stating that it may consider waived argument if a 'miscarriage of justice' would - 17 - | P a g e otherwise result and it raises a pure issue of law
How later courts described this case
- stating that it may consider waived argument if a 'miscarriage of justice' would - 17 - | P a g e otherwise result and it raises a pure issue of law
- although appellate court usually refuses to consider issues not raised before trial court, appellate court will make exception when new issue raises pure question of law, and failure to consider would result in miscarriage of justice
- appellant moved to suppress evidence of drug possession where no probable cause for arrest
- sobriety tests of counting and reciting alphabet not testimonial in nature; defendant’s Fifth Amendment rights not implicated
Written by the judges who cited it.
The opinion
PD-0124-15
COURT OF CRIMINAL APPEALS
PD-0124-15 AUSTIN, TEXAS
Transmitted 2/5/2015 5:19:12 PM
Accepted 2/6/2015 3:34:11 PM
ABEL ACOSTA
CLERK
IN THE UNITED STATES COURT OF CRIMINAL APPEALS
5TH Court of Appeals Number 05-14-00025-CR
Trial Court: County Court at Law No 2. 002-80051-3031, Honorable Barnett Walker
MELLANNISE HENDERSON
PETITIONER
V.
THE STATE OF TEXAS
RESPONDENT
______________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
Law Office of Mellannise Henderson-Love, P.L.L.C.
Mellannise Henderson-Love
Attorney for Petitioner State
Bar No. 0079674
3102 Maple Avenue, Suite 400
Dallas, Texas 75201
Tel: (214) 638-8777
Fax: (214) 291-5331
February 9, 2015
IDENTITY OF PARTIES AND COUNSEL
The following constitutes a list of all parties to the trial court's final judgment and the names and
addresses of all trial and appellate counsel:
Petitioner Mellannise Henderson
Petitioner's trial counsel Kevin Brooks
Petitioner's appellate counsel Mellannise Henderson Love
Respondent The State of Texas
Respondent's trial counsel Gregg Willis, District Attorney,
2100 Bloomdale Road,
McKinney Texas 75071
Respondent's appellate counsel Gregg Willis, District Attorney,
2100 Bloomdale Road,
McKinney Texas 75071
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL…………………………………………………………….2
STATEMENT OF JURISDICTION: ................................................................................................... - 4 -
STATEMENT OF THE CASE:................................................................................................................. 5
ISSUE PRESENTED .................................................................................................................................. 6
STATEMENT OF FACTS .......................................................................................................... ……… 6
SUMMARY OF PETITIONER’S ARGUMENT ……………………………………………………8
ARGUMENTS AND AUTHORITIES: ............................................................................................... 8
B. DWI-Applicable Law: ...................................................................................................................... 8
NO PROBABABLE CUASE TO ARREST: ........................................................................... 13
POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE: ........................................ 14
JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY ................................. ….17
MIRANDA WARNINGS: ........................................................................................................................ 17
CONCLUSION AND PRAYER .............................................................................................................. 20
CERTIFCATE OF COMPLIANCE……………………………………………….. ………………… 20
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TABLE OF AUTHORITIES
Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). ............................................................ 11
Brown v. State, 279 S.W. 837 (1926) ......................................................................................................... 15
Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) .................................................................. 18
Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996) .................................................................... 8
Dowthitt, 931 S.W.2d at 255. .................................................................................................................... 13
Emerson v. State, 880 S.W.2d 759 (Tex. Crim.App. 1994)....................................................................... 9
Greer v. State, 32 S.W.2d 845 (1930);Teel v.. State, 283 S.W. 834 (1924). .............................................. 15
Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.). ......................................... 3,9
Miranda v. Arizona, 384 U.S. 436 (1966) . ......................................................................................... 20
Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), ................................................................. 8
Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993); ................................................... 15
Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993);
Robinson V. State, 102 S.W.2 220 (1937) ................................................................................................. 17
Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981); ...................................................................... 17
Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992 ........................................................ 9
Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). ............................................................. 17
Statutes and other authorities
Article 38.22, §§ 2(a), 3(a)(1)-(2).............................................................................................................. 13
Tex. Code. Crim. Proc. Ann. art 38.22 (2011)........................................................................................ 13
18 U.S.C. § 3742 and 28 U.S.C. § 1291. ..................................................................................................... 13
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STATEMENT OF JURISDICTION:
This is an appeal from a final judgment from the district court in a criminal case, and
an order affirming the ruling from the 5th Court of Appeals. Jurisdiction is invoked to the
Texas Court of Criminal Appeals pursuant to Article V of the Texas Constitution.
STATEMENT OF THE CASE:
This is an appeal from a conviction for the offense of Driving While Intoxicated, a Class
B Misdemeanor, allegedly committed on December 1, 2012. Petitioner, Henderson, hereinafter
(“Henderson”) pled not guilty to committing the offense of driving while intoxicated (DWI). (RR
III 3 pg. 6). After a jury trial, the court sentenced Petitioner to ninety days confinement in the
Collin County Jail and assessed a $ 500 fine. (CR.1, 2). The court suspended imposition of the
sentence and placed Petitioner on twelve- month probation. (RR Vol. 4 39).Petitioner,
Henderson, filed a Notice of Appeal on January 2, 2014, (CR 1). By this appeal, Petitioner
presents the points of error below for the Court’s review.
1. Trial court information:
a. The Fifth Court of Appeals: Opinion by Justice O’Neill.
b. Information about the trial court: County Court al Law No 3, Collin County
Texas
c. “The trial court rendered a judgment in favor of Defendant”
2. Court of appeals information:
a. The parties in the court of appeals: Mellannnise Henderson v. State of Texas.
b. The district of the court of appeals: The Fifth District Court of Appeals, Dallas
Division).
c. The names of the justices who decided the appeal: Before Justices O’Neill,
Fillmore, and Chief Justice Thomas, Retired. The author of the court’s
opinion: Opinion by Justice O’Neill. The Court of Appeals affirmed the trial
court’s decision.
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ISSUE PRESENTED
1. Whether the manner in which the HGN was administered was sufficient to lead
to probable cause to arrest Petitioner?
2. Whether the Court erred, when the Jury Charge presented two questions to the
jury regarding the normal use of the mental faculties and the normal use of
physical faculties?
3. Whether the Court erred during Jury deliberations when it allowed the
prosecution to replay and control the enhancement aspects of the video for the
jury?
4. Whether the prosecution controlling the video during jury deliberations was
tantamount to added evidence?
5. Whether the jury verdict was against the great weight of the evidence, and
thereby requiring the conviction to be overturned?
6. Whether the evidence was factually insufficient to show that Henderson was
driving while intoxicated?
7. Whether the case should have been dismissed for failure to Mirandize
Henderson after she was in police custody?
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STATEMENT OF FACTS
The facts in this case are not highly disputed. On November 30, 2014, Petitioner, Henderson
left her downtown Dallas office after working late in preparation for a trial starting the following
Monday1. (RR Vol. III pg. 20). After Midnight on December 1, 2012, Officer Corley with the
Richardson Police Department pulled Henderson over for what he states was her “failure to
maintain a single lane.” (RR Vol. III pg. 19). It is undisputed that after seeing the Officer’s
flashing lights, Henderson promptly pulled over, when asked to retrieve her insurance card she
complied and promptly exited the vehicle upon request. After the stop, Henderson explained that
she saw emergency vehicle lights ahead, and was trying to determine if she needed to change lanes.
(RR III 20, 47. 48). (RR Video Part 1) The Officer also corroborates the existence of this
emergency vehicle, as he stated he was in route to assist an officer who was a quarter of a mile
ahead of Henderson. According to both Henderson and the officer- from where Henderson was
stopped, it could not be determined if the emergency vehicle was in the left or the right lane. (RR
III 20, 47, 40). (RR Video Part 1) Officer Corley admits that Henderson responded appropriately
to his strobe lights, and appropriately pulled over. Henderson followed his commands in a normal
fashion, and was respectful to his commands throughout his exchange with her. (RR III 49, 50,
51), (RR Video Part 1). Officer Corley testified that there was no visible swaying by Petitioner
Henderson.
At the trial, Officer Corley admitted that he administered only one field sobriety test- the
HGN, during the administration of the test the Officer failed to follow some of the basic
requirements for the test in making a determination to arrest Henderson. Namely, Corley admitted,
that according to the National Highway Transportation Safety Administration student manual,
1
Henderson was in route to her home.
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(NHTSA) one of the requirement for the Horizontal Gaze Nystagmus test (“HGN”) is to make
sure the subject is not facing passing traffic while administering the test- as the headlights going
back and forth could be a distraction for the subject. Notwithstanding this requirement, Corley had
Henderson standing on a two- lane street facing traffic. Second, Corley admits that the NH TSA
student manual states that in order to make a determination if someone is intoxicated, the Officer
should perform all three-field sobriety test. (RR III 53-55). (RR III 20, 47, 40). Notwithstanding
the Officer’s knowledge of the NHTSA manual, and the proper way to administer the test, he
purposefully disregarded the instruction and arrested Henderson for DWI. (RR III 39, 63).
Throughout the trial, there was no testimony that Petitioner did not have normal use of her mental
and physical faculties.
SUMMARY OF PETITIONER’S ARGUMENT:
The court of appeals committed error when it affirmed the trial court’s judgment in favor
of the Respondent. Accordingly, this Court should grant review, and should hold that the evidence
failed to show beyond a reasonable doubt that Petitioner Henderson was driving while intoxicated.
Moreover, other than the Officer’s uncorroborated subjective belief, there was no indication that
Henderson exhibited poor balance, slow comprehension, or any other indicators that she was
intoxicated2. On the other hand, throughout the initial stop, interrogation and the subsequent arrest,
Henderson consistently maintained that she had to urinate, and repeatedly requested of the Officer
for her to use the restroom ( (RR video Part I). Notwithstanding Henderson’s request, she was
repeatedly denied access to a restroom. Henderson then explained that until she used the restroom,
she thought the continuation with the HGN testing could compromise her success. Contrary to the
Officer’s testimony, Henderson never refused field sobriety testing. Lastly, the HGN evidence
2
Unless the court accepts the admittedly ill performed HGN test.
-7-|Page
relied on to arrest Henderson was admittedly ill performed by the arresting officer. (RR III 20,
39, 40 47). In light of all the evidence presented during the trial, Henderson asserts to this high
Court, that the jury verdict was against the great weight of the evidence, and the conviction
respectfully should be overturned.
I.
ARGUMENTS AND AUTHORITIES:
B. DWI-Applicable Law:
Under Texas law, a person commits DWI “if the person is intoxicated while operating a
motor vehicle in a public place." Tex. Penal Code Ann. § 49.04 (Vernon 2008). A person is
intoxicated if he does not have “the normal use of mental or physical faculties by reason of the
introduction of alcohol ... or any other substance into the body." Tex. Penal Code Ann. § 49.01(2).
Under chapter 49 of the penal code, proof of a culpable mental state is not required for a DWI
conviction. Id. § 49.11; Nelson v. State, 149 S.W.3d 206, 211 (Tex.App.-Fort Worth 2004, no pet.).
However, an essential element of DWI is voluntary intoxication. See Lewis v. State, 951 S.W.2d
235, 237 (Tex.App.-Beaumont 1997, no pet.).
Because the facts of this case do not support that Henderson was a person who was
intoxicated by not having the “the normal use of mental or physical faculties by reason of the
introduction of alcohol ... or any other substance into the body. (RR III 49, 50, 51), (RR Video Part
1). Consequently, the verdict in this case, is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust, and in the interest of justice should therefore be
overturned. See Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.).
-8-|Page
II.
The Officer Wrongly Performed HGN Test:
The Verdict was against the Great weight of the Evidence Presented:
When reviewing the sufficiency of the evidence, the Court views the evidence in the light
most favorable to the verdict to determine whether any rational fact finder could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010) Henderson’s conviction was based on the officer’s testimony and his “administration” of
the Horizontal Gaze Nystagmus Test ( “HGN”). Petitioner contends the conviction should not
stand, because the officer admitted that he improperly administered the test. Notwithstanding the
Officer’s admission, the Appellate court ruled that “Corley’s decision to arrest Petitioner was
made on more than the results of the HGN test.3” The Petitioner contends that the Court of
Appeals was wrong in its finding based on this Court’s reasoning in Emerson v. State, 880 S.W.2d
759 (Tex. Crim. App. 1994).
This high Court addressed the HGN test in Emerson v. State, 880 S.W.2d 759 (Tex. Crim.
App. 1994). The Emerson Court took judicial notice that the technique employed in the HGN test,
and the theory behind the test are reliable for the purposes of Texas Rule of Evidence 702, and that
the results from administration of the test by a police officer are admissible if the (1) the underlying
scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the
technique must have been applied properly on the occasion in question. Id. In the case at bar, prong
three was compromised to Henderson’s detriment.
As stated in the Emerson case, the Horizontal Gaze Nystagmus technique is applied
properly when the officer follows the standardized procedures outlined in the Texas Driving While
3
(Opinion Tab 1 page 7 ).
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Intoxicated Detection Manual published by the National Highway Transportation Safety
Administration. Id. According to the NHTSA Manual, the officer must administer the HGN test
in a well-lit area or by use of a flashlight to illuminate the subject's face. The subject should not4
face toward the blinking lights of a police cruiser or passing cars, which may cause optokinetic
Nystagmus5. According to the NHTSA, after the HGN test is complete, the officer will conduct
the Walk and Turn (“WAT”) test and the One-legged Stand (“OLS”) test. Then the officer will
make the decision to arrest, release or take other action6.
In the instant case, during officer Corley’s testimony, he admitted that did not administer
the test in accordance with the proper procedure. The officer specifically testified that he did not
administered the HGN test in accordance with his training and the proper procedures; which
essentially could have given a false positive according to the NHTSA7. (RR III 63).
Under redirect by his own counsel, Corley testifies that:
Mr. ROLATER Q: And when it comes to the passing lights, why is it that under ideal conditions
you don't have someone face passing traffic when performing the H G N test?
OFFICER CORLEY: A: Under ideal conditions, if the traffic is heavy enough and cars are going
by, the eyes can tend to follow the lights as it goes across. (RR III 63).
Under cross- examination, he testified as follows:
MR. BROOKS Q. What is the N H T S A student manual, officer?
OFFICER CORLEY: A. That is a manual that provides all the instructions to peace officers on
how to perform field sobriety tests.
MR. BROOKS Q. It's basically a peace officer's bible for how to perform field sobriety tests?
4
Emphasis added by Petitioner.
