Choice, Willie Edward

1q Jf:{q_._06 RECE\VED 1N The Court of Criminal COURT OF CRIMINAL APPEALS Appeals of Texas P.O. Box 12308 Capitol Station Austin, TX 78711 JAN 09 2015 Dear Mr. Abel Acosta, Clerk Abel Acosta, Clerk

I have enclosed a motion, rebuttal, and exhibits to recall facts in the post conviction proceeding cause no. 1284277-B. Please file and present these documents to the Honorable Judge of this court. Thank you. bmitted

/Z

CAUSE NUMBER 1 2.8 4 2 7 7- B .

WILLIE EDWARD CHOICE § IN THE COURT OF § vs § CRIMINAL § THE STATE OF TEXAS § APPEALS OF TEXAS §

TO TKE HONORABCE JUDGE OF THE COURT OF CRIMINA~ APPEA0S: Come now Willie Edward Choice pro se applicant, would like to inform the court after December 2, 2014 the clerk of the 176th District Court of Harris County Texas mail the forwarding copy of the trial courts finding of facts to the Garza unit Beeville Texas address where I am not retained cause a delay. Thereby inconvenience of the clerks error and due to the holidays I respectfully ask this court to review the enclosed filed copies, motion, rebttal and exhibit, (proof of the facts) in the case.

Respectfully Submitted

~ ' I . :

CAUSE NO. 1284277-8 WILLIE EDWARD CHOICE § IN THE COURT OF CRIMINAL § vs § APPEALS § STATE OF .TEXAS § AUSTIN TEXAS §

Motion to object to the trial court finding of facts and conclusion of law.

TO THE HONORABLE JUDGE OF SAID COURT: Comes now applicant Willie Edward Choice before this court in this

motion and object to the trial courts conclusion of law on the . .l ~allowing in the States application page 3 at 16 alleged the app-

licant was not placed in jeopardy twice for same offense. See

State wrif exhibit B and C indictment. In the probable cause rep~

art taken by affiant Jackie Blanchard during the forenic interview

of the complaintant Datavia M. Evangelista third paragraph under

probable cause. The complainant alleged on or about October 20,

2010 at 1006 Carolyn Ct., Humble Texas the offense supposedly

occurred against her. The affiant Jackie Blanchard appeared be-

fore the assistant district attorney of Harris county Texas and

stated under oath that Willie Edward Choice the defendant alleg-

edly committed the offfense against the child on or about March

17, 2010 inconstant with the childs statement in the report. In. the second paragraph in the probable cause report the affiant

interviewed the sister Davonqria Evangelista that stated during

the interview alleged the offense committed against her on M9rch

17, 2010 however the affiant Jackie Blanchard stated under oath that the offense allegedly occurred against the child Davondria

Evanglista on. or about October 20, 2010 inconstant with the re-

port~i This error violates the applicants right to due process of .. ~ law, U.S. Constitution fourteenth and fifth Amendment.

However, both girls testified in the fir$t trial cause no. 1284276

litigating their claim against the applicant therein was found

not guilty and acquitted of the offense alleged. The State was

barred from relitigating the s3me issues in a second trial.

Applicant believe that because of the affiant error to due process

of l~w both indictments should have been "Squashed", Applicants

trial counsel was on a fully probated suspension and was not

eligible to practice law in the state of Texas deceitfully ~ook

the case. Under the circumstances did not challenge the State

prosecutor or made any attempt to prevent a second prosecution.

Violated double jeopardy U.S. Canst. 5th Amendment. (see) doc-

ument from the State bar of Texas. Applicant pray that the Court

of Criminal Appeal will act accordingly as justice require.

