Volume 43

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 REPORTERS RECORD
14 JURY TRIAL
15 VOL. 43 OF 53 VOLS.
16 January 28, 1997
17 Tuesday
18
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4399

1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Tuesday, the 28th day of
5 January, 1997, in the Criminal District Court Number 3 of
6 Dallas County, Texas, the above-styled cause came on for
7 a jury trial before the Hon. Mark Tolle, Judge of the
8 Criminal District Court No. 3, of Dallas County, Texas,
9 with 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
4400

1
2 A P P E A R A N C E S
3
4
5 HON. JOHN VANCE
6 Criminal District Attorney
7 Dallas County, Texas
8
9 BY: HON. GREG DAVIS
10 Assistant District Attorney
11 Dallas County, Texas
12
13 AND:
14 HON. TOBY SHOOK
15 Assistant District Attorney
16 Dallas County, Texas
17
18 AND:
19 HON. SHERRI WALLACE
20 Assistant District Attorney
21 Dallas County, Texas
22
23 APPEARING FOR THE STATE OF TEXAS
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4401

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
4402

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
4403

1 P R O C E E D I N G S
2
3 January 28th, 1997
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, but
15 outside the presence of the
16 jury, as follows:)
17
18
19 THE COURT: Mr. Mosty, are you ready?
20 MR. RICHARD C. MOSTY: Well, that
21 depends on what we're getting ready to do.
22 THE COURT: Well. All right. Where
23 is Mr. Mulder?
24 MR. RICHARD C. MOSTY: I don't know,
25 your Honor.
Sandra M. Halsey, CSR, Official Court Reporter
4404

1 THE COURT: All right. Let the record
2 reflect that these proceedings are being held outside the
3 presence of the jury and all parties in the trial are
4 present.
5 Mr. Mosty, you will be representing
6 Mrs. Routier for this hearing. It's past 8:30 and I have
7 told everyone to be here at 8:30.
8 MR. RICHARD C. MOSTY: Yes, sir, I
9 will represent Mrs. Routier.
10 THE COURT: I figured that is what we
11 will do.
12 MR. RICHARD C. MOSTY: If that is okay
13 with the Court?
14 THE COURT: That is fine with the
15 Court. Fine with the Court. All right. The purpose of
16 this hearing today is we're discussing the microphones
17 that were put out at the cemetery. And Officer -- let
18 the record reflect that Officer Patterson is present, and
19 he has been appointed an attorney for this purpose, Mr.
20 Albert Patillo, from Kerrville; and Officer Frosch has
21 been appointed Mr. Steve Pickell, P-I-C-K-E-L-L, of
22 Kerrville.
23 And, Mr. Patillo, you have conferred
24 with your client?
25 MR. PATILLO: Yes, I have, your Honor.
Sandra M. Halsey, CSR, Official Court Reporter
4405

1 THE COURT: And, what is the result of
2 that conference?
3 MR. PATILLO: We will decline to
4 testify further in this matter. And my client, on my
5 advice, will take the Fifth.
6 THE COURT: As regards to the
7 microphones at the cemetery?
8 MR. PATILLO: Yes, sir.
9 THE COURT: All right. Will you, have
10 Mr. Pickell, and his client, step in, please.
11 And, let the record reflect that
12 Officer Frosch -- and I am embarrassed, I have forgotten
13 your first name.
14 OFFICER CHRIS FROSCH: Chris.
15 THE COURT: Officer Chris Frosch,
16 F-R-O-S-C-H, is present, and with his attorney, Mr. Steve
17 Pickell.
18 And you have conferred with your
19 client, Mr. Pickell?
20 MR. PICKELL: Yes, your Honor.
21 THE COURT: Okay. What is the result
22 of that conference?
23 MR. PICKELL: Your Honor, Detective
24 Frosch would assert his Fifth Amendment right.
25 THE COURT: Concerning the testimony
Sandra M. Halsey, CSR, Official Court Reporter
4406

1 as regards to the recording devices or the microphones,
2 or whatever, that were put up at the cemetery, and only
3 regards that, concerning only that portion; is that
4 correct?
5 MR. PICKELL: That is correct, your
6 Honor.
7 THE COURT: All right. Fine.
8 Anything, Mr. Davis?
9 MR. GREG DAVIS: Yes, sir. At this
10 time, the State would indicate that we believe this
11 testimony is not relevant, it's improper impeachment.
12 And, again, I'm talking about the subject of the mike on
13 the grave site. And we would ask that the Court instruct
14 Mr. Mulder not to go into these matters any further in
15 front of this jury, because again, we feel the
16 prejudicial effect here, of having to inform the jury
17 that these officers have taken the Fifth Amendment.
18 Again, we believe that the matters are
19 irrelevant and that they are improper impeachment.
20 THE COURT: The State is not going to
21 use anything that came out of that?
22 MR. GREG DAVIS: That is correct. We
23 are not going to go into that matter. We're not going to
24 offer any of those recordings, video or otherwise, so we
25 did not intend to talk about that matter in front of this
Sandra M. Halsey, CSR, Official Court Reporter
4407

1 jury.
2 THE COURT: Was there any exculpatory
3 material in that?
4 MR. GREG DAVIS: No, sir, but in all,
5 in caution, I did turn over those matters to the defense.
6 THE COURT: So the defense has those
7 tapes? You gentlemen have those tapes?
8 MR. DOUGLAS MULDER: Judge, they are
9 the ones that first went into this matter. We didn't go
10 into anything at the grave site. They did.
11 THE COURT: All I want to know right
12 now, Mr. Mulder, is: Do you have those tapes?
13 MR. DOUGLAS MULDER: Well, I have some
14 tapes. I don't know whether I have those.
15 THE COURT: Did you listen to them?
16 MR. DOUGLAS MULDER: Yes, sir.
17 THE COURT: When were they given to
18 the defense?
19 MR. DOUGLAS MULDER: Well, we didn't
20 get into the case until --
21 MR. GREG DAVIS: Probably sometime in
22 November, I believe.
23 MR. DOUGLAS MULDER: So, if it's like
24 everything else, it came in at the last minute or
25 sometime in January.
Sandra M. Halsey, CSR, Official Court Reporter
4408

1 MR. RICHARD C. MOSTY: Well, let me
2 describe that, your Honor. There is a video tape, that
3 is obviously taken from a vehicle near the grave site,
4 that you can see it panning on various people. And, then
5 you hear the audio.
6 Sometimes the audio -- it depends on
7 how close they were to the mike, on whether or not you
8 could hear it. But that video is -- it starts off with
9 some gentleman out there watering the grave sites,
10 apparently an employee, and is, I am guessing, it covers,
11 maybe, as much as 14 hours that day.
12 THE COURT: Well, then the video
13 does --
14 MR. RICHARD C. MOSTY: So it's hard to
15 say, and our copy -- I don't know what the State's copy
16 is like -- our copy is not all so great on the video
17 part.
18 MR. DOUGLAS MULDER: Judge, I would
19 like to point out to the Court, that I think felonious
20 conduct on the part of the police officers during an
21 investigation is always material.
22 It goes to the integrity of the
23 investigation. And, you know, whether they like it or
24 not, they are the ones that opened this up. We didn't go
25 into anything at the grave site. The prosecution did.
Sandra M. Halsey, CSR, Official Court Reporter
4409

1 And, you know, they have to take the
2 bad with the good. They were smiling and telling jokes
3 when this video was on for the jury. And now they have
4 got to take the corresponding responsibility of what this
5 has brought.
6 So, any time the investigation has
7 been compromised by felonious conduct on the part of the
8 officers, it's always admissible to the jury. And, I
9 would certainly caution the Court, or remind the Court,
10 that they can't take the Fifth on part of their
11 testimony.
12 They are like everybody else when it
13 comes to getting on the witness stand. They can't assert
14 the Fifth just to a certain matter. And say, "I don't
15 want to talk about that, and I want to hide behind the
16 Fifth Amendment."
17 MR. RICHARD C. MOSTY: And not only on
18 the relevance issue, the Court has got to remember, that
19 Cron has testified that he decided within 20 minutes
20 that -- of the defendant's guilt, that the Rowlett Police
21 Department was informed of that, that Mr. Davis was on
22 the job within five days after that, and that this -- and
23 this whole focus, as I said in my opening statement, she
24 became the target in the rifle scope, at the beginning,
25 and the methodology and how Rowlett went about
Sandra M. Halsey, CSR, Official Court Reporter
4410

1 investigating this, and choosing not to investigate other
2 things, is directly shown by going out and putting an
3 illegal bug out in a graveyard.
4 THE COURT: Okay. So you're using
5 this to impeach the officers; is that correct?
6 MR. RICHARD C. MOSTY: I don't know
7 that impeach is the right --
8 MR. DOUGLAS MULDER: Not exclusively.
9 MR. RICHARD C. MOSTY: We're using it
10 to show what they did. It's just a simple fact of how
11 they investigated it.
12 MR. DOUGLAS MULDER: But, Judge, once
13 again, they brought it up. We didn't go into this
14 matter. And now they have got to take the bad with the
15 good.
16 THE COURT: Let Mr. Hagler make his
17 objections. These are the real objections.
18 MR. JOHN HAGLER: Well, your Honor, a
19 couple things as far as the facts. They are arguing
20 irrelevancy, your Honor.
21 Again, I think Mr. Mosty has already
22 stated, that certainly it's relevant, in the fact that
23 the defendant was targeted in this case within 20 minutes
24 as being the assailant.
25 And, certainly, this would have some
Sandra M. Halsey, CSR, Official Court Reporter
4411

1 relevancy as to the jury, in our showing that there is a
2 motive on the part of the police department to actively
3 pursue the defendant and to target her as the assailant
4 in this case.
5 Secondly, your Honor, they have --
6 again, they, of course, have offered the tape. They made
7 the issue of the grave site matter in this case. They
8 have injected this matter in front of the jury.
9 Certainly, we're entitled to bring out all of the
10 circumstances surrounding the grave, the grave site
11 matters, you know.
12 Furthermore, is the fact that they
13 have made the issue of lack of remorse at the grave side
14 an issue, and we're entitled to elicit all of the
15 testimony from these officers.
16 I might mention, they're talking about
17 tapes and the video. Now, to my understanding, and I
18 don't know all of the facts, obviously, but there was an
19 open wire on this grave side.
20 There may well be matters other than
21 that which appears on the tape, and on the video
22 surveillance. Of course, the tape is the intercept
23 problem we have here.
24 But we don't know what all transpired
25 out there. We don't know who was privy and overheard all
Sandra M. Halsey, CSR, Official Court Reporter
4412

1 of these oral conversations.
2 As I understand it, if the Court
3 denies us an opportunity to confront and cross examine
4 these witnesses, we're denied the opportunity of
5 eliciting all the facts and testimony surrounding the
6 grave side event, and incidents. And, I would further
7 submit to the Court, that the Court can't simply rely on
8 the blanket assertion by the State, that there is no
9 exculpatory statements made during any of these
10 intercepted conversations.
11 I think it's for the Court to make
12 that decision. It's for us to be able to elicit that
13 such information by means of cross examination and
14 confrontation.
15 Your Honor, but if the Court rules
16 that and prohibits us from cross examining the witnesses
17 concerning their knowledge, the conversations, the events
18 surrounding the illegal intercept of the conversations at
19 the grave side, that would constitute a violation of the
20 defendant's Fifth and Sixth rights under the U.S.
21 Constitution and the Fourteenth Amendment rights. And
22 Article 1, section 10 of the Texas Constitution, and
23 specifically the right to confront and cross examine the
24 witnesses concerning the events surrounding the illegal
25 intercept.
Sandra M. Halsey, CSR, Official Court Reporter
4413

1 Furthermore, your Honor, it would also
2 prevent us from going in, or offering in front of the
3 jury, the testimony regarding the credibility of the
4 witnesses, their motive and intent surrounding their
5 investigation in this case.
6 THE COURT: All right. Fine. The
7 Court finds -- that -- the Court holds this is improper
8 impeachment evidence.
9 The officers actions do not reflect
10 upon the officers -- the officer who has testified so
11 far. His actions do not reflect upon his character for
12 truthfulness or untruthfulness regarding his testimony in
13 this case.
14 Any recordings that may have been made
15 were not admitted as evidence, nor was there an attempt
16 to admit them as evidence.
17 For these reasons, I find that the
18 potential prejudice outweighs the probative value of this
19 evidence, and the defense is ordered not to go into it,
20 should these officers be recalled to the stand.
21 Now, if you want a running objection
22 on that, you may have it.
23 MR. JOHN HAGLER: Yes, your Honor.
24 MR. RICHARD C. MOSTY: Your Honor, we
25 can go into, for instance, things that refute, on that
Sandra M. Halsey, CSR, Official Court Reporter
4414

1 tape, refute the inference that the State has done?
2 THE COURT: There was a videotape done
3 by Channel 5. I think everyone in the country has seen
4 out there.
5 MR. RICHARD C. MOSTY: Well, you know
6 what they didn't see, was the funeral service. The State
7 has illegally intercepted the funeral service where they
8 stand around and pray. The State offers the Silly String
9 part of the day, and they have the prayer there, where
10 the first part of it is the prayer where they illegally
11 intercept a prayer at a grave side. And we can't offer
12 that?
13 THE COURT: Well, I think that has
14 already been offered.
15 MR. GREG DAVIS: You know, your
16 Honor --
17 MR. RICHARD C. MOSTY: We have a video
18 of it.
19 MR. GREG DAVIS: I don't think there
20 is any problem with Mr. Mosty or Mr. Mulder offering that
21 videotape. I mean, whatever was visually recorded out
22 there, we certainly don't have a problem with them doing
23 that. It's just the circumstances under which that was
24 gathered. You know, if they can show what happened out
25 there, if they want to show that videotape.
Sandra M. Halsey, CSR, Official Court Reporter
4415

1 MR. DOUGLAS MULDER: But we can't ask
2 the --
3 MR. GREG DAVIS: So they have that
4 option. And they still get to show what they feel is
5 important for them to show to this jury.
6 THE COURT: Well, anyway, that is
7 fine. If you want to do that, that will be fine, but
8 that is the Court's ruling, and the Court will note your
9 objection.
10 You don't have to object in front of
11 the jury for any purposes. You will have a running
12 objection. And, at 9:00 o'clock we will proceed.
13 MR. GREG DAVIS: Yes, sir.
14 MR. DOUGLAS MULDER: Just so I am
15 abundantly clear on this, are you telling me that if I
16 recall Detective Jimmy Patterson, that I can't go into
17 this matter at all?
18 THE COURT: That's correct.
19 MR. DOUGLAS MULDER: Okay.
20 MR. RICHARD C. MOSTY: And we can't
21 even go into the motive of how they conducted their
22 investigation?
23 It's been a central theme of this case
24 from the beginning, is that these men went to the -- went
25 to the stage of illegal activities, to try to target in
Sandra M. Halsey, CSR, Official Court Reporter
4416

1 on this lady. That has been the beginning of this case,
2 and it is exactly what this case is about, in it's
3 entirety. Is that they never did anything, other than
4 focus on Darlie Routier, and they wanted to do it so bad,
5 that they would violate state and federal law to do so.
6 And we are not allowed to go into that?
7 THE COURT: Well, the Court ruling
8 stands. Thank you.
9 MR. DOUGLAS MULDER: Judge, let me ask
10 this just for a little direction from the Court. Does
11 the Court intend to give the jury any explanation or
12 clarification, or just let it --
13 THE COURT: Well, we will go over the
14 charge at the appropriate time. I'm happy to do that.
15 MR. DOUGLAS MULDER: I mean, you don't
16 intend to say anything to the jury. You know, he was
17 plucked from the witness stand, rather inappropriately,
18 and I take it the Court doesn't --
19 THE COURT: Well, I think both sides
20 agreed with that. I don't think he was plucked from the
21 witness stand.
22 MR. DOUGLAS MULDER: Well, he refused
23 to answer any questions, Judge, until he had a chance to
24 talk to his lawyer.
25 THE COURT: I understand that.
Sandra M. Halsey, CSR, Official Court Reporter
4417

1 MR. RICHARD C. MOSTY: Well, if --
2 MR. DOUGLAS MULDER: If they call -- I
3 understand if I call the officers, I can't go into it.
4 If they call them, can I go into it as impeachment?
5 THE COURT: Well, certainly if any
6 door is opened. I don't think they will be calling the
7 officer, but they may very well do it. But we want to
8 stay out of that, because I am holding that that is not
9 relevant in this particular case.
10 MR. DOUGLAS MULDER: Well, I'll
11 suggest to the Court, that the door is opened if they
12 talk about any part of the investigation, because this
13 was part of the investigation.
14 THE COURT: Well, let's take that up
15 at the appropriate time.
16 MR. DOUGLAS MULDER: Well, you know,
17 Judge, it kind of depends on -- it has interrupted our
18 strategy in this case. And you know, I can go with it
19 either way. I don't care what the rules are, just as
20 long as I know what they are. If I understand what the
21 rules are, I can play by anybody's rules.
22 THE COURT: Well, the rule now is
23 this: Don't go into it.
24 MR. DOUGLAS MULDER: All right. I
25 understand that. But, are they going to call -- if they
Sandra M. Halsey, CSR, Official Court Reporter
4418

1 are going to call the officers, I will be allowed to go
2 into it?
3 THE COURT: Well, anything, Mr.
4 Mulder, that is opened up by any examination, you will be
5 allowed to go into. That is correct.
6 MR. DOUGLAS MULDER: Well, I would
7 suggest to the Court, that if they go into anything,
8 about an investigation, that this is part of the
9 investigation.
10 THE COURT: Well, we'll cover that at
11 the time that it comes. That may very well be the case.
12 MR. RICHARD C. MOSTY: Is the Court
13 going to allow, for instance, Mr. Frosch to get up and
14 testify about some things, and then in the middle of it,
15 prohibit -- or take the Fifth?
16 THE COURT: The Court is going to
17 allow -- if Mr. Frosch is called, Mr. Frosch will
18 testify.
19 MR. RICHARD C. MOSTY: Pardon me?
20 THE COURT: If Mr. Frosch is called,
21 he will testify. If the door is opened to anything,
22 certainly, you will be able to get into it.
23 MR. RICHARD C. MOSTY: So the Court is
24 going to let him get up and testify about some things,
25 and prohibit us from going into the full investigation?
Sandra M. Halsey, CSR, Official Court Reporter
4419

1 THE COURT: We are not going to go
2 into whatever happened at the grave side as regards to
3 the alleged recordings out there.
4 MR. RICHARD C. MOSTY: Well, what
5 about the other officers who did it? Can we call them?
6 THE COURT: We will go each one
7 individually at the time.
8 MR. RICHARD C. MOSTY: All right.
9 THE COURT: Anything else?
10 MR. JOHN HAGLER: Just so I'm clear,
11 your Honor. You stated that, of course, we cannot
12 question them in front of the jury, but we also are
13 prohibited from questioning them during the hearing, as
14 to any and all statements.
15 THE COURT: You may question them
16 during the hearing. Do you want to question the officers
17 now?
18 MR. RICHARD C. MOSTY: Well, we
19 want -- one thing we want to know is we want to know
20 everyone who was involved in this.
21 THE COURT: Well, can you give them
22 that information?
23 MR. RICHARD C. MOSTY: And who knew
24 about it, participated in it, planned it.
25 MR. GREG DAVIS: That I don't know. I
Sandra M. Halsey, CSR, Official Court Reporter
4420

1 don't know those facts.
2 MR. DOUGLAS MULDER: Well, maybe Mr.
3 Davis needs a lawyer.
4 MR. GREG DAVIS: Maybe you do.
5 THE COURT: Well, I doubt that.
6 MR. DOUGLAS MULDER: I've got one.
7 THE COURT: I doubt that. I think
8 both sides -- all right, gentlemen, fine. Excuse me, go
9 ahead, Mr. Davis.
10 MR. GREG DAVIS: I was just going to
11 say, in this matter, so that we can all be clear, if Mr.
12 Mulder believes that the door has been opened, would you
13 please instruct him to approach the bench, discuss this
14 matter with you, before he begins to go through that
15 "open door," because we both know what he is going to do
16 here. He has done it in the past.
17 MR. DOUGLAS MULDER: Judge, I'll know
18 when the door is open.
19 THE COURT: Both sides are so
20 instructed to approach the bench before you do that, if
21 that is necessary.
22 MR. DOUGLAS D. MULDER: Yes, sir.
23 MR. GREG DAVIS: Thank you. Yes, sir,
24 so we won't have a repeat of what he did on Friday.
25 MR. DOUGLAS MULDER: Judge, I'll do
Sandra M. Halsey, CSR, Official Court Reporter
4421

1 that if it's not clear. And there wasn't anything
2 Friday. There wasn't anything said Friday about this
3 business.
4 MR. GREG DAVIS: No, I'm talking about
5 the other agreement that we had that he broke on Friday..
6 MR. DOUGLAS MULDER: There wasn't any
7 agreement Friday, not to go into the fact that Patterson
8 was --
9 THE COURT: Gentlemen, Friday has
10 passed. Friday has passed, and what occurred, occurred.
11 MR. RICHARD C. MOSTY: Yeah, well,
12 yesterday --
13 MR. DOUGLAS MULDER: Well, I didn't
14 make any agreement with them, not to mention that, Judge.
15 THE COURT: All right, Mr. Mulder,
16 fine.
17 MR. DOUGLAS MULDER: Y'all may have
18 had an agreement among yourselves, but I wasn't a party
19 to it.
20 THE COURT: Mr. Mulder. We do not
21 have any agreements with the Court. Is that clear?
22 MR. DOUGLAS MULDER: Right. Well, I
23 wasn't a party to that agreement. I didn't have any
24 agreement with them.
25 THE COURT: We understand. Would you
Sandra M. Halsey, CSR, Official Court Reporter
4422

1 please modulate your voice. I can hear you.
2 MR. DOUGLAS MULDER: I understand. I
3 didn't have any agreement with them. The only agreement
4 I had with them, was that their witnesses would be
5 present until -- the ones under subpoena -- until I
6 agreed to excuse them. And I never made that agreement.
7 I told them I would exercise that agreement Friday.
8 THE COURT: The Court understands what
9 happened last Friday, and that is over and passed and
10 done with. We're not going to discuss that.
11 MR. RICHARD C. MOSTY: Well, there is
12 also, for instance, a motion in limine prohibiting going
13 into breast implants that Mr. Davis went right through
14 yesterday without bothering to say, "Is the door open?
15 Can I go into this?"
16 And now we're supposed to abide by
17 these things and the State doesn't have to?
18 THE COURT: No. You all abide by
19 whatever motions are in the file.
20 MR. DOUGLAS MULDER: Well, Judge,
21 would the Court address that now?
22 THE COURT: Both sides are instructed
23 to stay within the motions of limine that are in there.
24 MR. DOUGLAS MULDER: Well, they
25 understood that, Judge. We went into it before the
Sandra M. Halsey, CSR, Official Court Reporter
4423

1 Court. You understood it, they understood it, but they
2 barged right in.
3 THE COURT: All right. Well, the
4 Court will instruct both sides to remain within the
5 motions in limine. You both know what they are. Let's
6 stay with it. If anybody does anything against it, well,
7 let's stand up and object. There was no objection
8 yesterday.
9 MR. RICHARD C. MOSTY: Well, of course
10 not.
11 MR. DOUGLAS MULDER: All that would do
12 is call attention to it. That is why we filed the motion
13 in limine, so we don't have to object.
14 THE COURT: All right.
15 MR. RICHARD C. MOSTY: And that is why
16 Mr. Davis did it that way.
17 THE COURT: Gentlemen, gentlemen, we
18 are here this morning on the hearing on Officer Patterson
19 and Frosch.
20 MR. RICHARD C. MOSTY: Well, may I go
21 back to my question?
22 THE COURT: Yes.
23 MR. RICHARD C. MOSTY: I would like to
24 know who all was involved in this?
25 MR. DOUGLAS MULDER: Well, he said you
Sandra M. Halsey, CSR, Official Court Reporter
4424

1 can go into that. Let's call Patterson --
2 THE COURT: Just a minute. Just a
3 minute. Calm down, Mr. Mulder. I can only talk to one
4 attorney at a time.
5 If the State knows who was involved in
6 it, you may please find out, and please advise the
7 defense.
8 MR. GREG DAVIS: Yes, sir.
9 MR. RICHARD C. MOSTY: May we call one
10 of these gentlemen and find out?
11 THE COURT: You may indeed.
12 MR. RICHARD C. MOSTY: Mr. Patterson
13 is under oath, isn't he?
14 THE COURT: He is indeed.
15 MR. RICHARD C. MOSTY: May I
16 inquire --
17 THE COURT: You may. Who was
18 involved -- I'll inquire. Who was involved in it?
19 MR. PATTERSON: I don't want to answer
20 that.
21 MR. DOUGLAS MULDER: Judge --
22 THE COURT: Well, all right.
23 MR. DOUGLAS MULDER: Well, he either
24 answers or goes to jail, doesn't he?
25 THE COURT: Mr. Mulder, if I want
Sandra M. Halsey, CSR, Official Court Reporter
4425

1 anything from you, I will ask you. Is that clear?
2 MR. DOUGLAS MULDER: Well, yes, sir.
3 THE COURT: Thank you very much. You
4 are refusing to answer that on the grounds that it may
5 tend to incriminate you; is that correct?
6 MR. PATTERSON: Yes, sir.
7 THE COURT: All right. Fine.
8 MR. RICHARD C. MOSTY: May we also
9 identify that Mr. Frosch says the same thing?
10 THE COURT: Mr. Frosch, is that your
11 answer?
12 MR. FROSCH: Yes, sir, it is.
13 MR. RICHARD C. MOSTY: So, now we
14 can't even find out who was involved?
15 THE COURT: Just a minute. Just a
16 minute. Just a minute, gentlemen.
17 All right. All right. The Court's
18 ruling is -- the Court's ruling stands as it is, as it
19 has been expressed. And if you object to that, we will
20 note your objection.
21 MR. RICHARD C. MOSTY: No. My inquiry
22 is, I want to know who else was involved. The State
23 ought to know, this is exculpatory evidence. This ought
24 to be turned over.
25 THE COURT: If the State knows who is
Sandra M. Halsey, CSR, Official Court Reporter
4426

1 involved, please inform the defense.
2 MR. RICHARD C. MOSTY: I mean, first,
3 there ought to be an investigation going on in Dallas
4 County as we speak about this.
5 THE COURT: Well, there may very well
6 be one, but right now, we're in a trial in Kerrville. We
7 have completed this hearing, and it's five minutes until
8 9:00, and at 9:00 o'clock I intend to continue the cross
9 examination of Darin Routier -- or the direct (sic)
10 examination by Mr. Davis.
11 MR. RICHARD C. MOSTY: When is the
12 State going to give me that information? I mean, it's
13 not going to do me much good in May.
14 THE COURT: Well, the State -- Mr.
15 Mosty, we understand that. Mr. Davis, should you learn
16 the information, give it to the defense as soon as
17 possible.
18 MR. GREG DAVIS: Yes, sir, I will.
19 MR. RICHARD C. MOSTY: And are they
20 under a duty to inquire?
21 THE COURT: Yes, they are under a duty
22 to inquire.
23 MR. RICHARD C. MOSTY: I just want to
24 be clear, because if he never asks him, he might never
25 know it.
Sandra M. Halsey, CSR, Official Court Reporter
4427

1 THE COURT: Well, Mr. Mosty, I think
2 that Mr. Davis and Mr. Shook and Miss Wallace will ask.
3 All right. Thank you. These
4 proceedings are concluded.
5
6 (Whereupon, a short
7 Recess was taken,
8 After which time,
9 The proceedings were
10 Resumed on the record,
11 In the presence and
12 Hearing of the defendant,
13 But outside the presence
14 Of the jury, as follows:)
15
16 THE COURT: All right. Let's go back
17 on the record. Briefly, Mr. Hagler has a couple more
18 objections he wants to make.
19 MR. JOHN HAGLER: Your Honor, I will
20 be very brief here with the Court.
21 Your Honor, just so that we are clear
22 on the ruling, your Honor, it's our understanding of the
23 ruling that both, of course, Frosch and Patterson have
24 invoked their Fifth Amendment privilege against
25 self-incrimination under the Fifth Amendment.
Sandra M. Halsey, CSR, Official Court Reporter
4428

1 We further understand the Court's
2 ruling, that in light of that invocation of the Fifth
3 Amendment right, that we're prohibited from inquiring
4 from those two officers, and I assume other officers who
5 may be involved in this intercept.
6 As to the: One, we are prohibited
7 from cross examining and questioning the officers
8 regarding the intercept, and all facts surrounding the
9 intercept.
10 THE COURT: That's correct.
11 MR. JOHN HAGLER: And furthermore, if
12 we were given the opportunity to question the officers,
13 we would go into matters such as the procedures utilized,
14 who initiated the -- who made the decision to initiate
15 the intercept, the individuals involved in the intercept,
16 how it was conducted, and any and all information that
17 was learned through the intercept, including matters, not
18 only those matters on the tape, but also matters that may
19 have been overheard but were not recorded by the
20 officers.
21 THE COURT: All right.
22 MR. JOHN HAGLER: And furthermore,
23 your Honor, we would also submit that the State has made
24 the assertion that there was no exculpatory matters on
25 the tape, and, again, we would urge that it's not for the
Sandra M. Halsey, CSR, Official Court Reporter
4429

1 State to make that decision. It's one that only the
2 Court can make, and the only one that we could bring to
3 light through cross examination and confrontation of
4 witnesses.
5 THE COURT: All right. Thank you.
6 MR. JOHN HAGLER: And finally, your
7 Honor, we would ask for a mistrial, based on our lack of
8 opportunity to cross examine the witnesses regarding
9 this, and the fact that we cannot question Patterson
10 regarding these matters.
11 THE COURT: All right. Thank you.
12 Now, had you made those objections prior to the ruling,
13 the Court's ruling would have been the same. Regarding
14 the motion for a mistrial, the motion for mistrial is
15 denied. With that in mind --
16 MR. GREG DAVIS: Also, before the jury
17 comes in, if I could inform the Court, that during the
18 break, I delivered to Mr. Mulder and Mr. Mosty the names
19 of two officers who I was informed actually did the
20 taping. So they now have those names.
21 MR. DOUGLAS MULDER: I don't have
22 the -- I would like the names of the co-conspirators in
23 the record, if we might.
24 THE COURT: I think -- the names have
25 been delivered, Mr. Mulder. Thank you.
Sandra M. Halsey, CSR, Official Court Reporter
4430

1 MR. RICHARD C. MOSTY: One point of
2 that delivery is, that these are Garland Police Officers,
3 which goes again, to show that they were not only -- not
4 only had Rowlett PD focused in, but they had focused in
5 with every other resource, and they brought in Garland PD
6 to do the illegal bug.
7 THE COURT: Thank you.
8 Now, I believe that Mr. Darin Routier
9 was on the stand on direct (sic) examination.
10 Mr. Biggerstaff, would you have him
11 step in, please?
12 MR. DOUGLAS MULDER: One last thing,
13 Judge, if we might.
14 THE COURT: Oh, just a minute. Okay.
15 MR. DOUGLAS MULDER: Aside from the
16 two names that we understand are Michael, R-O-B-E-R-B-S,
17 Roberbs. Is that supposed to be a T?
18 MR. GREG DAVIS: No, I believe it's a
19 B.
20 MR. DOUGLAS MULDER: Okay.
21 R-O-B-E-R-B-S. And Darin Baker. We want to know who
22 else knew of this plot.
23 THE COURT: Well, I doubt that there
24 are conspirators or a plot, but in any event, the Court
25 has directed Mr. Davis to give you the names available,
Sandra M. Halsey, CSR, Official Court Reporter
4431

1 which he has done, and that will conclude this hearing.
2 And have Mr. Routier step in, please.
3 All right.
4
5 (Whereupon, the jury
6 Was returned to the
7 Courtroom, and the
8 Proceedings were
9 Resumed on the record,
10 In open court, in the
11 Presence and hearing
12 Of the defendant,
13 As follows:)
14
15 THE COURT: All right. Good morning,
16 ladies and gentlemen.
17 Let the record reflect that all
18 parties in the trial are present, and the jury is seated.
19 And we will continue with the direct (sic) examination of
20 Mr. Routier by Mr. Davis. You may proceed.
21 MR. GREG DAVIS: Thank you, Judge.
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4432

1 Whereupon,
2
3 DARIN ROUTIER,
4
5 was recalled as a witness, for the Defense, having been
6 previously duly sworn by the Court, to speak the truth,
7 the whole truth, and nothing but the truth, was examined
8 and testified further in open court, as follows:
9
10
11 CROSS EXAMINATION (Resumed)
12
13 BY MR. GREG DAVIS:
14 Q. Mr. Routier, yesterday, do you recall
15 that we talked about your Jaguar?
16 A. Yes, sir.
17 Q. And, yesterday, do you recall telling
18 me what was wrong with that Jaguar?
19 A. Yes, sir.
20 Q. What was wrong with it?
21 A. There was a tube that was going to
22 the -- one of the diaphragms that goes up into the
23 transmission.
24 Q. Okay. I believe that you had told me
25 yesterday, that it cost about three dollars to have that
Sandra M. Halsey, CSR, Official Court Reporter
4433

1 car fixed, correct?
2 A. Yes, sir.
3 Q. Now, on July the 1st, when you came
4 down to the courthouse and you were sworn in, do you
5 recall that we talked about the Jaguar at that time?
6 A. Yes, sir, I said that the transmission
7 had gone out.
8 Q. Okay. By the way, last night, did you
9 have a chance to go over your prior testimony?
10 A. No, sir.
11 Q. Okay. Did you talk to any lawyers
12 about your testimony?
13 A. No, sir.
14 Q. Nobody has talked to you?
15 A. I talked to Mr. Mulder about my sister
16 being -- just came in town.
17 Q. In July, when you came down, you told
18 me that the transmission was out, and it was going to
19 cost about three thousand dollars to fix that car, right?
20 A. I don't remember if it was three
21 thousand.
22 Q. Okay. About three thousand?
23 A. Well, I think it may have been more
24 around eight hundred.
25 Q. Okay.
Sandra M. Halsey, CSR, Official Court Reporter
4434

1 A. It was a Turbo 400.
2 Q. Let me show you page 16 of that
3 transcript. Do you see where I said, "Would it be fairly
4 expensive to repair the automobile just to get it
5 running?"
6 Do you see your answer, "About three
7 thousand dollars".
8 A. Yes, sir. (Witness nodding head
9 affirmatively.)
10 Q. Okay. Was that your answer back on
11 July the 1st?
12 A. Yes, it is.
13 Q. And, in July, do you remember telling
14 me that you only had thirty-two hundred dollars available
15 to you?
16 A. I don't recall.
17 Q. Do you remember that?
18 A. Oh, at the bond hearing?
19 Q. Yes, sir.
20 A. I remember saying that, yes, sir.
21 Q. Okay. Now, if we can, let's talk
22 about your business for a while. Yesterday, Mr. Mulder
23 asked you certain questions about your business, how it
24 was doing in 1996. And if you could, tell me again what
25 you projected your earnings to be for 1996 for your
Sandra M. Halsey, CSR, Official Court Reporter
4435

