explaining that “judicial power does not include the power to issue advisory opinions” which result “when a court attempts to decide an issue that does not arise from an actual controversy capable of a final adjudication.”
How later courts described this case
- explaining that “judicial power does not include the power to issue advisory opinions” which result “when a court attempts to decide an issue that does not arise from an actual controversy capable of a final adjudication.”
- explaining when a judge’s “own colleagues believed there would be at least an appearance of impropriety” if the judge presided over a case involving a particular attorney it would lead a reasonable person to harbor doubts as to the judge’s impartiality
Written by the judges who cited it.
The opinion
PD-0241-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/4/2015 4:20:51 PM
PD-0241-15 Accepted 3/4/2015 6:29:05 PM
MARCH 5, 2015 Cause No. ___________ ABEL ACOSTA
CLERK
In the Court of Criminal
Appeals of Texas
Antonio Leija, Jr.,
Appellant
v.
State of Texas,
Appellee
On Review from Cause No. 02-13-00473-CR
in the Second Court of Appeals
Fort Worth, Texas
State’s Petition for Discretionary Review
Maureen Shelton John W. Brasher
Criminal District Attorney Special Prosecutor
Wichita County, Texas 900 8th Street, Suite 415
State Bar No. 24076904 State Bar No. 02907800
Maureen.Shelton@co.wichita.tx.us brasherappeals@gmail.com
900 8th Street
John Gillespie Wichita Falls, Texas 76301
First Asst. Criminal District Attorney (940) 244-0244 phone
Wichita County, Texas (940) 244-0245 fax
State Bar No. 24083252
John.Gillespie@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 716-8530 fax Oral Argument Requested
Identity of Parties and Counsel
Hon. Judge Barney Fudge
Judge, 78th District Court of Wichita County
Cause No. 52,563-B
Antonio Leija, Jr., Appellant
TDCJ #01874593
West Texas Intermediate Sanction Facility
2002 Lamesa Hwy
Brownfield, Texas 79316
Michael Payne
Counsel for Antonio Leija on appeal
1211 Bluff Street
Wichita Falls, TX 76301
Maureen Shelton
Criminal District Attorney
Wichita County
Attorney for the State
900 Seventh Street
Wichita Falls, Texas 76301
John Gillespie
First Assistant Criminal District Attorney
Wichita County
Attorney for the State
900 Seventh Street
Wichita Falls, Texas 76301
John Brasher
Special Prosecutor
Attorney for the State before the C.C.A.
900 8th Street
Wichita Falls, Texas 76301
ii
Table of Contents
Identify of Parties and Counsel ................................................................... ii
Table of Contents .......................................................................................iii
Index of Authorities ..................................................................................... v
Statement of the Case .............................................................................. viii
Statement Regarding Oral Argument ........................................................ viii
Procedural History ..................................................................................... ix
Questions Presented for Review ................................................................xii
Argument .................................................................................................... 1
1. Recusal is required because half of Justice Dauphinot’s
colleagues—including Chief Justice Livingston—believe she
has expressed such a significant antagonism toward the
WCDA that she no longer appears to be fair and impartial ....... 1
2. Recusal is required because Justice Dauphinot applies a
different set of rules when the WCDA is a party than she
applies in other cases. .............................................................. 3
3. Recusal is required because, regardless of her motivations,
by speaking out and plainly stating that she has formed a
negative opinion about the WCDA that influences her on
every case, Justice Dauphinot departed the realm of
impartial judging and improperly entered the realm of
advocacy. ................................................................................. 8
4. Recusal is required because Justice Dauphinot’s bias was
clearly revealed by her astounding claim that she can
discern a discovery abuse from a case where the issue was
neither preserved nor reached by the court of appeals. .......... 11
iii
5. Recusal is required because Justice Dauphinot’s lack of
fairness is evidenced by her sweeping advisory
pronouncement of a pattern of constitutional abuse when
this alleged pattern A) was not an active controversy before
her; B) was not necessary to the determination of the
appeal; and C) when the WCDA had no opportunity to
provide testimony, evidence, or briefing on such a
consequential accusation. ...................................................... 14
6. Recusal is required because the timing of Justice
Dauphinot’s abject lack of judicial fairness in Roberson
suggests it may have been retaliatory and motivated by the
State prevailing on its motion for en banc reconsideration in
the Joe Johnson case after the State referred to her
memorandum opinion’s drastic departure from the trial
record as “troubling.”............................................................... 18
Prayer ....................................................................................................... 20
Certificate of Compliance .......................................................................... 22
Certificate of Service ................................................................................. 22
iv
Index of Authorities
Cases Page
BNSF Railway Co. v. Phillips, 434 S.W.3d 675 (Tex. App.—Fort
Worth 2014, pet. filed) ....................................................................... 5
Brazzell v. State, 481 S.W.2d 130 (Tex. Crim. App. 1972) .......................... 4
Caldwell v. Texas, 137 U.S. 692 (1891) .................................................. 3, 8
Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014) ........................... 6
Garrett v. State, 749 S.W.2d 784 (Tex. Crim. App. 1988) ......................... 14
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ........................... 6
In re Murchison, 349 U.S. 133 (1955) ................................................... 2, 18
In the Interest of M.C.B., 400 S.W.3d 630 (Tex. App.—Dallas 2013,
no pet.) ............................................................................................ 16
Johnson v. State, 2013 WL 531079 (Tex. App.—Fort Worth Feb. 14,
2013) (mem. opinion) ....................................................................... 19
Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345 (Tex.
App.—Fort Worth Oct. 9, 2014) (en banc) ................................... 1, 19
Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no
pet.) ................................................................................................... 7
Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—
Fort Worth June 4, 2009, no pet.) .............................................. 12, 13
Likety v. U.S., 510 U.S. 540 (1994) ........................................................... 11
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ...................... 14, 16
Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]
1988—pet. ref’d) .............................................................................. 11
v
Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet.
ref’d) ................................................................................................ 17
Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex.
App.—Fort Worth Jan. 8, 2015, no pet. h.) ............................... passim
Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) ......................................... 1
State v. Stevenson, 993 S.W.2d 857 (Tex. App.—Fort Worth 1999,
no pet.) .............................................................................................. 8
State v. Taylor, 264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no
pet.) ................................................................................................. 13
State v. Woodard, 314 S.W.3d 86 (Tex. App.—Fort Worth 2010, pet.
filed), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011) .......................... 6
U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) .................................... 2
Statutes
Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014) .................. 17
Rules
Tex. Code Jud. Conduct, Preamble ............................................................ 3
Tex. Code Jud. Conduct, Canon 3(B)(4) ................................................... 10
Tex. Code Jud. Conduct, Canon 3(B)(5) ..................................................... 3
Tex. R. App. P. 9.4(i)(1) ............................................................................ 22
Tex. R. App. P. 16.3(c) ..............................................................................vii
Tex. R. App. P. 33.1.................................................................................. 11
Tex. R. App. P. 44.4.................................................................................. 16
vi
Tex. R. App. P. 47.1.............................................................................. 8, 16
Tex. R. App. P. 68 .....................................................................................vii
Tex. R. App. P. 68.2(a) .............................................................................. xi
vii
Statement of the Case
The State is asking for this Court to review the Second Court of
Appeals’ 4-3 decision on its motion to recuse Justice Dauphinot. As
Justice Dauphinot has irrevocably compromised any appearance of
impartiality toward the Wichita County District Attorney (“WCDA”), the State
asks this Court to grant review pursuant to Rule 68 and Rule 16.3(c) of the
Texas Rules of Appellate Procedure, and to order recusal of Justice
Dauphinot.
Statement Regarding Oral Argument
The State respectfully requests Oral Argument. The WDCA and her
staff appreciate the gravity of this situation. The WCDA has always had
great respect and an excellent working relationship with the Second Court
of Appeals and its honorable justices.
Thus, it was astonishing that Justice Dauphinot accused the WCDA
and her attorneys of a pattern of constitutional discovery abuses in a
dissent in a published opinion.1 As this alleged pattern of abuse was not
an issue before the trial court, the WCDA had no opportunity to provide
evidence to rebut the allegations and no forum for appeal since the WCDA
1
See Roberson v. State, No. 02-13-00582-CR, 2015 WL 148476 (Tex. App.—Fort
Worth Jan. 8, 2015, no pet. h.) (Dauphinot, J. dissenting)
viii
had prevailed on the merits.2
Not only does the WCDA deny, in the strongest terms possible,
Justice Dauphinot’s inappropriate, incendiary, and unsupported allegations
that her office engages in a pattern of discovery abuses with constitutional
dimensions, but the WCDA also requests the courtesy of being able to
openly address any question by any judge on this Honorable Court as to
why the WCDA had no choice but to seek Justice Dauphinot’s recusal.
The WCDA does not seek a recusal lightly. Yet, the ramifications of
this dissent are too serious to ignore: questions about the integrity of the
criminal justice system, potential disciplinary and licensure issues, potential
civil claims, and wrongfully sullied reputations. Because of these significant
ramifications, the WCDA requests Oral Argument.
Procedural History
Appellant appealed to the Second Court of Appeals and Justice
Dauphinot was assigned to the panel.3 While the appeal was pending, the
Second Court released Ex Parte Roberson on January 8, 2015.4 In
Roberson, Justice Dauphinot issued a vitriolic dissent that made many
2
Id.
3
See Letter from Debra Spisak to Parties regarding submission (April 1, 2014),
available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b-
4a30-a6c8-72575b047add (last visited March 4, 2015).
4
Roberson, 2015 WL 148476, at *5-6 (Dauphinot, J. dissenting).
ix
unfounded allegations against the WCDA and even alleged a pattern of
discovery abuses of constitutional proportions.5
As her dissent has dispelled any notion that she could be fair to the
WCDA, on January 21, 2015, the WCDA filed a motion to recuse Justice
Dauphinot.6
On January 26, 2015, the Second Court announced that Justice
Dauphinot’s six remaining colleagues could not reach a decision on
recusal.7 Half of Justice Dauphinot’s colleagues believed that the WCDA
met the standard for recusal.8 Chief Justice Hecht appointed a justice to
break the tie.9
On February 26, 2015, the Second Court denied the motion to recuse
on a highly-divided 4-3 vote.10 On February 27, 2015, the WCDA asked
the Second Court to stay the issuance of opinions in this case and notified
the Second Court of its intent to appeal under T.R.A.P. 16.3(c).
5
Id. at *5.
6
See Docket Sheet for Leija v.State, No. 02-13-00473-CR in the Second Court of
Appeals of Texas, available at http://www.search.txcourts.gov/Case.aspx?cn=02-13-
00473-CR (last visited Mar. 4, 2015);
7
See Letter from Chief Justice Livingston to Chief Justice Hecht (January 26,
2015), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5eee4ad1-a306-
41c8-a450-23d5860bdecb (last visited Mar. 4, 2015).
8
Id.
9
See Letter from Debra Spisak to Parties regarding appointment of visiting justice
(Feb. 3, 2015), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3dfdc6bb-4bd2-
413e-8e0c-8f364fb5d33f (last visited Mar. 4, 2015).
10
State’s Attachment A, Order denying Motion to Recuse.
x
The State timely files this Petition for Discretionary Review under
Tex. R. App. P. 16.3(c) which states that “the denial of a recusal motion is
reviewable.” Section 5(b) of the Texas Constitution states that for all
matters other than death penalty appeals; thus, review by the Court of
Criminal Appeals is discretionary, the State respectfully requests review of
the recusal decision under Tex. R. App. P. 68.2(a) as Justice Dauphinot
has irrevocably compromised any appearance of fairness toward the
WCDA.
xi
Questions Presented for Review
(1) Is recusal required when half of Justice Dauphinot’s colleagues—
including Chief Justice Livingston—believe she has expressed such a
significant antagonism toward the WCDA that she no longer appears to be
fair and impartial?
(2) Is recusal required because Justice Dauphinot applies a different
set of rules when the WCDA is a party than she applies in other cases?
(3) Is recusal required when, regardless of her motivations, by
speaking out and plainly stating that she has formed a negative opinion
about the WCDA that influences her on every case, Justice Dauphinot
departed the realm of impartial judging and improperly entered the realm of
advocacy?
(4) Is recusal required because Justice Dauphinot’s bias was clearly
revealed by her astounding claim that she can discern a discovery abuse
from a case where the issue was neither preserved nor reached by the
court of appeals?
(5) Is recusal required because Justice Dauphinot’s lack of fairness to
the WCDA is evidenced by her sweeping advisory pronouncement of a
pattern of constitutional abuse when this alleged pattern A) was not an
active controversy before her; B) was not necessary to the determination of
the appeal; and C) the WCDA had no opportunity to provide testimony,
evidence, or briefing on such a consequential accusation?
(6) Is recusal required because the timing of Justice Dauphinot’s
abject lack of judicial fairness in Roberson suggests it may have been
retaliatory and motivated by the State prevailing on its motion for en banc
reconsideration in the Joe Johnson case after the State referred to her
memorandum opinion’s drastic departure from the trial record as
“troubling”?
xii
Argument
1. Recusal is required because half of Justice Dauphinot’s
colleagues—including Chief Justice Livingston—believe she has
expressed such a significant antagonism toward the WCDA that
she no longer appears to be fair and impartial.
Chief Justice Terrie Livingston, Justice Sue Walker, and Justice Lee
Gabriel all voted to recuse Justice Dauphinot.11 Half of Justice
Dauphinot’s six colleagues on the Second Court believe that, based upon
the dissent in which she expresses negative general opinions about the
WCDA and departs from guiding judicial principles, she should not hear
cases involving the WCDA. Additionally, these justices were aware of the
background on the initial memorandum opinion authored by Justice
Dauphinot in the Joe Johnson appeal (Johnson I) and all participated in the
en banc reconsideration (Johnson II) that forms much of the context to the
State’s recusal motion.12
Recusal is required when “a reasonable member of the public at
large, knowing all the facts in the public domain concerning the judge and
the case, would have a reasonable doubt that the judge is actually
impartial.”13 A reasonable member of the public at large would certainly
11
State’s Attachment A.
12
Johnson v. State, No. 02-11-00253-CR, 2014 WL 5583345, at *1 (Tex. App.—
Fort Worth Oct. 9, 2014) (en banc) (Johnson II).
13
Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995).
1
have a reasonable doubt that a justice is actually impartial upon hearing
that half of the justice’s colleagues—including her Chief Justice—doubt her
ability to be fair and impartial.14
Importantly, the Fifth Circuit has emphasized that when a judge’s own
colleagues publicly express a lack of confidence in the judge’s ability to
appear impartial with a particular attorney or party, this factor militates in
favor of recusal.15
Additionally, Due Process requires a neutral and detached hearing
officer.16 As these Due Process rights are paramount, when half of a
justice’s colleagues are willing to go on record and vote for recusal, this
Court should seriously consider these justices’ concerns.17
These three justices’ courage to publicly vote against Justice
Dauphinot heavily militates for recusal.18 Such an important matter with
Due Process implications should not be left to a closely divided 4-3 vote.
Permitting the decision to stand would cause serious questions to linger
about Justice Dauphinot’s impartiality. Thus, this Court should grant review
14
See State’s Attachment A.
15
See U.S. v. Bremers, 195 F.3d 221, 227 (5th Cir. 1999) (explaining when a
judge’s “own colleagues believed there would be at least an appearance of impropriety”
if the judge presided over a case involving a particular attorney it would lead a
reasonable person to harbor doubts as to the judge’s impartiality).
16
In re Murchison, 349 U.S. 133, 136 (1955).
17
See, e.g., U.S. v. Bremers, 195 F.3d at 227.
18
Id.
2
and examine the evidence that lead Chief Justice Livingston, Justice
Walker, and Justice Gabriel—all well-respected jurists—to conclude that
their colleague should be recused.
2. Recusal is required because Justice Dauphinot applies a
different set of rules when the WCDA is a party than she applies
in other cases.
Justice Dauphinot applies a different set of rules when the WCDA is a
party than in other cases. The Code of Judicial Conduct requires judges to
fairly apply the law without prejudice or bias toward any party.19
Foundational to American justice is the idea of “equal and impartial justice
under the law” which is accomplished when “the laws operating on all
alike.”20 Applying different standards to different parties is the antithesis of
“an equal and impartial justice under the law.”21
Comparing Justice Dauphinot’s dissent in Roberson to her prior
jurisprudence demonstrates that she applies a markedly different standard
to the WCDA than to other litigants.
First, Justice Dauphinot treats motion in limine rulings differently with
the WCDA. In Roberson to support her theory that the State intentionally
prompted a mistrial, she conflates a ruling on a motion in limine with an
19
Tex. Code Jud. Conduct, Preamble & Canon 3(B)(5).
20
Caldwell v. Texas, 137 U.S. 692 (1891).
21
Id.
3
evidentiary ruling on admissibility.22 A motion in limine is not a ruling on
admissibility.23 Yet, Justice Dauphinot states “[t]he trial judge ruled that the
notice of extraneous acts of misconduct that the State intended to offer into
evidence was untimely and that the evidence, presumably, were
inadmissible.”24
When he granted the limine, the trial judge said: “Without hearing
[the witnesses], I’d be inclined to say they might have had previous contact
or something like that that’s how they recognized. But to go any further
might be a problem. But we’ll discuss that. So I’ll go ahead and grant that
limine on that ground. Make sure you come up before you start with
them.”25
For the WCDA, Justice Dauphinot considers a motion in limine an
evidentiary ruling “that the notice of extraneous acts of misconduct that the
State intended to offer into evidence was untimely” and that the evidence
was inadmissible.26 Yet, the trial judge had made no ruling beyond
requiring the parties to approach.27
22
Roberson, 2015 WL 148476 at *5-9.
23
Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972).
24
Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting) (emphasis added).
25
See State’s Attachment B, III R.R. at 6 (transcript excerpts in Roberson).
26
Roberson, 2015 WL 148476 at *8 (Dauphinot, J., dissenting).
27
See State’s Attachment B, III R.R. at 4-14 (hearing on motions in limine in
Roberson).
4
With other parties, she applies a different (and correct) standard to
limine rulings: “The granting of a motion in limine is not a ruling on the
admissibility of the evidence and does not preserve error. A motion in
limine simply prohibits references to specific issues without first obtaining a
ruling on the admissibility of those issues outside the presence of the
jury.”28 Justice Dauphinot clearly understands the difference between a
ruling on a motion in limine and an evidentiary ruling.29 Indefensibly, she
applies a different standard with to WCDA.
Second, Justice Dauphinot applies a different standard of assessing
credibility determination with to WCDA. In Roberson, she states that
“[u]nlike trial judges, who primarily see only the conduct in the courtrooms
over which they preside, appellate courts are presented with records from
other courts in that county…Appellate judges are in a better position than
the trial judge to see patterns of conduct.”30 Thus, she begins her dissent
by stating why she believes she is in a better position than the trial judge to
know what was really going on in his courtroom.
Justice Dauphinot cites the trial judge’s credibility determination of
Investigator Cavinder: “And I’m not casting fault on Investigator Cavinder at
28
BNSF Railway Co. v. Phillips, 434 S.W.3d 675, 699 (Tex. App.—Fort Worth
2014, pet. filed) (opinion authored by J. Dauphinot).
29
Id.
30
Roberson, 2015 WL 148476 at *5-6. (Dauphinot, J., dissenting).
5
all. I understand that was an honest mistake. I completely believe that he
believed he was speaking to Ms. Steele.”31 Then, Justice Dauphinot
promptly discards this credibility determination and instead substitutes her
own judgment: “The record casts doubt on Cavinder’s testimony
concerning his own knowledge.”32 Despite the trial judge stating on the
record that he was not casting fault on Cavinder, that it was an “honest
mistake” and that he completely believed Cavinder, Justice Dauphinot
instead implicitly calls Cavinder a liar and relates that she does not believe
him.33 For the WCDA, Justice Dauphinot rejects the trial judge’s credibility
determination.34
With other parties, Justice Dauphinot applies a different (and correct)
standard: “We cannot and must not substitute our determination of the facts
and the credibility of the witnesses in order to achieve the result we believe
the trial court should have reached.”35 Additionally, Justice Dauphinot has
explained the deference an appellate judge owes the trial judge: “When
the findings are based on an evaluation of a witnesses’ credibility and
31
Id. at *7.
32
Id. at *7.
33
Id. at *8.
34
See Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014); Guzman v.
State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
35
See, e.g., State v. Woodard, 314 S.W.3d 86, 100 (Tex. App.—Fort Worth 2010,
pet. filed) (Dauphinot, J., dissenting), aff’d, 341 S.W.3d 404 (Tex. Crim. App. 2011).
6
demeanor, the appellate court should afford almost total deference to the
trial court’s fact findings.”36
Third, Justice Dauphinot ignores binding precedent of the Court of
Criminal Appeals when the WCDA is the party.37 While Justice Dauphinot
in Roberson recites that this Court requires proof that the prosecution
intended to cause a mistrial for jeopardy to bar a second prosecution, she
ignores that standard in favor of her own standard: “At some point,
appellate courts must hold that the conduct is so egregious that the party
cannot avoid its consequences.”38 Instead of applying the Court of Criminal
Appeals factors in Ex parte Wheeler (as the majority opinion does), Justice
Dauphinot ignores the Wheeler factors and seeks to apply her own
standard formulated ad hoc, unmoored from the precedent of the Court of
Criminal Appeals.39 This is not a situation where Justice Dauphinot simply
disagrees with the majority about the particular Wheeler factors or how
much weight to give them; rather, Justice Dauphinot would reverse the
case without reference to Wheeler.40
36
See Jordy v. State, 969 S.W.2d 528, 532 (Tex. App.—Fort Worth 1998, no pet.)
(J. Dauphinot).
37
Roberson, 2015 WL 148476 at *5-9 (Dauphinot, J., dissenting).
38
Id. at *5.
39
Id. at *10-11 (Dauphinot, J., dissenting).
40
Id.
7
Conversely, with other litigants, Justice Dauphinot carefully applies
binding precedent of this Court, explaining that “Because a decision of the
court of criminal appeals is binding precedent, we are compelled to comply
with its dictates.”41
This disparate treatment of the WCDA versus other parties is the
antithesis of “the laws operating on all alike.”42 These concrete, undeniable
examples of a separate set of rules for the WCDA are likely why half of
Justice Dauphinot’s colleagues believe she should be recused.
3. Recusal is required because, regardless of her motivations, by
speaking out and plainly stating that she has formed a negative
opinion about the WCDA that influences her on every case,
Justice Dauphinot departed the realm of impartial judging and
improperly entered the realm of advocacy.
Rather than limit her dissent to the issues before the court in
Roberson, as required by the T.R.A.P. 47.1,43 Justice Dauphinot vividly
expresses general opinions that she has formed against the WCDA. First,
as she directs her dissent to the popular, yet unclothed emperor (the
District Attorney), it is clear this dissent is about far more than the issues
before the Second Court in Roberson.44 Justice Dauphinot confirms this in
the second paragraph: “[a]ppellate judges are in a better position than trial
41
State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.)
(J. Dauphinot).
42
Caldwell v. Texas, 137 U.S. 692 (1891).
43
Tex. R. App. P. 47.1.
44
Roberson, 2015 WL 148476 at *1-9.
8
judges to see patterns of conduct.”45 Justice Dauphinot then casts this
case as part of an observed pattern: “appellate judges have an obligation to
speak up when observed patterns show a course of conduct at odds with
constitutional mandates and fundamental fairness.”46
It is clear from Justice Dauphinot’s own words that she is looking
beyond the record in this case to “observed patterns” and that these
“observed patterns” have prompted her to “speak up” and tell the popular,
yet unclothed emperor that her office is “at odds with constitutional
mandates and fundamental fairness.”47
Justice Dauphinot concludes her dissent by placing Roberson within
an observed pattern by citing Dabney v. State, Pitman v. State, and Juarez
v. State.48 Justice Dauphinot could not be clearer: she would not decide
Roberson just on the record before the court, but would use an “observed
pattern” as her rationale for deciding the case and impugning the
motivations and integrity of the WCDA and staff, including the
misdemeanor prosecutor and investigator.49 Thus, Justice Dauphinot has
45
Roberson, 2015 WL 148476 at *5 (Dauphinot, J., dissenting).
46
Id. at *5-6. (emphasis added).
47
Id.
48
Id. at *5-9.
49
Id.
9
admitted she has formed opinions about the WCDA that she carries from
case-to-case that influence her judgment and even outweigh the record.50
First, her dissent reveals she has departed the realm of appellate
judging and entered the realm of advocacy because she ignores T.R.A.P.
47.1’s limitation of an appellate court decision to the issues “raised and
necessary to final disposition of the appeal.” Rather, her dissent far
exceeds the issues necessary to decide whether jeopardy bars a re-trial.51
Second, she characterizes herself as needing to “speak-up” and tell a
popular, yet naked emperor a few things about a pattern of discovery
abuses.52 This is an odd tone for a supposedly dispassionate appellate
justice required by the Texas Code of Judicial Conduct to be “dignified and
courteous to litigants…with who the judge deals.”53
Regardless of Justice Dauphinot’s subjective motives for needing to
“speak-up” against the WCDA, by becoming an advocate and expressing
her general, negative opinion about the WCDA, she has compromised her
ability to treat the WCDA fairly.
As Justice Kennedy has explained, “A judge may find it difficult to put
aside views formed during some earlier proceeding. In that instance we
50
Id.
51
Id.
52
Id. at *5.
53
Tex. Code Jud. Conduct, Canon 3(B)(4).
10
would expect the judge to heed the judicial oath and step down, but that
does not always occur. If through obduracy, honest mistake or simple
inability to attain self-knowledge the judge fails to acknowledge a
disqualifying predisposition or circumstance, an appellate court must order
recusal…”54 Texas courts have also long-recognized that when a judge
articulates such a predisposition against a party, recusal is required.55
Justice Dauphinot’s dissent demonstrates exactly such a disqualifying
predisposition toward the WCDA.
4. Recusal is required because Justice Dauphinot’s bias was
clearly revealed by her astounding claim that she can discern a
discovery abuse from a case where the issue was neither
preserved nor reached by the court of appeals.
Justice Dauphinot’s citation of Juarez v. State as a “similar decision”
(i.e. case) where the WCDA made a “conscious decision” to violate a
discovery order is astounding.56
Texas law requires alleged error to be preserved by a timely objection
before an appellate court will reach the ultimate issue.57 Without a timely
objection, the appellate court will not reach the merits.58
54
Likety v. U.S., 510 U.S. 540 (1994) (J. Kennedy, concurring).
55
See, e.g., Norton v. State, 755 S.W.2d 522 (Tex. App.—Houston [1st Dist.]
1988—pet. ref’d) (finding judge’s statement, which was tantamount to pre-judging a
party, “was evidence of bias sufficient to require recusal.”).
56
Roberson, 2015 WL 148476 at *5-9.
57
Tex. R. App. P. 33.1.
58
Id.
11
While this is basic legal procedure that any long-tenured appellate
justice understands, Justice Dauhpinot’s actions in not following these
basic prescripts in misusing Juarez proclaim her blatant unfairness to the
WCDA.59
Although Justice Dauphinot cites Juarez as a “disturbing” example of
a “conscious decision” of the WCDA “withholding mandated discovery,” a
fair reading of Juarez shows no such discovery abuse.60
In Juarez, after a revocation hearing at which appellant’s court
ordered sex offender treatment provider testified, appellant complained that
this testimony constituted extraneous evidence and that the WCDA had
failed to give notice.61 The Second Court declined to reach the merits of
appellant’s claim because appellant “did not preserve his claim for review”
because his only objection was to relevance.62 Simply reading the one-
page opinion demonstrates that the Second Court did not reach the
merits.63
59
Roberson, 2015 WL 148476 at *9.
60
Juarez v. State, No. 2-08-167-CR, 2009 WL 1564926 (Tex. App.—Fort Worth
June 4, 2009, no pet.).
61
Id.
62
Id.
63
The State also doubts the merits of Juarez’s claim as he was ordered by the
terms of probation to see the treatment provider; thus, the provider’s testimony would
likely be contextual to the revocation. Regardless, the appellant failed to preserve the
error, so the court of appeals never reached the merits. See id.
12
To cite a one-page opinion where the merits were not reached and
where the appellate court did not find a discovery violation as a “disturbing”
example of a previous “conscious decision” of the WCDA to “withhold
mandated discovery” violates every basic rule for the use of case
authority.64
How could any reasonable member of the public expect Justice
Dauphinot to be fair to the WCDA when she claims the unique power to
look-behind the appellate court’s decision in Juarez and see a “disturbing”
failure and pattern by the WCDA of “consciously deciding” not to give
mandated discovery?
Her misuse of Juarez is further evidence that Justice Dauphinot
applies a different set of rules to the WCDA. In State v. Taylor, an opinion
she authored, she explains that when a party fails to preserve error, the
appellate court does not reach the merits.65 Incredibly, she ignores this
rule in her use of Juarez.66
As this Court is aware, many baseless claims are made in appellant
points of error. Is there any Texas Rule of Appellate Procedure that
empowers Justice Dauphinot to sua sponte re-determine the validity of an
64
Roberson, 2015 WL 148476 at *9.
65
264 S.W.3d. 914 (Tex. App.—Fort Worth 2008, no pet.).
66
Juarez, 2009 WL 1564926.
13
appellate point when the panel hearing the case did not reach the merits
and she wasn’t even a member of the panel? It is hard to excuse Justice
Dauphinot’s extreme misuse of Juarez as an honest mistake when the
opinion is only one-page long and one of only three cases that she cited for
her alleged pattern.67 No fair-minded person could read Juarez and believe
that the court reached the merits or cite it as an example of a conscious
discovery violation.
5. Recusal is required because Justice Dauphinot’s lack of fairness
is evidenced by her sweeping advisory pronouncement of a
pattern of constitutional abuse when this alleged pattern A) was
not an active controversy before her; B) was not necessary to
the determination of the appeal; and C) the WCDA had no
opportunity to provide testimony, evidence, or briefing on such
a consequential accusation.
Justice Dauphinot’s violation of the proscription against advisory
opinions without the WCDA being afforded the opportunity to present
evidence or briefing on such an important issue demonstrates her abject
lack of fairness.68
While Justice Dauphinot cites “observed patterns” that “show a
course of conduct at odds with constitutional mandates and fundamental
67
Id.