CAUSE NUMBER 1284277-8

WI~~IE EDWARD CHOICE § IN THE 176TH DISTRICT COURT § vs § OF § THE STATE OF TEXAS § HARRIS COUNTY TEXAS §

REBUTTA~ TO THE HONORAB~E JUDGE OF TH£ COURT OF CRIM~NAL APPEA~S OF TEXAS: Comes now the applicant Willie Edward Choice before this Court, and files this rebuttal to the above cou.rt finding of facts and conclusion of law and recommendation. The applicant filed a motion for a evidentiary hearing Sept. 18, 2014 and no response from the trial court. (citing) Perillo v. Johnson 79 F3 441 5th Cir 1996 at 446,447. Therefore t~e applicant offer this proof in the records and portions of.the writ 11.07 that points out facts not

considered by the trial court and my trial counsel. The applicant I

pray that the court of criminal appeals review these facts offered in my behalf to prevent a unfair judgement. (Cite) Saline v. United States 709 F2d 160 2d cir 1983 at 168-69 and a miscarrage of justice.

IN THE COURT OF CRIMINAL APPEALS

The Applicant's Response to the Trial Court's Findings of Facts

and Conclusions of Law (State's Writ Page 5) The Trial Court alleges the Applicant receivec'btotality of representation sufficient to protect his rights to reasonably effective assistance of tri~l counsel. Applicant's Response: Applicants Writ 6 Memorandum of Law Ground One page 5 Trial Counsel Mr. Osborne sh::>Uld have cross-examined the State's witness, "Complainant Davondria Evangelista" from a prior~ trial with her sister- Datavia Evangelisi:a in which the Applicant was acquitted. There was no logical reason for counsel Mr. Osborne not to examine .3. critical witness as a ccitical stage· of the trial. While the same issues were being relitigated was Constittitional Error. United States v Cronic,,1466 U.S. at 659 (See Exhibit Al through 5 at

A5-23)

Issue 2. Mr. Osborn·~ did not object to the Court's jury charge at the guilt/ innocence phase of the trial or at the punishment phase of t~ial, which was limitecl to "egregious" "error''. [see exhibit B] Issue 3. Improper argument during voir dire and :::losing argument. Appl._icant's Response: Pr-osecutor stated the Applicant confessed to the crime, and that the Applicant lied on i:he witness stand. (See Exhibit C) Prosecutor c'luring voir dire insinuated no one lies abo1Ji: sexual abuse was improper. (Exhibit C2 at 19) "Misleaoing the Jury'' Issue 4: The Court alleged the Applicant must pcJVe harm of a venire par1el shuffled outside th·~ App 1 icant' s presen:::e. *2 .!\pp1icant's Response: The shuffle was verbal by Tdal Counsel Mr. Osborne and is unconst i tut iona l and no harm is nec?o of showing. Tex. Code Crim. Proc. art. 35.11 Scott v State, 805 s.w. 2o 612, 614 (Tex. app.- Austin 1991) Issue 5: The Court finds that the applicant did not object to Dr. Thompson's testimony at trial or raise the issue on appeal. Applicant's Response: Dr. Thompson did not me:?t the criteria of Tex. Code

Crim. Proc. Evio. R~le 703. This is a Constitutional violation of the Applicant's right to due process of l:~.·,v. Dr. Thompson had no data in the case are bas<~ on

