Henderson, Mellannise

PD-0124-15 February 4, 2015 IN THE UNITED STATES COURT OF CRIMINAL APPEALS 5TH Court of Appeals Number 05-14-00025-CR Trial Court: County Court at Law No 2. 002-80051-3031, Honorable Barnett Walker MELLANNISE HENDERSON PETITIONER V. THE STATE OF TEXAS RESPONDENT ______________________________________________________________ PETITION FOR DISCRETIONARY REVIEW Law Office of Mellannise Henderson-Love, P.L.L.C. Mellannise Henderson-Love Attorney for Petitioner State Bar No. 0079674 3102 Maple Avenue, Suite 400 Dallas, Texas 75201 Tel: (214) 638-8777 Fax: (214) 291-5331 IDENTITY OF PARTIES AND COUNSEL The following constitutes a list of all parties to the trial court's final judgment and the names and addresses of all trial and appellate counsel: Petitioner Mellannise Henderson Petitioner's trial counsel Kevin Brooks Petitioner's appellate counsel Mellannise Henderson Love Respondent The State of Texas Respondent's trial counsel Gregg Willis, District Attorney, 2100 Bloomdale Road, McKinney Texas 75071 Respondent's appellate counsel Gregg Willis, District Attorney, 2100 Bloomdale Road, McKinney Texas 75071 TABLE OF CONTENTS STATEMENT OF JURISDICTION: ............................................................................................ iv STATEMENT OF THE CASE:..................................................................................................... iv ISSUE PRESENTED ...................................................................................................................... v STATEMENT OF FACTS ............................................................................................................ vi SUMMARY OF PETITIONER’S ARGUMENT: .................................................................... vii ARGUMENTS AND AUTHORITIES: ................................................................................... viii B. DWI-Applicable Law: ........................................................................................................ viii NO PROBABABLE CUASE TO ARREST: ........................................................................... xiii IV. POINT OF ERROR: JURY CHARGE: ............................................................................ xiv V. POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE: ...................... xvii VI. JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY ................... xix MIRANDA WARNINGS: ....................................................................................................... xxi CONCLUSION AND PRAYER” ....................................................................................... xxii CERTIFCATE OF COMPLIANCE .......................................Error! Bookmark not defined. TABLE OF AUTHORITIES Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). ............................................................ 11 Brown v. State, 279 S.W. 837 (1926) ......................................................................................................... 15 Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) .................................................................. 18 Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996) .................................................................... 8 Dowthitt, 931 S.W.2d at 255. .................................................................................................................... 13 Emerson v. State, 880 S.W.2d 759 (Tex. Crim.App. 1994)....................................................................... 9 Greer v. State, 32 S.W.2d 845 (1930);Teel v.. State, 283 S.W. 834 (1924). .............................................. 15 Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.). ......................................... 3,9 Miranda v. Arizona, 384 U.S. 436 (1966) . ......................................................................................... 20 Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), ................................................................. 8 Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993); ................................................... 15 Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993); Robinson V. State, 102 S.W.2 220 (1937) ................................................................................................. 17 Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981); ...................................................................... 17 Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992 ........................................................ 9 Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). ............................................................. 17 Statutes and other authorities Article 38.22, §§ 2(a), 3(a)(1)-(2).............................................................................................................. 13 Tex. Code. Crim. Proc. Ann. art 38.22 (2011)........................................................................................ 13 18 U.S.C. § 3742 and 28 U.S.C. § 1291 . ..................................................................................................... 13 STATEMENT OF JURISDICTION: This is an appeal from a final judgment from the district court in a criminal case, and an order affirming the ruling from the 5th Court of Appeals. Jurisdiction is invoked to the Texas Court of Criminal Appeals pursuant to Article V of the Texas Constitution. STATEMENT OF THE CASE: This is an appeal from a conviction for the offense of Driving While Intoxicated, a Class B Misdemeanor, allegedly committed on December 1, 2012. Petitioner, Henderson, hereinafter (“Henderson”) pled not guilty to committing the offense of driving while intoxicated (DWI). (RR III 3 pg. 6). After a jury trial, the court sentenced Petitioner to ninety days confinement in the Collin County Jail and assessed a $ 500 fine. (CR.1, 2). The court suspended imposition of the sentence and placed Petitioner on twelve- month probation. (RR Vol. 4 39).Petitioner, Henderson, filed a Notice of Appeal on January 2, 2014, (CR 1). By this appeal, Petitioner presents the points of error below for the Court’s review. 1. Trial court information: a. The Fifth Court of Appeals: Opinion by Justice O’Neill. b. Information about the trial court: County Court al Law No 3, Collin County Texas c. “The trial court rendered a judgment in favor of Defendant” 2. Court of appeals information: a. The parties in the court of appeals: Mellannnise Henderson v. State of Texas. b. The district of the court of appeals: The Fifth District Court of Appeals, Dallas Division). c. The names of the justices who decided the appeal: Before Justices O’Neill, Fillmore, and Chief Justice Thomas, Retired. The author of the court’s opinion: Opinion by Justice O’Neill. The Court of Appeals affirmed the trial court’s decision. ISSUE PRESENTED 1. Whether the manner in which the HGN was administered was sufficient to lead to probable cause to arrest Petitioner? 2. Whether the Court erred, when the Jury Charge presented two questions to the jury regarding the normal use of the mental faculties and the normal use of physical faculties? 3. Whether the Court erred during Jury deliberations when it allowed the prosecution to replay and control the enhancement aspects of the video for the jury? 4. Whether the prosecution controlling the video during jury deliberations was tantamount to added evidence? 5. Whether the jury verdict was against the great weight of the evidence, and thereby requiring the conviction to be overturned? 6. Whether the evidence was factually insufficient to show that Henderson was driving while intoxicated? 7. Whether the case should have been dismissed for failure to Mirandize Henderson after she was in police custody? STATEMENT OF FACTS The facts in this case are not highly disputed. On November 30, 2014, Petitioner, Henderson left her downtown Dallas office after working late in preparation for a trial starting the following Monday1. (RR Vol. III pg. 20). After Midnight on December 1, 2012, Officer Corley with the Richardson Police Department pulled Henderson over for what he states was her “failure to maintain a single lane.” (RR Vol. III pg. 19). It is undisputed that after seeing the Officer’s flashing lights, Henderson promptly pulled over, when asked to retrieve her insurance card she complied and promptly exited the vehicle upon request. After the stop, Henderson explained that she saw emergency vehicle lights ahead, and was trying to determine if she needed to change lanes. (RR III 20, 47. 48). (RR Video Part 1) The Officer also corroborates the existence of this emergency vehicle, as he stated he was in route to assist an officer who was a quarter of a mile ahead of Henderson. According to both Henderson and the officer- from where Henderson was stopped, it could not be determined if the emergency vehicle was in the left or the right lane. (RR III 20, 47, 40). (RR Video Part 1) Officer Corley admits that Henderson responded appropriately to his strobe lights, and appropriately pulled over. Henderson followed his commands in a normal fashion, and was respectful to his commands throughout his exchange with her. (RR III 49, 50, 51), (RR Video Part 1). Officer Corley testified that there was no visible swaying by Petitioner Henderson. At the trial, Officer Corley admitted that he administered only one field sobriety test- the HGN, during the administration of the test the Officer failed to follow some of the basic requirements for the test in making a determination to arrest Henderson. Namely, Corley admitted, that according to the National Highway Transportation Safety Administration student manual, [1] Henderson was in route to her home. (NHTSA) one of the requirement for the Horizontal Gaze Nystagmus test (“HGN”) is to make sure the subject is not facing passing traffic while administering the test- as the headlights going back and forth could be a distraction for the subject. Notwithstanding this requirement, Corley had Henderson standing on a two- lane street facing traffic. Second, Corley admits that the NH TSA student manual states that in order to make a determination if someone is intoxicated, the Officer should perform all three-field sobriety test. (RR III 53-55). (RR III 20, 47, 40). Notwithstanding the Officer’s knowledge of the NHTSA manual, and the proper way to administer the test, he purposefully disregarded the instruction and arrested Henderson for DWI. (RR III 39, 63). Throughout the trial, there was no testimony that Petitioner did not have normal use of her mental and physical faculties. SUMMARY OF PETITIONER’S ARGUMENT: The court of appeals committed error when it affirmed the trial court’s judgment in favor of the Respondent. Accordingly, this Court should grant review, and should hold that the evidence failed to show beyond a reasonable doubt that Petitioner Henderson was driving while intoxicated. Moreover, other than the Officer’s uncorroborated subjective belief, there was no indication that Henderson exhibited poor balance, slow comprehension, or any other indicators that she was intoxicated2. On the other hand, throughout the initial stop, interrogation and the subsequent arrest, Henderson consistently maintained that she had to urinate, and repeatedly requested of the Officer for her to use the restroom ( (RR video Part I). Notwithstanding Henderson’s request, she was repeatedly denied access to a restroom. Henderson then explained that until she used the restroom, she thought the continuation with the HGN testing could compromise her success. Contrary to the Officer’s testimony, Henderson never refused field sobriety testing. Lastly, the HGN evidence [2] Unless the court accepts the admittedly ill performed HGN test. relied on to arrest Henderson was admittedly ill performed by the arresting officer. (RR III 20, 39, 40 47). In light of all the evidence presented during the trial, Henderson asserts to this high Court, that the jury verdict was against the great weight of the evidence, and the conviction respectfully should be overturned. STANDARDS OF REVIEW: In reviewing the legal sufficiency of the evidence to support a conviction, the court views the evidence in the light most favorable to the verdict. See Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975 , 113 S.Ct. 1422 , 122 L.Ed.2d 791 (1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.), cert. denied, 522 U.S. 844 , 118 S.Ct. 125 , 139 L.Ed.2d 75 (1997). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979). I. ARGUMENTS AND AUTHORITIES: B. DWI-Applicable Law: Under Texas law, a person commits DWI “if the person is intoxicated while operating a motor vehicle in a public place." Tex. Penal Code Ann. § 49.04 (Vernon 2008). A person is intoxicated if he does not have “the normal use of mental or physical faculties by reason of the introduction of alcohol ... or any other substance into the body." Tex. Penal Code Ann. § 49.01 (2). Under chapter 49 of the penal code, proof of a culpable mental state is not required for a DWI conviction. Id. § 49.11; Nelson v. State, 149 S.W.3d 206, 211 (Tex.App.-Fort Worth 2004, no pet.). However, an essential element of DWI is voluntary intoxication. See Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.). Because the facts of this case do not support that Henderson was a person who was intoxicated by not having the “the normal use of mental or physical faculties by reason of the introduction of alcohol ... or any other substance into the body. (RR III 49, 50, 51), (RR Video Part 1). Consequently, the verdict in this case, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, and in the interest of justice should therefore be overturned. See Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.). II. The Officer Wrongly Performed HGN Test: The Verdict was against the Great weight of the Evidence Presented: When reviewing the sufficiency of the evidence, the Court views the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 , 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) Henderson’s conviction was based on the officer’s testimony and his “administration” of the Horizontal Gaze Nystagmus Test ( “HGN”). Petitioner contends the conviction should not stand, because the officer admitted that he improperly administered the test. Notwithstanding the Officer’s admission, the Appellate court ruled that “Corley’s decision to arrest Petitioner was made on more than the results of the HGN test.3” The Petitioner contends that the Court of Appeals was wrong in its finding based on this Court’s reasoning in Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). [3] (Opinion Tab 1 page 7 ). This high Court addressed the HGN test in Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). The Emerson Court took judicial notice that the technique employed in the HGN test, and the theory behind the test are reliable for the purposes of Texas Rule of Evidence 702, and that the results from administration of the test by a police officer are admissible if the (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been applied properly on the occasion in question. Id. In the case at bar, prong three was compromised to Henderson’s detriment. As stated in the Emerson case, the Horizontal Gaze Nystagmus technique is applied properly when the officer follows the standardized procedures outlined in the Texas Driving While Intoxicated Detection Manual published by the National Highway Transportation Safety Administration. Id. According to the NHTSA Manual, the officer must administer the HGN test in a well-lit area or by use of a flashlight to illuminate the subject's face. The subject should not4 face toward the blinking lights of a police cruiser or passing cars, which may cause optokinetic Nystagmus5. According to the NHTSA, after the HGN test is complete, the officer will conduct the Walk and Turn (“WAT”) test and the One-legged Stand (“OLS”) test. Then the officer will make the decision to arrest, release or take other action6. In the instant case, during officer Corley’s testimony, he admitted that did not administer the test in accordance with the proper procedure. The officer specifically testified that he did not administered the HGN test in accordance with his training and the proper procedures; which essentially could have given a false positive according to the NHTSA7. (RR III 63). [4] Emphasis added by Petitioner. [5] Optokinetic Nystagmus is evident when an object that the eye fixates upon and objects moves quickly out of sight or passes quickly through the field of vision, such as occurs when watching utility pools pass by while in a moving car. 2006 NTHSA manual (defining optokinetic Nystagmus). ( Record Excerpt tab 4) [6] National Highway Traffic Safety Administration, U.S. Department of Transportation, Psychophysical Tests for DWI Arrests, (2006 [hereinafter 2006 NHTSA Study]. 7 The record also contains the videotape showing the traffic stop and testing process. Under redirect by his own counsel, Corley testifies that: Mr. ROLATER Q: And when it comes to the passing lights, why is it that under ideal conditions you don't have someone face passing traffic when performing the H G N test? OFFICER CORLEY: A: Under ideal conditions, if the traffic is heavy enough and cars are going by, the eyes can tend to follow the lights as it goes across. (RR III 63). Under cross- examination, he testified as follows: MR. BROOKS Q. What is the N H T S A student manual, officer? OFFICER CORLEY: A. That is a manual that provides all the instructions to peace officers on how to perform field sobriety tests. MR. BROOKS Q. It's basically a peace officer's bible for how to perform field sobriety tests? OFFICER CORLEY: A. Yes. MR. BROOKS Q. And in that -- is that the organization that certifies you to perform the H G N testing? OFFICER CORLEY: A. Yes, sir, it is. MR. BROOKS Q. There are certain things that they ask you to do prior to performing the H G N test? OFFICER CORLEY: A. Yes, sir. MR. BROOKS Q. One of the things they ask you to do is make sure that the subject is not facing passing traffic? OFFICER CORLEY: A. Yes, sir. MR. BROOKS Q. And that's so as to not be a distraction as far as those headlights going back and forth; correct? OFFICER CORLEY: A. Yes, sir. MR. BROOKS Q. To the same extent why you're supposed to take down your strobe lights8? OFFICER CORLEY: A. Correct. [8] Officer Corley turned off his headlights but keep on his headlights as the HGN was being performed. (RR CD part 01) MR. BROOKS Q. And we know on this video, Ms. Henderson is facing the passing traffic? OFFICER CORLEY: A. Correct. MR. BROOKS Q. And they recommend that in order to make a determination as to whether or not someone is intoxicated, that you perform all three of those tests? OFFICER CORLEY: A. Yes, sir. (RR III 53-55). According to Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), the results from administration of the test by a police officer are admissible if the (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been applied properly on the occasion in question. In this case, the officer admits that he failed to properly apply the technique in question- by not following the NHTSA Manual. (RR III 53-55). Petitioner Henderson was harmed because officer Corley never completed the HGN and did not conduct any further field sobriety tests before he concluded that Henderson was under the influence of alcohol9. Notwithstanding these facts, the jury returned a verdict of guilty. The ill preformed manner of the administration of the HGN resulted in having an injurious effect on Petitioner's substantial rights and had a substantial or injurious effect on the jury's verdict. Based on the evidence above, the guilty verdict in this case, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the interest of justice, should be overturned. [9] The HGN was the only test performed by officer Corley. III. NO PROBABABLE CUASE TO ARREST: The 5th Court of Appeals ruled that probable cause for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent person as believing that an offense has been or is being committed. Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 880 (Tex. App.—Fort Worth 2009, no pet.) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964). The error in the instant case was the facts were relied on to be trustworthy information. If taking the evidence in the light most favorable to the Petitioner, If the HGN was admittedly flawed by Officer Corley, and he admittedly failed to comply with the NHTSA Manual, then the probable cause to arrest Henderson was compromised and therefore cannot be based on reasonably trustworthy information. Moreover, to make a full custodial arrest, an officer must have probable cause to believe the person he is arresting has committed or is committing an offense. See Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed or is committing an offense. Id. at 413 . According to the NHTSA, after the HGN test is complete, the officer will conduct the Walk and Turn (“WAT”) test and the one legged Stand (“OLS”) test. Then the officer will make the decision to arrest, release or take other action, the decision to arrest Henderson was placed under arrest after an admittedly ill- performed HGN without any corresponding field sobriety tests. Henderson never said she would not take the test, only that she needed to use the restroom before she could continue. In the middle of the HGN, she is arrested according to the officer, after 4 cues of a possible six. (RR III)10 The officer arguably had a reasonable suspicion to pull Henderson over, but clearly no probable cause to arrest. Based on the evidence above, the guilty verdict in this case, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the interest of justice, should be overturned. IV. POINT OF RROR: JURY CHARGE: The court of Appeals erred in in ruling there was no reversible error when the trial court allowed two separate questions on the impairment theory of intoxication. In affirming this issue, the court of appeals appears to have committed an error of law. This high Court should grant review and correct the lower court’s error. A trial judge's charge to the jury must set forth the law applicable to the case. Relying on Tex. Code Crim. Proc. art. 36.14 (Vernon Supp. 2004), the appellate court has held that a trial court is required to fully instruct the jury on the law applicable to the case and to apply that law to the facts presented. It is not enough for the charge to merely incorporate the allegation in the charging instrument. Instead, it must also apply the law to the facts adduced at trial. This is because the jury must be instructed under what circumstances they should convict, or under what circumstances they should acquit. Jury charges which fail to apply the law to the facts adduced at trial are erroneous. Tex. Code Crim. Proc. art. 36.14(Vernon Supp. 2004). a. The Law Applicable to DWI: A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West 2012). The [10] 2006 NHTA Manuel defining cues before arrest, up to 3 in one eye with a maximum of six cues. Record Excerpts Tab 4. term "intoxicated" means (1) not having the normal use of mental and physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those substances, or any substance into the body, or (2) having an alcohol concentration of 0.08 or more. Id. § 49.01(2)(A)—(B) (West 2011). Thus, section 49.01(2) provides two alternative methods for the state to prove intoxication. These are referred to as the impairment theory (loss of normal use of physical or mental faculties) or the per se theory (alcohol concentration of .08 or more). See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010). In the case at bar, there is evidence that the state was able to present two questions to the jury regarding Henderson’s alleged impairment and normal use of mental and physical faculties. Essentially, the Court in separating the normal use of mental and physical faculties, and allowing two separate questions, would alter Tex. Penal Code Ann. §section 49.01(2), to provide for three alternative methods for the state to prove intoxication, instead of two. The Court’s charge to the jury read as follows: THE COURT: Now, if you find and believe from the evidence beyond a reasonable doubt that on or about the should read -- "on or about December 1st, 2012, in Collin County, Texas, Mellannise Henderson did then and there operate a motor vehicle in a public place, while the said “Mellannise Henderson was intoxicated by, one, not having the normal use of her mental faculties by reason of the introduction of alcohol into the body, or, two, not having the normal use of her physical faculties by reason of the introduction of alcohol into the body, then you will find the defendant guilty as charged” (RR Vol.4 pg. 8-9). Presenting these two questions to the jury was reversible error. In addition to the above, the Court initially indicated that no BAC would not be in the question to the jury but included the language of the BAC in the definition portion of the charge. The Court’s charge to the jury read as follows: MR. WILSON: Secondly, Your Honor, the state requests that in the application paragraph, bullet point number three, since no evidence was presented in regard to an alcohol concentration, we ask that the alcohol concentration paragraph be removed from the jury charge. THE COURT: Any objections by the defense? MR. BROOKS: Yes, Your Honor. I would object to that. I believe what's in there is following the statute. THE COURT: Well, it follows the statute. Why would it be necessary to put in? The jury couldn't find her -- there's not going to be any evidence, the state having rested and closed, there's no evidence of an alcohol concentration, so why isn't that just unnecessary language? (RR Vol 4 pg. 5) Notwithstanding the above exchange between the Court and Counsel, the Court used the BAC11 in the definition portion of the charge, which read as follows: "The word intoxicated means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances or any other substance into the body, or having an alcohol concentration of 0.08 or more of breath. "The term alcohol concentration as used herein means the number of grams of alcohol per 210 liters (RR Vol 4 pg. 8-9).. In this case, the record as a whole shows the trial court's error with the ambiguous jury instruction caused Petitioner some actual harm by the use of the definition of the BAC. It is well settled, that it is error for the trial court in its charge, to authorize a conviction on a theory that is not supported by the evidence. See, Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981);See, also, Ferguson v. State, 2 S.W.3d 718 (Tex. App. - Austin, 1999); Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993. In this case, the BAC instruction was not supported by the evidence. As such, the err is such to cause harm to the Petitioner, and resulting conviction should therefore be overturned. [11] Blood Alcohol Concentration V. POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE: There was error in affirming the decision to allow the prosecutor to control the replay of the video during jury deliberations. In affirming this issue, the court of appeals appears to have committed an error of law. This high Court should grant review, and correct the lower court’s error. After the close of the evidence and during jury deliberations, the Court essentially allowed the prosecution to control the review of evidence requested by the jury. (RR Vol. 4 pg.35). This is because there was not adequate equipment in the jury room for the jurors to see the replay video. (RR Vol. 4 g. 35). How this evidence was handled and manipulated was tantamount to additional or “other evidence.” Under appellate rule 21.3, a defendant must be granted a new trial when "after retiring to deliberate, the jury has received other evidence." TEX. R. APP. P. 21.3(f). Specifically, the error is evidenced by the following exchange: THE COURT: “it requires that the prosecutor be here because the technology of this video allows whoever is playing it to switch microphones and to switch camera views. Sometimes you can see someone using the camera that shoots outside of the vehicle, sometimes there is a camera that's inside the vehicle and it can be shot. Someone has to manipulate those options. The state introduced the video. I’m going to let them play it in same exact manner, same camera views, and same audio, same microphones as you saw yesterday. Once it's been played, I'll have the bailiff go up to you and meet you in the hallway. You can let the bailiff know if there's a section you need to see again or listen to again and we will bring you back in and let you see it or hear it as many times as necessary”. (RR Vol. 4 pg. 35) The problem with the Court’s account- the court could not control or determine if the prosecutor played the tape in the exact manner that it was played the day before- switching the camera and the audio at the exact time, or as the Court suggested “manipulate” the tape as it did the day before. Any variation in the review of the evidence is tantamount to “other evidence. Accordingly, appellate rule 21.3, is invoked and the Petitioner must be granted a new trial when "after retiring to deliberate, the jury has received other evidence. Moreover, the Court of appeals erred when it held that the replaying of a video already admitted into evidence and seen by the jury did not constitute receipt of other evidence for purposes of Rule 21.3(f) citing Thomison v. State, No. 11-10-00368-CR, 2012 WL 5989193 , at *3 (Tex. App.—Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication). The error here- what was admitted into evidence was the prosecutor playing the video a specific way, without any “switched microphones or switched camera views”. There is no way to determine if the tape was shown in the exact manner originally presented to the jury during the trial, or if as the court stated- if the prosecutor “switched microphones or switched camera views Unfortunately, Petitioner’s counsel failed to object to this issue at trial. However, Petitioner asserts that courts generally agree that they will consider waived arguments only under 'exceptional circumstances.' Walton v. Mental Health Ass'n, 168 F.3d 661 , 670 n.9 (3d Cir. 1999). In this regard, most courts consider whether failing to address the argument would result in a manifest injustice and whether the argument involves a purely legal question that can be decided on the existing factual record. Batiansila v. Advanced Cardiovascular Sys., 952 F.2d 893, 896 (5th Cir. 1992) (stating that it may consider waived argument if a 'miscarriage of justice' would otherwise result and it raises a pure issue of law) with Readco Inc. v. Marine Midland Bank, 81 F.3d 295, 302 (2d Cir. 1996) (stating that it may consider waived argument to avoid 'manifest injustice' or if argument presents pure issue of law) and Universal Title, 942 F.2d at 1314- 15) (stating that it may consider waived argument if resolution is 'beyond any doubt,' or if injustice might otherwise result or if it raises pure issue of law). Petitioner is asking the court to consider this argument in the interest of justice, in an effort to avoid a miscarriage of justice. VI. JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY In reviewing the factual sufficiency of the evidence to support a conviction, the Court is to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 48412. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. This standard acknowledges that evidence of guilt can 'preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. In the instant case, the jury verdict was against the great weight of the evidence, and should be overturned. As argued above, it is undisputed that after seeing officer Corley’s flashing lights, Henderson promptly pulled over, and promptly and courteously complied with his commands. (RR Video part 1) After being stopped, Henderson explained to officer Corley that she saw emergency vehicle lights ahead, and was trying to make a determination if she needed to change lanes. (RR III 20, 47. 48). The existence of this emergency vehicle is too corroborated by officer [12] The Court of Appeals used the Legal sufficiency standard- Although appellant’s issues challenge the factual sufficiency of the evidence, we apply only one standard, for legal sufficiency, to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Corley. According to both Henderson and the officer, from where Henderson was stopped, one could not determine if the emergency vehicle was in the left or the right lane. (RR III 20, 47, 40). Officer Corley admits that Henderson responded appropriately to his strobe lights, and appropriately pulled over. Henderson followed the Officer’s commands in a normal fashion, and was respectful to his commands throughout his exchange with her. (RR III 49, 50, .51). Officer Corley further testified that there was no visible swaying by Henderson. As detailed above, officer Corley admitted that he administered only one field sobriety test, the HGN- and during the administration of the test, he failed to follow some basic requirements for the test in making a determination to arrest Henderson. Namely, officer Corley admitted that one of the requirement for the Horizontal Gaze Nystagmus test (“HGN”) is to make sure the subject is not facing passing traffic while administering the test, as the headlights going back and forth could be a distraction for the subject, as that could be a distraction with the headlights going back and forth. Notwithstanding this requirement, Corley had Henderson standing on a two- lane street facing with consisted traffic. Second, Corley admits that the NH TSA student manual states that in order to make a determination if someone is intoxicated, the Officer should perform all three- field sobriety test. (RR III 20, 47, 40). (RR Video Part 1). Notwithstanding the Officer’s knowledge of the NHTSA manual, and the proper way to administer the test, he purposefully disregarded the instruction and arrested Henderson for DWI. (RR III 39). Further, there was no testimony outside of the admittedly flawed HGN that Henderson did not have the normal use of mental or physical faculties by reason of the introduction of alcohol ... To the contrary; the record is void of Henderson’s failure to have the normal use of mental or physical faculties by reason of the introduction of alcohol... Based on the evidence above, the guilty verdict in this case, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the interest of justice, should be overturned. VII. OFFICER’S FAILURE TO READ HENDERSON MIRANDA WARNINGS: In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court concluded that during custodial interrogation, a suspect is entitled to the Fifth Amendment right against self- incrimination and the right to have counsel present during such interrogation. The Court held that before questioning, a suspect must be informed of these rights. The United States Supreme Court defined custodial interrogation in Miranda as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The basis for a determination of custody does not hinge upon whether a police officer has spoken the words "arrest" or "in custody. Custodial statements are not protected by Miranda unless they are made as the result of “interrogation” by law enforcement. An “interrogation” under Miranda “refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Chavira, 614 F.3d at 133, Rhode Island v. Innis, 446 U.S. 29 (1980). See Miranda v. Arizona, 384 U.S. 436, 444 (1966). At no time during the stop, interrogation or after the “arrest” was Henderson Mirandize. (RR Part 1). Whether Defendant Was Entitled to Miranda Warnings Petitioner was “in custody” during the questioning and her answers on her willingness to take a breathalyzer or a blood specimen. Miranda protections do not attach unless both the custody and interrogation prongs are satisfied. Because Petitioner was “in custody” for the purposes of Miranda, she was entitled to Miranda warnings as a matter of law. Id. Based on the above, Petitioner is asking the court to consider this argument, to avoid a miscarriage of justice. CONCLUSION AND PRAYER Petitioner respectfully prays that because of the errors set forth above Court will reverse and set aside the conviction herein and remand this case to the trial court for a new trial. CERTIFICATE OF SERVICE The undersigned Counsel hereby certifies that on January 31, 2015, a true and correct copy of Petitioner’s Initial Brief was served via electronic mail on Collin County District Attorney Gregg Willis, 2100 Bloomdale, Counsel for Respondent, McKinney Texas 75071. /s/ Mellannise Henderson-Love [1] Master Index December 2 - 3, 2013 1 REPORTER'S RECORD VOLUME 1 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR [3] THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS [7] 8 _____________________________________________ 9 MASTER INDEX _____________________________________________ [11] 12 On the 2nd and 3rd days of December, 2013, the 13 following proceedings came on to be heard in the 14 above-titled and numbered cause before the Honorable 15 Barnett Walker, Judge Presiding, and a jury, held in 16 McKinney, Collin County, Texas. 17 Proceedings reported by computerized stenotype 18 machine. [2] Master Index December 2 - 3, 2013 1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 [7] 8 Attorneys for The State of Texas [9] 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 [14] Attorney for The Defendant [3] Master Index December 2 - 3, 2013 1 VOLUME 1 2 MASTER INDEX 3 ---------------------- 4 VOLUME 2 5 Jury Trial - Voir Dire of Jury Panel 6 December 2, 2013 7 PAGE VOL. 8 Pretrial Hearing ............................4 2 9 Court's Remarks to the Jury Panel ...........5 2 10 Jury Voir Dire by Mr. Wilson ...............35 2 11 Jury Voir Dire by Mr. Brooks ...............93 2 12 State Challenge for Cause .................133 2 13 Defendant Challenge for Cause .............135 2 14 Jury Impaneled ............................139 2 15 Jury Sworn by the Court ...................140 2 16 Jury Admonished ...........................141 2 17 Reporter's Certificate ....................144 2 [4] Master Index December 2 - 3, 2013 1 VOLUME 3 2 Trial on the Merits 3 December 2, 2013 4 PAGE VOL. 5 Arraignment .................................6 3 6 Opening Statement by Mr. Wilson .............7 3 [7] 8 WITNESS: DIRECT CROSS V. DIRE 9 CLIFTON CORLEY 10 By Mr. Wilson 10 v3 By Mr. Brooks 45 v3 11 By Mr. Wilson 60 v3 By Mr. Brooks 63 v3 [12] 13 PAGE VOL. 14 State rests ...............................66 3 15 Defendant rests ...........................67 3 16 Both Sides Close ...........................67 3 17 Reporter's Certificate .....................71 3 [5] Master Index December 2 - 3, 2013 1 VOLUME 3 2 ALPHABETICAL INDEX OF WITNESSES 3 DIRECT CROSS V. DIRE 4 Corley, Clifton 10 v3 45 v3 Corley, Clifton 60 v3 63 v3 [6] Master Index December 2 - 3, 2013 1 VOLUME 3 2 INDEX OF EXHIBITS 3 Use is indicated as follows: J - Jury R - Record Only D - Demonstrative 4 W/D - Withdrawn ID - Identification Only C- Court 5 EXHIBIT DESCRIPTION OFFERED ADMITTED USE 6 SX 1 DVD 22 v3 22 v3 J 7 SX 2 DIC 24 form 42 v3 42 v3 J [7] Master Index December 2 - 3, 2013 1 VOLUME 4 2 Trial on the Merits 3 December 3, 2013 4 PAGE VOL. 5 Charge Conference ...........................4 4 6 Charge Read to the Jury .....................7 4 7 Closing Statement by Mr. Wilson ............13 4 8 Closing Statement by Mr. Brooks ............18 4 9 Closing Statement by Mr. Wilson ............22 4 10 Jury Note Received .........................29 4 11 Verdict ....................................36 4 12 Punishment Phase ...........................38 4 13 Both Sides Close ...........................39 4 14 Sentencing .................................39 4 15 Reporter's Certificate .....................43 4 [8] State vs. Henderson December 2 - 3, 2013 1 STATE OF TEXAS ) 2 COUNTY OF COLLIN ) [3] 4 I, Marigay Black, Official Court Reporter in and for 5 the County Court at Law Number Two, County of Collin, State 6 of Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all portions 8 of evidence and other proceedings requested in writing by 9 counsel for the parties to be included in this volume of 10 the Reporter's Record in the above-styled and numbered 11 cause, all of which occurred in open court or in chambers 12 and were reported by me. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, if 15 any, offered by the respective parties. 16 Signed this 26th day of March, 2014. [17] 18 /S/ Marigay Black 19 MARIGAY BLACK, Texas CSR 351 Official Court Reporter 20 County Court at Law Number Two Suite 10344 21 2100 Bloomdale Road McKinney, Texas 75071 22 Tel: 972-548-3823 FAX: 972-548-3828 23 Expiration: 12/31/2014 mblack@co.collin.tx.us [1] Jury Trial December 2, 2013 1 REPORTER'S RECORD VOLUME 2 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR [3] THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS [7] 8 _____________________________________________ 9 JURY TRIAL _____________________________________________ [11] 12 On the 2nd day of December, 2013, the following 13 proceedings came on to be heard in the above-titled and 14 numbered cause before the Honorable Barnett Walker, Judge 15 Presiding, and a jury, held in McKinney, Collin County, 16 Texas. 17 Proceedings reported by computerized stenotype 18 machine. [2] Jury Trial December 2, 2013 1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 [7] 8 Attorneys for The State of Texas [9] 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 [14] Attorney for The Defendant [3] Jury Trial December 2, 2013 1 VOLUME 2 2 Jury Trial 3 December 2, 2013 4 PAGE VOL. 5 Pretrial Hearing ............................4 2 6 Court's Remarks to the Jury Panel ...........5 2 7 Jury Voir Dire by Mr. Wilson ...............35 2 8 Jury Voir Dire by Mr. Brooks ...............93 2 9 State Challenge for Cause .................133 2 10 Defendant Challenge for Cause .............135 2 11 Jury Impaneled ............................139 2 12 Jury Sworn by the Court ...................140 2 13 Jury Admonished ...........................141 2 14 Reporter's Certificate ....................144 2 [4] Jury Trial December 2, 2013 1 (Proceedings occurring in open court, 2 commencing at 9:32 A M. Defendant present.) 3 THE COURT: Does either side have any 4 motions we need to take up before we bring the panel in? 5 MR. WILSON: Not from the state, judge. 6 MR. BROOKS: Judge, I had filed some 7 pretrial motions, primarily discovery motions. I'm going 8 to represent to the court that the state has turned over 9 the copies of the offense reports as well as the video 10 recordings. I'm not aware of anything else. 11 THE COURT: Do you have anything else that 12 you intend to admit other than, you know, like photos or 13 anything of that nature? 14 MR. WILSON: No, Your Honor. 15 THE COURT: Any reports, supplements? 16 MR. WILSON: Everything that we have was 17 given to defense and all we plan to offer are the videos 18 and the D I C 24. 19 THE COURT: All right. And you've received 20 both of those; correct? 21 MR. BROOKS: Yes, sir. 22 THE COURT: All right. Fantastic. Do we 23 have a list yet, bailiff? 24 THE BAILIFF: Yes, just received it, judge. 25 THE COURT: All right. [5] Jury Trial December 2, 2013 1 (Unrelated docket matters heard, after which 2 the following proceedings were had in open 3 court. Jury panel seated. Defendant 4 present.) 5 THE COURT: Good morning, ladies and 6 gentlemen. As you enter the courtroom, everyone is 7 standing to pay their respects to you so you may feel free 8 to have a seat. Thank you. 9 Everyone else may be seated. 10 Bailiff, report, please. 11 THE BAILIFF: The panel is all present and 12 accounted for, Your Honor. 13 THE COURT: Thank you, bailiff. Good 14 morning, ladies and gentlemen. Welcome to Collin County 15 Court at Law Number Two. My name is Barnett Walker, and 16 I'm honored to be your elected judge of this court. 17 The reason we've asked the 24 of you to come 18 here this morning is we need six of you to sit on the jury 19 and decide the facts in this case. 20 One of the first questions that I often hear 21 from people is, number one, how long is this going to take? 22 I don't know any more about the case than you do right now. 23 I know the defendant's name, I know what the charge is. 24 The system is intentionally designed so that 25 I don't know any more than you so I don't start prejudging [6] Jury Trial December 2, 2013 1 the evidence just as we don't want you to start prejudging 2 it. But I have asked the attorneys and both sides assure 3 me they believe this case will be concluded today. 4 So based on that information, is there 5 anyone here who, for some reason or another, cannot give us 6 their undivided attention for the remainder of the day, 7 possibly let's include tomorrow up unto, say, 8 12:00 o'clock? Anyone have any plane tickets, caring for 9 -- is anyone caring for someone who's sick? Are you sick 10 yourself? Do you -- are you the single childcare provider 11 for a child under 12? Any of those things apply, raise 12 your hand, please. Okay. Great. Thank you. 13 One of the other questions I get is, Well, 14 if you only need six of us, why are there 24 of us here? 15 In certain cases, people come to jury service and all have 16 had different experiences, life experiences. Some cases 17 more than others generate emotions. 18 For instance, this is a D W I trial. For 19 different reasons, some of you may have very strong 20 feelings about D W I. That might be because you had 21 someone in your family who struggled with alcoholism, it 22 might be that you know someone or someone you cared for was 23 injured by a drunk driver, and because of that, we need to 24 make sure that whichever people we put on the jury are not 25 encumbered by feelings that would make them lean towards [7] Jury Trial December 2, 2013 1 one side or the other. Does that make sense? 2 What we're going to do here this morning is 3 called voir dire. You've taken an oath so far. And that 4 oath was not to follow the law. Okay. You've only taken 5 an oath to be truthful about your feelings and express 6 those feelings. That's going to become very important 7 because the first six of you on the jury are on the front 8 row right now, beginning with Ms. -- is it Radice? 9 VENIREPERSON: Radice. 10 THE COURT: Radice. Ms. Radice. 11 Ms. Radice, all the way to Ms. Stelling-Parker. 12 VENIREPERSON: Yes. 13 THE COURT: Y'all are the jury. The six of 14 you right there on the front row. As time goes on and the 15 lawyers start asking questions, one of them may strike you. 16 Each side is allowed to strike three people. They can 17 strike you for any reason whatsoever except gender, race 18 and national origin. Okay? But if one side hears a 19 response from you and -- that causes them concern, they may 20 decide to strike you. If they struck one of you, then 21 Kelly Mercer, you would be, sir, on the jury. And it goes 22 on down the row. 23 Now, the reason I tell you that is because 24 sometimes people feel a little shunned if they're in the 25 back row and the four of you on the back row because you [8] Jury Trial December 2, 2013 1 don't get asked as many questions as, say, the people on 2 the front two rows and I wanted you to understand why that 3 is. Because eight out of 10 times, the jury is picked 4 within the first 15 or 16. So, David Christopher, raise 5 your hand? Everybody to Mr. Christopher's right and 6 everybody on the front row, you're in the splash zone at 7 Sea World. You're most likely going to get picked. The 8 people, though, to the left of Mr. Christopher, don't fall 9 asleep. About one out of every eight or nine times, we 10 don't even get six people with the 24 that are here. All 11 right. 12 Is there anyone here that speaks another 13 language besides English? Carbajal? 14 VENIREPERSON: Yes, sir. 15 THE COURT: What do you speak? 16 VENIREPERSON: Spanish. 17 THE COURT: Thank you. Did I butcher your 18 name? Did I say your name wrong? 19 VENIREPERSON: No, it's right. 20 THE COURT: It's correct. Okay. Thank you. 21 Anyone else? Mr -- is it Noi-Mingle? 22 VENIREPERSON: Yes. 23 THE COURT: Mr. Noi-Mingle, what languages 24 do you speak? 25 VENIREPERSON: It's a local dialect. Gan. [9] Jury Trial December 2, 2013 1 THE COURT: I can't hear you. 2 VENIREPERSON: It's a local dialect. Gan. 3 THE COURT: Okay. And the reason I ask that 4 is because, before I became a lawyer, I was in the military 5 for 22 years. And one of the first things they do is they 6 want to find out if you're someone that can learn a second 7 language quickly. I took the test. I was anxious to get 8 the results. I came back and said, How did I do? And they 9 said, We're shocked you can even speak English. You're 10 terrible. You don't have the gift of hearing those subtle, 11 you know, words. And so for those of you who speak more 12 than one language, I really, really wish I had that 13 ability. But I don't know how long you've been speaking 14 English. 15 When we get through with the process today, 16 if you -- if you have had trouble understanding what was 17 said, let me know. Okay? We don't want to put you on a 18 jury if you're having trouble understanding what's taking 19 place. But if you are able to understand, we would love to 20 have you. Does that sound fair? 21 VENIREPERSON: Yes. Because I feel like I 22 not understanding a lot of English. You know, I feel like 23 I understand sometimes a few but it's not 100 percent. My 24 English is -- 25 THE COURT: Well, your English is better [10] Jury Trial December 2, 2013 1 than my Spanish, I'm sure. 2 VENIREPERSON: I'm going to try. If I feel 3 like I'm going to -- 4 THE COURT: You're the best person to know. 5 So when we're done, before -- before we pick the jury, I'll 6 ask you, Ms. Carbajal, were you able to keep up and 7 understand everything? And you'll let me know. And if you 8 are, great; and if you're not, then we'll excuse you. 9 VENIREPERSON: Sure. 10 THE COURT: Okay? All right. Thank you 11 both very much. 12 Okay. We're going to go over some things 13 that also causes sometimes people to have some 14 reservations. I want to explain this to you. What our 15 goal is is not to exclude you from jury service. That's 16 not our purpose. Our purpose is to keep from putting you 17 in a position where we feel like you're going to have to 18 violate your conscious. Okay? 19 And by that, I mean, I went to law school 20 with someone who thinks -- and still this day, I run into 21 him and he still feels this way. He thinks that this 22 country has spent entirely too much money criminalizing the 23 use of marijuana. And he thinks the marijuana laws are 24 just dumb. That it causes young people to have a criminal 25 record. That this smoking marijuana is no different than [11] Jury Trial December 2, 2013 1 alcohol. And so if he were called to be on a jury and then 2 the jury will take a second oath and that oath will be that 3 you will follow the laws that I give you. Okay? He would 4 have a very difficult time being on a marijuana trial 5 because he believes that law is just retarded. Okay? 6 So if he really believed the state proved 7 their case and the person was in possession of marijuana, 8 he would be in a conflict between what he thinks he should 9 do and what he's taken an oath to do. He would want to 10 find the person not guilty because he thinks the law is 11 unethical and unfair but he took an oath to follow that 12 law. 13 If you have any conflicts like that, that's 14 what we're just trying to find out from you. People ask me 15 all the time in social gatherings -- it happened over 16 Thanksgiving -- Hey, you're a judge, how do I get out of 17 jury duty? I don't know how to tell you to get out of jury 18 duty but I can tell you how to get on the jury. All right? 19 Both sides are going to be listening for 20 things that cause them concerns. If you sit there and 21 you're quiet, welcome to the luxury seats because no one is 22 going to strike you. Okay? So this is your time to be 23 honest about how you feel, express yourself, there are no 24 right or wrong answers whatsoever. 25 Now, this is a criminal case so that means [12] Jury Trial December 2, 2013 1 the State of Texas -- and I'll introduce the parties to you 2 in just a moment -- has the 100 percent burden in this 3 case. That means that they are going to have to prove 4 certain things to you. Those things are like a checklist 5 of elements that constitute the offense of driving while 6 intoxicated. And if they do not convince you beyond all 7 reasonable doubt of all of those elements, then you are 8 required to vote not guilty. 9 Does everyone understand that? 10 Okay. Now, here are the parties. First of 11 all, to the right is my bailiff, Danny Jones. I've already 12 introduced myself. I'm Barnett Walker. The woman to my 13 left is my court reporter, Marigay Black. 14 Representing the State of Texas today is 15 assistant district attorney, Justin Wilson. 16 MR. WILSON: Morning, everybody. 17 VENIREPERSONS: Morning. 18 THE COURT: Assisting Mr. Wilson is 19 assistant district attorney, Ms. Geeta Singletary. 20 MS. SINGLETARY: Good morning. 21 THE COURT: The defense attorney in this 22 case is Mr. Kevin Brooks. 23 MR. BROOKS: Good morning. 24 VENIREPERSONS: Morning. 25 THE COURT: Mr. Brooks' client and the [13] Jury Trial December 2, 2013 1 defendant in this case is Ms. Mellannise Henderson-Love. 2 THE DEFENDANT: Good morning. 3 VENIREPERSONS: Good morning. 4 THE COURT: Does anyone recognize or know 5 any of the parties that I've just mentioned? 6 Yes, sir. Is it Mr. Kendall? Or, no. 7 Mr. Brown? 8 VENIREPERSON: I recognize the bailiff, Your 9 Honor. 10 THE COURT: You recognize the bailiff? 11 VENIREPERSON: Yeah. 12 THE COURT: How do you know him? 13 VENIREPERSON: I'm a deputy sheriff in 14 Collin County. 15 THE COURT: What do you think about him? 16 VENIREPERSON: He's a pretty good egg. 17 THE COURT: Is he all right? Okay. Good. 18 Anything about the relationship between you and my bailiff 19 that would be unfair to the other side, that cause you to 20 lean one way or the other? 21 VENIREPERSON: No, Your Honor. 22 THE COURT: Okay. Thank you. 23 Anyone else? 24 Is there any -- now, look to your right and 25 left. I know it feels kind of funny to stare at someone [14] Jury Trial December 2, 2013 1 right next to you. Look behind you. Do you recognize 2 anyone else on the panel? 3 It's not that unusual. About one out of 4 every six or eight times, we'll have either co-workers, 5 husband and wife, boyfriend/girlfriend, that kind of thing. 6 And that's perfectly fine for those to serve on the same 7 jury provided that you're comfortable arguing with that 8 person. Okay? If you're not, then that would be unfair. 9 So I'm glad no one knows anyone. 10 Now, one of the things that kind of comes up 11 is, you know, it's almost unavoidable, that one of the 12 attorneys, or both, are going to ask you questions that may 13 seem like it's prying into your private life. They're not 14 trying to embarrass you. They just want to know a little 15 bit more about you. If you're asked a question and the 16 answer does apply to you, for instance, Have you or someone 17 in your family ever been, you know, arrested for D W I, if 18 that applies to you, you're required to raise your hand. 19 However, if they say, Well, do you want to talk about the 20 particulars, you are not required to do that in front of 23 21 of your newest friends. Okay? You can just say, I don't 22 want to discuss the details of it in public, and we'll 23 bring you back in when it's just the attorneys and myself. 24 Is that fair? All right. 25 Who here knows what the Fifth Amendment is, [15] Jury Trial December 2, 2013 1 just a basic -- well, that went quick. Ms. White. What is 2 it? 3 VENIREPERSON: It's the right to due 4 process. 5 THE COURT: Close. That's the Sixth 6 Amendment. 7 VENIREPERSON: Fifth. Yeah. The due 8 process. You have your rights and your -- 9 THE COURT: It falls under the umbrella but 10 what specifically is the Fifth Amendment? 11 VENIREPERSON: Well, that's what I thought 12 it was. 13 THE COURT: You're within what they call the 14 umbrella level. 15 Yes, sir. 16 VENIREPERSON: You have the right not to 17 incriminate yourself. 18 THE COURT: Correct. Okay. We have three 19 different types of trials in this country. 20 We have civil cases. If you sue someone or 21 they sue you, you can absolutely make them go up on the -- 22 up on the witness chair and testify and ask them questions 23 under oath. If that's the -- that's the civil cases. 24 Then we have family law cases. That's 25 generally when there's divorces or C P S is getting [16] Jury Trial December 2, 2013 1 involved about whether they're going to take a child out of 2 a home. Once again, you can put that parent up on the 3 stand, the State of Texas can call that parent, make that 4 parent answer questions under oath. 5 The only case at trial where you cannot 6 force someone to testify is in a criminal case. Okay. So 7 if you're a defendant and you've been accused of a crime, 8 the State of Texas has absolutely no right whatsoever to 9 call you as a witness at your own trial. That was an 10 amendment to our constitution. 11 Ms. White, why do you think that our 12 forefathers wanted to give special protection to someone in 13 a criminal case? 14 VENIREPERSON: Because when the British were 15 in our country, we didn't have the same rights. 16 THE COURT: That's right. Who knows what 17 the number one fear in America is? Every year they do a 18 poll and it's number one every time. 19 VENIREPERSON: Being accused of something 20 you didn't do. 21 THE COURT: Close. Yes, sir? 22 VENIREPERSON: Mr. Jones, the bailiff, 23 earlier stated that he thought it was public speaking. 24 THE COURT: Mr. Jones is going to get a 25 beatin' at lunch. [17] Jury Trial December 2, 2013 1 (Laughter) 2 THE COURT: Yes. Thank you, Mr. Jones. 3 Appreciate you. 4 It is. It's public speaking. All right. 5 And here's the problem and here's the reason 6 why our forefathers said, you know what, whenever there is 7 a criminal case, we are going to give special protection to 8 the person accused for this reason. 9 Everybody on the front row, get ready with 10 your answer, here's your question: Suppose that you are 11 sitting in the audience and the person who gets up to speak 12 is extremely nervous. What would you see or hear that 13 would tell you that that person is nervous? 14 Ms. Radice? 15 VENIREPERSON: Stuttering. 16 THE COURT: Stuttering. Fantastic. 17 Is it Sbaiti? 18 VENIREPERSON: Sbaiti. 19 THE COURT: Sbaiti. Mr. Sbaiti? 20 VENIREPERSON: I think they would probably 21 fidget a lot. 22 THE COURT: Perfect. 23 Ms. Simonson. 24 VENIREPERSON: Same thing. They would be 25 shaking a little. [18] Jury Trial December 2, 2013 1 THE COURT: Tremoring, uh-hum. 2 What do you think, Mr. Campbell? 3 VENIREPERSON: Shaky voice, shaky hands. 4 THE COURT: Thank you. 5 Ms. Walker? 6 VENIREPERSON: They're fidgeting, the 7 stuttering, the vibes -- 8 THE COURT: And what? 9 VENIREPERSON: They're pausing in their 10 speech. 11 THE COURT: Kind of trying to grasp their 12 next thought? 13 VENIREPERSON: Correct. 14 THE COURT: What do you think, 15 Ms. Sterling-Parker? 16 VENIREPERSON: It's Stelling. There's no R 17 in it. 18 THE COURT: Oh, I'm sorry. 19 VENIREPERSON: That's okay. Normally, I 20 would -- my first thought would be sweaty. 21 THE COURT: Sweating. 22 VENIREPERSON: Yeah. 23 THE COURT: Okay. Mr. Mercer? 24 VENIREPERSON: I would say fidgeting, maybe 25 avoiding eye contact. [19] Jury Trial December 2, 2013 1 THE COURT: Looking down. All right. 2 Is it Byther? 3 VENIREPERSON: Byther. 4 THE COURT: Mr. Byther? 5 VENIREPERSON: Just kind of loss of 6 coherency, just be distracted and nervous obviously. 7 THE COURT: In law school, I saw someone get 8 called on, one of the first days of criminal law class, and 9 there's 450 people, and we had a reading assignment and the 10 professor was just drilling this young lady. She got so 11 nervous, she just threw up. It was pretty clear that she 12 was nervous. 13 What do you think, Ms. Carbajal? 14 VENIREPERSON: Like I am now? 15 THE COURT: Like you are now? 16 (Laughter.) 17 THE COURT: I can't tell if you are. You're 18 smiling. Is that a nervous smile? 19 VENIREPERSON: Yes. 20 THE COURT: Okay. Ms. White? 21 VENIREPERSON: The fidgeting, sweating, 22 avoiding eye contact, everything they were saying. 23 THE COURT: And here's the problem. 24 Mr. Cassedy, what are all of those also a sign of? 25 VENIREPERSON: Guilt. [20] Jury Trial December 2, 2013 1 THE COURT: Lying. Right? 2 VENIREPERSON: I didn't do it. 3 THE COURT: Yeah. People start to sweat, 4 they're stuttering, they're fidgeting, they won't look you 5 in the eye, they, you know, start to seem really nervous. 6 Could someone mistake that, Mr. Cassedy, as lying? 7 VENIREPERSON: Certainly. 8 THE COURT: Okay. And our forefathers 9 understood that. They're, like, you know what, we don't 10 want to put someone in a position where their freedom is at 11 stake and they're put on the stand and the jury might see 12 these type of outward signs, and hear the stuttering and 13 the shaking and the loss of concentration and refusal to 14 look them in the eye and think that, oh, that's a sign the 15 person is lying. So under the rules of our state and under 16 the rules of our constitution, a defendant is never 17 required to testify. 18 Now, that brings up a problem because my 19 mother is a trial court T V show junkie. And she loves to 20 watch, and then she'll call and ask me all of these 21 questions. And she doesn't understand the whole Fifth 22 Amendment, in my opinion. So I explained it to her just 23 like I explained it to you. And then she says, I don't 24 think you understand, I understand what you're saying, 25 you're not understanding what I'm saying. [21] Jury Trial December 2, 2013 1 Who here has small children at least two, 2 under the age of 15? Mr. Sbaiti. How old are your 3 children? 4 VENIREPERSON: Seven months and two 5 and-a-half years. 6 THE COURT: I need somebody a little bit 7 older. Mr. -- is it Kieffer? 8 VENIREPERSON: Yes, sir. My kids are nine 9 and 11. 10 THE COURT: Perfect. The nine-year-old 11 comes in to you and says, Daddy, daddy -- is the 11 boy or 12 girl? 13 VENIREPERSON: 11 is a girl. 14 THE COURT: Daddy, daddy, she hit me. You 15 bring your 11-year-old daughter in and you say, What did 16 you do, tell me your side of the story. She says, Father, 17 I do not wish to discuss it. What do you infer from that? 18 VENIREPERSON: I would infer that my 19 nine-year-old is lying because he's the one that would hit 20 her. I wouldn't think she had done it. 21 THE COURT: She denied it; right? 22 VENIREPERSON: Yeah. 23 THE COURT: That's my mom, like, that's how 24 I raised you three boys and your sister. I bring you all 25 in, I ask questions, and then I get to the truth. And what [22] Jury Trial December 2, 2013 1 my mom is trying to say is, Look, I get what you're saying, 2 but just because I walk through a door and somebody puts a 3 sign outside that says Collin County Court at Law Number 4 Two, I can't stop being Jan Walker. I'm 60 some odd years 5 old. This is how I feel. If you don't -- you're not 6 guilty, you should be willing to stand up and answer 7 questions. Okay? I can't stop the fact that that's how I 8 feel. Okay. Just because -- and turn that off just 9 because I walk into a courtroom. 10 And then I understood. Okay, for her, she's 11 the type that would say, you know what, I'll get to a 12 mountaintop, rooftop, and shout my innocence. But she 13 doesn't have a fear of public speaking. Okay? What that 14 comes down to is, my mom would be a fantastic juror because 15 she's very fair, she's very thorough, she has great 16 instincts, but she can't sit on a criminal case because she 17 has, honestly -- and we're all required to be honest about 18 it -- said, Listen, if the defendant doesn't get up and 19 testify, it might affect how I decide the case because I 20 feel like innocent people would be willing to testify. 21 So with that in mind, who's kind of -- on 22 the first row. We'll go row by row. Who's kind of like my 23 mother? If the defendant does not testify, it might -- I'm 24 not saying it would -- but it might affect how you decide a 25 case? Would you raise your hand. We'll go one at a time. [23] Jury Trial December 2, 2013 1 Ms. Stelling-Parker. 2 VENIREPERSON: Very good. 3 THE COURT: Tell me your feelings. 4 VENIREPERSON: I understand the not wanting 5 to get up and talk because I'm the same way. I'll have the 6 nervous hands and all. But I'm kind of like your mom. If 7 I haven't done something, I'm going to make sure that 8 everybody around knows it. 9 THE COURT: Okay. Perfect. Let me come 10 back to you. 11 Who else? Mr. -- is it Byther? 12 VENIREPERSON: Byther. 13 THE COURT: Mr. Byther, tell me your 14 feelings. 15 VENIREPERSON: I would be anxious to tell my 16 story, my side of the story. 17 THE COURT: Mr. Byther, where were you on 18 August 26th about 4:00 o'clock this year? 19 VENIREPERSON: August 26. I don't remember. 20 THE COURT: You don't have any information 21 you can give me? 22 VENIREPERSON: No. 23 THE COURT: Okay. I'll come back to you too 24 then. 25 Who else? Ms. White, did you have your hand [24] Jury Trial December 2, 2013 1 up? 2 VENIREPERSON: Yes, I did. 3 THE COURT: Okay. Tell me -- 4 VENIREPERSON: Well, it's just being a 5 teacher and it's been my experience because kids won't 6 speak because -- 7 THE COURT: Okay. 8 VENIREPERSON: Feel like people don't want 9 to stand up and speak up for themselves, they're hiding 10 something. 11 THE COURT: I'm going to give everyone a 12 chance because we're going to go through a couple of 13 scenarios. If your answers change, now I want to raise my 14 hand, or, hey, I raised my hand before but I want to change 15 my answer, just let me know. 16 On the second row, if the defendant doesn't 17 testify, could it possibly affect how you decide this case? 18 Raise your hand. No? All right. 19 On the third row, if the defendant doesn't 20 testify, it might cause you to rule one way or the other. 21 Raise your hand. All right. 22 Now, I've been both a prosecutor in this 23 county and I've been a defense attorney in this county. I 24 will tell you that as a defense attorney, I had lots of 25 clients who wanted to testify that I didn't want to [25] Jury Trial December 2, 2013 1 testify. Okay? Because they don't come across very good. 2 I've also had people that I said, You can't go testify 3 because I can't support perjury and you're guilty so you 4 have to sit here and just be quiet. Okay? But here's the 5 problem. 6 On the second row, how do you respond to 7 this? How does a person who's innocent, how would they 8 act, what would they feel like if they got up here to 9 testify because they've been falsely accused of a crime? 10 How do you think that person with would act, Mr. Cassedy? 11 VENIREPERSON: Might be angry. 12 THE COURT: Angry. 13 What do you think, Mr. Lewis? 14 VENIREPERSON: I would think they would be 15 nervous that if -- that they might say something that could 16 be misconstrued. 17 THE COURT: Okay. What about Ms. Parker? 18 How would an innocent person who's testifying, how do you 19 think they would act? 20 VENIREPERSON: I think they would be angry. 21 THE COURT: You think they would be angry. 22 Would you be angry? 23 VENIREPERSON: I would be very angry. 24 THE COURT: Okay. Is it Sennett? 25 VENIREPERSON: Sennett. [26] Jury Trial December 2, 2013 1 THE COURT: Mr. Sennett, what would you 2 expect them to act like? 3 VENIREPERSON: You know, if I was in that 4 situation, I would try to be more composed. I would think 5 you would want to be composed to kind of show the truth. 6 THE COURT: Okay. So you're kind of 7 confident that in the end, the system is going to work 8 everything out? 9 VENIREPERSON: Yeah. 10 THE COURT: Perfect. Mr. Kieffer? 11 VENIREPERSON: I would think you would try 12 to act composed but I would think that you would be 13 nervous, I think you would act nervous. 14 THE COURT: Okay. Nervous. 15 Mr. Christopher. 16 VENIREPERSON: I might put myself in that 17 situation. Underneath certainly would be perturbed, angry, 18 distraught but I agree, I would act as composed as possible 19 and concise and hope that the facts would reveal themselves 20 and the jury sees them. 21 THE COURT: Thank you. 22 Mr. Kendall. 23 VENIREPERSON: Well, I think that they would 24 be almost too reserved, afraid to speak if they were 25 falsely -- if they were falsely accused and they're already [27] Jury Trial December 2, 2013 1 in that predicament, then I would -- I myself probably 2 would be -- would hold back, afraid that something else was 3 going to go wrong that I didn't expect. 4 THE COURT: Okay. So you're going to -- you 5 would expect to kind of proceed cautiously. 6 VENIREPERSON: Right. Tread lightly. 7 THE COURT: All right. Mr. Brown. 8 VENIREPERSON: Your Honor, it could be 9 various, you know, from anger to reservation to being 10 scared. Could be all the emotions. 11 THE COURT: Could run the whole gamut. 12 Mr. Pate. 13 VENIREPERSON: I think someone would be 14 maybe angry, maybe a little bit nervous, maybe passionate 15 about their innocence which may come across as anger. 16 THE COURT: Sure. 17 Is it Burdick? 18 VENIREPERSON: Yeah. 19 THE COURT: What do you think, Mr. Burdick? 20 VENIREPERSON: If it was me, I would be 21 angry that I was up there. 22 THE COURT: Why would you be angry? 23 VENIREPERSON: Because I knew I was innocent 24 if I knew and I would be argumentative -- 25 THE COURT: Okay. [28] Jury Trial December 2, 2013 1 VENIREPERSON: -- to the person asking 2 certain questions. 3 THE COURT: I think I'm kind of like you, I 4 get argumentative if I feel strongly about something 5 sometimes. 6 Mr. Noi-Mingle, how do you think a person 7 would act? 8 VENIREPERSON: Mixed emotions. 9 THE COURT: Mixed emotions? 10 VENIREPERSON: Yes. 11 THE COURT: Mr. Moore? 12 VENIREPERSON: I think it would be pretty 13 hard for most people not to be nervous. 14 THE COURT: Is it Spruiell? 15 VENIREPERSON: Spruiell. 16 THE COURT: Spruiell. 17 VENIREPERSON: Uh-huh. 18 THE COURT: Ms. Spruiell, how do you think 19 an innocent person would react up there? 20 VENIREPERSON: Depending on the male or 21 female. I think a female that was innocent, I mean, I 22 would, I would boo hoo. 23 THE COURT: You would cry? 24 VENIREPERSON: Oh, yeah. 25 THE COURT: I want to come back to that. [29] Jury Trial December 2, 2013 1 About 12 times I've asked this question and that's the 2 first time someone has said that. 3 Mr. Fried? 4 VENIREPERSON: Freed (phonetic). 5 THE COURT: Freed. 6 VENIREPERSON: I guess a combination of 7 being angry and being frightened that it might go wrong 8 even though I'm innocent. 9 THE COURT: Now, raise your hand if you -- 10 if you saw Ms. Fried -- I'm sorry -- Ms. Spruiell on the 11 stand and she was crying, who thinks that that might be 12 because she's guilty? Yeah. 13 VENIREPERSON: That's iffy. I would 14 probably cry along with her. 15 THE COURT: See, therein lies the problem 16 and why I would tell my clients a lot of times, Look, I'm 17 not sure I want you to testify, because people have all 18 types of different images in their mind of what an innocent 19 person would act like. They want to see you composed 20 because this is going to work itself out. They want to see 21 you angry because you've been falsely accused. They're 22 crying. 23 You know, I don't know how you're going to 24 meet all of these expectations, you know. And I would tell 25 them, you know, it's just like a doctor/patient [30] Jury Trial December 2, 2013 1 relationship. When you're the patient, you're in charge, 2 not the doctor. But if you go to see a surgeon -- Mr. 3 Pate, let's say you go see a surgeon, he tells you you need 4 surgery. You might go to get two or three other opinions, 5 but if they all said you needed surgery, you think you 6 might tend to listen to them? 7 VENIREPERSON: I think so. 8 THE COURT: Same thing with the lawyers. 9 Sometimes the lawyers might say, You know what, I don't 10 want you to testify, you don't come off right, you're too 11 angry, you're too hostile, you're too this, too that, 12 whatever, you're too talkative, that kind of thing. So 13 sometimes the attorney says, you know, there's just no 14 need. 15 The State of Texas has the complete burden 16 to prove the case. By our law, Mr. Brooks and his client 17 can sit here and play Angry Birds, Words With Friends, take 18 a nap, they can do anything they want. She's done 19 everything she's required to do under the law just by being 20 here. But for a lot of people like my mom, that's not 21 enough. You ought to be willing to stand up and defend 22 yourself. Okay. The law doesn't require it. My mom 23 requires it. That make sense? 24 We're also going to want to talk to you 25 about your prejudices and biases. And when I say [31] Jury Trial December 2, 2013 1 prejudices and biases, I'm not talking about racial 2 prejudice or racial bias. We're talking about things that 3 you really, really like or really dislike. 4 For instance, I am very biased towards my 5 father. I love my dad. We've got a fantastic 6 relationship. If my dad tells me he caught a bass and it 7 was this big and it was in the river behind the house, then 8 that's it. I don't need to see the bass, I don't need a 9 witness, I don't need a photograph. My dad caught a bass, 10 it was that big and it was in the river behind my house. 11 The State of Texas could come in here, nine 12 of the world's leading oceanographers and say, Bass don't 13 even swim in that river. That just means dad caught the 14 last one. Okay? It doesn't change the fact that I'm going 15 to believe what my father says. 16 Some people have, not to that degree but to 17 a large degree, they have those kind of feelings about law 18 enforcement because they have people in their families that 19 are law enforcement maybe. Someone who's in law 20 enforcement has saved their lives or saved someone who's 21 close to their lives. So we want to talk about that kind 22 of thing. 23 I'm going to let the attorneys talk to you 24 now. They're going to take about 30, 45 minutes. Share 25 your feelings with them. In between, we're going to take a [32] Jury Trial December 2, 2013 1 break. I'll give you a 15-minute break. Now here's the 2 rules for the break. 3 You need to call someone, tell them that 4 you're serving on a jury, or that you're doing jury 5 service, that's fine. Do not tell them what kind of case 6 this is. 7 Why do you think I don't want them to know 8 what kind of case this is, Mr. Pate? 9 VENIREPERSON: They could possibly tell you 10 something that -- 11 THE COURT: Let me tell you what I know 12 about D W I. 13 VENIREPERSON: Yeah. 14 THE COURT: Let me tell you how many drinks 15 you can have before you're drunk. That kind of thing. 16 Both sides in a case have had -- have equal access to the 17 evidence in the case. They have witnesses, they've picked 18 the case, they designed their case, can't combat what 19 somebody is telling Mr. Pate over the telephone. Okay? So 20 don't tell anybody what kind of case it is. They're going 21 to want to talk to you and share their wealth of knowledge. 22 Secondly, do not become a detective on your 23 own. We had a case where someone used their smartphone to 24 go and check some information out. The witness said that 25 the road was one way going east and one lane going west, [33] Jury Trial December 2, 2013 1 and the person on the jury thought that wasn't correct. So 2 they used Google maps on their phone. And sure enough, it 3 was two lanes going east, two lanes going west, that person 4 was a liar. 5 Mr. Christopher, have you seen any 6 construction going on in Collin County? 7 VENIREPERSON: Quite a bit. 8 THE COURT: At the time of the offense, it 9 was one lane going each way, not any more. Okay? So do 10 not go and get your own information. We'll bring the 11 evidence to you. That is unacceptable and causes a 12 mistrial. 13 Also, when you're outside, don't come back 14 in, wait until the bailiff brings you in. The reason for 15 that is we don't want someone to see us talking to you and 16 wonder what's going on. We want to keep everything on the 17 up and up. 18 Please take a good look at where you're 19 seated because you have to sit in those exact same chairs. 20 The reason is both sides are going to take a copious amount 21 of notes. And it is important that they make sure that 22 they assign those notes to you. 23 Lastly, we do not have a definition in the 24 State of Texas for what beyond all reasonable doubt means. 25 The attorneys are not going to be able to give you a [34] Jury Trial December 2, 2013 1 definition. They're going to give you what it doesn't 2 mean, that kind of thing. 3 I can tell you, Ms. Radice, if you're on 4 this jury, it means whatever you say it means. When 5 there's been enough evidence that you don't have any 6 reasonable doubt left in your mind, then they reached that 7 burden. 8 Mr. Sbaiti, you may require more evidence 9 than she does. Ms. Simonson, she may require more evidence 10 than both of you. It's an individual standard. But when 11 you don't have any reasonable doubt left, the state has met 12 their burden. If you do have a reasonable doubt left, they 13 state has not met their burden. All right? Any questions 14 before we begin? 15 All right. You have to speak -- you're 16 going to be doing voir dire with the state first. They get 17 to go first. Please do not talk to -- Mr. Wilson, are you 18 going to do voir dire? 19 MR. WILSON: Yes, sir, I am. 20 THE COURT: Please don't talk to where just 21 Mr. Wilson can hear. Okay? Because I have to hear 22 everything that's said. Because one side may object and I 23 have to make a ruling. 24 That brings me to my last point. For the 25 six of you that are chosen for this jury, we have -- you [35] Jury Trial December 2, 2013 1 and I have very different jobs. You will be listening to 2 the witnesses, you will be examining the evidence, you will 3 be talking and discussing the case with one another when 4 the case is over and trying to decide what evidence is 5 believable, what testimony is believable, that kind of 6 thing. I will not be up here doing that. I will not be 7 judging the credibility of the witnesses or examining the 8 evidence. I will handle all of the legal issues. When one 9 side objects, I'll decide whether or not that objection 10 should be overruled or sustained. Okay? So I'll handle 11 all the legal issues. That may require that I have you 12 leave the room so that the attorneys can talk freely. It 13 doesn't make any sense for one side to object to certain 14 evidence and I agree that that evidence should not be 15 admitted and you're sitting in here listening to it. Does 16 that make sense? 17 All right. Thank you. 18 Mr. Wilson, you have the panel. 19 JURY VOIR DIRE 20 MR. WILSON: Thank you judge. May I use the 21 projector, please. 22 THE COURT: Yes, sir. 23 MR. WILSON: Good morning, everybody. 24 VENIREPERSONS: Morning. 25 MR. WILSON: As the judge introduced me [36] Jury Voir Dire by Mr. Wilson 1 earlier, my name is Justin Wilson. And I have the pleasure 2 of representing the State of Texas today. And before we -- 3 as we're kind of waiting for the projector to come on here, 4 I'm going to start talking to you a little bit about the 5 phases of a trial. 6 And the first phase that we're in right now 7 is called voir dire. Voir dire is where I get the 8 opportunity to explain a little bit of the law to you, ask 9 you some questions that hopefully Bailiff Jones has not 10 already given you the answers to. And then we'll -- then 11 we also get a chance to, I guess, determine who's going to 12 be the best fit for the six people who wind up on our jury. 13 In addition to that, since I'm going to be 14 asking you some questions that will be somewhat personal 15 later on, I figure it's only fair if I tell you a little 16 bit about myself. 17 Before going to law school, I was a film 18 professor at Baylor University and taught cinematography, 19 editing classes; moved out to Los Angeles and worked in the 20 film industry out there as an editor and cinematographer 21 for music and music videos and things you've probably never 22 seen or heard of. And then came back to Texas. Went to 23 law school. And here I am today. 24 So the second phase that we have going on in 25 this process is the trial phase. And I want to make it [37] Jury Voir Dire by Mr. Wilson 1 clear to you that during the trial phase, you are going to 2 be looking at a snapshot in time. Basically the facts and 3 events that are surrounding the particular event that the 4 defendant has been charged with. You will not be allowed 5 to consider what happened before that snapshot, or after 6 that snapshot in time. 7 So, for instance, the defendant could be the 8 nicest person in the world, she could be the meanest person 9 in the world. Those sort of things don't matter. What 10 matters is what happened during that particular slice in 11 time. 12 Punishment. During the punishment phase, 13 which is the final phase of our process today, if things 14 get to that point, and if the defendant has -- if she winds 15 up electing for the jury to assess punishment, if it gets 16 to that point, then that is a time where sympathy can be 17 considered. But only during that punishment phase. 18 So next. Who here has ever seen somebody 19 drunk before? Is it Ms. Radice? 20 VENIREPERSON: Yes. 21 MR. WILSON: Am I saying your name right? 22 VENIREPERSON: Yes. 23 MR. WILSON: Ms. Radice, have you ever seen 24 somebody drunk before? 25 VENIREPERSON: Yes. [38] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: What did they look like? 2 VENIREPERSON: Falling down, sometimes 3 belligerent, red eyes, acting like a fool. 4 MR. WILSON: Great answers. 5 Mr. Sbaiti, you see anything different? 6 VENIREPERSON: Yeah. People can be sort of 7 functionally drunk or they can be dysfunctionally drunk. 8 There's sort of a range. 9 MR. WILSON: What do you mean by that, 10 functional versus dysfunctional? 11 VENIREPERSON: They may not be falling down 12 but their cognitive decision-making capacities are 13 impaired. You have to maybe talk to them to realize, okay, 14 this person actually is drunk. There wouldn't necessarily 15 be -- wouldn't be falling over, incapable of general motor 16 skills. 17 MR. WILSON: So you talking about, you would 18 be talking to the person, are you referring to, like, 19 asking them questions, things like that? 20 VENIREPERSON: Sure. Asking them questions 21 or trying to have a conversation. 22 MR. WILSON: What would that conversation be 23 like? 24 VENIREPERSON: You could pick up that they 25 weren't necessarily all there. [39] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Answers to questions might not 2 be quite what you expect? 3 VENIREPERSON: Right. 4 MR. WILSON: Okay. And let's see, 5 Ms. Simonson, any other things that you've noticed? 6 VENIREPERSON: They could be loud. Somebody 7 that even from the other side of the room, people would 8 notice or could tell, you know, that they've been drinking 9 a lot. 10 MR. WILSON: Otherwise, other than being 11 loud, might you see anything different with their speech? 12 VENIREPERSON: Not that I personally have 13 noticed. 14 MR. WILSON: Okay. 15 Well, Mr. Campbell, have you ever noticed 16 anything about a drunk person's speech? 17 VENIREPERSON: I haven't personally been 18 involved with someone who's drunk. But symptoms could be 19 misleading. Sometimes their mental status because of some 20 accident could make them appear they are intoxicated. So 21 it's very difficult on outward signs to determine whether 22 someone is drunk or not. 23 MR. WILSON: Okay, so an accident. You 24 mentioned an accident. What type of -- Are you talking 25 about somebody who sustained a head injury or something [40] Jury Voir Dire by Mr. Wilson 1 like that? 2 VENIREPERSON: Yeah. In fact, in the case 3 of doing triage on someone, you're looking for airway, 4 looking for excessive bleeding, you're looking for their 5 mental status. Their mental status may look like they are 6 intoxicated when it could be because of the accident. 7 MR. WILSON: Ms. Stelling-Parker, have you 8 ever noticed anything about a drunk person's speech before? 9 VENIREPERSON: Sometimes they're more in 10 control than they look like they really are. They are 11 making an effort to sound calm and control what they're 12 saying. 13 MR. WILSON: Okay. Well, now, Mr. Sbaiti, 14 going back to what you were saying, we got functional 15 drunks and dysfunctional drunks. You talked about a 16 dysfunctional drunk being somebody who might not 17 necessarily be falling over, passing out, as Ms. Radice 18 suggested, but someone whose cognitive functions are not 19 normal. 20 Do we want to wait until that point to make 21 it illegal for somebody to drive? 22 VENIREPERSON: Wait until they're falling 23 over? 24 MR. WILSON: Well, either falling over -- 25 yeah, wait until they're falling over before we say it's [41] Jury Voir Dire by Mr. Wilson 1 illegal to drive? 2 VENIREPERSON: My understanding of when it's 3 illegal to drive is when there's a certain amount of 4 alcohol in the blood level, not a qualitative analysis of 5 the person's behavior. 6 MR. WILSON: Okay. Well, we're going to 7 come back to that here in a little bit, in a minute. 8 Mr. Lewis, I notice you shaking your head 9 back there. Do you think that we should wait until someone 10 is falling down drunk before we make it illegal for them to 11 drive? 12 VENIREPERSON: No. The effect of alcohol 13 can be so -- you know, in the earlier stages of the 14 affectation, you know, people can sort of function but, 15 depending on the amount of alcohol that they've taken in, 16 it's going to start hitting heavier and heavier and heavier 17 and, if they're really beyond legally drunk, you know, it's 18 going to -- it's going to take an effect but it may take a 19 little bit more time. 20 MR. WILSON: Exactly. Exactly. The main 21 thing is that a person can be -- even when they're that 22 dysfunctional drunk that Mr. Sbaiti is talking about, they 23 can still be dangerous up to that point in time. 24 So, judge mentioned to you earlier that we 25 as the state have a certain checklist of elements that we [42] Jury Voir Dire by Mr. Wilson 1 have to prove to you beyond a reasonable doubt. Those 2 elements are that this defendant, on or about a certain 3 date, in Collin County, Texas, did operate a motor vehicle, 4 in a public place, while intoxicated. 5 Now, Mr. Mercer, can you tell from that list 6 we have up there which element is the one we argue about 7 the most? 8 VENIREPERSON: I'm going to assume it's the 9 while driving. 10 MR. WILSON: Exactly. While intoxicated. 11 Now, since that is the thing that we argue about the most, 12 the State of Texas has given us not one but three different 13 definitions of what it means to be intoxicated. This is 14 going to go back to what Mr. Sbaiti was saying. 15 I'm going to skip ahead here. Mr. Sbaiti 16 mentioned that the defendant having an alcohol 17 concentration of .08 or greater, that can be read from a 18 person's blood or from their breath. That's not the only 19 definition that the state is given. The state has also 20 provided us with definitions that someone does not have the 21 normal use of their mental faculties due to the 22 introduction of alcohol, a drug, a dangerous drug, or some 23 combination thereof into their body. Or we have another 24 definition: That the individual does not have the normal 25 use of his or her physical faculties due to the [43] Jury Voir Dire by Mr. Wilson 1 introduction of alcohol and so on. 2 Now, Mr. Mercer, you noticed the 3 conjunctions that we have in between those words, the "or." 4 What does that mean to you? 5 VENIREPERSON: That it could be either of 6 the three, either/or of the three. 7 MR. WILSON: Exactly. Exactly. And that's 8 the great thing about our system, is that you don't have to 9 believe beyond a reasonable doubt that all three of those 10 definitions were, I guess, active in the defendant at the 11 time of the arrest. 12 What you need to -- what you have to do is 13 believe beyond a reasonable doubt that one of those 14 definitions, at least one of them, apply. And you don't 15 all have to agree. So, Ms. Radice and Mr. Sbaiti, if you 16 guys were on the jury, then you might think -- you might 17 believe beyond a reasonable doubt that the defendant did 18 not have the normal use of her mental faculties. And 19 Ms. Simonson and Mr. Campbell, the two of you might believe 20 beyond a reasonable doubt the defendant did not have the 21 normal use of her physical faculties. And then Ms. Walker 22 and Ms. Stelling-Parker, the two of you might believe 23 beyond a reasonable doubt that the alcohol concentration 24 was a .08 or higher. As long as whichever six of you wind 25 up in the jury box believe beyond a reasonable doubt that [44] Jury Voir Dire by Mr. Wilson 1 at least one of those definitions applies, then the state 2 is entitled to a guilty verdict. 3 So some key things that we've been talking 4 about in these definitions, we want to go over a little 5 bit. So you heard mental and physical faculties. Let's 6 see here. 7 Mr. Byther, what would you say would be an 8 example of a mental faculty? 9 VENIREPERSON: Judgment. Speed that 10 somebody is driving, the way they're driving, watching for 11 the other people, things like that. Normal activities that 12 you engage in in the process of driving a motor vehicle. 13 MR. WILSON: Okay. So if you're talking 14 about the way somebody is driving in relation to other 15 people, you're talking about how their cognitive skills are 16 working. Maybe how they are processing the speed of other 17 cars around them. Their reaction time. Would that be fair 18 to say? That reaction time would be a big mental faculty? 19 VENIREPERSON: I would say yes. 20 MR. WILSON: Let's see. Ms. Carbajal, how 21 about someone's ability to follow instructions, would that 22 be a mental faculty? 23 VENIREPERSON: If they are driving with 24 alcohol, I don't think they will be able to respond because 25 they are slow, they move slow, they are not -- I don't know [45] Jury Voir Dire by Mr. Wilson 1 how to explain. 2 MR. WILSON: Well, it kind of all ties into 3 that slowed reaction time -- 4 VENIREPERSON: Yes. 5 MR. WILSON: -- that we were talking about? 6 Right. 7 VENIREPERSON: Yes. And from my opinion, I 8 have a son and I have a husband and always telling them, 9 don't drive, I'm always thinking about them, they haven't 10 done but at the same time they -- you know, they -- by 11 themselves, they are not safe and there are others going 12 on. 13 MR. WILSON: And then they might have to 14 come see me and nobody wants to do that. 15 Well, now, Ms. White, what do you think 16 about someone about following directions and how that would 17 play into mental faculties? 18 VENIREPERSON: Under the influence of 19 alcohol? 20 MR. WILSON: Yes. 21 VENIREPERSON: Usually they can't follow the 22 directions as well and the responses might be slower. 23 MR. WILSON: Right. Communication 24 difficulties, that kind of thing? 25 VENIREPERSON: Right. [46] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Okay. Now let's talk about 2 some examples of some physical faculties. 3 Mr. Cassedy, anything you have in mind about 4 physical faculties? What would be an example? 5 VENIREPERSON: We talked about extreme, you 6 know, maybe stumbling, falling down. 7 MR. WILSON: Right. How about something 8 that's not so extreme? 9 VENIREPERSON: I think your reaction time 10 example is probably another physical symptom. 11 MR. WILSON: So like fine motor skills, for 12 instance? How about being able to manipulate your fingers 13 with control, whether you're trying to reach for things or 14 going -- trying to handle small objects? Would that be 15 one? 16 VENIREPERSON: It's possible. 17 MR. WILSON: How about placing your foot, 18 moving your foot from the accelerator to the brake pedal, 19 would that be a physical coordinated movement? 20 VENIREPERSON: Entirely possible. 21 MR. WILSON: All right. Another term that 22 came up in our discussion of these definitions is the idea 23 of normal use. 24 One thing that you all need to understand 25 very clearly is that when we talk about normal use, we are [47] Jury Voir Dire by Mr. Wilson 1 not talking about what is normal for this individual 2 defendant. It would be impractical for every police 3 officer out on the streets to know exactly what is normal 4 for each individual based on, you know, our athletic 5 ability or overall sense of balance or ability to 6 communicate. What we do is instead we apply a standard of 7 the average non-intoxicated person. 8 So seeing how it's probably around 10:00 in 9 the morning, something like that, I'm assuming that none of 10 you guys are intoxicated right now. So all of you would 11 collectively be the average non-intoxicated person. So 12 what is normal for you in regard to your mental faculties 13 and your physical faculties is the standard that you will 14 apply to the defendant. 15 Another thing to talk about is what is drunk 16 versus intoxicated. We've been kind of putting out those 17 two terms a little bit this morning. And as you know, the 18 State of Texas has given us the three different definitions 19 of intoxication. But we don't exactly have a definition of 20 drunk. So one thing you can think about is, let's say 21 right here where I'm standing, if this beam right here 22 represents a spectrum, from me being completely sober, not 23 having had a drop of alcohol, to here, if I walk down to 24 the other end, this is going to be the, I'm stumbling down, 25 you know, on the verge of passing out drunk like Ms. Radice [48] Jury Voir Dire by Mr. Wilson 1 suggested. Now, if I come to around, say, right here, I 2 place my pen right here. This is the demarcation saying 3 that this is the last sip of alcoholic I can have and still 4 maintain the normal use of my mental and physical 5 faculties. 6 Now, Mr. Mercer, how many steps can I go 7 beyond this point before I'm legally intoxicated? 8 VENIREPERSON: Well, as you pointed out, it 9 depends on the person. 10 MR. WILSON: Well, let's just say that we're 11 talking about the average non-intoxicated person. And this 12 is -- as the average non-intoxicated person, this is the 13 point where, you know, he or she can, last sip of alcohol, 14 still maintain those normal mental and physical faculties. 15 So what would happen if I take that one more sip? And I no 16 longer have the normal use of my mental and physical 17 faculties? I would be intoxicated, right, by the 18 definition -- 19 VENIREPERSON: I suppose so-- by the 20 definition. 21 MR. WILSON: Yes. 22 VENIREPERSON: You would be intoxicated, 23 yes. 24 MR. WILSON: So in the State of Texas, as 25 long as I take -- if I take one step past this point of [49] Jury Voir Dire by Mr. Wilson 1 having the normal use of my mental and physical faculties, 2 then I'm intoxicated. It may not be how you define drunk, 3 you know, drunk can be anything, however you choose to 4 define it, but at this point, I am now legally intoxicated. 5 Here's an example for you. Think about it. 6 Let's say that after jury selection is done, let's say that 7 Ms. White, Ms. Carbajal and Mr. Byther, the three of you 8 don't make it on the jury. And you are so excited about 9 not having to spend the day on jury duty, that you go out 10 to happy hour, let's say you go to Gloria's down the road, 11 and you stop off at Gloria's, and you have some food, you 12 have some drinks. 13 And maybe, Ms. White, when the bill comes 14 out and it's time for you to calculate up the tip, it's 15 taking you a little bit longer to do those calculations 16 than you normally might. And you are looking all over the 17 place for your keys, you can't find them anywhere. And 18 they've been in your pocket the whole time. The whole time 19 you've been in there, they are in your pocket. 20 Ms. Carbajal, let's say when you stand up 21 from the table, you know, you're a little bit -- a little 22 bit tipsy on your feet, balance isn't quite so good. 23 And, Mr. Byther, let's say you are so 24 excited about not having to spend your day on this jury 25 that you just go crazy and you become the one who is [50] Jury Voir Dire by Mr. Wilson 1 stumbling, about to be passed out on the floor. 2 Now, Mr. Mercer, you have a couple of young 3 children; correct? 4 VENIREPERSON: Yes. 5 MR. WILSON: Which, if any, of your three 6 fellow perspective jurors do you want driving your young 7 children back home or to wherever they might be? 8 VENIREPERSON: None of them. 9 MR. WILSON: None of them. Because they are 10 all intoxicated in one shape or form. 11 So let's talk about driving. 12 Ms. Parker, what are some of the things that 13 you're thinking about when you're driving? 14 VENIREPERSON: Usually just watching the 15 signs and thinking where I need to go and watching the 16 street signs. 17 MR. WILSON: Okay. So watching signs and 18 thinking where you need to go. Are you looking at the cars 19 around you at all? 20 VENIREPERSON: Yeah. 21 MR. WILSON: Are there -- you know, 22 sometimes if you're on the freeway and traffic is moving 23 real fast, you have to watch out for that time would come 24 where you come up and everybody is now dead stopped on the 25 freeway and you have to hit your brakes fast. [51] Jury Voir Dire by Mr. Wilson 1 Did you see any construction on your way to 2 the courthouse this morning? 3 VENIREPERSON: Yes. 4 MR. WILSON: So you have to watch out for 5 construction workers, for -- 6 VENIREPERSON: Construction, people to the 7 left, people to the right, to have to just stay off the 8 zones and just concentrate. 9 MR. WILSON: Right. So there's a lot of 10 things going on. It's a divided attention task. 11 Now, has anyone ever here -- let's see, 12 Mr. Kieffer, have you ever barely avoided a car accident 13 before? 14 VENIREPERSON: Yes. 15 MR. WILSON: And tell us about that, one of 16 those times. 17 VENIREPERSON: Just driving and not paying 18 attention and, you know, somebody stops or there's a car 19 and you're on a two-lane road, somebody is turning left and 20 there's a car in front of you, that person passes on the 21 median and that guy stops right in front of you. 22 MR. WILSON: Right. 23 VENIREPERSON: You're going the speed limit 24 but you have a little bit of time to react, just enough to 25 swerve around. [52] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: So you mentioned a little bit 2 of time to react. Like you had to make a split second 3 decision. Well, what if that split second decision turns 4 into something more like (Snaps fingers twice), you think 5 you would have avoided that accident? 6 VENIREPERSON: No. I wouldn't have been 7 able to put the brakes on fast enough nor swerve fast 8 enough. 9 MR. WILSON: Exactly. And that's the whole 10 purpose of D W I laws. In the State of Texas, we want 11 people -- when people are using our roads, we want them to 12 be bringing their A game because we want to make sure that 13 reaction time, things like that, are safe for everybody 14 else that's on the road. 15 So now we've kind of been talking about the 16 law. Getting you guys up to speed on that. But now it's 17 the time for the personal questions. 18 So, first off, I got this scale up on the 19 board right now. And we would like to know about your 20 drinking habits. You can think of, you know, zero for not 21 at all. One, I know it says, one, a couple of times a 22 month, but maybe you think about yourself like one meaning 23 that you -- maybe you go out on a weekend or something, you 24 just have some drinks every now and again. 25 Two, for people who have, maybe, you know, [53] Jury Voir Dire by Mr. Wilson 1 it could be anywhere from glass of wine with dinner on a 2 consistent basis to, you know, you're going out pretty 3 regularly during the week, having some drinks. 4 So, Ms. Radice, how would you rate yourself? 5 VENIREPERSON: A one. 6 MR. WILSON: All right. Mr. Sbaiti? 7 VENIREPERSON: One. 8 MR. WILSON: Ms. Simonson? 9 VENIREPERSON: One. 10 MR. WILSON: Mr. Campbell? 11 VENIREPERSON: .5. 12 MR. WILSON: .5. Fractions are acceptable. 13 Ms. Walker. 14 VENIREPERSON: Two. 15 MR. WILSON: Ms. Stelling-Parker? 16 VENIREPERSON: I'm a .5. 17 MR. WILSON: .5, all right. 18 Mr. Mercer. 19 VENIREPERSON: One. 20 MR. WILSON: One. Anybody here for .75? 21 Mr. Byther? 22 VENIREPERSON: I would be a three. 23 MR. WILSON: Three. All right. You can 24 exceed the scale too if you would like. 25 Let's see. Ms. Carbajal? [54] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: Very little. 2 MR. WILSON: We'll call you a .25. How 3 about that? 4 Ms. White? 5 VENIREPERSON: .25. 6 MR. WILSON: All right. Mr. Burdick? 7 VENIREPERSON: Two. 8 MR. WILSON: Two. 9 Mr. Pate? 10 VENIREPERSON: Two. 11 MR. WILSON: Mr. Brown? 12 VENIREPERSON: Two. 13 MR. WILSON: Let's see. Mr. Kendall. 14 VENIREPERSON: A zero. 15 MR. WILSON: Mr. Christopher? 16 VENIREPERSON: Zero these days. 17 MR. WILSON: Mr. Kieffer. 18 VENIREPERSON: One. 19 MR. WILSON: A one? 20 VENIREPERSON: Uh-hum. 21 MR. WILSON: Okay. Mr. Sennett? 22 VENIREPERSON: One. 23 MR. WILSON: Ms. Parker? 24 VENIREPERSON: Zero. 25 MR. WILSON: Zero. [55] Jury Voir Dire by Mr. Wilson 1 Mr. Lewis? 2 VENIREPERSON: .5. 3 MR. WILSON: And Mr. Cassedy? 4 VENIREPERSON: Two. 5 MR. WILSON: Mr. Noi-Mingle? 6 VENIREPERSON: .5. 7 MR. WILSON: Mr. Moore? 8 VENIREPERSON: Zero. 9 MR. WILSON: Ms. Spruiell? 10 VENIREPERSON: .5. 11 MR. WILSON: And Mr. Fried? 12 VENIREPERSON: One with an asterisk by 13 definition, no more than twice a month. 14 MR. WILSON: Okay. Now, for my next 15 question here. Do you think that D W I is a problem in our 16 society? 17 Zero, not at all. One, that it's a moderate 18 problem. And two, that you think it's -- that D W I is a 19 serious problem in our society. 20 Ms. Radice? 21 VENIREPERSON: One. 22 MR. WILSON: One. 23 Mr. Sbaiti? 24 VENIREPERSON: I didn't understand the 25 question. It's asking whether it's a problem when it [56] Jury Voir Dire by Mr. Wilson 1 happens or is it happening too often? 2 MR. WILSON: Well, the thing about it, just 3 in general, do you think that -- you can think of it that 4 way or people -- do we have too many people driving while 5 intoxicated? Is it -- is our -- do our laws keep D W I 6 under control adequately, or is this something that we need 7 to address more seriously? 8 VENIREPERSON: I would say I'm a .5 then. 9 MR. WILSON: Okay. Ms. Simonson. 10 VENIREPERSON: One. 11 MR. WILSON: One. 12 Mr. Campbell? 13 VENIREPERSON: Two. 14 MR. WILSON: Ms. Walker? 15 VENIREPERSON: One. 16 MR. WILSON: Ms. Stelling-Parker? 17 VENIREPERSON: Two. 18 MR. WILSON: Mr. Mercer? 19 VENIREPERSON: One. 20 MR. WILSON: Mr. Byther? 21 VENIREPERSON: Two. 22 MR. WILSON: Ms. Carbajal? 23 VENIREPERSON: Two. 24 MR. WILSON: Ms. White? 25 VENIREPERSON: Two. [57] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Mr. Burdick? 2 VENIREPERSON: One. 3 MR. WILSON: Mr. Pate? 4 VENIREPERSON: Two. 5 MR. WILSON: Mr. Brown? 6 VENIREPERSON: One. 7 MR. WILSON: Mr. Kendall? 8 VENIREPERSON: One. 9 MR. WILSON: Mr. Christopher? 10 VENIREPERSON: One. 11 MR. WILSON: Mr. Kieffer? 12 VENIREPERSON: Two. 13 MR. WILSON: Mr. Sennett? 14 VENIREPERSON: One. 15 MR. WILSON: Ms. Parker? 16 VENIREPERSON: Two. 17 MR. WILSON: Mr. Lewis? 18 VENIREPERSON: Two. 19 MR. WILSON: Mr. Cassedy? 20 VENIREPERSON: One. 21 MR. WILSON: Mr. Noi-Mingle? 22 VENIREPERSON: One. 23 MR. WILSON: Mr. Moore? 24 VENIREPERSON: Three. 25 MR. WILSON: Ms. Spruiell? [58] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: Two. 2 MR. WILSON: And Mr. Fried? 3 VENIREPERSON: Two. 4 MR. WILSON: Okay. So here's one that's 5 probably one of the more personal questions we'll ask. 6 Has anyone here -- I'm just going to start 7 on the first row. Anyone here have your life impacted 8 somehow by a drunk driver? 9 Ms. White. 10 VENIREPERSON: Yes. 11 MR. WILSON: What happened with you? 12 VENIREPERSON: It was a friend of mine from 13 high school was driving drunk and was killed in the 14 accident. 15 THE COURT: I'm sorry, ma'am. I can't hear 16 you. 17 VENIREPERSON: I'm sorry. A friend of mine 18 was driving drunk and he died -- he wrecked his car and 19 died. 20 MR. WILSON: I'm sorry to hear that. But 21 thank you -- thank you for sharing and being honest with 22 us. 23 Mr. Sbaiti, were you going to raise your 24 hand? 25 VENIREPERSON: I did raise my hand. High [59] Jury Voir Dire by Mr. Wilson 1 school class mate of mine killed in a drunk driving 2 accident. She was not the drunk or the driver. But I've 3 also defended a couple of dozen D U I cases in Dallas 4 courts so I've been on the other side of that. 5 THE COURT: I'm sorry. You did what, sir? 6 VENIREPERSON: Defended a couple of dozen D 7 U I cases in trial. 8 THE COURT: Are you an attorney? 9 VENIREPERSON: Yes, sir. 10 THE COURT: Thank you. 11 MR. WILSON: All right. Thank you for 12 sharing that with us. 13 Ms. Simonson. 14 VENIREPERSON: I had a cousin and also a 15 niece that died because of a D W I. 16 MR. WILSON: Well, again, I'm sorry, very 17 sorry, to hear that. I feel bad, I know when I say I'm 18 sorry to hear it, I know that it's kind of hard to really 19 adequately express and address how serious these incidents 20 impact your life. I just want you to know I'm not trying 21 to come off as insincere or flippant or anything like that 22 but I do really appreciate the gravity of what happened and 23 also am very sorry for the things that happened in your 24 lives. Thank you for sharing. 25 Anybody else on the front row? [60] Jury Voir Dire by Mr. Wilson 1 Second row? Mr. Kieffer? 2 VENIREPERSON: One of my friends at college 3 and I were going back from a bar in Fort Worth and he got 4 pulled over for D U I. Totaled the car. 5 MR. WILSON: Any other, I guess, result 6 other than getting pulled over? 7 VENIREPERSON: He went to trial and did all 8 of his stuff, you know, cost him a lot of money, and I got 9 an M I P. 10 MR. WILSON: Okay. And then, let's say, 11 anybody else on the second row here? 12 Anybody on the back row? Okay. 13 Well, thank you all for sharing your stories 14 with me. 15 Next question I've got is kind of on our 16 same scale pattern here. How do you feel about the D W I 17 laws? 18 Do you think they are either zero, that the 19 laws are too strict; two, that they're not strict enough; 20 or, one, that they're just right? 21 Ms. Radice. 22 VENIREPERSON: One. 23 MR. WILSON: Mr. Sbaiti? 24 VENIREPERSON: One. 25 MR. WILSON: Ms. Simonson? [61] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: One. 2 MR. WILSON: Mr. Campbell? 3 VENIREPERSON: Two. 4 MR. WILSON: Ms. Walker? 5 VENIREPERSON: One. 6 MR. WILSON: Ms. Stelling-Parker. 7 VENIREPERSON: Two. 8 MR. WILSON: Mr. Mercer? 9 VENIREPERSON: One. 10 MR. WILSON: Mr. Byther? 11 VENIREPERSON: It's really two questions 12 there. I think that the net to me, it seems like it's a 13 little bit excessive. The severity, though, when people 14 are repeat offenders and all of that stuff, I think it's a 15 terrible problem. And I don't think that those instances 16 are strict enough. 17 MR. WILSON: All right. Thank you. 18 Ms. Carbajal. 19 VENIREPERSON: One. 20 MR. WILSON: All right. Ms. White. 21 VENIREPERSON: I'm a one. 22 MR. WILSON: And Mr. Burdick? 23 VENIREPERSON: A one. 24 MR. BROOKS: Counsel. I didn't hear 25 Ms. White. [62] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: I'm sorry. I need to speak 2 up. One. 3 MR. WILSON: And, Mr. Burdick, you said one? 4 VENIREPERSON: Yeah. 5 MR. WILSON: Mr. Pate? 6 VENIREPERSON: One. 7 MR. WILSON: Mr. Brown? 8 VENIREPERSON: One. 9 MR. WILSON: Mr. Kendall? 10 VENIREPERSON: One. 11 MR. WILSON: Mr. Christopher? 12 VENIREPERSON: One. 13 MR. WILSON: Mr. Kieffer? 14 VENIREPERSON: One. 15 MR. WILSON: Mr. Sennett? 16 VENIREPERSON: One. 17 MR. WILSON: Ms. Parker? 18 VENIREPERSON: One. 19 MR. WILSON: Ms. Lewis? 20 VENIREPERSON: Two, especially for repeat 21 offenders. 22 MR. WILSON: Okay. Mr. Cassedy? 23 VENIREPERSON: One. 24 MR. WILSON: Mr. Noi-Mingle? 25 VENIREPERSON: One. [63] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Mr. Moore? 2 VENIREPERSON: Two. 3 MR. WILSON: Ms. Spruiell? 4 VENIREPERSON: Two. 5 MR. WILSON: And Mr. Fried? 6 VENIREPERSON: One. 7 MR. WILSON: Okay. All right. And this is 8 probably the most invasive of our questions. 9 Has anyone here -- I'll go row by row again. 10 Anyone on the first row ever been arrested, charged or 11 convicted of a D W I? 12 Ms. Walker. 13 VENIREPERSON: (Indicating.) 14 MR. WILSON: And so was yours in Collin 15 County? 16 VENIREPERSON: No. It happened in 17 California. 18 MR. WILSON: Okay. And when was that? 19 VENIREPERSON: It's been about 15 years ago. 20 MR. WILSON: Do you remember if that case 21 went to a jury for punishment at all? 22 VENIREPERSON: No. No. 23 MR. WILSON: No? 24 VENIREPERSON: I did my -- the things you're 25 supposed to do and paid my fine and that was that. [64] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Okay. 2 VENIREPERSON: But it was horrible. 3 MR. WILSON: Well, now, so based on that -- 4 VENIREPERSON: You have to go to those 5 classes and, you know, it's -- it just -- it's so 6 demeaning. I was so ashamed. 7 MR. WILSON: So based on how you've 8 described that experience, then, is it fair to say that you 9 would be a little biased towards the state and the police 10 officers in that whole process there? 11 VENIREPERSON: No. Not towards them. More 12 towards myself -- 13 MR. WILSON: Okay. 14 VENIREPERSON: -- putting myself in that 15 predicament. 16 MR. WILSON: Okay. So then you're saying 17 that based on, even though that you've gone through that 18 experience, that if you were to be on the jury today, you 19 would be able to set that experience aside and just 20 evaluate the information, the facts that are presented 21 here? 22 VENIREPERSON: I just know that what I went 23 through, I would have to see the similarities. 24 THE COURT: You would have to see what? 25 VENIREPERSON: The similarities of possibly [65] Jury Voir Dire by Mr. Wilson 1 what she was -- where she was at or what she was doing or 2 what amount she had to drink probably in comparison to my 3 own because, you know, it happened to me. 4 MR. WILSON: Okay. 5 VENIREPERSON: I mean, it's kind of hard to 6 separate, for me to separate the two. 7 MR. WILSON: Okay. And that's very 8 understandable. So it's fair to say, then, that you would 9 have a hard time separating what happened to you -- 10 VENIREPERSON: Uh-hum. 11 MR. WILSON: -- from what happened to this 12 defendant -- 13 VENIREPERSON: Yes. 14 MR. WILSON: -- and that the two experiences 15 would come together then? 16 VENIREPERSON: Yes. 17 MR. WILSON: Okay. Well, thank you, 18 Ms. Walker. I appreciate you sharing that. 19 Anybody else here on the front row? Okay. 20 How about on the middle row? 21 Mr. Burdick. 22 VENIREPERSON: Yes. 23 MR. WILSON: I guess did this happen in 24 Collin County? 25 VENIREPERSON: No. [66] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Which -- was it in Texas at 2 all? 3 VENIREPERSON: No. North Carolina. 4 MR. WILSON: All right. And about when did 5 yours happen? 6 VENIREPERSON: Almost 30 years ago. 7 MR. WILSON: 30 years ago. Okay. And do 8 you remember if it went to a jury at all? 9 VENIREPERSON: I went through a first 10 offenders program. 11 MR. WILSON: Okay. 12 VENIREPERSON: Found not guilty, went to 13 class. 14 MR. WILSON: Okay. So do you feel like you 15 were -- Based on that experience, do you feel like you have 16 any sort of bias against the state or the police officers? 17 VENIREPERSON: Not from my particular case, 18 no. I was under age for drinking. I was 16 years old at 19 the time. And, yeah, I was underaged, I was arrested for 20 underage drinking and D W I, even though I didn't feel like 21 at the time that I was drunk. 22 MR. WILSON: Okay. 23 VENIREPERSON: But they didn't -- basically 24 -- basically when I went to court, that option came to me 25 without even going through anything: Would you like to go [67] Jury Voir Dire by Mr. Wilson 1 through the first offenders program? 2 MR. WILSON: Okay. Do you feel like you 3 were treated fairly in the process? 4 VENIREPERSON: Yes. 5 MR. WILSON: And would you be able to leave 6 that experience behind you and just consider the facts and 7 evidence presented to you today? 8 VENIREPERSON: Yes. 9 MR. WILSON: Okay. Anybody else on the 10 second row? Okay. 11 Anybody on the third row? 12 All right. And I'm going to ask the same 13 question -- and I know a moment ago, Mr. Kieffer told us 14 about a college friend. When I ask this question, I'm not 15 talking about somebody like a college friend. I'm talking 16 about somebody -- let's say, you know, a family member, 17 spouse, somebody that you are very close with that you 18 would have kept under -- I guess kept track of the intimate 19 details of what went on in the case and the proceedings and 20 everything. Do you know anybody like that who has ever 21 been arrested, charged or convicted of a D W I? And I'll 22 start with the first row. 23 VENIREPERSON: You're talking about D W I. 24 Not drunk in public; right? 25 MR. WILSON: Correct. [68] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: Then no. 2 MR. WILSON: Okay. And Mr. Byther? 3 VENIREPERSON: Yes. Both my sons and 4 friends. It was while they were in college down in Austin. 5 MR. WILSON: Okay. 6 VENIREPERSON: Just past all of that now. 7 MR. WILSON: Well, would you say that based 8 on those experiences, things that you observed, that is it 9 fair to say you would be biased, though, against the police 10 and against the prosecution today? 11 VENIREPERSON: I think -- this is what -- I 12 think the net is too wide. I think there's a lot of people 13 that are functional who may be technically inebriated who 14 get caught. By the same token, I think it is a problem and 15 I understand why it's done, I understand that. 16 MR. WILSON: Okay. So I guess -- Is it fair 17 for me to say from what you're telling me that you feel 18 like the -- in terms of a first arrest, not for repeat 19 offenders, but for first arrest, that you feel like the law 20 as it stands has cast a net that's a little bit too big and 21 it might be difficult for you to follow all of the 22 different definitions of intoxication that our law 23 provides? 24 VENIREPERSON: Yeah, I think it's a nebulous 25 thing. It was -- metabolism affects us. I just think that [69] Jury Voir Dire by Mr. Wilson 1 everybody is not the same. Everybody doesn't react the 2 same. I was in the Navy so I know what drunk is. And 3 there's all kinds of -- you know, there's a whole array of 4 things like we were talking about before. You know, you 5 can drink and you can drink and you can be functional. And 6 a lot of people deal with that quite effectively. You 7 know, I drink frequently, glass of wine every night. It's 8 not a big deal. And I never get drunk. I don't want to 9 get drunk. And -- but I don't know about blood alcohol 10 concentrations, I have no idea. 11 But having said that, the problem of drunk 12 driving is serious. I think it is very serious problem. I 13 understand that we're just trying to deal with that. 14 MR. WILSON: Right. But even though it's -- 15 even though you do think that drunk driving is a bit of a 16 -- is a serious problem-- 17 VENIREPERSON: Yeah. 18 MR. WILSON: -- that it's fair to say, 19 though, that you have a hard time following the letter of 20 the law as the state provides it currently, given the 21 specific definitions and about not only the alcohol 22 concentration but the normal use of mental faculties and 23 the physical faculties? 24 VENIREPERSON: I mean, I just have to hear 25 the evidence and just make a judgment on that. I can't [70] Jury Voir Dire by Mr. Wilson 1 really say -- 2 THE COURT: Mr. Byther, here's the problem. 3 Remember when we talked before about the court doesn't want 4 to put you in a position where you later feel like you have 5 to violate your conscious? We need to know if you can 6 guarantee both sides that you could follow the law as the 7 law currently exists because we don't want you to have to, 8 at the end of this trial, say, You know what, I thought I 9 could but this is one of those situations where I'm not 10 comfortable following the law. So we kind of have to nail 11 you down right now. 12 You may disagree. If you were on the 13 legislature, you might write the law differently, but what 14 it really boils down to is, you have the definitions, the 15 loss of mental faculties due to the introduction of 16 alcohol, or the loss of normal physical faculties due to 17 the introduction of alcohol, or blood alcohol concentration 18 of 0.08. 19 If the state proves any one of those three 20 definitions to you beyond all reasonable doubt, can you 21 return a guilty verdict? 22 VENIREPERSON: I think I can. 23 THE COURT: All right. Will you return a 24 guilty verdict if that's proven to you beyond all 25 reasonable doubt? [71] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: I believe I can, yes. 2 THE COURT: Okay. Now I'm not trying to 3 pick on you. This is like that whole thing, let's say you 4 and I are going to fly to Vegas. We're getting to take our 5 seats. The pilot is there. And we go, you know, You can 6 fly us there safe, right? I think I can. 7 I'm getting off. 8 (Laughter.) 9 THE COURT: We need 100 percent guarantee. 10 If you can't give a guarantee, that's okay. If you're, 11 like, I don't know, but I really -- the best answer I can 12 do is, I think I can, then that's not going to -- it's not 13 going to be fair. 14 Because, imagine yourself sitting here and 15 you're on the jury -- you know, you're the defendant. 16 Someone says, I think I could be fair but I'm not sure, you 17 really wouldn't want that person on your jury. So the law 18 requires that anyone who's going to be on the jury be able 19 to follow the law. 20 Can you, can you with 100 percent certainty, 21 say that if you're convinced beyond all reasonable doubt 22 that the state's proved their case, that you'll find the 23 person guilty? 24 VENIREPERSON: I think I can. I -- 25 THE COURT: No -- [72] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: Yes, I can. 2 THE COURT: You can do it? 3 VENIREPERSON: I can. 4 THE COURT: All right. 5 MR. WILSON: All right. Was there anybody 6 else on the front row that I didn't get to? 7 Okay. Ms. Simonson. 8 VENIREPERSON: My daughter had a D W I. 9 MR. WILSON: Okay. And when was that? 10 VENIREPERSON: 20 years ago. 11 MR. WILSON: Okay. 12 VENIREPERSON: She was 21. 13 MR. WILSON: And do you feel like, based on 14 that experience, that you have any bias against the state 15 or the police? 16 VENIREPERSON: No. They probably caught her 17 right when she was pulling out of a place and if she had 18 gotten past them, maybe she would have had a wreck. There 19 was no wreck. But she did get pulled over. 20 MR. WILSON: So do you feel like she was 21 treated fairly in the process? 22 VENIREPERSON: Yes. 23 MR. WILSON: Did that experience, even 24 though it might have been bad at the time, did it have a 25 positive effect on your daughter at all? [73] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: On her, yes, it did. 2 MR. WILSON: Okay. Thank you. 3 Anybody else that I didn't get to? Yes, 4 sir. 5 VENIREPERSON: Stepson before he was my 6 stepson. 7 MR. WILSON: Okay. And do you feel like he 8 was treated fairly in the process? 9 VENIREPERSON: Yeah. I think the financial 10 penalty as well as the breathalyzer in the vehicle were the 11 appropriate measures to take. 12 MR. WILSON: Okay. Thank you, sir. 13 Anybody else on the second row? 14 VENIREPERSON: What was the question again? 15 MR. WILSON: The question is, do you have 16 anybody that you are -- like a family member, a spouse or a 17 child, something like that, who -- that you've been -- you 18 would have followed the case extremely closely who had been 19 arrested, charged or convicted of D W I? 20 VENIREPERSON: Yes. 21 MR. WILSON: And who was that? 22 VENIREPERSON: Family members. 23 MR. WILSON: Okay. And based on those 24 experiences and what you know, is it fair to say that you 25 have some bias or some mistrust of the police or the [74] Jury Voir Dire by Mr. Wilson 1 prosecution? 2 VENIREPERSON: No. 3 MR. WILSON: No? You feel like they were 4 treated fairly in the process, then? 5 VENIREPERSON: Yes. I feel like they were. 6 MR. WILSON: Okay. Thank you, Mr. Burdick. 7 Anybody else on the second row? 8 And the third row? Yes, Ms. Spruiell. 9 VENIREPERSON: My daughter. 10 MR. WILSON: And I guess how long ago was 11 that? 12 VENIREPERSON: She's had two. Her first one 13 she was 16, and that was nine years ago. 14 MR. WILSON: Okay. 15 VENIREPERSON: And when she turned 18. 16 MR. WILSON: And how is that -- how is that 17 -- Was she treated fairly in the process, do you think? 18 VENIREPERSON: Yes. 19 MR. WILSON: And what kind of -- did it have 20 a positive effect on her at all? 21 VENIREPERSON: It did. 22 MR. WILSON: It did? And so would you feel 23 that given those experiences that you have been associated 24 with, would you have any difficulty leaving those behind or 25 treating both the state and the defense fairly today? [75] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: I wouldn't have any 2 difficulty. I would like to say that I am the law's 3 biggest cheerleader. 4 THE COURT: Ma'am, can't hear you. 5 VENIREPERSON: I am the law's biggest 6 cheerleader. 7 THE COURT: Biggest -- okay. Thank you. 8 MR. WILSON: Thank you, Ms. Spruiell, 9 appreciate that. 10 Okay. Well, thank you all for sharing all 11 of this information. I know it's kind of tough. Here's a 12 question that's not so personal. 13 Just what kind of evidence would you -- what 14 kind of evidence would you like to see brought forth in a D 15 W I trial? 16 Mr. Campbell, what kind of evidence would 17 you be looking to see? 18 VENIREPERSON: I would say from the officer 19 that arrested the individual, stopping the individual, also 20 breathalyzer testing information, probably blood alcohol 21 test, either through blood test or breathalyzer. 22 MR. WILSON: Okay. So would you say you'd 23 have to have the breath test or blood tests results? 24 VENIREPERSON: Not always. 25 MR. WILSON: Okay. [76] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: I think some of the mental 2 and the physical faculties and seeing -- hearing the 3 information on that from the officer could be enough. 4 MR. WILSON: Now, if somebody were to have 5 the opportunity to take one of these tests, I mean, you 6 know that we're not required to -- let me state the law 7 this way. 8 In the State of Texas, we have something 9 called the implied consent law. And what that means is 10 that by signing your name on a driver's license, you've 11 given implied consent to offer a specimen of your breath or 12 your blood if a police officer requests it. 13 MR. BROOKS: Your Honor, may we approach? 14 THE COURT: Yes, sir. 15 (Sidebar conversation between the Court, 16 Mr. Brooks, Mr. Wilson and Ms. Singletary.) 17 MR. WILSON: So as I was explaining, we have 18 this implied consent law in the State of Texas. Say you 19 are required to give a specimen of your breath or blood, 20 but there's still a kind of a caveat to that law which 21 states that if you -- you have the option to refuse and as 22 a result of the refusal, the police can -- the state can 23 basically suspend your driver's license for up to 180 days. 24 So given the different definitions of 25 intoxication that we have and the type of evidence that you [77] Jury Voir Dire by Mr. Wilson 1 might receive, I guess I'm looking to know, would any of 2 you here be able to -- would you require that the state 3 present to you either evidence of a blood test or a breath 4 test? 5 Ms. Radice? 6 VENIREPERSON: Yes. 7 MR. WILSON: Yes, you would require a blood 8 or breath test? 9 VENIREPERSON: Yes. 10 THE COURT: Counsel, state your question 11 again so they understand. 12 MR. WILSON: Okay. Thank you, judge. 13 Just to make sure, you know, there's -- so 14 that it's clear. You have -- you have -- of all the 15 different evidence that you are presented with and how that 16 evidence applies to the three different definitions of 17 intoxication that we have, you'll be presented with 18 evidence of regarding mental faculties, physical faculties, 19 and alcohol concentration. 20 The question that I'm asking you is, in 21 order to convict someone, do you feel like you need 22 evidence of a blood test or a breath test before you could 23 go ahead and convict somebody? 24 Ms. Radice, your answer was yes. 25 VENIREPERSON: Yes. [78] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Is that still a yes? 2 VENIREPERSON: Yes. 3 THE COURT: Ms. Radice. 4 VENIREPERSON: Yes. 5 THE COURT: If you were convinced beyond all 6 reasonable doubt that someone lost the normal use of their 7 mental faculties or the normal use of their physical 8 faculties because they ingested alcohol, but there was no 9 breath or blood test but you were convinced they were 10 intoxicated because you thought that they had lost their 11 mental and physical faculties, you would still vote not 12 guilty? Is that what you're trying to say? That's what 13 the question is asking. 14 You know, sometimes we don't have a breath 15 or a blood test. Some people require that in order to be 16 comfortable enough to find someone guilty. So the question 17 really comes down, if the state proves to you, whatever 18 your level of proof is, beyond -- and you were convinced 19 beyond all reasonable doubt, that the defendant was 20 intoxicated due to the introduction of alcohol and that she 21 had lost either her normal physical faculties or she had 22 lost her normal mental faculties but, for whatever reason, 23 there was no breath or blood test, would you find the 24 person guilty or not? 25 VENIREPERSON: No. [79] Jury Voir Dire by Mr. Wilson 1 THE COURT: You would not find them guilty? 2 VENIREPERSON: No. 3 THE COURT: So even if you thought she was 4 intoxicated beyond all reasonable doubt, you would still 5 require a blood test before you could find someone guilty? 6 VENIREPERSON: Or a breathalyzer. 7 THE COURT: One of the two? 8 VENIREPERSON: Yes. 9 THE COURT: And you understand in the State 10 of Texas, when -- if someone is asked to provide one, they 11 don't have to provide one. 12 VENIREPERSON: No, I did not know that. 13 THE COURT: Does that change your answer at 14 all? 15 VENIREPERSON: Yes. 16 THE COURT: Okay. Would you require one? 17 VENIREPERSON: No. 18 THE COURT: Okay. 19 MR. WILSON: Okay. So all of that being 20 said, let's see, Mr. Sbaiti, would you require a blood or a 21 breath test? 22 VENIREPERSON: Now, the given -- no as a 23 bright line -- my answer is no as a bright line. I think 24 what a lot of people are struggling with, I can hear them 25 sort of talking around, I think a lot of people are having [80] Jury Voir Dire by Mr. Wilson 1 a difficult time, I was having a difficult time the way it 2 was originally posed with how would I find someone had lost 3 their faculties beyond a reasonable doubt without the test, 4 so assuming there's other evidence that establishes that, 5 no, I don't require that as a baseline. 6 MR. WILSON: Okay. That's correct. That's 7 a good way of putting it, is you have other evidence, just 8 not the breath or blood evidence but you've got other 9 evidence to be able to believe beyond a reasonable doubt. 10 And the question is, do you still need that 11 blood or breath test. Ms. Simonson? 12 VENIREPERSON: No. 13 MR. WILSON: No? Okay. 14 Mr. Campbell? 15 VENIREPERSON: No. 16 MR. WILSON: No? 17 Ms. Walker? 18 VENIREPERSON: No. 19 MR. WILSON: Ms. Stelling-Parker? 20 VENIREPERSON: Actually I have a question. 21 MR. WILSON: Okay. 22 VENIREPERSON: May not be able to give me an 23 answer. But I know that some people have medication they 24 take all the time; alcohol reacts differently with them 25 than it would somebody who doesn't take medication. How is [81] Jury Voir Dire by Mr. Wilson 1 that considered or you don't care? 2 MR. WILSON: Well, I can't really get into-- 3 VENIREPERSON: Yeah, general is fine. 4 MR. WILSON: Well, as far as our -- well, 5 what I can just tell you basically, for this general 6 question right now, just assume that there's no other 7 medications or other -- 8 VENIREPERSON: Factors. 9 MR. WILSON: Head injuries. Other factors 10 going on. 11 VENIREPERSON: Okay. 12 MR. WILSON: We're just dealing with 13 alcohol. 14 VENIREPERSON: Then no. 15 MR. WILSON: Okay. Mr. Mercer? 16 VENIREPERSON: No. 17 MR. WILSON: Mr. Byther? 18 VENIREPERSON: No. 19 MR. WILSON: Ms. Carbajal? 20 VENIREPERSON: No. 21 MR. WILSON: And Ms. White? 22 VENIREPERSON: No. 23 MR. WILSON: Mr. Burdick? 24 VENIREPERSON: No. 25 MR. WILSON: Mr. Pate? [82] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: No. 2 MR. WILSON: Mr. Brown? 3 VENIREPERSON: No. 4 MR. WILSON: Mr. Kendall? 5 VENIREPERSON: No. 6 MR. WILSON: Mr. Christopher? 7 VENIREPERSON: No. 8 MR. WILSON: Mr. Kieffer? 9 VENIREPERSON: No. 10 MR. WILSON: Mr. Sennett? 11 VENIREPERSON: No. 12 MR. WILSON: Ms. Parker? 13 VENIREPERSON: Yes. 14 MR. WILSON: Yes, okay. 15 THE COURT: Ms. Parker, you would require a 16 breath or blood test even if you were convinced that 17 they've lost the normal use of their mental or physical 18 faculties due to introduction of alcohol? 19 VENIREPERSON: Yes. 20 THE COURT: Thank you. 21 MR. WILSON: Mr. Lewis? 22 VENIREPERSON: No. 23 MR. WILSON: Mr. Cassedy? 24 VENIREPERSON: No. 25 MR. WILSON: Mr. Noi-Mingle? [83] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: No. 2 MR. WILSON: Mr. Moore? 3 VENIREPERSON: No. 4 MR. WILSON: Ms. Spruiell? 5 VENIREPERSON: No. 6 MR. WILSON: And Mr. Fried? 7 VENIREPERSON: No. 8 MR. WILSON: Okay. So last kind of long, 9 convoluted question for you guys, and then we'll be done 10 with the inquisition here. So this is another kind of long 11 question, sort of similar to what we were talking about, 12 but what I want you guys to -- I'll pose it to you this 13 way. 14 Let's say that the state brings you evidence 15 and you believe beyond a reasonable doubt that the 16 defendant does not have the normal use of her mental 17 faculties due exclusively to the introduction of alcohol. 18 Whatever evidence you need to believe that, you've got it. 19 But the state produces -- the state brings you no evidence 20 regarding physical faculties, no evidence regarding alcohol 21 concentration, but again, you have all the evidence you 22 need to believe beyond a reasonable doubt that the 23 defendant does not have normal use of her mental faculties. 24 I want to know what would your verdict be? 25 Ms. Radice? [84] Jury Voir Dire by Mr. Wilson 1 If it's not clear, I'll add this to you. 2 You have the definitions on the board right there. 3 If the state proves to you -- the scenario 4 as I'm putting it is that the state has given you evidence 5 and proved to you beyond a reasonable doubt that definition 6 number one applies. The defendant does not have the normal 7 use of her mental faculties due to the introduction of 8 alcohol into her body. And we're only dealing with alcohol 9 right now. 10 What we're saying is that the state has not 11 offered any evidence regarding definition number two, for 12 physical faculties, or definition number three, for alcohol 13 concentration. But you have all the evidence that you need 14 to believe beyond a reasonable doubt that definition number 15 one applies. The defendant does not have the normal use of 16 her mental faculties. 17 So my question to you is, given that 18 information, what would your verdict be? 19 VENIREPERSON: Guilty. 20 MR. WILSON: Okay. Mr. Sbaiti? 21 VENIREPERSON: I'll be honest. I'm having a 22 very hard time separating -- separating out the realities 23 of what it would mean to lose their mental faculties but 24 there's no evidence that they didn't lose their physical 25 faculties? [85] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Well, in a reality -- 2 VENIREPERSON: Yes, it's very hypothetical. 3 I get it. I'm not trying to problematize [sic] it. I 4 mean, obviously, if you could prove the first one, legally, 5 it should be a guilty verdict. And I'm trying to be loyal 6 to that. I'm having a hard time imagining what this would 7 actually look like. 8 MR. WILSON: Well, you know, just the scope 9 of this hypothetical is really just breaking down those 10 definitions. I know that in reality, it is -- you know, 11 mental faculties and physical faculties seem to work 12 together typically, but assuming that somehow in this -- in 13 this hypothetical universe we're speaking about right now, 14 let's just assume that somebody could not have the normal 15 use of her mental faculties, but still have -- and you know 16 what, the thing is, maybe they have normal physical 17 faculties, maybe not. We've just not offered any evidence 18 about it in our hypothetical case. 19 VENIREPERSON: You're asking whether I have 20 a touchstone of the other two definitions of intoxication 21 before I convict. The answer is no. So I would convict if 22 only one of them was there. If that satisfies you. 23 MR. WILSON: It does. 24 Ms. Simonson. 25 VENIREPERSON: Just based on not having any [86] Jury Voir Dire by Mr. Wilson 1 mental because of intoxication, I would say guilty. 2 MR. WILSON: Okay. Mr. Campbell? 3 VENIREPERSON: Guilty. 4 MR. WILSON: Ms. Walker? 5 VENIREPERSON: Guilty. 6 MR. WILSON: Ms. Stelling-Parker? 7 VENIREPERSON: Guilty. 8 MR. WILSON: Mr. Mercer? 9 VENIREPERSON: Guilty. 10 MR. WILSON: Mr. Byther? 11 VENIREPERSON: Guilty. 12 MR. WILSON: Ms. Carbajal? 13 VENIREPERSON: I don't understand that. 14 MR. WILSON: I'll come back to you in a 15 moment then. 16 Ms. White? 17 VENIREPERSON: Are you saying you can prove 18 she had alcohol? 19 MR. WILSON: Yeah, in this hypothetical, 20 we're saying that you got -- you've been presented with 21 evidence -- 22 VENIREPERSON: Uh-hum. 23 MR. WILSON: -- that shows you beyond a 24 reasonable doubt -- 25 VENIREPERSON: Uh-hum. [87] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: -- that the defendant did not 2 have the normal use of her mental faculties -- 3 VENIREPERSON: Right. 4 MR. WILSON: -- due to the introduction of 5 alcohol. 6 VENIREPERSON: All right. You've proven 7 that she's been drinking -- 8 MR. WILSON: Correct. 9 VENIREPERSON: -- in this case. 10 MR. WILSON: Yes. In this hypothetical. 11 VENIREPERSON: Would be tough but maybe 12 guilty. 13 MR. WILSON: Maybe guilty? 14 VENIREPERSON: I don't know. It's hard to-- 15 THE COURT: I can't hear her. 16 VENIREPERSON: -- without more evidence -- 17 THE COURT: I can't see her either. 18 VENIREPERSON: -- I need more than just -- 19 THE COURT: The hypo is you've already been 20 convinced. Whatever it took to convince you that she drank 21 alcohol and that she became intoxicated and lost her normal 22 mental faculties. So whatever evidence that is. 23 VENIREPERSON: About her being drunk or 24 drunk and driving? 25 THE COURT: I'm sorry? [88] Jury Voir Dire by Mr. Wilson 1 VENIREPERSON: Am I just convicting her of 2 being -- of drinking? 3 THE COURT: There's three definitions. 4 VENIREPERSON: Am I just convicting her 5 saying, yes, she's drunk -- she was drunk? 6 THE COURT: Not drunk; intoxicated. 7 MR. WILSON: Right. Remember we're dealing 8 with intoxication because that's what we've got the 9 definitions of. 10 VENIREPERSON: Intoxication, I'm sorry. 11 MR. WILSON: So all you're looking at is 12 you've got the evidence that you need to say that the 13 defendant was -- had -- she's -- in this hypothetical, 14 assume that the defendant was driving. 15 VENIREPERSON: Uh-hum. 16 MR. WILSON: And that you've got all the 17 evidence you need to believe beyond a reasonable doubt that 18 the defendant was driving, did not have the normal use of 19 her mental faculties -- 20 VENIREPERSON: Uh-hum. 21 MR. WILSON: -- due to the introduction of 22 alcohol. But you don't have any evidence regarding 23 physical faculties or alcohol concentration. What would 24 your verdict be? 25 VENIREPERSON: I guess -- I mean, I should [89] Jury Voir Dire by Mr. Wilson 1 say guilty but I just don't know. Guilty. 2 THE COURT: Why do you say you don't know? 3 VENIREPERSON: Because I just need more than 4 that. Than just the -- What is her normal? 5 THE COURT: Okay. We don't know. 6 VENIREPERSON: All of that. 7 THE COURT: But you're convinced that she's 8 intoxicated. That's what the hypo says. 9 VENIREPERSON: She's intoxicated and she 10 drove. That's all -- and I'm convinced of that on this 11 scenario? 12 THE COURT: Uh-hum. And I don't know why 13 you don't have physical. Maybe the officer didn't give the 14 person physical. Maybe the person was injured and couldn't 15 do the physical tests. Maybe they refused them. There's 16 lots of hypos. But for whatever the reason, there just is 17 no evidence of physical loss. 18 VENIREPERSON: Then I can convict. 19 MR. WILSON: All right. Mr. Burdick? 20 VENIREPERSON: Yes. If you can show me the 21 evidence with either questions, video, yes, I can convict. 22 MR. WILSON: Okay. Mr. Pate. 23 VENIREPERSON: Guilty. 24 MR. WILSON: Mr. Brown. 25 VENIREPERSON: Guilty. [90] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: Mr. Kendall? 2 VENIREPERSON: Guilty. 3 MR. WILSON: Mr. Christopher? 4 VENIREPERSON: Guilty. 5 MR. WILSON: Mr. Kieffer? 6 VENIREPERSON: Guilty. 7 MR. WILSON: Mr. Sennett. 8 VENIREPERSON: Guilty. 9 MR. WILSON: Ms. Parker? 10 VENIREPERSON: Not guilty. 11 MR. WILSON: Okay. Mr. Lewis? 12 VENIREPERSON: Guilty. 13 MR. WILSON: Mr. Cassedy? 14 VENIREPERSON: Guilty. 15 MR. WILSON: Mr. Noi-Mingle? 16 VENIREPERSON: Guilty. 17 MR. WILSON: Mr. Moore? 18 VENIREPERSON: Guilty. 19 MR. WILSON: Ms. Spruiell? 20 VENIREPERSON: Guilty. 21 MR. WILSON: And Mr. Fried? 22 VENIREPERSON: Guilty. 23 MR. WILSON: All right. So that is the end 24 of our questions. I'll quickly kind of go through the rest 25 of our presentation here. [91] Jury Voir Dire by Mr. Wilson 1 Beyond a reasonable doubt, you've heard us 2 talk about that ad nauseam. And as the judge told you, the 3 State of Texas does not provide you with a definition of 4 what beyond a reasonable doubt actually means, but what we 5 can tell you are some things that it doesn't mean. 6 For one, it does not mean beyond any doubt. 7 It doesn't mean beyond a shadow of a doubt. It doesn't 8 mean beyond all possible doubt. It's not a 100 percent 9 standard either. 10 A good example to provide you would be this. 11 Let's see, Mr. Campbell, can you tell me what those puzzle 12 pieces represent right now? 13 VENIREPERSON: No. 14 MR. WILSON: No. Can you tell me what they 15 represent now? 16 VENIREPERSON: Yes, I know. 17 MR. WILSON: What is it? Shark? 18 VENIREPERSON: A shark. 19 MR. WILSON: A shark, yeah. So do you 20 believe beyond a reasonable doubt that that's a picture of 21 a shark up there? 22 VENIREPERSON: Yes. 23 MR. WILSON: Do you have 100 percent of the 24 puzzle pieces filled in? 25 VENIREPERSON: No, I don't. [92] Jury Voir Dire by Mr. Wilson 1 MR. WILSON: No, but you know beyond a 2 reasonable doubt that that's a shark. 3 VENIREPERSON: Correct. 4 MR. WILSON: That's basically a good way to 5 think of when you're talking about what beyond a reasonable 6 doubt is. 7 A few things that the state does not have to 8 prove: We don't have to prove that the defendant lost all 9 mental or physical faculties. Remember it's just based on 10 that average non-intoxicated person standard. What's 11 normal for the average non-intoxicated person. 12 We don't have to show that the defendant 13 knew she was intoxicated. Again, it's only those 14 definitions that we've discussed. 15 The rights that the defendant has: She has 16 a right to a jury trial, has the Fifth Amendment right not 17 to testify today, and also has equal subpoena power as the 18 state. Meaning, you know, they have just the same power to 19 subpoena witnesses, have them testify on her behalf just as 20 we can bring witnesses and have them testify on our behalf. 21 Any final questions today? All right. 22 Well, thank you all very much. I'll look forward to 23 working with the six of you that we select for the jury 24 later on. 25 THE COURT: All right. Ladies and [93] Jury Voir Dire by Mr. Wilson 1 gentlemen, I'm going to give you the break that I promised 2 you. Remember the instructions I gave you. Come back in 3 as a group. Wait until the bailiff brings you in. Don't 4 discuss with anybody, even amongst yourselves, anything 5 about D W I or anything about this case. Don't use your 6 phone or anything to look anything up. 7 Bailiff, take charge of the jury. We'll be 8 out for 15 minutes. 9 THE BAILIFF: Yes, Your Honor. All rise. 10 (Recess at 11:50 A M, resuming at 12:13 P M. 11 Defendant present.) 12 THE BAILIFF: All rise. 13 (The jury panel enters.) 14 THE COURT: Thank you. Everyone may be 15 seated. 16 Bailiff, report. 17 THE BAILIFF: Panel is all present and 18 accounted for, Your Honor. 19 THE COURT: Thank you, ladies and gentlemen. 20 If you will please now give that same attention to the 21 defense counsel, Mr. Brooks. 22 JURY VOIR DIRE 23 MR. BROOKS: Thank you, judge. Morning 24 folks. 25 VENIREPERSONS: Morning. [94] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: How is everybody? 2 VENIREPERSONS: Good. 3 MR. BROOKS: Good holiday? Glad to be here? 4 VENIREPERSONS: Yes. Sure. 5 MR. BROOKS: Want some more time off? 6 (Laughter.) 7 MR. BROOKS: My name is Kevin Brooks and I 8 am representing Ms. Henderson-Love in this trial. And like 9 Mr. Wilson, I'll let you know a little bit about myself. 10 Born and raised in Indianapolis, Indiana; 11 attended law school, undergraduate university at Indiana 12 University. I've been married to the same woman for 27 13 years so far. Three children. One dog. On very short 14 leash right now based upon some things he chewed up over 15 the holiday. And I'm proud to be here representing 16 Ms. Henderson-Love. 17 We know what this trial is all about at this 18 point. You understand that this is a D W I trial. What 19 I'm going to ask you to do at the outset is to do a couple 20 of things. 21 The first thing I'm going to ask you to do 22 is not try and remedy any of society's problems through 23 this case. If you're selected to be on the jury, address 24 this case based upon the facts of this case and based upon 25 the law, not based upon what you perceive to be problems [95] Jury Voir Dire by Mr. Brooks 1 out in the world outside of this courtroom. 2 Can y'all agree to do that? 3 VENIREPERSONS: Yes. 4 MR. BROOKS: The other thing I'm going to 5 ask you to do is -- and this is not something you can give 6 me a verbal response to, but I'm going to ask each one of 7 you to look into your hearts and ask yourself this one 8 question: If I was charged with a crime, would I want 9 someone like myself, my viewpoints, my opinions, my biases, 10 sitting on this jury panel? Because all of us have those. 11 And as the judge had pointed out earlier, some cases just 12 may not be appropriate for you. 13 One of the examples we use all the time down 14 at the courthouse is, you're coming down here for jury duty 15 and as you head to your garage, you see that your car is 16 broken into. You make your way down here. You find 17 yourself in the courtroom. And guess what? You're down 18 here on a burglary of a motor vehicle case. 19 Now, I think all of you would agree in that 20 scenario that you would probably not be the right juror for 21 that case on that particular day. Anybody disagree with 22 that? 23 VENIREPERSON: Yeah. 24 MR. BROOKS: Mister? 25 VENIREPERSON: Sennett. [96] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: Sennett? You disagree with 2 that? 3 VENIREPERSON: Yes. 4 MR. BROOKS: Why is that? 5 VENIREPERSON: Because I feel for myself 6 personally I could be fair in that type of situation you 7 mentioned. 8 MR. BROOKS: Okay. And that's fair. 9 Anybody else agree with Mr. Sennett? Mister? 10 VENIREPERSON: Fried. 11 MR. BROOKS: Fried? 12 VENIREPERSON: Yeah. I think I could be 13 fair on that case. 14 MR. BROOKS: So Mr. Sennett, Mr. Fried, 15 agree that even if they had experienced something like that 16 that morning they could still be fair. Anybody else agree 17 -- feel the same way? It's fine if you do, it's fine if 18 you don't. 19 VENIREPERSON: I think I could. 20 VENIREPERSON: I think I could. 21 MR. BROOKS: And that's Mr. Kendall? 22 VENIREPERSON: Correct. 23 MR. BROOKS: And Mr. Christopher? 24 VENIREPERSON: Uh-hum. 25 MR. BROOKS: Okay. Now, one of the things [97] Jury Voir Dire by Mr. Brooks 1 that I want to talk to y'all about is, this is a D W I 2 trial, I do not want anyone to think that either I or my 3 client are down here in defiance of D W I laws. We both 4 drive the same streets, the same highways as y'all. I have 5 three kids who are on those same streets. So this is not 6 about we disagree with D W I, we disagree with the law as 7 it's applied. We simply have a difference of opinion with 8 respect to the facts of this case. 9 Mr. Mercer. 10 VENIREPERSON: Yes, sir. 11 MR. BROOKS: I noticed on your 12 questionnaire, or your juror information card, that you are 13 a high school coach? 14 VENIREPERSON: Yes. 15 MR. BROOKS: What sport? 16 VENIREPERSON: Football. 17 MR. BROOKS: Are you a head coach or 18 position coach? 19 VENIREPERSON: I'm a position coach, 20 offensive coordinator. 21 MR. BROOKS: Would you agree with me that 22 there are times in the course of the game that you see 23 calls that you feel are the wrong calls? 24 VENIREPERSON: Yes. 25 MR. BROOKS: Would you agree with me that [98] Jury Voir Dire by Mr. Brooks 1 there are times or have you seen for yourself on occasions 2 where, based upon instant replay, you saw that the ref made 3 the wrong call? 4 VENIREPERSON: Yes. 5 MR. BROOKS: How many of us have gotten 6 traffic tickets in here? 7 (Show of hands.) 8 MR. BROOKS: How many of us have believed 9 that every traffic ticket we've gotten, we deserved to get 10 that traffic ticket? 11 (Show of hands.) 12 MR. BROOKS: How many of us believe we got a 13 traffic ticket we didn't deserve to get? 14 (Show of hands.) 15 MR. BROOKS: Now, when you got that traffic 16 ticket, Mr. -- I apologize, folks, I'm not real good with 17 names. Mr. Byther? 18 VENIREPERSON: Yes. 19 MR. BROOKS: You got the ticket at a time 20 when you probably deserved the ticket, and you probably got 21 the ticket at a time when you felt you didn't deserve the 22 ticket. Correct? 23 VENIREPERSON: That's right. 24 MR. BROOKS: Would you agree with me in 25 terms of the decision to give you that ticket was based [99] Jury Voir Dire by Mr. Brooks 1 upon the opinion of that officer? 2 VENIREPERSON: It was, yes. 3 MR. BROOKS: And anybody disagree with that? 4 That the decision whether or not to give you a traffic 5 ticket is based solely on the opinion of that officer? 6 Correct? 7 VENIREPERSON: Yes. 8 MR. BROOKS: Mr. Brown? 9 VENIREPERSON: Sir. 10 MR. BROOKS: Mr. Brown, can two people see 11 the same thing and have a different opinion about what 12 they've just witnessed? 13 VENIREPERSON: Yes, sir. 14 MR. BROOKS: And you've seen that in your 15 course as -- you're currently a law enforcement officer? 16 VENIREPERSON: Currently deputy sheriff, 17 Collin County. 18 MR. BROOKS: So you would agree with me that 19 two people can see the same thing, have a different opinion 20 about what they've seen? 21 VENIREPERSON: Yes, sir. 22 MR. BROOKS: Or a different interpretation 23 about what they've seen? 24 VENIREPERSON: Yes, sir. 25 MR. BROOKS: Now, the judge and the state [100] Jury Voir Dire by Mr. Brooks 1 have done a real good job in terms of explaining the law so 2 my comments to you won't be hopefully -- will take less 3 time than what the state has taken so far this morning, but 4 we have a standard in this country for -- in terms of how a 5 person can be convicted of an offense. That's already been 6 explained to you as beyond a reasonable doubt. We have 7 several standards in our judiciary system. 8 The first standard are what we call burdens 9 of proof. The first standard is reasonable suspicion. 10 Now, because I have a law enforcement 11 officer on the panel, I'm going to ask you, what is your 12 definition of reasonable suspicion, Mr. Brown? 13 VENIREPERSON: When a normal person believes 14 a crime is -- is or is likely to be committed. 15 MR. BROOKS: Reasonable suspicion. A 16 reasonable person, under circumstances based upon specific 17 and articulable facts, suspects that a crime has been 18 committed. Sound about right? 19 VENIREPERSON: Yes, sir. 20 MR. BROOKS: And that's the standard by 21 which a law enforcement officer has the ability to 22 basically stop you and detain you. And if they have reason 23 to believe a crime has been committed, based upon that 24 reasonable suspicion, they can arrest you. 25 Is that a fair statement, Mr. Brown? [101] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: Yes, sir. 2 MR. BROOKS: Now, the other standard that we 3 have: Probable cause. Probable cause is information 4 sufficient to warrant a prudent person's belief that an 5 individual has committed a crime or that evidence of a 6 crime would be found in a search. 7 That's the standard that's basically used if 8 they want to get a search warrant for your house, your car, 9 things of that nature. They would have to have probable 10 cause and swear by an affidavit to a judge the facts that 11 outline that probable cause. 12 Next standard that we have, and this is one 13 that we often see in civil cases: Preponderance of the 14 evidence. Usually applied in civil cases. 15 And Mr. -- Mr. Sbaiti-- 16 VENIREPERSON: Sbaiti. 17 MR. BROOKS: Sbaiti, I'm sorry, sir. 18 VENIREPERSON: Sure. 19 MR. BROOKS: Typically in a lawsuit, a civil 20 situation, what are they fighting over? 21 VENIREPERSON: Money. 22 MR. BROOKS: Money. So in a lawsuit where 23 the only issue at stake is money, the standard of proof, 24 one side has to prove it beyond -- by a preponderance of 25 the evidence, which is basically, if they tip the scale [102] Jury Voir Dire by Mr. Brooks 1 however slightly in their favor, they win. A lot of times 2 what we refer to as 51 percent. 3 Did I describe that correctly, Mr. Sbaiti? 4 VENIREPERSON: I would say so. 5 MR. BROOKS: Now, the next standard -- or, 6 the burden of proof, I should say: Clear and convincing 7 evidence. This is the burden of proof the judge touched 8 upon that you normally will see in child custody cases, 9 that the State of Texas is trying to remove your children 10 from your home. And the definition for that burden of 11 proof is evidence must be highly and substantially more 12 probable to be true than not. 13 So I've gone through the standards or 14 burdens of proof from the very lowest up to this point to 15 the second highest. The third highest burden of proof is 16 beyond a reasonable doubt. 17 Now, can anyone tell me, based upon what 18 you've heard this morning, after listening to the 19 definitions for the burdens of proof that you've heard, 20 including the definition for the burden of proof that would 21 have to be shown to take your children, what's different 22 about this burden of proof? 23 Mr. Sennett. 24 VENIREPERSON: I mean, to me, beyond a 25 reasonable doubt, I think it's a bit higher. You know, I'm [103] Jury Voir Dire by Mr. Brooks 1 familiar with the previous one as my wife worked for Child 2 Protective Services for a number of years, so I understand 3 that and going to the next level on the criminal, I think 4 it's kind of the next step but I couldn't give you a firm 5 definition of what that would be. 6 MR. BROOKS: Right. And that goes to my 7 point exactly. The highest burden of proof that we have in 8 our judicial system, we don't have a definition for. 9 Anything below that, we have a definition, but for the 10 highest burden of proof, the burden of proof that allows a 11 jury to convict someone of an offense, there is no 12 definition. And as the judge said, beyond a reasonable 13 doubt means what it means to you, and it's going to mean 14 something different to each and every one of you. But I 15 just wanted, in terms of education, let you see that every 16 other burden of proof has a definition with the exception 17 of the highest burden of proof. 18 We talked a little bit -- or, y'all talked a 19 little bit earlier about presumption of innocence. 20 Ms. White, why do you think we have a 21 presumption of innocence? 22 VENIREPERSON: Why do we presume someone 23 innocent? I don't understand. Why do we presume someone 24 is innocent? 25 MR. BROOKS: Why do you think the law [104] Jury Voir Dire by Mr. Brooks 1 provides for that, as she sits here right now, she is 2 presumed innocent? 3 VENIREPERSON: Because you're presumed 4 innocent until proven guilty. 5 MR. BROOKS: And so if everything stopped 6 right here -- 7 VENIREPERSON: Uh-hum. 8 MR. BROOKS: -- right now -- 9 VENIREPERSON: Uh-hum. 10 MR. BROOKS: -- and all you heard is what 11 you've heard up to this point -- 12 VENIREPERSON: Uh-hum. 13 MR. BROOKS: -- six of you go back and vote, 14 what would your verdict have to be? 15 VENIREPERSON: Not guilty. 16 MR. BROOKS: Because? 17 VENIREPERSON: I haven't heard any evidence. 18 MR. BROOKS: Let's talk about the purpose of 19 a jury in a criminal trial. 20 Ms. Stelling-Parker. 21 VENIREPERSON: Yes, sir. 22 MR. BROOKS: What do you think the purpose 23 of a jury is in a criminal trial? 24 VENIREPERSON: To come to a consensus on 25 what the verdict as far as not one person's opinion. It's [105] Jury Voir Dire by Mr. Brooks 1 a group of people coming up with a joint opinion. 2 MR. BROOKS: Mr. Lewis, what do you think is 3 the purpose of a jury in a criminal trial? 4 VENIREPERSON: Well, I think it's -- in many 5 cases, it gives the -- it gives the defendant a more fair 6 opportunity that six people, not just one person or not 7 just the judge, have to be convinced and proved that 8 whatever verdict is fair. 9 MR. BROOKS: That's a good answer. 10 How many people think the purpose of a jury 11 in a criminal trial is to determine if the defendant is 12 guilty or not guilty? Anybody think that's the purpose of 13 a jury in a criminal trial? That's fine if you do. 14 There's no right or wrong answer. 15 Mr. Fried. 16 VENIREPERSON: Legally defined purpose that 17 they are supposed to make a determination. 18 MR. BROOKS: If you recall at the start of 19 the case, I think the court let you know that the State of 20 Texas has the burden to prove the charges beyond a 21 reasonable doubt. Six of you will be called upon not to 22 determine the defendant's guilt or innocence, but to 23 determine, is the evidence presented at trial proof beyond 24 a reasonable doubt that the accused committed a crime with 25 which she is charged? [106] Jury Voir Dire by Mr. Brooks 1 Can y'all see the difference between proving 2 whether she's guilty or not or proving whether the evidence 3 got -- proves beyond a reasonable doubt that the accused 4 committed the crime as charged? 5 VENIREPERSON: Well, what I meant, it would 6 be by that standard. 7 MR. BROOKS: Yes, sir. And again, there's 8 no right or wrong answer here. 9 Ms. Radice? Radice? 10 VENIREPERSON: Radice. 11 MR. BROOKS: Do you understand the 12 distinction between those two statements? 13 VENIREPERSON: I think the evidence has to 14 be there -- 15 MR. BROOKS: Yes, ma'am. 16 VENIREPERSON: -- to either show that the 17 person is innocent or guilty. 18 MR. BROOKS: Okay. And whose burden is 19 that? 20 VENIREPERSON: The jury. 21 MR. BROOKS: No. Whose burden is it to 22 prove that the person -- 23 VENIREPERSON: Oh, I'm sorry. The state. 24 MR. BROOKS: Right. 25 VENIREPERSON: The State of Texas. [107] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: So the question not for you if 2 you're a juror is -- the question is not, is she guilty or 3 not guilty. The question is: Has the state proven this 4 case by the evidence presented beyond a reasonable doubt? 5 If you believe that they have proven it, obviously, your 6 answer is guilty. If you believe they haven't proved it, 7 your verdict is not guilty. 8 What's more important, y'all? Should we 9 enforce laws and support law enforcement or protect 10 innocent people from being wrongly convicted? 11 Mr. Burdick? 12 VENIREPERSON: I think they're both equal. 13 MR. BROOKS: Have you ever heard a phrase: 14 Better a thousand men go free than one innocent person go 15 guilty, something to that effect? 16 VENIREPERSON: Heard it somewhere. 17 MR. BROOKS: So if we look at the question: 18 What's more important, enforcing the law and supporting law 19 enforcement or using our system to protect innocent people 20 from being wrongly convicted, which one would you think is 21 more important? 22 VENIREPERSON: Protect the innocent people 23 from being wrongly convicted. 24 MR. BROOKS: Does anybody disagree with 25 that? Mr. Campbell? [108] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: Well, with your second 2 statement, you put a quantity on there. 3 MR. BROOKS: Okay. 4 VENIREPERSON: And that's kind of weighted 5 to one side more than the other. I would tend to agree 6 with his first answer, that they're equally important. 7 MR. BROOKS: Okay. Anybody else agree with 8 Mr. Campbell? 9 VENIREPERSON: I do. 10 MR. BROOKS: Ms. White. And that would be 11 Ms. -- 12 VENIREPERSON: Stelling-Parker. 13 MR. BROOKS: Stelling-Parker. Thank you, 14 ma'am. 15 How could a person be wrongfully convicted 16 or confused -- accused. I'm sorry. How could a wrong -- 17 how could a person -- blah -- how could a person be 18 wrongfully accused of a crime? 19 Ms. Parker. How is it possible, or is it 20 possible, for that to happen? 21 VENIREPERSON: Without enough evidence. 22 MR. BROOKS: Well, I could see how you would 23 answer that. I'm simply pointing out, let's start with 24 being wrongfully accused versus wrongfully convicted. 25 VENIREPERSON: Wrongfully accused. [109] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: Yes, ma'am. 2 VENIREPERSON: Well, possibly the officer 3 may look at an individual, the way they're acting, and 4 determine it by physical attributes that they may be 5 intoxicated. 6 MR. BROOKS: And that question, I'm not 7 asking a question just based upon what we're here for 8 today, but just in general, in the criminal justice system. 9 VENIREPERSON: Based on what they see or how 10 that person is acting. 11 MR. BROOKS: Mr. Moore? What do you think? 12 VENIREPERSON: Overzealousness, inexperience 13 on the part of the officer. 14 MR. BROOKS: Okay. Ms. Spruiell. 15 VENIREPERSON: I think it would have a lot 16 to do with the situation at the time. 17 MR. BROOKS: Okay. You say it would have a 18 lot to do with the situation at the time. So honest 19 mistake? Would that -- 20 VENIREPERSON: Sure. 21 MR. BROOKS: Or human error? 22 VENIREPERSON: Yes, sir. 23 MR. BROOKS: Let's talk about a guilty 24 verdict versus a not-guilty verdict. 25 Guilty verdict obviously means that the [110] Jury Voir Dire by Mr. Brooks 1 charge has been proven beyond a reasonable doubt. We all 2 agree on that; correct? A not-guilty verdict obviously 3 includes but is not limited to innocence. 4 Mr. Sbaiti, you understand the distinction 5 in that statement? 6 VENIREPERSON: Sure. 7 MR. BROOKS: Would you agree that obviously 8 a not-guilty verdict, it could be innocent but a not-guilty 9 verdict could also mean that there just was not enough 10 evidence presented to support that the state proved the 11 case beyond a reasonable doubt. 12 VENIREPERSON: Right. 13 MR. BROOKS: Mr. Pate. 14 VENIREPERSON: Yes. 15 MR. BROOKS: You see that distinction? 16 VENIREPERSON: Yes. 17 MR. BROOKS: Now, that leads us to the 18 premise that a perfectly valid and lawful arrest can lead 19 to a perfectly valid and lawful not-guilty. 20 I'm going to pick on you. What do you think 21 about that? 22 VENIREPERSON: Slightly confusing but I can 23 see in the end where it would be possible. 24 MR. BROOKS: Well, let's start with where we 25 go back to when we were talking about the burdens of proof [111] Jury Voir Dire by Mr. Brooks 1 and the lowest level -- 2 VENIREPERSON: Right. 3 MR. BROOKS: -- in terms of burden of proof 4 we talked about was reasonable suspicion. 5 VENIREPERSON: Matches the description. 6 MR. BROOKS: Well, reasonable suspicion as 7 we said, a person -- a reasonable person under 8 circumstances based upon specific and articulable facts 9 would suspect that a crime has been committed. 10 VENIREPERSON: Right. 11 MR. BROOKS: That's the lowest burden we 12 have. So the question for the officer at that time, his 13 burden is much lower than your burden as a juror. 14 VENIREPERSON: Based on the evidence. 15 Correct. 16 MR. BROOKS: Because you have to base it 17 upon the evidence. 18 VENIREPERSON: Uh-hum. 19 MR. BROOKS: So if you take those two 20 burdens of proof, you can see how a perfectly valid -- 21 VENIREPERSON: Yes. 22 MR. BROOKS: -- and lawful arrest could lead 23 to a perfectly valid and lawful not-guilty. Does that make 24 sense? 25 VENIREPERSON: (Nods head.) [112] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: Now, something that has not 2 been talked about and I do want to talk about is 3 misdemeanor offenses versus felony offenses. 4 Anyone know the difference off hand? You 5 don't count. 6 (Laughter.) 7 MR. BROOKS: Anyone other than our police 8 officer know the difference? 9 VENIREPERSON: I know there's a distinction 10 between the two. 11 MR. BROOKS: Ms. White. 12 VENIREPERSON: I'll try my best. 13 Misdemeanor is kind of a minor crime. And a felony is a -- 14 a bigger charge. 15 MR. BROOKS: Well -- 16 VENIREPERSON: A bigger offense. 17 MR. BROOKS: Well, I don't want to downplay 18 any classification in our criminal justice system. Let me 19 put it to you this way: A misdemeanor offense is 20 punishable by jail time, county lockup. 21 VENIREPERSON: Okay. 22 MR. BROOKS: Felony convictions are 23 punishable by prison time. 24 VENIREPERSON: Okay. 25 MR. BROOKS: That's the difference. [113] Jury Voir Dire by Mr. Brooks 1 Misdemeanor case, the most you could go to jail is up to 2 one year. A felony, depending on what felony it is, you 3 could spend anywhere up to the rest of your life in prison. 4 That's the functional difference. 5 Now, how do you get there, misdemeanor 6 versus felony, is also a difference. Because, you see, in 7 a felony case, all felony charges go before grand jury. 8 Anybody here ever served on a grand jury? 9 Anybody know what a grand jury is? 10 Mr. Christopher? 11 VENIREPERSON: Yes. 12 MR. BROOKS: Okay. What is a grand jury? 13 VENIREPERSON: It's a group of people 14 similar to this that's convened prior to charges being 15 made, I guess, to see if there's enough evidence for 16 charges to be made. 17 MR. BROOKS: That's close. Basically the 18 way it's works is, if you're arrested on a felony charge, 19 that case is forwarded for filing with that jurisdiction's 20 grand jury. And that's 12 citizens and they review the 21 case. They don't make a decision as to guilt or innocence. 22 They just make a decision as, is there enough here for this 23 to continue on in the criminal justice system? If they 24 believe that, they issue what's called an indictment. If 25 they don't believe that, the case is dropped. [114] Jury Voir Dire by Mr. Brooks 1 And the distinction between that process and 2 the misdemeanor, there is no other review after the officer 3 files the charge. There is no independent review by 4 another group of citizens to assess whether or not there's 5 enough here that this case should continue in the criminal 6 justice system. That's the difference. 7 We've already kind of talked about -- or, 8 actually, you guys have -- right against self 9 incrimination. I'm just going to ask you, you had a break 10 and you had a chance to think about how you feel about a 11 person exercising their Fifth Amendment privilege not to 12 testify. 13 Is there anybody that, based upon that break 14 and having a chance to sit and think about it, changing 15 their answer from what they previously advised the court 16 and the prosecutor? Anybody change their mind on what they 17 previously said or felt? 18 (No responses.) 19 MR. BROOKS: We'll move on. 20 Now, judge gave some excellent reasons for 21 why a person on trial would not want to testify. Another 22 reason, I would suggest to you, is what if on advice of 23 counsel? And the lawyer has said they have not proven 24 their case. Would that be a valid reason? 25 Ms. White? [115] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: Yes. 2 MR. BROOKS: Mr. Christopher? 3 VENIREPERSON: Sure could. 4 MR. BROOKS: Okay. Let's talk about -- I 5 know the state had touched a little bit on scientific 6 testing and I just want to ask you about the breath test. 7 How many in the room thought that in a given 8 hypothetical you're pulled over, officer asks -- or, how 9 many of you -- strike that. Let me ask it to you this way. 10 Who in here thought that you had a right to 11 consult with an attorney prior to saying, yes, I will give 12 a breath test, or, no, I won't give a breath test? Did 13 anyone think you had that right to do so? 14 VENIREPERSON: I knew you had the right to 15 decline. 16 MR. BROOKS: You have the right to decline, 17 that's correct. But did you think that that -- you had the 18 right to consult with someone in terms of making that 19 decision? 20 VENIREPERSON: I never thought about it. 21 MR. BROOKS: Is there anyone here surprised 22 to find out you do not have the right to consult with an 23 attorney prior to making that decision? 24 Ms. Radice? 25 VENIREPERSON: What was the question? [116] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: How would you feel about that? 2 VENIREPERSON: I think it's okay that you 3 don't have that right. 4 MR. BROOKS: Is there anyone that thinks it 5 would be -- Let me put it to you this way, different from 6 what's posed on the board. 7 Would it be abnormal for a person to have 8 reservations about submitting to a test they know nothing 9 about? 10 Ms. Simonson? 11 VENIREPERSON: Would it be abnormal? 12 MR. BROOKS: Yes, ma'am. 13 VENIREPERSON: Well -- 14 MR. BROOKS: Let me ask it to you this way: 15 Do people normally set about and agree to tests that they 16 are not familiar with or don't know anything about? Is 17 that a normal human reaction? 18 VENIREPERSON: Right. And the law doesn't 19 require it, so I'm guessing most people are going to say, 20 no, I don't want the test. 21 MR. BROOKS: So can you see why some people 22 would be hesitant about wanting to take the test, if 23 they're not familiar with it or the process? 24 VENIREPERSON: Even if you had had one or 25 maybe two drinks, people are going to say no because [117] Jury Voir Dire by Mr. Brooks 1 they're not sure how that test is going to come out. 2 MR. BROOKS: That's a good answer. 3 Anyone disagree with Ms. Simonson? 4 Let me ask, Mr. Kieffer. 5 VENIREPERSON: Yes, sir. 6 MR. BROOKS: Hypothetically, you take the 7 test, someone makes a mistake. Who pays the price? 8 VENIREPERSON: As stated there, the person 9 who makes the -- 10 MR. BROOKS: Let's start off with the 11 machine makes an error. Who pays the price? 12 VENIREPERSON: Well, that's what I'm saying. 13 If the machine makes the error, the person pays the price. 14 If the reading is positive. 15 MR. BROOKS: What do you do for a living? 16 VENIREPERSON: I'm a sales person. 17 MR. BROOKS: But you're familiar with 18 machinery, whether it's automobile, whether it's a power 19 drill? 20 VENIREPERSON: Yeah. 21 MR. BROOKS: You ever seen a 100 percent 22 infallible machine? 23 VENIREPERSON: (Shakes head.) 24 MR. BROOKS: Has anybody? 25 What about if the operator makes an error, [118] Jury Voir Dire by Mr. Brooks 1 who pays the price? Again, is it the operator? 2 VENIREPERSON: No. 3 MR. BROOKS: Does the -- or, does not taking 4 the test in and of itself prove that someone is 5 intoxicated? 6 Ms. Radice? 7 VENIREPERSON: No. 8 MR. BROOKS: Mr. Sbaiti? 9 VENIREPERSON: No, it does not prove they're 10 intoxicated. 11 MR. BROOKS: Did I butcher your name again? 12 VENIREPERSON: It's Sbaiti. It's okay. 13 Took my wife a year to say it right. 14 (Laughter.) 15 MR. BROOKS: Ms. Simonson? 16 VENIREPERSON: No. 17 MR. BROOKS: Mr. Campbell? 18 VENIREPERSON: No. 19 MR. BROOKS: Ms. Walker? 20 VENIREPERSON: No. 21 MR. BROOKS: Ms. Stelling-Parker? 22 VENIREPERSON: No. 23 MR. BROOKS: Mr. Mercer? 24 VENIREPERSON: No. 25 MR. BROOKS: Mr. Byther? [119] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: No. 2 MR. BROOKS: Byther, I'm sorry. 3 VENIREPERSON: Byther. 4 MR. BROOKS: Ms. Carbajal? 5 VENIREPERSON: No. 6 MR. BROOKS: Ms. White? 7 VENIREPERSON: (Shakes head.) 8 MR. BROOKS: Mr. Burdick? 9 VENIREPERSON: No. 10 MR. BROOKS: Mr. Pate? 11 VENIREPERSON: No. 12 MR. BROOKS: Mr. Brown? 13 VENIREPERSON: No. 14 MR. BROOKS: Mr. Christopher, how do you 15 feel? 16 VENIREPERSON: I'm Kendall. 17 MR. BROOKS: I'm sorry, sir. 18 VENIREPERSON: No. 19 MR. BROOKS: Mr. Christopher? 20 VENIREPERSON: No. 21 MR. BROOKS: Mr. Kieffer? 22 VENIREPERSON: No. 23 MR. BROOKS: How about you, Mr. Sennett? 24 VENIREPERSON: No. 25 MR. BROOKS: Ms. Parker? [120] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: No. 2 MR. BROOKS: Was that a no? 3 VENIREPERSON: No. 4 MR. BROOKS: Mr. Lewis? 5 VENIREPERSON: No. 6 MR. BROOKS: Mr. Cassedy? 7 VENIREPERSON: No. 8 MR. BROOKS: And Mr -- I'm going to screw 9 this up. Noi-Migle? 10 VENIREPERSON: Noi-Mingle. 11 MR. BROOKS: Noi-Mingle. I'm sorry. 12 VENIREPERSON: No. 13 MR. BROOKS: Mr. Moore? 14 VENIREPERSON: No. 15 MR. BROOKS: Ms. Spruiell, how do you feel? 16 VENIREPERSON: No. 17 MR. BROOKS: Mr. Fried? 18 VENIREPERSON: No. 19 MR. BROOKS: Do you feel that some people 20 might not be willing to submit to a test knowing that they 21 are innocent? 22 Mr. Pate? 23 VENIREPERSON: Yes. 24 MR. BROOKS: Anyone disagree with Mr. Pate? 25 (No responses.) [121] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: Okay. I think we had also 2 already talked about or gone over social drinkers versus 3 non-drinkers. I think there was one person that said they 4 don't drink. Was that you, Mr. Kendall? Mr. Kendall, 5 Mr. Christopher? Was there a point in time where you did? 6 VENIREPERSON: Yes. 7 MR. BROOKS: Both of you? 8 VENIREPERSON: Yes. 9 VENIREPERSON: (Nods head.) 10 MR. BROOKS: Is there anyone else in the 11 group who used to drink socially but no longer drinks? 12 VENIREPERSON: I don't drink at all. 13 THE COURT: Ma'am, I don't think he can see 14 your hand. 15 VENIREPERSON: I don't drink at all. 16 MR. BROOKS: Okay. You don't drink at all. 17 Thank you, Ms. Parker. 18 We've already touched upon has anyone been 19 affected in anyway by a person with an alcohol or chemical 20 dependency. Is there anyone in the group who didn't answer 21 previously when the state was asking those questions but 22 upon reflection now, wishes to answer that question? 23 Mr. Christopher. 24 VENIREPERSON: The state asked whether I had 25 a family member affected by the crime of driving under the [122] Jury Voir Dire by Mr. Brooks 1 influence or crime of driving while intoxicated, and my 2 answer was no, but I have a sister who's an alcoholic. 3 She's not been charged with -- knock on wood -- driving 4 under the influence but she does have a dependency problem. 5 MR. BROOKS: Okay. Thank you for sharing 6 that, sir. 7 Anyone else? Ms. White. 8 VENIREPERSON: My brother is a violent 9 alcoholic and my brother-in-law. 10 MR. BROOKS: There was someone else who 11 raised their hand down here. Mr. Lewis? 12 VENIREPERSON: Yes. When it was previously 13 stated, there was no mention of chemical dependency but the 14 answer to this question is, yes, my first wife had serious 15 chemical dependency problems. In and out of rehab several 16 times. 17 MR. BROOKS: How long have y'all been 18 divorced? 19 VENIREPERSON: 12 years -- no, I'm sorry. 20 20 -- I lose track of years. 21 MR. BROOKS: Anything about -- 22 VENIREPERSON: One of those old age things. 23 MR. BROOKS: Anything about that experience 24 you think that would impact your ability to be fair in this 25 trial? [123] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: No. Because I didn't even -- 2 had not even thought about it until just now when that 3 question came up, but, no, it would not. 4 MR. BROOKS: Mr. Christopher. Anything 5 about your experience impact your ability? 6 VENIREPERSON: No. 7 MR. BROOKS: Ms. White? 8 VENIREPERSON: No. 9 MR. BROOKS: No? 10 VENIREPERSON: (Shakes head.) 11 MR. BROOKS: I think you were asked this 12 question also directly. Any of you been harmed directly or 13 indirectly by person suspected of being drunk driver? 14 Anyone who hadn't previously answered that question want to 15 share anything now? 16 (No responses.) 17 MR. BROOKS: Okay. 18 Anyone on the first row have friends or 19 family in law enforcement? Mr. Sbaiti? 20 VENIREPERSON: Yes. 21 MR. BROOKS: Who? 22 VENIREPERSON: I have friends in the Addison 23 police department and Dallas police department. 24 MR. BROOKS: Are these casual acquaintances, 25 are these get together, watch football type of [124] Jury Voir Dire by Mr. Brooks 1 acquaintances? 2 VENIREPERSON: They're guys I went to high 3 school with, so I see them occasionally but not regularly. 4 MR. BROOKS: And anything in terms of, if 5 you ran into them and told them that you were a juror on a 6 D W I case and that you felt that the evidence wasn't 7 proven beyond a reasonable doubt, anything in that cause a 8 concern in y'all's relationships? 9 VENIREPERSON: No. 10 MR. BROOKS: Who else on the first row? 11 Ms. White? 12 VENIREPERSON: My brother-in-law -- 13 different brother-in-law is an officer for city of Sachse. 14 MR. BROOKS: I hope you have different 15 brothers-in-law. 16 (Laughter.) 17 MR. BROOKS: He's in Sachse? 18 VENIREPERSON: Sachse officer. 19 MR. BROOKS: Same question. If you were to 20 end up on this jury and based upon the evidence that you 21 heard, you felt that the state had not proven their case 22 beyond a reasonable doubt, would that cause you any issues 23 between you and your brother-in-law? 24 VENIREPERSON: No. 25 MR. BROOKS: Anyone on the second row? Have [125] Jury Voir Dire by Mr. Brooks 1 friends or family in law enforcement? 2 Mr. Lewis. 3 VENIREPERSON: Yes. My father, for 4 basically all of my life before he passed away, was a 5 security policeman for a large -- large defense contractor 6 in Fort Worth. He was security policeman for all of his 7 life. So I -- I pretty much have a very, very strong -- 8 MR. BROOKS: Law enforcement background? 9 VENIREPERSON: Law enforcement pro, you 10 know, in my family. 11 MR. BROOKS: Let me ask you this then: 12 Would you value the word of a police officer over others? 13 VENIREPERSON: Yeah, I have to say yes. 14 MR. BROOKS: So just so that we're clear, if 15 a police officer were to testify, his testimony is going to 16 start him off a little bit ahead in terms of credibility 17 than any other witness? 18 VENIREPERSON: Yeah. Yeah. 19 THE COURT: I can't hear your answer, sir. 20 VENIREPERSON: Yes. Yes, that's just the 21 way I was raised, the way I felt all my life. 22 MR. BROOKS: Thank you, sir. 23 Ms. Parker, I think you raised your hand. 24 VENIREPERSON: Fireman. 25 MR. BROOKS: Same question. Anything about [126] Jury Voir Dire by Mr. Brooks 1 -- kind of a different question. Anything about you 2 potentially being a juror and potentially finding someone 3 not guilty that would affect that relationship? 4 VENIREPERSON: (Shakes head.) 5 MR. BROOKS: Was that a no? 6 VENIREPERSON: No. 7 MR. BROOKS: Okay. Anyone else on the 8 second row? 9 Yes, sir. Mr. Kieffer. 10 VENIREPERSON: Friends in The Colony police 11 department. And the second question, no, about the effect, 12 if I had to give a guilty. 13 MR. BROOKS: Anyone else? 14 VENIREPERSON: (Indicating) 15 MR. BROOKS: I guess that's everybody you 16 know. I'm not sure how to ask you that question. 17 (Laughter.) 18 MR. BROOKS: Okay. Anyone else -- I will 19 give you a pass. 20 Anyone else on the third row? Mr. Fried. 21 VENIREPERSON: My brother's recently retired 22 Philadelphia police officer. 23 MR. BROOKS: Anything about being a juror, 24 potentially finding someone not guilty, that would affect 25 that relationship? [127] Jury Voir Dire by Mr. Brooks 1 VENIREPERSON: No. 2 MR. BROOKS: Thank you, sir. 3 VENIREPERSON: Can I add? 4 MR. BROOKS: Yes, ma'am. 5 VENIREPERSON: Well, the question is law 6 enforcement. So to me I think, you know, sheriff people, 7 not -- you know, in uniform but my father is retired Air 8 Force and been in the security field for the Department of 9 Defense and major contractors for the last 25 years. So, 10 yeah, I'm kind of -- tend to side more with the cops. 11 MR. BROOKS: So a police officer, in terms 12 of credibility, he's going to start off ahead of anybody 13 else? 14 VENIREPERSON: Yeah. 15 MR. BROOKS: So you would view his testimony 16 differently? 17 VENIREPERSON: Yes. 18 MR. BROOKS: Thank you, ma'am. 19 Did I miss anyone on that question? Thank 20 you. 21 I'm almost finished, folks. Wrapping up. 22 Anyone on the panel -- let me go by row. 23 First row, participated with Mothers Against Drunk Driving 24 or has donated money to Mothers Against Drunk Driving? 25 Anyone on the first row? Or Students Against Drunk Driving [128] Jury Voir Dire by Mr. Brooks 1 as well. 2 Anyone on the second row? 3 Mr. Sennett. 4 VENIREPERSON: Yeah, I've donated before to 5 MADD. 6 MR. BROOKS: To MADD or SADD? 7 VENIREPERSON: MADD. 8 MR. BROOKS: Was that recently? 9 VENIREPERSON: Probably five, six years ago. 10 MR. BROOKS: You ever do anything other than 11 just donating, participating in workshops or anything like 12 that? 13 VENIREPERSON: No. 14 MR. BROOKS: Anyone else? Mr. Fried. 15 VENIREPERSON: I donated to MADD in the 16 past, not recently. 17 MR. WILSON: Okay. And Ms. Spruiell? 18 VENIREPERSON: Uh-hum. Donated. 19 MR. BROOKS: Basically have one last 20 question, folks. 21 And the question is quite simply this: At 22 the end of the testimony for those who end up on the jury, 23 if at the end of the testimony, you feel that the state has 24 probably proven their case but has not proven it beyond a 25 reasonable doubt, what is your verdict? Again, at the end [129] Jury Voir Dire by Mr. Brooks 1 of testimony, you believe they probably have proven their 2 case but they have not proven it to you beyond a reasonable 3 doubt. 4 VENIREPERSON: Guilty. 5 MR. BROOKS: Your verdict would be guilty? 6 VENIREPERSON: Guilty. 7 MR. BROOKS: Okay. I just want to make sure 8 you understand what my question is. Probably but they have 9 not proven it beyond a reasonable doubt. You would still 10 vote guilty? 11 VENIREPERSON: Yes. 12 MR. BROOKS: Mr. Sbaiti? 13 VENIREPERSON: Not guilty. 14 MR. BROOKS: Ms. Simonson? 15 VENIREPERSON: Not guilty. 16 MR. BROOKS: Mr. Campbell? 17 VENIREPERSON: Not guilty. 18 MR. BROOKS: Ms. Walker? 19 VENIREPERSON: Not guilty. 20 MR. BROOKS: Ms. Stelling-Parker? 21 VENIREPERSON: Not guilty. 22 MR. BROOKS: Mr. Mercer? 23 VENIREPERSON: Not guilty. 24 MR. BROOKS: Mr. Byther? 25 VENIREPERSON: Not guilty. [130] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: Ms. Carbajal? 2 VENIREPERSON: I don't understand very well 3 that question. 4 MR. BROOKS: We'll come back to you, 5 Ms. Carbajal. 6 Ms. White? 7 VENIREPERSON: Not guilty. 8 MR. BROOKS: Mr. Burdick? 9 VENIREPERSON: Not guilty. 10 MR. BROOKS: Mr. Pate? 11 VENIREPERSON: Not guilty. 12 MR. BROOKS: Mr. Brown? 13 VENIREPERSON: Not guilty. 14 MR. BROOKS: Mr. Kendall? 15 VENIREPERSON: Not guilty. 16 MR. BROOKS: Mr. Christopher? 17 VENIREPERSON: Not guilty. 18 MR. BROOKS: Mr. Kieffer? 19 VENIREPERSON: Not guilty. 20 MR. BROOKS: Mr. Sennett? 21 VENIREPERSON: Not guilty. 22 MR. BROOKS: Ms. Parker? 23 VENIREPERSON: Not guilty. 24 MR. BROOKS: Mr. Lewis? 25 VENIREPERSON: Not guilty. [131] Jury Voir Dire by Mr. Brooks 1 MR. BROOKS: Mr. Cassedy? 2 VENIREPERSON: Not guilty. 3 MR. BROOKS: Mr. Noi-Mingle? 4 VENIREPERSON: Yes. Not guilty. 5 MR. BROOKS: Mr. Moore? 6 VENIREPERSON: Not guilty. 7 MR. BROOKS: Ms. Spruiell? 8 VENIREPERSON: Not guilty. 9 MR. BROOKS: Mr. Fried? 10 VENIREPERSON: Not guilty. 11 MR. BROOKS: Well, folks, I think that -- I 12 want to thank you for your time. Now, before I sit down, 13 is there anyone that has any questions of me? Because this 14 is the only time -- for those of you who might end up on 15 the jury, this is the only time we get to talk back and 16 forth like this. 17 The six of you that get selected to sit in 18 the box, let you know right now, there are going to be some 19 times, even if this is just a very short trial, we may pass 20 each other in the hallway, to and from the restroom. I let 21 you know right now, I won't say anything to you. It's not 22 because I think I'm better than y'all or anything like 23 that. It's just that the rules down here require us to 24 avoid any appearance of impropriety. I have yet to have a 25 criminal case where it did happen. So we will pass each [132] Jury Voir Dire by Mr. Brooks 1 other at some point in a short break. So don't get 2 offended if I don't acknowledge your presence. Okay? If 3 you don't have any questions of me, I'm going to sit down. 4 I thank you for your time. 5 THE COURT: Before I release you to the 6 hallway, Mr. Lewis, I need to understand your answer with 7 regards to law enforcement. 8 Why would you give a police officer more 9 credibility or believe them -- be more likely to believe 10 them than some other person? Is it based on what? 11 VENIREPERSON: Just the fact that my father 12 was a security police officer for all of his -- all of his 13 adult career, all of his life, you know. I watched him put 14 on his uniform and put on his gun every day, you know, and 15 go to work. And come home from work. And he -- I just 16 always have had -- felt just a high regard -- 17 THE COURT: Okay. 18 VENIREPERSON: A higher regard for an 19 officer. 20 THE COURT: All right. Thank you very much. 21 All right. Ladies and gentlemen, I'm going 22 to release you into the hallway. The attorneys are going 23 to strike their lists. When you come back in, you can sit 24 anywhere you want, on any row, any side of the courtroom, 25 just take the first available seat. [133] 1 The reason, we've taken all the notes we're 2 going to take about you, I'm going to announce the six of 3 you who are going to be with us for the remainder of the 4 trial. 5 The rest of you, you need a note showing 6 you've been here, stay behind when I release everyone else 7 and my bailiff will provide you the form. All right? 8 Thank you very much. 9 Bailiff, take charge of the panel. 10 THE BAILIFF: All rise. 11 THE COURT: May I see the attorneys at the 12 bench. 13 (The jury panel exits.) 14 THE COURT: All right. Let the record 15 reflect that all of the panel members are outside. All the 16 parties are present. 17 Challenges for cause from the state? 18 MR. WILSON: The state offers challenge for 19 cause juror number one, Robin Radice. 20 THE COURT: What says the defense? 21 MR. BROOKS: Defense would agree. 22 THE COURT: All right. Struck by agreement. 23 MR. WILSON: Juror number five, Loretta 24 Walker. 25 THE COURT: What says the defense? [134] 1 MR. BROOKS: What grounds? 2 MR. WILSON: She said that she would not be 3 able to separate her prior D W I experience from the 4 defendant and that she would be comparing what the kind of 5 drinking and location and circumstances of her arrest to 6 what happened with the defendant. 7 MR. BROOKS: I agree. 8 THE COURT: Number five, Loretta Walker, is 9 struck by agreement. 10 Next. 11 MR. WILSON: Number eight. 12 THE COURT: What says the defense? 13 MR. BROOKS: I think number eight, I think 14 he rehabilitated himself, judge. 15 THE COURT: On what grounds? 16 MR. WILSON: Your Honor, my grounds are that 17 he stated that he would need to hear from the defendant, 18 hear her testimony, so he would have difficulty following 19 the Fifth Amendment. 20 THE COURT: I've got him marked as on the 21 Fifth Amendment as well. 22 MR. BROOKS: Yes, I see that on here. I 23 agree, judge. 24 THE COURT: You agree to number eight being 25 struck? [135] 1 MR. BROOKS: Yes, I do. 2 THE COURT: Number eight struck by 3 agreement. 4 Next. 5 MR. WILSON: Juror number 10, Cynthia White. 6 She also was one who indicated a problem following the 7 Fifth Amendment. 8 THE COURT: What says the defense? 9 MR. BROOKS: Agree, judge. 10 THE COURT: Struck by agreement. 11 Next. 12 MR. WILSON: Juror number 13, Michelle 13 Parker, said that she would not be able to convict based on 14 mental faculties and would also require a breath or blood 15 specimen. 16 THE COURT: What says the defense? 17 MR. BROOKS: Agree, judge. 18 THE COURT: Number 13, Michelle Parker, 19 struck by agreement. 20 Next. 21 MR. WILSON: That's all from the state, Your 22 Honor. 23 THE COURT: Any from the defense? 24 MR. BROOKS: Juror number six, judge. She 25 has said that law enforcement would have more credibility [136] 1 with her from the outset than any other witness. 2 THE COURT: What says the state? 3 MR. WILSON: Your Honor, could we bring the 4 juror number six back in and talk to her? 5 THE COURT: I think she was very clear about 6 her law enforcement bias. Plus I have notes on her that 7 she also raised her hand when I was explaining the Fifth 8 Amendment. 9 MR. WILSON: Then we have no disagreement, 10 Your Honor. 11 THE COURT: Number six is struck by 12 agreement. 13 Any other challenges from the defense? 14 MR. BROOKS: Just one second, judge. No, 15 Your Honor. 16 THE COURT: What about Mr. Lewis and his law 17 enforcement bias? 18 MR. BROOKS: Oh, that's right. Yes, number 19 12. 20 THE COURT: What says the state? 21 MR. WILSON: Your Honor, I feel like 22 Mr. Lewis has just said that he would -- he has a lot of 23 respect for law enforcement, that he would give them 24 credibility but I don't believe -- don't believe that we've 25 heard enough to say that he would not be able to follow the [137] 1 law. 2 THE COURT: Number 12 is struck for cause by 3 the court. 4 And what did the attorneys say about 5 Ms. Carbajal and her ability to understand the English 6 language? I noticed during several questions she responded 7 she doesn't understand the question. 8 MR. WILSON: Your Honor, I would -- the 9 state would request that Ms. Carbajal be struck for cause. 10 MR. BROOKS: I mean, I would agree to 11 release her, judge. I don't know if it's for cause but I 12 agree. 13 THE COURT: She's struck by agreement. 14 Any others? 15 MR. WILSON: None from the state, Your 16 Honor. 17 THE COURT: Anything else from the defense? 18 MR. BROOKS: No, sir. 19 THE COURT: All right. Check on that, the 20 list of jurors. Looks to me like -- strike your list up to 21 and including number 20. 22 Ms. Singletary, is that what the state 23 shows? 24 MS. SINGLETARY: That's what I see, judge. 25 THE COURT: I beg your pardon? [138] 1 MS. SINGLETARY: That's what I see. 2 THE COURT: Is that what you show as well, 3 Mr. Brooks? 4 MR. BROOKS: Yes, judge. 5 THE COURT: All right. Let's go over it one 6 more time to be clear. These are people struck by either 7 cause or agreement. Number one is struck. Number five. 8 Number six. Number eight. Number nine. Number 10. 9 Number 12. Number 13. 10 Any objections to those from the state? 11 MR. WILSON: No, Your Honor. 12 THE COURT: Any from the defense? 13 MR. BROOKS: No, Your Honor. 14 THE COURT: Strike your lists up to and 15 including panel member number 20, please. 16 (Recess at 1:06 P M, resuming at 1:17 P M. 17 Defendant present.) 18 THE COURT: All right. Listen closely as I 19 call over the ones I show you struck. I show the state has 20 struck panel member number two, Mr. Sbaiti. Panel member 21 number 11, Shawn Cassedy. And panel member number 19, 22 Billy Pate. Is that correct? 23 MR. WILSON: Yes, Your Honor. 24 THE COURT: I show the defense has struck 25 panel member number 14, Brian Sennett. Number 17, Jon [139] 1 Kendall. Number 18, Robert Brown. Is that correct? 2 MR. BROOKS: Yes, Your Honor. 3 THE COURT: This will be your jury: Number 4 three, Carol Simonson. Number four, David Campbell. 5 Number seven, Kelly Mercer. Number 15, Matthew Kieffer. 6 Number 16, David Christopher. And number 20, Michael 7 Burdick. 8 Any objection to the array of the panel from 9 the prosecution? 10 MR. WILSON: No, Your Honor. 11 THE COURT: Any from the defense? 12 MR. BROOKS: No, Your Honor. 13 THE COURT: All right. Bailiff, would you 14 bring them in. Here's the list. 15 THE BAILIFF: Yes, sir. All rise. 16 (The jury panel enters.) 17 THE COURT: When you come in, you can just 18 have a seat anywhere in the courtroom. 19 All right. Thank you. Everyone else may be 20 seated. 21 If I call out your name, please gather all 22 of your possessions, come through the swinging doors, go up 23 to the jury box, go in that swinging door. You can sit on 24 the front row or the back row, whichever you're more 25 comfortable, but please go all the way down to the end of [140] 1 the row just to make room for the other jurors that will be 2 coming in behind you. 3 The jury will consist of: Carol Simonson; 4 David Campbell; Kelly Mercer; Matthew Kieffer -- Is it 5 Kieffer or Kiffer? 6 VENIREPERSON: Kieffer. 7 THE COURT: Thank you. David Christopher. 8 And number 20, Michael Burdick. 9 To those of you who were not chosen, dry 10 your eyes, don't be so sad. But in all seriousness, if we 11 want our criminal justice system to work the way it was 12 intended, then your service is just as important as those 13 who were chosen this particular day. So with that, you are 14 excused. This concludes your jury service. If any of you 15 need a note, please see my bailiff and we'll provide one 16 showing that you were here today. 17 Thank you for your service. 18 THE BAILIFF: All rise. 19 THE COURT: Not you. 20 THE JUROR: Not us. 21 (The jury panel exits.) 22 THE COURT: Everyone may be seated. As for 23 the six of you who remain with us, please stand, raise your 24 right hand, so I may administer your oath as jurors to you. 25 (The court swears the jury.) [141] 1 THE COURT: Carol Simonson. 2 THE JUROR: Yes, I do. 3 THE COURT: David Campbell? 4 THE JUROR: Yes. 5 THE COURT: Kelly Mercer. 6 THE JUROR: Yes. 7 THE COURT: Matthew Kieffer? 8 THE JUROR: Yes. 9 THE COURT: David Christopher? 10 THE JUROR: I do. 11 THE COURT: Michael Burdick. 12 THE JUROR: Yes. 13 THE COURT: Thank you. You may be seated. 14 By the oath you've taken as jurors, you 15 become officials of this court and active participants in 16 the public administration of justice. In a moment, the 17 bailiff is going to take you back to what will be called 18 the jury deliberation room. That's where you will meet and 19 discuss the case, but not until after all the evidence is 20 presented and I've given you your written instructions. 21 This is very important, that you not discuss 22 anything about this case or any other case until I've given 23 you those written instructions. Okay? And then you can 24 only do it after the evidence is closed and all six of you 25 are together. [142] 1 He's also going to give you a badge. That 2 badge serves two very important purposes. One, it lets you 3 gain access to the locked part of the courtroom so you can 4 get back to your jury deliberation room. And it serves as 5 a visual indicator that you're on a jury. 6 It won't surprise you that when I release 7 you for lunch in a minute that you're going to go to some 8 restaurant, there will be attorneys, other jurors, 9 prosecutors, defense attorneys and defendants, and they're 10 talking about cases. If you can hear anyone discussing a 11 case in your presence, go up and let them know that you're 12 a juror and let them know that you can hear the 13 conversation. 14 I've never even heard of a situation where 15 that didn't stop the conversation, but if it doesn't, just 16 report to my bailiff what occurred and we'll take care of 17 it. Okay? But you have to wear that juror badge on the 18 outside of your clothing where everyone can clearly see it. 19 The bailiff is going to give you a security 20 briefing also. You're in good hands. 21 It's now 1:30. Going to take him about 10 22 minutes to give you that briefing. I'm going to let you go 23 to lunch. Be back here at 2:45. I want the attorneys and 24 all parties present to be here at 2:40, five minutes early, 25 so we're not keeping the jury waiting when they come back. [143] 1 I still think we'll finish this in one day. 2 With that, follow the bailiff, and he'll 3 give you your security briefing. 4 Thank you for your service. 5 THE BAILIFF: All rise. 6 THE COURT: When you come in, just come in; 7 everyone will always be standing. Just have a seat when 8 you come in. 9 (The jury exits.) 10 THE COURT: Everyone may be seated. I'll 11 see everyone back at 2:40. 12 (Recess at 1:25 P M. Proceedings resume in 13 Volume 3.) [25] (Jury Not Present) [144] 1 STATE OF TEXAS ) 2 COUNTY OF COLLIN ) [3] 4 I, Marigay Black, Official Court Reporter in and for 5 the County Court at Law Number Two, County of Collin, State 6 of Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all portions 8 of evidence and other proceedings requested in writing by 9 counsel for the parties to be included in this volume of 10 the Reporter's Record in the above-styled and numbered 11 cause, all of which occurred in open court or in chambers 12 and were reported by me. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, if 15 any, offered by the respective parties. 16 Signed this 26th day of March, 2014. [17] 18 /S/ Marigay Black 19 MARIGAY BLACK, Texas CSR 351 Official Court Reporter 20 County Court at Law Number Two Suite 10344 21 2100 Bloomdale Road McKinney, Texas 75071 22 Tel: 972-548-3823 FAX: 972-548-3828 23 Expiration: 12/31/2014 mblack@co.collin.tx.us [1] Trial on the Merits December 2, 2013 1 REPORTER'S RECORD VOLUME 3 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR [3] THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS [7] 8 _____________________________________________ 9 TRIAL ON THE MERITS _____________________________________________ [11] 12 On the 2nd day of December, 2013, the following 13 proceedings came on to be heard in the above-titled and 14 numbered cause before the Honorable Barnett Walker, Judge 15 Presiding, and a jury, held in McKinney, Collin County, 16 Texas. 17 Proceedings reported by computerized stenotype 18 machine. [2] Trial on the Merits December 2, 2013 1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 [7] 8 Attorneys for The State of Texas [9] 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 [14] Attorney for The Defendant [3] Trial on the Merits December 2, 2013 1 VOLUME 3 2 Trial on the Merits 3 December 2, 2013 4 PAGE VOL. 5 Arraignment .................................6 3 6 Opening Statement by Mr. Wilson .............7 3 [7] 8 WITNESS: DIRECT CROSS V. DIRE 9 CLIFTON CORLEY 10 By Mr. Wilson 10 v3 By Mr. Brooks 45 v3 11 By Mr. Wilson 60 v3 By Mr. Brooks 63 v3 [12] 13 PAGE VOL. 14 State rests ...............................66 3 15 Defendant rests ...........................67 3 16 Both Sides Close ...........................67 3 17 Reporter's Certificate .....................71 3 [4] Trial on the Merits December 2, 2013 1 ALPHABETICAL INDEX OF WITNESSES 2 DIRECT CROSS V. DIRE 3 Corley, Clifton 10 v3 45 v3 Corley, Clifton 60 v3 63 v3 [5] Trial on the Merits December 2, 2013 1 INDEX OF EXHIBITS 2 Use is indicated as follows: J - Jury R - Record Only D - Demonstrative 3 W/D - Withdrawn ID - Identification Only C- Court 4 EXHIBIT DESCRIPTION OFFERED ADMITTED USE 5 SX 1 DVD 22 v3 22 v3 J 6 SX 2 DIC 24 form 42 v3 42 v3 J [6] Trial on the Merits December 2, 2013 1 (Proceedings occurring in open court, 2 commencing at 2:47 P M. Defendant present.) 3 THE BAILIFF: All rise. 4 (The jury enters.) 5 THE COURT: Thank you. Everyone may be 6 seated. Let the record reflect that all parties are 7 present. 8 Does the state wish to come forward and read 9 the information? 10 MR. WILSON: Yes, Your Honor. Thank you. 11 Members of the jury. In the name and by the 12 authority of the State of Texas, now comes the Criminal 13 District Attorney of Collin County, State of Texas, and 14 presents in and to the County Court at Law Number Two of 15 Collin County, state aforesaid, that one, Mellannise 16 Henderson-Love, hereinafter styled the defendant, 17 heretofore on or about the 1st day of December, 2012, in 18 the County of Collin and the State of Texas, did then and 19 there operate a motor vehicle in a public place while the 20 defendant was intoxicated, against the peace and dignity of 21 the state. 22 Signed the Criminal District Attorney of 23 Collin County, State of Texas. 24 THE COURT: What says the defendant? 25 MR. BROOKS: If it please the court, members [7] Trial on the Merits December 2, 2013 1 of the jury, the defendant pleads not guilty. 2 THE COURT: Thank you. 3 The state wish to make an opening statement? 4 MS. SINGLETARY: Yes, Your Honor. 5 THE COURT: You may proceed. 6 OPENING STATEMENT 7 MR. WILSON: May it please the court. 8 Counsel. Members of the jury. 9 Nothin'. I've had nothing to drink tonight. 10 That's the story that the defendant told the officer around 11 12:47 A M on December 1st, 2012. But the facts as you will 12 hear them through testimony and as you will see them 13 through the presentation of video evidence will paint a 14 very different picture for you. 15 You're going to meet Officer Corley of the 16 Richardson police department. He's going to tell you about 17 how around 12:47 A M, December 12th -- or, December 1st, 18 2012, he was driving down the street. He was going to 19 provide backup for another officer. 20 You'll hear testimony from him saying that 21 it's a rare thing that these police officers, when they are 22 en route to provide backup for another officer, it's a very 23 rare thing for them to pull off and get diverted and wind 24 up taking care of some other situation rather than 25 providing backup to the requesting officer. But in this [8] Opening Statement by Mr. Wilson December 2, 2013 1 case, Officer Corley is going to tell you that he observed 2 driving facts that made him concerned about the safety of 3 the officer that was up the road ahead and concerned for 4 himself. And so he initiated a traffic stop on the 5 defendant. 6 When he approached the defendant's car, 7 you're going to hear testimony that he smelled a strong 8 odor of alcohol coming from her breath, that he saw watery 9 eyes, that he heard slurred speech. When he asked her for 10 her driver's license and her proof of insurance, took an 11 exceptionally long time for her to produce those documents. 12 He had to ask her a second time for the insurance. 13 After observing the various factors that he 14 observed at that point in time, Officer Corley asked the 15 defendant to step out of her vehicle, to perform a battery 16 of field sobriety tests, in order to determine whether she 17 would be safe to continue driving on the roads that night. 18 Officer Corley gave her some simple 19 instructions to perform a test called the horizontal gaze 20 nystagmus test. You will see on video and you will hear 21 the words from the defendant that will show you that this 22 defendant had an extremely difficult time following a 23 simple set of instructions, to follow a stimulus with her 24 eyes, without moving her head. After minutes of trying to 25 get the defendant to follow the simple instructions, the [9] Opening Statement by Mr. Wilson December 2, 2013 1 officer observed what he needed to observe. He moved on to 2 ask the defendant to perform another couple of tests, the 3 walk-and-turn and the one-leg stand. 4 The defendant refused to perform those 5 simple tests, tests that the officer will tell you that 6 only take a few minutes to perform, and the reason is 7 because the defendant was consumed with her need to go to 8 the bathroom. Rather than take a few minutes to perform 9 the tests and then be able to move on and go to the 10 restroom as she said that she so desperately needed to do, 11 she engages in the back and forth with the officer that 12 winds up taking much longer time than would have been 13 necessary had she just performed those tests. 14 Now, after that, the officer felt like he 15 had all the information he needed to place the defendant 16 under arrest for driving while intoxicated. He takes her 17 to the Richardson city jail. And while at the jail, he 18 asked the defendant for a specimen of her breath. You will 19 see on video, you will hear from the words the defendant 20 said, that she refuses to provide that specimen of her 21 breath. She was given the opportunity, even though she 22 said that she had consumed no alcohol at all that night, 23 she was given the opportunity to provide a specimen of her 24 breath, and she refused. And you will find out that a 25 warning, a statutory warning, that the officer read to her [10] Opening Statement by Mr. Wilson December 2, 2013 1 made her well aware of the consequences of that refusal, 2 180 days, driver's license suspension. But even with that 3 consequence looming, she still refused. 