<h1>Driving While Intoxicated Jury Selection</h1>
<p>revenue for about 60 percent of your business?<br />A. Yes, it says “the client affected by this” —<br />Q. Don’t read a document not in evidence. Answer my question.<br />A. I’m sorry, ma’am. I misunderstood.<br />Q. I asked you if you wrote up a report where you said you were concerned about the loss of revenue of about — that makes up about 60 percent of your business?<br />A. Yes, ma’am, that’s included here.<br />Q. And you didn’t remember, but now you do since you’ve read it?<br />A. Ma’am, I see a lot of documents. I don’t remember everything.<br />Q. Well, you certainly remember losing 60 percent of your business. And that’s a lot more than just a worksheet that was not reported to you by Cherrie Lemon; isn’t that a fact, Mr. Stevens?<br />A. We had some other issues with Cherrie.<br />Q. You ran a sloppy shop.<br />A. Ma’am, that’s not accurate.<br />Q. Would that be part of your performance? It happened on your watch. Or is there some other part of your performance you’re not sharing with us?<br />A. Ma’am, that looks — I don’t even know about that document. I’ve never seen it. My initials are on it. For all I know, where it says involuntary and it was performance, maybe that’s a dropdown. I don’t know.<br />Q. Maybe it’s a what?<br />A. A dropdown on their form. Like a list. I have no idea about that.<br />Q. The HR department has your personnel file that says you are involuntary terminated based on your performance and you don’t have a clue what that’s about?<br />A. I would like to ask them.<br />Q. Now, you also had disciplinary — you led the jury to believe the only reason Cherrie got fired was because of a missing work report that she — or worksheet that she didn’t report to you. But that’s not true, is it?<br />A. That was the final reason why we let her go.<br />Q. Oh, now it’s the final reason. But when you testified earlier you made it sound like that’s the only thing she did.<br />A. My mislead was not intentional.<br />Q. Well, under your watch she was busy talking on the phone while she was doing her lab work and you wrote up a disciplinary on that?<br />A. I would like to read it for myself if I may.<br />Q. You want me to come up there every time, I will. You don’t remember some of this?<br />A. Ma’am, like I said, I see a lot of things. I don’t remember everything.<br />Q. How many people you got working in that lab?<br />A. I don’t know how many are there right now.<br />Q. By the way, where are you working right now?<br />A. I’m working at a foreign car repair shop.<br />Q. Where?<br />A. A foreign car repair business.<br />Q. A foreign car —<br />A. Yes, ma’am.<br />Q. — repair business?<br />A. Yes, ma’am.<br />Q. Doing what?<br />A. I’m working as a service writer.<br />Q. So you’re not in the lab business anymore?<br />A. No, ma’am.<br />Q. When did you tell the prosecutors you were working in the foreign car, what did you call it, service department?<br />A. Yes, ma’am.<br />Q. When did you tell them that?<br />A. I don’t think I was ever asked.<br />Q. So it’s news to them right now?<br />A. Probably, yeah.<br />Q. Let me show you what’s marked as Defendant’s Exhibit No. 6 and ask you whether or not Cherrie Lemon made excessive phone calls while she was tending to her duties?<br />A. Yes, that’s written here.<br />Q. And that was under your watch, right?<br />A. I was the laboratory director.<br />Q. So the answer is yes?<br />A. Yes, ma’am.<br />Q. Now, when mistakes get made in your lab, you’re supposed to report those mistakes. You’re supposed to write up something called a corrective action report; is that right?<br />A. That is correct.<br />Q. Some people refer to them as a CAR?<br />A. Correct.<br />Q. And can you tell us how many corrective action reports you had to write up on Cherrie?<br />A. Not the number off the top of my head, but I know she had a few.<br />Q. I have a few of them. Do you remember corrective action report 1305?<br />A. I know the number. I don’t know what’s on it.<br />Q. The one where samples were switched?<br />A. May I see it?<br />Q. Sure. While I’m at it, for the record, I’m going to bring you corrective action report 1305, 1301, 1304, there’s also 1308, 1411, 1401, 1412, 1406 and 1306. And you’ll find them all in this pile of stuff I have. But here’s a few of them.<br />Here’s Defendant’s Exhibit 7, 8 and 9 for you to look at. Those are some samples of the CARs, right?<br />A. That is correct.<br />Q. And that’s something you write up every time somebody does — that you catch somebody doing a boneheaded thing; is that right?<br />A. That’s correct. So it’s a part of the quality system. People aren’t perfect, we make mistakes, so we document and fix them.<br />Q. To err is human?<br />A. Yes, ma’am.<br />Q. There were a lot of errors in your lab. Maybe why you’re not lab director anymore?<br />A. Ma’am, I would like to read this one.<br />Q. Okay, sure. Go ahead.<br />A. These are all for the drug lab, not for blood alcohol.<br />Q. There are errors in your lab, aren’t there?<br />A. As there would be in any lab.<br />Q. I’ve got some more in there. I’ll let you look through them as well. You can try to minimize that if you will.<br />(Brief pause)<br />Q. Okay. To be clear, Dr. Stevens, you said earlier you didn’t know how many CARs there were, corrective action reports, on Cherrie Lemon. You told the jury she got fired because of a worksheet. And so these are not necessarily in any order, but here is for you to look at and refresh your memory on how many there were.