Volume 44

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 A-96-253
8 DARLIE LYNN ROUTIER Kerr Co. Number
9
10
11
12
13 REPORTERS RECORD
14 JURY TRIAL 15 >VOL. 44 OF 53 VOLS.
16 January 29, 1997
17 Wednesday
18
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4744
1 C A P T I O N
2
3
4 BE IT REMEMBERED THAT, on Wednesday, the 29th 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
4745

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
4746

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
4747

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
4748

1 P R O C E E D I N G S
2
3 January 29th, 1997
4 Wednesday
5 9:00 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 THE COURT: All right. Are both sides
19 ready?
20 MR. GREG DAVIS: Yes, sir, the State
21 is ready.
22 MR. RICHARD MOSTY: Yes, your Honor,
23 we are ready.
24 THE COURT: Bring the jury in.
25
Sandra M. Halsey, CSR, Official Court Reporter
4749

1 (Whereupon, the jury
2 Was returned to the
3 Courtroom, and the
4 Proceedings were
5 Resumed on the record,
6 In open court, in the
7 Presence and hearing
8 Of the defendant,
9 As follows:)
10
11 THE COURT: All right. Good morning,
12 ladies and gentlemen, be seated. Let the record reflect
13 that all parties in the trial are present and the jury is
14 seated.
15 The defense may call its next witness.
16 MR. S. PRESTON DOUGLASS: Arenda
17 Langford.
18 THE COURT: Would you raise your right
19 hand?
20
21 (Whereupon, the witness
22 Was duly sworn by the
23 Court, to speak the truth,
24 The whole truth and
25 Nothing but the truth,
Sandra M. Halsey, CSR, Official Court Reporter
4750

1 After which, the
2 Proceedings were
3 Resumed as follows:)
4
5 THE COURT: Do you solemnly swear or
6 affirm that the testimony you are about to give will be
7 the truth, the whole truth, and nothing but the truth, so
8 help you God?
9 THE WITNESS: I do.
10 MR. GREG DAVIS: May we approach?
11 THE COURT: All right.
12
13 (Whereupon, a short
14 discussion was held
15 at the side of the
16 bench, between the Court,
17 and the attorneys for
18 both sides in the case,
19 off the record, and outside
20 of the hearing of the
21 Jury, after which time,
22 the proceedings were
23 resumed on the record,
24 outside the hearing of
25 the jury as follows:)
Sandra M. Halsey, CSR, Official Court Reporter
4751

1
2 MR. DOUGLAS MULDER: Judge, we need to
3 go into a matter.
4 THE COURT: Well, if the jury will
5 step back into the jury room briefly, please.
6
7 (Whereupon, the jury
8 Was excused from the
9 Courtroom, and the
10 Proceedings were held
11 In the presence of the
12 Defendant, with her
13 Attorney, but outside
14 The presence of jury
15 As follows:).
16
17 THE COURT: Let the record reflect
18 that all parties in the trial are present. These
19 proceedings are being held outside the presence of the
20 jury.
21 Mr. Mulder.
22 MR. S. PRESTON DOUGLASS: Your Honor,
23 if I might --
24 THE COURT: Oh, excuse me. Mr.
25 Douglass.
Sandra M. Halsey, CSR, Official Court Reporter
4752

1 MR. S. PRESTON DOUGLASS: If I may go
2 into the issue regarding Arenda. Arenda Langford was
3 called inadvertently. She had sat in the courtroom
4 during what, I believe, was Tom Bevel's testimony. It
5 was inadvertently not recognized by us.
6 Her testimony does not go to any issue
7 that Tom Bevel testified to. She gained no knowledge
8 with respect to her testimony, with respect to issues
9 that she saw when she was in the courtroom.
10 The Witness Sequestration Rule, and
11 the Rule against a witness being in court is
12 discretionary with the Court. And if it does not affect
13 their testimony, it's purely discretionary, and the Court
14 can allow that witness to testify if those issues do not
15 go to issues that she saw or witnessed in the courtroom.
16 And for that reason, we would submit
17 that she is capable to testify and not exempt under the
18 rule, and if she should not be allowed to testify, we
19 need to do a Bill.
20 THE COURT: Well, do a Bill then,
21 because I'm not going to let -- anybody who has been in
22 the courtroom is not going to testify. That is
23 discretionary, and so I'm going to exercise my discretion
24 and not let her testify.
25 MR. PRESTON DOUGLASS, JR.: Your
Sandra M. Halsey, CSR, Official Court Reporter
4753

1 Honor, while we're on that issue then, the next witness
2 we're going to call is Lloyd Harrell, who, of course is
3 our investigator.
4 His testimony would not go to any
5 factual issue in the case at all. His testimony will be
6 a summary and a review of the 911 tape which has been
7 entered into evidence, and does not go to any factual
8 issue regarding the case, but only the evidence which has
9 been entered by the State, and his review of the
10 evidence.
11 THE COURT: All right. Same ruling.
12 So let's get on with making your Bill, whatever you want
13 to do.
14 MR. DOUGLAS MULDER: Well, I guess,
15 Judge, we can do it the easy way, or we can do it the
16 hard way, and I am equally adept at doing it either way.
17 In fact, I kind of like the hard way.
18 THE COURT: Very well, Mr. Mulder,
19 what I wish to know is, do you wish to make a Bill?
20 MR. DOUGLAS MULDER: Well, we can
21 bring their witness back and put in our version through
22 him, or we can do it the easy way.
23 Now, whichever way the Court would
24 prefer.
25 THE COURT: Well, I think we had
Sandra M. Halsey, CSR, Official Court Reporter
4754

1 better do it the proper way, which would be to exclude
2 all witnesses who have been in the courtroom, and any
3 other witness you wish to call, please feel free to do
4 so.
5 MR. DOUGLAS MULDER: Well, now, I told
6 you at the time that Bevel testified that he was -- well,
7 that his memory was less than accurate as to what I had
8 asked him in Oklahoma City, and I told you at that time I
9 intended to testify, if the Court will recall.
10 THE COURT: Well, I know, Mr. Mulder,
11 but things often said in the heat of battle, I don't take
12 them too seriously. So, let's get on with your next
13 witness who has not been in the courtroom, please, or who
14 has already testified under the Rule and you wish to
15 bring him back.
16 Do you wish to call a witness from the
17 State, bring the State's witness in.
18 MR. DOUGLAS MULDER: Judge, let us
19 just put it on the record.
20 THE COURT: Go ahead.
21 MR. JOHN HAGLER: Okay. Your Honor,
22 at this time, what we want to do is, we want to state to
23 the Court what these two witnesses would testify to.
24 THE COURT: That will be fine.
25 MR. JOHN HAGLER: And then what our
Sandra M. Halsey, CSR, Official Court Reporter
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1 position is in this. Of course the Rule, it's found
2 under Rule 613, under the rules of Criminal Evidence.
3 THE COURT: Yes.
4 MR. JOHN HAGLER: The Court knows it's
5 not a per se exclusionary rule. This Court has
6 discretion depending on the type of witness, the type of
7 testimony and the circumstances under which the witness
8 is called.
9 There is also a distinction between an
10 intentional act on the part of the defense to violate the
11 Rule, and whether or not the Rule was violated
12 unintentionally by the defense.
13 In both of these instances, your
14 Honor, as far as Lloyd Harrell's testimony, we had no
15 idea what Bevel was going to testify to, and we intend to
16 make an offer here, as to what we would show through
17 Lloyd Harrell -- a requirement that he testify now, is to
18 rebut and impeach the testimony of Bevel, which we would
19 further submit is crucial to our defense.
20 Now, I know the Court has read, and I
21 know the Court is aware of the Webb case, 766 Southwest
____
22 2nd, 236, 766 Southwest 2nd, 236, Tex. Crim. Ap. 1989.
23 Your Honor, this Court conducts a
24 balancing test as opposed to a per se exclusionary test.
25 And again, the issues are: One, the circumstances under
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1 which the Rule was violated.
2 Again, as far as Lloyd Harrell, the
3 necessity for his testimony is required only because of
4 the fact that through the testimony of Bevel, we had no
5 idea what he was going to testify to. As far as this
6 other witness, we had no idea she was going to be in the
7 courtroom at the time.
8 Secondly, this Court must look to see
9 what type of testimony we're talking about. You know, is
10 it the type of testimony that they would have been
11 influenced by what they heard in the courtroom?
12 And furthermore, how crucial this
13 testimony is to the defense. And again, your Honor, we
14 plan to make a proffer of testimony here, but again, this
15 testimony, we would urge the Court, is going to be
16 crucial to our defense, and it would be highly
17 detrimental unless the jury is allowed to hear it.
18 THE COURT: Fine.
19 MR. S. PRESTON DOUGLASS: Your Honor,
20 with respect to Mr. Harrell, under the Court's ruling,
21 what that would mean is, when you go up to interview an
22 expert witness, you have to take, under the Court's
23 ruling, you would have to take, in effect, take a dummy
24 person along, to verify what the expert is going to say,
25 then leave that person outside throughout the whole
Sandra M. Halsey, CSR, Official Court Reporter
4757

1 trial, just in case this expert told you something
2 different.
3 Now, you can't anticipate that an
4 expert, who is a police officer, is going to come in and
5 say something different from the interviews. The only
6 way you can respond to it then is to have a witness come
7 up and say that is directly contrary to what he told us
8 in Oklahoma. You can't anticipate it, and you certainly
9 wouldn't expect it. And so for that reason, it's an
10 adequate waiver of the Rule, because we have to have some
11 way to respond to it.
12 Second, with respect to the 911
13 recording, Mr. Harrell is not adding any fact other than
14 his transcription of the recording after a number of
15 hours of listening to it. And so, for those reasons, it
16 does not interject any fact relating to his presence in
17 Court, and for that reason, the Rule should be waived for
18 him for that reason.
19 THE COURT: All right. The Court's
20 ruling remains the same. If you want to make a Bill,
21 let's make it.
22 MR. S. PRESTON DOUGLASS: We will call
23 Lloyd Harrell.
24 THE COURT: If you will raise your
25 right hand, please.
Sandra M. Halsey, CSR, Official Court Reporter
4758

1
2 (Whereupon, the witness
3 Was duly sworn by the
4 Court, to speak the truth,
5 The whole truth and
6 Nothing but the truth,
7 After which, the
8 Proceedings were
9 Resumed as follows:)
10
11 THE COURT: Do you solemnly swear or
12 affirm that the testimony you are about to give will be
13 the truth, the whole truth, and nothing but the truth, so
14 help you God?
15 THE WITNESS: I do.
16
17
18
19
20
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4759

1 Whereupon,
2
3 LLOYD HARRELL,
4
5 was called as a witness, for the Defense, for the purpose
6 of this hearing on the Defense Bill, outside the presence
7 of the jury, having been first duly sworn by the Court to
8 speak the truth, the whole truth, and nothing but the
9 truth, testified in open court, as follows:
10
11
12 DIRECT EXAMINATION
13
14 BY MR. S. PRESTON DOUGLASS:
15 Q. Please state your name.
16 A. Lloyd Harrell, H-A-R-R-E-L-L.
17 Q. Where do you live?
18 A. I live in Smith County, Texas.
19 Q. And, how are you employed?
20 A. I'm employed by Lloyd Harrell and
21 Associates, Inc., which is a private investigation firm.
22 Q. How long have you had that company?
23 A. Since February of 1989.
24 Q. Prior to February of 1989, how were
25 you employed?
Sandra M. Halsey, CSR, Official Court Reporter
4760

