# Curlee, Darrell > Court of Appeals of Texas · November 16, 2015 URL: https://www.frixlaw.com/law-library/cases/4071772 ## Case - **Court:** Court of Appeals of Texas - **Decided:** November 16, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4071772 ## Opinion text JANE HALL JANET McCONATHY COURT COORDINATOR COURT REPORTER jhall@co.hill.tx.us jmcconathy@co.hill.tx.us IDA ALCALA ASST. COURT COORDINATOR ialcala@co.hill.tx.us October 7, ~015 RECEiVED IN Sharon Keller, Chief Justice COURT OF CRIMINAL APPEALS Court of Criminal Appeals P. 0. Box 12308 NOV 16 2015 Austin, TX 78711-2308 Re: No. WR. 83,797-01 In re: Darrell Curlee Dear Judge Keller: I am new to the process of responding personally to an Application for Writ of Mandamus. One ofthe briefing attorneys that I spoke with at the Court of Criminal Appeals said that I could do so in letter form. I am a little confused over the filing of the Writ with your Court as the applicant entered into a plea agreement and was sentenced on July 31, 2015. I am attaching certified copies of each filing from Mr. Curlee's trial court file collectively as Exhibit A. I have also included a letter that I received from Mr. Curlee complaining about his trial counsel just before I appointed Mr. Lyle Gripp as additional and lead counsel. That letter is attached as Exhibit B. I have included a copy of the Order Appointing Mr. Gripp as Exhibit C. As you can see, the appointment does not remove Mr. Russell, it merely adds additional counsel. I This was done for two reasons. First,.Mr. Curlee complained. Second, at about the same time as the appointment of Mr. Gripp, I learned of a troubling series of events that led me to question Mr. Russell's fitness to practice law. When I served as the Judge of the County Court at Law of Hill County, I was, from time to time, assigned to sit as the Judge of the 66th District Court. One of those assignments was in Cause No. 37228, State of Texas v. James Ryder. Terence Russell had been appointed to represent Mr. Ryder by the Honorable F. B. McGregor, Jr., prior to my assignment to the case. I set the case for a jury trial on August 27, 20 14; however, I fell ill and the Honorable Alan Mayfield, Retired Judge ofthe 74th District Court of McLennan County, was assigned to preside over the jury trial. Mr. Ryder faced three felony counts. The first count had a range of punishment from 25 years to life, the second count was from two years to 20 years, and the third count was from two years to 10 years. Ultimately, the juryfound Mr. Ryder guilty and sentenced Mr. Ryder to 99 years, 20 years, and 10 years, respectively. Although Mr. Ryder had been deemed indigent and had counsel appointed to him, no Ake v. Oklahoma or similar motions were filed with the court seeking funds for expert witnesses, investigators, or any other assistance. Mr. Ryder has now hired the Honorable Kristin R. Brown of Dallas to represent him on appeal. Ms. Brown filed a Motion for New Trial wherein she alleges that Mr. Russell required Mr. Ryder to provide $1 ,500 so that an expert could be hired. That expert, Dr. Trent Terrell, required a fee of only $1,000 for his testimony. Unfortunately, because of an alleged miscommunication, Dr. Terrell never appeared at the trial. Dr. Terrell did return an uncashed $1,000 check written from Mr. Russell's personal checking account. A $1,000 check was subsequently written to Mr. Ryder or his fiance as a refund. That check was not written on an IOLTA trust account but instead seems to come from Mr. Russell's and his wife's personal bank account. To this day, Mr. Russell has failed to account for or return the other $500 that he required the indigent defendant to tender to him. I have attached as Exhibit D a copy of the Motion for New Trial, together with the Affidavits of Dr. Terrell and Larenda Nichole Watkins (the fiance of Mr. Ryder who paid Mr. Russell the $1 ,500), along with a copy of the check that refunded the money to Mr. Ryder, and the receipt from Mr. Ryder when the money was deposited with Mr. Russell. I have attached as Exhibit E the transcript of the hearing on the Motion to Rescind and Second Motion for New Trial filed by Mr. Ryder wherein Mr. Russell testified that he did not maintain a trust account, and that he used his personal account for his client trust account. Also attached is the attorney fee voucher and proof of payment by Hill County to Mr. Russell for representing Mr. Ryder. Further, there is presently a case before your court styled In re Thomas Eric Lee, WR. 81,722-01. Mr. Russell represented Mr. Lee at the trial court and Mr. Lee has now alleged that Mr. Russell coerced him into pleading no contest. Mr. Lee alleged that Mr. Russell told him "that he was going to be elected district judge and Mr. Lee better hurry and plead to the charges because counsel would throw the book at him once counsel took the bench." Attached as Exhibit F is a copy of the transcript from the hearing conducted as a part of the Order issued by the Court of Criminal Appeals. Mr. Russell testifies, but never unequivocally denies telling Mr. Lee what he was alleged to have said. I believe Mr. Lee's assertion to be true because in a previous case, another defendant, Curtis Fields, made an allegation that "Russell emphasizes that he is utilizing political strategies to win votes for the up-coming judge's position." Attached as Exhibit a'is a copy of Mr. Fields' complaint. The above referenced allegation is made at the top of page 4. Because my understanding is that I have a fiduciary duty to appoint competent counsel for indigent defendants, and because of my growing concerns regarding Mr. Russell, I appointed additional counsel to an indigent defendant. I have also complied with my duty to report \ misconduct to the State Bar of Texas as a result of the trust account issues referenced above. Cc: Terence Russell (w/o attachments) Mark Pratt (w/o attachments) Lyle Gripp (w/o attachments) EXHIBIT A . · .. "' \ ·~- r ~ INDICTMENT CAUSENO. 3Jt±58 THE STATE OF TEXAS VS. DARREL ALLEN CURLEE CHARGE: AGGRAVATED ASSAULT WITH A DEADLY WEAPON AGGRAVATED ASSAULT THREAT-WITH A DEADLY WEAPON -.. IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: THE GRAND JURY, for the County of Hill, ·State of Texas, duly selected, empaneled, sworn, charged and organized as such at the JULY/DECEMBER term, A.D., 2012 of the 66th Judicial District Court for said County, upon their oaths present in and to said court at said term that DARREL ALLEN CURLEE hereinafter styled Defendant, on or about the 15TH DAY OF JUNE 2012 and before the presentment ofthis indictment, in the County of HiJI and State aforesaid, did then and there unlawfully, intentionally or knowingly or recklessly cause bodily injury to Christopher Jordan Wally by cutting him with a knife, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife, that in the manner of its use-or intended use was capable of causing death or serious bodily injury. And it is further presented that prior to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on the 25th day of February 1983, in the District Court of San Miguel County, New Mexico in Cause No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name of Darrerll Allen Curlee, was duly and legally convicted in said last named Court of a felony, to-wit: Second Degree Murder upon an indictment then legally pending in said last named Court and of which said Court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commission of the primary offense. A CERTIFIED COPY I ATIEST g_ -,~ ANGELIAORR .201£._ DISTRICT CLERK HILL COUNTY. T ·~· And it is further presented that before the commission of the primary offense and after the conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed the felony of Burglary and was convicted on the 91h day of May I 989 in the Seventh Judicial District Court of San Juan County, Utah, in Cause No. 767. And it is further presented that on or about the tsm DAY OF JUNE 2012 in the County of Hill and State of Texas, the defendant, DARREL ALLEN CURLEE , did then and there intentionally or knowingly threaten Jerry Wayne Vessells with imminent bodily injury by attempting to cut and/or stab him with a knife and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury. And it is further presented that prior to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on the 25th day of February I 983, in the District Court of San Miguel County, New Mexico in Cause No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name of Darrell Allen Curlee, was duly and legally convicted in said last named Court of a felony, to-wit: Second Degree Murder upon an indictment then legally pending in said last named Court and of which said Court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commission of the primary offense. And it is further presented that before the commission of the primary offense and after the conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed the felony of Burglary and was convicted on the 9th day of May 1989 in the Seventh Judicial District Court of San Juan County, Utah, in Cause No. 767. NO. 37,458 STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 66th JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § IDLL COUNTY, TEXAS WAIVER OF ARRAIGNMENT The undersigned Defendant, Darrell Allen Curlee, by counsel, waives formal pre-trial arraignment and preparation time between arraignment and trial, and agrees to be arraigned at time of trial, and enters a plea of not guilty. The undersigned attorney hereby enters appearance as attorney of record for Darrell Allen Curlee and agrees that the cause be set for trial in the courtroom ofthe 66th Judicial District Court ofHill County, Texas. SIGNED on September 6, 2012. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at Law PO Box 306 Hillsboro, TX 76645 245-396-3219 254-582-5593 (facsimle) ~~w/?.4 Terence A. Russel) State Bar No. 17437070 ,_,2f'L ~ Attorne~:~:~len Curlee ..- _ d L? .,....._ -7 '7' ~ .,t.,__ - ~ ~ ~ I I'- ~~ . Approved by~: ., J f) ' Signed on , /L~ / y ,)J( 2-c:::= . (OPV N0.37,458 STATK.OF TEXAS ·§ IN THE DISTRICT COURT § vs. § 66th JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § HILL COUNTY, TEXAS : WAIVER OF ARRAIGNMENT The undersigned Defendant, Darrell Allen Curlee, by counsel, waives formal pre-trial arraignment and preparation time between arraignment and trial, and agrees to be arraigned at time of trial, and enters a plea of not ~ilty. The undersigned attorney hereby enters appearance as attorney of record for Darrell Allen Curlee and agrees that the cause be set for trial in the courtroom of the 66th Judicial District Court ofHill County, Texas. SIGNED on September 6, 2012. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at: Law POBox306 Hillsboro, TX 76645 ·o 245-396-3219 254-582-5593 (facsimle) ~~uJ'?A Terence A. Russell State Bar No. 17437070 J1,j_ £.4 /e?r~ ~ J. ~yfor Darrell Allen Curlee u· .t4.. ~ ,.- z_ u. ¥~· ~c;___.- __,., Approved by . Court: ~- /'/ ~~-- JUDGE P IDING ?'0!! A CERTIFIED ATTEST l.. ~ I .20 ANGELIAORR DISTRICT CLERK HILL. COUNTY. T BY .,\: . . :1\.. \ 'oAnd Result ,.port ~K~OCERa · MFP 09/25/2012 08:14 Firmware Version 2KS_2F00.005.004 2010.04.13 [2KS_l000. 005. 001] [2KS_ll00. 001.002] [2KS_7000. 005. 001] ilt:lft>it~l:lll#.tlf:MS%KM:~mi''\@:•::';:~:;=• •==••=·= Job No. : 033502 Total Time: o•oo'l7" Page: 002 Complete Document: doc033S0220120925081330 •·/ ,' CAUSE NO. 37,458 THE STATE OF TEXAS § IN THE 66'1'11 JUDICIAL § DISTRICT COURT OF I HILL COUNTY, TEXAS $E'tTJNG ORQEBS THIS CASE IS ORDERED SJT FQR 1.. _XX_PRE-TRIAL MOTIONS IIEAlUNG UNDERARTICLEl8.01CCPSETON-OCTOBER 18,2012 9:00A.M. ) l._XX_FINALPRE-TRIALCON.FERENCE-NOVEl\tiBER 13,201.2 9:00 A.N.f.. 3. _XX_JURYTRW.JSSETFOR--JANUARY 14,2013 9:00A.M. 4. _PIAAIS SBTFOR _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ No. Date and Time Destination Times Type Result Resolution/ECH 001 09/25/12 08: 14 Terence Russell o•oo·1r FAX OK 200xl00 Normal/On [ QWGOXOB415 ] l CAUSE NO. 37,458 THE STATE OF TEXAS § vs. § DARRELL ALLEN CURLEE § HILL COUNTY, TEXAS ORDER APPOINTING A DISINTERESTED EXPERT TO EXAMINE DEFENDANT It is ORDERED that Dr. Veri 0. Childers, Jr. is hereby appointed to examine DARRELL ALLEN CURLEE, Defendant in the above entitled and numbered cause, for the purposes of determining whether Defendant is competent to stand trial and whether Defendant is or was a person with mental illness at the time of the alleged offense or offenses. The Defendant, DARRELL ALLEN CURLEE is in the Hill County Jail on charges of Aggravated Assault with a Deadly Weapon and Aggravated Assault-Threat-with a Deadly Weapon, felony indictments. The meaning of competency to stand trial is whether the Defendant has sufficient present ability to consult with defense counsel with a reasonable degree of rational understanding and whether the Defendant has a rational as well as factual understanding of the proceedings against him. For the purpose of competency you should determine whether if at the time of the conduct charged, Defendant, as a result of mental disease or defect, did not know that his ORDER APPOINTING A DIS!NIERESTED EXPERT TO EXAMINE DEFENDANT 1 conduct was wrong. The term "mental disease or defect" does not include abnormality manifested only by repeated criminal or otherwise antisocial conduct. IT IS FURTHER ORDERED that the examiner appointed herein submit a written report ofthe examination to the Court within thirty (30) days of the date of this ORDER, including a description of the procedures used in the examination, the examiner's observations and findings pertaining to the Defendant's competency to stand trial, and the recommended treatment. If the examiner concludes that the Defendant is incompetent to stand trial, the report must also state the examiner's observations and findings and whether there is a substantial probability that the Defendant will attain the competency to stand trial within the foreseeable future. ' report be submitted to the Court setting IT IS FURTHER ORDERED that a separate forth the examiner's observations and findings concerning: 1. Whether the Defendant is a person with mentally illness (and meets the criteria for court-ordered inpatient mental health senrices under Subtitle C, Title 7, Health and Safety Code. 2. Whether the Defendant is a person with mental retardation and meets the criteria for commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code. 3. Whether the Defendant was sane at the time of the alleged offense~. IT IS FURTHER ORDERED if the examiner is a physician and concludes that the defendant is a person with mental illness, the examiner shall complete and submit to the court a Certificate of Medical Examination for Mental Illness. If the examiner is a physician or a licensed psychologist and determines that the defendant is a person with mental retardation and if the determination has been made in accordance with the standards established by ORDER APPOINTING A DlSlNTERESTED EXPERT TO EXAMINE DEFENDANT 2 ' ' Section 593.005, Health and Safety Code, the examiner shall submit to the court an affidavit setting forth the conclusions reached as a result of the examination. SIGNED this the :2. fl day of *-r: '2012. ·~~7~ F. B. (Bob) McGregor, Jr., Judge 66th Judicial District Court Hill County, Texas ORDER APPOINTING A DISINTERESTED EXPERT TO EXAMINE DEFENDANT 3 NO. 37,458 STATE OF TEXAS IN THE 66TH JUDICIAL VS. DISTRICT COURT OF DARRELL ALLEN CURLEE HILL COUNTY, TEXAS 230 S. Waco St. #108 Hillsboro, Tx 76645 ORDER TO: DARRELL ALLEN CURLEE You are hereby ORDERED to report to the Hill County Community Supervision and Corrections Department at 126 South Covington Street, on the North end of the Hill County Courthouse Annex, Hillsboro, Texas, at 8:00A.M., TUESDAY, DECEMBER 11, 2012. You are further ORDERED to provide the interviewing officer with true answers to questions concerning your criminal history, social history, work history, educational history and medical history. All information obtained is for the purpose of a PRE-SENTENCE INVESTIGATION required by Section 9, Article 42.12, Texas Code of Criminal Procedure, and the report will be handled in accord with said Section. ~""!:r:~ -~. -~ ,:;~ :,:Ill . :- SIGNED this 3rd day of October, 2012. ·... ; -ka.