an opinion of the facts in the case or had ever met the chilo Datavia Evangilista while the State and the outcry witness Sadyia Evangilista was asserting misleading the jury tha~ the child was being treated at the center where his is overseer. [$.?e exhibit El through 3] who never met the chj_ld. The Applicant was deprived of rGasonable effective protection of Trial Counsel and Appelant Counel not to raise an obvious fact..see Exparte Gardner 9'59 S.W.2d at 201 Issue 6: The Court alleged Blanchard Wds not inconsistent from ]1er probable cause affidavit in her testimony at trial. Applicant'~ Response: See state's writ (Exhibits D and E) Blanchard was very inconsistent in her testimony . . Blanchard stated in her report to the District Attorney that Dat~via. Evangelista alleged the offense supposedly occurred againt>t her on or about March 17, 2010: under Prob:~.ble Cause, Blanchard state's that in a interview the report allege() the child Datavia stated on or about October 20, 2010 was stat·~d by the complainant, a violation of due process of law to state date not alleged by complainant. Blanchard in the affidavit report state's the Applicant denied inserting his Einger inside their vaginas. (see Exhib.it Dl) The record shows Bl.=mchard testified at trial the Applicant had admitted to sticking his finger inside of the child's vagina inconsistent with *3 her report. [see Exhibit D2, D3] Therefore the State prosecuted the Applicant on both girls testimony in the first trial. Issue 7: ~he Court seeks proof of suppression of evidence in the record. Applicant's Response: The State filed a Motion Inlime to exc1ude that Datavia Evangelista had testified in the first trial where the Applicant was acquitted of poth girls testimony's which vilated his Fifth Amendment rights. Testimony is evi·'lence. (see Exhibit F) copy of the Motion Inlime limited my defense violated Tex. Code Crim. Proc. art 2.01 "They shall not suppre~1s facts" and violated U.S. Const. Fourteenth Amend. right to due process of law. Issue 8: The State alleges the Applicant was not placed in jeopardy twice for the same offense. (see State's writ Exhibit B and C indictments) Applicant's Response: The State prosecuted .the Applicant in the first tdal wherein "both cor:lplainant Is II testified under offense report number 0/R No" 10005703 Humble PD alleging the statement's the affiant observed in the forensic interview. The Applicant was found Not Guilty and Acquitted. The State used the same offense 0/R number No. 10005703 to reprosecute the Applicant using the same alleged v.-i..ctims ·from the first trial. Jeopardy attached to all the evidence offered at the first trial.

CONCLUSION OF LAW

Applicant prays the Court of Criminal Appedls finds:

l. Applicant's Trial Couns<~l was not effective.

2. Applicant was placed twice in jeopardy for the same offense.

3. Applicant's dght to due process of law was violat:=d.

4. Dismiss the charges.

51 1 Please call your next. 2 MS. BYROM: The State calls Davondria Evangelista., 3 THE COURT: You may proceed. 4 MS. BYROM: May it please the Court. Actually, your 5 Honor, if you don't mind I'm going to move up here. 6 THE COURT: That's fine. 7 DAVONDRIA EVANGELIST]\, 1 8 having been duly sworn, testified as follows: 9 DIRECT EXAMINATION 10 BY MS. BYROM: 11 Q. Good afternoon, Davondria. Could you please 12 introduce yourself to the ladies and gentlemen of the jury by 13 telling them' your name. 14 A. My name is Davondria Evangelista. 15 Q. Okay. Now, Davondria, you're going to have to speak 16 a little bit closer into the microphone, okay? 17 A. Yes. 18 Q. Can you say testing one two three? 19 A. Testing one two three. 20 MS. BYROM: Can you hear? 21 A JUROR: Uh-huh. 22 Q. (By Ms. Byrom) It's real important that you speak up 23 so that way everyone can hear you, okay? 24 A. Yes, ma'am. 25 Q. Okay. Davondria, how old are you? '··

'• 54

55 1 Q. Okay, good. 2 Did anyone live with you at the house with Mr. Will 3 besides your sister Datavia and your sister Rachel? 4 A. Yes, rna' ai14 5 Q. Who else lived there with you? 6 A. My mom, and Caleb, and Benjamin, my step-brothers. 7 Q. Who is Caleb? 8 A. He -- was my step-brother. 9 Q. And how old is he? 10 A. I don't know how old he is right now. 11 Q. Is he a big kid or a little kid? 12 A. He's about in the middle, like seven, eight. 13 Q. Okay. And what about your -- the other -- Benjamin, 14 how old was he? 15 A. Uh, I think he was about 15. 16 Q. Okay~ Where do you live now? Do you live with your 17 mom and Mr. Will now? 18 A. No, rna' am. 19 Q. Who do you live with now? 20 A. I live with my aunt. 21 Q. And what is her name? 22 A. Sadiyah Evangelista. 23 Q. And how long have you lived with her? 24 A. About a year and a half now. 2'5 Q. Okay. And who else lives there besides you and your

