 9 in, made the Court aware of it, made both sides aware of 10 it, and told us what the conversation was about. Would 11 you please tell us, in your own words, what the 12 conversation was you had with Investigator Cavinder? 13 JUROR VALE: He was just asking me about my 14 experience as a game warden. And I told them that I did 15 cross fit with Marissa Cervantes. 16 THE COURT: Okay. And Marissa Cervantes is? 17 JUROR VALE: She's a detective on the police 18 criminal vice squad. 19 THE COURT: Okay. Thank you. Did he inquire 20 anything about this case? 21 JUROR VALE: From what I remember, he -- he kind 22 of made a comment about -- I'm trying to -- because I was 23 heading down the stairs and he was telling me and then 24 saying about -- I'm trying to remember. Let me just -- I 25 just said it was okay, but we stopped the conversation CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 right there because he didn't realize that at point I was 2 a juror, a selected juror, I guess. 3 THE COURT: You don't remember? We just have to 4 be very specific. 5 JUROR VALE: I know. 6 THE COURT: Because it pertains to this case. 7 JUROR VALE: Right. 8 THE COURT: You're sure his question or comment 9 pertained to this particular case? 10 JUROR VALE: He just said -- uh, I think he 11 said, "You were struck, but then we got you on" or 12 something, or something to that effect, which I think -- 13 which I think -- it didn't -- I mean, to me, it didn't -- 14 I kinda said, okay, whatever. I'm going to leave right 15 now. 16 THE COURT: Was that all? 17 JUROR VALE: Yeah, I'm being honest. 18 THE COURT: I want you to be. I'm sorry. I 19 guess I should have put you under oath before we did 20 that, but let me go ahead and do that. Would you raise 21 your right hand for me? 22 JUROR VALE: Yes. 23 (Juror sworn) 24 THE COURT: The statements that you previously 25 made to me, they were the truth; is that correct?

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 JUROR VALE: Yes, correct. 2 THE COURT: Even though you weren't under oath, 3 you understood that you were to tell me the truth? 4 JUROR VALE: Yes, right, because that's the way 5 I was -- 6 THE COURT: Mr. Briley? 7 MR. BRILEY: Where was your juror badge at the 8 time that you were talking? 9 JUROR VALE: On my purse. I was wearing it on 10 my purse. 11 THE COURT: Okay. Anything further? 12 MR. BRILEY: No, Your Honor. 13 THE COURT: Okay, Ms. Vale. Thank you. 14 (Juror Vale exits courtroom) 15 THE COURT: Mr. Briley, any motions? 16 MR. BRILEY: Would you mind if I took two 17 minutes with my client. 18 THE COURT: Go right ahead. 19 (Attorney-client discussion) 20 THE COURT: Back on the record. Mr. Briley? 21 DEFENDANT'S MOTION FOR MISTRIAL 22 MS. HOWCROFT: Your Honor, at this time the 23 defense has a motion. We're going to move for a mistrial 24 in this case. It's our belief that Ms. Vale's testimony 25 here before the court today was, "You were struck, but CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 then we got you on." That's her recollection of what 2 occurred. The problem with that, obviously, is there's a 3 "we." We got you on; we liked you; we, from the State, 4 wanted you on it and you were struck, being the defense 5 obviously did not want you. The statement creates 6 relationships with the State and against the defense, and 7 I think we have no choice at this point but to ask the 8 Court to strike this entire panel and start this process 9 over. 10 THE COURT: Response from the State? 11 MS. HONEY: Your Honor, I would just ask the 12 Court if we could re-call Donnie Cavinder, our 13 investigator, just so we can clear up this discrepancy 14 between him and this juror. 15 MS. HOWCROFT: Whether or not there's a 16 discrepancy, Judge, the juror clearly believes that 17 that's the conversation she had, and no clearing up of 18 the testimony, whether or not it factually happened -- 19 and we're certainly not casting dispersions on 20 Mr. Cavinder -- 21 THE COURT: I know. 22 MS. HOWCROFT: This is her recollection, and the 23 question is whether or not she was influenced by the 24 event. We believe that the statement can't reflect 25 anything but influence. She was clearly uncomfortable CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 when presenting it to the court. And we would ask for a 2 mistrial. 3 MS. HONEY: Your Honor, can we allow for the 4 opportunity to have Ms. Vale come back to ask whether or 5 not she was influenced at all by what she recalls? 6 COURT'S RULING 7 THE COURT: No, I don't think that's necessary. 8 What I'm dealing with now is something that would -- 9 whether there was any -- and I'm not saying there was any 10 intention on it; I'm not saying who said what. However, 11 what remains is the appearance. And the appearance that 12 there was in her, at least in her mind, from her 13 testimony -- I mean that's -- Ms. Howcroft stated 14 correctly. That's exactly what I heard. 15 And I want both sides to have a fair trial. And 16 with that appearance that there was some influence with 17 regard to that juror, I am left with no option except 18 granting a mistrial. There is no way it can be remedied. 19 And I -- I know y'all have -- we have been through a 20 rough day yesterday. And I apologize that that work is 21 for naught. And I'm not casting fault on Investigator 22 Cavinder at all. I understand that was an honest 23 mistake. I completely believe that he believed he was 24 speaking to Ms. Steele. 25 However, it's that appearance that we just CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 cannot get by in this matter. So for that reason, I'm 2 going to grant a mistrial. Now, we'll talk later whether 3 double jeopardy has attached. I don't think it has, in 4 my opinion, at this point, but I haven't done any 5 research on it. We'll deal with that issue at another 6 time. 7 So what I'm going to do this morning, I'll bring 8 the jurors in; I'm gonna declare a mistrial. I'll just 9 say there was a motion brought up this morning outside 10 their presence. I'll declare a mistrial and I'm going to 11 release them. 12 And then if neither party has a problem with it, 13 I'm going to have the jurors come back to my chambers and 14 I'm going to explain to them what's happened. I'm not 15 going to go into a lot of detail about a mistrial, but 16 it's just part of the legal process. And then I'm gonna 17 try to talk to them about this nightmare we had 18 yesterday. So if y'all don't have any problem with that, 19 I think it's appropriate in this instance. 20 So give me just a couple minutes. I'm going to 21 go ahead and get my robe on and I'll have Karen bring the 22 jury in and I'll do it at that time, okay. All right. 23 Off the record. 24 (Proceedings concluded) 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 STATE OF TEXAS ) 2 COUNTY OF WICHITA ) 3 I, Cayce Coskey, Official Court Reporter in and 4 for the County Court At Law No. 1 of Wichita County, 5 State of Texas, do hereby certify that the above and 6 foregoing contains a true and correct transcription of 7 all portions of evidence and other proceedings 8 requested in writing by counsel for the parties to be 9 included in this volume of the Reporter's Record, in 10 the above-styled and numbered cause, all of which 11 occurred in open court or in chambers and were 12 reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and accurately reflects the 15 exhibits, if any, admitted, tendered in an offer of proof 16 or offered into evidence. 17 I further certify that the total cost for the 18 preparation of this Reporter's Record is $_______ and 19 was paid/will be paid by Wichita County. 20 WITNESS MY OFFICIAL HAND this the 4th day of

21 February, 2014.

Digitally signed by Cayce Coskey

22 Cayce Coskey DN: cn=Cayce Coskey, o, ou, email=clcoskey@att.net, c=US Date: 2014.02.04 11:37:16 -06'00'

____________________________

23 CAYCE COSKEY, CSR 6938, RPR Expiration Date: 12/31/2014 24 900 7th Street, Suite 201 Wichita Falls, Texas 76301 25 940.766.8266 Fax 940.766.8156

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 REPORTER'S RECORD 2 VOLUME 5 OF 6 3 TRIAL COURT CAUSE NO. 58017-E

4 THE STATE OF TEXAS § IN THE COUNTY COURT §

5 VS. § AT LAW NO. 1 §

6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS

7 8

9 ***************************************************** 10 APPLICATION FOR WRIT OF HABEAS CORPUS 11 SEEKING RELIEF FROM DOUBLE JEOPARDY AND

12 MOTION TO DISMISS THE INFORMATION BASED ON PREVIOUS MISTRIAL 13 ***************************************************** 14

15 16 17 18 On the 12th day of November, 2013, the 19 following proceedings came on to be heard in the 20 above-entitled and numbered cause before the Honorable 21 Gary W. Butler, Judge presiding, held in Wichita Falls, 22 Texas, Wichita County, Texas: 23 Proceedings reported by computerized 24 stenotype machine in real-time. Reporter's Record 25 produced by computer-aided transcription.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266

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

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

8 -AND-

9 Mr. Mark Richard Briley SBOT NO. 24069418 10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE 600 Scott Ave 11 Suite 204 Wichita Falls, TX 76301-2531 12 940.766.8199 Ms. Kristen Homyk Howcroft 13 SBOT NO. 24032433 THE LAW OFFICES OF JEFF MCKNIGHT, P.C.

14 900 8th Street Suite 815 15 Wichita Falls, TX 76301 940.687.1576 16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON

17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 I N D E X 2 VOLUME 5

3 APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING RELIEF FROM DOUBLE JEOPARDY 4 AND MOTION TO DISMISS THE INFORMATION 5 BASED ON PREVIOUS MISTRIAL

6 NOVEMBER 12, 2013 Page Vol.

7 Appearances................................. 2 5 8 Defendant's Oral Motion For Continuance..... 3 5 9 Defendant's Writ of Habeas Corpus........... 3 5 10 DEFENDANT'S WITNESSES 11 Direct Cross Voir Dire Vol.

