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REPORTER'S RECORDVOLUME 1 o f 5 VOLUMES

TRIAL COURT CAOSE NO. 5612

5 THE STATE OF TEXAS ) IN THE DISTRICT COURT

VS. ) ANDREWS COUNTY, TEXAS

10 ANNE HARlE HITCHELL ) 109TH JUDICIAL DISTRICT11121314 PARTIAL TRANSCRIPT OF PROCEEDINGS15161718 On the 8th da y o f Fe b r u a r y , 2010, th e19 fol lowing proc e e d i ngs came on to be heard in th e20 above-en t i t led an d numbered cause before the Honorable21 James L. R ex, Judge Pre s i d i n g , he l d in Andrews, Andre ' ln22 County , Texas:23 Proceedings r epor t ed by computerized24 s t eno type machine.25

21 A P P E AR ANC E S :23 FOR THE STATE:4 MR. SCOTT TIDWELL5 W inkier County AttorneySBOT NO . 200207306 P.O. Bo x 1040Kermit , Texas 797457 Phone: (432) 586-603689

FOR THE DEFENDANT:1011 MR. JOHN H. COOKCook & Cantacuzene12 SBOT NO . 04735700203 W. Wall Street, Suite 60313 Midland, Texas 79701

Phone: (432) 640-04641415 MR. BRIAN CARNEYAttorney at La w16 SBOT NO. 038322751202 W. Texas Avenue17 Midland, Texas 79701Phone: (432) 686-83001819202122 CHRONOLOGICAL INDEX23 VOLUME 1 - PROCEEDINGS OF FEBRUARY 8, 201Q24 Instruct ions by the Court - - - - - - - - - - - - - - - - - - - - - - - 525 Opening Statement by Counsel fo r the State 13

1 Opening Statement by Counsel fo r th e Defendant -2 VOir3 STATE'S WITNESSES4 James Swanson

Direct Cross Vo

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Charlene Beaucham p6

Robert L. Roberts7

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68

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8 Court Adjourned - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 839 Reporter's Cert i f icate - - - - - - - - - - - - - - - - - - - - - - - - - - 84

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ALPHABETICAL WITNESS INDEX

VOir15 WITNESSES Direct Cross Dire Volum16 Charlene Beauchamp

17 Robert L. Roberts

18 James Swanson19202122232425

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68

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1 EXHIBIT INDEX234 PAGE PAGE5

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CD; Data Card2 Documents

DEFENDANT'SEXHIBIT DESCRIPTION

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February 8, 20101:57 p.m.

(Roll called; panel sworn, qualified,examined; jury seated, sworn)

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THE COURT: You are now a duly selectedand sworn part of the criminal justice system, and assuch there are certain rules that you have to follow.

You're to hold yourselves apart from thelawyers, the parties, the witnesses, anyone that'sinvolved in the case. And you'll understand thatthey're under the same instruction. So if you have afriend or an acquaintance that's involved in the caseand they don't say hello to you, or kind of ignore you,you'll understand that.

That's not necessarily because anybodywould do anything improper, but it's also to avoid eventhe appearance of any kind of impropriety. In otherwords, it makes the other side a little nervous ifyou're down the hall talking to the lawyer on the otherside even if it's about a fishing trip or grandchildrenor whatever. So just keep that in mind during thecourse of the proceedings.

Do not accept, no matter how slight, anyfavors or gifts of any kind from anybody involved in thecase, whether it be a cup of coffee or a ride home or

6whatever. And you'll understand that they can't offerthose things.

So if you're on your way home here atlunch and you have a flat and one of the lawyers passesyou by, doesn't stop and help you, you'll understandthey're not supposed to do that.

And for the same reasons; I don't thinkanybody would do anything improper, but it just doesn'tlook right. We want to avoid even the appearance of anykind of impropriety.

Don't discuss the case with anyone here,at home, anywhere. As a matter of fact, don't evendiscuss it among yourselves during breaks until you'veheard all of the evidence and the law that I'll give youin the form of what's called the cour t's charge. Andthat's so your decisions and your discussions will bebased on all the facts and the law and not just partialfacts.

I don't think you will have any troublefinding something else to talk to during the break -- ortalk about during the breaks, but just don't do that,just wait until you've heard all of the law and all ofthe evidence and you've retired to consider yourverdict.

Don't investigate anything on your own.

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Don't go out and look for facts and information. Donlook anything up in any reference books.

Sometimes you see that on TV and in thmovies, one of the jurors will crack the case during thevening break. And that just doesn't happen in reallife. And if it happens, then we have to do the caseall over again.

So keep that in mind. The Internet haskind of made that even more of a danger now. So juthe case based on the facts that you hear from thiswitness stand and any exhibits that may be introduce

In that same vein, don't look up any lawdon't use any legal reference materials or onlinematerials or anything else. I will give you all the lawthat you'll need to decide the case in the form of myrulings and in the form of what's called the court'scharge, which you'll hear at the end of all theevidence. So don't look up anything; use the law thagive you.