1 business.
2 A. I would project probably around a
3 quarter of a million dollars.
4 Q. Okay. Quarter of a million dollars.
5 Okay. Do you know what your income was through the first
6 five months of 1996, sir?
7 A. I have no idea.
8 Q. Okay. No ballpark figure?
9 A. No, sir.
10 Q. How were you doing this projection of
11 $250,000?
12 A. Just based on the first six months, I
13 did a hundred and eleven thousand. We would have had
14 June, July and August of our biggest months, about 40 or
15 50 thousand dollars during those three months.
16 Q. Of course, if your expenses are higher
17 than your income, it doesn't really matter how much you
18 are earning if you are spending more than you take in,
19 does it?
20 A. It really doesn't matter.
21 Q. I mean, it's not good, is it?
22 A. No, but we weren't spending more than
23 we were bringing in.
24 Q. Okay. Are you sure about that?
25 A. Yes, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4436

1 Q. Okay. Have you looked over your
2 business records?
3 A. Not since -- no.
4 Q. Okay. Is it possible that you could
5 be wrong about that?
6 A. It's possible.
7 Q. Yesterday, when Mr. Mulder was asking
8 you questions about your business situation, what records
9 had you gone over to tell us about the condition of your
10 business?
11 A. Just looking at my books.
12 Q. Okay. Bank account records, also?
13 A. No, I have a CPA for that.
14
15
16 (Whereupon, the following
17 mentioned item was
18 marked for
19 identification only
20 after which time the
21 proceedings were
22 resumed on the record
23 in open court, as
24 follows:)
25
Sandra M. Halsey, CSR, Official Court Reporter
4437

1 MR. GREG DAVIS: Your Honor, at this
2 time, we are going to offer State's Exhibit 50-B, which
3 is the remainder of the Bank One records that were
4 previously admitted as State's Exhibit 50.
5 50-B contains the bank records
6 pertaining to Testnec. These have also been on file more
7 than 14 days as a part of the other records.
8 THE COURT: When you do talk, please
9 speak loudly. The last two jurors are indicating that
10 they can't hear you. Okay.
11 Make sure that you speak loud enough
12 so that gentlemen there and the lady in the pink back
13 there can hear you.
14 THE WITNESS: Yes, sir.
15 THE COURT: Can you hear that?
16 THE WITNESS: Yes, sir.
17 THE COURT: All right.
18 MR. DOUGLAS MULDER: Judge, this
19 appears to be all 1995 records.
20 MR. GREG DAVIS: It's right here.
21 MR. DOUGLAS MULDER: Judge, if you're
22 ready, we're ready to be heard on this.
23 THE COURT: I'm ready.
24 MR. DOUGLAS MULDER: Judge, I don't
25 think the records from 1995 are relevant or material. We
Sandra M. Halsey, CSR, Official Court Reporter
4438

1 have offered his income tax return that shows he grossed
2 263 thousand. Are they suggesting that he overstated his
3 income so he could pay more taxes?
4 THE COURT: I think the exhibits will
5 speak for themselves. Are you objecting to the exhibit?
6 MR. DOUGLAS MULDER: Well, I object to
7 those. I don't object to the -- so far as they go, to
8 the records in 1996.
9 MR. GREG DAVIS: Well, your Honor, I
10 think, at this time, that we will agree to withdraw any
11 bank records pertaining to 1995, and simply then offer as
12 State's Exhibit 50-B, the records pertaining to 1996.
13 And in State's Exhibit 50-C, we will separate out 1995
14 and offer those for record purposes only.
15 THE COURT: Is that satisfactory?
16 MR. DOUGLAS MULDER: Well, let me take
17 a look at these, Judge.
18
19 (Whereupon, the following
20 mentioned item was
21 marked for
22 identification only
23 as State's Exhibit No. 50-C
24 after which time the
25 proceedings were
Sandra M. Halsey, CSR, Official Court Reporter
4439

1 resumed on the record
2 in open court, as
3 follows:)
4
5 THE COURT: All right. So 50-C will
6 be the '95 records offered for record purposes only, not
7 to be shown to the jury.
8 Any objections to that? Anybody want
9 to object to that? Mr. Hagler?
10 MR. DOUGLAS MULDER: Excuse me, Judge.
11 I was trying to do five things at one time.
12 THE COURT: We appreciate your
13 efforts, but are you going to object to the record
14 purposes only of 50-C?
15 MR. DOUGLAS MULDER: No, not for
16 record purposes only.
17 THE COURT: Thank you. All right.
18 State's Exhibit 50-C is admitted for record purposes
19 only.
20
21 (Whereupon, the above
22 mentioned item was
23 received in evidence
24 for record purposes
25 only, after which time,
Sandra M. Halsey, CSR, Official Court Reporter
4440

1 the proceedings were
2 resumed on the record,
3 as follows:)
4
5 THE COURT: All right. Any objection
6 to the 1996 records?
7 MR. DOUGLAS MULDER: No, we have no
8 objection.
9 THE COURT: State's Exhibit 50-B is
10 admitted.
11
12 (Whereupon, the item
13 Heretofore mentioned
14 Was received in evidence
15 As State's Exhibit No. 50-B
16 For all purposes,
17 After which time, the
18 Proceedings were resumed
19 As follows:)
20
21 BY MR. GREG DAVIS:
22 Q. Mr. Routier, again, have you had an
23 opportunity recently to look over the records that I am
24 holding from Bank One?
25 A. No, sir.
Sandra M. Halsey, CSR, Official Court Reporter
4441

