<h1 class="entry-title">Trial on the Merits</h1> <p>P R O C E E D I N G S<br />THE COURT: All right.<br />MS. WASHINGTON: Judge, may I have one second to ask Abe a question? It might cut down on one witness, if he agrees to it?<br />THE COURT: Sure.<br />MS. WASHINGTON: Just one second.<br />(Pause in proceedings.)<br />MR. DEFENSE COUNSEL: Judge, on the custodian, I&rsquo;ll stipulate that the &mdash;<br />THE COURT: The records.<br />MR. DEFENSE COUNSEL: No. That the affidavit is true. I&rsquo;m not going to question &mdash; if you were here, she&rsquo;s here, but I&rsquo;m not going to question her about, you know, whether her name &mdash; what her name is. She&rsquo;s making the affidavit. We&rsquo;re going to object to the content, but it&rsquo;s unrelated to her.<br />THE COURT: Okay.<br />MR. DEFENSE COUNSEL: You see what I&rsquo;m saying?<br />THE COURT: Yeah. The records are coming in, but he&rsquo;s going to argue about some of the records being admissible.<br />MR. DEFENSE COUNSEL: Right.<br />THE COURT: So can she be released or &mdash;<br />MR. DEFENSE COUNSEL: Yeah, that&rsquo;s fine.<br />&emsp;<br />MS. WASHINGTON: Yes.<br />THE COURT: What about &mdash; oh, that&rsquo;s not the Baylor &mdash; that was the 911 operator. What about the Baylor hospital lady?<br />MS. WASHINGTON: She wasn&rsquo;t supposed to be here &mdash;<br />THE COURT: Abe, have you decided if you&rsquo;re going to do the same thing with her?<br />MR. DEFENSE COUNSEL: I don&rsquo;t know. I may have a few questions for her.<br />THE COURT: Okay. All right.<br />MR. DEFENSE COUNSEL: I mean, I&rsquo;ve got the medical records.<br />MS. WASHINGTON: And, Judge, I believe you may have signed the writ of attachment for Cathleen Young?<br />THE COURT: Uh-huh. It&rsquo;s downstairs in the clerk&rsquo;s office or Emily has it.<br />MS. WASHINGTON: Okay.<br />THE COURT: All right. Guys, I&rsquo;ve got to get the jury out here and instruct them because I haven&rsquo;t done that yet. All right. Bring the jury out.<br />BAILIFF: Yes, ma&rsquo;am.<br />MS. WASHINGTON: Judge, we&rsquo;re going to invoke the Rule.<br />&emsp;<br />THE COURT: Okay. Let me instruct the jury first. You can have a seat, sir.<br />(Jury enters the courtroom.)<br />THE COURT: Y&rsquo;all can sit front row, back row, wherever you&rsquo;re most comfortable. All right. If you all will be seated.<br />All right. The first thing I need to do is swear you in as the jury. So if you would remain seated but raise your right hand.<br />(Jury sworn.)<br />THE COURT: All right. Put your hands down. I&rsquo;ll give you these further instructions. The case will proceed in the following order: The District Attorney will read the information, and the defendant will enter his plea. The State then can make an opening statement outlining its case. The Defense may then make an opening statement, but they need not do so. Opening statement is not evidence but is merely to aid you in generally understanding the nature of the case and the significance of the evidence when it is introduced. After the opening statement, if any, the<br />&emsp;<br />State will introduce evidence. At the conclusion of the State&rsquo;s evidence, the Defense has the right to make an opening statement, if they did not do so previously, and to introduce evidence. Remember, though, they do not have to do so. At the conclusion of the evidence, the attorneys then make their closing arguments to you. Faithful performance by you of your duties is vital to the administration of justice. The law applicable to this case will be contained in the instructions I give you during the course of this trial, and it is your duty to follow all such instructions. It is your duty to determine the facts and determine them from the evidence and reasonable inferences arising from such evidence. In so doing, you must not indulge in guesswork or speculation. The evidence which you are to consider consists of the testimony of witnesses and exhibits admitted into evidence. The admission of evidence in court is governed by rules of law. So from time to time, it may be the duty of the attorneys to make objections, and my duty as the judge is to rule on those objections and whether or not you can consider certain evidence. You must not concern yourself with<br />&emsp;<br />objections or the Court&rsquo;s reasons for these rulings. You must not consider testimony or exhibits to which an objection was sustained or which has been ordered stricken. Opening statements and closing arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but they are not evidence. You must not be influenced by any degree by any personal feeling of sympathy for or prejudice against the State or the defendant, for each is entitled to the same fair and impartial consideration. No statement or ruling or remark which I may make during the presentation of testimony is intended to indicate my opinion as to what the facts are. You six determine the facts. In this determination, you alone must decide upon the believability of the evidence, its weight and value. In considering the value and the weight of the witness, you may take into account their appearance, their attitude, and the behavior of the witness, the interest of the witness in the outcome of the case, and the relation of the witness to the complainant or the defendant, the inclination of a witness to speak<br />&emsp;<br />truthfully or not, the probability or improbability of the witness&rsquo;s statements, and all other facts and circumstances in evidence. Thus, you may give the testimony of any witness just as much or just as little weight and value as you may believe the testimony of such witness is entitled to receive. Until this case is submitted to you for your deliberations, you must not discuss this case with anyone or remain within hearing of anyone discussing it. After the case has been submitted to you, you must discuss this case only in the jury room and only when all six of you are present. You&rsquo;re to keep an open mind, and you must not decide an issue in this case until the case is submitted to you for your deliberations under the instructions of the Court, as I have previously explained.