The facts you'll hear here in thecourtroom; the law you'll hear from me.

And also, in that regard, the lawyers witalk about the facts during the course of theirarguments and during the course of the trial, andthey'll talk about the law in the same manner. And I

don't think any of the lawyers in this case would tr y tintentionall y mislead you, but they may have differenviews about what the law is and they may have diffeviews about what the facts show.

So you should judge the case based onfacts that you hear from this witness stand and anyexhibits that may be introduced and the law as receivfrom me, from the court.

We tr y to go about from 9:00 in themorning until about 5:00, when we get a good stoppplace around 5:00. You know, that might be 4:30, itmight be 5:45. I f we're going to be late, we tr y togive you an opportunity to call and advise folks thatyou're going to be running late. But that's the generschedule that we'll be following for the next few days

If you need to take a break and I'm nottaking a break, tr y to get my attention or the bailiff'sattention and we'll take a break and let you get up anstretch your legs or take care of whatever you need ttake care of. We tr y to operate at your convenience.try to take a break every hour, hour and a half or soand - - but if I'm not doing that, feel free tointerrupt.

I'll tr y to keep you as comfortable aspossible. I f you're hot or cold, we'll try to adjust to

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91 please everybody. Sometimes we can't do that. So if 12 you're cold natured, you might wear a jacket or whatever 23 else you need to do as far as your own personal comfort. 34 That's about all I have for you today, or 4

02:01PM 5 this morning, this afternoon. What I'm going to do is 03:31PM 56 ask you to leave outside through the jury room, and then 67 I'm going to ask you to come back at 3:30 and we're 78 going to get some of the evidence started this afternoon 89 so we can get the case taken care of as quickly as 9

02:02PM 10 possible. 0332PM 1011 And although we want to get the case taken 1112 care of as quickly as possible, the most important thing 1213 is that we do it right. And if fast has to give way to 1314 right, then I'll choose the right. 14

02:02PM 15 I'm sure that during the course of the 03:32PM 1516 trial there are going to be delays. There are going to 1617 be times we're going to send you into that jury room and 1718 you're going to be sitting in there wondering what in 1819 the world are they doing. And sometimes that's 19

02:02PM 20 necessary. Don't concern yourselves about that. There 0333PM 2021 are legal issues that we have to take up outside your 2122 presence. 2223 And when those delays occur, I apologize 2324 for those. It's usually not anybody's fault. But if 24

0202PM 25 you have to be mad at somebody, you can be mad at me 03:34PM 2510

1 about it. It's just kind of the nature of the beast. 12 Anything else? 23 MR. COOK: Nothing, Your Honor. 34 THE COURT: With that I'll -- I 'm going to 4

02:02PM 5 ask the bailiff to kind of take you out so you'll know 03:34PM 56 where to go when you come back at 3:30. We'll see you 67 at that time. Please keep in mind the instructions that 78 I've just given you. 89 (A recess was taken from 2:03 to 3:30.) 9

0203PM 10 (JURY NOT PRESENT) 03:34PM 1011 MR. CARNEY: Judge, we would object, file 1112 an objection, as we had in our previous -- I think at 1213 least one of our pretrial hearings, and another pretrial 1314 hearing potentially, and as we discussed in our 14

03:30PM 15 objection this morning before the court, even though we 03:34PM 1516 weren't on the record, we'd object to Mr. Tidwell, his 1617 authority to act on behalf of the State with regard to 1718 this in that he's never taken the oath of office as an 1819 assistant district attorney. 19

03:30PM 20 And it's my understanding that Mr. Tidwell 0335PM 2021 was asked by Mr. Fostel, according to the Code of 2122 Criminal Procedure and Article V of the Constitution, to 2223 assist Mr. Fostel in the prosecution of this. 2324 Is that right? 24

03.31PM 25 MR. TIDWELL: Yes. 03:35PM 253 of 21 sheets Page 9 to 12 of 84

1MR. CARNEY: And as such, as an assista

D.A., I think he's required to take an oath of office,Your Honor, and we -- I don't believe he has. I thinkthat it's -- because of that I don't think that he'sactually empowered to act.

And I'd be happy to give the court a caseabout that if you'd like.

approach.

gentlemen.

THE COURT: Okay. Do y'all want to(AT BENCH, OFF THE RECORD)

THE COURT: Overruled.Anything else?MR. TIDWELL: No, sir.THE COURT: Anything from the DefenseMR. COOK: No, Your Honor.THE COURT: Bring them in.

(JURY PRESENT)THE COURT: Welcome back, ladies and

At this time the court calls for trialCause Number 5612, State versus Mitchell.

Is the State ready to proceed?MR. TIDWELL: The State is ready.THE COURT: Is the Defense ready?MR. COOK: We are, Your Honor.

THE COURT: Would the prosecuting attoread the indictment please.

MR. TIDWELL: In the name and by theauthority of the State of Texas: The grand jury, forthe County of Winkler, State of Texas, duly elected,impaneled, sworn, charged, and organized as such at tMarch term, A.D., 2009, of the 109th Judicial DistrictCourt for said court, upon their oaths present in and tosaid court at said term, that, Anne Marie Mitchell,hereinafter styled Defendant, on or about April 13,2009, and before the presentment of this indictment, ithe County and State aforesaid, did then and there, aspublic servant, namely, compliance officer for theWinkler County Hospital, and with intent to harmDr. Rolando Arafiles, use for a nongovernmental purpoinformation to which the Defendant had access becausthe Defendant's employment, and which information hnot been made public, and forwarding such informationanother, against the peace and dignity of the State,signed by the foreperson of the grand jury.

THE COURT: Ms. Mitchell, to the chargein the indictment how do you plead?

THE DEFENDANT: Ladies and gentlemenplead not guilty.

THE COURT: Mr. Tidwell, will you make03/11/201006:14


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opening statement?MR. TIDWELL: Very brief, Your Honor.THE COURT: Go ahead.MR. TIDWELL: Thank you.

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Good afternoon. Y'all are the 12 that areback to help us decide this case. Your function isgoing to be, as we've discussed earlier, to listen tothe evidence, carefully consider the evidence, and thenarrive at a verdict. That's what we ask jurors to do inour system. Without you here to do this, our systemdoesn't function, and we depend on you to be here tohelp us resolve this dispute.

Obviously there is a dispute. If thereweren't a dispute, none of us would be here and we wouldnot be using your time this way.

I told you in voir dire that the State hasthe burden of proof to prove the elements of the crime.

These are the elements, and I broke themdown basically into five, that Anne Mitchell as a publicservant--I don't think there will be much disagreementabout that; with intent to harm another--Dr. Arafiles;disclosed or used information for a nongovernmentalpurpose; that Anne Mitchell had access to because of heroffice; and the information had not been made public.

Now, as with most crimes, there will be

part of this that I think is really not disputed, partof it will be heavily disputed.

Let me tell you that I don't believe, andof course Mr. Cook or Carney will correct me if I'm inerror, I don't believe there will be much dispute thatMs. Mitchell was a public servant. Basically everyoneemployed by the government fits that category.

I don't think there will be muchdisagreement that she had access to this informationbecause of her office, and I don't think there will be

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much disagreement that the information had not been madepublic.

I think the real crux of this case Isuspect is going to come with number 2 and number 3,whether or not this information was used with the intentto harm Dr. Arafiles and it was disclosed for anongovernmental purpose.

This is not the time when I'm going totell you every bit of what the evidence is going to be.This is my time to simply give you what I think is aroad map to sort of where this case is going.

You're gOing to hear from a number ofwitnesses in the case. You're going to hear from thedoctor who started this by making a complaint to a lawenforcement officer. You will hear, I believe, from the

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1law enforcement officers about what they did in theinvestigation of this case. You will hear, I think,from some of Ms. Mitchell's coemployees.

I suspect the evidence is going to show, Ibelieve you will hear witnesses that will tell you, whythey believe this evidence was used, why this stuff wassent to the Texas Medical Board.

I believe you will hear evidence fromwitnesses that what this was was an intent byMs. Mitchell to get Dr. Arafiles taken out as a doctor,not to repor t suspicious medical care, but to completelywipe him out as a doctor.

I think you will hear evidence that shemade statements to certain of her coemployees sayingthings like I'm going to get him, or things like that.I believe that' s what you will hear. That is the casewe will attempt to present.

All I can ask you to do, and all that I doask you to do, is pay attention to the evidence, listencarefully to the witnesses, think about who hassomething to gain, who has something to lose. You willhave the opportunity to judge the credibility of eachwitness in the case.

And then at the end I will ask you toarrive at what you think is a just and fair verdict.

That's all I can ask from you. That's all any of us canask from you.

One thing that I'll -- that I'll tell youthat I will tell you in the closing statement is I thinktoward the end of this there will be a number that'svery important. But I'll talk more to you about that inthe closing statement.

Thank you very much.Thank you, Your Honor.THE COURT: Mr. Cook, will you make an

opening statement now or reserve that until later?

Honor.

Ms. Mitchell.

MR. COOK: I prefer to do it now, Your

THE COURT: Go ahead.MR. COOK: Thank you.With the court's permission -THE COURT: Yes.MR. COOK: -- counsel for the State,

Ladies and gentlemen of the jury, thankyou. I will say thank you now. I'm thanking you inadvance because I know you're going to pay very closeattention to this case.

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This case is extremely important to AnneMitchell, and it's extremely important to everybody who

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171 practices in the medical field, and I need to tell you 12 why. 23 The first thing I want to talk to you is 34 about the elements, okay? 4

03:40PM 5 As Mr. Tidwe" has shown you, and as he 03:43PM 56 guessed correctly, whether or not Anne is a public 67 servant,!''' tell you right now, yes, she is. Don't 78 even worry about that. 89 Did she have access to confidential 9

03:40PM 10 information in her role as compliance officer for the 03:43PM 1011 Kermi t hospital? Absolutely, absolutely. No doubt 1112 about that. 1213 Okay. The problem we have is this. You 1314 wi" hear that what she did is notify the Texas Medical 14

03:40PM 15 Board of five file numbers, that she did not disclose 03:43PM 1516 any patient names, she did not disclose any patient 1617 information, she didn't even say these are a" horrible. 1718 What you wi" hear is her request to have oversight over 1819 what this doctor was doing. 19

03:41PM 20 And in those files you wi" see such 03:44PM 2021 things as a 10-year-old boy with appendicitis whose 2122 parents tried to get him healthy during the day and then 2223 they realized this is getting bad, this hurts, he 2324 started throwing up. 24

03:41PM 25 And you wi" hear how Dr. Arafiles saw him 03:44PM 2518

1 in the emergency room, ordered a CAT scan, and then gave 12 him three enemas and sent him home, even though 23 30 minutes before he sent him out of the hospital the 34 CAT scan came back and said this young man has 4

03:41PM 5 appendicitis, even though practitioners from the 03:44PM 56 beginning of time have diagnosed appendicitis without, 67 without, CAT scans. 78 We -- or the evidence will show that falls 89 below a minimum standard of care and could have resulted 9

03:42PM 10 in that child's death. 03:45PM 1011 You will hear about a 1112 70-something-year-old man who scraped his hand, and 1213 you'll hear about how Dr. Arafiles -- and he's a 1314 diabetic, and keep that in mind. For any of you who 14

03:42PM 15 have diabetes, you know how hard wounds are to heal. 03:45PM 1516 And you'll hear how Dr. Arafiles, who does 1617 not have surgical privileges, performed a surgery on 1718 this man in the emergency room and cut off part of his 1819 skin from his abdomen and attempted to put it on his 19

03:42PM 20 hand and then said, hey, smear olive oil on it for a 03:45PM 2021 week and come back. The evidence will show that man 2122 left that emergency room with more wounds than he came 2223 in. 2324 You're going to hear about the young 24

03.42PM 25 man -- or another patient who crushed his finger. And 03:45PM 255 of 21 sheets Page 17 to 20 of 84

1you're going to hear about how Dr. Arafiles took rubberoff the outside of a -- oh, of a container and sewed itonto his finger for stabilization.

You're going to hear about a lady whodropped -- in fact, I believe the prosecution is evenplanning on bringing her, who dropped a frozen turkeyher toe, and she broke it. And you're going to hearabout how Dr. Arafiles jammed a needle into the bone ttry to stabilize it.

And you'" hear that he has no privilegesto be able to do that type of procedure, that it must -that is another surgical procedure he's not qualified todo, that he didn't refer this person to an orthopedic.

So you're going to hear about what acompliance officer does in a hospital. Nurses,patients, other employees come to her with concerns.

You're going to hear about the compassiothat Anne Mitche" has for patient safety and how itwasn't good enough just to hand this information of f tothe administration.

You're going to hear about the at temptsthat she made. And you're going to hear about anothenurse who has filed complaints and filed complaints atthe same time as Anne Mitchell.

In fact, you wi" hear from the evidence2

that Sheriff Roberts in August, remember he put her injail in July, in August did not even know there wasmultiple complaints even though he had them in his file

You're going to hear that whether or notany of this information is true didn't matter to thesheriff or the prosecutor.

You are going to hear why Dr. Arafiles didnot want this information known. Dr. Arafiles did notgo to the sheriff and say and I'm being falsely accusedof something, sheriff. Dr. Arafiles went to thesheriff's office and said if anybody finds out aboutthis I'm going to lose my license because guess what,I've already been in trouble before.

The evidence is going to show that theState of New York has banned him for life from everseeking readmission to -- for medical practices. Theevidence is going to show that he was in trouble inVictoria, Texas, and made an agreement to enter anagreed judgment to restrict his license where he is noteven permitted to supervise certain other medicalprofessionals.

The eVidence is going to show that thehospital violated their own bylaws by hiring him, numbone, because he had a restricted license, and, numbertwo, by granting him staff privileges over the

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21objections of other members of that medical staff in thehospital.

And you're going to hear about howMs. Mitchell's role in the hospital is to insure thatphysicians who are credentialed meet all therequirements under their bylaws and under the law, and,yes, she upset the administrator when she said I willnot sign of f on this man, he does not meet the minimumcriteria.

You're going to hear I expect from thehospital administrator that hospitals are like shoppingcenters, medical shopping centers, except there is onebig difference, we, you and I, are not allowed to go inand say, hey, I want a CAT scan, hey, I want a CBC on myblood, hey, I kind of feel like wearing a cast today,okay?

Only doctors generate revenue; nurses donot. Only doctors order the tests that they get paidfor. Only doctors admit patients.

And you're going to hear how Kermit hasthree doctors and one of them is an all-star biller, andI bet you can guess who it is.

You're -- we're going to talk aboutstandard of care, we're -- because that belongs to you,ladies and gentlemen. We're going to talk about what we

22expect a doctor to do, okay?

And if at the end of the -- and here isthe rub of this case. You're going to hear, in myopinion, a man who has lost his honor that's not upsetthat he's being reviewed by other physicians, doesn'tcare about that.

You're going to hear a man who knows he'sdone wrong and instead of facing up to what he did andtr y to ge t better at it he went running to his friend,his business associate, the man he -- th e man who had aheart attack and he served and said stop these people,if this goes forward I'm no t going to be your friendanymore because I'm not going to have a job.

And then you know what is the thing thatreally I think strikes at the heart of everybodyinvolved in this case? You're going to hear how thisman is continuing to practice medicine and he'scontinuing to injure the people and nobody has the gutsto stand up in Kermit, Texas, anymore because they knowwhat will happen if they do.

Thank you.THE COURT: Call your first witness.MR. TIDWELL: James Swanson, Your Honor.THE COURT: Is anybody invoking the rule?MR. TIDWELL: We do need to, Your Honor.

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THE COURT: Okay. Would you bringeverybody -- bring all the: witnesses in.

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MR. COOK: Your Honor, we do have oneexpert witness that we'd like be asked to remain in thecourtroom. Part of her opinion is going to depend onwhat the State's theory of those cases --

THE COURT: Yeah, that's fine. She willneed to be sworn with everyone else, bu t she can remain the courtroom.

Will y'all raise your right hand and takeyour oath as witnesses.

(WITNESSES SWORN)THE COURT: The rule of witnesses has b

invoked. That means that you cannot listen to thetestimony of the other witnesses. You have to -- youcan't talk to anybody about your testimony except thelawyers in the case, and you have to talk to themoutside the presence of any other witnesses. That's soyour testimony will be your own and won't be influenceby what somebody else says.

So, Mr. Swanson, you're the first witnessEverybody else can have a seat ou t in the hall. We'llcall you when we need you.

MR. COOK: And, judge, with the court'spermission, Ms. Lockhart can remain?

2THE COURT: Yes. She's the expert

witness?MR. COOK: Dr. Lockhart.THE COURT: Yes, ma'am, you can remai

JAMES SWANSON,having been first duly sworn, testified as follows:

DIRECT EXAMINATIONBY MR. TIDWELL:

Q. Would you tell the ladies and gentlemen of thejury your name please, sir.

A. My name is James Swanson.Q. And, Mr. Swanson, how are you employed?A. I 'm currently the police chief fo r th e Winkpolice department.Q. Okay. That's a new position for you?A. Yes, sir.Q. Okay. And you started that the first of

February; is that right?A. Yes, sir.Q. Okay. Prior to that how were you employed?A. I was th e chief investigator for the Winkl

County sheriff's office.Q. As chief investigator of the Winkler County

sheriff's office, did you become involved in the6 of 21


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25 271 complaint that Dr. Arafiles filed fo r -- under the 1 A. Again, she said it depending on the2 misuse of official information statute? 2 circumstances.3 A. Yes, sir. 3 Q. Did she ever make a statement about whether any4 Q. And what -- basically what was your involvement 4 of the applicable reporting rules applied to her in he r

03:51PM 5 with the investigation? 03.53PM 5 capacity as the compliance officer?6 A. On the 19th of May, on that Tuesday, 6 A. Again, the -- and this wa s my interpretation o7 Sherif f Roberts had contacted me and asked me to come in 7 her answers, wa s that it depended -- she continually8 the office and assist him with interviews at the 8 told us it depended on the circumstances of the specifi9 hospital of hospital employees at the hospital. 9 case because she was -- my impression of her job,

03:51PM 10 Q. Okay. And did you and Sheriff Roberts 03:53PM 10 because she had several t it les, that depending on what11 interview some people? 11 the complaint was she had to go through certain chain12 A. Yes, sir. 12 or do it at certain different ways.13 Q. Okay. Did -- were you present and did you 13 I t wa s never -- she never could sa y this14 participate in an interview of Ms. Mitchell? 14 was he r supervisor, this is who I reported to, she neve

03:51PM 15 A. Yes, sir. 0354PM 15 could tell us that. But she wa s always saying i t16 Q. Did -- was the subject of this interview to 16 depended on the circumstances wh o she would talk to.17 determine whether or not there were procedures at the 17 Q. Okay. At some pOint were you involved with18 hospital for reporting issues with other healthcare 18 procuring physical evidence in the case?19 providers? 19 A. Yes, sir.

03:51PM 20 A. Yes, sir. 03:54PM 20 Q. What did you do in that regard?21 Q. Did Ms. Mitchell indicate that she understood 21 A. I obtained a search -- evidentiary search22 what the reporting procedures of the hospital were? 22 warrant fo r the computers at the Homeland Security23 A. Not -- she said she understood them bu t they 23 office, which is Anne Mitchell's office at the community24 depended on the circumstances. 24 center, downtown Kermit.