<br />Here is corrective action report 1304, Defendant’s Exhibit 7; 1305, Defendant’s Exhibit 8; 1301, Defendant’s Exhibit 9; 1308, Defendant’s Exhibit 10; 1411, Defendant’s Exhibit 11; corrective action report 1401, Defendant’s Exhibit 12; 1412, Defendant’s Exhibit 13.<br />Defendant’s Exhibit 13 or 14, we just made a mistake, is the exact duplicate of 1412. So it’s a different exhibit, same corrective action report. Defendant’s Exhibit (sic) 1406, Defendant’s Exhibit 15; and corrective action report 1306, Defendant’s Exhibit 16.<br />Do you remember now, sir, that you had to write up some corrective action reports on Cherrie Lemon for mistakes made under your watch in your lab?<br />A. Well, ma’am, not all of these pertain to Cherrie. But yes, I know I had to write them up. All I said was I don’t know how many.<br />Q. And it’s a far cry different than what you told the jury when you were testifying pursuant to the questions of the prosecutor on she was let go for one thing?<br />A. No. What I said — I said what the final thing she was let go for. Again, didn’t mean to mislead in that case.<br />Q. And those are just corrective action reports. That doesn’t even get to the disciplinaries that have gone on.<br />A. Correct. This is normal business operation in any laboratory that has accreditation.<br />Q. And all of those mistakes and corrective action reports were under your watch, which might affect your own performance, correct?<br />A. No, this is a good thing. This assures that the laboratory is working and the quality system is finding things.<br />Q. I’m sorry. That’s why you’re still working there?<br />A. Ma’am, like you say, I don’t know why it says there.<br />Q. Well, so when you have to write a corrective action report, you’re still supposed to also notify the Forensic Science Commission of problems in your lab as well, aren’t you, sir?<br />A. That is the quality director’s job. And if the issue that is found needs to go to them, then she would, or that individual, in this case it’s a woman, would decide that.<br />Q. And who decides if the issue is big enough to notify the Forensic Science Commission?<br />A. As I said, the quality director.<br />Q. That’s not you?<br />A. No, I’m the laboratory director.<br />Q. That’s Ms. Watts?<br />A. Yes, ma’am.<br />Q. She’s your quality lab director?<br />A. Quality director yes.<br />Q. And Ms. Elise Watts notified the Texas Forensic Science Commission only one time; isn’t that right?<br />A. I think that’s correct, yes.<br />Q. And yet we’ve got all of these mistakes that I only know a fraction of and you only self-reported, in other words, told it on yourself one time?<br />A. Because the others, if you go into the details, are minor issues.<br />Q. And so minor enough that you had to write up a corrective action report. So now you’re going to minimize these mistakes?<br />A. No, you’re misleading.<br />Q. Am I?<br />A. Anything that happens in the laboratory has to be per our accreditation, that it does not follow SOP, has to be documented. Even if it’s something simple. This is a good demonstration of how the quality system is working. We had these reviewed by our assessors, which are the people who come in —<br />MS. MOORE: I object to nonresponsive, Your Honor.<br />THE COURT: Sustained.<br />Q. So while you’re busy trying to minimize these mistakes, you lost 60 percent of your business when the San Antonio Police Department lost confidence in your lab; isn’t that right?<br />A. While I was doing my job, unfortunately we lost a client. It’s business.<br />Q. And you don’t think that has anything to do with why you’re working at a foreign car place now?<br />A. Ma’am, like I said, I’m going to go and talk to HR and find out what that means.<br />Q. Now, let’s just talk about a few things that you mentioned. You tried to make it sound like the ASCLD certification was a big deal. You characterized what you told the jury trying to make it sound like it was a big important deal?<br />A. Yes, ma’am, it is.<br />Q. Now, here’s what they do. ASCLD notifies you, hey, we’re coming down to look at your lab, right? They don’t show up unexpected, right?<br />A. Correct.<br />Q. Correct?<br />A. Correct.<br />Q. And they say have ready for me and provide to me a couple of samples of your work, right?<br />A. Correct.<br />Q. And so you get to go in and find the absolute best representative sample of your work, right?<br />A. Sometimes that’s the case.<br />Q. Are you going to tell the jury that you showed ASCLD your worst work?<br />A. No. Sometimes the assessor will — they’ll request, say, 50 cases and we just have to pick 50 and then they will choose what they want to review from there.<br />Q. And my point is you’re the one that gets to select the cases you’re going to show ASCLD?<br />A. Not me personally.<br />Q. Your lab, sir —<br />A. Yeah, in some cases.<br />Q. — gets to go through and select, cherrypick the cases they want to show ASCLD?<br />A. If they choose to do that. I think it’s Elise who normally does it. She can pick whatever she wants.<br />Q. And you think that Elise is in there picking examples of her worst work to show ASCLD?<br />A. Ma’am, I’m not Elise. You would have to ask her.<br />Q. All right. And so that’s basically all it is. They let you know they’re coming and you get to cherrypick what you want to show them and if all is according to plan, then you get accredited?<br />A. No, there’s so much more to it than that.