Volume 13

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. 13 OF VOLS.
17 October 29, 1996
18 Tuesday
19
20
21
22
23
24
25

Sandra M. Halsey, CSR, Official Court Reporter 407

1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Tuesday, the 29th 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
408

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
409

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
410

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
411

1 P R O C E E D I N G S
2
3 October 29th, 1996
4 Tuesday
5 8:30 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,
15 As follows:)
16
17

18 THE COURT: All right. Let's go on
19 the record now. This morning -- this is Tuesday, October
20 the 29th, 1996, and all parties to the proceedings are
21 present. And if you will raise your right hand, please,
22 ma'am.
23 Do you solemnly swear or affirm you
24 will true answers make to all the questions propounded to
25 you in this room or any room or court which you may be
Sandra M. Halsey, CSR, Official Court Reporter
412

1 sent to concerning your qualifications as a juror, so
2 help you God?
3 THE PROSPECTIVE JUROR: I do.
4
5 (Whereupon, the prospective

6 juror was duly sworn by the
7 Court to true answers make

8 to the questions propounded,
9 concerning qualifications, after
10 which time, the proceedings were
11 resumed as follows:)
12

13 THE COURT: Will you please state your
14 name and spell it for the court reporter.
15 THE PROSPECTIVE JUROR: Keri Hagan,
16 K-E-R-I, H-A-G-A-N.
17 THE COURT: Thank you. And we have on
18 this side Ms. Sherri Wallace and Mr. Toby Shook who
19 represent the State of Texas. Mr. Richard Mosty
20 represents the defendant, Mrs. Darlie Routier, who is
21 sitting in front of you there. Go ahead, please.
22 MS. SHERRI WALLACE: Thank you, Your
23 Honor.
24
25
Sandra M. Halsey, CSR, Official Court Reporter
413

1 Whereupon,
2
3 KERI L. HAGAN,
4
5 was called as a prospective juror, for the purpose of
6 voir dire, having been first duly sworn by the Court to
7 speak the truth, the whole truth, and nothing but the
8 true, testified in open court, as follows:
9
10 VOIR DIRE EXAMINATION
11
12 BY MS. SHERRI WALLACE:
13 Q. Good morning.

14 A. Good morning.
15 Q. Let me -- again, the Judge just
16 introduced me, I am Sherri Wallace, and I am going to be
17 asking you some questions, and Mr. Mosty will as well.
18 There is no right or wrong answers.
19 If you are nervous, it's natural. Most people are. So
20 we're just going to sit back and ask you some questions.
21 Just tell us how you feel, and we will get through this.
22 Okay?
23 A. Okay.
24 Q. Let me start by asking you, do you

25 know any of the lawyers from the State, from Dallas?
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414

1 A. No.
2 Q. We were introduced, including Greg
3 Davis.
4 A. No.
5 Q. Okay. And, did you know any of the
6 Dallas defense attorneys?
7 A. No.
8 Q. Do you know Mr. Mosty or Preston
9 Douglass?
10 A. I know of Mr. Mosty, but I don't know
11 him personally.
12 Q. Okay. Just acquainted with his name?
13 A. Yes.
14 Q. Anything about that that would affect
15 you in this case?
16 A. No.
17 Q. Okay. I'm going to talk to you about
18 three different areas, starting with your questionnaire.
19 And then talk to you about the death penalty, in general,
20 and your personal feelings about that. And then talk to
21 you about general principles of law. If you have any
22 questions, it's my fault, not yours. I'm not explaining
23 it well enough, so just let me know. Okay?
24 A. Okay.
25 Q. First off, has anything changed since
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415

1 you filled out your questionnaire last week?
2 A. I think the only thing I left out was
3 about the law enforcement, do you know anybody in the law
4 enforcement-type thing.
5 Q. Okay.
6 A. And it's a really long, drawn out by
7 marriage-type thing.
8 Q. So you are distantly related by
9 marriage to somebody in law enforcement?
10 A. My stepchildren are.
11 Q. Okay.
12 A. Frances Kaiser is their aunt by
13 marriage for me.
14 Q. Okay. Anything about that
15 relationship that would affect you in this trial?
16 A. No.
17 Q. Okay. I'm going to tell you right up
18 front, our goal in this case is to get 12 jurors that can
19 come into the courtroom with an open mind, not having

20 prejudged the case, and decide whether or not the State
21 has proved their case beyond a reasonable doubt. And

22 then, proceed, in the event we do, then proceed to answer
23 the questions with regard to the death sentence.
24 There has been some pretrial publicity
25 in this case. Generally, in a case when you are called
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416

1 down for jury service, a juror walks in and really
2 doesn't know about the case. They kind of wander in and
3 are not even sure why they are called. And they may look
4 up at the counsel table and figure out who the defendant
5 is. And commonly, in a scenario like that, they may
6 wonder what the defendant did. And that is just human
7 nature, there is nothing wrong with that.
8 But what you cannot do is take that

9 attitude into the jury box. I know you mentioned from
10 your questionnaire that you had seen this on television,
11 and read it the newspaper, and heard it on the radio.

12 At the end of your questionnaire you
13 said that, that you felt that she was probably guilty
14 from what you have read and what you have heard.
15 A. Yes.
16 Q. Let me state again that it is human

17 nature to have those types of feelings. But you may not
18 sit as a juror if you have already formed an opinion
19 about this case. We do not want a juror that has
20 prejudged the evidence. You have not heard it all, no
21 matter how much you have seen, because I have seen most
22 of it and they have not gotten it all right. Okay. So
23 you have to withhold that opinion or feeling and wait to
24 hear the evidence.
25 Can you do that, Ms. Hagan?
Sandra M. Halsey, CSR, Official Court Reporter

417

1 A. Probably not.
2 Q. Okay. Tell me what your feeling is or
3 where you are coming from on that.
4
5 MR. RICHARD MOSTY: Your Honor, I
6 think that under, I think it's 35.16, that once she says
7 that that opinion, that she probably could not set it
8 aside or that it would influence her, I think that she is
9 subject to a challenge for cause.
10 THE COURT: Oh, I understand that.

11 But I don't think we have quite gotten to that final
12 point yet. As soon -- you know, I agree, as soon as we
13 get there, if we get there, certainly she will be

14 challenged for cause. I will excuse her myself.
15
16 BY MS. SHERRI WALLACE:
17 Q. Ms. Hagan, what the defense attorney
18 is saying, is once that you state that you have formed an
19 opinion, you may not sit as a juror on this case.
20 A. Uh-huh. (Witness nodding head
21 affirmatively.)
22 Q. And, having a feeling or being curious
23 or knowing about the pretrial publicity and seeing all
24 that does not make you ineligible in any way. But what
25 we're asking you is: Will you follow the law and set
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418

1 your feeling aside? Wait to hear the evidence in the
2 courtroom and then render a just verdict. Could you do
3 that?
4 A. I would like to, but I don't think
5 that that would probably happen.
6 Q. Okay.
7 A. I mean truthfully.
8 Q. And I'm not arguing with you, but you
9 say probably. And we are going to have to have a yes or
10 no. If you can do it, let us know; if you can't do it,
11 well, you have to say that.
12 A. I would probably say no.
13
14 THE COURT: Well --
15 THE PROSPECTIVE JUROR: No probably.
16 Okay. Well --
17 THE COURT: We are still probably.

18 THE PROSPECTIVE JUROR: Okay. No.
19 THE COURT: Here is the point. If you
20 listen, let's assume you are a juror on this case. If

21 you feel the State has not proven their case, has not
22 proven Mrs. Routier guilty beyond a reasonable doubt,

23 could you find her not guilty? Or is your mind shut, no
24 matter what you hear, you are going to find her guilty?
25 THE PROSPECTIVE JUROR: I would say my
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419

1 mind is shut.
2 THE COURT: All right. Well, thank
3 you very much ma'am. Thank you for coming.
4 THE PROSPECTIVE JUROR: I am finished?
5 Thank you.
6 THE COURT: All right.
7
8 (Whereupon, the
9 Prospective
10 Juror was excused,

11 after which time,
12 the proceedings were
13 resumed as follows:)
14

15 THE COURT: All right. Next juror.
16 If you will have a seat right here
17 please, sir?
18 THE PROSPECTIVE JUROR: All right.

19 THE COURT: Will you raise your right
20 hand, please?
21 Do you solemnly swear or affirm you
22 will true answers make to all the questions propounded to
23 you in this courtroom or any room or courtroom which you
24 may be sent concerning your qualifications as a juror, so
25 help you God?
Sandra M. Halsey, CSR, Official Court Reporter
420

1 THE PROSPECTIVE JUROR: Yes, sir.
2
3 (Whereupon, the prospective

4 juror was duly sworn by the
5 Court to true answers make

6 to the questions propounded,
7 concerning qualifications, after
8 which time, the proceedings were
9 resumed as follows:)
10

11 THE COURT: All right. If you will
12 please state your name and spell your last name for the
13 court reporter?
14 THE PROSPECTIVE JUROR: Robert L.
15 King, K-I-N-G.
16 THE COURT: We have today before you,
17 this is Mr. Toby Shook and Ms. Sherri Wallace of the

18 Dallas County District Attorney's Office. They represent
19 the State. Mr. Richard Mosty represents the defense.
20 The defendant, Mrs. Darlie Routier, sitting in the black
21 dress at the end of the table.
22 Go ahead, please.
23 MR. TOBY SHOOK: Thank you, Judge.
24
25
Sandra M. Halsey, CSR, Official Court Reporter
421

1 Whereupon,
2
3 ROBERT LEE KING,
4
5 was called as a prospective juror, for the purpose of
6 voir dire, having been first duly sworn by the Court to
7 speak the truth, the whole truth, and nothing but the
8 true, testified in open court, as follows:
9
10 VOIR DIRE EXAMINATION
11
12 BY MR. TOBY SHOOK:
13 Q. Again, Mr. King, my name is Toby
14 Shook. I am the Assistant District Attorney in Dallas
15 County, and I am one of the prosecutors on the case, and
16 I will be asking you questions here today.
17 Because it's a death penalty case, we
18 ask each juror individual questions. We don't mean to

19 throw you up there on the stand like you are some type of
20 defendant or anything. I will ask you some questions and
21 then I think Mr. Mosty will have some questions for you.
22 Okay?
23 A. Okay.
24 Q. There are not any right or wrong
25 answers to any of our questions. We just want your
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422

1 honest opinions. Okay? We get all kinds of people down
2 here with different opinions, different life experiences.
3 That is why we call a lot of people down here. Okay?
4 A. Okay.
5 Q. One of the principle areas I want to
6 talk about is your personal feelings about the death
7 penalty. Obviously, you know this is a capital murder

8 case in which the State is actively seeking the death
9 penalty. That is our ultimate goal in this case, and
10 obviously, the defense will be doing everything to stop
11 us.

12 You have told us on your questionnaire
13 that as far as being in favor of the death penalty, you
14 are not; is that correct?

15 A. No, sir.
16 Q. Tell us a little bit about your
17 reasons behind that?
18 A. Well, since, you know, I have never
19 been on a murder trial, and there has been times, you
20 know, when I have read the paper and somebody murdered
21 somebody or killed somebody one way or another, and I,

22 you know, say they should be sent to the electric chair.
23 But then, when I stop and think, if I am sitting on the
24 jury, and if I thought I had the deciding vote to kill
25 somebody, I couldn't do it.
Sandra M. Halsey, CSR, Official Court Reporter

423

1 Q. Okay. Fair enough. We appreciate
2 that. And you also stated, you remember, we had the

3 different categories down here, and which one circled,
4 you circled the one that most represented your feelings,
5 and you circled the one that said: I could never under
6 any circumstances return a verdict which assessed the
7 death penalty.
8 Do you still feel that way?
9 A. Yes, sir.
10 Q. Okay. And that is fine. We have

11 people that are just adamantly for the death penalty.
12 Obviously, they would want to do it in every case. And,
13 obviously, they are not qualified as jurors, because they
14 more or less prejudged the case. And then we have other
15 people that could do it in some cases and so forth, are
16 not opposed to sitting on a jury.
17 Then we have other people that are
18 just, because of how they believe, they are
19 philosophically opposed to the death penalty, and don't
20 feel they can sit and make those type of decisions. And
21 that is fine. When we get you down here and swear you in
22 as jurors, we don't ask you to abandon your moral
23 beliefs, your convictions. Okay?
24 A. Uh-huh. (Witness nodding head
25 affirmatively.)
Sandra M. Halsey, CSR, Official Court Reporter
424

1 Q. You don't have to throw those out of
2 the window. We have all types of jurors down here and

3 when they come down for a certain case, sometimes because
4 of how they believe, personal convictions or what's
5 happened to them, they can't sit on a certain type of
6 case.
7 For example, sometimes a DWI case, you
8 will have a member who has had a family member hurt by a
9 DWI. Maybe they are actively in MADD. And they just
10 say, "Well, because my life was touched that way, if this
11 is a DWI case, I just can't intellectually listen to the
12 evidence fairly. You know, I have strong feelings
13 against it."
14 Or maybe someone has been a victim of
15 a violent crime. And they come down on a violent
16 offense, and they say, "That happened to me or similar

17 offense happened to one of my children. I just can't be
18 fair. I can't listen to the evidence and make these
19 decisions just on the evidence because my emotions would
20 come into it. I can't be fair." And it cuts both ways.
21 Sometimes you have people that may

22 have had a bad experience with a police officer. And
23 they just can't be fair in certain cases, if a certain
24 department was involved. And they let us know that.
25 And then, in such as this case, you
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425

1 have let us know that you just can't sit and make these
2 type of decisions because of your opposition to the death
3 penalty; is that right?
4 A. Yes, sir.
5 Q. Okay. You also checked off that you
6 have moral, religious, and personal beliefs that prevent
7 you from sitting in judgment of another human being. You
8 said yes to that, too. Is that along the same lines?
9 A. Yes, sir. I believe it would be.
10 Q. Okay. And then, again, you checked
11 off that you have moral, religious, and personal beliefs
12 that would prevent you from returning a verdict which
13 would result in the execution of a woman.
14 Does that go back to just a woman or
15 just any human being?
16 A. Any human being.
17 Q. Okay. Have you felt this way a long
18 time, sir?
19 A. Well, it's something I have never had
20 to think about.
21 Q. Okay. And you have never been
22 involved in this situation?
23 A. You know, I have never been called to
24 sit before.
25 Q. Okay. Have you ever been on a jury
Sandra M. Halsey, CSR, Official Court Reporter
426

1 before?
2 A. No, sir.
3 Q. Okay. But do you feel -- have you
4 reflected on it a lot since you were called down here and
5 the Judge talked about what type of case it is?
6 A. No, I really tried not to. I have
7 problems with anxieties.
8 Q. Oh, do you?
9 A. And the more I think about it, you
10 know, it could change my answer either way, you know.
11 And since, you know, I have sat in questioning for juries
12 before.
13 Q. Uh-huh. (Attorney nodding head
14 affirmatively.)
15 A. You know, I didn't want to put myself
16 in a position of trying to make a decision before I heard
17 a question.
18 Q. Sure. But what I need to know, and

19 obviously, a lot of people, you know, change their minds
20 on certain issues. But you have told me quite clearly