4 And I believe that when all is said and done 5 today, you're going to have all the evidence that you need 6 to believe beyond a reasonable doubt that this defendant is 7 guilty of the offense of driving while intoxicated. 8 THE COURT: Thank you, counsel. 9 Mr. Brooks, would you like to make your 10 opening now or reserve? 11 MR. BROOKS: We'll reserve our right. 12 THE COURT: All right. Call your first 13 witness. 14 MR. WILSON: State calls Officer Corley. 15 THE COURT: Officer Corley. Sir, would you 16 please raise your right hand and be sworn in. 17 (The court swears the witness.) 18 THE COURT: Thank you. State may proceed. 19 MR. WILSON: Thank you, Your Honor. 20 CLIFTON CORLEY, 21 having been first duly sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MR. WILSON: 24 Q. Officer, will you please introduce yourself to 25 the jury and state your name for the record. [11] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. My name is Officer Clifton Corley with the 2 Richardson police department. 3 Q. And, Officer Corley, how long have you been an 4 officer with the Richardson police department? 5 A. About eight and-a-half years. 6 Q. Are you a certified peace officer? 7 A. Yes, sir. 8 Q. How long have you been certified peace officer? 9 A. About eight of those years. 10 Q. And what current duties do you perform with the 11 Richardson P D? 12 A. The duty I'm assigned now is routine patrol which 13 includes traffic stops, answering calls for service, and so 14 forth. 15 Q. Are you a field training officer as well? 16 A. Yes, sir. 17 Q. What duties do you have as a field training 18 officer? 19 A. As a field training officer, I will take new 20 officers that are coming to the street and show them the 21 basic training that they will need to continue to a 22 successful career as a police officer. 23 Q. Describe to the jury the training and education 24 that you have to undergo in order to become a certified 25 peace officer. [12] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. To become a police officer, I was hired by the 2 city first and then the city put me through an academy to 3 become certified by the state. It's an academy that's 4 about six months long. Once we graduate that police 5 academy, we go to our city's, what we call a mini academy 6 where we undergo another 45 days of training. 7 Once that occurs, we complete that 8 successfully, we move on to our field training officer, who 9 we do about three months of field training, and then that 10 field training officer, or a series of, will determine if 11 we are suitable to continue. 12 Q. Are you certified to perform the standardized 13 field sobriety tests? 14 A. Yes, sir, I am. 15 Q. How long have you had that certification? 16 A. About eight and-a-half years. 17 Q. Have you undergone any refreshers during that 18 eight and-a-half year time span? 19 A. I have undergone two refreshers, the last one 20 being about a year and-a-half ago. 21 Q. Over the span of your career with the Richardson 22 police department, would you say you have performed few or 23 many D W I stops? 24 A. I would say -- I would call it many. About 50 or 25 so. [13] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. Now, I'd like to direct your attention to 2 December 1st of 2012. What were your duties that night? 3 A. Again, I was on basic patrol that night. It was 4 an evening shift. Working the east side of Richardson. 5 Q. And so were you patrolling the east side of 6 Richardson at about 12:47 A M that night? 7 A. Yes, sir. 8 Q. And is that area a public place? 9 A. Yes, sir. 10 Q. Is it in Collin County, Texas? 11 A. Yes, sir. 12 Q. What did you observe? 13 A. About that time, I was actually dispatched to 14 back up another officer on east Renner Road. While 15 traveling to that location, about 12:45 or so in the 16 morning, fairly light traffic, on my way to back up this 17 officer, I noticed a black 2003 Lexus E S 300 sedan. First 18 noticed it weaving within its lane a little bit. I decided 19 that my priority at the time was to get to my back-up 20 officer so I began to go around the vehicle. 21 Q. Officer, I'm going to stop you right there. You 22 mentioned that your priority was to respond to the officer 23 who requested backup. Why is it important, why did you 24 make that your priority? 25 A. When an officer calls for backup, they either [14] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 have something that they feel is in danger or they need 2 assistance with. So I want to get to that officer as 3 quickly as I can safely do so to make it a safer 4 environment for them or provide assistance if needed. 5 Q. Did you see any other traffic offenses being 6 committed while you were en route to provide backup? 7 A. I did note that I -- I witnessed a red light 8 being run at some point on my way to that -- to back up the 9 officer. 10 Q. And how did you respond to seeing the red light 11 being run? 12 A. I didn't believe that it was such a violation 13 that I needed to disregard the backup and make that traffic 14 stop. 15 Q. And now let's move forward to, you were talking 16 about the Lexus E S 300 that you observed weaving in its 17 lane. Tell us more, explain to the jury more about what 18 you observed with that car? 19 A. What first caught my attention, again, this was 20 another vehicle that was on the roadway as I'm trying to 21 get to the back-up officer. I noticed this vehicle was 22 swerving in its lane to some degree. I remember making the 23 decision, I'm going to go around this vehicle to get to the 24 other officer I'm trying to assist. 25 Q. And was that other officer -- where was that [15] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 officer located in relation to where your vehicle and the 2 Lexus were located? 3 A. At the first time I saw them, approximately 4 three-quarters or so of a mile ahead. 5 Q. So on the same street then? 6 A. Yes. 7 Q. And were they within -- I guess within sight? 8 A. They were becoming within sight. I don't 9 remember if I could actually see the officer at the time 10 that I first noticed the vehicle. 11 Q. And what happened as you were -- you said that 12 you were about to try to pass the Lexus. What happened as 13 you attempted to pass? 14 A. The Lexus was in the right lane, stayed in the 15 right lane until I began to pass in the left lane. This is 16 a two-lane road, two lanes going the eastbound direction. 17 I was passing the Lexus on the left side and, just as I 18 began to approach, the Lexus came over into the left lane 19 without signalling, causing me to -- I had to brake hard 20 and swerve a bit to the left to avoid a collision. 21 Q. So when you say the vehicle came over, can you 22 provide a little bit more detail as to what you mean by the 23 vehicle came over? 24 A. It seemed to me as if it was possibly a quick 25 lane change. Again, without signalling. It was to such a [16] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 close proximity to me, I felt like there was going to be a 2 collision if I didn't avoid it. 3 Q. Did the vehicle actually cross over the dividing 4 lines? 5 A. I believe they came -- they came -- the left 6 wheels came all the way over the dividing line. I believe 7 about half of the vehicle came into the left lane. 8 Q. And was there any -- any objects or other things 9 in the lane of traffic that would have created some 10 emergency that the driver of the Lexus had to avoid? 11 A. Not that I noticed, no, sir. 12 Q. And so what happened after you hit your brakes 13 and steered to avoid the collision? 14 A. At that point, I decided I wanted to reassess the 15 driver. I pulled in behind the Lexus to determine if this 16 was a possible intoxicated driver. I observed the Lexus, 17 again, to continue to swerve within its lane. At one 18 point, it drifted where the left wheels did drive up on the 19 reflectors. I believe they just crossed over the 20 reflectors into the left lane before drifting back into the 21 right lane. I watched the Lexus, the left rear turn signal 22 turn on for several seconds. The vehicle did not get into 23 the left lane. And then the rear signal went back off. At 24 about this time is when I can see the other officer's 25 overhead lights ahead of me. [17] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. And so did you initiate a traffic stop at that 2 point? 3 A. Yes, I did. 4 Q. Why? 5 A. Several reasons. I believe I may have -- may 6 have had an intoxicated driver in front of me, which is a 7 danger to itself -- danger to the public, danger to me, and 8 my major concern was that I had an officer stopped in the 9 right lane about a quarter mile ahead of us. 10 Q. Is that why you chose to not overlook this 11 particular person as you overlooked the red light runner 12 earlier? 13 A. Yes, sir. 14 Q. Let's talk about your approach. How did you 15 approach the vehicle and make contact with the driver? 16 A. Once we made the traffic stop, the driver stopped 17 in that right lane. I approached on the driver's side, to 18 her window, as she was still sitting in the vehicle. 19 Q. How many people were in the vehicle? 20 A. She was the only occupant of the vehicle. 21 Q. And was she the one driving? 22 A. Yes, sir. 23 Q. So was that person operating a motor vehicle? 24 A. Yes, sir. 25 Q. How did you identify the driver? [18] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. I asked for her driver's license which she did 2 end up providing me and that's how I identified her. 3 Q. And what was the name that you saw on the 4 driver's license? 5 A. It was Mellannise Henderson. 6 Q. Do you see that individual in the courtroom 7 today? 8 A. Yes, sir, I do. 9 Q. Will you please point her out and identify an 10 article of clothing she's wearing. 11 A. Yes, sir. Be the female in the brown jacket with 12 the gold scarf or shawl over her shoulders. 13 Q. If I'm seated in position number one, my trial 14 partner is position number two, which seat position would 15 she be? 16 A. She would be in four. 17 MR. WILSON: Your Honor, let the record 18 reflect that this witness has identified the defendant. 19 Q (By Mr. Wilson) All right. Let's talk about the 20 defendant. What did you observe from her upon your initial 21 contact? 22 A. Upon first speaking with her, I noticed she had 23 kind of watery glazed-over eyes. Slurred speech as I was 24 speaking with her, and I did notice a strong odor of 25 alcoholic beverage coming from the vehicle. [19] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. Was it coming from the vehicle or did you notice 2 it coming from her breath? 3 A. At that point, as she sat in the car, I couldn't 4 make that determination. 5 Q. And you said that you asked her for her driver's 6 license. Did you ask her to provide any other information? 7 A. I asked for her proof of vehicle insurance as 8 well. 9 Q. And how did she respond to that request? 10 A. She began to look in her purse and throughout her 11 vehicle for her driver's license for several seconds before 12 eventually locating it and she handed me the driver's 13 license only. 14 Q. She didn't hand you the proof of insurance? 15 A. Not initially, no, sir. 16 Q. What did you do when she didn't hand you the 17 insurance? 18 A. I believe I asked her a couple more questions 19 about whether it was her car and such, where she may be 20 coming from, and then I once again asked her for her proof 21 of insurance. 22 Q. And what happened then? 23 A. I believe she did provide me a copy of that. 24 Q. You said that you asked the defendant where she 25 was coming from. How did she respond to that question? [20] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. She told me she was coming from downtown Dallas. 2 Q. And did she say why she was in downtown Dallas? 3 A. Stated she was coming from work. 4 Q. What line of work did she say she was in? 5 A. She stated she was an attorney. 6 Q. And did you have the opportunity to ask whether 7 she had been drinking that night? 8 A. Yes, sir, I did. I asked her if she consumed any 9 alcohol at all. 10 Q. And what did she respond? 11 A. She stated she had had none. 12 Q. Did you ask the defendant anything about -- about 13 the driving incident that you had just experienced with 14 her? 15 A. Yes, sir. I asked her what had happened with her 16 lane change. 17 Q. And how did she respond to you? 18 A. She -- she stated that she had seen some 19 emergency lights ahead and thought that she wasn't sure 20 what she needed to do, whether she needed to change lanes 21 or not. 22 Q. What else did you ask her about the traffic? 23 A. I asked her if she had changed lanes and I asked 24 her if she had seen my patrol vehicle behind her when she 25 did, and she stated, no, she did not see the police car [21] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 behind her -- or, a vehicle behind her. 2 Q. And what did you notice about her responses to 3 your questions at this point in time? 4 A. I'm not sure what you mean. 5 Q. Well, how did her speech sound to you? 6 A. Again, I continued to hear the slurred speech. 7 Q. And did you ask the defendant to exit her 8 vehicle? 9 A. Yes, sir, I did. 10 Q. Is your patrol vehicle equipped with a device 11 capable of making a recording? 12 A. An audio and video recording, yes, sir. 13 MR. WILSON: Your Honor, may I approach? 14 THE COURT: Yes, sir, you may. 15 Q (By Mr. Wilson) Officer Corley, I'm showing you 16 what has been marked as State's Exhibit 1. You recognize 17 State's Exhibit 1? 18 A. Yes, sir. 19 Q. What is State's Exhibit 1? 20 A. This is a D V D copy of the audio and video 21 recording from my patrol vehicle that night. 22 Q. Does the D V D also contain a copy of the video 23 and audio that was recorded from the intoxilyzer room? 24 A. Yes, sir, it is. 25 Q. And have you had the opportunity to watch both of [22] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 those videos? 2 A. Yes, sir, I have. 3 Q. Was the intoxilyzer room equipped with a device 4 capable of making a recording as well? 5 A. Yes, sir. 6 Q. And have there been any alterations or deletions 7 made to either of those two videos? 8 A. No, sir. 9 Q. Have you been able to watch those two videos 10 today? 11 A. Yes, sir, I have. 12 Q. And would you say that they are a fair and 13 accurate rendition of what you observed on December 1st, 14 2012? 15 A. Yes, I do. 16 MR. WILSON: At this point in time, state 17 offers State's Exhibit 1, will tender to defense. 18 MR. BROOKS: No objection. 19 THE COURT: State's 1 is admitted. 20 Q (By Mr. Wilson) Officer, after you asked the 21 defendant to exit the vehicle, were you able to smell any 22 alcohol on her breath at that point in time? 23 A. Yes, sir, I was. 24 Q. Now, let's talk about standardized field sobriety 25 tests. First off, I would just like to talk about them in [23] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 general. 2 What are standardized field sobriety tests? 3 A. It's a series of three tests that we use to 4 determine what kind of percentage we believe that a person 5 may or may not be intoxicated. 6 Q. Are they used all over the nation? 7 A. Yes, sir, they are. 8 Q. And what are these three tests? 9 A. There's a horizontal gaze nystagmus, which is 10 basically a testing of the involuntary jerking of the eyes. 11 There's also a walk-and-turn exercise, and a one-leg stand. 12 Both of those are a divided attention exercise. 13 Q. And how are these various tests scored? 14 A. They each have several clues that could be gained 15 on each one, and once they reach a certain amount of clues, 16 then we believe that that's the highest percentage that 17 that person is intoxicated. 18 Q. What is a clue? 19 A. There are several clues. With the horizontal 20 gaze nystagmus, for example, if the eye begins to jerk at a 21 certain spot where the stimulus is, then that will count as 22 a clue, one for each eye. 23 Q. And what's the decision point? 24 A. A decision point is the point at which the 25 officer decides that the person is indeed intoxicated. [24] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. So if a -- so basically, are you saying, then, 2 that a decision point, is that based on the number of clues 3 that the officer observes? 4 A. Correct. 5 Q. And does each particular test have a certain 6 decision point associated with it? 7 A. Yes, sir. 8 Q. And when you reach that decision point, what does 9 that indicate to you about the individual's level of 10 intoxication? 11 A. That there's a very, very high percentage that 12 they are at least 0.8 [sic] on the blood alcohol content. 13 Q. What was the environment like when you performed 14 these tests for this defendant? 15 A. It was actually a fairly mild day for 16 December 1st. I don't -- maybe a light wind. It was dry 17 as well. It was nighttime. 18 Q. What was the surface like? 19 A. It's a relatively smooth concrete surface. 20 Q. Was it flat or at an angle? 21 A. It was pretty flat. 22 Q. And was there any debris on that surface at all? 23 A. Nothing major, no, sir. 24 Q. And what about your -- the flashing lights on 25 your patrol car at that time? [25] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. We have the ability to turn off the front strobes 2 on our vehicle and leave just the rear so that our vehicles 3 can be seen from behind so that it doesn't affect any 4 horizontal gaze nystagmus testing. So I was able to turn 5 the front ones off. 6 Q. Why would the front strobe lights have an effect 7 on horizontal gaze nystagmus? 8 A. The strobing of the light can have an effect on 9 the eyes, the involuntary jerking of the eyes. 10 Q. But you turned those lights off for the 11 defendant? 12 A. Yes, sir. 13 Q. Okay. Let's talk about the horizontal gaze 14 nystagmus test specifically. Was that the first test that 15 you conducted? 16 A. Yes, sir. 17 Q. And what is horizontal gaze nystagmus? 18 A. Nystagmus is the involuntary jerking of the eyes. 19 And in those tests we do are done on a horizontal plain, 20 thus the name horizontal gaze nystagmus. 21 Q. What causes it? 22 A. There are some things that cause it but the most 23 common is going to be a high level of introduction of 24 alcohol into the body. 25 Q. Is alcohol a depressant? [26] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. Yes, sir. 2 Q. So is a depressant something that can cause 3 horizontal gaze nystagmus? 4 A. Yes, sir. 5 Q. Are there any other substances that cause 6 horizontal gaze nystagmus? 7 A. I'm sure there are. I'm not familiar exactly 8 which ones there would be but I believe there are. 9 Q. Would they be things like inhalants or P C P's? 10 A. Yes, sir. 11 Q. Can something like caffeine cause horizontal gaze 12 nystagmus? 13 A. Not that I'm aware of. 14 Q. How about stress? 15 A. No, sir. 16 Q. How about need to use the restroom? 17 A. No, sir. 18 Q. How about the wind or something like that? 19 A. No, sir. 20 Q. And you mentioned that this jerking of the eye is 21 involuntary. So is there -- when you say that, is there 22 anything that a person can do to control that jerking 23 movement? 24 A. No, sir. 25 Q. And when you talk about the jerking movement, [27] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 will you explain to you jury what exactly that really is. 2 A. What you'll see with the involuntary jerking, 3 it's a pretty small movement of the eye. I'm not sure how 4 else to explain it. It's something that you will see, you 5 have to see up close, and the eye makes a small movement, 6 something like this (Indicating). 7 Q. Do you see that sort of movement in a person who 8 is not intoxicated or had one of these other inhalants or P 9 C P? 10 A. No, sir. 11 Q. Did you attempt to perform the horizontal gaze 12 nystagmus test on the defendant? 13 A. Yes, sir, I did. 14 Q. And before I go further with that, what's the 15 decision point on the horizontal gaze nystagmus test? 16 A. Once you have four clues of the six possible. 17 Q. And how are those measured? 18 A. I'm sorry? 19 Q. How are those clues measured? 20 A. Well, once you do -- perform the exercise, once 21 you see the nystagmus, the required nystagmus, for each 22 step, then you will count that as a clue. And again, it's 23 one for each eye. 24 Q. So basically, are you saying, then, that there 25 are three different things you're looking for, one for each [28] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 eye? 2 A. Yes, sir. 3 Q. Does that make the total six? 4 A. Yes, sir. 5 Q. Okay. What are the preliminary steps you take 6 before conducting the horizontal gaze nystagmus test? 7 A. I will ask a series of questions regarding 8 whether the person has had any brain trauma, been in any 9 fights or car wrecks or anything that would cause trauma to 10 the brain. Another step I will do, I will check their eyes 11 for equal pupil size, which could indicate brain trauma as 12 well, and I will make sure that they had equal tracking, 13 that both eyes can follow the stimulus. 14 Q. Did you perform those preliminary steps on the 15 defendant? 16 A. Yes, sir, I did. 17 Q. And what were the results? 18 A. She had equal pupil size and was able to do equal 19 tracking as well. 20 Q. Did she have any head injuries or accidents that 21 she related to you? 22 A. No, sir. 23 Q. So in your opinion, did you feel like the 24 defendant was a good candidate for the H G N test? 25 A. Yes, sir, I did. [29] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. Tell the jury the instructions for the test as 2 you told the defendant that night? 3 A. I will instruct the defendant to stand with their 4 feet together and their hands down by their side. I will 5 instruct them to keep their head still and I will show them 6 a stimulus, which in most cases, I usually carry this one 7 pen. It's a white pen with a black top. I will ask if 8 they can see this and they will indicate if they can or 9 not. Which she did. She said she could see it. 10 I will instruct her that I will move the 11 stimulus from side to side and, at the end of the test, up 12 and down, and I will instruct them to follow with their 13 eyes only without turning their heads. 14 Q. Was the defendant able to follow those 15 instructions? 16 A. No, sir. 17 Q. What kind of problems did you see with the 18 following of the instructions? 19 A. I noticed the defendant, after several times 20 being asked, turned her head instead of just her eyes, she 21 would follow the stimulus with her head. 22 Q. How did you respond when she did that? 23 A. I asked her -- reminded her again that she needs 24 to keep her head still and follow with her eyes only. 25 Q. And what happened when you reminded her? [30] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. She again turned her head the next time I tried. 2 Q. Did you try anything else to help the defendant 3 out that night? 4 A. Yes, after several times of reminding her that 5 she is still moving her head, I asked her if she would like 6 to actually physically hold her head with her hands to keep 7 her head still, and she said she would. 8 Q. What happened when you -- or, did she wind up 9 holding her hands to her head? 10 A. She did. She did hold her hands together -- or, 11 hold her head with her hands. 12 Q. What happened when you tried to perform the test? 13 A. Still continued to turn her head with the 14 stimulus. 15 Q. Did you have any other conversation with her 16 about these instructions, about turning her head? 17 A. It was actually over several minutes that I 18 actually tried to get her to cooperate with this exercise, 19 so, I mean, there were things that were said. 20 Q. And how did she respond? 21 A. I remember her telling me that she wasn't able to 22 do it, she was not able to follow with just her eyes only. 23 Q. Even despite all the difficulty the defendant had 24 following the instructions, were you able to observe any 25 clues during that test? [31] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. Yes, sir. I was able to get two of the clues for 2 each eye, so a total of four clues. 3 Q. And was the decision point reached? 4 A. On that test, yes, sir, it was. 5 Q. What four clues did you observe? 6 A. I observed the lack of smooth pursuit, which is 7 the first thing I would be looking for. Basically, moving 8 the stimulus across the eye, I'm looking for the eyes to 9 roll, like a marble across a table just nice and smooth. 10 If that is -- if that doesn't occur, then we do have the 11 clue of lack of smooth pursuit. Whereas the stimulus 12 moves, the eyes will jump to try to catch up with the 13 stimulus. I did notice that in both eyes. 14 Q. And so -- 15 THE COURT: Just a moment. I'm receiving an 16 indication from one of the members of the jury that he 17 needs assistance. 18 Bailiff, would you assist the juror, please. 19 (Sidebar conversation between the juror and 20 the bailiff.) 21 (Sidebar conversation between the court and 22 the bailiff.) 23 THE COURT: All right. Ladies and 24 gentlemen, we're going to take a quick break for about 15 25 minutes. All parties except for the panel remain in the [32] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 courtroom. 2 Bailiff, take charge of the panel. 3 THE BAILIFF: Yes, Your Honor. All rise. 4 (The jury exits.) 5 THE COURT: You may be seated. Take a quick 6 break. 7 (Recess at 3:19 P M, resuming at is 3: 31 P 8 M. Defendant present.) 9 THE BAILIFF: All rise. 10 (The jury enters.) 11 THE COURT: Thank you. Everyone may be 12 seated. Let the record reflect that all parties are back 13 in the courtroom. The jury is back in the jury box. This 14 witness is still under oath. 15 State, you may continue with your direct 16 examination. 17 MR. WILSON: Thank you, judge. 18 Q (By Mr. Wilson) All right. Officer, so just to 19 kind of recap, you had observed four clues for the H G N; 20 correct? 21 A. Yes, sir. 22 Q. And now, you indicated earlier that you have 23 performed about 50 D W I investigations; correct? 24 A. Give or take, yes, sir. 25 Q. Is the horizontal gaze nystagmus test designed so [33] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 that an average non-intoxicated person can perform the test 2 without turning their head? 3 A. Yes, sir. 4 Q. And what does the turning of the head typically 5 indicate to you when you're performing this test? 6 A. It indicates that the person, for whatever 7 reason, is unable to follow your directions. 8 Q. Does that sometimes indicate to you the 9 possibility of intoxication? 10 A. It can be a symptom of intoxication, yes, sir. 11 Q. And in your -- in all of your experience, have 12 you run into anyone who had this kind of difficulty 13 following the instructions for horizontal gaze nystagmus? 14 A. From time to time, yes, sir, I have. 15 Q. And I guess, what was the status of intoxication 16 for those individuals? 17 A. Just about everyone who has trouble following 18 those directions is intoxicated. 19 Q. Now, I'd like to move on and -- Are you familiar 20 with the idea of divided attention? 21 A. Yes, sir. 22 Q. What does it mean? 23 A. It's basically you're asking someone to follow 24 your directions using their mind while performing a 25 physical exercise at the same time. [34] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. Is driving a divided attention task? 2 A. Yes, sir, it is. 3 Q. And how does alcohol affect one's ability to 4 perform a divided attention task? 5 A. Alcohol will slow the decision-making process as 6 well as the physical ability to do things, such as operate 7 a motor vehicle. 8 Q. Let's move on to the other tests in the 9 standardized field sobriety test battery here. 10 Are you familiar with the walk-and-turn 11 test? 12 A. Yes, sir. 13 Q. What is that test? 14 A. Again, it's a divided attention test in which we 15 will ask someone to walk a line, giving them a certain 16 number of steps to turn and walk back. During this, we're 17 giving them a series of instructions to follow such as 18 keeping their hands down by their side, touching 19 heel-to-toe on the steps, turning like we ask them to, 20 counting each step out loud. 21 Q. Will you actually provide the instructions to the 22 jury as you would normally provide those instructions to 23 someone? 24 A. Yes, sir, I can do that. What I would do, and I 25 would demonstrate this as well while I do this. I would [35] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 ask the person to either stand on the line out there on the 2 roadway or the surface or imagine a line from where they 3 are, usually to my vehicle towards the camera. I will have 4 him put their left foot on that line, and then put their 5 right foot also on the line touching heel-to-toe, with 6 their hands down by their side. So they're standing there 7 like this, this is a starting position, and I will ask to 8 them to keep the starting position while I explain and 9 demonstrate the exercise. 10 What I will ask them to do is not begin the 11 exercise until I tell them to. I will ask them to take 12 nine heel-to-toe steps -- heel-to-toe meaning you're 13 actually touching heel-to-toe -- down the line. Going to 14 have them turn around by keeping their lead foot planted, 15 which should be their left foot, and using their right foot 16 to take the series of small steps to turn around. And 17 again, nine heel-to-toe steps back down this line. 18 While they're doing this, I ask them to keep 19 their eyes down on their toes, count each step out loud, I 20 ask them to keep their hands down by their side, and 21 continue the exercise until they have completed the entire 22 exercise, and not to stop. 23 Q. Did you ask the defendant to perform the 24 walk-and-turn test? 25 A. I don't know that I asked her to perform the test [36] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 by name but I asked her -- I let her know that I did have 2 some other exercises I wished her to perform. 3 Q. How did she respond? 4 A. She indicated she was not sure she could do 5 anything else because she needed to urinate. 6 Q. Did anything about her response seem out of the 7 ordinary to you? 8 A. I had to ask her -- at one point, she made it 9 known that it's important to her, the most important thing 10 to her right now was to go urinate, not to perform field 11 sobriety exercises, and I found that a bit odd. 12 Q. Why did you find that odd? 13 A. I would think that someone, you know, who wished 14 to show that they're not intoxicated would wish to perform 15 the exercises for an officer. 16 Q. And did the defendant ever perform the 17 walk-and-turn test that night? 18 A. No, sir. 19 Q. Could you have forced the defendant to perform 20 that test? 21 A. No, sir. 22 Q. All right. Let's talk about the one-leg stand. 23 What is the one-leg stand test? 24 A. Again, it's another divided attention test in 25 which we're asking someone to do a physical test while [37] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 following instructions. 2 Q. And what are you looking for when you -- when you 3 ask them to perform that test? 4 A. Again, looking for them to follow directions, 5 looking for their sense of balance, physical agility. 6 Basically, we're asking them to stand on one foot for a 7 period of time and continue to do so for 30 seconds. 8 Q. And will you just -- I know you basically gave 9 the instructions but will you provide the jury the specific 10 instructions you would typically give for that test? 11 A. Yes, sir, I can do that. I will put them in a 12 bit of a starting position while I give them instructions 13 and I will demonstrate the exercise for them. What I would 14 do is have them put their feet together, hands down by 15 their side, just to have them standing there. 16 When I tell them to begin, I will ask them 17 to pick up their foot and their toe about six inches off 18 the ground. Keep that leg straight. And I will give them 19 the option of which leg, you can use whichever leg you feel 20 more comfortable doing. Keep that leg straight, six inches 21 off the ground, with your hands down by your side, looking 22 at your toe, as you're counting out loud one 1,000, two 23 1,000, three 1,000 and so on until I instruct them that 24 they can put their foot down. 25 Q. And how long do you usually have them stand in [38] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 that position? 2 A. Thirty seconds. 3 Q. Did you ask the defendant to perform the one-leg 4 stand test? 5 A. Again, I didn't ask her by name but that's one of 6 the tests that I had intended for her to perform. 7 Q. And did she ever perform the test? 8 A. She stated she was unable to because she needed 9 to urinate. 10 Q. Based on your training and experience, about how 11 long does it take someone to perform the combination of the 12 walk-and-turn and the one-leg stand test? 13 A. Less than five minutes. 14 Q. And did you ever explain to the defendant that 15 those tests don't take very long to perform? 16 A. Yes, sir. I explained to her several times that 17 she stated she needed to urinate, if we could continue and 18 get the exercises done, we could reach a conclusion and we 19 could get her to a restroom. 20 Q. Did the back and forth you had with the defendant 21 wind up taking longer than five minutes? 22 A. Yes, sir. 23 Q. Let's talk about what happened after the 24 standardized field sobriety tests. 25 What did you do after the defendant made it [39] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 clear that she would not perform the initial tests you were 2 wanting her to perform? 3 A. Once I had determined that she was basically 4 refusing to do the exercises, I placed her under arrest for 5 driving while intoxicated. 6 Q. What happened next? 7 A. She was placed in the back of my patrol vehicle 8 and taken to the Richardson police department to our 9 intoxilyzer room. 10 Q. Did anything unusual happen on the way from the 11 -- from the scene where you arrested the defendant over to 12 the intoxilyzer room? 13 A. I don't recall anything unusual, no, sir. 14 Q. All right. Let's talk about what happened at the 15 Richardson city jail. Once you arrived there, where did 16 you take the defendant? 17 A. We have a room that's designated for the 18 processing of intoxicated drivers; that's our intoxilyzer 19 room. That's where I took her. 20 Q. And what do you -- What kind of instructions do 21 you provide the defendants when you bring them in to the 22 intoxilyzer room? 23 A. When I walk into this room, there is a straight 24 line painted in this room on the floor which you will see 25 it in the video and there is a black square that's [40] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 basically a one foot by one foot tile that is painted black 2 while the rest of the floor is a white color. I'll 3 instruct them to go stand on that black square. 4 Q. Did you give those instructions to this 5 defendant? 6 A. Yes, sir. 7 Q. How did she comply? 8 A. She had set her shoes down near the square and 9 she actually walked around a counter and began leaning at 10 the counter and the wall. 11 Q. While you were in the intoxilyzer room, did you 12 read the defendant the statutory warning? 13 A. Yes, sir. 14 Q. Did you provide the defendant with a copy of that 15 warning? 16 A. Yes, sir, I did. 17 Q. Did she have the opportunity to read along with 18 you. 19 A. Yes, sir. 20 MR. WILSON: Your Honor, may I approach the 21 witness? 22 THE COURT: Yes, you may. 23 Q (By Mr. Wilson) Officer, I'm showing you what has 24 been marked as State's Exhibit 2. Do you recognize State's 25 Exhibit 2? [41] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. Yes, sir, I do. 2 Q. What is State's Exhibit 2? 3 A. This is a state form D I C 24, it's a statutory 4 warning. 5 Q. Is this a true and accurate copy of the warning 6 that you provided to the defendant? 7 A. Yes, sir. 8 Q. And there's some writing on this document. What 9 is that writing? 10 A. The writing on the top, I've identified the 11 defendant by her name that was on her driver's license, her 12 driver's license number, her date of birth, date of arrest, 13 time of arrest, the county of arrest. And at the bottom, I 14 -- I read the warning, I request a sample of -- a specimen 15 of breath, which I checked the box for breath. She refused 16 the -- that specimen and refused to sign saying that she 17 refused so I checked that box indicating that as well. 18 Q. And is this your handwriting on the document? 19 A. Yes, sir. 20 Q. And aside from the State's exhibit sticker at the 21 bottom, has anything been changed or altered or deleted 22 from this document from when you originally saw it? 23 A. No, sir. 24 MR. WILSON: Your Honor, at this time, I 25 offer State's Exhibit 2, while tendering to defense. [42] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 MR. BROOKS: No objection. 2 THE COURT: State's Exhibit 2 is admitted. 3 Q (By Mr. Wilson) Officer, what is the purpose of 4 issuing the statutory warning? 5 A. It is to provide the arrested person a warning 6 for the consequences of failing to provide a specimen of 7 their breath and/or blood. 8 MR. WILSON: Your Honor, may I have use of 9 the projector, please. 10 THE COURT: Yes, sir. 11 Bailiff, would you dim the lights just 12 slightly, please, sir. 13 THE BAILIFF: Yes, Your Honor. 14 Q (By Mr. Wilson) Officer, I'd like to call your 15 attention to the second paragraph here where my pen is 16 indicating. Will you please read that paragraph to the 17 jury. 18 A. If you refuse to give the specimen, that refusal 19 may be admissible in a subsequent prosecution. Your 20 license, permit or privilege to operate a motor vehicle 21 will be suspended or denied for not less than 180 days 22 whether or not you are subsequently prosecuted for this 23 offense. 24 Q. Did you read that statement to the defendant? 25 A. Yes, sir. [43] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 Q. And so can you just explain to the jury, what are 2 the practical implications of that provision in the 3 statutory warning? 4 A. Basically -- 5 MR. BROOKS: Your Honor, excuse me. I'm 6 going to object. The document speaks for itself. 7 THE COURT: Sustained. 8 Q (By Mr. Wilson) Based on your experience, officer, 9 can you tell the jury kind of what the -- what the 10 practical implications are of a 180-day driver's license 11 suspension? 12 MR. BROOKS: Again, Your Honor, same 13 objection. Document speaks for itself. 14 THE COURT: Overruled as to that question. 15 A. Basically, the suspension of 180 days from the 16 driver's license will disallow someone from operating a 17 motor vehicle on a public roadway, which could, you know, 18 cause all sorts of trouble getting to work -- 19 MR. BROOKS: Objection. He's already 20 answered the question, judge. 21 THE COURT: What's your legal objection? 22 I'm sorry? 23 MR. BROOKS: I'm sorry, judge. Legal 24 objection is asked and answered. 25 THE COURT: Overruled. [44] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 A. Basically, your inability to operate a motor 2 vehicle on a public roadway could interfere with someone's 3 ability to get to work, make them depend on public 4 transportation or someone else to get -- take care of 5 business throughout their daily lives. 6 Q (By Mr. Wilson) And in general, based on your 7 training and experience, what does the process of offering 8 a breath specimen entail? 9 A. They will -- In our police department, they are 10 taken to a nearby room where there is an intoxilyzer 11 machine. This is a machine that you will blow in. They 12 will be observed by an intoxilator op -- intoxilyzer 13 operator for a period of five minutes to be sure that 14 they're not touching their mouth or altering their sample 15 in anyway. Once that is done, the observation period, they 16 will provide two breath specimens and that machine will 17 analyze them to determine the blood alcohol content. 18 Q. You said a five-minute observation period. Is it 19 actually a 15-minute observation period? 20 A. I apologize. Yes, sir, it is 15. 21 Q. And did you ask the defendant for a specimen of 22 her breath? 23 A. Yes, sir, I did. 24 Q. How did she respond? 25 A. She refused to provide the specimen. [45] Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson 1 MR. WILSON: Pass the witness. 2 THE COURT: Mr. Brooks. 3 MR. BROOKS: Thank you, judge. 4 CROSS EXAMINATION 5 BY MR. BROOKS: 6 Q. Officer, with respect to the statutory warning, 7 that 180-day suspension, you're aware that the individual 8 can get an occupational license to cover their needs for 9 work and things of that nature? 10 A. Yes, sir. 11 Q. Now, also, with respect to the statutory warning, 12 at the point in time where someone is being read that 13 statutory warning, they are already under arrest; correct? 14 A. Yes, sir. 15 Q. Nowhere in that statutory warning does it say to 16 them that if you pass this test, you will be released, does 17 it? 18 A. No, sir. 19 Q. In fact, in the video that we're about to see, 20 you don't state that to Ms. Henderson either, do you? 21 A. No, sir. 22 Q. So it serves no value to taking the test, she's 23 already under arrest; correct? 24 A. That's up to her. 25 Q. Okay. But that bottom line is, she's already [46] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 under arrest. 2 A. Yes, sir. 3 Q. Now, earlier, you were asked some questions about 4 different things that can cause nystagmus. Do you have any 5 medical training? 6 A. No, sir, I do not. 7 Q. Do you have any paramedic training? 8 A. No, sir, I do not. 9 Q. So in terms of what can or cannot cause 10 nystagmus, you don't have any personal knowledge based on 11 medical experience to answer that question correctly, do 12 you? 13 A. That is correct, yes, sir. 14 Q. Now, did you refresh your memory with anything 15 today prior to testifying? 16 A. Yes, sir, I did. 17 Q. A copy of your police report? 18 A. Yes, sir. 19 Q. All right. Mind if I take a look at it, sir? 20 A. Yes, sir. 21 MR. BROOKS: May I approach, Your Honor? 22 THE COURT: Yes, sir, you may. 23 THE WITNESS: (Hands document to 24 Mr. Brooks.) 25 THE COURT: Mr. Brooks, do you want the [47] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 lights to come back on or are you going to be referring to 2 the exhibit? 3 MR. BROOKS: The lights can come back on, 4 judge. 5 THE COURT: Bailiff. 6 MR. BROOKS: May I have just a moment, Your 7 Honor? 8 THE COURT: Yes, sir. (Pause). 9 Q (By Mr. Brooks) Now, at the start of your 10 testimony, when you were asked how -- what you were doing 11 or where you were en route to, I think you told us you were 12 responding to an officer-in-need call? 13 A. An officer backup, yes, sir. 14 Q. Officer backup. And that you were asked, had you 15 noticed anything else unusual before you saw the Lexus, I 16 think you mentioned seeing a car run a red light? 17 A. Yes, sir. 18 Q. Okay. You weren't referring to Ms. Henderson's 19 car, were you? 20 A. No, sir, I was not. 21 Q. And in fact, you testified that after you pulled 22 her over and you told her why you pulled her over, she told 23 you that she saw some emergency lights in front of her and 24 she couldn't determine if she needed to go left or right? 25 A. Yes, sir. [48] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 Q. In fact, I think you stated there were emergency 2 lights in front of her? 3 A. Once we stopped the vehicles, yes, sir, there 4 were. 5 Q. And on the video, you agree with me that looking 6 just at the video from that vantage point, you can't tell 7 if those emergency lights are in the left lane or the right 8 lane, can you? 9 A. I don't believe from the video you can probably 10 tell that, no, sir. 11 Q. Let's talk about what happens after you first 12 come in contact with her. You said that you asked her for 13 her license and proof of insurance. 14 A. Yes, sir. 15 Q. And it took her several seconds to get that. Did 16 you happen to notice what size purse she was pulling those 17 items out of? 18 A. I don't recall at this time, no, sir. 19 Q. If it was a large purse, it wouldn't be unusual 20 for a woman to have to fumble around inside her purse to 21 find those items? 22 A. No, sir. 23 Q. So certainly that by itself would not be a sign 24 of intoxication? 25 A. By itself, no, sir. [49] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 Q. In fact, when we looked at knowing that there are 2 emergency lights in front of her as she stated, as you just 3 now stated, she had to get over in response to those 4 lights, that by itself is not a sign of intoxication, is 5 it? 6 A. By itself, no, sir. 7 Q. Now, when you got behind her, you issued -- or, 8 did you turn on your take-down lights? Are they still 9 called take-down lights? 10 A. They are. If I didn't use that, I did at least 11 use a spotlight, one or the other. 12 Q. And is that in and of itself a command, a 13 non-verbal command? 14 A. Yes, sir. 15 Q. And it's a non-verbal command for that car to 16 pull over? 17 A. Yes, sir. 18 Q. And the point in time where she notices that 19 light, she has to begin to do some divided attention types 20 of things; correct? 21 A. Yes, sir. 22 Q. She actually has to respond to your light, she 23 has to slow down. Correct? 24 A. Yes, sir. 25 Q. She has to make sure she slows down and parks in [50] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 an appropriately safe place? 2 A. Yes, sir. 3 Q. Correct? And she did all of those things 4 correctly? 5 A. Yes, sir. 6 Q. In fact, she did all of those things in a normal 7 fashion? 8 A. Yes, sir. 9 Q. When you approach her, as you told her, you asked 10 for her driver's license, and she produced her driver's 11 license to you in a normal fashion? 12 A. Yes, sir. 13 Q. Okay. It wasn't on the floorboard of the car or 14 in the back seat or anything like that? 15 A. No. 16 Q. She reached in and pulled it out and gave it to 17 you? 18 A. Yes, she did give it to me, yes, sir. 19 Q. So that's normal. 20 A. Yes, sir. 21 Q. Now, when she pulled over, that was because you 22 wanted her to pull over; correct? 23 A. Yes, sir, that is correct. 24 Q. Now, at some point, you make the decision to ask 25 her to get out of the car. [51] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 A. Yes, sir. 2 Q. And you asked her to get out of the car? 3 A. That is correct. 4 Q. And she responded to that? 5 A. Yes, sir. 6 Q. Normally? 7 A. Yes, sir. 8 Q. She doesn't stumble out of the car? 9 A. No, sir. 10 Q. She doesn't grab the door to climb her way out of 11 the car? 12 A. No. 13 Q. She gets out of her car in response to your 14 command; correct? 15 A. Yes, sir. 16 Q. Now, was she respectful with you from your first 17 encounter with her, your first time speaking with her? 18 A. Yes, sir, she was. 19 Q. Did she remain respectful with you throughout 20 your time with her? 21 A. Yes, sir, she did. 22 Q. Isn't it true a lot of times in these type of 23 situations, the person that you take in custody becomes 24 quite belligerent? 25 A. Absolutely, yes, sir. [52] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 Q. Or hysterical? 2 A. Yes, sir. 3 Q. And none of that happened here? 4 A. That is correct. 5 Q. Now, when she got out of the car, you told her 6 where to stand? 7 A. Yes, sir. 8 Q. And she went and stood where you told her to 9 stand? 10 A. Yes, sir. 11 Q. Now, while she's standing there, and she's 12 standing there for -- it's more than a minute, probably 13 several minutes, isn't it? 14 A. Yes, sir. 15 Q. She's not swaying or leaning up against her car 16 or anything like that, is she? 17 A. There was some slight swaying but no leaning up 18 against the car, no, sir. 19 Q. Can you see that slight swaying on the video? 20 A. I don't know that you can, sir. 21 Q. So for their purposes, the jury won't have any 22 evidence of that on the video? 23 A. Without looking at it again, I don't recall 24 seeing any major swaying, no, sir. 25 Q. You've looked at it before you got on the stand [53] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 and testified today? 2 A. Yes, sir. 3 Q. And you don't recall seeing it? 4 A. Nothing major. 5 Q. Now, the area that you were in, there was still 6 some traffic going by -- going by you; correct? 7 A. Yes, sir. 8 Q. And it's not like you guys were the only ones on 9 the road? 10 A. Correct. 11 Q. There wasn't heavy traffic but there was still 12 traffic there? 13 A. Correct. 14 Q. What is the N H T S A student manual, officer? 15 A. That is a manual that provides all the 16 instructions to peace officers on how to perform field 17 sobriety tests. 18 Q. It's basically a peace officer's bible for how to 19 perform field sobriety tests? 20 A. Yes. 21 Q. And in that -- is that the organization that 22 certifies you to perform the H G N testing? 23 A. Yes, sir, it is. 24 Q. There are certain things that they ask you to do 25 prior to performing the H G N test? [54] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 A. Yes, sir. 2 Q. One of the things they ask you to do is make sure 3 that the subject is not facing passing traffic? 4 A. Yes, sir. 5 Q. And that's so as to not be a distraction as far 6 as those headlights going back and forth; correct? 7 A. Yes, sir. 8 Q. To the same extent why you're supposed to take 9 down your strobe lights? 10 A. Correct. 11 Q. And we know on this video, Ms. Henderson is 12 facing the passing traffic? 13 A. Correct. 14 Q. They also ask you to do what's called a precheck. 15 A. Yes, sir. 16 Q. Are you telling this jury that on the video, they 17 will see you doing a precheck of her eyes to determine 18 whether they can track smoothly? 19 A. Yes, sir. 20 Q. That's on the video? 21 A. Yes, sir. 22 Q. Okay. Now, going back to the N H T S A student 23 manual, when's the last time you looked at that student 24 manual? 25 A. About six months ago, I believe. [55] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 Q. And you're aware that in the manual, according to 2 the manual, the H G N test is 77 percent accurate? 3 A. Before you told me, I knew there was a 4 percentage. I don't recall exactly what the percentage 5 was. 6 Q. But it's not 100 percent? 7 A. Correct. 8 Q. And if I represent to you that in the manual, it 9 says 77 percent, are you willing to accept that? 10 A. Yes, sir, I am. 11 Q. They also give you a percentage of the 12 walk-and-turn and one-legged stand test. Do you recall 13 what those percentages are? 14 A. I do not, no, sir. 15 Q. But they're not 100 percent either -- 16 A. That is correct. 17 Q. -- do you recall that? 18 A. Yes, sir. 19 Q. And they recommend that in order to make a 20 determination as to whether or not someone is intoxicated, 21 that you perform all three of those tests? 22 A. Yes, sir. 23 Q. And in that manual, it also says that even with 24 all three of those tests, the accuracy of that battery of 25 tests is 80 percent -- [56] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 A. Yes, sir. 2 Q. -- you recall that? 3 A. Yeah, I do, yes, sir. 4 Q. So even all three of those tests together is not 5 a 100 percent validation or verification someone is 6 intoxicated beyond their normal mental and physical 7 faculties, according to the N H T S A manual; correct? 8 A. That is correct, yes, sir. 9 Q. Now, Ms. Henderson told you that she needed to 10 use the bathroom. 11 A. Yes, sir. 12 Q. Did she also tell you that she was only two miles 13 from home? 14 A. She did indicate that it was pretty close, yes, 15 sir. 16 Q. And you had her driver's license so you were able 17 to verify if she was telling the truth or not? 18 A. Yes, sir. 19 Q. And you verified that she was actually very close 20 to her home? 21 A. Yes, sir. 22 Q. So you don't know if she got in a situation 23 where, on the way home, she figured she could go ahead and 24 make it and rather use a bathroom in her own private 25 bathroom versus a public bathroom, do you? [57] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 A. Correct. Yeah, I have no way of knowing that. 2 Q. Now, in terms of not being able to do the 3 testing, if she had tried to do the one-legged stand test 4 and lost control and peed on herself, you would've put that 5 in your report as a sign of insobriety, wouldn't you? 6 A. Yes, sir. 7 Q. And the same thing if she tried to do the 8 one-legged stand test and was unable to do it and started 9 peeing while doing it, you would have put that as a sign of 10 insobriety? 11 A. Yes, sir. 12 Q. She was kind of between a rock and a hard place 13 in terms of having to use the bathroom or taking a chance 14 of peeing on herself. 15 A. That's understandable, yes. 16 Q. And in fact you were so concerned about whether 17 or not she was going to pee on herself that you called in 18 another officer and you told him, I wanted you to come 19 because I don't want her to pee in my car. 20 A. Okay. 21 Q. You remember that? 22 A. I don't recall saying that, no, sir. 23 Q. If it's on the tape, you wouldn't dispute that? 24 A. No, sir, I would not. 25 Q. So after you made the decision to arrest her, [58] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 she's put in your squad car -- was that someone else's 2 squad car? 3 A. That was mine, yes, sir. 4 Q. She was put in your squad car, and, I guess, the 5 other officer, at that point, inventories her car and 6 prepares it to be impounded? 7 A. Correct. 8 Q. Now, the ride back to the police station, about 9 how long would you say that ride took? 10 A. I would guess between seven and 10 minutes. 11 Q. And in the ride back, the two of y'all had a 12 conversation? 13 A. Yes, sir. 14 Q. And that conversation never got ugly in anyway, 15 did it? 16 A. No, sir, did not. 17 Q. She remained respectful with you? 18 A. She did. 19 Q. She asked you about what was the process going 20 forward? 21 A. Yes, sir. 22 Q. And she -- the two of y'all talked about who the 23 car was registered to, who might come pick it up? 24 A. Yes, sir. 25 Q. Now, isn't it true that she expressed some [59] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 concern to you about the inventory of her car? 2 A. I don't recall that. I'm certain it may have 3 happened; I don't recall it. 4 Q. Do you recall telling her that you know the other 5 officer and you trust him? 6 A. I don't recall saying that, but it's very 7 possible. 8 Q. If it's on the tape, it's on the tape. 9 A. Yes, sir. 10 Q. And do you recall her concern not being about 11 personal items in the car but rather with items or files 12 relating to clients of hers? 13 A. Again, I don't recall, but if it's on the tape, 14 yes, sir. 15 Q. And if that's what's on the tape, that would 16 indicate that she has -- was having a concern about 17 maintaining the privacy of her clients' files; correct? 18 A. Yes, sir. 19 Q. Now, going back to the nystagmus, the manual 20 tells you a certain way that that test is supposed to be 21 performed and it's supposed to be 12 to 15 inches from the 22 nose. 23 A. Yes, sir. 24 Q. Slightly above the eyes at 45-degree angle? 25 A. Yes, sir. [60] Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks 1 Q. This jury has no way of determining from the 2 video that it's 12 to 15 inches from the nose, can they? 3 A. Not perfectly accurately, no, sir. 4 Q. And they can't determine whether or not the pen 5 is being held at the correct 45-degree angle? 6 A. No, sir. 7 Q. Isn't it true, officer, also that the manual sets 8 out that some people have what's called natural nystagmus? 9 A. Yes, sir. 10 Q. But you don't have any testing or preliminary 11 testing to determine whether or not she had natural 12 nystagmus? 13 A. I'm not qualified to do that, no, sir. 14 MR. BROOKS: Pass the witness. 15 MR. WILSON: Your Honor, may we approach? 16 THE COURT: Yes, sir. 17 (Sidebar conversation between the court and 18 counsel off the record.) 19 THE COURT: You may proceed. 20 MR. WILSON: Thank you, judge. 21 REDIRECT EXAMINATION 22 BY MR. WILSON: 23 Q. Officer Corley, are you familiar with the 24 validation studies that are included in the NHTSA handbook? 25 A. I have read them but it has been some time. [61] Clifton Corley - December 2, 2013 Redirect Examination by Mr. Wilson 1 Q. Would it help if I refresh your recollection? 2 A. Yes, sir. 3 MR. WILSON: May I approach the witness, 4 Your Honor? 5 THE COURT: Yes, sir, you may. 6 Q (By Mr. Wilson) Sir, if you'll just read this page 7 here to yourself, silently. 8 Has your recollection been refreshed? 9 A. Yes, sir. 10 Q. Are you familiar with the three validation 11 studies undertaken between 1995 and 1998 in Colorado, 12 Florida and San Diego? 13 A. Yes, sir. 14 Q. And is it true that the Colorado study came to 15 the conclusion that when performed together, that the 16 standardized field sobriety tests are about 93 percent 17 accurate? 18 A. Yes, sir. 19 Q. And that the Florida test yielded a result that 20 said the field sobriety tests were about 95 percent 21 accurate? 22 A. Yes, sir. 23 Q. And that the San Diego test stated that the field 24 sobriety tests had about a 91 percent level of accuracy in 25 showing that someone would be at least a .0 -- .08 level of [62] Clifton Corley - December 2, 2013 Redirect Examination by Mr. Wilson 1 alcohol concentration or greater? 2 A. Yes, sir. 3 Q. And you're not -- you have no medical training; 4 is that correct? 5 A. Correct. 6 Q. Where does the information about what can cause 7 horizontal gaze nystagmus, where does that information come 8 from? 9 A. The only information I read has been in the N H 10 -- the NHTSA manual there. 11 Q. And is this provided to you by the State of 12 Texas? 13 A. Yes, sir. 14 Q. Is it provided to all police officers in the 15 State of Texas? 16 A. Yes, sir. 17 Q. When it came to the statutory warning, does the 18 statutory warning include any language about an 19 occupational driver's license? 20 A. No, sir. 21 Q. So on the face of it, if all you have in front of 22 you is the information provided in the statutory warning, 23 there's no way to know that you can go get an occupational 24 driver's license; is that correct? 25 A. On the face of that, no, sir. [63] Clifton Corley - December 2, 2013 Redirect Examination by Mr. Wilson 1 Q. Based on your experience and all of the D W I 2 investigations that you have conducted, have you ever run 3 into individuals who are both respectful and intoxicated? 4 A. Yes, sir. 5 Q. And would you say that there are slight nuances 6 that you've been trained to see that aren't going to always 7 show up on video? 8 A. Yes, sir. 9 Q. And when it comes to the passing lights, why is 10 it that under ideal conditions you don't have someone face 11 passing traffic when performing the H G N test? 12 A. Under ideal conditions, if the traffic is heavy 13 enough and cars are going by, the eyes can tend to follow 14 the lights as it goes across. 15 Q. But does that cause an individual's head to turn? 16 A. No, sir. 17 Q. And what was traffic like that night? 18 A. It was light. 19 MR. WILSON: Pass the witness. 20 THE COURT: Anything further, Mr. Brooks? 21 MR. BROOKS: Yes, Your Honor. Just a couple 22 of questions. 23 RECROSS EXAMINATION 24 BY MR. BROOKS: 25 Q. In reference to what you were just asked as far [64] Clifton Corley - December 2, 2013 Recross Examination by Mr. Brooks 1 as standing on the side of the road and the traffic going 2 back and forth. 3 A. Yes, sir. 4 Q. Because of what you do for a living, your eight 5 years of doing this, you're used to standing on the 6 roadside where vehicles are going past you; is that a fair 7 statement? 8 A. Yes, sir. 9 Q. You have no reason to expect that Ms. Henderson 10 would be used to being in that situation, would you? 11 A. No, sir. 12 Q. And the battery of tests that we talked about, 13 there are still other tests that could have been 14 administered in terms of field sobriety testing, such as 15 counting backwards from A B C, from Z through B, or B 16 through T; correct? 17 A. Correct. 18 Q. You could have done that. And that's perfectly 19 acceptable test, isn't it? 20 A. It's not a standardized test but I believe it 21 could be acceptable, yes, sir. 22 Q. And you utilized that test before? 23 A. I believe early on in my career, I did. It's 24 nothing I used recently. 25 Q. What about counting backwards? [65] Clifton Corley - December 2, 2013 Recross Examination by Mr. Brooks 1 A. It's not something I generally use, no, sir. 2 Q. Have you used that test before? 3 A. I have but it's been several years. 4 Q. And going back to when you and Ms. Henderson are 5 talking about the inventory, she had the foresight to ask 6 you if she was going to get a copy of that inventory, 7 didn't she? 8 A. Yes, sir. 9 MR. BROOKS: I don't think I have any other 10 questions at this time, Your Honor. 11 THE COURT: Any further questions of this 12 witness from the state? 13 MR. WILSON: No, Your Honor. Witness may be 14 excused by the state. 15 THE COURT: You want to reserve this 16 witness, Mr. Brooks, or is he released? 17 MR. BROOKS: Subject to recall, judge. 18 THE COURT: Sir, you're free to go. 19 THE WITNESS: All right. Thank you. 20 THE COURT: Call your next witness. 21 MR. WILSON: Your Honor, at this time, the 22 state has no more witnesses to call but I request 23 permission to publish State's Exhibit 1. 24 THE COURT: Permission granted. 25 (DVD published on the overhead screen.) [66] 1 MR. WILSON: Your Honor, that concludes the 2 state's publishing of the in-car video portion of State's 3 Exhibit 1. 4 Now publishing the intoxilyzer room portion 5 of the State's Exhibit 1. 6 THE COURT: My understanding is this next 7 portion is about seven minutes; is that correct? 8 MR. WILSON: About six, Your Honor. 9 THE COURT: Proceed. 10 (DVD published on the overhead screen.) 11 MR. WILSON: Your Honor, that concludes the 12 state's publishing the State's Exhibit 1. 13 THE COURT: Mr. Brooks, is there anything of 14 any value past this point on the video? 15 MR. BROOKS: No, Your Honor. 16 THE COURT: All right. Lights, please. 17 State, call your next witness. 18 MR. WILSON: At this time, Your Honor, 19 members of the jury, the state rests. 20 THE COURT: What says the defense? 21 MR. BROOKS: May we have a moment, Your 22 Honor? 23 THE COURT: Yes, sir. 24 MR. BROOKS: Step to the conference room? 25 THE COURT: Yes, sir. [67] 1 (Recess in place at 4:54 P M, resuming at 2 4:55 P M. Defendant present. Jury 3 present.) 4 MR. BROOKS: At this time, if it please the 5 court, members of the jury, the defense rests. 6 THE COURT: All right. Both sides close? 7 MR. BROOKS: Defense close. 8 MR. WILSON: State closes. 9 THE COURT: Lady and gentlemen of the jury, 10 that's all the evidence you're going to hear in this case. 11 At this point, I note for the court and the 12 record that it's four minutes till 5:00. That's all of the 13 evidence but we still have to have what's called the jury 14 conference here on the charge, the instructions that you're 15 going to receive. I've been busily working on that in 16 between running the court. I have them ready but I have to 17 give the attorneys a copy and give them a chance to look at 18 it, see if they have any requests for instructions. 19 We're here to serve you. So I'm going to 20 let you go to the jury room and quickly take a consensus. 21 If you want to stay and work, we'll stay here and work 22 through the evening until you arrive at a verdict. If you 23 want to go home, we will break now. I'll ask that you come 24 back tomorrow morning, 9:00 o'clock. 25 Both sides will -- whether you stay or go, [68] 1 both sides are going to give a closing argument. It will 2 be about 15 minutes long, telling you what they think the 3 evidence has shown. Then you'll be able to start your 4 deliberations. So you still got at least 15 minutes of 5 argument per side, that's a half hour, probably 15 minutes 6 of looking at the jury charge, and I have to read it to you 7 by law. You're looking at at least an hour before you're 8 going to be able to start your deliberations. All right? 9 So I will follow your lead. If y'all want 10 to, as a group, come back tomorrow, then we'll -- you'll be 11 done and start deliberating by 10:00 o'clock. Or if you 12 want to stay, then we'll stay. So at this time, I'm going 13 to pass out the jury charge. 14 Bailiff, take charge of the jury. 15 And decide amongst yourselves if you want to 16 stay or come back tomorrow morning. 17 Counsel, approach. 18 (The jury exits.) 19 THE COURT: Please look over the proposed 20 jury charge. We'll stand in recess for 10 minutes while 21 y'all look that over and the jury decides what they want to 22 do. 23 (Recess at 4:57 P M, resuming at 5:07 P M. 24 Defendant present.) 25 THE BAILIFF: All rise. [69] 1 (The jury enters.) 2 THE COURT: Thank you. You may be seated. 3 Let the record reflect that all parties are present, the 4 jury is back in the courtroom. 5 Lady and gentlemen of the jury, it's come to 6 my attention that you collectively have decided that you 7 prefer to go home tonight and then reconvene tomorrow at 8 9:00 A M. Is that correct? 9 THE JURORS: Yes, sir. 10 THE COURT: All right. Now, I didn't 11 mention this earlier because it's very rarely that it comes 12 up. But I believe one of the jurors might have been taking 13 notes. 14 THE JUROR: Yes, sir. 15 THE COURT: The law in Texas on that is, you 16 can take notes if the judge allows, and I do allow it. But 17 you cannot share them with anyone else. And you cannot 18 have them when you go back and deliberate. So you can use 19 them, give them to the bailiff tonight, he'll secure them 20 in an envelope. He'll give them back to you tomorrow for 21 you to review if you would like before you go deliberate. 22 The reason the law doesn't allow you to take 23 them back there, we don't want somebody relying on your 24 note taking instead of what they heard and saw in the 25 courtroom just in case your notes are incorrect. (Jury Not Present) [70] 1 THE JUROR: Yes, sir. 2 THE COURT: Okay. So, bailiff, collect any 3 notes and mark them in an envelope, keep them separate. 4 No one is going to look at your notes. 5 We'll return them to you tomorrow. 6 Remember my instructions. Don't begin 7 discussing this case with anybody. We're almost at the 8 end. I don't think you're going to hear more than 30 9 minutes of proceedings tomorrow. I'll come in, read you 10 the charge. We'll keep working on this so we're not 11 wasting any of your time. Each side will take 15 minutes 12 and then you'll be deliberating. All right. Thank you. 13 Bailiff, take charge of the courtroom -- 14 THE BAILIFF: Yes, Your Honor. 15 THE COURT: -- or the panel. 16 THE BAILIFF: All rise. 17 THE COURT: See everyone back here in the 18 morning at 8:45. And collect the notes, bailiff. 19 THE BAILIFF: Yes, sir. 20 (Adjourned at 5:10 P M. Resuming December 21 3, 2013, in Volume 4.) [71] 1 STATE OF TEXAS ) 2 COUNTY OF COLLIN ) [3] 4 I, Marigay Black, Official Court Reporter in and for 5 the County Court at Law Number Two, County of Collin, State 6 of Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all portions 8 of evidence and other proceedings requested in writing by 9 counsel for the parties to be included in this volume of 10 the Reporter's Record in the above-styled and numbered 11 cause, all of which occurred in open court or in chambers 12 and were reported by me. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, if 15 any, offered by the respective parties. 16 Signed this 26th day of March, 2014. [17] 18 /S/ Marigay Black 19 MARIGAY BLACK, Texas CSR 351 Official Court Reporter 20 County Court at Law Number Two Suite 10344 21 2100 Bloomdale Road McKinney, Texas 75071 22 Tel: 972-548-3823 FAX: 972-548-3828 23 Expiration: 12/31/2014 mblack@co.collin.tx.us [1] Trial on the Merits December 3, 2013 1 REPORTER'S RECORD VOLUME 4 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR [3] THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS [7] 8 _____________________________________________ 9 TRIAL ON THE MERITS _____________________________________________ [11] 12 On the 3rd day of December, 2013, the following 13 proceedings came on to be heard in the above-titled and 14 numbered cause before the Honorable Barnett Walker, Judge 15 Presiding, and a jury, held in McKinney, Collin County, 16 Texas. 17 Proceedings reported by computerized stenotype 18 machine. [2] Trial on the Merits December 3, 2013 1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 [7] 8 Attorneys for The State of Texas [9] 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 [14] Attorney for The Defendant [3] Trial on the Merits December 3, 2013 1 VOLUME 4 2 Trial on the Merits 3 December 3, 2013 4 PAGE VOL. 5 Charge Conference ...........................4 4 6 Charge Read to the Jury .....................7 4 7 Closing Statement by Mr. Wilson ............13 4 8 Closing Statement by Mr. Brooks ............18 4 9 Closing Statement by Mr. Wilson ............22 4 10 Jury Note Received .........................29 4 11 Verdict ....................................36 4 12 Punishment Phase ...........................38 4 13 Both Sides Close ...........................39 4 14 Sentencing .................................39 4 15 Reporter's Certificate .....................43 4 [4] Trial on the Merits December 3, 2013 1 (Proceedings occurring in open court, 2 commencing at 9:02 A M. Defendant present.) 3 THE COURT: Court calls 002-80051-2013, 4 State of Texas versus Mellannise Henderson-Love. 5 Let the record reflect the jury is outside 6 the courtroom. All parties are present. 7 When we concluded yesterday, I gave both 8 sides a copy of the proposed jury charge and asked that you 9 look it over. 10 Does the state have any requests for changes 11 or additions? 12 MR. WILSON: Your Honor, first off, I just 13 wanted to clarify that, would you like it to state 14 Mellannise Henderson throughout the jury charge or change 15 it to Mellannise Henderson-Love? 16 THE COURT: Well, the court doesn't have a 17 preference. I used Mellannise Henderson only because 18 that's how it was styled on the information itself. 19 MR. WILSON: The state has no objection 20 then. 21 Secondly, Your Honor, the state requests 22 that in the application paragraph, bullet point number 23 three, since no evidence was presented in regard to an 24 alcohol concentration, we ask that the alcohol 25 concentration paragraph be removed from the jury charge. [5] Trial on the Merits December 3, 2013 1 THE COURT: Any objections by the defense? 2 MR. BROOKS: Yes, Your Honor. I would objet 3 to that. I believe what's in there is following the 4 statute. 5 THE COURT: Well, it follows the statute. 6 Why would it be necessary to put in? The jury couldn't 7 find her -- there's not going to be any evidence, the state 8 having rested and closed, there's no evidence of an alcohol 9 concentration, so why isn't that just unnecessary language? 10 MR. BROOKS: Okay. 11 THE COURT: All right. 12 MR. WILSON: Nothing further from the state. 13 THE COURT: I'll strike paragraph three. 14 Any requests from the defense? 15 MR. BROOKS: Yes, judge. I don't -- and you 16 may have put it in here and I just missed it. Any 17 reference to the verdict having to be unanimous. 18 THE COURT: Page three, counsel, the third 19 paragraph from the bottom, the last sentence. Your verdict 20 must be unanimous and signed by the presiding juror. 21 MR. BROOKS: Thank you, sir. 22 THE COURT: And does your client wish the 23 information to read Mellannise Henderson or Mellannise 24 Henderson hyphen Love? 25 THE DEFENDANT: Mellannise Henderson is [6] Trial on the Merits December 3, 2013 1 fine, Your Honor. 2 THE COURT: All right. And you acknowledge 3 that you're the same Mellannise Henderson that was stopped 4 on this day? 5 THE DEFENDANT: Yes, Your Honor. 6 THE COURT: Anything further from either 7 side? 8 MR. WILSON: No, Your Honor. 9 MR. BROOKS: No, sir. 10 THE COURT: Bailiff, I'm going to print -- 11 do you want a fresh copy with the change with the missing 12 paragraph, counsel? 13 MR. BROOKS: No, sir, that's not necessary 14 for me. 15 THE COURT: Does the state want one? 16 MR. WILSON: Yes, Your Honor, please. 17 THE COURT: Okay. 18 (Unrelated docket matters heard, after which 19 the following proceedings were had, 20 commencing at 9:40 A M. Defendant present.) 21 THE BAILIFF: All rise. 22 (The jury enters.) 23 THE COURT: Everyone may be seated. 24 Bailiff, the notes fell off on to the floor. 25 Lady and gentlemen of the jury, let the [7] Trial on the Merits December 3, 2013 1 record reflect that all parties are present. The jury is 2 back in the courtroom. 3 At this time, bailiff, would you please pass 4 out a copy of the jury charge. 5 THE BAILIFF: Yes, Your Honor. 6 COURT'S CHARGE 7 THE COURT: The jury charge is your 8 instructions on how to proceed with your deliberations but 9 before I read that to you, as I'm required to do by law, I 10 want to also instruct you one more time on one other part 11 of your duties. 12 In continuing to discharge your 13 responsibilities as jurors, you will continue to observe 14 all the instructions that have previously been given to 15 you. These instructions are given to you because your 16 conduct is subject to review, the same as that of the 17 witnesses, the parties, the attorneys and myself. If it 18 should be found that you have disregarded any of these 19 instructions, it will be jury misconduct, and it may 20 require another trial by another jury. 21 If any of you observe one or more of your 22 number violating any of my instructions, you shall 23 immediately warn the violator and caution him or her not to 24 do so again. 25 Now, please listen carefully as I read the [8] Trial on the Merits December 3, 2013 1 charge to you. The original will be delivered to you by 2 the bailiff for you to write your verdict on it. You may 3 take that copy back with you if you would like or you may 4 just take the official copy that has my signature back. 5 "Members of the jury: The defendant, 6 Mellannise Henderson, stands charged with the misdemeanor 7 offense of driving while intoxicated in a public place in 8 Collin County, Texas on or about December 1st, 2012. To 9 this charge, the defendant has pleaded not guilty. 10 "Our law provides that a person commits an 11 offense if the person is intoxicated while driving or 12 operating a motor vehicle in a public place. 13 "A public place means any place to which the 14 public or a substantial group of the public has access, and 15 includes but is not limited to streets, highways, and the 16 common areas of schools, hospitals, apartment houses, 17 office buildings, transport facilities and shops. 18 "The word intoxicated means not having the 19 normal use of mental or physical faculties by reason of the 20 introduction of alcohol, a controlled substance, a drug, a 21 dangerous drug, a combination of two or more of those 22 substances or any other substance into the body, or having 23 an alcohol concentration of 0.08 or more. 24 "The term alcohol concentration as used 25 herein means the number of grams of alcohol per 210 liters [9] Trial on the Merits December 3, 2013 1 of breath. 2 "The term motor vehicle means a device in, 3 on or by which a person or property may be transported or 4 drawn on a highway except for a device used exclusively on 5 stationary rails or tracks. 6 "Now, if you find and believe from the 7 evidence beyond a reasonable doubt that on or about the --" 8 should read -- "on or about December 1st, 2012, in Collin 9 County, Texas, Mellannise Henderson did then and there 10 operate a motor vehicle in a public place, while the said 11 Mellannise Henderson was intoxicated by, one, not having 12 the normal use of her mental faculties by reason of the 13 introduction of alcohol into the body, or, two, not having 14 the normal use of her physical faculties by reason of the 15 introduction of alcohol into the body, then you will find 16 the defendant guilty as charged. 17 "Unless you so find beyond a reasonable 18 doubt or if you have a reasonable doubt thereof, you will 19 find the defendant not guilty. 20 "You are instructed that the law allows the 21 defendant to testify in her own behalf but the fact that 22 she did not do so is not a circumstance against her and 23 shall not be considered as evidence of guilt or proof of 24 any other matter. You shall not consider, discuss or even 25 refer to the fact that the defendant did not testify, nor [10] Trial on the Merits December 3, 2013 1 shall you draw any inference of guilt therefrom. 2 "All persons are presumed to be innocent and 3 no person may be convicted of an offense unless each 4 element of the offense is proved beyond a reasonable doubt. 5 The fact that a person has been arrested, confined or 6 charged with an offense gives rise to no inference of guilt 7 at her trial. The law does not require a defendant to prove 8 her innocence or produce any evidence at all. The 9 presumption of innocence alone is sufficient to acquit the 10 defendant unless the jurors are satisfied beyond a 11 reasonable doubt of the defendant's guilt after careful and 12 impartial consideration of all the evidence in the case. 13 "The prosecution has the burden of proving 14 the defendant guilty, and it must do so by proving each and 15 every element of the offense charged beyond a reasonable 16 doubt. And if they fail to do so, you must acquit the 17 defendant. 18 "You are instructed that you are not to 19 allow yourself to be influenced by what you may think or 20 surmise the opinion of the court to be. The court has no 21 right to indicate an opinion respecting any matter of fact 22 involved in this case, or to indicate a desire respecting 23 its outcome. The court has not intended to express an 24 opinion upon any matter of fact in this case and if you've 25 observed anything that you have or may have interpreted as [11] Trial on the Merits December 3, 2013 1 the court's opinion upon a matter of fact in this case, you 2 must wholly disregard it. 3 "You are instructed that any statements of 4 counsel made during the course of the trial or during 5 argument that is not supported by the evidence or 6 statements of law made by the counsel not in harmony with 7 the law as stated to you by the court in these instructions 8 are to be wholly disregarded. 9 "You are further instructed that you should 10 not question the bailiff concerning testimony or the law of 11 this case, nor should you discuss the case in his presence. 12 If you have any questions, you should reduce them to 13 writing to be signed by the presiding juror and present 14 them to the court. 15 "If the jurors disagree as to the statement 16 of any witness, they may, upon applying to the court, in 17 writing, have read to them from the court reporter's notes 18 that portion of such witness' testimony and only that 19 portion on the point in dispute. 20 "You are instructed that the information is 21 the means whereby a defendant is brought to trial in a 22 misdemeanor prosecution. It is not evidence, nor can it be 23 considered as such when passing upon whether the defendant 24 is guilty or not guilty. 25 "During your deliberations in this case, you [12] Trial on the Merits December 3, 2013 1 must not consider, discuss nor relate any matters not in 2 evidence before you. You should not consider nor mention 3 any personal knowledge or information you may have about 4 any fact or person connected with this case which is not 5 shown by the evidence. You are to base your decision on the 6 evidence presented and are not to be swayed by any 7 sympathy, prejudice or bias. 8 "After you retire to the jury room, you 9 should select one of your members as your presiding juror. 10 It is their duty to preside at your deliberations and vote 11 with you. Your verdict must be unanimous and signed by the 12 presiding juror. 13 "You are the exclusive judges of the facts 14 proved, of the credibility of the witnesses, and the weight 15 to be given their testimony. But you must be governed by 16 the law you receive in these written instructions. 17 "Suitable forms for your verdict are 18 attached hereto. Your verdict must be in writing and 19 signed by your presiding juror. Your sole duty at this 20 time is to determine whether the defendant is guilty or not 21 guilty under the information in this cause and you are to 22 restrict your deliberations to that issue. 23 "Signed this the 3rd day of December, 2013. 24 Barnett Walker, judge presiding. 