03:52PM 25 Q. Okay. Was she able to say you're supposed to 0354PM 25 I also obtained evidentiary search26 2

1 go through this step and this step and this step up the 1 warrants fo r the Dell computer in he r office along with2 chain of command? 2 Vickilyn Galle's computer in the hospital office.3 A. No, sir. 3 Q. Were you involved in the analysis of the4 Q. Was she able to identify who her superior 4 computer to see what was on there or anything like that?

03:52PM 5 was -- 03:54PM 5 A. The next morning -- I secured those compute6 A. No, sir. 6 that night in my office. The following morning Charlen7 Q. -- in the chain of command? 7 Beauchamp, our LT. tech, came to the sheriff's office8 A. No, sir. 8 and she retrieved evidence off of Anne Mitchell's9 Q. Okay. Did Ms. Mitchell make any statement 9 computer that was at the community center in downto

03.52PM 10 about these rules and the applicability? 0355PM 10 Kermit.11 A. She just said that depending on the situation 11 Q. Okay. So no evidence pertinent to this, no12 she had to do things certain ways based on the situation 12 physical evidence, was obtained of f either of the two13 that she deemed necessary fo r patient safety. 13 computers that came from the hospital?14 Q. Okay. Did -- at anytime did she indicate that 14 A. No, sir.

03:52PM 15 the hospital's rules applied to some people and didn't 03:55PM 15 Q. There was, in your -- I guess in your opinion,16 apply to others? 16 pertinent evidence that was contained on the Homeland17 MR. CARNEY: Your Honor, I'm going to 17 Security computer?18 object as to leading the witness. 18 A. Yes, sir.19 THE COURT: Rephrase it. Go ahead. 19 Q. Okay. Well, tell me why would Ms. Mitchell

0353PM 20 Q. (By Mr. Tidwell) During the interview, was 03:55PM 20 have anything to do with a Homeland Security computer.21 Ms. Mitchell questioned about whether certain of the 21 A. She's the -- she's ou r Homeland Security pers22 policies pertained to certain employees or whether the 22 fo r the county.23 rules pertained to all the employees? 23 Q. Are her duties sort of split between that and24 A. That wa s a question that wa s brought up to her. 24 doing things at the hospital?

03:53PM 25 Q. And how did she respond? 03:55PM 25 A. Yes, sir.of 21 sheets Page 25 to 28 of 84 03/11/201006: 14


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33MR. TIDWELL: With that, Your Honor, we'll

offer the CD, the flash drive, and the printeddocuments.

MR. COOK: Judge, do you want me torestate all that or --

THE COURT: No. I'm going to say this,and if that's not -- if this is not correct, correct me.

MR. COOK: Yes, sir.THE COURT: It's my understanding yourobjection is based on the grounds that you recited intothe record a few moments ago.

MR. COOK: Yes, Your Honor.And I think the court also has the benefit

of briefs and motions that we filed pretrial. We wouldrenew each and everyone of those objections to itsadmission.

THE COURT: The objections are overruled.Go ahead.

Q. (By Mr. Tidwel l) Will you hand those itemsplease --

MR. COOK: Your Honor, just to save time,and I'm sorry, Mr. Tidwell, may I have a continuing,running objection to this so I don't have to object toevery question?

THE COURT: Absolutely. In as much as I'm

able to grant that, I grant that.MR. COOK: Thank you, Your Honor.

Q. (By Mr. Tidwel l) Officer Swanson, would youhand those items kindly please, sir, to the courtreporter so she can mark them.

A. Yes, sir.

34

MR. TIDWELL: Your Honor, I believe whatwe have, I believe Kelly marked the CD first, so we'lloffer that as State's Exhibit 1, subject to Mr. Cook'scontinuing objection, and then the documents werestapled together, offer that as State's Exhibit 2.

(State's Exhibit Nos. 1 and 2 offered)THE COURT: Okay. Those have already been

offered and objected to and --MR. TIDWELL: Yes, sir.THE COURT: -- overruled, so they're

admitted.(State's Exhibit Nos. 1 and 2 received)

Q. (By Mr. Tidwell ) And, Officer Swanson, do youhave -- is that all of the evidence that was containedin your evidence bag?

A. Yes, sir.Q. Would you please have -- hand the evidence bag

to Ms. Allen so she can mark it as State's 3.And, Officer Swanson, in the paper

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3exhibits that you had in your hand, is there an April Ibelieve 7, 2009, document addressed to the Texas MedBoard?

MR. COOK: To which, judge, I think justfor paranoia of the record, we'd like to renew theobjections because this is the specific communication tothe board that we're concerned about.

THE COURT: Overruled.A. April 7, 2009?Q. Yes, sir.A. Yes, sir.Q. And in fact, are there multiple copies of that

same document that have some -- the best way I knowdescribe it is like some of the paragraphs have beenelongated in some kind of weird print that kind ofscribbles across the page?

