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CAUSE NO. 8701
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THE STATE OF TEXAS
VS.
RODNEY REED
XXXXX
IN THE DISTRICT COURT OF
BASTROP COUNTY, TEXAS
21ST JUDICIAL DISTRICT
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REPORTER'S RECORDJURY TRIAL
GUILT/INNOCENCE
. MAY 12 I 1 9 9 8
MORNING & AFTERNOON SESSIONS
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VOLUME 52 OF 6 9'
ORIGINAL
FILED INCOURT OrCRIMINAL APPEALS
SEP 9 1998
Troy C. Bennett, Jr., C\erk
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On the 12th day of May, 1998, the
2 above entitled and numbered cause came on for
3 hearing before said Honorable Court, Harold R.
4 Towslee, Judge Presiding, and the following
5 proceedings were had:
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Volume 52 of 691
GUILT/INNOCENCE PHASE
(PAGES 1 THROUGH 162)
1 APPEARANCES:
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For the state
Mr. Charles PenickDistrict Attorney, Bastrop County804 Pecan StreetBastrop, Texas 78602SBOT #015748500(512) 321-2244
Mr. Forrest SandersonAssistant District Attorney804 Pecan StreetBastrop, Texas 78602SBOT #17610700(512) 321-2244
Ms. Lisa TannerAssistant Attorney GeneralP. O. Box 12548Austin, Texas 78711-2548SBOT #19637700(512) 463-2170
For the Defendant
Mr. Calvin GarvieAttorney at Law22 N. Bell St., P. O. Box 416Bellville, Texas 77418SBOT #07714300(409) 865-9781
Ms. Lydia Clay-JacksonAttorney at Law700 N. San JacintoConroe, Texas 77301SBOT #04332450(409) 760-2889
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CHRONOLOGICAL INDEX
WITNESS
APPEARANCES
MORNING SESSION
GORDON MOORE (OUTSIDE PRESENCE OF JURY)
DIRECT EXAMINATION BY MS. CLAY-JACKSON
MOTION FOR JURY TO EXAMINE THE SCENE
JERRY ORMAND, JR.
DIRECT EXAMINATION BY MR. GARVIE
CROSS-EXAMINATION BY MS. TANNER
JOSE CORONADO
DIRECT EXAMINATION BY MR. GARVIE
CROSS-EXAMINATION BY MS. TANNER
REDIRECT EXAMINATION BY MR. GARVIE
RECROSS EXAMINATION BY MS. TANNER
FURTHER REDIRECT EXAMINATION BY MR. GARVIE
RECESS
DAVID LAWHON (RECALLED)
COURT'S QUESTIONING OUTSIDE PRESENCE OF JURY
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WILL BARTON
COURT'S QUESTIONING OUTSIDE PRESENCE OF JURY
JASON ALLISON
COURT'S QUESTIONING OUTSIDE PRESENCE OF JURY
NEAL HAWKINS
COURT'S QUESTIONING OUTSIDE PRESENCE OF JURY
Recess
BARBARA FELIX
DIRECT EXAMINATION BY MS. CLAY-JACKSON
CROSS-EXAMINATION BY MS. TANNER
MOTION FOR JURY TO EXAMINE SCENE
JASON ALLISON AND NEAL HAWKINS (RECALLED)
COURT'S QUESTIONING OUTSIDE PRESENCE OF JURY
COURT ADJOURNED FOR A LUNCH BREAK
AFTERNOON SESSION
SCOTT PARNELL .
DIRECT EXAMINATION BY MR. GARVIE
CROSS-EXAMINATION BY MS. TANNER
REDIRECT EXAMINATION BY MR. GARVIE
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RECROSS EXAMINATION BY MS. TANNER
FURTHER REDIRECT EXAMINATION BY MR. GARVIE
FURTHER RECROSS EXAMINATION BY MS. TANNER
FURTHER REDIRECT EXAMINATION BY MR. GARVIE
FURTHER RECROSS EXAMINATION BY MS. TANNER
FURTHER REDIRECT EXAMINATION BY MR. GARVIE
L. R. (ROCKY) WARDLOW (RECALLED)
RECROSS EXAMINATION BY MS. CLAY-JACKSON
REDIRECT EXAMINATION BY MS. TANNER
FURTHER RECROSS EXAMINATION BY
MS. CLAY-JACKSON
FURTHER REDIRECT EXAMINATION BY MS. TANNER
FURTHER RECROSS EXAMINATION BY
MS. CLAY-JACKSON
RECESS
JURY DISMISSED FOR THE DAY
PAT CARMACK (OUTSIDE PRESENCE OF JURY)
DIRECT EXAMINATION BY MS. CLAY-JACKSON
CROSS-EXAMINATION BY MS. TANNER
REDIRECT EXAMINATION BY MS. CLAY-JACKSON
COURT ADJOURNED FOR THE DAY
COURT REPORTER'S CERTIFICATE
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1 (Day 26, May 12, 1998, Morning Session, Cause
2 Number 8701, the State of Texas versus Rodney
3 Reed. )
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need to take up their motion before the jury
comes in as well.
the first witness may need to be brought in
before the jury comes in.
(The following proceedings
were had outside the presence
and hearing of the jury.)
correct, Your Honor.
THE COURT: Were you aware of
that?
MS. TANNER: No, I wasn't.
THE COURT: Okay. Who is
Gordon
That is
And we also
Okay, and may we
I understand thatTHE COURT:
MS. CLAY-JACKSON:
THE COURT:
bring him in here?
MS. TANNER:
Moore.
your first witness?
MS. CLAY-JACKSON:
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THE COURT: Sir, will you
please come up here and let me swear you in
before you testify.
GORDON MOORE, the witness, after having
first been duly sworn, assumed the witness stand
and testified upon his oath as follows:
to a motion in limine, we ask for that
proffer.
Q. Would you ple~se state your full name?
A. Gordon William Moore.
Q. And how are you employed?
A. with the Texas Department of Public Safety.
Q. In what position are you employed?
A. Lieutenant.
Q. Lieutenant Moore, what are your duties with
the Department of Public Safety?
A. I'm the supervisor in one of their services in
the criminal law enforcement division.
Q. And the criminal law enforcement division,
which particular division are you a
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DIRECT EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
MS. CLAY-JACKSON: Pursuant
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supervisor?
In the polygraph service.
What is your educational background?
I've got an Associate's Degree in Applied
Science, Bachelor's Degree in Criminal
Justice.
And as a supervisor in -- at DPS, have you had
to take continuing education courses?
Yes, ma'am.
And what kinds of courses have you taken?
Professional continuing education and seminars
throughout the nation, national.
And where are some of those seminars been?
Sparks, Nevada; Austin, Texas; Albuquerque,
New Mexico.
Have you had occasion to work with the Federal
Bureau of Investigation?
I have, yes.
And have you had occasion to attend some of
the seminars and conferences they have been
party to?
Co-hosted but not sponsored.
Is there a certification for your specialty?
Yes, there is.
And are you certified?
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A.
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Yes, I am.
Would you please tell the Court what
constitutes a certification?
It's actually a license in the state of Texas,
and you have to have a four-year degree. In
lieu of that, five years' investigative
experience, and then you go through an
internship, a six-month internship program and
after that you go for your state license.
And how long have you been with the
department?
Approximately 14 years.
And all of that time have you been with this
special division?
Yes, I have.
On -- in December of 1996, did you have
occasion to interview a Jimmy Fennell, Jr.
Yes, I did.
And do you recall who brought Mr. Fennell to
you for that interview?
I believe it was Texas Ranger Sergeant Rocky
Wardlow.
Would you explain to the Court what you do in
preparation to interview a witness?
Basically debrief the case facts as they're
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presented to us.
Would you speak a little closer to the
microphone?
Sure.
Again, would you repeat that?
Debrief the case facts as they're presented to
us from the submitting officials.
And in this case that would have been Sergeant
Wardlow; is that correct?
I believe it was, yes.
Do you prior to your interview, your formal
interview what would you consider the
beginning of a formal interview with someone
you were about to interview who was a suspect?
I'm not sure I understand your question.
So that we don't mix terms, would you consider
the formal interview with the suspect when you
s~art talking with him about the questions
that you have before him or would it be prior
to that?
The terminology I guess would be a pretest
phase.
And the pretest consists of what?
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Q.
A.
Q.
A.
Q.
A.
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that question.
THE COURT REPORTER: I missed
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The pretest consists of
You conducted a pretest with JimmyOkay.
No.
And after the pretest, you go into the
testimony; is that correct?
That's correct.
Would you explain to the Court the steps in
the testing?
The actual steps or explanation of the
instrumentation itself, attaching the
components, reviewing questions and making
appropriate stimulation marks.
When you talk about the "appropriate
stimulation marks," how does that work?
When you first ask the question, you make a
notation of it, and then when you end the
question, you make a notation of it; and when
the person gives a verbal response, you make a
notation of that.
Now, is the pretest, is the person connected
to the machine at the pretest?
(BY MS. CLAY-JACKSON)
what?
A verbal interview with the person that you
are going to be testing at that particular
date.
Q.
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examiners use when the subjects answer or the
Fennell; is that correct?
Yes.
And then went. into the testing; is that
correct?
Yes.
What then transpired?
After the actual examination itself was
completed, the polygrams of the charts are
collected and numerically scored and an
opinion is rendered.
And did you do that?
Yes.
And after forming an opinion based on your
experience, did you give your opinion to
anyone?
Yes.
And to whom did you give that opinion?
That would be, I believe, Texas Ranger
Sergeant Rocky Wardlow.
And what opinion did you give?
That deception was indicated.
That of Jimmy Fennell?
Yes.
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Okay. Are there different terms that
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evaluation -- are there different terms for
deception, degrees, I guess, of deception?
No.
So either the deception is indicated or the
deception is not indicated?
That's correct, or what's known as
inconclusive or no opinion.
And in Jimmy Fennell's case, it was not
inconclusive?
No.
Deception was indicated?
Yes.
Deception was indicated in layman's term would
translate perhaps into he may be lying?
Yes.
The questions that deception was indicated
one of those questions was, "Did you kill
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Stacey stites?"
No.
Is that correct?
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Q.
A.
What were the questions where deception was
indicated?
These are not specific but something to the
effect, "Did you strangle Stacey?" Another
question pertaining to causing physical injury
or harm.
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"Hit her on the head?"
MS. TANNER: Rules of
Evidence still apply.
THE COURT: It's her deal.
"Did you see her on the morning of April
23rd?"
I believe so, yes.
"And were you in a red car?"
Actually, I believe that was one.
Jimmy Fennell was not only the first person
that you have ever examined, correct?
That's correct.
He's not the first person that you have given
information to after administering the
examination? Not the first person you have
given information to the officer that brought
him in; is that correct?
This is a
Objection to
"Did you see her in a
MS. CLAY-JACKSON:
MS. TANNER:
And there were two others
proffer.
leading.
red car?"
Yes.
Go ahead.
(BY MS. CLAY-JACKSON)
Q.
Q.
A.
A.
Q.
Q.
A.
Q.
A.
Q.
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,!.
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A.
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That's correct.
Do you have an opinion as to what has in the
past when you have given information to
officers about subjects who have -- who you
rendered the opinion on that they were
deceptive, do you have an opinion as to what
those officers did with that information?
8 MS. TANNER: Objection.I,.
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What the officers did with any information for
purpose of the bill is irrelevant.
11 THE COURT: This is a bill.
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A.
I'm going to let her offer all of this, and
then you can give me all your objections at
the end.
Go ahead.
At times, the majority of the times, I don't
follow up on them because the case load is so
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Q.
A.
Q.
investigators have used it as an investigative
tool, and they would use that information to
pursue their investigation, whichever way it
turned out.
A follow through lead?
Yes.
Did you know at the time you examined Jimmy
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MS. CLAY-JACKSON: No
come here and, say, get an end run around the
MS. TANNER: Your Honor, our
objections are, I think, pretty evident. The
Supreme Court of the united States as well as
the Texas Court of Criminal Appeals have
universally held that polygraph evidence is
unreliable and inadmissible and, therefore,
Fennell that he was in law enforcement?
Yes, I did.
And did that have any bearing at all on the
way you conducted your examination?
No, it did not.
You were no more harsh or no less harsh?
I don't know that I was harsh at all. I
didn't feel any different than I normally
would.
And your examination did reveal that he was
deceptive in the answer, "Did you strangle
Stacey Stites"?
Yes.
He can't
Now let me here
That's my offer.
THE COURT:
this entire proffer is inadmissible.
the objections.
further questions.
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but you may use this for a bill of
opinion evidence about whether someone is
polygraph and say, well, in my opinion he was
the Fifth Circuit has said that it's going to
be on a case to case basis.
That is
Judge,
Do you want the
I agree with the
You can't put on
So this whole line, because
THE COURT:
(Whereupon the witness was
excused from the stand.)
THE COURT:
MS. CLAY-JACKSON:
Okay, that will be all, you may
Do you have your next witness?
I'm going to sustain the objection,
jury in?
go.
exceptions.
State.
cites.
they have been considered so completely
unreliable is inadmissible, every bit of it.
THE COURT: Do you have any
assault is being truthful.
truthful or not.
no different from the state putting on an
expert to say a child victim in a sexual
deceptive or anything to that effect.
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1 MS. TANNER:
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You have another
2 one, right? Carmack? Were you going to do
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the same thing with him?
(Outside the presence of the
jury. )
8 THE COURT: The defendant has
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filed a motion for the jury to examine the
scene, and yesterday I indicated to you that I
11 would take it up early this morning. Does the
12 State have any objections or comments on it?
13 MS. TANNER: Yes, Your
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Honor, the State does, and the legal authority
to support our objection is contained
primarily in the case of Meeks v. State.
That's a State Court of Appeals case 476
S.W.2d 310 and that case was later cited in
the Jones case, 843 S.W.2nd 487, also a Court
20 of Criminal Appeals case from 1992. In Weeks
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the Court of Criminal Appeals said and I quote
and they cited a number of other cases,
"The practice of permitting the jury to view
the place where the crime was committed is
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State's position that this is an appropriate
and impermissible request."
to run juries out to the scenes of offenses
continuously, so what make this case different
from others? Why would it be -- why would
this case be a type of the case where we
comments on the motion, ma'am?
MS. CLAY-JACKSON: Judge,
it's our position that -- I guess because I
have had personal experience with taking my
jurors to the scene that it is not
impermissible. It's perhaps become
discretionary at this point, but it is not
impermissible. If there can be videos taken
of the scene and the judges have said, the
Court of Criminal Appeals and the Court of
Appeals have said, that videotaping helps the
jury understand and appreciate the testimony
and put the testimony in correct province,
then taking the jurors to the actual scene of
where the event happened helps them to be able
to formulate their own concept of what the
scene was like.