1 Q. Okay. And again, now showing you only
2 those portions that have been admitted as State's Exhibit
3 50-B, do you recognize the first page as being a summary
4 for your transactions between January 1st and January
5 31st, 1996?
6 A. Yes, sir.
7 Q. Okay. All right. And do we see that
8 your deposits for January were twenty-two thousand, nine
9 hundred and fourteen dollars and sixty-nine cents, is
10 that correct?
11 A. Yes, sir.
12 Q. Checks paid out of your account were
13 twenty-one thousand, nine hundred and fourteen dollars
14 and forty-six cents; is that correct also?
15 A. Yes, sir.
16 Q. As we go to the period of February the
17 1st through February the 29th, do we show deposits of ten
18 thousand, two hundred and eighty-two dollars and
19 ninety-three cents, checks paid out of fifteen thousand,
20 three hundred and forty dollars and sixty cents?
21 A. Yes, sir, being a balance of $78.47.
22 Q. Right. And, for the period of March
23 1st through March 31st, do we see that you had deposits
24 of fifteen thousand, two hundred and fifty-four dollars
25 and seventy-eight cents, and checks paid out of twelve
Sandra M. Halsey, CSR, Official Court Reporter
4442

1 thousand, six hundred and thirty-nine dollars and
2 seventy-seven cents?
3 A. Yes, sir, with a balance of five
4 thousand, three hundred and two dollars.
5 Q. Okay. That is your ending balance,
6 correct?
7 A. Yes, sir.
8 Q. And, for the period of April the 1st
9 through April the 30th, do we have you with deposits of
10 twelve thousand, five hundred and thirty-three dollars;
11 and checks paid out of thirteen thousand, three hundred
12 and fifty-eight dollars and one cent?
13 A. Yes, sir, with an ending balance of
14 four thousand, four hundred and fifteen dollars.
15 Q. Okay. And for the last period shown
16 of May the 1st through May 31st, do we have deposits of
17 thirteen thousand, three hundred and ninety-one dollars
18 and forty-seven cents, checks paid out of fourteen
19 thousand, forty-four dollars and eighty-two cents, and
20 your ending balance on May 31st was three thousand, six
21 hundred and ninety-eight dollars and forty-four cents; is
22 that right?
23 A. Yes, sir.
24 Q. Mr. Routier, are you aware, that when
25 you add up the deposits, and the checks paid out, that
Sandra M. Halsey, CSR, Official Court Reporter
4443

1 your deposits for the first five periods there shown were
2 seventy-four thousand, three hundred and seventy-six
3 dollars and eighty-seven cents, and your checks paid out,
4 if you total those up, are you aware that they total out
5 to seventy-seven thousand, two hundred and ninety-seven
6 dollars and sixty-six cents?
7 A. No, sir, I was not aware of that.
8 Q. Are you aware, that when you look at
9 the first five months that actually, you had a deficit of
10 nearly three thousand dollars? Are you aware of that?
11 A. No, sir.
12 Q. Okay. You know Willie Short, don't
13 you?
14 A. Yes, sir.
15 Q. Okay. Willie Short was your landlord?
16 A. Yes, he is.
17 Q. You had a rent each month of $525
18 dollars; correct?
19 A. Yes, sir.
20 Q. Was that due on the first of the
21 month?
22 A. On the 1st or the 15th.
23 Q. Okay. Do you recall Willie Short
24 coming by or talking to you on June the 5th about being
25 late for your rent for the month of June?
Sandra M. Halsey, CSR, Official Court Reporter
4444

1 A. Not in June. I don't recall.
2 Q. You don't recall?
3 A. No, sir.
4 Q. Were you behind on your rent out
5 there?
6 A. We're four months behind now.
7 Q. I'm talking about in June of 1996?
8 A. Just that one month.
9 Q. So you're one month behind on the
10 rent?
11 A. It was not due until the 15th, or late
12 on the 15th.
13 Q. Now, Mr. Routier, I want to direct
14 your attention back to June the 8th of 1996 when you went
15 to the Rowlett Police Department with your wife. Do you
16 recall that date?
17 A. Vaguely.
18 Q. Okay. Well, yesterday when Mr. Mulder
19 asked you about it, do you recall telling him that the
20 Rowlett Police Department asked you to give them a
21 statement?
22 A. Yes, sir.
23 Q. Do you remember giving that statement
24 to them?
25 A. Yes, sir, before the viewing.
Sandra M. Halsey, CSR, Official Court Reporter
4445

1 Q. Okay. When you gave that statement,
2 did you, in fact, give that in your own handwriting?
3 A. Yes, I did.
4 Q. Okay. Do you recall it being six
5 pages long?
6 A. I don't remember how long it was. I
7 haven't seen it since.
8 Q. Right. Okay.
9
10 (Whereupon, the following
11 mentioned item was
12 marked for
13 identification only
14 as State's Exhibit No. 141,
15 after which time the
16 proceedings were
17 resumed on the record
18 in open court, as
19 follows:)
20
21 BY MR. GREG DAVIS:
22 Q. Let me show you what for record
23 purposes has been marked as State's Exhibit 141. And if
24 you would, take a couple of moments and look over that
25 statement.
Sandra M. Halsey, CSR, Official Court Reporter
4446

1 A. Yes, sir.
2 Q. Okay. Do you recognize that as the
3 statement you gave to the police?
4 A. Yes, sir. It's a vague description.
5 Q. Why don't you just keep it up there?
6 I may be referring to it. We have another copy down
7 here.
8 Mr. Routier, when you gave that
9 statement to the police, would it be fair to say that the
10 purpose of giving that statement was to try to help the
11 police find the person who killed your two children; is
12 that right?
13 A. Yes, sir. That is why I did it.
14 Q. All right. Would it also be fair to
15 say that that statement was given only two days after
16 this attack occurred at your home; right?
17 A. Yes, sir.
18 Q. Okay. And I assume, that when you
19 gave that statement, were you making your very best
20 effort to be as truthful and as honest, and