Volume 19

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. 19 OF VOLS.
17 November 6, 1996
18 Wednesday
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
1869

1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Wednesday, the 6th day of
5 November, 1996, in the Criminal District Court Number 3
6 of Dallas County, Texas, the above-styled cause came on
7 for 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

1870

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 L. 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
1871

1 ADDITIONAL APPEARANCES:
2
3 HON. DOUGLAS D. MULDER
4 Attorney at Law
5 2650 Maxus Energy Tower
6 717 N. Harwood
7 Dallas, TX 75201
8
9 AND: HON. CURTIS GLOVER
10 Attorney at Law
11 2650 Maxus Energy Tower
12 717 N. Harwood
13 Dallas, TX 75201
14
15 AND: HON. RICHARD C. MOSTY
16 Attorney at Law
17 Wallace, Mosty, Machann, Jackson & Williams
18 820 Main Street, Suite 200
19 Kerrville, TX 78028
20
21 AND: HON. S. PRESTON DOUGLASS, JR.
22 Attorney at Law
23 Wallace, Mosty, Machann, Jackson & Williams
24 820 Main Street, Suite 200
25 Kerrville, TX 78028
Sandra M. Halsey, CSR, Official Court Reporter
1872

1
2 AND: HON. JOHN HAGLER
3 Attorney at Law
4 901 Main Street, Suite 3601
5 Dallas, TX 75202
6 ALL ATTORNEYS REPRESENTING THE
7 DEFENDANT: DARLIE ROUTIER
8 MR. HAGLER HANDLING THE APPEAL
9 AND:
10 HON. ALBERT D. PATILLO, III
11 Attorney at Law
12 820 Main Street, Suite 211
13 Kerrville, TX 78028
14 APPEARING FOR: Witness-
15 Detective Jimmy Patterson
16 only on one date in trial
17 AND:
18 HON. STEVEN J. PICKELL
19 Attorney at Law
20 620 Earl Garrett Street
21 Kerrville, TX 78028
22 APPEARING FOR: Witness
23 Officer Chris Frosch
24 only on one date in trial
25
Sandra M. Halsey, CSR, Official Court Reporter
1873

1 P R O C E E D I N G S
2
3 November 1st, 1996
4 Friday
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. You are Ms.
19 Franklin?
20 THE PROSPECTIVE JUROR: Yes, sir.
21 THE COURT: All right. Ladies and
22 gentlemen, we are back on the record in the Darlie
23 Routier matter. This is Wednesday, November the 6th, and
24 all parties in the proceedings are present. And this is
25 Ms. Kerri, K-E-R-R-I, Sue Franklin. She is number 50 on
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1874

1 our list, 153 on the juror's list. That is your name,
2 ma'am?
3 THE PROSPECTIVE JUROR: Yes.
4 THE COURT: If you will raise your
5 right hand.
6 THE PROSPECTIVE JUROR: Yes.
7 THE COURT: Thank you. That's fine.
8 Do you solemnly swear or affirm you
9 will true answers make to all the questions propounded to
10 you concerning your qualifications as a juror, so help
11 you God?
12 THE PROSPECTIVE JUROR: Yes, I do.
13
14 (Whereupon, the prospective
15 juror was duly sworn by the
16 Court to true answers make
17 to the questions propounded,
18 concerning qualifications, after
19 which time, the proceedings were
20 resumed as follows:)
21
22 THE COURT: Okay. You're here as a
23 potential juror in the Darlie Routier case. This is Mrs.
24 Routier, she is right there with her counsel, Mr. Preston
25 Douglass, who is from Kerrville. She is also represented
Sandra M. Halsey, CSR, Official Court Reporter
1875

1 by Mr. Richard Mosty from Kerrville, and Douglas Mulder
2 and Curtis Glover from Dallas. They are not here now.
3 The State is represented by Mr. Toby
4 Shook and Ms. Sherri Wallace. They are Assistant
5 District Attorneys in Dallas County, and another
6 gentleman named Greg Davis, he is not here either.
7 So, there are no wrong answers to
8 these questions. You can be a member of the Flat Earth
9 Society, and no one is going to disagree with you.
10 So just relax and answer them just as
11 you see fit. All right?
12 THE PROSPECTIVE JUROR: Okay.
13 THE COURT: I'll ask you to say yes or
14 no all the time. Don't say uh-huh or huh-uh because Ms.
15 Halsey is taking all this down and we can't take down
16 nods or grunts. You understand?
17 Okay. Go ahead, Mr. Shook.
18 MR. TOBY SHOOK: Thank you, Judge.
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
1876

1 Whereupon,
2
3 KERRI SUE FRANKLIN,
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 L. SHOOK:
13 Q. Ms. Franklin, again, my name is Toby
14 Shook and I am one of the prosecutors on the case and I
15 will be asking you some questions on behalf of the State
16 this morning. I will go over a few things on your
17 questionnaire and then we will talk some about the death
18 penalty and how you feel about it and the laws that apply
19 to the case. Okay?
20 A. Yes.
21 Q. Like Judge Tolle told you, there are
22 not any right or wrong answers, we just want your honest
23 opinions.
24 A. Okay.
25 Q. Have you ever been down on jury
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1877