<br />Do not tell other jurors your personal experiences nor those of other persons nor relate any special information. A juror may have special knowledge of matters, such as business, technical, professional matters, or may have expert knowledge or opinions or may know what happened in this or some other case. To tell the jurors any of this information is a violation of these<br />&emsp;<br />instructions. Do not seek information contained in law books, dictionaries, public or private records, or elsewhere which is not admitted into evidence. At the conclusion of all the evidence, I will submit to you a written charge that contains all the law applicable to this case. You need to consider all the evidence admitted, so it&rsquo;s important that you pay close attention to the evidence as it is presented. Texas law permits the proof of the violation of the rules of proper jury conduct. By this I mean that jurors and others may be called upon to testify in open court about acts of jury misconduct. I instruct you, therefore, to follow carefully all the instructions which I have given you, as well as any other instructions you receive while this case is on trial. Any violation of these instructions should be reported to me at once. What I just went over is the exact same thing in the little card that was given to you today. Right? They got little cards, right? Y&rsquo;all got little cards?<br />JURORS: Yes.<br />THE COURT: Okay. What the card&rsquo;s telling you and what I&rsquo;m telling you is base your decision upon<br />&emsp;<br />the evidence that you hear in this courtroom and from nothing else. All right. I think at this point we have some witnesses that need to line up at the bar, and I will swear them in.<br />MR. DEFENSE COUNSEL: Judge, you know we&rsquo;re requesting the Rule.<br />THE COURT: Pardon me. Okay. All right. Starting with you, sir, if you would statement your name.<br />WITNESS: Detective Chris Brashear.<br />WITNESS: Dr. Joseph Chad Sumrall.<br />WITNESS: Wendy Young.<br />WITNESS: Officer Robert Watson.<br />THE COURT: All right. If each of you would raise your right hand.<br />(Witnesses sworn.)<br />THE COURT: All right. The Rule has been called for, which means you may not remain in the courtroom. You&rsquo;re not to converse with each other, any other person, about the case, except by permission of the Court. You&rsquo;re not to read from any report or comment upon the testimony in the case while you&rsquo;re under the Rule. We have to do opening statements, so if y&rsquo;all would all go out that back door, and they&rsquo;ll call<br />&emsp;<br />you in one at a time.<br />(Witnesses leaves the courtroom.)<br />THE COURT: I would now ask the State to arraign the defendant.<br />(Information read.)<br />THE COURT: Sir, to those charges, how do you plead: Guilty or not guilty?<br />MR. DEFENSE COUNSEL: Not guilty, Your Honor.<br />THE COURT: Okay. Thank you very much. Y&rsquo;all may have a seat. State wish to make an opening?<br />MS. WASHINGTON: Yes, Your Honor.<br />THE COURT: All right. You may proceed.<br />MS. WASHINGTON: Good afternoon, ladies and gentlemen. Defense counsel.<br />A few moments ago, we did voir dire and we could not get into the facts of the case. Now is the time where we will go into the facts of the case and what we believe actually happened. Now, I will tell you this is going to be a case where we have an uncooperative witness. I&rsquo;m just going to tell you that off the bat. But I believe the evidence will be so straightforward that you will surely have enough to find the defendant guilty of assault,<br />&emsp;<br />assault on a family member. I believe the evidence will show that Cathleen Young was called at about 1:30 in the morning by her daughter, Wendy Young. Wendy Young called from a truck driver&rsquo;s cell phone because the defendant had kicked her out of the vehicle, out of her personal vehicle, while they were on 35 East in Hillsboro. That&rsquo;s in Hill County. When Cathleen Young went and picked her daughter up, she had injuries to her face. And she asked her what happened. And Wendy tells her mom that she was struck by the defendant. One of the first places they went to after the assault occurred was to the Baylor hospital on 35 in Waxahachie. And you will hear Dr. Sumrall testify that when he saw Wendy Young, he &mdash; she told him the person who assaulted her was my boyfriend. He will describe to you and go over the injuries that he saw, and he will tell you that he believed he (sic) had a fractured nose. That&rsquo;s how significant and extensive the injuries were. The evidence will go on to further show that after they left Waxahachie, they drove all the way back to &mdash; Lake Worth is where they ended to where they finally got Fort Worth Police Department to come out and take an offense report because the offense originally<br />&emsp;<br />occurred in &mdash; at University in Fort Worth. And we&rsquo;re going to show you a map, and we&rsquo;re going to go through all of that. It started in Fort Worth, and that&rsquo;s where everything began. But when it ended, it ended in Hillsboro, in Hill County. The State is going to call several witnesses. We&rsquo;re going to call Wendy Young, who was the injured party in this case. We&rsquo;re going to call Chad &ndash;Chris Brashear, who was the lead detective. We&rsquo;re going to call Dr. Sumrall, who was the person that saw Wendy initially. And we&rsquo;re also going to call Officer Robert Watson. He was the first officer that Wendy Young spoke with where she spoke to law enforcement. He was the one that took the report. He was the one that saw her originally and will describe the injuries that she sustained. And even he will tell you that Wendy Young said unequivocally it was her boyfriend, the defendant, David Minze, who assaulted her and caused her injuries. This isn&rsquo;t something new where we have injured parties who&rsquo;ve changed their stories. And I wholeheartedly believe that she will tell you that she got in a car wreck, and that&rsquo;s what caused the injuries. That&rsquo;s now what I believe she&rsquo;s going to tell you.<br />&emsp;<br />But when you listen to the evidence and you see the photographs, you will see that wasn&rsquo;t a car wreck. When you listen to it, she will &mdash; you will hear that she said he elbowed her in the nose, and that elbow is what caused this fracture to come right here on her nose. And at the conclusion of the testimony, at the conclusion of the evidence, we&rsquo;re going to ask you to go in the back and find the defendant guilty of assaulting Wendy Young. When you listen to the testimony, I ask you to take pay close attention to the details. Go back and listen to the details and pay attention to how the story is now versus how it was when it initially happened, when it was fresh, when it was new, with the blood, with the injuries, with the fractured nose. That&rsquo;s what I ask you to pay attention to. And when we come back to the end and we go over the summations, I&rsquo;ll ask you to find the defendant guilty and hold him accountable for his actions. Thank you.<br />THE COURT: Defense wish to make opening now or reserve?<br />MR. DEFENSE COUNSEL: I&rsquo;ll make one now, Your Honor.<br />THE COURT: All right. You may proceed.<br />MR. DEFENSE COUNSEL: Ladies and gentlemen, this<br />&emsp;<br />case is pretty simple. The Government got this case ready. The Government heard from a witness who said: Hold it. What happened is not true. The Government said: No. We have spent all this money. We&rsquo;ve got a federal grant. We&rsquo;re going through. We don&rsquo;t care about you.<br />MS. WASHINGTON: Judge, I&rsquo;m going to object. That&rsquo;s misleading and a misrepresentation to the jury. That is absolutely improper and inaccurate.<br />THE COURT: I&rsquo;ll sustain.<br />MR. DEFENSE COUNSEL: We will show that in this case, Wendy Young admitted what had happened and that she told the District Attorney not once, not twice, but more than three times. And Wendy Young was driving a car, and Wendy Young had been drinking. She gave one statement that night, which the District Attorney will &mdash; can only partially sponsor because it&rsquo;s so obviously not true. Maybe because she was not telling the truth about all of it, and maybe because she had been drinking some. But her testimony is not that this happened in &mdash; on University, the street University is mentioned, but, in fact, Jacksboro, Jacksboro Highway. Now, let&rsquo;s think about it. If you don&rsquo;t know, we&rsquo;ll have somebody testify for you, that Jacksboro<br />&emsp;<br />and Hillsboro are opposite directions. They are. We&rsquo;ll let you know that Jacksboro and Waxahachie are in opposite directions. It&rsquo;s not for us to tell you the absolute truth about what happened, but what you will understand is that what Wendy Young said that night could not have possibly be true. And the District Attorney knows what she said wasn&rsquo;t true, but they picked up on something that they wanted to be true. They picked up on something they wanted to be. Enough for them to file a complaint. You said it didn&rsquo;t happen, but at some point you did. So we&rsquo;re going with that, okay? I anticipate she&rsquo;ll be &mdash; she&rsquo;ll be sworn. I understand that she&rsquo;ll testify here today. She will tell you, in fact, what really did happen. One of the things she&rsquo;ll tell you is that she was prompted by her mother to make an accusation against David and that she, because of her hysterical state, because of her &mdash; possibly because of her intoxication, and possibly because she had another medical problem that couldn&rsquo;t possibly be related to an assault, she did later on &mdash; when she was free from her mother&rsquo;s influence, she decided to come clean about it. And so you will have some questions about a<br />&emsp;<br />few things. One, was she injured? She was definitely injured. Was she injured at David&rsquo;s hands? No evidence. No evidence, okay? Was she injured in Tarrant County? Maybe. Maybe in Jack County, maybe in Wise County, maybe in Hill County, and maybe in Ellis County. But you&rsquo;re not going to have proof beyond a reasonable doubt of that because all of this was put together off of a formula. Put together off of a formula who tried to make it fit in, make &mdash; make square pegs fit into round holes so it would be easy for the District Attorney. But it&rsquo;s not easy for the District Attorney, and it may not be easy for you because the truth of the matter is Wendy&rsquo;s sort of fragile. Wendy has a &mdash; has a number of emotional problems. Wendy decided to come clean, and instead of acknowledging the fact that she wanted to tell the truth, the District Attorney said: Well, we&rsquo;re going ahead without you. We&rsquo;re going to call you hostile because you told the truth.<br />THE COURT: All right. Call your first witness.<br />MS. WASHINGTON: Your Honor, the State<br />&emsp;<br />calls Officer Robert Watson.<br />THE COURT: Okay. If you would get him for me, please.<br />(Witness enters the courtroom.)<br />THE COURT: All right, sir, if you would come up here, have a seat, and adjust the mic. You have to pull it a little bit closer.<br />THE WITNESS: (Complies.)<br />THE COURT: There you go. All right. You may proceed.<br />MS. WASHINGTON: Thank you, Your Honor. ROBERT WATSON, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. WASHINGTON: Q. Could you please introduce yourself to the ladies and gentlemen of the jury?<br />A. I&rsquo;m Officer Robert Watson. I&rsquo;m &mdash;<br />Q. And &mdash;<br />A. I&rsquo;m employed with the Lake Worth Police Department, currently assigned to the patrol division.<br />Q. And how long have you been employed with the Lake Worth Police Department?<br />A. Six years.<br />Q. And what are some of your current duties?<br />&emsp;<br />A. I&rsquo;m currently assigned to patrol division. I answer routine calls for service, traffic stops, just any typical particular patrol function.<br />Q. And what shift do you work at Lake Worth?<br />A. Nights. Night shift.<br />Q. Is that like 10:00 to 8:00?<br />A. It runs from 5:00 in the afternoon to 5:00 in the morning.<br />Q. And what &mdash; are you a certified peace officer?<br />A. Yes, ma&rsquo;am.<br />Q. What type of training did you have to go through to become a certified peace officer?<br />A. I had to complete a basic peace officer academy through a state &mdash; state mandated peace officer academy. After completing the academy, I had to take a TCLEOSE examination, which is the state peace officer license exam, in order to become a licensed peace officer. And then I obtained a job after that, after receiving that certification.<br />Q. Is Lake Worth the only agency that you&rsquo;ve worked with?<br />A. No, it is not.<br />Q. What other agency have you worked with?<br />A. I&rsquo;ve worked for Hood County Sheriff&rsquo;s Office in Granbury, Texas. And I&rsquo;ve also worked for the Tarrant<br />&emsp;<br />County Sheriff&rsquo;s Office.<br />Q. Now, Lake Worth, is that in Tarrant County, Texas?<br />A. Yes, ma&rsquo;am.<br />Q. Now, would that be north of Tarrant County, south of Fort Worth?<br />A. It&rsquo;s in the northwest part of Tarrant County.<br />Q. Okay. Now, let me draw your attention to May 8th, 2015. Do you recall what duties or what shift you would have been working then?<br />A. Yes. I was working &mdash; I believe it was midnight shift.<br />Q. Midnight shift. Okay. And did you have the occasion to take a report or complaint from &mdash; for the Fort Worth office?<br />A. Yes.<br />Q. And do you recall what the circumstances was surrounding that complaint?<br />A. I was notified by my dispatch &mdash; we were busy that night &mdash; notified by my dispatch there was a complainant in the lobby who she informed me that &ndash; that she may have been involved in an assault that took place in Fort Worth. So I met her, and upon getting the information she told me, I determined that an offense didn&rsquo;t occur in<br />&emsp;<br />Lake Worth; it occurred in the City of Fort Worth. So my dispatch contacted Fort Worth.<br />Q. Okay. And what brought you to that conclusion, that it happened in Fort Worth and not Lake Worth?<br />A. Based on what she told me.<br />Q. Okay. And do you recall the name of the victim, of the person that you had spoken with?<br />A. I &mdash; I don&rsquo;t recall.<br />Q. Do you know if she would have been by herself or with someone else?<br />A. She was with someone else.<br />Q. Okay. And when she &mdash; when she came to see you, could you describe what she looked like physically, if you recall?<br />A. It looked like she had just gotten out of the hospital. She had a possible band on her arms &mdash;<br />Q. Uh-huh.<br />A. &mdash; one of her arms. She also had a bandaid, I believe, on her nose.<br />Q. When you saw her, could you describe what her demeanor was, what her demeanor was like?<br />A. To me, she came off as maybe scared. I&rsquo;m just trying to remember what happened. She &mdash; it didn&rsquo;t appear that she was comfortable, in a comfortable environment.<br />Q. Could you tell if she had been crying or not?<br />&emsp;<br />A. I don&rsquo;t recall. MS. WASHINGTON: Judge, may I have one second?<br />THE COURT: Sure.<br />(Pause in proceedings.)<br />Q. (By Ms. Washington) Now, when you observed that individual, you said that she was with someone. Was it just the two of them, or was it somebody else?<br />A. It was &mdash; I believe it was her mother &mdash;<br />Q. Uh-huh.<br />A. &mdash; as well as her &mdash; a child was there, also.<br />Q. A child. Okay. And when you spoke with her, did you speak with the person with the injuries or the mother?<br />A. I spoke with both of them. They were standing side by side each other.<br />Q. Now, the person with the injuries, where did she tell you the assault occurred?<br />A. I believe she told me that it occurred &mdash;<br />MR. DEFENSE COUNSEL: Objection, hearsay, Your Honor.