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THE COURT:
THE COURT:
Do you have any
We wouldn't want
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scene.
MS. CLAY-JACKSON: Judge, I
think it would give the jury an appreciation
of what that -- the aura of the scene so they
could understand and appreciate the
testimony.
should take a jury out there? Here we have
two scenes that are not out of the ordinary, a
parking lot at the high school and a field out
in the country. That doesn't sound as if it's
unusual where the jury would have to see a
That's
Now, do you haveTHE COURT:
(Whereupon the Jury returned
to the courtroom and the
following proceedings were
fine.
a witness ready?
THE COURT: Well, what I
would like to do, if it's agreeable with both
sides, is let me look at these two cases, and
if you have any authority, I'll l~ok at those,
too, and give you a ruling before lunch.
Would that be all right with you?
MS. CLAY-JACKSON:
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JERRY ORMAND, JR., the witness, after
having first been duly sworn, assumed the witness
stand and testified upon his oath as follows:
will you corne up here and let me swear you in
before you testify. Please have a seat right
over here, and if you will scoot up and speak
in the microphone, that will help, too.
DIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Would you state your name for the Court's
record?
A. My name is Jerry Ormand, Jr.
Q. Would you spell that last name.
A. O-R-M-A-N-D.
Q. Where do you live, sir? Are you a resident of
Bastrop County?
A. Yes, sir.
had in open Court.)
Jerry Ormand.
Jerry Ormand
Please be seated.THE COURT:
your next witness?
MR. GARVIE:
THE COURT:
isWho
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Q.
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A.
Q.
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And were you a resident of Bastrop County back
in 1996?
Yes, sir.
Do you know a gentleman by the name of David
Lawhon?
Yes, sir.
And did you know him back in 1996?
Yes, sir.
When you say you know him, did you consider
yourselves friends?
Yes, sir.
Did he come to your house sometimes?
Yes, sir.
And visit your family?
Yeah.
Did you have a chance to see Mr. Lawhon in May
of 1996?
I don't know -- yeah, yeah, I did.
And when he came over to your house on that
day, did you have a chance to talk with him
about the murder of stacey Stites?
Yes, I did.
And do you remember what you said to him?
MS. TANNER: Objection to as
to hearsay.
hearsay. It's an out-of-court statement
offered for the truth of the matter asserted.
It doesn't matter that it's his statement.
It's still hearsay.
THE COURT: I'll overrule it,
you may tell us what you said, sir?
I just asked him -- I asked about, you know,
Stacey's death, and that's all I asked him and
he didn't --
what he said or if he said anything. Just
tell us what you said.
I just asked him about Stacey's murder and if
he knew anything about it, and that was the
bottom line about that.
(BY MR. GARVIE) Did he blow you off?
Yeah, you know, he didn't answer me. He
didn't give no response or nothing.
Did he look at you at all when you were
talking to him?
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A.
A.
Q.
A.
Q.
what he said.
not --
MR. GARVIE:
MS. TANNER:
MR. GARVIE:
THE COURT:
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Judge, I asked
It's still
No, Judge, it's
Don't tell us
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CROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Mr. Ormand, you knew Stacey Stites, didn't
you?
-- he just blew it off, so I didn't pursue
it. I didn't say anything.
Q. Did you get the impression that it was
something that you shouldn't pursue?
MS. TANNER: Objection, that
calls for speculation.
Yes, ma'am.
And because of your acquaintance with Stacey
Stites, you voluntarily gave a sample of your
blood, your hair, and your saliva and your
fingerprints and all that, right?
Yes.
Okay. And you also knew David Lawhon?
Right.
Did you have any knowledge whatsoever,
It was like he was in another
Pass the
Sustain the
MR. GARVIE:
THE COURT:
objection.
witness.
I don't know.
Q.
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No.
David Lawhon about Stacey Stites, he didn't
say anything?
Yeah.
Any information at all in any way, shape, or
form that they had ever dated?
No.
information at all personally
No.
-- that they knew one another?
Did you have any
Do you even know whether he heard you
And you indicated that when you asked
Okay.
Okay.
or not?
Well, I don't know.
Is there any way you can -- if he didn't say a
word, is there any way you can even know if he
heard you?
He was standing in front over me so I assume
that he heard me.
But he didn't answer one way or the other?
Let me ask you this.
however, that your friend, David Lawhon, knew
or was at all in any way associated with your
friend, Stacey Stites?
No, I just heard they were
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No, he didn't answer one way or the other.
Okay ..
Stacey Stites gave you any indication at all
that they knew one another?
(Pause in proceedings.)
So neither David Lawhon nor
No further
We call Jose
No further
If I may have
Yes, ma'am.
That will be all,
Your next
MR. GARVIE:
MR. GARVIE:
MS. TANNER:
THE COURT:
THE COURT:
(Whereupon the witness was
excused from the stand.)
MS. TANNER:
just a moment, Your Honor.
THE COURT:
questions.
No, ma'am.
questions.
sir.
witness?
(BY MS. TANNER)
A.
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A. Yes.
QUESTIONS BY MR. GARVIE:
A. Coronado, C-O-R-O-N-A-D-O.
Q. And your first name is Jose?
Sir, would you
Please come up
And would you, just for
THE COURT:
THE COURT:
Please have a seat.
purposes of the record, would you state and
spell your last name.
can all hear you.
(BY MR. GARVIE)
of Bastrop County?
please scoot up closer to the microphone so we
DIRECT EXAMINATION
resident of Bastrop County?
JOSE CORONADO, the witness, after having
here and let me swear you in before you
testify.
Coronado.
Q. And back in June of 1996 were you a resident
Q.
A. Yes, sir, I am.
Q. Mr. Coronado, for the record, are you a
and testified upon his oath as follows:
first been duly sworn, assumed the witness stand
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I was at a distance picking up
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19 Q.
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Excuse me?
In June of '96?
Yes.
Have you ever met or do you know a gentleman
by the name of David Lawhon?
Yes, I do.
And how long have you known Mr. Lawhon?
I met him at Walmart when I used to work
there.
And when did you work there?
It's been going on three years ago.
Did you know a woman by the name of Stacey
Stites?
Yes, I did.
Did David Lawhon know Stacey Stites?
Yes, he did.
And how do you know that, sir?
I saw them together once, that was about it.
Where were they?
In the parking lot of Walmart.
Did he introduce her to you?
No, he didn't.
carts.
But you're certain the woman you saw was
Stacey stites?
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Yes.
Did he tell you he was dating stacey Stites?
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hearsay.
MS. TANNER:
THE COURT:
Objection as to
Sustained.
6 Q. (BY MR. GARVIE) Did you ever have occasion to
7 talk to Stacey Stites about David Lawhon?
8 MS. TANNER: Object as to
It. 9
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that necessarily calls for a hearsay answer
and the State is unable to cross-examine
anyone as to the credibility of it.
12 MR. GARVIE: Judge, they
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have spent a great deal of time in this trial
talking about what Ms. Stites said over and
15 over again. This is not calling for hearsay.
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17
It's to indicate that he did have a
conversation with her about David Lawhon.
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20 A.
THE COURT:
did you have a conversation?
Yes.
It's a yes or no,
21 Q. (BY MR. GARVIE) And you're satisfied that she
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knew David Lawhon?
MS. TANNER: Objec::t as to
24 hearsay. It calls for a hearsay response, by
25 necessity.
31
Did she know David Lawhon?
Asked and
It's overruled.
MS. TANNER:
THE COURT:
Lawhon?
Yes, I did.
And did she admit that was her?
She couldn't recall the day that was.
But she did indicate that she had dated
Lawhon?
Yes.
And that they had dated?
Yes.
And at the time that she admitted that to you,
you were working together?
Yes, I was.
Yourself and Ms. Stites?
Yes.
And prior to that, you had also worked with
David Lawhon?
Yes.
And you're telling this jury that the two of
them knew each other and, in fact, dated?
You may answer that, sir.
(BY MR. GARVIE)
Yes.
Did you tell her about seeing her with David
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answered.
THE COURT: And leading.
Sustained.
(MR. GARVIE) Are you telling this jury that
the two of them knew each other?
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answered.
question.
MS. TANNER:
THE COURT:
Asked and
Sustained. Nex:t
10 Q. (BY MR. GARVIE) Mr. Coronado, you didn't have
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any reason to come in here and make this up,
did you?
I!
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leading.
Rephrase it.
MS. TANNER:
THE COURT:
Objection as to
Sustained.
17 Q. (BY MR. GARVIE) You are telling this jury
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because you knew these two people?
MS. TANNER: Objection as to
leading.
21 THE COURT: Sustained.
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Q.
A.
(BY MR. GARVIE)
people?
Yes.
Did you know these two
25 Q. Did you make a statement to an officer in this
33
case?
CROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Mr. Coronado, where did you work at the HEB?
A. In the produce department.
Q. How long did you work in the produce
statement that you made?
A. Yes, it is.
Q. Is that your signature?
A. Yes, it is.
Q. What is the date on that?
A. 6-4 of '96.
Q. SO in June of '96 you made that statement?
A. Yes, I did.
Q. And did you tell them what you are telling us
today?
A. Yes.
A. Yes.
Pass the
May I approach
Yes, sir.
MR. GARVIE:
Does this look like the
THE COURT:
MR. GARVIE:
witness.
the witness?
(BY MR. GARVIE)Q.
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34
department?
For about two years and a couple of months.
Did you have an opportunity to work with
Stacey Stites in the produce department?
Yes, I did.
How long did you work together?
I think from March until April.
From March until the time of her death?
Yes.
And was Andrew Cardenas also working in the
produce department?
Yes.
Did the three of you kind of trade off and
maybe the two of you would work together one
time and two of you would work together
another time, that sort of thing?
Yes.
Did you have occasion to work the 3:30 in the
morning shift with Stacey?
Yes.
And she was by all accounts a very prompt
employee, wasn't she?
Yes.
She wasn't ever late to work or just not show
up and things like that?
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35
No.
Now, you did not work with her on the morning
of her disappearance, April 23rd, correct?
No.
And when she would come to work, would she
wait outside to walk in with you if the two of
you had to start at 3:30?
No.
Do you recall what -- she was driving a little
red truck when she would come to work, right?
Yes.
Now, through the course of your time in
working with Stacey Stites you became pretty
good friends with her, didn't you?
Yes.
And you would agree with me, of course, that
she was excited about her wedding, wasn't she?
Yes, she was.
I mean, that was all she wanted to talk about,
wasn't?
Yeah it was.
Did she kind of bend your ear about it all the
time?
Yeah.
Did you ever during the course of the time
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36
that she was excited about the wedding talk
about running around with other men and stuff
like that?
No.
Okay. Now, would you agree with me that when
you-all worked produce, Saturdays were really
busy, weren't they?
Yes, they were.
They are considered to be super-Saturday,
weren't they?
Yes.
And sometimes on Saturdays it was required
that you guys come in even 30 minutes early,
like 3:00 o'clock in the morning to get ready
for Saturday, right?
Yeah.
And if that was the case and you came in at
3:00 o'clock, sometimes they would let you
come in at 4:00 then on Sunday, right?
Yeah.
Okay. Whichever one it was, whether it was
3:00, 4:00, or 3:30, Stacey was always getting
there on time?
Yes.
And would you agree with me that she was a
It was like '92 or
, .
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37
really hard worker and a good worker?
Yes, she was.
Now, let's talk about -- when was it that you
worked at Walmart with David Lawhon?
Around three years ago.
'93 when I started.
'92 or '93 would be like five or six years
ago?
Well, the beginning, yeah, but I'm talking
about when I ended it was like three years ago
in June.
And so when did you and David Lawhon work
there together? Approximately? I don't
expect you to have a calendar in front of you,
but approximately?
He started after I did.
Okay. And which section did the two of you
work at the Walmart?
Layaway.
And you said that you left the Walmart in June
of '95?
Yes.
And did David Lawhon leave the Walmart before
you did, or was he still working there when
you left?
I
k
1 A.
38
Before I did.
2 Q. Okay. And you said that you saw him in the
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parking lot of the Walmart one time with
stacey stites?
Yes.
What were they doing in the parking?
I don't know, they ju~t stopped.
Were they outside of a car talking?
Yes.
Did it appear to you that this girl was
waiting for him when he was working, had come
to see him?
I have never seen that happen.
Was that in the parking lot on a day that he
had been working?
No.
It was not on a day that he had been working?
No.
Did he often hang out in the parking lot of
the Walmart on days he didn't work?
No.
So he was just hanging out in the parking lot
of the Walmart on a day he didn't work and you
saw them together?
Yeah.
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And you're saying that is the only time you
ever saw him with this girl?
Yes.
Okay. Now, do you know -- so you're telling
this jury that it was stacey who he dated back
then, right?
Yes.
And at the time, according to your previous
statement, all you knew at the time was that
the girl's name was Stacey, right? You didn't
know who she was other than that?
No.
You didn't know the last name or anything like
that?
I recall him mentioning it once.
You didn't know the last name until you
started working with her, right?
Yeah.
Okay. Would it surprise you to know that at
that period of time he was working at Walmart
he was dating a girl named Christy Macey?
MR. GARVIE: Objection. I'm
going to object to that being leading, Judge.
MS. TANNER: That's
cross-examination.
40
name.
MR. GARVIE: Objection. It
calls for speculation as to facts not in
evidence.
No.
Do you know Christy Macey?
No one has asked me, but I know the first
Go ahead.
(BY MS. TANNER) Would it surprise you to know
that at the time David Lawhon was working at
Walmart he was dating a woman named Christy
Macey?
And assumes facts
It's overruled.
He's on cross.
THE COURT:
Would that surprise you?
THE COURT:
THE COURT:
And do you know what Christy Macey looks like?
Not really.
Would you disagree with me if I told she was
about five-ten with long dark brown hair?
MR. GARVIE: Judge, I object
to that. He has already said that he didn't
know her. Anything else would be speculation
on his part.
Go ahead.
(BY MS. TANNER)
Q.
A.
Q.
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Macey would meet David Lawhon in the Walmart
MR. GARVIE: Same
objection.
MS. TANNER: I'm asking if
he's aware of that.
MR. GARVIE: He stated he
does not know her.
THE COURT: It's overruled.
Lawhon would meet Christy Macey in the Walmart
parking lot when he worked there?
No.
Now, you told Mr. Garvie that you gave this
statement to Sergeant Barton on June 4th of
1996, correct?
Yes.
And June 4th of 1996 was about a week after
David Lawhon was arrested for the murder of
Mary Ann Arldt, wasn't it?
Were you aware of that?
Yes, sir.
Sustain the
Were you aware that David
Did you know that Christy
MR. GARVIE:
THE COURT:
(BY MS. TANNER)
parking lot?
not in evidence.
objection.
(BY MS. TANNER)
A.
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A.
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REDIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Was it uncommon for David to date more than
one girl?
A. No.
Q. In fact, he was sort of a player, wasn't he?
A.. Yes.
Q. And did Stacey tell you that?
A. Yes.
Q. As you reflected on it later when you were
No furtherMS. TANNER:
And that was big news at HEB, wasn't
Yes.
Okay.
it?
Yes.
And so you were from the very beginning aware
of that circumstance of that reward?
questions.
Yes.
And by the way, working at HEB, you were aware
that there was a $50,000 reward for
information leading to the death of Stacey
Stites?
Yes.A.
A.
A.
Q.
Q.
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talking to her, did you have any doubt that
the person you saw was stacey Stites?
A. No.
Q. And at that time you actually knew her and you
were working with her in produce; is that
correct?
A. Yes.
RECROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Did you or were you aware of David Lawhon also
dating a lady by the name of Alicia Miller?
A. No.
Q. Oh, by the way, Mr. Coronado, during the time
that you worked with Stacey Stites in the
produce department, did you ever see the man
sitting to my far left come in and take her
out to lunch and visit with her or anything
like that?
A. No.
Q. Okay.
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witness.
questions.
MR. GARVIE:
MS. TANNER:
Pass the
No further
44
instructions I have given you.
(Whereupon the witness was
excused from the stand.)
(At this time a recess was
taken. )
REDIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Mr. Coronado, you indicated that Ms. Stites
was excited about her wedding?
A. Yes.
Q. Did you ever see her wearing an engagement
ring?
A. We're not allowed to wear jewelry to work.
No further
Pass the
We're going to
That will be
Please remember the
THE COURT:
THE COURT:
You may step down.
take a morning break.
MS. TANNER:
MR. GARVIE:
all.
questions.
witness.
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(Whereupon the Jury was
escorted from the courtroom
and the following proceedings
were had outside the presence
and hearing of the jury.)
DAVID LAWHON: Yes, sir.
THE COURT: Yesterday we
visited with each other, and I appointed a
lawyer to represent you, Mr. Arthur, Con
Arthur. He's here with you this morning.
Have you had time to visit with him.
Your Honor, both yesterday afternoon for about
an hour and again just several minutes ago.
THE COURT: Has your client
made a decision about whether or not to
testify in this case.
MR. ARTHUR: He has. Mr.
Lawhon has instructed me to assert his right
to refuse to testify in this case on the
grounds it could tend to incriminate him.
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David Lawhon?
THE COURT:
MR. ARTHUR:
Is your name
Yes, we have,
46
is over?
MR. GARVIE: Judge, under
the circumstances as far as I'm concerned, he
can be released.
not release him, just in case. I would rather
keep him here for the pendency of the
guilt/innocence. That's what I prefer to do.
THE COURT: Until the trial
THE COURT: Is that what you
want to do, sir? Would you answer out loud.
DAVID LAWHON: Yes, sir.
THE COURT: Okay. You
understand those rights?
DAVID LAWHON: Yes, sir.
THE COURT: Does the State or
the defense want to ask him any questions
about that?
No? Sir, I'm going to let you go
back to custody, back to the jail. Thank you
for advising him.
I would rather
May I be
You certainly
MS. TANNER:
MR. ARTHUR:
THE COURT:
may.
excused?
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WILL BARTON: Yes, sir.
THE COURT: And have you
advised him of his right not to testify?
THE COURT: Yes, we will keep
him here. He's a part of this trial. He may
change his mind. Do you want to stick your
head in and see if Virginia is ready to talk
to us with her client. What's his name now?
I keep forgetting his name.
MR. SANDERSON: will Barton.
THE COURT: will Barton.
will you come up here and let me talk to you.
What is your name.
WILL BARTON: Will Barton.
THE COURT: I understand Ms.
Virginia Piper is here as your attorney and
has given you some advice. The defense has
indicated that they would like to call you to
testify in this particular case. Has your
client made a decision about that?
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MS. TANNER:
MS. PIPER:
Your Honor, I counseled him.
THE COURT:
to testify.
47
Yes, sir.
I believe he has,
Are you willing
48
planning on asking him any questions with
regard to any cases other than this one. I
MS. PIPER: Yes, Your Honor.
I thought my understanding with will was that
you were going to say that you did not want to
testify because that might incriminate you.
WILL BARTON: Oh, yeah. I
will not testify because something I have
might incriminate me.
testify because there's some things in other
cases that I've got that might incriminate me.
THE COURT: In other words,
if the Court puts you on the stand and the
lawyers ask you questions, then you will
refuse to answer them because it might tend to
incriminate you; is that correct?
WILL BARTON: Yes, sir.
THE COURT: Does the State or
the defense, do either of you want to ask him
any questions about that?
Tell me that
I will not
No, Your Honor.
We're not
MR. GARVIE:
MS. TANNER:
THE COURT:
again, please, sir.
WILL BARTON:
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WILL BARTON: Yes, sir.
MS. PIPER: Your Honor, may I
don't know what the defense's posture on it
is, but we're not planning on asking questions
other than this case.
can interpret what the prosecutor has said.
If we limit the scope of your testimony to
just the facts of this case, are you willing
to testify.
And you have
Yes.
The events
Let me see if I
THE COURT:
MS. PIPER:
THE COURT:
speak.
THE COURT:
advised him of that?
MS. PIPER: Yes, sir.
THE COURT: And you want to
exercise your right to refuse to testify; is
that correct?
happening to Mr. Barton at the time leading up
to this event that is on trial right now,
there are things that he would have to testify
to during the 24-hour period that could
incriminate him, not in this case but in
another.
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THE COURT: I appreciate that
fact. Do either of you want to ask any
questions now? Okay, sir, I'm going to let
the jailer take you back to jail. Anything
else before we take a short break?
MR. GARVIE: No.
MR. SANDERSON: Judge, I
assume there is a limine motion prohibiting
defense counsel from mentioning the fact that
they are taking the Fifth.
MR. GARVIE: Oh, no, we
wouldn't do that, no. That's why we make sure
we take care of all those. There's no way I
would go close to that.
MS. TANNER: Are you
planning on calling those juveniles this
morning? If so, while we're on break, now may
be the time to admonish them and see if they
want to invoke or anything rather than having
to go back out and take yet another break.
THE COURT: Do they have a
lawyer who represents them.
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so.
MR. GARVIE:
MS. TANNER:
I don't think
I don't think
51
either does.
that will determine what happens with my
morning.
MR. GARVIE: I think they may
have consulted an attorney. I don't think
either of them are at this moment represented
by an attorney.
MS. TANNER: Since they
haven't been charged but they were present,
they're still suspects. I think the Court
needs to give them their rights.
THE COURT: will you ask them
to corne in. And what is your name.
Jason
Yeah, because
Do you want to
JASON ALLISON:
Allison.
THE COURT: Jason Allison?
JASON ALLISON: Yes, sir.
THE COURT: A-L-L-I-S-O-N?
And I understand the defense would like to
call you to testify in this particular case,
and it may be necessary for you to answer some
questions that could tend to incriminate you.
THE COURT:
deal with that now?
MR. GARVIE:
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I don't have any idea what you know about this
case and what your involvement is, but I just
want to make sure you understand certain
Constitutional rights that you possess and all
people here in our country possess, and that
is you have a right to refuse to answer
questions, and you can assert that right now
if you want or any time during your
testimony. Do you understand that.
JASON ALLISON: Yes, sir.
THE COURT: How old are you,
Jason.
JASON ALLISON: 18.
THE COURT: Have you talked
to a lawyer about your testimony?
JASON ALLISON: No, sir.
THE COURT: Do you understand
that right?
JASON ALLISON: Yes, sir.
THE COURT: Are you willing
to testify?
JASON ALLISON: Yes, sir.
THE COURT: Does the defense
want to ask him any questions now about that?
MR. GARVIE: No, Judge, just
53
for clarification purposes, my understanding
was that it was not related to this case, per
se, but the Arldt matter.
JASON ALLISON: Yes, sir.
THE COURT: And understanding
that, are you still willing to testify?
JASON ALLISON: May I speak
with him right quick?
THE COURT: He doesn't
want to ask him any questions?
MS. TANNER: Judge, I don't
know if it's appropriate for us to ask him
questions, but I think we need to make it
clear to him that he will be questioned about
the Arldt matter, that he is still a suspect
in that offense, and we also need to make very
clear to him that anything he says can be used
against him and incriminate him in that case.
THE COURT: And do you
understand that that could be a line of
questioning?
He represents the defendant in
The Arldt?
A-R-L-D-T.
Does the State
THE COURT:
MS. TANNER:
THE COURT:
represent you.
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I mean, he asked to talk to Mr. Garvie, who is
that you make that decision before I put you
lawyer who has given you some advice in the
other case?
lawyer and not knowing how to ask or what. I
can't tell.
No, sir.
Does he need
Judge, we would
Do you want to
Do you have a
I would prefer
Now, you can go take a
JASON ALLISON:
THE COURT:
MS. TANNER:
MR. GARVIE:
THE COURT:
MR. GARVIE:
I'm not sure if he's wanting aa lawyer.
be certain that he is aware of his rights, we
would be certain that he is willing to waive
those rig~ts before we would even call him.
There's no way we would even put him through
that.
in front of the jury.
break and think about it, but I don't want the
defense to call him in front of the jury if
he's going to assert that right.
step aside and think about that for a moment?
What the Judge has instructed you?
this case.i
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Dorin Williams in Elgin, but that was over
this here, and I mean, he didn't really say
nothing. He just talked to another person.
THE COURT: Would you feel
more comfortable if the Court appointed a
lawyer for you to give you some advice before
you testify? Do you want me to do that.
JASON ALLISON: Yes, sir.
THE COURT: Okay. I'll do
that for you. You said you cannot afford to
hire a lawyer and you're 18 years old. Are
you a student or have a job.
THE COURT: Are you going to
I don't have
No, sir, not
No, sir.
I talked to
Not at the moment
Have you talked
Can you afford to
JASON ALLISON:
THE COURT:
JASON ALLISON:
JASON ALLISON:
THE COURT:
a job.
at the moment.
what.
THE COURT:
to any lawyer about it?
JASON ALLISON:
hire one?
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school?
JASON ALLISON: No, sir.
THE COURT: Do you have any
money saved up that you could use to hire a
lawyer?
JASON ALLISON: No, sir.
THE COURT: Are you telling
me you're too poor to hire someone?
JASON ALLISON: Yes, sir.
THE COURT: Okay. I'll
appoint someone. They can give you some
advice sometime today. Would you please wait
outside for us until a lawyer gets here?
Do you want to talk to the other
NEAL HAWKINS: Eighteen.
Yes, sir,MR. GARVIE:
NEAL HAWKINS: Yes.
THE COURT: Sir, how old are
THE COURT: What's his name?
MR. GARVIE: Neal Hawkins.
THE COURT: Your name is Neal
Hawkins?
please.
one?
you.
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indicated that they may want to call you as a
witness in this particular case. Are you
aware of that.
NEAL HAWKINS: Yes.
THE COURT: I don't know what
you know about this case or what your
involvement in other cases might be, but it
may be necessary for you to answer questions
that could tend to incriminate you. Do you
understand that.
NEAL HAWKINS: Yes.
THE COURT: The Constitution
says you have a right to refuse to answer
questions. Do you understand that.
NEAL HAWKINS: Yes.
THE COURT: Are you willing
to answer questions.
NEAL HAWKINS: Yes.
THE COURT: I don't have any
idea whether or not cross-examination may lead
to other areas or not. Does the State?
MR. PENICK: Judge, I don't
think he understands that it's not this case
that is the problem, it's the Arldt case, and
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THE COURT:
57
The defense has
58
Fifth Amendment
he's a suspect in that case and it is a murder
case and there is no statute of limitations.
aware that there may be some involvement in
that case. On the witness stand, the State
has the right or may have the right to
cross-examination you and ask you questions
NEAL HAWKINS: Yes.
THE COURT: Of course, you
could assert your right to refuse to testify
now or any time during the questioning while
you're on the stand. Do you understand that.
NEAL HAWKINS: Yes.
THE COURT: You told me
you're 18 years old.
NEAL HAWKINS: Yes.
THE COURT: Have you
graduated from high school?
NEAL HAWKINS: Yes.
THE COURT: Do you understand
this Fifth Amendment right?
NEAL HAWKINS: Yes.
THE COURT: To plead the
And I wasn'tTHE COURT:
Do you understand that.about that.
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testify.
And not
Recently.THE COURT:
Williams.
THE COURT: Understanding
that it might lead to some questions with
regard to the other case, right.
NEAL HAWKINS: Yes.
THE COURT: And you're still
willing to testify.
NEAL HAWKINS: Yes.
THE COURT: Have you talked
to a lawyer about this?
NEAL HAWKINS: Yes.
THE COURT: Who?
NEAL HAWKINS: Dorin
NEAL HAWKINS: Yes.
THE COURT: Do you have any
questions about it? And now what is your
position? Do you want to testify or are you
willing to testify.
NEAL HAWKINS: Yeah, I'll
NEAL HAWKINS:
incriminate yourself?
THE COURT: And you
understand you can invoke that at any time.
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NEAL HAWKINS: No.
hire a lawyer?
you have any questions or comments? The State
or the defense?
MS. TANNER: I don't know
that the Court actually instructed that he has
a right to an attorney if he cannot afford one
in fact,
I'm just
Two or three
That is also one
And do either of
Two or three
THE COURT:
THE COURT:
NEAL HAWKINS:
THE COURT:
NEAL HAWKINS: Maybe a month
Less than that -- two or three weeks
of your rights; that is, the right to a lawyer
to advise you, and if you cannot afford to
hire one, the Court will appo~nt someone to
represent you. Do you understand that right.
NEAL HAWKINS: Yes.
THE COURT: Can you afford to
in order to talk to him since he is,
still a suspect in that murder case.
trying to cover all the bases.
weeks ago.
weeks ago?
ago.
ago.
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lawyer?
just like knowledge, you know, of what was
going on, and whether I need to and whether
I'm going to incriminate myself.
THE COURT: Is he still your
NEAL HAWKINS: Yes.
THE COURT: He is?
NEAL HAWKINS: If I need a
lawyer, then he will be the one. He will work
with me.
THE COURT: You have paid him
some money to be your lawyer.
NEAL HAWKINS: Yeah, I guess.
THE COURT: Or was it more
like this? It was a consulting fee and you
went in to get advice and you paid him a
hundred dollars or something for that advice?
NEAL HAWKINS: Yeah.
THE COURT: So probably he's
not still your lawyer?
NEAL HAWKINS: No.
THE COURT: Well, let me ask
It wasYes.
Did you pay Mr.
NEAL HAWKINS:
THE COURT:
Williams.
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to the lawyer you're talking about.
someone to represent you.
NEAL HAWKINS: No.
that you understand all these rights and
you're willing to testify?
THE COURT: will you please
wait outside, and we will call you in a few
minutes.
Yeah.
Two or three
You're satisfied
NEAL HAWKINS:
NEAL HAWKINS:
THE COURT:
Would you like the Court to appoint
When was the last time you talked
THE COURT: Okay. will you
wait -- any other comments?
MS. TANNER: No.
THE COURT: will you please
wait for us outside.
MR. GARVIE: Just one
weeks ago.
question.
you this.
(Whereupon the witness was
excused from the stand.)
THE COURT: Any other
concerns before we take a short break?
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Barbara Felix.
(At this time a recess was
taken. )
(Whereupon the Jury returned
to the courtroom and the
following proceedings were
had in open Court.)
THE COURT: Please have a
seat right over here. And if you'll speak
into that microphone so that we can hear you,
I'd appreciate it.
We call
Please be
MS. CLAY-JACKSON:
THE COURT:
Thank you very much.
THE COURT: Who is your next
witness.
seated.
BARBARA FELIX, the witness, after having
first been duly sworn, assumed the witness stand
and testified upon her oath as follows:
DIRECT EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
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I
[ .'
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Q.
A.
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A.
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64
Would you state your full name, spelling your
last, please.
Barbara A. Felix, F-E-L-I-X.
And Ms. Felix, are you a resident of Bastrop?
Yes, I am.
Okay. How long have you lived in Bastrop?
A lifetime.
Do you have family members in Bastrop?
Yes, I do.
Do you know the young man who's seated to my
left?
Yes, I do.
And how do you know him?
He's my first cousin.
And the young man seated to my left, would you
state his name for the record, please.
Rodney Rodell Reed.
Are you and Rodney the only relatives of the
Reed family that live in Bastrop?
No.
Do you have other family members in Bastrop?
Yes.
Where are you employed?
Bluebonnet Trails MHMR Services.
And what do you do there?
65
I'm director of services, service specialist,
MHMR, of the retarded consumers.
Retarded consumers?
Yes, ma'am, that's Bastrop.
And you have stated that you have relatives
who live in Bastrop; is that correct?
Yes.
closer. On State's Exhibit 2a, you will see a
red dot that says "the Reed house." Do
recognize that location -- that marker?
Right here.
Okay. And would you say that is, in fact,
Do you
The jurors are
Please turn
Look at this a little
THE COURT:
having a hard time hearing.
toward them.
Uh-huh.
Okay. What do you do? What are your duties?
Basically director with self-help skills,
daily documentation, transporting, whereever
needed.
Would you step down, Ms. Felix?
(Witness complies.)
I show you State's Exhibit 2, 2a.
recognize this?
(BY MS. CLAY-JACKSON)
A.
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A.
A.
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Q.
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placing marker on map.
You have uncles who live here; is that
correct.
where Rodney Reed's home is?
Yes.
You have other relatives that live in town.
You have a grandmother who lives in Bastrop;
is that correct?
Yes.
Would you take one over these orange dots and
on this map place the orange dot where
Rodney's -- where you-alI's grandmother lives?
Which grandmother?
Grandmother Hunter?
Hunter, okay.
And you have another grandmother; is that
correct?
Yeah.
Would you please the red dot -- where does she
live?
Could you tell us where
She lives on 1005b Austin Street.
I'm sorry.
(Witness
The jury can't
MS. CLAY-JACKSON:
THE COURT:
see.
(BY MS. CLAY-JACKSON)
A.
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Q.
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Q.
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State the
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A.
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67
-- first off, what is his name?
Joel Reed.
Okay. Where does Joel Reed live.
address.
805 MLK. (Witness applies dot to ma p v )
And his other uncle -- what's the other
uncle's name?
Wesley Reed.
And where does he live?
He lives at 1018 Female Street.
And that used to be Government Street; is that
correct?
Yes.
Right here.
(Witness places dot on map.)
Okay. And Walter Moore is related to you?
Yes, he's my uncle.
Where does he live?
707 Walnut. (Witness places dot on map.)
Now, we're putting these dots here. Can you
tell me if the people where we put dots lived
there in 1996?
Yes, they did.
Do you know a young lady by the name of Cheryl
Barnett?
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A.
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68
Yes, I do.
And does Rodney know a young lady by the name
of Cheryl Barnett?
Yes, ma'am.
Where did -- in 1996 where did Cheryl Barnett
live?
She lived at 2110 North Main, Apartment 12, I
think. I'm not exactly for sure.
Would you put a dot where she lived where
Cheryl Barnett lived. I think this is Main
Street?
(Witness complies.)
Do you know a young lady by the name of
Delores Flowers?
Yes.
And did Rodney know Delores Flowers?
Yes, he does.
Would you and where did she live in 1996?
She lived at Main Street -- right at Main
Street and Linden, in the Linden Apartments.
And that would be where?
(Witness placed red dot on map.)
And do you have a twin brother by the name of
Bobby Ray?
Yes, I do.
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Q.
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69
In 1996 where did Bobby Ray live?
He lived at 716 Hawthorn on the other side of
the railroad tracks.
Would you put a marker there?
(Witness placed marker on map.)
And Ms. Felix, in 1996 where did you live?
1813 Wilson street.
And would you put a marker there, please?
(Witness places marker on map.)
Okay. Do you all have a family did you and
Rodney have a family friend by the name of Ms.
Hyda?
Yes.
In 1996 where did ~s. Hyda live?
She lived on Cedar Street when you pass over
Highway 95.
On Spring street?
Yes.
Would you place this dot?
(Witness placed dot on map.)
Do you and Rodney have a family friend by the
name of Edward Piper in 1996?
Yes.
And where did Mr. Piper live in 1996?
At the end of Pecan Street and Linden.
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70
(Witness placed dot on map.)
And do you have another family friend by the
name of Linda Westmoreland?
Yes.
And where did Ms. Westmoreland live in 1996?
She lived on Linden Street.
Did you and Rodney have a family friend by the
name of Pat Lowe?
Pat Lowe, yes.
Where did Ms. Lowe live?
Mr. Lowe.
Mr. Lowe, sorry.
He lived on Hazel Street across from the
Long's Star Mart. (Witness places d o t.v )
Did you-all have an aunt by the name of Aunt
Aldridge; is that correct?
His aunt.
Where did Ms. Aldridge live?
She lived on Magnolia. (Places dot on map , )
And a Cheney Thomas is a friend of you-all; is
that correct?
Yes.
And where did Ms. Thomas live?
She lived down by the railroad tracks on
Hawthorne street. (Witness places dot on
71
map) .
That's where (inaudible) lived?
Down close to the school.
Okay. You-all have an aunt by the name of
Aunt Nickerson; is that correct?
Yes.
Where did Ms. Nickerson live in 1996?
On Hill Street.
On Hill Street.
(BY MS. CLAY-JACKSON) I'm sorry.
(Witness placed marker on map.)
The majority of those dots would you say are
family members?
Yes.
Those orange dots, rather?
Yes.
Now, the Long's star Supermart, is a
convenience store; is that right?
Yes.
Are there phones at the Long's Star Mart, do
you know?
Yes, there is.
And in 1996, do you know whether or not at the
Reed household they had a home phone?
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THE COURT: On what street?
\
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No, they didn't.
So the closest public phone would be?
Long's Star Mart.
4 Q. Okay. Thank you. You may take your seat.
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A.
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(Witness complies.)
Ms. Felix, in 1996, for the most part, how
would Rodney get to those orange dots?
Walk -- he would walk.
And to your knowledge, would Rodney confine
his walking only to the daytime hours?
No.
What time of day would he be walking?
13 A. Mostly any time of day. I have never saw him
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Q.
A.
walking because I work at night.
Do you know whether or not he would walk at
night?
Yes, I'm sure he would.
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MS. CLAY-JACKSON:
witness.
Pass the
21 CROSS EXAMINATION
22 QUESTIONS BY MS. TANNER:
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25
Q. Ms. Felix, did you, through the course of the
pendency of this case have an opportunity to
give a written statement to the defense
73
really want visitors at 2:00, 3:00 or 4:00
Would you agree that most people don't
Do you have children?
Okay.
Okay.
Yes.
And what time do you normally put your kids to
bed?
Well, now that I'm in the morning shift, she
goes to bed around 9:00 or 9:30.
Would you commonly have visitors come to visit
your house at 2:00, 3:00, 4:00 in the morning?
No, not my house I wouldn't.
attorneys or to a defense investigator?
No.
Did you give a tape recorded statement?
No.
Did you give any kind of statement and they
take notes, as you recall?
No.
Nothing?
Nothing.
Now, you said that you work at night? What
hours do you work?
I'm recently working mornings now, but my
hours were 4:00 in the evening to 12:00
midnight.
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sometimes got around on a bicycle, correct?
all unusual for him to walk a lot at night?
defendant's cousin, you're familiar with him
as well as his siblings, right?
o'clock in the morning, do they?
It depends on the individual.
Most individuals, though, probably wouldn't,
would they?
No.
I have
And you, of course, because you're the
And do you usually have occasion to
Now, back in 1996, the defendant also
Okay.
Okay.
Okay.
Yes.
I don't recall him being on bicycle.
always seen him walking.
Always seen him walking?
Yeah.
So it's your testimony that it wouldn't be at
make phone calls to people at midnight, 1:00,
2:00, 3:00 in the morning?
Yes, when I worked until 12:00, I did.
When you are at home not working, do you call
your friends just to visit at 1:00, °2 : 0 0 , 3:00
o'clock?
No.
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Chris, but I don't know the last name.
You're not familiar that she lives out on
And you know his brother, Ryan?
And she is a white girl, right?
May she
No further
That will be all,
Do you have any
MS. TANNER:
MS. CLAY-JACKSON:
MS. CLAY-JACKSON: No
THE COURT:
And Ryan has a girlfriend by the name
THE COURT:
Okay.
be excused?
ma'am.
1441?
Okay.
No, I don't.
I don't really know her.
No.
Yes.
Yes, I do.
further questions.
of Chris Dody, correct?
Yes.
Does that sound like the name?
questions.
Do you know where Chris lives?
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THE COURT: I'm going to send
you on a lunch break. It's 11:00 o'clock now
and ask you to be back at 1:00 o'clock, and we
will start shortly thereafter. Please
remember the instructions.
We don't have another one.
(Whereupon the witness was
excused from the stand.)
(Whereupon the Jury was
escorted from the courtroom
for a lunch break and the
following proceedings were
had outside the presence and
hearing of the jury.)
Just a
Do you have your
No objection.
You may be
MS. CLAY-JACKSON:
THE COURT:
MS. TANNER:
THE COURT:
moment, Judge.
next witness?
excused
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scene.
the case law that Ms. Tanner provided you,
Judge, indicated that your decision is
discretionary. It's not mandatory.
THE COURT: I promised you a
ruling before lunch on this Motion For the
Jury to Examine the Scene. Do either of you
have any other comments?
THE COURT: I'm going to deny
the Motion For the Jury to Examine the Scene.
I was interested in finding out that in one of
these cases that you handed to me the jury
itself made the request.
I think
Any otherTHE COURT:
MS. CLAY-JACKSON:
MS. TANNER: Judge, it is
denounced. I would simply point out to the
Court the fact that we're already dragging
along very slowly, and one of the things the
courts talk about is the length of time it
would take, and this would take a great deal
of time, and I mean, there's no reason. As
the Court pointed out, this is not an unusual
scene. It's not a particularly revealing
comments?
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denied it. I do have the cases here, but I'm
going to deny your motion.
May we also before we leave for lunch
see if Virginia Piper has had time to talk to
these other two.
THE COURT: Okay. We may be
able to deal with that on the record here
before we go to lunch.
(Following proceedings were
outside the presence of the
jury. )
Allison and Neal Hawkins; is that right?
JASON ALLISON: Yes, sir.
THE COURT: I have asked
Virginia Piper, who is a local attorney, to
visit with each one of you and give you some
advice, and she has come to me in chambers and
said that she'd like to have a little more
MS. CLAY-JACKSON: She's in
Yeah, I noticed
It's Jason
And the Court
THE COURT:
MS. TANNER:
That was interesting.
THE COURT:
that.
the process now.
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NEAL HAWKINS: No, sir.
JASON ALLISON: I need to
time to research your situations before she
can fully advise you. And what I'm going to
do is since you two men are under subpoena is
to require you to come back here the day after
tomorrow. That's Thursday morning at 9:00
o'clock. Is that a problem for either one of
you.
and I've already missed -- I missed half of
yesterday and half of today.
THE COURT: I don't think
you'll be here long. I will take care of you
first thing Thursday morning and get you out
of here probably before 9:00 o'clock. Unless
you decide to testify, that will take longer.
If your employer needs to talk to me about it,
I will be happy to visit with him. That is in
JASON ALLISON:
7:30 to 6:00,
Covert Buick.
And what are your
Where are you
THE COURT:
JASON ALLISON:
THE COURT:
hours?
working.
work.
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order for me to honor Ms. Piper's request for
more time to research the situation.
See you all Thursday morning at 9:00
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o'clock. Take a lunch break.
(Whereupon the Court recessed
for a luncheon break.)
81
(Day 26, May 12, 1998, afternoon session.
Cause number 8701, the State of Texas versus
Rodney Reed.
MS. TANNER: Before the jury
comes in, if they are going to call Rocky
Wardlow, there is a matter we need to take up
before the jury comes in.
THE COURT: Okay. Let's get
this taken care of first. Sir, will you
please come back up here and have a seat.
MS. TANNER: Judge, the
thing that we want to take up outside the
presence of the jury, it's our belief that
when Ranger Wardlow testifies, that the
defense intends to introduce the written
statements of a William Vance Barton that were
given in connection with this case. If
they're not planning on introducing those,
there is no point, but if they are planning on
introducing those written statements, then we
would like to lodge an objection to it and
take care of that outside the presence of the
jury beforehand.
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82
we do intend to introduce that statement.
the sake of argument, I don't know what the
the objection, then, before the jury comes
in. Is that what you want me to do?
that the basis for which the defense will be
seeking to introduce this is the exception of
the hearsay Rule 80324, statements against
interest, and that rule says that a hearsay
That's what I
At some point
Judge, just for
The gentleman is
Let me rule on
Is that what you
He's taken the Fifth
MS. TANNER:
THE COURT:
MR. GARVIE:
Under the Rules of Evidence I suspectsimple.
want -- I just simply want to be able to
object to it outside the jury so that if that
is excluded, that's not done in front of the
jury and that it does comport with our motion
in limine with regard to hearsay statements of
witnesses. And the reason for that is very
THE COURT:
intend to do, though?
MR. GARVIE:
obviously unavailable.
Amendment.
objection could possibly be.
respond to that?i
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statement is admissible if it's made against a
person's penal interest, and obviously the
statements of Mr. Barton show that they are
against penal interest, but the rules goes on
to say that quote, "a statement tending to
expose the declarant to criminal liability is
not admissible unless corroborating
circumstances clearly indicate the
trustworthiness of the statement."
Now, the cases I have provided to the
Court and to the defense have said that that
is a very rigid requirement. It is the
responsibility of the proponent of the
evidence to prove that the statement is
trustworthy, and in the Cunningham case I've
provided you with is a Court of Criminal
Appeals case, the Court says that it's only
admissible if the circumstances indicating
trustworthiness are at least equal to or
better than the circumstances indicating
untrustworthiness. They have to prove that
it's trustworthy, and each of these cases say
that.
And it's going to be our position
with regard to these statements that they are
84
and the basis for the cases as the Court
and presented the Davis case where in that
incorrect, and the whole basis for this rule
it somewhat surprising that the State will
Do you
Judge, I find
Judge --
May I suggest
Go ahead.
I have cited to the Court
Reading them -- and I don't
MR. GARVIE:
MR. GARVIE:
THE COURT:
THE COURT:
gentleman's rights.
want to respond to it?
argue against a confession that they took.
Obviously, this man confessed to this crime.
It's certainly relevant in the context of this
fabrication.
that
into evidence that is obviously a
talked about in Cunningham is to avoid putting
inaccuracies, that he gets few details right
and tons of details wrong, they are classic\
jailhouse confessions that are just obviously
statements and the testimony of Ranger Wardlow
will show that they are laced with
not trustworthy.
that at that point, but a reading of the
know how the Court frankly wants to handle
ii
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part of the rule that says it must be
corroborated by circumstances?
MR. GARVIE: Sure. But,
again, I'm quite concerned that the State
seems to be invading the province of the
jury.
particular case the defendant's mother
testified and the defendant's brother had
informed him that he committed the crime, and
the Court of Criminal Appeals said that that's
okay. I have shepardization that shows that
that is still good law.
I'm quite baffled by the State's
position on this matter, quite frankly, and
obviously this confession was taken by an
officer who is on the stand. If the jury's
province is to determine the credibility of
facts and of our witnesses, certainly they are
going to have an opportunity to look at that
themselves.
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THE COURT:
MR. GARVIE:
it's full of corroboration.
THE COURT:
itself?
What about the
Oh, we think
The statement
86
highlighted ones? Here's a clear copy of each
MS. TANNER: The Court is
the gatekeeper of that. It is the Court's job
to make sure that evidence that comes before
this jury is not more likely a fabrication
than the truth.
No, sir, I
That's what we
Are those the
We have copies
Can you use that
RANGER WARDLOW:
MS. TANNER:
as an exhibit?
MS. TANNER:
of the two statements.
THE COURT:
didn't.
MS. TANNER:
would prefer that we do.
MR. GARVIE: Actually, I did
not actually have the original statement.
Does the officer have the original statement?
THE COURT: May I suggest we
do it this way, and that is make the proffer
here in front of me and let me digest these
cases and let me rule on it before the jury
comes back in. It wouldn't be lengthy if you
put on his testimony now in front of me before
the jury comes in.
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of them.
Sir, will you come up here an let me swear you
Yes, Your
Scott Parnell?
Please be
THE COURT:
THE COURT:
MR. GARVIE:
(Whereupon the Jury returned
to the courtroom and the
following proceedings were
had in open Court.)
Who is your next witness?
MR. GARVIE: We would call
Scott Parnell to the stand.
seated.
Honor.
THE COURT: May I make
another suggestion. May we ask Ranger Wardlow
to wait outside and take up this other witness
that Mr. Garvie has nearby and give me a
chance to read over these cases at a break and
then we'll bring him back in here. will that
be all right? will you wait outside.
MS. TANNER: That's fine.
THE COURT: Are you ready for
the jury with your next witness?
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treat this witness as an adverse witness.
in. Please have a seat right over here. Go
ahead, sir.
SCOTT PARNELL, the witness, after having
first been duly sworn, assumed the witness stand
and testified upon his oath as follows:
THE COURT: Sir, will you try
to speak into that microphone so that we can
all hear you? Thank you very much.
A. Scott Parnell.
Permission to
You'll have to
MR. GARVIE:
THE COURT:
demonstrate the reason for that first.
Q. (BY MR. GARVIE) Mr. Parnell, do you know a
gentleman by the name of David Lawhon?
A. Yeah.
Q. Did you know Mr. Lawhon in 1996?
A. I didn't know him. I drank some beer with him
DIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Would you state your name for the Court's
record.
A. Scott Parnell.
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That's all he
Object as to
We didn't hear
That's about all.
MS. TANNER:
THE COURT:
leading.
your answer?
He said it was out by the lake.
said.
He didn't say he dumped her close to a --
and stuff like that.
You drunk some beer with him?
(Witness nods head in the affirmative.)
Did he ever admit to you that he killed Stacey
Stites?
Yeah.
What did he say? Tell this jury what he
said.
He said he strangled her with his belt.
Did he say anything about her eyes?
He said she had pretty blue eyes before she
closed them.
She had pretty blue eyes before she closed
them?
(Witness nods head in the affirmative.)
Did he say anything to you about what happened
to the body?
No. He said it was out by the lake.
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1 THE COURT: Sustained.
90
2 Q. (BY MR. GARVIE) Did he ever mention the
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A.
Q.
A.
Q.
A.
Q.
A.
Q.
Circle D Fire Station?
Pardon?
Did he ever mention the Circle D Fire Station?
No.
Did you tell the police this information?
Yes.
Do you remember who you talked to?
No, sir.
Was that in April or May of '96?
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A.
Q.
A.
I don't remember when it was.
year.
Last year or in '96?
, 96.
It was last
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Q.
A.
Q.
A.
Q.
A.
Did you talk to the police sometime around May
of '96?
I don't remember.
And how did you know David Lawhon then?
I just met him at the bar, and we drank a
couple of beers, and that was it.
Was he dating a relative of yours during that
time?
No.
25 MR. GARVIE: Pass the
91
witness.
A. Yes, ma'am.
CROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. You indicated that had you talked to the
police about this, but you don't remember who
it was?
Q. Does the name John Barton ring a bell to you
at all?
A. It's been a long time.
Q. Okay. Was it the Sheriff's Department or the
PD? Do you know the difference?
A. Yeah, the Sheriff's Department because a
friend of mine (inaudible.)
Did you give a written statement?Okay.Q.
A. Yes.
Q. Did you sign that written statement?
A. Yes.
Q. And in that written statement you swore that
everything was true?
A. As to what he told me, that's what I told him.
Q. You had a chance to read it and make sure
everything was right?
A. Yes.
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Yes, ma'am.
And it reflects that you gave this statement
And according to you, Mr. Lawhon told you that
he killed Stacey stites and he noticed that
she had very pretty blue eyes when they closed
as he was strangling her, right?
Uh-huh.
with his belt?
He just said he did it with a belt.
Okay.
(BY MS. TANNER) Mr. Parnell, I want to show
you a document and ask you is that your
statement that you wrote out, and is that your
signature?
Yes.
Is this a fair and accurate rendition of the
statement that you gave to the Sheriff's
Department?
What do you mean by that?
Is this a copy of it?
Yeah.
May I approach
Yes.
MS. TANNER:
THE COURT:
And that's your signature on there?Okay.
the witness?
Q.
Q.
A.
Q.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
A.
Q.
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it say on April 27th or 28th I was working in
the city of Bastrop and I met Brian Haynes?
Yeah.
Yes?
Uh-huh.
And then you said, I asked him if he knew
about the girl they found down by 1441, and he
told me that he knew about it and that he
strangled her with his belt. Does that say
that?
Yes.
Brian Haynes, right?
Which is David's brother, I guess.
Is David's brother, you guess?
I don't know.
Is Brian Haynes David Lawhon?
Yeah.
They're two different people, aren't they?
Yeah.
Okay. So you told the police on April 27th of
-- I'm sorry, May 24th of 1996 that Brian
on May 24th of 1996.
with that?
No.
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A.
Q.
A.
Q.
A.
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A.
Q.
A.
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Q.
A.
Q.
Okay. Now, let's see,
93
Do you have any problem
in this statement does
94
No.
Haynes told you he killed her, right?
on this statement does it say that?
You didn't tell them that?
I said David.
So it was
Was it Brian
They filled it out.
Show me, please, sir, where
okay with you that the statement you signed
and swore to be as true had a different name
in it? That was okay with you, sir? That's
an easy question, yes or no.
You were ready to get out of there.
You said David.
I didn't fill that out.
Haynes or David Lawhon that told you this, or
do you even know? Or did either of them tell
you this, Mr. Parnell? Did either of them
I said David and whoever was there with me
knew what I said.
They knew what you said?
They knew what I said.
Is this your signature on here?
Yes.
And you didn't notice that it said Brian
Haynes instead of David Lawhon? You didn't
notice that?
I was just ready to get out of there.
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Court to instruct the witness to answer the
question.
tell you this?
I just told you.
Did Mr. Haynes or Mr. Lawhon tell you what
you're telling this jury now?
question, sir.
David did.
(BY MS. TANNER) David did. But on April 27th
I'm sorry, May 24th of 1996 you told
Sergeant John Barton that Brian Haynes told
you that, didn't you?
I told him I had talked to Brian.
And you told him you had talked to Brian. Did
Brian tell you that too?
Yeah.
So they both told you that? That they did it,
right?
Yeah.
Okay. Let me ask you this, down here a little
further do you say in this statement, "He also
said that she had the prettiest blue eyes
before they closed."
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Q.
MS. TANNER:
THE COURT:
I would ask the
Answer the
96
Brian Haynes told you that, too?
you were fully aware that there was a $50,000
this with this man right here, can he see my
They
Object to this
It's overruled.
By the way, Mr. Parnell,
I want to ask you
Can he see whether my eyes
If I'm standing here just like
Thank you.Okay.
just one second?
It was one of them that told me that.
both said they did it.
So did they both manage to say that they
something.
MR. GARVIE:
demonstration, Judge.
THE COURT:
are open, or closed, or blinking or winking?
Can he see?
No.
strang~ed her with the belt and she had the
prettiest blue eyes before they closed, just
coincidentally?
I don't have any idea.
You don't know, do you?
No.
By the way -- Forrest, can you come here for
Go ahead.
(BY MS. TANNER)
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REDIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. However you are turned, before I'm looking at
you, can I not see your eyes? And if I've
seen your eyes, if you have seen her eyes, you
would know whether they were blue or not,
wouldn't you?
A. Yeah.
Q. Sir, you didn't dream this up, did you?
reward for information that led to the arrest
of whoever killed Stacey Stites, weren't you?
A. I don't know. I just don't want to be
involved in none of it. I don't care.
Q. That's not the question I asked you. You were
fully aware that there was a big chunk of
change out there for whoever could lead to the
killer of Stacey stites?
A. That's what they said -
Q. You were aware of that?
Clay-Jackson, would you approach.
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A. -- on the news, yeah.
MS. TANNER:
questions.
MR. GARVIE:
No further
Your Honor, Ms.
98
witness.
No.
David Lawhon told you that he killed this
woman?
objection'.
(BY MR. GARVIE) Did he tell you that he
strangled her with the belt?
(Witness nods head in the affirmative.)
MR. GARVIE: Pass the
(Witness nods head in the affirmative.)
And he told you about her pretty blue eyes,
didn't he?
Yes.
And he told you that he strangled her with a
belt?
Object as to
This is
Sustain the
MR. GARVIE:
MS. TANNER:
MS. TANNER: Still.
THE COURT: Sustain the
THE COURT:
leading.
objection.
redirect.
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FURTHER REDIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Sir, this statement, is this your handwriting
RECROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Please, Mr. Parnell, somewhere in that
statement of May 24th of 1996, show me where
David Lawhon's name comes up, please?
A. It don't.
Q. The only one you're talking about is Bryan
Haines who said he strangled her with a belt
and said she had pretty blue eyes, huh?
A. That's what that says.
Q. Have you ever been convicted of a felony?
A. Yes.
Q. What?
A. DWI.
Q. When?
A. About a year ago.
Q. Anything else?
A. I don't guess so.
Q. You don't believe so?
A. No.
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questions.
MS. TANNER: No further
FURTHER RECROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. David Lawhon and Brian Haynes, they sound real
similar, don't they?
A. (Silence.)
Q. They don't sound similar at all, do they?
Q. So he wrote this up?
A. Yeah.
Q. You did not write this?
A. No.
Q. All you did was sign it?
A.All I did was sign it.
Q. And you told him that David Lawhon did this?
Did the name Brian Haynes ever come up in that
same conversation?
A. Yeah, both of them did.
Q. SO he could have gotten the names confused?
A. That's not my fault.
Q. You told him that David Lawhon did it?
A. Yeah.
at the top? Who did all of this?
The sheriff that I talked to.
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witness.
MR. GARVIE: Pass the
100
101
FURTHER REDIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Mr. Parnell, how far did you go in school?
A. Seventh grade.
Q. Can you read and write very well?
A. No.
No.
And you signed that statement with your
signature that said that Brian Haynes was the
one who told you that, right?
He read it to me right there.
He read it to you?
He read what he put on the paper, and I signed
it.
And he read it exactly word for word what was
on the paper and you didn't have any qualms
with it, did you, so you signed it?
Yeah.
Okay.
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questions.
questions.
MS. TANNER:
MR. GARVIE:
No further
No further
102
FURTHER RECROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Q. SO to cover himself and not to have rely on
your ability to read and write, this person
read to you what it was tha~ he had written
down to make sure it was accurate, right?
A. Yeah.
Q. Okay.
FURTHER REDIRECT EXAMINATION
QUESTIONS BY MR. GARVIE:
Q. Did you say that there were other people
present, sir?
A. When?
Q. You said that there were other people with
you?
A. That brought me down to the sheriff's
department?
Q. Yeah, they just brought you down?
A. Yeah.
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questions.
further.
MS. TANNER:
MR. GARVIE:
MS. TANNER:
No further
Nothing
No further
103
L. R. ( ROCKY )
under oath, and you understand that?
(Whereupon the witness was
excused from the stand.)
after having been previously sworn, resumed the
witness stand and testified upon his oath as
follows:
We call
You're still
That will be all,
MS. CLAY-JACKSON:
THE COURT:
THE COURT:
you may step down
Ranger Wardlow.
sir,
questions.
RECROSS EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
Q. Sergeant, your report indicates that this was
an investigation for a capital murder case,
correct?
A. Correct.
Q. In that vein, you wanted to make sure in order
that the State did not kill the wrong person
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No, ma'am.
and you wanted to make sure there was follow
through on every lead that you had; is that
right?
That's correct.
And you were the lead investigator so it came
under your duty, your responsibility to make
sure that there was follow through?
That's correct.
And in this particular case, you did not
shrink from that duty?
that DPS crime lab, the scientists at the DPS
crime lab, or their skills are the tools that
help police officers investigating crimes?
That's correct.
And would it be a fair statement to say the
DPS crime lab's skills are an valuable tool,
as a matter of fact, in police investigations?
Certainly.
And when you can utilize those skills and make
use of those tools, you do that; is that
right?
Yes, ma'am, that's correct.
And in this particular case, it was not
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Okay. Would it be a fair statement to say
105
because he was a suspect, but in this -- let
me back up a little bit. But in this
particular case, you did not secure a search
description of what Stacey was wearing, what
he would recall Stacey was wearing on the day
she left; is that correct?
He speculated.
different, you utilized the skills?
That's correct.
Now, in good investigations, when suspects
give officers information, that information is
verified, is it not?
We attempt to.
that information the suspect has given you is
credible, correct?
That's true.
And in this particular case, Jimmy Fennell,
and you have stated that he was, in fact, a
suspect, Jimmy Fennell gave you information;
isn't that correct?
That's correct.
And let us talk about the information that he
To find out whether
He initially gave you the
And in a good investigation,He speculated.
initially gave you.
You attempt to verify it.
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106
warrant to search the home of Jimmy Fennell;
is that correct?
A search -- I'm sorry, what?
Jimmy Fennell's home?
We did not.
In fact, you didn't even ask him to search his
home; isn't that correct?
That's correct.
When he gave you the information about what he
thought Stacey may be wearing, had he had, to
your knowledge, the opportunity to go through
her closet to make sure that the clothes he
said she was wearing were gone?
I don't know if he would have or not.
So you don't know whether that lead was
credible or not? At that time?
No, ma'am.
'Jimmy Fennell was also the person who outlined
and gave the detail of what was missing in the
truck; isn't that correct?
That's correct.
And you didn't talk with Mrs. Stites about the
truck, did you?
Yes, ma'am, I believe we did.
You did?
107
Yes, ma'am.
Sergeant?
On the day of the investigation.
On the 23rd?
I believe so, yes, ma'am.
Would you please show me where in your report
that shows that?
Yes, ma'am, I believe we did.
You talked with Mrs. Stites about the contents
of the truck?
I did not personally, no, ma'am.
Who, as lead investigator, as the person
directing the investigation, who in your
records did you -- where in your records do
you indicate that you instructed one of the
other officers to talk to Mrs. Stites about
the truck?
I believe they had already spoken with her.
Who did you believe had already spoken with
her?
Sergeant Barton.
You believed that Sergeant Barton had already
spoken with Mrs. Stites concerning the
contents of the truck?
When did you come to this belief,Okay.
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108
On the 23rd?
Yes, sir.
Are you talking about my entire report?
Well, you have done your report in such a
logical and concise manner that is
chronological, so it has to be in the first
three or four pages?
I don't understand specifically what you're
asking me about.
Sergeant, what I'm asking you is, as the lead
investigator, the person who is in charge of
gathering the information and the evidence in
this particular case that you entitled capital
murder, you directed -- you directed or had
people accounting to you about their actions
in your investigation, correct?
That's correct.
And on April the 23rd, either you directed or
you had people accounting to you as you have
stated, their rendition of what Mrs. Stites
said was in the truck?
That's correct.
What I am asking you, Sergeant, is to find in
the first three pages of your report where
that is listed?
109
I didn't talk with Mrs. Stites.
Yes, ma'am.
incident, who was it that reported to you?
I believe it was Sergeant Barton.
Sergeant Barton?
Stites say was missing from the truck?
I don't recall.
Do you recall if Mrs. Stites said anything was
missing from the truck?
I recall that she had told him about the keys.
And since you have recall of this
You directed or had someone to do
And what, if you can recall, did Ms.Okay.
All right.
it. What I'm asking you is to show the first
three pages who it was that you directed or
who reported back to you?
No, ma'am, they had already spoken with her.
Where do you indicate that in your report,
Sergeant?
I recall that.
So that -- what you're saying is it's not in
your report; is that right?
That's correct.
It's not in this detailed report?
That's correct.
I know.
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110
And when you say "the keys," what keys are you
speaking of?
The keys to the truck.
And Mrs. stites told it's your rendition
that Ms. Stites told Sergeant Barton that the
keys to the truck were missing?
She was talking about the number of keys that
were on the key ring.
And on the key ring, were her Tempo car keys
on it?
No, ma'am.
So this testimony you have just given us, what
you're saying is that the keychain that Stacey
Stites had was missing and Mrs. Stites told
that to Sergeant Barton?
She told him how many keys were on that key
ring.
And do you do you recall if she told Sergeant
Barton any other things that were missing from
the truck?
I don't recall anything.
Do you recall whether or not Mrs. Stites -- do
you recall whether or not Mrs. Stites ever saw
the truck on April the 23rd?
Not to my knowledge.
111
report does it say that Jimmy Fennell stated
what in the truck was his and what was
Stacey's?
Jimmy Fennell had viewed the truck prior to my
arrival.
your report does it state that Jimmy Fennell
stated what was his and what was Stacey's?
That would not be in my report.
'That was not reported back to you?
It was later, yes, ma'am.
Do you recall whether or not Mrs. stites ever
saw the truck from April 23rd to April 27th -
28th, when it was released?
Not that I recall.
Do you recall whether or not the contents, any
of the contents of the truck were ever taken
to Mrs. stites or she viewed them to determine
whether or not they were stacey's?
Not that I recall.
Do you recall whether or not Jimmy Fennell was
asked to determine what was in the truck what
was Stacey's and what was his?
Yes, ma'am.
Where in
And, Sergeant, where in yourGood.
And my question to you is:Right.
You do?
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112
But it was a detail that you that you omitted
from your report?
I didn't participate in it, no.
It was detail that you omitted from your
report?
Yes.
Now, what I am showing you, from State's photo
enlargement number 67, these items, this
picture was taken at the crime lab there at
the DPS compound, was it not, complex?
That's correct.
Okay. Some of these items in this picture -
some of the items that were found in the car
were individually photographed were they not?
I believe that's correct.
Did you not, as the lead investigator in this
case make sure that all evidence was
categorized? Did you not ask your tool, your
skillful people at the DPS lab to photograph
all the contents of the truck?
I don't recall specifically asking them that,
no.
And this was the early days of the offense,
wasn't it?
That's correct.
113
a reason that the clothes may have been--
In fact, this picture was probably taken
within 72 hours of finding the car, correct?
Correct.
get that?
(BY MS. CLAY-JACKSON) a reason why the
clothes may have been jumbled is that by the
time this particular pickup got to the DPS
lab, it had been towed, twice, isn't that
time'truly to solve a crime is in the first
couple of hours of the crime; isn't that
correct?
Sure.
Because the clues are the hottest, right?
Right.
And as time goes by clues get colder, right,
and you forget where things were, correct?
Correct.
And one of the things in this particular
State's 67 shows is that the clothes were all
jumbled; isn't that right?
That's correct.
Did youMS. CLAY-JACKSON:
is it not a fact that the best
And the reason that the clothesAll right.
And in order
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114
correct?
That's correct.
And it was towed not on a flat-bed but by the
sling. Are you familiar with how it was
towed?
No, ma ' am, I' m not.
If I told you it was not towed on a flat-bed
with it flat but on the sling with it slanted,
you cannot dispute that, right?
No, I cannot.
But you do know, in fact, that it had been
towed twice, correct?
Yes, ma'am.
And that, in fact, the vehicle -- the truck
was never opened at the school, correct?
I don't believe so, no.
Because Jimmy Fennell had the keys, right?
That's correct.
And Jimmy Fennell did not give the keys to Ed
Selmala until they got to the Bastrop County
wrecking yard, correct?
That's my understanding yes.
Okay. And you have no reason to dispute your
understanding, do you?
No, ma'am.
115
Okay. Jimmy Fennell gave the keys to Ed
Selmala at the wrecker yard and they go
through the contents of the pickup, and that's
what was reported to you; is that correct?
That's correct.
And everything that is reported missing or out
of place is reported by Jimmy Fennell, isn't
that correct?
Or our observations.
Well, Sergeant, would you be able to tell from
a car that you have never been into what was
missing?
Well, I would certainly think a green piece of
glass which was in the seat would seem to be
out of place.
Most assuredly, but if you had never been in
that car before, you would not have know that,
would you?
No.
Okay. So as I said, everything that was
reported as being missing or out of place was
reported by Jimmy Fennell, wasn't it?
As I said, or from our observation.
Let's talk about your observation, because you
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want to go there. State's 64. The pickup was
116
fastened.
A. No.
Q. Yeah?
at the DPS lab, correct?
We don't
I object to
I don't know
She brought it and
MS. TANNER:
MS. TANNER:
Your observation shows what --
What else?Okay.
has not been placed into evidence.
that's improper.
All right.
know where it came from.
whatever this demonstration may be
demonstrating.
shows you what about this pickup?
counsel displaying some item to the jury that
what this is, but I'm going to object to
A. I don't see anything else, obviously.
A. -- which appears out of place to me.
Q. Right.
Q. What else is missing?
Q. You don't see anything else obviously?
Q.
A. Correct.
A. The driver seat is reclined with the seatbelt
Q. Okay. (Demonstration.).
Q.
A. A green piece of glass which is in the seat --
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117
Sergeant, where in your report you talk about
A glass in the door pocket appears out of
place.
Or does it appear to be placed?
Either way, it appears out of place.
You don't want shards of glass or cut plastic
you not put them in an empty map holder?
I wouldn't, personally, no, ma'am.
And would you not find it in your observation,
what was out of place, is the fact that there
were no other green shards of glass found
anywhere in that pickup truck?
Yes, ma'am, I agree that was out of place.
Pretty significant out of place, correct?
all throughout your vehicle, car, cab. Would
It appeared
Overruled.
Sergeant, what else is
State's 65.
THE COURT:
Now, could you please tell us,All right.
Yes, ma'am.
Okay, Sergeant.
You had one piece of glass?
Your question was out of place.
out of place.
(BY MS. CLAY-JACKSON)
missing?
I don't know that anything is missing.
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118
the fact that the green glass, the lack of
green shards is something that you needed to
follow up on?
I don't know that the lack of it would be in
my report.
Well, the lack of it was significant because
it's not there, correct?
Correct.
green glass looked as if it was one of the
glasses that stacey would drink from in the
morning, correct?
That's correct.
He may not have told you but he told someone
who reported it to you?
That's correct.
And that was important enough for you to put
into your report, wasn't it Sergeant?
That's correct.
The and you have already testified that you
did not direct, as a lead investigator and who
had the skills of the DPS lab at his disposal,
No, ma'am.
All right.
it?
And that is not in your report, is
And Jimmy Fennell told you that theOkay.
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119
you did not direct the lab to photograph every
item in the back of the truck; is that correct
in the back of the cab?
No, ma'am, I directed them to process the
vehicle.
Okay. The question was, you didn't direct
them to photograph the contents of the back of
the cab, correct?
That's correct.
All right. Neither did you ask them to
photograph in State's 105, individually the
items in the back of the pickup, in the bed of
the truck did you?
No, ma'am.
Okay. They spread them out and they just sort
of photographed them out not individually but
as a glump, right?
As far as I know, yes, ma'am.
Now, Jimmy Fennell was a person that you-all
Mirandized on the 23rd, correct?
I believe that's correct, yes, ma'am.
And again, you didn't go and search his home,
or you didn't ask to search his home?
No, ma'am.
And even though he was a police officer, you
120
was a seasoned police officer?
No, ma'am, not at all.
and your other two investigators, main
investigators in this particular case, had
much more experience than he, correct?
In years, then, correct?
Correct.
You knew he was a rookie police officer,
correct?
I didn't know how long he had worked, no,
experience that you have, you would probably
understand more of what a clue is than someone
who's a rookie?
More of what a
More of what a clue could mean, what evidence
could mean?
Possibly, yes.
Because of your experience?
True.
And the education that you have?
Correct.
I don't know exactly his.
And would you not agree that having the
Did he give you the appearance that he
Okay.
Okay.
ma'am.
I would yes.
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THE COURT: I'll overrule the
After a conversation with Mike Carmack?
No, ma'am.
No, ma'am.
Your Honor, I'mMS. TANNER:
We will never know whether or not
And you would agree with me there was a reason
to search after October, correct?
I disagree.
Did you not have information to lead you to
believe that you needed to look at Jimmy
Fennell a little closer after October?
objection.
going object to that line of questioning.
It's irrelevant. It's based on hearsay. It's
improper.
All right.
there was any evidence in Jimmy Fennell's
home, will we?
I don't know that there would be any evidence
there.
That's right, because you never searched,
right?
That's correct.
All right. And you didn't even search after
October, did you?
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I never had a conversation with -- I'm sorry,
whoever you said.
Mike Carmack?
No, ma'am.
Did you have a conversation with Lieutenant
Campos in October concerning Jimmy Fennell?
Yes, ma'am.
8 Q. All right. And you did not get the impression
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from Lieutenant Campos that Jimmy Fennell
needed to be looked at a little bit closer?
11 MS. TANNER: Object as to
12 any impression he may have gotten from another
13 witness. It would be based on hearsay as well
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as speculative.
You may answer.
THE COURT: It's overruled.
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A. Not anymore so than we had already believed
him as a suspect.
19 Q. (BY MS. CLAY-JACKSON) And you believed him
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well enough not to check out anything that he
told you, correct?
Believed who.
Jimmy Fennell?
We checked out what he told us.
You didn't go to his home?
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No, ma'am, I had no probable cause.
You didn't ask him to go to his home?
I didn't have a reasonable suspicion.
Okay, Sergeant.
After December, when you had heard
the same thing twice, once in October and then
in December, you did not do anything different
with Jimmy Fennell, did you?
No, ma'am.
Your investigation led you to discover that
safety was something, highway safety, was
something that Stacey Stites practiced,
correct?
We made that assumption.
Okay. You made that assumption based on your
investigation, correct?
Right.
When you discovered that the gas gauge in the
pickup was between an eighth and a fourth
empty, what did your investigation lead you to
believe at that point?
I don't understand the question.
You had discovered that Stacey Stites traveled
Highway 21 for the most part, in the wee hours
of the morning, correct?
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That's correct.
Now, having a gas gauge almost empty, with a
fiancee who was a police officer, what did
that tell you about stacey Stites what did
that tell you in your investigation?
I don't recall it telling me anything.
Okay. Stacey Stites did not have a cell
phone, correct?
Not to my knowledge, no.
Did Jimmy Fennell say she had one?
No, ma'am, I don't recall that.
Did Carol Stites say that she had one?
I don't recall that she did.
Did you contact any of the cell phone
distributors in the area to see whether or not
she had an account?
No, I don't believe so.
And the reason you didn't was because she
didn't have one, correct?
We never found that she did, no, ma'am.
Did anyone ever tell you that she did,
Sergeant?
No, ma'am.
All right. Would you not say that it is
extremely important that when people are
125
trying to describe another, physical
descriptions are important, right?
That's true.
putting physical descriptions of almost
everyone you speak to; isn't that correct?
Yes, ma'am.
The question I have for you Sergeant is: Do
you make your description, do you write your
description from your observation or from some
information that is given to you?
From both.
I'm specifically talking about at the end of
each one of your chronological sequences you
always list who's been in your report and who
you talked to and their addresses and
everything, very logical, very methodical,
right?
Right.
When you do list the people in the back,
especially those people who you have spoken
to, specifically, those people who you have
spoken to, are those physical descriptions the
ones that you have perceived, or are they
taken from something else?
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Okay. And in your report you make note of
Perhaps
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126
Like I said, they are from both.
Okay. Well, I want to call your attention
please, to paragraph 84 -- page 19 of your
report. I think because our reports are a
little -- the pages are skewed, let's look at
paragraph 84. Those are in sequence, are they
not?
Yes, ma'am.
Why don't you go to 84. And actually what I
want to call your attention to is the
description of Jimmy Fennell as you have
outlined here, and this is made after you had
an opportunity to talk to Jimmy Fennell,
correct?
That's correct.
Sergeant, could you please tell me where you
have the fact that he's 6'1"?
I don't recall where I got that.
But you know, obviously, that is not true,
right?
That's correct.
Okay. The other part may be true?
he's 230?
Perhaps, I don't know.
Okay. So as you have stated, the physical
127
may want to refer to your paragraph 146?
He picked it up, brought it back to the
sheriff's office.
Sergeant, whatever became of the photograph
that you directed Lieutenant Campos to get at
descriptions aren't necessarily always
accurate in your report?
Possibly not, no, ma'am.
Because in this particular case they aren't,
correct?
On this particular individual.
And he was -- at this point he was still a
suspect, correct?
That's correct.
It pertained to
What became of that
And to refresh you memory, you
You directed Lieutenant Campos to
Could you please tell the jury,
What became of it?
And where was that listed on the
And your question?
Okay.
evidence?
I don't recall that it was.
another case.
Did it not say "the victim"?
get it.
Okay.
photograph?
My question is the same:
PHI -- at PHI.
All right.
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128
That's correct.
The victim in this particular case?
That's correct.
Okay. So you never saw the picture of Stacey
Stites, is that correct?
No, ma'am.
Do you recall Lieutenant Campos telling you
that he picked it up and he placed it in
evidence?
I recall that he said he went there.
It wasn't a picture you thought you should go
over and have the skills of the DPS lab used
on it, correct?
I don't know what he told me about that. You
may have to refer back to him.
It was important enough for you to put into
your report but not important enough to follow
through with it?
It was important enough to put in the report,
yes, ma'am.
But you didn't follow through with it?
I don't believe the results of it were of
particular interest.
But we will never know that, right?
I know that.
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129
It's not in your report?
Yes, ma'am, that's why it's not in there.
When -- in May of -- May 10th of 1996, the DPS
lab told you that Jimmy Fennell's DNA wasn't a
match, did you still consider him a suspect in
the case?
Yes, ma'am.
And when Mary Ann Arldt's body was found and
the similarities that you have noted were
detected, the similarities between the two
murders were detected, and you noted them, was
Jimmy Fennell still a suspect in the stacey
Stites case?
Yes, ma'am.
Would it be a fair thing to say that for every
boyfriend, every suspect that you-all took
blood samples, hair samples and saliva samples
from that independent determinations were made
of their whereabouts on April the 23rd and
22nd?
We attempted to, yes, ma'am.
When you say "you attempted to," who in your
report were you unable to find to verify their
whereabouts on the 22nd and 23rd?
I don't recall, specifically.
130
MS. TANNER: Objection.
That answer, I mean, she is asking what the
information was, and that is not proper.
going to object to any sources .that may have
given him information as that is necessarily
based on hearsay and, therefore, improper.
THE COURT: It's overruled.
Go ahead.
(BY MS. CLAY-JACKSON) You were given
information from two sources, independent
sources about Jimmy Fennell, were you not?
That's correct.
And the information that you were given from
those two independent sources, was identical,
was it not --
After having the services of the scientists
and technicians at DPS lab, and after other
indepenaent investigations, other independent
investigations went through their process, you
were given information concerning Jimmy
Fennell that was identical, weren't you, from
two different sources, were you not?
I'm sorry, I don't understand your question.
From two sources you were given information --
Your Honor, I'mMS. TANNER:
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MS. TANNER: Yes, Your
THE COURT: It's a hearsay
objection?
that you were given from these two independent
sources, what efforts did you take to verify
their conclusions after December of 1996?
I'm not sure what you're asking.
From the information that you received from
two independent sources, the last source being
received by you in December of 1996, about
Jimmy Fennell --
What was the
It's sustained.
From the information
THE COURT:
THE COURT:
date, again?
(BY MS. CLAY-JACKSON) I'm sorry, the last
information being given you December of 1996,
what steps did you take to verify that
information concerning Jimmy Fennell?
I don't recall other than going through the
information that we already had.
So no further efforts were made; is that what
you're saying?
No, ma'am, that's not what I said.
Honor.
(BY MS. CLAY-JACKSON)
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132
What you said was you don't recall doing
anything other than going through what you
already had?
Right, we reviewed the stuff that we had
already gathered.
And everything that you had gotten about Jimmy
Fennell had come from Jimmy Fennell, right?
No, ma'am.
You talked to other people about Jimmy
Fennell?
Yes, ma'am.
You spoke with some of the -- you spoke with
some of his friends; is that correct?
Yes, ma'am.
And you spoke with some of his friends about
his relationship with Stacey; is that correct?
That's correct.
One of his friends was involved in the first
part of the investigation; isn't that correct?
If you could be more specific.
Was Ed Selmala involved in the beginning of
the investigation?
Yes, sir, he was.
And you determined that Ed Selmala and Jimmy
Fennell were friends, did you not?
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133
No, ma'am.
You never determined that?
No, ma'am.
Not throughout any of your investigation?
No, ma'am.
Did your investigation reveal that they knew
each other on more than law officer level,
professional level?
No, ma'am.
Did you ever look into that relationship?
Yes, ma'am.
And you looked into that relationship upon the
untimely death of Mr. Selmala, did you not?
No, ma'am.
Did you go back upon the untimely death of Mr.
Selmala did you not discover that there
was, in fact, a relationship between Jimmy
Fennell and Ed Selmala?
No, ma'am.
Not a friendship between them?
Not that I recall, no.
Not an acquaintance between them?
Not that I'm aware of.
And you were instrumental also in the
investigation of Ed Selmala's death; isn't
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134
that correct?
That's correct.
And in that investigation it led you to talk
with his estranged girlfriend; is that right?
That's correct.
Did it also lead you to talk to a
psychologist?
No, ma'am.
But it did lead you -- your investigation into
Ed Selmala's death did lead you into asking
the medical examiner for a sample of his
blood; isn't that correct?
No, ma'am.
Who did you ask for a sample of Ed Selmala's
blood?
I didn't ask anyone specifically for a sample
of his blood.
You obtained a sample of his blood, correct?
That's correct.
Your investigation also into stacey Stites's
death, your investigation revealed that a
resident of the 1441 area brought two condoms
to the sheriff's station, isn't that correct?
I don't recall how they got there.
But it does reveal that two condoms from that
135
No, ma'am.
It's your testimony that you spoke to David
Lawhon, isn't that correct?
I'm sorry, I didn't understand the question.
During the course of the investigation of
Stacey Stites's murder, you spoke to David
Lawhon, correct?
That's correct.
And David Lawhon denied knowing Stacey Stites?
That's correct.
area were brought to the Sheriff's Department,
correct?
They were brought there by someone, I don't
know who.
You did not, as the lead investigator, send
anyone out to talk to those people who brought
in the condom?
I believe Deputy Scoggins talked with them.
And do you believe Deputy Scoggins reported
back to you his results?
I don't recall.
And that information is not in your report
either?
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witness.
MS. CLAY-JACKSON: Pass the
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136
REDIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. Sergeant Wardlow, I have several questions for
you.
with regard to Jimmy Fennell, you
have told the jury some time ago when you
testified the first time, that frequently
Rangers have to investigate sort of sensitive
cases, correct?
A. That's correct.
Q. Consequently, do you have occasion to
investigate law enforcement officers?
A. Yes, ma'am, we do.
Q. And when you're investigating a law
enforcement officer for a case, do you think
you're more flippant about clearing them or
would you be more careful about before you
decided to clear them for a criminal offense?
A. We would be more careful.
Q. Okay. And Ms. Clay-Jackson asked you if you
attempted to verify any of the information
that you had gotten about Jimmy. Did you
through the course of your investigation, all
the way through December try to figure out a
way that he could have committed this offense?
137
1 A. Yes, ma'am.
2 Q. And how did you do that? What sort of steps
3 did you take to try and give him a means
4 whereby he could have done this?
5 A. We reviewed taxicab records. I went to the
6 Giddings Police Department and reviewed
7 . vehicle mileage for all the police department
8 vehicles, that sort of thing.
9 Q. Were there any of the mileage logged on any of
10 the Giddings Police Department vehicles that
11 were amiss or looked like they had been
12 jimmied with at all?
13 A. No, ma'am, nothing.
14 Q. Were there any taxicab fares from Giddings for
15 that relevant period of time?
16 A. No, ma'am.
17 Q. Did you check bus stations?
18 A. We checked everything we could possibly think
19 of.
20 Q. And was that an ongoing procedure throughout
21 the course of this investigation trying to
22 figure out some way he could have p~ysically
23 done it?
24 A. Yes, ma'am.
25 Q. By the way, did Jimmy Fennell to your
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138
knowledge ever work at the Bastrop Police
Department?
No, ma'am.
Okay. And what time was it, approximately,
that you initially got involved in this case
on the morning of the 23rd? Do you recall?
It was somewhere around 10:00 a.m., I believe.
And had steps been taken before you got there?
Yes, ma'am, they had.
Okay. Now, when you are in an investigation,
particularly one of this magnitude, are there
more than two or three officers that are
working on the case?
Yes, ma'am.
And through the course of the investigation,
is it possible to run down a lead and have it
be kind of a dry run?
Certainly.
And do you make sure and put in your report
every single dry run that every other officer
has gotten?
No, ma'am.
Okay. How big do you think your report would
be if you did that?
MS. CLAY-JACKSON:
139
Objection, Your Honor, bolstering.
Certainly.
And if I was the sole owner of the car, do you
think anyone else would know?
had broken into my car and gone through my
stuff and taken some of my stuff, if you were
the investigator, who would you ask about what
was missing?
The people closest to you.
I said,
He's the one
Pardon me?
I'll overrule
MS. TANNER:
THE COURT:
Do you think your report
Would you ask me?
And if I left here today and someone
Okay.
MS. CLAY-JACKSON:
Objection, Your Honor, bolstering.
Okay.
writing it.
would be huge if you did that?
Much, much larger than this one.
Okay. Was Jimmy hesitant at all to give you
guys his set of the keys to the truck so they
could get in there and see what was amiss?
I wasn't there.
it. Go ahead.
(BY MS. TANNER)
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140
No, ma'am, I wouldn't think so.
And if I was the sole owner of the car, would
you call my mom and ask her if she knew what
was missing from my car today?
No, ma'am.
Okay. And Ms. Clay-Jackson asked you whether
or not you directed the DPS lab to photograph
each piece of evidence, and you indicated that
you asked them to process the truck?
That's correct.
And to your knowledge when you ask them to
process the truck, do they know what they are
doing?
Yes, ma'am.
Do you let them do their job?
Yes, ma'am, I do.
Do they tell you how you do your job?
No, ma'am.
MS. TANNER: May I approach?
THE COURT: Yes.
(BY MS. TANNER) I show you what Ms.
Clay-Jackson showed you, number 105, and you
indicated that you did not ask them to take
individual pictures of each of these items
that were in the back of the truck, correct?
141
Yes, ma'am.
And were they all able to recall with absolute
clarity what they had been doing that night as
opposed to any other night in those months?
No, ma'am.
of the suspects, you made attempts to
determine their whereabouts; correct?
That's correct.
Now, some of those suspect when you made
attempts to determine there whereabouts, did
you ask them that several months after April
the 23rd of 1996?
That's correct.
The DPS lab, however, did see this piece of
rope as well as the large brown piece of rope
and smaller blue piece of rope; is that
correct?
That's correct.
Did y'all have any evidence at all through the
course of this case that softballs and cleats
and athletic equipment such as that catcher's
mask had anything to do with this case?
No, ma'am, not at all.
That is pretty normal, isn't it?
You indicated that with regard to each
Okay.
Okay.
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142
Yes, ma'am.
And with regard to try~ng to verify someone's
whereabouts, if they tell you, "I was at home
in bed alone asleep all night," do you have
any means whereby really you can verify that
one way or the other?
No, ma'am, not at all.
with regard to the condoms that Ms.
Clay-Jackson asked you about that were taken
into evidence, those appeared to be old and
cracked and worn out, did they not?
Yes, ma'am, they did.
They appeared to have been out in the woods
for some time when they showed up?
Yes, ma'am, they did.
And with regard to the blue truck that you-all
took to the lab and had processed on May 30th
of 1996, that was David Lawhon's work truck,
was it not?
I'm sorry, what are you referring to.
The Charles King truck, that was the truck
that David Lawhon and Charles King sort of
shared for work, right?
I believe that's correct.
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Q. Okay. Nothing was gotten out of that truck,
143
A. No, ma'am.
right?
Q. The photo of Stacey Stites that Ms.
Clay-Jackson was asking you about that was
simply a small wallet-sized graduation photo,
right?
A. I believe that is correct.
Q. And without going into what was done, did
Lieutenant Campos check into that and see if
he could tie that in any way to this case?
A. Yes, ma'am, he did.
questions.
FURTHER RECROSS EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
Q. Now, when Ms. Tanner asked the question you
what you Lieutenant Campos did, you were able
to answer her, but when I asked you what did
you do with the photograph, you said you
didn't know?
A. I still don't know.
Q. When did you view the condoms that were
brought in,. Sergeant?
A. I don't recall the specific date.
Q. Do you recall, Sergeant, whether it was close
No furtherMS. TANNER:
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144
in time where they were brought in or do you
recall whether it was just recently you viewed
them?
It was shortly after they were brought in.
When you said that you tried to verify or
create a hypothesis as to how Jimmy Fennell
could go from Giddings to Bastrop and then
back to Giddings again, you would agree with
me, would you not, that the trip from Giddings
to Bastrop is actually a short trip, correct?
It would depend on what one considered a short
trip.
You can get to Giddings from Bastrop or
Giddings to Bastrop within 40 minutes, can you
not?
Yes, ma'am.
Okay. And it was Jimmy Fennell who relayed to
the investigating -- your investigating team,
the time that said that he last saw stacey
Stites, correct?
That's correct.
So the timeframe was primarily based on what
Jimmy Fennell said, correct?
What timeframe?
The timeframe of when Stacey Stites was last
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FURTHER REDIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
Q. It was also based in large part on her work
schedule at HEB, was it not?
A. That is also correct.
Q. And did Jimmy have anything to do with her
work schedule at HEB?
No
No further
sir.
questions
Not to my knowledge, no.
MS. TANNER:
MS. CLAY-JACKSON:
further questions.
in Giddings?
That's correct.
FURTHER RECROSS EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
Q. Stacey Stites did not have to be at work until
3:30; isn't that correct?
A. I believe it was 3:00 or 3:30.
MS. CLAY-JACKSON: No
further questions.
THE COURT: That will be all,
Let's take an afternoon break, about 10
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146
or 15 minutes.
(At this time a recess was
taken.)
(Whereupon the Jury returned
to the courtroom and the
following proceedings were
had in open Court.)
jury, I'm going to send you home today and ask
you to come back not tomorrow morning but
Thursday morning at 9:00 o'clock. Don't
concern yourself with the reasons for these
delays. I want to admonish you and remind you
again of that admonishment I've given to you
earlier, and that is, I don't want you, as a
juror, to receive any information about this
case outside of this courtroom, so especially
be mindful and do not read anything about it
in the newspapers, don't watch it on the
newscast or even just television news or
listen to the report that's on the radio.
It's awfully important that you obey those
Members of theTHE COURT:
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instructions as well as all the others I have
given to you.
Please go home and come back not
tomorrow morning but Thursday morning at 9:00
Do you have another witness for me?
Thank you very much.
(Whereupon the Jury was
escorted from the courtroom
and the following proceedings
were had outside the presence
and hearing of the jury.)
Yes, we
Okay, you may
Please be
MS. CLAY-JACKSON:
THE COURT:
THE COURT:
o'clock.
proceed, ma'am.
seated.
do, Pat Carmack.
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3 and testified upon his oath as follows:
II
I.
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PAT CARMACK, the witness, after having
first been duly sworn, assumed the witness stand
4
5 DIRECT EXAMINATION
6 QUESTIONS BY MS. CLAY-JACKSON:
It .-
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Q.
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State your full name spelling your last.
Pat Carmack, C-a-r-m-a-c-k.
Mr. Carmack, how are you employed?
Adult probation officer in Bastrop County.
How long have you been -- are you a resident
of Bastrop County?
Yes, ma'am.
In your duties as a probation officer, in your
responsibilities with the Bastrop County adult
supervision -- is it adult supervision?
Yes, ma'am.
Do you hold a special license?
I hold a polygraph license, but I had that
long before I was a probation officer.
Would you please tell the Court, what is your
educational background?
I have a Bachelor of Arts degree that I
received in 1972, and then went to polygraph
25 school at Texas A & M. That's pretty much
149
I was practicing
Yes, ma'am.
County have you had occasion for the County to
utilize your services as a polygraph examiner?
it. And I speak a little Spanish.
And you said you hold a license in polygraph?
I got my
Could you give the Court some idea of what
type of situation Bastrop County has utilized
your services?
I have done criminal testing for the Bastrop
County sheriff's office, from time to time; I
have done sex offender testing for the
probation department sex offender case load.
And in the -- internal affairs for the Bastrop
County sheriff's office -- in your duties with
the sex offender program, is that people that
have been convicted or placed on probation for
sex offenses and come in on a periodic basis
to be polygraphed, or given a polygraph test?
license, actually, in '74.
as an intern in '73.
Since you have been in the employ of Bastrop
Since nineteen seventy-three.
Yes, ma'am.
And you have been a polygraph examiner for how
long?
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In some years ago, ---- well, the regular
basis part never developed, it's pretty much a
one-time thing.
You say that Bastrop County has utilized your
service at the sheriff's department?
Yes, ma'am.
I would like for you to think back in October
of 1996, and specifically think back with
regard to a Jimmy Fennell. Were your services
utilized by Bastrop County in connection with
Jimmy Fennell in October of 1996?
I'm not certain of the date but, yes, ma'am.
You did in fact have -- conduct a polygraph
exam request with Jimmy Fennell; is that
right?
Yes, ma'am.
And would you please explain to the Court how
you go about starting a polygraph exam? What
do you need to start a polygraph exam?
The basic information of a case, of course.
And where did you receive that information?
From the investigative office, the sheriff's
office or whatever it might be.
And this information, do you recall if it was
Lieutenant Campos that gave you the
Yes, ma'am.
Campos or John Barton, I'm not sure which
one. It may have been both of them.
And when you get that information what then do
you do?
Formulate the questions formulate questions
to cover what is needed to be found out.
And to the best of your recollection did you
do that in the case of Jimmy Fennell?
After you formulate the questions then what do
you do?
The question formulation is actually done
during the pretesting with the individual, so
this is once the testing is in progress. You
get a general idea and then during the
pretesting interview you actually formulate
the questions and reveal that with the person
being tested.
When you say the pretesting interview, would
you explain how that works?
Yes, ma'am. Most people are unfamiliar with
the polygraph, so during this period, much
like you do now, I would go over the name,
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information?
I don't recall. It would have been David
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driver's license number, age, just general
information, talk about the subject matter to
be covered, get a release form signed. This
type of thing. And at that time the questions
are formulated.
And with Jimmy Fennell, to the best of
recollection, this procedure did not vary; is
that right?
And after the pretesting interview then what
happens?
Formulation of the questions, and I review the
questions with the person and then make sure
there are no ambiguities so that the person
can answer the questions yes or no without
reservation. This is done prior to the person
being hooked up to the polygraph.
So the person you're going to interview ask
the questions of, they have already heard
those questions before they are hooked up to
the machine; is that correct?
Every single one, yes, ma'am.
As part of the preliminary procedure, do you
make a note of the person's demeanor when
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No, ma'am.
ma'am.
Same procedure I always use, yes,
It's
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153
you're going through and formulating of the
questions and asking the questions before they
are hooked up to the machine?
Their demeanor, no, ma'am.
What do you make a note of before they are
hooked up to the polygraph machine?
Any statement that the person makes, that
person's side of the story, what happened.
Anything that t~e person says, basically.
Anything of importance.
Do you make a note whether or not the person
seems to be nervous, or overly nervous. You
say people seem to be nervous about this, do
you make a note if they are overly nervous or
are anxious?
No, ma'am, if
If what, I'm sorry, I couldn't hear you.
hard to hear in here.
If I thought a person was overly nervous then
I would not test that person.
And, after they are connected with the
instrument then you proceed to run the test,
is that correct, or run the examination; is
that correct?
That's correct.
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And after the examination then what
transpired, Mr. Carmack?
Once the questions are asked, several times, I
make two or three charts -- and I believe in
this circumstance -- if there are questionable
responses those responses are reviewed with
the individual to see if there is an
explanation for any questionable responses or
any deceptive responses of that type, and I go
over the explanations with him.
And you conducted the exam in the same-- you
did not deviate from your normal procedure
with Jimmy Fennell, did you?
Yes, ma'am, I use a different procedure now
than I did at this time, but that is the
procedure I was using at that time.
And you use a different procedure because the
science is still an evolving science; is that
correct?
That's correct. I continue to go to education
classes and try to update it.
And when you completed your examination of
Jimmy Fennell and you completed your
evaluation of the instrument's results, you
were able to form an opinion; is that correct?
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That is correct.
And you formed an opinion in this particular
case, did you not?
Yes, ma'am, I did.
And what was that opinion?
It was deceptive, to the best of my
recollection.
You relayed that opinion to the officer who
brought him over; is that correct?
That's correct, I believe
And you can't remember -- go on.
I believe the officer was still there and I
relayed both the results and the explanation.
I believe the explanation is part of the
report.
You said that he was deceptive when asked the
question, "did you strangle Stacey Stites?"
That's correct.
And he was deceptive in, "did you strike
Stacey Stites?" "Did you hit Stacey Stites?"
I do not recall that. I do recall an
explanation for the response. I conducted one
more chart to see if that explanation would
remove questionable responses and it did not.
So that reconfirmed your first interpretation
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that it was deceptive?
Yes, ma'am.
There are, from my understanding, categories
of the results that you get from the
instrument, either there is no deception, it
is inconclusive or it's deceptive; is that
correct?
Yes, ma'am.
And deception means the person lied, or that
there is a good possibility that the person
lied?
That the person is indicative of that or there
could be
It's a good possibility, isn't it?
-- there is a possibility, yes, ma'am.
Has it been your experience that when you have
given information to law enforcement when they
have brought you subjects to examine, and the
information that you have given them, that the
subject shows deception, that they follow
through with other investigations?
I would think so, sometimes, but I don't
know. My role is done at that point. In
cases like this I may be asked for retesting,
by someone else, to see if they come out the
157
CROSS EXAMINATION
QUESTIONS BY MS. TANNER:
Yes, ma'am.
ask him a few questions for purposes of the
read record. Just very, very briefly.
same, or the same conclusions, and I believe I
did that, I'm not sure.
MS. CLAY-JACKSON: No
further questions.
I would like toMS. TANNER:
And the idea for that is to measure whether
the person essentially has a guilty
conscience, correct?
The idea behind the theory of polygraph -
The theory being that --
-- would be a guilty person would respond to
relevant questions as to where an innocent
My understanding of polygraph, and correct me
if I'm wrong, is that they measure varies
physiological changes in your body as a result
of you asking them the question, right?
Yes, ma'am.
Okay. I mean, heart rate, blood pressure and
things like that?
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158
person would respond to questions ina
different way --
And if you have a guilty conscience as to a
particular question then you're expected to
have those kind of --
Yes, ma'am.
Okay. Let me ask you this, supposing a person
didn't do an offense but could have done
something to prevent it from happening, but
didn't, can you see where that person may have
a guilty conscience about it?
Yes, ma'am.
And can you see where, consequently that may
cause them to react when you ask this them
questions about that offense?
Yes, ma'am.
Okay. And with regard to the explanation that
Jimmy gave you, he told you that every time
you asked him that question all he could see
was Stacey lying in her casket, right?
Yes, ma'am.
And are you aware that several other suspects
in this case took polygraphs and they all
failed them too?
No, ma'am, I wasn't aware of that.
159
Q. I'm sorry, I'm confused I guess.
A. Okay.
Q. I thought you said that
A. Yes, ma'am, I conducted two charts, there was
Q. If that were true and only one person
committed it, then that would tell you there
is a little problem with the reliability,
right?
REDIRECT EXAMINATION
QUESTIONS BY MS. CLAY-JACKSON:
Q. Mr. Carmack, you said that you were aware of
Jimmy Fennell's explanation was as to why he
showed deception on the exam; is that correct?
A. I was aware of his explanation, yes, ma'am, he
told me and I wrote it down.
Q. Okay. And is that one of the reasons why you
retested him again?
A. I didn't retest him again.
Q. I'm sorry, not retest, but did you use that to
ask him further questions?
A. I--
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A. Yes, ma'am.
questions.
MS. TANNER: No further
160
sustain the objection and not let the jury
hear this testimony.
Are we through with this gentleman?
Honor, we have the same objections as before.
It's absolutely inadmissible, it's unreliable
and the Supreme Court of the United States
has said so.
comments for the record?
MS. CLAY-JACKSON: Again,
Judge, our same response, the Fifth Circuit
says it's okay.
some questionable or deceptive responses and I
questioned him about these and tested again to
verify and see if they were still the same.
MS. CLAY-JACKSON: No
further questions. That's my proffer.
THE COURT: Does the State
have any objections to this testimony?
Yes, sir,
Of course, Your
That will be all,
I'm going to
Do you have any
MS. CLAY-JACKSON:
THE COURT:
THE COURT:
MS. TANNER:
THE COURT:
sir, thank you very much.
we are.
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161
1998. )
morning at 9:00 o'clock.
(Whereupon the witness was
excused from the stand~)
(At this time a recess was
taken until Thursday morning
at nine o'clock, May 14,
Mr.
Nothing
That's not
Yes.
Do you have
MS. TANNER:
else today, Judge.
MS. TANNER: Can we take up
the matter with Rocky today, so that we're not
in another hearing.
THE COURT: Is that going to
MS. CLAY-JACKSON:
be an issue?
THE COURT:
anything else today?
MS. CLAY-JACKSON:
Barton's statement?
MS. CLAY-JACKSON:
going to be an issue.
MS. TANNER: Okay.
THE COURT: Okay. Thursday
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162
STATE OF TEXAS
COUNTY OF BASTROP
I, Carolee Murray, Official Court
Reporter in and for the 21st Judicial District
Court of Bastrop County, State of Texas, and Notary
Public for the State of Texas, do hereby certify
that the above and foregoing contains a true and
correct transcription of all the proceedings (of
all proceedings directed by counsel to be included
in the Statement of Facts, as the case may be), in
the above styled and numbered cause, all of which
occurred in open Court or in chambers and were
reported by me.
I further certify that this
transcription of the record of the proceedings
truly and correctly reflects the exhibits, if any,
offered by the respective parties.
WITNESS my hand this the 16th day of
August, 1998.
Carolee MurrayOfficial Court Reporter335th Judicial DistrictCertification No. 1938Expiration Date 12-31-98P.O. Box 2441Brenham, Texas 77834(409) 277-0707
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