A. Yes, sir.Q. But there is one good, non-scribbling looking

copy of the April 7th letter; is that correct?A. Yes, sir.Q. And then would it be fair to characterize that

there are some printouts off the computer that just sholittle pictographic icons of screens off the computer?

A. Yes, sir.Q. Other than partiCipating in that interview and

then obtaining this physical evidence, did you have anyother involvement with this case?

A. No, sir.Q. Thank you.

Honor.MR. TIDWELL: Pass the witness, Your

MR. COOK: Thank you, Your Honor.THE COURT: Mr. Cook.

CROSS-EXAMINATIONBY MR. COOK:

Q. I guess it's chief now.A. Yes, sir.Q. Congratulations.A. Thank you.Q. You're the chief -- you at the time were the

lead investigator fo r the Winkler County sheriff'sdepartment?

A. That is correct.Q. But you -- is this your investigation?A. No, sir. It 's th e sheriff's.Q. It's the sheriff's?A. Yes, sir.

24 Q. Okay. Mr. Swanson, did you and anybody ev0403PM 25 discuss the fact that nurses have a right and sometime

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a legal obligation and duty to report substandard care?A. Yes, sir.Q. Okay. Who did you discuss that with?A. I 've talked to the sheriff about it , an d our

prosecutor.Q. Okay. Before you -- before all this started

up?A. No, sir.Q. This has been since then?A. Yes, sir.

37

Q. Okay. And I know your role was limited, wasn 'tit?

A. Yes, sir.Q. And actually if we look back on this whole

thing, you went and got the computers?A. Yes, sir.Q. Okay. Did you do -- were you with the sheriff

when he obtained the confidential identifyinginformation from the hospital about who patients were?A. I don't know what you're talking about.

Q. The -- well, you are aware that Sheriff Robertswent to the house of each and every patient listed inthe complaint that the docto r received and demanded toknow whether or not they filed a complaint, aren't you?

A. I know he talked to patients. I don't know ifhe demanded anything.

Q. Okay. Were you with him when he went to thehospital to retrieve that information?

A. No, sir.

38

Q. Okay. Were you present when Dr. Arafiles madehis report?

A. No, sir.Q. Let me ask you this question. To you, was it

important whether or not the information contained inthat complaint was truthful?

A. For the criminal complaint?Q. No, the complaint to the Texas Medical Board,

the one you retrieved.A. Well, I believe if you make a complaint againstsomebody i t should be the truth.Q. Okay. Did you go to the sheriff with

Mr. Tidwell's office?A. After ou r investigation or the interviews that

day at the hospital?Q. Uh-huh.A. Yes, sir.Q. Okay. And you wrote a report about those

interviews at the hospital, didn't you?A. I wrote a report, yes, sir.Q. Is any of the information you just told the

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jury contained in your written reports?A. Yes, sir.Q. May I see those please.A. Yes, sir.

MR. COOK: May I approach, Your Honor?THE COURT: Yes.MR. COOK: Thank you.

3

THE COURT: The attorneys have permanenpermission to approach the witnesses.

MR. COOK: Thank you, Your Honor.A. There you go .Q. Okay. In your report you just mention that

they were asked questions about the rules andregulations. You didn't put any of their responses, didyou?

A. No, sir.Q. And then you all read them their Miranda

rights, didn't you?A. Yes, sir.Q. When do you read people Miranda rights?A. When they're in custody and they're being

accused of a criminal offense.Q. But these ladies weren't in custody, were they?A. No, sir.Q. But they sure knew you guys were looking to pu

4them in custody, didn't they?

A. The sheriff believed that he should Mirandizthem, and he did so.

Q. Who else was interviewed at the hospital?A. Besides Ms. Mitchell and Vickiann Galle, the

wa s staff at the hospital that we spoke to.Q. Okay. And y'all still didn't know who filed

the letter, did you?A. No, sir.Q. Okay. In fact, I guess you could say by this

time the sheriff had cleared the patients and now itlooked like it was somebody from inside the facility,correct?

A. Well, based on th e information he had gotduring the investigation he had done so far, from theletter that wa s received and th e age -- the descriptioof th e person wh o wrote the letter, it could only havbeen tw o people that wa s left on the -- th e 20 so peohad access to th e documents in question.

Q. And that's right, the sheriff wrote off to theTexas Medical Board, said he was doing an investigation,and got a copy of the complaint anyways, di dn't he?

A. That's my understanding.Q. Did you ever read the complaint?A. No, sir.

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41Q. Do you know whether anything in that complaint

that was written is not factual?A. As I said, I haven't read th e complaint, so I

couldn't tell you one wa y or th e other.Q. Okay. Well, let me ask you a hypothetical ,

sir. I believe I've been the victim of a crime -- no,actually, strike that. I committed a crime, okay?And -- or I did an illegal act, that's a better way ofputt ing it. And then I found out somebody had filed thecharge against me.