21 here, that you don't believe you could ever sit on a case
22 which would involve the decision on the execution of
23 someone. You are firm on that, aren't you?
24 A. I'm pretty firm, yes, sir.
25 Q. Okay. Because I'm sure, if I finish
Sandra M. Halsey, CSR, Official Court Reporter
427

1 asking you, Mr. Mosty will want to know, "Well, can you
2 do it in some case?"
3 A. Uh-huh. (Witness nodding head
4 affirmatively.)
5 Q. If you feel that way, that is fine.
6 The worst thing to come down here, is for someone to get
7 on -- a juror that just would answer my questions one way
8 because they think I want those answers. And then just

9 turn right around, and flip-flop, and go the other way.
10 But, obviously, from your
11 questionnaire, it's quite apparent that, you know, this
12 just was not your type of case. You were opposed to the
13 death penalty, and that you could not sit and render
14 these types of judgments. Am I reading you right then?
15 A. Yes, sir.
16 Q. And that is a strong conviction you
17 have?
18 A. Yes, sir, I believe it is.
19 Q. If this were some other type of case,
20 you know, that didn't involve the death penalty, maybe
21 some jail time or something like that, could you be a

22 juror on that type of case?
23 A. Probably.

24 Q. Okay. Would you still maybe have some
25 problems judging someone?
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428

1 A. Yeah. I guess if I could pay
2 attention and heard every answer, you know, I think that
3 and then --
4 Q. That is on another type of case?
5 A. On any other type of case, yes, sir.
6 If it could be discussed, you know --
7 Q. Okay. But because this is a death
8 penalty case, which could regard evidence that would show
9 the way you answer these questions, the defendant
10 ultimately could be executed, that is just not the type
11 of decision that you can morally make; is that right?
12 A. Not morally, I couldn't.
13 Q. Okay. And you are not going to leave
14 your morals outside the courtroom, are you?
15 A. No, sir.
16 Q. That is a part of you. Right?
17 A. Yes, sir.
18 Q. Okay. Something that you stick by?
19 A. Yes, sir.
20 Q. At least your moral beliefs; is that
21 right?
22 A. Yes, sir.
23 Q. Okay. That is fair enough.
24 Mr. King, your answers are very
25 apparent to me. And I wish I could say, you can be on
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429

1 your way, but the law requires us to ask you a few more
2 questions. Okay? Just to test your moral convictions
3 for one thing, but also to make sure that we're hearing
4 you right. So, I'm not trying to argue with you in any
5 way.
6 I need to explain a couple of things
7 to you before I ask my next series of questions. Okay?

8 The way a death penalty case works is,
9 if a person were on a jury, it's divided into two parts.
10 First, the State has to prove its case
11 beyond a reasonable doubt, on the indictment.
12 A. Uh-huh. (Witness nodding head
13 affirmatively.)
14 Q. And if the 12 jurors believe that they
15 have, they would find the defendant guilty. At that
16 point we would move to the punishment phase, where you
17 may or may not hear additional evidence. At the close of
18 that part of the trial, you are given these questions.
19 We will go over those maybe in a minute.
20 That first question, basically, asks
21 you, and the State has to prove beyond a reasonable
22 doubt: "Do you feel that there is a probability that the
23 defendant would commit criminal acts of violence that
24 would constitute a continuing threat to society?" It
25 asks the jurors to make a prediction. Would the
Sandra M. Halsey, CSR, Official Court Reporter
430

1 defendant be a continuing danger? If they look at the
2 evidence and if we had proven that, they would answer
3 that "yes."

4 This next question is a long question.
5 It is called the mitigation question. Basically, what
6 that question says, Mr. King, is if you see any evidence
7 after you have made these other decisions that tells you
8 that a life sentence should be imposed, rather than a

9 death sentence, you can answer the question that way,
10 If the jurors said "no," then the
11 judgment would be death, if there was no evidence,

12 mitigating evidence where a life sentence should be
13 imposed.
14 If they answered "yes," it would be
15 life in prison. You see these questions, if it's a "yes"
16 and a "no," Judge Tolle would sentence the defendant to
17 death. The Judge has no choice in the matter. It's just
18 how the jurors answer that question.
19 If it's any other answers, if you
20 answered "no" to that first one, and a "yes" to the
21 second one, it's a life sentence. You see what the two
22 choices are in a capital case? You see how that works?
23 A. Not really.
24 Q. Okay.
25 A. I lost you somewhere.
Sandra M. Halsey, CSR, Official Court Reporter
431

1 Q. All right. You know, what it comes
2 down to, most people think you come in and you answer
3 death or life.
4 A. Uh-huh. (Witness nodding head
5 affirmatively.)

6 Q. You don't do that. You answer these
7 questions. But because of the way you answer those
8 questions, that is how the sentence comes out.
9 A "yes" question -- a "yes" answer to
10 that first question: Are they a future danger, and a
11 "no" question (sic) to the second, the Judge would
12 sentence the defendant to death. No ifs, ands, or buts
13 about it. If you answer it any other way, it's a life
14 sentence.
15 Is that clearer to you?
16 A. Yes.
17 Q. Okay. You don't actually sentence

18 life or death, but the way you answer the questions, that
19 is what will result.
20 A. Uh-huh. (Witness nodding head
21 affirmatively.)
22 Q. You probably know in Texas the death
23 penalty is a very real issue. We have executed more than
24 100 people in this State. Have you read about that and
25 heard about that?
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432

1 A. Uh-huh. (Witness nodding head
2 affirmatively.)
3 Q. Okay. Some states have the death
4 penalty and they never enact it. Texas leads the nation
5 in executions. We average about 17 a year. Okay? The
6 method of execution is by lethal injection. Okay?
7 Our procedures call for if a person
8 has been found guilty and this question is answered in a
9 way that it would result in their death, the Judge
10 sentences them to death and they go down to Huntsville,
11 Texas. And they wait.
12 And I can't tell you when, but some
13 day the Judge would actually give them what is called a
14 death warrant. And the day before that, they would be
15 moved from their prison cell to a special Walls Unit

16 where they might be given a time for family and friends,
17 maybe a minister, but under our law after 6:00 p.m, the
18 guards will come to that cell and --
19 This is Mr. Mulder, he is the lead
20 attorney in the case.
21 They would come to that cell, and take
22 the defendant to the death chamber, and strap the
23 defendant down on a gurney, insert needles in their arms.
24 They might be given some last words, but within a few
25 moments, poison would be injected into their body which
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433

1 would cause their heart to stop.
2 And as I said, that has happened over
3 100 times. So the death penalty is a very real thing.
4 Okay?
5 A. Okay.
6 Q. But what you are telling me is,
7 because of your opposition to the death penalty, that you
8 morally can't make that decision. That you are not the
9 type of juror that can sit on this particular type of
10 case because of the death issue; is that right?
11 A. Yes, that's right.
12 Q. Okay. It's not a matter of proving to
13 you intellectually the evidence we give you, whether the
14 questions should be answered a certain way; is that
15 right? It's a matter of, "I just can't do it, because I
16 don't believe in it."
17 A. Right.
18 Q. You could prove it to me all day long.
19 I could say, "Yeah, there is enough evidence that I think
20 they are a continuing danger. I don't see any mitigating
21 evidence, but I can't answer the questions that way.
22 Because I can't sit in judgment of another human being
23 and give them death. I, morally, can't abandon my
24 principles."
25 A. Right.
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1 Q. Am I reading you right?
2 A. Yes.
3 Q. Do you feel strongly about that?
4 A. Yes, sir.
5 Q. Okay. Well, that is what it gets down
6 to. You understand that the State is entitled to jurors
7 who can listen to that evidence. If you can't feel that
8 way, no one is going to hold it against you. All right?
9 A. Yes, sir.
10 Q. I just need you to be fair and honest
11 with me to make sure I am reading you right. Am I
12 reading you right?
13 A. Yes, sir.
14 Q. Okay. In fact, do you feel strongly
15 about it that you know yourself, that no matter what the
16 evidence is, you can't answer these questions in a way
17 that would result in the Judge sentencing the defendant
18 to death?
19 A. Yes, sir, right.
20 Q. You are sure about that?
21 A. Yes, I am.
22 Q. Okay. All right. Well, I appreciate
23 that, Mr. King. And I am going turn you over to Mr.
24 Mosty because I'm sure he has some questions along those
25 same lines. Okay?
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1 A. Okay.
2 Q. All right.
3
4 VOIR DIRE EXAMINATION
5
6 BY MR. RICHARD MOSTY:
7 Q. Good morning, Mr. King. My name is
8 Richard Mosty, and I represent Darlie Routier, here to my
9 right. And this is my assistant, Doug Mulder here beside
10 me.
11 Now, Mr. King, I am not -- I want to
12 reemphasize to you, that the only thing that you are ever
13 going to be asked to do, is to sit as a juror, in any
14 case this is true, sit as a juror, and, openly, and
15 objectively listen to whatever evidence is presented to
16 you, and then answer certain questions.
17 In a civil case it may be: Did John
18 Doe run the red light? In a criminal case it may be: Is
19 so and so guilty as charged in the indictment?
20 So, the way the system is set up, is
21 that the jury's obligation is to weigh that evidence in
22 an honest and forthright manner and then to respond to
23 the questions that are given to them by the Court.
24 And, I want to make sure, I thought I
25 heard a little confusion on your part about how the
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1 procedure works. And let me tell you just generally what
2 happens in a capital case, and so you will have an
3 understanding of it.
4 The first thing that happens, is that
5 after the jury is selected, the lawyers have an
6 opportunity to make an opening statement and they tell
7 you what they think the case is going to be about. Then
8 the State presents whatever evidence it has which they
9 believe tends to show the defendant guilty. And the jury
10 listens carefully to that.
11 The defense then, may or may not, put
12 on evidence, has no obligation to do so. But after you
13 have heard all of the evidence, then the jury goes out
14 and they only answer one question. And that is: Did the
15 State prove beyond a reasonable doubt that this defendant
16 committed capital murder?
17 So you have all of that evidence of
18 whatever the State can muster that shows and proves to a
19 jury beyond any reasonable doubt that that person is
20 guilty of capital murder.
21 And capital murder is a very
22 limited -- it is the most limited range of murders, and
23 they are all murders that have some additional bad factor
24 to them. It may be a murder of a police officer; it may
25 be murder of a prison guard; it may be a murder of a
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1 child; it may be multiple murders; but it's all with an
2 aggravating factor to the murder. So the jury has found,
3 at that point, has found that defendant guilty of the
4 worst crime in the books in Texas.
5 After you have done that, then and
6 only then, does a jury even begin to think about
7 punishment.
8 And at that point, then, the State --
9 the State has an opportunity to present additional

10 evidence that bears particularly on the question of
11 punishment. And the defense also has that right, but
12 neither has an obligation to do so at that point.

13 But, you hear additional evidence that
14 is related to the guilt. And at this point, of course,
15 you are dealing with a guilty murderer, that you know

16 beyond any reasonable doubt is guilty.
17 So, after you have heard that
18 evidence, then the Judge will give you another charge.
19 And it will give you some general instructions, but it
20 will ask you to answer two questions. And what a juror
21 has to be able to do is simply to say, honestly and
22 truthfully, I can weigh this evidence and I can answer
23 these questions.
24 Now, the questions in a capital case
25 that you are going to be given are these. And Judge
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1 Tolle, or whomever the Judge will be, will ask these
2 questions to the jurors. Let me say, that a jury is not
3 a democracy. Every one has their own voice. And every
4 one participates. And I'm not saying being closed
5 minded, but you have the ability to think for yourself
6 and answer in both of these questions, as do the other
7 jurors, and you interact in that manner.
8 But what you have got to do is to be
9 able to honestly and truthfully answer these questions
10 based upon the evidence. All of us -- but never leaving
11 your common sense, and as Mr. Shook said, your good

12 thinking and moral beliefs aside. But you have got to be
13 able to answer these questions honestly based on the
14 evidence.
15 And the first one is: "Do you find,
16 from the evidence, beyond a reasonable doubt, that there
17 is a probability that the defendant on trial would commit
18 future acts of violence that would constitute a
19 continuing threat to society?" You will be instructed as
20 a jury to answer that yes or no.
21 Now, could you answer, knowing now the
22 procedure that you are going through, and you are dealing
23 with someone that you know is guilty of the highest crime
24 in this State, could you answer that question based upon
25 the evidence?
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1 A. Yes, sir.
2 Q. All right. And, on Special Issue 2,
3 then you only answer this one if you have answered that

4 one "yes": "Taking into consideration again, taking into
5 consideration all of the evidence, including the
6 circumstances of the offense, the defendant's character,
7 background, the personal moral culpability of the
8 defendant, is there a sufficient mitigating circumstance
9 or circumstances that warrant a sentence of life in
10 prison, rather than a death sentence?" Could you
11 honestly and truthfully answer that question based on the
12 law?
13 A. I believe so.
14 Q. All right. The Judge will instruct
15 you that -- and again, jury service is one of the
16 greatest rights that we have, and one of the greatest
17 obligations we have. There is an interesting thing to
18 jury service, and that is, that for a while you lose your
19 rights. You can dissent with the law. You can
20 peacefully say, "I don't agree with the 70-mile-an-hour
21 speed limit, but I must obey it. I have the right to
22 disagree with the law, if I can obey it. But I must obey
23 it."
24 So when the Judge tells you that this
25 is the law, can you follow that instruction, and follow
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1 the Court's instruction, and base your evidence upon what
2 the Court tells you the law is -- base your verdict on
3 what the Court tells you the law is in evaluating the
4 evidence?
5 A. Yes, sir.
6 Q. All right. Thank you.
7
8 MR. RICHARD MOSTY: Your Honor, I
9 believe he is qualified.
10 THE COURT: All right. Mr. Shook.
11
12 VOIR DIRE EXAMINATION
13
14 BY MR. TOBY SHOOK:
15 Q. Let me follow that, Mr. King. You told
16 Mr. Mosty that you could listen to the evidence and
17 answer that question, if it was proven to you. And you
18 could listen to the evidence and answer that question one
19 way or the other if it was proven to you. Right?
20 A. Yes, sir.
21 Q. And, you know, I explained to you if
22 you answer that first question "yes," and then you go to
23 that second question and answer "no," do you realize what
24 would happen to the defendant?
25 A. She would get death.
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1 Q. She would get death, you are right.
2 And when we first talked and when you said on this

3 questionnaire, you said you could never, under any
4 circumstances, return a verdict which assessed the death
5 penalty.
6 We told you that -- you told me that,
7 you know, morally you were opposed to the death penalty
8 and just could not sit on this type of jury that would
9 make those types of decisions.
10 A. Uh-huh. (Witness nodding head
11 affirmatively.)
12 Q. Okay. And then, when Mr. Mosty asked
13 you the questions about, just answer the questions, you
14 said you could do that. You see where there's two
15 different answers there?
16 A. No, sir, I can't.

17 Q. So you can't do it?
18 A. I can't see where there is two
19 different answers.
20 Q. Okay. Well, you can --
21 A. Because he didn't ask me my answer for
22 either one of those questions. He asked me if I could
23 answer them.
24 Q. Okay. All right. You were ahead of
25 me then. Okay. What would your answers be then in this
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1 type of case?
2 A. Beyond a reasonable doubt, I could say
3 yeah, I mean, you know, to the special issue. If it was
4 proven to me beyond a reasonable doubt, I would have to

5 say yes.
6 Q. Okay.
7 A. But then, taking into consideration
8 all of the evidence, the defendant -- is there a
9 sufficient mitigating circumstance or circumstances to
10 warrant the sentence of a life in prison rather than a
11 death.
12 Q. You would always answer that --

13 A. I would probably answer that --
14
15 MR. RICHARD MOSTY: Well, now wait a
16 minute.
17 THE COURT: Well, each side has 45
18 minutes. Don't worry. You have got plenty of time left.
19 THE PROSPECTIVE JUROR: I would
20 probably answer it yes.
21
22 BY MR. TOBY SHOOK:
23 Q. Okay. Because of the way you feel
24 about the death penalty?
25 A. Right.
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1 Q. All right. This question is kind
2 of -- it's the last question the jurors get. It's
3 answered based on the evidence and it's kind of a safety
4 net if there is any mitigating evidence.
5 We can't tell you what mitigating
6 evidence is. It's going to be up to you and the rest of
7 the jurors. But I have -- we have had jurors come up and
8 tell us that, "Look, you know, I can answer that
9 question, that first question. I can judge the facts and
10 tell you, yeah, they are going to be a continuing danger.
11 But what I am telling you, because of my opposition to
12 the death penalty, I could never answer that second

13 special issue 'no,' because I know if I did that, the
14 result would be a death sentence. I just couldn't do
15 that, because of my opposition to the death penalty."
16 A. Right.
17 Q. Is that what you are telling me?
18 A. Uh-huh. (Witness nodding head

19 affirmatively.)
20 Q. Okay. I need to get a verbal answer
21 from you?
22 A. Yes, sir.
23 Q. Okay. So, I mean, even if there was
24 no evidence of any mitigating circumstances whatsoever,
25 okay, whatever those may be, but if intellectually, you
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1 said, "Look, there is no mitigating evidence here, but I
2 know that if I answer this as a 'no,' the defendant will
3 get the death penalty."
4 A. Uh-huh. (Witness nodding head
5 affirmatively.)
6 Q. "I just can't do it. I'm going to
7 check 'yes,' because of my opposition to the death
8 penalty. That way she will get a life sentence and avoid
9 the death sentence. And I am doing that based on my
10 moral principles, my moral convictions, and opposition of
11 the death penalty."
12 Is that how you would answer that
13 question because of your moral convictions?
14 A. I think I would have to be in that

15 position to make that decision. It's hard to say, you
16 know, I mean right now. My moral says I would have to
17 answer it where she would receive life imprisonment
18 instead of death.
19 Q. Okay. Because of your moral
20 convictions? The way you believe?
21 A. Uh-huh. (Witness nodding head
22 affirmatively.)
23 Q. We can't preview the facts for you,
24 you know, we can't even go into the facts. That is why

25 we have to talk to you kind of in hypotheticals, but want
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1 to examine what your convictions are also. And like I
2 said, I don't want to argue with you, and feel free --
3 feel free any way you want to.
4 But you understand where I am coming
5 from? If someone comes in and tells me, "Look, I am

6 against the death penalty. And I can't make those types
7 of decisions." I would have some concern if that person
8 ever wound up on the jury.
9 If you can't do it, that is fine. I'm
10 sure you will be called again on some other case, that is
11 just the way it works.
12 But you understand that I am -- the

13 State is also entitled to jurors that can say, "Look, I
14 am not opposed to the death penalty. That is not going
15 to be a moral thing with me. I can just judge this case
16 from the facts itself. If I see there is no mitigating
17 evidence, I am going to answer 'No.'"
18
19 MR. RICHARD MOSTY: I'll object to

20 that statement. The State is not entitled to that kind
21 of juror.
22 THE COURT: Sustain the objection.
23 Let's move on.
24
25
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1 BY MR. TOBY SHOOK:
2 Q. But what you are telling me is, you
3 are not going to be able to remove your moral
4 convictions. You are going to -- if we get to that last
5 issue because of your moral convictions --
6
7 MR. DOUGLAS MULDER: Judge, excuse me.
8 We have been over this before. He has clearly answered
9 the question.
10 THE COURT: I think we have.
11 MR. DOUGLAS MULDER: He said he could
12 be fair. He said he would have to hear the evidence
13 before he could make a decision.
14 THE COURT: Well, I'll sustain that.
15 MR. TOBY SHOOK: Well, he said he
16 can't answer that question because of his moral
17 convictions.
18 THE COURT: Well, I have heard that
19 two or three times, I am very -- I understand what he
20 said. Let's move on. Do you have any other questions?
21 MR. TOBY SHOOK: Well, I just wanted
22 to finish that one, then I could move on.
23 THE COURT: Okay. That will be fine.
24
25 BY MR. TOBY SHOOK:
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1 Q. Is that what you are telling us,
2 because of your opposition to the death penalty?
3
4 MR. DOUGLAS MULDER: Judge, that is
5 not what he said.
6 THE COURT: I understand what he said.
7 You are going to get another chance, and then I am going
8 to get a chance.
9 MR. DOUGLAS MULDER: Your Honor, I
10 know it. But he said that he would have to hear the
11 evidence first.
12 THE COURT: I understand what he said.
13 I understand what he is saying.
14 MR. TOBY SHOOK: Okay.
15 THE COURT: We are not trying to run
16 you in the ground, Mr. King. Hang on.
17 MR. TOBY SHOOK: Judge, do you want to
18 go into this issue with this juror, Mr. King?
19 THE COURT: Well, I'd be happy -- all
20 I want to know is this: Do you have any more questions
21 you want to ask?
22 MR. RICHARD C. MOSTY: Well, just very
23 briefly.
24 THE COURT: He is answering Mr. Shook
25 one way and you another way, and I want to know how he
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1 feels.
2 VOIR DIRE EXAMINATION
3 BY MR. RICHARD MOSTY:
4 Q. What I heard you say to Mr. Shook was,
5 that in order to answer this question, it would depend on
6 the evidence. You would have to listen to the evidence.
7 A. Yes, I think that is what I said.
8 Q. And you aren't going to leave -- you
9 appear to be an honest man, and you aren't going to leave
10 your honesty and your integrity behind, and answer that
11 based on anything other than the evidence, are you?
12 A. Most likely not.
13 Q. All right.
14
15 THE COURT: All right. Mr. King, can
16 you set aside -- if you are selected as a juror, can you
17 set aside all of your beliefs against the death penalty
18 and things of this nature, and follow the law, if you are
19 selected as a juror?
20 THE PROSPECTIVE JUROR: And follow the
21 law, yes, sir.
22 THE COURT: And you will do it, you
23 will follow the law?
24 THE PROSPECTIVE JUROR: Yes, sir.
25 THE COURT: All right. The Court
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1 holds the juror qualified.
2 MR. TOBY SHOOK: May I have one
3 moment, please?
4 THE COURT: Thank you. Is that all
5 you need? Is that all the questions you have?
6 MR. TOBY SHOOK: I have a couple more
7 questions, Judge.
8 THE COURT: All right. Well, I think
9 he's -- all right. Go ahead.
10 VOIR DIRE EXAMINATION
11 BY MR. TOBY SHOOK:
12 Q. Let me ask you, Mr. King, you know we
13 talked about this Special Issue Number 1. "Do you find
14 from the evidence beyond a reasonable doubt that there is
15 a probability that the defendant would commit criminal
16 acts of violence that would constitute a continuing
17 threat to society?"
18 Do you see where that question is
19 asking the jurors to predict the future, how the
20 defendant would behave? Do you feel you could answer
21 that question based on the evidence?
22
23 MR. RICHARD C. MOSTY: Your Honor, I
24 think we have been over that six or seven times.
25 THE COURT: Sustain the objection.
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1 Please move on to the next question.
2
3 BY MR. TOBY SHOOK:
4 Q. Sometimes when we reach that point in
5 the case, you obviously would have already found the

6 defendant guilty. So you will get to re-evaluate the
7 facts of the crime itself. You might hear additional
8 evidence at that point; maybe about their background,
9 maybe a criminal record, some bad things. Or, vice

10 versa, it may be a situation where they have no criminal
11 record, maybe they have never done anything in their
12 life. You may be called to answer that question based on
13 the facts of the offense alone. Okay? Just how the
14 crime happened.
15 Do you think, sir, that -- and I can't
16 go into the facts obviously, but do you feel you could

17 answer that question based on the facts of the offense
18 alone, and make that type of prediction?
19 A. Well, I don't think I could make any
20 kind of prediction.
21 Q. Okay. What do you mean by that?
22 A. Well, you know, I don't really know
23 what you meant by that.
24 Q. Well, what I meant by prediction, I
25 mean could you answer that question. Could you answer
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451

1 that question on the facts of the offense alone?
2
3 MR. DOUGLAS MULDER: Judge, excuse me.
4 Judge, he said he could based on the evidence. He would
5 have to hear the evidence first, that is what he is
6 saying.
7 MR. TOBY SHOOK: Well, Judge, I get to
8 ask him questions.
9 THE COURT: Gentlemen, all I need is
10 an objection. I understand what he said. Let Mr. Shook
11 go on. Then your side can go on.
12 Let's don't jump up and down and yell
13 at each other. The next juror is not coming in until
14 9:30, so let's move on.
15 MR. TOBY SHOOK: Do you --
16 THE COURT: Prospective juror.
17
18 BY MR. TOBY SHOOK:
19 Q. Do you think you could answer that
20 question based on the facts of the case alone?
21 A. Yes, sir.
22 Q. Okay. That could provide you enough
23 information?
24 A. Yes, sir.
25 Q. Okay.
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1
2 THE COURT: Anything else?
3
4 BY MR. TOBY SHOOK:
5 Q. Mr. King, do you have any questions
6 over anything we have talked about?
7 A. No, sir.
8
9 MR. TOBY SHOOK: That's all the
10 questions we have, Judge.
11 THE COURT: The Court holds the juror
12 qualified.
13 Can you step outside just a minute,
14 please, Mr. King?
15 All right. What says the State?

16 MR. TOBY SHOOK: The State would
17 exercise a peremptory challenge.
18 THE COURT: All right. That brings us
19 to Juror Number 10 who has not yet arrived.
20 All right. Bring Mr. King in, please.
21 Mr. King, we want to thank you very
22 much for your time and your attendance, but you will not
23 be needed as a juror in this case. Just remember not to
24 discuss anything you said with