1 A. I was employed with the Federal Bureau
2 of Investigation as a special agent.
3 Q. Okay. And, how many years were you
4 employed as a special agent by the Federal Bureau of
5 Investigation?
6 A. From 1965 until 1989.
7 Q. And, did have you numerous duties and
8 posts in the course of your duties with the Federal
9 Bureau of Investigation?
10 A. Yes, sir, I did.
11 Q. And can you tell, for the purposes of
12 this Bill, can you set forth what your prior experience
13 was?
14 A. I began my career as a special agent
15 with the FBI in Butte, Montana, and then I moved to
16 Pocatello, Idaho; from there I moved to Wichita Falls,
17 Texas; from there I moved to Dallas, Texas; and then in
18 1980 I moved to Tyler, Texas.
19 During that period of time I
20 investigated general criminal matters, crimes on
21 government reservations, crimes on military reservations,
22 white collar crime, counter-intelligence, terrorism and
23 major white collar crime.
24 Q. And in the course of your duties with
25 the Federal Bureau of Investigation, did you have
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4761

1 opportunities to listen to recorded conversations, or
2 recordings of events and make transcriptions of those
3 events?
4 A. Yes, sir, I did.
5 Q. Okay. And with respect to the State
6 of Texas versus Darlie Routier, have you been employed as
7 an investigator for the defense in that trial?
8 A. Yes, sir, I have.
9 Q. Have you been in the courtroom during
10 the trial and observed various portions of the trial?
11 A. Yes, sir, I have.
12 Q. In the course of the trial, has it
13 come to your attention that the State has introduced a
14 transcription which has been admitted in evidence as
15 State's Exhibit 18-E?
16 A. Yes, sir, it has.
17 Q. And is that a transcription of a laser
18 disk reproduction of the 911 call?
19 A. Yes, sir, it is.
20 Q. I'm going to hand you State's Exhibit
21 18-E, and I'm going to ask you if you had reviewed that
22 transcription in comparison with the 911 laser disk and
23 the call that was put in evidence by the State?
24 A. Yes, sir, I have.
25 Q. Mr. Harrell, the laser disk has been
Sandra M. Halsey, CSR, Official Court Reporter
4762

1 marked and admitted into evidence as 18-C.
2 Have you and I, over the course of
3 about the last two weeks, spent a number of hours
4 reviewing the sound reproduction on State's Exhibit 18-C,
5 in comparison with the transcript produced to the jury by
6 the State, embodied in the transcription 18-E?
7 A. Yes, sir, we have.
8 Q. And, do you have an opinion -- let me
9 ask you this: How many hours would you say that you and
10 I have reviewed the laser disk 18-C, in comparison with
11 the transcription 18-E?
12 A. Probably about four and a half hours.
13 Q. And has some of that time been spent
14 reviewing with other members of the defense team?
15 A. Yes, sir, it has.
16 Q. All right. And, do you have an
17 opinion as to whether or not the transcription in State's
18 Exhibit 18-E accurately reflects what is on the laser
19 disk as State's Exhibit 18-C?
20 A. No, sir, it does not.
21 Q. Are there material variances between
22 the laser disk and the State's transcription?
23 A. I believe there are.
24 Q. Now, have you produced a transcription
25 based upon our review of the 911 tape?
Sandra M. Halsey, CSR, Official Court Reporter
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1 A. Yes, sir, I have.
2
3 MR. S. PRESTON DOUGLASS: May I
4 approach the witness, your Honor?
5 THE COURT: You may.
6
7 (Whereupon, the following
8 mentioned item was
9 marked for
10 identification only
11 after which time the
12 proceedings were
13 resumed on the record
14 in open court, as
15 follows:)
16
17 BY MR. S. PRESTON DOUGLASS:
18 Q. Mr. Harrell, I'm going to hand you
19 what has been marked as Defendant's Exhibit 96 and
20 Defendant's Exhibit 96-A.
21 A. Yes, sir.
22 Q. I'd ask you to review those exhibits.
23 Are you familiar with them?
24 A. Yes, sir, I am.
25 Q. And, does Defendant's Exhibit 96, is
Sandra M. Halsey, CSR, Official Court Reporter
4764

1 that the transcription that you made based upon a review
2 of 18-C?
3 A. Yes, sir, it is.
4 Q. Also, would you review Defendant's
5 Exhibit 96-A?
6 A. Yes, sir.
7 Q. Can you tell us what that is?
8 A. This is a transcription in which we
9 have the State's version, and then changed in bold,
10 italic type those sentences in which we believe there
11 should be a correction.
12 Q. Okay. And is it your opinion that
13 some of those changes are material in terms of what they
14 represent from the 911 tape?
15 A. Yes, sir, they are material.
16
17 MR. S. PRESTON DOUGLASS: Your Honor,
18 for purposes of this Bill, I would offer Defendant's
19 Exhibit 96 and 96-A.
20 THE COURT: For the purposes of this
21 Bill, any objections?
22 MR. GREG DAVIS: No, sir.
23 THE COURT: Defendant's Exhibits 96
24 and 96-A are admitted for purposes of the Bill.
25
Sandra M. Halsey, CSR, Official Court Reporter
4765

1 (Whereupon, the items
2 Heretofore mentioned were
3 Received in evidence as
4 Defendant's Exhibits No. 96
5 and 96-A for record purposes
6 Only, after which time, the
7 Proceedings were resumed
8 As follows:)
9
10 MR. S. PRESTON DOUGLASS: Your Honor,
11 I want to -- for purposes of the record, to make sure
12 it's preserved, state to the Court that it is our
13 intention to produce, and I have available numerous
14 copies of 96 and 96-A. It was our intention to play for
15 the jury the 911 tape on 18-C, and to produce for
16 publication the copies of 96 as well as 96-A, so the jury
17 could listen to the tape, and make their own
18 determination with respect to it.
19 THE COURT: Do you want to introduce
20 them all for record purposes, or as many as you want for
21 record purposes, whatever you want to do?
22 MR. S. PRESTON DOUGLASS: Well, your
23 Honor, if I understand right, I don't feel like for
24 purposes of the Bill I need to put in every copy. But I
25 want the Court to understand, and I'm assuming the ruling
Sandra M. Halsey, CSR, Official Court Reporter
4766

1 is the same, that those transcriptions are not going to
2 be shown to the jury at this time.
3 THE COURT: They will not be at this
4 time.
5
6 BY MR. S. PRESTON DOUGLASS:
7 Q. All right, Mr. Harrell, let me ask
8 you, in the course of your duties with the Federal Bureau
9 of Investigation, did you have training both into the
10 federal code which embodies all the criminal laws of the
11 United States of America, and have you also had the
12 opportunity to review the State Penal Code for the State
13 of Texas?
14 A. In some instances, yes, sir.
15 Q. Were you aware that in the course of
16 your investigation, that a secret recording was made at
17 the grave side of Devon and Damon Routier?
18 A. Yes, sir, I was.
19 Q. And, are you aware that there was a
20 microphone placed in a bush which is located
21 approximately 10 to 15 feet from the grave side?
22 A. Yes, sir.
23 Q. Based upon your experience and
24 training as a special agent with the Federal Bureau of
25 Investigation, do you have an opinion about whether that
Sandra M. Halsey, CSR, Official Court Reporter
4767

1 was a lawful act?
2 A. I believe it is an unlawful act. It's
3 against the federal law. I believe it's also against the
4 state law.
5 Q. Have you reviewed the federal and
6 state law that prohibit unlawful interception
7 communications?
8 A. Yes, sir, I have.
9 Q. To your knowledge in court, has the
10 State of Texas produced any lawful warrant, or any lawful
11 authorization by a magistrate or a judge with lawful
12 authority, enabling the State of Texas to produce -- or
13 to enable the State of Texas to place that bug in a bush
14 lawfully?
15 A. We have seen no warrant or document
16 issued by any magistrate, judge, or court which
17 authorizes an interception for surreptitious purposes.
18 Q. And it's your understanding that that
19 microphone was planted, and recorded private
20 communications that was at a prayer service on June 14th
21 of 1996?
22 A. Yes, sir.
23 Q. Also, when I asked you, did you travel
24 on December 30th of 1996, I believe it is, to Oklahoma
25 City to meet with retired captain Tom Bevel in Oklahoma?
Sandra M. Halsey, CSR, Official Court Reporter
4768

1 A. Yes, sir, we did.
2 Q. Does that date sound right to you?
3 A. Yes, sir, December 30th, 1996.
4 Q. Okay. And, did you meet with Mr.
5 Bevel?
6 A. Yes, sir.
7 Q. And did Mr. Bevel meet with you,
8 Richard Mosty and Doug Mulder?
9 A. Yes, sir, and Curtis Glover.
10 Q. Okay. And the course of that
11 conversation, did Mr. Bevel make statements regarding
12 certain bloodstains found on defendant Darlie Routier's
13 T-shirt?
14 A. Yes, sir, he did.
15 Q. In your opinion, did the State -- did
16 he later make statements in Court in front of the jury
17 about certain bloodstains on the T-shirt?
18 A. Yes, sir, he did.
19 Q. And do you believe that the statements
20 that he made about the T-shirt in court in front of the
21 jury, are materially different from what he told you in
22 the interview in Oklahoma City?
23 A. Yes, sir, they are.
24 Q. Do you recall those conversations?
25 A. Yes, sir. The first part of the
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4769

1 conversation I recall, is when we talked to Mr. Bevel
2 about how he picked the particular stains to be tested.
3 This is, of course, after the conversation occurred for
4 some time.
5 He indicated that the stains that he
6 marked for Mr. Linch to cut out and send to the DNA
7 laboratories, Gene Screen, were picked for a variety of
8 reasons.
9 His first concern was that a stain
10 must have directionality. He explained that
11 directionality means in a bloodstain that one axis of the
12 stain is longer than the other one.
13 From the axis he then can determine
14 the directionality, whether the stain is up or down or
15 sideways.
16 In order to make a proper
17 determination, he indicated he made every effort to
18 sample a single stain as multiple stains may cloud the
19 issue of directionality.
20 Later, when we asked him about this
21 particular issue, pertaining to the individual stain
22 sample, and whose blood they contained, he said the
23 stains contained mixtures of blood of Darlie and her
24 children.
25 Q. Is that what he said in Oklahoma?
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4770