62 1 January 28th. 2 Q. Okay. Okay. I want you to take a moment and look 3 around the room, Davondria. Do you see the person in the room 4 that you call Mr. Will? 5 A. Yes, ma'am. 6 Q. Could you please point to him and kind of describe 7 where he's sitting? 8 A. Right there. He's sitting by Ms. Becky. 9 Q. Okay. And what is he wearing? 10 A. He's wearing a black su~t. 11 Q. Okay. Does he have on a tie or glasses or anything 12 like that? 13 A. Yes, ma'am. 14 Q. What else is he wearing besides a suit? 15 A. He's wearing a tie, glasses. 16 Q. Okay. 17 MS. BYROM: May the record reflect that she's 18 identified the defendant. 19 THE COURT: The record will reflect. 20 MS. BYROM: Thank you. 21 And I will pass this witness. 22 THE COURT: All right. Mr. Osborne. 23 MR. OSBORNE: I have no questions. 24 THE COURT: All right. May she be excused? 25 MS. BYROM: Yes, your Honor. r Because there was no evidence before the jury that r appellant had been charged with the sexual assault of the r complainant's sister,

not relevant to the evidence of appellant's acquittal was

issue of the proper punishment to be r assessed in the case being tried. r 7. Instructions to the Jury: Appellant did not

the Court's jury charge at the guilt/innocence phase of trial, object_~g

r or at the punishment phase of trial. (R.R. 6, 52, 72; R.R. 7, r 41-42) . Defense counsel's affirmative

objections to the charge," waived any error because it leads statements, "no

r the trial court to believe it is giving a charge to which the r defendant has no objection. Coleman v.

(Tex.App. Houston Dist~] 2001, State, 45 S.W.3d 175

pet. ref'd). Absent an r [1st

objection to the charge, review is limited to "egregious r error" which is error that goes to the very basis of the case, r deprives the defendant of a valuable right, or vitally affects

the defense. Texas Code of Criminal Procedure, Art. 36.19; r Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App. 1985).

r trial The application paragraph at the guilt innocence stage of

correctly defined the elements of the offense of r aggravated sexual abuse of a child and authorized a conviction r only if the alleged elements had been proven beyond a [ c:\appeals\choice\friv. brief 17 r

I (nfr-Dp-tA ,!:Yrrrt"\~+C£ee w:{{- ro4nrf. 1J) I 'ih·,~~f ... S·i~:f-e (H-ocsecl.l-1-or C los.;f\CtI A-t-qu _, Me:()+ 47 c .t 1 after consulting with his attorney, but I just want you to

2 remember what we discussed during voir dire, that the

3 presumption of innocence is not the presumption of credibility.

4 And you can consider any bias or motive that that man would

5 have to lie up there on the stand.

6 And you know that he did at some point in time,

7 because even though he confessed to the crime, and he's telling

8 something different now, he claims he was telling the truth on

9 both occasions. And you know that's not possible. This is a

10 man that's willing to say.whatever it takes to keep himself out

11 of trouble.

12 What should you be considering at this point in time?

13 Well, I submit to you there are four factors that you should

14 consider as part of your deliberation and what appropriate

15 punishment is in this case. First of all, I'll go ahead and

16 say it, mitigation. What has he done that's good in his life?

17 Consider that.

18 Two, future danger to society, is this person a

19 threat? Three, the seriousness of the crime itself. And four,

20 the lasting effect that that man's crime had on Datavia

21 Evangelista. So let's go through and talk about each and every

22 one of those things.

23 Mitigation, we haven't heard much about what he's

24 done that's good in his life. Sure, you heard that he stayed

25 out of trouble, that he hasn't been convicted of a felony or a

75 1 MS. BYROM: Okay. So would you agree with me that 2 children typically lie to get out of trouble, rather than to 3 get themselves into trouble? 4 VENIREPERSON: Oh, yeah. 5 MS. BYROM: Oh, yeah. Does that sound familiar to 6 everyone? 7 Okay. Now, this next part, it's audience 8 participation section. Raise your hand if you ever told a lie 9 in yoi..lr entire life, including when you were a child. 10 (Hands raised.) 11 MS. BYROM: And your hand should be up because if 12 your hand isn't up now, then you're lying now, because 13 everyone's told some little fib at some point in time. No, 14 mom, I didn't eat the last cookie. Now, keep 'em up. 15 THE COURT: There's one guy there that's never told a