-. ~-,)- .~ ~--~--~=-~~~~~~---=----~ F. B. (Bob) McGREGOR, JR. a PRESIDING DISTRICT JUDGE -a ALLEGED OFFENSE: AGG ASSLT W/DEADLY WEAPON AGG ASSLT W/DEADLY WEAPON ccm/frms A CER.TIFIED ~OPY ATTEST .X - 3 / ~~~.,...;-.,.~_.20~ 1 r ANGELIAORR DISTRICT CLERK HILL COUNTY. TEXAS BY ., Veri 0. Childers, Jr., Ph. D. 192HCR4319 Milford TX 76670 (817) 707-6010 Defendant: Curlee, Darrell A. County: Hill c:::.!;ause #: 37,45~ Date of Evaluation: 10/10/2012 Date of Report: 10/16/2012 . ' Specific Issues for Evaluation: Mr. Darrell A. Curlee is referred by the Honorable F. B. McGregor, Jr., Judge of the 66th District Court for evaluation of his competency to stand trial. The CoUrt requests information in regard to two questions: (1) does the defendant have a rational and factual understanding of the nature of the proceedings againsthim; and (2) does the defendant have sufficient present ability to consult with his attorney with a reasonable degree of rational understanding. The Court also seeks information as to his sanity at the time of the alleged offense and at present. Disclosures: Prior to any evaluation procedures, Mr. Curlee was provided with the following information and disclosure about the nature and purpose ·of this evaluation. The Court has ordered an evaluation ofyour mental status and characteristics with respect to the upcoming legal proceedings that you face. The information obtained during the evaluation process will be used in legal hearings about the charges pending against you, and I will be evaluating your competency to stand trial as well as your sanity. As part of this evaluation, I will be asking you a number ofquestions about your personal history as well as using standard procedures and instruments to gather information. What we say and do during the course of this evaluation is not privileged, private, or confidential. I am not treating you in a doctor-patient relationship. Regardless ofhow you participate or cooperate, I will write a report. The report will go to the Court, the prosecutor, and your attorney. As a result of the evaluation, I may be called upon by one of the attorneys to testify in the proceedings. Do you have any questions? Prot(oo'At.ultor 'P. 0. l!D,X.5:116 Hllld>oro. 'IX}'6645 ~--+1}1;1' !~Sf~~ FAX FAX TO: ·n(rQ...,o.._ Rvs> •'•:=• Job No. : 044342 Total Time: o•ot·ss· Page: 012 Complete Document: doc04434220130306162730 ,,. Cause No. 37,458 lHESTATE OF TEXAS )( IN THE 66TH DISTRICT vs )( COURT OF DARREU ALLEN CURLEE . )( HILL COUNTY, TEXAS JUQGMfNT OF COMM!IMENJi MENTAL INCOMPETENCE Date of Hearing: MAROI 6, 2013 Attorney for State: Nicole Cl'aln,Asslstant Dlstrld Attorney Attorney for Defendant: Terence A. R~ll Data af Birth: 10-~0..46 Raca:White TRN NO· , 14316336X A001and No. Date and Time Destination Times Type Result Resolut1on/ECH 001 03/06113 16:28 Jail 0"01"55"" FAX OK 200xl00 Normal/On ' >-t.a . . f:> f/'-"'- F[], . ~~ ~~~~ ~~ f i s;o. ~~ 0-1/\ [ QWGOX08415 ] I Cause No. 37,458 THE STATE OF TEXAS )( IN THE 66TH DISTRICT vs }( COURT OF DARRELL ALLEN CURLEE )( HILL COUNTY, TEXAS JUDGMENT OF COMMITMENT: MENTAL INCOMPETENCE Date of Hearing: MARCH 6, 2013 Attorney for State: Nicole Crain,Assistant District Attorney Attorney for Defendant: Terence A. Russell ~ - ~: .--1:- 4, Date of Birth: 10-30-46 Race: White ; .b'j} ~ 2.i:""l TRN NO: 914316336X AOOl and a- r-o- '>'7;;Jr- "rt ,.:., A:l~ u c::=oo TRN NO: 914316336X A002 Allen Reg. No: N/A ~ ~(/) -;-1 T:' :- ( .2oj£_ ~NGELIAORR C!ISTRICT CLERK lbl, OOUNTY, TEXAS IN THE TENTH COURT OF APPEALS No. 10-15-00157-CR IN RE DARRELL CURLEE Original Proceeding MEMORANDUM OPINION Relator's petition for writs of mandamus and prohibition are denied. ALSCOGGINS Justice Before Justice Davis, Justice Scoggins, and Judge Strothert Petition denied Opinion delivered and filed June 11,2015 (OT06) 1Ralph T. Strother, Judge of the 19th District Court of McLennan County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Texas Government Code. See TEx. Gov'r ~~~~~~~~~-'LU.~ 1·1Lt:: CUJJY 2015 Jm: 15 Mi IO: 32 I TENTH COURT OF APPEALS Chief Justice I McLennan County Courthouse Tom Gray 501 W ashirlgton A venue, Rm. 415 I Clerk Justices Waco, !Texas 76701-1373 Sharri Roessler Rex D. Davis Phone: (254) 757-5200· Fax: (254) 757-2822 AI Scoggins June 11,2015 Mark F. Pratt Terence A Russell Hill County District Attorney Attorney at Law P.O. Box400 1040 E. Elm St. Hillsboro, TX 76645 Hillsboro, TX 76645 * DELIVERED VIA E-MAIL * *DELIVERED VIA E-MAIL* RE: Court of Appeals Number: 10-15-00157-CR Trial Court Case Number: 37,~58 STYLE: In re Darrell Curlee The Court this day issued an opinion and judgment in the above referenced cause. TEx. R. APP. P. 48. Sincerely, SHARRI ROESSLER, CLERK CC: Hon. A Lee Harris (DELIVERED VjiA E-MAIL) L. T. Butch" Bradt (DELIVERED VIA I E-MAIL) Lyle Vincent Gripp (DELIVERED VIA E-MAIL) A cERTIFIED coP:; / j ATIEST ~ ,- .;> , 20Jr_ ANGELIAORR rex "oiSTRICT c4ERK .HILL COUNTY. BY .· . ··-----·--·------ BE IT REMEMBERED: THAT at the term of the Honorable Court of Appeals for the Tenth District of the State of Texas, begun and holden at Waco on the 1st day ofJanuary, 2015, present Justices REX D. DAVIS and AL SCOGGINS and Judge RALPH STROTHER In the cause No. 10-15-00157-CR IN RE DARRELL CURLEE Original Proceeding the following Judgment was entered on the 11th day of June, 2015: "Came on to be heard the original Petition for Writ of Mandamus filed in this Court on May 5, 2015, by Relator Darrell Curlee, and the same having been considered, because it is the opinion of the Court that the Petition for Writ ofMandamus should be denied; it is therefore ordered, adjudged and decreed that the Petition for Writ of Mandamus be, and hereby is, denied. It is further ordered that the Relator Darrell Curlee, pay all costs in this behalf expended and incurred in this Court." I, SHARRI ROESSLER, Clerk ofthe Court of Appeals for the Tenth District ofTexas, at the City of Waco, hereby certify that the foregoing is a true copy of the Judgment entered herein by this Court in the above entitled and numbered cause as appears of record in Minute Book 13, Page 519. IN WITNESS WHEREOF, I hereunto set my hand and affix the seal of said Court at Waco, this 11th day of A.D. June 2015. Sharri Roessler, Clerk By: di:J::L w~ Nita Whitener, Deputy Clerk ··" .- - .. ·-·- . --------------------- .... ... ~ .... ~-" ·c~) 'I -· CAUSE NO. -sJ ~58 THE STATE OF TEXAS VS. DARREL ALLEN CURLEE CHARGE: AGGRAVATED ASSAULT WITH A DEADLY WEAPON b~SAJJLLTHREALW!I!!A PEADIY WEArPN IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: ·' THE GRAND JURY, for the County of Hill, State of Texas, duly selected, empaneled, sworn, charged and organized as such at the JULY/DECEMBER term, A.D., 2012 of the 66th Judicial District Court for said County, upon their oaths present in and to said court at said term that DARREL ALLEN CURLEE hereinafter styled Defendant. on or about the 15TH DAY OF JUNE 2012 and before the presentment of this indictment, in the County of Hill and State aforesaid, did then and there unlawfully, intentionally or knowingly or recklessly cause bodily injury to Christopher Jordan Wally by cutting him with a knife, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury. And it is further presented that ior to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on th 25th day of February 1983, in the District Court of San Miguel County, New Mexico inCa e No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name o Darrerll Allen Curlee, was duly and legally convicted in said last named Court of a felony, to it: Second Degree Murder upon an indictment then legally pending in said last named Court nd of which said Court had jurisdiction; and said conviction was a final conviction and was conviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commis ion of the primary offense. ' • • And it is further presented that before the commission of the primary offense and after the 1 conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed the felony of B glary and was convicted on the 9th day of May I989 in the Seventh Judicial District Court of an Juan County, Utah, in Cause No. 767. And it is further pre nted that on or about the 15m DAY OF JUNE 2012 in the County of Hill and State of Tex , the defendant, DARREL ALLEN CURLEE, did then and there intentionally or knowin ly threaten Jerry Wayne Vessells with imminent bodily injury by attempting to cut and/or b him with a knife and the defendant did use or exhibit a deadly weapon during the comm is ·on of the assault, to-wit: a knife, that in the manner of its use or intended use was capable of c using death or seriotis bodily injury. And it is further presented that p ·or to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on the 5th day of February 1983, in the District Court of San Miguel County, New Mexico in Cau e No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name o Darrell Allen Curlee, was duly and legally convicted in said last named Court of a felony, to- it: Second Degree Murder upon an indictment then legally pending in said last named Court d of which said Court had jurisdiction; and said conviction was a final conviction and was a onviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commiss n of the primary offense. And it is further presented that before the com 'ssion of the primary offense and after the conviction in Cause No. 81-73-CR was final, the endant, Darrel Allen Curlee, committed the felony of Burglary and was convicted on the 9th day of May 1989 in the Seventh Judicial District Court of San Juan County, Utah, in Cause No. 767. Certification of Defendant's Rigbt of Appeal No. :JJ 1'-\S! The State ofTexas In the \ \~ Court v. of Ci,.c- c~\ \ (~,\-!(~ ~ ~, ~ \ ~~--"-'--~'------County, Texas Defendant TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL• I, judge of the trial court, certify this criminal case: Dis not a plea-bargain ease, and the defendant has the right of appeal. [or l Di• a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or] Dis a plea-bargain case, but the trial eoun has given permission to appeal, and the defendant has the right of appeal. [or] " i ; ] i s a piea·barxain ca , nd the defendant his N 0 right of appeal. [or] I have received a copy of this cenification. I have also been infonned of my rights concerning any appeal of this criminal case, including any right tO file a prose petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admoni5hed that my attorney must mail a copy of the court of appeals's judgment and opinion to my last known address and that I have only 30 days in which to file a prose petition for discretionary review in the Coun of Criminal Appeals. TEX. R. APP. P. 68.2 I acknowledge that,!{[ wish to appeal chis case and if l am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any cb&nge in the addres5 at which I am currently living or any change in my current prison unit. I understand tbat, because of appellate deadlines, if I fail to timely inform my appeUate attorney of an change in my address, 1 may l the opportu · fil{;pro "/)tition for discretionary review. ~~~~A~.~ . e ndant e ndant's Counsel ~\-e.G~; q~ Mailing Address~~ \ Sta~e. Bar ofTexas ID numbe_r (')~ ~ O '-~- \\ \ ( 1 Fax number (if any): • u A defendant in a criminal case has the right of appeal under these rules. The trial coun shall enter a certification of the defendant's right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-· that is, a ca!IC in which a defendant's plea was guilty or nolo contend~:~r~:~ and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant·· a defendant may appeal only: (A) those matters that were raise:d by written motion filed &lid ruled on before trial, or (B) after getting the trial court's permission to appeal." TEXAS Ruu: Of APPELLATE PROCEOURF. 25.2(a){2) STATEMENT OF FACTS FOR.c\1 TO: Q[RECTOR, BUREAU OF CLASSIFICATO:.I TEXAS DEPARTME~T OF CORRECTIONS BOX99 HUNTSVILLE, TEXAS FROM: NICOLE CR.AlN, PROSECUTfNG ATTOR.i'IEY HILL COUNTY, TEXAS Cause No.: 3¥£5: 00""-'~=-- 1. Statement of offense or offenses (including time, date, place, manner in vvhich committed, mitigating or aggravating circumstances). !~N~~J:~!'~~~n "tit~~ 2. 0:ame of co-defend ts, disposition of their cases .J. Name and addresses of injured party, value of property stolen or the amount of loss sustained by injured paftiJ. Was stolen property returned to owner without loss?