<br />THE COURT: Sustained. MS. WASHINGTON: Judge, I believe that this would fall under one of the exceptions of the hearsay rule. Be it present sense impression or excited<br />&emsp;<br />utterance, based on what the officer just testified to.<br />THE COURT: Any response?<br />MR. DEFENSE COUNSEL: Obviously not present sense impression. And also obviously not an excited utterance. If the officer is to be believed, this witness had already been to the hospital, possibly had medication. So excited utterance means under the throes &mdash; still under the throes of the events, so we know we&rsquo;re certainly &mdash; certainly past, several hours passed.<br />THE COURT: Sustained.<br />MS. WASHINGTON: And, Judge, just so we&rsquo;re clear, the case law says that the question turns on whether or not the person is still under the control of the events. In this case, the officer testified that the witness seemed afraid. She (sic) couldn&rsquo;t really tell if she had been crying or not, but she seemed uncomfortable and afraid. So I believe that it would still fall within one of the exceptions.<br />THE COURT: Denied.<br />Q. (By Ms. Washington) Now &mdash; MS. WASHINGTON: One second, please.<br />THE COURT: Sure.<br />(Pause in proceedings.)<br />Q. (By Ms. Washington) Now, when you &mdash; you said<br />&emsp;<br />that you came to the conclusion it happened in Fort Worth. Did you ever contact Fort Worth?<br />A. Yes, I did.<br />Q. And do you recall about what time you had contacted Fort Worth?<br />A. It was probably within maybe ten minutes of speaking with her. I basically left her in the lobby, and then I went and contacted Fort Worth.<br />Q. And do you know about how long, approximately, it took for Fort Worth to make it out to the location?<br />A. I&rsquo;d say between 45 minutes to an hour before they actually showed up.<br />Q. About 45 minutes to an hour. And the individual that you saw with the injuries, was she there the entire time, or did she at any point leave? Do you recall?<br />A. I don&rsquo;t know if she stepped outside or not, but from what I recall, she was there the entire time.<br />MS. WASHINGTON: Your Honor, permission to approach the witness?<br />THE COURT: Certainly.<br />Q. (By Ms. Washington) Okay. I&rsquo;m going to show you what&rsquo;s marked as State&rsquo;s Exhibits 1 through 5. Could you look at these and tell me if you recognize them?<br />A. Yes, I do.<br />&emsp;<br />Q. Now, would this have been the individual that you observed that night, May 8th, 2015?<br />A. Yes.<br />Q. And were these &mdash; do these photographs fairly and accurately reflect the way she looked that night when she was at your station?<br />A. Yes.<br />Q. And do they appear to have been altered or changed in any way?<br />A. No.<br />Q. And was this, in fact, taken at your police station?<br />A. Yes, it was.<br />Q. Okay.<br />MS. WASHINGTON: Your Honor, the State would move to introduce State&rsquo;s Exhibits 1 through 5 for purposes of the record. And I&rsquo;m tendering to defense counsel.<br />MR. DEFENSE COUNSEL: No objection.<br />THE COURT: All right. State&rsquo;s 1 through 5 will be admitted without objection.<br />Q. (By Ms. Washington) Now, when you saw Ms. &ndash; the IP in this case, you contacted the Fort Worth Police Department?<br />A. That&rsquo;s correct.<br />&emsp;<br />Q. You contacted Dispatch?<br />A. Yes.<br />Q. And have you had an opportunity to listen to the dispatch call?<br />A. Yes, a section of it, portion of it.<br />MS. WASHINGTON: Your Honor, permission to approach?<br />THE COURT: Sure.<br />MS. WASHINGTON: Judge, based on the State&rsquo;s previous motion, the State would move to introduce the exhibits from the Fort Worth Police Department as State&rsquo;s Exhibits 6, 6-A, and 7, for purposes of the record, the business affidavit. And I&rsquo;m showing to defense counsel.<br />MR. DEFENSE COUNSEL: May I ask some questions about the exhibit, Your Honor?<br />THE COURT: Certainly.VOIR DIRE EXAMINATION BY MR. DEFENSE COUNSEL:<br />Q. Officer, have you looked at this exhibit?<br />A. Looked at it or &mdash;<br />Q. Yes. Have you looked at it, and are you familiar with what it says?<br />A. No.<br />Q. Okay. So &mdash; I&rsquo;m sorry. You say you don&rsquo;t know<br />&emsp;<br />what it says? And you&rsquo;re not familiar with the contents?<br />A. The dispatch call or the &mdash; the recording, yes. I don&rsquo;t know what you&rsquo;re referring to, the exhibit.<br />Q. Okay. Well, the exhibit is about a dispatch call. And that&rsquo;s a dispatch call you made, right? Is that right?<br />A. I was called to my police department in reference to a &mdash;<br />Q. No. I&rsquo;m sorry. I&rsquo;m looking at an incident report that says: Caller name, Robert Watson, 286. Is that you?<br />A. That&rsquo;s me.<br />Q. Okay. So this is a call that you made to the Fort Worth Police Department?<br />A. Yes. Correct.<br />Q. Okay.<br />MS. WASHINGTON: And, Judge, this is based on Jill Nesbitt, who just testified. I believe I had already asked if defense counsel would stipulate as to the records coming in.<br />MR. DEFENSE COUNSEL: Judge, what I said &mdash; what I told the Court is we don&rsquo;t dispute the fact that the custodian is the custodian. I said we object to the contents. And we do object to the contents because the contents are hearsay.<br />&emsp;<br />MS. WASHINGTON: I&rsquo;ll get Jill Nesbitt. That&rsquo;s okay, Judge.<br />THE COURT: Hang on a second. I&rsquo;m going to send y&rsquo;all back to the jury room for just a second, please.<br />(Jury leaves the courtroom.)<br />THE COURT: All right. Mr. Defense counsel, if I can see the exhibit, wherever it is.<br />MR. DEFENSE COUNSEL: Sure.<br />THE COURT: Because my understanding of what the Defense is saying is, if Ms. Nesbitt was called to testify, that she would testify that this is a true and complete copy of the recording and a correct copy of the recording. But what you&rsquo;re saying is what is recorded &mdash;<br />MR. DEFENSE COUNSEL: Yes.<br />THE COURT: &mdash; is hearsay.<br />MR. DEFENSE COUNSEL: Yeah, that&rsquo;s right. And I said that earlier, we&rsquo;re not &mdash; we&rsquo;re not disputing the fact that she&rsquo;s the correct custodian. What we&rsquo;re disputing is whether the contents are admissible. And it&rsquo;s a phone call from this officer to a dispatcher. It&rsquo;s clearly hearsay.<br />MS. WASHINGTON: And, Judge, I believe &mdash; based on the case law of, I believe it&rsquo;s Davis versus Washington, and I believe it&rsquo;s Harmon versus Washington,<br />&emsp;<br />that 911 calls are not considered testimonial and are admissible under a hearsay exception of excited utterance or present sense impression. So it should come in.<br />MR. DEFENSE COUNSEL: Okay. Well, Judge, let me just say this: I think there are 911 calls, and there are 911 calls. I think there are 911 calls that also truly fall under the concept of excited utterance and present sense impression. But, obviously, this one is not, so&hellip;<br />THE COURT: Okay. Okay. So tell me this. Are we done with him?<br />MS. WASHINGTON: No, Judge.<br />THE COURT: Okay. All right. Well, then it sounds like I need to hear State&rsquo;s Exhibit 6-A to determine if it&rsquo;s hearsay. Do y&rsquo;all have the capability of playing?<br />MS. WASHINGTON: I have it. I can put it up here.<br />THE COURT: Okay. It&rsquo;s not very loud so if you want to scoot over here. I don&rsquo;t think &mdash; they&rsquo;re usually not very loud.<br />(Pause in proceedings.)<br />(State&rsquo;s Exhibit 6-A published.)<br />MS. WASHINGTON: If we can, I would just get Jill Nesbitt to come back in and &mdash;<br />THE COURT: That&rsquo;s not going to make any<br />&emsp;<br />difference. I mean, he&rsquo;s saying that this is a correct recording. He&rsquo;s agreeing to that, and that&rsquo;s what she&rsquo;s going to testify to. This is a true and correct recording. But everything this officer has said so far about where it occurred is hearsay.<br />MR. DEFENSE COUNSEL: No, no. That&rsquo;s &mdash;<br />THE COURT: I mean, that&rsquo;s &mdash;<br />MR. DEFENSE COUNSEL: I&rsquo;ve already said that a couple of times.<br />THE COURT: Yeah. I mean, that&rsquo;s &ndash; I mean, have we heard it, or are they coming back on?<br />MS. WASHINGTON: I think they&rsquo;re coming back on towards the end.<br />(State&rsquo;s Exhibit 6-A resumed.)<br />THE COURT: So this is all about something else.<br />MS. WASHINGTON: I think so. I want to say they came back towards the end, but &mdash; yeah, I think towards the end, it does come &mdash; come back up to this case.<br />THE COURT: Okay. You want this on the record?<br />MS. WASHINGTON: Judge, I still believe that at the very least, under the business record affidavit, even the content of the 911 call, so long as<br />&emsp;<br />they&rsquo;re kept in the regular course of business, I believe even the statements would still come in under the hearsay exception.<br />THE COURT: And once again, which hearsay exception?<br />MS. WASHINGTON: Me?<br />THE COURT: Uh-huh.<br />MS. WASHINGTON: I believe either present sense impression &mdash; well, probably not excited utterance, but either under the business records affidavit &mdash; I still think that it would come in under the business record affidavit exception.<br />THE COURT: So why should it come in under the business record affidavit? Why should hearsay come in under the business record affidavit if what I ruled that he can&rsquo;t testify in court is hearsay, and it&rsquo;s the exact same thing?<br />MS. WASHINGTON: I&rsquo;m sorry. Say that again?<br />THE COURT: I&rsquo;ve already ruled that he can&rsquo;t go into what she said.<br />MS. WASHINGTON: Uh-huh.<br />THE COURT: And so now, because you put an affidavit on it, why is it admissible?<br />MS. WASHINGTON: Well, I&rsquo;m actually having<br />&emsp;<br />the custodian to come in and testify to it personally.<br />THE COURT: The custodian is going to say it&rsquo;s a true and correct copy of the 911 tape.<br />MS. WASHINGTON: I&rsquo;m researching now to get the case law, and then I&rsquo;ll just come back to it.<br />THE COURT: Okay. So you&rsquo;re ready to proceed?<br />MS. WASHINGTON: Uh-huh.<br />THE COURT: I&rsquo;m going to tell everybody, we&rsquo;re going to quit at 4:30 today, okay? So, I mean, if you&rsquo;re &mdash; if you&rsquo;re asking for a recess to research this &mdash; or do you have somebody you could put on or &mdash; I mean, I don&rsquo;t even know if you&rsquo;re done with him.<br />MS. WASHINGTON: No. I &mdash; well, we still have Cathleen Young to get to, so&hellip;<br />THE COURT: She has appeared?<br />MS. WASHINGTON: No, she still hasn&rsquo;t appeared. But our investigator went to go pick her up already.<br />THE COURT: Okay.<br />MS. WASHINGTON: So that shouldn&rsquo;t be an issue. But I still believe I could put another witness on. The doctor is actually going to be &mdash; I&rsquo;ll have him come back tomorrow.<br />&emsp;<br />this point in time, we&rsquo;re going to go away from this, okay? Is that correct?<br />MS. WASHINGTON: Yes, Your Honor.