16 lie. IMf't-ef'~ Jl-t-·y'-V·1e.Vlt (see ~ ..( ) 17 MS. BYROM: 'We.'=>v-Mp~~-t>lf t>~ ~re.dn;;\·llt"\ +-h~ It's up now. C..~t-tpi~M.,u..a,·\· will ~OT · Lie 18 Okay. Now, keep your hand up if you lied and told

19 someone that you were sexually abused when you really were not. J

20 Not a single hand, okay. 'IY¹ Pt-{) r~ !J.-rrrn ~ ( s ~e. vJt-,f p~~ 21 All right. Juror No. -- I think we covered this down

22 here. Let me go over here. I told you it was like a tennis 23 match. 24 Juror No. 15, what are your expectations for a child 25 witness? What do you think that they'll sound like or look

e.o.l .Pro .se.

' .'

AFFIANT WAS ADVISED BY THE DEFENDANT 1HATHE DID NOT TOUCH COMPLAINANT DAVONDRIA EVANGELISTA'S BREAST EXCEPT WHEN HE ACCIDENTALLY ELBOWED HER IN THE BREAST. THE DEFENDANT DENIED EVER INSERTING IDS FINGER INTO ErmER COMPLAINANT'S VA GINA (FEMALE SEXUAL ORGAN). THE DEFENDANT AGREED TO TAKE A POLYGRAPH EXAMINATION AND SHOWED EXTREME DECEPTION ON THE TEST. THE DEFENDANT REQUESTED TO SPEAK TO THE AFFIANT AFTER THE POLYGRAPH AND CONFESSED. THE DEFENDANT SAID TIIATHE HAD RUBBED ON THE COMPLAINANTS VAGINA ON THE OUTSIDE, BVf DENIED INSERTING IDS FINGER INSIDE THEIR. VAGINA'S. Tiffi DEFENDANT STATED TIIATHE DID GRAB AND SQUEEZE COMPLAINANT DAVONDRIA EVANGELISTA'S BREASTS AND TOLD HER THAT TiiEY WERE GETI1NG BIG, BUT DENIED TIIAT TinS WAS FOR A SEXUAL REASON. TilE DEFENDANT 111EN ADMIITED TO RUBBING ON BOTH COMPLAINANTS' BREASTS. THE DEFENDANT TIIEN STATED TIIATHE WAS JUST ADMIITING TO WHAT THE COMPLAINANTS ALLEGATIONS WERE BECAUSE HE THOUGHf IT WOULD "GO BEITER FOR lllM IN COURT". THE AFFIANT ENDED THE INTERVIEW/CONFESSION AT TIIA T POINT.

M ...... 0 M <l.J on "' 0... I

;:::; AGAINST TilE PEACE AND DIGNITY OF TilE STATE. "' r- ~ Sworn to and subscribed before me on NovemberS, 2010 "<t

"'0 <l.J

~ COMPLAINT <l.J u

70-71). The next time he called her into his bedroom, told r her to remove her underwear and lay down on his bed. He then r lay .down next to her and put his index finger in her vagina

(R.R. 5, 73-76). Appellant threatened to kill her if she told r anyone (R.R. 5, 72, 80). Her testimony was inconsistent as to r whether this type of touching occurred more than ?nee.

initially testified that appellant never again touched her in She

r a way that he shouldn't have (R.R. 5, 81), but admitted that r she told the prosecutor that it had happened five times (R.R.