68
Garrett v. State, 749 S.W.2d 784, 803 (Tex. Crim. App. 1988) (explaining that
“judicial power does not include the power to issue advisory opinions” which result
“when a court attempts to decide an issue that does not arise from an actual
controversy capable of a final adjudication.”) overruled on other grounds, Malik v. State,
953 S.W.2d 234 (Tex. Crim. App. 1997).
14
fairness” as the basis for her dissent, this supposed pattern was not a
controversy in issue before the trial judge.69 There was no allegation
before the trial judge of any such pattern.70 Rather, the only issues before
the trial court were (1) what had happened; and (2) why did it happen.71
The trial court never asked for, heard, or received any evidence about any
pattern of misconduct by the WCDA.72 Therefore, the WCDA has never
been afforded any opportunity to offer testimony or evidence rebutting any
such pattern.
Incredibly, the WCDA never had the opportunity to brief this alleged
pattern because the court requested submission without briefs.73 Since no
Appellant’s brief raised a pattern, Justice Dauphinot‘s disqualifying
predisposition alone lead her to lurch into this area.74
69
See State’s Attachment B, IV-V R.R. (motion for mistrial and hearing on habeas
application).
70
Id.
71
Id.
72
Id.
73
See Letter from Debra Spisak to Parties regarding submission (Apr. 1, 2014),
available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=344b3640-401b-
4a30-a6c8-72575b047add (last visited Mar. 4, 2015).
74
See Letter from Debra Spisak to Parties regarding immediate submission without
briefing (Feb. 20, 2014), available at
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=10bed362-04fb-
49c7-9d7b-1d9a1d5cf937.
15
Appellate courts are not evidentiary courts.75 When an appellate
court needs additional evidence, the remedy is to abate the appeal for an
evidentiary hearing in a trial court.76
The WCDA never had the opportunity to offer any evidence to refute
this erroneous claim. To state such a serious conclusion in the dissent of a
published opinion when there has been no briefing or evidentiary hearing
before a trial court is completely contrary to the tenets of judicial fairness,
the Rules of Appellate Procedure, and the proscription against advisory
opinions.77
Justice Dauphinot deprives the WCDA of the ability to rebut such a
serious claim with evidence: what Brady training does the WCDA
mandate? What processes does the WCDA have in place to comply with
discovery requests? How many cases has the WCDA tried where there
have been no discovery complaints? What training do prosecutors receive
on compliance with discovery requests?
75
See, e.g., In the Interest of M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas
2013, no pet.) (explaining that appellate courts do not take testimony or receive
evidence).
76
Tex. R. App. P. 44.4.
77
Tex. R. App. P. 47.1 (limiting an appellate court decision to the issues “raised
and necessary to final disposition of the appeal); see also Garrett, 749 S.W.2d at 803
(explaining that “judicial power does not include the power to issue advisory opinions”
which result “when a court attempts to decide an issue that does not arise from an
actual controversy capable of a final adjudication.”), overruled on other grounds, Malik
v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).
16
A fair-minded jurist would give a party the ability to offer such
evidence before making this sweeping pronouncement. Instead, Justice
Dauphinot bases her improper advisory pronouncement on three cases in
five years out of thousands of criminal cases handled by the WCDA.78
Remarkably, of the three cases that she cites for her pattern of
constitutional discovery abuse, in two, the court of appeals made no finding
of a discovery violation and affirmed the trial court.79 In Pitman, which
Justice Dauphinot cites for a previous discovery abuse, she was on the
panel that unanimously found no such abuse.80
The third case, Dabney v. State, had a petition for discretionary
review pending at the time she cited it.81 On March 4, 2015, this Court
granted review in Dabney.82 Neither the trial judge in Dabney nor Justice
Sue Walker believed that the State committed a discovery violation.83 The
State also questions the fairness of citing a case for such a momentous
78
Roberson, 2015 WL 148476 at *11 (Dauphinot, J., dissenting).
79
Pitman v. State, 372 S.W.3d 261 (Tex.App-Fort Worth 2012, pet. ref’d); Juarez,
2009 WL 1564926 at *1.
80
Pitman, 372 S.W.3d 261. While the appellate court, in dicta, expressed concerns
about the WCDA’s policy relating to privacy of CPS records, the Legislature has since
expressly recognized these concerns in 39.14(a) by expressly referencing the privacy of
CPS records. Tex. Code. Crim. Proc. Ann. art. 39.14(a) (West Suppl. 2014).
Regardless, the appellate court did not hold there was a discovery abuse in Pitman. Id.
81
Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).
82
See Docket Sheet for Dabney v. State, No. PD-1514-14 in the Court of Criminal
Appeals, available at http://www.search.txcourts.gov/Case.aspx?cn=PD-1514-14 (last
visited Mar. 4, 2015).
83
Id.
17
proposition when the justice knows the contested issue is the subject of a
pending petition for discretionary review.84
This advisory pronouncement and the failure to afford the WCDA the
opportunity to brief or rebut with evidence irrefutably establishes Justice
Dauphinot’s unfairness to the WCDA.85
6. Recusal is required because the timing of Justice Dauphinot’s
abject lack of judicial fairness in Roberson suggests it may have
been retaliatory and motivated by the State prevailing on its
motion for en banc reconsideration in the Joe Johnson case
after the State referred to her memorandum opinion’s drastic
departure from the trial record as “troubling.”
While the State does not have to prove (nor does this Court have to
find) actual bias or Justice Dauphinot’s subjective motivations for her
significant departure from basic judicial norms for recusal to be required,86
the timing of the Roberson dissent with its vitriolic and unsubstantiated
claims provides an important context to the Court. The Roberson dissent
did not occur in a vacuum; rather, it occurred almost concomitantly with the
State’s seeking and obtaining the extraordinary relief of en banc
reconsideration and withdrawal of an opinion authored by Justice
Dauphinot. The State prevailed on its motion for en banc reconsideration
84
Roberson, 2015 WL 148476 at *9 (citation in FN7 states “pet. filed”).
85
Roberson, 2015 WL 148476 at *5-9.
86
Murchison, 349 U.S. at 136.
18
on October 9, 2014.87 Justice Dauphinot dissented.88 Then, the Roberson
dissent was released a mere three months later on January 8, 2015.89
In Johnson, Justice Dauphinot authored an opinion that made many
factual assertions that were not supported by the record.90 Justice
Dauphinot’s opinion was premised upon a false open-door theory.91
Because reversal would have caused a child rape victim to re-testify, the
WCDA had no choice but to seek the extraordinary relief of en banc
reconsideration.92 The State’s motion detailed with exhaustive record cites
how drastically Justice Dauphinot’s memorandum opinion deviated from
the actual trial record and referred to this departure as “troubling.”93
On October 9, 2014, a majority of the Second Court agreed, thereby
withdrawing Justice Dauphinot’s memorandum opinion, and affirming the
conviction.94 Justice Dauphinot dissented.95 Justice Walker and Justice
87
Johnson v. State, 449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en
banc) (Johnson II).
88
Id. (J. Dauphinot, dissenting).
89
Roberson, at *1.
90
Johnson v. State, 2013 WL 531079 (Tex. App.—Fort Worth Feb. 14, 2013)
(mem. opinion) (Johnson I), opinion withdrawn and superseded by Johnson v. State,
449 S.W.3d 240 (Tex. App.—Fort Worth 2014, pet. filed) (en banc).
91
Id.
92
Johnson II, 449 S.W.3d at 240.
93
State’s Attachment C, State’s Motion for En Banc Reconsideration.
94
Johnson II, 449 S.W.3d at 240.
95
Id.
19
Gabriel, who had joined in the memorandum opinion, reversed their votes,
and Justice Gabriel authored the majority opinion.96
While neither the State nor this Court can gauge Justice Dauphinot’s
subjective motives, the objective facts demonstrate that three months after
the State prevailed on a motion for extraordinary relief whereby two of her
colleagues abandoned her opinion, which the State had called “troubling,”
Justice Dauphinot dissented in Roberson with her incendiary, gratuitous,
and unfounded accusations against the WCDA.97
The State hopes this timing is an unfortunate coincidence, but the
fact remains that the appearance is so troubling as to call into question
Justice Dauphinot’s ability to be fair and impartial. A party should be able to
exercise its rights under T.R.A.P. 49.7 and seek extraordinary relief when
an opinion dramatically departs from the trial record without fearing reprisal.
Regardless of subjective intent, the objective appearance of a retaliatory
motive supports recusal.
Prayer
The State prays that this Court grant discretionary review of the
Second Court of Appeals’ recusal decision; that the Second Court of
Appeals’ decision be reversed; and that Justice Dauphinot be recused.
96
Id.
97
Roberson, 2015 WL 148476 at *5-9.
20
Respectfully submitted,
/s/Maureen Shelton
Maureen Shelton
Criminal District Attorney
Wichita County, Texas
State Bar No. 00786852
Maureen.Shelton@co.wichita.tx.us
/s/John Gillespie
John Gillespie
First Asst. Criminal District Attorney
Wichita County, Texas
State Bar No. 24010053
John.Gillespie@co.wichita.tx.us
900 Seventh Street
Wichita Falls, Texas 76301
(940) 766-8113 phone
(940) 766-8177 fax
/s/John Brasher
John Brasher
Special Prosecutor
State Bar No. 02907800
brasherappeals@gmail.com
900 8th Street
Wichita Falls, Texas 76301
(940) 244-0244 phone
(940) 244-0245 fax
21
Certificate of Compliance
I certify that this document contains 4,452 words, counting all parts of
the document except those excluded by Tex. R. App. P. 9.4(i)(1). The
body text is in 14 point font, and the footnote text is in 12 point font.
/s/Maureen Shelton
Maureen Shelton
Certificate of Service
I do certify that on March 4, 2015, a true and correct copy of the
above document has been served electronically to Michael F. Payne
(attorney for Antonio Leija, Jr.) at michaelfpayne@gmail.com and the State
Prosecuting Attorney’s Office at information@spa.texas.gov.
/s/Maureen Shelton
Maureen Shelton
22
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00319-CR
MICHAEL OLIVER SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 52,047-B
------------
NO. 02-13-00473-CR
ANTONIO LEIJA, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 52,563-B
------------
FILE COPY
NO. 02-13-00482-CR
KURLEY JAMES JOHNSON APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 53,445-C
------------
ORDER
------------
Currently pending before this court in each of the above referenced causes
is a “State’s Motion to Recuse the Hon. Justice Lee Ann Dauphinot,” filed
January 21, 2015, requesting the recusal of Justice Lee Ann Dauphinot in each
cause under Texas Rule of Appellate Procedure 16.
Rule 16 states that the grounds for recusal are the “same as those
provided in the Rules of Civil Procedure.” Tex. R. App. P. 16.2; see also Tex. R.
Civ. P. 18a, 18b. Rule 18b(b) of the Texas Rules of Civil Procedure identifies the
grounds for recusal. Tex. R. Civ. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d
87, 88 (Tex. App.—Waco 2001, pet. denied) (order). Rule 18b(b)(1) provides
that a judge must recuse himself or herself in a proceeding in which the judge’s
2
FILE COPY
impartiality might reasonably be questioned. Tex. R. Civ. P. 18b(b)(1). The
State’s motions challenge the impartiality of Justice Dauphinot under this rule.
Rule 16.3(b) of the Texas Rules of Appellate Procedure prescribes the
procedure to be followed for recusal of an appellate justice or judge:
Before any further proceeding in the case, the challenged justice or
judge must either remove himself or herself from all participation in
the case or certify the matter to the entire court, which will decide the
motion by a majority of the remaining judges sitting en banc. The
challenged justice or judge must not sit with the remainder of the
court to consider the motion as to him or her.
Tex. R. App. P. 16.3(b).
Pursuant to the procedure set forth in rule 16.3(b), upon the filing of the
recusal motions and prior to any further proceedings in these appeals, Justice
Dauphinot considered the motions in chambers. Id. Justice Dauphinot found no
reason to recuse herself and certified the matter in writing to the remaining
members of the court en banc. See id.; McCullough, 50 S.W.3d at 88. This
court then followed the accepted procedure set out in rule 16.3(b). Tex. R. App.
P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); McCullough, 50
S.W.3d at 88. A majority of the remaining justices of the court could not agree on
a decision, so that fact was certified to the Chief Justice of the Supreme Court.
The Chief Justice temporarily assigned former Justice Rebecca Simmons as a
visiting justice to sit with the court of appeals to consider the motions. See Tex.
R. App. P. 41.2(b).
3
FILE COPY
The visiting justice then met with the six remaining justices to deliberate
and decide the motions to recuse Justice Dauphinot by a vote of a majority of the
justices. Justice Dauphinot did not sit with the other members of the court when
her challenges were considered. See Tex. R. App. P. 16.3(b); McCullough, 50
S.W.3d at 88. The determination of whether recusal was necessary was made
on a case-specific, fact-intensive basis. See McCullough, 50 S.W.3d at 89;
Williams v. Viswanathan, 65 S.W.3d 685, 688 (Tex. App.—Amarillo 2001, no
pet.) (order).
The en banc court, Justice Dauphinot not participating, has carefully
examined the motions and the records as to the allegations pertaining to Justice
Dauphinot. The majority of the remaining justices have concluded that the
motions should be denied. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b(b).
Accordingly, the State’s motion to recuse Justice Dauphinot in each of the above
referenced causes is denied.
DATED February 26, 2015.
PER CURIAM
EN BANC; with REBECCA SIMMONS (Former Justice, Sitting by Assignment).
DAUPHINOT, J., not participating.
LIVINGSTON, C.J.; WALKER and GABRIEL, JJ., would grant.
4
02-13-00582-CR 1
1 REPORTER'S RECORD
2 VOLUME 3 OF 6
3 TRIAL COURT CAUSE NO. 58017-E
4 THE STATE OF TEXAS § IN THE COUNTY COURT
§
5 VS. § AT LAW NO. 1
§
6 BYRIAS ROBERSON § WICHITA COUNTY, TEXAS
7
8
9
*****************************************************
10
JURY TRIAL ON MERITS
11
*****************************************************
12
13
14
15
16
17
18 On the 21st day of August, 2013, the
19 following proceedings came on to be heard in the
20 above-entitled and numbered cause before the Honorable
21 Gary W. Butler, Judge presiding, held in Wichita Falls,
22 Texas, Wichita County, Texas:
23 Proceedings reported by computerized
24 stenotype machine in real-time. Reporter's Record
25 produced by computer-aided transcription.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 2
1 A P P E A R A N C E S
2 Ms. Victoria Honey
SBOT NO. 24073195
3 Ms. Allyson Renee Kucera
SBOT NO. 24081858
4 Assistant District Attorneys
WICHITA COUNTY CRIMINAL DISTRICT ATTORNEY
5 900 7th Street
Third Floor
6 Wichita Falls,TX 76301-2402
940.766.8113
7 ATTORNEYS FOR THE STATE OF TEXAS
8 -AND-
9 Mr. Mark Richard Briley
SBOT NO. 24069418
10 WICHITA COUNTY PUBLIC DEFENDER'S OFFICE
600 Scott Ave
11 Suite 204
Wichita Falls, TX 76301-2531
12 940.766.8199
Ms. Kristen Homyk Howcroft
13 SBOT NO. 24032433
THE LAW OFFICES OF JEFF MCKNIGHT, P.C.