CHRISTINA ROBERSON 10 13 7,10 5 12 Court's Ruling.............................. 18 5 13 Defendant's Motion To Withdraw.............. 19 5 14 Court's Ruling.............................. 21 5 15 Adjournment................................. 21 5 16 Court Reporter's Certificate................ 22 5 17 EXHIBIT INDEX

18 APPLICANT'S 19 NO. DESCRIPTION OFFERED ADMITTED VOL.

1 Volume 1 of 3 20 Reporter's Record Defendant's Motion

21 For Mistrial 16 16 5 2 Volume 2 of 3 22 Reporter's Record Defendant's Motion

23 For Mistrial 16 16 5 3 Volume 3 of 3 24 Reporter's Record Defendant's Motion

25 For Mistrial 16 16 5

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 P R O C E E D I N G S 2 THE COURT: Court's going to take up 58017-E 3 styled the State of Texas versus Byrias Roberson. We're 4 here on a writ of habeas corpus based upon the mistrial 5 that's been filed October 7th by Mr. Briley based on a 6 double jeopardy claim barring prosecution. The reply 7 from the State was filed today. I've had opportunity to 8 read both the, of course, the application and its brief 9 and the bench brief in opposition. 10 Mr. Briley, this is your motion. Is there 11 anything that you would like to submit to the court other 12 than what you have already stated in your brief? 13 MR. BRILEY: Yes, Your Honor. And, actually, at 14 this time I'm going to ask for a continuance on this 15 hearing to secure another witness, Donnie Cavinder. 16 There were just a few questions that I was going to 17 follow up with him. I did not subpoena him to this 18 hearing. I asked if he could be made available for this 19 hearing last week. I was told that they would check. I 20 didn't hear back. I did not subpoena him. I just have a 21 few questions for him. I have a few questions for 22 Ms. Roberson and the transcript. 23 MS. HONEY: Your Honor, the State is absolutely 24 opposed to defense counsel's motion for a continuance in 25 this case. Your Honor, the Court has already granted the CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 mistrial. We're confined to the record as it was on the 2 date the Court granted the mistrial. Defense counsel 3 moved for a mistrial on August 22nd, almost two months 4 ago. He had the opportunity at that point to ask 5 Investigator Cavinder questions if he felt the need to do 6 so and did not. He can't now come into court and try to 7 recreate the record that he should have created at the 8 time that he moved for a mistrial in this case. 9 THE COURT: Mr. Briley, this is typically legal 10 argument based upon the situation that occurred on a 11 mistrial. 12 MR. BRILEY: And, Your Honor, actually, the 13 questions that I would be following up with Mr. Cavinder 14 really wouldn't be about what took place that day, but 15 rather that he was an experienced investigator and was 16 familiar with the rules. 17 MS. HONEY: And, Your Honor, I object to that, 18 one, as being outside the record in the case. At the 19 time defense counsel moved for mistrial, none of that 20 testimony was ever brought forward. Again, he failed to 21 ask any questions when he was given the opportunity. If 22 he had wanted to ask Investigator Cavinder questions at 23 the time that he moved for the mistrial, it would have 24 been on August 22nd, not November 12th, almost two months 25 later.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: This is a separate motion. I don't 2 know of any rule that prohibits me to put on evidence for 3 my motion. 4 MS. HONEY: But, Your Honor, the motion has 5 already been granted by the court. 6 MR. BRILEY: That was the motion for mistrial. 7 This is a motion to dismiss the case. 8 MS. HONEY: But it's based on double jeopardy 9 based on the court's granting of the mistrial. It all 10 goes back to what happened on August 22nd. You can't 11 come back in almost two months later and try to re-ask 12 the questions you should have asked then. 13 THE COURT: Mr. Briley, what efforts were made 14 to try to secure the attendance of the investigator at 15 this hearing? 16 MR. BRILEY: Only making the criminal district 17 attorney Ms. Honey aware that we did intend to call him 18 and asked would he be available today. She told me, I 19 will check. That's it. 20 THE COURT: All right. Motion to continue is 21 denied. Go forward. 22 MR. BRILEY: Your Honor, I would call 23 Ms. Roberson, Ms. Christine Roberson. 24 MS. HONEY: Your Honor, prior to defense counsel 25 questioning Ms. Roberson, I would like to take the CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 witness on voir dire to determine what -- to determine 2 what relevance her testimony is going to have to our 3 current proceeding today. 4 THE COURT: That's fine. Come on up, ma'am. 5 Raise your right hand. 6 (Witness sworn) 7 THE COURT: Thank you. Just have a seat. 8 Ms. Honey? 9 MS. CHRISTINA ROBERSON, 10 having been first duly sworn, testified as follows: 11 VOIR DIRE EXAMINATION 12 BY MS. HONEY: 13 Q Ms. Roberson, where are you currently employed? 14 A I'm not. 15 Q Have you -- have you ever been employed by the 16 State of Texas? 