5, 82) and went on to testify that he penetrated her vagina r with his finger a total of three times (R.R. 5, 82-87). r Datavia eventually told her aunt about the touching when

they were together in the restroom of a restaurant (R.R.5, 88-r 89, 101-102). Her outcry was confirmed by her mother, Thelma r Choice

(R.R .. 5, (R.R. 6,

57-61). 34), and her sister, Davondria Evangelista

The police were contacted, and DetectJ_ve r Jackie Blanchard of the Humble Police Department determined r that the first officer was contacted on October 23, 2010, and

the alleged abuse occurred the prior week. Tasha Rogers-James r conducted a forensic interview on Octob~r 25, 2010. She found

r that the complainant was able to distinguish between the truth r and a lie, and was able to disclose details about the sexual ! c:\appeals\choice\friv. brief 4 r

abuse (R.R. 5, 39-40, 45). r There was no physical or biological evidence of abuse and r no witnesses to the alleged sexual misconduct.

not testify at the guilt/innocence phase of trial. Appellant did

However, r Detective Blanchard testified that Appellant came to the r station voluntarily on October 26,

the complainant (R.R. 5, 22). 2010, and denied abusing

He returned on October 29, r L 2010, and gave a taped statement in which he admitted to

r sticking his fingers inside of the child's

contended that the complainant had been wetting the bed and he vagina, but

r was just trying to make her realize she shouldn't sleep so r soundly, and that he was checking to see if she were wetting

the bed (R.R. 5, 23-25). r Discussion r . The elements of the offense of Aggravated Sexual Assault

of a Child as alleged in the indictment are set forth in Texas r Penal Code, Sec. 22.021:

r Sec. 22.021. Aggravated Sexual Assault

r (a) A person commits an offense: (1) If the person: (B) intentionally or knowingly:

r (i) causes the penetration of the mouth or sexual organ of a child by any means, and

r c:\appeals\choice\friv. brief 5

r

5 1 MS. BYROM: The State calls Dr. Lawrence Thompson. 2 THE COURT: Thank you. 3 Whenever you're ready. 4 DR. L. THOMPSON, 5 having been duly sworn, testified as follows: 6 DIRECT EXAMINATION 7 BY MS. BYROM: 8 Q. Good morning, Dr. Thompson. How are you? 9 A. I'm fine. How are you doing? 10 Q. Good. 11 If you'd please introduce yourself by name to the 12 ladies and gentlemen of the jury. 13 A. Yeah, my name is Dr. Lawrence Thompson Jr. 14 Q. Dr. Thompson, where do you work? 15 A. I work at the Harris County Children's Assessment 16 Center. 17 Q. Okay. And what do you do at the Children's 18 Assessment Center? 19 A. I'm the director of therapy and psychologica.l 20 services there. 21 Q. Okay. What sort of training and background and 22 experience do you have to become a director of psychological/ 23 services there? 24 A. Well, I have a bachelor's degree in English and a 25 bachelor's degree in psychology from Shriner University, a

6 1 little small liberal arts college really in Kerrville, Texas, 2 Also have a master's degree in the clinical psychology and a 3 doctorate in clinical psychology from the University of 4 Michigan. 5 Q. And how long have you been practicing? 6 A. As a fully licensed psychologist, since 2001. 7 Q. Okay. And where have you spent the majority of your 8 career? 9 A. At the Children's Assessment Center. 10 Q. And what sort of things have you done at the 11 Children's Assessment Center? 12 A. Well, I came on to start with as a staff psychologist 13 there, and at that time my job responsibilities were primarily 14 seeing patients, individual therapy, group therapy, 15 psychological evaluations, suicide assessments, homicide 16 assessments, things of that nature. 17 Became director of psychological services and 18 research in about, I think 2005, and had a lot of the same 19 responsibilities, but more supervisory responsibilities, and 20 ultimately became the director of therapy and psychological 21 services. The agency combin!=d a couple of mental health 22 divisions that I oversee. And now I still provide some direct 23 services to patients, but we have a team of over 30 masters and 24 doctorate level mental health professionals and I supervise all 25 those folks' work at some level or another.

1 Q. Dr. Thompson, as a part of your practice, your

-- - 2 clinical practice, have you ever had a patient by the name of

3 Datavia Evangelista?

4 A. I have not.

5 Q. Okay. Have you testified here in Harris County

6 before as an expert?