<br />THE COURT: Okay. And then &mdash; okay. So what you have attached to her affidavit is just the 911 call, basically what we were listening to, a transcript of what we were listening to?<br />MS. WASHINGTON: Correct.<br />THE COURT: Okay. Okay. And I believe this &mdash; the records behind the affidavit list the defendant&rsquo;s criminal history; is that correct? Or what is this?<br />MS. WASHINGTON: I don&rsquo;t think that&rsquo;s the defendant&rsquo;s.<br />THE COURT: Or this DWI and DWLI. Is that all what he was talking about that wasn&rsquo;t part of it?<br />MS. WASHINGTON: I don&rsquo;t &mdash; I don&rsquo;t think &mdash; I don&rsquo;t believe that&rsquo;s the defendant&rsquo;s history.<br />THE COURT: Okay.<br />MS. WASHINGTON: I&rsquo;m almost &mdash; I&rsquo;ll double check, and I&rsquo;ll redact it if necessary, but I&rsquo;m almost positive that&rsquo;s not his history.<br />THE COURT: All right. So both sides ready for the jury?</p> <p>&emsp;<br />MS. WASHINGTON: Yes, Judge.<br />MR. DEFENSE COUNSEL: Yes, Your Honor.<br />THE COURT: All right. Bring them in.<br />(Jury present.)<br />THE COURT: All right. You may proceed.<br />MS. WASHINGTON: Thank you, Your Honor. DIRECT EXAMINATION (CONTINUED) BY MS. WASHINGTON:<br />Q. Now, do you recall about how long it took for the Fort Worth Police Department to finally arrive? Do you remember?<br />A. It took 45 minutes, possibly an hour. It took a while.<br />Q. Okay. And did you do like an official offense report?<br />A. No, I did not.<br />Q. And why is that?<br />A. Because, based on the information I had, the offense &mdash; criminal offense did not occur in our jurisdiction.<br />Q. Okay. And was that the end of your involvement in this particular case?<br />A. Yes. MS. WASHINGTON: Your Honor, the State passes the witness.<br />&emsp;<br />THE COURT: Any cross?<br />CROSS-EXAMINATION BY MR. DEFENSE COUNSEL:<br />Q. Officer, are you familiar with Fort Worth?<br />A. Yes.<br />Q. Okay.<br />A. Little bit.<br />Q. University Drive is never called 199. There&rsquo;s a place where it meets Jacksboro Highway, would you agree?<br />A. Yes, sir.<br />Q. Jacksboro Highway is 199?<br />A. Yes.<br />Q. Okay. And actually, at the intersection where University meets Jacksboro, if you go a little farther down, Jacksboro Highway is called Henderson Street?<br />A. Yes.<br />Q. Okay. And I&rsquo;m not sure where it starts being 199, but somewhere along the line. Certainly, when you&rsquo;re in Lake Worth, it&rsquo;s 199?<br />A. Yes, sir.<br />Q. Okay. But University is not really 199?<br />A. No.<br />Q. Okay. All right. And I think you said this before, but Lake Worth is basically in the northwest part of Tarrant County?<br />&emsp;<br />A. Yes.<br />Q. Okay. And would you agree that Ellis County lies to the southeast of Tarrant County?<br />A. Yes.<br />Q. Okay. And actually, it&rsquo;s southeast Tarrant County separated perhaps by part of Johnson County?<br />A. Yes.<br />Q. Okay. It&rsquo;s a fair distance from &mdash; from Lake Worth?<br />A. Yes, sir.<br />Q. I mean, Lake Worth and Fort Worth adjoin at some point, somewhere around 820?<br />A. Lake Worth&rsquo;s basically landlocked around Fort Worth.<br />Q. Right. So Fort Worth is next to it. But Lake Worth and Fort Worth are nowhere close to Hillsboro. They certainly don&rsquo;t enjoin.<br />A. That&rsquo;s &mdash;<br />Q. Or Waxahachie?<br />A. That&rsquo;s fair.<br />Q. Okay. And so &mdash; okay. And basically, if you were traveling northwest on 199, you go through Lake Worth, and then you go through Azle?<br />A. Yes. The next city west of Lake Worth is Azle.<br />&emsp;<br />A. You can take Jacksboro Highway to 820 East, take that east up to 35, take 35 South. And I believe that goes to 287. It can merge &mdash; once you take 35 South, it will eventually merge to 287, which then will go to that general area, or just take 35 South, and it will go to Hillsboro. You can also go Jacksboro Highway all the way east into down &mdash; toward downtown Fort Worth, which, as the Defense said, that it turns into Henderson at some point. I just &mdash; was in my mind was thinking that it was a main thoroughfare. But 199, Henderson goes into downtown, which you can then go to, I believe it&rsquo;s 30, and take 30 to 287 South &mdash;<br />Q. Now, your primary &mdash;<br />A. &mdash; and 35 South.<br />Q. Now, your primary focus when you patrol &ndash; would it be in the Fort Worth area?<br />A. No, ma&rsquo;am.<br />Q. And would University and &mdash; is it Jacksboro or 199? Do you know if they connect?<br />A. Well, Jacksboro Highway, 199, the way I know it, T&rsquo;s into &mdash; if you&rsquo;re going east, when you get to the intersection of University, you have &mdash; the street that goes to the south is University.<br />&emsp;<br />The street that runs north is Northside Drive, I believe. Not Northside Drive. It&rsquo;s a different street. I don&rsquo;t remember what it&rsquo;s called, but it&rsquo;s a different street name. And then if you keep going east, you go back into downtown Fort Worth, which then turns into Henderson.<br />Q. Okay. How often do you patrol the Fort Worth area?<br />A. I don&rsquo;t patrol the Fort Worth area.<br />Q. You don&rsquo;t? You don&rsquo;t patrol it at all?<br />A. No.<br />Q. Do you recall the last time you would have worked the Fort Worth area?<br />A. The last time I worked in Fort Worth was when I worked for the Tarrant County Sheriff&rsquo;s Office.<br />Q. What time frame was that?<br />A. This was last year.<br />Q. Last year. Okay.<br />MS. WASHINGTON: Your Honor, the State passes the witness.<br />MR. DEFENSE COUNSEL: No further questions.