1 service before?
2 A. No.
3 Q. Okay. Usually we talk to everyone in
4 one big group, but since this is a death penalty case, we
5 talk to everyone individually. We're not trying to put
6 you on the spot or put you on trial or anything like
7 that. Okay? Looking on your questionnaire, it looks
8 like you and your husband own the Donut King; is that
9 right?
10 A. Yes, sir.
11 Q. Okay. That is how you all make your
12 living, running that store?
13 A. Uh-huh. (Witness nodding head
14 affirmatively.) Yes.
15 Q. And you have lived here in Kerrville,
16 what, about eight years?
17 A. Yes, sir.
18 Q. Where did you live prior to that?
19 A. New Hampshire.
20 Q. New Hampshire?
21 A. Uh-huh. (Witness nodding head
22 affirmatively.)
23 Q. What brought you down here?
24 A. My husband.
25 Q. Okay. You all met up there?
Sandra M. Halsey, CSR, Official Court Reporter
1878

1 A. Well, no, we actually met here. I
2 came here with a friend of mine and I met my husband
3 here.
4 Q. Oh, okay. And I believe you said you
5 had an uncle that passed away that was a police officer?
6 A. Yes, sir.
7 Q. Where was he a police officer?
8 A. New Hampshire.
9 Q. Okay. We also always ask the
10 question: Do you know anyone in jail or prison? And you
11 put down someone by the name of Zanford?
12 A. Yes, that was my dad.
13 Q. Okay. What happened on that case?
14 A. Well, he had a bunch of kids that
15 lived in the neighborhood where he was living, and he
16 wouldn't do what they wanted him to do, like go buy beer
17 for them and stuff like that. So, one of them came out
18 and said that he sexually assaulted them. And my dad
19 fought and fought and he came down here to Texas and then
20 wound up going back up there, and all the charges were
21 dropped against him.
22 Q. They were dropped?
23 A. Yes.
24 Q. Did that cause you any problem with
25 the justice system at all? Or do you feel he was finally
Sandra M. Halsey, CSR, Official Court Reporter
1879

1 vindicated, was treated fairly?
2 A. Yes, I feel like he was finally taken
3 care of the right way.
4 Q. Okay. Now, you put here on your
5 questionnaire that you did hear some of the details about
6 the case in the newspaper and TV; is that right?
7 A. Yes. That was before we were told not
8 to read the paper.
9 Q. Oh, sure, sure. What did you hear?
10 A. I just heard about the -- some of the
11 evidence that they found.
12 Q. What do you remember about that?
13 A. That there was a knife in the kitchen
14 and blood on the kitchen area. That's about -- I didn't
15 read much of it because I am not really a newspaper
16 reader.
17 Q. Okay. And you heard some on TV also?
18 A. I heard very little on TV, because I
19 don't get a whole lot on my TV.
20 Q. Okay. Well, there is not anything
21 wrong with watching TV or reading the newspaper and
22 reading about the case, obviously, because you were not a
23 juror yet. It is just now you have to follow Judge
24 Tolle's instructions.
25 A. Okay.
Sandra M. Halsey, CSR, Official Court Reporter
1880

1 Q. The thing we need to look at is to
2 make sure you haven't formed any opinions about guilt or
3 innocence from reading that?
4 A. No.
5 Q. Okay. All right. Let me then go to
6 the heart of the matter. Obviously, this is a death
7 penalty case in which the State is seeking the death
8 penalty. So let me ask you about your personal opinions
9 about that law. Are you in favor of the death penalty?
10 A. Yes.
11 Q. Okay. Tell us in your own words why
12 you think we need the death penalty as a law in this
13 State?
14 A. Well, because the people that are
15 accused of killing other people, you know, if they are
16 going to kill somebody, then they don't deserve to live,
17 unless they really didn't do it. I mean everybody is
18 innocent until --
19 Q. Proven guilty.
20 A. That's right.
21 Q. But if they are guilty, if it is
22 proven against them, you feel that is the just
23 punishment?
24 A. Right.
25 Q. What types of cases, in your mind,
Sandra M. Halsey, CSR, Official Court Reporter
1881

1 would be the kinds that call for the death penalty?
2 A. Murder.
3 Q. Murder?
4 A. Uh-huh. (Witness nodding head
5 affirmatively.)
6 Q. Any specific type of murder? Or do
7 you think all murders?
8 A. Well, I wouldn't say all murders. But
9 I would say, I believe a lot of the murderers should be
10 put to death, I think they should.
11 Q. Okay. That is fine. Don't act like
12 your apologizing for your opinions. Okay? I mean, that
13 is all we want is your opinion.
14 A. Well, I have never been in this
15 situation before.
16 Q. Yes, well, you know, there are no
17 right or wrong answers, we just want your honest
18 opinions.
19 A. Okay.
20 Q. Now, have you ever followed any cases
21 in the newspapers or TV involving high profile murder
22 cases?
23 A. Have I ever done what?
24 Q. Followed them? Murder cases?
25 A. Not really, just one up north that I
Sandra M. Halsey, CSR, Official Court Reporter
1882

1 followed quite a bit.
2 Q. Is that the one you told us about?
3 A. Yes. The only reason I followed that
4 is because I graduated from that high school.
5 Q. Okay. Is that the teacher that had
6 her husband killed by one of her students?
7 A. Yes.
8 Q. What happened? They made a movie of
9 that --
10 A. Yes, they made a movie, a book and I
11 believe the book and the movie was about all they did on
12 it.
13 Q. What happened in that case?
14 A. Well, she went to jail.
15 Q. Do you remember how long?
16 A. No.
17 Q. So she was found guilty?
18 A. Uh-huh. (Witness nodding head
19 affirmatively.)
20 Q. Okay. Any other cases you ever
21 followed in the news, like the O.J. Simpson case?
22 A. No, I had nothing to do with O.J.
23 Simpson.
24 Q. Susan Smith case. Do you remember
25 that case?
Sandra M. Halsey, CSR, Official Court Reporter
1883