17 A No. 18 Q You were not employed with the State of Texas on 19 August 22nd of this year? 20 A No. 21 Q Are you familiar with the -- the proceeding that 22 took place on August 22nd of this year? 23 A Yes. 24 Q How are you familiar with it? 25 A I was in the courtroom.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Q And what was your role in the courtroom on that 2 day? 3 A I was an observer sitting in the back. 4 Q So you weren't an employee of the State of Texas 5 on that day, were you? 6 A No. 7 Q You weren't an agent of the State of Texas that 8 day? 9 A No. 10 Q You didn't speak to anyone who was employed by 11 the State of Texas that day, did you? 12 A No -- my -- 13 Q That's a no? 14 A No. 15 Q So are you familiar with what the State of 16 Texas's intent, if any, was on August 22nd? 17 A Yes. 18 Q How are you familiar with the State of Texas' 19 intent on August 22nd? 20 A I'm married to Byrias Roberson. 21 Q Let me rephrase my question. Are you familiar 22 with -- are you familiar with why Investigator Cavinder 23 spoke to Juror Vale? 24 A Am I? 25 Q Are you familiar with why Investigator Cavinder CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 spoke to Juror Vale in this case? 2 A Yes. 3 Q Did you personally observe the conversation 4 between the two of them? 5 A No. 6 Q Did you overhear anything that was said? 7 A No. 8 Q Did you see them speaking to each other? 9 A No. 10 Q Did you speak to Investigator Cavinder after 11 that conversation took place? 12 A No. 13 Q Did you speak to Juror Vale after that 14 conversation took place? 15 A No. 16 MS. HONEY: Pass the witness. 17 MR. BRILEY: Ms. Roberson, I was just going to 18 ask you a few questions about where you were and what you 19 saw that day. 20 MS. HONEY: Objection, Your Honor. We've 21 already addressed this during voir dire of the witness. 22 THE COURT: Mr. Briley, I'm puzzled. She took 23 the witness on voir dire. She said she didn't observe 24 the conversation, observe the two, didn't hear the 25 conversation.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: I'm sorry. Could I proceed? 2 THE COURT: Go ahead. I'll give you some rope. 3 VOIR DIRE EXAMINATION 4 BY MR. BRILEY: 5 Q Ms. Roberson, did you witness when and where 6 Investigator Cavinder was at certain times in this 7 courtroom? 8 A Yes. 9 MR. BRILEY: Nothing further, Your Honor. 10 MS. HONEY: Nothing further from this witness, 11 Your Honor. 12 THE COURT: You may step down. 13 MR. BRILEY: Your Honor, there may have been 14 some objection to her testimony, but I wanted to create 15 for the record what she saw that day and where 16 Mr. Cavinder was at certain times. 17 THE COURT: So you have further questions for 18 the witness? 19 MR. BRILEY: Yes, I do, not on voir dire. 20 THE COURT: Go ahead and take the stand, ma'am. 21 DIRECT EXAMINATION 22 BY MR. BRILEY: 23 Q Ms. Roberson, were you in the courtroom during 24 Byrias' trial earlier this year? 25 A Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Q Where were you seated most of the time? 2 A The back row in the corner. 3 Q Were you there the whole time or did you miss 4 parts? 5 A No, I was there the whole time. 6 Q When the panel was dismissed so that the 7 attorneys could decide which panel members they wanted to 8 strike, were you there at that point? 9 A Yes. 10 Q Did you see Mr. Cavinder in the court at that 11 point? 12 A Yes. 13 Q When the attorneys came back from deciding which 14 preemptory strikes they wanted to use and they gave those 15 strikes to the court, were you in the courtroom at that 16 point? 17 A Yes. 18 Q Did you see Mr. Cavinder at that point? 19 A Yes. 20 Q When the panel was called back in, was 21 Mr. Cavinder back in the courtroom at that point? 22 A Yes. 23 Q When the jury was seated, was Mr. Cavinder in 24 the courtroom at that point? 25 A Yes.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Q When the panel was dismissed for the day, was 2 Mr. Cavinder in the courtroom at that point? 3 A Yes. 4 Q When the jurors, six jurors that were picked, 5 were read further instructions, was Mr. Cavinder in the 6 courtroom? 7 A Yes. 8 Q And when the six jurors were dismissed for the 9 day, was he in the courtroom at that point? 10 A Yes. 11 Q And when did he leave the court? 12 A He left when the jurors had left. Everybody was 13 out of the courtroom. 14 Q How many minutes would you estimate between the 15 time that the panel was dismissed and the time that the 16 six jurors were dismissed? 17 A Ten to fifteen minutes. 18 Q And how many minutes would you estimate between 19 the time that the six jurors were released and when 20 Mr. Cavinder and the assistant district attorney's came 21 back in to alert the court and the defense about the 22 conversation that took place? 23 A Between, I would say, maybe 5 and 10 minutes. 24 It wasn't that long. 25 MR. BRILEY: Pass the witness.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 CROSS-EXAMINATION 2 BY MS. HONEY: 3 Q Ms. Roberson, you're married to the defendant in 4 this case; is that correct? 5 A Correct. 6 Q How long have y'all been married? 7 A We've been married 23 years. 8 Q Do y'all have kids together? 9 A Yes, we do. 10 Q How many kids do y'all have? 11 A Two. 12 Q Now, because you're married to the defendant, 13 you don't want to see him get in trouble, do you? 14 A I wanna tell the truth. 