~~~~ ?Ja~ 4. Other cases again -r det~ndant, dismissed or pending: Prosecuting Attorney Hill County, Texas Incident Report #2012181816 HILL COUNTY SHERIFFS OFFICE SHERIFF JEFFREY T. LYON 406 HALL STREET HILLSBORO, TX TEL 254-582-5313 FAX. 254·582-3848 sheriff@co.hill.tx.us /Event Info Date Reported Time Reported J'_hne ·Pispatched · time Arttved Time Completed 06/15/2012 21:09 21:09 21:11 22:10 Addr. Of Occ. City' District Grid Shift 322 CR 3108 HILLSBORO H 8 How Reported Dispatch. Disposition 911 OR Synopsis ·· .. CALL TYPE: ASSAULT Dispatch Notes CURLEE IN CUSTODY 6/15/2012 9:14:02 PM HEMS ENR TO SCENE 6/15/2012 9:16:26 PM 109 HAS RECOVERED WEAPON, IS SECURED IN HIS VEHICLE FOR EVIDENCE 6/15/2012 9:30:31 PM Agency1 Event StatUs/Dis po E~tStatus/Dlsp Initial Investigator HCSO CLEARED ADULT 06/1512012 BARNES, HUNTER ARREST §ssificatlon ------------~----------~ Classification Info COMPLETED Class S.ubclass. ASSAULT AGGRAVATED ASSAULT, NONFAMIL Y, KNIFE/CUT INSTR EventMO Hate/Bias Motivation Domestic VIolence Premise Auto Weapon Indicator NONE N OTHER LOCATION N Type WeapJForce S1.4spectad Using KNIFE/CUTTING INSTRUMENT NOT APPLICABLE [ Arrested._P_e_rs_o_n_.& - - - - - - - - - - - - - - - · - - - - - - - - - -.. ---·--·--·--·-] Arrestee Information Name Type ~~me ARRESTEE CURLEE, DARREL ALLEN Address City Stat& DLNo OLStata 804 S. 3RD ST, LOT #6 GRANDVIEW lX 04173584 lX DOB ~EX RACE EO HT WT 10/30/1946 M WHITE NON-HISPANIC 600 200 HAIR EYES Incident Report • Page 116 GRY BLU Arrestee Details Charge Code Charge D~crl~ion Charge Dispo 22.02(A)(2) AGG ASSAULT W/DEADL Y WEAPON ARRESTED 22.02(A)(2) AGG ASSAULT W/DEADLY WEAPON ARRESTED Ref Date ArrTime Arrf3y ArrAgency Arrest Location 06/15/2012 10:00 BARNESH HCSO HCR 3108 AND HCR 3121 Type Arrest Anne,dWitf1 ON-VIEW ARREST LETHAL CUTTING INSTRUMENT [suap~cts . ·---------~­ --------------------------1 I suspect Information Name Type Name SUSPECT CURLEE, DARREL ALLEN Relationships ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT INSTR Address City State DLNo DLState 804 S. 3RD ST, LOT #6 GRANDVIEW 1X 04173584 1X DOB sex RACE EO HT WT 10/30/1946 M WHITE NON-HISPANIC 600 200 HAIR EYES GRY BLU Suspect Information Name. Type Name SUSPECT CURLEE, DARREL ALLEN Relationships \ ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT INSTR Addre$& City. State DLNo DL State 804 S. 3RD ST, LOT #6 GRANDVIEW lX 04173584 lX COB· s~ ~­ EO HT WT 10130/1946 M INHITE NON-HISPANIC 600 200 HAIR EYES GRY BLU ~i_m_s____________________________________ _____ j Victim Information Name Type Name VICTIM WALLY, CHRI~TOPHER JORDAN Relationships ASSAULT/AGGRAVATED ASSAULT, NONFAMIL Y, KNIFE/CUT INSTR Address City State Zip COB 164 REAGON RD WHITNEY lX 76692 03/13/1994 SEX- RACE EO HT WT HAIR Incident Report - Page 2/6 -------~------·· ' M WHITE NON-HISPANIC 604 185 BRN Res Phone (254)479-1296 Victim Details Type VIctim Aggravated Assault/Homicide Circumstances INDIVIDUAL OTHER CIRCUMSTANCES Type InJury APPARENT MINOR INJURY Victim Information Name Type ~arne VICTIM VESSELS, JERRY WAYNE Relationships ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT lNSTR Address City State Zip SSN 322 HCR 3108 HILLSBORO lX 76645 XXX-XX-XXXX MlsciDNo DLNo OLState 008 SEX RACE 7035 lX-16098630 lX 01/03/1977 M WHITE EO tfT WT HAIR EVES Res Phone NON-HISPANIC 600 170 BRO BRO 254-266-0133 Occupat,ron "ar(~J $jatus R.!lsld Status POB CONSTUCTION MARRIED RESIDENT UGOTE, TX Victim Details Type Victim Aggravated Assault/Homicide Circumstances INDIVIDUAL OTHER CIRCUMSTANCES Type Injury NONE ~_a_rt~y-·__________________________________________________,___________ RPTG PARTY Information NameTy.pe Name RPTG PARTY VESSELS, SHEILA Address City State Res Phone 322 CR 3108 HILLSBORO lX (254) 266-0487 IProperty ~ L _ .- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · - - - - - - - - - - _j EVIDENCE Date Reported Status Evidence Item No. Property Type Color 06/1512012 EVIDENCE IN 2012181816-1 WEAPON, NON BLK/ Sll CUSTODY FIREARM Brah.d Property Quantity EMIRIL 1 [~ehlcle l __ .I Record Type - IMPOUNDED Incident Repor1 - Page 3/6 ' ' Date Reported Status e UCPiateNo State Vehicle 10 No 06/16/2012 POLICE TOW 207XPM 1X 1G4HP54K214208555 Year Make Model Style Color 2001 BUIC 4-DOOR PC TAN/fAN Comments BIG DADDYS WRECKER SERVICE lr'~ JaJOra. - t_ ive --· - - - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · . .1 I Written By: BARNES, HUNTER On 06/15/2012 at approximately 9:09P.M. SGT.Bames and Deputy Sanchez were dispatched to HCR 31 08 in reference to an Aggravated Assault. Dispatch stated that the suspect had possibly stabbed two victims with a knife, and that the suspect was in the roadway. Dispatch al.so stated that the suspect who was an older man was driving a Gold Buick passenger car. Dispatch stated that the caller advsied that the suspect was trying to get her 16 year old daughter. Deputies arrived on location and observed a Gold in color Buick four door passenger vehicle in parked with the driver side door that was open, and a white male who was later identified as Darrel Allen Curlee (W!M 10/30/46) sitting in the driver seat. SGT. Barnes observed that as he activated his overhead red and blue lights, the brake lamps carne on the vehicle. With the information that was provided from the caller and that it was unkown if Curlee was still armed, SGT. Barnes via his patrol units P.A. system was able to get Curlee out of the vehicle and on the grotmd where he was safely detained. Deputy Sanchez remained on location with Curlee who appeared to have an injury to his right eye until Hillsboro Fire and EMS arrived to treat Curlee who later refused transport. SGT. Barnes went back to the complainants residence located at 322 HCR 3108 and made contact with the caller who was identified as Shiela Vessels (W/F 0 l/28/77). Sheila stated that her 16 year old daughter Megan Vessels (W!F 06114196) was walking with some friends down the road, and that an older white male (later ID as Curlee) attemtped to get Megan and possibly try to rape her. Shiela stated that Megan called her and was crying as she was telling her what happened. SGT. Barnes asked Megan if Curlee ever touched her or grabbed her, she stated no he didn't, he only was making comments towards her and repeatedly kept saying "hey girl". Megan stated that the man (Curlee) then got out ofthe car and started towards h_er and attempted to grab her, at which point (Jordan) also known as Christopher Jordan Wally (W/M 03/13/94) stepped between her and Curlee and told him to quit. Megan stated that Curlee then pulled a knife out on Jordan, who in return hit Curlee and she took off running and called her mother. Mega~ stated that her dad was able to get the knife away from Curlee. SGT. Barnes then spoke with Christopher Jordan Wally (W/M 03/13/94) (victim #1) who stated that they were walking down the roadway throwing rocks and running, when they passed the Gold vehicle, they turned back around to head back home and that there was a man standing outside of the car at this point. Wally stated , at this point the man (Curlee) went after Megan and tried to grab her, in which he couldn't allow to happen so he attempted to stop him, when Curlee pulled a knife on him and said " you pussy's want some". Christopher stated that the man (Curlee) then cut him with the knife so he in self defense hit Curlee twice and pushed him to the ground at which point he left to go back to the house. SGT. Barnes observed a small minor cut on the left shoulder and left chest of Christopher where he advised Incident Report - Page 4/6 .. · that he was cut by Curlee. SGT. Barnes captured digital images of the injury. SGT. Barnes then spoke with Megan1s Father, who was identified as Jerry Vessels (W/M 01103/77) (victim#2). Jerry stated that Megan called his wife saying that there was a man that was trying to attack her -and was saying nasty things to her and Jordan. Jerry stated that Megan advised that Jordan Wally was trying to keep the man (Curlee) from getting Megan. Jerry stated that he then left his residence at 322 HCR 3108 and ran as fast as he could to stop things from getting worse. Jerry stated he got there and asked what was going on, and the man that was on the ground pulled a knife and came towards him trying to cut him. Jerry stated that he at this point did strike the man and was able to get the knife away from him and returned to his residence and waited on Deputies to arrive. SGT. Barnes took possession of one Black handle with metal blade knife and captured digital images. SGT. Barnes later secured the knife that was used in the offense into the evidence lockers at the Hill County Sheriffs Office. Hillsboro Fire and EMS checked all subjects involved in which all including Curlee advised they didn't want to be transported to the hospital. an Both Jerry Vessels and Christopher Jordan Wally were provided affidavit of complaining witness form in which they both showed the desire to prosecute Curlee for Agg. Assault with Deadly Weapon(knife). SGT. Barnes also obtained voluntary statements from Wally, Jerry Vessels, and Megan Vessels as to the events in which they happened. SGT. Barnes asked Curlee to provide his side of the story, at which point he stated he never had a knife, then said he did have a knife in which he did pull out but doesn't remember trying to stab anyone with it. Curlee stated that he thought he pulled the knife because he thought that the kids were going to hurt him. With the evidence that was gathered on location and witness statements gathered, it was determined that Curlee did then and there while being located in Hill County, Texas commit two seperate offenses against two seperate victims of Aggravated Assault with a Deadly Weapon. Curlee was hit by the victims in self defense to prevent Cudee from stabbing them. Curlee was then transported to the HCLEC without further incident [supplem~ntal Narrative ------~ Date.Written: Wrttten·.By: 06/16/2012 SANCHEZ, ALBERTO On 06-15-2012 at approximately 9:09pm I, Deputy Albert Sanchez along with Sgt.H.Barnes were dispatched to 322 HCR 3108 in reference to an Aggravated Assault. HCSO dispatch advised that a male subject had possibly stabbed two victims, advised that he was out by the roadway. Deputies observed a W/M later identified as one CURLEE, DARREL ALLEN (WIM 10-30-1946) sitting in his Gold Buick 4 door passenger vehicle bearing Texas LIP 207 -XPM just past HCR 3121 right before the Hill College Rodeo grounds. CURLEE was detained until the incident could be investigated. I observed CURLEE to have dried blood on Incident Report· Page 5/6 j ... 0 'his right eye and some on his body. CURLEE was not wearing a shirt, had jeans on and boots. CURLEE appeared to have an injury to his right eye. · CURLEE advised that he had stopped on HCR 3108 and was fixing himself a sandwich and was drinking water. He advised that before he knew it that he had been jumped by some people down the road. He advised that he did not know why he got jumped and assaulted. I remained on scene with CURLEE while Sgt.H.Bames went back to 322 HCR 3 I 08 to speak with the complainants and get written statements in reference to the incident. Paramedics arrived on scene and attended to CURLEE. He later refused transport to the hospital. Sgt.H.Bames was provided with written statements in reference to the assault by two separate victims. Sgt.H.Barnes placed CURLEE under arrest for aggravated assault with a deadly weapon times two. CURLEE was transported to HCSO jail where he was booked in. End of report. A.S. IGraphics IAttachment List Attacltment TIUe. eate Entel'&d Entered By · FileName 2012181816 CURLEE 06/1612012 BARNESH 2012181816lMPOUND SHEET CURLEE.POF 2012181816 CURLEE 06/1612012 BARNESH 20121818162012181816 CURLEE.PDF ICase Manag~ment _j ~.----~----~-------------------------------- Initial Investigator EventStatusJDispo Event Status/Dispo Date Report Status BARNES, HUNTER CLEARED ADULT ARREST 06/1512012 APPROVED Approved By Solvability PercE!otage BARNES, HUNTER 0.00% Incident Report - Page6/6 vs. Q ,, \. C'l c (S' ' \ c (\ . ~}...' \~'Z O£STRICl'COURTOF HILL COUNn'. TEXAS .. WAIVER OFTIUAL BY JURY AND OTHER MA1TE8S . Cameaowfttedefeada~~ ()o..(' (e_\\ c'-'- ( \0 -£ ,OQ I l "?:1\ .~o \~ the above styled and a umbered cause 1a opea. Court a ad before havi~gpled to the indidatent herdu., ann.ouoces Ia. that deCeadant will piad guilty to said charge a ad herebyreque$ts the coasen.t aCJ,d approval o(the Caul-t a ad or ~ actoraey for dle State that defendant may mive the right to trial by jury herein and 'd~ upon the co nseot or 1 the Coun aud State s A«orueyy waive trial by Jury and eater hlslher plea of guilty; and defendant aad hlslher auoraey waive the 10 day waltlag period for trial aftet appointment of counsel; u11der Article l1.1B Ca the dd'eudaa.t aad the aUorney l"epr'e$elltlng the state ao.d the attorney representing the defeadaat file this their writtea. coueat tO the use or d.Gsed clrcutt video taecoafecucla.g, iC applkabfe, aad stipulate aUprerequ lsltes o( !r::rr;~ Defeudaot .~ AUomey for lh.e Defeadant . · Befoce file sald de!eadaac a.tea hlsJher- plea hereln, the .above m.atten aa.d requeSts o( tbe defend.aat herei11. are her6Jy coaseated to; and approved by me. the .attorney r-epresea.tln~e State herein.. \(\l~. ~ D~iney, Hili County, Texas Th~ aboveud foreg___ \ \ C.v- (' \£_~ § BILL COUNTY, TEXAS WAIVER OF PRE-SENTENCE INVESTIGATION Now comes Q G ( c.o \\ G 5 r l1-E.'R , Defendant and waives a pre- sentence lnvesdgadon in the above captioned cause, Code of Criminal Procedure 42.12, Section 9. Signed this_ day o( · 20_. ~~A.~ Defendant \ A CERTIFIErOP~ ATTEST . ,. I .20_}_;f_ ANGELIAORR DISTRICT CLERK f'\1illl COUNTY. TEXAS BY I \. ·' ' SI'ATE OF TEXAS § lN mE 66nl JUDICIAL vs. J DISTRICT COURT OF ~\Jitf3tt,?3bX Ao(()f 02.}173.50 COMES NOW Defendant, Counsel for Defendant, and Counsel for the State of Texas herein, and would show that the following plea bargain agreement has been entered into be~Neen the undersigned: Defendant will plead: t-- GUlL TY __ NOLO CONTENDERE __ TRUE _2( Imprisonment in the Texas Dept. of Criminal Justice -Institutional Division for Confinement in State Jail for months. Uyears. _Punishment under 12.44 (a) Tex. Penal Code _ Offense under 12.44 (b) Tex. Penal Code Confinement in County Jail for __ days. (o as a condition of community supervision) Fine ~f $ · No Community Supervision to be granted. · * c. c- 3} (Q. oo Deferred adjudication and community supervision. Community Supervision to be granted for _ _ years, subject to all the terms and conditions imposed by tne trial court. Further, the judge may at any time during the period of community supervision alter or modify tile conditions. Restitution of$ Payable to: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Address:----------------- The parties request the additional offense{s) of _ _ _ _ _ in Cause No.(s)_ _ _ _ _ _ _ __ be pled in bar under 12.45 of the Tex. Penal Code. Additional provisions: Defendant will pay court costs, including indigent health, restitution, attorney fees and processing fees as ordered by the Court. Defendant waives right to appeal and to file motion for new trial or in arrest of judgment; and, if community supervision {probation) is granted, such standard and other terms of supervision as may be set by or at the direction of the court, and· Defendant waives any right to early release from communit'J supervision and to time credits under Texas Code of Criminal Procedure Art. 42.12 sec. 20 and 20A, except by written agreement of the State of Texas }JL/--317~> ~ The ~ndersigned certify that they have read the terms of the above agreement and state that it fully contains all of the provisions of said agreement. Defendant BY & CRIMINAL DOCKET Case#: 37,458 r"\ iJJ ::;o Style of Case Attorneys Offense ,. Date of Filing i! State Of Texas DAN V DENT State AGGRAVATED ASSAULT W/ A J] vs. z /I ,,~ DEADLY WEAPON I Mo. I Day 1 Year AGGASSAULTTHREAT-WITHA I 8 I 241 2012 DARREL ALLEN CURLEE ' L,r/' lj h-:7: u ~ 4.,.?'~---h :?J~ ~ 1.-"'- 0-L..l ~ ?tt.-t.~~~-6 .~ ltA-:;;;Lko. ~ 9---1?;;--·'='-~-/------~-1----- ~ ~~ - --J ~, State of Texas VS. No 37,458 ..__ ·"'!!1 Page Number: _ _ __ DARREL ALLEN CURLEE Date of Orders ORDERS OF COURT i.,.., _,-- ·:S I ·' .... _...f·:r-" "' ,·,.., T . ..-- ..P. A· ·i' ' . _.._, .· I .l ... :. !J·'-' ..t......... ~ I2.4 II? I ar 1h3!1.(4b 'l:n:u6A -1131 11lf State by Dlslrict Anomey. Defendant in person and . . . . --..---t 12~ 'M_ __.._ ten (10) day waiting A-~-- .... ~ rifoonation. _Pled _ l~ .. ' IWI'7 ~··-···"'·-~·~ ..... ·~~ ....··-.... ·~·· .. • • • • • period _amL1r~~u:g of IX u I rt . • ·? ·""' ,.,, IU'J• __ _ ./7.. ~~~ft o_ \Y advised of provisions Article 44.02 an~ 2u. 13, ~ ou.. ~:-- .Ii ...~-~ Section A~Ode of-Crimal Procedure E:v:rlence ho..._,,-.-1 ~""' r\.ofnnt"''!llnt f,ltnA nrtiltu r l~f~ .,I·. -u--- A-M. ---£~ ~-:,....,t; Mv:sed of right to appeaL Punishment as~essed at 7 (p ~./ \t" (/!__..-:J -~ --· Oc~~~j··· _T1\~;. -~~~f~~hi~:: -~~J:;·=~(~~:::~~:;~--~=~-=- ....Oo..... tr~.c . . . . kQo-_:;, _____ ~~s_--~----it~{p . . wL(t~.--~,~~.:. . ._._________ _ ... -+:Q , f t· _t c,., , • ___ ... E:c_::::5> r- __ ..- I_ 1\ /1 /"":!~ ev.·...... . - ___11 r,., ,_ .__ Lcp.ocAt. · (; 7LUf«·--(~ f_} ~--- Q.;._J--f- c:_' I .T:...L'L.. A --~op!e, and only produced the phenomenon in 6 of them. The small sample_ size ha~ to do with the complexities of recruiting family involv~ment, etc. lt's a very time-intensive and personal proto~;ol. And they'll say that creating this in 6 people is hardly ovenvhelming evidence, but th~ point is that it's possible at all-ifs really a pretty surprising thing that it happens at all. The protocol is also used on adults. not children, and all the evidence supports tl1c idea that the younger the child, the more suggestible they are. The broad, concrete point is that ' I \ve've taken things that we know didn't happen, and convinced people it did so that they remember it as if it did. And the stak~s are IO\·Vcr in experiments-it doesn't really matter if you got lost in the mall or not. But, there's a lot more pressure to report sexual abuse, so it's not really a one-to-one comparison. Are there any developmental factors that may be relevant to this case? Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll explain below), "magical thinking" and an underdeveloped "Theory of Mind. Taking these one-by-one: · Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and all of us have virtually no episodic memories of the first two years of our lives. The time of offset of childhood amnesia (the ability to start to form long-term memories accessible as adults) is different for all people. Most of us would say our first memory is from around age 3 or 4. What causes childhood amnesia? A few things, the most important of which is the progression of language development. Our long-term memories are anchored in meaning and are rehearsed and stored phonologically (using language),. In short, children can't form memories accessible as adults in the first 2-3 years of life because they do not have the vocabulary necessary to represent those ideas in their minds and rehearse them. When children start learning language proficiently, they are able to rehearse better and begin to store memories that will be accessible as adults. Another factor potentially relevant here is a bit complicated to explain--the concept of encoding specificity. This means that memories are encoded in a certain way, using a certain way of thinking and a certain viewpoint, and that they need to be retrieved with.that same way of thinking and that san1e viewpoint. (Another more formal way of putting is to say that recreating the context of encoding at the time of retrieval makes it more likely to remember what was encoded). Most of the memories we have from childhood are encoded from a child's point of view, using childlike interpretations and childlike terminology. When we grow up, we are unable to access those memories because we no longer view the world in that childlike way-we think in adult terms and from adult viewpoints, and find it virtually impossible to remember the world the way we did when we were children. ' ' . --, •, ' .. ' Encoding Specificity. This idea of encoding specificity may be particularly important in a sexual abuse case, especially involving very young children. Young children (hopefully) do not understand sexual actions and ~exual terms as abuse is taking place. It's not at all likely that yotmg children immediately understand that they have been sexually abused. They may have been uncomfortable or upset or scared, but they're likely not able to encode what happened as sexual abuse. Therefore, when asked about sexual abuse as an adult (or an older child), the adult definition of abuse calls to mind different things than were likely .encoded during the abuse as a very young child. This explains why directive and closed questioning often has to be used, and illustrates the difficulty of interviewing children about possible abuse without being suggestive. "-. Investigators likely use euphemistic questions about touching and parts of the body touched, and the possibility must at least be considered that children cannot separate innocuous touching (such as diaper changing) from harmful touching. As an example, many children will respond to the closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the doctor just gave the child an injection. The child doesn't understand that the injection was for his/her benefit, and is just as upset with the doctor as would be if he/she had touched the child malevolently. It is vital to !liJderscore that not being able to remember abuse doesn't mean it didn't happen. It is nearly an impossible task to derive the pertinent infonnation without speaking vaguely (with euphemism) or suggesting the possibility of actions with closed questions. Magical Thinkine!fbeory of Mind. Refers to the idea that children in Piaget's Pre-operational stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical thinking is often seen during the grieving process as children are first encountering the concept of death. Not able to understand the finality of death, they rationalize the absence in the only way they have experienced-by assuming the loved one is out of town or has a gone away temporarily but will return. When presented with other information that is outside what they understand (such as the idea that Sam Stone was very clumsy), children of this young age are much more likely than adults to bridge the gap in what they understand than to challenge discrepancies. Often the shortest bridge is to accept what the adult says is true, or to accept what the other children are saying as true, and then build upon that concept subsequently. This ' ' .. ' happens frequently when children are corrected by their parents about the names of things, colors of things, about language usage and other areas in which they make wrong assumptions. It is a normal part of cognitive development to accept ideas presented by an adult-Piaget calls this assimilation and accommodation. This all relates to the process of the child developing a Theory ' of Mind. A Theory of Mind is the understanding that all individuals have their own minds and their own way of seeing the world, and that different people have different opinions and not ~everyone knows the same information. While adults take this for granted, children have to learn this through trial and error. Piaget called this stage "egocentrism", because children do not understand that people have different feelings and desires as they do. Young children often exemplifY egocentrism when, for example, they are asked to show their mother the picture they drew, and they hold the picture out with the back of the picture facing mom and the actual picture visible to them. They feel that because they can see the picture, mom can too. lt's understandable that this concept can be reversed. If a non-fact is suggested to young children as if.it is fact, children are likely to accept this fact because they don't understand that the adult could have a different set of knowledge than they do, or that the adult might be lying or be mistaken. All of this speaks to why young children are more suggestible than adults and have a harder time saying "no" to closed questions. Are there protocols that can be used to reduce the su~&estiveness of child interviews? While there is not a formally-agreed upon process, there are suggestions for how to reduce the likelihood of suggesting information to children: • Use open-ended questions when possible • Listen as much as possible and try to let the child be in control of the direction of the conversation o In other words, refrain from pushing them back towards what is suspected to have happened as much as possible • Have someone not emotionally-involved with the situation conduct the interview o This reduces demand characteristics placed on the child to be a good boy or girl for a known authority figure • Attempt to establish rapport with the child with a series of unrelated questions before moving on to the more important questions I ------ wrote: Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably the earliest I could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university assembly, so that would be a perfect day for me to be there at any time. Thanks ... Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor 900 College Street, Box 8014 r Belton, TX 76513 254-295-4630 ttenc I]((:uum hb .edu From: Terence Russell [mailto:tiger russell@att.net] about:blank 1/9 . ' wrote: Good deaL If you can just let me know sometime tonight what time you think you'll need me, anytime tomorrow should work. I would be great with getting there at 9 AM and being first up, if that's when court starts. Is this where I'm headed?: Hill County Courthouse, 1 North Waco Street, Hillsboro, Texas 76645 l updated the direct a little bit (see attached). I really didn't change the content, but I just incorporated some more questions for you to ask me so as to keep me on point. \ Thanks, Trent Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor 900 College Street, Box 8014 about:blank 1111 9/11/2014 Print Subject: Re: Creating memories From: Terrell, Dr. Trent (Tierrell@umhb.edu) To: tiger_russell@att. net; Date: Wednesday, August 27, 2014 7:02AM Terence, I still haven't received any info from you about when I should appear in court. I'm persisting in emailing you because you said this was the best way to contact you. Lacking any further information, I'm heading into the office this morning. I have obligations there that I can work around with notice, but without a concrete time to plan around I have to give my full-time job priority. As I said, I have a night class this evening and a 9:30-2:30 teaching schedule Tuesday/Thursday. I also 4ave meetings scheduled today that I could've missed, but I'll move forward with my regular schedule unless I hear from you very soon. Thanks, Trent Sent from my iPhone >.On Aug 26,2014, at 7:40PM, "Tiger Russell" wrote: > > Did you receive my earlier message about the time? > >Terence A. "Tiger" Russell > Attorney at Law · >PO Box 306 >Hillsboro, Texas 76645 > > 254-396-32191 > 254-582-5593 (fax) > > Sent from my awesome new iPad! > >>On Aug 26,2014, at 6:22PM, "Terrell, Dr. Trent" wrote: >> >>Please advise as soon as possible this evening when you'll need me tomorrow, so I can plan out my day. It's at least an hour drive, depending on 35. I do have an evening class starting at 6, so need to be done before the end of the day in order to get back in time. >> >>Thanks .. >> >> Sent from my iPhone >> >>On Aug 26,2014, at 8:57AM, "Tiger Russell" > wrote: about:blank 1/9 ~· r 9rl 1/2014 Print Subject: Re: Creating memories From: Terence Russell (tiger_russell@att.net) To: TTerrell@umhb.edu; Date: Tuesday, August 26, 2014 10:23 PM Judge said it would be safe to be here by 12:30 p.m . State has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court say we will take early lunch and start earlier following lunch. Terence A. "Tiger" Russell Attorney & Counselor at Law PO Box 306 Hillsboro, Texas 76645 254-580-9282 254-582-5593 (fax) On Aug 26, 2014, at 7:41 PM, "Terrell, Dr. Trent" wrote: No, all I got this morning was that you wouldn't need me before Wednesday. So, what time will you need me? Sent from my iPhone On Aug 26, 2014, at 7:40PM, "Tiger Russell" wrote: Did you receive my earlier message about the time? Terence A. "Tiger" Russell Attorney at Law PO Box 306 Hillsboro, Texas 76645 254-396-3219 254-582-5593 (fax) about: blank 1/16 . ,, Cause No. 37228 STATE OF TEXAS § IN THE 66TH JUDICIAL § vs. § DISTRICT COURT OF § JAMES DUVAL RYDER § HILL COUNTY, TEXAS DECLARATION UNDER PENALTIES OF PERJURY STATE OF TEXAS, COUNTY OF lie(I I, Jonathon Trent Terrell, declare under penalties of perjury that the foregoing information and allegations of this Declaration are true and correct, and I say: 1. I have personal knowledge of the facts stated in this declaration. 2. I have not been compelled or threatened to sign this declaration in any manner. 3. lam signing this declaration knowingly, voluntarily, and freely. 4. My date of birth is October 9, 1980. 5. I fully understand the contents of this declaration, and I read, write, and speak English. 6. I am trained in the field of Psychology, specifically Cognitive Psychology and Eyewitness Memory. 7. I regularly consult and testify as an expert witness on matters related to my specialty. 8. I am educated as a Doctor of Philosophy in Experimental Psychology. •. : 9. In addition to consulting and testifying as an expert witness, I am an Assistant Professor and the Chairperson of the Psychology Department at the University of Mary Hardin-Baylor. / 10. I have published numerous articles and presented numerous times on the subject matter of memory formation and retrieval and eyewitness testimony. 11. My curriculum vitae is attached as Exhibit A. 12. I was contacted initially by Tiger Russell regarding testifying on behalf of the defense in the matter of State of Texas v. james Duval Ryder, Cause No. 37228, in Hill County, Texas. 13. Because Mr. Russell did not want to approach the judge about securing funds for an expert witness citing the Defendant's indigence, I agreed to a minimal fee--$1000.00, and was sent a check from Mr. Russell. 14. Because I have a full time job at the University of Mary Hardin- Baylor, I told Mr. Russell, in advance and up front, that I must have 24 hours notice that my presence would be expected at trial. 15. I was not served with a subpoena to appear. 16. As the week of the trial began, Mr. Russell was unable to confirm when I would be needed in court. 17. It ultimately appeared that I would be needed on August 27, 2014. 18. On the evening of August 26, 2014, I emailed Mr. Russell three times, but received no response from him. 19. At approximately 10:15 the following morning, August 27, 2014, I received a phone call from Mr. Russell telling me that I would be needed for testimony at 12:30p.m. 20. I was not able to retrieve that message and return Mr. Russell's call until approximately noon on August 27, 2014. 21. Unfortunately, I could not leave my job responsibilities and travel two hours to Hill County at a moment's notice. DECLARATION UNDER PENAL TIES OF PERJURY-DR.JONATHAN TRENT TERRELL ' 2 '. I 22. I have returned the $1000.00 check, un-cashed to Mr. Russell. 23. I believe that my testimony would have been material to the defense of James Ryder. 24. The attached planned line of testimony would have been my testimony and opinion had I been properly subpoenaed, and I incorporate it in full into this affidavit. Further Affiant sayeth not. DECLARATION Under 28 U.S.C. § 1746 and Texas Civil Practice and Remedies Code§ 132.001 et seq., I declare that my name is Jonathan Trent Terrell. I am over the age of 18 years, and am competent to make this declaration. My date of birth is October 9, 1980. I have not been forced to sign this declaration. I declare that under the penal~ies of perjury that all assertions provided in this document are correct and true. 2~(/. County, Texas. Executed on September 25, 2014, in __,_H_-=--'---,-- ~ Jonathan Trent Terrell, Ph. D. DECLARATION UNDER PENALTIES OF PERJURY-DR. JONATHAN TRENT TERRELL 3 't / 11 Cause No. 37228 STATE OF TEXAS § IN THE 66TH JUDICIAL § vs. § DISTRICT COURT OF § JAMES DUVAL RYDER § HILL COUNTY, TEXAS DECLARATION UNDER PENALTIES OF PERJURY STATE OF TEXAS, COUNTY OF LEON I, Larenda Nichole Watkins, declare under penalties of perjury that the foregoing information and allegations of this Declaration are true and correct, and I say: 1. I have personal knowledge of the facts stated in this declaration. 2. I have not been compelled or threatened to sign this declaration in any manner. 3. I am signing this declaration knowingly, voluntarily, and freely. 4. My date of birth is December 29, 1985. 5. I fully understand the contents of this declaration, and I read, write, and speak English. 6. I am engaged to be married to James Duval Ryder, the Defendant in Cause No. 37228. 7. Because the Defendant was found to be indigent, he was appointed an attorney, Mr. Terrence Russell, for his defense. I \ I 8. In preparing for trial on this case, Mr. Russell informed us that we needed an expert on memory and that the expert's testimony would be key to the defense. 9. Mr. Russell did not suggest that he could have the court appoint an expert 10. Mr. Russell informed tis that to have the expert that was vital to the case, and we would need to pay $1500.00 for that expert's services. 11. On August 14, 2014, we paid Mr. Russell $1500.00. 12. We received receipt no. 067001 for that payment. 13. A photograph was taken of that receipt, a copy of which is attached and I incorporate in full into this affidavit. 14. Mr. Russell hired Jonathan Trent Terrell, Ph.D. as a testifying expert in this case. 15. Mr. Russell failed to secure the presence of Dr. Terrell through a subpoena. 16. Dr. Terrell did not appear and did not testify on behalf of the defense in this case. 17. Mr. Russell refunded $1000.00 of the $1500.00 payment made to him to secure Dr. Terrell's presence at trial. 18. The refund was issued to me by check number 1221. 19. A photograph was taken of this check, a copy of which is attached and I,incorporate in full into this affidavit. Further affiant says not. ( , C. DECLARATION Under 28 U.S.C. § 17 46 and Texas Civil Practice and Remedies Code§ 132.001 et seq., I declare that my name is Nichole Watkins. I am over the age of 18 years, and am' competent to make this declaration. My date of birth is December 29, 1985. I have not been forced to sign this declaration. I declare that under the penalties of perjury that all assertions provided in this document are correct and true. Executed on September 25, 2014, in Leon County, Texas. ~~C/Y·d~/ 6J14:)Je. 0\A~t~~? La'renda Nichole Watkins, Declarant / EXHIBIT E 1 •• 'I'll .... ;.~; • '\',:>'~'; . l. .... .. '' , , ~· 1 REPORTER'S RECORD ••• 2 3 VOLUME 1 OF 1 VOLUME TRIAL COURT CAUSE NO. 37,228 STATE OF TEXAS IN THE DISTRICT COURT 4 5 vs. HILL COUNTY, TEXAS 6 JAMES DUVAL RYDER 66TH JUDICIAL DISTRICT 7 8 9 onta\ns some ·r~1 is documen" c (> \"hi 10 · f poor qua '"» pages that ar~ o . at the time of nnagmg. 11 12 . ';;tt~ ****************~*************************************** •• h ..,. . .. , 13 14 HEARING ON MOTION TO RESCIND AND 15 SECOND MOTION FOR NEW TRIAL 16 ******************************************************** 17 18 19 On the 6th day of November, 2014, the 20 following proceedings came on to be heard in the 21 above-entitled and numbered cause before the Honorable 22 Alan Mayfield, Judge presiding, held in Hillsboro, 23 Texas: 24 Proceedings reported by machine •• 25 shorthand . ORIGINAL 2 • 1 APPEARANCES 2 MS. NICOLE CRAIN Assistant District Attorney 3 SBOT NO. 24034548 Post Office Box 400 4 Hillsboro, Texas 76645 Phone: (254) 582-4070 5 ATTORNEY FOR STATE 6 7 MS. KRISTIN R. BROWN 8 The Law Office of Kristin R. Brown, PLLC SBOT NO. 24081458 9 1701 North Market Street, Suite 402 Dallas, Texas 75202 10 Phone: (214) 446-3909 ATTORNEY FOR DEFENDANT 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • 25 3 1 VOLUME 1 • 2 3 4 November 6, HEARING ON MOTION TO RESCIND AND SECOND MOTION FOR NEW TRIAL 2 014 Page Vol. 5 Announcements . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 6 DEFENDANT'S WITNESSES Direct Cross Vol. Terence Russell 5' 19 16 1 7 Nicole Watkins 24 II 1 8 Defendant Rests 31 1 9 State Rests .......................... . 31 1 10 Closing Arguments by Ms. Brown 31 1 11 Closing Arguments by Ms. Crain 36 1 12 Closing Arguments by Ms. Brown, Cont ... 39 1 • 13 Court's Ruling ....................... . 41 1 14 Adjournment .......................... . 42 1 15 Court Reporter's Certificate . . . . . . . . . . 43 1 16 17 18 EXHIBIT INDEX 19 DEFENDANT'S 20 NO. DESCRIPTION OFFERED ADMITTED VOL. 1 Terrell 21 affidavit 24 24 1 2 Receipt 28 28 1 22 3 Copy of check 30 30 1 23 4 Proposed testimony of 24 J. Terrell 9 9 1 5 - 9 E-mails 13 13 1 • 25 PROCEEDINGS 4 • 1 THE COURT: We are here in Cause Number 2 37,228 for the purpose of a hearing to determine if the 3 Court should rescind its prior ruling in regard to a 4 motion for new trial and to consider the grounds for a 5 possible new trial in the event that it does rescind. 6 And the motion has been filed by Mr. Ryder's attorney, 7 Ms. Brown. You're ready to proceed? 8 MS. BROWN: We are ready, Your Honor. 9 THE COURT: Thank you. 10 And the State is ready to proceed? 11 MS. CRAIN: We're ready, Your Honor. 12 THE COURT: Thank you very much. • 13 All right. We 11, I think the burden is 14 on you at this point or at least you'd like it to be. 15 You'd like to go first, right? 16 MS. BROWN: Yes, please, Your Honor. 17 THE COURT: Okay. You may proceed. 18 MS. BROWN: Your Honor, do you want to 19 take up the motion to rescind first or do you want to 20 just 21 THE COURT: Let's just do them together. 22 MS. BROWN: Okay. Thank you. 23 THE COURT: I don't see any reason not 24 to. I think that.the evidence that you want to put on • 25 in regard to the other one applies to that, so -- 5 1 MS. BROWN: Okay. • 2 3 4 THE COURT: at the same time and then make a the end. -- so I think we just do both ruling when we get to 5 MS .. BROWN: Okay. Thank you. We'll call 6 Terence Russell. 7 THE COURT: Mr. Russell. If you'll raise 8 your right hand. 9 (Witness sworn) 10 THE COURT: Thank you very much. Please 11 be seated. 12 TERENCE RUSSELL, • 13 having been first duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MS. BROWN: 16 Q Good morning. Could you please state your 17 name for the court reporter? 18 A Terence Russell. Often I 'm called Tiger. 19 Q Tiger, what do you do for a living? 20 A I 'm an attorney. 21 Q Okay. Were you the attorney appointed to 22 represent James Duval Ryder in Cause Number 37,228 in 23 Hill County, Texas? 24 A I was. • 25 Q Okay. And do you see Mr. Duval in the 6 1 courtroom tod~y? • 2 3 4 A Q I do. Could you identify him for us? where he's sitting and describe an article of clothing Just tell us 5 he's wearing. 6 A Yes. He'd be seated to your right, and he's 7 wearing the green jail uniform. 8 MS. BROWN: The record 9 THE COURT: The record will reflect that 10 the witness has identified Mr. Ryder as the person that 11 was his client at the prior hearing. 12 Q (By Ms. Brown) And, Tiger, were you the • 13 attorney for James Russell during the trial on this 14 matter which began on August 25th of 2014? 15 THE COURT: James Ryder. 16 MS. BROWN: James Ryder. Sorry. 17 A Yes, I was. 18 Q (By Ms. Brown) Thank you. What were the 19 charges in this case? 20 A He had one charge of aggravated assault -- 21 sexual assault of a child, one charge of indecency with 22 a child by contact, and one charge of indecency with a 23 child by exposure. 24 Q Okay. How old was the complaining witness at • 25 the time of this alleged event? 7 • 1 A At the time it happened they -- it was my 2 belief that they were in -- about two to -- I mean, 3 three to four years old. 4 Q Okay. In contemplation of trial, did you 5 contact an expert on July 22nd of 2014 to help in 6 James's defense? 7 A I did. 8 Q And who was this expert? 9 A His name was Trent Terrell. 10 Q What was Dr. Terrell's expertise? 11 A Dr. Terrell is an expert on basically memory 12 and memory development. • 13 Q Okay. You exchanged e-mails with Dr. Terrell 14 regarding his testimony and the questions that you 15 planned to ask and answers that he expected to be 16 giving. Is that correct? 17 A That's correct. 18 MS. BROWN: May I approach, Your Honor? 19 THE COURT: You may. 20 Q (By Ms. Brown) I'm showing you what has been 21 marked as Defendant's Exhibit 4. Do you recognize that 22 document? 23 A I do. 24 Q What do you recognize it to be? • 25 A This was the proposed direct examination that 8 • 1 Dr. Terrell sent me regarding the exact type of 2 testimony he expected to give in this case. 3 Q And were those the questions you planned to 4 ask him in his direct testimony? 5 A Yes. I would ask him every one of these 6 questions. 7 Q And the answers that he expected to be 8 giving? 9 A Yes. 10 Q Okay. And is this, in fact, the Exhibit B 11 that was attached to your affidavit in our motion for 12 new trial? • 13 A It is. 14 Q Okay. Is that a true and.correct copy of 15 that 16 A It 17 Q affidavit or that exhibit from that 18 affidavit? 19 A It is. 20 Q Thank you. 21 MS. BROWN: Tendering to defense -- or to 22 the State. 23 MS. CRAIN: I have no objection. 24 MS. BROWN: Offer Defendant's Exhibit 4. • 25 THE COURT: Defendant's Exhibit 4 has 9 • 1 been offered. No objection has been made. It is 2 admit ted. 3 Q (By Ms. Brown) Tiger, you believed and still 4 believe that the testimony of Dr. Terrell was material \ 5 to James's defense. Is that correct? 6 A Not only material but essential to my theme 7 which I announced in my opening argument. 8 Q And what was that? 9 A Was that these children were just mistaken 10 about what they saw and had created the events that they 11 described from things that they had viewed within the 12 home. • 13 Q Okay. Were there other reasons that you 14 believed that Dr. Terrell's testimony was material to 15 James's defense? 16 A That was primary the reason I was going to 17 have him here 18 Q Was 19 A -- was due to the fact that he could describe 20 the development of memory and how memories were 21 developed and how children use various objects and 22 visions and surroundings -- will incorporate those into 23 memories that they believe they have. 24 Q And who was the witness to that event -- to • 25 the alleged event? 10 1 A Kira Ryder and Cole Ryder. • 2 3 4 Q Okay. And these were both very small children at the time of the alleged event. A That's correct. 5 Q And did you believe that Dr. Terrell would 6 testify that suggestion is a powerful influence on a 7 young child's memory? 8 A Yes. He would testify to that. 9 Q And that that was material to James's 10 defense? 11 A Yes, it was material. 12 Q Did you believe that Dr. Terrell would testify • 13 that children have difficulty in correctly remembering 14 events 15 A Yes. 16 Q -- that happened when they were young? 17 A Yes. 18 Q And do you believe that that testimony is 19 material and favorable to James's defense? 20 A Yes. 21 THE COURT: You know, what this witness 22 believed the witness might testify to -- 23 MS. BROWN: What the -- 24 THE COURT: is kind of hearsay on top • 25 of that hearsay . So i t ' s not terribly relevant. 11 1 However, Dr. Terrell's statements as to what he would • 2 3 4 have been asked and what he would have testified to have been admit ted. So that's there. Anything else that this witness believed is simply a subjective belief that 5 can't be established unless Dr. Terrell were here, and I 6 understand he's not available. So -- 7 MS. BROWN: I understand. 