14 900 8th Street
Suite 815
15 Wichita Falls, TX 76301
940.687.1576
16 ATTORNEYS FOR DEFENDANT BYRIAS ROBERSON
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 3
1 I N D E X
2 VOLUME 3
3 JURY TRIAL ON MERITS
4 AUGUST 21, 2013 Page Vol.
5 Appearances................................. 2 3
6 Motions In Limine........................... 4 3
7 Preliminary Instructions by the Court....... 14 3
8 Jury Voir Dire Examination by the State..... 21 3
9 Jury Voir Dire Examination by the Defendant. 89 3
10 Court's Instructions To Jury................ 150 3
11 WITNESSES
Direct Cross Voir Dire Vol.
12 DONNIE CAVINDER 156 3
13 Adjournment................................. 158 3
14 Court Reporter's Certificate................ 159 3
15
16
17
18
19
20
21
22
23
24
25
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 4
1 P R O C E E D I N G S
2 (Open court, defendant present, no panel)
3 MOTIONS IN LIMINE
4 THE COURT: Court's going to call Cause No.
5 58017-E, styled the State of Texas versus Byrias
6 Roberson. The Court will call that case for trial.
7 We're here on pretrial matters which the Court has found
8 through its motion in limine by both the State and the
9 defense. The Court will note for the record the State's
10 present through their attorneys from the District
11 Attorney's office; the defendant is present with his
12 attorneys. I have Mr. Roberson's motion in limine
13 sitting here, so we'll just go ahead and take it up first
14 if you don't mind.
15 Mr. Briley, I know you've provided a copy of
16 this to the District Attorney's office, and I assume that
17 y'all have conferred with regard to the motion in
18 limines, and I've reviewed it as well. So we'll take it
19 up in this matter. Is there any -- tell me this. Which
20 numbers does the State object to on the motion in
21 limine?
22 MS. HONEY: No. 1, 2, 3, 4 and 15.
23 THE COURT: 1, 2, 3, 4 and what?
24 MS. HONEY: Fifteen.
25 THE COURT: All right. Let's take them up in
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 5
1 order. No. 1?
2 MS. HONEY: I have an objection to No. 1 if it
3 includes felony convictions and crimes of moral
4 turpitude. The rules provide for impeachment if there's
5 a felony conviction or crime of moral turpitude.
6 THE COURT: Mr. Briley?
7 MR. BRILEY: I don't see my reason that we
8 couldn't approach the bench before those were got into.
9 THE COURT: We can, but if it's a crime of moral
10 turpitude or a felony conviction, wouldn't you agree
11 that's subject to cross-examination? I'll let you
12 approach so we can determine if it's a felony or crime of
13 moral turpitude at that point and we'll go forward.
14 MS. HONEY: No. 2, I anticipate that there will
15 be testimony in this case regarding the officer's entry
16 into the home. If defense counsel intends to challenge
17 the legality of that entry, I would like the opportunity
18 to question some of the State's witnesses regarding a
19 prior encounter between the defendant and these witnesses
20 about and regarding a disturbance call. He had
21 barricaded himself and his family inside his home. The
22 SWAT team was called to get him out of the home. Two of
23 the members of the SWAT team are witnesses in this case.
24 This prior incident between the defendant and these
25 officers is important for several reasons. It goes to
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 6
1 their familiarity with the defendant, their ability to
2 identify him on the date of the offense. It's part of
3 how they recognized him on the date of the offense. It
4 also goes to their state of mind on the date of the
5 offense, goes to why gang task force officers were asked
6 to serve these warrants on the defendant, and also goes
7 to their reason to believe that the defendant lived in
8 this particular residence.
9 THE COURT: Mr. Briley?
10 MR. BRILEY: Well, Your Honor, we've asked or
11 requested notice of any bad acts or convictions, and we
12 haven't received any of those.
13 THE COURT: Well, let's do it this way. I'll go
14 ahead and sustain or grant on this limine that y'all will
15 approach, and then we would get into exactly what the
16 officers could or could not go into. Without hearing
17 them, I'd be inclined to say they might have had previous
18 contact or something like that that's how they
19 recognized. But to go any further might be a problem.
20 But we'll discuss that. So I'll go ahead and grant that
21 limine on that ground. Make sure you come up before you
22 start with them. No. 3?
23 MS. HONEY: No. 3, I have an objection to No. 3
24 if bad reputation or character as stated in No. 3
25 includes a witness's character for truthfulness or
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 7
1 untruthfulness. Again, that is proper impeachment under
2 Texas Rules of Evidence.
3 THE COURT: As long as the proper predicate is
4 laid.
5 MS. HONEY: Yes, Your Honor.
6 THE COURT: Mr. Briley?
7 MR. BRILEY: No response.
8 THE COURT: Okay. So as long as the proper
9 predicate is laid, of course. So that essentially will
10 be denied. However, I understand there could be an
11 objection for proper predicate not being laid if you want
12 to go into that. Four?
13 MS. HONEY: I don't anticipate there being any
14 testimony in this case regarding the defendant ever being
15 a member of a criminal street gang, currently being a
16 member of a street gang. However, I do anticipate that
17 as part of some of the State's witnesses talking about
18 their work experience, their training, their job
19 assignments on the date of the offense, they're going to
20 testify that they were part of the gang task force.
21 THE COURT: Mr. Briley, if their testimony is
22 limited to what their duties were at the time, do you
23 still have a problem with that?
24 MR. BRILEY: No. And I don't anticipate any
25 evidence is going to be shown that Byrias was part of a
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 8
1 gang. But if it was to go to that, then I would ask that
2 they --
3 THE COURT: I'll grant it as to that specific
4 according to their assignments. It is what it is.
5 Fifteen?
6 MS. HONEY: No. 15, this -- I guess my objection
7 is if the defendant takes the witness stand during the
8 defendant's case in chief -- the State's not saying the
9 defendant has to or will -- but if the defendant takes
10 the witness stand and attempts to bolster his credibility
11 with the jury by talking about his law enforcement
12 background, and in talking about that law enforcement
13 background creates a false impression in the mind of the
14 jurors, we would ask for the opportunity to correct that
15 false impression in the mind of the jurors.
16 Additionally, his law enforcement background
17 goes to the heart of this case, the facts of our case,
18 the force that he used against the officers. He was
19 trained as a police officer, familiar with how to
20 effectuate an arrest, and trained on how to do hand-to-
21 hand combat.
22 MR. BRILEY: With the first part, you know, if
23 we had brought it up.
24 THE COURT: If you open the door, I understand.
25 MR. BRILEY: I understand that, but my motion is
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02-13-00582-CR 9
1 any reference by them to begin with. I don't see how
2 that it's relevant and it is holding Byrias to a higher
3 standard, which I would disagree that they should be able
4 to do.
5 THE COURT: The motion in limine will be granted
6 as to that and approach before you go into it. As to the
7 others, you agree that they should be granted?
8 MS. HONEY: Yes, Your Honor. On numbers 5
9 through 14, the State has no objection.
10 THE COURT: Those will be granted. With regard
11 to the State's motion, Mr. Briley, you had an opportunity
12 to review that?
13 MR. BRILEY: Yes and no, Your Honor. I received
14 an e-mail. I didn't actually see the final copy. And
15 there was only one that I initially had an objection to,
16 but let me re-read No. 6.
17 THE COURT: Okay.
18 MR. BRILEY: Our only objection to No. 6 is that
19 we plan on talking about the use of force that day. But
20 if they're only talking about official claims made by
21 either Byrias or people in the past, we have no objection
22 to that.
23 MS. HONEY: And, Your Honor, if I could have an
24 opportunity to clarify?
25 THE COURT: That's fine.
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02-13-00582-CR 10
1 MS. HONEY: No. 6 may have been overly broad
2 whenever I wrote it. Obviously, we have no objection to
3 them going into the facts of this particular case and
4 questioning officers about the facts of this particular
5 case.
6 THE COURT: Okay. All right. It sounds like
7 there's actually an agreement then with regard to 6 as
8 long as we're just talking about this case. I think you
9 would -- I would stay away from using the terms excessive
10 force as I think that creates -- is -- it's almost like a
11 term of art because it creates some -- it has some legal
12 concepts to it.
13 If we get there, the jury's going to determine
14 what amount of force was necessary. So I would say that
15 I grant the motion in limine as to anything outside of
16 the date in question. If you're wanting to get into
17 that, then let's approach and talk about it. As far as
18 the date in question, whatever the use of force was, of
19 course, it will come out in testimony with, I assume,
20 your witnesses, and the jury is the fact finder and they
21 can go from there.
22 With regard to the others, Mr. Briley, have any
23 objections to 1, 2, 3, 4, 5, and 7?
24 MR. BRILEY: No, Your Honor.
25 THE COURT: Of course, those would be granted
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 11
1 then. Is there anything else with regard to pretrial
2 matters that we need to take up?
3 MS. HONEY: I don't believe so.
4 MR. BRILEY: None from the defense.
5 THE COURT: One thing. There have been rulings
6 by the court yesterday on in camera inspection of the
7 documents that were provided by the City Attorney's
8 office. I've reviewed those thoroughly, and in my review
9 I find nothing that would be exculpatory or would tend to
10 lead to that with regard to this matter. So those are
11 under seal and will remain under seal. All right. We're
12 going to start with the jury at 9:30, so y'all have got
13 some time. Please be back in here at 9:15 so we can be
14 ready to go right at 9:30 when the jury comes in. I know
15 you've each been provided yesterday a copy of the venire
16 panel list. At this time, do you believe that a shuffle
17 is necessary or --
18 MS. HONEY: Your Honor, the State would request
19 a shuffle.
20 THE COURT: The State's going to request a
21 shuffle.
22 MR. BRILEY: We did not receive the
23 questionnaires from jurors No. 16, 17, and 18, or they
24 were misplaced by my office.
25 THE COURT: Mr. Briley, I have it in my packet.
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02-13-00582-CR 12
1 Maybe it was not copied to you.
2 MR. BRILEY: Could I make a copy?
3 THE COURT: They want a shuffle. Let's go off
4 the record for a second.
5 (Discussion off the record)
6 THE COURT: Let's go back on the record. With
7 regard to the jury, I believe the State's saying they're
8 going to request a shuffle just by looking at the array.
9 MS. HONEY: Yes, Your Honor, that's correct.
10 THE COURT: Mr. Briley, typically, I would have
11 to bring the jury in and seat them so you could see the
12 array before we do the shuffle, and then it would be done
13 without you having an opportunity to shuffle again. Are
14 you okay with not seeing the array and going ahead and
15 shuffling and waiving what I would assume would be your
16 right to ask for another shuffle?
17 MR. BRILEY: Yes, Your Honor.
18 THE COURT: All right. We'll go off the record.
19 (Recess taken)
20 THE COURT: On the record. Back in cause 58017-
21 E parties are present. Defendant's present. There's an
22 issue with one of the jurors. It's now 10:20. She's
23 supposed to be here at 9:30. The juror No. 22, Claudia
24 Sciarra has issues with child care today. No. 22 is
25 outside the cut line. We are waiting on one other juror,
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02-13-00582-CR 13
1 but are being told he's right on his way outside. That
2 would leave us with 23 potential jurors. Ms. Honey, do
3 you have any objection to going forward with 23?
4 MS. KUCERA: No, Your Honor.
5 THE COURT: Mr. Briley?
6 MR. BRILEY: No, Your Honor.
7 THE COURT: Twenty-two will be excused for
8 cause. I will deal with her and the ones who were late
9 after trial. I'm not going to say anything during trial.
10 I just want to get through the trial and get going. I'm
11 still going to leave a spot for No. 22. That way it
12 makes it easier on y'all. Okay. We'll go off the
13 record.
14 (Open court, defendant and jury panel present)
15 THE BAILIFF: Everyone's present, Your Honor.
16 THE COURT: All right. Thank you. If the
17 venire panel will remain standing, I'm going to issue an
18 oath. Would each of you please raise your right hand for
19 me?
20 (The jury panel was sworn)
21 THE COURT: Thank you. Y'all be seated, please.
22 All right. This is Cause No. 58017-E, State of Texas
23 versus Byrias Roberson. The Court will note for the
24 record the venire panel is seated with the exception of
25 one member, No. 22.
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02-13-00582-CR 14
1 The State is present through its attorneys,
2 defendant present, defendant's attorneys. What I'm going
3 to do first, I'm going to give you some instructions that
4 you'll have to go by during this voir dire process and
5 then what I'll do is introductions and I'll explain the
6 process to you and what's going on.
7 PRELIMINARY INSTRUCTIONS FOR JURORS
8 CRIMINAL CASES
9 "1. Turn off all phones and other electronic
10 devices. While you are in the courtroom and while you
11 are deliberating, do not communicate with anyone through
12 any electronic device. For example, do not communicate
13 by phone, text message, email, chat room, blog, or social
14 networking sites such as Facebook, Twitter, or Myspace.
15 Do not post information about the case on the Internet
16 before these court proceedings end and you are released
17 from jury duty. Do not record or photograph any part of
18 these court proceedings, because it is prohibited by law.
19 2. To avoid looking like you are friendly with
20 one side of the case, do not mingle or talk with the
21 lawyers, the witnesses, the parties, or any other person
22 who might be connected with or interested in the case.
23 Do not remain within the hearing of anyone who might be
24 discussing the case. These persons have to follow these
25 same instructions as you, so you should not be offended
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02-13-00582-CR 15
1 when they follow these instructions.
2 3. Do not accept from, nor give to, any of
3 these persons any favors, no matter how slight the favor,
4 such as rides, food or refreshments.
5 4. Do not discuss or mention anything about
6 this case, the defendant, the alleged victim, or
7 witnesses to anyone, including your spouse, family
8 members, co-workers, and do not permit anyone to mention
9 anything about this case in your presence or your hearing
10 until you are discharged as jurors or excused from the
11 case. Do not communicate with anyone via any electronic
12 means, including, but not limited to text messages,
13 emails, Tweets or any other method of communication. Do
14 not permit anyone to communicate with you by any such
15 electronic means.
16 If anyone attempts to discuss anything about the
17 case, the defendant, the alleged victim or the witnesses
18 with you, you must report it to me at once. We do not
19 want you to be influenced by something other than the
20 evidence admitted in court.
21 5. Do not even discuss anything about this
22 case, the defendant, the alleged victim or the witnesses
23 among yourselves until after you have heard all the
24 evidence, the Court's Charge, the attorneys' arguments
25 and until I have sent you to the jury room to consider
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 16
1 your verdict. Even then, you cannot discuss the case
2 among yourselves except when you are all together in the
3 jury room. Do not form or express any opinions about
4 this case until you begin your deliberations."
5 The supreme court said I have to read that to
6 you before we start since all the electronic devices and
7 phones that we have now. Of course when I started, we
8 didn't have to deal with that, but, man, do times change.
9 My name is Gary Butler. I'm the judge here for
10 County Court At Law No. 1. I took over about three years
11 ago for Judge Hogan, who was here some 30 years. This is
12 a very active court. We don't waste time. We move very
13 quickly as I have general jurisdiction, which means I
14 hear criminal misdemeanor cases, all family law types of
15 cases, probate, mental health, civil cases under
16 $200,000. So you can tell we'd be quite busy just with
17 those. And that's just the jurisdictions I can remember
18 off the top of my head.
19 What we have here today is a criminal matter
20 that will be tried and be heard. I expect this trial to
21 last quite possibly to Friday noon. Of course, we're
22 gonna to move through this trial as quickly as we can.
23 However, the defendant, of course, in this matter is
24 entitled to a fair trial, and we're gonna take as much as
25 time as we need to ensure that that happens. I think
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02-13-00582-CR 17
1 that would be what each and every one of you would want
2 if you were on trial.
3 Let me introduce everybody to you. I've already
4 said who I am. They're going to be asking a little bit
5 about your background in this voir dire process. What
6 they're trying to do is make educated strikes, so they
7 really need to know a little bit about you. If they ask
8 questions of such a personal nature as you do not feel
9 comfortable asking those questions in front of 20
10 something or 30 something people, then you can ask to
11 come after and speak with just myself and the attorneys
12 and, of course, the court reporter as well.
13 Now, I'm here from Wichita Falls. I've always
14 livid here. I went to Old High, went to college here.
15 Went off for law school, came back. So I'm about as
16 Wichita Falls as you get. I recognize a few of the
17 people here on the venire panel. Some I've known for a
18 number of years, so that shouldn't come as a shock to
19 anybody.
20 I have a daughter in Florida and two little boys
21 here and a wife that I've been married to for, ooh, 20
22 years. Over 20. Over 20 years, let's go with that. Let
23 me introduce who you're going to be seeing. Karen James
24 back there, you've already had dealings with. She's my
25 court coordinator and bailiff. She keeps everything
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 18
1 running as smoothly as possible. She doesn't carry a
2 gun, thank goodness, but still she still has the
3 classification of bailiff.
4 The other people you're going to see in the
5 courtroom, probably the most important but that you're
6 not going to hear anything from, is Ms. Cayce Coskey
7 who's sitting right over here to my right. She's my
8 court reporter. She's taking down everything that I say
9 and everything that you say. When a question is asked,
10 you have numbers, if you would stand and give your name
11 and or show your number, that's gonna let her make a more
12 accurate record during the voir dire process. The only
13 time we use those numbers is during voir dire.
14 Also, if you'll stand when answering questions,
15 it just makes it easier for everybody to hear. This air
16 conditioner that is only for my court is going, and
17 sometimes it makes it difficult to hear. When I first
18 started, we didn't have an air conditioner, and in a
19 trial in about August, I believe it was, the temperature
20 was 80 degrees. So thank goodness we've got an air
21 conditioner. The other people that you're going to see
22 is going to be from the State's attorneys, being Victoria
23 Honey.
24 MS. HONEY: Good morning.
25 THE COURT: Allyson Kucera.
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02-13-00582-CR 19
1 MS. KUCERA: Good morning.
2 THE COURT: The investigator for the District
3 Attorney's office who will be assisting them is Donnie
4 Cavinder.
5 MR. CAVINDER: Good morning.
6 THE COURT: For the defense, you have Mr. Mark
7 Briley.
8 MR. BRILEY: Good morning.
9 THE COURT: And Ms. Kris Howcroft.
10 MS. HOWCROFT: Good morning.
11 THE COURT: And the defendant Byrias Roberson.
12 THE DEFENDANT: Good morning.
13 THE COURT: A little bit about the process.
14 This is what's known as voir dire, to seek and tell the
15 truth or to question and tell the truth is what they said
16 when I was in law school. Jury selection process is a
17 better way of saying it for me. Since I'm from Wichita
18 Falls, if I butcher voir dire, I apologize. But I didn't
19 take French in high school.
20 The process we'll go through is the voir dire
21 will commence; the State will ask questions; the defense
22 will ask questions. Once we get through that, they're
23 going to exercise their strikes. I'd like to get through
24 the voir dire process hopefully by lunch. We'll see.
25 And then if not, it will be shortly thereafter. We
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02-13-00582-CR 20
1 should have a jury seated by two o'clock today. So those
2 of you who are not one of the lucky six, as I call them,
3 will be released at that time.
4 Now, we don't keep substitute or alternative
5 jurors in this court, so it will just be the six. After
6 that, there will be opening statements, and we'll move
7 forward into the presentation of evidence and closing
8 statements, and then you'll get other instructions at
9 that time. This does -- everybody's familiar with trials
10 pretty much. It's somewhat like in the movies and TV
11 shows, but really not. There are more delays and it's
12 just inevitable, and that's part of the process. I'll
13 keep those delays to a minimum if possible and move this
14 trial as quickly as possibly while still affording a fair
15 trial for the defendant in this matter.
16 All right. With that, I'm going to turn it over
17 to Ms. Kucera to do voir dire for the State.
18 Oh, sorry, one more thing. Somebody said this
19 in a prior trial. If you see me on my computer, I'm not
20 playing on the Internet or anything like that. I'm the
21 only judge in the courthouse who is lucky enough to have
22 real time court reporting. And so if I'm on the
23 computer, nine times out of ten I'm going back through
24 testimony or I'm looking at some legal cases or
25 precedence. One lady mentioned that to me before, so I
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02-13-00582-CR 21
1 always want to tell you that. Go ahead.
2 JURY VOIR DIRE EXAMINATION
3 BY MS. KUCERA:
4 Good morning. How are you guys doing? All
5 right. Fun group. First of all, thank you so much for
6 showing up today. We appreciate you for doing that.
7 This process cannot work if you guys don't show up, so I
8 wanna thank you so much for doing that. That's the first
9 step of the process. Okay.
10 First, I just want to ask a general question,
11 easy one. Raise your hand if this is your first time
12 you've been in a courtroom on a jury selection panel.
13 Excellent. So a fair amount of you. All right. Well,
14 you are in good company today because this is my very
15 first voir dire or jury selection. So if it is a train
16 wreck, I apologize, but we'll work through it today. I'm
17 going to introduce myself and talk a little bit about
18 myself and my trial partner and the type of questions I'm
19 going to ask you and talk to you about today.
20 My name is Allyson Kucera, as the judge said. I
21 grew up in Houston Texas, and I grew up -- I was an
22 athlete growing up. I ended up playing soccer for the
23 University of Oklahoma and stayed there for law school.
24 So I apologize for being a Sooner, but I am happy to be
25 back in Texas.
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 22
1 Let's see. What else about me? Okay. I
2 decided to share a personal story because I am going to
3 ask you guys to sort of talk about yourselves a little
4 bit. I am a huge fan of sports. I guess that probably
5 goes without saying. But what comes with that is growing
6 up with an older brother and an athletic background is
7 that I'm not an emotional person. I don't really cry a
8 lot in real life. The problem with that is that when
9 great sporting events occur, I am a disaster. I'm
10 bawling. You just worked so hard; I'm so proud of you.
11 You know, so I pretty much only cry in sporting events.
12 I think that's pretty weird that I only cry in sporting
13 events, but there you go. That's a weird fact about me.
14 Essentially, today this is just going to be a
15 jury selection process. I'm going to ask you some
16 questions and ask you to just be honest with us and talk
17 to us about your experiences, your feelings, your
18 opinions, okay. So I'm going to put a slide show up to
19 help you guys follow along with what I'm going to tell
20 you. If you can't see it, you can't understand it --
21 another weird fact about me is that I talk incredibly
22 fast. So if you don't understand what I'm saying, need
23 me to repeat something, let me know, raise your hand,
24 stand up and we'll all get through this process together.
25 Does this sound like something everyone can do. Nods?
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 23
1 Yes.
2 Okay. This is the State of Texas versus
3 Mr. Byrias Roberson. Okay. Mr. Roberson has been
4 charged with the offense of resisting arrest. Okay? So
5 welcome jurors. I thought this might help us a little
6 bit. So these are some helpful hints. I will attempt to
7 take deep breaths and slow down. I will ask you guys to
8 do the same. Don't be nervous. This is gonna be easy.
9 We'll get you out of here before lunchtime hopefully.
10 All right. There are no wrong answers. These
11 are opinion questions. These are things that I'm going
12 to ask you guys and just ask you to be honest, okay.
13 There's no trick questions or anything like that, okay.
14 Honesty is the best policy, okay. We really want you
15 guys to be honest, all right. And the reason we want you
16 to be honest is that the goal of this process is to
17 ensure that Mr. Roberson gets a fair trial, okay? And
18 that's what the State wants and that's what the defense
19 wants, okay? So we wanna make sure that we get the best
20 six jurors that are going to sit appropriately for this
21 case. Okay? So just be honest and make sure that we get
22 this guy a fair trial. Okay?
23 All right. So the offense he has is resisting
24 arrest. All right. I'm going to back up and ask you why
25 do you think the offense resisting arrest is something
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 24
1 that we should try people for? Why do you think it's a
2 crime. Can anyone think of a reason why we wouldn't want
3 someone to arrest a person resisting arrest? Anyone have
4 any idea, try to help me out, why we think resisting
5 arrest might be -- might be an offense under the Texas
6 Penal Code? Yes!
7 VENIREPERSON FOSTER: Chris foster.
8 MS. KUCERA: Okay. Mr. Foster, why do you think
9 that --
10 VENIREPERSON FOSTER: We need to protect the
11 people that are out there protecting us.
12 MS. KUCERA: Okay. And who are some of those
13 people?
14 VENIREPERSON FOSTER: Police officers.
15 MS. KUCERA: Okay. So you appear to be a police
16 officer. Is that in fact true?
17 VENIREPERSON FOSTER: Yes.
18 MS. KUCERA: Great. So your statement is that
19 resisting arrest is something we need to protect the
20 officers that are generally making the arrests?
21 VENIREPERSON FOSTER: Right.
22 MS. KUCERA: Okay. Are there any other people
23 you can think we would want to protect?
24 VENIREPERSON FOSTER: Well, protect the citizens
25 by making the arrest.
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02-13-00582-CR 25
1 MS. KUCERA: Good. Absolutely. Anyone else
2 have an idea why we think it's important to protect the
3 citizens who might be near the arrest? Anyone have an
4 idea as to why that might be the case? Anyone just raise
5 your hand. I know you can do this. Anyone think of a
6 reason? Let's say there are a group of people all
7 together and they're in -- let's say they're in a bar.
8 Alcohol is being served and there's someone who's
9 becoming rowdy, maybe had too much to drink. There are a
10 lot of people in a bar, and if the officers go to make an
11 arrest in a bar, wouldn't it be safer if that person
12 didn't resist arrest for all the people in the bar that
13 could possibly be injured, you know, by that person who
14 needs to be arrested? Does that make sense? Okay. Can
15 everybody understand how would be the case?
16 So the officer says we want to protect the
17 officers who are making the arrest and also the citizens
18 around the arrest. We don't want anyone to be hurt by
19 the officers who are trying to make an arrest. Okay?
20 Understand? Nod with me. Everyone got it? Okay. What
21 about the defendant? Wouldn't we also want to protect
22 him? Okay, good. All right. Can you understand why
23 it's safer if the defendant doesn't also resist arrest?
24 Everyone understand why that would be important? Good.
25 Okay. All right. So now we're going to go over
CAYCE COSKEY - CCL NO. 1, WICHITA FALLS, TX 940.766.8266
02-13-00582-CR 26
1 the definition of -- up here on this slide is the
2 definition of resisting arrest, okay. Everyone following
3 along so far? Great. All right. Texas Penal Code
4 Section 38.03. All right. It's a long definition.
5 We're going to go through it and break it down for you
6 guys so we all understand it together. Okay?
7 All right. A person commits an offense if he
8 intentionally prevents or obstructs a person he knows is
9 a peace officer from effecting an arrest. It's just that
10 sentence right there. He intentionally prevents or
11 obstructs a person he knows is a peace officer, okay,
12 from effecting an arrest or effecting a search or
13 transportation of that actor -- so the person who is
14 being arrested is the actor in this case -- or another
15 person by using force against that peace officer or
16 another person.
17 Okay. I know it's a little confusing, but did
18 everyone follow that and understand? Okay. He has to
19 intentionally know that he is preventing or obstructing a
20 person who he knows to be a peace officer -- and that's
21 important, all right -- from effecting an arrest. Okay.
22 So if someone goes to try and arrest him, he can not, if
23 he knows they're a peace officer and they're arresting
24 him, he can not use force and potentially prevent them
25 from arresting him. Everyone understand? Everyone
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02-13-00582-CR 27
1 good? Okay.
2 All right. The second part of that is that it's
3 no defense to prosecution under this section if the
4 arrest or search is unlawful.
5 Okay. So I'm going to try to explain that as
6 best I can. Officer Foster, I'm going to try and use you
7 to help us understand that. Okay? All right. Let's say
8 you go to make an arrest of an individual. What do you
9 need in order to make an arrest?
10 VENIREPERSON FOSTER: Probable cause.
11 MS. KUCERA: Okay. So you need to believe that
12 that person has committed an offense; is that correct?
13 VENIREPERSON FOSTER: Yes.
14 MS. KUCERA: Okay. If you go to make an arrest
15 and you believe you have probable cause, right?
16 VENIREPERSON FOSTER: Yes.
17 MS. KUCERA: What if for some reason you might
18 arrest the guy's twin brother who you think is that
19 person, but he's not. He's actually his twin brother.
20 Okay? Does that make sense? Everyone following me? So
21 he's actually arresting the wrong person, right? But he
22 believes that he's arresting the right person. Okay? So
23 we would consider that an arrest. He's trying to arrest
24 the right person. He believes he's arresting the right
25 person. Even though he arrests the wrong person, the
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02-13-00582-CR 28
1 wrong person still, the law says, cannot resist arrest.
2 Does that make sense? Okay. Everyone understand?
3 Okay. Now we're gonna break it down a little
4 bit and we're gonna go over the elements, okay. All
5 right. Okay. All right. So this is the elements, okay.
6 Mr. -- this is what -- okay. Let me explain. This is
7 what Victoria and I have to prove to you, okay, that
8 we're going to go through this trial and this is what we
9 have to prove to you, okay. The first element that we
10 have to demonstrate to you guys is that Mr. Roberson is
11 the particular person in this case, okay. Second is that
12 the offense occurred on or about July 10, 2012. Okay?
13 Second, is that it occurred in Wichita County, Texas, did
14 then and there intentionally prevent or obstruct Officer
15 Gabriel Vasquez, a person the defendant knew was a peace
16 officer, from effecting the arrest of the defendant
17 Mr. Roberson by using force against that said peace
18 officer.
19 Now, does anybody know what a peace officer is?
20 Anybody? Somebody's gotta raise their hand. Yes! Let
21 me get your name. Hang on just a second. Your name is
22 Clay Parsons, No. 23.
23 VENIREPERSON PARSONS: My definition is a person
24 who was in some kind of uniform, carrying a weapon, that
25 I could distinguish him from just a common person who was
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1 just hanging out at the bar where this was taking place.
2 MS. KUCERA: Okay.
3 VENIREPERSON PARSONS: You'd have to visually
4 know this person has some kind of authority to be doing
5 what he was doing.
6 MS. KUCERA: Okay. Very good. Does anyone else
7 agree with what Ms. Parsons said, about that they would
8 have to have some sort of demonstration that they're a
9 police officer? Raise your hand if you agree with what
10 Ms. Parsons said. There you go. Did you raise your
11 hand, sir? Good. Do you believe it as well?
12 VENIREPERSON TEAKELL: Yes, I do.
13 MS. KUCERA: Excellent. Okay. Do you wanna
14 stand up, sir, for me? Do you think there's any other --
15 say your name.