15 Q You wanna tell the truth, but you also want this 16 case to go away, don't you? 17 A I want it resolved, yes. 18 Q Okay. In order to make that case go away, 19 you're willing to say a lot of things, aren't you? 20 A No, ma'am. 21 Q Okay. Now, Investigator Cavinder testified on 22 August 21st that he was not present in the courtroom 23 whenever the jurors were sworn in. Were you here when he 24 testified to that? 25 A No.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 Q So you weren't in the courtroom the entire time 2 that this case was going on, were you? 3 A No. 4 Q So there are parts -- 5 A Well, yes, when the case was going on, yes. 6 Q So when Investigator Cavinder testified under 7 oath that he was not present in the courtroom when the 8 the jurors were sworn in, you were in here, weren't you? 9 A Yes. 10 Q And you heard him say that, didn't you? 11 A Yes. 12 Q Ms. Roberson, do you have any formal training 13 involving conducting observations? 14 A Just my eyes. 15 Q Okay. So you don't have any formal training 16 doing observations? 17 A No, ma'am. 18 MS. HONEY: Pass the witness. 19 THE COURT: Mr. Briley, any further questions? 20 MR. BRILEY: No. 21 THE COURT: You may step down, ma'am. Thank 22 you. 23 MR. BRILEY: Your Honor, at this time I'd like 24 to ask the Court to take judicial notice of all the court 25 proceedings that happened in this Cause No. 58017-E.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: Were you also -- for the record as 2 well, the previous record? 3 MR. BRILEY: Sorry? 4 THE COURT: The previous record as well as the 5 testimony? 6 MR. BRILEY: Yes, all records that have -- of 7 any hearings. 8 THE COURT: Okay. The Court will take judicial 9 notice notice of that. 10 MR. BRILEY: And I'd offer Applicant's Exhibits 11 1, 2, and 3, which are the Reporter's Records Volume 1, 12 2, and 3 of the trial. 13 MS. HONEY: I have no objections to that. 14 THE COURT: One, two, and three are admitted. 15 Thank you. Any further witnesses or evidence, 16 Mr. Briley? 17 MR. BRILEY: No, Your Honor, although I would 18 just re-urge my motion for continuance, adding only that 19 shortly -- within five minutes of this hearing, I did go 20 to the front desk and ask for Mr. Cavinder. I also 21 e-mailed him. That's the only additional actions that 22 I've taken. 23 THE COURT: All right. I understand. The 24 court's previous ruling will stand. I note your 25 objection to the ruling for the record.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 MR. BRILEY: Applicant rests. 2 THE COURT: Ms. Honey? 3 MS. HONEY: State rests, Your Honor. 4 THE COURT: All right. Anything -- argument 5 that's not in the briefs, Mr. Briley? 6 MR. BRILEY: Well, yes, Your Honor. I hope I 7 don't -- 8 THE COURT: That's all right. Go ahead. 9 MR. BRILEY: -- repeat too much. But, of 10 course, we're here today on our application for writ of 11 habeas corpus, seeking dismissal of the information based 12 on double jeopardy grounds. The defendant does have a 13 right to have his trial completed by the first jury 14 impaneled. Although we were the ones who asked for the 15 mistrial in this case, the State's conduct was the cause 16 of that mistrial, and we believe that the objective facts 17 show that it was with the intent to goad us into a 18 mistrial. 19 Investigator Cavinder intentionally approached 20 Ms. Vale. Certain statements were made that showed 21 partiality on the part of Ms. Vale. We believe that it 22 was not a mistake, and I'll go into it shortly in just 23 one second. They then approached the defense counsel and 24 the court letting us know about the conversation, which I 25 assume happened either way. And as far as motive, I CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 don't believe that we are forced to show a motive, but 2 there were certain parts in the pretrial hearing that 3 could cause a motive to want more time. For example, 4 more time to give notice of any extraneous bad acts. 5 As far as -- I think this really comes down to 6 whether or not this was a mistake or this was something 7 with the intent to goad. I believe that Mr. Cavinder is 8 an experienced investigator in this case or certainly an 9 experienced investigator. He's familiar with the rules 10 and procedures of the trial process. He participated in 11 this case. He helped pick which jurors would be struck. 12 He was present for most of the proceedings. There might 13 be a difference in what he said than what Ms. Roberson 14 says as far as when he was there, but he was present for 15 a lot of the proceedings. 16 Several minutes went by between when 25 people 17 were released into the hallway, the jurors were read the 18 Court's instructions, and then six people were let out 19 into the hallway. An experienced investigator, I don't 20 think, would have made that mistake. 21 Further, the statement, "You were struck, but 22 then we got you on." When a person would say something 23 like that or something to that effect, they would show 24 that they knew at that time that that person was a juror. 25 We ask that you dismiss based on double jeapordy.

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 THE COURT: Ms. Honey, any response that's not 2 already addressed in your brief? 3 MS. HONEY: Your Honor, I will keep it very, 4 very, very brief. Defense counsel has not met his burden 5 in this case. His burden is intentional misconduct. I 6 just want to leave the court with something that the 7 court said at the time of the granting of the motion: 8 "I'm not casting fault on Investigator Cavinder at all. 9 I understand that that was an honest mistake. I 10 completely believe that he believed he was speaking to 11 Ms. Steele." Your Honor, even defense counsel just said 12 "I don't believe an experienced investigator would make 13 that mistake." Your Honor, we were all on the same page. 14 It was a mistake. It was not intentional. He is not 15 entitled to a dismissal of this case. 16 COURT'S RULING 17 THE COURT: Okay. All right. I'm going to take 18 that under advisement and have a ruling by five o'clock 19 tomorrow because I want to review the State's brief a 20 little bit further with regard to the standard that was 21 appropriately set forth in Wheeler. 22 Mr. Briley, we're set tomorrow on a motion to 23 withdraw as counsel for you in this same matter. Would 24 -- did you want to address that today, or would you wait 25 until tomorrow? And, Mr. Roberson, the same. Do you CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 want to address it today and save yourself having to come 2 back up tomorrow? That would be fine with the Court if 3 you're ready to do that. 4 MR. ROBERSON: I think we can go ahead and do 5 this today. 6 DEFENDANT'S MOTION TO WITHDRAW 7 THE COURT: Go ahead and do it today? Okay. So 8 you both know, I've read the motion to withdraw as 9 counsel. I've also read the letter that you had filed as 10 well. If you want to add more to that, you certainly can 11 at these proceedings. You don't have to. You can stand 12 upon -- if that's all you have to say, that's fine. I 13 understand. Mr. Briley, the same. It's up to you. 14 MR. BRILEY: Your Honor, could we have just two 15 or three minutes? 16 THE COURT: Sure. Let's go off the record. 17 (Discussion off the record) 18 THE COURT: Back on the record. Mr. Briley? 19 MR. BRILEY: Thank you, Your Honor. The only 20 thing that I would change about my motion for 21 withdrawal -- 22 THE COURT: Yes, sir. 23 MR. BRILEY: -- would be in Paragraph 2 where it 24 says that defendant has lost confidence in his 25 representation and does not trust counsel. I mean, I CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 would withdraw that or take that away. Really, my only 2 concern would be that in this last trial, you know, in 3 the quickness of things, there was a conflict of 4 personality that led to some miscommunication or lack of 5 communication, which after the trial was done led to an 6 argument, which is what caused the motion to withdraw. 7 THE COURT: Okay. 8 MR. BRILEY: Since then, I've spoken with 9 Byrias. We're civil. I don't have a personal problem 10 with him. My only concern would be that when we come 11 back to trial, if we do come back to trial, that that 12 problem would exist again. The only changing factor, I 13 think, is that Ms. Kristen Howcroft, who was counsel at 14 the time, she would not be here at this time. That might 15 have been a factor then, but -- 16 THE COURT: Okay. 17 MR. BRILEY: That's the only thing that I would 18 have to change about the motion to withdraw. 19 THE COURT: All right. Mr. Roberson, you can 20 speak to the motion if you like. However, I've reviewed 21 your letter again, so -- 22 MR. ROBERSON: Well, everything that I wrote to 23 you, Your Honor, in my letter stands. I agree with 24 Mr. Briley. I think that the conflict that existed that 25 day has been resolved, so I don't see any future CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 conflicts at this time. I don't have a problem with 2 Mark. I think we work very well together. So I would 3 like to keep him on as my attorney. 4 THE COURT: Okay. Now, I assume the State 5 doesn't have a dog in the fight? 6 MS. HONEY: Your Honor, we don't. 7 COURT'S RULING 8 THE COURT: Okay. All right. I'll issue a 9 ruling on that at the same time that I issue the ruling 10 on the writ, okay. And it will be by five o'clock 11 tomorrow that I send it out. I'll send it out by fax or 12 e-mail, okay. All right. Thank you. 13 (Proceedings concluded) 14 15 16 17 18 19 20 21 22 23 24 25 CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 1 STATE OF TEXAS ) 2 COUNTY OF WICHITA ) 3 I, Cayce Coskey, Official Court Reporter in and 4 for the County Court At Law No. 1 of Wichita County, 5 State of Texas, do hereby certify that the above and 6 foregoing contains a true and correct transcription of 7 all portions of evidence and other proceedings 8 requested in writing by counsel for the parties to be 9 included in this volume of the Reporter's Record, in 10 the above-styled and numbered cause, all of which 11 occurred in open court or in chambers and were 12 reported by me. 13 I further certify that this Reporter's Record of 14 the proceedings truly and accurately reflects the 15 exhibits, if any, admitted, tendered in an offer of proof 16 or offered into evidence. 17 I further certify that the total cost for the 18 preparation of this Reporter's Record is $_______ and 19 was paid/will be paid by Wichita County. 20 WITNESS MY OFFICIAL HAND this the 4th day of

21 February, 2014.

Digitally signed by Cayce Coskey

22 Cayce Coskey DN: cn=Cayce Coskey, o, ou, email=clcoskey@att.net, c=US Date: 2014.02.04 11:37:44 -06'00'

____________________________

23 CAYCE COSKEY, CSR 6938, RPR Expiration Date: 12/31/2014 24 900 7th Street, Suite 201 Wichita Falls, Texas 76301 25 940.766.8266 Fax 940.766.8156

CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266 r i ÿÿ

NO. 02-11-002 53-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

JOE DALE JOHNSON ){ ON APPEAL IN NO. 46,432-C V. ) { FROM THE 89th DISTRICT COURT STATE OF TEXAS ) { OF WICHITA COUNTY, TEXAS

) ( THE HONORABLE MARK T.

PRICE, PRESIDING

STATE'S MOTION FOR EN BANC RECONSIDERATION

TO THE COURT OF APPEALS:

Pursuant to Rule 49.7 of the Rules of Appellate Procedure, the State submits its motion for en banc reconsideration of the court' s reversal of two Life sentences for aggravated sexual assault of a child committed by a previously-convicted sex-offender.

The State seeks en banc reconsideration for two reasons: 1) because the memorandum opinion issued on February 14, 2013 makes repeated factual assertions that do not comport with the reporter' s record of the actual testimony and statements of the attorneys in the case; and 2) because the memorandum opinion fails to apply the Court of Criminal Appeals Irby analysis for determining whether the juvenile adjudication was

admissible . . I The memorandum opinion contains multiple factual inaccuracies that do not comport with the trial record .

.

1 While the memorandum opinion claims the State left a false impression with the jury about the reason for counseling, the record reveals that it was defense counsel, not the prosecutor, who interjected counseling into the proceeding.

The memorandum opinion states "The State left the impression with the jury that the complainant's emotional problems, watching pornography, conflict with his parents, and need for counseling all arose as a result of his victimization by school bullies and by Appellant ...This was a false impression that Appellant

3

was entitled to rebut...'7 See Memorandum Opinion at 10.

The record, however, reveals that it was defense counsel, not the State, who interjected counseling into the proceedings. During cross-examination of the State's first witness, the child's father, defense counsel asked for permission outside the presence of the jury to question the witness about the victim undergoing counseling in the fall of 2007. (R.R. 7:58- 63) . The trial court permitted the defense attorney to question the witness about the victim attending counseling. (R.R. 7:63). Then, in front of the jury, the defense attorney asked the witness about the victim attending counseling and why he was in counseling. (R.R. 7:64-65). Thus, it was defense counsel who first interjected counseling into the proceedings.

.

2 A fair reading of the record reveals that the prosecutor only mentioned the victim' s counseling in response to the defense attorney's questions.

On re-direct after the defense attorney had brought up counseling, the prosecutor asked the father two very

4

short questions about the counseling: "Did you consider it counseling or therapy?" and "So was he seeing a counselor?" (R.R. 7:67)

Then, when the child testified, the prosecutor asked the child three short questions relating to counseling :

"Were you seeing a counselor during that time period?"

"Were you having some emotional troubles?" and "Did you tell your counselor about those things?"

(R.R. 7 : 106) .

This minimal inquiry, initiated after defense

counsel had already asked the father about counseling, is completely unrecognizable from the memorandum opinion's characterization of the State leaving "the impression with the jury that the complainants emotional problems, watching pornography, conflict with his parents, and need for counseling all arose as a result of his victimization by school bullies and by Appellant, who caused him to participate in sexual activities. This was a false impression that Appellant was entitled to rebut..." See Memorandum Opinion at 10.

.

3 The fact that the State did not mention anything related to counseling in opening or closing conflicts with the memorandum opinion' s assertion that the State was relying upon some false impression in front of the jury.

The prosecutor did not mention anything relating to the victim attending counseling in his opening statement or in his closing argument. (R.R. 7:9-17; 9:85-91, 98-108). Thus, the prosecution was not advancing any false impression about the reason the victim was in counseling.

4 . The defense could not open its own door to the juvenile adjudication by interjecting counseling into the trial .

The memorandum opinion strangely opines that "the

State's questioning of the complainant and his father painted an incomplete and misleading picture of the complainant and the circumstances of his outcry. By developing the testimony as it did, the State opened the door to evidence that could have accurately conveyed why the complainant was in counseling, what motivation he may have had to make up a false accusation, and the degree to which he understood

6

sexual matters and to which he personally appreciated legal consequences imposed upon sex offenders." See Memorandum Opinion at 13.

This statement oddly overlooks the fact that it was the defense, not the State, who first interjected counseling into the proceedings. (R.R. 7:58-63). This statement also completely mischaracterizes the minimal questions by the prosecutor about counseling. (R.R. 7:67; 106). Finally, this statement ignores the fact that the State made no mention to the victim attending counseling in either its opening or its closing. (R.R. 7:9-17; 9:85-91, 98-108).

Rather, it was defense counsel who opened-the-door to the discussion of counseling through his questions of the victim's father. (R.R. 7:58-63). Under the open-door doctrine, the defense cannot broach a subject and then complain when the State inquires into that subject. See Heidelberg v. State, 36 S.W.3d 668, 672 (Tex. App.—Houston [14th Dist.], no pet.).

Furthermore, a party cannot through its own questioning and maneuvering open a door to get into collateral matters, extraneous offenses, and bad acts that would otherwise be inadmissible. See Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App. 1980). Thus, the law prohibits defense counsel from questioning the victim's father about the victim attending counseling, and then claiming because he raised the subject and interjected counseling into the proceedings, he has now opened the door for the juvenile adjudication to be admitted.

The fact that the memorandum opinion fails to acknowledge that it was defense counsel who interjected the victim' s counseling into the proceedings and instead incorrectly claims that it was the State who opened the door is troubling.

.

5 The memorandum opinion confuses and conflates counseling that the child was receiving in the fall of 2007 with court-ordered sex offender treatment that the child received after his adjudication in July 2008.

The memorandum opinion also confuses and conflates counseling the child received in the fall of 2007 with court-ordered treatment in July 2008: "The complainant also testified that his parents put him in counseling because he was sexually abusing his sister. There was evidence that the counseling was court-ordered as a result of the complainant's sexual abuse of his younger sister over several years." See Memorandum Opinion at

6 .

This statement is not accurate. Both the child and

the child's father testified that his parents put him in counseling in the fall of 2007. (R.R. 7:61, 161- 162) . The child was not ordered into treatment by a court until he was adjudicated on July 18, 2008 . See Defense Exhibit 1 July 18, 2008 Order of Probation.

This offense was reported to the Burkburnett Police Department on November 29, 2007. (R.R. 8:16).

Therefore/ any court-ordered counseling of the child in July 2008 was irrelevant to this case, and to the child' s mental state at the time the offense was reported. And, it is simply erroneous to say that there "was evidence that the counseling was court-ordered" when the counseling that the child was referring to was the fall 2007 counseling, which was clearly not court- ordered. (R.R. 7:61, 161-162).

6 . The memorandum opinion incorrectly asserts that the State created a false impression that the child was innocent in sexual matters .

While the memorandum opinion suggests that the

State left a false impression that the child was innocent in sexual matters, the record reveals no such impression. See Memorandum Opinion at 6, 13.

In fact, the State did not object to defense counsel's request to go into the child's pornography issues. (R.R. 7:63). The defense attorney asked both the father and the child about the child's issues with pornography. (R.R. 7:64-65, 149). Additionally, during closing argument the prosecutor never argued or

10

implied that the child was innocent in sexual matters.

(R.R. 9 :85-89, 98-108) .

. II The memorandum opinion fails to conduct the Irby analysis required by the Court of Criminal Appeals in determining whether a juvenile adjudication is admissible.

The Court of Criminal Appeals mandates that for a juvenile adjudication to be admissible, there must be a logical connection between the adjudication and a motive or bias that could affect the child's testimony. See Irby v. State, 327 S.W.3d 138, 153 (Tex. Crim. App.

2010) .

The memorandum opinion fails to conduct the Irby

analysis,1 or explain what the logical connection is between the juvenile adjudication and any motive the child had to lie. In fact, the juvenile charges were filed in May 2008, and the adjudication happened in July 2008. See Defense Exhibit 1 May 12, 2008 Original Petition and July 18, 2008 Order of Probation. The

LThe State's Brief extensively cited the Irby opinion and explained the Court of Criminal Appeals' requirement for a logical connection between the juvenile adjudication and a bias or motive that could affect the witness's testimony. See State's Brief 4-15.

child's outcry about this case was in November 2007. (R.R. 8:16). The memorandum opinion fails to explain how a juvenile adjudication 8 months after the child's outcry of sexual abuse provided any motive for the child's allegations of sexual abuse. Therefore, under the Irby rubric, the juvenile adjudication was not

admissible .

While the memorandum opinion cites Rule of Evidence

101(c) for the proposition that the rule barring impeachment by a juvenile adjudication was trumped by the right to confrontation, in Irby the Court of Criminal Appeals limits this situation to "a specific mode of impeachment—bias and motive—when the cross- examiner can show a logical connection between the evidence suggesting bias or motive and the witness's testimony." See Irby at 151. The Court of Criminal Appeals explained the important interest "in protecting the anonymity of juvenile offenders." Id. The memorandum opinion violates this very interest without demonstrating the logical connection between the

n

juvenile adjudication and any potential motive or bias affecting the child's testimony.

PRAYER

The State prays that the Court grant the motion for en banc reconsideration, withdraw the opinion of February 14, 2013, and affirm the judgment of the trial court .

Respectfully submitted,

Jpmn Gillespie

Fwrst Asst. Criminal District Attorney Wichita County, Texas

State Bar No. 24010053

Jol W. Brasher

Attorney

Wichita County, Texas

State Bar No. 02907800

Wichita County Courthouse 900 Seventh Street

Wichita Falls, Texas 76301 (940) 766-8113

FAX: (940) 766-8177

CERTIFICATE OF COMPLIANCE The State certifies that the brief contains 1723 words, after the applicable exclusions.

f

CERTIFICATE OF SERVICE

I certify that a correct copy of the State's Motion For En Banc Reconsideration was mailed to the office of Jeff Eaves, 900 8th Street, Suite 1400, Wichita Falls, TX 76301, (940) 322-2002, on this the 21st day of February, 2013.