8 THE COURT: Thank you. 9 MS. BROWN: One note on that, Your Honor. 10 Dr. Terrell is available by phone if we should need him 11 for anything. 12 THE COURT: Thank you. 18 would be called after lunch on Wednesday, August 27th, 19 2014? 20 A We did do that prior to beginning trial on 21 Monday. 22 Q Did you subpoena Dr. Terrell, requiring his 23 presence on August 27th of 2014? 24 A I did not. • 25 Q Did you attempt to contact him via e-mail to 12 • 1 let him know that his presence was needed at 12:30 on 2 that day? 3 A I did. On more than one occasion, actually. 4 MS. BROWN: May I approach? 5 THE COURT: Yes. 6 Q (By Ms. Brown) Tiger, I'm showing you what has 7 been marked Defendant's Exhibits 5 through 9. Do you 8 recognize those documents? 9 A Yes. These are hard copies of some e- -- of 10 some of the e-mails that I was doing with Dr. Trent 11 trying to secure his appearance at trial. 12 Q And are these true and correct copies of the • 13 e-mails that were exchanged between you and Dr . 14 Terrell? 15 A Yes. 16 Q And are these, in fact, Exhibits C, D, E, F, 17 and G from the affidavit that was filed by you with 18 excuse me, in conjunction with our motion for new 19 trial? 20 A I didn't file an affidavit 21 Q Okay. I understand. 22 A -- but I did create one 23 Q You did create one? 24 A -- and they were exhibits to that, yes. • 25 Q And this was created with your affidavit. Is 13 1 that correct? • 2 3 4 A objection. Yes. MS. I attached those to my affidavit. CRAIN: Your Honor, I have no 5 MS. BROWN: Offer Defendant's 5 through 6 9. 7 THE COURT: 5 through 9 are admitted. 8 Q (By Ms. Brown) Did you -- in your attempts to 9 contact Dr. Terrell, did you try more than one e-mail 10 address? 11 A I did. 12 Q Okay. Did you ever receive an e-mail • 13 confirmation back from him stating that he would be 14 present at 12:30 p.m. on August 27th of 2014? 15 A I did not. 16 Q When you were unsuccessful at contacting Dr. 17 Terrell via e-mail, did you attempt to contact him by 18 phone? 19 A I did on the day that he was supposed to 20 testify because I assumed that maybe he had gotten the 21 information and just had not responded. 22 Q Okay. Did you, in fact, call him on multiple 23 numbers? 24 A I actually -- yes. I called him, I called his • 25 mother, I called -- and I finally called the actual 14 1 psychology department and asked them to have him contact • 2 3 4 me. times, Q After calling those multiple numbers multiple were you finally able to reach Dr. Terrell on 5 August 27th of 2014? 6 A I was. It was sometime between 12:00 and 7 1: 0 0. 8 Q So this was less than an hour before testimony 9 would resume? 10 A That's correct. 11 Q And before he was supposed to be there to 12 testify? • 13 A That's correct . 14 Q Where would Dr. Terrell have been traveling 15 from? 16 A He would -- he is the psychology chair at Mary 17 Hardin Baylor, and I believe that's in Belton. 18 Q That's about two hours aw~y. Is that 19 correct? 20 A I wouldn't say two, but somewhere between one 21 and two. 22 Q Okay. Did Dr. Terrell ultimately appear to 23 testify on behalf of James? 24 A No . • 25 Q Did you move the Court for a continuance so 15 1 that you could secure Dr. Terrell's presence? • 2 3 4 A to appear, to that date, Dr. Terrell did tell me when he would be"able and I did ask the Court to continue the trial which would have been Thursday afternoon, 5 I believe. 6 Q Was that motion granted? 7 A No. 8 Q Do you believe that Dr. Terrell would have 9 been present to testify on behalf of the defense had you 10 properly secured his presence via subpoena or some other 11 method? 12 A I do. • 13 MS. CRAIN: Your Honor, I'm going to 14 object. That calls for speculation. 15 THE COURT: Sustained. 16 Q (By Ms. Brown) Did you have any trial strategy 17 in not subpoenaing Dr. Terrell? 18 A No. 19 Q Do you believe that you were ineffective as 20 trial counsel in not securing the presence of a material 21 witness on behalf of the defense? 22 A I do, regrettably. 23 Q Is it your belief that the outcome of trial 24 would have been different had you not been ineffective • 25 in your representation? 16 1 A Yes . • 2 3 4 James, Q A You were appointed by the Court to represent correct? That's correct. 5 Q Okay. Did you seek to have Dr. Terrell 6 appointed by filing an Ake motion? 7 A No. 8 Q Why not? 9 A I did not really discover that Dr. Terrell 10 might be useful to our case until like right before the 11 trial, and I felt like it was probably a little bit too 12 late to be asking the Court to appoint an expert at that • 13 point . So we were able to retain him. 14 Q So you hired Dr. Terrell? 15 A The family did. Yes. 16 Q So it wasn't with your own funds. It was from 17 funds from James's family. 18 A That's correct. 19 Q Okay. 20 MS. BROWN: Pass the witness, Your Honor. 21 CROSS-EXAMINATION 22 BY MS. CRAIN: 23 Q Now, in regards to Mr. Terrell, what did you 24 provide him for trial preparation? • 25 A I sent him, I believe, the offense reports. I 17 1 believe that's all I sent him, was just the offense • 2 3 4 reports, alleged. Q so he would have some kind of idea what was Okay. So if he stated in his affidavit that 5 he was only provided with the outcry notice, then that 6 would be incorrect? 7 A No. That may be what I did send him. My -- I 8 was trying to recollect. I knew I didn't send him very 9 much because I wanted him to just basically testify as 10 to generalities and not specifically to this situation. 11 Q Okay. And he had not interviewed the 12 defendant? • 13 A No. 14 Q And he had not interviewed the victim? 15 A No. 16 Q And you I mean, just to clarify, you only 17 wanted him to testify to generalities and nothing 18 specific in regards to this case? 19 A Yes. 20 Q Okay. 21 A And that just -- or I did -- yeah. I did not 22 expect him to testify regarding the specific incident in 23 this case but just to the development of memory and 24 where children's memory exist at the time that these • 25 children initially indicated that these offenses had 18 1 occurred . • 2 3 4 Mr. Q Terrell. I Okay. And you had an oral contract with can't remember what his last name is, Is that correct? but Mr. 5 A I believe so. 6 Q To appear? 7 A I believe so. 8 Q Okay. You had contacted him by phone, and it 9 was you felt like that he had agreed to appear? 10 A We had been communicating via e-mail. 11 Q Okay. And y'all had agreed even on a price in 12 regards to this case on how much he would accept for his • 13 testimony? 14 A We did agree on the price. 15 Q Okay. So while you did not subpoena him, you 16 did have an oral contract with him to appear as an 17 e~pert in this case, you believed? 18 A I'd have to review the actual correspondence 19 we had to find out if there actually had been an 20 acceptance of that because I do know that he did tell me 21 at one time that if for some reason he could not 22 testify, he would refund the money. So it had to 23 whether he -- you know, the scheduling was very 24 important to him when he was going to appear. • 25 Q Okay. So he had not made it clear to you that 19 1 he was going to be available for this trial? • 2 3 4 A certain day, Q He stated that he could be available on a Okay. yes, and certain time. And you testified that these were some 5 of the e-mails that y'all had exchanged between the two 6 of you. Were there other e-mails in regards to date and 7 time and appearance? 8 A No. I believe that's all of them. 9 Q And he stated that he could not appear until 10 almost the close of business 4:00 on Thursday afternoon, 11 correct? 12 A That's correct, due to his class schedule and • 13 other commitments he had . 14 MS. CRAIN: I ' l l pass the witness. 15 REDIRECT EXAMINATION 16 BY MS. BROWN: 17 Q Mr. Russell, had you subpoenaed him, he would 18 be required by the Court by law to be here, right? Is 19 that correct? 20 A That's my understanding of the law. 21 Q Okay. Did you ever at any time believe that 22 you had actually secured his presence for Wednesday 23 afternoon at 12:30? 24 A No. He -- I tried to notify him more than • 25 once via e-mail of the date and time that we had 20 1 secured, which was going to be within the window he ~ 2 discussed. He never responded to any of those e-rnails, 3 and then actuaily it was two or three days after the 4 trial was over I started getting these Daemon failure 5 notices or whatever they call those things corning back 6 saying that he -- that those e-rnails had not even gone 7 through to him. 8 Q So although you had an oral contract with him 9 to testify on James's behalf if the date and time could 10 be worked out, you were never able to let him know that 11 that date and time actually was worked out. 12 A That's correct. 13 THE COURT: You could have telephoned ~ 14 him, and you did eventually telephone him and talk to 15 him on the telephone. Is that correct? 16 THE WITNESS: That's correct, Your Honor. 17 THE COURT: Okay. And you were able to 18 reach him by telephone. 19 THE WITNESS: With great difficulty, yes. 20 THE COURT: And you reached him on the 21 day, Wednesday, prior to proceeding forward with the -- 22 your presentation of the defense. 23 THE WITNESS: That's correct, Your Honor. 24 It was -- I contacted him at lunchtime on Wednesday 25 because I was wanting to make sure that he was going to ~ 21 1 be here after lunch as we had planned . • 2 3 4 THE COURT: Thank you. Now, represent to the Court that you had paid him a thousand dollars out of your personal funds? did you not 5 THE WITNESS: I don't think I said out of 6 my personal funds, no, Your Honor. 7 THE COURT: Well, that's what I 8 remembered you saying to me. And did I not tell you 9 that you shouldn't have done that but that you should 10 have petitioned the Court so that the Court would 11 have paid experts and that attorneys are not expected to 12 pay experts for their appointed clients? • 13 THE WITNESS: I do recall the Court 14 advising me of such. 15 THE COURT: Okay. On the petitions here 16 it indicates that you received $1500 from Mr. Ryder's 17 family? 18 THE WITNESS: That's correct, Your Honor. 19 THE COURT: You sent a thousand dollars 20 to Dr. Terrell? \ 21 THE WITNESS: That's correct, Your Honor. 22 THE COURT: He returned the thousand 23 dollar check uncashed? 24 THE WITNESS: That's correct, Your Honor. • 25 THE COURT: And you've returned that 22 1 money to the family? • 2 3 4 difference? THE WITNESS: THE COURT: I have, Your Honor. What about the $500 5 THE WITNESS: That's still in my trust 6 account currently. 7 THE COURT: The check that was returned 8 was on your personal account. 9 THE WITNESS: That's correct, Your Honor. 10 THE COURT: So you put 500 in your trust 11 account and put the balance of the money in your 12 personal account, paid it out of the personal account to • 13 Dr. Terrell, and you have a separate trust account that 14 holds $500? You didn't put the entire amount in your 15 trust account? 16 THE WITNESS: Well, that is my trust 17 account, Your Honor. 18 THE COURT: You use your personal account 19 as your client trust account? 20 THE WITNESS: I -- generally I just put 21 the money in there and write the check. That's the way 22 I do it. 23 THE COURT: You do not have a separate 24 trust account? • 25 THE WITNESS: I'm in the process of doing 23 1 that currently, Your Honor . I've had some difficulty • 2 3 4 getting the bank to understand what I want, have to go to a different bank. THE COURT: Thank you. so I may 5 MS. BROWN: I have, no further questions, 6 Your Honor. 7 THE COURT: Any other questions from the 8 State for this witness? 9 MS. CRAIN: I have no further questions. 10 THE COURT: You may step down. 11 As I recollect the evidence at the trial, 12 the child testified of an -- the incidents occurring • 13 when she was age six. 14 MS. CRAIN: That is my recollection as 15 well, Your Honor, when she was five and six. 16 THE COURT: The record will show that, 17 but not when she was three or four. The brother was 18 three or four. He did not testify and was not a 19 testifying witness at the trial. 20 MS. BROWN: Your Honor, I would ask the 21 Court at this time to take judicial notice of the 22 Court's file, particularly the lack of an Ake motion. 23 THE COURT: The Court will take judicial 24 notice of the Court's file. • 25 MS. BROWN: And, Your Honor, regarding 24 1 our unavailable witness, Dr. Terrell, the defendant • 2 3 4 would like to admit his affidavit testimony and the incorporated exhibits which I Exhibit 1. have marked as Defendant's 5 MS. CRAIN: Your Honor, I have no 6 objection to that. I believe that affidavits are 7 allowed in motions for new trial. 8 THE COURT: Defendant's Exhibit 1 is 9 admitted. 10 MS. BROWN: Your Honor, at this time we 11 would call Nicole Watkins. 12 THE COURT: Ms. Watkins. Please raise • 13 your right hand . 14 (Witness sworn) 15 THE COURT: Thank you. 16 NICOLE WATKINS, 17 having been first duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 BY MS. BROWN: 20 Q Good morning. 21 A Good morning. 22 Q Please state your name for the record. 23 A Nicole Watkins. 24 Q And, Nicole, how old are you? • 25 A 28. 25 1 Q Okay. Do you know James Ryder? • 2 3 4 A Q A Yes. James Duval Ryder. We're currently engaged. And how do you know him? 5 Q Okay. And is he in the courtroom today? 6 A Yes. 7 Q Could you tell me where he is sitting and 8 describe what he's wearing? 9 A Yes. He's to the right of you and he's 10 wearing a green jumper. 11 Q Okay. 12 MS. BROWN: Record reflect that the • 13 witness has identified James Ryder . 14 THE COURT: So noted. 15 Q (By Ms. Brown) And is James the subject of the 16 Hill County Cause Number 37,228? 17 A Yes. 18 Q And that is the case that we are here for 19 today on a motion for new trial? 20 A Yes. 21 Q Nicole, after James was charged in this case, 22 was he appointed an attorney due to being unable to 23 afford one on his own? 24 A Yes. • 25 Q Okay. And who was the attorney that was 26 1 appointed to represent James? • 2 3 4 Mr. A Q Terence Russell. Okay. During the preparations for trial, Russell inform you that an expert was needed for did 5 James's defense? 6 A Yes, ma'am. 7 Q And did Mr. Russell tell you that this expert 8 was vital to James's defense? 9 A He said that he was very well needed in this. 10 Q Did he find a suitable expert? 11 A Yes. 12 Q Who was that? • 13 A Mr. Terrell. 14 Q Jonathan Terrell? 15 A Yes. Yes, Trent Terrell. 16 Q Did Mr. Russell tell you that he would try to 17 have the Court appoint Dr. Terrell as an expert? 18 A No. 19 Q Did he suggest that was an option? 20 A No. 21 Q Did he ask for the family to come up with the 22 payment for that expert? 23 A Yes. 24 Q Okay. How much did Mr. Russell tell you was • 25 needed? 27 1 A 1500. • 2 3 4 Q A Q Did you pay that amount? Yes. Who did you pay that to? 5 A To Mr. Russell. 6 MS. BROWN: Approach the witness, Your 7 Honor? 8 THE COURT: You may. 9 MS. BROWN: (Indicating) 10 MS. CRAIN: I have no objection. No 11 objection. 12 Q (By Ms. Brown) I 'm showing you what has been • 13 marked as Defendant's Exhibit 2 . Do you recognize 14 that? 15 A Yes. 16 Q And what do you recognize it to be? 17 A That's the receipt for the 1500 for the 18 expert. 19 Q And is that a true and correct copy of the 20 receipt that you received on that day? 21 A Yes, ma'am. 22 Q And who is that signed by? 23 A Mr. Russell. 24 Q Okay. And what was the amount on that? • 25 A 1500. 28 1 And what was the date of that receipt? • Q 2 A August 14th. 3 Q And was the number of that receipt 067001? 4 A Yes. 5 MS. BROWN: Offer Defendant's Exhibit 2. 6 THE COURT: Defendant's 2 is offered. No 7 objection. It is admitted. 8 Q (By Ms. Brown) Did you believe that 9 Mr. Russell had hired Dr. Terrell to appear on James's 10 behalf? 11 A Yes. 12 Q And that Mr. Russell would use whatever legal • 13 means necessary to secure his presence at trial? 14 A Yes. 15 Q Okay. Did Dr. -- or did Mr. Russell subpoena 16 Dr. Terrell? 17 A No. 18 Q Did Dr. Terrell appear and testify on James's 19 behalf? 20 A No. 21 Q Did Mr. Russell refund you the $1500 paid to 22 secure the presence of Dr. Terrell at trial? 23 A He refunded a thousand. 24 Q Okay. How was that partial refund given to • 25 you? 29 • 1 A A check. 2 MS. BROWN: Permission to approach? 3 THE COURT: You may. 4 Q (By Ms. Brown) I'm showing you what has been 5 premarked as Defendant's Exhibit 3. Do you recognize 6 that? 7 A Yes. 8 Q What do you recognize it to be? 9 A The check for the refund for the thousand 10 dollars. 11 Q And is this photograph of this check that you 12 received a true and correct copy? • 13 A Yes. 14 Q Okay. And who is that signed by? 15 A Mr. Russell's wife. 16 Q And what account is that drawn on? 17 A Terence A. Russell and Susan Russell. 18 Q Okay. Check Number 1221. Is that correct? 19 A Yes. 20 Q And what is the amount of that check? 21 A 1,000. 22 Q And the date? 23 A 9-6 of '14. 24 Q Okay. • 25 MS. BROWN: Offer Defendant's Exhibit 3. 30 1 THE COURT: Any objection to 3? • 2 3 4 in the -- MS. CRAIN: THE COURT: Your Honor, was that included I think that she showed that 5 to you a moment ago. I don't know if it's included in 6 the others. 7 MS. CRAIN: I don't think -- I have no 8 objection. 9 THE COURT: Defendant's 3 is admitted. 10 Q (By Ms. Brown) Who was that delivered to you 11 by? 12 A The check? • 13 Q (Moving head up a'nd down). 14 A From his wife. 15 Q And have you received any further refund from 16 Mr. Russell? 17 A No, ma'am. 18 MS. BROWN: No further questions for this 19 witness. 20 MS. CRAIN: Your Honor, I have no 21 questions of this witness. 22 THE COURT: Thank you. You may step 23 down. 24 MS. BROWN: Defense rests, Your Honor. • 25 THE COURT: Defense rests. Does the 31 1 State wish to present anything? • 2 3 4 MS. present any evidence, CRAIN: THE COURT: The State does not wish to Your Honor. Thank you very much. We'll 5 take a short break. The Court will review the exhibits 6 and then come back with a ruling. 7 MS. BROWN: Could we argue on that, Your 8 Honor? 9 THE COURT: Sure. Let's take a short 10 break and let me review the exhibits before you argue. 11 MS. BROWN: Thank you. 12 THE COURT: Thank you. • 13 (Recess from 9:44a.m. to 10:00 a.m.) 14 THE COURT: Okay. The Court will 15 entertain closing statements at this point. 16 MS. BROWN: Thank you, Your Honor. First 17 I'd just like to note for the record that the sentence 18 in this case was imposed on August 28th of 2014, making 19 our 75-day window on which the Court can rule on this 20 matter open through November 11th of 2014, next week. 21 On our motion to rescind, defendant would 22 request that you grant our motion to rescind the order 23 denying the first motion for new trial, which was filed 24 by his trial counsel Mr. Russell. It was simply a form • 25 motion and was not in any way substantive . 32 • 1 If the Court does not grant our motion to 2 rescind, this hearing and the record created is a legal 3 nullity. Even if you're not inclined to grant our 4 second motion for a new trial, we ask that you please 5 grant our motion td rescind so that we -- so the 6 appellate court on direct appeal will have the benefit 7 of this record. As Your Honor has noted, much time and 8 effort has been put into this by all sides, you being 9 here today and taking the time to get James here today 10 and everything else. It would be a shame for that to be 11 for nothing, and even if you choose not to grant our 12 second motion, it saves the County money and the • 13 taxpayers money to be able to have this record to be 14 able to use on direct appeal instead of having to go 15 through the appellate process to a writ process. So we 16 would ask that you please grant our motion to rescind. 17 Regarding the motion for new trial, 18 defendant requests the Court grant our motion for new 19 trial based on the ineffectiveness of trial counsel. In 20 order to show effective assistance, two things are 21 required. First we must show that trial counsel's ( 22 performance wai deficient at trial, and we must show 23 that the deficient performance prejudiced the defendant. 24 These two components must be proven to a preponderance • 25 of the evidence . 33 1 Regarding counsel's deficient • 2 3 4 performance, where it can be argued that counsel made a decision based on reasonable strategy, shouldn't find a deficiency. the Court That can exist here, 5 though, because trial counsel has admitted both in his 6 affidavit and before the Court today in his testimony 7 that he had every intention of having Dr. Terrell here; 8 that Dr. Terrell's testimony was material to the defense 9 of James Ryder; that he was, in fact, deficient in 10 failing to secure Dr. Terrell's presence; that he had no 11 strategic method or decision or anything that went into 12 his not having Dr. Terrell here. There was no strategy • 13 involved. Therefore, trial counsel's performance must 14 be found to be deficient because a reasonable attorney 15 would have done so. 16 Second, prejudice to the defendant. To 17 demonstrate prejudice from the failure to call a 18 witness, it must be shown that the witnesses would have, 19 in fact, testified and that the testimony would have 20 been favorable to the accused. You have testimony in 21 front of you via Defendant's Exhibit 1, the affidavit of 22 Jonathan Trent Terrell and his incorporated exhibits, 23 that show that if he had been subpoenaed or otherwise 24 secured, Dr. Terrell would have been present to testify • 25 at trial; that Dr. Terrell would have testified as to 34 1 the susceptibility of young children to suggestion and • 2 3 4 what is remembered; childhood amnesia, is remembered; that all persons are subject to a period in which little to nothing that the complaining witness was in this 5 age that would be affected by childhood amnesia; that a 6 child often believes they are telling the truth and is, 7 in fact, credible even though what they say may have 8 little to no truth to it because of false memory; and 9 Dr. Terrell believed his testimony would not only be 10 favorable to the defense, but material. 11 Regarding what opposing counsel said 12 regarding no specifics of the case would be testified • 13 to, Dr. Terrell stated that each case is different, but 14 especially in cases of alleged sexual abuse, his role is 15 not to interpret the specifics of what happened, but 16 whether to talk about factors that have been shown to 17 affect the reliability of such memories in young 18 children. 19 Trial counsel also testified that Dr. 20 Terrell's testimony would have been favorable and was 21 vital to his defense. Because Dr. -- or counsel '.s 22 performance at trial in failing to secure the presence 23 of Dr. Terrell was deficient and because that prejudiced 24 the defendant and there was a reasonable likelihood that • 25 the outcome of the trial would have been different had 35 1 Dr. Terrell's presence been secured, a motion for new • 2 3 trial should be granted, 4 May I approach, Your Honor. I have a case on point, Your Honor? Ex Parte Briggs. 5 THE COURT: You may. 6 MS. BROWN: Out of the Court of Criminal 7 Appeals in 2005 in which trial counsel did not secure 8 the -- secure an expert because -- in this situation 9 because they wanted -- paid for the expert. The Court 10 stated that a reasonably competent attorney, regardless 11 of whether he is appointed o~ retained, must seek to 12 advance the client's best interest in a reasonably • 13 competent matter. In that case the clear and obvious 14 defense was one that was recognized, f ocu·s ing on the 15 medical history and the cause of death of the child. In 16 this case it was also recognized by trial counsel, and 17 it was focusing on the reliability of children's 18 memories. 19 In that case the Court said a reasonably 20 competent attorney where the applicant could not come up 21 with fees for medical experts would either subpoena the 22 treating doctors or would withdraw from the case or 23 would file an Ake motion. Your Honor, Mr. Russell did 24 not subpoena Dr. Terrell. He has admitted that both in • 25 his affidavit and today in testimony . He did not 36 • 1 attempt to withdraw from the case, and we know that he 2 did not file an Ake motion either. 3 The Court stated that the failure by an 4 attorney to take any steps to subpoena a treating 5 doctor, withdraw from the case, or file an Ake motion 6 provided ineffective assistance of counsel, it 7 constituted a deficient performance, and in that case it 8 did prejudice the defendant because the examination 9 would raise considerable doubt as to the reliability of 10 the records. 11 And in that -- in this case the testimony 12 of Dr. Terrell would have raised doubt as to the • 13 reliability of the child witness's memory. So, in fact, 14 it was material to the defense, it was favorable to the 15 defense, and it would have changed -- and it could have 16 changed the outcome of the trial. And we would ask that 17 you grant our motion for new trial. 18 THE COURT: You may proceed. 19 MS. CRAIN: Your Honor, the State would 20 object to this amended motion for new trial under 21 21.4 (b), which states that the time to amend on a motion 22 for new trial is within 30 days after the date when the 23 trial court imposes or suspends sentence in open court, 24 but before the Court overrules any preceding motion for • 25 a new trial, and that -- then it goes on to say, 37 • 1 Defendant may, without leave of court, file one or more 2 amended motions for new trial. 3 In this particular situation we would 4 object to the amended motion for new trial being timely 5 filed as the Court had previously overruled -- I mean, 6 had previously overruled the motion for new trial, and 7 we would ask the Court to rely on its initial ruling in 8 this case. 9 In regards to the determination on 10 whether or not counsel is ineffective in providing 11 expert witness testimony, there is no blanket rule that 12 if counsel does not provide an expert's testimony in a • 13 sexual assault case that that is first, per se, 14 ineffective assistance of counsel, Your Honor. 15 It should be -- and, in fact, in this 16 particular situation what you have to show is that the 17 witness would have been -- or that the witness was 18 unavailable and that -- well, I guess technically that 19 the witness was available to testify at trial and that 20 the result of the proceeding would have been different. 21 In this particular situation that is not 22 true. It is very clear from the testimony that Mr. 23 Terrell made himself unavailable, Your Honor. It sounds 24 like it was -- precautions were put in place to have him • 25 here and he was -- he made himself unavailable to the 38 • 1 Court when he knew that he was requested to be here . 2 Belton is maybe an hour, at most an hour and a half 3 away. We're talking about 12:00 in the afternoon. He 4 could have been here well before the close of business 5 on that day, and he chose to make himself unavailable to 6 the Court. 7 Your Honor, also, the testimony has been 8 from affidavits as well as from Mr. Russell that it was 9 just going to be generic testimony, that it was nothing 10 specific to the facts of this case, and, therefore, Your 11 Honor, there is nothing that would change the result. 12 You're just testifying to generalities, and there's • 13 nothing specific to the case that can point out and say, 14 Hey, this was wrong, this was wrong, this is why in this 15 case the memory of the child is ineffective, this is why 16 the -- her memory has been influenced -- improperly 17 influenced. And there was nothing from that case -- in 18 this case. 19 And, in addition, Your Honor, the defense 20 counsel had the opportunity to cross-examine the State's 21 witnesses in regards to these matters and, in fact, did 22 cross-examine in regards to several memory issues and 23 procedures used. And therefore and he presented his 24 defense through othe.r witnesses as well, and, therefore, • 25 he had the opportunity to put on his case. 39 • 1 It's not reasonable to say that if you 2 just present general and unspecific testimony in regards 3 to a case where a child is younger that that's 4 automatically going to be reasonable doubt in the minds 5 of the juries because then the State could never get a 6 conviction if an expert was presented that said a child 7 was of that age. And, therefore, that does not show 8 that the result of the proceeding would have been 9 different in any way. 10 And, Your Honor, in addition, in this 11 situation I think i t ' s clear that even in the situation 12 where Mr. Russell hadn't contacted an expert, he would • 13 not have been ineffective for not providing an expert in 14 this case. And, therefore, the fact that Mr. Terrell 15 did not make himself available to the Court is something 16 similar, and by not providing an expert in the case, 17 i t ' s not automatically going to be ineffective 18 assistance of counsel since i t ' s not necessary in every 19 case to provide an expert. 20 And that's all we have, Your Honor. 21 THE COURT: Thank you very much. 22 Anything further? 23 MS. BROWN: Brief response on the 24 timeliness issue, Your Honor. As the Court will note • 25 from the Court's file, the motion to rescind and the 40 1 motion for new trial filed by us was filed within the • 2 3 30-day time line on September the 26th of 2014. noted in our motion to rescind in State versus 4 Awadelkariem - sorry if I did not pronounce that right - And as 5 874 S.W.2d 721, texas Court of Criminal Appeals 1998, a 6 court can rescind orders granting or denying motions for 7 new trial so long as it does so within the 75-day limit. 8 As -- and as we've discussed, we are within that limit. 9 THE COURT: Thank you very much. 10 MS. BROWN: Thank you. 11 MS. CRAIN: Your Honor, if I may just 12 briefly respond to that? • 13 THE COURT: Yes . 14 MS. CRAIN: I would point out to the 15 Court that it's actually at 974. When I was looking it 16 up last night, I did notice that, so just for the Court. 17 But, also, in State versus Moore, 225 18 S.W.3d 556, the Court of Criminal Appeals, in that case 19 the defendant filed a motion outside of the 30 days, and 20 the Court said that the Court did have jurisdiction to 21 hear that motion as long as the State did not object, 22 and that's why the State has objected under 21.4 in this 23 case, so that 21.4 will take application. 24 MS. BROWN: Brief response, Your Honor? • 25 THE COURT: I understand that you filled 41 1 within the 30 . • 2 3 4 what they are, MS. BROWN: THE COURT: Exactly. Okay. Thank you. And the filings are so I ' l l take a look at that and somebody 5 smarter than I am can review those issues if they come 6 up at that level. 7 At this point in time, having considered 8 the evidence in the motion that was brought forward 9 today -- in the motion brought forward today under the 10 Court's direction, I've been requested to rescind and 11 then hear the motion for -- another motion for new 12 trial. The Court is of the opinion that the evidence • 13 that's been submitted today, were it to be heard as a 14 motion for new trial, would be irrsufficient to grant a 15 new trial anyway. But in addition to that, since that's 16 the case, there's no need for the Court to rescind its 17 first order. So at this point the Court denies the 18 motion to rescind its previous order denying the motion 19 for new trial and denies also -- were it to have done 20 that, it would have denied this motion for new trial 21 that's present·today. If, that's error, there's others 22 that can deci~e that, but I don't believe it is. I 23 don't think that there's sufficient evidence to justify 24 a new trial. Thank you. You'll prepare an order for • 25 the Court? 42 Yes, Your Honor. • 1 MS. CRAIN: 2 (Proceedings concluded) 3 4 5 6 7 8 9 10 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • 25 43 1 THE STATE OF TEXAS • 2 3 4 COUNTY OF HILL I, Cindy Kocher, Official Court Reporter in and for the 66th District Court of Hill County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record, in the 10 above-styled and numbered cause, all of which occurred 11 in open court or in chambers and were reported by me. 12 I further certify that this Reporter's • 13 Record of the proceedings truly and correctly reflects 14 the exhibits, if any, admitted by the respective 15 parties. 16 I further certify that the total cost for 17 the preparation of this Reporter's Record is $~~~--- 18 and was paid/will be paid by ~~~\_~~~~-----------· 19 WITNESS MY OFFICIAL ·HAND this the ~~day of~~ 20 2014. ~~ 21 ---------------------------- 22 CINDY KOCHER, Texas CSR 5387 Expiration Date: 12/31/15 23 Official Court Reporter, Hill County, Texas ,. 24 25 Post Office Box 274 Hillsboro, Texas 76645 (254)582-4045 • 21 . • 2 ... 1 • : ·, . 22, I haver~tlirn~d the $iOOO,OO check,un~cashed.toMr.R~ssell . . 23c · . ~~~~~s:·:~~~~~~~:~orY ~o~Id have b~~~ ~~tetial to the .• ;::~~i~:;~~~~r~~E~hbJ~iil~~~~~cr!:~:n~~~r.~~~ Further Affiants~y~thJlot. .. • · . . ... • • • • •• . . • Name: Dr. Trent Terrell Direct Examination of Dr. Terrell Where do you live? Temple, Texas How are you currently employed? 9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor, Belton. TIC What are your areas of Specialization? Learning, Memory, and Cognition EDUCATIONAL BACKGROUND Academic Degrees? B.A.• Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from Baylor University, Waco, TX What type of graduate training did you receive in the area of Memory at that time? Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research, dissertation. PROFESSIONAL RESPONSIBILITIES • Could you describe your current responsibilities at the University of Mary Hardin-Baylor? Cognitive psychologist with emphasis in memory Psychology Department Chairperson, August 201 0-present Teach 4 classes a semester-General Psychology, Psychological Methods. Experimental Psychology, Cognitive Psychology, Theories of Learning, Neurophysiological Psychology, Developmental Psychology Supervise undergraduate research in Memory Numerous campus committees Do you belong to any Professional Associations? Association for Psychological Science · Psychonomic Society-Associate Member American Association for the Advancement of Science PRIMARY REsEARCH INTERESTS Confidence and Accuracy in Eyewitness Testimony • '· • In general, confident witnesses are perceived as more credible than less confident witnesses. However, confident witnesses are not necessarily more accurate. This research investigates factors that may inflate confidence without improving memory accuracy. Lineup Construction and Photo Refreshing How does the construction and presentation of lineups affect the likelihood of correct identifications? How do multiple opportunities to view lineups affect the likelihood of correct identifications? Have you published any works in the field of Eyewitness Identification memory accuracy? Yes Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the lab Have you testified as an expert at other hearings? Yes Have you given any presentations about eyewitness memory? Yes. I presented at the Texas State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio in 2012. I've also spoken to the National District Attorneys Association in Houston and the Center for American and International Law in Plano. • Are you being paid by the defense to testify in this case? Yes. • • What is the most common mistaken belief about memorv? That memory works like a video recorder or computer disk. Both these metaphors suggest that memory retains everything that bas ever happened to us, implying that all events are ultimately retrievable. Memory is a reconstructive phenomenon, not a video recorder: In essence, all memory is false to some degree. Memory is inherently a reconstructive process. whereby we piece together the past to form a coherent narrative that becomes our autobiography. In the process ofreconstructing the past, we color and shape our life s experiences based on what we know about the world (Bernstein & Loftus, 2009) How does memory work then? Memory has three processes-encoding. storage. and retrieval. (NOTE: If you look to the bottom. there ·s a general Q&A about memory section. I can go into as much or as little detail as you think would be necessary here. rve worked with people who want to devote fifteen minutes to it, others who just want a brief answer. Whatever works for you.) Are memories of aUeged sexual abuse the same as eyewitness memories? Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime being committed by someone they do not know, and later trying to identify that person after a • very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but what and if. They're different kinds of memories, but the same factors can affect their reliability. Will we discuss some of those factors todav? Yes. What documents have you reviewed? Very little. I've looked at an amended summary of what outcries would be described in court. Is it usual for you to review so few documents in a case like this? Each case is different, but especially in cases of alleged sexual abuse, my role is not to interpret the specifics of what happened, but rather to talk about factors that have been experimentally demonstrated to affect the reliability of such memories. So to clarify, you will not be testifying that the alleged abuse in this case did not take place? No, my testimony will only involve descriptions of how memory works and doesn't work. Have we spoken before today? Yes. via phone and email. • • Before we begin, let's be clear: are you going to offer testimony that the witnesses in this case are lying, or that they are not credible? No. Credible witnesses can experience and report false memories without intending to be· deceptive or lying. The empirical evidence from years of false memory research indicates that most false memories seem as subjectively real to witness as true memories. Why are you here, then? To provide information to the jury about bow memory works from a scientific background, to identify some of the factors known to affect reliability, and to provide tools that the jury can use as they evaluate the reliability of the child in this case. In general, how do memory researchers classify factors that alter witness reliability? In the Eyewitness Memory literature. researchers discuss two broad classes of factors: Estimator variables and system variables. That distinction is not as important in this kind of case, but I do want to discuss one estimator variable, so I'll mention it. Estimator variables are those that cannot be controlled by the criminal justice system-they are simply the facts of what happened. How long something lasted. how long it has been since the event took place. stress levels of the victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly • remembered later. These are called estimator variables becaUse we can only estimate the impact they might have had on memories. System variables are those that investigators have some degree of control over, such as bow information is gathered after the event. In a case of alleged sex1.18.l abuse, system variables in play are how the child is interviewed, who conducts the interview, and in what context that interview takes place. What estimator variables do you feel might be relevant to this case? Latency. or the time between the event and the time when memories of that event were first reported. One of the most basic findings of eyewintess memory research is that memories d~ over time. Just about every experimental protocol that manipulates the interval between exposure and testing has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In some scenarios, witnesses may not be prompted to think about an event at all after it has occurred, enhancing decay from memory (also called transience). This is true of lab studies, information learned in school, and eyewintess memory (Shapiro & Penrod. J986). NOTE: Stress is also an estimator variable. that reduces accuracy of subsequent memories. Jfs a double- edged. sword though. If abuse did happen, it ""1lS likely stressful for the children. But if if:; your case • . ----··---·-·--- • strength and modality (open/closed) of the suggestions. Generally speaking, the younger the children the more likely they are to incorporate suggestions, and the more likely they are to answer yes to a closed question (whether yes is the correct answer or not). The take-home fact is that if children are asked questions that presume something has happened and are placed in an environment where others seem to think it happened, there's empirical data illustrating they can and often will come to believe it themselves. The Sam Stone experiments seem to discuss ehUdren modifying their memories of something that really happened. Is there any evidence that people can come to remember things from their childhood that did not occur at aD? Yes, there are several examples. One experimental protocol involves what is known as the '"Lost in the Mall" procedure. In this protocol, researchers enlist the help of family members to help make false suggestions to experimental participants that they were lost in the mall for an extended period of time when they were a child. When family members combine suggestions about true events along with the suggestion ofbeing lost in the mall (or being hospitalized overnight, or other traumatic events), many subjects not only come to accept that the event happened, but begin to elaborate add their own details of the event in subsequent recollections. • When family are able to provide convincing details, such as the name of the mall they would've been lost in as a child, or even a store which they frequently shopped at, the subjects are able to imagine how that event might've occurred. There's a well-documented phenomenon known as imagination inflation--when subjects are asked to imagine something occurring for just one minute, they are subsequently more likely to remember what they imagined as something that actually occurred. There's also a natural tendency to think that if everyone else in the family remembers this, I probably should, too. NOTE: DA"s like to pick apart the lost in the mall experiment, because the original study tried it with ::!5 people. and only produced the phenomenon in 6 of th~m. The small sample size has to do \Yith the complexities of recruiting family involvement, etc. lfs a very time-intensive and personal protocol. And they'll say that creating this in 6 people is hardly overwhelming evidence, but the point is that it's possible at all-it·s really a pretty surprising thing that it happens at all. The protocol is also used on adults. not children, and all the evidence supports the idea that the younger the child, the more suggestible they are. The broad, concrete point is that • • we've taken things that we know didn't happen, and convinced people it did so that they remember it as if it did. And the stakes are lower in experiments-it doesn·t really matter if you got lost in the mall or not But. there's a lot more pressure to report sexual abuse. so ifs not really a one-to-one comparison. Are there any developmental factors that may be relevant to this case? Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll explain below), •'magical thinking.. and an underdeveloped "Theory of Mind. Taking these one-by-one: Childhood amnes [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4071772. Public record. Not legal advice.