7 A. I have.

8 Q. Would you say that's been on few or many occasions?

9 A. Many times.

10 Q. And is it fair to say that you're here to lend your

11 expertise regarding psychology of victims of ch~-~9-~exual abuse

12 to the jury today?

13 A. That's correct.

14 Q. Okay. Dr. Thompson, based on your training and your

15 experience, would you say that there's some general categories

16 that a child might exhibit, behavior that a child might exhibit

17 if they're the victim of sexual abuse?

18 A. There are some symptoms that we tend to see

19 heightened in most kids.

20 Q. Okay. Would you mind explaining to the ladies and

21 gentlemen of the jury kind of some general areas of concern.

22 A. Uh-huh. Well, depression is one thing that we see

23 heightened oftentimes in kids who have been sexually abused.

24 Depression, just sadness, crying, sleep difficulties, appetite

25 difficulties, fatigue, those types of things can be heightened 0 ...,·

CAUSE NO. 1284277

STATE OF TEXAS § IN THE 176th

vs. § DISTRICT COURT OF

WILLIE CHOICE § ~SCOUNTY,TEXAS

ORDER

ON TillS THE d3 day of ff&t,-c,L2012, came to be heard the State's Motion In Limine, and it is hereby ORDERED that said motion is:

_ _ _ _ _ _ _ Denied.

SIGNED AND ENTERED this the J-3 day of rflc;;-o-c/.-zm²

---- ,,

Footnotes

[1] restaurant in October of 2010?

[2] A. Yes, ma'am.

[3] Q. Who was there with you that da,y?

[4] THE COURT: I'm sorry, ladies and gentlemen, can

[5] you-all excuse us for just a minute. Take the jury out for U.$ .. C..orJS+~ s.f-47 I~ ~f""le~d,

[6] J. ust a minute. v·leo\0..+-l:o....,

[7] (Jury out.)

[8] THE COURT: Be seated.

[9] I'm sorry, you're just making me real real nervou~

[10] from the time that you called her, so

[11] MS. BYROM: It's okay. .'

[12] .I ·THE COURT: Deja vu all over again. ./,. . '.

[13] MS. BYROM: I'll give you a proffer as to what I : ...

[14] anticipate. Essentially I anticipate her just discussing what

[15] she observed happening there at the restaurant that day with

[16] her sister, and how the police were contacted, and then we'll

[17] be done with her. Just so the jury will understand that how

[18] the police got involved in the first place.

[19] THE COURT: Okay.

[20] MS. BYROM: And that's it. It really won't be very

[21] much longer.

[22] THE COURT: She knows all that. ·.·• (0 MS. BYROM: ~ 've spoke!), t£.J1er a_b_qgt not ta~g c:3) abo..:::~~ything_ involving herself and Mr:..! Choic·e. We're not

[25] _g,oing_to 2 cover any of that. Don't worry, it's just going to be .])e)a... vu; en v-teb5·!e.r's dt-ch6.neu-v=, cdr-ectd'-f seen, the or '1/ IUS It) 11 ha.'t~Vli p;-e.\(/ cu s I '1 Q,.)(.re .- t ced \':..f) 1 Q. Louder? 2 A. Yes, ma'am. 3 Q. And what about. Rachel, how old is Rachel? 4 A. Four. 5 Q. Okay. And who is Rachel's father? 6 A. Mr. Will. 7 Q. Who? 8 A. Mr. Will. 9 Q. And what is Mr. Will's full name? 10 A. Uh, Willie Choice. 11 Q. Okay. How do you know Mr. Will? 12 A. Because I used to stay with him a long time ago. 13 Q. You got to speak a little bit louder, okay, 14 Davondria? 15 A. I used to stay ~th h~. 16 Q. Okay. And when you used to stay with Mr. Will, where 17 would you stay with him, do you remember the street name? 18 A. Uh, not really. I think it was Caroline something. 19 Q. And was that in do you remember the city that that 20 was in? 21 A. Yes, ma'am. 22 Q. What city was that in? 23 A. Humble. 24 Q. Okay. That was here in Humble in Texas? 25 A. Yes, ma'am. l_