5
Optokinetic Nystagmus is evident when an object that the eye fixates upon and objects moves quickly out of sight
or passes quickly through the field of vision, such as occurs when watching utility pools pass by while in a moving
car. 2006 NTHSA manual (defining optokinetic Nystagmus). ( Record Excerpt tab 4)
6
National Highway Traffic Safety Administration, U.S. Department of Transportation, Psychophysical Tests for
DWI Arrests, (2006 [hereinafter 2006 NHTSA Study].
7 The record also contains the videotape showing the traffic stop and testing process.
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OFFICER CORLEY: A. Yes.
MR. BROOKS Q. And in that -- is that the organization that certifies you to perform the H G N
testing?
OFFICER CORLEY: A. Yes, sir, it is.
MR. BROOKS Q. There are certain things that they ask you to do prior to performing the H G N
test?
OFFICER CORLEY: A. Yes, sir.
MR. BROOKS Q. One of the things they ask you to do is make sure that the subject is not facing
passing traffic?
OFFICER CORLEY: A. Yes, sir.
MR. BROOKS Q. And that's so as to not be a distraction as far as those headlights going back
and forth; correct?
OFFICER CORLEY: A. Yes, sir.
MR. BROOKS Q. To the same extent why you're supposed to take down your strobe lights8?
OFFICER CORLEY: A. Correct.
MR. BROOKS Q. And we know on this video, Ms. Henderson is facing the passing traffic?
OFFICER CORLEY: A. Correct.
MR. BROOKS Q. And they recommend that in order to make a determination as to whether or
not someone is intoxicated, that you perform all three of those tests?
OFFICER CORLEY: A. Yes, sir. (RR III 53-55).
According to Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), the results from
administration of the test by a police officer are admissible if the (1) the underlying scientific
theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique
must have been applied properly on the occasion in question.
8
Officer Corley turned off his headlights but keep on his headlights as the HGN was being performed. (RR CD part
01)
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In this case, the officer admits that he failed to properly apply the technique in question-
by not following the NHTSA Manual. (RR III 53-55). Petitioner Henderson was harmed because
officer Corley never completed the HGN and did not conduct any further field sobriety tests before
he concluded that Henderson was under the influence of alcohol9. Notwithstanding these facts,
the jury returned a verdict of guilty. The ill preformed manner of the administration of the HGN
resulted in having an injurious effect on Petitioner's substantial rights and had a substantial or
injurious effect on the jury's verdict.
Based on the evidence above, the guilty verdict in this case, is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the
interest of justice, should be overturned.
III.
NO PROBABABLE CUASE TO ARREST:
The 5th Court of Appeals ruled that probable cause for a warrantless arrest exists if, at the
moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge
and of which he has reasonably trustworthy information are sufficient to warrant a prudent person
as believing that an offense has been or is being committed. Tex. Dep’t of Pub. Safety v. Gilfeather,
293 S.W.3d 875, 880 (Tex. App.—Fort Worth 2009, no pet.) (citing Beck v. Ohio, 379 U.S. 89, 91
(1964). The error in the instant case was the facts were relied on to be trustworthy information.
If taking the evidence in the light most favorable to the Petitioner, If the HGN was admittedly
flawed by Officer Corley, and he admittedly failed to comply with the NHTSA Manual, then the
probable cause to arrest Henderson was compromised and therefore cannot be based on reasonably
9
The HGN was the only test performed by officer Corley.
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trustworthy information. Moreover, to make a full custodial arrest, an officer must have probable
cause to believe the person he is arresting has committed or is committing an offense. See Amores
v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). Probable cause exists where the facts and
circumstances within the officer's knowledge and of which he has reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable caution in the belief that a
particular person has committed or is committing an offense. Id. at 413.
Henderson was placed under arrest after an admittedly ill- performed HGN without any
corresponding field sobriety tests. Henderson never said she would not take the test, only that she
needed to use the restroom before she could continue. In the middle of the HGN, she is arrested
according to the officer, after 4 cues of a possible six. (RR III)10 The officer arguably had a
reasonable suspicion to pull Henderson over, but clearly no probable cause to arrest.
Based on the evidence above, the guilty verdict in this case, is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the
interest of justice, should be overturned.
IV. POINT OF RROR: JURY CHARGE:
The court of Appeals erred in in ruling there was no reversible error when the trial court
allowed two separate questions on the impairment theory of intoxication. In affirming this issue,
the court of appeals appears to have committed an error of law. This high Court should grant
review and correct the lower court’s error.
A trial judge's charge to the jury must set forth the law applicable to the case. Relying
on Tex. Code Crim. Proc. art. 36.14 (Vernon Supp. 2004), the appellate court has held that a trial
10
2006 NHTA Manuel defining cues before arrest, up to 3 in one eye with a maximum of six cues. Record Excerpts
Tab 4.
- 13 - | P a g e
court is required to fully instruct the jury on the law applicable to the case and to apply that law to
the facts presented. It is not enough for the charge to merely incorporate the allegation in the
charging instrument. Instead, it must also apply the law to the facts adduced at trial. This is because
the jury must be instructed under what circumstances they should convict, or under what
circumstances they should acquit. Jury charges which fail to apply the law to the facts adduced at
trial are erroneous. Tex. Code Crim. Proc. art. 36.14(Vernon Supp. 2004).
a. The Law Applicable to DWI:
A person commits the offense of driving while intoxicated if the person is intoxicated while
operating a motor vehicle in a public place. TEX. PENAL CODE ANN. § 49.04(a) (West 2012). The
term "intoxicated" means (1) not having the normal use of mental and physical faculties by reason
of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of
those substances, or any substance into the body, or (2) having an alcohol concentration of 0.08 or
more. Id. § 49.01(2)(A)—(B) (West 2011). Thus, section 49.01(2) provides two alternative
methods for the state to prove intoxication. These are referred to as the impairment theory (loss of
normal use of physical or mental faculties) or the per se theory (alcohol concentration of .08 or
more). See Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).
In the case at bar, there is evidence that the state was able to present two questions to the
jury regarding Henderson’s alleged impairment and normal use of mental and physical faculties.
Essentially, the Court in separating the normal use of mental and physical faculties, and allowing
two separate questions, would alter Tex. Penal Code Ann. §section 49.01(2), to provide for three
alternative methods for the state to prove intoxication, instead of two. The Court’s charge to the
jury read as follows:
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THE COURT: Now, if you find and believe from the evidence beyond a reasonable doubt that on
or about the should read -- "on or about December 1st, 2012, in Collin County, Texas, Mellannise
Henderson did then and there operate a motor vehicle in a public place, while the said
“Mellannise Henderson was intoxicated by, one, not having the normal use of her mental faculties
by reason of the introduction of alcohol into the body,
or, two, not having the normal use of her physical faculties by reason of the introduction of alcohol
into the body, then you will find the defendant guilty as charged” (RR Vol.4 pg. 8-9). Presenting
these two questions to the jury was reversible error.
In addition to the above, the Court initially indicated that no BAC would not be in the question
to the jury but included the language of the BAC in the definition portion of the charge. The Court’s
charge to the jury read as follows:
MR. WILSON: Secondly, Your Honor, the state requests that in the application paragraph, bullet
point number three, since no evidence was presented in regard to an alcohol concentration, we ask
that the alcohol concentration paragraph be removed from the jury charge.
THE COURT: Any objections by the defense?
MR. BROOKS: Yes, Your Honor. I would object to that. I believe what's in there is following
the statute.
THE COURT: Well, it follows the statute. Why would it be necessary to put in? The jury
couldn't find her -- there's not going to be any evidence, the state having rested and closed,
there's no evidence of an alcohol concentration, so why isn't that just unnecessary language?
(RR Vol 4 pg. 5)
Notwithstanding the above exchange between the Court and Counsel, the Court used the BAC11
in the definition portion of the charge, which read as follows:
"The word intoxicated means not having the normal use of mental or physical faculties by
reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances or any other substance into the body, or
having an alcohol concentration of 0.08 or more of breath. "The term alcohol concentration
as used herein means the number of grams of alcohol per 210 liters (RR Vol 4 pg. 8-9)..
In this case, the record as a whole shows the trial court's error with the ambiguous jury
instruction caused Petitioner some actual harm by the use of the definition of the BAC. It is well
11
Blood Alcohol Concentration
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settled, that it is error for the trial court in its charge, to authorize a conviction on a theory that is
not supported by the evidence. See, Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981);See,
also, Ferguson v. State, 2 S.W.3d 718 (Tex. App. - Austin, 1999); Resendez v. State, 860 S.W.2d
605 (Tex. App. - Corpus Christi, 1993. In this case, the BAC instruction was not supported by the
evidence. As such, the err is such to cause harm to the Petitioner, and resulting conviction should
therefore be overturned.
V. POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE:
There was error in affirming the decision to allow the prosecutor to control the replay of the
video during jury deliberations. In affirming this issue, the court of appeals appears to have
committed an error of law. This high Court should grant review, and correct the lower court’s
error.
After the close of the evidence and during jury deliberations, the Court essentially allowed
the prosecution to control the review of evidence requested by the jury. (RR Vol. 4 pg.35). This
is because there was not adequate equipment in the jury room for the jurors to see the replay video.
(RR Vol. 4 g. 35). How this evidence was handled and manipulated was tantamount to additional
or “other evidence.” Under appellate rule 21.3, a defendant must be granted a new trial when
"after retiring to deliberate, the jury has received other evidence." TEX. R. APP. P.
21.3(f). Specifically, the error is evidenced by the following exchange:
THE COURT: “it requires that the prosecutor be here because the technology of this video
allows whoever is playing it to switch microphones and to switch camera views. Sometimes you
can see someone using the camera that shoots outside of the vehicle, sometimes there is a
camera that's inside the vehicle and it can be shot. Someone has to manipulate those options.
The state introduced the video. I’m going to let them play it in same exact manner, same camera
views, and same audio, same microphones as you saw yesterday. Once it's been played, I'll have
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the bailiff go up to you and meet you in the hallway. You can let the bailiff know if there's a
section you need to see again or listen to again and we will bring you back in and let you see it
or hear it as many times as necessary”. (RR Vol. 4 pg. 35)
The problem with the Court’s account- the court could not control or determine if the
prosecutor played the tape in the exact manner that it was played the day before- switching the
camera and the audio at the exact time, or as the Court suggested “manipulate” the tape as it did
the day before. Any variation in the review of the evidence is tantamount to “other evidence.
Accordingly, appellate rule 21.3, is invoked and the Petitioner must be granted a new trial when
"after retiring to deliberate, the jury has received other evidence.
Moreover, the Court of appeals erred when it held that the replaying of a video already
admitted into evidence and seen by the jury did not constitute receipt of other evidence for purposes
of Rule 21.3(f) citing Thomison v. State, No. 11-10-00368-CR, 2012 WL 5989193, at *3 (Tex.
App.—Eastland Nov. 29, 2012, no pet.) (mem. op., not designated for publication). The error here-
what was admitted into evidence was the prosecutor playing the video a specific way, without
any “switched microphones or switched camera views”. There is no way to determine if the tape
was shown in the exact manner originally presented to the jury during the trial, or if as the court
stated- if the prosecutor “switched microphones or switched camera views
Unfortunately, Petitioner’s counsel failed to object to this issue at trial. However,
Petitioner asserts that courts generally agree that they will consider waived arguments only under
'exceptional circumstances.' Walton v. Mental Health Ass'n, 168 F.3d 661, 670 n.9 (3d Cir. 1999).
In this regard, most courts consider whether failing to address the argument would result in a
manifest injustice and whether the argument involves a purely legal question that can be decided
on the existing factual record. Batiansila v. Advanced Cardiovascular Sys., 952 F.2d 893, 896
(5th Cir. 1992) (stating that it may consider waived argument if a 'miscarriage of justice' would
- 17 - | P a g e
otherwise result and it raises a pure issue of law) with Readco Inc. v. Marine Midland Bank, 81
F.3d 295, 302 (2d Cir. 1996) (stating that it may consider waived argument to avoid 'manifest
injustice' or if argument presents pure issue of law) and Universal Title, 942 F.2d at 1314- 15)
(stating that it may consider waived argument if resolution is 'beyond any doubt,' or if injustice
might otherwise result or if it raises pure issue of law). Petitioner is asking the court to consider
this argument in the interest of justice, in an effort to avoid a miscarriage of justice.
VI.
JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY
In reviewing the factual sufficiency of the evidence to support a conviction, the Court is to
view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d
477, 481 (Tex. Crim. App. 2004). The only question to be answered in a factual sufficiency review
is whether, considering the evidence in a neutral light, the fact finder was rationally justified in
finding guilt beyond a reasonable doubt. Id. at 48412.
In the instant case, the jury verdict was against the great weight of the evidence, and should
be overturned. As argued above, it is undisputed that after seeing officer Corley’s flashing lights,
Henderson promptly pulled over, and promptly and courteously complied with his commands.
(RR Video part 1) After being stopped, Henderson explained to officer Corley that she saw
emergency vehicle lights ahead, and was trying to make a determination if she needed to change
lanes. (RR III 20, 47. 48). The existence of this emergency vehicle is too corroborated by officer
Corley. According to both Henderson and the officer, from where Henderson was stopped, one
12
The Court of Appeals used the Legal sufficiency standard- Although appellant’s issues challenge the factual
sufficiency of the evidence, we apply only one standard, for legal sufficiency, to evaluate whether the evidence is
sufficient to support a criminal conviction beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex.
Crim. App. 2013).
- 18 - | P a g e
could not determine if the emergency vehicle was in the left or the right lane. (RR III 20, 47, 40).
Officer Corley admits that Henderson responded appropriately to his strobe lights, and
appropriately pulled over. Henderson followed the Officer’s commands in a normal fashion, and
was respectful to his commands throughout his exchange with her. (RR III 49, 50, .51). Officer
Corley further testified that there was no visible swaying by Henderson.
Notwithstanding the Officer’s knowledge of the NHTSA manual, and the proper way to
administer the test, he purposefully disregarded the instruction and arrested Henderson for DWI.
(RR III 39). Further, there was no testimony outside of the admittedly flawed HGN that Henderson
did not have the normal use of mental or physical faculties by reason of the introduction of alcohol
... To the contrary; the record is void of Henderson’s failure to have the normal use of mental or
physical faculties by reason of the introduction of alcohol...
Based on the evidence above, the guilty verdict in this case, is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust, and therefore in the
interest of justice, should be overturned.
VII.
OFFICER’S FAILURE TO READ HENDERSON
MIRANDA WARNINGS:
In Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court concluded that
during custodial interrogation, a suspect is entitled to the Fifth Amendment right against self-
incrimination and the right to have counsel present during such interrogation. The Court held that
before questioning, a suspect must be informed of these rights.