<br />Q. Yeah. And the rules for ASCLD say you’re not to come into a courtroom and try to make that sound like because you have that accreditation that things are going correctly in your lab on any given day?<br />A. Ma’am, I haven’t said — you’re putting words in my mouth.<br />Q. Well, you kind of insinuated that. Perhaps I am stating it pretty strongly, but what was the point of you talking about that to the jury if you were not trying to insinuate that? That’s what you were doing, right?<br />A. Well, ma’am, I was just answering questions.<br />Q. You were further trying to insinuate you knew something about Robert’s tolerance.<br />A. No, I wasn’t. If you heard what I said, I said in general.<br />Q. Yeah, in general. Well, you don’t know Robert Washington, do you?<br />A. No, ma’am.<br />Q. You don’t know if he drinks one beer a day or one beer every two or three times a year?<br />A. No.<br />Q. You’re asking the jury to assume something when you don’t have any evidence of it whatsoever; isn’t that correct?<br />A. No, I was just answering the question given to me.<br />Q. So to be clear, you don’t have any evidence of his tolerance, do you?<br />A. Oh, no.<br />Q. Okay. Now, while you — can you tell us where the samples of the blood that was taken from Robert’s tube and placed in the glass vials were kept and where the quality control is to tell us where they were kept from June 1st to June 3rd?<br />THE WITNESS: If I may refer to my notes, Your Honor.<br />THE COURT: Sure.<br />A. Are you referring to June 1stthrough June 16 of 2015?<br />Q. No. I’m referring to June 1st through June 3rd.<br />A. And what exactly is your question?<br />Q. Okay. I’m not talking about the blood vial that was received from the police. I’m talking about after that blood has been removed from a tube and put into the identical little glass vials for the purpose of loading it into the gas chromatograph, okay?<br />Where was that blood from June 1st to June 3rd?<br />A. Okay.<br />Q. And what documentation are you in possession of to prove it?<br />A. Well, ma’am, once they’re sampled, they would’ve been placed in the refrigerator.<br />Q. Once they’re sampled?<br />A. Correct.<br />Q. What about before they’re sampled?<br />A. They’re in the refrigerator.<br />Q. So who would’ve removed it from the refrigerator?<br />A. Alexandria Bills.<br />Q. And where is the documentation to show us that it was removed from the refrigerator by Alexandria Bills or anybody else?<br />A. On the chain of custody.<br />Q. I’m not talking about — let’s get clear again now. I’m not talking about the tube of blood that came from the police department.<br />A. Right.<br />Q. I’m talking about after it was taken out of that gray tube top and put into one of these glass vials, okay? It went somewhere from June 1st to June 3rd. Where did it go and how do you know it went there and where is your proof for it?<br />A. You would have to ask her what she did with them at that time.<br />Q. Well, as a lab director don’t you require a chain of custody for that blood?<br />A. Which exists for the samples, yes.<br />Q. I’m sorry?<br />A. I’m sorry, for the evidence. It exists for the evidence, yeah.<br />Q. I didn’t ask you about that.<br />A. I know.<br />Q. I just asked you about the chain of custody. Let me make myself really clear again, okay?<br />This is a chain of custody form. It’s in evidence, it’s State’s Exhibit No. 8. The jury has seen it.<br />A. Yes, ma’am.<br />Q. We’ll put it up so you can see it. You’ve seen it many times. No. 8, there it is. That’s the chain of custody for this vial —<br />A. Okay.<br />Q. — police vial.<br />Where is the chain of custody form for the blood that you’re testifying about on these results?<br />A. I see.<br />Q. The ones that went into the little glass vials, where is that chain of custody form?<br />A. I see. So at that time IFL did not document where those vials go. But they are labeled — after we sample them, they’re labeled and then the technicians have a procedure to follow.<br />Q. So your answer to my question is there is no chain of custody form, right?<br />A. Not for the sample, no.<br />Q. So your answer is I don’t know because we didn’t keep one, right?<br />A. Yes, ma’am.<br />Q. Even on this chain of custody form, State’s Exhibit No. 8, when blood is, in this case blood, is removed, there is a comment section over here, isn’t there?<br />A. Correct.<br />Q. And something is supposed to be written in that comment section as to the purpose for removing something from that refrigerator, isn’t it?<br />A. If needed.<br />Q. If needed? Well, there’s nothing here, is there?<br />A. No, there’s not.<br />Q. That’s because you didn’t require that procedure be followed at your lab?<br />A. The quality system — this was up to the quality director. It was not required at that time.<br />Q. Do you think it’s got something to do with why you’re working at a foreign car place?<br />A. No, ma’am.<br />Q. So you’re not — just to be on the positive side here — you’re not in possession of any documentation and there is none that exists that can tell us where that blood was from June 1st to June 3rd when Ms. Bills said that the testing was complete?<br />A. No, there’s no documentation.<br />Q. We don’t know who touched it, right?<br />A. Not on paper we don’t.<br />Q. We don’t know. We don’t know. We don’t know. We don’t know anything about it, do we?<br />A. Not on paper you don’t, no.<br />MS. MOORE: I will pass the witness.<br />THE COURT: All right. Mr. De La Cruz.<br />Conditional page break: 2<br />REDIRECT EXAMINATION<br />BY MR. DE LA CRUZ:<br />Q. Dr. Stevens, so earlier when the defense attorney was going over corrective actions with individuals who worked at IFL, those were individuals who no longer worked — were these individuals working at IFL at the time that this blood was tested from this defendant?<br />A. Those individuals were not working there, no.<br />Q. And the individual who tested this blood, did they have any issue that you know of as far as their procedures and testing the blood?<br />A. Not that I’m aware of.<br />Q. And the three individuals who were fired from IFL wouldn’t have any bearing at all in this case?<br />A. No.<br />MR. DE LA CRUZ: Pass the witness.<br />Conditional page break: 2<br />RECROSS-EXAMINATION<br />BY MS. MOORE:<br />Q. Well, the only way we know that is if the person had — there’s no quality control in terms of somebody else in the lab, checks and balances in the lab with an analyst to say I made a mistake, right? Right? There’s nobody else in there, correct?<br />A. I’m sorry, ma’am. Could you clarify?<br />Q. There’s no checks and balances in the lab — in other words, you don’t have two people in there, one to check off on whether or not people are doing things correctly?<br />A. No, we don’t have somebody standing over every individual, no.<br />Q. So the only way you would know if Ms. Bills made a mistake is if Ms. Bills came and told you she made a mistake?<br />A. Yes.<br />Q. And, by the way, in that batch that went through the gas chromatograph to be tested, there were a couple of samples in there that were below the legal limit of .08, weren’t there?<br />A. I will have to have a look.<br />THE WITNESS: If I may, Your Honor?<br />THE COURT: Sure.<br />A. Ma’am, when you say samples, what are you referring to? Are you referring to blood samples or controls?<br />Q. I’m referring to, I believe, blood samples.<br />(Brief pause)<br />THE COURT: Can you answer the question, sir?<br />THE WITNESS: Oh, I’m sorry. I missed the question.<br />Q. (BY MS. MOORE) In the batch, in the batch that went through —<br />A. Yes.<br />Q. — how many vials would there have been in that batch that went through?<br />A. In the total batch?<br />Q. I know there were controls in there as well, but the total number of vials that went through?<br />A. So there were 24 pieces of evidence and nine controls.<br />Q. Was there anything in there that was under .08?<br />A. Yes, we have a blank sample that we run, that’s zero. And we have controls that we run as well. We bracket the whole run with those. And they have a ethanol value of .07776.<br />Q. Now, you’re aware of this book, aren’t you, sir? I’m going to hold it up for you, Garriott’s.<br />A. Yeah.<br />Q. It’s kind of like the Bible in the blood alcohol world, right?<br />A. I’m aware of it. I know about it.<br />Q. Well, in fact, you know that the authors of this book are renowned experts?<br />A. I believe so.<br />Q. And so you’re aware of a table, a chart in there that these renowned experts talk about what a person would be experiencing that is at a particular blood alcohol level.<br />A. I haven’t looked through the whole —<br />Q. Oh, you haven’t seen this chart in you don’t when? I will make a Xerox copy of this chart. I can’t put my book into evidence. It costs too much money. We’ll mark the page and then we’ll make a Xerox at a break.<br />Just to be clear, I’m not putting my book into evidence. I’ve marked this page as Defendant’s Exhibit 17 and we can always make a copy of that.<br />All right. And you’re aware that this is the book, right?<br />A. I’ve seen it before, yeah.<br />Q. Sure you have. And how about that chart? You’ve seen that chart as well before, too, haven’t you, that’s marked as Defendant’s Exhibit 17?<br />A. I’ve seen versions of it, yeah.<br />Q. That’s pretty much —<br />MS. MOORE: May I come around, Your Honor?<br />THE COURT: Yes.<br />Q. So tell us about this .16. Tell us and refresh your memory if you need to from looking at the chart. Or let me ask you, according to these renowned experts, if a person is at a .16, they would be between a point — between a .09 and a .25, right?<br />A. Correct.<br />Q. That’s between. Now, that’s called kind of the excitement stage, right?<br />A. Correct.<br />Q. And so a person that is at that level would be experiencing some emotional instability; is that correct?<br />A. I believe so, yeah.<br />Q. A loss of critical judgment?<br />A. Yes.<br />Q. Impairment of perception, correct?<br />A. Correct.<br />Q. Memory and comprehension issues?<br />A. Correct.<br />Q. Decreased sensory response?<br />A. Correct.<br />Q. Increased reaction time?<br />A. Correct.<br />Q. Residual visual acuity and peripheral vision?<br />A. Correct.<br />Q. And a slow glare recovery, right? Sensory motor incoordination.<br />A. Yes.<br />Q. Impaired balance?<br />A. Yes.<br />Q. Slurred speech?<br />MR. DE LA CRUZ: Your Honor, we’re going to object to the defense attorney reading from evidence — or from a document not in evidence.<br />THE COURT: Sustained.<br />MS. MOORE: Okay. I will offer it into evidence. I will offer the copy that I will make from the book.<br />MR. DE LA CRUZ: We’re going to object to hearsay, Your Honor.<br />THE COURT: Sustained.<br />Q. (BY MS. MOORE) Okay. So you’re aware of what these experts say. Are people who are between .09 and .25 vomiting?<br />A. That would be up to the individual. I don’t know.<br />Q. I’m saying do the experts say that? Are you aware of literature? Are you aware of literature that says they would be vomiting?<br />A. Yes, it’s, as you say, right there.<br />Q. By the way, did you look at the videotape in this case?<br />A. No, ma’am.<br />MS. MOORE: Okay. Pass the witness, Your Honor.<br />THE COURT: Mr. De La Cruz?<br />MR. DE LA CRUZ: No further questions from this witness, Your Honor.<br />Page break<br />P R O C E E D I N G S<br />Tuesday, June 28, 2016<br />* * * * * * * *<br />(Open court, Defendant and jury present)<br />THE COURT: All right. At this time the State may begin with their opening statement.<br />MS. THERIOT: May it please the Court.<br />The defendant chose to go out and drink Friday night. I think we’ve established there’s nothing wrong with that. There’s nothing against — there’s nothing in the law that says you can’t go out, have a beer and drive home. That’s not the issue.<br />But what the law does say is that you can’t go out, drink, become impaired and then drive your car.<br />MS. MOORE: I hate to object, Your Honor. It says intoxicated, not impaired.<br />THE COURT: All right. Sustained.<br />MS. MOORE: Sorry.<br />MS. THERIOT: The defendant pulled out of a bar parking lot without his lights on. He was pulled over by an officer because of that. When the officer came in contact with him, he had bloodshot eyes, he admitted to drinking, he could smell the alcohol on him. So this led the officer to inquire as to why.<br />When Officer Moeller — there’s some argument about if there’s staggering, swaying. There’s no swaying. And Officer Moeller had told you that one of the things when you do the HGN, you stand with your feet together. And one of the things is so you can see that swaying.<br />Now, if you want, you can go back and watch the video for another time, add that fifth role to you. But if you notice and look back, the defendant never once stands with his feet together. He’s always standing with his feet apart.<br />Now, I want you to think about that. What is the steady stance? Even when the officer asked him to stand with his feet together, he still doesn’t, because he chooses to refuse, and that is his right, but he still stands with his feet apart. We don’t ask you to check your common sense at the door. We ask you to use it and bring it with you.<br />Fast-forward, Officer Moeller arrives and asked him to perform the SFST’s and he chooses not to. Now, I’m sure everyone would like to see — and he told you what those tests were for, to give him a more full picture. And the defendant chose not to do that. He told him he refused and he didn’t want to. Now, he was polite about it.<br />No one here is saying that the defendant is a bad person or that he is belligerent. That’s not it. We are saying he is intoxicated. He just happens to be a nice intoxicated person. But we don’t have the swaying or any further proof as far as his instability because the defendant chose not to give it to us. So the officer made a decision based on what he had.<br />Now, he was arrested by Officer Moeller, taken to the jail. He was — same person in custody was taken to the hospital. Same person in custody left with Officer Moeller and went to jail and then that blood was taken to the property room where it was checked in and then you saw from the chain of custody where it was sent to IFL.<br />Why are we here? We are here because the defendant chose to drive while he was intoxicated. The officer thought he was intoxicated, so he got the blood test. And it confirmed his suspicions.<br />Now, we talked about in voir dire, I think Darren told you about his aunt where she has one beer and she’s got to sit for a while. And I want you to think about what we talked about in voir dire and think about people that you know. And think about how different things affect them. I mean, .16 seems like a lot. And maybe for someone who doesn’t drink very often it is.<br />MS. MOORE: Judge, I’m sorry. I hate to interrupt. But I must object if she’s asking the jury to think about other people and compare that to Robert. That’s speculation, it’s inviting improper — to bring in something outside of the evidence.<br />THE COURT: Sustained.<br />MS. THERIOT: I just want you to consider what we talked about in voir dire.<br />MS. MOORE: And I would object again, Your Honor. They should consider the evidence, not what was talked about in voir dire, but what came from the witness stand.<br />THE COURT: Well, the jury will remember what the evidence was. I will sustain the objection.<br />You’ve used five minutes, Ms. Theriot.<br />MS. THERIOT: Thank you.<br />This case is not about some bad employees that worked for a lab. Those employees weren’t even employed there when this lab went through. This case is not about an individual who now works servicing cars.<br />You had a chance to listen to Alexandria Bills. And just because Alexandria chose to go work for Austin Police Department where she works for a CSI unit instead of in a lab dealing with blood all day — no offense, it’s kind of boring — I can’t imagine working doing that. Just because she chose to do something different doesn’t change the reliability of that test.<br />We will ask you to consider all the evidence, don’t leave your common sense at the door. Bring it with you.<br />THE COURT: All right. Ms. Moore.<br />MS. MOORE: Thank you, Judge.<br />This case has too many mistakes made by too many people and is too sloppy to convict someone. Too many mistakes made by too many people and is entirely too sloppy to convict.<br />I’m going to tell you the same thing today that I told you yesterday. Robert is a very fortunate young man. Because he’s got a jury that took an oath and swore to uphold the law. And in doing so, that is demanding that the government prove their case beyond any reasonable doubt. So if you have one reasonable doubt, even one, the benefit goes to Robert. The benefit never goes to the government.<br />So if anything that has come up in this courtroom gives you pause, gives you concern, raises a reasonable doubt, even one, in your mind, then your verdict that you took an oath to uphold is not guilty. And I submit that’s the proper verdict because this case has been entirely too sloppy.<br />Human beings are human beings. And human beings make mistakes. But you’ve heard the government suggest that any mistake Robert made must have been because he was intoxicated. But yet they don’t hold anybody else accountable for theirs.<br />She actually stood here and suggested that Robert, that the natural stance of a human being is with their feet together. Of course when you get out of a car, I don’t know, how do you stand?<br />No, I agree. Please don’t leave your common sense behind, all right? Take this case and look at each witness and the mistakes that were made.<br />You can start with Officer Moeller. I think I laid out seven or eight times he made a mistake. Okay. And he’s a human being. But they want to pound on Robert for not having his lights on. Well, let’s just take a look at that whole thing, okay?<br />Like they say, if you want to play the video again, you can. It’s up to you. You can ask for that evidence. But I think we’ve played it enough that you can see that Robert, although his lights were off as he initially pulls out into that street, he does not, according to Officer Hollwedel, he does not drive like a drunk. He’s not weaving within a lane. He’s going right on down the road.<br />And he’s got his blinker on when he pulled out. He’s got his blinker on before he even knows there’s a police officer anywhere around, he’s using his turn signal indicating that he’s using his mental faculties, right? But gosh, he made a mistake. He didn’t have his lights on. So let’s pound Robert for that.<br />And what does Robert do when the lights flash on? What does he do? He uses his turn signal again. And he pulls into a very safe place so that the officer doesn’t have any pressure of cars coming by, you know, and get hit. So what does that indicate? It indicates that Robert is using good judgment. That’s what it indicates.<br />And so what about that? As they walk up to him and they ask for his driver’s license, you see him on the tape pull it out of his pocket. You don’t see any fumbling. You see him reach right in and hand that officer his driver’s license indicating his mental faculties are fine and his physical faculties are just fine.<br />When they ask him to step from the car and he does so, you don’t see Robert leaning on anything for support. Not at all. Not at all. When he gets out of that car, he does not stumble, he didn’t fumble, he didn’t stagger, he didn’t weave, he didn’t sway, he didn’t do any of those things that you see with somebody who is twice the legal limit. And that’s because Robert was not intoxicated.<br />Do they smell alcohol? Yes. He says he had three drinks, okay? And so you say, well why, why, did he not take these field sobriety tests? He said no, if you’re even close, you don’t do it. That’s what his dad told him. And you know what? He said because my dad told me not to. If you’re even close, my dad told me not to.<br />Well, you had three drinks. So you’re getting close, but you’re not there. Three drinks is not intoxicated and three drinks is not above .08. So he told the truth right there. No, I’m not going to do that. My dad told me not to.<br />Now, you can decide whether you believed Officer Moeller or not whenever he is saying to Robert as he tries to pretend like he’s not trying to talk him into doing the tests, but he was. That’s exactly what he was trying to do. And then he says, you’re not leaving me much to go on here, Robert. And Robert says, well, my dad told me not to and he works for a law firm. And boom, the handcuffs, turn around.<br />He says oh, no, no. No, I didn’t arrest him because I thought he was the son of a lawyer. I didn’t arrest him because of that. Maybe he didn’t. Maybe he didn’t. It’s not even really an issue. But you can decide if you believe him or not.<br />But the point is what happened? After Robert has handcuffs on, that’s kind of an awkward position to be in, not being able to use your arms for balance. If you’re twice the legal limit, don’t you think not being able to use your arms for balance you might have some trouble walking? You might have some trouble getting in that police car? You might have some trouble getting out of that police car? But you didn’t see any of that. And that’s because he wasn’t intoxicated.<br />And then probably the best evidence is when they pull up in the bay at the police department. Because the lights are on, it’s well lit and you can really get a good look at Robert. You get a real good look. And you don’t see Robert having any trouble getting out of the back of the patrol car with his hands tied behind his back.<br />And I played the angle from the dashcam for the very reason that you could see him really good up against the garage door. And you could see the straight lines and you could tell that there was not — he was straight as an arrow, not twice the legal limit.<br />What is it that people twice the legal limit are supposed to be exhibiting?<br />MR. DE LA CRUZ: Objection, Your Honor. We’re going to object if she’s going to read from facts not in evidence.<br />MS. MOORE: He testified. I’m going to repeat to you what Dr. Stevens testified.<br />MR. DE LA CRUZ: Your Honor, may we have a ruling?<br />THE COURT: It’s overruled.<br />MS. MOORE: You didn’t see any emotional instability; you didn’t see any loss of critical judgment; you didn’t see any impairment of perception or memory or comprehension; or decrease of sensory response; or increased reaction time; or reduced visual acuity or peripheral vision and slow glare recovery. You didn’t see any sensory motor incoordination; impaired balance; you didn’t see any vomiting; you didn’t see any drowsiness; you didn’t see any of that because that wasn’t Robert. That’s why you didn’t see any of that.<br />You saw a guy standing there that was listening to that police officer, that was responding to that police officer. And when the police officer fired those questions at him, he fired those answers right back. Not somebody twice the legal limit as they would have you believe. That’s because Robert is not guilty. Look at his actions. And that’s just not the actions of an intoxicated person.<br />This case has too many mistakes and too many people making the mistakes. The nurse comes in and the nurse says, well, I drew the blood, I guess. I don’t know. I mean, I usually do, but I don’t remember him.<br />Wonder how I knew there was an African-American lady named nurse Williams? It’s true. He didn’t document her name anywhere. But, you know, because they tried out of this arm, they tried out of this arm, they had to try back on this arm. Come on. He’s not expected to remember because, gosh, he works in emergency and he’s trying to save people’s life. But they’re trying to ruin somebody’s life and convict him of a crime. And you’ve got to demand more than sloppy work.<br />Yes, it’s a DWI. It’s a Class A misdemeanor. It will be a blemish on his life for the rest of his life. This happened in, what, April of ’15. And here we are and he’s carrying this burden on his back. It’s important to a young man. So we can’t just come in here and speculate somebody guilty.<br />There is a reason we have a burden of proof. There is a reason that burden of proof is beyond a reasonable doubt and it is the highest burden in this country in any courtroom. We don’t ruin lives with sloppy work done by police departments and whatever labs.<br />And to have you embrace that lab report sickens me. Because nobody should be convicted of anything coming out of that lab. Nobody. That man is now working at a car dealership, Dr. Stevens. And he wants you to believe, why, I had no idea it was because of my performance. Do you really believe that?<br />Here’s what you really know. You really know that there was a million opportunities for Alexandria Bills to make a mistake. But the biggest thing is, the absolute biggest thing, is nobody from the lab can account for the blood from the time she put it in the vial until June 3rd. So from June 1st until June 3rd it is unaccounted for. There was no chain of custody. There was no way to know if it was sitting out with acetone in a room. There was no way to know if anybody else touched it because they didn’t have quality control.<br />But they want you to convict a young man based on that kind of sloppy work? I don’t think so. There’s a reason we have beyond a reasonable doubt. We don’t convict people based on guesswork. Well, probably. Good enough for government work. No. You got to come in here with a good, solid case. And it’s got to be compelling and convincing beyond a reasonable doubt. And, ladies and gentlemen, this case fails.<br />If you have one reasonable doubt, the benefit goes to this young man right here. And I submit to you there’s a million reasonable doubts. I just raised them. Every time he used his blinker, that’s a reasonable doubt that his mental faculties were fine. Every time he didn’t stumble or lean on something or stagger or sway or fumble or stumble is a reasonable doubt. There are plenty of reasonable doubts. Please vote Robert not guilty and don’t put your stamp of approval on this kind of sloppiness. Thank you.<br />THE COURT: All right. Mr. De La Cruz, you have nine minutes.<br />MR. DE LA CRUZ: May it please the Court.<br />Ladies and gentlemen, it was the defendant’s choice to go out that night, to drink to the point of intoxication and drive his vehicle home. And at every opportunity that the defendant had, he tried to hide the truth, the truth that he was intoxicated that night.<br />Sergeant Hollwedel pulled the defendant over for driving without any headlights. When he started talking to the defendant, he noticed that the defendant had an odor of alcohol coming from his breath, he had bloodshot eyes. And that he asked the defendant if he had been drinking and the defendant admitted to just coming from a bar.<br />So he does what he’s supposed to do, he calls Officer Moeller to the scene to take over the DWI investigation. When Officer Moeller arrives on the scene, he observes the same thing from the defendant. The odor of alcohol coming from the defendant, bloodshot eyes, defendant admits to drinking.<br />And he asked the defendant to perform field sobriety tests, tools that will help him judge whether this individual was intoxicated. And he asked him on scene, do you feel intoxicated? Defendant’s answer, no. So why not do the field sobriety tests if he wasn’t intoxicated? He didn’t feel intoxicated. It’s because he was trying to hide the truth, the truth that he was intoxicated that night.<br />And Officer Moeller had him start the HGN test, the defendant said, can I decline this one? Officer Moeller said, are you declining all tests or just this test? He said he was just declining that one, because he’s trying to hide the truth.<br />Officer Moeller moves on to the next test, starts explaining that. The defendant says, you know what, I’m going to decline this test, too. Officer Moeller tells him, I have a feeling that you’re going to decline all tests. Is that where we’re going? And he says yes. And he asked him why. And he says because his daddy told him that if he is even close, he needs to refuse.<br />And right there, ladies and gentlemen, we have the truth. He knows he’s intoxicated. He knows that it’s best for him to refuse to do anything, to provide any evidence in this case because it’ll make it harder.<br />And so Officer Moeller places the defendant under arrest for DWI investigation, takes him down to the station house where he reads him his rights. And part of that told the defendant that if he refuses to provide a sample, then it could be used as evidence against him in this case. Also told him that if he refused, he’d be facing a six-month license suspension. The defendant chose to take that six-month license suspension than to provide anything in this case. Because he was trying to hide the fact that he was intoxicated.<br />And so Officer Moeller did what he was supposed to do, he went out and he got a warrant. Had a judge issue a warrant to get the defendant’s blood. At that moment, the defendant could no longer hide. The defendant had to give his blood and that’s what we have here.<br />We have the defendant’s blood that was properly drawn, there’s no issue. We know it’s the defendant’s blood. And we have a lab result. And you heard testimony of how this lab result properly tested this blood. I know the defense attorney tried to bring out individuals who used to work at IFL that no longer work there who were fired for misconduct that they did in the lab.<br />But that’s what you want out of a lab. You want them to get rid of the problem employees. And that’s what they did in this case. Those three individuals never touched this case, they weren’t even employed at the time that this case came to IFL.<br />You had Alex Bills who tested the blood. And you heard that there was no issue with Alex. Defense attorney never had any issue with her work. Nate Stevens, her supervisor, said that Alex didn’t have any issues. Those other three individuals did, but they weren’t there.<br />And defense attorney wants to attack Nate Stevens, a man who’s having hard time. I mean, he’s a doctor working at a auto repair shop. And you saw his expression when he found out that IFL wrote that it was due to that he was involuntary fired. He was hurt. He didn’t think that was the case. He thought it was a restructuring deal. He clearly was hurt. But that doesn’t take away from the fact that an individual who had no problems tested this blood and that we got a valid result that was at a .161, two times the legal limit.<br />Now, defense attorney has said that there have been too many mistakes in this case. Well, let’s talk about what’s reasonable. Is it reasonable for all five individuals to have done just a terrible job and that somehow this defendant was wrapped up in a fictitious DWI investigation? Or is it reasonable that this 31-year-old man went out to a bar — he clearly likes to drink — he got to a .161, got in his car, didn’t turn the headlights on. It’s his car. Turns on the street, luckily Sergeant Hollwedel is right there, pulls him over.<br />Is it reasonable for this 31-year-old man to be to the point where he is two times the legal limit, driving with no headlights on, odor of alcohol coming from his breath, he looks like he’s intoxicated, bloodshot eyes, you hear slurred speech. You can go back and watch the video.<br />And he refuses because he knows that he’s intoxicated and this his dad, who works at a law firm, told him this is what you should do if you ever get pulled over and you know that you’re intoxicated. And that’s what he did. He tried to hide the truth from you.<br />And when we talked yesterday, I asked you that if the State proved all the elements beyond a reasonable doubt to you, could y’all find the defendant guilty. And everybody here said yes. And everybody here said that their verdict would be guilty.<br />Ladies and gentlemen, that’s what we did. We provided evidence on each and every element beyond a reasonable doubt to you. And so we’re asking that you hold to your word and you find the defendant guilty, because that’s what he is. Thank you.<br />[END OF REQUESTED EXCERPT] STATE OF TEXAS<br />COUNTY OF TARRANT<br />I, William Shelton, Official Court Reporter in and for the County Criminal Court No. 2 of Tarrant County, Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter’s Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me.<br />I further certify that this Reporter’s Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties, if requested.<br />I further certify that the total cost for the preparation of this Reporter’s Record is $785.00 and was paid by Dunham & Jones, P.C.<br />WITNESS MY OFFICIAL HAND, on this the 2nd day of November, 2016.</p>
<p>_____________________________<br />William Shelton, CSR<br />Texas CSR No. 4089, Exp: 12/31/18<br />Official Court Reporter<br />County Criminal Court No. 2<br />401 W. Belknap, 6th Floor<br />Fort Worth, Texas 76196<br />Telephone: (817)884-2920<br />email:woshelton@tarrantcounty.com</p>
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