<br />THE COURT: All right, sir. You are not finally released. If you would go back out into the hall for just a little bit.<br />(Witness leaves the courtroom.)<br />THE COURT: Let me have y&rsquo;all back up here<br />&emsp;<br />for just one second. Sorry to keep pulling you up here.<br />(Discussion off the record, at the bench.)<br />THE COURT: All right. Call your next witness.<br />MS. WASHINGTON: Your Honor, the State calls Margie Powe.<br />THE COURT: Can you get her?<br />(Witness enters the courtroom.)<br />THE COURT: All right. Ma&rsquo;am, if you would come up here, stand right here, and raise your right hand.<br />(Witness sworn.)<br />THE COURT: The Rule has been called for, which means you may not remain in the courtroom or talk to any other person about the case except by permission of the Court. You&rsquo;re not to read any report or comment upon the testimony in the case while you&rsquo;re under the Rule. So if you would, have a seat, pull the mic close to you, and if you would spell your name for my court reporter.<br />WITNESS: Okay. My name is Margie Powe. It&rsquo;s M-A-R-G-I-E, P-O-W-E.<br />THE COURT: Thank you. You may proceed.<br />&emsp;<br />MS. WASHINGTON: Thank you, Your Honor. MARGIE POWE, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS. WASHINGTON:<br />Q. And how are you employed?<br />A. I&rsquo;m the custodian of medical records for Baylor University &mdash; Baylor Medical Center Waxahachie.<br />Q. Okay. And do you know the actual address of that particular hospital?<br />A. 2400 East I-35 or North I-35 E, Waxahachie.<br />Q. And as custodian of records, what are some of your duties?<br />A. To maintain the medical records that are kept in the normal course of business.<br />Q. Okay. And would you be responsible for preparing records to come to court to say if they were subpoenaed for something like this?<br />A. Yes.<br />MS. WASHINGTON: Your Honor, permission to approach?<br />THE COURT: Certainly.<br />Q. (By Ms. Washington) I&rsquo;m going to show you what&rsquo;s marked as State&rsquo;s Exhibit No. 8. Could you look at these and tell me if you recognize them?<br />&emsp;<br />A. Yes.<br />Q. And would these be the records that you would have gathered from your hospital for court today?<br />A. Yes.<br />Q. And are these records kept in the normal course of business?<br />A. Yes.<br />Q. And would they have been made at or near the time that&rsquo;s reflected in the records? I believe it would have been May 8th, 2015.<br />A. Yes. MS. WASHINGTON: Okay. Your Honor, for purposes of the record, I&rsquo;m showing defense counsel State&rsquo;s Exhibit No. 8, and the State would move to introduce.<br />MR. DEFENSE COUNSEL: I need just a second, Judge.<br />THE COURT: That&rsquo;s fine.<br />(Pause in proceedings.)<br />MR. DEFENSE COUNSEL: Judge, I need a brief period of time because I have some documents that we may want to enter under the optional completeness rule, and this would be the witness we&rsquo;d need. So I need about five minutes.<br />THE COURT: Okay. Y&rsquo;all may certainly go back to the jury room to get coffee &mdash; I think there&rsquo;s coffee back there &mdash; some water, use the restroom while we<br />&emsp;<br />do this.<br />(Jury leaves the courtroom.)<br />(Discussion off the record.)<br />THE COURT: All right. Bring the jury in.<br />(Jury enters the courtroom.)<br />THE COURT: All right. If y&rsquo;all will be seated. All right. I believe before we took a break, the State had offered State&rsquo;s No. 8?<br />MS. WASHINGTON: Yes, Judge.<br />THE COURT: And does the Defense have any objection?<br />MR. DEFENSE COUNSEL: No, Your Honor.<br />THE COURT: All right. State&rsquo;s Exhibit No. 8 will be admitted without objections.<br />MS. WASHINGTON: And, Your Honor, the State would pass the witness.<br />THE COURT: Defense have any questions? CROSS-EXAMINATION BY MR. DEFENSE COUNSEL:<br />Q. Ma&rsquo;am, as a practical matter, you&rsquo;re &mdash; you&rsquo;re<br />somebody who assembles documents and &mdash; from the records<br />of the hospital, right?<br />A. Correct.<br />Q. Okay. And the &mdash; all the entries that are<br />&emsp;<br />contained within the records are made by other people; you make the one on the face that says it&rsquo;s correct?<br />A. Yes.<br />MR. DEFENSE COUNSEL: That&rsquo;s all the questions I have, Judge.<br />THE COURT: May she been finally released?<br />MS. WASHINGTON: Yes, Your Honor.<br />MR. DEFENSE COUNSEL: Yes, Your Honor.<br />THE COURT: All right. You may go back to work. Thank you very much.<br />(Witness leaves the courtroom.)<br />THE COURT: Call your next witness.<br />MS. WASHINGTON: Your Honor, may we approach for one second?<br />THE COURT: Uh-huh.<br />(Discussion off the record, at the bench.)<br />THE COURT: All right. So this day has not gone smoothly. So we are going to quit for the day now. I would ask that you be back outside the courtroom at 9:00 o&rsquo;clock tomorrow morning, and we will start at that point. And hopefully tomorrow will go better for my &mdash; for me. I&rsquo;m not blaming anybody but me for any of this, okay? So make sure you wear your badges tomorrow. Stay outside in the hallway until the bailiff brings you<br />&emsp;<br />back in, okay? So say your prayers for me tonight. Let&rsquo;s see if everything will work better tomorrow.<br />JUROR: This way?<br />THE COURT: Yes, sir.<br />(Jury leaves the courtroom.)<br />(Discussion off the record.)<br />(Proceedings adjourned.)</p> <p>&nbsp;</p>
Los Abogados
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez