Volume 12

1 IN THE CRIMINAL DISTRICT COURT NO. 3
2 DALLAS COUNTY, TEXAS
3
4
5
6 THE STATE OF TEXAS } NO. F-96-39973-J
7 VS: } & A-96-253
8 DARLIE LYNN ROUTIER } Kerr Co. Number
9
10
11
12
13 STATEMENT OF FACTS
14 JURY VOIR DIRE
15 INDIVIDUAL JURORS HEARING
16 VOL. 12 OF VOLS.
17 October 28, 1996
18 Monday
19
20
21
22
23
24
25

Sandra M. Halsey, CSR, Official Court Reporter 126

1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Monday, the 28th day of
5 October, 1996, in the Criminal District Court Number 3 of
6 Dallas County, Texas, the above-styled cause came on for
7 a hearing before the Hon. Mark Tolle, Judge of the
8 Criminal District Court No. 3, of Dallas County, Texas,
9 without a jury, and the proceedings were held, in open
10 court, in the City of Kerrville, Kerr County Courthouse,
11 Kerr County, Texas, and the proceedings were had as
12 follows:
13
14
15
16
17
18
19
20
21
22
23
24
25

Sandra M. Halsey, CSR, Official Court Reporter 127

1 A P P E A R A N C E S
2
3
4 HON. JOHN VANCE
5 Criminal District Attorney
6 Dallas County, Texas
7
8 BY: HON. TOBY SHOOK
9 Assistant District Attorney
10 Dallas County, Texas
11
12 AND:
13 HON. JOHN GRAU
14 Assistant District Attorney
15 Dallas County, Texas
16
17 AND:
18 HON. SHERRI WALLACE
19 Assistant District Attorney
20 Dallas County, Texas
21
22 APPEARING FOR THE STATE OF TEXAS
23
24
25

Sandra M. Halsey, CSR, Official Court Reporter 128

1 HON. DOUGLAS D. MULDER
2 Attorney at Law
3 2650 Maxus Energy Tower
4 717 N. Harwood
5 Dallas, TX 75201
6
7 AND: HON. CURTIS GLOVER
8 Attorney at Law
9 2650 Maxus Energy Tower
10 717 N. Harwood
11 Dallas, TX 75201
12
13 AND: HON. RICHARD C. MOSTY
14 Attorney at Law
15 Wallace, Mosty, Machann, Jackson & Williams
16 820 Main Street, Suite 200
17 Kerrville, TX 78028
18
19 AND: HON. S. PRESTON DOUGLASS, JR.
20 Attorney at Law
21 Wallace, Mosty, Machann, Jackson & Williams
22 820 Main Street, Suite 200
23 Kerrville, TX 78028
24
25

Sandra M. Halsey, CSR, Official Court Reporter 129

1 AND: HON. JOHN HAGLER
2 Attorney at Law

3 901 Main Street, Suite 3601
4 Dallas, TX 75202
5 ALL ATTORNEYS REPRESENTING THE
6 DEFENDANT: DARLIE ROUTIER
7 MR. HAGLER HANDLING THE APPEAL
8
9 AND: HON. ALBERT D. PATILLO, III
10 Attorney at Law
11 820 Main Street, Suite 211
12 Kerrville, TX 78028
13 APPEARING FOR: Witness-
14 Detective Jimmy Patterson
15 only on one date in trial
16
17 AND: HON. STEVEN J. PICKELL
18 Attorney at Law
19 620 Earl Garrett Street
20 Kerrville, TX 78028
21 APPEARING FOR: Witness
22 Officer Chris Frosch
23 only on one date in trial
24
25

Sandra M. Halsey, CSR, Official Court Reporter 130

1 P R O C E E D I N G S
2
3 October 28th, 1996
4 Monday
5 9:30 a.m.
6
7 (Whereupon, the following
8 proceedings were held in
9 open court, in the presence
10 and hearing of the
11 defendant, being
12 represented by her attorneys
13 and the representatives of
14 the State of Texas, but
15 outside the presence of the
16 jury panel, as follows:)
17
18 THE COURT: We are back on the record
19 in the Darlie Routier matter. Let the record reflect all
20 the parties at trial are present. And these proceedings
21 are being held in the Kerr County Courthouse. And this
22 is October the 28th, of 1996. We're beginning the
23 individual voir dire in picking the jury. The first --
24 MR. TOBY SHOOK: Judge, could we get
25 you to rule on the record about -- we had a discussion

Sandra M. Halsey, CSR, Official Court Reporter 131

1 with Mr. Parks in your chambers, if we could get you to
2 rule on the record, the defendant was not there, about
3 the lesser included offense.
4 THE COURT: The ruling is this: There
5 is no lesser included offense in the charge against Mrs.
6 Routier. The State will either prove capital murder or
7 nothing. Because this offense is capital murder because
8 of the fact that the decedent is under 6 years of age.
9 That being the case it's either going to be a finding of
10 guilty of capital murder or a finding of not guilty, or
11 maybe a hung jury. But, I mean, there is no lesser
12 included offense. So we won't be voir diring on
13 probation or anything like that.
14 MR. TOBY SHOOK: Well, I think we
15 talked about, Judge, the motions for cause on that
16 ground.
17 THE COURT: There are no motions,
18 we're not going to get into any of that. There are no
19 motions for cause.
20 MR. TOBY SHOOK: Right. We discussed
21 that, I think, we talked about it, if you want to use a
22 peremptory challenge for that.
23 THE COURT: If that can be used, but
24 there is no challenge for cause on that. That's the
25 rule. There is no challenge for cause.

Sandra M. Halsey, CSR, Official Court Reporter 132

1 MR. RICHARD MOSTY: But we're not
2 prohibited from talking about it.
3 THE COURT: Oh, you can talk about it.
4 But there's no challenge for cause on it. I mean, no
5 need to challenge. All right. Is that enough?
6 All right. Is everybody ready for the
7 first juror?
8 MR. RICHARD MOSTY: Your Honor, there
9 is one other thing that we talked about here --
10 THE COURT: Yes.
11 MR. RICHARD MOSTY: What counsel and I
12 talked about originally was, if the State hits
13 something -- because there are a few people in here who
14 are quacks, and -- or if they have some disqualification,
15 with the Court's permission, we may just let them pass on
16 that subject and we may just say, thank you very much.
17 And we agree to challenge for cause or perhaps
18 rehabilitate them if we can, and then go back to whatever
19 else you want.
20 THE COURT: That is absolutely fine.
21 That's fine. Bring in the first prospective juror.
22 If you will have a seat right here,
23 sir, and please state your name for the record.
24 THE PROSPECTIVE JUROR: Stephon David
25 Sloan.

Sandra M. Halsey, CSR, Official Court Reporter 133

1 THE COURT: And that is Juror Number
2 2. All right. And just to be on the safe side, if you
3 will raise your right hand again.
4 Do you solemnly swear or affirm to
5 true answers make to all questions propounded to you
6 concerning your qualifications as a juror in this room or
7 in any courtroom or room you may be sent, so help you
8 God?
9 THE PROSPECTIVE JUROR: I do.
10 THE COURT: Thank you.
11 (Whereupon, the prospective
12 juror was duly sworn by the
13 Court to true answers make
14 to the questions propounded,
15 concerning qualifications, after
16 which time, the proceedings were
17 resumed as follows:)
18
19 Whereupon,
20
21 STEPHON DAVID SLOAN,
22
23 was called as a prospective juror, for the purpose of
24 voir dire, having been first duly sworn by the Court to
25 speak the truth, the whole truth, and nothing but the

Sandra M. Halsey, CSR, Official Court Reporter 134

1 truth, testified in open court, as follows:
2
3 VOIR DIRE EXAMINATION
4
5 BY MR. TOBY SHOOK:
6 Q. Mr. Sloan, my name is Toby Shook. I
7 am an Assistant District Attorney in Dallas, Texas. I am
8 one of the prosecutors assigned to the case. This is
9 Sherri Wallace behind me, she is also an Assistant
10 District Attorney. And I am going to be asking you some
11 questions this morning.
12 I want to emphasize that there are not
13 any right or wrong answers to any of these questions. We
14 just want your true opinions on these questions.
15 It's not a test of good citizenship or
16 anything like that. We're going to go over various
17 aspects of the law, how you feel about various aspects of
18 the law. You don't have to agree with us at all. This
19 is not a test of good citizenship or anything like that.
20 We just want to find out your honest opinions on some
21 issues to see if you can follow the law on certain areas;
22 okay?
23 A. Okay.
24 Q. I don't think -- you put down that you
25 haven't ever served on a jury before, have you?

Sandra M. Halsey, CSR, Official Court Reporter 135

1 A. No, sir.
2 Q. Okay. Usually jury selection is a
3 little bit different. We usually have everyone out in
4 the courtroom in one big bunch and talk to everyone in a
5 group and ask a few individual questions. But since this
6 is a capital murder case in which the State is seeking
7 the death penalty, we have this individual voir dire
8 where we talk to each juror.
9 It can be a little intimidating
10 sometimes. I know jurors sometimes feel like they're on
11 trial because they are up on the witness stand, but we
12 don't want you to feel that way at all. This gives us an
13 opportunity to talk to you for a while, and then the
14 defense will have an opportunity to talk to you for a
15 while. All right?
16 A. Sure.
17 Q. I see on your questionnaire, I believe
18 that you are a forklift driver; is that right?
19 A. No, sir. I am on the nursing staff at
20 La Hacienda Treatment Center.
21 Q. Okay. How long have you been there?
22 A. Altogether 14 years. I took a leave
23 of absence in '94.
24 Q. Okay. What was that leave of absence
25 about?

Sandra M. Halsey, CSR, Official Court Reporter 136

1 A. I moved to Mississippi.
2 Q. Okay.
3 A. Where I was born and raised.
4 Q. Okay. So you were born and raised in
5 Mississippi, and then you came --
6 A. I have been in Texas about 15 years.
7 Q. Okay. And what do you do at the
8 treatment center?
9 A. Admit patients into the detox unit, do
10 assessments, search their luggage.
11 Q. Okay.
12 A. Take their vital signs.
13 Q. Okay. And you have been there off and
14 on for about 14 years?
15 A. I was there for 12 years, and then I
16 have been back almost two years.
17 Q. Okay. You know we put on our
18 questionnaire, that there's some personal questions that
19 just stay right here, and one of them was a question
20 about have you had any counselling at all? Any type
21 of --
22 A. Yes, sir, I have been treated twice
23 for alcoholism.
24 Q. Okay. And, when was the last time you
25 were in treatment?

Sandra M. Halsey, CSR, Official Court Reporter 137

1 A. 1984.
2 Q. Okay. So it's been?
3 A. I have been sober since then.
4 Q. Okay. It's been a long time then?
5 A. Yes.
6 Q. Okay. As far as the trial goes, Judge
7 Tolle told you that the trial will begin on January 6.
8 A. Uh-huh. (Witness nodding head
9 affirmatively.)
10 Q. And Judge Tolle's schedule usually, I
11 don't think it will change for this trial, it's 9:00 in
12 the morning about so, until about 5:00 in the afternoon.
13 And he goes pretty steady throughout the day with certain
14 breaks.
15 A. Yes.
16 Q. We can't give you an exact time on how
17 long the trial will take. We're looking at about two
18 weeks, probably three weeks at the most; more like two
19 weeks. Would that interfere with your schedule at that
20 time at all?
21 A. I work nights.
22 Q. Okay. So that is not going to
23 interfere with your schedule?
24 A. And I told them I have to be here.
25 Q. They understand?

Sandra M. Halsey, CSR, Official Court Reporter 138

1 A. Oh, yes.
2 Q. Okay. Mr. Sloan, let me get into
3 then, kind of the heart of the matter. Obviously, you
4 have been told that we can't get into the facts of the
5 case at all, but you know this is a capital murder case.
6 It's one in which the State is actively seeking the death
7 penalty in this case. So we want to explore each juror's
8 feelings about the death penalty.
9 A. For me, you know, you never really
10 think about the death penalty until it happens to you or
11 to your family. So, you know, this lady, if she is not
12 guilty, she has -- they have to prove to me that she is
13 guilty before I say -- I would rather let somebody guilty
14 go before I sentence somebody for the death penalty.
15 Q. Okay. So, as the law in general, are
16 you in favor of the death penalty?
17 A. But if she is proven guilty, she needs
18 to face the consequences.
19 Q. Okay. So you are in favor of the
20 death penalty as a law?
21 A. Well, that is what is wrong with this
22 country now. Nobody wants to take responsibility for
23 their actions.
24 Q. Okay. Have you given the death
25 penalty much thought before you were called down, and

Sandra M. Halsey, CSR, Official Court Reporter 139

1 told that you could be on a death penalty case?
2 A. No, I have thought about it since I
3 have been summoned to be on the jury.
4 Q. Tell us a little bit about your
5 thoughts. What's gone through your mind?
6 A. Well, is it right or is it wrong?
7 Q. You have just been debating with
8 yourself, more or less, kind of weighing both sides of
9 the issue?
10 A. Yes.
11 Q. And tell us what you have come up
12 with.
13 A. Well, let me put myself in her place
14 for a minute. The death penalty, you know, if you kill
15 somebody by lethal injection, that is not really facing
16 the consequences. Locking them up in prison for the rest
17 of their life, then they face consequences.
18 Q. So you think the death penalty might
19 almost be --
20 A. That is just a way out.
21 Q. The easy way out?
22 A. Yes.
23 Q. Okay. Do you think that life
24 imprisonment would be more appropriate a punishment?
25 A. Uh-huh. (Witness nodding head

Sandra M. Halsey, CSR, Official Court Reporter 140

1 affirmatively.)
2 Q. Okay.
3 A. Prison ain't no place to be.
4 Q. Okay. Anything else come to mind when
5 you were discussing with yourself whether the death
6 penalty is right or wrong? Did you come up with anything
7 else?
8 A. No.
9 Q. Okay. Have you ever -- what types of
10 crimes do you think might be appropriate for the death
11 penalty?
12
13 MR. RICHARD MOSTY: Your Honor, I am
14 going to object to that unless counsel gives some
15 definition of what the law allows in that regard.
16 THE COURT: Yes, I will sustain that.
17 Well, you might give a little more information.
18 MR. TOBY SHOOK: Judge, I am just
19 trying to get his personal feelings about how he feels
20 about the death penalty. I'm not trying to tie him down
21 to any facts.
22 THE COURT: Okay. Well, go ahead with
23 it then.
24
25 BY MR. TOBY SHOOK:

Sandra M. Halsey, CSR, Official Court Reporter 141

1 Q. Is there anything that comes to mind
2 as far as the types of crimes you think are appropriate
3 for the death penalty?
4 A. Well, I guess murder is about the
5 worst thing you can do; isn't it?
6 Q. Right.
7 A. That is a violent crime.
8 Q. Is there any certain types of murder,
9 or do you just think --
10 A. Well, that would be number one, I
11 guess.
12 Q. Okay. Let me ask you: On your
13 questionnaire, we had you fill out this long 13 page
14 questionnaire, and on the second page we asked, "Are you
15 in favor of the death penalty," and on that day you
16 checked off "no." Do you remember that?
17 A. Yes, because I should have wrote,
18 unsure on that.
19 Q. Okay. And why were you unsure on that
20 day?
21 A. Because I hadn't even thought about
22 it. You hear about people, you know, getting sentenced
23 to death, and, you know, you just don't think about it.
24 Q. Okay.
25 A. Until it involves you, yourself.

Sandra M. Halsey, CSR, Official Court Reporter 142

1 Q. Okay. And we also, on that day, it
2 may not have been fair to ask you on that day, we had
3 certain categories we had you check off, you had circled
4 Number 3. And I'll read it for you because I'm sure you
5 don't remember how you answered some of the questions.
6 "Although I don't believe the death penalty ever ought to
7 be invoked, as long as the law provides for it, I can
8 assess it under the proper set of circumstances."
9 A. Read that again.
10 Q. "Although I do not believe the death
11 penalty ever ought to be invoked, as long as the law
12 provides for it, I can assess it under the proper set of
13 circumstances."
14 Is that how you feel about it, or have
15 you changed your mind on that issue?
16 A. Well, why not, I guess.
17 Q. I'm sorry?
18 A. I guess so.
19 Q. Okay. You see, what I am getting down
20 to is, obviously, the core issue here is the State is
21 actively seeking the death penalty.
22 A. Okay.
23 Q. We're going to be going for that. The
24 defense over here, they are good lawyers and they are
25 going to be fighting us every inch of the way. So, it's

Sandra M. Halsey, CSR, Official Court Reporter 143

1 going to be a very contested issue. And we need to know
2 if there are jurors that can have an open mind to both
3 sides, and let me give you kind of a preview.
4 What happens in a capital murder case,
5 is it's divided into two parts. There is the
6 guilt/innocence stage where we have to prove our
7 indictment beyond a reasonable doubt, whether they are
8 guilty of the crime itself. If we do that, we move to
9 the punishment phase, which you can then hear additional
10 evidence. You might hear background evidence. You may
11 not hear any additional evidence. But at the close of
12 that you will be asked to answer these questions.
13 We may go over those in more detail in
14 a minute. But basically, question number 1, we have
15 to -- the State has to prove there is a probability that
16 the defendant would commit criminal acts of violence,
17 they would be a danger to society in the future. If you
18 put it another way, they would be a future danger to
19 society.
20 The second question that comes up, is
21 whether there is any mitigating evidence. Any evidence
22 that the jurors feel that despite them being guilty of
23 the crime, and being a danger, they feel that a life
24 sentence should be imposed, rather than the death
25 sentence. But if you answered "yes" to that first

Sandra M. Halsey, CSR, Official Court Reporter 144

1 question, and "no" to the second question, Judge Tolle
2 would have no discretion in this matter, he would
3 sentence the defendant to death.
4 If it's answered any other way, it's
5 an automatic life sentence, you see. It's one of the
6 two, once you have found someone guilty. It's going to
7 be a life sentence or a death sentence. All depending on
8 how the jurors answered these questions. Of course, if
9 it's a "yes" and a "no" in a death sentence, the
10 execution is death by lethal injection. Have you read
11 about that at all in the State of Texas?
12 A. No, I haven't read about it, but I
13 have seen it on the news.
14 Q. You have seen it on the news? Okay.
15 A. I read in the paper about it.
16 Q. You know full well then that it is
17 something that actually does occur in the State of Texas?
18 A. Oh, yes.
19 Q. The procedures are that if a person is
20 sentenced to death they are housed obviously down in
21 Huntsville, but at sometime in the future, given an
22 actual death date, and on that date they are moved to a
23 special unit, given time with family and friends, maybe a
24 minister, but after 6 p.m., the guards will take them
25 from the room, and they are taken to a special chamber

Sandra M. Halsey, CSR, Official Court Reporter 145

1 where there are witnesses, they are put on a gurney,
2 needles put in their arms, and they are injected with a
3 substance that causes their heart to stop. I think
4 there's been over 100 death penalties.
5 And that is our goal in this case. We
6 need to know if you can actually sit on a case of this
7 kind and listen to the evidence, and if we prove the
8 case, take pen in hand, and give those answers that would
9 result in Mrs. Routier's death.
10 Would you be able to do that? Is this
11 the type of case you could sit on? Or is this just not
12 your cup of tea?
13
14 MR. RICHARD MOSTY: I am going to
15 object to that question because he mixed in two things.
16 One, he talked about Mrs. Routier --
17 THE COURT: I'll sustain it.
18 MR. RICHARD MOSTY: -- and then he
19 said --
20 THE COURT: All right. I'll sustain
21 it. Just because he has an objection to the death
22 penalty, that does not disqualify him.
23
24 BY MR. TOBY SHOOK:
25 Q. Well, is this the type of case you

Sandra M. Halsey, CSR, Official Court Reporter 146

1 could sit on, that could result in someone's death?
2 A. (Witness shakes head.)
3 Q. Okay. And tell us why.
4
5 THE COURT REPORTER: What was that
6 reply?
7
8 BY MR. TOBY SHOOK:
9 Q. If I could get you to -- you shook
10 your head negatively, didn't you? You mean no? Was your
11 answer no?
12 A. Yes. No. (Witness nodding head
13 affirmatively.)
14
15 THE COURT: Okay. Wait a minute. We
16 can't take down head shakes or nods, you know, or uh-huhs
17 or huh-uhs.
18 THE PROSPECTIVE JUROR: Yes, sir, I
19 understand.
20 THE COURT: Just answer, and go ahead
21 and elaborate if you like.
22 THE PROSPECTIVE JUROR: Well, no, sir,
23 I don't want to be responsible for someone dying.
24
25 BY MR. TOBY SHOOK:

Sandra M. Halsey, CSR, Official Court Reporter 147

1 Q. Okay. And that is fine. Like I said,
2 we just want your honest answers to our questions, and I
3 appreciate your honesty on that. You just don't want to
4 take that type of responsibility?
5 A. Uh-huh. (Witness nodding head
6 affirmatively.)
7 Q. You don't want that weighing on your
8 conscience, that kind of thing?
9 A. Uh-huh. (Witness nodding head
10 affirmatively.)
11 Q. Okay. Again, it's fine to feel that
12 way, Mr. Sloan. That is what we're looking for is your
13 honest answers. If this were a case that just involved
14 prison time, like a burglary case --
15 A. Yes, but you lock somebody up in
16 prison from now on, don't you think they are going to
17 face it? They are going to have to deal with reality.
18 And when you die, when you are dead, you are dead and you
19 can't face nothing.
20 Q. Sure. And I'm not here to argue with
21 you. I just want to explore your feelings, so it's clear
22 to everyone what they are. Even though you feel that
23 prison time is more punishment, still you don't want the
24 responsibility of deciding whether someone dies or not;
25 is that right?

Sandra M. Halsey, CSR, Official Court Reporter 148

1 A. Yes. I don't have any problems
2 sentencing anybody to life in prison.
3 Q. Right.
4 A. But I just don't want --
5 Q. Okay. It is that person that --
6 A. I believe that is God's decision.
7 Q. I'm sorry?
8 A. I believe that's God's decision.
9 Q. Okay. Do you feel strongly about
10 that, Mr. Sloan?
11 A. Oh, yes.
12 Q. And have you thought about that a lot
13 since we had you come down here last Monday and fill out
14 the questionnaire?
15 A. Uh-huh. (Witness nodding head
16 affirmatively.)
17 Q. Have you discussed it with anyone
18 else?
19 A. Huh-uh. (Witness shaking head
20 negatively.)
21 Q. These have been just inner thoughts?
22 A. Uh-huh. (Witness nodding head
23 affirmatively.)
24 Q. Okay. Would you feel that that is a
25 strong conviction on your part now about how you feel

Sandra M. Halsey, CSR, Official Court Reporter 149

1 about not wanting to be responsible for someone's death?
2 A. Uh-huh. (Witness nodding head
3 affirmatively.) Yes, sir.
4 Q. Okay. Do you feel you would change
5 your mind on that in way, or is your mind made up about
6 that? You don't want to be responsible for someone's
7 death?
8 A. Yes, sir.
9 Q. It's not something you take lightly,
10 is it?
11 A. No, sir.
12 Q. Okay. And if this was a case, another
13 type of case, where it just involved prison time you
14 wouldn't have a problem sentencing someone to prison?
15 A. No, sir.
16 Q. It's just the fact that this is -- the
17 ultimate punishment here is death, and if you answer
18 those questions a certain way, the defendant could be
19 sentenced to death, and that is what your objection is to
20 sitting and making that type of decision is; is that
21 right?
22 A. Uh-huh. (Witness nodding head
23 affirmatively.) You know if you all have all the proof
24 and the facts within a reasonable doubt, then she --
25 somebody is going to have to face the consequences.

Sandra M. Halsey, CSR, Official Court Reporter 150

1 Q. Right. But you don't want to be the
2 one that has to make that decision?
3 A. Of death?
4 Q. Right.
5 A. No, sir. Life in prison, yes.
6 Q. Life in prison, that is not an issue
7 for you, you could do that?
8 A. Life in prison with no parole, yes, I
9 have no problem with that.
10 Q. Okay. But I want to concentrate on
11 the death issue, that is where your objection is and your
12 problem comes in, right?
13 A. That's right.
14 Q. Now you understand, and like you said,
15 this is a strong conviction on your part; is that right?
16 A. Yes, sir.
17 Q. It's something you have thought about
18 and you feel strongly about?
19 A. Yes, sir.
20 Q. Okay. You understand how our
21 situation works here: You don't actually write death or
22 life in prison in. We have to prove, first of all, this
23 first question, can be a continuing danger.
24
25 THE COURT: Maybe Mr. Sloan would want

Sandra M. Halsey, CSR, Official Court Reporter 151

1 to read those.
2 MR. TOBY SHOOK: Yes, sir.
3 THE COURT: Maybe you would want to
4 stand up and read those if you could?
5 MR. TOBY SHOOK: Yeah. All right.
6 THE COURT: Step over there. That's
7 fine. Take your time.
8 THE PROSPECTIVE JUROR: I can see
9 here.
10 MR. TOBY SHOOK: In fact, why don't I
11 just read the first question aloud and if you will go
12 along with me.
13 THE PROSPECTIVE JUROR: Okay.
14
15 BY MR. TOBY SHOOK:
16 Q. First question: "Do you find from the
17 evidence beyond a reasonable doubt that there is the
18 probability that the defendant would commit criminal acts
19 of violence that would constitute a continuing threat to
20 society?"
21 You know we actually have to prove
22 there would be a continuing danger. The second
23 question, -- if we get a "yes" to that, then you move on
24 to this second question. That is what we call the
25 mitigation issue.

Sandra M. Halsey, CSR, Official Court Reporter 152

1 "Taking into consideration all of the
2 evidence, including the circumstances of the offense, the
3 defendant's character and the background, the personal
4 moral culpability of the defendant, is there a sufficient
5 mitigating circumstance or circumstances to warrant that
6 the sentence of life imprisonment, rather than a death
7 sentence be imposed."
8 That is a real long question. We
9 didn't think it up ourselves, the legislature did that.
10 But basically, it has the jurors look at all the
11 evidence, and if they find anything where they think,
12 well, a life sentence should be imposed rather than a
13 death sentence, they would answer it that way.
14 And thus, spare the defendant the death penalty. It's a
15 way for the jurors -- it's kind of a safety net.
16 Mitigating evidence can be whatever
17 you feel it is. Go ahead and have a seat.
18 Are you telling us, Mr. Sloan, that
19 because of your personal feelings about not being able to
20 take responsibility for putting someone to death, or
21 answering questions that would actually lead to their
22 execution, that this is just not the type of case you
23 could sit on and make that particular decision?
24 A. Sentence her to what?
25 Q. To death.

Sandra M. Halsey, CSR, Official Court Reporter 153

1 A. To death? Well, I probably could, but
2 I still wouldn't change my mind on it. I don't think.
3 Q. You wouldn't change your mind on what?
4 A. To sentence her to the death penalty,
5 to lethal injection.
6 Q. You still have your objections to
7 doing that?
8 A. Uh-huh. (Witness nodding head
9 affirmatively.) It just isn't right though, to take
10 somebody's life.
11 Q. Okay. And that is fine that you feel
12 that way. But, I get some concern when then all of a
13 sudden you say, I probably could.
14 You see, there is all different --
15 everyone comes in here with a different opinion and each
16 one is fine on its own. And you have told me clearly
17 several times that you don't feel that you have the right
18 to sit there and judge someone so that they might be
19 executed. That you don't have the right to do that, and
20 you don't want to take that responsibility. And then --
21 but then you just said you probably could.
22 A. Well, I could sentence her to --
23 sentence somebody to life in prison.
24 Q. Sure.
25 A. I have no problem with that at all.

Sandra M. Halsey, CSR, Official Court Reporter 154

1 Q. Okay. Well, I think that we are all
2 clear on that. It's the death issue you have a problem
3 with.
4 A. It's the death issue. I'm not going
5 to sentence nobody.
6 Q. You are just not going to sentence
7 someone to death?
8 A. No.
9 Q. That is just how you personally feel?
10 A. Yes.
11 Q. And it's a strong conviction on your
12 part?
13 A. Yes.
14 Q. Okay. Again, that's fine. I know I
15 have been over this with you. I don't mean to beat a
16 dead horse, but we need everything to be clear to Judge
17 Tolle and clear on the record about how you feel.
18 So you are never going to answer these
19 questions in a way that would actually result in her
20 death. Life in prison, that's fine. But resulting where
21 she would -- Judge Tolle would have to sentence her to
22 death, you couldn't do that; is that right?
23 A. No.
24 Q. You just couldn't take that type of
25 responsibility yourself?

Sandra M. Halsey, CSR, Official Court Reporter 155

1 A. No.
2 Q. And you are sure about that?
3 A. Uh-huh. (Witness nodding head
4 affirmatively.) Positive.
5 Q. Okay. It's not something you would
6 change your mind on lightly; is that right?
7 A. No, sir.
8 Q. Okay. And you could never -- and I
9 know I just want to make it clear, answer the questions,
10 you understand that you don't write life or death, but
11 you can never answer the questions with a yes and a no
12 answer so that it would cause Judge Tolle to sentence the
13 defendant to death?
14 A. Yes, sir.
15 Q. Okay. All right.
16
17 MR. TOBY SHOOK: Judge, why don't we
18 stop there for a moment and let Mr. Mosty -- maybe he
19 wants to ask you some questions.
20
21 VOIR DIRE EXAMINATION
22
23 BY MR. RICHARD MOSTY:
24 Q. Mr. Sloan, how are you this morning?
25 A. Fine.

Sandra M. Halsey, CSR, Official Court Reporter 156

1 Q. Did you come in from La Hacienda this
2 morning?
3 A. No, sir, I work nights. I come in
4 from Pipe Creek Parkway.
5 Q. Okay. I thought you might not be able
6 to get here from La Hacienda this morning.
7 A. No, sir.
8 Q. My name is Richard Mosty, and I am
9 representing Darlie Routier who is seated behind me here.
10 And this is Preston Douglass, who is my partner. And I
11 want to visit with you a little bit about some of what
12 you have testified to, and told us about this morning.
13 And let me be candid with you, I sort
14 of have mixed -- I am hearing mixed things from you, in
15 my judgment, of what you are saying.
16 Let me first say this: I don't think
17 anybody wants the responsibility of being here. I don't
18 think there is any juror ever who has sat on any case who
19 wants the responsibility of sitting on a case that may
20 result in a death penalty. That, people -- I have just
21 never seen anybody stand up and say that is what they
22 want to do. It's a terrific responsibility. But in a
23 lot of ways it's no different than a lot of
24 responsibilities that we have as citizens.
25 We have a responsibility to follow the

Sandra M. Halsey, CSR, Official Court Reporter 157

1 law. We have a responsibility to defend our country when
2 we are called upon to do that. Those are the
3 responsibilities that go with the constitutional rights
4 that we have.
5 So, what I want to explore, is those
6 responsibilities. And, what I heard you say, and you
7 tell me if I am not right, but I heard you say was, that
8 you don't have a problem with the death penalty, you just
9 don't want to be -- you don't want to be placed in that
10 very difficult position.
11 A. You're right. I don't have a problem
12 with it, as long as it don't concern me.
13 Q. Okay. Well, you don't have any
14 objection to the law, or to the death penalty law as
15 such?
16 A. No, sir.
17 Q. All right. And let me first say that
18 the death penalty only ever even applies in a very small
19 number of circumstances. And that is, where there is a
20 murder of police officer, or a multiple murder, or a
21 murder committed during the course of some other felony.
22 So there is a very limited range and they are all murder
23 cases in which the death penalty is even possible. And,
24 you don't have any objections to that I take it?
25 A. No, sir.

Sandra M. Halsey, CSR, Official Court Reporter 158

1 Q. To that limitation?
2 A. No, sir.
3 Q. The procedure is that if you find a
4 defendant guilty, and that is the first big if, you never
5 even talk about this unless you find the defendant guilty
6 of capital murder, then you go and you answer these
7 questions. And the questions that you have to deal with
8 is, can you, can you answer those questions based upon
9 the evidence that is presented to you, knowing your
10 reservations about your responsibility, but can you take
11 an oath to answer those two special issues that are on
12 the board truthfully and honestly, based upon the
13 evidence?
14 A. Well, if she is locked up -- number
15 one, if she is locked up for life, if someone is locked
16 up for life, they can't --
17
18 THE COURT: That wasn't the question.
19 Please listen to the question and answer the question.
20
21 BY MR. RICHARD MOSTY:
22 Q. Okay. We won't -- just focus on these
23 two questions, because that is what I am asking you, and
24 that is what Judge Tolle is eventually going to ask any
25 juror. And I don't want to talk about this case, but in

Sandra M. Halsey, CSR, Official Court Reporter 159

1 any case in which there is a capital murder defendant
2 that is found guilty, that is what Judge Tolle or
3 whomever the Judge is going to be, is going to say, "You,
4 the jury, need to go out and answer these special issues.
5 Follow the law, and base your decision upon the evidence
6 that is presented to you." Can you do that?
7 A. Yes, sir.
8 Q. And knowing that the result may be one
9 that you have a very difficult time with?
10 A. Yes, sir.
11 Q. Knowing that the result could be the
12 death penalty, nonetheless, you could honestly and
13 truthfully answer those questions?
14 A. I would just have to deal with it.
15 Q. Okay. And again, nobody wants to.
16 And, you might not be picked on this jury, but that is,
17 you know, that is one of the awesome responsibilities
18 that comes with being a citizen of the United States.
19 And you could, even though you don't like it, you could
20 get up and do that task honestly and truthfully?
21 A. Yes, sir.
22 Q. Thank you.
23
24 THE COURT: Either side have anything
25 else?

Sandra M. Halsey, CSR, Official Court Reporter 160

1 MR. TOBY SHOOK: I would like to ask
2 some more questions, Your Honor.
3 THE COURT: All right. You have used
4 18 minutes.
5 MR. TOBY SHOOK: Thank you, Judge.
6 THE COURT: Thank you.
7
8 FURTHER VOIR DIRE EXAMINATION
9
10 BY MR. TOBY SHOOK:
11 Q. We don't mean to beat you down with
12 the same type questions.
13 A. It's okay. It's all right.
14 Q. But obviously --
15 A. I'm not in a hurry.
16 Q. But you know the way that lawyers are,
17 we can ask -- we can ask questions from here until the
18 world ends. We love to ask questions, talk to people,
19 and we can phrase things differently and get different
20 answers a lot of times.
21 But what I want to get down to again
22 are your honest opinions. Because, Mr. Mosty has asked
23 you, can you answer these questions honestly based on the
24 evidence.
25 And then you have also given me

Sandra M. Halsey, CSR, Official Court Reporter 161

1 answers where, I think, one of your answers was, you
2 said, "We just don't have the right to take someone's
3 life." You didn't have any problem with fashioning a
4 sentence or giving a sentence of life in prison, but as
5 far as the death penalty is concerned, we just don't have
6 that right.
7 You told me several times that you had
8 a strong conviction, and you thought about it and you
9 just can't sit on a death-penalty-type case, and answer
10 questions in a way that would result in a defendant's
11 death. Life imprisonment is no problem, but if it's the
12 death, you couldn't do that.
13 You told me that you couldn't answer
14 those questions that way. You told me that was a strong
15 conviction on your part. Have you changed your mind in
16 any way, or do you still feel that way?
17 A. Well, I need to answer you, don't I?
18
19 THE COURT: Well, it would be very
20 helpful.
21 THE PROSPECTIVE JUROR: Yes.
22
23 BY MR. TOBY SHOOK:
24 Q. Do you still feel that way?
25 A. Yes.

Sandra M. Halsey, CSR, Official Court Reporter 162

1 Q. Okay. The life imprisonment issue,
2 you could do that to someone?
3 A. Yes.
4 Q. It is just sentencing someone to
5 death, you could never do that personally. You don't
6 feel you have that right?
7
8 MR. RICHARD MOSTY: Well, Your Honor,
9 again, I think that is an unfair question, because he
10 does not sentence them.
11 THE COURT: Well, I'll sustain the
12 objection. He answered the question, we understand that.
13 THE PROSPECTIVE JUROR: Well, you
14 never think about this until you are in it.
15
16 BY MR. TOBY SHOOK:
17 Q. Sure.
18 A. If it was my brother or my mother,
19 yeah, I could do it.
20 Q. Sure. I understand, but you couldn't
21 be on a jury though where your mother or brother were the
22 victim.
23 A. Well, no.
24 Q. Obviously. We wouldn't expect you to
25 want to do it.

Sandra M. Halsey, CSR, Official Court Reporter 163

1
2 MR. TOBY SHOOK: Defense counsel might
3 lose their bar card if that happened.
4 THE COURT: Yes, well -- with a
5 brother-in-law maybe.
6
7 BY MR. TOBY SHOOK:
8 Q. Yeah, brother-in-law, maybe.
9 A. Mother-in-law.
10 Q. Yes, well, the defense might want you
11 on the jury if it was your mother-in-law. But when it
12 gets down to it, I mean, you feel very strongly about
13 that, just the way you talked about it before; is that
14 right?
15 A. Uh-huh. (Witness nodding head
16 affirmatively.)
17 Q. Okay. And that is all we are looking
18 for, is your honest opinions. You know, I have talked to
19 a lot of jurors on these type of cases, and sometimes we
20 get jurors that feel so strongly, they are so strongly
21 for the death penalty, they think it's appropriate in all
22 cases. They can't wait to get on the jury, and they will
23 honestly tell us, "I don't care what your evidence is,
24 I'm going to answer those questions in a way that is
25 going to get them dead."

Sandra M. Halsey, CSR, Official Court Reporter 164

1 Obviously that is not fair either,
2 especially not fair to the defense, because they are
3 entitled --
4 A. Well, that is just the way some people
5 think, though.
6 Q. Yes. They are entitled to honest
7 jurors who can answer these questions and aren't
8 pre-bound. But in the same way, the State is entitled to
9 jurors who could fairly assess that. Some people can and
10 some people can't. And I think what you have told me
11 before, is that life imprisonment, that is not problem;
12 it's answering these questions the way that result in the
13 defendant's death is what you have a problem with and you
14 cannot do; is that right?
15 A. Yes, sir.
16 Q. Okay. It's not a question of what
17 evidence we have to prove this case, to prove that she is
18 a future danger or whatever, you just, that doesn't
19 matter, it's the fact --
20
21 MR. RICHARD MOSTY: Your Honor, I want
22 to object to the reference to she.
23 THE COURT: Sustained.
24
25 BY MR. TOBY SHOOK:

Sandra M. Halsey, CSR, Official Court Reporter 165

1 Q. Okay. It's not a question of what
2 type of evidence we have to prove question Number 1,
3 right? It's the fact, the bottom line is, that you don't
4 feel that you have the right to answer that question in
5 the way that would result in her death; is that right?
6 A. Yes, sir.
7 Q. Okay. And it's just something you
8 could do. It's not a question of what we prove to you,
9 it's just something you feel strongly about; is that
10 right?
11 A. Yes, sir.
12 Q. And so, no matter how much evidence I
13 put on on that question or the second question, you are
14 just not going to be able to answer the questions in a
15 way that would result in her death?
16 A. Yes, sir.
17 Q. Is that right?
18 A. Yes, sir.
19 Q. You feel strongly about that?
20 A. Yes, sir.
21 Q. Life imprisonment, that is fine, but
22 you are not going to be able to forget about how you feel
23 about the death penalty, are you?
24 A. No, sir.
25 Q. I mean, you feel pretty strongly about

Sandra M. Halsey, CSR, Official Court Reporter 166

1 those things, don't you?
2 A. Yes, sir.
3 Q. Okay. And that is just something to
4 be honest about, and you are just being honest with us
5 about it, is that right?
6 A. Yes, sir, I'm totally honest.
7 Q. Okay.
8
9 MR. TOBY SHOOK: Again Judge, we will
10 pass the juror.
11 MR. RICHARD MOSTY: May we approach
12 the bench, Your Honor?
13 THE COURT: Yes.
14
15 (Whereupon, a short
16 Discussion was held
17 Off the record, after
18 Which time the
19 Proceedings were resumed
20 As follows:)
21
22 BY MR. TOBY SHOOK:
23 Q. Well, let me talk about question
24 Number 1 again, just for a moment. "Do you find from the
25 evidence beyond a reasonable doubt that there is a

Sandra M. Halsey, CSR, Official Court Reporter 167

1 probability that the defendant would commit criminal acts
2 of violence that would constitute a continuing threat to
3 society."
4 That is something we would have to
5 prove to you in the punishment stage. That there is that
6 probability would exist. Do you understand where that
7 question is trying to ask you to predict the future?
8 A. Yes.
9 Q. That they would be a continuing threat
10 to society?
11 A. Well, you mean that somebody may kill
12 somebody else?
13 Q. Well, it doesn't actually say kill
14 someone else. Some people feel that way, but just be a
15 continuing threat to society.
16 A. They might commit another crime?
17 Q. Right. That is something that we have
18 to prove, that question. Do you think that you could
19 answer a question like that based on the evidence?
20 A. Yes, sir.
21 Q. You think you could predict the future
22 that way based on the evidence?
23 A. Yes, sir.
24 Q. Okay. What comes to mind when you
25 think about criminal acts of violence? What does that

Sandra M. Halsey, CSR, Official Court Reporter 168

1 mean to you?
2 A. Criminal acts? What do I think?
3 Q. Yes.
4 A. Why do people do such things?
5 Q. We --
6
7 THE COURT: Will you please listen to
8 Mr. Shook's questions?
9
10 BY MR. TOBY SHOOK:
11 Q. We have to prove -- and you are not
12 going to get definitions of what these words are. It is
13 going to be up to you. One of the things we have to
14 prove is that there is a probability the defendant would
15 commit criminal acts of violence. When we say criminal
16 acts of violence, what does that mean to you?
17 A. Murder, rape or child abuse.
18 Q. Okay. Let me ask you this personally:
19 What type of evidence would you like to hear? What would
20 be good for you to hear to make you be able to make a
21 decision like that?
22 A. What type of evidence would I like to
23 hear?
24 Q. Yes. On this first issue, where we
25 are trying to prove that the defendant would be a future

Sandra M. Halsey, CSR, Official Court Reporter 169

1 danger. Personally, what types of evidence would you
2 like be comfortable in hearing in order to make that
3 decision?
4 A. Is this this person's first offense?
5 Q. Okay.
6 A. Criminal offense.
7 Q. Okay. Anything else?
8 A. Were they in the right state of mind
9 when this happened?
10 Q. Okay. Let me go to one other area of
11 the questionnaire, Mr. Sloan. I don't mean to skip
12 around, but on page 3, you had answered, we have a
13 statement, in fact, let me just let you look at it. I
14 know you had -- may I approach the juror?
15
16 THE COURT: Oh, yes.
17 MR. TOBY SHOOK: Page 3. You see that
18 question there? If you could just read that for a
19 moment.
20 THE PROSPECTIVE JUROR: Okay.
21
22 BY MR. TOBY SHOOK:
23 Q. The statement we asked there is, "If a
24 person is accused of a capital murder, should she have to
25 prove her innocence?" And you put strongly agree.

Sandra M. Halsey, CSR, Official Court Reporter 170

1 A. Uh-huh. (Witness nodding head
2 affirmatively.)
3 Q. Okay. How do you feel about that? Do
4 you still feel that way?
5 A. Uh-huh. (Witness nodding head
6 affirmatively.)
7 Q. Tell us a little bit about that.
8 A. People are not accused for no reason.
9 I mean, y'all wouldn't have this person up here for no
10 reason, would you?
11 Q. Okay. Would you require the defendant
12 then to prove her innocence, or would you require a
13 criminal defendant to prove innocence, a person that is
14 charged with capital murder?
15 A. Yes, sir.
16 Q. Okay.
17 A. They have to prove it.
18 Q. Okay. You would want, I guess, these
19 lawyers to put on some type of evidence, that type of
20 thing?
21 A. Yes, sir.
22 Q. Okay. If they didn't put on any type
23 of evidence, would you then, after the State presented
24 it's case, would you find the defendant guilty because
25 they had not presented any evidence?

Sandra M. Halsey, CSR, Official Court Reporter 171

1 A. Of her being innocent?
2 Q. Right.
3 A. No, sir.
4 Q. Okay.
5 A. If they don't prove that she is
6 innocent, she is -- evidently she is guilty then, if they
7 can't prove that she is innocent.
8 Q. This is kind of how it works, though:
9 There are certain rules of law. The State, since we do
10 the charging, we have the burden of proof. We have to
11 prove the case beyond a reasonable doubt. And that
12 burden never shifts, it never goes over to the defense.
13 Do you understand?
14 A. Uh-huh. (Witness nodding head
15 affirmatively.)
16 Q. If we don't meet that burden, then the
17 jurors are obligated to find the defendant not guilty.
18 However, some jurors feel strongly
19 that, well, if you are excused of the crime, then you
20 should have to prove your innocence, through your lawyers
21 or whatever. However, the law doesn't require that at
22 all. It only requires the State to prove it. If we
23 don't prove it, then it's not guilty.
24 They are not obligated to put on
25 witnesses. They are not obligated to even ask questions

Sandra M. Halsey, CSR, Official Court Reporter 172

1 if they don't want to. So it's all up to whether the
2 State proves the case or not. Would you require the
3 defense though, from your own personal standpoint, to
4 prove the defendant's innocence?
5 A. Well, if it was me, I would want to
6 prove my innocence.
7
8 THE COURT: Please listen to the
9 question.
10
11 BY MR. TOBY SHOOK:
12 Q. Would you require the defense to prove
13 the defendant's innocence?
14 A. If you can't prove that, she is
15 guilty.
16 Q. If we put our case on, beyond a
17 reasonable doubt, if we finished putting on our evidence,
18 are you going to require the defense to prove her
19 innocence in any way?
20 A. No, sir.
21 Q. Okay. How do you feel about the
22 defendant's -- the Judge went over this -- the
23 defendant's right not to testify. Everyone has the
24 constitutional right. They can testify if they want to,
25 but if they don't want to, they are not required to by

Sandra M. Halsey, CSR, Official Court Reporter 173

1 law.
2 Some people can follow that rule of
3 law and other people feel strongly about, that they would
4 want the defendant to testify. They might find the
5 defendant -- they feel the defendant is guilty if they
6 didn't take the stand in their own defense. How do you
7 feel about it?
8 A. That is their right.
9 Q. So you have no problem in that area?
10 A. No, I have no problem.
11 Q. Okay. You understand that we have to
12 prove this case beyond a reasonable doubt?
13 A. Yes, sir.
14 Q. Okay. Some people feel that in a case
15 where the State is seeking the death penalty, they would
16 require the State to prove it's case even beyond that, to
17 a greater extent than beyond a reasonable doubt. How do
18 you feel about that?
19 A. I don't know. If you prove that she
20 is guilty beyond a reasonable doubt, what else do they
21 want?
22 Q. Let me go back to what we talked
23 principally about: Your objection as to sitting on this
24 type of case and not having the right to make decisions
25 where someone would ultimately be executed. You have not

Sandra M. Halsey, CSR, Official Court Reporter 174

1 changed your mind about that, have you?
2 A. No, sir.
3 Q. You just couldn't answer these
4 questions in a way that would result in a defendant's
5 death; another human being's death; is that right?
6 A. Yes, sir.
7 Q. Okay. And no ifs, ands, or buts about
8 that?
9 A. No, sir.
10 Q. It's not a matter of what type of
11 evidence we put on, to intellectually let you answer the
12 questions a certain way. You know that if you answered
13 them a certain way that it would result in her death and
14 that's just something that you personally could not do;
15 is that right?
16 A. Yes, sir.
17 Q. Life imprisonment is fine, it's just
18 answering those questions in a way that would result in
19 her death is just something you can't do?
20 A. Yes, sir.
21
22 MR. TOBY SHOOK: That's all the
23 questions we have then, Judge.
24 THE COURT: All right. Mr. Mosty?
25

Sandra M. Halsey, CSR, Official Court Reporter 175

1 FURTHER VOIR DIRE EXAMINATION
2
3 BY MR. RICHARD MOSTY:
4 Q. Mr. Sloan, we were introduced briefly,
5 and when we first started this, and I am just going to
6 cover a few things with you. And I think that you talked
7 a little bit about, and the prosecutor talked to you
8 about the presumption of innocence and Grand Jury
9 indictment, and those kind of things. And I just want to
10 reemphasize, really what Judge Tolle told you the other
11 day, that a Grand Jury indictment is absolutely no
12 evidence of guilt whatsoever. It means nothing, because
13 it is, as Judge Tolle described it, neutral. And, it is
14 simply the vehicle by which 25,000 people in Dallas
15 County are charged every year. Many of whom don't even
16 know that their is case being presented to the Grand
17 Jury. You understand that?
18 A. Yes, sir.
19 Q. And actually, I think you said it,
20 maybe better than anybody, when one of the first things
21 you said when we were here was, this lady is not guilty.
22 A. Oh, yes, she is not.
23 Q. Those were your words and that is the
24 honest and the truthful way of describing the presumption
25 of innocence. What you have said was simply: I presume

Sandra M. Halsey, CSR, Official Court Reporter 176

1 this lady is not guilty.
2 A. Uh-huh. (Witness nodding head
3 affirmatively.)
4 Q. And you won't have any problems
5 keeping that presumption all through these trial
6 proceedings?
7 A. No.
8 Q. And, do you agree with me that it's
9 only fair that the State of Texas is responsible for
10 proving, for bringing you evidence that completely takes
11 away that presumption of innocence beyond any reasonable
12 doubt?
13 A. They are going to have to prove it to
14 me, before I can sentence anybody.
15 Q. And, until they do prove it to you,
16 you are going to continue to presume her innocent?
17 A. Oh, yes, sir. She is not guilty at
18 all.
19 Q. And if the State fails in any regard,
20 then you wouldn't have any problem, in all honesty and
21 truthfulness, saying this lady is not guilty?
22 A. If they can not prove to me what has
23 happened, then let her go. She is innocent.
24 Q. Sort of in that same regard, the State
25 is required to prove, beyond a reasonable doubt, the

Sandra M. Halsey, CSR, Official Court Reporter 177

1 guilt of any defendant, and part of your job as a juror
2 is to judge the credibility of that evidence. They could
3 parade a hundred witnesses in there, and if a juror, if
4 as a juror you thought that they were not credible, then
5 that is in your discretion.
6 You may say, that is no evidence at
7 all. It doesn't remove any reasonable doubt in my mind.
8 I think even, I believe in your questionnaire, you
9 brought out the question of a case in which you thought
10 the police had done sloppy work. You pointed to the O.J.
11 Simpson case.
12 Well, that might be an example where
13 that evidence -- there is evidence that was presented,
14 but as a juror, you say it's not credible. It's not
15 believable. And just because they paraded a hundred
16 witnesses in here, that doesn't remove any doubt. You
17 know, there is reasonable doubt all over this case.
18 And that is your job as a juror, to
19 look at those witnesses and to judge their credibility,
20 or to look at the physical evidence and judge whether or
21 not it proves anything. And, do you have any problem
22 serving in that capacity? Making those judgments?
23 A. No, sir.
24
25 MR. RICHARD MOSTY: That's all I have,

Sandra M. Halsey, CSR, Official Court Reporter 178

1 Your Honor.
2 THE COURT: Mr. Shook, by -- you have
3 12 minutes left, if you want to use them.
4 MR. TOBY SHOOK: That's all I needed,
5 Your Honor.
6 THE COURT: All right. Here is what I
7 want to know from you: Do you understand that first
8 issue up there? "Do you find from the evidence beyond a
9 reasonable doubt that there is a probability that the
10 defendant could commit criminal acts of violence that
11 would constitute a continuing threat to society?" Do you
12 understand what that says?
13 THE PROSPECTIVE JUROR: Yes, sir.
14 THE COURT: If you thought the State
15 had proven that, beyond a reasonable doubt, could you
16 answer that "yes"?
17 THE PROSPECTIVE JUROR: Yes.
18 THE COURT: All right.
19 The second issue down there, taking
20 into consideration all the evidence, do you understand
21 everything that is?
22 THE PROSPECTIVE JUROR: Yes, sir.
23 THE COURT: All right. If you thought
24 there was not sufficient mitigating circumstances, could
25 you answer that question "yes," too?

Sandra M. Halsey, CSR, Official Court Reporter 179

1 THE PROSPECTIVE JUROR: Yes, sir.
2 THE COURT: In other words, even
3 though you have reservations against the death penalty,
4 you would still be able to follow the law, as I give it
5 to you?
6 THE PROSPECTIVE JUROR: Yes, sir.
7 THE COURT: All right. Fine.
8 Anything else?
9 MR. RICHARD MOSTY: No, your Honor.
10 THE COURT: All right. The Court
11 holds the defendant (sic) qualified -- holds the witness
12 (sic) qualified.
13 MR. TOBY SHOOK: Judge, if we could
14 then have a minute, maybe have the juror excused, we
15 could --
16 THE COURT: Okay. That's fine. Just
17 step outside just briefly, please. Don't leave yet.
18 THE PROSPECTIVE JUROR: Okay.
19 THE COURT: While we're at this, may I
20 see the nice young lady from San Antonio for a minute,
21 please?
22 THE OBSERVER: Me? I'm from Dallas.
23 THE COURT: You are from Dallas?
24 THE OBSERVER: Uh-huh. Okay. I am
25 from Channel 11.

Sandra M. Halsey, CSR, Official Court Reporter 180

1 THE COURT: Your name again?
2 THE OBSERVER: Angela Hale.
3 THE COURT: I apologize.
4 THE OBSERVER: That is okay. I also
5 have a sketch artist.
6 THE COURT: Well, that is fine, except
7 we're going to be a little jammed in here.
8 Off the record.
9
10 (Whereupon, a short
11 discussion was held
12 at the side of the
13 bench, between the Court
14 and the attorneys for
15 both sides in the case,
16 off the record,
17 after which time,
18 the proceedings were
19 resumed on the record,
20 as follows:)
21
22 THE COURT: All right. We are back on
23 the record. Mr. Shook.
24 MR. TOBY SHOOK: Judge, going back to
25 Mr. Sloan's answers, we would challenge the juror under

Sandra M. Halsey, CSR, Official Court Reporter 181

1 35.16(b)(1). That the juror has conscientious scruples
2 with regards to the infliction of the punishment of death
3 for a crime, in a capital case, and as the State is
4 seeking the death penalty, because he stated on several
5 occasions that his objections, he just personally didn't
6 feel he could do that. And he stated several times that
7 he couldn't answer those questions in the way that it
8 would result in the defendant's death. He had no
9 problem with life in prison, but something he did feel
10 strongly about. The defense asked the questions
11 obviously, he came around and said, "Oh, yes, I can
12 answer those questions."
13 Judge, I think what we have here is
14 what case law refers to again and again as the
15 vacillating juror. And in those situations, it's up to
16 the trial court's discretion, after looking at them and
17 hearing them and their demeanor, make a decision as to
18 whether they could actually answer those questions or
19 whether their objections to the death penalty or their
20 personal feelings would substantially impair their
21 decision making process, because they give opposite
22 answers.
23 Judge, I think after listening to Mr.
24 Sloan, it is clear that, indeed, he could not -- he would
25 not have a problem giving life in any type of case. But

Sandra M. Halsey, CSR, Official Court Reporter 182

1 as far as the death penalty is concerned, he could never
2 answer those questions the way -- or would not answer
3 them. Just the way I asked the questions, and we would
4 ask that you excuse the juror for cause under those
5 grounds.
6 THE COURT: Overruled. The Court
7 holds the first juror qualified.
8 MR. TOBY SHOOK: Judge, then the State
9 would, then, exercise their peremptory challenge.
10 THE COURT: Very well. Let's call Mr.
11 Sloan back in.
12
13 (The prospective juror
14 was brought back into
15 the hearing room and the
16 proceedings were resumed
17 as follows:)
18
19 THE COURT: All right. Mr. Sloan, we
20 want to thank you very much for your time and for your
21 attendance. You will not be required to be a juror in
22 this case.
23 Thank you very much for your candid
24 answers and for coming down here on such a rainy day.
25 Thank you very much. We appreciate it.

Sandra M. Halsey, CSR, Official Court Reporter 183

1 THE PROSPECTIVE JUROR: Thank you.
2 THE COURT: All right. Number --
3 Juror Number 2.
4 MR. RICHARD MOSTY: Your Honor, could
5 you clarify for me what the time rules are?
6 THE COURT: Well, I think, by
7 agreement, the time rules, were I setting the time rules,
8 the time rules would be 30 minutes a side very strictly.
9 But, if I am in any way being unreasonable about this,
10 and prior to the commencement of these proceedings, both
11 sides had agreed on 45 minutes to a side maximum.
12 However, the Court is happy to go
13 along with that, as long as we're plowing new grounds, so
14 to speak. But let's don't keep going over things over
15 and over again. If once he says he doesn't like the
16 death penalty, we understand that. Or, if he says he
17 does like it -- if you will step outside just one moment,
18 if you could. If he says he does like the death penalty,
19 that is fine. If he says he doesn't like it, that's fine
20 too. But we need to sort of -- we need to understand
21 where we're going here.
22 MR. TOBY SHOOK: Well, Judge, the
23 reason I go on a little more is, jurors lot of time will
24 waffle like that. And it's going to be a decision by the
25 Judge, the Judge makes. And, you know, a lot of times I

Sandra M. Halsey, CSR, Official Court Reporter 184

1 think the jurors really feel -- and I don't think they
2 ever could answer those questions that way. A good
3 attorney like Mr. Mosty can get them to say, "Oh, I will
4 answer those questions." But when it comes down to it --
5 and then that is what becomes so important on your part
6 to make that decision.
7 THE COURT: I understand my function
8 and I understand my part.
9 MR. TOBY SHOOK: The Court of Appeals
10 is going to look to you, and they are going to love your
11 discretion. We just want you to have it.
12 THE COURT: We welcome the Court of
13 Appeals looking to me. And the Court would merely point
14 out, that once the Court has heard it once, I think the
15 Court has heard it enough. One waffle is enough. We
16 understand when they waffle or wiggle or wobble.
17 MR. TOBY SHOOK: Well, but my point is
18 Judge, just because they waffle, they are not qualified
19 jurors. I just want to give you enough information where
20 you can make your decision whether --
21 THE COURT: We appreciate your
22 solicitude, but the Court is well briefed.
23 MR. TOBY SHOOK: All right.
24 THE COURT: Thank you. With that in
25 mind, we will call Juror Number 2.

Sandra M. Halsey, CSR, Official Court Reporter 185

1 Mr. Douglass, did you want to say
2 something?
3 MR. PRESTON DOUGLASS: Well, I was
4 testing my voice.
5 THE COURT: All right. Fine. Have a
6 seat right there, please. Raise your right hand please,
7 sir.
8 Do you solemnly swear or affirm that
9 you will true answers make, to all questions propounded
10 to you, concerning your qualifications as a juror, in
11 this case, in this room, or any courtroom, or any you may
12 be sent, so help you God?
13 THE PROSPECTIVE JUROR: I do.
14
15 (Whereupon, the prospective
16 juror was duly sworn by the
17 Court to true answers make
18 to the questions propounded,
19 concerning qualifications, after
20 which time, the proceedings were
21 resumed as follows:)
22
23 THE COURT: Thank you very much. Will
24 you please state your name?
25 THE PROSPECTIVE JUROR: Richard

Sandra M. Halsey, CSR, Official Court Reporter 186

1 Rodriguez.
2 THE COURT: Richard Rodriguez, and,
3 that is number 5. All right. Richard M. Rodriguez,
4 thank you very much. Now, go ahead, Mr. Shook.
5 MR. TOBY SHOOK: Thank you, Judge.
6
7 Whereupon,
8
9 RICHARD M. RODRIGUEZ,
10
11 was called as a prospective juror, for the purpose of
12 voir dire, having been first duly sworn by the Court to
13 speak the truth, the whole truth, and nothing but the
14 true, testified in open court, as follows:
15
16 VOIR DIRE EXAMINATION
17
18 BY MR. TOBY SHOOK:
19 Q. Thank you, Judge. Mr. Rodriguez, my
20 name is Toby Shook. I am an Assistant District Attorney
21 in Dallas, Texas; one of the prosecutors on this case.
22 This is Sherri Wallace, another prosecutor. The defense
23 counsel present today is Mr. Richard Mosty and Preston
24 Douglass, who are both Kerrville attorneys sitting here
25 at the end of the table.

Sandra M. Halsey, CSR, Official Court Reporter 187

1 First of all, let me ask you: It
2 looks like -- are you from Kerrville originally and then
3 you went to the Army for some 22 years and then you came
4 back; is that correct?
5 A. Right, right.
6 Q. It's that how it worked?
7 A. Yes.
8 Q. Okay. And how long have you been back
9 now?
10 A. Since '93.
11 Q. Okay. Are you familiar with any of
12 the lawyers on the case? More likely the local counsel
13 at all?
14 A. The name Mosty sounds familiar. It's
15 a family name here.
16 Q. Yes. I think Mr. Mosty said all the
17 Mostys are related, and a lot of them here in Kerrville.
18 A. Yeah.
19 Q. But you have never dealt with Mr.
20 Mosty himself?
21 A. No, sir.
22 Q. Okay. And, it looks like you made a
23 career in the Army, for what looks like, what was it, 22
24 years?
25 A. Right. Two years in the Marine Corps,

Sandra M. Halsey, CSR, Official Court Reporter 188

1 and 20 in the Army.
2 Q. What were your duties in the Army?
3 A. Personnel sergeant.
4 Q. And now, you work, I believe at a
5 hospital?
6 A. Right, the VA hospital.
7 Q. Okay. What do you do there?
8 A. I'm an administrative clerk there for
9 the nursing service.
10 Q. All right. And you have not been on a
11 jury before; is that right?
12 A. No, sir.
13 Q. Okay. Usually, Mr. Rodriguez, when we
14 talk to jurors, we talk to them in a big panel all at
15 once in most cases. Because it's a capital case in which
16 the State is seeking the death penalty, we talk to each
17 and every juror individually. And we don't mean to put
18 you on trial, or put you up on the witness stand or
19 anything, it's just the best procedure we have for this.
20 What we want are your honest opinions
21 on these issues that we are going to be asking you about.
22 There is no right or wrong answers. It's not a test of
23 good citizenship or anything like that. Obviously, you
24 know that the State is actively seeking the death penalty
25 in this case. That is what we are going to be going for,

Sandra M. Halsey, CSR, Official Court Reporter 189

1 and the defense is going to be fighting us all the way.
2 So it's a very contested issue.
3 We want to spend some time then going
4 over your personal beliefs about the death penalty. Tell
5 me what you feel about the death penalty. Do you agree
6 with it as a law?
7 A. Well, I think it all depends on the
8 offense and circumstances behind it and so forth.
9 Q. Okay. What types of crimes come to
10 mind when you think of the death penalty? Or certain
11 crimes should be death-penalty-eligible type crimes?
12 A. Outright murder situation, somebody
13 just killing somebody just for the heck of it or
14 something like that. Like -- and some other instances
15 maybe life in prison, just throw away the key, no parole
16 is good enough. It depends on the circumstances, I
17 think.
18 Q. Have you always felt -- been in favor
19 of the death penalty as a law?
20 A. Yeah. Again, like, you know, it is
21 hard. It depends on the circumstances. A serial killer,
22 I think, something is wrong with that person, you know,
23 mentally, you know. Again, you know, the reason behind
24 it and so forth like that.
25 Q. Okay. What do you think the purpose

Sandra M. Halsey, CSR, Official Court Reporter 190

1 of the death penalty is?
2 A. Taking one's life like, you know, the
3 person took that life.
4 Q. Okay. Have there been any cases in
5 the news, any murder cases that you have followed to any
6 great extent that you feel are definitely
7 death-penalty-type cases, anything like that?
8 A. Not really. Just the O.J. trial that
9 was publicized.
10 Q. Oh, yeah, I guess everyone paid
11 attention to the O.J. trial.
12 A. Right.
13 Q. Did you have any particular views on
14 that about the verdict or the way the trial was conducted
15 or anything like that?
16 A. Well, it was a long trial, and I think
17 it was too long. But -- I don't know what I should say
18 about guilty or not guilty. I have no opinion on that.
19 Q. Okay. You never really formed an
20 opinion on that?
21 A. Well, I think it was made too racial
22 and so forth, and the evidence was not really looked at
23 hard. I think the blood evidence was really strong.
24 Q. Okay. In Texas there are only certain
25 types of cases that can get the death penalty. You have

Sandra M. Halsey, CSR, Official Court Reporter 191

1 murder cases, intentional killings, that could be murder,
2 where a person could get life and not the death penalty.
3 You have to have an intentional
4 killing, that's just a certain type of crime. There is a
5 list of them and I will briefly go over some of those.
6 You have intentional killings during a
7 felony, where the guy is robbing a 7-Eleven, murders the
8 clerk; or you go into someone's house and murder them;
9 during a rape; during an arson; that type of thing.
10 You brought up serial killing. That
11 is another type of capital offense. If we can prove
12 someone is killing more than one person in the same
13 transaction; or a series of events; that could be a death
14 penalty case.
15 A. Okay.
16 Q. Killing of a police officer, or a
17 fireman, or a prison guard while they are on duty, or
18 during a prison escape, for instance, could be a
19 death-penalty-type case.
20 Also Judge Tolle has read to you the
21 indictment in this case. A murder of a child under the
22 age of six in Texas is the death penalty. Do you agree
23 with those types of crimes could be eligible, depending
24 on the facts of the case, the death penalty-type crimes?
25 A. Yes. Yes, sir.

Sandra M. Halsey, CSR, Official Court Reporter 192

1 Q. The particular indictment in this
2 case, the murder of a child under the age of six; do you
3 feel that is the type of crime that should be eligible
4 for the death penalty?
5 A. Yes, sir.
6 Q. Okay. The way the procedure works,
7 the jury is impaneled, we divide the trial into two
8 parts: There's the guilt/innocence stage and the
9 punishment phase. If the State proves it's case beyond a
10 reasonable doubt, in the guilt/innocence stage, the jury
11 returns a verdict of guilty of capital murder. At that
12 point, there is only two alternatives left; life or
13 death. And you can hear additional evidence, you may
14 not.
15 The additional evidence, after its all
16 in, you will be given these questions, which are behind
17 me. And we will go over those in more detail in a
18 moment.
19 Basically, the State has to prove that
20 first issue, would the defendant be -- is there a
21 probability they would be a continuing threat to society.
22 If you answered yes to that question, we would move to
23 this second one. Which is the mitigation issue.
24 Basically, the jurors review all of the evidence, and if
25 they think there is evidence that the defendant's life

Sandra M. Halsey, CSR, Official Court Reporter 193

1 should be spared, and get a life sentence, they could
2 answer it that way.
3 But there's only two alternatives once
4 the defendant has been found guilty of capital murder,
5 life or death. Is that clear to you?
6 A. Yes, sir.
7 Q. The Judge sentences the defendant
8 based on how the jury answered those questions. A "yes"
9 and a "no" will equal death, a "yes" and a "yes," or a
10 "no" to that first question would equal life in prison.
11 In Texas, the method of injection is
12 by -- the method of execution is by lethal injection.
13 You have probably read or seen that on TV. And it's a
14 very real matter, I want to tell you. You know, there
15 has been over 100 executions in the State of Texas.
16 Sometimes we read and hear about them.
17 What we need to know, Mr. Rodriguez,
18 though, is, you know, you talk philosophically that there
19 are some cases and some facts of each case that you think
20 people are eligible for the death penalty.
21 We need to know if you could
22 personally sit on a jury and listen to the evidence, and
23 if the State proves its case and proves these special
24 issues in such a way that you could take pen in hand and
25 write those answers knowing that the way you write them

Sandra M. Halsey, CSR, Official Court Reporter 194

1 could result in the defendant's death. Could you do
2 that?
3 A. Yes, sir, if it was proven to me.
4 Yes, sir.
5 Q. Okay. I think you had answered this
6 question on the questionnaire, it is -- obviously the
7 defendant is a woman. Usually when we think of hardened
8 criminals, or criminals eligible for the death penalty,
9 we always think of men, I mean, that is just natural.
10 Some people come in and they have told us that they
11 couldn't sit on a death penalty case involving the taking
12 of a woman's life. I believe in your questionnaire, you
13 don't have any conscientious scruples against that, do
14 you?
15 A. No, sir.
16 Q. It doesn't matter one way or the other
17 if it's a man or a woman in your eyes; is that right?
18 A. No, sir.
19 Q. Okay. Let me go -- we had a question
20 on our questionnaire that asks if you have ever felt
21 differently about the death penalty than you do now. You
22 put yes, do you remember that?
23 A. Uh-huh. (Witness nodding head
24 affirmatively.) Yes, sir.
25 Q. Tell us a little bit about that.

Sandra M. Halsey, CSR, Official Court Reporter 195

1 A. Well, again like I said, going back to
2 what I said about throwing away the key and leaving them
3 there forever.
4 Q. Uh-huh. (Witness Nodding head
5 affirmatively.)
6 A. Because sometimes a person might
7 suffer there, knowing that they killed somebody, and
8 keeping that feeling inside, than just eliminating
9 somebody just -- an execution.
10 Q. Okay. Your answer is quite lengthy,
11 and I want to be fair to you. Let me let you read this
12 to yourself. Take a look at the bottom of that page
13 there. Page 3.
14 A. I said that the death penalty does not
15 really bring out the -- the victim back. And life in
16 prison without parole can be more punishment than killing
17 somebody or the offender.
18 Q. Okay. And then, look at the last part
19 there.
20 A. But if a person kills more than one or
21 two or three or four, and how they were killed -- well,
22 also, if how they were killed maybe they might deserve a
23 quick death.
24 Q. Okay. That is the part -- you
25 scratched something out there, so I wasn't real clear on

Sandra M. Halsey, CSR, Official Court Reporter 196

1 that. What did you mean by the last part of that
2 statement?
3 A. Well, it depends on the offense, on
4 how that person was killed, you know, with no feelings or
5 the situation on the offense.
6 Q. Okay. There's different ways the
7 State has of proving its case. I'm probably sure you
8 have heard the term circumstantial evidence, haven't you?
9 A. Uh-huh. (Witness nodding head
10 affirmatively.)
11 Q. We hear it on TV and movies a lot.
12 A. Uh-huh. (Witness nodding head
13 affirmatively.)
14 Q. What lawyers call a lot is direct
15 evidence or indirect evidence.
16 A. Okay.
17 Q. Direct evidence is someone -- an
18 eyewitness to a crime. Okay? If someone -- if you left
19 the courthouse today and someone came up and robbed you,
20 and they were caught later, and you were able to identify
21 them, your testimony would be direct testimony, direct
22 evidence. Okay?
23 Indirect evidence is any other
24 evidence that links the defendant to a crime. It could
25 be fingerprints, physical evidence; you talked about

Sandra M. Halsey, CSR, Official Court Reporter 197

1 blood evidence in the O.J. case, DNA evidence.
2 It could be items or things that link
3 the defendant before, during, or after the crime. It
4 could be statements by the defendant that link them
5 before, during, or after the crime. Things that are
6 found at the crime scene. Things of that nature. That
7 is all indirect evidence, and that is also called
8 circumstantial evidence.
9 Any other evidence, other than the
10 direct eyewitness to a crime, is circumstantial evidence.
11 Do you understand that?
12 A. Yes, sir.
13 Q. Okay. Now many times, especially in a
14 murder case, we have no, obviously, eyewitness to a
15 crime. There's the perpetrator and the victim.
16 Obviously, the perpetrator has not left a live person to
17 testify.
18 So we have to prove our case using
19 indirect evidence, or i.e. circumstantial evidence. Do
20 you have any problem with circumstantial evidence; the
21 State proving its case?
22 A. No, sir.
23 Q. Do you feel that if you get enough of
24 it, you can find the defendant guilty beyond a reasonable
25 doubt using just circumstantial evidence?

Sandra M. Halsey, CSR, Official Court Reporter 198

1 A. Yes, sir.
2 Q. Okay. And do you feel you could do it
3 in a death penalty case?
4 A. Yes, sir.
5 Q. Okay. Another factor I want to go --
6 or another area I want to go over is motive. We always
7 hear about motive. I know I did watching Perry Mason and
8 crime shows. You got to have a motive; or what's the
9 motive in this case. Motive being the reason for the
10 killing. Why did it happen? In Texas the State is not
11 required to prove motive. The reason it happened. Okay?
12 It's not a requirement at all.
13 And in the first part of the case, we
14 just have to prove the indictment. That it is an
15 intentional killing; knowingly and intentionally killing.
16 And did the defendant commit it the way we say it was
17 committed. Okay? That is what we have to prove. We
18 don't have to prove why it happened or the reason behind
19 it happening.
20 The motive might be clear once all the
21 evidence is in, you know, it might be clear as a bell.
22 Or, it might be very unclear. There could be three or
23 four or five motives. Everyone could have their opinion
24 as to what the motive is. Maybe the defendant only knows
25 the motive, and it's not obvious to anyone else. So, it

Sandra M. Halsey, CSR, Official Court Reporter 199

1 could be very well that you hear a case where it's proven
2 to you, but you never know the reason for it or the
3 motive behind it.
4 Does that bother you in any way?
5 A. No, sir.
6 Q. Okay. Would you require the State to
7 prove motive in any way?
8 A. No, it's just if the evidence is there
9 and so forth, then whatever you have, you know, I will
10 listen to what you have.
11 Q. Do you understand the difficulty could
12 be, obviously, and even everyone could have their own
13 opinion as to what the true motive was to a crime?
14 A. Well, it depends again on the
15 evidence.
16 Q. Right. It may be one case where it's
17 clear as a bell, and may not be. But you would not let
18 that stand in your way as far as finding someone guilty
19 of capital murder; is that right?
20 A. Right.
21 Q. What about as far as these punishment
22 issues: Would you be able to answer those questions in a
23 way, even if you never knew fully, clearly what the
24 motive was to a crime?
25 A. Yeah, I would be able to answer.

Sandra M. Halsey, CSR, Official Court Reporter 200

1 Q. Okay. That is fair enough. Let's
2 talk about these punishment questions. You don't get to
3 these unless the defendant has been found guilty beyond a
4 reasonable doubt. Okay?
5 Once that happens we go into the
6 second phase of the trial, where you may hear additional
7 evidence or you may not. It could be a situation where
8 both sides rest, or you might hear days and days of
9 punishment. It could possibly be anything about the
10 defendant's background or anything like that. Good
11 things, bad things, all goes into consideration.
12 The State has to prove this first
13 special issue. We have to prove that beyond a reasonable
14 doubt. That question reads, and if you will just go
15 along with me: "Do you find from the evidence beyond a
16 reasonable doubt that there's a probability the defendant
17 would commit criminal acts of violence that would
18 constitute a continuing threat to society?"
19 Do you see where that question is
20 asking you to make a prediction of how the defendant is
21 going to behave in the future?
22 Do you feel you could answer a
23 question like that?
24 A. Yes, sir.
25 Q. What type of evidence or what type of

Sandra M. Halsey, CSR, Official Court Reporter 201

1 background information, what types of things would you
2 want to know before you answered a question like that?
3 A. Well, the -- to answer that question,
4 probably, the way the person -- how she lived, and how
5 her life and environment and all this, that led to this
6 offense.
7 Q. Okay. Would there -- if there was any
8 criminal background, would that be important to you?
9 A. Yes.
10 Q. Okay. Is that what you meant by how
11 she lived and things like that?
12 A. Well, it says a continuing threat to
13 society.
14 Q. Right. Okay. First of all, let me
15 tell you the definitions of the words -- that you will be
16 given no definitions for this particular question. On a
17 lot of the other issues you get plenty of legal
18 definitions. But the legislature has left it up to each
19 and every -- the jurors, what these definitions may be.
20 Probability. We have to prove that
21 there is a probability that the defendant would commit
22 criminal acts of violence. What does probability mean to
23 you?
24 A. That it's possible that she could
25 commit another violent act in the future.

Sandra M. Halsey, CSR, Official Court Reporter 202

1 Q. Are you comfortable with that type of
2 language? What the State has to prove?
3 A. Yes.
4 Q. Okay. Some people come in and tell
5 us, I want you to prove to an absolute certainty that
6 that is going to happen. Obviously, that is not what the
7 question says. Is that okay with you?
8 A. Yes.
9 Q. All right. We have to prove that the
10 defendant would commit criminal acts of violence. When
11 you see the words, criminal acts of violence, what do
12 those words mean to you?
13 A. That the person would go out and
14 commit a violent act again in the future. That it is
15 possible that they will kill somebody else later on.
16 Q. Okay. Kill someone else, another
17 murder, that would be --
18 A. Another murder or another offense or
19 whatever.
20 Q. Okay. Would it solely be a murder in
21 your case, or are there other types of criminal acts of
22 violence that you are able to think of?
23 A. Well, yes. There are other types of
24 violence, you know, rape, burglary or anything like that.
25 Q. Okay. Any major felony offense,

Sandra M. Halsey, CSR, Official Court Reporter 203

1 things like that?
2 A. Right. Right.
3 Q. Okay. We had a question regarding
4 this. You know, we've talked about you might hear a lot
5 of background information, good or bad -- and we can't go
6 over the facts of the case, obviously, but we're just
7 talking about general items here. But there could be a
8 situation where the defendant -- a defendant could go out
9 and commit capital murder. Okay?
10 The State puts them on trial and
11 proves that, but as far as their other lives are
12 concerned, before the capital murder ever occurred, they
13 were a saint. They never did anything wrong in their
14 life.
15 So you could be faced with a situation
16 of no criminal history, anything like that. You just
17 have to look at that question number 1, based on the
18 facts of the offense alone.
19 Do you feel you could answer that
20 question or the State could prove that question to you
21 beyond a reasonable doubt just based on the facts of the
22 offense alone? Would you need additional background
23 evidence?
24 A. Yeah. I think I would be able to
25 answer that question.

Sandra M. Halsey, CSR, Official Court Reporter 204

1 Q. Just on the facts of the offense
2 alone?
3 A. Yes.
4 Q. Okay. And what is important to you on
5 the facts of the offense alone. Do you think that tells
6 you a lot about the person, the way the crime occurred,
7 or what is it about that?
8 A. I would have to hear what you have,
9 you know, the offenses and what you have.
10 Q. Okay. Again, I know it's kind of hard
11 since we can't preview the case. What do you think you
12 are going to do on this, Mr. Rodriguez, and that kind of
13 thing. But would the facts of the offense alone be
14 pretty important to you in making your decision whether
15 they would be a future danger?
16 A. Yes.
17 Q. Okay. Just sitting there, is that --
18 would that be the most important factor or is their
19 background more important or what is your thought
20 about --
21
22 MR. RICHARD MOSTY: Your Honor, I
23 think that is asking for a commitment from the juror
24 beyond what is allowed.
25 THE COURT: Well, let's rephrase the

Sandra M. Halsey, CSR, Official Court Reporter 205

1 question. Listen to it very carefully.
2
3 BY MR. TOBY SHOOK:
4 Q. Just looking at all the things you
5 could possibly hear: The facts of the crime itself,
6 possible background, good or bad things like that; what
7 do you feel is more important to you as far as that
8 question goes?
9 A. Well, I think the facts of the case is
10 more important.
11 Q. Okay. Okay. Do you understand that
12 we have to prove that beyond a reasonable doubt?
13 A. Yes, sir.
14 Q. It starts out with a no answer?
15 A. Yes.
16 Q. If we do that we are entitled to a
17 yes. Then, if we did that, you go into the second
18 question. That is the long one. It gets kind of
19 confusing, but let me read that.
20 "Taking into consideration all the
21 evidence, including the circumstances of the offense, the
22 defendant's character and background, and personal, moral
23 culpability of the defendant, is there a sufficient,
24 mitigating circumstance or circumstances to warrant that
25 a sentence of life imprisonment, rather than a death

Sandra M. Halsey, CSR, Official Court Reporter 206

1 sentence be imposed?"
2 A. Okay.
3 Q. That question gets kind of lengthy;
4 the legislature wrote that thing out. That is kind of a
5 safety net, though. You don't get to this question
6 unless you found the defendant guilty of capital murder,
7 unless you found they are a continuing threat to society.
8 Then you review all the evidence, the crime itself, and
9 any background you may have heard, and decide: Is there
10 something there that I think, rather than a death
11 sentence should be imposed, a life sentence should be
12 imposed. Okay?
13 And then you could answer it that way.
14 Now this question: Neither side has
15 the burden of proof. Okay? It is just out there. And,
16 as far as mitigation goes, you don't have to agree on
17 what mitigation is. You are not going to be given a
18 definition of what mitigation is, and you don't have to
19 agree with any of the other jurors. You just have to be
20 able to keep your mind open to it.
21 Do you think this is a fair question
22 to have in a death penalty case?
23 A. Yes, sir.
24 Q. Okay. When we talk about mitigating
25 evidence, evidence that you would -- you would think that

Sandra M. Halsey, CSR, Official Court Reporter 207

1 would have sufficient mitigating circumstances, that they
2 get a life sentence rather than a death sentence, does
3 anything come to mind at all? What you might consider as
4 possible mitigating evidence?
5 A. Well, again, I have to listen to the
6 case and the offense.
7 Q. And that is the normal answer we get
8 because most people don't sit around thinking about these
9 things, luckily. Like I said, mitigating is just going
10 to be whatever you want it to be. It's going to be up to
11 you. You don't have to agree with any of these things.
12 Let me run a few things by you, and see how you feel
13 about them.
14 Sometimes we have had cases where
15 there is history of -- well, the defendant could be very
16 young. I am not talking about a 12-year-old or anything
17 that, but could be a very young person. Do you think
18 youth is mitigating in any way?
19 A. No.
20 Q. Okay. Sometimes you have cases where
21 a person commits a crime that are under the influence of
22 drugs or alcohol. That is no legal defense in Texas, but
23 it can be used in mitigating evidence and punishment. Is
24 that mitigating in any way?
25 A. No.

Sandra M. Halsey, CSR, Official Court Reporter 208

1 Q. You might hear evidence of a person
2 who has been sexually abused or physically abused in
3 their past when they were growing up. Would that be
4 mitigating in any way?
5
6 MR. RICHARD MOSTY: Your Honor, again,
7 I think that is a little over broad. That is asking for
8 a commitment there. I think the proper question is,
9 "Could you consider that type of evidence," or talk about
10 it, is what way he might give it or how important it is.
11 But he says, "Is it mitigating?" I think is asking for a
12 commitment.
13 THE COURT: All right. Well, let's
14 rephrase the question to: "Could you do it?"
15
16 MR. TOBY SHOOK:
17 Q. Is that the type of evidence you think
18 could be mitigating? I'm not asking you if you think it
19 is, because you haven't heard any of the facts. I'm
20 talking real general.
21 A. Right. I don't know nothing about --
22 Q. But you have heard those situations,
23 I'm sure? The defendant was -- maybe grew up in a very
24 abusive environment, those types of things. Might cause
25 them to act a certain way, people might make that

Sandra M. Halsey, CSR, Official Court Reporter 209

1 argument. Is that the type of evidence you might
2 consider to be mitigating?
3 A. Well, it depends again, on the offense
4 and so forth.
5 Q. Okay. The bottom line is, is if you
6 can keep your mind open to that type evidence, and if
7 something comes up that is mitigating where you think a
8 life sentence is more deserving, you could do that?
9 A. Right.
10 Q. Okay. Let me go over a couple of
11 other things on your questionnaire.
12 A. Okay.
13 Q. We had put down that: "Have you known
14 anyone that has been to jail or prison?" You had put
15 down a person for drugs and put some prison time.
16 A. Right.
17 Q. Who was that?
18 A. My little nephew.
19 Q. How long ago was that?
20 A. Well, he is still in the system.
21 Q. He is still in the system?
22 A. Uh-huh. (Witness nodding head
23 affirmatively.)
24 Q. Do you know -- was it a drug case of
25 some sort?

Sandra M. Halsey, CSR, Official Court Reporter 210

1 A. Yes, it was a drug case.
2 Q. Do you know anything about the facts
3 of the case or were you away?
4 A. No. I was away at the time.
5 Q. Do you know how long a sentence he was
6 given?
7 A. I think it was -- I really can't say.
8 Q. You are not really that familiar with
9 the fact then, are you?
10 A. No. He just messed up.
11 Q. Okay. Do you think he was treated
12 fairly by the justice system?
13 A. I think so. Like I say, I was away,
14 I'm not sure.
15 Q. All right. Sometimes you will hear
16 from psychiatric testimony from one side or the other.
17 You might hear from a psychologist or a psychiatrist that
18 can give their opinions on either mitigation or whether a
19 person will be a continuing danger.
20 How do you feel about that type of
21 expert testimony coming from psychiatrists? Do you put a
22 lot of stock in that type of testimony? Would you keep
23 your mind open to it? Or is it something you just would
24 not listen to?
25 A. No, I keep my mind open, you know,

Sandra M. Halsey, CSR, Official Court Reporter 211

1 they specialize in that. That is their field.
2 Q. Okay. So your mind would be open to
3 it?
4 A. Yes.
5 Q. Okay.
6
7 MR. TOBY SHOOK: If I could have just
8 one moment, Judge?
9 THE COURT: You may.
10
11 BY MR. TOBY SHOOK:
12 Q. I am almost finished, Mr. Rodriguez,
13 and I am sure you are glad to hear that. You have never
14 sat on a jury before; is that right?
15 A. No, sir.
16 Q. And I believe the only -- I asked you
17 if you have followed any cases in the news and you really
18 hadn't, other than the O.J. Simpson case. But you have
19 no scruples against sitting on a case and listening to
20 the evidence, and if we prove our case, you could answer
21 these questions that result in a person's death; is that
22 right?
23 A. Right, sir.
24 Q. Okay. It just depends on what the
25 facts were?

Sandra M. Halsey, CSR, Official Court Reporter 212

1 A. Right.
2 Q. Okay. Have you heard -- you have
3 heard some facts of this case on the TV, I believe you
4 put down; is that right?
5 A. Right, sir.
6 Q. Did you follow the case closely?
7 A. No, just that they moved the trial to
8 Kerrville.
9 Q. Okay. Did you get any of the facts or
10 background of the crime from the TV?
11 A. No, sir.
12 Q. So you really don't know what this is
13 all about at all?
14 A. No. Just what, you know, it's a
15 murder trial, that's all.
16 Q. Okay. As far as the news goes, you
17 can disregard that and just listen to the evidence as it
18 comes in the courtroom?
19 A. Right.
20 Q. Have you ever followed any cases in a
21 trial that involved women defendants? I know we always
22 see one with men.
23 A. No.
24 Q. It's unusual to have a woman on trial.
25 You never have done that?

Sandra M. Halsey, CSR, Official Court Reporter 213

1 A. No, sir.
2 Q. You remember a couple of years ago, it
3 was in the news a lot, the Susan Smith case?
4 A. I don't recognize the name.
5 Q. Okay. You probably didn't follow it
6 much then?
7 A. No.
8 Q. The case involving a woman tried for
9 the death penalty in South Carolina? Murder of her
10 children? You don't remember that one?
11 A. Oh, yes. It's the one about the car
12 found in the lake or something like that.
13 Q. Yes, that is the one. Did you follow
14 that case at all?
15 A. Well, for -- you know, of course, it
16 was on TV and so forth.
17 Q. Did you draw any opinions, conclusions
18 about that trial, its outcome or anything like that?
19 A. Well, I know they found her guilty.
20 Q. Uh-huh. Were you aware of what the
21 punishment was?
22 A. I know she went to prison. I'm not
23 sure.
24 Q. But you didn't follow the case that
25 closely?

Sandra M. Halsey, CSR, Official Court Reporter 214

1 A. No.
2 Q. Okay. All right. Mr. Rodriguez, do
3 you have any questions about anything I have gone over?
4 A. No, sir.
5 MR. TOBY SHOOK: Okay. That's all the
6 questions I have.
7
8 THE COURT: Thank you, Mr. Shook. Mr.
9 Mosty?
10
11
12 VOIR DIRE EXAMINATION
13
14 BY MR. RICHARD MOSTY:
15 Mr. Rodriguez, I am Richard Mosty.
16 This is Preston Douglass, my partner seated behind me,
17 and Darlie Routier, our client, seated back there. Did
18 you graduate from Tivy?
19 A. Right, sir.
20 Q. What year?
21 A. '67.
22 Q. '67. All right. Well, you were a
23 couple of years ahead of me. I was a '69 graduate. You
24 didn't play golf in high school, did you? I noticed that
25 is one of your things you do now.

Sandra M. Halsey, CSR, Official Court Reporter 215

1 A. No, I played basketball, mostly.
2 Q. With Willie Bratcher, that group?
3 A. Yes, sir.
4 Q. I was not much of a basketball star.
5 In spite of my height, I was not very good. Let's talk
6 about what we were talking about just at the end there
7 about what you know about, what you have heard about the
8 case.
9 What papers do you ordinarily and
10 regularly read?
11 A. Right now, just the Kerrville local
12 paper.
13 Q. All right. You don't read the San
14 Antonio paper on a consistent basis?
15 A. No.
16 Q. Now what do you recall about hearing
17 about the case from the Kerrville paper or the news
18 media, about this case?
19 A. Like I said, that it was moved to
20 Kerrville for a murder trial, and it involved the murder
21 of the two children.
22 Q. All right. And would you think that
23 you heard about that or read about that just shortly
24 before you were called up for jury duty last week?
25 A. Well, I didn't know that it was going

Sandra M. Halsey, CSR, Official Court Reporter 216

1 to be -- I know I got called up for jury duty. And then
2 Sunday -- Sunday night the news they said they were going
3 to select jurors for this trial on Monday morning. Well,
4 I was scheduled to come in on Monday morning.
5 Q. So when you got your jury summons, you
6 didn't have any idea what kind of case it was?
7 A. That's correct.
8 Q. And from what you have heard, have you
9 formed any opinions whatsoever about this case?
10 A. I don't think so.
11 Q. The reason I say that is, that -- and
12 maybe this is a reflection of our perspectives. Mr.
13 Shook spent a great deal of time talking about the death
14 penalty and punishment, and, in fact, that is just the
15 reverse of how I want to talk to you about it. Because I
16 want to talk to you about the first part of trial. And
17 then, in order of proceedings, the first part of the
18 trial is, is this defendant guilty?
19 Does the State of Texas present enough
20 evidence, enough believable, credible, solid evidence
21 that removes any reasonable doubt. And so I want -- that
22 is what I want to focus on.
23 And so, that is why I begin with the
24 question about any opinions about the case. That as we
25 sit here right now, you are instructed and have been

Sandra M. Halsey, CSR, Official Court Reporter 217

1 instructed by Judge Tolle to presume Mrs. Routier
2 innocent. Do you have any problem whatsoever with that?
3 A. No, sir.
4 Q. Is there anything in your background
5 or what you know about the case that would prohibit you
6 from doing that?
7 A. No, sir.
8 Q. Judge Tolle gave, I thought, some
9 really fine explanations last week of -- frame that part,
10 will you, please -- that in Dallas County, there are
11 25,000 people who are indicted every year, 125, I think
12 he said per day or session, and many of whom never, ever
13 know they are under suspicion or investigation. So it
14 sort of seems only fair to me that that Grand Jury
15 indictment means nothing. It just means absolutely
16 nothing; as Judge Tolle described it as neutral. Does
17 that seem all right with you? Is that fair?
18 A. Yes.
19 Q. Just because a person has been
20 indicted and brought up here, that doesn't in any way
21 remove the presumption of innocence that my client
22 enjoys. Could you stick with that?
23 A. Yes, I believe that they have to prove
24 somebody guilty.
25

Sandra M. Halsey, CSR, Official Court Reporter 218

1 THE COURT: All right.
2 THE COURT REPORTER: Excuse me, Judge,
3 I need a short break.
4
5 (Whereupon, a short
6 recess was taken,
7 After which time,
8 The proceedings were
9 Had as follows:)
10
11 THE COURT: All right. Let's continue
12 on as we say in Texas.
13
14 BY MR. RICHARD MOSTY:
15 Q. Now, when you and Mr. Shook were
16 talking about mitigating circumstances a little bit, you
17 said several times, and in the first part of your voir
18 dire examination, you talked several times about it
19 depends upon the circumstances of the case. It depends
20 upon the circumstances in a proper case. I could do
21 something, but it depends upon the facts.
22 Well, in my judgment that is a way of
23 saying that you presume this lady to be innocent. That
24 you will require the State to prove beyond a reasonable
25 doubt that she is guilty. And that you won't draw any

Sandra M. Halsey, CSR, Official Court Reporter 219

1 inferences against her; that it depends upon the facts.
2 A. That's correct.
3 Q. Okay. And, when you talk about it
4 depending upon the facts, do you understand that that is
5 the State of Texas' responsibility to bring you those
6 facts, to bring you those facts to remove any reasonable
7 doubt?
8 A. Right.
9 Q. And the defendant can do nothing. Can
10 never ask a question, if we choose not to do so. Knowing
11 the lawyers in this case, it's unlikely, that we will sit
12 totally mum, but we might. And Judge Tolle, knowing him,
13 will be thankful, but probably it won't work. And you
14 can stick with those presumptions, and that burden of
15 proof and require the State to prove its case. That
16 won't be a problem for you?
17 A. No, no problem.
18 Q. And if, in fact, the State doesn't
19 prove its case, would you have any problem, in all good
20 faith and honesty, just saying not guilty? You did not
21 prove this lady guilty?
22 A. Right, after I listen to the facts.
23 Q. Right. Let me talk -- I have a --
24
25 MR. RICHARD MOSTY: Is this y'all's

Sandra M. Halsey, CSR, Official Court Reporter 220

1 board?
2 MR. TOBY SHOOK: It belongs to Dallas
3 County.
4
5 BY MR. RICHARD MOSTY:
6 Q. I want to talk to you just briefly
7 about circumstantial and direct evidence. Mr. Shook
8 talked about that, and I like to envision this circle as
9 being reasonable doubt. That that circle is reasonable
10 doubt. And the State's obligation that we just talked
11 about was to remove reasonable doubt.
12 Their obligation is to take that
13 circle and blacken it entirely. Take away all reasonable
14 doubt. And as Mr. Shook said one of the ways they do
15 that is with direct evidence. And if this pad is direct
16 evidence, and it goes and it covers that circle,
17 reasonable doubt is gone. Directly because of direct,
18 credible evidence.
19 Now, you can get into a debate about
20 did the eyewitness really see what they said they saw.
21 And maybe they present some direct evidence, but it
22 doesn't -- I mean, the credible part of that evidence
23 does not remove reasonable doubt. You still got
24 reasonable doubt and the jury has to find the defendant
25 not guilty.

Sandra M. Halsey, CSR, Official Court Reporter 221

1 Now, circumstantial evidence is
2 different. What circumstantial evidence does is an
3 attempt by the State to exclude reasonable doubt based
4 upon a whole bunch of, perhaps, but maybe not many,
5 circumstances. That when you take all of those
6 circumstances, that those circumstances completely
7 blacken out this circle. They exclude any other
8 reasonable hypothesis. Other than the fact that this
9 defendant, in whatever case you are on trial on, is
10 absolutely guilty.
11
12 MR. TOBY SHOOK: Judge, we will object
13 to the definition of -- with any other reasonable
14 hypothesis, I don't believe it's the law.
15 THE COURT: All right. I'll sustain
16 the objection.
17
18 BY MR. RICHARD MOSTY:
19 Q. The evidence must exclude all
20 reasonable doubt. That whatever evidence they prove must
21 exclude all other reasonable doubt.
22 Does that -- can you appreciate that
23 distinction between circumstantial and direct evidence,
24 and how it may play in how you evaluate a case?
25 A. Well --

Sandra M. Halsey, CSR, Official Court Reporter 222

1 Q. Or is my drawing more confusing than
2 helpful?
3 A. Well, I understand the direct, but the
4 other is -- to me it all depends on the evidence; on what
5 they have to make a decision.
6 Q. And the important thing that I am
7 trying to draw here is that when they present -- when the
8 State presents these bits and pieces of evidence, the
9 burden of proof is still the same. The State must
10 exclude and remove all reasonable doubt; they must
11 blacken that circle with a whole set of circumstances
12 that blackens the circle. And, it does depend on the
13 circumstances of a case.
14 Mr. Shook made the comment that the
15 State is not required to prove motive, and that is a true
16 statement. However, a jury may also conclude that lack
17 of motive might create some doubt; might create a
18 reasonable doubt. Just the simple fact that the lack of
19 motive here just pokes a hole and it creates light in
20 that circle, and creates reasonable doubt by itself. Can
21 you appreciate that there might be some circumstances
22 like that?
23 A. Yes.
24 Q. So, motive, although the State is not
25 required to prove it, it might be a very important issue

Sandra M. Halsey, CSR, Official Court Reporter 223

1 for a jury.
2 A. Yes.
3 Q. That is what -- a lot of what a jury
4 does is -- maybe all of what a jury does, is weigh the
5 evidence and give a certain amount of weight to it; or
6 determine whether or not the evidence is credible. Is it
7 believable, how it's presented? Does it make common
8 sense? Does it logically fit together like the links in
9 a chain that would logically fit and tie together and
10 form a circle. Or are there parts of it that just don't
11 fit?
12 And a jury may take those parts that
13 don't fit, and give them no weight at all. Say they are
14 not material; they are not credible; they are not
15 logical. And it's a fact and I accept it, but it doesn't
16 prove anything with respect to whether or not this
17 defendant is on trial; is guilty beyond a reasonable
18 doubt.
19 Do you think you would have any
20 problem as a juror weighing the evidence and giving
21 whatever weight, if any, you thought it deserved working
22 with your other jurors to go through that process?
23 A. No, I don't think I would have a
24 problem with that.
25 Q. What was your assignment in the

Sandra M. Halsey, CSR, Official Court Reporter 224

1 military? What primarily did you do?
2 A. I was a supervisor of the personnel
3 center.
4 Q. Is that during your entire -- was it
5 22 years?
6 A. Well, two years in the Marine Corps,
7 and -- yes, it was all personnel. It was all personnel.
8 Q. So you dealt with human beings and
9 human relations on a regular basis?
10 A. Yes.
11 Q. What rank did you achieve?
12 A. E-7, Sergeant First-class.
13 Q. One of the things that sometimes, or
14 frequently happens is, in a capital murder case you have
15 a lot of very graphic photos of terrible crimes. And let
16 me first tell you that there is no question that a
17 terrible crime was committed.
18 You will hear evidence of a terrible
19 crime. That is not going to be what this case is about.
20 The case is going to be about whether or not the State
21 can prove beyond a reasonable doubt who did it.
22 So, I just want to caution you that
23 you will, in all likelihood, see some gruesome crimes,
24 gruesome photos. And, my question is: Do you think
25 that -- and I think I know the answer to this, but I am

Sandra M. Halsey, CSR, Official Court Reporter 225

1 going to ask it. Do you think that just seeing those
2 photographs would cause you so much anguish or rage that
3 you would necessarily want to find someone guilty?
4 A. No.
5 Q. One -- in that sense, you are not
6 here -- the jury is not here to solve the case. That is
7 not the jury's job. That is the State of Texas' job; is
8 to solve the case and to bring the testimony to a jury.
9 And a jury may walk out and say this is a terrible case.
10 And perhaps the O.J. Simpson jury did
11 this, I don't know, walked out and said, this is terrible
12 case and I wish someone would solve it, but the State in
13 this instance has not proved this defendant guilty.
14 So, when I talk about the photographs
15 and some of the evidence, don't feel compelled that you
16 have got to solve the case or that you have got to figure
17 out who did the case; who committed the crime. Because
18 that is not your job. Your job is to be a fact-finder,
19 and to weigh the evidence and determine whether or not
20 it's credible or believable or even material. Is there
21 anything about that process that you don't think that you
22 could work through?
23 A. No.
24 Q. Do you feel like that you could sit
25 with your fellow jurors and weigh the evidence together

Sandra M. Halsey, CSR, Official Court Reporter 226

1 and come to a verdict?
2 A. Yes, sir.
3 Q. Now having spent most of my time
4 talking about the first part of the trial, I always hate
5 to even have to discuss punishment. Because I don't ever
6 want a prospective juror to think that the fact that I am
7 going to discuss the punishment with you, or the range of
8 punishment, could in any manner, make you take away the
9 presumption of innocence.
10 But the law requires -- this is the
11 only opportunity I am going to get to talk to you -- the
12 law requires that I talk to you about punishment. So I'm
13 going to have to.
14 In a capital case there are only two
15 possible punishments, if a jury finds a defendant guilty.
16 That is either life or the death penalty. And the
17 procedure that the legislature has set up is a special
18 issue type procedure. And that is, that the jury is
19 asked to answer these two special issues over here.
20 The process is that you hear the
21 evidence at the first part of the trial. The Judge gives
22 you a charge, a written charge of the law. The lawyers
23 argue the case. And the jury goes out and determines
24 whether or not the State has proved beyond a reasonable
25 doubt that the defendant is guilty. If the jury finds

Sandra M. Halsey, CSR, Official Court Reporter 227

1 the defendant not guilty, then the jury is discharged and
2 everybody goes home.
3 If the State -- if the State has met
4 its burden of proof and the jury finds the defendant
5 guilty, then, in essence, there is a second trial. It
6 starts immediately. And, you may, or you may not, be
7 presented any additional evidence that bears particularly
8 to the issue of punishment. And the Court reads you
9 another charge on punishment, the lawyers make another
10 argument that focuses on punishment, and jury goes out
11 and makes its determination; again based on the evidence.
12 The first question is: "Do you find
13 beyond a reasonable doubt that there is probability that
14 the defendant would commit criminal acts of violence that
15 would constitute a continuing threat to society?" And I
16 want to clarify one thing with you. I think, by and
17 large, you said with respect to these questions as well,
18 it would depend on the evidence.
19 A. Right.
20 Q. And I don't want to ask you for any
21 kind of commitment, but there might be a lot of things
22 that you would take into consideration. But the one
23 thing I did want to clarify with you was, you used the
24 word possibility.
25 I believe when Mr. Shook asked you

Sandra M. Halsey, CSR, Official Court Reporter 228

1 about that and you said, "yes," there is a possibility
2 that a defendant would commit criminal acts. I want to
3 focus with you for a moment on the word probability.
4 That is what the State is required to
5 prove. Not a mere possibility, but a probability that a
6 defendant would commit criminal acts of violence that
7 would constitute a continuing threat. And probability
8 won't be defined for you. But, in your mind is there a
9 distinction between probability and possibility?
10 A. What was the question again?
11 Q. All right. Is there a distinction --
12 and let's pull this down -- that the defendant -- we're
13 talking about in a hypothetical way, that the defendant
14 probably would commit a future act of violence, or that a
15 defendant possibly would commit a future act of violence.
16 Are those different statements in your mind? Or are they
17 the same statement?
18 A. The defendant will probably commit an
19 offense.
20 Q. Is that a stronger statement than if a
21 defendant will possibly commit?
22 A. Yes.
23 Q. Okay. Now, I would say that in my
24 mind probability -- and you are not going to be given a
25 legal definition that you are bound by, so you have got

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1 to use your common sense. But in my mind I would say
2 that probability means that it is more likely than not
3 that something is going to happen.
4 A. Right.
5 Q. Possibility is, well, maybe it's more
6 likely; maybe it's less likely.
7 A. Uh-huh. (Witness nodding head
8 affirmatively.)
9 Q. It's possible. And we all say
10 anything is possible. But that a probability is more
11 likely than not.
12 A. Right.
13 Q. So with that in mind, and I believe
14 you used maybe the word possibility in the second phase,
15 but let's stay with the first one. Can you -- now that
16 we have sort of clarified that -- can you enforce that as
17 saying the statement, proved beyond a reasonable doubt
18 there is a probability that a defendant would commit
19 future acts of violence?
20 A. Yes.
21 Q. That it is more likely than not?
22 A. Right.
23 Q. And the State has to prove it?
24 A. Yes.
25 Q. The second question is often referred

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1 to as the mitigation question. And that is, this is a
2 question that is really up to the jury's discretion. And
3 it's something that is open for a jury to take into
4 consideration, what the charge requires you to do, is to
5 take into consideration all of the evidence before you.
6 And then, in your discretion, to give it whatever amount
7 of importance, or weight or credibility, or emphasis that
8 the jury collectively desires.
9 And it tells you to take into
10 consideration all these things and then come to a really
11 collective decision. Are there sufficient mitigating
12 circumstances to spare that person's life? That is
13 certainly a weighty decision. And I suspect that a jury
14 could get back there and there would be something that
15 was very important to me that I might say, "You know,
16 this is a really young defendant. And I think that that
17 is a mitigating circumstance." And you might say, "Well,
18 Richard, I don't know about that. But, you know, that
19 person's background is really important to me. And in my
20 mind, that is a mitigating circumstance."
21 But we have agreed on one thing; and
22 that is that there are mitigating circumstances. We
23 don't necessarily agree on what they are, and under the
24 law you are not required to. Now, a jury does not have
25 to agree that that circumstance, is a mitigating

Sandra M. Halsey, CSR, Official Court Reporter 231

1 circumstance. A jury just simply needs to agree that,
2 taking all of us, all of the jurors together, that there
3 are mitigating circumstances that we think warrants
4 sparing this defendant's life.
5 So, again, I sort of draw back to what
6 you said which I think was a wonderful way of saying it.
7 "It depends on the circumstances." It depends upon your
8 good judgment; and your analysis of the circumstances;
9 and what kind of weight you give it.
10 Do you think that you can, along with
11 11 other jurors, if you ever get to that stage in a
12 capital case, and let me reemphasize that over and over
13 again -- that if you ever get to that stage in a capital
14 case, that you could sit with 11 other people and answer
15 those special issues?
16 A. Yes, sir.
17 Q. Did you ever have any experience
18 sitting on any court-martial panels?
19 A. No.
20 Q. And you have not had any jury service
21 since you have been back in Kerr County, I guess?
22 A. No, no, sir.
23 Q. When did you come back?
24 A. In '93, in July of '93.
25 Q. So you must have gone in the military

Sandra M. Halsey, CSR, Official Court Reporter 232

1 just about straight out of --
2 A. I was 19 or 20. I went to San Antonio
3 when I graduated from Tivy.
4 Q. And did you see service in Viet Nam?
5 A. No, I went to Okinawa.
6 Q. Mr. Rodriguez, I saw some movie, I
7 can't remember what it was, I know where they were. They
8 were in a submarine and the commander said to somebody in
9 the group, said, "You have got to remember that we're not
10 here to practice democracy, we're here to preserve it."
11 And that is what the jury system is, and part as your
12 function as a jury. A jury is not a democracy. It is
13 not a majority rule.
14 It is circumstance where one person
15 can say, "I do not agree. And I am going to hold out for
16 my verdict and I am going to exercise -- and I am going
17 afford this defendant the right of an impartial jury and
18 reasonable doubt and all those things."
19 Do you have any problem with that
20 circumstance? If you, for instance, are the one who is
21 sitting there and everybody else is saying, "Golly, we
22 all agree on this." Can you -- are you the kind who can
23 hold out and hold on to your beliefs and say, "I have
24 thought about" -- and I am not asking you to be
25 closed-minded, but after having thought through your

Sandra M. Halsey, CSR, Official Court Reporter 233

1 position, if you say, "There is still doubt in my mind.
2 There is still reasonable doubt in my mind."
3 Do you feel like you can hold out in
4 spite of what 11 others are saying to you?
5 A. Yes, sir, I am.
6 Q. The other part of jury not being a
7 democracy is that this is actually the only time you are
8 ever going to get to speak in this case. You are not
9 going to get the opportunity to ask questions of the
10 witnesses. You are not going to get the opportunity
11 to -- you may get some opportunities, but rarely, to
12 write written notes to the Judge asking for instruction
13 but, in essence, this is your opportunity to speak.
14 And I don't think anybody, and I know
15 you would not ever think anything but that this is the
16 most important thing that has ever happened in Darlie
17 Routier's life. Her life is literally hanging in the
18 balance here. And unfortunately, as you have been called
19 to service to your country before, you are called to
20 service to your country again at this point of that
21 awesome responsibility.
22 So I say that in the sense of if there
23 is any reason in your mind that you feel like that you
24 cannot be fair and impartial, this is your opportunity to
25 give it. And I often ask jurors to sit and think as if

Sandra M. Halsey, CSR, Official Court Reporter 234

1 they were on trial; or as if their son or daughter or
2 mother or father were on trial, and think about what kind
3 of juror would you want, if your loved one was on trial.
4 And what kind of person would you want: That is open and
5 honest, and is willing to listen to the evidence, and is
6 willing to require the State to meet its burden; willing
7 to require that all reasonable doubt be blackened out of
8 this case.
9 And then sort of search your soul.
10 Are you that kind of person right now, sitting as this
11 case is preparing for trial; are you the kind of person,
12 and is your mind open and ready and able to make that
13 solid, unbiased, unfair decision.
14 A. Well, I believe that -- I believe in
15 the system. And I believe everybody should get a fair
16 trial. And again, like you said, if I was sitting in
17 some kind of trial, I believe I should get a fair trial.
18 And I believe to be open-minded and listen to the
19 evidence.
20
21 MR. RICHARD MOSTY: I believe you
22 will, too.
23 THE COURT: All right. Let's take a
24 10 minute break and be back at 11 minutes after. Is that
25 enough time Ms. Biggerstaff? All right, if you would

Sandra M. Halsey, CSR, Official Court Reporter 235

1 step out briefly, please.
2
3 (Whereupon, a short
4 Recess was taken,
5 After which time,
6 The proceedings were
7 Resumed on the record,
8 In the presence and
9 Hearing of the defendant,
10 As follows:)
11
12 THE COURT: Is everybody ready? All
13 right. Let's go back on the record in the Darlie Routier
14 matter. Does either side have any further questions for
15 the prospective juror, Mr. Richard Rodriguez?
16 MR. TOBY SHOOK: No further questions
17 from the State.
18 THE COURT: All right.
19 MR. RICHARD MOSTY: None, Your Honor.
20 THE COURT: What says the State?
21 MR. TOBY SHOOK: Your Honor, the State
22 will exercise a peremptory challenge.
23 THE COURT: All right, sir, thank you.
24 May we have Mr. Rodriguez come in, please.
25

Sandra M. Halsey, CSR, Official Court Reporter 236

1 (Whereupon, the prospective
2 juror was brought into
3 the courtroom, and the
4 proceedings were had as
5 follows:)
6
7 THE COURT: Mr. Rodriguez, thank you
8 very much. We appreciate your candor and your coming
9 down on this very inclement day, but your services will
10 no longer be needed.
11 Thank you very much for coming, we
12 appreciate all of it.
13 Very well. Let's move on to the next
14 juror, please.
15 THE CLERK: Judge, after this next
16 your juror, I don't think we have anybody until 1:00.
17 THE COURT: All right. Here is the
18 situation, ladies and gentlemen. Juror Number 4 today,
19 John Hastings, had to be postponed until October 30th at
20 9:30. So we have Ms. Dana Evans coming in next. I
21 assume that is Ms. Evans, and after Ms. Evans, we will
22 recess until 1:00 when Mr. Norlander will be back.
23 MR. TOBY SHOOK: It's Mr. Evans.
24 THE COURT: Mr. Evans, sorry. All
25 right. Sorry about that. Well, anyway, would you have

Sandra M. Halsey, CSR, Official Court Reporter 237

1 the next prospective juror come in, please.
2
3 (Whereupon, the prospective
4 juror was seated in the
5 courtroom, and the
6 proceedings were resumed
7 as follows:)
8
9 THE COURT: All right, sir, if you
10 will have a seat right there, please.
11 I think the mikes are working. All
12 right. If you will raise your right hand.
13 Do you solemnly swear or affirm that
14 you will true answers make to all questions propounded to
15 you concerning your qualifications as a juror in this
16 courtroom, or in any room to which you may be sent, so
17 help you God?
18 THE PROSPECTIVE JUROR: I do.
19
20 (Whereupon, the prospective
21 juror was duly sworn by the
22 Court to true answers make
23 to the questions propounded,
24 concerning qualifications, after
25 which time, the proceedings were

Sandra M. Halsey, CSR, Official Court Reporter 238

1 resumed as follows:)
2
3 THE COURT: Mr. Shook, go ahead,
4 please.
5 MR. TOBY SHOOK: Thank you, Judge.
6 Mr. Evans, my name is Toby Shook.
7 THE COURT: Have a seat.
8
9 Whereupon,
10
11 DANA EDWIN EVANS,
12
13 was called as a prospective juror, for the purpose of
14 voir dire, having been first duly sworn by the Court to
15 speak the truth, the whole truth, and nothing but the
16 truth, testified in open court, as follows:
17
18 VOIR DIRE EXAMINATION
19
20 BY MR. TOBY SHOOK:
21 Q. Mr. Evans, my name is Toby Shook. I
22 am an Assistant District Attorney for Dallas County, one
23 of the prosecutors assigned to this case. This is Sherri
24 Wallace, she is also on this case. The defense attorneys
25 present today are Mr. Richard Mosty and Mr. Preston

Sandra M. Halsey, CSR, Official Court Reporter 239

1 Douglass.
2
3 MR. RICHARD MOSTY: Good morning.
4 MR. PRESTON DOUGLASS: Good morning.
5
6 BY MR. TOBY SHOOK:
7 Q. The defendant, Mrs. Routier, is there
8 at the corner table.
9 Do you know any of the lawyers
10 involved in the case, particularly any of the Kerrville
11 attorneys?
12 A. No, sir.
13 Q. Okay. As you know, this is a capital
14 murder case in which the State is seeking the death
15 penalty in this case. Have you ever sat on a jury
16 before?
17 A. No, I have not.
18 Q. Have you ever been called down for
19 jury service before?
20 A. No.
21 Q. Okay. Usually when we select a jury,
22 we have everyone out here and we talk to them all as a
23 group. But because this is a capital murder case, we
24 talk to each juror individually. We don't mean to throw
25 you up there, and put you on trial or anything like that.

Sandra M. Halsey, CSR, Official Court Reporter 240

1 But it's the best way we have of getting true and honest
2 answers from each juror. Okay? Now, we want you to be
3 as comfortable as possible, and all we are interested in
4 are your honest opinions; all right?
5 A. Okay.
6 Q. I'm going to go over a couple of
7 things in your questionnaire and then ask you some
8 questions. Since this is a death penalty case, obviously
9 how you feel about the death penalty. And we are going
10 to go over different areas of the law. All right? It
11 looks to me that you were born in Junction, Texas, and
12 spent your life, I think, primarily here in the area; is
13 that right?
14 A. Yes, sir.
15 Q. Okay. And you have a wife and, was it
16 three children?
17 A. Yes, sir.
18 Q. Okay. And you work general delivery,
19 Kerrville, at the Kerrville Post Office; is that right?
20 A. Sir?
21 Q. You are at the post office in general
22 delivery?
23 A. No, I am in construction.
24 Q. Okay. That is your address?
25 A. Yes.

Sandra M. Halsey, CSR, Official Court Reporter 241

1 Q. Okay. I got that mixed up. So what
2 type of work do you do?
3 A. I build homes.
4 Q. Okay. And how long have you been in
5 that?
6 A. Oh, about 14 years.
7 Q. Okay. And you are also in the
8 National Guard?
9 A. Texas State Guard.
10 Q. Okay. Texas State Guard. And I think
11 you said that you meet twice a month on that; is that
12 right?
13 A. Right.
14 Q. What days are those?
15 A. Usually it is either a Tuesday or
16 Wednesday night and a Saturday all day.
17 Q. Okay. And what rank do you hold in
18 the Texas State Guard?
19 A. Second Lieutenant.
20 Q. Okay. How long have you been with the
21 Guard?
22 A. About six-and-a-half years.
23 Q. Okay. Judge Tolle has told you this
24 trial will begin on January the 6th. It's probably -- we
25 don't know how long it will last. We are thinking about

Sandra M. Halsey, CSR, Official Court Reporter 242

1 two weeks. It's certainly not going to be anything like
2 that O.J. Simpson case in California that went on four or
3 five months. At the most, probably three weeks. And he
4 generally keeps hours from around 9:00 in the morning,
5 Judge, until 5:00 in the afternoon.
6 Would that interfere -- obviously, it
7 is going to interfere with your schedule, but would that
8 be any substantial interference where you just couldn't
9 pay attention to the evidence, or would you be able to
10 sit for that time if you are chosen as a juror?
11 A. Well, it would be pretty tough as far
12 as work.
13 Q. Okay. And we understand it would be
14 tough on everyone. But that is the parameters we can
15 give you. Would you be able, if you were chosen -- if we
16 took a vote, none of the jurors, obviously, would want to
17 be on a jury like this. Or if they did jump up and down
18 and want to be on one, we probably wouldn't want them.
19 But would you be able to sit as a juror, listen to the
20 evidence, and make these decisions?
21 A. I think so.
22 Q. Okay. Let me go, Mr. Evans, right to
23 the heart of the matter. It's a death penalty case in
24 which the State is actually seeking the death penalty.
25 And let me ask you your own personal viewpoints about the

Sandra M. Halsey, CSR, Official Court Reporter 243

1 death penalty. First of all, are you in favor of it as a
2 law?
3 A. If it's appropriate for the crime.
4 Q. Okay. Tell me what about the death
5 penalty you favor. Why do you feel we should have the
6 death penalty as a law?
7 A. (No response.)
8 Q. Some people give us different views.
9 They think, you know, it's just for certain crimes the
10 death penalty is appropriate. Some people think -- they
11 go back to their own religious upbringing. They think
12 just certain types of murder cases. Some people think
13 other types of cases. What comes to mind when you think
14 of a death penalty case?
15 A. (No response.)
16 Q. Let me ask you this, Mr. Evans:
17 Because we know that, usually, hopefully, you don't sit
18 around thinking of death penalty cases, and things like
19 that. It's not a happy type of topic, obviously. Most
20 people don't sit around and say, I think this is a death
21 penalty case, that is a death penalty case. Have you
22 given much thought to the death penalty really? Or have
23 you ever discussed it, say with your wife or friend or
24 anything like that?
25 A. Not that much really.

Sandra M. Halsey, CSR, Official Court Reporter 244

1 Q. Okay. Have you ever followed any
2 cases that were, you know, in the news here in Texas or
3 anywhere that were death penalty cases, or you thought
4 should be possibly death penalty cases?
5 A. No.
6 Q. What types of crimes do you think, and
7 I'm not asking for, you know, definitely saying it is a
8 death penalty case or not, but what types of crimes do
9 you think could be a death penalty case under the proper
10 facts and circumstances?
11 A. Just basically cold-blooded murder.
12 Q. Okay. Any other crimes other than
13 murder? Or would you, if it was up to you, would you
14 just keep it at a murder case?
15 A. Well, I don't think it would be just
16 strictly a murder case.
17 Q. Okay. Have you ever felt differently
18 about the death penalty?
19 A. No.
20 Q. Okay. Let me go over what the law is
21 in Texas. In Texas you can only get the death penalty
22 for a murder case, but just not any murder case. We can
23 have intentional killings and they not fall in our death
24 penalty parameters. You can get a very strict -- stiff
25 life sentence, but not necessarily the death penalty.

Sandra M. Halsey, CSR, Official Court Reporter 245

1 For the death penalty you have to have a knowingly and
2 intentionally killing, plus some other fact or
3 circumstance.
4 For instance, murdering during the
5 course of a felony, you have heard people that go into a
6 bank, maybe they rob a bank and shoot the teller. That
7 is a murder during the course of a robbery. You can get
8 the death penalty for that in Texas. And murder -- if
9 someone breaks into your home, breaks into a home and
10 kills the homeowner or someone in the house, that is a
11 murder during the course of a felony; a burglary. Murder
12 during a course of a sexual assault, or rape, or
13 kidnapping, that could be a death penalty case.
14 Also, the serial murders, these people
15 that kill several people, either all at once or just a
16 series of transactions. If the State can prove those are
17 all connected, that can be a death penalty case. In
18 addition, if you murder a certain class of citizens, like
19 a police officer on duty, a fireman on duty; that could
20 be a death penalty case.
21 Do you agree with those types of
22 crimes being possibilities of the death penalty under the
23 law?
24 A. Yes, I do.
25 Q. Also, in this particular case, the

Sandra M. Halsey, CSR, Official Court Reporter 246

1 Judge has read you the indictment. The indictment
2 alleges intentionally and knowingly killing of a child
3 under the age of six. That type of case is eligible for
4 the death penalty. In your own personal beliefs, is that
5 the type of crime you feel could be appropriate for the
6 death penalty under the proper facts and circumstances?
7 A. Yes, I do.
8 Q. Okay. Now the way the scheme works is
9 a trial is divided into two parts. The guilt/innocence
10 stage and the punishment phase. What we have to do in
11 the first part of the trial is prove to you beyond a
12 reasonable doubt that the defendant committed the crime,
13 just the way we have alleged it. If we do that, we then
14 move to the punishment phase.
15 You might hear additional evidence,
16 you may not. But you may hear some more evidence about
17 background, things like that. And at the close of that
18 evidence, you go back and consider anything new you have
19 heard, and then, of course, the facts of the crime
20 itself. And then you have to answer these questions that
21 we will go over on this board here in a moment.
22 Basically, the State has to prove to
23 you though in a punishment phase that the defendant
24 would -- there is a probability they would be a
25 continuing threat to society. We have to prove that

Sandra M. Halsey, CSR, Official Court Reporter 247

1 beyond a reasonable doubt; that they would be a future
2 danger. If we prove that beyond a reasonable doubt, then
3 you should answer that "yes."
4 The last question the jury considers
5 is what we call the mitigation issue. You look at all
6 the evidence and if you think that there is some evidence
7 somewhere that the defendant's life should be spared, you
8 can answer the question that way. Now, they will get a
9 life sentence, but they would not get the death sentence.
10 But once you find someone guilty of capital murder in
11 Texas, there's only two alternatives; a death sentence or
12 a life sentence. And the Judge enters that sentence
13 based on how you answer those questions; is that clear to
14 you?
15 A. Yes, sir.
16 Q. Okay. Does that seem like a fair way
17 of doing it to you?
18 A. I think so.
19 Q. The way we have it set up?
20 A. Yes.
21 Q. Okay. There is no automatic answers,
22 obviously. The State has to prove these things to you,
23 and there is a always an out for the jury at the end. If
24 they hear something and they decide the defendant needs a
25 life to be spared, they can do that. You think that's a

Sandra M. Halsey, CSR, Official Court Reporter 248

1 good way of doing it?
2 A. Yes, sir.
3 Q. Okay. Let ask you, Mr. Evans: You
4 told us that your own personal belief, you think the
5 death penalty is appropriate in some type of murder
6 cases. Would you be the type of juror that could sit on
7 a case and listen to the evidence, and if the State
8 proved to you, first of all, that the defendant was
9 guilty; and secondly, that issue, first issue, should be
10 answered yes. And that no, there is no mitigating
11 evidence that the defendant's life should be spared.
12 Could you take pen in hand, write down the answers
13 knowing that if you answer that a "yes" and "no" that the
14 defendant would be executed someday? Could you actually
15 do that as a juror?
16 A. Yes.
17 Q. If it was proven to you?
18 A. Uh-huh. (Witness nodding head
19 affirmatively.)
20 Q. Okay. I just want to get that out of
21 the way because obviously, that is our goal in this case.
22 And the defense, they are going to fight us every inch of
23 the way. But you feel if you are given the right
24 evidence you could answer those questions?
25 A. Yes, sir.

Sandra M. Halsey, CSR, Official Court Reporter 249

1 Q. Okay. When we prove a case, we put on
2 different types of evidence. Now you have heard of
3 circumstantial evidence, I'm sure, from watching TV or
4 reading a book or something, the term has come up before;
5 is that right?
6 A. Yes.
7 Q. Okay. Actually, what we put on, is
8 what we call as lawyers, direct evidence or indirect
9 evidence. Direct evidence is when you see a crime.
10 Okay? That is an eyewitness to it. Say if you left the
11 courthouse today and someone robbed you at gunpoint and
12 ran off with your wallet, they were caught later and you
13 were able to identify them, that is direct evidence. You
14 were able to identify the criminal that robbed you. Any
15 other type of evidence is indirect evidence. The other
16 word for that is circumstantial evidence. It could be
17 fingerprints, it could be -- you have heard of DNA
18 testimony, I'm sure?
19 A. Yes, sir.
20 Q. -- hairs, fibers, the crime scene
21 itself, things left at the crime scene, statements by the
22 defendant, before, during, or after the crime that would
23 link them to the crime. Anything other than just
24 eyewitness testimony is circumstantial evidence. Many
25 times in a murder case that is all we have to rely on to

Sandra M. Halsey, CSR, Official Court Reporter 250

1 prove the defendant's guilt. Obviously, there might just
2 be two people there: The person who commits the crime
3 and the victim. So we rely on circumstantial evidence.
4 Basically, what you do is use all your
5 common sense as a juror, that is your main tool, and ask
6 yourself: Has the State proven its case using
7 circumstantial evidence? Would you be able to find a
8 defendant guilty of capital murder if you were given --
9 if it's a circumstantial case -- and we prove the case to
10 you beyond a reasonable doubt?
11 A. Yes, sir.
12 Q. Okay. There are some people we have
13 come in here and go, "Look, I could sit on a death
14 penalty case, but I need an eyewitness to the crime."
15 Obviously, we can't always provide that. That is why I
16 want to talk to you about circumstantial evidence. You
17 wouldn't be one of those jurors that would require an
18 actual eyewitness to the crime; is that right?
19 A. No, I think I would.
20 Q. You would require an eyewitness to the
21 crime?
22 A. Yes.
23 Q. Is that just on a capital murder case
24 or any type of murder case?
25 A. Capital.

Sandra M. Halsey, CSR, Official Court Reporter 251

1 Q. Okay. Tell me a little bit about
2 that. Why would you require an eyewitness to the crime?
3 A. I think you would need absolute proof,
4 you know, you would have to have a witness.
5 Q. Okay. If someone is going to get the
6 death penalty; is that right?
7 A. Yes.
8 Q. Can you understand why it might be
9 difficult for the State to provide an eyewitness to a
10 crime in a murder case?
11 A. Yes, I can understand.
12 Q. Obviously, a lot of times, it's not
13 the State that chooses when a crime is committed or who
14 is around or what witnesses are present when that crime
15 is committed.
16 A. Yes.
17 Q. But you feel that would be a
18 requirement for you that you are going to have to have an
19 eyewitness there to say that is the person who did it?
20 A. I don't know, that's a tough one.
21 Q. Well, let me get back to that again,
22 Mr. Evans, because I want to cover that with you,
23 obviously. Let me go over the -- let me go over another
24 area that the State does not have to prove; that is
25 motive. You know, we always hear about motive, the

Sandra M. Halsey, CSR, Official Court Reporter 252

1 reason why someone committed a crime. However, the State
2 is not required to prove that. Okay? Once all of the
3 evidence is in, you may very well be able to figure out
4 what the motive was. On the other hand, it may be a
5 whole bunch of motives. Everyone may have their own
6 opinion as to what the motive is. It may not be real
7 clear.
8 Or the motive, the reason for the
9 killing, could be locked away in the defendant's mind,
10 and we may never know what it was. It could be what a
11 lot of people call a senseless killing. It makes no
12 sense why they did it. But we can't go digging that out
13 of their mind and proving it to the jury necessarily.
14 Again, you can use your common sense and come up with
15 motives, but there is no requirement under the law that
16 the State prove that.
17 Do you agree with that area of the
18 law?
19 A. Yes, I think so.
20 Q. Okay. Can you see where it might be
21 difficult for the State just to prove absolutely what the
22 motive is for a certain crime?
23 A. Yes, sir.
24 Q. Would you require the State to prove
25 motive? Or is that something you would just consider

Sandra M. Halsey, CSR, Official Court Reporter 253

1 along with the rest of the evidence?
2 A. No, it's just -- like you say, there
3 may not be any way to prove it, you know, what it is.
4 Q. Okay. Let me get into the special
5 issues. Again, the Special Issue Number 1 over here, you
6 don't get to that unless you have found the defendant
7 guilty of capital murder. If you find him guilty, we
8 move on to that punishment phase, where you could hear
9 additional evidence. Now that question, if you will read
10 along while I read aloud, says: "Do you find from the
11 evidence beyond a reasonable doubt that there is a
12 probability that the defendant would commit criminal acts
13 of violence that would constitute a continuing threat to
14 society?" Do you see where that question is asking the
15 jurors to make a prediction of how the defendant is going
16 behave in the future?
17 A. Uh-huh. (Witness nods head
18 affirmatively.)
19 Q. Okay. Do you think you could get
20 enough evidence to make that type of prediction? That
21 they would be a continuing danger to society?
22 A. Yes.
23 Q. Okay. What type of evidence would you
24 want to hear as a juror in making that decision?
25 A. (No response.)

Sandra M. Halsey, CSR, Official Court Reporter 254

1 Q. Just anything that might come to mind.
2 Well, one thing, obviously, you have already heard the
3 facts of the case. Would the facts of the case, how the
4 crime occurred, would that be important to you?
5 A. I think so.
6 Q. The brutality of the crime, what
7 happened before, any remorse shown afterwards, would
8 those types of things be very important evidence?
9 A. Yes.
10 Q. Okay. You may be able to hear
11 background evidence. Maybe they have been in trouble in
12 the past. That could be evidence that could be put on,
13 would that be important to you?
14 A. I think so.
15 Q. Or vice versa. It could be a
16 situation -- a person can go out and commit capital
17 murder and never done anything wrong in their life.
18 Jurors may have just the facts of the crime itself to
19 make that decision. Do you feel you could answer that
20 question based on the facts of the crime itself depending
21 on what those facts were?
22 A. Yes, sir.
23 Q. Okay. That question is not automatic.
24 In other words, just because you found someone guilty of
25 capital murder, you cannot just automatically answer that

Sandra M. Halsey, CSR, Official Court Reporter 255

1 question "yes." The State has to prove that beyond a
2 reasonable doubt. It starts out with a "no," just like
3 someone starts out being presumed to be innocent. Could
4 you do that?
5 A. Yes, sir.
6 Q. Another thing; the Judge will not give
7 you definitions of these words. That will be up to you
8 how you read those words. So I'm going to go over those.
9 You see, it says we have to prove beyond a reasonable
10 doubt that there is a probability that the defendant
11 would commit criminal acts of violence? What does the
12 word probability mean to you? What do you think of when
13 we have to prove that?
14 A. Well -- that the -- that there is a
15 good chance of the person doing it again.
16 Q. Okay. And, under the law we're not --
17 we don't have to prove that it is a certainty.
18 Obviously, that would be kind of tough to prove a
19 certainty; just a probability. Do you feel comfortable
20 with that? Does that seem fair to you?
21 A. I think so.
22 Q. We also have to prove that he would
23 commit criminal acts of violence. It doesn't say we have
24 to prove the defendant would commit murder or anything
25 like that, just criminal acts of violence. Does that

Sandra M. Halsey, CSR, Official Court Reporter 256

1 seem fair to you?
2 A. I think so.
3 Q. Okay. Now that second special issue,
4 that question is long. I'm going to go over it, but I
5 get confused when I read it half the time. The
6 legislature came up with these things. "Taking into
7 consideration all the evidence, including the
8 circumstances of the offense, the defendant's character
9 and background, and the personal moral culpability of the
10 defendant; is there sufficient mitigating circumstance or
11 circumstances to warrant that a sentence of life
12 imprisonment rather than a death sentence be imposed?"
13 Basically, what I -- like I said
14 before, that is the last question you get as a juror.
15 You had already found them guilty. You had already found
16 that they are a continuing danger to society. But you
17 might hear some evidence somewhere in their background
18 that you think a life sentence should be imposed rather
19 than a death sentence. Neither side has to prove that to
20 you, you just view the evidence and decide if something
21 is mitigating or not.
22 Do you think you could keep your mind
23 open and answer that question a "yes" or a "no" depending
24 on the evidence?
25 A. Yes.

Sandra M. Halsey, CSR, Official Court Reporter 257

1 Q. Okay. Do you think that is a fair
2 question to have?
3 A. I think so.
4 Q. Okay. Again, I know you don't sit
5 around thinking of these issues. At least I hope you
6 don't. But does anything come to mind when we talk about
7 mitigating evidence that would mitigate a life sentence
8 to you?
9 A. I don't know.
10 Q. Okay. That is what most people's
11 answer is because they don't think about it. In fact,
12 under the law you are not required to imagine any facts.
13 You just have to be able to say, I will keep my mind open
14 to it, and if I think something is mitigated for a life
15 sentence I can answer the question that way. Can you do
16 that?
17 A. Yes, sir.
18 Q. Let me go over a couple of things, and
19 you don't have to agree with any of these. But we have
20 talked to a lot of jurors on death penalty cases and
21 certain people bring up certain things. Does young age
22 of the offender, does that seem mitigating to you in any
23 way?
24 A. What was the question?
25 Q. Young age, let's say the person who

Sandra M. Halsey, CSR, Official Court Reporter 258

1 committed the crime is a young person. Not a child, but
2 a young person. Some people say, "You know, that is

3 mitigating." If they are a young teenager, say, or
4 someone young. Other people tell us, "No, they are an
5 adult, they are responsible for their actions."
6 A. I don't think so.
7 Q. Okay. Sometimes you might hear a
8 history that a person was physically or mentally or
9 sexually abused in the past. Some people view that as
10 mitigating evidence; other people say, "No, you know,
11 that is not mitigating. A lot of people, that has
12 happened to. And they have to be responsible for their
13 acts." Where do you fall in that area?
14 A. Well, I think everybody is responsible
15 for their own actions.
16 Q. Okay.
17
18 THE COURT: I know this is unusual for
19 you, sir, you are not used to it. But could you speak up
20 a little bit. You are going to hear your voice echo, but
21 don't worry about it.
22 THE PROSPECTIVE JUROR: Yes, sir.
23 THE COURT: Thank you, there you go.
24
25 BY MR. TOBY SHOOK:

Sandra M. Halsey, CSR, Official Court Reporter 259

1 Q. But you could keep your mind open to
2 this issue, and if you found something mitigating, you
3 could give a life sentence?
4 A. Yes, sir.
5 Q. Okay. Now obviously, in this case the
6 defendant is a woman, female. Usually when we think of
7 capital murders or murders, we think of male defendants.
8 That is what is usually in the news. Is there anything
9 in your background that would prevent you from sentencing
10 a woman to death, or actually answering those questions
11 that would result in a woman getting the death penalty?
12 A. No.
13 Q. Okay. You think the law should apply
14 equal to a man and a woman; is that right?
15 A. Yes, sir.
16 Q. Okay. Now let's go back to your
17 question that you might require an eyewitness to the
18 crime before you could find someone guilty of capital
19 murder. That is what we will be talking about first; the
20 guilt/innocence part. We have to prove that the
21 defendant knowingly or intentionally caused the death in
22 the way we have alleged in this case.
23 Again, I have told you we don't, as
24 the State, prove -- we don't have a way of putting
25 witnesses there at the crime or when the defendant

Sandra M. Halsey, CSR, Official Court Reporter 260

1 strikes or where they strike. We just have the evidence
2 as it happened.
3 And many times in a murder case,
4 obviously, there is no eyewitness, besides the defendant
5 who, under their rights do not have to take the stand and
6 explain their actions in any way. That is a
7 constitutional right. And just while we're on that, do
8 you agree with that right that a person should not have
9 to take the stand if they don't want to?
10 A. That's right, I agree.
11 Q. Okay. So that is why the State might
12 be left with what we call circumstantial evidence. And
13 again, circumstantial evidence is anything but an
14 eyewitness to the crime; fingerprints, you know, trace
15 evidence, the way the crime scene was left; anything like
16 that. Okay. Anything but an eyewitness in other words.
17 A. Yes.
18 Q. Do you think you could find a
19 defendant guilty of capital murder based on
20 circumstantial evidence?
21 A. It just depends on the evidence.
22 Q. Okay. And again, the burden of proof
23 is the same, whether there is an eyewitness or not. It's
24 beyond a reasonable doubt. You understand that?
25 A. Right.

Sandra M. Halsey, CSR, Official Court Reporter 261

1 Q. Some people just get real hinked up by
2 the word circumstantial evidence. But really, once you
3 think about it, all it is is applying your common sense.
4 For instance, I know the rain started pretty early
5 yesterday. But if you had gone to bed and it was dry out
6 and woke up this morning with the way the weather
7 conditions are, streets all wet, water rising, schools
8 closing, that kind of thing, you may not have seen it
9 rain last night, but you could pretty well guess that it
10 rained a lot last night. You understand?
11 A. Yes, sir.
12 Q. Even though you didn't see it with
13 your own eyes, you see all the rain everywhere, water is
14 running around everywhere, it's cloudy skies, and it's
15 not just in your front yard, it's all over the place.
16 Common sense tells you it rained. That is what a
17 circumstantial case is like. You use all your common
18 sense, you draw all the evidence in and make your
19 decision. You didn't have to see it with your own eyes
20 or there didn't have to be a witness there necessarily
21 with their own eyes, but you look at all the other
22 evidence. And if you prove it beyond a reasonable doubt;
23 then you can find the defendant guilty. Do you think you
24 could do that?
25 A. Yes, sir.

Sandra M. Halsey, CSR, Official Court Reporter 262

1 Q. Okay. When you said earlier about the
2 wanting an eyewitness, is that just having to do with
3 wanting to be sure?
4 A. Yes.
5 Q. Okay. Judge Tolle went over some
6 other rights briefly there in his voir dire. He talked
7 about the burden of proof that the State has to prove
8 this thing beyond a reasonable doubt. Do you agree with
9 that law?
10 A. Yes, sir.
11 Q. Okay. That burden never shifts to the
12 defense, they are not required to prove anything to you.
13 You know, if we don't reach our burden of proof, they
14 don't even have to ask a question. I suspect they will,
15 but they don't have to. Would you require the State to
16 prove its case beyond a reasonable doubt?
17 A. Yes, sir.
18 Q. And you would not require the defense
19 to prove anything? I mean, it's up to the State to prove
20 this case.
21 A. Right.
22 Q. Okay. We have already gone over the
23 defendant's right not to testify. That is a right
24 everyone has. If they chose not to testify, you cannot
25 hold it against them, you know. If they want to testify,

Sandra M. Halsey, CSR, Official Court Reporter 263

1 they can. No one can stop them. But if they chose not
2 to testify, that is just something you don't even
3 consider. Could you follow that rule?
4 A. Yes, sir.
5 Q. Okay. The law says all witnesses are
6 treated equally, you know. In a criminal case y'all have
7 police officers; some people feel strongly about police
8 officers. They like them; they are friends. Other
9 people have had bad experiences. You have got to treat a
10 police officer and any witness equally when they start
11 out; listen to what they have to say and then judge their
12 credibility. Could you do that?
13 A. Yes, sir.
14 Q. Okay. And also, the defendant is
15 presumed to be innocent, as Judge Tolle told you. All
16 persons that are accused, the indictment is no evidence
17 against them. They are presumed to be innocent. You
18 have to start out with that presumption in your mind.
19 Can you do that?
20 A. Yes, sir.
21 Q. Okay. I don't believe you put down in
22 your questionnaire that you have heard anything about the
23 facts of this case; is that right?
24 A. Nothing at all.
25 Q. You have not heard anything since last

Sandra M. Halsey, CSR, Official Court Reporter 264

1 Monday when you filled this questionnaire out?
2 A. No.
3 Q. I believe in some of our questions
4 about the criminal justice system you put down that you
5 believe society is declining. And the reason you put
6 down is people just are not being educated by their
7 parents and the responsibility has been left up to
8 others. I think in your questionnaire you put down you
9 actually are home schooling your children; is that right?
10 A. Yes, sir.
11 Q. Who does it? Does your wife do that
12 or do both of y'all do that?
13 A. Mostly my wife, but I help her.
14 Q. Okay. How long have you all been
15 doing the home schooling?
16 A. About five or six years.
17 Q. Okay. Are you satisfied with it, I
18 guess, so far?
19 A. Yes, sir.
20 Q. And I know some of these questions get
21 personal, and we don't mean them to be. This
22 questionnaire won't be released to anyone, but we do have
23 to ask these questions. And also, your place of worship,
24 you stay there at the home; is that right?
25 A. Yes, sir.

Sandra M. Halsey, CSR, Official Court Reporter 265

1 Q. And teach your children the laws or
2 principles -- I have heard of this -- how do I pronounce
3 that, Yahweh?
4 A. Yahweh.
5 Q. Yahweh. Tell me a little bit about
6 that.
7 A. That is God.
8 Q. Okay. That is what I thought, but I
9 just read about it. Sometimes we hear from -- in a
10 murder case like this -- from psychiatrists or
11 psychologists from one side or the other or both. Do you
12 have any opinion about those types of experts?
13 A. No.
14 Q. You could sit there and listen to them
15 like any other witness?
16 A. I believe so.
17 Q. Okay. You could keep your mind open
18 to all of the evidence and then make the decisions; is
19 that right?
20 A. Yes, sir.
21 Q. Okay. But you do feel that, as far as
22 the death penalty goes, if the State proves these things
23 to you, a person should be held responsible for their
24 actions; and you could answer them in a way that would
25 result in the defendant's execution some day?

Sandra M. Halsey, CSR, Official Court Reporter 266

1 A. I think so.
2 Q. If the State proved it to you?
3 A. Right.
4 Q. Okay. I have been doing all the
5 talking and asking a lot of questions, Mr. Evans. Do you
6 have any questions of me?
7 A. No.
8 Q. Okay. Well, you have been very honest
9 with us. We appreciate your patience coming here and
10 being here all morning long.
11
12 MR. TOBY SHOOK: That's all I have,
13 Judge.
14 THE COURT: Thank you Mr. Shook. Mr.
15 Mosty?
16 MR. PRESTON DOUGLASS: Judge, I think
17 I am going to try this one --
18 THE COURT: Oh, that will be fine,
19 Mr. Douglass. We welcome you into the Court.
20 MR. PRESTON DOUGLASS: I appreciate it
21 very much.
22
23 VOIR DIRE EXAMINATION
24
25 BY MR. PRESTON DOUGLASS:

Sandra M. Halsey, CSR, Official Court Reporter 267

1 Q. Mr. Evans, as you can probably tell, I
2 have Cedar fever this time of year, and it gets to where
3 I can't speak very well. My wife is convinced that this
4 was the most pleasant weekend we have ever had at our
5 house, because I couldn't talk, but it causes me some
6 trouble here this morning. So, if you can't hear me, if
7 I confuse you which I'm likely to do, stop me. And I
8 will do my best to repeat myself and make myself a little
9 more clear.
10 You have been up there a while. And I
11 appreciate your patience. And I hope you understand that
12 because the rules require that we go second, we don't get
13 to interrupt, we don't get to ask our questions as time
14 goes by. So we have to wait until you have been up there
15 a while before we get to ask you some questions.
16 And, obviously, our perspective in
17 representing Darlie is much different than that of the
18 State. So we have some additional questions to ask. And
19 I hope you will understand that if it takes a little
20 while longer, I am going to try to move as quick as I
21 can. So either the time will be up or my voice will go
22 out, or one or the other will happen.
23 This is Richard Mosty, my law partner.
24 Darlie Routier is the defendant in this case; we
25 represent her. Do you know either Richard or myself?

Sandra M. Halsey, CSR, Official Court Reporter 268

1 A. No.
2 Q. Okay. I was curious about some of the
3 answers in your personal questionnaire. About the Texas
4 National Guard -- this is showing my ignorance which I am
5 likely to do lots of times. Is that the Texas Republic
6 National Guard, or is that the Texas State National
7 Guard?
8
9 THE COURT: I believe he said he was
10 in the Texas State Guard; is that right?
11 THE PROSPECTIVE JUROR: Yes, sir.
12 THE COURT: As opposed to the National
13 Guard, they are different altogether.
14 THE PROSPECTIVE JUROR: That is right.
15
16 BY MR. PRESTON DOUGLASS:
17 Q. You understand, around the Kerrville
18 area, there are some people who align themselves with the
19 Republic of Texas, and are in a different type of guard.
20 Are you familiar with the distinction between the two?
21 A. Yes.
22 Q. Okay. And I notice in your
23 questionnaire you refer to the common law quite a bit.
24 Which of those two Guards do you align yourself with?
25 A. I am under the State of Texas. Okay?

Sandra M. Halsey, CSR, Official Court Reporter 269

1 Q. Not the Republic of Texas?
2 A. No.
3 Q. Okay.
4 A. We fall under the Adjutant General of
5 the State of Texas.
6 Q. Okay. All right. And you know that
7 around our town there's different groups that call
8 themselves Republic of Texas Guards and those things?
9 A. Yes, I know that.
10 Q. Now with respect to your commitment to
11 that guard duty -- I notice you said on Wednesdays --
12 does that interfere with your ability to fairly and
13 impartially sit on this jury?
14 A. No.
15 Q. You can put that aside, your
16 commitment, and perform your function as a juror?
17 A. Yes, I can.
18 Q. Also, I was curious from your
19 questionnaire, do you live out in the county, or do live
20 in Kerrville proper?
21 A. Out in the county.
22 Q. Which part of the county?
23 A. Kerrville, Cypress Creek Road.
24 Q. How long have you lived out that way?
25 A. Four-and-a-half years.

Sandra M. Halsey, CSR, Official Court Reporter 270

1 Q. Okay. With respect to this case, the
2 State of Texas has told you they are seeking the death
3 penalty. And, obviously, their emphasis and perspective
4 is on their desired result in this case. Obviously, our
5 perspective is dramatically different.
6 Mrs. Routier has entered a plea of not
7 guilty. She will enter a plea of not guilty before the
8 jury. And she will persist in that plea of not guilty,
9 wholeheartedly throughout the trial. So our primary
10 emphasis, of course, is on the guilt/innocence phase of
11 the trial.
12 While Mr. Shook correctly went through
13 some of the principles of law, I hope you will allow me
14 to go back through them again in a little bit more depth.
15 Because that is where we obviously are very much
16 concerned, first with respect to the indictment.
17 You heard Judge Tolle mention in his
18 opening remarks that in Dallas County there is some
19 25,000 indictments issued against people each year. And
20 that an indictment is to be considered absolutely no
21 evidence of guilt.
22 Quite frankly, an indictment is
23 nothing more than a piece of paper that gives this Judge
24 jurisdiction. It is a piece of paper that says, "Judge
25 Tolle, you can have a trial." But other than that, it

Sandra M. Halsey, CSR, Official Court Reporter 271

1 doesn't tell Judge Tolle anything other than what the
2 allegation is.
3 One of the things that people
4 frequently are amazed at: Is that you can be considered
5 for a Grand Jury indictment, there can be an
6 investigation taking place in your county, and you would
7 not even have the knowledge that investigation is taking
8 place. And obviously, since you don't have the
9 knowledge, you don't have the ability to tell your side
10 of story. Was that a surprise to you to learn that is
11 the way our system works?
12 A. No.
13 Q. Have you ever sat on a Grand Jury?
14 A. No.
15 Q. Now, the fact that a group of people
16 have issued a Grand Jury (sic), does that cause you to,
17 if you imagine my pen as being straight up and down as
18 neutral, does that cause you to have a preconceived
19 leaning or notion in any direction just because there is
20 an indictment?
21 A. No.
22 Q. When another issue that was brought up
23 by the Court was that if the trial began and you were
24 seated in those chairs as a juror, and the State did not
25 produce one shred of evidence and the trial ended, you

Sandra M. Halsey, CSR, Official Court Reporter 272

1 would be forced to render what verdict?
2 A. Not guilty.
3 Q. Do you agree that as we sit here right
4 now, Darlie Routier is absolutely presumed innocent and
5 is not guilty?
6 A. Yes.
7 Q. Now, lots of people have referred to
8 the presumption of innocence as a kind of protective
9 shield, a bubble around them. And that is the State's
10 burden, and only the State's burden throughout the trial,
11 to erode that protective bubble, and that that shield is
12 diminished by competent evidence.
13 In a trial, you as a juror have the
14 sole ability to place whatever weight you feel is
15 appropriate on different evidence. If you feel that some
16 evidence just doesn't hold any water with you and it
17 doesn't mean anything, you have the right to toss it out.
18 However, if there is evidence that you think is probative
19 or means something, you have the right to put your hands
20 on it.
21 You talked a little bit about the
22 differences between eyewitness testimony, a photograph or
23 something that directly shows something, and
24 circumstantial evidence.
25 Do you agree with me that sitting in

Sandra M. Halsey, CSR, Official Court Reporter 273

1 your place as a juror, that it is solely your ability and
2 solely based on your common sense to say, "I believe that
3 evidence means something to me. Or I believe that
4 evidence doesn't mean anything to me at all."
5 A. Yes, sir.
6 Q. Now, when you get back to the jury box
7 in the jury room, there is nobody that says that you have
8 to exercise your own personal conscience and belief based
9 on a majority or based on some sort of pulling straws in
10 a lot or something like that.
11 Only you can do what you believe is
12 right and fair. If you were to believe that some
13 evidence is not as persuasive to you as another type of
14 evidence -- say you believe that a partial fingerprint or
15 something is not as persuasive as an eyewitness, would
16 you persist in that conviction that you have? That you
17 want certain degrees of proof brought to you. Would you
18 make your opinion known and would you stand by that
19 opinion?
20 A. Yes.
21 Q. Okay. During the trial, the burden of
22 proof rests solely with the State. There is no -- excuse
23 me -- there is no requirement that the defendant put on
24 any evidence or that she testify. Now, one time I kind
25 of took offense at it but it's very true, Judge said that

Sandra M. Halsey, CSR, Official Court Reporter 274

1 Mr. Douglass can sit in this courtroom and watch these
2 fans going around for a whole trial and that would be
3 fine. And if the State didn't prove their evidence, that
4 he could continue to just look at that fan. And if they
5 did not prove their case, it was your obligation and your
6 duty under your oath, to render a verdict of not guilty.
7 If I did that, if I just stood here
8 and daydreamed, but you didn't feel the State proved it's
9 case, what would be your verdict?
10 A. Not guilty.
11 Q. Now sometimes it becomes very
12 difficult, in a hypothetical, and obviously, I can't talk
13 about the facts of this case; but, obviously, there can
14 be situations where a person can be sitting there as a
15 juror and say, "You know, well, they brought some proof
16 of something, we certainly know that there was a death
17 that occurred, but I didn't hear anything from them, and
18 I didn't hear anything from that defendant," and you are
19 put in a quandary. How do you resolve that in your mind?
20 A. Would you repeat the question?
21 Q. Let's say you are sitting there and
22 you have listened very carefully to all of the evidence
23 that the State has had to bring, and there are still
24 questions that you have rattling around in your mind, the
25 State stands up and you are thinking, well, I hope they

Sandra M. Halsey, CSR, Official Court Reporter 275

1 bring another witness.
2 And the State says, "We rest our case
3 in chief." Judge looks at you and says, "That is all the
4 evidence you are going to hear in this case."
5 You are sitting there and you go, "Oh,
6 my gosh, I got some questions."
7 And then the Judge looks over at us
8 and says, "Now it's time for the defense to put on a
9 case, if it chooses to do so."
10 Defense lawyers stand up and they say,
11 "Your Honor, we rest."
12 Then you sit there and you go, "Oh, my
13 God. They are not even going to bring me anything
14 either."
15 How do you resolve that in your mind?
16 What thoughts go through your mind?
17 A. You have seen all of the evidence, you
18 know, there is --
19 Q. If there is a question in your mind at
20 that point, that you think is based on reason, and you
21 have thought through and you say, "Well, I have not
22 totally resolved this question in my mind." What do you
23 think is the correct result in that situation?
24 A. Not guilty.
25 Q. And even if it came to that point that

Sandra M. Halsey, CSR, Official Court Reporter 276

1 you came to that conclusion, and you say, "I sure wish
2 that I had heard from that defendant in that trial. I
3 wish that person had said something." Can you put that
4 aside and say, "But I can't consider that," and base it
5 solely on the evidence, not on what you wish you had?
6 A. Yes, sir.
7 Q. Okay. It has been said before that
8 the mere absence of proof can lead to a reasonable doubt.
9 Would that be a statement that you agree with?
10 A. Yes.
11 Q. That the absence of proof can create
12 enough of a question?
13 A. Yes.
14 Q. Now, Mr. Shook was absolutely correct
15 when he said that the State is not held to a burden of
16 proving a motive. Would you agree, however, that the
17 State, or that you as a juror, have an absolute right to
18 consider whether there was a motive and to wonder about
19 that? Do you understand there is a difference between
20 what they have to prove and what you have an ability to
21 consider?
22 A. Uh-huh. (Witness nodding head
23 affirmatively.) Yes, sir.
24 Q. Okay. And what I mean by that is,
25 would you agree with me then that if the State could not

Sandra M. Halsey, CSR, Official Court Reporter 277

1 produce a motive that that might cause you concern and
2 cause you a reason to doubt the guilt of a person charged
3 with a crime?
4 Am I not making myself very clear?
5 A. I don't understand.
6
7 THE COURT: Well, what he is saying is
8 that the State never has to prove motive; do you
9 understand that?
10 THE PROSPECTIVE JUROR: Yes, sir.
11 THE COURT: You don't know why someone
12 did something. I think the question is if the State
13 didn't prove motive, or would you require the State to
14 prove a motive?
15 THE PROSPECTIVE JUROR: No.
16
17 BY MR. PRESTON DOUGLASS:
18 Q. Let me take one more pass at it, and I
19 will try to be very clear. If though, you have the right
20 to consider, "Well, I don't understand what the motive
21 is. I don't understand the facts and circumstances of
22 why this would happen." Would you agree that you could
23 consider that as creating a reasonable doubt in your
24 mind?
25 A. Yes.