- 19 - | P a g e
Whether Defendant Was Entitled to Miranda Warnings
Petitioner was “in custody” during the questioning and her answers on her willingness to take
a Breathalyzer or a blood specimen (RR Part 1). Miranda protections do not attach unless both the
custody and interrogation prongs are satisfied. Because Petitioner was “in custody” for the
purposes of Miranda, she was entitled to Miranda warnings as a matter of law. Id.
Based on the above, Petitioner is asking the court to consider this argument, to avoid a
miscarriage of justice.
CONCLUSION AND PRAYER
Petitioner respectfully prays that because of the errors set forth above Court will reverse and
set aside the conviction herein and remand this case to the trial court for a new trial.
CERTIFICATE OF SERVICE
The undersigned Counsel hereby certifies that on January 31, 2015, a true and correct
copy of Petitioner’s Initial Brief was served via electronic mail on Collin County District
Attorney Gregg Willis, 2100 Bloomdale, Counsel for Respondent, McKinney Texas 75071.
/s/ Mellannise Henderson-Love
CERTIFCATE OF COMPLIANCE
Pursuant to TRAP 9.4(i)(1 the undersigned Counsel, hereby certifies that this
document brief/petition was prepared with Microsoft Word 2013, and that, according to that
program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 4,488
words.
/s/Mellannise Henderson-Love
- 20 - | P a g e
1
Master Index
December 2 - 3, 2013
1 REPORTER'S RECORD
VOLUME 1 OF 5 VOLUMES
2 TRIAL COURT CAUSE NO. 002-80051-2013
COURT OF APPEALS CASE NO. 05-14-00025-CR
3
THE STATE OF TEXAS ) IN THE COUNTY COURT
4 )
VS. ) AT LAW NUMBER TWO
5 )
MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS
6
7
8 _____________________________________________
9 MASTER INDEX
_____________________________________________
10
11
12 On the 2nd and 3rd days of December, 2013, the
13 following proceedings came on to be heard in the
14 above-titled and numbered cause before the Honorable
15 Barnett Walker, Judge Presiding, and a jury, held in
16 McKinney, Collin County, Texas.
17 Proceedings reported by computerized stenotype
18 machine.
19
20
21
22
23
24
25
2
Master Index
December 2 - 3, 2013
1 A P P E A R A N C E S
2 Mr. Justin B. Wilson
SBOT NO. 24080521
3 Ms. Geeta Yadav Singletary
SBOT NO. 24060862
4 Office of Greg Willis, District Attorney
Suite 100
5 2100 Bloomdale Drive
McKinney TX 75071
6 Telephone: 972-548-4323
Facsimile: 972-548-3622
7
8 Attorneys for The State of Texas
9
10 Mr. Kevin Brooks
SBOT NO. 03070735
11 Attorney at Law
Suite 2475
12 325 N. Paul
Dallas TX 75201
13 Telephone: 214-922-0212
Facsimile: 214-922-0294
14
Attorney for The Defendant
15
16
17
18
19
20
21
22
23
24
25
3
Master Index
December 2 - 3, 2013
1 VOLUME 1
2 MASTER INDEX
3 ----------------------
4 VOLUME 2
5 Jury Trial - Voir Dire of Jury Panel
6 December 2, 2013
7 PAGE VOL.
8 Pretrial Hearing ............................4 2
9 Court's Remarks to the Jury Panel ...........5 2
10 Jury Voir Dire by Mr. Wilson ...............35 2
11 Jury Voir Dire by Mr. Brooks ...............93 2
12 State Challenge for Cause .................133 2
13 Defendant Challenge for Cause .............135 2
14 Jury Impaneled ............................139 2
15 Jury Sworn by the Court ...................140 2
16 Jury Admonished ...........................141 2
17 Reporter's Certificate ....................144 2
18
19
20
21
22
23
24
25
4
Master Index
December 2 - 3, 2013
1 VOLUME 3
2 Trial on the Merits
3 December 2, 2013
4 PAGE VOL.
5 Arraignment .................................6 3
6 Opening Statement by Mr. Wilson .............7 3
7
8 WITNESS: DIRECT CROSS V. DIRE
9 CLIFTON CORLEY
10 By Mr. Wilson 10 v3
By Mr. Brooks 45 v3
11 By Mr. Wilson 60 v3
By Mr. Brooks 63 v3
12
13 PAGE VOL.
14 State rests ...............................66 3
15 Defendant rests ...........................67 3
16 Both Sides Close ...........................67 3
17 Reporter's Certificate .....................71 3
18
19
20
21
22
23
24
25
5
Master Index
December 2 - 3, 2013
1 VOLUME 3
2 ALPHABETICAL INDEX OF WITNESSES
3 DIRECT CROSS V. DIRE
4 Corley, Clifton 10 v3 45 v3
Corley, Clifton 60 v3 63 v3
5
6
7
8
9
10
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12
13
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16
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6
Master Index
December 2 - 3, 2013
1 VOLUME 3
2 INDEX OF EXHIBITS
3 Use is indicated as follows:
J - Jury R - Record Only D - Demonstrative
4 W/D - Withdrawn ID - Identification Only C- Court
5 EXHIBIT DESCRIPTION OFFERED ADMITTED USE
6 SX 1 DVD 22 v3 22 v3 J
7 SX 2 DIC 24 form 42 v3 42 v3 J
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
24
25
7
Master Index
December 2 - 3, 2013
1 VOLUME 4
2 Trial on the Merits
3 December 3, 2013
4 PAGE VOL.
5 Charge Conference ...........................4 4
6 Charge Read to the Jury .....................7 4
7 Closing Statement by Mr. Wilson ............13 4
8 Closing Statement by Mr. Brooks ............18 4
9 Closing Statement by Mr. Wilson ............22 4
10 Jury Note Received .........................29 4
11 Verdict ....................................36 4
12 Punishment Phase ...........................38 4
13 Both Sides Close ...........................39 4
14 Sentencing .................................39 4
15 Reporter's Certificate .....................43 4
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8
State vs. Henderson
December 2 - 3, 2013
1 STATE OF TEXAS )
2 COUNTY OF COLLIN )
3
4 I, Marigay Black, Official Court Reporter in and for
5 the County Court at Law Number Two, County of Collin, State
6 of Texas, do hereby certify that the above and foregoing
7 contains a true and correct transcription of all portions
8 of evidence and other proceedings requested in writing by
9 counsel for the parties to be included in this volume of
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in chambers
12 and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits, if
15 any, offered by the respective parties.
16 Signed this 26th day of March, 2014.
17
18 /S/ Marigay Black
19 MARIGAY BLACK, Texas CSR 351
Official Court Reporter
20 County Court at Law Number Two
Suite 10344
21 2100 Bloomdale Road
McKinney, Texas 75071
22 Tel: 972-548-3823
FAX: 972-548-3828
23 Expiration: 12/31/2014
mblack@co.collin.tx.us
24
25
1
Jury Trial
December 2, 2013
1 REPORTER'S RECORD
VOLUME 2 OF 5 VOLUMES
2 TRIAL COURT CAUSE NO. 002-80051-2013
COURT OF APPEALS CASE NO. 05-14-00025-CR
3
THE STATE OF TEXAS ) IN THE COUNTY COURT
4 )
VS. ) AT LAW NUMBER TWO
5 )
MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS
6
7
8 _____________________________________________
9 JURY TRIAL
_____________________________________________
10
11
12 On the 2nd day of December, 2013, the following
13 proceedings came on to be heard in the above-titled and
14 numbered cause before the Honorable Barnett Walker, Judge
15 Presiding, and a jury, held in McKinney, Collin County,
16 Texas.
17 Proceedings reported by computerized stenotype
18 machine.
19
20
21
22
23
24
25
2
Jury Trial
December 2, 2013
1 A P P E A R A N C E S
2 Mr. Justin B. Wilson
SBOT NO. 24080521
3 Ms. Geeta Yadav Singletary
SBOT NO. 24060862
4 Office of Greg Willis, District Attorney
Suite 100
5 2100 Bloomdale Drive
McKinney TX 75071
6 Telephone: 972-548-4323
Facsimile: 972-548-3622
7
8 Attorneys for The State of Texas
9
10 Mr. Kevin Brooks
SBOT NO. 03070735
11 Attorney at Law
Suite 2475
12 325 N. Paul
Dallas TX 75201
13 Telephone: 214-922-0212
Facsimile: 214-922-0294
14
Attorney for The Defendant
15
16
17
18
19
20
21
22
23
24
25
3
Jury Trial
December 2, 2013
1 VOLUME 2
2 Jury Trial
3 December 2, 2013
4 PAGE VOL.
5 Pretrial Hearing ............................4 2
6 Court's Remarks to the Jury Panel ...........5 2
7 Jury Voir Dire by Mr. Wilson ...............35 2
8 Jury Voir Dire by Mr. Brooks ...............93 2
9 State Challenge for Cause .................133 2
10 Defendant Challenge for Cause .............135 2
11 Jury Impaneled ............................139 2
12 Jury Sworn by the Court ...................140 2
13 Jury Admonished ...........................141 2
14 Reporter's Certificate ....................144 2
15
16
17
18
19
20
21
22
23
24
25
4
Jury Trial
December 2, 2013
1 (Proceedings occurring in open court,
2 commencing at 9:32 A M. Defendant present.)
3 THE COURT: Does either side have any
4 motions we need to take up before we bring the panel in?
5 MR. WILSON: Not from the state, judge.
6 MR. BROOKS: Judge, I had filed some
7 pretrial motions, primarily discovery motions. I'm going
8 to represent to the court that the state has turned over
9 the copies of the offense reports as well as the video
10 recordings. I'm not aware of anything else.
11 THE COURT: Do you have anything else that
12 you intend to admit other than, you know, like photos or
13 anything of that nature?
14 MR. WILSON: No, Your Honor.
15 THE COURT: Any reports, supplements?
16 MR. WILSON: Everything that we have was
17 given to defense and all we plan to offer are the videos
18 and the D I C 24.
19 THE COURT: All right. And you've received
20 both of those; correct?
21 MR. BROOKS: Yes, sir.
22 THE COURT: All right. Fantastic. Do we
23 have a list yet, bailiff?
24 THE BAILIFF: Yes, just received it, judge.
25 THE COURT: All right.
5
Jury Trial
December 2, 2013
1 (Unrelated docket matters heard, after which
2 the following proceedings were had in open
3 court. Jury panel seated. Defendant
4 present.)
5 THE COURT: Good morning, ladies and
6 gentlemen. As you enter the courtroom, everyone is
7 standing to pay their respects to you so you may feel free
8 to have a seat. Thank you.
9 Everyone else may be seated.
10 Bailiff, report, please.
11 THE BAILIFF: The panel is all present and
12 accounted for, Your Honor.
13 THE COURT: Thank you, bailiff. Good
14 morning, ladies and gentlemen. Welcome to Collin County
15 Court at Law Number Two. My name is Barnett Walker, and
16 I'm honored to be your elected judge of this court.
17 The reason we've asked the 24 of you to come
18 here this morning is we need six of you to sit on the jury
19 and decide the facts in this case.
20 One of the first questions that I often hear
21 from people is, number one, how long is this going to take?
22 I don't know any more about the case than you do right now.
23 I know the defendant's name, I know what the charge is.
24 The system is intentionally designed so that
25 I don't know any more than you so I don't start prejudging
6
Jury Trial
December 2, 2013
1 the evidence just as we don't want you to start prejudging
2 it. But I have asked the attorneys and both sides assure
3 me they believe this case will be concluded today.
4 So based on that information, is there
5 anyone here who, for some reason or another, cannot give us
6 their undivided attention for the remainder of the day,
7 possibly let's include tomorrow up unto, say,
8 12:00 o'clock? Anyone have any plane tickets, caring for
9 -- is anyone caring for someone who's sick? Are you sick
10 yourself? Do you -- are you the single childcare provider
11 for a child under 12? Any of those things apply, raise
12 your hand, please. Okay. Great. Thank you.
13 One of the other questions I get is, Well,
14 if you only need six of us, why are there 24 of us here?
15 In certain cases, people come to jury service and all have
16 had different experiences, life experiences. Some cases
17 more than others generate emotions.
18 For instance, this is a D W I trial. For
19 different reasons, some of you may have very strong
20 feelings about D W I. That might be because you had
21 someone in your family who struggled with alcoholism, it
22 might be that you know someone or someone you cared for was
23 injured by a drunk driver, and because of that, we need to
24 make sure that whichever people we put on the jury are not
25 encumbered by feelings that would make them lean towards
7
Jury Trial
December 2, 2013
1 one side or the other. Does that make sense?
2 What we're going to do here this morning is
3 called voir dire. You've taken an oath so far. And that
4 oath was not to follow the law. Okay. You've only taken
5 an oath to be truthful about your feelings and express
6 those feelings. That's going to become very important
7 because the first six of you on the jury are on the front
8 row right now, beginning with Ms. -- is it Radice?
9 VENIREPERSON: Radice.
10 THE COURT: Radice. Ms. Radice.
11 Ms. Radice, all the way to Ms. Stelling-Parker.
12 VENIREPERSON: Yes.
13 THE COURT: Y'all are the jury. The six of
14 you right there on the front row. As time goes on and the
15 lawyers start asking questions, one of them may strike you.
16 Each side is allowed to strike three people. They can
17 strike you for any reason whatsoever except gender, race
18 and national origin. Okay? But if one side hears a
19 response from you and -- that causes them concern, they may
20 decide to strike you. If they struck one of you, then
21 Kelly Mercer, you would be, sir, on the jury. And it goes
22 on down the row.
23 Now, the reason I tell you that is because
24 sometimes people feel a little shunned if they're in the
25 back row and the four of you on the back row because you
8
Jury Trial
December 2, 2013
1 don't get asked as many questions as, say, the people on
2 the front two rows and I wanted you to understand why that
3 is. Because eight out of 10 times, the jury is picked
4 within the first 15 or 16. So, David Christopher, raise
5 your hand? Everybody to Mr. Christopher's right and
6 everybody on the front row, you're in the splash zone at
7 Sea World. You're most likely going to get picked. The
8 people, though, to the left of Mr. Christopher, don't fall
9 asleep. About one out of every eight or nine times, we
10 don't even get six people with the 24 that are here. All
11 right.
12 Is there anyone here that speaks another
13 language besides English? Carbajal?
14 VENIREPERSON: Yes, sir.
15 THE COURT: What do you speak?
16 VENIREPERSON: Spanish.
17 THE COURT: Thank you. Did I butcher your
18 name? Did I say your name wrong?
19 VENIREPERSON: No, it's right.
20 THE COURT: It's correct. Okay. Thank you.
21 Anyone else? Mr -- is it Noi-Mingle?
22 VENIREPERSON: Yes.
23 THE COURT: Mr. Noi-Mingle, what languages
24 do you speak?
25 VENIREPERSON: It's a local dialect. Gan.
9
Jury Trial
December 2, 2013
1 THE COURT: I can't hear you.
2 VENIREPERSON: It's a local dialect. Gan.
3 THE COURT: Okay. And the reason I ask that
4 is because, before I became a lawyer, I was in the military
5 for 22 years. And one of the first things they do is they
6 want to find out if you're someone that can learn a second
7 language quickly. I took the test. I was anxious to get
8 the results. I came back and said, How did I do? And they
9 said, We're shocked you can even speak English. You're
10 terrible. You don't have the gift of hearing those subtle,
11 you know, words. And so for those of you who speak more
12 than one language, I really, really wish I had that
13 ability. But I don't know how long you've been speaking
14 English.
15 When we get through with the process today,
16 if you -- if you have had trouble understanding what was
17 said, let me know. Okay? We don't want to put you on a
18 jury if you're having trouble understanding what's taking
19 place. But if you are able to understand, we would love to
20 have you. Does that sound fair?
21 VENIREPERSON: Yes. Because I feel like I
22 not understanding a lot of English. You know, I feel like
23 I understand sometimes a few but it's not 100 percent. My
24 English is --
25 THE COURT: Well, your English is better
10
Jury Trial
December 2, 2013
1 than my Spanish, I'm sure.
2 VENIREPERSON: I'm going to try. If I feel
3 like I'm going to --
4 THE COURT: You're the best person to know.
5 So when we're done, before -- before we pick the jury, I'll
6 ask you, Ms. Carbajal, were you able to keep up and
7 understand everything? And you'll let me know. And if you
8 are, great; and if you're not, then we'll excuse you.
9 VENIREPERSON: Sure.
10 THE COURT: Okay? All right. Thank you
11 both very much.
12 Okay. We're going to go over some things
13 that also causes sometimes people to have some
14 reservations. I want to explain this to you. What our
15 goal is is not to exclude you from jury service. That's
16 not our purpose. Our purpose is to keep from putting you
17 in a position where we feel like you're going to have to
18 violate your conscious. Okay?
19 And by that, I mean, I went to law school
20 with someone who thinks -- and still this day, I run into
21 him and he still feels this way. He thinks that this
22 country has spent entirely too much money criminalizing the
23 use of marijuana. And he thinks the marijuana laws are
24 just dumb. That it causes young people to have a criminal
25 record. That this smoking marijuana is no different than
11
Jury Trial
December 2, 2013
1 alcohol. And so if he were called to be on a jury and then
2 the jury will take a second oath and that oath will be that
3 you will follow the laws that I give you. Okay? He would
4 have a very difficult time being on a marijuana trial
5 because he believes that law is just retarded. Okay?
6 So if he really believed the state proved
7 their case and the person was in possession of marijuana,
8 he would be in a conflict between what he thinks he should
9 do and what he's taken an oath to do. He would want to
10 find the person not guilty because he thinks the law is
11 unethical and unfair but he took an oath to follow that
12 law.
13 If you have any conflicts like that, that's
14 what we're just trying to find out from you. People ask me
15 all the time in social gatherings -- it happened over
16 Thanksgiving -- Hey, you're a judge, how do I get out of
17 jury duty? I don't know how to tell you to get out of jury
18 duty but I can tell you how to get on the jury. All right?
19 Both sides are going to be listening for
20 things that cause them concerns. If you sit there and
21 you're quiet, welcome to the luxury seats because no one is
22 going to strike you. Okay? So this is your time to be
23 honest about how you feel, express yourself, there are no
24 right or wrong answers whatsoever.
25 Now, this is a criminal case so that means
12
Jury Trial
December 2, 2013
1 the State of Texas -- and I'll introduce the parties to you
2 in just a moment -- has the 100 percent burden in this
3 case. That means that they are going to have to prove
4 certain things to you. Those things are like a checklist
5 of elements that constitute the offense of driving while
6 intoxicated. And if they do not convince you beyond all
7 reasonable doubt of all of those elements, then you are
8 required to vote not guilty.
9 Does everyone understand that?
10 Okay. Now, here are the parties. First of
11 all, to the right is my bailiff, Danny Jones. I've already
12 introduced myself. I'm Barnett Walker. The woman to my
13 left is my court reporter, Marigay Black.
14 Representing the State of Texas today is
15 assistant district attorney, Justin Wilson.
16 MR. WILSON: Morning, everybody.
17 VENIREPERSONS: Morning.
18 THE COURT: Assisting Mr. Wilson is
19 assistant district attorney, Ms. Geeta Singletary.
20 MS. SINGLETARY: Good morning.
21 THE COURT: The defense attorney in this
22 case is Mr. Kevin Brooks.
23 MR. BROOKS: Good morning.
24 VENIREPERSONS: Morning.
25 THE COURT: Mr. Brooks' client and the
13
Jury Trial
December 2, 2013
1 defendant in this case is Ms. Mellannise Henderson-Love.
2 THE DEFENDANT: Good morning.
3 VENIREPERSONS: Good morning.
4 THE COURT: Does anyone recognize or know
5 any of the parties that I've just mentioned?
6 Yes, sir. Is it Mr. Kendall? Or, no.
7 Mr. Brown?
8 VENIREPERSON: I recognize the bailiff, Your
9 Honor.
10 THE COURT: You recognize the bailiff?
11 VENIREPERSON: Yeah.
12 THE COURT: How do you know him?
13 VENIREPERSON: I'm a deputy sheriff in
14 Collin County.
15 THE COURT: What do you think about him?
16 VENIREPERSON: He's a pretty good egg.
17 THE COURT: Is he all right? Okay. Good.
18 Anything about the relationship between you and my bailiff
19 that would be unfair to the other side, that cause you to
20 lean one way or the other?
21 VENIREPERSON: No, Your Honor.
22 THE COURT: Okay. Thank you.
23 Anyone else?
24 Is there any -- now, look to your right and
25 left. I know it feels kind of funny to stare at someone
14
Jury Trial
December 2, 2013
1 right next to you. Look behind you. Do you recognize
2 anyone else on the panel?
3 It's not that unusual. About one out of
4 every six or eight times, we'll have either co-workers,
5 husband and wife, boyfriend/girlfriend, that kind of thing.
6 And that's perfectly fine for those to serve on the same
7 jury provided that you're comfortable arguing with that
8 person. Okay? If you're not, then that would be unfair.
9 So I'm glad no one knows anyone.
10 Now, one of the things that kind of comes up
11 is, you know, it's almost unavoidable, that one of the
12 attorneys, or both, are going to ask you questions that may
13 seem like it's prying into your private life. They're not
14 trying to embarrass you. They just want to know a little
15 bit more about you. If you're asked a question and the
16 answer does apply to you, for instance, Have you or someone
17 in your family ever been, you know, arrested for D W I, if
18 that applies to you, you're required to raise your hand.
19 However, if they say, Well, do you want to talk about the
20 particulars, you are not required to do that in front of 23
21 of your newest friends. Okay? You can just say, I don't
22 want to discuss the details of it in public, and we'll
23 bring you back in when it's just the attorneys and myself.
24 Is that fair? All right.
25 Who here knows what the Fifth Amendment is,
15
Jury Trial
December 2, 2013
1 just a basic -- well, that went quick. Ms. White. What is
2 it?
3 VENIREPERSON: It's the right to due
4 process.
5 THE COURT: Close. That's the Sixth
6 Amendment.
7 VENIREPERSON: Fifth. Yeah. The due
8 process. You have your rights and your --
9 THE COURT: It falls under the umbrella but
10 what specifically is the Fifth Amendment?
11 VENIREPERSON: Well, that's what I thought
12 it was.
13 THE COURT: You're within what they call the
14 umbrella level.
15 Yes, sir.
16 VENIREPERSON: You have the right not to
17 incriminate yourself.
18 THE COURT: Correct. Okay. We have three
19 different types of trials in this country.
20 We have civil cases. If you sue someone or
21 they sue you, you can absolutely make them go up on the --
22 up on the witness chair and testify and ask them questions
23 under oath. If that's the -- that's the civil cases.
24 Then we have family law cases. That's
25 generally when there's divorces or C P S is getting
16
Jury Trial
December 2, 2013
1 involved about whether they're going to take a child out of
2 a home. Once again, you can put that parent up on the
3 stand, the State of Texas can call that parent, make that
4 parent answer questions under oath.
5 The only case at trial where you cannot
6 force someone to testify is in a criminal case. Okay. So
7 if you're a defendant and you've been accused of a crime,
8 the State of Texas has absolutely no right whatsoever to
9 call you as a witness at your own trial. That was an
10 amendment to our constitution.
11 Ms. White, why do you think that our
12 forefathers wanted to give special protection to someone in
13 a criminal case?
14 VENIREPERSON: Because when the British were
15 in our country, we didn't have the same rights.
16 THE COURT: That's right. Who knows what
17 the number one fear in America is? Every year they do a
18 poll and it's number one every time.
19 VENIREPERSON: Being accused of something
20 you didn't do.
21 THE COURT: Close. Yes, sir?
22 VENIREPERSON: Mr. Jones, the bailiff,
23 earlier stated that he thought it was public speaking.
24 THE COURT: Mr. Jones is going to get a
25 beatin' at lunch.
17
Jury Trial
December 2, 2013
1 (Laughter)
2 THE COURT: Yes. Thank you, Mr. Jones.
3 Appreciate you.
4 It is. It's public speaking. All right.
5 And here's the problem and here's the reason
6 why our forefathers said, you know what, whenever there is
7 a criminal case, we are going to give special protection to
8 the person accused for this reason.
9 Everybody on the front row, get ready with
10 your answer, here's your question: Suppose that you are
11 sitting in the audience and the person who gets up to speak
12 is extremely nervous. What would you see or hear that
13 would tell you that that person is nervous?
14 Ms. Radice?
15 VENIREPERSON: Stuttering.
16 THE COURT: Stuttering. Fantastic.
17 Is it Sbaiti?
18 VENIREPERSON: Sbaiti.
19 THE COURT: Sbaiti. Mr. Sbaiti?
20 VENIREPERSON: I think they would probably
21 fidget a lot.
22 THE COURT: Perfect.
23 Ms. Simonson.
24 VENIREPERSON: Same thing. They would be
25 shaking a little.
18
Jury Trial
December 2, 2013
1 THE COURT: Tremoring, uh-hum.
2 What do you think, Mr. Campbell?
3 VENIREPERSON: Shaky voice, shaky hands.
4 THE COURT: Thank you.
5 Ms. Walker?
6 VENIREPERSON: They're fidgeting, the
7 stuttering, the vibes --
8 THE COURT: And what?
9 VENIREPERSON: They're pausing in their
10 speech.
11 THE COURT: Kind of trying to grasp their
12 next thought?
13 VENIREPERSON: Correct.
14 THE COURT: What do you think,
15 Ms. Sterling-Parker?
16 VENIREPERSON: It's Stelling. There's no R
17 in it.
18 THE COURT: Oh, I'm sorry.
19 VENIREPERSON: That's okay. Normally, I
20 would -- my first thought would be sweaty.
21 THE COURT: Sweating.
22 VENIREPERSON: Yeah.
23 THE COURT: Okay. Mr. Mercer?
24 VENIREPERSON: I would say fidgeting, maybe
25 avoiding eye contact.
19
Jury Trial
December 2, 2013
1 THE COURT: Looking down. All right.
2 Is it Byther?
3 VENIREPERSON: Byther.
4 THE COURT: Mr. Byther?
5 VENIREPERSON: Just kind of loss of
6 coherency, just be distracted and nervous obviously.
7 THE COURT: In law school, I saw someone get
8 called on, one of the first days of criminal law class, and
9 there's 450 people, and we had a reading assignment and the
10 professor was just drilling this young lady. She got so
11 nervous, she just threw up. It was pretty clear that she
12 was nervous.
13 What do you think, Ms. Carbajal?
14 VENIREPERSON: Like I am now?
15 THE COURT: Like you are now?
16 (Laughter.)
17 THE COURT: I can't tell if you are. You're
18 smiling. Is that a nervous smile?
19 VENIREPERSON: Yes.
20 THE COURT: Okay. Ms. White?
21 VENIREPERSON: The fidgeting, sweating,
22 avoiding eye contact, everything they were saying.
23 THE COURT: And here's the problem.
24 Mr. Cassedy, what are all of those also a sign of?
25 VENIREPERSON: Guilt.
20
Jury Trial
December 2, 2013
1 THE COURT: Lying. Right?
2 VENIREPERSON: I didn't do it.
3 THE COURT: Yeah. People start to sweat,
4 they're stuttering, they're fidgeting, they won't look you
5 in the eye, they, you know, start to seem really nervous.
6 Could someone mistake that, Mr. Cassedy, as lying?
7 VENIREPERSON: Certainly.
8 THE COURT: Okay. And our forefathers
9 understood that. They're, like, you know what, we don't
10 want to put someone in a position where their freedom is at
11 stake and they're put on the stand and the jury might see
12 these type of outward signs, and hear the stuttering and
13 the shaking and the loss of concentration and refusal to
14 look them in the eye and think that, oh, that's a sign the
15 person is lying. So under the rules of our state and under
16 the rules of our constitution, a defendant is never
17 required to testify.
18 Now, that brings up a problem because my
19 mother is a trial court T V show junkie. And she loves to
20 watch, and then she'll call and ask me all of these
21 questions. And she doesn't understand the whole Fifth
22 Amendment, in my opinion. So I explained it to her just
23 like I explained it to you. And then she says, I don't
24 think you understand, I understand what you're saying,
25 you're not understanding what I'm saying.
21
Jury Trial
December 2, 2013
1 Who here has small children at least two,
2 under the age of 15? Mr. Sbaiti. How old are your
3 children?
4 VENIREPERSON: Seven months and two
5 and-a-half years.
6 THE COURT: I need somebody a little bit
7 older. Mr. -- is it Kieffer?
8 VENIREPERSON: Yes, sir. My kids are nine
9 and 11.
10 THE COURT: Perfect. The nine-year-old
11 comes in to you and says, Daddy, daddy -- is the 11 boy or
12 girl?
13 VENIREPERSON: 11 is a girl.
14 THE COURT: Daddy, daddy, she hit me. You
15 bring your 11-year-old daughter in and you say, What did
16 you do, tell me your side of the story. She says, Father,
17 I do not wish to discuss it. What do you infer from that?
18 VENIREPERSON: I would infer that my
19 nine-year-old is lying because he's the one that would hit
20 her. I wouldn't think she had done it.
21 THE COURT: She denied it; right?
22 VENIREPERSON: Yeah.
23 THE COURT: That's my mom, like, that's how
24 I raised you three boys and your sister. I bring you all
25 in, I ask questions, and then I get to the truth. And what
22
Jury Trial
December 2, 2013
1 my mom is trying to say is, Look, I get what you're saying,
2 but just because I walk through a door and somebody puts a
3 sign outside that says Collin County Court at Law Number
4 Two, I can't stop being Jan Walker. I'm 60 some odd years
5 old. This is how I feel. If you don't -- you're not
6 guilty, you should be willing to stand up and answer
7 questions. Okay? I can't stop the fact that that's how I
8 feel. Okay. Just because -- and turn that off just
9 because I walk into a courtroom.
10 And then I understood. Okay, for her, she's
11 the type that would say, you know what, I'll get to a
12 mountaintop, rooftop, and shout my innocence. But she
13 doesn't have a fear of public speaking. Okay? What that
14 comes down to is, my mom would be a fantastic juror because
15 she's very fair, she's very thorough, she has great
16 instincts, but she can't sit on a criminal case because she
17 has, honestly -- and we're all required to be honest about
18 it -- said, Listen, if the defendant doesn't get up and
19 testify, it might affect how I decide the case because I
20 feel like innocent people would be willing to testify.
21 So with that in mind, who's kind of -- on
22 the first row. We'll go row by row. Who's kind of like my
23 mother? If the defendant does not testify, it might -- I'm
24 not saying it would -- but it might affect how you decide a
25 case? Would you raise your hand. We'll go one at a time.
23
Jury Trial
December 2, 2013
1 Ms. Stelling-Parker.
2 VENIREPERSON: Very good.
3 THE COURT: Tell me your feelings.
4 VENIREPERSON: I understand the not wanting
5 to get up and talk because I'm the same way. I'll have the
6 nervous hands and all. But I'm kind of like your mom. If
7 I haven't done something, I'm going to make sure that
8 everybody around knows it.
9 THE COURT: Okay. Perfect. Let me come
10 back to you.
11 Who else? Mr. -- is it Byther?
12 VENIREPERSON: Byther.
13 THE COURT: Mr. Byther, tell me your
14 feelings.
15 VENIREPERSON: I would be anxious to tell my
16 story, my side of the story.
17 THE COURT: Mr. Byther, where were you on
18 August 26th about 4:00 o'clock this year?
19 VENIREPERSON: August 26. I don't remember.
20 THE COURT: You don't have any information
21 you can give me?
22 VENIREPERSON: No.
23 THE COURT: Okay. I'll come back to you too
24 then.
25 Who else? Ms. White, did you have your hand
24
Jury Trial
December 2, 2013
1 up?
2 VENIREPERSON: Yes, I did.
3 THE COURT: Okay. Tell me --
4 VENIREPERSON: Well, it's just being a
5 teacher and it's been my experience because kids won't
6 speak because --
7 THE COURT: Okay.
8 VENIREPERSON: Feel like people don't want
9 to stand up and speak up for themselves, they're hiding
10 something.
11 THE COURT: I'm going to give everyone a
12 chance because we're going to go through a couple of
13 scenarios. If your answers change, now I want to raise my
14 hand, or, hey, I raised my hand before but I want to change
15 my answer, just let me know.
16 On the second row, if the defendant doesn't
17 testify, could it possibly affect how you decide this case?
18 Raise your hand. No? All right.
19 On the third row, if the defendant doesn't
20 testify, it might cause you to rule one way or the other.
21 Raise your hand. All right.
22 Now, I've been both a prosecutor in this
23 county and I've been a defense attorney in this county. I
24 will tell you that as a defense attorney, I had lots of
25 clients who wanted to testify that I didn't want to
25
Jury Trial
December 2, 2013
1 testify. Okay? Because they don't come across very good.
2 I've also had people that I said, You can't go testify
3 because I can't support perjury and you're guilty so you
4 have to sit here and just be quiet. Okay? But here's the
5 problem.
6 On the second row, how do you respond to
7 this? How does a person who's innocent, how would they
8 act, what would they feel like if they got up here to
9 testify because they've been falsely accused of a crime?
10 How do you think that person with would act, Mr. Cassedy?
11 VENIREPERSON: Might be angry.
12 THE COURT: Angry.
13 What do you think, Mr. Lewis?
14 VENIREPERSON: I would think they would be
15 nervous that if -- that they might say something that could
16 be misconstrued.
17 THE COURT: Okay. What about Ms. Parker?
18 How would an innocent person who's testifying, how do you
19 think they would act?
20 VENIREPERSON: I think they would be angry.
21 THE COURT: You think they would be angry.
22 Would you be angry?
23 VENIREPERSON: I would be very angry.
24 THE COURT: Okay. Is it Sennett?
25 VENIREPERSON: Sennett.
26
Jury Trial
December 2, 2013
1 THE COURT: Mr. Sennett, what would you
2 expect them to act like?
3 VENIREPERSON: You know, if I was in that
4 situation, I would try to be more composed. I would think
5 you would want to be composed to kind of show the truth.
6 THE COURT: Okay. So you're kind of
7 confident that in the end, the system is going to work
8 everything out?
9 VENIREPERSON: Yeah.
10 THE COURT: Perfect. Mr. Kieffer?
11 VENIREPERSON: I would think you would try
12 to act composed but I would think that you would be
13 nervous, I think you would act nervous.
14 THE COURT: Okay. Nervous.
15 Mr. Christopher.
16 VENIREPERSON: I might put myself in that
17 situation. Underneath certainly would be perturbed, angry,
18 distraught but I agree, I would act as composed as possible
19 and concise and hope that the facts would reveal themselves
20 and the jury sees them.
21 THE COURT: Thank you.
22 Mr. Kendall.
23 VENIREPERSON: Well, I think that they would
24 be almost too reserved, afraid to speak if they were
25 falsely -- if they were falsely accused and they're already
27
Jury Trial
December 2, 2013
1 in that predicament, then I would -- I myself probably
2 would be -- would hold back, afraid that something else was
3 going to go wrong that I didn't expect.
4 THE COURT: Okay. So you're going to -- you
5 would expect to kind of proceed cautiously.
6 VENIREPERSON: Right. Tread lightly.
7 THE COURT: All right. Mr. Brown.
8 VENIREPERSON: Your Honor, it could be
9 various, you know, from anger to reservation to being
10 scared. Could be all the emotions.
11 THE COURT: Could run the whole gamut.
12 Mr. Pate.
13 VENIREPERSON: I think someone would be
14 maybe angry, maybe a little bit nervous, maybe passionate
15 about their innocence which may come across as anger.
16 THE COURT: Sure.
17 Is it Burdick?
18 VENIREPERSON: Yeah.
19 THE COURT: What do you think, Mr. Burdick?
20 VENIREPERSON: If it was me, I would be
21 angry that I was up there.
22 THE COURT: Why would you be angry?
23 VENIREPERSON: Because I knew I was innocent
24 if I knew and I would be argumentative --
25 THE COURT: Okay.
28
Jury Trial
December 2, 2013
1 VENIREPERSON: -- to the person asking
2 certain questions.
3 THE COURT: I think I'm kind of like you, I
4 get argumentative if I feel strongly about something
5 sometimes.
6 Mr. Noi-Mingle, how do you think a person
7 would act?
8 VENIREPERSON: Mixed emotions.
9 THE COURT: Mixed emotions?
10 VENIREPERSON: Yes.
11 THE COURT: Mr. Moore?
12 VENIREPERSON: I think it would be pretty
13 hard for most people not to be nervous.
14 THE COURT: Is it Spruiell?
15 VENIREPERSON: Spruiell.
16 THE COURT: Spruiell.
17 VENIREPERSON: Uh-huh.
18 THE COURT: Ms. Spruiell, how do you think
19 an innocent person would react up there?
20 VENIREPERSON: Depending on the male or
21 female. I think a female that was innocent, I mean, I
22 would, I would boo hoo.
23 THE COURT: You would cry?
24 VENIREPERSON: Oh, yeah.
25 THE COURT: I want to come back to that.
29
Jury Trial
December 2, 2013
1 About 12 times I've asked this question and that's the
2 first time someone has said that.
3 Mr. Fried?
4 VENIREPERSON: Freed (phonetic).
5 THE COURT: Freed.
6 VENIREPERSON: I guess a combination of
7 being angry and being frightened that it might go wrong
8 even though I'm innocent.
9 THE COURT: Now, raise your hand if you --
10 if you saw Ms. Fried -- I'm sorry -- Ms. Spruiell on the
11 stand and she was crying, who thinks that that might be
12 because she's guilty? Yeah.
13 VENIREPERSON: That's iffy. I would
14 probably cry along with her.
15 THE COURT: See, therein lies the problem
16 and why I would tell my clients a lot of times, Look, I'm
17 not sure I want you to testify, because people have all
18 types of different images in their mind of what an innocent
19 person would act like. They want to see you composed
20 because this is going to work itself out. They want to see
21 you angry because you've been falsely accused. They're
22 crying.
23 You know, I don't know how you're going to
24 meet all of these expectations, you know. And I would tell
25 them, you know, it's just like a doctor/patient
30
Jury Trial
December 2, 2013
1 relationship. When you're the patient, you're in charge,
2 not the doctor. But if you go to see a surgeon -- Mr.
3 Pate, let's say you go see a surgeon, he tells you you need
4 surgery. You might go to get two or three other opinions,
5 but if they all said you needed surgery, you think you
6 might tend to listen to them?
7 VENIREPERSON: I think so.
8 THE COURT: Same thing with the lawyers.
9 Sometimes the lawyers might say, You know what, I don't
10 want you to testify, you don't come off right, you're too
11 angry, you're too hostile, you're too this, too that,
12 whatever, you're too talkative, that kind of thing. So
13 sometimes the attorney says, you know, there's just no
14 need.
15 The State of Texas has the complete burden
16 to prove the case. By our law, Mr. Brooks and his client
17 can sit here and play Angry Birds, Words With Friends, take
18 a nap, they can do anything they want. She's done
19 everything she's required to do under the law just by being
20 here. But for a lot of people like my mom, that's not
21 enough. You ought to be willing to stand up and defend
22 yourself. Okay. The law doesn't require it. My mom
23 requires it. That make sense?
24 We're also going to want to talk to you
25 about your prejudices and biases. And when I say
31
Jury Trial
December 2, 2013
1 prejudices and biases, I'm not talking about racial
2 prejudice or racial bias. We're talking about things that
3 you really, really like or really dislike.
4 For instance, I am very biased towards my
5 father. I love my dad. We've got a fantastic
6 relationship. If my dad tells me he caught a bass and it
7 was this big and it was in the river behind the house, then
8 that's it. I don't need to see the bass, I don't need a
9 witness, I don't need a photograph. My dad caught a bass,
10 it was that big and it was in the river behind my house.
11 The State of Texas could come in here, nine
12 of the world's leading oceanographers and say, Bass don't
13 even swim in that river. That just means dad caught the
14 last one. Okay? It doesn't change the fact that I'm going
15 to believe what my father says.
16 Some people have, not to that degree but to
17 a large degree, they have those kind of feelings about law
18 enforcement because they have people in their families that
19 are law enforcement maybe. Someone who's in law
20 enforcement has saved their lives or saved someone who's
21 close to their lives. So we want to talk about that kind
22 of thing.
23 I'm going to let the attorneys talk to you
24 now. They're going to take about 30, 45 minutes. Share
25 your feelings with them. In between, we're going to take a
32
Jury Trial
December 2, 2013
1 break. I'll give you a 15-minute break. Now here's the
2 rules for the break.
3 You need to call someone, tell them that
4 you're serving on a jury, or that you're doing jury
5 service, that's fine. Do not tell them what kind of case
6 this is.
7 Why do you think I don't want them to know
8 what kind of case this is, Mr. Pate?
9 VENIREPERSON: They could possibly tell you
10 something that --
11 THE COURT: Let me tell you what I know
12 about D W I.
13 VENIREPERSON: Yeah.
14 THE COURT: Let me tell you how many drinks
15 you can have before you're drunk. That kind of thing.
16 Both sides in a case have had -- have equal access to the
17 evidence in the case. They have witnesses, they've picked
18 the case, they designed their case, can't combat what
19 somebody is telling Mr. Pate over the telephone. Okay? So
20 don't tell anybody what kind of case it is. They're going
21 to want to talk to you and share their wealth of knowledge.
22 Secondly, do not become a detective on your
23 own. We had a case where someone used their smartphone to
24 go and check some information out. The witness said that
25 the road was one way going east and one lane going west,
33
Jury Trial
December 2, 2013
1 and the person on the jury thought that wasn't correct. So
2 they used Google maps on their phone. And sure enough, it
3 was two lanes going east, two lanes going west, that person
4 was a liar.
5 Mr. Christopher, have you seen any
6 construction going on in Collin County?
7 VENIREPERSON: Quite a bit.
8 THE COURT: At the time of the offense, it
9 was one lane going each way, not any more. Okay? So do
10 not go and get your own information. We'll bring the
11 evidence to you. That is unacceptable and causes a
12 mistrial.
13 Also, when you're outside, don't come back
14 in, wait until the bailiff brings you in. The reason for
15 that is we don't want someone to see us talking to you and
16 wonder what's going on. We want to keep everything on the
17 up and up.
18 Please take a good look at where you're
19 seated because you have to sit in those exact same chairs.
20 The reason is both sides are going to take a copious amount
21 of notes. And it is important that they make sure that
22 they assign those notes to you.
23 Lastly, we do not have a definition in the
24 State of Texas for what beyond all reasonable doubt means.
25 The attorneys are not going to be able to give you a
34
Jury Trial
December 2, 2013
1 definition. They're going to give you what it doesn't
2 mean, that kind of thing.
3 I can tell you, Ms. Radice, if you're on
4 this jury, it means whatever you say it means. When
5 there's been enough evidence that you don't have any
6 reasonable doubt left in your mind, then they reached that
7 burden.
8 Mr. Sbaiti, you may require more evidence
9 than she does. Ms. Simonson, she may require more evidence
10 than both of you. It's an individual standard. But when
11 you don't have any reasonable doubt left, the state has met
12 their burden. If you do have a reasonable doubt left, they
13 state has not met their burden. All right? Any questions
14 before we begin?
15 All right. You have to speak -- you're
16 going to be doing voir dire with the state first. They get
17 to go first. Please do not talk to -- Mr. Wilson, are you
18 going to do voir dire?
19 MR. WILSON: Yes, sir, I am.
20 THE COURT: Please don't talk to where just
21 Mr. Wilson can hear. Okay? Because I have to hear
22 everything that's said. Because one side may object and I
23 have to make a ruling.
24 That brings me to my last point. For the
25 six of you that are chosen for this jury, we have -- you
35
Jury Trial
December 2, 2013
1 and I have very different jobs. You will be listening to
2 the witnesses, you will be examining the evidence, you will
3 be talking and discussing the case with one another when
4 the case is over and trying to decide what evidence is
5 believable, what testimony is believable, that kind of
6 thing. I will not be up here doing that. I will not be
7 judging the credibility of the witnesses or examining the
8 evidence. I will handle all of the legal issues. When one
9 side objects, I'll decide whether or not that objection
10 should be overruled or sustained. Okay? So I'll handle
11 all the legal issues. That may require that I have you
12 leave the room so that the attorneys can talk freely. It
13 doesn't make any sense for one side to object to certain
14 evidence and I agree that that evidence should not be
15 admitted and you're sitting in here listening to it. Does
16 that make sense?
17 All right. Thank you.
18 Mr. Wilson, you have the panel.
19 JURY VOIR DIRE
20 MR. WILSON: Thank you judge. May I use the
21 projector, please.
22 THE COURT: Yes, sir.
23 MR. WILSON: Good morning, everybody.
24 VENIREPERSONS: Morning.
25 MR. WILSON: As the judge introduced me
36
Jury Voir Dire by Mr. Wilson
1 earlier, my name is Justin Wilson. And I have the pleasure
2 of representing the State of Texas today. And before we --
3 as we're kind of waiting for the projector to come on here,
4 I'm going to start talking to you a little bit about the
5 phases of a trial.
6 And the first phase that we're in right now
7 is called voir dire. Voir dire is where I get the
8 opportunity to explain a little bit of the law to you, ask
9 you some questions that hopefully Bailiff Jones has not
10 already given you the answers to. And then we'll -- then
11 we also get a chance to, I guess, determine who's going to
12 be the best fit for the six people who wind up on our jury.
13 In addition to that, since I'm going to be
14 asking you some questions that will be somewhat personal
15 later on, I figure it's only fair if I tell you a little
16 bit about myself.
17 Before going to law school, I was a film
18 professor at Baylor University and taught cinematography,
19 editing classes; moved out to Los Angeles and worked in the
20 film industry out there as an editor and cinematographer
21 for music and music videos and things you've probably never
22 seen or heard of. And then came back to Texas. Went to
23 law school. And here I am today.
24 So the second phase that we have going on in
25 this process is the trial phase. And I want to make it
37
Jury Voir Dire by Mr. Wilson
1 clear to you that during the trial phase, you are going to
2 be looking at a snapshot in time. Basically the facts and
3 events that are surrounding the particular event that the
4 defendant has been charged with. You will not be allowed
5 to consider what happened before that snapshot, or after
6 that snapshot in time.
7 So, for instance, the defendant could be the
8 nicest person in the world, she could be the meanest person
9 in the world. Those sort of things don't matter. What
10 matters is what happened during that particular slice in
11 time.
12 Punishment. During the punishment phase,
13 which is the final phase of our process today, if things
14 get to that point, and if the defendant has -- if she winds
15 up electing for the jury to assess punishment, if it gets
16 to that point, then that is a time where sympathy can be
17 considered. But only during that punishment phase.
18 So next. Who here has ever seen somebody
19 drunk before? Is it Ms. Radice?
20 VENIREPERSON: Yes.
21 MR. WILSON: Am I saying your name right?
22 VENIREPERSON: Yes.
23 MR. WILSON: Ms. Radice, have you ever seen
24 somebody drunk before?
25 VENIREPERSON: Yes.
38
Jury Voir Dire by Mr. Wilson
1 MR. WILSON: What did they look like?
2 VENIREPERSON: Falling down, sometimes
3 belligerent, red eyes, acting like a fool.
4 MR. WILSON: Great answers.
5 Mr. Sbaiti, you see anything different?
6 VENIREPERSON: Yeah. People can be sort of
7 functionally drunk or they can be dysfunctionally drunk.
8 There's sort of a range.
9 MR. WILSON: What do you mean by that,
10 functional versus dysfunctional?
11 VENIREPERSON: They may not be falling down
12 but their cognitive decision-making capacities are
13 impaired. You have to maybe talk to them to realize, okay,
14 this person actually is drunk. There wouldn't necessarily
15 be -- wouldn't be falling over, incapable of general motor
16 skills.
17 MR. WILSON: So you talking about, you would
18 be talking to the person, are you referring to, like,
19 asking them questions, things like that?
20 VENIREPERSON: Sure. Asking them questions
21 or trying to have a conversation.
22 MR. WILSON: What would that conversation be
23 like?
24 VENIREPERSON: You could pick up that they
25 weren't necessarily all there.
39
Jury Voir Dire by Mr. Wilson
1 MR. WILSON: Answers to questions might not
2 be quite what you expect?
3 VENIREPERSON: Right.
4 MR. WILSON: Okay. And let's see,
5 Ms. Simonson, any other things that you've noticed?
6 VENIREPERSON: They could be loud. Somebody
7 that even from the other side of the room, people would
8 notice or could tell, you know, that they've been drinking
9 a lot.
10 MR. WILSON: Otherwise, other than being
11 loud, might you see anything different with their speech?
12 VENIREPERSON: Not that I personally have
13 noticed.
14 MR. WILSON: Okay.
15 Well, Mr. Campbell, have you ever noticed
16 anything about a drunk person's speech?
17 VENIREPERSON: I haven't personally been
18 involved with someone who's drunk. But symptoms could be
19 misleading. Sometimes their mental status because of some
20 accident could make them appear they are intoxicated. So
21 it's very difficult on outward signs to determine whether
22 someone is drunk or not.
23 MR. WILSON: Okay, so an accident. You
24 mentioned an accident. What type of -- Are you talking
25 about somebody who sustained a head injury or something
40
Jury Voir Dire by Mr. Wilson
1 like that?
2 VENIREPERSON: Yeah. In fact, in the case
3 of doing triage on someone, you're looking for airway,
4 looking for excessive bleeding, you're looking for their
5 mental status. Their mental status may look like they are
6 intoxicated when it could be because of the accident.
7 MR. WILSON: Ms. Stelling-Parker, have you
8 ever noticed anything about a drunk person's speech before?
9 VENIREPERSON: Sometimes they're more in
10 control than they look like they really are. They are
11 making an effort to sound calm and control what they're
12 saying.
13 MR. WILSON: Okay. Well, now, Mr. Sbaiti,
14 going back to what you were saying, we got functional
15 drunks and dysfunctional drunks. You talked about a
16 dysfunctional drunk being somebody who might not
17 necessarily be falling over, passing out, as Ms. Radice
18 suggested, but someone whose cognitive functions are not
19 normal.
20 Do we want to wait until that point to make
21 it illegal for somebody to drive?
22 VENIREPERSON: Wait until they're falling
23 over?
24 MR. WILSON: Well, either falling over --
25 yeah, wait until they're falling over before we say it's
41
Jury Voir Dire by Mr. Wilson
1 illegal to drive?
2 VENIREPERSON: My understanding of when it's
3 illegal to drive is when there's a certain amount of
4 alcohol in the blood level, not a qualitative analysis of
5 the person's behavior.
6 MR. WILSON: Okay. Well, we're going to
7 come back to that here in a little bit, in a minute.
8 Mr. Lewis, I notice you shaking your head
9 back there. Do you think that we should wait until someone
10 is falling down drunk before we make it illegal for them to
11 drive?
12 VENIREPERSON: No. The effect of alcohol
13 can be so -- you know, in the earlier stages of the
14 affectation, you know, people can sort of function but,
15 depending on the amount of alcohol that they've taken in,
16 it's going to start hitting heavier and heavier and heavier
17 and, if they're really beyond legally drunk, you know, it's
18 going to -- it's going to take an effect but it may take a
19 little bit more time.
20 MR. WILSON: Exactly. Exactly. The main
21 thing is that a person can be -- even when they're that
22 dysfunctional drunk that Mr. Sbaiti is talking about, they
23 can still be dangerous up to that point in time.
24 So, judge mentioned to you earlier that we
25 as the state have a certain checklist of elements that we
42
Jury Voir Dire by Mr. Wilson
1 have to prove to you beyond a reasonable doubt. Those
2 elements are that this defendant, on or about a certain
3 date, in Collin County, Texas, did operate a motor vehicle,
4 in a public place, while intoxicated.
5 Now, Mr. Mercer, can you tell from that list
6 we have up there which element is the one we argue about
7 the most?
8 VENIREPERSON: I'm going to assume it's the
9 while driving.
10 MR. WILSON: Exactly. While intoxicated.
11 Now, since that is the thing that we argue about the most,
12 the State of Texas has given us not one but three different
13 definitions of what it means to be intoxicated. This is
14 going to go back to what Mr. Sbaiti was saying.
15 I'm going to skip ahead here. Mr. Sbaiti
16 mentioned that the defendant having an alcohol
17 concentration of .08 or greater, that can be read from a
18 person's blood or from their breath. That's not the only
19 definition that the state is given. The state has also
20 provided us with definitions that someone does not have the
21 normal use of their mental faculties due to the
22 introduction of alcohol, a drug, a dangerous drug, or some
23 combination thereof into their body. Or we have another
24 definition: That the individual does not have the normal
25 use of his or her physical faculties due to the
43
Jury Voir Dire by Mr. Wilson
1 introduction of alcohol and so on.
2 Now, Mr. Mercer, you noticed the
3 conjunctions that we have in between those words, the "or."
4 What does that mean to you?
5 VENIREPERSON: That it could be either of
6 the three, either/or of the three.
7 MR. WILSON: Exactly. Exactly. And that's
8 the great thing about our system, is that you don't have to
9 believe beyond a reasonable doubt that all three of those
10 definitions were, I guess, active in the defendant at the
11 time of the arrest.
12 What you need to -- what you have to do is
13 believe beyond a reasonable doubt that one of those
14 definitions, at least one of them, apply. And you don't
15 all have to agree. So, Ms. Radice and Mr. Sbaiti, if you
16 guys were on the jury, then you might think -- you might
17 believe beyond a reasonable doubt that the defendant did
18 not have the normal use of her mental faculties. And
19 Ms. Simonson and Mr. Campbell, the two of you might believe
20 beyond a reasonable doubt the defendant did not have the
21 normal use of her physical faculties. And then Ms. Walker
22 and Ms. Stelling-Parker, the two of you might believe
23 beyond a reasonable doubt that the alcohol concentration
24 was a .08 or higher. As long as whichever six of you wind
25 up in the jury box believe beyond a reasonable doubt that
44
Jury Voir Dire by Mr. Wilson
1 at least one of those definitions applies, then the state
2 is entitled to a guilty verdict.
3 So some key things that we've been talking
4 about in these definitions, we want to go over a little
5 bit. So you heard mental and physical faculties. Let's
6 see here.
7 Mr. Byther, what would you say would be an
8 example of a mental faculty?
9 VENIREPERSON: Judgment. Speed that
10 somebody is driving, the way they're driving, watching for
11 the other people, things like that. Normal activities that
12 you engage in in the process of driving a motor vehicle.
13 MR. WILSON: Okay. So if you're talking
14 about the way somebody is driving in relation to other
15 people, you're talking about how their cognitive skills are
16 working. Maybe how they are processing the speed of other
17 cars around them. Their reaction time. Would that be fair
18 to say? That reaction time would be a big mental faculty?
19 VENIREPERSON: I would say yes.
20 MR. WILSON: Let's see. Ms. Carbajal, how
21 about someone's ability to follow instructions, would that
22 be a mental faculty?
23 VENIREPERSON: If they are driving with
24 alcohol, I don't think they will be able to respond because
25 they are slow, they move slow, they are not -- I don't know
45
Jury Voir Dire by Mr. Wilson
1 how to explain.
2 MR. WILSON: Well, it kind of all ties into
3 that slowed reaction time --
4 VENIREPERSON: Yes.
5 MR. WILSON: -- that we were talking about?
6 Right.
7 VENIREPERSON: Yes. And from my opinion, I
8 have a son and I have a husband and always telling them,
9 don't drive, I'm always thinking about them, they haven't
10 done but at the same time they -- you know, they -- by
11 themselves, they are not safe and there are others going
12 on.
13 MR. WILSON: And then they might have to
14 come see me and nobody wants to do that.
15 Well, now, Ms. White, what do you think
16 about someone about following directions and how that would
17 play into mental faculties?
18 VENIREPERSON: Under the influence of
19 alcohol?
20 MR. WILSON: Yes.
21 VENIREPERSON: Usually they can't follow the
22 directions as well and the responses might be slower.
23 MR. WILSON: Right. Communication
24 difficulties, that kind of thing?
25 VENIREPERSON: Right.
46
Jury Voir Dire by Mr. Wilson
1 MR. WILSON: Okay. Now let's talk about
2 some examples of some physical faculties.
3 Mr. Cassedy, anything you have in mind about
4 physical faculties? What would be an example?
5 VENIREPERSON: We talked about extreme, you
6 know, maybe stumbling, falling down.
7 MR. WILSON: Right. How about something
8 that's not so extreme?
9 VENIREPERSON: I think your reaction time
10 example is probably another physical symptom.
11 MR. WILSON: So like fine motor skills, for
12 instance? How about being able to manipulate your fingers
13 with control, whether you're trying to reach for things or
14 going -- trying to handle small objects? Would that be
15 one?
16 VENIREPERSON: It's possible.
17 MR. WILSON: How about placing your foot,
18 moving your foot from the accelerator to the brake pedal,
19 would that be a physical coordinated movement?
20 VENIREPERSON: Entirely possible.
21 MR. WILSON: All right. Another term that
22 came up in our discussion of these definitions is the idea
23 of normal use.
24 One thing that you all need to understand
25 very clearly is that when we talk about normal use, we are
47
Jury Voir Dire by Mr. Wilson
1 not talking about what is normal for this individual
2 defendant. It would be impractical for every police
3 officer out on the streets to know exactly what is normal
4 for each individual based on, you know, our athletic
5 ability or overall sense of balance or ability to
6 communicate. What we do is instead we apply a standard of
7 the average non-intoxicated person.
8 So seeing how it's probably around 10:00 in
9 the morning, something like that, I'm assuming that none of
10 you guys are intoxicated right now. So all of you would
11 collectively be the average non-intoxicated person. So
12 what is normal for you in regard to your mental faculties
13 and your physical faculties is the standard that you will
14 apply to the defendant.
15 Another thing to talk about is what is drunk
16 versus intoxicated. We've been kind of putting out those
17 two terms a little bit this morning. And as you know, the
18 State of Texas has given us the three different definitions
19 of intoxication. But we don't exactly have a definition of
20 drunk. So one thing you can think about is, let's say
21 right here where I'm standing, if this beam right here
22 represents a spectrum, from me being completely sober, not
23 having had a drop of alcohol, to here, if I walk down to
24 the other end, this is going to be the, I'm stumbling down,
25 you know, on the verge of passing out drunk like Ms. Radice
48
Jury Voir Dire by Mr. Wilson
1 suggested. Now, if I come to around, say, right here, I
2 place my pen right here. This is the demarcation saying
3 that this is the last sip of alcoholic I can have and still
4 maintain the normal use of my mental and physical
5 faculties.
6 Now, Mr. Mercer, how many steps can I go
7 beyond this point before I'm legally intoxicated?
8 VENIREPERSON: Well, as you pointed out, it
9 depends on the person.
10 MR. WILSON: Well, let's just say that we're
11 talking about the average non-intoxicated person. And this
12 is -- as the average non-intoxicated person, this is the
13 point where, you know, he or she can, last sip of alcohol,
14 still maintain those normal mental and physical faculties.
15 So what would happen if I take that one more sip? And I no
16 longer have the normal use of my mental and physical
17 faculties? I would be intoxicated, right, by the
18 definition --
19 VENIREPERSON: I suppose so-- by the
20 definition.
21 MR. WILSON: Yes.
22 VENIREPERSON: You would be intoxicated,
23 yes.
24 MR. WILSON: So in the State of Texas, as
25 long as I take -- if I take one step past this point of
49
Jury Voir Dire by Mr. Wilson
1 having the normal use of my mental and physical faculties,
2 then I'm intoxicated. It may not be how you define drunk,
3 you know, drunk can be anything, however you choose to
4 define it, but at this point, I am now legally intoxicated.
5 Here's an example for you. Think about it.
6 Let's say that after jury selection is done, let's say that
7 Ms. White, Ms. Carbajal and Mr. Byther, the three of you
8 don't make it on the jury. And you are so excited about
9 not having to spend the day on jury duty, that you go out
10 to happy hour, let's say you go to Gloria's down the road,
11 and you stop off at Gloria's, and you have some food, you
12 have some drinks.
13 And maybe, Ms. White, when the bill comes
14 out and it's time for you to calculate up the tip, it's
15 taking you a little bit longer to do those calculations
16 than you normally might. And you are looking all over the
17 place for your keys, you can't find them anywhere. And
18 they've been in your pocket the whole time. The whole time
19 you've been in there, they are in your pocket.
20 Ms. Carbajal, let's say when you stand up
21 from the table, you know, you're a little bit -- a little
22 bit tipsy on your feet, balance isn't quite so good.
23 And, Mr. Byther, let's say you are so
24 excited about not having to spend your day on this jury
25 that you just go crazy and you become the one who is
50
Jury Voir Dire by Mr. Wilson
1 stumbling, about to be passed out on the floor.
2 Now, Mr. Mercer, you have a couple of young
3 children; correct?
4 VENIREPERSON: Yes.
5 MR. WILSON: Which, if any, of your three
6 fellow perspective jurors do you want driving your young
7 children back home or to wherever they might be?
8 VENIREPERSON: None of them.
9 MR. WILSON: None of them. Because they are
10 all intoxicated in one shape or form.
11 So let's talk about driving.
12 Ms. Parker, what are some of the things that
13 you're thinking about when you're driving?
14 VENIREPERSON: Usually just watching the
15 signs and thinking where I need to go and watching the
16 street signs.
17 MR. WILSON: Okay. So watching signs and
18 thinking where you need to go. Are you looking at the cars
19 around you at all?
20 VENIREPERSON: Yeah.
21 MR. WILSON: Are there -- you know,
22 sometimes if you're on the freeway and traffic is moving
23 real fast, you have to watch out for that time would come
24 where you come up and everybody is now dead stopped on the
25 freeway and you have to hit your brakes fast.
51
Jury Voir Dire by Mr. Wilson
1 Did you see any construction on your way to
2 the courthouse this morning?
3 VENIREPERSON: Yes.
4 MR. WILSON: So you have to watch out for
5 construction workers, for --
6 VENIREPERSON: Construction, people to the
7 left, people to the right, to have to just stay off the
8 zones and just concentrate.
9 MR. WILSON: Right. So there's a lot of
10 things going on. It's a divided attention task.
11 Now, has anyone ever here -- let's see,
12 Mr. Kieffer, have you ever barely avoided a car accident
13 before?
14 VENIREPERSON: Yes.
15 MR. WILSON: And tell us about that, one of
16 those times.
17 VENIREPERSON: Just driving and not paying
18 attention and, you know, somebody stops or there's a car
19 and you're on a two-lane road, somebody is turning left and
20 there's a car in front of you, that person passes on the
21 median and that guy stops right in front of you.
22 MR. WILSON: Right.
23 VENIREPERSON: You're going the speed limit
24 but you have a little bit of time to react, just enough to
25 swerve around.
52
Jury Voir Dire by Mr. Wilson
1 MR. WILSON: So you mentioned a little bit
2 of time to react. Like you had to make a split second
3 decision. Well, what if that split second decision turns
4 into something more like (Snaps fingers twice), you think
5 you would have avoided that accident?
6 VENIREPERSON: No. I wouldn't have been
7 able to put the brakes on fast enough nor swerve fast
8 enough.
9 MR. WILSON: Exactly. And that's the whole
10 purpose of D W I laws. In the State of Texas, we want
11 people -- when people are using our roads, we want them to
12 be bringing their A game because we want to make sure that
13 reaction time, things like that, are safe for everybody
14 else that's on the road.
15 So now we've kind of been talking about the
16 law. Getting you guys up to speed on that. But now it's
17 the time for the personal questions.
18 So, first off, I got this scale up on the
19 board right now. And we would like to know about your
20 drinking habits. You can think of, you know, zero for not
21 at all. One, I know it says, one, a couple of times a
22 month, but maybe you think about yourself like one meaning
23 that you -- maybe you go out on a weekend or something, you
24 just have some drinks every now and again.
25 Two, for people who have, maybe, you know,
53
Jury Voir Dire by Mr. Wilson
1 it could be anywhere from glass of wine with dinner on a
2 consistent basis to, you know, you're going out pretty
3 regularly during the week, having some drinks.
4 So, Ms. Radice, how would you rate yourself?
5 VENIREPERSON: A one.
6 MR. WILSON: All right. Mr. Sbaiti?
7 VENIREPERSON: One.
8 MR. WILSON: Ms. Simonson?
9 VENIREPERSON: One.
10 MR. WILSON: Mr. Campbell?
11 VENIREPERSON: .5.
12 MR. WILSON: .5. Fractions are acceptable.
13 Ms. Walker.
14 VENIREPERSON: Two.
15 MR. WILSON: Ms. Stelling-Parker?
16 VENIREPERSON: I'm a .5.
17 MR. WILSON: .5, all right.
18 Mr. Mercer.
19 VENIREPERSON: One.
20 MR. WILSON: One. Anybody here for .75?
21 Mr. Byther?
22 VENIREPERSON: I would be a three.
23 MR. WILSON: Three. All right. You can
24 exceed the scale too if you would like.
25 Let's see. Ms. Carbajal?
54
Jury Voir Dire by Mr. Wilson
1 VENIREPERSON: Very little.
2 MR. WILSON: We'll call you a .25. How
3 about that?
4 Ms. White?
5 VENIREPERSON: .25.
6 MR. WILSON: All right. Mr. Burdick?
7 VENIREPERSON: Two.
8 MR. WILSON: Two.
9 Mr. Pate?
10 VENIREPERSON: Two.
11 MR. WILSON: Mr. Brown?
12 VENIREPERSON: Two.
13 MR. WILSON: Let's see. Mr. Kendall.
14 VENIREPERSON: A zero.
15 MR. WILSON: Mr. Christopher?
16 VENIREPERSON: Zero these days.
17 MR. WILSON: Mr. Kieffer.
18 VENIREPERSON: One.
19 MR. WILSON: A one?
20 VENIREPERSON: Uh-hum.
21 MR. WILSON: Okay. Mr. Sennett?
22 VENIREPERSON: One.
23 MR. WILSON: Ms. Parker?
24 VENIREPERSON: Zero.
25 MR. WILSON: Zero.
55
Jury Voir Dire by Mr. Wilson
1 Mr. Lewis?
2 VENIREPERSON: .5.
3 MR. WILSON: And Mr. Cassedy?
4 VENIREPERSON: Two.
5 MR. WILSON: Mr. Noi-Mingle?
6 VENIREPERSON: .5.
7 MR. WILSON: Mr. Moore?
8 VENIREPERSON: Zero.
9 MR. WILSON: Ms. Spruiell?
10 VENIREPERSON: .5.
11 MR. WILSON: And Mr. Fried?
12 VENIREPERSON: One with an asterisk by
13 definition, no more than twice a month.
14 MR. WILSON: Okay. Now, for my next
15 question here. Do you think that D W I is a problem in our
16 society?
17 Zero, not at all. One, that it's a moderate
18 problem. And two, that you think it's -- that D W I is a
19 serious problem in our society.
20 Ms. Radice?
21 VENIREPERSON: One.
22 MR. WILSON: One.
23 Mr. Sbaiti?
24 VENIREPERSON: I didn't understand the
25 question. It's asking whether it's a problem when it
56
Jury Voir Dire by Mr. Wilson
1 happens or is it happening too often?
2 MR. WILSON: Well, the thing about it, just
3 in general, do you think that -- you can think of it that
4 way or people -- do we have too many people driving while
5 intoxicated? Is it -- is our -- do our laws keep D W I
6 under control adequately, or is this something that we need
7 to address more seriously?
8 VENIREPERSON: I would say I'm a .5 then.
9 MR. WILSON: Okay. Ms. Simonson.
10 VENIREPERSON: One.
11 MR. WILSON: One.
12 Mr. Campbell?
13 VENIREPERSON: Two.
14 MR. WILSON: Ms. Walker?
15 VENIREPERSON: One.
16 MR. WILSON: Ms. Stelling-Parker?
17 VENIREPERSON: Two.
18 MR. WILSON: Mr. Mercer?
19 VENIREPERSON: One.
20 MR. WILSON: Mr. Byther?
21 VENIREPERSON: Two.
22 MR. WILSON: Ms. Carbajal?
23 VENIREPERSON: Two.
24 MR. WILSON: Ms. White?
25 VENIREPERSON: Two.
57
Jury Voir Dire by Mr. Wilson
1 MR. WILSON: Mr. Burdick?
2 VENIREPERSON: One.
3 MR. WILSON: Mr. Pate?
4 VENIREPERSON: Two.
5 MR. WILSON: Mr. Brown?
6 VENIREPERSON: One.
7 MR. WILSON: Mr. Kendall?
8 VENIREPERSON: One.
9 MR. WILSON: Mr. Christopher?
10 VENIREPERSON: One.
11 MR. WILSON: Mr. Kieffer?
12 VENIREPERSON: Two.
13 MR. WILSON: Mr. Sennett?
14 VENIREPERSON: One.
15 MR. WILSON: Ms. Parker?
16 VENIREPERSON: Two.
17 MR. WILSON: Mr. Lewis?
18 VENIREPERSON: Two.
19 MR. WILSON: Mr. Cassedy?
20 VENIREPERSON: One.
21 MR. WILSON: Mr. Noi-Mingle?
22 VENIREPERSON: One.
23 MR. WILSON: Mr. Moore?
24 VENIREPERSON: Three.
25 MR. WILSON: Ms. Spruiell?
58
Jury Voir Dire by Mr. Wilson
1 VENIREPERSON: Two.
2 MR. WILSON: And Mr. Fried?
3 VENIREPERSON: Two.
4 MR. WILSON: Okay. So here's one that's
5 probably one of the more personal questions we'll ask.
6 Has anyone here -- I'm just going to start
7 on the first row. Anyone here have your life impacted
8 somehow by a drunk driver?
9 Ms. White.
10 VENIREPERSON: Yes.
11 MR. WILSON: What happened with you?
12 VENIREPERSON: It was a friend of mine from
13 high school was driving drunk and was killed in the
14 accident.
15 THE COURT: I'm sorry, ma'am. I can't hear
16 you.
17 VENIREPERSON: I'm sorry. A friend of mine
18 was driving drunk and he died -- he wrecked his car and
19 died.
20 MR. WILSON: I'm sorry to hear that. But
21 thank you -- thank you for sharing and being honest with
22 us.
23 Mr. Sbaiti, were you going to raise your
24 hand?
25 VENIREPERSON: I did raise my hand. High
59
Jury Voir Dire by Mr. Wilson
1 school class mate of mine killed in a drunk driving
2 accident. She was not the drunk or the driver. But I've
3 also defended a couple of dozen D U I cases in Dallas
4 courts so I've been on the other side of that.
5 THE COURT: I'm sorry. You did what, sir?
6 VENIREPERSON: Defended a couple of dozen D
7 U I cases in trial.
8 THE COURT: Are you an attorney?
9 VENIREPERSON: Yes, sir.
10 THE COURT: Thank you.
11 MR. WILSON: All right. Thank you for
12 sharing that with us.
13 Ms. Simonson.
14 VENIREPERSON: I had a cousin and also a
15 niece that died because of a D W I.
16 MR. WILSON: Well, again, I'm sorry, very
17 sorry, to hear that. I feel bad, I know when I say I'm
18 sorry to hear it, I know that it's kind of hard to really
19 adequately express and address how serious these incidents
20 impact your life. I just want you to know I'm not trying
21 to come off as insincere or flippant or anything like that
22 but I do really appreciate the gravity of what happened and
23 also am very sorry for the things that happened in your
24 lives. Thank you for sharing.
25 Anybody else on the front row?
60
Jury Voir Dire by Mr. Wilson
1 Second row? Mr. Kieffer?
2 VENIREPERSON: One of my friends at college
3 and I were going back from a bar in Fort Worth and he got
4 pulled over for D U I. Totaled the car.
5 MR. WILSON: Any other, I guess, result
6 other than getting pulled over?
7 VENIREPERSON: He went to trial and did all
8 of his stuff, you know, cost him a lot of money, and I got
9 an M I P.
10 MR. WILSON: Okay. And then, let's say,
11 anybody else on the second row here?
12 Anybody on the back row? Okay.
13 Well, thank you all for sharing your stories
14 with me.
15 Next question I've got is kind of on our
16 same scale pattern here. How do you feel about the D W I
17 laws?
18 Do you think they are either zero, that the
19 laws are too strict; two, that they're not strict enough;
20 or, one, that they're just right?
21 Ms. Radice.
22 VENIREPERSON: One.
23 MR. WILSON: Mr. Sbaiti?
24 VENIREPERSON: One.
25 MR. WILSON: Ms. Simonson?
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Jury Voir Dire by Mr. Wilson
1 VENIREPERSON: One.
2 MR. WILSON: Mr. Campbell?
3 VENIREPERSON: Two.
4 MR. WILSON: Ms. Walker?
5 VENIREPERSON: One.
6 MR. WILSON: Ms. Stelling-Parker.
7 VENIREPERSON: Two.
8 MR. WILSON: Mr. Mercer?
9 VENIREPERSON: One.
10 MR. WILSON: Mr. Byther?
11 VENIREPERSON: It's really two questions
12 there. I think that the net to me, it seems like it's a
13 little bit excessive. The severity, though, when people
14 are repeat offenders and all of that stuff, I think it's a
15 terrible problem. And I don't think that those instances
16 are strict enough.
17 MR. WILSON: All right. Thank you.
18 Ms. Carbajal.
19 VENIREPERSON: One.
20 MR. WILSON: All right. Ms. White.
21 VENIREPERSON: I'm a one.
22 MR. WILSON: And Mr. Burdick?
23 VENIREPERSON: A one.
24 MR. BROOKS: Counsel. I didn't hear
25 Ms. White.
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Jury Voir Dire by Mr. Wilson
1 VENIREPERSON: I'm sorry. I need to speak
2 up. One.
3 MR. WILSON: And, Mr. Burdick, you said one?
4 VENIREPERSON: Yeah.
5 MR. WILSON: Mr. Pate?
6 VENIREPERSON: One.
7 MR. WILSON: Mr. Brown?
8 VENIREPERSON: One.
9 MR. WILSON: Mr. Kendall?
10 VENIREPERSON: One.
11 MR. WILSON: Mr. Christopher?
12 VENIREPERSON: One.
13 MR. WILSON: Mr. Kieffer?
14 VENIREPERSON: One.
15 MR. WILSON: Mr. Sennett?
16 VENIREPERSON: One.
17 MR. WILSON: Ms. Parker?
18 VENIREPERSON: One.
19 MR. WILSON: Ms. Lewis?
20 VENIREPERSON: Two, especially for repeat
21 offenders.
22 MR. WILSON: Okay. Mr. Cassedy?
23 VENIREPERSON: One.
24 MR. WILSON: Mr. Noi-Mingle?
25 VENIREPERSON: One.
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1 MR. WILSON: Mr. Moore?
2 VENIREPERSON: Two.
3 MR. WILSON: Ms. Spruiell?
4 VENIREPERSON: Two.
5 MR. WILSON: And Mr. Fried?
6 VENIREPERSON: One.
7 MR. WILSON: Okay. All right. And this is
8 probably the most invasive of our questions.
9 Has anyone here -- I'll go row by row again.
10 Anyone on the first row ever been arrested, charged or
11 convicted of a D W I?
12 Ms. Walker.
13 VENIREPERSON: (Indicating.)
14 MR. WILSON: And so was yours in Collin
15 County?
16 VENIREPERSON: No. It happened in
17 California.
18 MR. WILSON: Okay. And when was that?
19 VENIREPERSON: It's been about 15 years ago.
20 MR. WILSON: Do you remember if that case
21 went to a jury for punishment at all?
22 VENIREPERSON: No. No.
23 MR. WILSON: No?
24 VENIREPERSON: I did my -- the things you're
25 supposed to do and paid my fine and that was that.
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1 MR. WILSON: Okay.
2 VENIREPERSON: But it was horrible.
3 MR. WILSON: Well, now, so based on that --
4 VENIREPERSON: You have to go to those
5 classes and, you know, it's -- it just -- it's so
6 demeaning. I was so ashamed.
7 MR. WILSON: So based on how you've
8 described that experience, then, is it fair to say that you
9 would be a little biased towards the state and the police
10 officers in that whole process there?
11 VENIREPERSON: No. Not towards them. More
12 towards myself --
13 MR. WILSON: Okay.
14 VENIREPERSON: -- putting myself in that
15 predicament.
16 MR. WILSON: Okay. So then you're saying
17 that based on, even though that you've gone through that
18 experience, that if you were to be on the jury today, you
19 would be able to set that experience aside and just
20 evaluate the information, the facts that are presented
21 here?
22 VENIREPERSON: I just know that what I went
23 through, I would have to see the similarities.
24 THE COURT: You would have to see what?
25 VENIREPERSON: The similarities of possibly
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1 what she was -- where she was at or what she was doing or
2 what amount she had to drink probably in comparison to my
3 own because, you know, it happened to me.
4 MR. WILSON: Okay.
5 VENIREPERSON: I mean, it's kind of hard to
6 separate, for me to separate the two.
7 MR. WILSON: Okay. And that's very
8 understandable. So it's fair to say, then, that you would
9 have a hard time separating what happened to you --
10 VENIREPERSON: Uh-hum.
11 MR. WILSON: -- from what happened to this
12 defendant --
13 VENIREPERSON: Yes.
14 MR. WILSON: -- and that the two experiences
15 would come together then?
16 VENIREPERSON: Yes.
17 MR. WILSON: Okay. Well, thank you,
18 Ms. Walker. I appreciate you sharing that.
19 Anybody else here on the front row? Okay.
20 How about on the middle row?
21 Mr. Burdick.
22 VENIREPERSON: Yes.
23 MR. WILSON: I guess did this happen in
24 Collin County?
25 VENIREPERSON: No.
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1 MR. WILSON: Which -- was it in Texas at
2 all?
3 VENIREPERSON: No. North Carolina.
4 MR. WILSON: All right. And about when did
5 yours happen?
6 VENIREPERSON: Almost 30 years ago.
7 MR. WILSON: 30 years ago. Okay. And do
8 you remember if it went to a jury at all?
9 VENIREPERSON: I went through a first
10 offenders program.
11 MR. WILSON: Okay.
12 VENIREPERSON: Found not guilty, went to
13 class.
14 MR. WILSON: Okay. So do you feel like you
15 were -- Based on that experience, do you feel like you have
16 any sort of bias against the state or the police officers?
17 VENIREPERSON: Not from my particular case,
18 no. I was under age for drinking. I was 16 years old at
19 the time. And, yeah, I was underaged, I was arrested for
20 underage drinking and D W I, even though I didn't feel like
21 at the time that I was drunk.
22 MR. WILSON: Okay.
23 VENIREPERSON: But they didn't -- basically
24 -- basically when I went to court, that option came to me
25 without even going through anything: Would you like to go
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1 through the first offenders program?
2 MR. WILSON: Okay. Do you feel like you
3 were treated fairly in the process?
4 VENIREPERSON: Yes.
5 MR. WILSON: And would you be able to leave
6 that experience behind you and just consider the facts and
7 evidence presented to you today?
8 VENIREPERSON: Yes.
9 MR. WILSON: Okay. Anybody else on the
10 second row? Okay.
11 Anybody on the third row?
12 All right. And I'm going to ask the same
13 question -- and I know a moment ago, Mr. Kieffer told us
14 about a college friend. When I ask this question, I'm not
15 talking about somebody like a college friend. I'm talking
16 about somebody -- let's say, you know, a family member,
17 spouse, somebody that you are very close with that you
18 would have kept under -- I guess kept track of the intimate
19 details of what went on in the case and the proceedings and
20 everything. Do you know anybody like that who has ever
21 been arrested, charged or convicted of a D W I? And I'll
22 start with the first row.
23 VENIREPERSON: You're talking about D W I.
24 Not drunk in public; right?
25 MR. WILSON: Correct.
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1 VENIREPERSON: Then no.
2 MR. WILSON: Okay. And Mr. Byther?
3 VENIREPERSON: Yes. Both my sons and
4 friends. It was while they were in college down in Austin.
5 MR. WILSON: Okay.
6 VENIREPERSON: Just past all of that now.
7 MR. WILSON: Well, would you say that based
8 on those experiences, things that you observed, that is it
9 fair to say you would be biased, though, against the police
10 and against the prosecution today?
11 VENIREPERSON: I think -- this is what -- I
12 think the net is too wide. I think there's a lot of people
13 that are functional who may be technically inebriated who
14 get caught. By the same token, I think it is a problem and
15 I understand why it's done, I understand that.
16 MR. WILSON: Okay. So I guess -- Is it fair
17 for me to say from what you're telling me that you feel
18 like the -- in terms of a first arrest, not for repeat
19 offenders, but for first arrest, that you feel like the law
20 as it stands has cast a net that's a little bit too big and
21 it might be difficult for you to follow all of the
22 different definitions of intoxication that our law
23 provides?
24 VENIREPERSON: Yeah, I think it's a nebulous
25 thing. It was -- metabolism affects us. I just think that
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1 everybody is not the same. Everybody doesn't react the
2 same. I was in the Navy so I know what drunk is. And
3 there's all kinds of -- you know, there's a whole array of
4 things like we were talking about before. You know, you
5 can drink and you can drink and you can be functional. And
6 a lot of people deal with that quite effectively. You
7 know, I drink frequently, glass of wine every night. It's
8 not a big deal. And I never get drunk. I don't want to
9 get drunk. And -- but I don't know about blood alcohol
10 concentrations, I have no idea.
11 But having said that, the problem of drunk
12 driving is serious. I think it is very serious problem. I
13 understand that we're just trying to deal with that.
14 MR. WILSON: Right. But even though it's --
15 even though you do think that drunk driving is a bit of a
16 -- is a serious problem--
17 VENIREPERSON: Yeah.
18 MR. WILSON: -- that it's fair to say,
19 though, that you have a hard time following the letter of
20 the law as the state provides it currently, given the
21 specific definitions and about not only the alcohol
22 concentration but the normal use of mental faculties and
23 the physical faculties?
24 VENIREPERSON: I mean, I just have to hear
25 the evidence and just make a judgment on that. I can't
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1 really say --
2 THE COURT: Mr. Byther, here's the problem.
3 Remember when we talked before about the court doesn't want
4 to put you in a position where you later feel like you have
5 to violate your conscious? We need to know if you can
6 guarantee both sides that you could follow the law as the
7 law currently exists because we don't want you to have to,
8 at the end of this trial, say, You know what, I thought I
9 could but this is one of those situations where I'm not
10 comfortable following the law. So we kind of have to nail
11 you down right now.
12 You may disagree. If you were on the
13 legislature, you might write the law differently, but what
14 it really boils down to is, you have the definitions, the
15 loss of mental faculties due to the introduction of
16 alcohol, or the loss of normal physical faculties due to
17 the introduction of alcohol, or blood alcohol concentration
18 of 0.08.
19 If the state proves any one of those three
20 definitions to you beyond all reasonable doubt, can you
21 return a guilty verdict?
22 VENIREPERSON: I think I can.
23 THE COURT: All right. Will you return a
24 guilty verdict if that's proven to you beyond all
25 reasonable doubt?
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1 VENIREPERSON: I believe I can, yes.
2 THE COURT: Okay. Now I'm not trying to
3 pick on you. This is like that whole thing, let's say you
4 and I are going to fly to Vegas. We're getting to take our
5 seats. The pilot is there. And we go, you know, You can
6 fly us there safe, right? I think I can.
7 I'm getting off.
8 (Laughter.)
9 THE COURT: We need 100 percent guarantee.
10 If you can't give a guarantee, that's okay. If you're,
11 like, I don't know, but I really -- the best answer I can
12 do is, I think I can, then that's not going to -- it's not
13 going to be fair.
14 Because, imagine yourself sitting here and
15 you're on the jury -- you know, you're the defendant.
16 Someone says, I think I could be fair but I'm not sure, you
17 really wouldn't want that person on your jury. So the law
18 requires that anyone who's going to be on the jury be able
19 to follow the law.
20 Can you, can you with 100 percent certainty,
21 say that if you're convinced beyond all reasonable doubt
22 that the state's proved their case, that you'll find the
23 person guilty?
24 VENIREPERSON: I think I can. I --
25 THE COURT: No --
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1 VENIREPERSON: Yes, I can.
2 THE COURT: You can do it?
3 VENIREPERSON: I can.
4 THE COURT: All right.
5 MR. WILSON: All right. Was there anybody
6 else on the front row that I didn't get to?
7 Okay. Ms. Simonson.
8 VENIREPERSON: My daughter had a D W I.
9 MR. WILSON: Okay. And when was that?
10 VENIREPERSON: 20 years ago.
11 MR. WILSON: Okay.
12 VENIREPERSON: She was 21.
13 MR. WILSON: And do you feel like, based on
14 that experience, that you have any bias against the state
15 or the police?
16 VENIREPERSON: No. They probably caught her
17 right when she was pulling out of a place and if she had
18 gotten past them, maybe she would have had a wreck. There
19 was no wreck. But she did get pulled over.
20 MR. WILSON: So do you feel like she was
21 treated fairly in the process?
22 VENIREPERSON: Yes.
23 MR. WILSON: Did that experience, even
24 though it might have been bad at the time, did it have a
25 positive effect on your daughter at all?
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Jury Voir Dire by Mr. Wilson
1 VENIREPERSON: On her, yes, it did.
2 MR. WILSON: Okay. Thank you.
3 Anybody else that I didn't get to? Yes,
4 sir.
5 VENIREPERSON: Stepson before he was my
6 stepson.
7 MR. WILSON: Okay. And do you feel like he
8 was treated fairly in the process?
9 VENIREPERSON: Yeah. I think the financial
10 penalty as well as the breathalyzer in the vehicle were the
11 appropriate measures to take.
12 MR. WILSON: Okay. Thank you, sir.
13 Anybody else on the second row?
14 VENIREPERSON: What was the question again?
15 MR. WILSON: The question is, do you have
16 anybody that you are -- like a family member, a spouse or a
17 child, something like that, who -- that you've been -- you
18 would have followed the case extremely closely who had been
19 arrested, charged or convicted of D W I?
20 VENIREPERSON: Yes.
21 MR. WILSON: And who was that?
22 VENIREPERSON: Family members.
23 MR. WILSON: Okay. And based on those
24 experiences and what you know, is it fair to say that you
25 have some bias or some mistrust of the police or the
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1 prosecution?
2 VENIREPERSON: No.
3 MR. WILSON: No? You feel like they were
4 treated fairly in the process, then?
5 VENIREPERSON: Yes. I feel like they were.
6 MR. WILSON: Okay. Thank you, Mr. Burdick.
7 Anybody else on the second row?
8 And the third row? Yes, Ms. Spruiell.
9 VENIREPERSON: My daughter.
10 MR. WILSON: And I guess how long ago was
11 that?
12 VENIREPERSON: She's had two. Her first one
13 she was 16, and that was nine years ago.
14 MR. WILSON: Okay.
15 VENIREPERSON: And when she turned 18.
16 MR. WILSON: And how is that -- how is that
17 -- Was she treated fairly in the process, do you
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