Volume 22

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. 22 OF VOLS.
17 November 12, 1996
18 Tuesday
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
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1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Tuesday, the 12th 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
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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
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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
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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
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1 P R O C E E D I N G S
2
3 November 12th, 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 THE COURT: All right. This is
18 Tuesday, the 12th of November of 1996, and we're
19 continuing with jury selection for the Darlie Lynn
20 Routier case. All parties to the trial are present. And
21 we have Mr. Frank Sidney Walker, W-A-L-K-E-R. That is
22 your name, sir?
23 THE PROSPECTIVE JUROR: Yes, sir.
24 THE COURT: If you will raise your
25 right hand, please.
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1 Do you solemnly swear or affirm you
2 will true answers make to all the questions propounded to
3 you concerning your qualifications as a juror in this
4 case, so help you God?
5 THE PROSPECTIVE JUROR: I do.
6
7 (Whereupon, the prospective
8 juror was duly sworn by the
9 Court to true answers make
10 to the questions propounded,
11 concerning qualifications, after
12 which time, the proceedings were
13 resumed as follows:)
14
15 THE COURT: You are here as a
16 potential juror in the Darlie Routier matter. Mrs.
17 Routier is sitting there in the burgundy dress.
18 Her attorney who is present now, is
19 Mr. Preston Douglass, he is from Kerrville, assisted by
20 Richard Mosty from Kerrville, Doug Mulder and Curtis
21 Glover are from Dallas. They will be along shortly.
22 The State of Texas is represented by
23 two Assistant District Attorneys from Dallas, Toby Shook
24 and Sherri Wallace.
25 Both sides are going to ask you some
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1 questions here. There are no wrong answers. We just
2 want you to tell it like you really feel about things.
3 Ms. Wallace. Okay. Go ahead.
4
5 Whereupon,
6
7 FRANK SIDNEY WALKER,
8
9 was called as a prospective juror, for the purpose of
10 voir dire, having been first duly sworn by the Court to
11 speak the truth, the whole truth, and nothing but the
12 true, testified in open court, as follows:
13
14 VOIR DIRE EXAMINATION
15
16 BY MS. SHERRI WALLACE:
17 Q. Good morning. Thank you for coming
18 down.
19 A. No problem.
20 Q. Let me tell you how this works, and we
21 are going to get through it together. Okay? I am going
22 to be asking you some questions.
23 I'll talk to you a little bit about
24 your questionnaire, and the death penalty, and general
25 principles of law that apply to all criminal cases. Then
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1 the defense attorney will have an opportunity to do the
2 same thing and ask you some questions.
3 As the Judge said, there are no right
4 or wrong answers, just let us know how you feel. And
5 thank you for taking the time to fill out your
6 questionnaire, it has been a big help to us.
7 Before we get started, do you have any
8 questions for me?
9 A. I believe the Judge had mentioned
10 earlier that if there was something we wanted to
11 highlight, write it in the top corner and I forgot to.
12 We have our major stock show in January.
13 Q. Okay. When does that run?
14 A. Kerr County Stock Show, I think this
15 year, is the 15th through the 18th, or something like
16 that, Wednesday through Saturday.
17
18 THE COURT: You realize I cannot
19 excuse you for any work requirement.
20 THE PROSPECTIVE JUROR: Yes.
21 THE COURT: In other words, that is
22 not an excuse. I'm sorry.
23 THE PROSPECTIVE JUROR: No, no.
24 THE COURT: Okay. Fine. Thank you.
25
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1 BY MS. SHERRI WALLACE:
2 Q. You just wanted to let us to know?
3 A. Right. I have children that are, you
4 know, heavily involved in it.
5 Q. Sure. What our schedule is going to
6 be, Mr. Walker, is we're starting this trial January the
7 6th, and we don't know how long it is going to take.
8 Quite a bit of it depends on how long the jury
9 deliberates. There are things that are out of our
10 control.
11 A. Uh-huh. (Witness nodding head
12 affirmatively.)
13 Q. But we don't expect it to go longer
14 than two weeks. Now, that second week, of course, gets
15 into your stock show, but it could be that it is shorter
16 than that.
17 So, it may be that it might not
18 infringe on your time, and it may. But thanks for
19 letting us know that, and we will certainly take that
20 into consideration. We appreciate it.
21 Anything about your questionnaire,
22 anything that you have thought about you want to change?
23 Are you comfortable with it all?
24 A. No.
25 Q. Okay. Fair enough. It says here that
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1 you are in favor of the death penalty. Can you tell me a
2 little bit about that?
3 A. Basically, I just believe that if
4 anyone does the crime, you know, then they deserve the
5 punishment. We can sit and judge, you know, but yet they
6 are going to be judged by a higher power anyway.
7 Q. Knowing that they are going to be
8 judged by a higher power; tell me what you mean by that
9 Mr. Walker.
10 A. By God.
11 Q. Okay. But, do you still believe that
12 the jury system and the judging that we do here on earth
13 is appropriate?
14 A. Yes, I do.
15 Q. Okay. Let me let you know up front.
16 You see that woman sitting over there in the burgundy
17 dress, there in the middle at the counsel table?
18 A. Uh-huh. (Witness nodding head
19 affirmatively.)
20 Q. It is our goal and desire to see that
21 she is executed.
22 A. Uh-huh. (Witness nodding head
23 affirmatively.)
24 Q. We believe we have the type of case
25 and the quality of evidence to do that. Do you have any
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2396

1 problem in participating in that process?
2 A. Well, if the facts are presented to
3 where it proves it without a doubt, no.
4 Q. Okay. That's all we're looking for,
5 thank you. Let me ask you one other thing about your
6 questionnaire. It said: I trust the criminal justice
7 system in Texas. And you said that you disagreed. Can
8 you tell me a little bit about what your thinking is
9 there.
10 A. Well, I disagreed. I believe what my
11 answer was on that was that there are so many times that,
12 you know, of course, you can't believe what you hear and
13 see on the news all the time.
14 And it just seems like so many times
15 that a layman sitting in his den or his living room feels
16 like, hey, you know, this person, yes, did it; or maybe,
17 no, they didn't do it.
18 But, yet, seeing the news stories
19 flash, you wonder, how the verdict came out like it did.
20 Q. Yeah. So, is it fair to say that by
21 saying you distrust the criminal justice system, maybe
22 you distrust the slant the news puts on it?
23 A. Well, I do believe the news media
24 is -- can sway it, any issue, one way or the other very
25 heavily, yes.
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1 Q. Okay. That is -- that brings me to a
2 point that you said that you have heard about the case
3 from the TV news. And one of the reasons we're in
4 Kerrville is this case has received substantial press.
5 And we need 12 jurors who will wait
6 until they hear the evidence in the courtroom and decide
7 the case based on the evidence in the courtroom and not
8 something from the TV or the newspaper. Could you do
9 that?
10 A. Well, all I know is like I said, just
11 what I have heard on the news and that is it. I don't
12 subscribe to the local paper and I don't bother with it.
13 Q. Okay. So, you wouldn't base any
14 verdict on what you have heard in the news, would you?
15 A. No, because they don't have it on the
16 new anymore.
17 Q. Okay. It has kind of played out?
18 A. Yeah.
19 Q. Do you remember what you heard?
20 A. Oh, gosh, a woman was arrested in
21 Dallas for the possible murder of her kids, that's all I
22 remember. You know, I mean, it was one of those passing
23 things that didn't happen in the local area, so I don't
24 remember.
25 Q. You didn't pay that much attention?
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2398

1 A. No.
2 Q. All right. Fair enough.
3 Let me tell you a little bit about how
4 the death penalty and the system works here, and then ask
5 you some questions a little bit about that.
6 There are two phases of the trial.
7 The first phase -- I don't remember, have you ever served
8 on a criminal jury?
9 A. No.
10 Q. The first phase is the guilt/innocence
11 phase. That is where the State must prove to you beyond
12 a reasonable doubt that the defendant did the crime.
13 A. Right.
14 Q. And the jury says guilty or not
15 guilty.
16 A. Right.
17 Q. If it's not guilty, obviously we all
18 go home. If it's guilty, then we go to the second phase,
19 or the punishment phase of the trial. In the punishment
20 phase you may hear different types of evidence, and you
21 may not. You may hear about the defendant's background
22 and character, or it may be that you just have the crime
23 to go on.
24 A. Uh-huh. (Witness nodding head
25 affirmatively.)
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1 Q. In that phase it used to be that the
2 jury wrote life or death in a blank, and it was very
3 simple and very clear-cut. The legislature changed that,
4 and they have given the jury two questions to answer.
5 If those questions are answered in a
6 certain way, then the Judge writes death or life,
7 depending on how the questions are answered. He is not
8 given any choice. It's just merely, you know, how the
9 questions are answered, he interprets the result.
10 Do you follow me so far?
11 A. Uh-huh. (Witness nodding head
12 affirmatively.)
13 Q. The two questions are over here. The
14 first one is: "Do you find from the evidence beyond a
15 reasonable doubt that there is a probability that the
16 defendant would commit criminal acts of violence that
17 would constitute a continuing threat to society?"
18 Now, we didn't write these. These
19 were written by the legislature, but what that basically
20 says is, we have to prove to you that there is a
21 probability that the defendant would be a continuing or a
22 future danger, just to kind of summarize it.
23 Now, on your questionnaire you wrote,
24 that you believe the death penalty is appropriate in all
25 capital murder cases. And certainly the death penalty is
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1 appropriate in all capital murder cases, depending on the
2 evidence.
3 What I mean by that, Mr. Walker, is
4 this first question can't automatically be answered
5 "yes." You can't automatically say, "The defendant did
6 this horrible capital murder, so without thinking, I am
7 going to automatically say she will probably -- or the
8 defendant will probably be a continuing threat." Okay?
9 What you have to promise the Court is
10 that you will revisit the issue. You may not get any
11 more evidence, but you have to kind of go through the
12 evidence in your mind again, and you can't have a
13 knee-jerk reaction. Say if one -- you know, that a
14 guilty equals a "yes." You follow me?
15 A. Uh-huh. (Witness nodding head
16 affirmatively.)
17 Q. Okay. So, another way to say that is,
18 you know when the Judge told you, oh, I guess it's been
19 what, three or four weeks ago now, that you must presume
20 the defendant innocent.
21 That means if you voted right now, you
22 would have to find her not guilty. The same goes for
23 this first question: You have to presume that this first
24 question be answered "no."
25 And once we prove to you beyond a
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1 reasonable doubt that she will be a future danger, then
2 you can change your answer to "yes."
3 Now, you said here: If you are in
4 favor of the death penalty in some cases, do you agree
5 that a life sentence rather than the death penalty would
6 be appropriate under the proper circumstances? And you
7 said, "no." And that is kind of fine to have that
8 feeling, that, well, if they committed a death penalty
9 crime, they ought to get the death penalty.
10 Kind of like you said, sitting in the
11 your living room. But as a juror, we have to follow the
12 law and look at all the evidence.
13 A. Uh-huh. (Witness nodding head
14 affirmatively.)
15 Q. Let me give you a hypo that I heard
16 once that kind of brought this home to me. It says: "Do
17 you find from the evidence beyond a reasonable doubt that
18 there is a probability that the defendant will be a
19 future danger?" Okay?
20 Let's say I go to a bank and I rob a
21 bank. I want some money. And I decide, "While I'm in
22 there, I'm going to kill everybody, because I don't want
23 any witnesses." So, I kill everybody in line, including
24 a woman and a little baby in a carriage, and then I kill
25 the teller. Shoot them all, and then I leave out of the
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1 bank.
2 And if I told you about that crime, me
3 killing 10 people, including the baby and a bank teller,
4 a security guard, you think, "That person needs the death
5 penalty."
6 But if you look at it a little bit
7 further, you see right before the teller was killed, she
8 hit a button underneath her counter to call the police.
9 And the police were on the way and I didn't hear them.
10 So, I go out of the bank and the police car runs me over,
11 and I become a quadriplegic. Okay?
12 Now, I know that it's far-fetched
13 example, and it's silly, but I use it to bring home this
14 point: You don't really know the facts until you hear
15 all the evidence.
16 What we need is a commitment from you
17 that you will wait until you hear all the evidence before
18 you make up your mind whether or not death or life is
19 appropriate in this case.
20 It might be after you hear the
21 evidence, even though I am a quadriplegic, you decide
22 that I am as mean as a snake, and I am a continuing
23 threat to society and I ought to die.
24 But it may be that you said, "Well,
25 she can't do anything with her nose or her ears. So, I
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1 will save her life and let her live." See where I am
2 coming from?
3 A. Right.
4 Q. Could you do that? Could you wait to
5 hear all of the evidence and make us prove that question
6 to you?
7 A. Yes.
8 Q. Okay. Now, the flip side of that,
9 that I kind of touched on a little bit ago was, could you
10 convict -- we asked you this question in here. It says:
11 Do you believe that there are some crimes which call for
12 the death penalty solely because of their facts and
13 circumstances, regardless of whether or not the guilty
14 person has committed prior violent acts?
15 The way I like -- and you said, "Yes,
16 if the person is proven guilty."
17 The way I kind of ask -- like to ask
18 it is: Can you -- you don't have to imagine a set
19 circumstances, but is your mind open to the possibility
20 that just on the facts of the crime alone that you could
21 consider somebody a future danger?
22 A. Given all the facts, yes.
23 Q. Sure. And I'm not looking for a
24 commitment from you right now. As a matter of fact, I
25 appreciate that you are open-minded and want to hear all
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1 of the facts, that is exactly what we're looking for, Mr.
2 Walker.
3 As I told you, here in Texas, it's not
4 automatic. The death penalty scheme is something that a
5 jury decides what cases are appropriate. And the types
6 of cases that qualify for the death penalty here in Texas
7 are: Murder of a child under the age of six, which is
8 what's on trial here; killing of a police officer or a
9 fireman or a prison guard in the line of duty; a killing
10 coupled with another felony, like a robbery, like my
11 example about going into the bank; or killing during the
12 course of a rape or kidnapping; or murder for hire, if I
13 hire a hit man to go kill somebody, I am eligible for the
14 death penalty, and so is the hit man, the person that
15 kills for money; and if you kill two or more people,
16 those are the types of crimes that are eligible for the
17 death penalty.
18 Is there anything about that list that
19 you would change or add to, if it were your decision?
20 A. I don't believe so.
21 Q. Does that feel like a pretty fair list
22 to you?
23 A. Yes.
24 Q. Okay. And the case that we're on
25 trial for, killing of a child under the age of six, is
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1 that something you think that would qualify for the death
2 penalty?
3 A. If the circumstances are there, yes,
4 the proof.
5 Q. Fair enough. Let me tell you, I think
6 in front of you, Mr. Walker, is an indictment. Do you
7 see that?
8 A. Yes.
9 Q. Okay. Do you see the typewritten
10 portion there kind of in the middle of the page, if you
11 would read that and let me know when you are finished.
12 A. Yes.
13 Q. Okay. That is what we must prove to
14 this jury beyond a reasonable doubt. That is our -- the
15 elements of the crime that we must convince the jury that
16 the defendant has committed. Okay?
17 A. Uh-huh. (Witness nodding head
18 affirmatively.)
19 Q. Okay. We can do that several
20 different ways. We have to prove beyond a reasonable
21 doubt, but it doesn't matter what type of evidence we
22 use. And let me tell you where I am going with this. In
23 a murder case, or actually in any case, we can present
24 direct evidence or indirect, what's called circumstantial
25 evidence.
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1 Direct evidence would be an
2 eyewitness, "I saw John kill Sue." And that is direct
3 evidence.
4 But very often in a murder case, we
5 won't have an eyewitness, because the defendant has the
6 control over how many witnesses there are to the crime.
7 Do you follow me?
8 A. Uh-huh. (Witness nodding head
9 affirmatively.)
10 Q. And in a murder case the eyewitness is
11 dead, and you know the defendant doesn't have to testify.
12 We can't call her to the stand, and you can't use that
13 against her.
14
15 MR. RICHARD C. MOSTY: Your Honor, I
16 am going to object to this whole series where it's
17 talking about specific facts and referring to the
18 defendant as her. None of it is couched in an
19 appropriate case, or if the facts warrant.
20 THE COURT: Sustained. Rephrase the
21 questions.
22
23 BY MS. SHERRI WALLACE:
24 Q. No defendant has to testify. Okay?
25 And in many murder cases the eyewitness is dead. So, in
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2407

1 those types of cases we must look to other types of
2 evidence. And indirect, or sometimes what you hear
3 called circumstantial evidence is everything else other
4 than an eyewitness. It's fingerprints, DNA, statements
5 by the defendant, fibers, blood spatters, everything
6 else. Okay?
7 And, what I would like to know from
8 you is if we convince you beyond a reasonable doubt by
9 circumstantial evidence alone, would you be able to
10 return a verdict of guilty in a capital murder case?
11 A. You would have to convince me 100
12 percent.
13 Q. Okay. Let me talk to you a little bit
14 about that. Our burden is beyond a reasonable doubt.
15 It's a high burden and we gladly accept it.
16 That is the burden in every criminal
17 case; traffic ticket, rape, every criminal case, capital
18 murder, beyond a reasonable doubt.
19 Now, on TV in something, you know, in
20 Hollywood you will see beyond a shadow of a doubt, or 100
21 percent certainty, or all that sort of things. And
22 really, that is not our burden. One hundred percent
23 certainty would be you would have to see it for yourself,
24 and if you saw it for yourself, you couldn't be a juror.
25 Okay? You would be a witness. So we are happy to accept
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1 our burden of beyond any reasonable doubt, but that is
2 not the same thing as 100 percent certainty.
3 Could you hold us to our burden and
4 nothing more?
5 A. Now, you are saying that you could not
6 prove to me that 100 percent, under a reasonable doubt?
7
8 THE COURT: They have to prove the
9 case beyond a reasonable doubt.
10 THE PROSPECTIVE JUROR: Right.
11 THE COURT: Now, reasonable doubt, you
12 will get a definition as to what it is.
13 THE PROSPECTIVE JUROR: Right.
14 THE COURT: But they have to prove
15 their case beyond a reasonable doubt. The State does the
16 accusing, they always have to do the proving. It never
17 shifts to the defense, I think that is the point being
18 made.
19 THE PROSPECTIVE JUROR: Okay.
20 THE COURT: And, of course, all of
21 these questions assume from both sides that you believe
22 whatever evidence they are talking about.
23 THE PROSPECTIVE JUROR: Right, okay.
24
25
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1 BY MS. SHERRI WALLACE:
2 Q. Mr. Walker, the only reason I say that
3 is, yeah, we believe that we have the type of case that
4 we can convince you beyond a reasonable doubt that she is
5 guilty. But, what I want to know, when you say 100
6 percent certainty, that is not terms I am used to
7 hearing, and so, I just kind of want to know what you
8 mean by that?
9 A. Well, okay. Being a juror, in a case
10 like this, okay, if I am going to have to sit there and
11 vote the outcome of a life, then I want to know 100
12 percent myself I am voting the right yes or the right no.
13 Q. All right. You want to be sure?
14 A. Right.
15 Q. Fair enough, no problem then. But
16 could you be sure having circumstantial evidence alone,
17 if you believe the evidence beyond a reasonable doubt?
18 A. Since there is no witness, and all
19 we're going on is, I guess, what you all are calling
20 circumstantial, I guess I could. You know, I can't
21 promise you.
22 Q. I'm not asking you if you can
23 guarantee me a guilty.
24 A. Oh, yeah.
25 Q. I'm just asking you, if we have got
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1 the evidence, if you believe it beyond a reasonable
2 doubt, then you would find her guilty?
3 A. If I believed it, yes.
4 Q. Fair enough. Now, the other thing, on
5 that indictment is everything that we have to prove to
6 the jury. But what we don't have to prove to the jury is
7 motive. Okay?
8 Now, you know, you see these TV crimes
9 and all this stuff and you think, "I wonder why they did
10 it." You know it's kind of interesting to know the
11 motive.
12 But in Texas it's not required for us
13 to prove the motive, and there is a good reason for that.
14 As you know, the defendant does not
15 have to testify. So, it may be after you hear the trial,
16 hear the evidence, that the motive becomes clear as a
17 bell to you, what the motive is.
18 Or it may be that it's one of several,
19 and you are not really sure which, or it may be, as in
20 some crimes, I have jurors come back and say, "Why did
21 they do it?" It may be you just don't ever know, some
22 crimes you just can't understand.
23 We have the burden of proof, but we
24 don't have the burden of proof with regards to motive.
25 If you believed that the defendant committed the crime,
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1 and you believed that beyond a reasonable doubt, but you
2 didn't know why, could you still return a verdict of
3 guilty?
4 A. Well, there's a lot of things in life
5 that we don't know why and won't ever find out.
6 Q. Fair enough. And you could do that?
7 A. I assume I can, yes.
8 Q. Okay. Thank you. Now, once we get
9 through the guilt phase and the defendant is found
10 guilty, that is when we go to these questions in the
11 second phase. Okay? We talked a little bit about that
12 first question, and I want to ask you some questions
13 about that.
14 And let me tell you where I am coming
15 from on this. The Judge is going to give you many
16 definitions, and, you know, describe what words mean and
17 all that stuff, in legal terms. But for this question,
18 you are not going to get a single definition.
19 So, what I want to know from you is,
20 what these words mean to you, because you are going to be
21 the one putting meaning on it.
22 "Probability." Do you find from the
23 evidence beyond a reasonable doubt that there is a
24 probability? Mr. Walker, what does probability mean to
25 you?
Sandra M. Halsey, CSR, Official Court Reporter
2412

1 A. Probability is something that -- or is
2 a word that, it doesn't matter if it's adult, child, I
3 mean, you know, that somebody might do something again.
4 Q. Okay.
5 A. It's going to happen again.
6 Q. More likely than not, it's going to
7 happen again?
8 A. Right.
9 Q. Okay. That the defendant would commit
10 "criminal acts of violence"; what is the phrase, criminal
11 acts of violence, what do you think of when you hear
12 that?
13 A. Criminal acts of violence. Well, you
14 hear it all the time.
15 Q. Like I said, there is no right or
16 wrong, just whatever you think of.
17 A. Well, my definition would be then that
18 the defendant would do it again, you know, to another
19 adult, to anybody else.
20 Q. Okay. When you say, "Do it again," do
21 another murder again?
22 A. Well, not necessarily murder.
23 Q. Okay. Some people I hear say any harm
24 or injury to another person, that would be a criminal act
25 of violence. Would you agree with that definition?
Sandra M. Halsey, CSR, Official Court Reporter
2413

1 A. Any --
2 Q. Harm or injury.
3
4 MR. RICHARD C. MOSTY: Your Honor, I
5 think that improperly asks for a commitment on the behalf
6 of the juror.
7 THE COURT: Sustained. Let's move on.
8
9 BY MS. SHERRI WALLACE:
10 Q. Would it be fair, or what would you
11 say other than murder would fit in your definition of
12 that?
13
14 MR. RICHARD C. MOSTY: I think that is
15 the same question, it is asking him to define and
16 prejudge.
17 THE COURT: Sustained, I think he has
18 demonstrated that he understands what that means.
19
20 BY MS. SHERRI WALLACE:
21 Q. "Society." That is the other word I
22 wanted to ask you about, Mr. Walker. Would society, in
23 your mind, include people that work in the prison, prison
24 guards, chaplains, psychiatrists, psychologists, inmates,
25 relatives visiting inmates, everybody; would society
Sandra M. Halsey, CSR, Official Court Reporter
2414

1 include prison personnel to you?
2 A. Yes, because no matter where you work
3 you are part of society.
4 Q. Okay. Fair enough. If that question
5 is answered "yes," then you go to the next question. If
6 that question is answered "no," it's a life sentence.
7 Okay? But if it's answered "yes," you go to the next
8 question.
9 The next question is: "Taking into
10 consideration all of the evidence, including the
11 circumstances of the offense, the defendant's character
12 and background, and the personal moral culpability of the
13 defendant, is there a sufficient mitigating circumstance
14 or circumstances to warrant that a sentence of life
15 imprisonment, rather than a death sentence, be imposed?"
16 And that is a lot of words to
17 basically say this: After you have heard everything, if
18 you decide based on what you heard that life is the right
19 sentence instead of death, could you follow your gut and
20 your heart and give her a life sentence? Give the
21 defendant a life sentence?
22 A. Yes, probably.
23 Q. Okay. Now, with this question, let me
24 explain that you don't have to have to sit there right
25 and think of anything that you would find mitigating.
Sandra M. Halsey, CSR, Official Court Reporter
2415

1 Okay? It may be that you hear five million capital
2 murder cases, and never hear something that you think is
3 sufficient to, in effect, change your verdict from death
4 to life. Okay?
5 But this is a sort of a safety net
6 where if there is something out there, that even though
7 the defendant has committed capital murder, and even
8 though the defendant is a continuing threat to society,
9 you still, in your heart, not some other juror, but you
10 believe that the right thing to do is to give her a life
11 sentence? And that is what you said you could do. Keep
12 an open mind to that. Okay?
13 A. Uh-huh. (Witness nodding head
14 affirmatively.)
15 Q. Is there anything that comes to your
16 mind that is mitigating, that is something that would
17 lessen somebody's blame --
18
19 MR. RICHARD C. MOSTY: Your Honor, I
20 think again that asks for a commitment in a vacuum, when
21 this juror hasn't heard any facts about what he thinks
22 might be --
23 THE COURT: I'll sustain the
24 objection. Let's move on.
25
Sandra M. Halsey, CSR, Official Court Reporter
2416

1 BY MS. SHERRI WALLACE:
2 Q. Let me give you some examples of what
3 some people think is mitigating, and what some people
4 think isn't, and see how it cuts with you. Okay?
5
6 MR. RICHARD C. MOSTY: Your Honor,
7 I'll go ahead and peremptorily object to that. When she
8 says, "How does it cut with you," is going to ask for a
9 commitment from this juror in a vacuum.
10 MR. TOBY L. SHOOK: Judge, that is
11 asking how they feel about it, just like we ask people
12 how they feel about the death penalty. We just want
13 to --
14 THE COURT: All four are up here now.
15 What are you going to say?
16 MR. S. PRESTON DOUGLASS, JR: I just
17 think that it's easier if we say, "Can you consider the
18 following as possible types of mitigating evidence?"
19 THE COURT: I think that would be
20 fine. Mr. Glover, do you have any comments?
21 MR. CURTIS GLOVER: I like what he
22 said, Judge.
23 THE COURT: Okay. Let's get a laundry
24 list out. Could you consider the following as mitigating
25 circumstances or evidence? I think that would be more --
Sandra M. Halsey, CSR, Official Court Reporter
2417

1 MR. RICHARD C. MOSTY: And I think
2 too, it should be, "In a proper case, if the evidence
3 warranted."
4 THE COURT: All of this assumes that
5 in a proper case, it assumes you believe whatever
6 evidence they are talking about. You understand that?
7 THE PROSPECTIVE JUROR: Yes, sir.
8 THE COURT: All it assumes that. If
9 somebody comes in and tells you, "There's ice on the
10 Guadalupe River on the Fourth of July," you say, he's a
11 nut and we will forget about him. You have to believe
12 the testimony and the evidence you hear, and all this
13 assumes in a proper case.
14 They are just cutting it down. So,
15 you just give a laundry list and see how he reacts.
16 MS. SHERRI WALLACE: Thank you, your
17 Honor.
18
19 BY MS. SHERRI WALLACE:
20 Q. How would you feel about age?
21
22 MR. RICHARD C. MOSTY: Your Honor, how
23 do you feel about age? That is asking for a commitment.
24 THE COURT: That is a very sensitive
25 question to the Court, but it's quite all right. I feel
Sandra M. Halsey, CSR, Official Court Reporter
2418

1 pretty good about it.
2 Let's don't ask for commitments.
3 MS. SHERRI WALLACE: Judge, I'm not
4 asking for commitments.
5 THE COURT: Well, could you say,
6 "Could you consider age," Why don't we just say, "Could
7 you consider bang, bang, bang." Let's get it on.
8
9 BY MS. SHERRI WALLACE:
10 Q. Would age be something that you would
11 consider as young age, youthful age, as mitigating?
12 A. Are you talking about the victim?
13 Q. The defendant.
14 A. The defendant. Youthful age.
15 Q. A young person.
16 A. Well, I don't know why age would even
17 come into account.
18 Q. Fair enough. What about a background
19 that grew up poor? How would that play with you?
20 A. I don't think it would sway me,
21 everybody has a chance to succeed.
22 Q. Okay. What about past abuse; like in
23 childhood, physical or sexual abuse?
24 A. Definitely from what I know about
25 things like that that go on, or are brought to light now,
Sandra M. Halsey, CSR, Official Court Reporter
2419

1 a lot of times the people are victims themselves, and
2 they might not know any different because that is the way
3 they were raised.
4 Q. That is something you would just wait
5 and hear the evidence on?
6 A. Right.
7 Q. Fair enough. Any questions for me so
8 far, Mr. Walker?
9 A. No.
10 Q. Okay. In order for the defendant to
11 die, this question must be answered "no." Okay? So you
12 have got to have a guilty and then a "yes" and then a
13 "no."
14 That after you have heard everything,
15 there isn't anything mitigating to warrant a life
16 sentence. Okay? Fair enough?
17 A. Yes.
18 Q. Okay. Now, I want to talk to you a
19 little bit about some general principles of law. The
20 Judge touched on these when he talked with you several
21 weeks ago. And I want to kind of go over them, quickly,
22 if I could again.
23 I mentioned already that the defendant
24 is presumed innocent, and if you voted right now, you
25 would have to find the defendant not guilty. Could you
Sandra M. Halsey, CSR, Official Court Reporter
2420

1 follow that aspect of the law?
2 A. Yes.
3 Q. Additionally, the Judge told you
4 several weeks ago that the indictment that is before you
5 there is no evidence of guilt. We still have to prove to
6 you beyond a reasonable doubt she did the indictment
7 (sic).
8 All that is is a piece of paper that
9 explains what we have to prove to the jury. Could you
10 follow that law?
11 A. Yes.
12 Q. Okay. The defendant has an absolute
13 right not to testify, and you cannot hold that against
14 her. Can you follow that law?
15 A. Yes.
16 Q. In this case, we have talked about
17 types of evidence, and I anticipate you will hear from
18 police officers.
19 Now, all witnesses must start out on
20 the same plane, must be treated equally from the
21 beginning. Okay? Then, after you hear from them, you
22 may give one witness more credibility or you may believe
23 them, and one witness, you may think that you don't
24 believe a word that comes out of their mouth.
25 But the key there is, you have to wait
Sandra M. Halsey, CSR, Official Court Reporter
2421

1 and hear from the witnesses, and that sounds pretty
2 simple. Well, of course, you can't know whether somebody
3 is telling the truth unless you hear from them.
4 But sometimes I have heard another
5 defense attorney say a question like this: Would you
6 believe a police officer simply because he is a police
7 officer? And really, that is kind of a trick question.
8 Because, well, yeah, you would like to
9 think you could believe a police officer, but you must
10 wait until you hear from which officer or which person or
11 which witness.
12 Could you follow that part of the law?
13 A. Yes, I think what you're asking me is
14 there again, to keep an open mind.
15 Q. You are exactly right, Mr. Walker,
16 that's all we're looking for.
17 The defense attorneys and the
18 defendant don't have to prove anything. The burden of
19 proof is here. And if they wanted to, they could play
20 tic-tac-toe. All they have to do is show up. Could you
21 hold us to our burden and not look to them for anything?
22 A. Well, that's a trick question, because
23 you have to prove it. I understand the way the law
24 works.
25 Q. Yes, sir.
Sandra M. Halsey, CSR, Official Court Reporter
2422

1 A. And I would respect them more if they
2 did show up.
3 Q. Well, they will be there. And let me
4 tell you, I told you we're seeking the death penalty.
5 And they are going to fight us every step of the way.
6 Okay? But that is not really what I am asking here.
7 The law requires a juror to not -- you
8 know, it's human nature to want to hear both sides of the
9 story.
10 A. Uh-huh. (Witness nodding head
11 affirmatively.)
12 Q. But that is not how it is in the
13 courtroom. In the courtroom here is where the story
14 comes from. Now, they may put on evidence, but they
15 don't have to.
16 A. Right.
17 Q. And the key there is that you won't
18 hold them or make them put on any evidence.
19 A. Okay. I see what you are asking.
20 Yes.
21 Q. Okay. So, can you look to this table
22 to prove the case, and not look to that table to prove
23 anything?
24 A. Right.
25 Q. Okay. In this case and in many murder
Sandra M. Halsey, CSR, Official Court Reporter
2423

1 cases, you will see gory, gruesome photographs. They are
2 part of the evidence in this case.
3 And can you consider those for what
4 they are, which is part of the evidence and wait until
5 you hear all of the evidence?
6 A. Uh-huh. (Witness nodding head
7 affirmatively.)
8 Q. Okay. Additionally, the Judge will
9 instruct you when we get to the punishment phase that you
10 may not consider parole for any purpose. There is a good
11 reason for that. The Boards (sic) of Pardons and Paroles
12 changes all the time with every governor, sometimes more
13 often than that, and they have the exclusive control over
14 parole. The Judge doesn't have anything to do with it.
15 We don't have anything to do with it, the jury doesn't
16 have anything to do with it.
17 So, because of that, you must not
18 consider it. You must assume that a life sentence is a
19 life sentence.
20 Can you follow that law, Mr. Walker?
21 A. Yeah, if it's the law, yes.
22 Q. Okay. That is all the questions I
23 have for you. Do you have anything for me?
24 A. No, ma'am.
25 Q. All right. Thank you so much for
Sandra M. Halsey, CSR, Official Court Reporter
2424

1 spending some time with me.
2
3 THE COURT: Thank you Ms. Wallace.
4 Mr. Douglass.
5
6 VOIR DIRE EXAMINATION
7
8 BY MR. S. PRESTON DOUGLASS, JR:
9 Q. Mr. Walker, good morning.
10 A. Yes, sir.
11 Q. You have been up there quite a while
12 and I can give you some good news. The bad news is I
13 have got to do some talking, but the good news is that a
14 lot of the area has been covered. And while I will go
15 over a couple of things again, I'm not going to take as
16 long and I think that I will try not to waste any of your
17 time unnecessarily.
18 But one thing that is important, of
19 course, is from where I sit, from where we sit over here
20 representing Darlie Routier, our perspective in this case
21 is absolutely 100 percent different from the attorneys
22 representing the State.
23 A. Yes, sir.
24 Q. In a death penalty case, it always
25 seems that the way the individual questioning of people
Sandra M. Halsey, CSR, Official Court Reporter
2425

1 who will perhaps be on the jury -- the way it seems like
2 that always goes is immediately when you start talking
3 about the death penalty. And I think the reason for that
4 is pretty obvious, not many people think about the death
5 penalty or talk about the death penalty. And everybody
6 involved in this process is interested in what someone's
7 opinion about that is.
8 Mrs. Routier, however, has entered a
9 plea of not guilty. She will plead not guilty before the
10 jury that sits and hears this case, and she is going to
11 stand behind that plea of not guilty 100 percent and not
12 waver.
13 Because of that, our focus and our
14 interest in this trial is on the guilt/innocence phase of
15 the trial. The only thing we know for sure in Texas is
16 that when we have trials, there is going to be a
17 guilt/innocence phase. We don't know that there is going
18 to be a punishment phase.
19 A. Uh-huh. (Witness nodding head
20 affirmatively.)
21 Q. It's our intention for there not to be
22 a punishment phase in this case. So, for the few minutes
23 I am going to get to talk to you, I want to talk first
24 about that. I will talk about punishment a little bit
25 just because I don't have another chance to talk to you
Sandra M. Halsey, CSR, Official Court Reporter
2426

1 about it, but my emphasis and what I want to talk to you
2 about, is that first phase.
3 With respect to the indictment. There
4 was a little bit of interest placed on the indictment
5 when you first came in and it's sitting there in front of
6 you.
7 Would you agree with me, and maybe you
8 remember this, now it's three weeks ago, Judge Tolle
9 started out his instructions to you talking about the
10 presumption of innocence and also talking to you about
11 the indictment. And he said everyone in his court and
12 every court is presumed innocent until proven guilty and
13 that is a right he protects.
14 Along those lines, it is necessary
15 that people don't start out presuming someone guilty.
16 That is the opposite, obviously.
17 And in that regards, that is where an
18 indictment becomes important from my perspective. You
19 probably remember Judge Tolle saying that in Dallas
20 County over 25,000 people are indicted each year, by
21 Dallas County Grand Jurors.
22 And he also said, that any one Grand
23 Jury of 12 or so people sitting in one maybe eight hour
24 period, that that one group of people may return 125
25 indictments against people up there in Dallas.
Sandra M. Halsey, CSR, Official Court Reporter
2427

1 Do you remember him talking about
2 that?
3 A. I remember the 25,000 figure, yes.
4 Q. Do you remember him -- do you remember
5 the Court telling you that in that situation many of
6 those 25,000 people never knew they were being
7 investigated, and because they didn't know they were
8 being investigated, they didn't have a chance to come
9 tell their side of the story. Did that surprise you at
10 all that someone could be indicted and never really even
11 know or have the opportunity to come down and say what is
12 on their mind?
13 A. Yes.
14 Q. Because of that -- can you agree with
15 me that because that Grand Jury may have only gotten part
16 of the story, and because that Grand Jury may have had an
17 incredible backlog that day, or for whatever reason, that
18 an indictment is nothing more than a piece of paper that
19 tells someone what they have been accused of and gives
20 our Judge jurisdiction to have a trial. And that you
21 can't place any other weight on that indictment. Does
22 that sound fair to you?
23 A. No, I believe that is exactly what the
24 paper is.
25 Q. Okay. So, are you the kind of person
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2428

1 to say, "Well, I know there is an indictment, but I am
2 not going to put any weight on that because that is not
3 proof of anything."
4 Are you okay with that?
5 A. Uh-huh. (Witness nodding head
6 affirmatively.)
7 Q. All right. The presumption of
8 innocence and I talked a little earlier, what we're
9 really more concerned about is that you don't presume her
10 guilty. We're not asking for any head start. We're just
11 asking to be able to start on the same -- out of the same
12 blocks, and at the same time as they do.
13 Are you in agreement that we would
14 have no system at all if someone had to be presumed
15 guilty to begin with, and then had to prove themselves
16 innocent?
17 A. Yeah, that would be pretty barbaric.
18 Q. Okay. It would be back to the witch
19 trials is what it would be.
20 A. Yes.
21 Q. The burden of proof is absolutely 100
22 percent on the attorneys who represent the State. In a
23 trial, it could well happen that the attorneys
24 representing the State put on a number of witnesses, and
25 we get to cross-examine those witnesses.
Sandra M. Halsey, CSR, Official Court Reporter
2429

1 And the defense lawyers might
2 determine in a trial that after hearing all of the
3 evidence in the case, and after getting to question the
4 State's witnesses, that there is no reason to put on any
5 evidence.
6 The State has failed in its burden of
7 proof.
8 And you might hear in a case that the
9 district attorney might stand up and say, "We don't have
10 any more witnesses. We rest our case." And then the
11 defense lawyers might stand up and say, "Well, we rest
12 our case also."
13 Them thinking that they didn't prove
14 what they needed to prove. In that situation, a jury is
15 required by their oath to look only at the State's case
16 very carefully, and not say, "Well, I think they should
17 have put on some evidence. I think the defense lawyers
18 should have brought me some witnesses."
19 Are you okay that if the State puts on
20 witnesses and that is all there is, that you will look --
21
22 THE COURT: Excuse me, go ahead. I
23 didn't mean to interrupt you.
24
25
Sandra M. Halsey, CSR, Official Court Reporter
2430

1 BY MR. S. PRESTON DOUGLASS, JR:
2 Q. Thank you. Just to paraphrase back
3 again, if the State only puts on its witnesses, are you
4 willing to look at the State's case under a microscope
5 and examine it to see that all reasonable doubt is
6 excluded?
7 Or do you feel that you would require
8 the defendant to prove to you something in a criminal
9 case?
10 A. I don't think I could require the
11 defendant to prove anything because it's the State's
12 burden.
13 Q. Okay. Fair enough. Then that burden,
14 and we just talked a little bit about that, that burden
15 is reasonable doubt. And I think I saw -- have you
16 served on a jury before?
17 A. No, sir.
18 Q. I seem to have seen somewhere in your
19 questionnaire that you may have been involved in a
20 lawsuit regarding some restrictions or something, back
21 some time ago.
22 A. Yes.
23 Q. If that case had gone to trial, the