1 A. The one that drowned her two boys?
2 Q. Right.
3 A. No, I didn't really follow that one
4 either.
5 Q. Do you have any opinions about that
6 case? The verdict in that case or the punishment in that
7 case?
8 A. No. I don't know anything about it.
9 Well, I mean I knew about it, but I don't know what the
10 verdict was or anything like that. I never followed it.
11 Q. Okay. Let me ask you: Have you ever
12 felt differently about the death penalty? Have you ever
13 been against it at all?
14 A. Well, in some cases I probably did. I
15 mean, some people, you know, they may not have deserved
16 to get the death penalty, but maybe life in prison, which
17 is almost the same thing.
18 Q. Okay. Have you ever discussed your
19 beliefs about the death penalty, let's say with a friend
20 or your husband or anything like that?
21 A. No.
22 Q. Okay. Do you even know how he feels
23 about the death penalty?
24 A. No, I don't, we never talk about it.
25 Q. All right. So, you all never even
Sandra M. Halsey, CSR, Official Court Reporter
1884

1 talked about it?
2 A. No, sir.
3 Q. All right. Let me kind of go over
4 what the procedure is in this case, as with all death
5 penalty cases. The trial is divided into two parts.
6 First of all, for it to be a death
7 penalty in Texas, it has to be a murder case. And it has
8 to be a certain type of murder case. We have many brutal
9 murders that you can only get life imprisonment for, that
10 is the maximum punishment.
11 You have to have murder plus something
12 else: Murder of a police officer can be a death penalty
13 case; murder during a felony, like the guy that goes into
14 a grocery store or 7-Eleven, let's say, and shoots the
15 clerk while he is robbing him. That can be a death
16 penalty case. Someone that comes into your home and
17 kills you during the course of a burglary, that can be a
18 death penalty case. During a rape, murder during a rape
19 or during a kidnapping, or during an arson; those are all
20 death penalty eligible cases.
21 Mass murder, several people killed in
22 the same transaction; serial killer; murder for hire,
23 like a hit man situation, can be a death penalty case;
24 and as Judge Tolle read you the indictment in this case,
25 murder of a child under the age of six can be a death
Sandra M. Halsey, CSR, Official Court Reporter
1885

1 penalty case.
2 Let me, in fact, let you look at the
3 indictment in this case. Do you see that piece of paper
4 there, that paragraph in the middle? Read that to
5 yourself.
6
7 THE COURT: That is the typewritten
8 part he is directing your attention to, ma'am.
9
10 BY MR. TOBY L. SHOOK:
11 Q. Okay. It sets out allegations of an
12 intentional killing of a child under the age of six. I
13 can't ask you for your verdict, obviously, you have not
14 heard any evidence.
15 A. Right.
16 Q. But is that the type of case that you
17 personally feel can be eligible for the death penalty
18 under the proper facts and circumstances?
19 A. Yes, sir.
20 Q. Okay. Now the procedure is this:
21 First we have to prove that allegation beyond a
22 reasonable doubt, we have to get the defendant guilty.
23 A. Sure.
24 Q. If we do that, we go to the next
25 phase. Of course, if we don't do that, we all go home.
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1886

1 A. Yes.
2 Q. That's if we don't prove our case. If
3 we do prove our case beyond a reasonable doubt, it's not
4 over with. We go to a punishment phase, and you may hear
5 additional evidence. You can hear evidence about
6 background and things like that, if it exists. Of
7 course, it may be a long punishment hearing; it may be
8 very short, you might not hear hardly any evidence at
9 all.
10 At the close of that, you get these
11 questions. Okay? We will go over those in a little more
12 detail, but to kind of summarize, that first question is
13 a "yes" or "no" question, and we ask the jurors will the
14 defendant be a continuing danger to society. Basically,
15 are they going to be dangerous?
16 A. Yes, sir.
17 Q. If you answer that question "yes," you
18 move to the second question which we call the mitigation
19 issue, and that question basically says this: The jurors
20 look at all the evidence and if they see something
21 mitigating, something that tells them that the defendant
22 should not get the death penalty, but should get a life
23 sentence, some piece of evidence, then they will answer
24 it that way, and you put a "yes" answer down.
25 If they don't think there is any
Sandra M. Halsey, CSR, Official Court Reporter
1887

1 mitigating evidence to avoid the death penalty, they will
2 answer it "no." But a "yes" to that first one, and a
3 "no" answer to the second, equals the death penalty.
4 Judge Tolle would sentence the defendant to death in that
5 situation.
6 A. Yes.
7 Q. Any other answer would equal to a life
8 sentence. But there's only two choices: Life or death.
9 You don't write them down, but depending on how you
10 answer those questions, that is how Judge Tolle sentences
11 the defendant. Is that clear to you?
12 A. That is clear.
13 Q. Okay. If it's a "yes" and "no," like
14 I said, it would be a death sentence. And in Texas, the
15 method of execution is by lethal injection. Are you
16 aware of that?
17 A. Yes, sir.
18 Q. Okay. Sometimes these things are in
19 the news. You know probably that in Texas these
20 executions are actually carried out. There are many
21 states where they have the death penalty on the books,
22 but the death penalties are never enforced. There are a
23 lot of states up from where you are from.
24 A. Yes, that is true.
25 Q. A lot of them in the northeast don't
Sandra M. Halsey, CSR, Official Court Reporter
1888

1 even have the death penalty, and if they do, no one has
2 ever been executed. It is just on the books.
3 A. Uh-huh. (Witness nodding head
4 affirmatively.)
5 Q. A lot of people have life in prison,
6 but no one has been executed. In Texas there have been
7 over 100 people executed. Texas leads the nation by a
8 lot. I think you could just about add everyone else up
9 and we would still be in the lead. The execution, as I
10 said, is by lethal injection. Someday, I couldn't tell
11 you when in this case, if that were the verdict, the
12 Judge would someday actually mark out a real execution
13 date.
14 And in our procedures the defendant
15 would then be brought into Huntsville, Texas, taken to
16 what they call the death chamber, placed there on a
17 hospital gurney and strapped down.
18 There will be witnesses there that can
19 view all of this. Held down by force, if necessary,
20 needles are put in the arm, the death warrant read,
21 chance for some last words, but within a very, very short
22 time, virtually minutes, poisons would be injected, the
23 heart would stop, the lungs would stop, she would be
24 dead.
25 And quite frankly, that is our goal.
Sandra M. Halsey, CSR, Official Court Reporter
1889

1 We feel we have the type of evidence that will prove the
2 defendant guilty, and cause the jury to answer these
3 questions in a way which would result in her ultimate
4 execution. I don't mean to go about that to be morbid or
5 anything, but I want you to know, we want to put all of
6 our cards on the table.
7 A. Yes, sir.
8 Q. And let you know it's a very real
9 issue we're talking about. It's one thing to talk about
10 it philosophically; it's another thing when we talk about
11 actually participating in this type of trial.
12 Now, you have told me,
13 philosophically, you think there are some crimes that
14 call for the death penalty.
15 A. Right.
16 Q. Not all, but some murder cases.
17 A. Right.
18 Q. What I need to know is: Do you think
19 you can sit and listen to the evidence and if we do prove
20 these issues to you, you could answer them knowing that
21 the defendant would be executed someday?
22 A. Yes, sir.
23 Q. Okay. Fair enough then. Let's talk
24 about these special -- well, before we get to those
25 special issues, let's talk about a couple of things
Sandra M. Halsey, CSR, Official Court Reporter
1890

1 regarding the evidence. You have probably seen trials on
2 TV, like that trial you were interested in, I don't know
3 if you ever saw the movie or not or read the book?
4 A. No, I never saw the movie. I did read
5 the book.
6 Q. Read the book. Okay. You know
7 evidence comes in through the witnesses, and we call it
8 direct evidence or indirect evidence. Direct evidence is
9 an actual eyewitness to the crime. Okay? If you left
10 the courthouse today and were robbed, say of your purse
11 by someone, that person was arrested soon afterwards, and
12 you identified him, you would be the direct witness, the
13 eyewitness to the case.
14 Any other evidence is indirect
15 evidence, or what we call circumstantial evidence. Okay?
16 A. Uh-huh. (Witness nodding head
17 affirmatively.)
18 Q. It is anything else that links the
19 defendant to the crime. It could be your fingerprints,
20 you have probably heard of DNA evidence?
21 A. Yes.
22 Q. Blood evidence, any kind of scientific
23 evidence, the crime scene, what the defendant said
24 before, during, and after, those kinds of things. From
25 that book, I didn't read that book, but I saw some
Sandra M. Halsey, CSR, Official Court Reporter
1891

1 special on it, or maybe it was the movie, but I think
2 they had one of the -- they had the actual killer testify
3 against the teacher; is that right?
4 A. Yes, they did.
5 Q. Okay. And there were letters and
6 things like that; is that right?
7 A. There were letters and photos and
8 stuff like that.
9 Q. Okay. The letters and photos and all
10 that, that is circumstantial evidence.
11 A. Yes.
12 Q. Okay. Anything that links the
13 defendant.
14 Now, oftentimes in a murder case, the
15 State only has circumstantial evidence to work with. You
16 have the person killed, and the killer.
17 A. Yes.
18 Q. Obviously, the person killed can't
19 testify. What I need to know is -- and the law is this:
20 Whether it's an eyewitness, or it's circumstantial
21 evidence, the burden of proof is the same; beyond a
22 reasonable doubt. Okay?

23 A. Yes.
24 Q. What I need to know is, can you sit as
25 a juror and listen to a case and if we prove the case to
Sandra M. Halsey, CSR, Official Court Reporter
1892

1 you using only circumstantial evidence, could you find
2 the defendant guilty, if you believed that evidence
3 beyond a reasonable doubt?
4 A. Yes.
5 Q. Okay. Here is another thing. In
6 murder cases we always talk about the motive. Okay?
7 A. Yes.
8 Q. The reason why the crime occurred.
9 A. Yes.
10 Q. You always see that in murder movies
11 and trial movies. In Texas, that is not a requirement
12 for us to prove in order to obtain a guilty verdict.
13 Okay?
14 A. Uh-huh. (Witness nodding head
15 affirmatively.)
16 Q. Now, it may become very apparent once
17 the evidence comes in. Could be as plain as the nose on
18 your face. Or it may never be known to anyone, it could
19 be locked away in the killer's mind. It could be what we
20 call a senseless killing, or one that no one is quite
21 sure why the killer murdered the victim.
22 Or there could be several possible
23 motives and everyone might have their own opinions. The
24 point is this: We're not required to prove it. It is
25 very hard to prove what goes on in someone's mind when
Sandra M. Halsey, CSR, Official Court Reporter
1893

1 they decide to do something like that.
2 A. Yes.
3 Q. You notice in that indictment it
4 doesn't say anywhere in there why the murder happened,
5 just more or less how it happened. Okay?
6 A. Yes, sir.
7 Q. Could you follow that law and not
8 require the State to prove motive in order to get a
9 guilty verdict in this case?
10 A. Yes.
11 Q. Okay. Like I said, it might become
12 very apparent to you, but there is some -- you know, if I
13 suddenly as I'm talking to you, pulled out a gun and shot
14 Ms. Wallace in the head, and I mean that is all there was
15 to it, they had a murder, but no one really might not
16 ever know why I did it.
17 A. That is true.
18 Q. She is just as dead and we have about
19 nine witnesses here that saw me do it, it doesn't change
20 that fact. So that is what we're talking about. Like I
21 said, it might be apparent or it may not. You would be
22 able to follow that law?
23 A. Yes.
24 Q. Okay. Now let me talk a little bit
25 about these punishment issues. You don't get to these
Sandra M. Halsey, CSR, Official Court Reporter
1894

1 unless the defendant has been found guilty, and then you
2 move to the punishment issues. A person doesn't
3 automatically get the death penalty if they are found
4 guilty of capital murder. You have to wait and listen to
5 this evidence that comes in. Okay?
6 A. Yes.
7 Q. Like I said before, this first
8 question kind of asks the jury to make a prediction about
9 how they are going to behave in the future. And if you
10 would, read along with me silently as I read aloud this
11 first question.
12 "Do you find from the evidence beyond
13 a reasonable doubt, that there is a probability that the
14 defendant would commit criminal acts of violence that
15 would constitute a continuing threat to society?"
16 Do you see where that question is
17 asking the jury to make a prediction about how the
18 defendant is going to behave in the future?
19 A. Yes.
20 Q. Are they going to be a continuing
21 danger?
22 A. Yes.
23 Q. Now, like I said, you will get the
24 facts of the case itself, you will get to review that.
25 You have already found the defendant guilty, the murder,
Sandra M. Halsey, CSR, Official Court Reporter
1895

1 how brutal it was, what kind of thought process, how it
2 was committed, any signs of remorse after the crime, all
3 that goes into your deliberations. Plus, anything else
4 you learned about the defendant -- about the defendant's
5 background, maybe in the punishment stage. You might
6 hear about a long criminal history and bad character
7 evidence, you might hear good character evidence, and you
8 might hear no criminal history at all. Okay? But you
9 take all that and then you make that decision.
10 There might be a situation where you
11 only have the facts of the crime itself. Okay? There is
12 no requirement that a person has been to the pen a few
13 times or anything like that to be prosecuted for capital
14 murder.
15 A. Yes.
16 Q. A person could be good all their life
17 and then commit a horrible crime. So you may only have
18 the facts itself to work with. Again, I can't preview
19 the facts for you and go into the fact situation, and ask
20 you what you would do. But do you think that if you had
21 a case of no criminal history, where you just had to
22 decide the case, this answer, on the facts from the
23 murder itself, could you do that, depending on those
24 facts?
25 A. Yes.
Sandra M. Halsey, CSR, Official Court Reporter
1896

1 Q. Okay. The words you see here in the
2 question number 1, you will be given no legal definitions
3 to them, they are up to you and the other jurors. Okay?
4 A. Uh-huh. (Witness nodding head
5 affirmatively.)
6 Q. Other parts of the trial, you will be
7 given plenty of definitions, but these will be up to you.
8 So I want to go over a couple of those words. We have to
9 prove beyond a reasonable doubt that there is a
10 probability that the defendant would commit criminal acts
11 of violence. When we use the word "probability" what
12 does that mean to you?
13 A. That they might do it again.
14 Q. Okay.
15 A. Or they might do something else again.
16 Q. Okay. Do you understand that we don't
17 have to prove it's an absolute certainty?
18 A. Yes.
19 Q. No one could really do that.
20 A. No.
21 Q. Okay. We have to prove that the
22 defendant would commit criminal acts of violence. When
23 we use the words "criminal acts of violence," what does
24 that -- what comes to mind?
25 A. Well, going into a store maybe and
Sandra M. Halsey, CSR, Official Court Reporter
1897

1 robbing it and shooting somebody while they are in the
2 process of doing it or something like that.
3 Q. Murder, of course, obviously would
4 fall in that?
5 A. Yes.
6 Q. Just threatening someone, would that
7 fall into that? Like a --
8 A. No.
9 Q. Didn't you say that some man came in
10 and threatened you in your store at one time?
11 A. Yes, he did.
12 Q. Tell me a little bit about that.
13 A. Okay. Well, he had come into the
14 video store where I worked at at the time and the night
15 before and had a $2.50 late charge. And he paid it to my
16 husband because my husband was working there too. And
17 the next day he came in and just started ranting and
18 raving about the late charge. And I tried to explain to
19 him, I said, "Well, you paid it the night before. You
20 never had any problems with paying it. What is the
21 problem coming in here today." I don't know if he just
22 thought he was going to get his $2.50 back or what he
23 thought he was going to do. But he threatened me, and I
24 mean there was people in the store when he did it, he
25 told me he was going to knock my head off. That is not
Sandra M. Halsey, CSR, Official Court Reporter
1898

1 the words that he used.
2 Q. Did you feel threatened at that point
3 when the man said?
4 A. Yes, I did.
5 Q. Okay. Would you consider that an act
6 of -- a criminal act of violence?
7 A. Yes.
8 Q. Threatening other people?
9 A. Yes.
10 Q. Okay. My point is, it doesn't have to
11 be another murder case. It can be any type of act of
12 violence.
13 A. Right.
14 Q. Okay. Going back to your story, were
15 the police called?
16 A. Yes, they were called and I went to
17 court.
18 Q. Oh, really?
19 A. Yes.
20 Q. What happened on that?
21 A. He was found guilty and fined $300.
22 Q. For threatening you?
23 A. Yes.
24 Q. Okay. This first question is presumed
25 to be answered "no." Just like someone starts out a
Sandra M. Halsey, CSR, Official Court Reporter
1899

1 trial presumed to be innocent, it is presumed to be
2 answered "no." We have to prove that to you beyond a
3 reasonable doubt.
4 A. Yes.
5 Q. But you can follow that rule of law?
6 A. Yes.
7 Q. Okay. Now, if you do answer that
8 question "yes," you move on to this second issue, and
9 that is the mitigation issue. And this question is kind
10 of lengthy. Believe me, none of us sat down and wrote it
11 out, the legislature did that a long time ago.
12 It says: "Taking into consideration
13 all of the evidence, including the circumstances of the
14 offense, the defendant's character and background, and
15 the personal moral culpability of the defendant, is there
16 a sufficient mitigating circumstance or circumstances to
17 warrant that a sentence of life imprisonment rather than
18 a death sentence be imposed?" Okay? Like I said, it
19 gets rather lengthy.
20 A. Yes.
21 Q. And people get hung up on this word,
22 mitigation. Everyone has their own kind of definition of
23 it. But basically, this is what I think this question
24 says, and you can disagree with me or not. But,
25 basically, it is kind of a safety valve or safety net.
Sandra M. Halsey, CSR, Official Court Reporter
1900

1 Okay? You have already found the defendant guilty of
2 capital murder, you have already found that they would be
3 a continuing danger to society, but you look at all of
4 the evidence, all of their background, and if you believe
5 there is sufficient evidence that tells you that, "Hey, I
6 know they are dangerous, but I think a life sentence
7 should be imposed in this case rather than a death
8 sentence." You could answer the question that way. And
9 if you don't see there's that type of evidence, you could
10 answer it "no," and they would get the death penalty.
11 A. Okay.
12 Q. You see what it is? It's kind of a
13 way out for the jury to say, the just thing to do -- and
14 you have to do it based on some evidence, is that the
15 defendant get a life sentence rather than a death
16 sentence.
17 A. Okay.
18 Q. Okay. So that is what it is.
19 Mitigation has been describes as something that lessens
20 someone's moral blameworthiness, whatever that means.
21 A. Yes.
22 Q. They don't get off, but they have to
23 do a life sentence. Now, the great thing about this
24 question is, like I said, mitigation won't be defined to
25 you. It's going to be up to you, whatever you decide
Sandra M. Halsey, CSR, Official Court Reporter
1901

1 mitigating evidence is.
2 A. Okay.
3 Q. And you don't have to agree with
4 anyone else, any of the other jurors what it is. Okay?
5 A. Okay.
6 Q. And like I said, it is up to you.
7 Obviously, you have to see some evidence, then you have
8 to decide.
9 A. Okay.
10 Q. Let me give you some examples. Let's
11 say you are on a capital murder case, and the evidence
12 comes out, we have reached the punishment stage that the
13 defendant went to Harvard; had a Ph.D. in physics. Okay?
14 One juror might say, "You know, I think that is
15 mitigating evidence."
16 One juror might say, "That didn't
17 matter to me one way or the other, what their education
18 is." Another juror might say, "Well, you know, that
19 could be mitigating. Someone that has worked hard at his
20 education, he is very smart. I would consider that
21 mitigating." Someone might consider it so mitigating,
22 that they say, "A life sentence should be imposed."
23 Another juror might say, "Well, that
24 might be mitigating, but in some ways, but I really think
25 someone that smart should not commit capital murder. In
Sandra M. Halsey, CSR, Official Court Reporter
1902

1 fact, I will hold it against them." You know, they can
2 disagree. Someone could actually -- what they think is
3 mitigating, another person might think is aggravating.
4 Do you see where I am coming at?
5 A. Yes, sir.
6 Q. You don't have to agree with the other
7 jurors. As you sit here today, and I know you don't
8 think about these things, at least I hope you don't, but
9 does anything come to mind that you think might be
10 mitigating, any type of evidence come to mind?
11 A. No.
12 Q. Okay. That is what most people say.
13 Most people don't sit around the donut shop discussing
14 what mitigating evidence is obviously?
15 A. Well, they discuss a lot of things at
16 the donut shop.
17 Q. Sure. That is the place to meet.
18 A. Yes, it is.
19 Q. But let me run a few things by you.
20 And like I said, you don't have to agree with any of
21 these things. These are things different jurors have
22 come up with over the years now.
23 Sometimes you have capital murders
24 that are committed while a person is under the influence
25 of drugs or alcohol. And I am not talking about a
Sandra M. Halsey, CSR, Official Court Reporter
1903

1 situation where someone slipped them a Mickey or forced
2 them to drink or anything, they voluntarily get drunk or
3 high on drugs. Under Texas, that is no defense, you
4 still have to be held accountable for your actions. Some
5 people feel that is mitigating. They say, "Well, maybe I
6 might view that as a mitigating circumstance." Other
7 jurors actually hold it against a person even more if you
8 go out and commit a crime under that situation. Does it
9 cut one way or the other with you?
10 A. Well, I think if they do the drugs, I
11 still think that they are guilty of what they did.
12 Q. Sure.
13 A. And it doesn't matter what kind of
14 influence they were under, they make their own decisions.
15 Q. Okay. You would still hold them
16 accountable?
17 A. Yes.
18 Q. Okay. Fair enough. Sometimes you
19 might hear evidence that the person came from a bad
20 economic background. Maybe they came from a poor
21 neighborhood. Some people think that is mitigating,
22 other people say, "No, I came from a poor background. It
23 is what you do with your life." Does that cut one way or
24 the other with you?
25 A. I agree with it. I mean, I disagree
Sandra M. Halsey, CSR, Official Court Reporter
1904

1 with it, it doesn't matter what kind of background you
2 have.
3 Q. Sometimes you get people that may have
4 had some type of physical abuse when they were growing
5 up, or maybe they were sexually abused or just mentally
6 abused. But, like I said, some people view that as
7 mitigating evidence; other people say, "No. A lot of
8 people have suffered like that and they don't go around
9 killing people." Does it fall one way or the other with
10 you?
11 A. I still say the same thing.
12 Q. Okay. People should still be held
13 accountable?
14 A. Uh-huh. (Witness nodding head
15 affirmatively.)
16 Q. Okay. Like I said, you don't have to
17 agree with any of those. But the point is this: If you
18 can keep your mind open to that type of evidence. And if
19 you see it, and it tells you in your heart more or less
20 that, you know, a life sentence should be imposed, I'll
21 answer it that way. And if I don't see that evidence or
22 it doesn't go to the level that I think a life sentence
23 should be imposed, I can answer it no. Could you do
24 that?
25 A. Yes.
Sandra M. Halsey, CSR, Official Court Reporter
1905

1 Q. Keep your mind open?
2 A. Uh-huh. (Witness nodding head
3 affirmatively.)
4 Q. Okay. Fair enough then.
5 Now, there are certain rules of law
6 that Judge Tolle went over that apply in all criminal
7 cases. And I am going to kind of touch on those again.
8 Presumption of innocence: Every defendant who is charged
9 with a crime, the jury has to start out with the
10 presumption of innocence.
11 A. Yes.
12 Q. You can presume them to be innocent?
13 A. Yes.
14 Q. And can you follow that rule of law?
15 A. Yes.
16 Q. Okay. The fact that a person has been
17 indicted, you read the indictment, the fact that a Grand
18 Jury has indicted them, and Judge Tolle explained, that
19 is just a piece of paper?
20 A. Yes.
21 Q. It can't be used as evidence against
22 them. The fact that a person has been arrested, you
23 can't use that against them. The fact that we're even
24 going through this process, or the case is in the news,
25 you can't use that against them in any way.
Sandra M. Halsey, CSR, Official Court Reporter
1906

1 A. Right.
2 Q. You have to wait until the witnesses
3 testify.
4 A. Right.
5 Q. Can you follow that rule of law?
6 A. Yes.
7 Q. The defendant has an absolute right
8 not to testify. If they want to testify, no one can stop
9 them. Okay? If they choose not to testify, the Judge
10 would instruct the jurors that you can't use that as
11 evidence against them in any way. You just have to look
12 at all the other evidence. Could you follow that rule of
13 law?
14 A. Yes.
15 Q. Okay. In fact, I believe that you
16 even mentioned that and wrote a little bit about that,
17 that you agree with that law?
18 A. Yes, I do.
19 Q. Okay. The State has the burden of
20 proof in this case. We have to prove it beyond a
21 reasonable doubt. Right?
22 A. Right.
23 Q. That is true in every criminal case.
24 Would you follow that rule of law?
25 A. Yes.
Sandra M. Halsey, CSR, Official Court Reporter
1907

1 Q. Require the State to prove this case
2 to you beyond a reasonable doubt?
3 A. Yes.
4 Q. Okay. Going a little further with
5 that, that also means the defense does not have to prove
6 anything to you. And let me kind of elaborate on that a
7 little bit. These guys, all they are obligated -- I'm
8 sorry, these lawyers, they just have to show up. Okay?
9 A. Yes.
10 Q. Now, I'm sure they are going to ask
11 questions, cross-examine, and make arguments. But if
12 they wanted to, they could just read the comic books or
13 work crossword puzzles, because they are not required to
14 prove anything to you. If we don't get over that hurdle
15 of reasonable doubt, then it's not guilty. No matter if
16 they ask a question or not. Some jurors will come in and
17 say, "Well, I am going to require them to prove their
18 client's innocence." They are not required to do that.
19 They very well may try that, but they are not required
20 to. You can't require them to, you have to require us to
21 prove the case beyond a reasonable doubt.
22 A. Yes.
23 Q. Could you follow that rule of law?
24 A. Yes.
25 Q. Okay. Obviously, you will hear from
Sandra M. Halsey, CSR, Official Court Reporter
1908

1 the witnesses in a criminal case and many of them may be
2 police officers. You had an uncle that was a police
3 officer?
4 A. Uh-huh. (Witness nodding head
5 affirmatively.)
6 Q. And you have a donut shop, so I'm sure
7 officers come in there sometimes for their breaks?
8 A. Yes.
9 Q. They are known for that.
10 A. Yes.
11 Q. You can't start out officers ahead as
12 witnesses just because they are police officers alone.
13 Do you see what I am saying?
14 A. Yes.
15 Q. All witness have to start out on the
16 same level. Now after you listen to them, of course, you
17 are going to judge them all differently. But just
18 because a person is a police officer you don't
19 automatically say, "Well, I am going to believe them over
20 any other witness?"
21 A. Right.
22 Q. Okay?
23 A. Because that doesn't mean that they
24 are always right.
25 Q. Right. There are some good officers
Sandra M. Halsey, CSR, Official Court Reporter
1909

1 and some bad officers.
2 A. Right.
3 Q. Hard working officers, some lazy
4 officers.
5 A. I agree.
6 Q. Okay. So you could follow that rule
7 of law?
8 A. Yes.
9 Q. Also, the Judge would instruct you
10 that, you know, sometimes we read and hear about the
11 parole laws, when people are being released, that kind of
12 thing. You can't consider those when you going into your
13 deliberations in any way. Okay? You could only consider
14 the evidence. Could you follow that rule?
15 A. Yes.
16 Q. Okay. The trial will start January
17 6th, and we think it will last, at the most, two weeks.
18 We can't say for sure, but it is not going to be like the
19 O.J. Simpson case.
20 A. I hope not.
21 Q. It's two weeks. And Judge Tolle
22 usually works on a schedule of 9:00 to 5:00. You get to
23 go home at night, you would not be sequestered. The only
24 time you would be sequestered is if you were deliberating
25 and it went on into the evening, then you probably would
Sandra M. Halsey, CSR, Official Court Reporter
1910

1 have to stay overnight in a hotel with the other jurors.
2 That is only during deliberations, but not while the
3 evidence is coming, not a great majority of time. Okay?
4 A. Okay.
5 Q. You don't know any of the attorneys
6 from Dallas, I take it? None of the prosecutors?
7 A. No, sir.
8 Q. Okay. Doug Mulder and Mr. Glover here
9 from Dallas, retained counsel. You don't know either one
10 of them, do you?
11 A. I have never even been to Dallas.
12 Q. Okay. A couple of local attorneys
13 have also been retained. Preston Douglass?
14 A. I do know him.
15 Q. How do you know Mr. Douglass?
16 A. He was the lawyer that was there when
17 I went to the court about that guy that threatened me.
18 Q. Okay. Was he the prosecutor or the
19 defense attorney?
20 A. He was mine.
21 Q. Okay. He was the prosecutor?
22 A. Yes.
23 Q. He used to be a prosecutor here in
24 Kerrville?
25 A. Uh-huh. (Witness nodding head
Sandra M. Halsey, CSR, Official Court Reporter
1911

1 affirmatively.)
2 Q. Now, obviously, he is in private
3 practice.
4 A. Yes.
5 Q. But he won that case for you?
6 A. Yes.
7 Q. Good job, Mr. Douglass. Let me ask
8 you: Would that cause you a problem now that he is on
9 the other side and is representing the defense?
10 A. No.
11 Q. Okay. You don't think, "Well, gosh,
12 he did a good job for me. I'm going to go with him on
13 this type of case."
14 A. No.
15 Q. Okay. Do you understand we're from
16 out of town here. You have had Mr. Douglass, he has been
17 a prosecutor in your case, now he is a defense attorney.
18 We might wonder, well, when it comes down to brass tacks
19 we get even to the guilt/innocence, he may stand up there
20 and argue very strongly, "No, the State has not proven
21 its case." Could you just listen to that argument,
22 listen to what he says but not decide the case just
23 because he was your prosecutor at one time or you like
24 him as an individual?
25 A. I wouldn't go either way.
Sandra M. Halsey, CSR, Official Court Reporter
1912

1 Q. He could come into the Donut King and
2 you could say, "Sorry I found your client guilty, Mr.
3 Douglass, but that was what the evidence showed"?
4 A. Right.
5 Q. Okay. Same thing as far as answering
6 these questions that result in someone's death. Could
7 you answer those even if Mr. Douglass says, "Don't answer
8 them that way"?
9 A. Yes.
10 Q. Okay. Fair enough. Do you have any
11 questions over anything that we have gone over?
12 A. No.
13 Q. Okay. Well --
14 A. I understand most of it.
15 Q. Yeah, I know it's kind of -- you know,
16 we're not giving you a test. We're kind of running these
17 things by you pretty quickly, but let me ask you about
18 one other area. And when you are filling this out, I
19 know you are doing it pretty quickly.
20 You have ranked people on their
21 objectives and -- we had a little area there about how
22 you would rank objectives of punishment, in order of
23 importance to you. "You put rehabilitate those
24 convicted; deter others; and punish those convicted." Do
25 you remember that at all?
Sandra M. Halsey, CSR, Official Court Reporter
1913

1 A. No, I don't remember.
2 Q. All right. That is fine. May I
3 approach the juror?
4
5 THE COURT: You may indeed.
6
7 BY MR. TOBY L. SHOOK:
8 Q. Because like I say, it is 13 pages
9 long.
10 A. Yes.
11 Q. This first question, that is what I am
12 talking about. If you would read that over again,
13 please?
14 A. Okay.
15 Q. Okay. We kind of gave you three
16 choices on how to rank them and I want to go over those.
17 Now that you have gone over it again, how do you feel
18 about it? What we are talking about there is the
19 objective of punishment. Do you think, first of all,
20 should it be to punish the one that is convicted, to
21 deter, you know, try to stop other people, or that person
22 from committing that type of crime again, or to change
23 and rehabilitate? What do you think, how do you feel as
24 far as theories of punishment go?
25 A. Well, I mean if it's not murder or
Sandra M. Halsey, CSR, Official Court Reporter
1914

1 something like, then they should be able to be
2 rehabilitated, I mean given a second chance.
3 Q. Yeah. Just kind of a general scheme,
4 if it's not a violent murder, you would try to change
5 them and give them a second chance?
6 A. Yes.
7 Q. As far as murder goes, are you more
8 inclined to punishment for punishment sake?
9 A. Yes.
10 Q. Okay. But do you agree with the kind
11 of the scheme we have set up here? I know it's the first
12 time you have been through it, but you see how there are
13 different steps that we have to go through to get to a
14 death penalty?
15 A. Yes.
16 Q. Okay. It's not just, you found them
17 guilty, let's go string them up or anything like that.
18 A. No.
19 Q. There's things we have to prove to
20 you. Obviously, I think you have said it yourself, not
21 every murder case is a death penalty case?
22 A. Right.
23 Q. Some are, some aren't. It depend