Sandra M. Halsey, CSR, Official Court Reporter 278

1 Q. The mere -- I don't understand might
2 cause you to say, "But I have a reasonable doubt because
3 I can't figure it out." It just doesn't make sense.
4 A. That's right.
5 Q. Think you can buy that?
6 A. Yes, sir.
7 Q. All right. Now, let me also let you
8 know, a juror is a fact-finder, but a juror is not a case
9 solver. In a verdict form, it does not say, "We, the
10 Jury" -- it will say, "We, the Jury, either find the
11 defendant guilty or not guilty." But it does not say,
12 "We -- the defendant is the person who did this crime,"
13 if it's someone else.
14 Do you understand and appreciate the
15 difference between trying to figure out who may have
16 caused the crime, and determine if the State has proven
17 the person they are pointing the finger at, did it?
18 A. Yes.
19 Q. Okay. They talked a little bit about
20 eyewitness versus circumstantial evidence. And I just
21 want to touch on one thing about that again. If -- one
22 thing that the Judge does not do is require you to
23 deposit your common sense in a receptacle when you walk
24 through the door. And what that means is you have the
25 right based on your life experience to say, "I want

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1 certain things proven to me to a certain degree." Do
2 you agree with that?
3 A. Yes, sir.
4 Q. And along those lines, can you
5 appreciate the difference, or at least that they may
6 bring you some proof that you say, "Well, I am happy with
7 that." But that that proof may not raise up to your
8 standards, and in that situation you can disregard that
9 kind of proof, if you don't think it's good enough for
10 you.
11 A. Yes.
12 Q. And will you do that based on your own
13 personal conviction?
14 A. Yes.
15 Q. All right. I assume that if you are a
16 juror that is going to sit in this case, that you are
17 going to see some photographs. And, no one is going to
18 sit here and tell you that this case does not involve a
19 horrible set of circumstances and a horrible crime. And
20 I have every reason to believe that those photographs,
21 whether they are small photographs or whether they are
22 blown up for some reason, will depict a horrible crime.
23 Obviously, sitting in my place, I fear
24 that when someone looks at a horrible photograph that has
25 been blown up, to illustrate obviously the most gruesome

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1 parts of that photograph, that it may so stampede
2 someone's common sense, that they say, "My God. I got to
3 punish the next available person for whoever did this."
4 Do you feel like that you could look
5 at photographs objectively and not feel like your common
6 sense would say, "God, this is just horrible. I have got
7 to do something based on this picture alone"?
8 A. No, I could do that.
9 Q. How do you feel about receiving that
10 kind of evidence? How do you feel about looking at
11 evidence like that?
12 A. I think it's important. I don't
13 know -- understand what you are trying to ask.
14 Q. How do you feel personally about the
15 fact that you may have to review evidence that is
16 untasteful, it's unpleasant, that you don't want to look
17 at it. Is it something that you feel like you are
18 prepared to do?
19 A. Yes, sir.
20 Q. Okay. In general, how do you feel
21 about sitting as a juror in a case that involves murder,
22 and involves a death penalty?
23 A. I would feel it was my duty to sit.
24 Q. Okay. I want to ask you and I want to
25 preface what I want to say with: That, obviously, the

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1 way our rules are set up, I will never get another
2 chance. No one representing Darlie Routier will get a
3 chance to talk to you after today.
4 Once the trial starts, we can't stand
5 up and say, "Now, Mr. Evans, we want you to think about
6 this a certain way."
7 We can't ask you any more questions.
8 We can't ask you any more of your opinions. In that
9 regards, I have an obligation to ask you about
10 punishment, even though I don't like to talk to you about
11 punishment.
12 Even though I believe -- that there
13 are two different phases of the trial, and I am more
14 interested in the guilt/innocence phase of this trial.
15 But since I will never have another chance to talk to you
16 about punishment, and not wanting you to believe that
17 we're going to get to that point, I want to talk to you
18 though about those special issues, okay?
19 A. Okay.
20 Q. Okay. Inasmuch as we conduct trials
21 in the State of Texas in two parts, what that means is
22 before you ever receive evidence about these special
23 issues, you, obviously have already found someone guilty
24 of capital murder.
25 You have already, obviously, found

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1 someone guilty of a crime; committed a murder committed
2 in the course of another felony, or two murders or three
3 murders committed at the same time, or the murder of a
4 child under the age of six.
5 So you have already made that
6 decision, that has already happened by the time you ever
7 get to consider any of these other special issues. As a
8 juror in a hypothetical case, if you have already made
9 that decision that a person is guilty of capital murder,
10 do you believe that you can maintain an open mind and
11 answer those special issues, knowing that they could
12 result in a life sentence?
13 A. Yes.
14 Q. I notice from your questionnaire, that
15 you had answered one question, that you said that you
16 were in favor of the death penalty in some cases. And
17 you agree and you said -- let me just read you the whole
18 thing. May I approach the witness?
19
20 THE COURT: You may.
21
22 BY MR. PRESTON DOUGLASS:
23 Q. Let me just hand you this. And I am
24 referring to page 2. You can see where I circled the
25 question there. And to paraphrase, you said, that while

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1 you believe the death penalty is appropriate in certain
2 cases, the question is: Do you agree that a life
3 sentence, in certain circumstances, is also appropriate?
4 And it's a very difficult question the way they word it,
5 and you had put in there that you said no.
6 And the way I read it was that you did
7 not believe a life sentence would be a appropriate in
8 certain circumstances. I don't know that I explained it
9 any better than the question. But is that still the way
10 you feel, that if a person is found guilty of capital
11 murder, that you could not consider a life sentence?
12 A. No, that is incorrect.
13 Q. Okay. You meant to say yes?
14 A. Yes.
15 Q. All right. This is one of those
16 questions that says do you not, I mean, it's a double
17 negative, so it's easy to answer it no. If I understand
18 what you are saying, you would have an open mind, and you
19 can still consider evidence even though a person has been
20 found guilty of capital murder. And in an appropriate
21 circumstance, render a verdict that would result in a
22 life sentence?
23 A. Yes.
24 Q. Directing your attention over to that
25 board, on that first question, it is couched -- there are

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1 two important terms. One is reasonable doubt. That is
2 one definition that you will get, the legislature -- it
3 used to be the legislature gave us no definition of
4 reasonable doubt.
5 A few years ago they did give us a
6 definition. And to paraphrase it very quickly, it says:
7 That you need proof of such convincing character, that
8 you would rely on that proof and without hesitation in
9 the conducting of your most important personal affairs.
10 That to remove a reasonable doubt is proof of such
11 convincing character that you would rely on it without
12 hesitation.
13 Now, do you agree that is a high
14 degree of proof?
15 A. Yes.
16 Q. All right. Probability is not defined
17 for you. So the way that question is phrased is: First,
18 you have to have proof beyond that most high degree of
19 proof, that there is a probability, I would submit to you
20 that that is more likely than not.
21 That you have to be convinced beyond
22 any reasonable doubt that more likely than not, a
23 defendant would continue to be a threat to society. Does
24 that -- when you hear that read to you, how does that
25 question sound to you? What does that mean? Does it

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1 sound like a high degree of proof?
2 A. Yes.
3 Q. Does it sound to you like, when you
4 think of probability and more likely than not, would you
5 agree with me that that is certainly more than a
6 possibility?
7 A. Yes.
8 Q. Would you agree with me that that is
9 certainly more than a chance that something would happen?
10 A. Yes.
11 Q. Would you agree that the State has to
12 prove, not -- no burden of proof over here -- the State
13 has to prove that beyond a reasonable doubt, it is
14 probable that a person would be a continuing threat to
15 society?
16 A. Yes.
17 Q. Would you hold the State to that
18 burden of proof?
19 A. Yes, sir.
20 Q. Now, mitigation is a word that we use
21 and we throw around amongst us lawyers, that I am not
22 sure -- you know, I had never heard the word mitigation
23 to be real honest with you, until I went to law school.
24 And we talk about it like, well, this mitigates that and
25 this is mitigating. I think mitigation, my definition,

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1 is that it lessens a person's blameworthiness. It
2 lessens their blame for the crime.
3 Does that -- do you agree with that as
4 mitigating, it lessens their blameworthiness? Does that
5 sound okay to you?
6 A. Yes.
7 Q. Okay. Now, before you ever get to
8 that question, you have now decided in a hypothetical
9 case; that a person has been convicted of capital murder;
10 that a person is a continuing threat to society; and now
11 you must consider whether there is something about their
12 background, their character, or the circumstances; that
13 lessens their responsibility.
14 Now, Mr. Evans, if you have already
15 found someone guilty of capital murder, and you have
16 already found that they would be a future danger, could
17 you keep an open mind and consider evidence of
18 mitigation?
19 A. Yes.
20 Q. I have likened that to, you just stop
21 the train. You say -- you put on the brakes and you say,
22 wait a minute. I know I found the person guilty of
23 capital murder, I know that I found that they may be a
24 future danger; but I am going to listen to whatever
25 evidence there is to stop the train and enter a life

Sandra M. Halsey, CSR, Official Court Reporter 287

1 sentence.
2 Do you feel you can keep an open mind
3 about that?
4 A. Yes.
5 Q. All right. Now, mitigating evidence
6 can be different to everybody. You and I could be on a
7 jury and I could say, you know, "I think that because
8 this person is very young, that that mitigates; that they
9 should get a second chance." You might look at me and
10 say, "Preston, that is crazy. I don't think that is it
11 at all, but I tell you what do I believe. I believe this
12 person had a terrible childhood. And based on that
13 really bad childhood, I am going to give that person a
14 second chance."
15 Now, we don't all have to agree as to
16 what is mitigating. But there has to be an agreement if
17 you are going to find that, yes, that there is some
18 mitigating circumstances. Do you understand and agree
19 that it is still your personal vote in the jury, and you
20 don't have to have the same reason, but you just have to
21 have a reason for mitigating evidence; do you agree that?
22 A. Yes.
23 Q. All right. You had mentioned that you
24 felt punishment should be ranked in these categories:
25 First, you think that a person should be punished to

Sandra M. Halsey, CSR, Official Court Reporter 288

1 deter other people from committing a crime; other crimes.
2 And then you said: Second, I believe, if you are going
3 to punish people, you punish them to make them better; to
4 rehabilitate them. And, last, you said, the only reason
5 I punish people -- the last reason is to just flat punish
6 them; hurt them, kill them.
7 Is that still the way you rate that?
8 That you think the most important is to prevent other
9 people from doing the same thing?
10 A. Yes.
11 Q. And, that second to that, is to make
12 the defendant better?
13 A. Yes.
14 Q. All right. And that the last reason
15 you do that is just simply to punish someone?
16 A. Right.
17 Q. Do you still feel that way?
18 A. Yes, sir.
19
20 MR. PRESTON DOUGLASS: Just give me
21 one second, please.
22 THE COURT: All right.
23
24
25 BY MR. PRESTON DOUGLASS:

Sandra M. Halsey, CSR, Official Court Reporter 289

1 Q. Am I right that both you and your
2 father are doing appliance repair?
3 A. No.
4 Q. He did, but you are not doing that?
5 A. No, before he passed away we worked
6 together.
7 Q. What year did you graduate from Tivy?
8 A. In '81.
9 Q. And I'm going to ask a different
10 version of the question Mr. Shook asked: Is Yahweh your
11 term for Jesus?
12 A. Yes.
13 Q. Obviously, this trial, this 5 or 10
14 minutes are some of the most important minutes in Darlie
15 Routier's life. She is faced, literally, with her life
16 hanging in the balance in this case.
17 If you, God forbid, were the person in
18 her situation, or a friend of yours or loved one was
19 sitting in her predicament, would you be satisfied with a
20 juror of your background and your thought process and the
21 way you feel about things, sitting in judgment of one of
22 your loved ones or even yourself?
23 A. Yes.
24 Q. Okay.
25

Sandra M. Halsey, CSR, Official Court Reporter 290

1 MR. PRESTON DOUGLASS: May I have one
2 minute, Your Honor?
3 THE COURT: You may.
4 MR. PRESTON DOUGLASS: I appreciate
5 your time. And if you didn't even hear what I was
6 saying, you played like you did, and I appreciate it very
7 much.
8 Your Honor, I pass the juror.
9 THE COURT: Anything else, Mr. Shook?
10 MR. TOBY SHOOK: No, sir.
11 THE COURT: All right. I want to
12 clear up one thing on this eyewitness business. What I
13 understand you to say, from all of -- the totality of all
14 your answers, you would like the State to have an
15 eyewitness, but you are not going to require it; is that
16 correct?
17 THE PROSPECTIVE JUROR: Yes, sir.
18 THE COURT: In other words, if they
19 didn't produce an eyewitness, and you still felt they
20 proved their case, you could find the defendant guilty?
21 THE PROSPECTIVE JUROR: Yes, sir.
22 THE COURT: And set the defendant's
23 punishment anywhere within the range provided by law?
24 THE PROSPECTIVE JUROR: Yes, sir.
25 THE COURT: All right. Thank you. If

Sandra M. Halsey, CSR, Official Court Reporter 291

1 you will step outside briefly, please.
2 All right. We are off the record.
3 That clock up there is wrong, it's actually 11:16.
4 What says the State?
5 MR. TOBY SHOOK: The State accepts the
6 juror.
7 THE COURT: What says the defense?
8 MR. PRESTON DOUGLASS: We will accept
9 the juror.
10 THE COURT: All right. Thank you. If
11 you will bring the juror in, please. You had me scared
12 there for a minute.
13 Mr. Evans, you have been accepted as a
14 juror in this case. So you are instructed that a gag
15 order is in effect. Please do not talk to anybody about
16 the case. Don't talk to any members of the press or
17 anybody else. Please ignore radio, TV, or newspaper
18 articles, or broadcasts you see about it.
19 We will commence this trial on the 6th
20 of January. And we will tell you when to be back here on
21 the 6th of January. We will be contacting you in regard
22 to the correct time of that. Oh, if you will be back
23 here at 9:00 o'clock on the 6th of January, we will
24 commence trial then.
25 THE JUROR: Yes, sir.

Sandra M. Halsey, CSR, Official Court Reporter 292

1 THE COURT: Please don't talk to other
2 people. If you talk to other people, the following may
3 result in monetary fines, and/or incarceration in Kerr
4 County jail, for violating this order. Thank you very
5 much.
6 THE JUROR: All right.
7 THE COURT: All right. Ladies and
8 gentlemen, the press that I know of, well, I know every
9 member of the press in here, they are all from Dallas. I
10 know you won't try to contact the jurors, but that could
11 result in the case having to be started all over again
12 because of a mistrial. So please do not until the trial
13 is over. They may talk or not talk as they see fit and
14 you are free to contact them then.
15 All right. The next juror, the next
16 prospective juror, unfortunately, cannot get in right
17 now. So, we're going to recess until one o'clock. It is
18 now 11:20, and I want to thank both sides for their
19 succinctness in examining these jurors and moving on with
20 this. Thank you.
21
22 (Whereupon, a short
23 Recess was taken,
24 After which time,
25 The proceedings were

Sandra M. Halsey, CSR, Official Court Reporter 293

1 Resumed on the record,
2 In the presence and
3 Hearing of the defendant,
4 as follows:)
5
6 THE COURT: All right. Back on the
7 record. Is everybody ready?
8 MS. SHERRI WALLACE: Yes, sir. The
9 State is.
10 MR. PRESTON DOUGLASS: Yes, sir. The
11 Defense is.
12 THE COURT: All right. Well, let's
13 bring in the next one. Who is the next one?
14 THE CLERK: Norlander, I believe.
15 THE COURT: Norlander. All right.
16 THE CLERK: Ready for him?
17 THE COURT: Right. Have a seat right
18 there, yes, sir. All right. If you will please let the
19 record reflect that we are back on the record in the
20 Darlie Routier matter. This is jury selection,
21 individual examination of each prospective juror. Let
22 the record reflect that all parties to the trial are
23 present. And the witness (sic) we have now is Mr. Allan,
24 A-L-L-A-N, Keith, K-E-I-T-H, Norlander. Is that correct,
25 sir?

Sandra M. Halsey, CSR, Official Court Reporter 294

1 THE PROSPECTIVE JUROR: Yes, sir, it
2 is.
3 THE COURT: Raise your right hand,
4 please, sir.
5 Do you solemnly swear or affirm that
6 you will true answers make to all questions propounded to
7 you in this courtroom or any room which you may be sent
8 concerning your qualifications as a juror, so help you
9 God?
10 THE PROSPECTIVE JUROR: Yes, sir.
11
12 (Whereupon, the prospective
13 juror was duly sworn by the
14 Court to true answers make
15 to the questions propounded,
16 concerning qualifications, after
17 which time, the proceedings were
18 resumed as follows:)
19
20
21 THE COURT: Thank you. Go ahead
22 please, Mr. Shook.
23
24
25

Sandra M. Halsey, CSR, Official Court Reporter 295

1
2 Whereupon,
3
4
5 ALLAN KEITH NORLANDER,
6
7
8 was called as a prospective juror, for the purpose of
9 voir dire, having been first duly sworn by the Court to
10 speak the truth, the whole truth, and nothing but the
11 truth, testified in open court, as follows:
12
13
14 VOIR DIRE EXAMINATION
15
16 BY MR. TOBY SHOOK:
17 Q. Mr. Norlander?
18 A. Yes, sir.
19 Q. All right. My name is Toby Shook. I
20 am an Assistant District Attorney in Dallas County,
21 Texas, and I am one of the prosecutors assigned to this
22 case. I, along with Greg Davis who is not here, and
23 Sherri Wallace. Some of the defense attorneys are
24 present today, Kerrville attorneys, Mr. Mosty and Mr.
25 Douglass, and of course, the defendant, Darlie Routier is

Sandra M. Halsey, CSR, Official Court Reporter 296

1 present.
2 Do you know any of the attorneys,
3 especially any of the Kerrville attorneys?
4 A. No, sir.
5 Q. Okay. As you know, this is a capital
6 murder case in which the State of Texas is actively
7 seeking the death penalty. Have you sat on a jury
8 before?
9 A. No, sir.
10 Q. Okay. Usually, when we do a jury
11 selection in a criminal case, we talk to all of the
12 jurors in a panel as a whole. But since this is a death
13 penalty case, the law calls for individual juror
14 questioning. We don't mean to throw you up there like
15 you are some kind of a defendant on the witness stand or
16 anything, but this is the best way we found to get our
17 information. We'll talk to you for a while, then the
18 defense will talk to you.
19 All we are interested in is your
20 honest answers to our questions. I'm going to ask you
21 some questions about your background, some of the things
22 on the questionnaire, and explore some of your feelings
23 about the death penalty, and how the law applies to this
24 case. If you have got any questions at any time, just
25 let us know. Okay?

Sandra M. Halsey, CSR, Official Court Reporter 297

1 A. Yes, sir.
2 Q. All right. Looking at your
3 questionnaire, you have retired here in Kerrville, and
4 you were a police officer, was it in Albuquerque?
5 A. Yes, sir.
6 Q. For 25 years?
7 A. Yes, sir.
8 Q. All right. Tell us what type of --
9 what were your duties as a police officer?
10 A. I was patrolman for seven years. They
11 varied all the way from academy instructor, traffic law
12 enforcement, SWAT team, routine patrol, then I was
13 promoted to detective where I was -- worked as juvenile
14 detective, then a school detective, and then was promoted
15 to sergeant; was a sergeant for seven years. During my
16 tenure as a sergeant, I was with the bomb squad, the
17 airplane, K-9, horse patrol, routine patrol.
18 I was in planning back in the academy.
19 I was certified law enforcement instructor for the State
20 of New Mexico; promoted to lieutenant for five years
21 during which time I was a watch commander. I was
22 commander of planning. I was also commander of the SWAT
23 team. Then I was promoted to captain; was a captain for
24 six years; was SWAT team commander, area commander, and
25 then, property management commander.

Sandra M. Halsey, CSR, Official Court Reporter 298

1 Q. Well, you have done it all sounds
2 like?
3 A. Some.
4 Q. You were a sergeant over the K-9 unit?
5 A. Yes, sir.
6 Q. Did you actually work with the dogs or
7 were you just supervising over them?
8 A. Both, sir.
9 Q. Okay. And what type of dogs were you
10 all using?
11 A. We were using German shepherds at the
12 time.
13 Q. What were their duties?
14 A. Basically, search and some drug; drug
15 hadn't really come into it's own with K-9s at that time.
16 So we used them mostly on building searches.
17 Q. Searching for suspects in buildings;
18 that kind of thing?
19 A. Yes, sir.
20 Q. Okay. And you were a detective for
21 some time and actually school detective; is that right?
22 A. Yes, sir.
23 Q. What type of detective -- what types
24 of crimes did you investigate as a detective?
25 A. Basically, I was a sex crimes expert.

Sandra M. Halsey, CSR, Official Court Reporter 299

1 Q. Okay. Children or just any type?
2 A. Children, sir.
3 Q. Okay. And were you ever a detective
4 involved in a murder case?
5 A. No, sir.
6 Q. Ever involved, in any of your other
7 duties, become involved in a murder case?
8 A. Yes, sir.
9 Q. What happened there? How were you
10 involved? Just arriving officer at the scene?
11 A. Arriving officer at the scene,
12 supervisor at the scene.
13 Q. Okay. I take it then over the 25
14 years you have testified many, many times in criminal
15 trials?
16 A. Yes, sir.
17 Q. Of all sorts and kinds?
18 A. Yes, sir.
19 Q. And you have seen a little bit of
20 everything as a police officer?
21 A. Yes, sir.
22 Q. How do you feel? Do you feel, I mean
23 obviously, you have a lot of experience more than the
24 average juror. Do you think you could be fair in a
25 criminal case?

Sandra M. Halsey, CSR, Official Court Reporter 300

1 A. Yes, sir.
2 Q. Sitting as a juror?
3 A. Yes, sir.
4 Q. Okay. You probably well know there is
5 good police officers, there is bad police work sometimes,
6 you have been exposed to it all?
7 A. Yes, sir.
8 Q. One of the portions of our
9 questionnaire we have: Have you ever seen a case that
10 had not been properly investigated? Were those some
11 cases you might have supervised, or became involved in?
12 A. I have seen some that have not been
13 investigated in my opinion properly, sir.
14 Q. Okay. And your brother is also a
15 police officer; is that right?
16 A. Yes, sir.
17 Q. Okay. Let me go into your specific
18 feelings about the death penalty. Obviously, our goal in
19 this case is to prosecute the defendant, prove her
20 guilty, and try to prove these answers so they may be
21 answered by a jury in a way which will someday result in
22 her execution. The defense has taken the opposite view.
23 And it will be a hard fight on both sides. What we want
24 to know is your personal feelings about the death
25 penalty.

Sandra M. Halsey, CSR, Official Court Reporter 301

1 Do you agree with the death penalty as
2 a law?
3 A. Yes, sir.
4 Q. Okay. Tell me, in your own words, why
5 you believe in the death penalty; what purpose you feel
6 it serves?
7 A. I think that in some situations, under
8 some mitigating circumstances, that it's warranted. Per
9 the State per any number of reasons.
10 Q. Okay. Give us a couple of examples of
11 those, if you could.
12 A. Well, basically, people who are beyond
13 rehabilitation, people that have shown a propensity for
14 that type of thing.
15 Q. Okay. Any -- have you ever followed
16 any cases in the news or from your own work where you
17 feel the criminal or the defendant should get the death
18 penalty or should have gotten the death penalty or
19 followed any cases closely involved in that?
20 A. Yes, sir, I have.
21 Q. What were those? From work or just in
22 the news?
23 A. Just at work, sir.
24 Q. Okay. And in New Mexico, do they have
25 the death penalty?

Sandra M. Halsey, CSR, Official Court Reporter 302

1 A. They do, sir. They haven't executed
2 anyone though since 1950 something.
3 Q. Really. And some of the cases you
4 were actually involved in, were they death-penalty-type
5 cases?
6 A. Yes, sir.
7 Q. Okay. Did the person receive the
8 death penalty?
9 A. No, sir.
10 Q. Okay. Did they go to a jury trial?
11 A. Yes, sir.
12 Q. Okay.
13 A. They were sentenced but the governor
14 then elect, Toney Anaya, or Anaya rather, commuted all
15 the sentences.
16 Q. I see. So sentenced to death but then
17 commuted by the --
18 A. Yes, sir, commuted by the governor.
19 Q. How did you feel about that?
20 A. Not my option.
21 Q. You didn't have any control over it?
22 A. No, sir.
23 Q. All right. Let me ask you, obviously,
24 most violent criminals oftentimes involve males.
25 Obviously, we have a female on trial here in a death

Sandra M. Halsey, CSR, Official Court Reporter 303

1 penalty case. Do you think that would affect you in any
2 way?
3 A. No, sir.
4 Q. Okay. You talked about people that
5 cannot be rehabilitated or people that show a propensity
6 for violence. I take it you are talking about people
7 with a long criminal record; is that right?
8 A. In some instances.
9 Q. Okay. Obviously, you look at this
10 first question, that is one of the questions we have to
11 prove in punishment. "Do you find from the evidence
12 beyond a reasonable doubt that there is a probability
13 that the defendant would commit criminal acts of violence
14 that would constitute a continuing threat to society?"
15 You may hear a lot of evidence on
16 someone's past record; or it could be a case where
17 someone who is a saint, never committed a criminal
18 offense before. We may have only the facts of the crime
19 itself for a jury to make that determination. Do you
20 think you could answer that question based on just the
21 facts of the offense alone, depending on what those facts
22 were obviously?
23 A. Depending on what the facts were, yes,
24 sir.
25 Q. Do you think you could gain enough

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1 information about the defendant by the brutality of the
2 crime and what lead up to it, things of that nature?
3 A. I think probably so.
4 Q. Okay. All right. Sometimes, and you
5 will know this better than most people, the State, when
6 proving a murder case, puts on what we call
7 circumstantial evidence. Circumstantial evidence is
8 anything but an eyewitness to a crime. You know, the way
9 we determine is direct or indirect evidence. If you have
10 an eyewitness, that is direct evidence. Any other
11 evidence that links them, fingerprints, things taken from
12 the crime scene, anything else the defendant might have
13 said before, after or during the crime, things of that
14 nature, is indirect evidence or circumstantial evidence.
15 Do you think you would have a problem
16 finding someone guilty of capital murder if it was proven
17 to you through circumstantial evidence?
18 A. I think beyond a reasonable doubt
19 would be my key to that, if I was beyond a reasonable
20 doubt.
21 Q. All right. In Texas, you know, we
22 always hear about motives. And police officers,
23 prosecutors, everyone is interested in the motive. Why a
24 crime occurred? But oftentimes you may not know the true
25 motive. In Texas, we're not required to prove to you

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1 what the motive is, the reason for the killing. And it
2 may become very apparent through the testimony. It may
3 be one of several motives or it may be a motive known
4 only to the defendant. But it's not required under law
5 that we prove a motive.
6 Are you comfortable with that area of
7 law?
8 A. Yes, sir, I am.
9 Q. Okay. Let's talk about Question
10 Number 1 at a little greater length. Now you don't reach
11 that question until the State of Texas has proven its
12 case beyond a reasonable doubt. Then, once we get to the
13 punishment stage, as I said, you might hear additional
14 evidence about the defendant's background and you may
15 not. You might hear bad things about her character; you
16 may hear a lot of good things about her character. But
17 at the close of that evidence you go back into the jury
18 room and the first thing you do is decide, did the State
19 prove this question, yes, beyond a reasonable doubt. You
20 start out with a presumption of no. Just like there is a
21 presumption of innocence starting out at any trial. And
22 the State has to overcome that presumption.
23 The definitions contained in that
24 question -- you won't be given legal definitions from the
25 Judge like you will in other areas of the trial. In

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1 other words, whatever those words mean to you, that is
2 what you go with back there in the jury room. So, let me
3 go over a couple of those things. We have to prove
4 beyond a reasonable doubt that there is a probability
5 that the defendant would commit criminal acts of
6 violence. When we use the word probability, what does
7 that mean to you?
8 A. Most likely.
9 Q. Okay. More than likely?
10 A. More than likely. Most likely.
11 Q. You understand that it doesn't mean we
12 have to prove it's an absolute certainty or anything like
13 that?
14 A. Yes, sir.
15 Q. Are you comfortable with the word
16 probability used in this context?
17 A. Yes, sir.
18 Q. Okay. We also have to prove that they
19 would commit criminal acts of violence. When you see
20 those words, what comes to mind?
21 A. They violated the statutory
22 description legislature put out.
23 Q. Could it mean any type of felony, any
24 type of crime of violence at all?
25 A. Commit criminal acts of violence.

Sandra M. Halsey, CSR, Official Court Reporter 307

1 Q. You understand that just because you
2 find someone guilty of intentionally killing someone,
3 that doesn't mean you answer that question yes
4 automatically. You have to go back and reevaluate all of
5 the evidence and then decide if the State proved its
6 case. It's not an automatic answer at all. Could you
7 follow the law in that regard?
8 A. Yes, sir.
9 Q. All right. Just call it case by case
10 basis. The second question you get to is that mitigation
11 question. Now, neither side has the burden of proof in
12 that case. It's just something the jurors look at. You
13 look at all the evidence that came up. But I want to
14 read that one out loud. If you would follow along, it is
15 kind of lengthy.
16 "Taking into consideration all the
17 evidence, including the circumstances of the offense, the
18 defendant's character and background, the personal, moral
19 culpability of the defendant, is there a sufficient
20 mitigating circumstance or circumstances to warrant that
21 a sentence of life imprisonment rather than a death
22 sentence be imposed?"
23 We kind of call that a safety net
24 question sometimes. Before you get to it, you have
25 already found the defendant guilty beyond a reasonable

Sandra M. Halsey, CSR, Official Court Reporter 308

1 doubt. You found beyond a reasonable doubt that they --
2 that there is a probability that they would commit
3 criminal acts of violence, be a continuing danger.
4 However, there is something in the
5 evidence; something in the crime or the background of the
6 defendant that tells you that instead of a death
7 sentence, a life sentence should be imposed. And then
8 you could answer it that way, if that evidence occurred.
9 No one can tell you what the mitigating evidence is, that
10 would be up to you.
11 Does that sound like a fair question
12 to you in a death penalty case?
13 A. Yes, sir.
14 Q. Do you think you could keep your mind
15 open to that type of testimony?
16 A. Yes, sir.
17 Q. Okay. Now, like I said, whatever is
18 mitigating is up to you and the other jurors. You won't
19 get any further definitions. In fact, you don't even
20 have to agree with the other jurors what mitigating is.
21 Does anything come to mind as to what you might regard as
22 mitigating?
23 A. Well, mental stability.
24 Q. Okay.
25 A. A lot of other things along that

Sandra M. Halsey, CSR, Official Court Reporter 309

1 particular line.
2 Q. Sometimes jurors bring that up, they
3 say mental retardation. A person can be born that
4 certain way through no fault of their own, but still know
5 what they are doing, but might be a lot slower, mentally
6 retarded, things like that. Is that what you are talking
7 about, those types of things?
8 A. No, sir. I think, you know, state of
9 mind, at the time.
10 Q. Okay.
11 A. Anything happens, I have seen people
12 that were not of their mind at times.
13 Q. Okay. You are talking about, more or
14 less, are you going as far as like temporary insanity?
15 Where they just were not rationally thinking?
16 A. Well, I don't like to use that term,
17 because it's too legal. But I mean I have seen people
18 under crisis situations and all types of situations and
19 they didn't act or react in a way that you would have
20 thought they would have, or that was in character.
21 Q. Okay. Have you also seen, as a police
22 officer, just senseless, cruel crimes?
23 A. Yes, sir, I have.
24 Q. Made by rational people, but they just
25 commit them?

Sandra M. Halsey, CSR, Official Court Reporter 310

1 A. Yes, sir.
2 Q. Those can be kind of hard to
3 understand also, but they are legally responsible for
4 those?
5 A. Yes, sir.
6 Q. Okay. But the bottom line is, can you
7 keep your mind open to this type of evidence? And if you
8 think it is appropriate, first of all, if you hear the
9 evidence and it's mitigating, does it rise to the level
10 that you think a life sentence should be imposed: Would
11 you answer the question that way?
12 A. Yes, sir.
13 Q. And of course, the alternative is, if
14 you don't think it rises to that level, you could answer
15 it "no," knowing that the defendant could receive the
16 death penalty.
17 A. Yes, sir.
18 Q. Okay. That is the bottom line. We
19 have to know if jurors can honestly listen to all the
20 evidence and then make these decisions. In this case,
21 unlike New Mexico, Texas, obviously, does have a lot of
22 executions. We lead the nation in executions. We have
23 had over 100. So it is a very real issue. Talking about
24 convicting someone and then ultimately being executed.
25 The method here is by lethal injection. You may have

Sandra M. Halsey, CSR, Official Court Reporter 311

1 read or seen that on the news.
2 Let me ask you, Mr. Norlander, do you think
3 you are the type of juror that would listen to the
4 evidence, and if these things are proven to you, you
5 could take pen in hand and answer those questions in a
6 way knowing that if you answer a "yes" and a "no," the
7 defendant would be executed?
8 A. Yes, sir.
9 Q. Okay. The Judge went over a number of
10 rights that apply in every criminal case and you being a
11 police officer are probably a lot -- very familiar with
12 these: Presumption of innocence being one; every
13 defendant starts out with the presumption of innocence.
14 No matter if they have been arrested or indicted. Can
15 you follow that rule of law?
16 A. Yes, sir.
17 Q. Okay. The right not to testify; if
18 you want to testify, you can; but if you don't, the jury
19 cannot hold that against you. Would you follow that
20 rule?
21 A. Yes, sir.
22 Q. Okay. The burden of proof; the State
23 has the burden to prove this case beyond a reasonable
24 doubt. That burden never shifts to the defense, you
25 know. I don't expect them to do this, but if those

Sandra M. Halsey, CSR, Official Court Reporter 312

1 lawyers wanted to, they could sit over there and read the
2 comics or play tiddlywinks. They are not going to do
3 that, but they could do that, because if we don't meet
4 our burden even by our own testimony without any
5 questions, you have an obligation to find the defendant
6 not guilty. They are not obligated to put on witnesses,
7 or ask questions, or prove their client's innocence. We
8 have to prove this case beyond a reasonable doubt.
9 Will you require the State to do that?
10 A. Yes, sir.
11 Q. Will you not shift the burden to their
12 side of the table?
13 A. No, sir.
14 Q. Okay. Another area, obviously, in a
15 criminal case, you have police officers that come in and
16 testify, like you did many, many times. The law says you
17 have -- as a juror, have to start all the witnesses off
18 on the same foot. A lot of people respect police
19 officers, but you cannot start them out ahead of other
20 witnesses, you have to judge them like you would any
21 other witness. And after you have listened to them,
22 obviously, you judge each witness differently.
23 I guess, from all the police officers
24 you have worked with, you recognize there are real good
25 police officers, and there are a few bad apples

Sandra M. Halsey, CSR, Official Court Reporter 313

1 sometimes.
2 A. Yes, sir.
3 Q. They are human beings like anyone
4 else. Could you follow the rule that start all the
5 witnesses off on an equal footing and not give extra
6 credit or extra credibility to a police officer?
7 A. Yes, sir.
8 Q. Okay. Sometimes people talk about the
9 parole laws. Those -- you will get an instruction from
10 the Judge that you are not to consider the parole laws in
11 any way during any time during your decisions. Could you
12 follow that rule of law?
13 A. Yes, sir.
14 Q. Okay. You put on your questionnaire
15 that you were, I think, subject to a lawsuit once in
16 regards to your duties as a police officer.
17 A. Yes, sir.
18 Q. What was that about?
19 A. It was a Title 1987, '88, and '89,
20 wherein I fired or terminated a police officer. He sued
21 11 of us for racial discrimination.
22 Q. Okay. What happened on that lawsuit?
23 A. We were found not guilty.
24 Q. Okay. It actually went to trial?
25 A. Yes, sir, it actually went to trial.

Sandra M. Halsey, CSR, Official Court Reporter 314

1 Q. Oh, your other -- I think it is your
2 other brother, is back in Albuquerque also. He is
3 involved in TV news?
4 A. Yes, sir.
5 Q. What does he do?
6 A. He is the assistant news director of
7 KOAT-TV News.
8 Q. Okay. And you retired from
9 Albuquerque and then came here to Kerrville?
10 A. Yes, sir.
11 Q. What brought you to Kerrville?
12 A. I like this part of the country; have
13 for years.
14 Q. Okay. So you have known about it and
15 came here?
16 A. Yes, sir.
17 Q. Okay. Well, you made a good choice.
18 A Thank you.
19 Q. And you spend your time, it looks
20 like, fishing and woodworking, that kind of thing?
21 A. And raising my kids.
22 Q. And raising your kids. Well, that is
23 a full time job in and of itself.
24 A. Right now it is.
25 Q. Can you --

Sandra M. Halsey, CSR, Official Court Reporter 315

1
2 MR. TOBY SHOOK: Judge, if I could have just
3 one moment?
4 THE COURT: Yes, sir.
5
6 BY MR. TOBY SHOOK:
7 Q. Mr. Norlander, obviously, you know
8 from your experience as a police officer that a jury
9 decides the case just on the facts that are brought up in
10 the courtroom from witnesses on the witness stand and,
11 you know, exhibits that are introduced, that kind of
12 thing, not tried in the press or the newspaper.
13 This case has got a lot of publicity
14 and I believe you did read something here in the local
15 paper about it; is that right?
16 A. Yes, sir.
17 Q. Did it contain much of the facts or
18 anything like that?
19 A. No, sir. I just barely recall the
20 case.
21 Q. All right. You haven't formed any
22 opinion about this case at all?
23 A. No, sir, I have not.
24 Q. You could decide this case, if you
25 were chosen as a juror, just based on the evidence in the

Sandra M. Halsey, CSR, Official Court Reporter 316

1 case?
2 A. Yes, sir.
3 Q. And you could tell us you could keep
4 your mind open and would require the State to prove its
5 case in the guilt/innocence stage? Then, if the
6 defendant was found guilty, you could go on and make the
7 State prove its case in the punishment phase?
8 A. Yes, sir.
9 Q. But if we did prove it, you could
10 answer those questions accordingly?
11 A. Yes, sir.
12 Q. Okay. Do you have any questions over
13 anything we have gone over or any questions of me?
14 A. No, sir.
15 Q. Okay. The trial is slated to begin
16 January 6th, and we think it is going to last about two
17 weeks. And Judge Tolle works pretty steady on through
18 the day, but he doesn't go into the evening hours. We
19 don't expect the jury to be sequestered, especially
20 during -- while the trial is going on. Maybe if there is
21 deliberations going on, but no longer than that. So it's
22 not going to be anything like the O.J. Simpson case where
23 we go on for months or anything like that.
24 A. Okay.
25 Q. That's all the questions I have.

Sandra M. Halsey, CSR, Official Court Reporter 317

1 Thanks for your patience, sir.
2 A. Yes, sir.
3
4 THE COURT: Thank you, Mr. Shook. Mr.
5 Mosty.
6
7 VOIR DIRE EXAMINATION
8
9 BY MR. RICHARD MOSTY:
10 Q. Mr. Norlander, my name is Richard
11 Mosty and I am one of the lawyers representing Darlie.
12 Here is Preston Douglass to my left, my partner. And the
13 defendant, Darlie Routier. She is also represented by a
14 couple of co-counsel from Dallas who are not here. We're
15 splitting up some of this.
16 And I don't believe we have ever met.
17 A. No, sir, not to my knowledge.
18 Q. Do you live in the Center Point School
19 District?
20 A. Yes, sir, I do.
21 Q. I took that from -- your kids are in
22 school down there?
23 A. Yes, sir.
24 Q. What ages are they? What grades?
25 A. I have four children: One is 28, one

Sandra M. Halsey, CSR, Official Court Reporter 318

1 is 25, and then the two that I have at home; one is 15
2 and he is a sophomore, and the other is 12 and she is in
3 the 7th grade.
4 Q. Okay. I am an old Center Point boy
5 myself.
6 Did -- how did you happen to even know
7 about the Hill Country? Had you visited here, or hunted
8 or something?
9 A. No, sir, my grandparents lived in
10 LaFeria, Texas, and they would come up here on a lot of
11 their Bible retreats and that type of thing. And they
12 really loved the Hill Country and I had come through it a
13 few times and liked it very much myself.
14 Q. Did they come to the Cowboy camp
15 meeting in August?
16 A. You know, it's been so many years, I
17 don't even really recall, but I knew that they came up
18 here a lot and they really loved it.
19 Q. And I guess you grew up in
20 Albuquerque?
21 A. Yes, sir.
22 Q. I want to focus -- I really want to
23 focus on the first part of the trial. Sometimes we sit
24 here and talk so much about what the punishment is that I
25 want to make sure that we don't get lost over what we're

Sandra M. Halsey, CSR, Official Court Reporter 319

1 really here about. And that is, whether or not the State
2 can prove my client guilty beyond a reasonable doubt.
3 And so that is what I want to sort of
4 dwell on with you and focus on with you. And I want to
5 be perfectly candid, defense lawyers sit over here and
6 see someone with 28 years of police experience, that
7 causes our hearts to twinge a little bit, and so let's be
8 perfectly -- let's just be perfectly candid.
9 A. That is why I have never been on a
10 jury before.
11 Q. Well, I suspect -- I have, in fact,
12 picked the police chief in Fredericksburg to serve on a
13 jury over there. And after they committed me to the
14 state hospital and I got out, I still thought it was a
15 good idea.
16 A. I think we can make good jurors, I
17 truthfully do.
18 Q. I think so, and I think that what we
19 need -- I need to understand exactly where you are on
20 these cases.
21 Have you ever personally been involved
22 as a police officer in a case that you really perhaps
23 thought the defendant was not guilty, even though you had
24 been part of the investigation and they were tried?
25 A. (No response.)

Sandra M. Halsey, CSR, Official Court Reporter 320

1 Q. Even though you were called to testify
2 and testified honestly on your part, that you really had
3 some doubts in your mind about whether or not the person
4 really committed the crime?
5 A. That would be difficult for me to say.
6 The cases that I personally investigated, or was deeply
7 involved in, no, sir. I made an honest effort to try to
8 at least if nothing else, be convinced myself, of what I
9 was doing. I had some partial, you know, just
10 assistance, in a few situations where, yes, I had my
11 doubts. I was not that much of an element towards the
12 proof, you know, just some substantiating issues and some
13 things like that, and I had some questions, yes, sir.
14 Q. Okay. Have you ever participated in a
15 case when someone was found not guilty in which you were
16 deeply involved that you thought that there was a
17 miscarriage of justice?
18 A. No, sir.
19 Q. Felt like the result in the instances
20 that you were involved in was proper?
21 A. Generally, yes, sir. Misdemeanor
22 cases, that is a different issue. But felony cases, no,
23 sir, generally.
24 Q. Of course, you know that your days of
25 solving crime are now over?

Sandra M. Halsey, CSR, Official Court Reporter 321

1 A. Long been over.
2 Q. And that this jury is never going to
3 be called upon to solve this crime?
4 A. Yes, sir.
5 Q. It's just going to be the narrow issue
6 of what can the State prove?
7 A. Yes, sir.
8 Q. And that doesn't cause you any --
9 A. No, sir.
10 Q. -- or else I suppose you would not
11 have retired if you still had a burning desire to be out
12 there solving cases.
13 A. I had not been actually involved in
14 cases probably for 15 to 20 years. I was more into the
15 administrative end as a lieutenant and a captain and have
16 been retired for five years, so, I would say for a good
17 15 years, I really have not been involved in
18 investigating any cases.
19 Q. Did -- in your experience -- did you
20 find as a police officer, that having a motive was
21 helpful to you in really ascertaining what happened in a
22 crime?
23 A. I think it was helpful, yes.
24 Q. And could you conceive that there
25 might be cases where the State had some evidence, but

Sandra M. Halsey, CSR, Official Court Reporter 322

1 that the lack of motive just put such a glaring hole in
2 it that their story just didn't quite make sense and
3 would create reasonable doubt?
4 A. I will be honest with you. I don't
5 have a problem with the term reasonable doubt. If I have
6 reasonable doubt, I'm independent enough to state that I
7 have reasonable doubt.
8 Q. Did New Mexico define reasonable doubt
9 for you?
10 A. Well, I have lectured on that
11 particular subject as a matter of fact. I think I have
12 been through three or four volumes on the subject, and I
13 don't know if I could define it for you.
14 Q. Well, you just took away my next
15 question because I was going to ask you --
16 A. Well, to me, basically, what it means
17 is that after everything has been said and done, that a
18 reasonable person would believe, without any questions,
19 that this particular thing had happened or that this
20 particular person had done it.
21 Q. You are not far from the Texas
22 definition. It says if someone would act without
23 hesitation --
24 A. Yes, sir.
25 Q. -- in the most important of their own

Sandra M. Halsey, CSR, Official Court Reporter 323

1 affairs.
2 A. Yes, sir.
3 Q. How -- and I guess you would not have
4 any problem doing the same, making that same analysis and
5 application to a circumstantial evidence case?
6 A. No, I don't think I would.
7 Q. I have drawn an analogy of reasonable
8 doubt as being a block or a circle that the State must
9 paint completely black in order to remove reasonable
10 doubt. And that is, you know, oftentimes done with an
11 eyewitness who says, "I saw this happen." And there is
12 one big piece of evidence that removes reasonable doubt.
13 On the other hand, circumstantial
14 evidence is a number of pieces of evidence in which the
15 State attempts to again blacken out that reasonable
16 doubt. There might be instances where that
17 circumstantial evidence really isn't relevant. It might
18 not be anything in terms of removing reasonable doubt.
19 Have you seen situations like that?
20 A. Smoking mirrors, yes, sir.
21 Q. Adding two and two and getting five
22 and it just doesn't quite add up.
23 A. Yes, sir.
24 Q. Tell me, what newspapers do you
25 regularly subscribe to?

Sandra M. Halsey, CSR, Official Court Reporter 324

1 A. The Kerrville Daily Times is the only
2 one I subscribe to. I read the San Antonio paper
3 occasionally.
4 Q. What do you -- what is your ordinary
5 daily routine? What do you do most days?
6 A. I get up about 6:00; get the kids up,
7 help them get off, go down and feed my horses, go to work
8 in my shop if I have any orders or anything I can do down
9 there.
10 Q. You are actually working at cabinet
11 making or --
12 A. Well, knickknacks, goo-gahs, cabinets,
13 little things.
14 Q. Where do you live outside the --
15 outside Center Point?
16 A. I live behind the airport on Johnson
17 Drive.
18 Q. Okay. In the Shady Grove area?
19 A. Yes, sir, that is the addition.
20 Q. And your older kids are where?
21 A. One of them is in Ruidoso, New Mexico,
22 on the fire department; and my daughter is in Alamogordo,
23 New Mexico, with her husband who works for one of the
24 missile companies over there. I don't remember, and he
25 just changed the phone company, so I don't remember.

Sandra M. Halsey, CSR, Official Court Reporter 325

1 Q. Did you have any feelings about when
2 the governor pardoned or commuted the death sentence, did
3 that cause you any consternation at the time?
4 A. Well, yes, I would say it caused me
5 some consternation only from the standpoint that I feel
6 very strongly that we as a citizen, we get basically what
7 we deserve. And when we go to the polls and make our
8 votes and do our things; I had accepted that philosophy
9 long before being a law enforcement officer, not to get
10 too upset about a lot of the things that transpired.
11 I believe in the judicial system of
12 America. I have some problems sometimes with the
13 individuals who are involved with it. But I do believe
14 in the system of checks and balances and our whole basic
15 system. So rather than get upset, I basically adopted a
16 fairly philosophical view about the whole thing.
17 Q. At what stage in your life do you
18 think you sort of developed that philosophical view?
19 A. Oh, about 35, 40 years old. I think,
20 you know, I think to survive in municipal law enforcement
21 today in the crisis with gangs, you know, and so on and
22 so forth. I think if you don't adopt a philosophical
23 view, you are liable to end up with more trouble than you
24 have got.
25 Q. What kind of law enforcement is your

Sandra M. Halsey, CSR, Official Court Reporter 326

1 brother in?
2 A. He was an Albuquerque city policeman
3 for 25 years. He retired and he went back as a -- works
4 in the school, in a high school there as a -- works for
5 the City Police Department, but as a school -- I don't
6 want to call them a guard, I don't want to call them a
7 detective, just a police officer attached to the school.
8 Q. All right. And is that a high school
9 there in Albuquerque?
10 A. Yes, sir, it is, El Dorado High.
11 Q. In your questionnaire, you were asked
12 do you believe that there are some crimes which call for
13 the death penalty solely, and solely is underlined,
14 because of the facts and circumstances regardless of
15 whether or not the guilty person has committed prior
16 violent acts? And you answered in your questionnaire,
17 no, or checked the no questionnaire in there. And I was
18 thinking that when Mr. Shook and you discussed this,
19 perhaps you changed or rethought that position a little
20 bit. That simply the facts and circumstances themselves
21 could or could not be enough to influence you to impose a
22 death sentence?
23 A. Well, the way that question sounded to
24 me like, it is a matter of fact. The person did this,
25 therefore this occurs. And I don't necessarily believe

Sandra M. Halsey, CSR, Official Court Reporter 327

1 that, I believe that the mitigating circumstances can
2 surround any particular situation.
3 Q. Okay.
4 A. And change it.
5 Q. Well, I will say to you that I had
6 nothing do to with writing these question, so you can say
7 anything you want to about them. So, if I understand
8 what you are saying is that just because somebody is
9 guilty, it doesn't necessarily follow they ought to get
10 the death penalty?
11 A. That's correct.
12 Q. And that is what you were trying to
13 express in there?
14 A. Yes, sir.
15 Q. Do you think that there could be
16 circumstances which a person was convicted of murdering a
17 child under ten -- under six, that would still warrant a
18 life sentence?
19 A. Yes, sir.
20 Q. You are open to that?
21 A. Yes, sir.
22 Q. To that concept?
23 A. Yes, sir.
24 Q. I think Mr. Shook asked you this
25 question but let's be certain: You would judge the

Sandra M. Halsey, CSR, Official Court Reporter 328

1 credibility of the police officer just the same as you
2 would any other person?
3 A. To me a police officer is an everyday
4 person. I dealt with them everyday. And they have the
5 same faults, the same good points and everything as
6 anybody else does, so to me they are the same.
7 Q. Okay.
8
9 MR. RICHARD MOSTY: I'll pass the
10 witness.
11 THE COURT: Would you, mind stepping
12 outside just a minute, sir?
13 THE PROSPECTIVE JUROR: Yes, sir.
14 THE COURT: Don't go.
15 THE PROSPECTIVE JUROR: No, sir.
16 THE COURT: Don't go, all right.
17 Thank you.
18
19 (Whereupon, a short
20 Discussion was held
21 Off the record, after
22 Which time the
23 Proceedings were resumed
24 As follows:)
25

Sandra M. Halsey, CSR, Official Court Reporter 329

1 THE COURT: What says the State?
2 MR. TOBY SHOOK: The State accepts the
3 juror.
4 THE COURT: What says the --
5 MR. RICHARD MOSTY: The defense will
6 exercise conventional wisdom, Your Honor, and we will
7 strike the juror.
8 THE COURT: The Court is nonplussed
9 over that decision. All right. If you will call the
10 juror in, please.
11 All right. Well, Mr. Norlander, we
12 want to thank you very much for your time and your
13 attendance, but you will not be needed any further.
14 THE PROSPECTIVE JUROR: Thank you.
15 THE COURT: Please do not speak to
16 anyone about the case until it's over. Be kind enough to
17 do that.
18 THE PROSPECTIVE JUROR: Okay.
19 THE COURT: Yes, sir. Thank you very
20 much.
21 All right. The next witness -- the
22 next prospective juror, Mr. Charles Rives. Bring him in.
23 All right. Have a seat right here,
24 please, sir.
25 Will you please raise your right hand,

Sandra M. Halsey, CSR, Official Court Reporter 330

1 sir?
2 Do you solemnly swear or affirm that
3 you will faithfully answer all the questions propounded
4 to you -- truthfully answer all the questions propounded
5 to you in this courtroom or any room to which you may be
6 sent concerning your qualifications as a juror, so help
7 you God?
8 THE PROSPECTIVE JUROR: I do.
9 THE COURT: Please state your name.
10 THE PROSPECTIVE JUROR: My name is
11 Charles Rives, R-I-V-E-S.
12 THE COURT: Thank you. All right, Mr.
13 Shook.
14 MR. TOBY SHOOK: Thank you, Judge.
15
16 Whereupon,
17
18 CHARLES O. RIVES,
19
20 was called as a prospective juror, for the purpose of
21 voir dire, having been first duly sworn by the Court to
22 speak the truth, the whole truth, and nothing but the
23 truth, testified in open court, as follows:
24
25

Sandra M. Halsey, CSR, Official Court Reporter 331

1 VOIR DIRE EXAMINATION
2 BY MR. TOBY SHOOK:
3 Q. Mr. Rives, my name is Toby Shook, I am
4 an Assistant District Attorney for Dallas County. I am
5 one of the prosecutors assigned to this case, along with
6 Greg Davis, who is not here, and Sherri Wallace.
7 The attorneys that are present for the
8 defense today are Mr. Richard Mosty and Mr. Preston
9 Douglass. And obviously, the defendant is seated at the
10 corner, Mrs. Darlie Routier.
11 Do you know either of the local
12 counsel?
13 A. No, sir.
14 Q. And I guess you don't know any of us
15 from Dallas?
16 A. No, sir.
17 Q. Okay. What we are down here today on
18 obviously, is individual voir dire on a death penalty
19 case. You sat on a civil jury, looked like they had you
20 there for what, eight weeks?
21 A. Yes, sir.
22 Q. Have you ever sat on a criminal jury?
23 A. No, sir.
24 Q. Okay. Usually a jury selection is
25 done from a panel, but because this is a death penalty

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1 case we interview each juror individually. We're not
2 trying to put you on trial up there or anything, but we
3 each get a certain amount of time with you, and we just
4 want your honest opinions. And I can tell you, you won't
5 be here for eight weeks like the civil trial.
6 A. Thank you.
7 Q. We think the trial, we can't say for
8 sure, but we think it will last about two weeks, starting
9 January 6th. Outside shot, a little more than that, but
10 no more than that, as far as we can guess. It's not
11 going to be anything like the case you were on or the
12 O.J. Simpson case or anything like that.
13 Does that cause you any problems then,
14 obviously, besides the regular inconvenience?
15 A. Well, regular inconvenience, and if it
16 were to go longer than that then it would start to
17 jeopardize compensation employment.
18 Q. We can fairly well tell you, not more
19 than three weeks. We think it is going to be about two
20 weeks.
21 A. All right.
22 Q. All right. Mr. Rives, it is Mr.
23 Rives, right?
24 A. Yes.
25 Q. Okay, Mr. Rives, you obviously saw

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1 something about the case; got a lot of publicity here in
2 the Kerrville paper, San Antonio, some of the news
3 stations had a little bit on it. Obviously, as a juror,
4 you are to hear the evidence and make your decisions on
5 what you hear here in the courtroom. Have you heard a
6 lot of publicity about the facts of this case at all?
7 A. Very little. Once the Judge told us
8 last week not to pay attention, I did my best not to.
9 Q. Okay. So if you are selected as a
10 juror, that won't be an issue with you. You will make
11 your decision just on what you hear in the courtroom?
12 A. Yes, sir.
13 Q. Okay. Let me ask you a little bit --
14 what type of jury were you on? It was a civil case?
15 A. Yes, sir.
16 Q. Twenty-three million dollar verdict?
17 What was it about?
18 A. A Japan Airlines 747 had slipped off
19 the runway in Anchorage, Alaska. And the Japan Airlines
20 was suing the State for negligence in maintenance and
21 operation of the airport.
22 Q. Okay. And you found in favor of
23 the --
24 A. Of Japan Airlines.
25 Q. Japan Airlines.

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1 A. Well, it was a split --
2 Q. Split deal --
3 A. -- kind of deal, yes.
4 Q. How long ago was that?
5 A. That was probably 15 years ago.
6 Q. Okay. And you yourself have been an
7 expert in the exotic animal industry; is that right?
8 A. Yes, sir.
9 Q. What type -- were you ever called and
10 testified in a trial?
11 A. I testified in one trial. It was
12 later declared a mistrial, but I took the stand and
13 discussed the exotic animal industry as answering the
14 questions.
15 Q. Okay. And you were involved in that
16 as a director, it looked like, of the exotic animal
17 industry; is that right?
18 A. Yes, sir.