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1 2 CAUSE NO. 8701 1 3 4 5 6 7 8 9 10 11 THE STATE OF TEXAS VS. RODNEY REED X X X X X IN THE DISTRICT COURT OF BASTROP COUNTY, TEXAS 21ST JUDICIAL DISTRICT 12 13 14 15 16 17 18 19 20 21 REPORTER'S RECORD JURY TRIAL GUILT/INNOCENCE . MAY 12 I 1998 MORNING & AFTERNOON SESSIONS 22 23 24 25 VOLUME 52 OF 6 9' ORIGINAL FILED IN COURT Or CRIMINAL APPEALS SEP 9 1998 Troy C. Bennett, Jr., C\erk

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Page 1: 7~/3r - WordPress.com · 2014-06-10 · 1 2 cause no. 8701 1 7~/3r 3 4 5 6 7 8 9 10 11 the state of texas vs. rodney reed x x x x x in the district court of bastrop county, texas

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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)

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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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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.

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A.

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A.

Q.

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Q.

A.

Q.

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.

A.

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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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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)

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Q.

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?

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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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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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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.

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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.

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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.

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A.

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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.

Q.

Q.

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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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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It's to indicate that he did have a

conversation with her about David Lawhon.

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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.

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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

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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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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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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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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

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It was like '92 or

, .

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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?

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k

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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.

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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.

Q.

A.

A.

Q.

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.

Q.

A.

Q.

Q.

Q.

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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.

A.

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

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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,

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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.

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Yes, sir.

I believe he has,

Are you willing

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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

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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

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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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54

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:

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The defense has

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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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[ .'

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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?

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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)

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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)

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State the

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-- 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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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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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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(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

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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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(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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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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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

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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.)

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(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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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

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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

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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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2 Q. (BY MR. GARVIE) Did he ever mention the

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A.

Q.

A.

Q.

A.

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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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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

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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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Q.

A.

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Q.

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Q.

Okay. Now, let's see,

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Do you have any problem

in this statement does

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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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A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

MS. TANNER:

THE COURT:

I would ask the

Answer the

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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.

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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.

Q.

A.

A.

A.

Q.

Q.

A.

Q.

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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

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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

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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

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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

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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

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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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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?

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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?

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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.

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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.

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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.

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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

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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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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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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

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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

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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

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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

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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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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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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.

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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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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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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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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

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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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MS. CLAY-JACKSON: Pass the

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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?

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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:

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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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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?

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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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:'. .

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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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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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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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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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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

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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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i -

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150

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

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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,

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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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155

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

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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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Q.

A.

Q.

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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.

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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

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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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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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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

Taxable Court Cost: