Volume 25

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. 25 OF VOLS.
17 November 15, 1996
18 Friday
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
3204

1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Friday, the 15th 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
3205

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
3206

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
3207

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
3208

1 P R O C E E D I N G S
2
3 November 15th, 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 THE COURT: This is 82 on our list
18 right here, it's 250 on the master jury list. This is
19 Lewis Hurt, L-E-W-I-S, H-U-R-T.
20 All right. Will you please raise your
21 right hand, please, sir?
22 Do you solemnly swear or affirm that
23 you will true answers make to all questions propounded to
24 you concerning your qualifications as a juror, so help
25 you God?
Sandra M. Halsey, CSR, Official Court Reporter
3209

1
2 (Whereupon, the prospective
3 juror was duly sworn by the
4 Court to true answers make
5 to the questions propounded,
6 concerning qualifications, after
7 which time, the proceedings were
8 resumed as follows:)
9
10 THE PROSPECTIVE JUROR: I do.
11 THE COURT: Fine, thank you, sir.
12 Mr. Hurt, you are a potential
13 alternate juror in the Darlie Routier matter. We have
14 already selected 12, we're going to get four alternates
15 now. You will be the second alternate if you were to be
16 chosen.
17 That simply means you will listen to
18 the entire case, and if somebody is unable to continue,
19 you will then be substituted. When they go into
20 deliberations, of course, you will be dismissed at that
21 time, if you have not been substituted.
22 Now, Mrs. Routier is the young lady
23 sitting over here to your far right. She is represented
24 today by her Dallas attorneys, Mr. Douglas Mulder and Mr.
25 Curtis Glover, also two Kerrville attorneys representing
Sandra M. Halsey, CSR, Official Court Reporter
3210

1 her, Preston Douglass and Richard Mosty. They are not
2 here now, they will be back here in a few minutes.
3 The State is represented today by two
4 Assistant District Attorneys from Dallas, Toby Shook, who
5 is present and Ms. Sherri Wallace who is not, she will be
6 back here in a few minutes, too.
7 Now, there are no wrong answers to
8 these questions. You are not going to offend anybody by
9 what you say. So just listen to the question, answer it
10 briefly and just tell your honest feelings in the matter.
11 And remember to please speak loudly
12 into the microphone because Ms. Halsey is taking all this
13 down. You can pull the mike back toward you.
14 If you can say yes or no to all
15 questions, instead of uh-huh or huh-uh, and we can't take
16 down nods of the head. Okay?
17 THE PROSPECTIVE JUROR: Okay.
18 THE COURT: All right. Mr. Shook.
19 MR. TOBY L. SHOOK: Thank you, Judge.
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
3211

1 Whereupon,
2
3 LEWIS C. HURT,
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. Mr. Hurt, again, my name is Toby
14 Shook. I am one of the prosecutors on the case, and I
15 will be asking you questions on behalf of the State.
16 What I will do is go over some of the information you
17 have for us here in the questionnaire and then go over
18 some of the law and rules that apply in this case.
19 I see by your questionnaire you've
20 been -- when you were in the military were on several
21 court martials and I think you have been on one jury
22 trial on a child custody case.
23 A. That's correct.
24 Q. Okay. Well, you have been through
25 this process a little more than most of the jurors. You
Sandra M. Halsey, CSR, Official Court Reporter
3212

1 know from that experience, from the civil one, usually
2 the jurors are picked from a large group, but since it's
3 a death penalty case, the law prescribes that we talk to
4 every individual juror one at a time.
5 We're not meaning to put you on trial
6 up there or anything like that, this is the procedure we
7 go through with each juror.
8 Tell me a little bit about your past
9 jury experience. The court martials, what types of cases
10 were those that you sat on?
11 A. One of them was rape, and the other
12 one, I believe, was -- it was either drug possession
13 or -- you know, or unauthorized absence. Again, I can't
14 really remember.
15 Q. What were the verdicts in those cases?
16 A. Guilty.
17 Q. And then the child custody case, was
18 that here in Kerr County?
19 A. That's correct.
20 Q. What happened on that case?
21 A. That was pretty complicated. That
22 was -- you had two spouses that were seeking custody, and
23 also the grandparents, and we gave it to the
24 grandparents, the custody. You were on the case
25 (indicating), I think.
Sandra M. Halsey, CSR, Official Court Reporter
3213

1 Q. Okay. That was my next question, do
2 you know any of the Dallas attorneys involved?
3 A. No.
4 Q. Okay. You know Mr. Douglass here he
5 was one --
6 A. He was on that case. I know him from
7 there, that case.
8 Q. Do you know Mr. Mosty at all, the
9 other Kerrville attorney?
10 A. Well, I probably have, I'm sure I
11 probably have met him. I know a number of the Mostys, I
12 don't know if we have met or not, probably have, but I'm
13 not sure.
14 Q. Do you recall what side -- who Mr.
15 Douglass represented?
16 A. He was representing the grandparents,
17 I believe.
18 Q. Okay. How long ago was that?
19 A. Oh, boy, I don't know, four or five
20 years, probably, maybe somewhere in there. I don't know,
21 I'm not sure.
22 Q. Anything about that experience with
23 Mr. Douglass representing one of the sides, do you think
24 that would make any difference to you in this case?
25 A. No.
Sandra M. Halsey, CSR, Official Court Reporter
3214

1 Q. Okay. You are with Southwest Airlines
2 right now?
3 A. That's correct.
4 Q. You have lived here in Kerrville the
5 last 25 years?
6 A. Well, I was actually born between
7 Kerrville and Rocksprings. Then I went into the
8 military, was with Eastern Airlines for a while so. But
9 essentially I guess I have been here forever, but been
10 gone a little while.
11 Q. You were born and raised in this area?
12 A. That's correct.
13 Q. Okay. We have one section that we put
14 down about anyone you might have known who has been to
15 jail or prison. You put two people down, a Douglas
16 Fosler?
17 A. Uh-huh. (Witness nodding head
18 affirmatively).
19 Q. How did you know him?
20 A. He is my cousin.
21 Q. Okay. And is it Elbrock (phonetic
22 spelling)?
23 A. Yes, Leslie Elbrock.
24 Q. Yeah. Convicted of murder and in
25 prison. How did you know him?
Sandra M. Halsey, CSR, Official Court Reporter
3215

1 A. Oh, shoot, we used to -- when I was
2 going to that Cowboy Camp meeting out there all the time,
3 at the Sunset Baptist Church, he was from there, and I
4 had known him, I guess for a long time, not well, but I
5 knew who he was.
6 Q. Okay. Let me talk to you then about
7 the death penalty a while. Obviously, this is a capital
8 murder case and the State is seeking the death penalty,
9 so we want to talk to every juror about their personal
10 feelings about it.
11 Let me first ask you: Are you in
12 favor of it as a law that we should have in our state?
13 A. Well, yeah, I am in favor of it.
14 Q. Okay. What circumstances do you think
15 it should be used?
16 A. Boy, that's difficult, you know, that
17 was on that questionnaire, and people have written books
18 and papers on that.
19 Q. Uh-huh. (Attorney nodding head
20 affirmatively).
21 A. I think it should be used if, for
22 example, a person has a history of violent crimes and he
23 does something else. I think it should be used if there
24 is -- a person commits a crime that is just extremely
25 gross, or something, you know, of that nature. Mass
Sandra M. Halsey, CSR, Official Court Reporter
3216

1 murders, very cruel.
2 Q. Well, you put down mass murder down
3 here for one example.
4 A. Uh-huh. (Witness nodding head
5 affirmatively).
6 Q. When you think of mass murder, what --
7 A. I'm thinking in terms primarily of
8 serial-type killers, something like that. I would also
9 have to change that a little bit. For example, if
10 somebody goes into a house and kills a whole family, then
11 I assume that would be mass murders also.
12 Q. Okay. More than one victim?
13 A. That's correct.
14 Q. Okay. In Texas, the way our capital
15 murder statute is set up, first of all you can only get
16 the death penalty for a murder case, and then only
17 certain types of murder cases. There's plenty of murder
18 cases that are very heinous, but you can only get a life
19 sentence for. We have to have a murder plus another
20 aggravating fact.
21 Some examples would be: A murder that
22 occurs during the course of a felony situation, where
23 maybe someone robs a 7-Eleven on the way home, you know,
24 goes in there, takes the money, executes the clerk, that
25 could be a death penalty case.
Sandra M. Halsey, CSR, Official Court Reporter
3217

1 Someone that comes in the home, kills
2 the homeowner, someone that murders someone during a rape
3 or during a kidnapping, those types of murders can fall
4 under our capital murder statute.
5 Also, the murder of certain class of
6 citizens, such as police officers or firemen or prison
7 guards while on duty, murder for hire, the mass murder
8 situation you talked about, more than one person killed,
9 or the serial killer-type situation falls under our
10 statute.
11 In addition to that, there is the
12 charge we have indicted in this case, murder of a child
13 under the age of six. And if I could get you to read the
14 indictment real quick. It should be on a piece of paper
15 there in front of you.
16 A. Okay. Let me get my glasses.
17 Q. That is the allegations that we have
18 to prove for a guilty verdict. We have to prove those
19 beyond a reasonable doubt. Obviously, we can't tie you
20 down to any of your verdicts because you have not heard
21 from any witnesses yet. What I would like to ask you is
22 this: That type of killing, the murder of a child under
23 the age of six, would you consider that as the type of
24 murder that could be, in your own opinion, a death
25 penalty-type case, depending on the facts of that case?
Sandra M. Halsey, CSR, Official Court Reporter

3218

1 A. It could be.
2 Q. Okay. The way the procedure works in
3 this case is the trial will be divided into two parts.
4 The guilt/innocence stage is what we have to prove, of
5 course, in the first part. We have to prove that
6 indictment, if we don't do that, everyone goes home. If
7 we do prove that indictment beyond a reasonable doubt,
8 then we move to the punishment stage.
9 And in the punishment stage of a
10 capital case you might hear more background evidence,
11 such as you mentioned, a long criminal history, you would
12 get to hear that, or bad character evidence, you could
13 hear that. Vice versa, if they have had no criminal
14 history, obviously, you would hear that, or good
15 character witnesses, you could hear that. But at the
16 close of that testimony, the jury gets these questions.
17 The first question, and I will go over
18 these in a little more detail, but the first question
19 basically is a "yes" or "no" question that the State has
20 to prove. They have to prove, "Would the defendant be a
21 continuing danger to society?" If we get a "yes" answer
22 to that, if we can prove that, we move to this last
23 question, which is lengthier.
24 It's the mitigation question, which it
25 allows the jurors to review all the evidence, the murder
Sandra M. Halsey, CSR, Official Court Reporter
3219

1 itself and the background evidence, and decide if they
2 think there's a mitigating circumstance in which they
3 think a life sentence should be imposed rather than a
4 death sentence. If they feel that way they will answer
5 it "yes," if they don't think there is that mitigating
6 evidence, they will answer "no." But a "yes" answer to
7 the first question and a "no" answer to the second, the
8 Judge has no discretion, he would sentence the defendant
9 to death. If there are any other answers, it would be a
10 life sentence.
11 A. Go through that one more time. Okay?
12 Q. Okay. A "yes" answer to a continuing
13 danger, then a "no" answer on the second question, if
14 there is no mitigating evidence, then the Judge would
15 sentence the defendant to death. If they are answered
16 any other way, "no" they are not a continuing danger, or
17 "yes" there is a mitigating circumstance for a life
18 sentence, then the Judge would sentence the defendant to
19 life. But he sentences just according to how the jurors
20 answer those questions. But those are the only two
21 possible outcomes, once a person has been found guilty of
22 capital murder, death or life.
23 And you probably know from reading the
24 newspapers that the method of execution in Texas is by
25 lethal injection, and that those executions do take place
Sandra M. Halsey, CSR, Official Court Reporter
3220

1 in Texas. There are many states that have the death
2 penalty on the books, but they never impose it. Texas
3 has had over 100 executions, it does take place.
4 You have told me that,
5 philosophically, you think the death penalty is necessary
6 in certain types of cases. What I want to know, as best
7 you know yourself, if we can prove this case to you
8 beyond a reasonable doubt, prove these issues to you,
9 would you be able to return answers that would result in
10 the execution of this defendant?
11 A. I think so. I don't think it's
12 something anybody would want to do, probably, or look
13 forward to it at all, you know. It would be something
14 that is probably a little bit difficult, but I don't know
15 anything about this case. I mean literally --
16 apparently, it's been all over the newspapers, but I
17 missed it somewhere.
18 Q. Okay.
19 A. It would be difficult for me to answer
20 that without hearing what went on or anything, because I
21 really don't know.
22 Q. Well, that is perfect for us if you
23 haven't heard anything.
24 A. Well, I don't know how I missed it,
25 because I read a lot of newspapers, but I guess I did
Sandra M. Halsey, CSR, Official Court Reporter
3221

1 somewhere along the line.
2 Q. I take it from your answer then that
3 you are not here volunteering, but if we put you on the
4 jury, you can listen to the evidence and answer those
5 questions if it's proven to you?
6 A. Sure, I think so.
7 Q. As far as the first part of the trial
8 goes, let me talk about a couple things. You might be
9 hearing a lot of what we call circumstantial evidence.
10 I'm sure you have heard that term before. Circumstantial
11 evidence is anything but an eyewitness to a case. If you
12 left the courthouse today and were robbed, police caught
13 the robber and you identified him, you would be the
14 direct evidence to a case, the eyewitness.
15 Any other evidence is circumstantial
16 evidence. We are talking: Fingerprints, DNA evidence,
17 hair, fiber, what was found at the crime scene, how that
18 might link the defendant to the crime, what was said by
19 the defendant, those things, that is all circumstantial
20 evidence.
21 Now in a murder case, many times, the
22 State has to rely solely on circumstantial evidence. You
23 have got the victim, and you have got the accused killer,
24 no eyewitness. And, again, we can't go into the facts.
25 Some people have a prejudice against circumstantial
Sandra M. Halsey, CSR, Official Court Reporter
3222

1 evidence or they would require an eyewitness. I just
2 want to know if you could convict someone on
3 circumstantial evidence alone, if you believe that
4 evidence beyond a reasonable doubt?
5 A. I think so.
6 Q. Okay. Another topic --
7 A. I'm not sure, because I don't know
8 what the circumstantial evidence is.
9 Q. Sure.
10
11 THE COURT: These questions all, sir,
12 assume you believe the evidence.
13 THE PROSPECTIVE JUROR: Yes, sir.
14 THE COURT: They are not -- neither
15 side is trying to pin you down.
16 THE PROSPECTIVE JUROR: Yes, sir.
17
18 BY MR. TOBY L. SHOOK:
19 Q. We can't pin you down. Another area I
20 want to talk about is motive. In any murder case the
21 topic of motive comes up, the reason for the killing.
22 Once the evidence is produced at trial, the motive might
23 be very clear to everyone in the courtroom. You know,
24 it's no secret to anybody.
25 Or, other times, no one may know what
Sandra M. Halsey, CSR, Official Court Reporter
3223

1 the motive is, you know. I could pull out a gun right
2 now and execute Ms. Wallace and laugh about it, put it
3 down, but no one may ever know why I did it.
4 It doesn't make her any less dead,
5 obviously, or me any less guilty. And then other times
6 you may have several motives out there, and everyone
7 might have their own opinion.
8 But the law says this: That the State
9 is not required to prove motive to obtain a guilty
10 verdict. You notice when you read that indictment, it
11 didn't say in there anywhere why the crime occurred.
12 Again, it might be very apparent, but
13 it is not one of the hurdles we have to get over. Could
14 you follow that law?
15 A. If that is the law, sure.
16 Q. Okay. And it might be apparent, or it
17 might be several motives out there, and, obviously,
18 everyone wants to know as much as they can about a case,
19 but it's not one of the elements we have to prove.
20 A. Okay.
21 Q. As far as these questions go, let me
22 touch on those for a moment. Again, you don't get to
23 these unless the defendant has been found guilty. And
24 this first question is presumed to be answered "no." We
25 have to overcome that presumption. Just like when you
Sandra M. Halsey, CSR, Official Court Reporter
3224

1 start out a trial the defendant is presumed to be
2 innocent. Okay?
3 It starts out with a "no," we have to
4 prove it should be "yes." Again, we use the facts of the
5 offense itself, and then any background on the defendant
6 that might be useful.
7 The question asks, or if you could,
8 just take a moment. I don't know if you read it a while
9 ago.
10 A. I read it.
11 Q. Okay. You know, it's asking the juror
12 to make a prediction for the future.
13 A. Uh-huh. (Witness nodding head
14 affirmatively).
15 Q. You said, I think yourself, in your
16 own definition of what you thought might be a good case,
17 is a person with a violent history, obviously, and then
18 also a brutal crime. If there is a violent history,
19 obviously, that could come in to that portion of the
20 trial.
21 Now, the statute does not require that
22 someone have a long, violent history for someone to be
23 prosecuted for the death penalty. You realize that?
24 A. Yes.
25 Q. It might be a situation where you just
Sandra M. Halsey, CSR, Official Court Reporter
3225

1 have the crime itself to look at in answering that
2 question. Again, I can't preview the case for you or
3 anything like that, but is your mind open to the fact
4 that, perhaps, you may have only the facts surrounding
5 the crime, the brutality, or maybe what lead up to it, or
6 any remorse shown, things like that, in order for it to
7 give you enough information to answer that question?
8 A. I think so. Well, I don't know
9 anything about it, so I can't say for sure, but based on
10 what you said, I think so.
11 Q. Okay. The definitions in both of
12 these question are going to be up to you and the other
13 jurors. And like in the guilt/innocence stage, the Judge
14 will give you plenty of legal definitions. But the
15 legislature said that these definitions and their meaning
16 will be left up to you and the other jurors. So, I want
17 to go over a couple of them with you.
18 We have to prove in the first question
19 that beyond a reasonable doubt there is a probability
20 that the defendant would commit criminal acts of
21 violence. When you see the word "probability" used in
22 that sentence, what does it mean to you?
23 A. Oh, I would say, probability to me,
24 I'm not sure about in this case, would mean over a 50
25 percent chance. I would say in something like this
Sandra M. Halsey, CSR, Official Court Reporter
3226

1 though, I would consider probability may be a 25 percent
2 chance, it wouldn't be 50-50, but you don't want to take
3 any chances, I guess is what I am saying.
4 Q. Sure. We have to prove that they
5 would commit criminal acts of violence. When you see the
6 words "criminal acts of violence," what does that mean to
7 you?
8 A. Well, criminal acts of violence to me
9 means that somebody would be a threat to another person,
10 would commit bodily harm to another person or possibly
11 property.
12 Q. Okay. And then society, we have to
13 prove that they would constitute a continuing threat to
14 society, what is your definition of society?
15 A. Well, society is everyone. I mean,
16 everyone makes up society.
17 Q. Would that include then people in
18 prison?
19 A. Sure.
20 Q. Prisoners, guards, administrators?
21 A. Sure.
22 Q. All right. Now, if you answer "yes,"
23 if the State proves that first question "yes," then you
24 go to the second question. That is the mitigation
25 question. Have you had time to read that one yet? It's
Sandra M. Halsey, CSR, Official Court Reporter
3227

1 rather lengthy.
2 A. Just a second.
3 Q. Okay.
4 A. Okay.
5 Q. That is the last question you get to,
6 and neither side has the burden of proof on this
7 question. Okay? That is just kind of, you review
8 everything. And no one can tell you what mitigating
9 evidence is. Again, that is going to be up to you and
10 the other jurors. You are not required to sit there and
11 imagine what mitigating circumstances are. In fact, you
12 don't have to agree with the other jurors. One might
13 think one circumstance is mitigating, another juror might
14 think another one is.
15 What you have to be able to do is just
16 keep your mind open to that type of evidence. If you
17 think you see mitigating evidence in the trial, and you
18 think it reaches a level where a life sentence should be
19 imposed, then you can answer that question "yes."
20 And vice versa if you don't see it, or
21 it doesn't reach the level where a life sentence should
22 be imposed, then you would answer "no." It's kind of a
23 safety net or a safety valve. It's the last question.
24 It allows the jurors through the form of some evidence
25 they see to spare the life of the defendant, if they
Sandra M. Halsey, CSR, Official Court Reporter
3228

1 think that that is the right thing to do. Do you think
2 you can keep your mind open to that type of question?
3 A. Yes, sir.
4 Q. Okay. Does it seem like a fair
5 question to you in this type of case?
6 A. Yes, sir.
7 Q. Okay. And then the bottom line is,
8 obviously, there is no automatic answers to any of those
9 questions. You just have to review all the evidence that
10 you heard and then make your decisions. That last
11 question you get to, you don't get to it until you have
12 found the defendant guilty, you have found they are a
13 continuing danger, then you look at the mitigating
14 evidence.
15 Judge Tolle went over some rules that
16 apply and I am sure you are familiar with these because
17 they apply in every criminal case. The presumption of
18 innocence, you can follow that. Give this defendant the
19 presumption of innocence?
20 A. Yes.
21 Q. Okay. The burden of proof. The State
22 has that, we have to prove the case beyond a reasonable
23 doubt. That also means that the defense is under no
24 legal obligation to prove their client's innocence to
25 you. Do you agree with that?
Sandra M. Halsey, CSR, Official Court Reporter
3229

1 A. Yes, sir.
2 Q. I'm sure they will probably do their
3 best, but they can't be under an obligation to you. Can
4 you follow that rule and require the State to prove this
5 to you beyond a reasonable doubt?
6 A. Yes, sir.
7 Q. Okay. The Judge told you the Fifth
8 Amendment rights. If anyone wants to testify, no one can
9 force them. However, if you choose not to testify, the
10 jurors can't use that against you as evidence. Can you
11 follow that rule of law?
12 A. Yes.
13 Q. The Judge also told you the indictment
14 is no evidence of guilt. The fact that anyone has been
15 arrested is no evidence of guilt. The fact that we're
16 even going through this proceeding is no evidence. You
17 have got to wait for the witnesses to testify.
18 A. Yes, sir.
19 Q. Now, the trial is going to begin on
20 January 6th. We can't tell you how long it will last for
21 sure, but we can assure you it is not going to be like
22 O.J. Simpson. In fact, the best guess we can get is
23 about two weeks.
24 It might be less than that. Judge
25 Tolle goes from 9:00 in the morning until 5:00 in the
Sandra M. Halsey, CSR, Official Court Reporter
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1 evening. You will get to go home at night. The only
2 times you would ever be sequestered is if you were in
3 deliberations into the evening hours. Okay?
4 But it is not going to be down here
5 for months on end or anything like that.
6 A. Okay.
7 Q. Well, you have been real cooperative
8 with me, sir. Do you have any questions over anything I
9 have gone over?
10 A. No, sir.
11 Q. Okay. Well, I appreciate your
12 cooperation.
13
14 VOIR DIRE EXAMINATION
15
16 BY MR. DOUGLAS D. MULDER:
17 Q. Mr. Hurt, as the Judge told you my
18 name is Doug Mulder, and I just want to visit with you a
19 little bit. Kind of get to know you a little bit better
20 and talk to you about some of the legal concepts and some
21 of the principles of law that you, as a juror, will be
22 dealing with. I'm not going to focus much on the special
23 issues there. I think you understand those, and I don't
24 think we're going to get that far.
25 The indictment that you have got up
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1 there, the Judge will tell you -- first of all, you don't
2 have to know any law to serve on a jury. You are
3 probably a whole heck of a lot better off if you don't.
4 A. Okay.
5 Q. Judge Tolle will give you all the law
6 that is applicable to this case and a written instrument
7 called the Charge and you will have that when you go back
8 to the jury room and deliberate and it will define
9 everything and give you all the boundaries and parameters
10 of the case, legal-wise.
11 He will tell you in that written
12 Charge that the indictment is no evidence of guilt. That
13 it is simply the pleading and paper by which the
14 defendant is brought into court. It does basically two
15 things: It informs you as a juror of what the State must
16 prove, and it advises Darlie of the charges against her
17 so that she can prepare a defense. And that's all it
18 does. Okay?
19 A. Yes, sir.
20 Q. The law says that she, at this stage,
21 is presumed to be innocent. You know, you walk into a
22 well-lighted courtroom, almost sterile laboratory
23 conditions, see a Judge up there with robe on, and the
24 prosecutors here and the defendant over here, she has her
25 lawyers with her, you know, it's almost natural to think
Sandra M. Halsey, CSR, Official Court Reporter
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1 to yourself, you know, I wonder what she has done, or I
2 wonder what he has done. I mean, it's just natural.
3 The law says that she is presumed to
4 be innocent at this time. And I am not really concerned
5 with you presuming her to be innocent, that is a pretty
6 difficult task many times. I just don't want you to
7 presume that she is guilty simply because she is here.
8 Okay?
9 A. Yes, sir.
10 Q. I just want to start out even. Fair
11 enough?
12 A. Yes, sir.
13 Q. And we will hold our own. If we can
14 just start out even. If you don't presume that she is
15 guilty because she is here, if you will just let us start
16 out even, that's all I want. I don't want a head start.
17 Okay?
18 A. Yes, sir.
19 Q. The law says that since they have done
20 the accusing, they have to do the proving. The burden of
21 proof is on the State to establish the guilt of the
22 accused beyond all reasonable doubt. The law says that
23 if you have a reasonable doubt, you have got to resolve
24 it in favor of the defendant. Does that make sense to
25 you?
Sandra M. Halsey, CSR, Official Court Reporter
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1 A. Absolutely.
2 Q. Okay. Another way of explaining this,
3 I guess, if you and I were to draw up the rules that
4 would govern the trial of a criminal case, we would,
5 first of all, want a jury to reach a decision and make
6 some resolution of the case, right?
7 A. Yes, sir.
8 Q. And we would probably, in the course
9 of our discussions, realize that you have 12 people from
10 12 different walks of life and they are going to view
11 things a little bit differently and they are going to
12 have some doubts.
13 Doubts based on reason perhaps. And
14 we are going to have to have a way for them to resolve
15 these doubts, you know, to move on and reach a decision.
16 And we might, in the course of our discussions, figure
17 that the fairest way to do that would be to make a list
18 of all the jurors' reasonable doubts, there may be one,
19 there may be six, or there may be 26, and number them,
20 and then give the State the benefit of the odd numbered
21 doubts, and the give the defendant the benefit of the
22 even numbered doubts.
23 And we may say, "Well, that is the
24 fair way to do it." The law says no.
25 The law says if you as a juror have a
Sandra M. Halsey, CSR, Official Court Reporter
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1 reasonable doubt, you must resolve that doubt in favor of
2 the defendant.
3 Judge Tolle is the judge of the law.
4 If he makes a mistake with respect to the law, we appeal
5 it to a higher court and we can correct it. Okay?
6 A. Yes, sir.
7 Q. No appeal on the facts. The facts are
8 going to be what you and the other 11 jurors decide they
9 are. And I guess that is why you have to be so
10 dead-level certain, you know, about what those facts are.
11 And if you have a reasonable doubt as
12 to any of the facts, you resolve those doubts in favor of
13 the defendant.
14 You are telling me you can do that?
15 A. Yes, sir.
16 Q. Okay. Now, as far as procedure goes,
17 the State goes first. They are the ones that brought the
18 charge, and so the law says that they go first with the
19 evidence. They also, when it comes time to make the
20 summations to the jury, they argue first, and they argue
21 last.
22 We're sandwiched in between, same
23 amount of time, but we argue between their arguments, and
24 they go first with their evidence because they've brought
25 the charges.
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1 If I had my druthers, I would prefer
2 to go first. I think first impressions are mighty
3 important. But, you know, we can't change the law. So
4 what I have got to make sure you are willing to do, is to
5 keep an open mind until we get a chance at bat, until we
6 get a chance to bring forward our evidence. Can you do
7 that?
8 A. Yes, sir.
9 Q. Okay. No question about that?
10 A. No question.
11 Q. All right. You understand, if you
12 made up your mind just based on what they did, then that
13 wouldn't be fair to us, we might as well just fold our
14 tent right now, because they go first.
15 A. Yes, sir. I understand that.
16 Q. All right. Anything you would like to
17 ask us about this?
18 A. No, sir, I can't think of anything.
19 Q. You know where we're coming from? You
20 give us a fair shake, we're not going to get there.
21 A. Yes, sir.
22 Q. To these special issues.
23 A. Yes, sir.
24 Q. That's our position.
25 A. Yes, sir.
Sandra M. Halsey, CSR, Official Court Reporter
3236

1 Q. She is going to enter a plea of not
2 guilty, and I am expecting a jury to find her not guilty.
3 A. Yes, sir.
4 Q. Do you know of any reason, Mr. Hurt,
5 why you can't be perfectly fair to both sides?
6 A. No, sir.
7 Q. Give us both a fair shake?
8 A. Well, I can't think of any reason.
9 Q. Good.
10 A. It's not something I want to do.
11 Q. I understand.
12 A. I can tell you that right now.
13 Q. Well, you know, it's been my
14 experience that people that want to serve on juries
15 probably don't make the best jurors.
16 A. Well, I'm not sure I want to be on
17 this one, I can tell you that.
18 Q. I understand. I have places I would
19 rather be, too.
20 A. Well, it's not anything that I have
21 any other place to be, it's just that I'm not sure I want
22 the responsibility of something like this.
23 Q. Sure.
24 A. Particularly on a volunteer basis.
25 Q. Sure. But you are telling me that you
Sandra M. Halsey, CSR, Official Court Reporter
3237

1 would be just as fair as you possibly could?
2 A. Yes, sir.
3 Q. To both sides?
4 A. Yes, sir.
5 Q. I believe you can do that. Thank you.
6
7 MR. DOUGLAS D. MULDER: Judge, that's
8 all we have.
9 THE COURT: All right. Could you step
10 outside briefly, please. We will call you back in a
11 moment.
12
13 (Whereupon, the prospective
14 juror was excused from the
15 room, and the following
16 proceedings were held,
17 outside of his presence
18 as follows:)
19
20 THE COURT: In exercising its freedom
21 of choice, the State will accept the juror?
22 MR. TOBY L. SHOOK: Yes, sir.
23 THE COURT: And the defense?
24 MR. DOUGLAS D. MULDER: Judge, we
25 would be pleased to have the juror.
Sandra M. Halsey, CSR, Official Court Reporter
3238

1 THE COURT: All right. Thank you. If
2 you can have Mr. Hurt step back in, please.
3
4 (Whereupon, the prospective
5 juror returned to the
6 room and the proceedings
7 were resumed as follows:)
8
9 THE COURT: Mr. Hurt, you have been
10 accepted by both sides. You will be alternate juror
11 number 2.
12 THE JUROR: Yes, sir.
13 THE COURT: What that means is this:
14 The first two alternates are the ones that are likely to
15 be picked if anybody goes down.
16 The number one subs in, the second
17 person goes down, then you sub in.
18 THE JUROR: Yes, sir.
19 THE COURT: We appreciate it very
20 much. I know you will discuss this with your wife, we
21 understand that. But I would appreciate it very much if
22 you all would not say anything else outside, particularly
23 to members of the press about this until the trial is
24 over.
25 THE JUROR: No, I won't say anything.
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3239

1 THE COURT: When the trial is over,
2 you may talk or not talk, as you see fit.
3 THE JUROR: Yes, sir.
4 THE COURT: All right. We do have a
5 gag order in effect. I can impose monetary sanctions or
6 jail time penalties. I'm not threatening you or anything
7 like that, I just have to tell you.
8 THE JUROR: Yes, sir.
9 THE COURT: Well, in the meantime,
10 happy landings and good take-offs, and all that.
11 THE JUROR: Well, it's not something I
12 am looking forward to.
13 THE COURT: I know what you mean.
14 That's -- like I say, both sides liked that, that's why
15 you will be a good one. Thank you, sir.
16 THE JUROR: Yes, sir.
17 THE COURT: All right. Is the next
18 one out there? The next potential juror?
19 THE BAILIFF: Ms. Kaufhold is out
20 here.
21 THE COURT: All right. Let's bring
22 Ms. Kaufhold in. This is number 90 on our list, 262 on
23 the master list.
24 Ma'am, what is the correct
25 pronunciation of your last name?
Sandra M. Halsey, CSR, Official Court Reporter
3240

1 THE PROSPECTIVE JUROR: Kaufhold.
2 THE COURT: Kaufhold, all right. This
3 is Lilia, L-I-L-I-A, Kaufhold, K-A-U-F-H-O-L-D. If you
4 could raise your right hand, ma'am?
5 Do you solemnly swear or affirm that
6 you will true answers make to all questions propounded to
7 you concerning your qualifications as a juror, so help
8 you God?
9
10 (Whereupon, the prospective
11 juror was duly sworn by the
12 Court to true answers make
13 to the questions propounded,
14 concerning qualifications, after
15 which time, the proceedings were
16 resumed as follows:)
17
18 THE PROSPECTIVE JUROR: I do.
19 THE COURT: All right. Let's take a
20 brief break. I have to call about the jurors on Monday.
21 Do you think it would be safe to cancel?
22 MR. RICHARD C. MOSTY: Well, I just
23 don't know, Judge.
24 THE COURT: Okay. Well, I appreciate
25 it.
Sandra M. Halsey, CSR, Official Court Reporter
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1 MR. RICHARD C. MOSTY: Yes, Judge, I
2 think you can let the jury go.
3
4 (Whereupon, a short
5 recess was taken,
6 after which time,
7 the proceedings were
8 resumed on the record,
9 in the presence and
10 hearing of the defendant,
11 being represented by her
12 attorney, as follows:)
13
14 THE COURT: Thank you. All right.
15 Ladies and gentlemen, Ms. Kaufhold,
16 you are a potential alternate juror in this case. We
17 have already completed a jury pick, but we are going to
18 select four alternates. You will be alternate Number 3
19 if you are selected.
20 An alternate means you will sit
21 through the entire trial and listen to it. And if
22 anybody in the jury box is unable to continue, we will
23 put you in order of one, two and three. If nobody has
24 been eliminated by the time the case is over, and it goes
25 to the jury for deliberations, you will be excused at
Sandra M. Halsey, CSR, Official Court Reporter
3242

1 that time.
2 Again, this is the Darlie Routier
3 matter. Mrs. Routier is the young lady sitting right
4 there between her attorneys, her Kerrville attorney, Mr.
5 Richard Mosty, and the two Dallas attorneys, Mr. Doug
6 Mulder, and Curtis Glover, and she is represented by
7 Preston Douglass, another Kerrville attorney also.
8 The State today is represented by two
9 Dallas County District Attorneys, Toby Shook and Sherri
10 Wallace.
11 You are going to be asked some
12 questions now, there are no wrong answers. You will not
13 offend anybody by the way you feel or any answer you
14 have, what you say will not go beyond this room.
15 So, when the questions are asked if
16 you will just be very candid, we will appreciate that.
17 Please say yes or no as opposed to uh-huh, huh-huh,
18 because Ms. Halsey is taking all this down.
19 Mr. Shook.
20 MR. TOBY L. SHOOK: Thank you, Judge.
21
22
23
24
25
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3243

1 Whereupon,
2
3 LILIA KAUFHOLD,
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. Kaufhold, I see on your
14 questionnaire that you have seen or read something about
15 the facts, TV, newspaper, and radio; is that right?
16 A. Yes, sir.
17 Q. Can you just relate to us what that
18 is?
19 A. You know before I was picked I read
20 where it stated that the trial was moved here and what it
21 was about.
22 Q. Did they go into any of the facts, did
23 you read any of the facts, what they were saying
24 happened?
25 A. Yes.
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3244

1 Q. What did you read?
2 A. Where it stated that someone had come
3 in, but it showed where there weren't any footprints or
4 anything at the window and it didn't show where the
5 window had been tampered with.
6 Q. Okay. I want to turn -- well, the
7 last question we get into about being a fair juror on the
8 questionnaire, you checked, "I don't know even with the
9 evidence if I could be fair. In my heart I felt the
10 person was guilty."
11 Were you talking about Mrs. Routier
12 when you said that?
13 A. Yes.
14 Q. Okay. From what you have read and
15 heard on TV, have you formed an opinion in your mind as
16 to the guilt?
17 A. I would say yes.
18 Q. Okay. And has that opinion of guilt
19 reached a conclusion in your mind so that you think it
20 would affect your verdict in this case, if you were on
21 the jury?
22 A. I don't know.
23 Q. Okay. You see, it's all right to
24 read, especially before your jury service. You have not
25 read anything after your jury service about this case?
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3245

1 A. I have not had time.
2 Q. Okay. To form opinions about what you
3 read, obviously, but it's another thing to sit as a juror
4 and listen to the evidence. What we have to have is
5 jurors that would just listen to the evidence as it came
6 in. You can't go in, you know, and have maybe what you
7 have read outside the courtroom influence your verdict of
8 guilt.
9 Now, you know yourself best, so
10 everyone here is going to be interested in your answers
11 about that. You mentioned it here on your questionnaire,
12 so I know it was on your mind then when you were down for
13 our large voir dire. So, we just want to know if you
14 think this conclusion that you have reached is going to
15 influence your verdict?
16 A. I think it would.
17 Q. Okay.
18 A. But I don't know until I sat through
19 it maybe.
20
21 THE COURT: Do you submit the juror?
22 MR. DOUGLAS D. MULDER: Yeah.
23 THE COURT: Thank you very much,
24 ma'am. We appreciate your coming and appreciate your
25 candor.
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3246

1 You will be excused from further jury
2 service. If you could not talk about anything that went
3 on here in this case until the trial is all the way over
4 with, we would be most appreciative. Thank you.
5 All right. That was a defense motion
6 for cause. The defense has no objection to me excusing
7 that witness, do you?
8 MR. DOUGLAS D. MULDER: I didn't hear
9 you, Judge. I was attending to other matters.
10 THE COURT: Do you have any objection
11 to me granting the State's (sic) motion for cause? You
12 didn't want to examine her, did you?
13 MR. DOUGLAS D. MULDER: No, thank you
14 very much.
15 THE COURT: All right.
16 THE BAILIFF: There is no one right
17 now.
18 THE COURT: All right. Everybody sit
19 tight. Let's take a short recess while we're waiting for
20 the next juror.
21
22 (Whereupon, a short
23 recess was taken,
24 after which time,
25 the proceedings were
Sandra M. Halsey, CSR, Official Court Reporter
3247

1 resumed on the record,
2 in the presence and
3 hearing of the defendant,
4 being represented by her
5 attorney, as follows:)
6
7 THE COURT: All right. This is juror
8 number 108 on our list, and juror number 303 on the jury
9 list.
10 This is Diane, D-I-A-N-E, Castillo,
11 C-A-S-T-I-L-L-O. Is that your name, ma'am?
12 THE PROSPECTIVE JUROR: Uh-huh.
13 (Witness nodding head affirmatively.)
14 THE COURT: If you will raise your
15 right hand, please?
16 Do you solemnly swear or affirm that
17 you will true answers make to all questions propounded to
18 you concerning your qualifications as a juror, so help
19 you God?
20
21 (Whereupon, the prospective
22 juror was duly sworn by the
23 Court to true answers make
24 to the questions propounded,
25 concerning qualifications, after
Sandra M. Halsey, CSR, Official Court Reporter
3248

1 which time, the proceedings were
2 resumed as follows:)
3
4 THE PROSPECTIVE JUROR: I do.
5 THE COURT: Ma'am, I just have to ask
6 you one thing first, and I know that you are totally
7 fluent in English, but I do have to ask this. You do
8 read, write and speak the English language fluently. Is
9 that not so?
10 THE PROSPECTIVE JUROR: Uh-huh.
11 (Witness nodding head affirmatively.)
12 THE COURT: Is that a yes?
13 THE PROSPECTIVE JUROR: Yes.
14 THE COURT: If you could answer yes or
15 no. Ms. Halsey is taking all this down.
16 THE PROSPECTIVE JUROR: Okay. Yes.
17 THE COURT: Okay. You don't need a
18 Spanish interpreter, obviously, for these proceedings?
19 THE PROSPECTIVE JUROR: No.
20 THE COURT: We just have to clear that
21 up to start with. Ms. Castillo, you are a potential
22 alternate juror in this case. We have already selected
23 12 jurors, and two alternates. You will be a potential
24 alternate juror number 3. An alternate juror is someone
25 who becomes a full juror if one of the first 12 selected
Sandra M. Halsey, CSR, Official Court Reporter
3249

1 cannot continue. You will listen to the entire trial.
2 THE PROSPECTIVE JUROR: Okay.
3 THE COURT: That is what you will do.
4 You will be in there as a juror listening to the entire
5 trial.
6 THE PROSPECTIVE JUROR: Okay.
7 THE COURT: If you have not been moved
8 into the regular jury by the end of the testimony and at
9 the end of all the arguments when they are going to
10 deliberate, then you will be discharged. But until such
11 time you will be a regular juror.
12 THE PROSPECTIVE JUROR: Okay.
13 THE COURT: Now, this is in the Darlie
14 Routier matter. And Mrs. Routier is the young lady
15 sitting there between her two attorneys. She has two
16 attorneys from Dallas, Curtis Glover and Doug Mulder, and
17 two attorneys from here, Preston Douglass and Richard