16 VENIREPERSON TEAKELL: Ronnie Teakell, No. 2.
17 MS. KUCERA: Great. Do you think there is any
18 other -- is there anything you want to add to
19 Ms. Parsons' definition?
20 VENIREPERSON TEAKELL: I think a police officer
21 is somebody who's supposed to -- supposed to protect you.
22 MS. KUCERA: Okay.
23 VENIREPERSON TEAKELL: He should have a badge or
24 some kind of emblem on his shirt so that you know he's a
25 police officer.
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1 MS. KUCERA: Okay. Great. Mr. Cavinder, could
2 you stand up, please? This is our investigator. This is
3 Mr. Cavinder. I forgot to introduce him, but I'll
4 introduce him to y'all now. Mr. Cavinder's our
5 investigator. Can you see anything on him that
6 demonstrates that he's a peace officer? Ms. Wright, what
7 do you see on him?
8 VENIREPERSON WRIGHT: The badge.
9 MS. KUCERA: He's not wearing a police uniform,
10 though, right? You can see the badge and it demonstrates
11 he's a police officer, correct?
12 VENIREPERSON WRIGHT: Correct.
13 MS. KUCERA: Good story about Mr. Cavinder.
14 This morning he sat in the witness chair and he broke it.
15 So that is a sub witness chair.
16 The next thing we're going to do is go through
17 the elements one by one. So we have the first three and
18 we're going to talk about intentionally. So the
19 defendant has to have intentionally resisted the arrest,
20 right? Okay. Anybody a baseball fan out here? Yes, oh,
21 I got a small hand. All right. Stand up and say your
22 name.
23 VENIREPERSON THOMASON: Tyler Thomason, No. 11.
24 MS. KUCERA: No. 11, okay. What's your favorite
25 baseball team?
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1 VENIREPERSON THOMASON: The Rangers.
2 MS. KUCERA: Okay. Good choice. Excellent
3 choice. All right. So is Yu Darvish the pitcher for the
4 Rangers?
5 VENIREPERSON THOMASON: Yes, he is.
6 MS. KUCERA: Good. Good job. Okay. Who is the
7 catcher for the Rangers? Do you know?
8 VENIREPERSON THOMASON: There's been three so
9 far.
10 MS. KUCERA: Okay. Give me a name, one name.
11 VENIREPERSON THOMASON: A.J. Pierzynski.
12 MS. KUCERA: A.J. Pierzynski. Okay. So Yu
13 Darvish is the pitcher for the Rangers and A.J.
14 Pierzynski, okay, is the catcher. Okay. You're a
15 baseball fan, you said, right?
16 VENIREPERSON THOMASON: Yes.
17 MS. KUCERA: Okay. So let's say the Rangers are
18 playing the Yankees, and it's bottom of the ninth and the
19 Rangers are up one-nothing. Okay? There is a man on
20 first base and there's two outs, okay, and the No. 1 home
21 run hitter in the league is going to come up to bat. All
22 right. Do you think that it's a possibility that the
23 Rangers might decide to walk that batter?
24 MR. BRILEY: It's a possibility.
25 MS. KUCERA: Okay.
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1 VENIREPERSON THOMASON: Wouldn't be smart, but
2 it's a possibility.
3 MS. KUCERA: Okay. All right.
4 Let's pretend that it is a smart idea. I'm not super
5 knowledgeable about baseball, but I know this is what
6 they do. Okay. So what do they call that when they
7 decide to walk the batter?
8 VENIREPERSON THOMASON: An intentional walk.
9 MS. KUCERA: Very good. He's doin' great, you
10 guys. Okay. So it's an intentional walk, yes. Okay.
11 So how do you, when you're the batter and/or you're a
12 fan, how do you know that they're going to do an
13 intentional walk?
14 VENIREPERSON THOMASON: Normally, the catcher
15 will stand up and move over to the side of where the
16 batter stands and hold up that other arm and the pitcher
17 will throw four balls out that way.
18 MS. KUCERA: Okay. So nowhere near the strike
19 zone, right?
20 VENIREPERSON THOMASON: Yes.
21 MS. KUCERA: Okay. Now, is the -- so is the
22 pitcher going to talk to the batter?
23 VENIREPERSON THOMASON: He could, but normally
24 no.
25 MS. KUCERA: Normally, no, right? The pitcher
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1 doesn't normally talk to the batter. All right. Does
2 the batter know that he's going to be intentionally
3 walked, though?
4 VENIREPERSON THOMASON: When he sees the catcher
5 stand up and hold his arm up.
6 MS. KUCERA: Right. Very good, yeah. So the
7 catcher will stand up and stand way outside the batter's
8 box way behind the batter's box, and he'll hold his glove
9 up way outside the strike zone to catch the ball, okay.
10 He doesn't want his pitcher throwing it anywhere near the
11 strike zone, right? He wants to walk the batter all the
12 way to first base. Okay? He wants to throw four balls
13 in a row. All right. So would it be fair to say --
14 you're doing great so you're going to keep standing up,
15 okay.
16 So intentionally. Under the Texas Penal Code,
17 it says a personal acts intentionally or with intent with
18 respect to the nature of his conduct, okay, or to a
19 result of his conduct when his conscious objective or
20 desire is to engage in the conduct or cause the result.
21 Okay? All right. I know I say okay a lot. Just bear
22 with me. We're going to get through this. Would it be
23 fair to say in an intentional walk that the pitcher is
24 aware of his conduct?
25 VENIREPERSON THOMASON: Yes.
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1 MS. KUCERA: Okay. So is it also fair to say
2 that he desires to engage in that particular conduct?
3 VENIREPERSON THOMASON: Yes.
4 MS. KUCERA: Okay. he is standing on the
5 pitcher's mound and intentionally throwing it way outside
6 the batter's box, correct?
7 VENIREPERSON THOMASON: Yes.
8 MS. KUCERA: Excellent. All right. Does he
9 know what the result's gonna be?
10 VENIREPERSON THOMASON: I would hope he would
11 know.
12 MS. KUCERA: Right. One of the two, yeah.
13 VENIREPERSON THOMASON: But, yes, normally he
14 would.
15 MS. KUCERA: Yeah. Normally, he would know,
16 right? He knows he's gonna walk that batter, okay.
17 VENIREPERSON THOMASON: Yes.
18 MS. KUCERA: So he's aware of his conduct,
19 right? He is acting with intent. He's intentionally
20 walking. They call it an intentional walk for a reason.
21 All right. Does everyone understand where I'm going with
22 this? We have to recognize we've got a person who's
23 acting with a conscious objective. He knows what his
24 actions are causing or may cause, okay. He knows that it
25 may cause this particular result or he is aware of the
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02-13-00582-CR 35
1 actions that he is currently making. Okay? He is acting
2 with purpose. Everyone understand? Yes. You've done
3 beautifully. Thank you so much. Have a seat. All
4 right. Everyone understand intentionally? You're
5 nodding. Great.
6 Okay. Now, the next part of the definition we
7 talked about is force, okay. All right. What -- let's
8 see. Mr. Garcia, would you stand up for a second? Okay.
9 And you are Anthony Garcia. Excellent. All right. What
10 does the word force mean to you?
11 VENIREPERSON GARCIA: Applying pressure.
12 MS. KUCERA: Applying pressure, okay. Good.
13 What -- you can think of it in terms of a person acting.
14 How could they use force?
15 VENIREPERSON GARCIA: They could use force to
16 get what you want.
17 MS. KUCERA: Okay. Let's work on that a little
18 bit. What would you do if you're using force. You said
19 apply pressure. Is there any other ways you could think
20 of that you would use force?
21 VENIREPERSON GARCIA: Physically.
22 MS. KUCERA: Okay. Good. What might you do if
23 you're using force physically, specifically in terms of
24 this.
25 VENIREPERSON GARCIA: Use your body, use your,
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02-13-00582-CR 36
1 you know, arms, whatever you need to do to.
2 MS. KUCERA: Yeah. No, you're right.
3 Absolutely. So you could use your arms. What about your
4 legs?
5 VENIREPERSON GARCIA: Yeah. Arms, legs, teeth.
6 MS. KUCERA: Great. You've done well. Have a
7 seat. Good job. So can anyone think of something that
8 might be less than what Mr. Garcia said, which was using
9 his arms, his legs, punching out. Is there anything else
10 anyone can think of that might possibly be considered
11 force? Yes, Ms. Parsons.
12 VENIREPERSON PARSONS: Being a teacher, I think
13 you could also use verbal force, presenting the case to
14 them. If you don't do this, this is going to happen to
15 you. To me, that would be a way of forcing the
16 situation, too.
17 MS. KUCERA: Excellent suggestion. So that is
18 great. So we have sort of two extremes here. We have
19 Ms. Parsons saying that force is, you know, it could be
20 mere words, right? And then you have Mr. Garcia
21 suggesting using your arms and legs; it's punching out,
22 it's kicking out; it's being aggressive or violent to get
23 force. That's correct? Everyone understood Mr. Garcia
24 to say that? Okay. What if I were to tell you that the
25 law falls in the middle of those two things, okay. That
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02-13-00582-CR 37
1 it has to be more than your words, but it doesn't have to
2 be as excessive as punching out, kicking out, applying
3 pressure, those sorts of things. Okay. So this is what
4 the law says. It says that it's more than mere passive
5 resistance. Okay. So I think words might qualify as
6 passive resistance. But it says that one who uses force
7 to shake off an officer's detaining grip, by pushing or
8 pulling, may be guilty of resisting arrest. Okay. So if
9 an officer has a detaining grip -- Ms. Hair, stand up.
10 VENIREPERSON HAIR: No. 4, Jamie.
11 MS. KUCERA: Jamie, okay. When I say detaining
12 grip, what does that word mean to you?
13 VENIREPERSON HAIR: Like when they have you in
14 handcuffs and I try to pull away or I push them off.
15 MS. KUCERA: Okay. Do you think detaining grip
16 could mean something less than being in handcuffs? Can
17 you think of something that's less detaining?
18 VENIREPERSON HAIR: Like if they're going to
19 grab me by the shoulder and you push them away or shake
20 them off.
21 MS. KUCERA: Very good. Absolutely right, yeah.
22 It can be just a detaining grip. Now, the law says that
23 one who uses force to shake off an officer's detaining
24 grip whether by pushing or pulling may be guilty of
25 resisting arrest. Does that sound right? Do you
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02-13-00582-CR 38
1 understand that?
2 VENIREPERSON HAIR: Yes.
3 MS. KUCERA: Okay. Detaining grip could be
4 less. Could be -- resisting arrest could be they shake
5 it off, they push, they pull away. Those are things that
6 the law is talking about that could be resisting arrest.
7 Done great. Have a seat. Gonna keep going.
8 All right. So this is the second definition of
9 force. The statute is also satisfied by evidence of
10 jerking against, okay, turning in circles to resist and
11 struggling against an officer's efforts at making an
12 arrest. Okay? Mr. Billing, would you stand up, please?
13 VENIREPERSON BILLING: Douglas Billing, No. 7.
14 MS. KUCERA: Mr. Billing, the jerking against or
15 turning in circles, what do you think that means to you.
16 VENIREPERSON BILLING: Basically turning away
17 from the officer.
18 MS. KUCERA: Okay. If there is -- yes,
19 absolutely right. What about struggling against an
20 officer's efforts at making an arrest? What does that
21 mean?
22 VENIREPERSON BILLING: I imagine it would be
23 trying to step away from him or get space between you and
24 him.
25 MS. KUCERA: Okay. Excellent. Yes, you're
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1 absolutely right. If I were to tell you that the law,
2 like I said, is more than -- have a seat. Great job. So
3 we talked about, Ms. Parsons, how that it's more than
4 your words, but it's not -- it doesn't have to be as
5 violent or aggressive as punching or pulling and kicking
6 out. It can be that. If, in fact, it is that,
7 that can also be resisting arrest. But it can also be
8 less than that. Does everyone understand? Ms. Vale, do
9 you understand what that means?
10 VENIREPERSON VALE: Yes.
11 MS. KUCERA: The law is somewhere between those
12 two, and I've given you two cases that talk about what --
13 something less than words -- or something more than
14 words, less than violence?
15 VENIREPERSON VALE: Yes.
16 MS. KUCERA: If that's how the statute is
17 defined, can you follow the law?
18 VENIREPERSON VALE: Great. Mr. Billing, you
19 understand?
20 VENIREPERSON BILLING: Yeah.
21 MS. KUCERA: Officer Foster?
22 VENIREPERSON FOSTER: Yeah.
23 MS. KUCERA: Mr. Garcia, do you understand
24 that?
25 VENIREPERSON GARCIA: Yeah.
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1 MS. KUCERA: And Ms. Hair?
2 VENIREPERSON HAIR: Yes.
3 MS. KUCERA: Okay. Ms. Wright, you understand
4 that?
5 VENIREPERSON WRIGHT: Yes.
6 MS. KUCERA: Good. Mr. Teakell, make sense to
7 you?
8 VENIREPERSON TEAKELL: Yes.
9 MS. KUCERA: Great. Ms. Taylor?
10 VENIREPERSON TAYLOR: I haven't heard from you.
11 I'm probably going to call on you in a second, okay?
12 You'll be great. Don't worry. Okay. Can anyone talk to
13 me about what an arrest means just generally? What do
14 you think of when you hear the word arrest?
15 Ms. McClesky, stand on up, No. 12. What do you think of
16 when you hear the word arrest?
17 VENIREPERSON MCCLESKY: To me it means like if
18 you're doing something wrong, outside the law, you get
19 arrested; you get in trouble.
20 MS. KUCERA: Okay. Absolutely right. What do
21 you think of as an example of when you can get arrested?
22 VENIREPERSON MCCLESKY: Maybe when you're in a
23 fight with somebody.
24 MS. KUCERA: Okay. So let's say -- good. Great
25 example. Let's say you are in a supermarket shopping and
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02-13-00582-CR 41
1 you see two people getting in an argument, right? You
2 see it. You tell someone to call the cops. The cops
3 arrive and they see, physically see, the two people
4 fighting.
5 VENIREPERSON MCCLESKY: Right.
6 MS. KUCERA: Do you think it's a reasonable time
7 to arrest them?
8 VENIREPERSON MCCLESKY: I would think it would
9 be a reasonable time to detain them. I don't know if it
10 would result in an arrest.
11 MS. KUCERA: Okay. So let's say they -- all
12 right. All right. So what they did is they actually
13 physically committed a -- all right.
14 Maybe they -- let's say they stole from the supermarket.
15 You watched them; the officer saw them steal; and then
16 they decided that they had enough to arrest them. Okay.
17 The officer has physically witnessed the crime. That
18 would be a reasonable time to arrest them?
19 VENIREPERSON MCCLESKY: Yes.
20 MS. KUCERA: Great. You've done great.
21 Awesome. Have a seat. All right. Ms. Taylor, I told
22 you I was gonna call on you. You're good.
23 VENIREPERSON TAYLOR: Yes. Cheryl Taylor, No.
24 1.
25 MS. KUCERA: Juror No. 1. It's a good place to
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02-13-00582-CR 42
1 be. Ms. Taylor, can you think of a time where maybe the
2 officer didn't physically witness the crime occur, but
3 that he would still maybe have showed up later and still
4 have reason to arrest the person who committed the
5 crime?
6 VENIREPERSON TAYLOR: Yeah, the eyewitnesses
7 and, you know, just what he sees there and --
8 MS. KUCERA: Excellent. Okay. So he may not
9 have seen it, but he shows up later and let's say 15
10 eyewitnesses all tell him the same story and they all
11 point to this person and say I saw it; he committed this
12 crime; you know, I witnessed it. Does that seem like a
13 reasonable time to make an arrest?