25 "Verdict. We, the jury, find the defendant [13] Trial on the Merits December 3, 2013 1 guilty of driving while intoxicated as charged." 2 If that is your unanimous verdict, the 3 presiding juror will sign his or her name where it says 4 signature and print the name where it says printed name. 5 "Or, we, the jury, find the defendant not 6 guilty." 7 If that's your unanimous verdict, then the 8 presiding juror will sign his or her name where it says 9 signature and print the name where it says printed name. 10 I noted we had two typographical errors. I 11 will fix those and I will sign the official copy for you to 12 take it back and for you to write your verdict on. 13 At this time, each side wants to do a 14 15-minute closing. They're going to highlight what they 15 believe the evidence has shown in this case. 16 Under the laws of the State of Texas, the 17 state has the right to go both first and last so they can 18 split their time if they so choose. 19 The state may proceed. 20 CLOSING STATEMENT 21 MR. WILSON: Thank you, judge. May I use 22 the projector, please? 23 THE COURT: Yes, sir. 24 MR. WILSON: May it please the court. 25 THE COURT: Yes. [14] Closing Statement by Mr. Wilson December 3, 2013 1 MR. WILSON: Counsel. Members of the jury. 2 It's been my pleasure to represent the State 3 of Texas to you over the last two days, and as the judge 4 said, since I represent the State of Texas, I have the 5 burden of proof. And it is something that I -- a burden 6 that I embrace. And also as the judge said, I get the 7 opportunity to speak to you twice. Here in a little bit, 8 Mr. Brooks, counsel for defense, is going to come up here 9 and make his final argument, and then I will be back to 10 make my final argument on behalf of the state. 11 First off, though, I want to go through a 12 few things that you'll find in the jury charge, just make 13 them a little bit more clear to you. 14 So, first, I want to remind you that the 15 standard that you are to use to evaluate the defendant is 16 the average non-intoxicated person. Remember that 17 yesterday, during voir dire, we talked about how you 18 collectively are the average non-intoxicated person. And 19 it is that standard that you will apply to the defendant 20 when determining whether or not she had the normal use of 21 her mental or physical faculties. 22 Another thing I want you to remember is that 23 the standardized field sobriety tests that you heard so 24 much about yesterday are designed so that the average 25 non-intoxicated person can perform them successfully on [15] Closing Statement by Mr. Wilson December 3, 2013 1 roadsides all throughout the country. 2 Next, you'll see on page two some of these 3 definitions. You'll notice that while yesterday we talked 4 about three definitions, you only really have to worry 5 about two of those today. That's because no evidence was 6 presented as to alcohol concentration since the defendant 7 refused to provide a sample of her breath. 8 So you can basically think of the 9 definitions and process them the following way like I've 10 got on the board. Ask yourself the first question: Do I 11 believe beyond a reasonable doubt that the defendant did 12 not have the normal use of her physical faculties due to 13 the introduction of alcohol into her body while she was 14 driving? If the answer to that question is yes, the state 15 is entitled to a verdict of guilty. If the answer is no, 16 you can move on to the next question. 17 Do I believe beyond a reasonable doubt that 18 the defendant did not have the normal use of her mental 19 faculties due to the introduction of alcohol while she was 20 driving? If the answer to that question is yes, the state 21 is entitled to a verdict of guilty. Only if your answer to 22 both of those questions is no, only then, will you find 23 that the defendant was not guilty. 24 Next, you will see also on page two that all 25 persons are presumed innocent. The thing is, though, [16] Closing Statement by Mr. Wilson December 3, 2013 1 there's nothing in this jury charge that says all people 2 are presumed to be honest. You are the ones who determine 3 the credibility of all witnesses and all parties involved 4 in this case. You determine the credibility of Officer 5 Corley yesterday, you also determine the credibility of the 6 defendant. 7 Another thing, just to remind you, sympathy 8 cannot be considered and the law applies equally to 9 everyone. And, you know, the defendant, she seems like a 10 nice person, she's an attorney, but your feelings about 11 attorneys, whether they are positive or negative, should 12 have no bearing on today's case and on your deliberations. 13 And finally, we talked a little bit 14 yesterday about beyond a reasonable doubt. And 15 unfortunately, you know, our state legislature did not give 16 you a clear-cut definition, but we talked about a few 17 things as to what that standard -- what that burden of 18 proof is not. And it's not a -- it doesn't mean beyond all 19 possible doubt and it's not a 100 percent standard. 20 And, Mr. Campbell, I believe yesterday I 21 asked you yesterday about this puzzle and pointed out that 22 when we've got the puzzle together on the board, you knew 23 beyond a reasonable doubt that that was a picture of a 24 shark, even though there aren't 100 percent of the puzzle 25 pieces there. And I want you all to remember that as you [17] Closing Statement by Mr. Wilson December 3, 2013 1 make your deliberations and determine whether or not you 2 believe beyond a reasonable doubt that the defendant is 3 guilty of driving while intoxicated. 4 Now I'm going to turn the floor over to 5 Mr. Brooks. When I get back up here, make my final 6 argument, and after that, you should have everything you 7 need to believe beyond a reasonable doubt the defendant is 8 guilty. 9 THE COURT: Thank you, counsel. 10 Mr. Brooks. 11 MR. BROOKS: Thank you, judge. 12 THE COURT: Mr. Brooks, did you want to use 13 the monitor as well? 14 MR. BROOKS: Yes, sir. 15 THE COURT: It looks like it's stuck half 16 way up and down. Going up into the ceiling there. 17 (Equipment set up.) 18 THE COURT: Sorry for the delay. You'll get 19 your full time, counsel. 20 MR. BROOKS: Thank you, sir. 21 THE COURT: I'm going to try to turn it off 22 and bring it back up. If we can't get it working, I'll 23 have the bailiff take the jury to the courtroom across the 24 hallway and you can do your closing in that courtroom so 25 that you can have access to the technology that you want to [18] Closing Statement by Mr. Wilson December 3, 2013 1 use. 2 You may proceed, counsel. 3 CLOSING STATEMENT 4 MR. BROOKS: Thank you, sir. 5 Good morning, ladies and gentlemen. I know 6 yesterday when we started, we had told y'all we expected 7 this to be a one-day trial. We tried. We almost got 8 there. So I apologize for that. Hopefully, we'll get this 9 thing finished today. 10 I want to talk to you about some of the 11 things we talked about during voir dire, and one of the 12 things we talked about during voir dire was the various 13 different burdens of proof we have in our criminal justice 14 system. And we talked about how the lowest burden of proof 15 is reasonable suspicion. And that proof of burden is the 16 burden of proof I believe that Officer Corley used to 17 arrest Ms. Henderson that night. 18 We talked about how the burden of proof, 19 reasonable suspicion, is the lowest burden of proof but the 20 highest burden of proof that you have to apply to this case 21 as far as beyond a reasonable doubt, how that is the 22 highest burden of proof. We talked about the lowest versus 23 the highest. 24 We also talked about how not guilty 25 obviously includes innocent but it doesn't always -- but [19] Closing Statement by Mr. Brooks December 3, 2013 1 it's not limited to that. We talked about how that is 2 because you have to find beyond a reasonable doubt a 3 not-guilty basically believing that the state has not 4 proven this case beyond a reasonable doubt. Not guilty 5 goes back to the central question for a jury in a criminal 6 case. And the question is not whether or not the defendant 7 is guilty, but the question is, does the evidence presented 8 to me prove beyond a reasonable doubt that the defendant is 9 guilty? That's the question for the jury. 10 I want to talk about some of the things that 11 you saw yesterday and let's start with the video. If you 12 recall the officer testified that he was trying to go 13 around her and she almost hit him. Well, if you look at 14 that video again -- and I'm going to ask that you please 15 look at that video again -- you'll see that that 16 confrontation is not nearly as dramatic as he tried to make 17 it. When you look at that near miss, as we call it, you'll 18 see that that near miss is something that, unfortunately, 19 each and every one of us has had happen to us driving down 20 the street, whether it's from inattention, distraction, not 21 paying attention to a blind spot, that very thing is the 22 same thing that each and every person in this courtroom has 23 had happen. 24 Now, that leads him to pull her over. He 25 asks her if she saw him, she says that she didn't. And the [20] Closing Statement by Mr. Brooks December 3, 2013 1 reason she didn't, she thought she saw in front of her 2 emergency lights. Well, the officer came in here yesterday 3 and corroborated that, in fact, there were emergency lights 4 in front of her. She told you -- told him she was trying 5 to decide, she couldn't tell where they were, she needed to 6 move over to the left or to the right. And he admitted to 7 you that based upon that vantage point, you couldn't tell 8 if those emergency lights were in the left or the right 9 lane. So the officer corroborated what she was seeing. 10 Now, he also decided that he needed to give 11 her field sobriety tests. Let's look at the field sobriety 12 tests that were given. The H G N test, you have no way of 13 knowing if that test was being done correctly. He let you 14 know and he admitted that, based upon that video, you can't 15 tell if he's at the proper angle, you can't tell he's at 16 the proper distance, but you do know from his own testimony 17 that she's not supposed to be facing the road as she was 18 facing the road. And the reason she's not supposed to be 19 facing the road is the same reason he has to turn the 20 strobe lights off. Distraction. So you know part of that 21 testing was being done incorrectly. The other parts you 22 don't know if they are being done incorrectly, if they are 23 being done correctly. 24 She told the officer with respect to the 25 other tests that she needed to use the bathroom. And [21] Closing Statement by Mr. Brooks December 3, 2013 1 apparently he believed her in terms of needing to use the 2 bathroom because if you listen, if you watch on the video, 3 he tells to the other officer that arrives there, that he 4 doesn't want her to pee in his car. You can hear him. He 5 also admitted yesterday that if she had peed doing any of 6 the physical tests, he would put that down as a sign of 7 intoxication. And he also admitted yesterday on the stand 8 that at that point, she was between a rock and a hard 9 place. 10 Now, they then go to the video room, and he 11 wants to tell you that he instructed her to stand in the 12 box, that she did that incorrectly. Well, look at that 13 part of the videotape. There is no instruction on where to 14 stand. I think it's kind of interesting when you look at 15 that video that, yes, she is standing against the wall but, 16 guess what? The officer himself is standing and bracing 17 himself on the podium. So she's not doing anything 18 different than what he is doing. 19 The other thing that I want you to consider 20 is that there were two officers out there and yet only one 21 officer testified. The other officer, I'm assuming, I have 22 to assume, was available, could have come in and 23 corroborated what Officer Corley told you. 24 Now, they're going to stand up and they're 25 going to tell you that I had equal subpoena powers, I could [22] Closing Statement by Mr. Brooks December 3, 2013 1 have subpoenaed Officer Corley to come in here and do that. 2 But remember as the judge told you yesterday, I don't have 3 a burden. It's not my job to corroborate what Officer 4 Corley testifies to. So why would you expect me to 5 subpoena him? That's not my job. That's their job. 6 So when you look at all the facts and 7 everything that was brought before you yesterday in terms 8 of reasonable doubt, you see how we get to this statement. 9 A perfectly valid and lawful arrest can led to a perfectly 10 valid and lawful not-guilty. And that's the verdict I'm 11 going to ask you to return. 12 THE COURT: Thank you, counsel. 13 Mr. Wilson. You still have time remaining. 14 You wish to use the overhead? 15 MR. WILSON: Yes, please, Your Honor. 16 THE COURT: All right. 17 CLOSING STATEMENT 18 MR. WILSON: May it please the court. 19 Counsel. Members of the jury. 20 Nothin'. I had nothing to drink tonight. 21 That's the story that the defendant expects you to believe. 22 But you've seen the facts. You've heard the testimony. 23 You know that the facts and the evidence as they were 24 presented to you paint a very different picture. 25 First off, let's break down what happened [23] Closing Statement by Mr. Wilson December 3, 2013 1 that night and we'll begin with the defendant's driving. 2 You saw that the defendant almost hit Officer Corley. 3 Yesterday when we were watching that video, I heard an 4 audible gaff come from the jury box. You know it was 5 something that was close. Defense counsel just said that 6 we all are victims of people who nearly swerve into our 7 lanes due to inattention, due to distractions, also due to 8 intoxication. 9 In addition to that, after the near 10 collision, you saw that the defendant was weaving, still 11 weaving, in her lane. You saw that she -- her car even ran 12 over those reflector bumps in the middle of the road. She 13 had that time when she turned on her turn signal briefly 14 but yet failed to change lanes. 15 And then, as you were told, the officer was 16 concerned enough to divert himself from responding to a 17 back-up request. You heard testimony from Officer Corley 18 yesterday saying that when another officer requests you to 19 arrive for backup, it means something important is going on 20 that he needs your assistance for. Officer Corley ignored 21 someone who ran a red light but he didn't ignore this 22 defendant because he felt like her driving violations were 23 serious enough that they warranted his full attention. 24 He even asked her if she was trying to 25 change lanes and her answer was, I don't know if I was [24] Closing Statement by Mr. Wilson December 3, 2013 1 trying to change lanes. Someone who -- the average 2 non-intoxicated person who has the full use of his or her 3 mental faculties would be able to answer a "yes" or "no" to 4 that question, not, "I don't know." 5 Let's move on to the next stage, the initial 6 contact that the officer made with the defendant. Took her 7 a long time to find her driver's license. He had to ask 8 her twice to produce her insurance card. Smelled the 9 strong odor of alcohol coming from the car. He saw -- he 10 heard slurred speech. Saw watery eyes. All signs of 11 intoxication. And yet she still says that she had nothing 12 to drink. 13 Officer saw all of these signs of possible 14 intoxication so he asked her to step out of the vehicle. 15 And he performed the horizontal gaze nystagmus test. The 16 first of a three-part battery that go along with the 17 standardized field sobriety tests. 18 Now, defense counsel just said that you 19 don't know whether or not the officer performed these tests 20 to the exact letter of the rule book. Well, what I say to 21 you is that first off, on the video, there are some things 22 that you just can't tell. You can't tell whether he held 23 the stimulus 15 inches above her eye level, you can't tell, 24 you know, those little nuances like that. But what you can 25 rely on is that Officer Corley has been a certified peace [25] Closing Statement by Mr. Wilson December 3, 2013 1 officer for eight years. He has performed over 50 D W I 2 stops. He is a field training officer for the Richardson 3 police department. He is an experienced police officer and 4 he knows what he is doing. 5 What is clear from the video is that the 6 defendant was not able to follow the very simple 7 instructions given to her. First off, Officer Corley asks 8 her to keep her hands by her side. You'll notice if you 9 look at the video again, she went from behind her back to 10 in front of her back and had to be asked a couple of 11 different times before she finally put her hands by her 12 side. And then you all saw the absolutely egregious 13 inability to follow the simple instruction of moving her 14 eyes independently from her head. She had to resort to 15 holding her head still with her own hands. You know, you 16 heard over and over again the officer having to ask her, 17 follow the stimulus with your eyes, not your head, not your 18 head. And eventually at some point in time, she said, I 19 can't do that. Someone who has the normal use of her 20 mental faculties would be able to move her eyes 21 independently from her head. That's a strong indication of 22 intoxication. 23 Even in spite of all of those difficulties 24 following the instructions, the officer was still able to 25 observe the four clues that reach that decision point that [26] Closing Statement by Mr. Wilson December 3, 2013 1 he talked about yesterday. And remember that these clues, 2 this standard of -- standard eye movement is completely 3 involuntary. There are only a few things that cause that. 4 And she told the officer that she did not have any head 5 injuries and not been involved in any sort of accidents. 6 It was alcohol that caused that staggered eye movement. 7 Next, we get to the other standardized field 8 sobriety tests which she refused to perform. And I don't 9 have to remind you the kind of back and forth that 10 occurred. Officer testified that these field sobriety 11 tests could have been performed in about five minutes. 12 Then she could have been on her way, using the restroom, 13 and they would have been over. But instead, she refused to 14 perform, and yet somehow she still claimed she had nothing 15 to drink and she told the officer that, you know what, in 16 spite of how she had to use the bathroom so bad that she 17 could not perform those divided attention tasks that are 18 part of the other standardized field sobriety tests. Yet 19 she says that she is safe to drive which we all heard is a 20 divided attention task. 21 Next, we have that inescapable smell of 22 alcohol. The officer asked her, why do I still smell the 23 strong odor of alcohol on your breath? And her response 24 was, I don't know why. He then asked her, did someone 25 spill a drink on you? I don't know. You think somebody [27] Closing Statement by Mr. Wilson December 3, 2013 1 with the normal use of their mental faculties would be able 2 to give a "yes" or "no" answer to the question, did 3 somebody spill a drink on you? She said, I don't know. 4 Next, we get to the intoxilyzer room. 5 Officer Corley, sure, yes, it is not on video when he asked 6 her to stand in that black box, but he testified yesterday 7 that he did deliver that instruction to her. And what you 8 saw, you saw her shoes were nearby the black box and she 9 was leaning against the counter. Officer Corley could prop 10 -- could lean against the podium if he so chose. He wasn't 11 under arrest. He wasn't having to follow another officer's 12 instructions. 13 And then the reason why we don't have any 14 evidence about alcohol concentration is because the 15 defendant chose to -- she refused to provide a specimen. 16 And even in spite of having that 180-day driver's license 17 suspension, you heard testimony yesterday, you saw a copy 18 blown up on the big screen of that statutory warning, 19 nowhere on its face does it say that there's the 20 possibility of getting an occupational driver's license. 21 So for all intents and purposes, that was not communicated 22 to her. You can't assume that she knew that that was an 23 option, though she can request a hearing at a later date. 24 What you have to know is that she was facing 180-day 25 suspension. That means that from December -- January, [28] Closing Statement by Mr. Wilson December 3, 2013 1 February, March, April, May, all of those months, license 2 suspended; not until June would she get it back. And she 3 even said on the video that she had a trial that following 4 week that she was preparing for. She faced the possibility 5 of not being able to legally drive to that trial. All for 6 the -- all because she didn't want to provide a specimen of 7 her breath, even though she said it, she had nothing to 8 drink that night. 9 I think the evidence is clear. This 10 defendant is guilty of driving while intoxicated, and I ask 11 you to find her guilty on the jury charge. 12 THE COURT: Thank you, counsel. 13 I've corrected the jury charge that I read 14 to you. There was two words that we repeated on page one, 15 and at the bottom of page one, I corrected how the reading 16 of the date appeared. Nothing else has been changed. 17 Any objections to those changes by the 18 prosecution? 19 MR. WILSON: No, Your Honor. 20 THE COURT: Any objection by the defense? 21 MR. BROOKS: No, Your Honor. 22 THE COURT: Lady and gentlemen of the jury, 23 you now have had all the evidence presented to you, you 24 heard closing argument on both sides. The case is 25 officially turned over to you. You can just leave those [29] 1 copies of your jury instructions in your chair or on the 2 railing. We'll pick them up. 3 This is the copy, your official copy. I've 4 signed it. I'm turning it over to the bailiff to give you. 5 When you're doing your deliberations if, for 6 some reason, one of you has to exit the room, leave the 7 room, for whatever reason, go to the bathroom, take a phone 8 call, you have to suspend your deliberations. No 9 discussions on this case can take place unless all six of 10 you are in the room together. 11 The case is officially turned over to you. 12 We await your decision. 13 Thank you. 14 THE BAILIFF: All rise. 15 (The jury exits.) 16 THE COURT: Note for the record that the 17 juror that was taking notes has left his notes in the 18 courtroom in the sealed envelope. 19 Everyone may be seated. 20 (Recess at 10:14 A M, resuming at 10:25 A M. 21 Defendant present.) 22 THE COURT: Back on the record in cause 23 number 002-80051-2013. State of Texas versus Mellannise 24 Henderson-Love. 25 Note for the record that the jury is not in [30] 1 the courtroom but all parties are present. 2 We've received a note from the jury. It 3 reads as follows: Dated 12-3-13 at 10:21 A M. Texas V M 4 Henderson. We, the jury, respectfully request a copy of 5 State's Exhibit A, comma, D V D for our review. Signed, 6 David Christopher, foreman. 7 The court intends to just have the bailiff 8 take back all of the admitted items. 9 Any objection to that from the state? 10 MR. WILSON: No, Your Honor. 11 THE COURT: Any from the defense? 12 MR. BROOKS: No, sir. 13 THE COURT: All right. So ordered. 14 Now, we may run into a situation. I don't 15 know whether or not that D V D is formatted to play on a D 16 V D player or if it requires the use of a computer. So 17 I've asked the bailiff to see if it would play on the D V D 18 player. If it does not, there is no mechanism in the jury 19 room for them to view it. We would be -- either have to do 20 one of two things: We would have to -- 21 THE BAILIFF: (Shakes head.) 22 THE COURT: The bailiff just walked in. It 23 will not play on the D V D player. 24 We will have to take a clean computer, 25 meaning one that doesn't have any files on it, and let them (Jury Not Present) [31] 1 play it on the laptop there in the jury deliberation room. 2 The downside to doing that is that you have 3 six people huddled around a very small 14, 15-inch screen 4 while trying to watch the video. The other option is to 5 bring them back into the courtroom, allow them to play it 6 on the giant in-court screen. The problem with that, 7 though, is all parties have to be in here, the state would 8 have to be in here in order to play the video. That would 9 mean the defense attorney, his client would also be allowed 10 to be in the courtroom, entitled to be in here. 11 I would order the courtroom sealed. We've 12 done this in the past. And I will order all parties not to 13 make any outward gestures, to say anything, not make any 14 facial gestures because you must remember that, 15 technically, this jury is in the deliberation state. 16 What recommendations would the state like to 17 offer in that respect? 18 MR. WILSON: State recommends that we play 19 the video for the jury here because they may not be able to 20 understand that there is -- how to view the video on full 21 screen. There's also a microphone input from the officer's 22 in-car microphone that has a lot of noise but does not 23 capture anything that is being said between the defendant 24 and the officer when they're out on the roadway. And so 25 all that microphone does is just make it difficult to hear (Jury Not Present) [32] 1 what's being said between the officer and the defendant. 2 And so I turned that microphone input off during playback 3 yesterday. So that way, it wouldn't interfere with the 4 discussion between the officer and the defendant. 5 THE COURT: What says the defense? 6 MR. BROOKS: Judge, I would like to suggest 7 that we bring the jury in here, have everything set up for 8 them to view and we can vacate the courtroom and let the 9 bailiff start it and then exit the courtroom. 10 THE COURT: Well, again, are you going to be 11 able to set it up before you hit play for the jury to see 12 or do you have to do anything in between that? 13 MR. WILSON: I think the bailiff could 14 expand it to full screen presentation and turn off that 15 problem microphone. 16 The other thing is that during playback in 17 trial, I switched -- I guess once the defendant was placed 18 in the patrol car, I switched from camera one to camera 19 two, but I think the bailiff could handle that very easily. 20 THE COURT: I'm not going to involve this on 21 the bailiff to try to handle. I'm going to allow both 22 parties to be in here. There's too many things that could 23 be important to either side or both that the jury saw 24 before that they may wonder why they're not seeing or 25 hearing now because the bailiff is trying to run a program (Jury Not Present) [33] 1 that the prosecution was running as far as switching 2 microphones, switching views, in-car camera views and 3 things of that nature, so I'm going to allow both sides to 4 be present. But I'm going to order the courtroom sealed. 5 Bailiff, lock the front door so that no one 6 comes into the courtroom. 7 THE BAILIFF: Yes, Your Honor. Judge, I 8 have the video. 9 THE COURT: Give it to the prosecution. 10 THE BAILIFF: Yes, sir. 11 THE COURT: Play the video the same way you 12 did yesterday during trial for the jury. 13 I'm ordering that all parties not say 14 anything, make any outward facial, you know, gestures or 15 anything else to this jury while they're in here. Just 16 play the video. 17 I'll ask the bailiff to ask the members of 18 the jury if they need to see the video again or maybe 19 portions of the video again. And based on their response, 20 we'll either play it again or they'll go back into 21 deliberation. 22 Any objection from the state? 23 MR. WILSON: None, Your Honor. 24 THE COURT: Any from the defense? 25 MR. BROOKS: No, Your Honor. (Jury Not Present) [34] 1 THE COURT: Bailiff, is the door locked? 2 THE BAILIFF: Yes, Your Honor. 3 THE COURT: All right. Queue up the video. 4 Bring the jury in. 5 THE BAILIFF: Yes, sir. 6 (Equipment is set up.) 7 THE BAILIFF: All rise. 8 (The jury enters.) 9 THE COURT: Bailiff, prepare to dim the 10 lights, please. 11 THE BAILIFF: Yes, Your Honor. 12 THE COURT: Members of the jury -- everyone 13 may be seated -- you are officially in deliberation at this 14 time. No one has the right to communicate with you. Due 15 to technical limitations, we cannot give you this D V D and 16 let you play it back in deliberation rooms because it 17 requires a computer to play it. It's not one that can be 18 played on a D V D player. So I either have to give you a 19 clean computer with a 14 and-a-half inch screen, the six of 20 you huddle around to try to see it on the screen, or we can 21 bring you back into the courtroom and play it for you on 22 the larger screen. I've chosen to do option B. 23 All parties -- it requires that the 24 prosecutor be here because the technology of this video 25 allows whoever is playing it to switch microphones and to (Jury Not Present) [35] 1 switch camera views. Sometimes you can see someone using 2 the camera that shoots outside of the vehicle, sometimes 3 there's a camera that's inside the vehicle and it can be 4 shot. Someone has to manipulate those options. 5 The state introduced the video. I'm going 6 to let them play it in same exact manner, same camera 7 views, same audio, same microphones as you saw yesterday. 8 Once it's been played, I'll have the bailiff 9 go up to you and meet you in the hallway. You can let the 10 bailiff know if there's a section you need to see again or 11 listen to again and we will bring you back in and let you 12 see it or hear it as many times as necessary. But no one 13 can communicate with you at this point. 14 I'm ordering the defendant, the defense 15 attorney, the prosecution, to say nothing during the 16 playing of this video and make no facial gestures. 17 At this time, the state will play the video. 18 (DVD published on the overhead screen.) 19 THE JUROR: Your Honor. Your Honor. 20 THE COURT: Pause the video. Take the jury 21 out in the hallway. Somebody was calling my name. See 22 what they want. 23 THE BAILIFF: All rise. 24 (The jury exits.) 25 THE COURT: You may be seated. [36] 1 (Recess at 10:58 A M, resuming at 10:59 A M. 2 Defendant present.) 3 THE COURT: Bailiff has told me that that's 4 all the portion of the video that the jury wished to see. 5 The jury is outside the courtroom. They will continue 6 their deliberations. And we'll stand in recess. 7 (Recess at 10:59 A M. resuming at 11:28 A M. 8 Defendant present.) 9 THE BAILIFF: All rise. 10 (The jury enters.) 11 THE COURT: Thank you. Everyone may be 12 seated. Let the record reflect the jury is back in the 13 courtroom. All parties are present. 14 Members of the jury, it's come to my 15 attention that you've reached a unanimous verdict. If in 16 fact that's the case, would the presiding juror please hand 17 that verdict to the bailiff. 18 Thank you, bailiff. 19 THE BAILIFF: Yes, sir. (Hands documents to 20 the court.) 21 THE COURT: Mr. David Christopher, you're 22 the presiding juror? Would you please stand and read the 23 verdict aloud. 24 The defendant please rise. 25 (The bailiff hands documents to the juror.) (Jury Not Present) [37] 1 THE JUROR: Your Honor, the State of Texas 2 versus Mellannise Henderson. We, the jury, find the 3 defendant guilty of driving while intoxicated as charged. 4 THE COURT: Thank you. You may have a seat. 5 Members of the jury, as we stated to you 6 earlier, in every criminal case, the defendant enjoys the 7 exclusive right to determine who will do their punishment 8 if they're found guilty. In this case, Ms. Henderson-Love 9 has chosen to have the court administer the punishment. 10 I'll do that in the second part of this trial. 11 This concludes your duty to the county. I 12 make it a practice to come back and thank the jury after 13 every trial, also to answer any questions you may have 14 about the process, and to see if there's any constructive 15 critique you can give us on how we can make this a better 16 process for the next jury. Thank you very much for your 17 service to the county. 18 Bailiff, would you please take the jury 19 back. I'll be back in less than 30 seconds. 20 THE BAILIFF: Yes, Your Honor. All rise. 21 (The jury exits.) 22 THE COURT: Thank you. You may be seated. 23 Does either side intend to offer any 24 evidence or testimony in the punishment phase? 25 MR. WILSON: Not from the state, Your Honor. [38] 1 MR. BROOKS: Not from the defense, Your 2 Honor. 3 THE COURT: None? 4 MR. BROOKS: No, sir. 5 THE COURT: I'll go thank the jury. They 6 sometimes want to talk to the attorneys -- or maybe not 7 want to, maybe not the best way to describe it. Willing 8 to. So I'll ask them if they want to take the time to talk 9 to the attorneys and see if they have anything to offer, 10 any insight. I'll be back momentarily. 11 (Recess at 11:30 A M, resuming at 11:52 A M. 12 Defendant present.) 13 PUNISHMENT PHASE 14 THE COURT: All right. Back on the record 15 in cause number 002-80051-2013. State of Texas versus 16 Mellannise Henderson-Love. The jury having returned a 17 verdict of guilty, now move to the punishment phase. 18 Does the state want to offer any testimony 19 or evidence in regard to punishment? 20 MR. WILSON: No, Your Honor. 21 THE COURT: Does the defense wish to offer 22 any evidence or testimony with regard to punishment? 23 MR. BROOKS: Other than to reurge that 24 Ms. Henderson filed her application for community 25 supervision saying she has no prior felony convictions. (Jury Not Present) [39] 1 THE COURT: All right. Thank you. 2 Both sides rest and close? 3 MR. WILSON: State closes. 4 MR. BROOKS: Defense closes. 5 THE COURT: Have you reached an agreement or 6 do you want to be heard with regard to punishment? 7 MR. WILSON: We have reached an agreement, 8 Your Honor. 9 THE COURT: Who wants to recite the 10 agreement? 11 MR. WILSON: I'll be happy to, Your Honor. 12 THE COURT: Proceed. 13 MR. WILSON: The agreed punishment is going 14 to be $900 fine, 90 days in jail, probated for 12 months, D 15 W I education, Victim Impact Panel, substance abuse 16 education plus conditions -- or, substance abuse evaluation 17 plus conditions, no alcohol, mandatory breath and blood, 24 18 hours community service, and one-time donation of $50 to 19 Crime Stoppers. 20 THE COURT: How much to Crime Stoppers? 21 MR. WILSON: Fifty dollars. 22 THE COURT: Ms. Henderson-Love, the jury 23 having found you guilty, the court now will assess your 24 punishment. I see no evidence of any prior convictions in 25 any state or federal, therefore, I'm going to follow the (Jury Not Present) [40] 1 agreement. 2 I'm sentencing you to 90 days in the Collin 3 County jail, however, that will be suspended and you'll be 4 on probation, community supervision, for a period of 12 5 months. I'm going to order you to pay a $900 fine plus 6 court costs. Complete a D W I education course, a Victim 7 Impact Panel class, you'll have to take a substance abuse 8 evaluation and comply with recommendations that come out of 9 that evaluation. If asked to provide a sample of your 10 breath or blood by your probation officer or any law 11 enforcement officer, you'll have to do that; otherwise, it 12 will constitute a violation of your probation. You are 13 ordered to pay $50 to the Collin County Crime Stoppers, and 14 you are prohibited from consuming any alcohol, even in the 15 privacy of your own home, while you're on probation over 16 the next 12 months. 17 Do you have any questions for the court? 18 THE DEFENDANT: I do not, Your Honor. 19 THE COURT: Okay. Ms. Henderson-Love, as I 20 was telling the jury, this is one of those offenses that 21 doesn't require mens rea. Good people often find 22 themselves guilty of this type of an offense because by the 23 mere nature of how D W I works, the more alcohol you 24 consume, the less able you are to evaluate your own 25 condition. (Jury Not Present) [41] 1 I would ask and hope that you look at that 2 video and not concentrate on the fact that you were found 3 guilty of this offense, but be thankful for the fact that 4 no one was hurt. 5 I assure you that people like the Dallas 6 Cowboy football player who killed his best friend would 7 love to be in your shoes instead of his own. You couldn't 8 see the officer's car. You were obviously unaware it was 9 there. You're obviously a very-well educated woman: 10 You're a high school graduate, a college graduate, a law 11 school graduate. The officer had to tell you 21 times 12 according to my count, hold your head still, do you know 13 what that means, and you said, I don't understand. So I 14 believe you may have had quite a bit to drink that night 15 and that's why he could smell the strong odor of alcohol on 16 your breath. 17 But once again, this isn't the type of 18 offense that requires a person to be a bad person. It's 19 not like you intended to do anything wrong. I wish you the 20 best of luck. 21 Anything else from either side? 22 MR. WILSON: Not from the state, Your Honor. 23 MR. BROOKS: No, Your Honor. 24 THE DEFENDANT: Thank you, Your Honor. 25 THE COURT: If you'll just have a seat, (Jury Not Present) [42] 1 we'll have the officer do the fingerprinting and do the 2 judgment and sentencing, and you'll be on your way. 3 You live in Collin County; correct? 4 THE DEFENDANT: I do, judge. 5 THE COURT: All right. 6 (Adjourned at 11:57 A M. End of 7 proceedings.) [25] (Jury Not Present) [43] 1 STATE OF TEXAS ) 2 COUNTY OF COLLIN ) [3] 4 I, Marigay Black, Official Court Reporter in and for 5 the County Court at Law Number Two, County of Collin, State 6 of Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all portions 8 of evidence and other proceedings requested in writing by 9 counsel for the parties to be included in this volume of 10 the Reporter's Record in the above-styled and numbered 11 cause, all of which occurred in open court or in chambers 12 and were reported by me. 13 I further certify that this Reporter's Record of the 14 proceedings truly and correctly reflects the exhibits, if 15 any, offered by the respective parties. 16 Signed this 26th day of March, 2014. [17] 18 /S/ Marigay Black 19 MARIGAY BLACK, Texas CSR 351 Official Court Reporter 20 County Court at Law Number Two Suite 10344 21 2100 Bloomdale Road McKinney, Texas 75071 22 Tel: 972-548-3823 FAX: 972-548-3828 23 Expiration: 12/31/2014 mblack@co.collin.tx.us [25] 2/5/2015 Envelope Details Print this page Envelope 3975720 Case Information Location Court Of Criminal Appeals Date Filed 01/31/2015 06:22:54 PM Case Number Case Description Assigned to Judge Attorney Mellannise Henderson Love Firm Name Law Office of Mellannise Henderson Love Filed By Mellannise Henderson Love Filer Type Not Applicable Fees Convenience Fee $0.09 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $3.00 Total Provider Tax Fees $0.25 Grand Total $3.34 Payment Account Name Mellannise Transaction Amount $3.34 Transaction Response Transaction ID 6545349 Order # 003975720­0 Petition for Discretionary Review Filing Type EFileAndServe Filing Code Petition for Discretionary Review Filing Description Petition for Discretionary Review Reference Number 2001 Brief was also attached to Motion for Extension of Comments Time Status Rejected Fees Court Fee $0.00 https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=72d0e1fc­2e48­4474­b6d7­1c94d4d10e7d 1/2 2/5/2015 Envelope Details Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason 02/04/2015 The petition for discretionary review does not contain a certification of Other 11:55:36 compliance with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not AM contain a copy of the court of appeals opinion. Documents Attachments Collin­002­80051­2013­RR­Vol001.pdf [Original] Attachments Collin­002­80051­2013­RR­Vol002.pdf [Original] Attachments Collin­002­80051­2013­RR­Vol003.pdf [Original] Attachments Collin­002­80051­2013­RR­Vol004.pdf [Original] Lead Document Petition_Discretionary_Review.pdf [Original] eService Details Date/Time Name/Email Firm Service Type Status Served Opened Mellannise Henderson Law Office of Love Mellannise EServe Sent Yes Not Opened Mhendersonlaw@aol.com Henderson Love https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=72d0e1fc­2e48­4474­b6d7­1c94d4d10e7d 2/2