1 A. Yes, sir, it is.
2 Q. Okay. Now, what did he say, to your
3 recollection, in front of this jury during the trial?
4 A. He, subsequent to apparently analyzing
5 all of the DNA and the facts and circumstances of the
6 case, he said the stains could be, or were a result of a
7 two occurrence event, meaning both stains, that each
8 stain sampled, could have had two separate occurrences
9 causing that particular single stain. And therefore, the
10 blood may not be mixed blood.
11 Q. Do you feel that that contradiction in
12 his testimony was material in that it was directly
13 contrary to what he had previously stated?
14 A. Absolutely, for this reason: In
15 Oklahoma City he was asked at least twice, does this mean
16 that each of those stains, the knife tip had to contain
17 the blood of Darlie and the blood of one of her children?
18 His response to that answer was yes.
19 Q. Now, for the purposes of the Bill and
20 purposes of the record, the T-shirt that we have been
21 referring to, is the T-shirt removed from Darlie Routier
22 following the attack, which has been admitted into
23 evidence as State's Exhibit No. 25; is that correct?
24 A. Yes, sir, it is.
25 Q. And were you aware that photographs
Sandra M. Halsey, CSR, Official Court Reporter
4771

1 were shown to the jury in State's Exhibits 120-A, 120-B,
2 120-C, 120, 121-A and 121, and that he testified to what
3 you believe is a contradiction?
4 A. Yes, sir.
5 Q. From, not only State's Exhibit 25 but
6 also from State's Exhibit 120-A, B, 120-C, 121-A, 121 and
7 120?
8 A. Yes, sir.
9 Q. Just going back to the 911 tape one
10 second. Would you tell us why you believe it is material
11 and important for the jury to hear the differences
12 between the transcription in 18-E and your transcription
13 which is 96 and 96-A?
14 A. Yes, sir. Mr. Douglass, one of the
15 problems in developing a transcript of any taped
16 conversation is that if you once have a transcript which
17 is written and then you hear the tape, people will tend
18 to hear what is written.
19 The way to develop a transcript is to
20 listen line-by-line the words that you can hear, and try
21 to develop a transcript as accurately as possible and
22 then verify it through listening.
23 It is very easy to misconstrue,
24 misstate a transcript if a person reads that transcript
25 and listens to the tape at the same time. And therefore,
Sandra M. Halsey, CSR, Official Court Reporter
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1 a transcript must be exactly accurate or as accurate as
2 it can be in order to keep from suggesting information on
3 the tape which is not there.
4 Q. Okay. You may have responded to this,
5 I was listening to Mr. Mulder, but let me ask you this:
6 Do you believe then that when the State scrolls their
7 version of 18-E up on the screen, that through the power
8 of suggestion the jury hears what is on that screen when
9 it is not on the tape?
10 A. There's two problems with it. First,
11 they read what they hear and they don't hear what the
12 secondary conversation is. So if the secondary
13 conversation, meaning the communications officer, the
14 dispatcher or other people occur, they don't hear that
15 conversation, so the response maybe not in answer or
16 related to that particular piece of the conversation.
17 So the jury -- it's very suggestive to
18 a jury and they can hear and see what they see, when in
19 fact that is not what is being said.
20 Q. Mr. Harrell, the record will show what
21 discrepancies there are. But for the purpose of this
22 Bill, I want you to go to, for instance, what you think
23 is one of the most egregious examples of where the
24 State's Exhibit 18-E is misleading, and explain, just one
25 or two examples of where there is significant
Sandra M. Halsey, CSR, Official Court Reporter
4773

1 discrepancies between 96-A and 18-E.
2 A. Okay. And starting just briefly on, I
3 will use the second minute and second reference that is
4 in the transcript. At 3520, which is 35 seconds and 20,
5 the female caller in the State's version says, "Though he
6 was dead, oh, my God." I hear, "He's seven years old.
7 He is dead. Oh, my God."
8 On 3929 I hear, "I don't even know."
9 I hear, "I don't even know who did it." The State's
10 transcription says, "I don't even know," unintelligible.
11 On 4315, I hear, "I don't even know
12 who would do it, Darin." The State's transcription is,
13 "I don't even know," unintelligible.
14 At 4928, we have a major discrepancy.
15 I hear, "Who would do this?" The State's transcription
16 is, "Who was breathing?"
17 At 5115, I hear, "Oh, my God, who
18 would do this?" The State's transcription is, "Are they
19 still laying there?"
20 Q. Okay. Let me stop you there.
21 A. Yes, sir.
22 Q. So in effect, if the State is going to
23 say that their transcription which says, "Who was
24 breathing, are they still laying there," is of some
25 significance?
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4774

1 A. I believe it is, yes, sir.
2 Q. Would you agree that if their version
3 is, "Who was breathing, are they still laying there," and
4 the correct version is, "Who would do this? Oh, my God,
5 who would do this?" That is a material difference?
6 A. Yes, sir, I believe it is.
7 Q. Do you believe that it is important
8 that the jury know about this difference?
9 A. Yes, sir.
10 Q. Going on through, without going
11 through every -- I mean, is it fair to say that some of
12 these are adding in extra words?
13 A. Yes, sir.
14 Q. But they may not change the context?
15 A. And sometimes the addition has to do
16 with the fact that in the truncated version which appears
17 on the screen, in order to eliminate the communication's
18 officer, they have truncated out the communication's
19 officers, so a statement made by Darlie appears to be one
20 continuous statement, when in fact, it's interrupted by
21 communication officers making comments.
22
23 MR. S. PRESTON DOUGLAS: May I have
24 one moment, your Honor?
25 THE COURT: Sure.
Sandra M. Halsey, CSR, Official Court Reporter
4775

1 MR. S. PRESTON DOUGLASS: For the
2 purposes of this Bill, your Honor, I don't have any
3 further questions.
4 THE COURT: All right. Anything, Mr.
5 Davis?
6
7
8 CROSS EXAMINATION
9
10 BY MR. GREG DAVIS:
11 Q. Mr. Harrell, in making this new
12 transcript, how did you process the 911 tape?
13 A. I didn't process the 911 tape. I
14 listened to the laser disk.
15 Q. Oh, so you used your ears just like I
16 used my ears to listen to the tape?
17 A. Yes, sir, I did.
18 Q. So no processing with any software, no
19 processing with any computer, no processing with any sort
20 of equipment whatsoever?
21 A. No, sir.
22 Q. And for the record, you have been in
23 the courtroom the entire length of the trial, have you
24 not?
25 A. Yes, sir, I have.
Sandra M. Halsey, CSR, Official Court Reporter
4776

1 Q. Okay. With regards to the 911 tape,
2 why didn't you make your own transcript before we started
3 trial?
4 A. We did not have the laser disk before
5 trial.
6 Q. You had a copy of the 911 tape, didn't
7 you?
8 A. We did not have -- we did not have the
9 copy of the laser disk, nor did we have the enhanced copy
10 before trial.
11 Q. Sir, did I ask you that?
12 A. No, sir.
13 Q. Would you please answer my question
14 then. Did you have a copy of the 911 tape?
15 A. Yes, sir, we did.
16 Q. Now, Mr. Harrell, with regards to Tom
17 Bevel, you went to Oklahoma City to talk with him because
18 you knew he would be a witness in this case, didn't you?
19 A. Yes, sir.
20 Q. So the fact that he testified during
21 the course of this trial did not come as any surprise to
22 you, did it?
23 A. No, sir.
24 Q. And during that meeting -- it was
25 about a four-hour meeting with Mr. Bevel?
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1 A. Yes, sir.
2 Q. You didn't attempt to record that
3 meeting, did you?
4 A. No, sir.
5 Q. Ever ask Mr. Bevel whether it would be
6 all right to record the meeting or not?
7 A. No, sir.
8 Q. Okay. So even though that was open to
9 you, you chose not to record the meeting; is that right?
10 A. Yes, sir.
11
12 MR. GREG DAVIS: That's all I have,
13 your Honor.
14 THE COURT: You may step down. Thank
15 you very much. All right.
16 Are we going to have the young lady
17 too?
18 MR. JOHN HAGLER: Your Honor, do you
19 want me to go ahead and make the objection now or wait
20 until the other one?
21 THE COURT: Well, is the young lady
22 going to testify also?
23 MR. S. PRESTON DOUGLASS: No, that's
24 all right, your Honor.
25 THE COURT: Just Mr. Harrell.
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4778

1 MR. JOHN HAGLER: We are going to
2 withdraw the other witness.
3 THE COURT: All right. The other
4 witness is withdrawn. And for the record --
5 MR. DOUGLAS MULDER: No, Judge, we are
6 not going to withdraw the other witness. We're simply --
7 we dictated into the record what the witness,
8 substantially what the witness would testify to, and
9 we're satisfied with that rendition of what the witness
10 will testify to.
11 THE COURT: All right. That's fine.
12 And so now, Mr. Hagler.
13 MR. JOHN HAGLER: Okay, your Honor,
14 let me just kind of back up a second.
15 THE COURT: All right.
16 MR. JOHN HAGLER: I want to try and
17 break this down. And again, your Honor, as the Court
18 knows, Rule 613 is not a per se exclusionary rule. And,
19 the Webb case, which I have already cited for the Court, ____
20 states that this Court conducts a type of balancing test.
21 What the Court does, it looks to see,
22 one, there is obviously a purpose for upholding the Rule,
23 and that has to be balanced against the detriment and
24 cost to the defense and how crucial the excluded
25 testimony is going to be.
Sandra M. Halsey, CSR, Official Court Reporter
4779

1 Now, furthermore, your Honor, the
2 Court has to look to see what type of witness this is.
3 There really are basically two types: One is an
4 unintended witness. This is going to be a witness who,
5 during the course of the trial may become very important
6 but was unknown, or the importance of that witness'
7 testimony was unknown prior to the trial.
8 The other category, if you want to
9 call it that, would be one where a witness would walk
10 into the courtroom, unbeknownst to the defense, and the
11 defense had no knowledge as to that witness' presence in
12 the courtroom.
13 Now, as to the lady, Arenda, I forget
14 what her last name now is, but in that case, that would
15 be a situation where we had no knowledge of her presence
16 in the courtroom at the time of the testimony during the
17 course of this trial.
18 As far as Mr. Harrell, obviously as
19 being our investigator, we were certainly aware of his
20 presence, but again, that particular type of witness,
21 your Honor, is going to be an unintended witness.
22 In other words, one in which we had no
23 knowledge prior to the trial of the importance and
24 significance of what his testimony may be during the
25 course of this trial.
Sandra M. Halsey, CSR, Official Court Reporter
4780

1 Now, your Honor, as I understand, I
2 have kind of broken this down into three different areas.
3 One of them is going to be the impeachment of Bevel.
4 Secondly, is going to be the wire intercept. And third
5 is going to be the preparation of the 911 tape.
6 Let's take Bevel first. Your Honor,
7 we went up and interviewed Bevel. And what I want to
8 focus in on, is that we relied on his testimony as to the
9 fact that there was a mixture of blood on the knife tip
10 of the alleged weapon.
11 That evidence is going to be
12 important, and we would submit crucial to the defense in
13 this case, as has already been brought out and is going
14 to be argued to the jury.
15 We had no knowledge, your Honor, that
16 he was going to come down and testify in this trial that
17 the two bloods occurred during separate occasions, as he
18 uses the term, as opposed to one incident, that is the
19 reason why this testimony is crucial. Again, we had no
20 knowledge of that until he testified on the stand at
21 which time Mr. Harrell's testimony now becomes crucial to
22 our defense to impeach his prior testimony. So that is
23 the first one.
24 And certainly we had -- and again, I
25 might add, that we're simply focusing in on this one
Sandra M. Halsey, CSR, Official Court Reporter
4781

1 particular area.
2 As far as the wire intercept
3 testimony, your Honor, they are the ones who originally
4 injected it into this case the matter about the grave
5 side matter. You know, we certainly have -- never had
6 any intention of ever doing that. That started a
7 combination of testimony and events that ended up
8 resulting in the testimony and the issue about the
9 illegal wire intercept. And again, we never intended to
10 go into this matter until it was injected into the case
11 before the jury by the State.
12 As far as the preparation of the 911 tape,
13 again, we didn't have the disk until during the course of
14 the trial. Furthermore, the preparation of it is a mere
15 ministerial act on the part of Mr. Harrell. Certainly
16 his presence in the courtroom wouldn't have any manner or
17 bearing on the preparation of the tape itself. And he is
18 subject to cross examination like any other witness.
19 Now, again, in all respects, you know,
20 this testimony is going to be crucial, and likewise the
21 testimony of the other lady witness, Arenda.
22 Your Honor, to exclude this testimony
23 would constitute a violation of our rights to compulsory
24 process under Article 1 Section 10 of the Texas
25 Constitution, and the 5th, 6th and 14th Amendments of the
Sandra M. Halsey, CSR, Official Court Reporter
4782

1 United States Constitution, and would also constitute a
2 violation of 613, in light of the fact that if this
3 Court, and I know this Court will conduct a balancing
4 test, but certainly, the importance and crucial nature of
5 this testimony far outweighs any violation of the Rule,
6 which, again, was unknown and unintended on the part of
7 the defense.
8 And for all of those reasons, we would
9 vigorously urge the Court to allow Mr. Harrell, and the
10 witness, Arenda, to testify before the jury.
11 THE COURT: All right. The Court --
12 there is nothing else from either side?
13 MR. GREG DAVIS: No, sir.
14 THE COURT: All right. The ruling of
15 the Court remains the same. The -- I think that the
16 Court, the Rule of Evidence -- first of all, the defense
17 should have made notice of this prior to these
18 proceedings starting if you wanted somebody in. That was
19 not done.
20 So I feel that the Rule will take
21 precedence in this case. I am holding that the Rule
22 does, and these witnesses will not be permitted to
23 testify, and the Bill has been made, which I think will
24 preserve any error that there may be in this ruling.
25 That having been done, can I see Mr.
Sandra M. Halsey, CSR, Official Court Reporter
4783

1 Mulder and Mr. Davis quickly, please?
2 MR. GREG DAVIS: Yes, sir.
3 MR. DOUGLAS MULDER: Yes, sir.
4 THE COURT: All right. Ladies and
5 gentlemen, we do have to clear some things out please.
6 We do have to vacate the courtroom.
7
8 (Whereupon, the spectators
9 Were excused from the
10 courtroom, and the
11 proceedings were held
12 in the presence of the
13 defendant, with her
14 attorneys, but outside
15 the presence of jury
16 as follows:)
17
18 THE COURT: Mrs. Routier, would you
19 mind raising you right hand, please.
20
21 (Whereupon, the witness
22 was duly sworn by the
23 court, to speak the truth,
24 the whole truth and
25 nothing but the truth,
Sandra M. Halsey, CSR, Official Court Reporter
4784

1 after which, the
2 proceedings were
3 resumed as follows:)
4
5 THE COURT: Do you solemnly swear or
6 affirm that the testimony you are about to give will be
7 the truth, the whole truth, and nothing but the truth, so
8 help you God?
9 THE DEFENDANT: I do.
10 THE COURT: All right. Thank you.
11 Ma'am, you have a right under the Fifth Amendment of the
12 Constitution of the United States not to testify in this
13 case if you so desire.
14 If you want to testify, no one can
15 stop you. If you don't want to testify, no one can make
16 you. Do you understand that?
17 THE DEFENDANT: Yes, sir.
18 THE COURT: If you testify, you are
19 going to be considered like any other witness, and
20 anything you say can and will be used against you, plus
21 the State's attorneys will have the right to cross
22 examine you and ask you questions; do you understand
23 that?
24 THE DEFENDANT: Yes, sir.
25 THE COURT: If you elect not to
Sandra M. Halsey, CSR, Official Court Reporter
4785

1 testify, and I will instruct the jury that they can not
2 hold that against you for any reason whatsoever; do you
3 understand that?
4 THE DEFENDANT: Yes, sir.
5 THE COURT: And, I know you have
6 discussed this with Mr. Mulder, and Mr. Mosty, and Mr.
7 Glover, and Mr. Douglass, and Mr. Hagler all of your
8 attorneys.
9 THE DEFENDANT: Yes, sir.
10 THE COURT: And understanding all of
11 your rights do you wish to testify or not?
12 THE DEFENDANT: Yes, sir.
13 THE COURT: All right. Fine. And I
14 believe, you would like to be excused now for a minute,
15 which is fine.
16 Ms. Biggerstaff, if you will please
17 remove any restraints that may be on the defendant.
18 Now, I take it that Mrs. Routier will
19 be going to the ladies room in a minute, and then we will
20 get on with her testimony.
21 And, Mr. Mulder, and Mr. Mosty, and
22 all of the attorneys for the record, you are satisfied
23 that your client understands her rights?
24 MR. JOHN HAGLER: Yes, sir.
25 THE COURT: Okay. Fine. Thank you.
Sandra M. Halsey, CSR, Official Court Reporter
4786

1
2 (Whereupon, the defendant
3 returned to the courtroom,
4 after which time, the
5 proceedings were resumed on
6 the record in open court,
7 as follows:)
8
9
10 THE COURT: All right. Bring the
11 audience back in, please.
12
13 (Whereupon, the members of
14 the audience returned to the
15 courtroom, and the proceedings
16 were resumed as follows:)
17
18
19 THE COURT: Is everybody ready to
20 bring the jury back in?
21 MR. GREG DAVIS: Yes, your Honor, we
22 are ready.
23 MR. PRESTON DOUGLASS: Yes, your
24 Honor, we are ready.
25
Sandra M. Halsey, CSR, Official Court Reporter
4787

1 (Whereupon, the jury
2 Was returned to the
3 Courtroom, and the
4 Proceedings were
5 Resumed on the record,
6 In open court, in the
7 Presence and hearing
8 Of the defendant,
9 As follows:)
10
11 THE COURT: All right. Let the record
12 reflect that all parties in the trial are present and the
13 jury is seated.
14 Ladies and gentlemen of the jury, this
15 witness has already been sworn outside of your presence.
16 Mr. Mulder.
17 MR. DOUGLAS MULDER: Yes, sir.
18 THE COURT: You may proceed now.
19 MR. DOUGLAS MULDER: Yes, sir. Thank
20 you.
21
22
23
24
25
Sandra M. Halsey, CSR, Official Court Reporter
4788

1 Whereupon,
2
3
4 DARLIE LYNN ROUTIER,
5
6 was called as a witness, for the Defense, in her own
7 behalf, having been first duly sworn by the Court to
8 speak the truth, the whole truth, and nothing but the
9 truth, testified in open court, as follows:
10
11
12 DIRECT EXAMINATION
13
14 BY MR. DOUGLAS MULDER:
15 Q. You are Darlie Routier?
16 A. Yes, sir.
17 Q. And, Darlie, will you tell the jury
18 how old you are?
19 A. I'm 27.
20 Q. Okay. And are you married?
21 A. Yes.
22 Q. Tell the jury where you grew up?
23 A. Well, I was born in Altoona,
24 Pennsylvania, we moved when I was seven years old. We
25 moved to Lubbock, Texas, we came back to Pennsylvania,
Sandra M. Halsey, CSR, Official Court Reporter
4789

1 when I was probably about 11 and moved again when I was
2 13 back to Lubbock.
3 Q. Okay. Were you in school there in
4 Lubbock?
5 A. Yes I was.
6 Q. And, at that time, what did your
7 family consist of?
8 A. Well, it was myself and my mother and
9 my father and, my two little sisters, Dana and Danielle.
10 Q. And, how much younger were they than
11 you?
12 A. Well, Dana is 10 years younger than I
13 am. And Danielle is almost 12 years younger than I am.
14 Q. Okay. How long did you stay there in
15 Pennsylvania before you moved, if you did?
16 A. The first time? Or the second time?
17 Q. Well, as I understand it, you were
18 born there and lived there. About how long did you live
19 there?
20 A. Seven years.
21 Q. Okay. And where did you move when you
22 left Pennsylvania?
23 A. Lubbock, Texas.
24 Q. Okay. And, how long did you stay
25 there in Lubbock?
Sandra M. Halsey, CSR, Official Court Reporter
4790

1 A. It was just a few years at that time.
2 Q. Okay.
3 A. We moved back to Pennsylvania after
4 that.
5 Q. All right.
6 A. And then after that I believe we moved
7 back to Lubbock when I was 13.
8 Q. Okay. Were you in school there in
9 Lubbock?
10 A. Yes.
11 Q. Did you graduate from high school
12 there in Lubbock?
13 A. Yes, sir.
14 Q. All right. Did you have any further
15 or higher education other than high school?
16 A. No, sir.
17 Q. All right. Now, while were you there
18 in high school in Lubbock, did you have occasion to meet
19 Darin Routier?
20 A. Yes, I did.
21 Q. And, how old were you when you met
22 Darin?
23 A. I was 15 when I met Darin.
24 Q. All right. And, what was he doing at
25 that time?
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4791

1 A. At that time Darin was running or
2 helping as assistant manager of a place called Western
3 Sizzler, it's a steak place in Lubbock.
4 Q. Okay. And, how did you happen to meet
5 him?
6 A. Well, it was on Mother's Day, and my
7 mother had been telling me about this great guy that
8 worked at Western Sizzler with her, and she brought me in
9 and introduced me to him, and Darin and I hit it off just
10 right away. It was automatic.
11 Q. All right. Did you begin dating?
12 A. Yes.
13 Q. Was he older?
14 A. Yes.
15 Q. How much older was he?
16 A. Two years.
17 Q. Okay. He graduated from high school,
18 did he?
19 A. Yes, he did.
20 Q. Okay. And, moved to Dallas?
21 A. Yes, sir.
22 Q. Okay. I'll ask you if you then got
23 engaged at some point?
24 A. Yes, we did.
25 Q. And do you remember where you were
Sandra M. Halsey, CSR, Official Court Reporter
4792

1 when you got engaged?
2 A. Yes, we were in Purgatory, Colorado.
3 We were up on a ski lift, when Darin asked me to marry
4 him.
5 Q. All right. And you agreed I take it?
6 A. Yes.
7 Q. All right. And you were married
8 sometime after you graduated from high school?
9 A. Yes, sir.
10 Q. Will you tell the jury when you were
11 married?
12 A. We were married August 27th, 1988.
13 Q. Okay. And, did you go on a honeymoon?
14 A. Yes, we did.
15 Q. Where did you go?