14 VENIREPERSON TAYLOR: Uh-huh.
15 MS. KUCERA: Ms. Taylor, you've done great.
16 Have a seat. Mr. Foster, I'm going to have you stand up
17 again. What is -- let's say that the police department
18 gets a tip about a crime that may have occurred. Okay?
19 And then they conduct an investigation. Right? Okay.
20 You know, they might conduct interviews. What else might
21 they do in this investigation?
22 VENIREPERSON FOSTER: Look at all the evidence
23 involved.
24 MS. KUCERA: Okay.
25 VENIREPERSON FOSTER: Witnesses, even speaking
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1 with the person that's accused and determining what all
2 they have.
3 MS. KUCERA: All right. Let's say that they --
4 after doing all that you said, witnesses, reviewing
5 evidence, talking to people, talking to victims, maybe,
6 let's say that they think they're almost positive they
7 know who committed the crime. Okay. What would the
8 steps be? What would happen if that was the case? What
9 would they do if they were almost positive that was the
10 person who committed the crime?
11 VENIREPERSON FOSTER: If they had probable cause
12 to believe they committed the crime and it was arrestable
13 at that time, they would go make the arrest.
14 MS. KUCERA: What would they have to do before
15 they make the arrest, though? Would they have to see a
16 judge about something?
17 VENIREPERSON FOSTER: Depends on the
18 circumstances.
19 MS. KUCERA: Okay. If I were to tell you they
20 were issued a warrant, what is that? How does that work?
21 What does that do?
22 VENIREPERSON FOSTER: Well, that's already
23 signed by a judge ordering the arrest of that person.
24 MS. KUCERA: Okay.
25 VENIREPERSON FOSTER: Usually, it's a command to
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1 the police officer to make that arrest.
2 MS. KUCERA: Okay. So that's also another time.
3 If they think they have probable cause to make an arrest,
4 they can go get a warrant issued by what is called a
5 neutral magistrate or a judge to say that you have
6 probable cause to arrest this person; I'm issuing a
7 warrant for this person's arrest?
8 VENIREPERSON FOSTER: Right.
9 MS. KUCERA: Is that a fair assessment of how
10 that works?
11 VENIREPERSON FOSTER: Yes.
12 MS. KUCERA: So if they have a warrant for the
13 arrest, can they go and make the arrest?
14 VENIREPERSON FOSTER: Yes.
15 MS. KUCERA: Great. Officer, you did good
16 again. Well done. So we talked about three different
17 ways that we can make an arrest, right? One of the ways
18 is the officer personally witnesses the crime. Okay?
19 The second way is that they show up to the crime later,
20 but all the eyewitnesses confirm what happened and they
21 can arrest the person based on what they've seen at the
22 scene and then also spoken to the eyewitnesses. Then
23 Mr. Foster talked about the way that they can -- you
24 know, if they, as a result of an investigation, they
25 believe they have probable cause, they get a warrant
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02-13-00582-CR 45
1 issued for his arrest and they can go make the arrest of
2 that person. Anybody have any questions about those
3 three ways that we talked about? Feel free to raise your
4 hand. It's okay. I can go slower. Everyone got it?
5 Okay. All right. So very good.
6 All right. So warrants and arrests. We kind of
7 talked about it briefly. We'll go into a little more
8 detail. The Texas Code of Criminal Procedure says that
9 officers executing an arrest warrant, which is the type
10 that Mr. Foster talked about, they must have a reasonable
11 belief, okay, that the suspect resides at the place to be
12 entered and they must also have reason to believe the
13 suspect is present at the time the warrant is executed.
14 All right. I'm going to try and explain that a
15 little bit but use you guys to explain. All right. Now,
16 when -- Mr. Teakell, stand up again. You're doing great.
17 VENIREPERSON TEAKELL: No. 2.
18 MS. KUCERA: Okay. If I were to say that the
19 officers executing an arrest warrant must have a
20 reasonable belief, okay, that the suspect resides at that
21 time place that they are entering in order to arrest him,
22 what does reasonable belief mean to you.
23 VENIREPERSON TEAKELL: He has information that
24 he's there.
25 MS. KUCERA: Okay. Does that mean they have to
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1 know 100 percent that sure he's there.
2 VENIREPERSON TEAKELL: I wouldn't think so.
3 MS. KUCERA: Right. Reasonable belief doesn't
4 say hundred percent. It just says reasonable belief,
5 okay. What do you think they could use to find out --
6 let's say it's his home. What do you think they could
7 use to find out that he is at the home at the time.
8 VENIREPERSON TEAKELL: Information that he lives
9 there, his neighbors, whoever lives there, if he lives
10 there.
11 MS. KUCERA: Okay. Great. Have a seat. You've
12 done great. See, I told you guys he this is easy. So
13 reasonable belief that he's there. What about -- let's
14 see. Ms. Schmidt, stand up.
15 VENIREPERSON SCHMIDT: Tina Schmidt, No. 13.
16 MS. KUCERA: Okay. Ms. Schmidt, we talked about
17 they had information or talked to their neighbors. What
18 other information do you think they might be able to use
19 to determine if they have a reasonable belief that that
20 person's home?
21 VENIREPERSON SCHMIDT: If they've done any
22 surveillance or checked his work record, his work, know
23 he's off and when he would probably be home.
24 MS. KUCERA: Great. That's excellent. You're
25 absolutely right. That is something they could use. He
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1 works at this time every day; he comes home from work,
2 checks the mail. Excellent. Very, very good. All
3 right. It also says in the second part of the definition
4 that they also have reason to believe that the suspect is
5 present at the time the warrant is executed. So we
6 talked about how we might know that he's at that
7 particular place. How would we know that he's actually
8 present?
9 VENIREPERSON SCHMIDT: Someone had watched him
10 go in, set up surveillance and seen him come and go,
11 maybe some other neighbors or something.
12 MS. KUCERA: What about if his car is in the
13 driveway?
14 VENIREPERSON SCHMIDT: Yeah.
15 MS. KUCERA: Would that make sense that he was
16 there?
17 VENIREPERSON SCHMIDT: That seems reasonable.
18 MS. KUCERA: Very excellent. Done great. Have
19 a seat. Okay. All right. So warrants and arrests in
20 Texas. We talked about how the -- that particular case
21 that we're talking about that defines when officers can
22 make an arrest using a warrant, that comes from the
23 Supreme Court of the United States. Okay. So the
24 Supreme Court is the highest court in the whole land.
25 Every court in the nation has to follow what they say.
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1 Now, state courts like the Texas Supreme Court
2 can qualify what the Supreme Court says and help the
3 lower courts understand. That's what happens in this
4 case. So I'm going to explain to you warrants and
5 arrests in Texas, okay. So in Texas, a warrant for a
6 Class C offense -- anyone know what a Class C offense
7 is? Someone I haven't heard from? Class C offense?
8 Anyone. Okay.
9 VENIREPERSON RIPPERGER: Debbie Ripperger, 20.
10 A Class C is a misdemeanor.
11 MS. KUCERA: It is a misdemeanor. Good, yes.
12 If I were to say a speeding ticket is a Class C offense,
13 does that sound like that's a correct answer?
14 VENIREPERSON RIPPERGER: Yes.
15 MS. KUCERA: Yes, you are correct. So a
16 speeding ticket is a Class C offense. Okay. Very good.
17 All right. So what this case says is that a warrant for
18 a Class C offense and failure to appear warrant, which
19 is, you know, can be enough to justify entry into a
20 defendant's home to make an arrest. The officers still
21 have to have reason to believe that the defendant is home
22 at that time, okay.
23 So what I'm gonna try to explain is -- who's
24 going to be the lucky person? Mr. Litteken? You're
25 good.
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1 VENIREPERSON LITTEKEN: No. 9, Gerald Litteken.
2 MS. KUCERA: Ms. Ripperger suggested that a
3 Class C offense is a misdemeanor. We classify offenses,
4 I guess, in two different ways. We have misdemeanors and
5 then we have the more serious offenses. Do you know what
6 those are called?
7 VENIREPERSON LITTEKEN: A felony.
8 MS. KUCERA: Felony. Very good. So if I tell
9 you a felony is more serious than a misdemeanor, and I'm
10 telling you that the Court says that we can or that
11 officers, if they have a reason to believe that the
12 defendant is home at that time, they can make an arrest
13 for not only something as serious as a felony, but also
14 something for a Class C misdemeanor, which is the lowest
15 offense. Does that right? Does that make sense? Do you
16 understand that?
17 VENIREPERSON LITTEKEN: Uh-huh.
18 MS. KUCERA: Okay. So if I were to tell you
19 that the law says they can make an arrest by a Class C
20 offense if they believe that the defendant is home at
21 that time, does that sound like something that you could
22 follow if I tell you that if the judge instructs you that
23 if you believe that the officers had reason to believe
24 that they could make an arrest, that you could follow the
25 judge's instructions?
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1 VENIREPERSON LITTEKEN: Sure.
2 MS. KUCERA: What about you, Ms. Taylor?
3 VENIREPERSON TAYLOR: No. 1.
4 MS. KUCERA: If you believe that the officers
5 had reason to believe that they were making -- that the
6 defendant was home and that they could arrest him for
7 something as low as a Class C offense, but also something
8 that's as serious as a felony, that they could go into
9 his home and make an arrest?
10 VENIREPERSON TAYLOR: Yes.
11 MS. KUCERA: If the judge told you that that was
12 something, an instruction you have to follow, you could
13 do that?
14 VENIREPERSON TAYLOR: Yes.
15 MS. KUCERA: Okay. Good. What about you,
16 Mr. Teakell?
17 VENIREPERSON TEAKELL: I believe that's correct.
18 MS. KUCERA: Okay. You could follow the judge's
19 instructions?
20 VENIREPERSON TEAKELL: Yes.
21 MS. KUCERA: Great. Ms. Wright, what about you?
22 VENIREPERSON WRIGHT: Yes.
23 MS. KUCERA: Okay. Ms. Hair?
24 VENIREPERSON HAIR: Yes.
25 MS. KUCERA: Perfect. Mr. Garcia, do you think
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1 you could follow those instructions?
2 VENIREPERSON GARCIA: Yes.
3 MS. KUCERA: Okay. Do you have any questions
4 about what we talked about?
5 VENIREPERSON GARCIA: No.
6 MS. KUCERA: Mr. Foster, what about you?
7 VENIREPERSON FOSTER: Yes.
8 MS. KUCERA: You could?
9 VENIREPERSON FOSTER: I think I could.
10 MS. KUCERA: What about you, Mr. Billing?
11 VENIREPERSON BILLING: Yes.
12 MS. KUCERA: And Ms. Vale?
13 VENIREPERSON VALE: Yes.
14 MS. KUCERA: Ms. McKinley, is that something you
15 could you follow?
16 VENIREPERSON MCKINLEY: Yes.
17 MS. KUCERA: Okay. Ms. Steele?
18 VENIREPERSON STEELE: Yes.
19 MS. KUCERA: Great. Mr. Jantz, is that correct?
20 VENIREPERSON JANTZ: Yes, ma'am.
21 MS. KUCERA: Okay. Is that something you could
22 follow if it's an instruction?
23 VENIREPERSON JANTZ: Yes, ma'am.
24 MS. KUCERA: If you believed that officers had
25 reasonable belief to be in the home that they could
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1 arrest the defendant for something like a felony or Class
2 C offense, they could enter his home to do that?
3 VENIREPERSON JANTZ: Yes, ma'am.
4 MS. KUCERA: Okay, great. And Ms. Schmidt?
5 VENIREPERSON SCHMIDT: Yes.
6 MS. KUCERA: Good. And Ms. McClesky?
7 VENIREPERSON MCCLESKY: Yes.
8 MS. KUCERA: Mr. Thomason, my baseball guy?
9 VENIREPERSON THOMASON: Yes.
10 MS. KUCERA: You could do that. All right.
11 Mr. Vasquez, what about you?
12 VENIREPERSON VASQUEZ: Yes.
13 MS. KUCERA: Great. Okay. All right. So we're
14 going to review what we talked about to make sure you
15 understand the Penal Code. We have to prove that
16 Mr. Roberson, on or about July 10th of 2012, in Wichita
17 County, Texas, did then and there intentionally -- my
18 baseball fan over here gave us a definition of
19 intentionally, right -- did then and there obstruct
20 Gabriel Vasquez, a person the defendant knew was a peace
21 officer, from effecting an arrest of the defendant by
22 using force against said peace officer.
23 And Mr. Garcia and Ms. Parsons gave us the range
24 of or definition of force, right? Everyone got it?
25 Everyone understand? Okay. All right.
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1 So the next thing we're going to talk about is
2 the burden of proof. Anyone here know what the burden of
3 proof is in a criminal case? Some of you have served on
4 a criminal jury before; is that correct? Anyone remember
5 what the burden is? Anybody.
6 VENIREPERSON BILLING: Beyond a reasonable
7 doubt.
8 MS. KUCERA: Mr. Billing. Stand up. You got it
9 right. Five points. What did you say?
10 VENIREPERSON BILLING: Beyond a reasonable
11 doubt.
12 MS. KUCERA: Beyond a reasonable doubt.
13 Mr. Billing, great job. That is true. Beyond a
14 reasonable doubt is the standard that Victoria and I will
15 have to approve to you the elements of the case that we
16 just went over, okay. All right. So beyond a reasonable
17 doubt, what is it? Do you have a suggestion for what
18 beyond a reasonable doubt is, or is it self-explanatory?
19 VENIREPERSON BILLING: It's self-explanatory.
20 MS. KUCERA: Okay. By the way, you're doing a
21 great job. Thank you. All right. Let me tell you what
22 beyond a reasonable doubt is not. It's not beyond all
23 doubt, okay. It's not beyond the shadow of a doubt or
24 not beyond any doubt, okay. It's beyond a reasonable
25 doubt, okay. So you can have a doubt, but it has to be
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02-13-00582-CR 54
1 based in reason. All right.
2 This is the best example I could come up with.
3 I'm going to try to help you understand what beyond a
4 reasonable doubt means. I don't know if you guys are
5 familiar with the process of law school, but we have
6 professors and they teach us different subjects. My
7 professor, which I lovingly refer to, we call him Uncle
8 Murray, of course not in class. But his name is
9 Professor Tabb. He taught us contracts and torts and a
10 class called law and literature.
11 All right. In torts, they were things like
12 were they acting with negligence or were their actions
13 reasonable under the circumstances? Torts is civil, so
14 we don't have to worry about that right now. But the
15 reason I bring up Professor Tabb is that he kept
16 explaining to us that the courts, when they're doing
17 negligence evaluations, always use a demonstration of the
18 reasonable man. So it kind of became a joke in our law
19 school class that Professor Tabb, who drinks coffee; he's
20 a deacon at his church and loves the book to kill a
21 mocking bird; he wears argyle, has the same cup of coffee
22 every morning; he's just Mr. Practical. So we used to
23 joke that he was a reasonable man. What Mr. Tabb thinks
24 is reasonable may not be the same thing that Mr. Garcia
25 thinks is reasonable. Okay? Reasonableness is sort of
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02-13-00582-CR 55
1 subjective. It's what each individual thinks is
2 reasonable. Okay? everyone understand what I'm talking
3 about?
4 All right. Is there anyone in here that is a
5 television fan of, let's say, NBC's, in the late 90's,
6 the Must See TV lineup? Anyone watch those shows?
7 Seinfeld? Frasier? Mr. Jantz, all right. All right.
8 Mr. Jantz, stand up for just a second.
9 VENIREPERSON JANTZ: Fourteen, Chris Jantz.
10 MS. KUCERA: Okay. Mr. Jantz, you watched that
11 lineup, right? You watched Seinfeld? Frasier? Did you
12 watch the whole lineup? Did you watch Friends as well?
13 VENIREPERSON JANTZ: I watched them all.
14 MS. KUCERA: Great. Okay, so you're familiar
15 with the shows then?
16 VENIREPERSON JANTZ: Yes.
17 MS. KUCERA: Okay. If I were to show you this
18 picture, could you tell me what that's a picture of? Not
19 a trick question.
20 VENIREPERSON JANTZ: Some of the friends.
21 MS. KUCERA: Okay. Do you see those parts that
22 are blacked out?
23 VENIREPERSON JANTZ: Yes, ma'am.
24 MS. KUCERA: Okay. So do you see there are two
25 people that are sort of blacked out, but you can see that
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1 they're still in the photograph, right?
2 VENIREPERSON JANTZ: Yes, ma'am.
3 MS. KUCERA: So if I were to ask you what that's
4 a picture of, what would you say?
5 VENIREPERSON JANTZ: Some of the friends.
6 MS. KUCERA: Okay. How many friends are there?
7 Do you remember?
8 VENIREPERSON JANTZ: Six.
9 MS. KUCERA: Six. Very good. Are there six
10 people in the photo?
11 VENIREPERSON JANTZ: Yes.
12 MS. KUCERA: Yes, there are. So it is a picture
13 of the cast of Friends. Mr. Jantz, you are correct. It
14 is a picture of the cast of Friends. Anyone else
15 recognize that photograph? Okay. All right.
16 Ms. Wright, do you recognize that photograph?
17 VENIREPERSON WRIGHT: Yes.
18 MS. KUCERA: Did you watch Friends?
19 VENIREPERSON WRIGHT: I did.
20 MS. KUCERA: Okay. Stand up. Mr. Jantz, good
21 job. Ms. Wright, you watched Friends, right?
22 VENIREPERSON WRIGHT: Yes.
23 MS. KUCERA: Okay. Did you look at this picture
24 and also know that it was the cast of Friends?
25 VENIREPERSON WRIGHT: Yes.
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1 MS. KUCERA: Okay. Now, let me ask you this.
2 You can't see the whole picture, right?
3 VENIREPERSON WRIGHT: Right.
4 MS. KUCERA: But you can see four of them and
5 you can see that there are two other people in that
6 photograph; is that correct?
7 VENIREPERSON WRIGHT: That's correct.
8 MS. KUCERA: Okay. Now, did you know beyond a
9 reasonable doubt that it was the cast of Friends?
10 VENIREPERSON WRIGHT: No.
11 MS. KUCERA: You didn't? Okay. Why not?
12 VENIREPERSON WRIGHT: The left hand side of the
13 picture is faded.
14 MS. KUCERA: Okay. We talked with Mr. Jantz
15 about how he liked the Must See TV lineup, all that kind
16 of stuff, right? He talked about how he liked the show
17 Friends. Okay. And if I were to show you a picture and
18 you could see four of them, but you couldn't see the
19 other two --
20 VENIREPERSON WRIGHT: I would assume that it's
21 the cast of Friends.
22 MS. KUCERA: Okay. Yes, you would assume that
23 it's the cast of Friends, right?
24 VENIREPERSON WRIGHT: Right.
25 MS. KUCERA: Okay. Let me ask you this. Do you
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1 think if I was doing a demonstration that it would be,
2 let's say, reasonable for me to put four of the cast of
3 Friends but two people that are like arbitrary and aren't
4 related. Does that seem like a reasonable thing that I
5 would do?
6 VENIREPERSON WRIGHT: No.
7 MS. KUCERA: No. Okay. So maybe it would be
8 fair to say that you knew or your assumed beyond a
9 reasonable doubt that that was the cast of Friends?
10 Okay?
11 VENIREPERSON WRIGHT: I assumed, yes.
12 MS. KUCERA: Yes, okay. Have a seat. Great
13 job.
14 Okay. Now, in this particular case, you know, I
15 obviously was trying to do a demonstration where I
16 blacked out some of the photographs because you can't see
17 the whole picture. In this particular case, if you --
18 let's say Officer Foster was on duty that day and he
19 witnessed the entire event taking place, we would
20 probably call him as a witness, correct? He saw the
21 whole thing take place, right? He would be a witness in
22 that case. He would have seen all the elements take
23 place of that offense. So we would call him as a
24 witness. So he couldn't be a juror because he would have
25 seen the whole picture. Understand?
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1 So in this case we're going to bring in
2 witnesses who will tell you what they saw and try to fill
3 in as much of the picture as they can. There may be
4 things blacked out, but they're going to try to give you
5 as much of the picture that happened. Now, I'm going to
6 ask each of you if you can follow the law and not hold
7 the State to a higher burden than beyond a reasonable
8 doubt, okay. Understand what I'm asking you?
9 All right. Ms. Taylor, I'll have you stand up
10 again. All right. Do you think that you can --
11 reasonable is different for each person, right?
12 VENIREPERSON TAYLOR: Yes.
13 MS. KUCERA: We talked about that. Okay. So
14 your definition of reasonable may be different than
15 Mr. Teakell's, right?
16 VENIREPERSON TAYLOR: Uh-huh.
17 MS. KUCERA: Do you think that you can still
18 promise not to hold the State to a higher burden than
19 beyond a reasonable doubt? Can you do that?
20 VENIREPERSON TAYLOR: I think so.
21 MS. KUCERA: Is that yes?
22 VENIREPERSON TAYLOR: Yes.
23 MS. KUCERA: Yes or no only.
24 VENIREPERSON TAYLOR: Yes.
25 MS. KUCERA: All right. Mr. Teakell, can you
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1 stand up? We talked about this. Beyond a reasonable
2 doubt. It's different for you. Professor Tabb is the
3 epitome of practicality. His may be different than
4 yours. Can you promise not to hold the State to a higher
5 burden than beyond a reasonable doubt?
6 VENIREPERSON TEAKELL: Yes.
7 MS. KUCERA: You can. Excellent. Great job.
8 Ms. Wright, stand up again. All right. Do you think
9 that you could promise not to hold the State to a higher
10 burden than beyond a reasonable doubt?
11 VENIREPERSON WRIGHT: Yes.
12 MS. KUCERA: Okay. And you could be fair in
13 this case?
14 VENIREPERSON WRIGHT: Yes.
15 MS. KUCERA: Great. Have a seat. Ms. Hair.
16 All right. Do you understand that reasonableness is
17 different for each person?
18 VENIREPERSON HAIR: Yes.
19 MS. KUCERA: Okay. And you're not going to
20 require us to fill in the whole picture, just the same
21 standard that's beyond a reasonable doubt, and that's
22 reasonable in your mind?
23 VENIREPERSON HAIR: Yes.
24 MS. KUCERA: Have a seat. Mr. Garcia, stand up.
25 Same question. Do you think that you can -- you can
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1 promise not to hold the State to a higher burden than
2 beyond a reasonable doubt in this case? You're not going
3 to require us to fill out every single detail of every
4 picture, but you're gonna hold us to the standard of
5 beyond a reasonable doubt? And reasonableness is your
6 own opinion.
7 VENIREPERSON GARCIA: The State?
8 MS. KUCERA: Well, okay. Let me say this.
9 You're not going to hold the State to a higher burden
10 than beyond a reasonable doubt?
11 VENIREPERSON GARCIA: Yes.
12 MS. KUCERA: Okay. All right. Have a seat.
13 Mr. Foster, could you please stand up.
14 VENIREPERSON FOSTER: Yes to the question you
15 asked No. 5, Mr. Garcia.
16 MS. KUCERA: Okay. All right. Just -- I know,
17 I know. Do you think that you can hold -- promise not to
18 hold the State to a higher burden than beyond a
19 reasonable doubt?
20 VENIREPERSON FOSTER: Yes.
21 MS. KUCERA: What's reasonable is different to
22 you than Mr. Garcia, than Ms. Hair, than Ms. Wright.
23 VENIREPERSON FOSTER: I promise.
24 MS. KUCERA: Okay. Mr. Billing, do you
25 understand what we're talking about when we say beyond a
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1 reasonable doubt?
2 VENIREPERSON BILLING: Yes.
3 MS. KUCERA: You said it's self-explanatory; you
4 understand it. Very good. And you promise not to hold
5 the State to a higher burden than beyond a reasonable
6 doubt?
7 VENIREPERSON BILLING: Yes.
8 MS. KUCERA: Okay. And that you're not going to
9 require us to fill the whole picture, but just beyond a
10 reasonable doubt to you, with reasonableness as your own
11 definition?
12 VENIREPERSON BILLING: Yes.
13 MS. KUCERA: Have a seat. Doing great.
14 Ms. Vale, same question. Do you promise not to hold the
15 State to a higher burden than beyond a reasonable doubt?
16 VENIREPERSON VALE: (Nods head) I will.
17 MS. KUCERA: Now, I'll try to go a little bit
18 slower, but I need a confirmation. I need a yes or a no
19 from each juror. Mr. Litteken, can you promise not to
20 hold the State to a higher burden than beyond a
21 reasonable doubt?
22 VENIREPERSON LITTEKEN: Yes, ma'am.
23 MS. KUCERA: Mr. Vasquez?
24 VENIREPERSON VASQUEZ: Yes.
25 MS. KUCERA: Okay. Mr. Thompson? I'm sorry.
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1 Mr. Thomason?
2 VENIREPERSON THOMASON: Yes.
3 MS. KUCERA: Okay. Ms. McClesky?
4 VENIREPERSON MCCLESKY: Yes.
5 MS. KUCERA: Ms. Schmidt?
6 VENIREPERSON SCHMIDT: Yes, I can.
7 MS. KUCERA: Mr. Jantz?
8 VENIREPERSON JANTZ: Yes, ma'am.
9 MS. KUCERA: Okay. Ms. Steele?
10 VENIREPERSON STEELE: Yes.
11 MS. KUCERA: Ms. McKinley?
12 VENIREPERSON MCKINLEY: Yes.
13 MS. KUCERA: And Mr. Davis?
14 VENIREPERSON DAVIS: Yes.
15 MS. KUCERA: Ms. Parsons?
16 VENIREPERSON PARSONS: Yes.
17 MS. KUCERA: And Ms. Reno?
18 VENIREPERSON TREJO: Yes.
19 MS. KUCERA: Okay. And Ms. Ripperger?
20 VENIREPERSON RIPPERGER: Yes.
21 MS. KUCERA: What about you, Ms. Logsdon?
22 VENIREPERSON LOGSDON: Yes.
23 MS. KUCERA: And Mr. Young?
24 VENIREPERSON YOUNG: Yes, ma'am.
25 MS. KUCERA: Okay. And Mr. Chavez?
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1 VENIREPERSON CHAVEZ: Yes.
2 MS. KUCERA: Okay. All right.
3 So one of the things we're going to talk about
4 is a lot of times in the case the defense is going to
5 assert, properly named, a defense, right. In this case,
6 the Penal Code provides a defense of self-defense, okay.
7 Now, in the case of resisting arrest, can anyone think of
8 a reason why the legislature might carve out a defense of
9 self-defense? Any reason? Let me ask it this way.
10 Mr. Foster, how long have you been an officer?
11 VENIREPERSON FOSTER: Total of 15 years.
12 MS. KUCERA: So quite a while?
13 VENIREPERSON FOSTER: Yes.
14 MS. KUCERA: Okay. In your 15 years, using your
15 own observations and your own experiences, are you aware
16 of that there are good cops and there are occasionally
17 maybe a cop that isn't the best at being a cop; is that
18 correct?
19 VENIREPERSON FOSTER: Any time you have humans
20 doing a job, there's going to be some.
21 MS. KUCERA: Okay. So is it fair to say that
22 there might be a time when an officer might potentially
23 abuse his authority?
24 VENIREPERSON FOSTER: Yeah.
25 MS. KUCERA: And it doesn't happen often, but
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1 they might abuse their authority; okay?
2 VENIREPERSON FOSTER: Right.
3 MS. KUCERA: Is that fair?
4 VENIREPERSON FOSTER: Yeah, that's fair.
5 MS. KUCERA: So in resisting arrest, can you
6 think of a reason why they might allow in a limited
7 circumstance this defense of self-defense?
8 VENIREPERSON FOSTER: Yeah, if you had an
9 officer who was -- their intent was hurting or killing
10 that person or using excessive force to inflict serious
11 bodily injury or death, I think the law would allow for a
12 person to fight back in that instance.
13 MS. KUCERA: That's an excellent point. If it's
14 the officer's goal to use physical violence, you know,
15 that person might be able to defend themselves against
16 something that severe?
17 VENIREPERSON FOSTER: Yes.
18 MS. KUCERA: Is that what you're saying?
19 VENIREPERSON FOSTER: Yes.
20 MS. KUCERA: Okay. Does everyone understand
21 what Officer Foster is saying? That they could protect
22 themselves from that kind of extreme violence. All
23 right. This is the statutory definition of self-defense
24 in this type of case, in resisting arrest. "The use of
25 force to resist an arrest is justified," -- all right,
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1 the statute says it's limited, but allowed in this
2 particular circumstance: "if, before the actor", who is
3 the person who is being arrested, "offers any
4 resistance." So if before the actor offers any
5 resistance -- which means, we talked about what resisting
6 arrest means, shake off a grip, twist, turn, step away
7 from the officer. Those are all types of resisting
8 arrest, right? "If before the actor offers any
9 resistance at all, the peace officer uses or attempts to
10 use what we call greater force than necessary," all
11 right, "to make an arrest."
12 So that's the first part of the definition.
13 Let's see. Mr. Vasquez, can you stand up for me?
14 VENIREPERSON VASQUEZ: Ten, Thomas Vasquez.
15 MS. KUCERA: Okay. If I were to give you this
16 scenario: A seven-year-old walks into Walgreen's, and
17 she takes -- let's see. I don't even know if they sell
18 iPods at Walgreen's, but let's pretend that they do. So
19 let's say this seven-year-old really wants an iPod and,
20 okay, and she takes an iPod and goes out of the store
21 with it.
22 And let's say Officer Foster is in the store.
23 He witnesses the seven-year-old take the iPod out of the
24 store, and he runs up to the seven-year-old when she
25 exits the store, and he uses his taser on a seven-year-
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1 old girl in pig tails and a girl scout uniform, okay.
2 And he takes her to the ground because, you know what,
3 she committed an offense and that is against the law.
4 Okay? If I were to give you that scenario, would you
5 think tasing a seven-year-old would be maybe greater
6 force than necessary?
7 VENIREPERSON VASQUEZ: Yes.
8 MS. KUCERA: Okay, great. You've done great.
9 Have a seat. All right. Now, officer foster, would you
10 tase a seven-year-old if she stole an iPod?
11 VENIREPERSON FOSTER: No.
12 MS. KUCERA: Okay. But is that protocol to tase
13
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