How much sympathy would you have for me ifI came to you and said, hey, I did this, if thiscomplaint goes any farther, I'm in trouble, will youplease make this guy be quiet? Would you do that , sir?

A. No.Q. Do you understand that substandard care is

illegal under the laws of the State of Texas?A. Yes, sir.Q. Do you understand that -- well, you have that

letter, don't you?First of all, can you tell me what is

confidential, if any of the information in that letteris confidential?

A. I 'm not sure what you're asking me to -Q. Well, then I'll strike that.

You don't -- you do know that that letterwas supposed to be confidential; isn't that correct?

A. I wasn't aware of that.Q. You're not aware that any complaints made to

licensing authorities are confidential?

42

A. Well, I know patient -- doctor-client -patient privilege is just as attorney-client privilegeis confidential.

Q. Were you aware that the Texas Medical Act orthe Medical -- the MDA -- the law, the code in that,says that any complaint to the Texas Medical Board isconfidential, and is not subject to discovery or use?Were you aware of that when you were dOing this?

A. No, sir.Q. Okay. You said earlier that you talked about

a -- the duties of a nurse to report; is that correct?A. Yes, sir.Q. Who did you talk to that with?A. As I said, i t wa s discussed after I got

involved in the investigation and with th e nurses at thehospital. That was one of the questions we --

Q. Did you discuss it with a lawyer?A. No.Q. Okay. Did you understand that anybody in this

state has a right under code, under law, to make a

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4complaint abou t questionable practices with the TexasMedical Board?

A. Yes, sir.MR. TIDWELL: And I'm going to object,

Your Honor. That's an improper statement what the lawis. The law requires a report to be made in good faith,not what Mr. Cook is suggesting.

MR. COOK: Judge, I'll rephrase. Iactually think he's right on that.Q. (By Mr. Cook) Did you know that the law of the

State of Texas allows anybody, not just nurses, doctors,but any of us here, to file a complaint in good faith?

A. Yes, sir.Q. I f they had concerns about questionable

practices?A. Yes, sir.Q. And just to be clear, did you, the sheriff, and

a lawyer ever discuss those rights and those duties ofindividuals and more specifically nurses?

A. No.Q. Okay. You went to the district attorney's

office on 5-19-2008; isn't that correct --A. Yes, sir.Q. -- to update the district attorney on the

progress of your case?

A. Yes, sir.Q. Was that Mr. Fostel's, the district attorney's

office, or Mr. Tidwell, the county attorney's office?A. Mr. Tidwell.Q. What did the sheriff tell Mr. Tidwell about the

results of the investigation at that time?MR. TIDWELL: I'm going to object to

statements between the investigators and the prosecutoYour Honor. That's privileged information.

THE COURT: Approach.(AT BENCH, OFF THE RECORD)MR. TIDWELL: I've lodged an objection,

Your Honor. Can I have a ruling?THE COURT: I'm sorry?MR. TIDWELL: I objected to this question

on --THE COURT: Overruled.

Q. (By Mr. Cook) The purpose of that meeting wato discuss the results of the investigation so far; isthat correct?

A. Yes, sir.Q. And what facts did you have -- what was

discussed? What were the results of the investigationthus far?

A. Well, as I said earlier, that Sheriff Roberts03/11/201006:14


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45when he initially started it was under -- he hadreceived information that there was 21 people that hadaccess to th e documents in question that could have sentth e letter and had access to th e patients' records.

And after going through the interviewsand -- of the people involved there was only tw o peopleleft that fi t from the letter white female and the age,which would have been Ms. Mitchell and Ms. Galle.Q. Look, let me back up a little bit. How manycomplaints had Dr. Arafiles filed prior to this oneagainst any staff member?

A. I have no knowledge of any complaints he filed.Q. Okay. And you were doing an investigation to

find out who sent the letter because at that time y'alldidn't know --

A. No, sir.Q. -- correct?

The doctor didn't know, correct?A. Yes, sir.Q. And quite frankly, the doctor didn't care.

Whoever it was he wanted to prosecute, right?A. He believed a crime had been committed against

him, so he wanted something done.Q. You're in Wink now, right, so do you still have

TCLEOSE membership?

A. Yes, sir.Q. Okay. I f I filed a complaint against you with

TCLEOSE and it had no truth to it, would that botheryou?

A. Yeah.Q. I mean, would you really worry that that would

harm you?

46

A. Well, it 'd upset me, bu t I would just go aboutmy business because I know I do my job, so --

Q. Okay. If you really wronged me and I filed acomplaint with them, would that bother you more?

A. No, because I hadn't done nothing wrong.Q. No, if you had in fact done something wrong?A. But I wouldn't.Q. But you wouldn't what?A. Wouldn't do something wrong.Q. And if you did do something wrong would you be

man enough to admit it?A. Then I should be punished i f I did something

wrong.Q. Thank you.

The conversation with Mr. Tidwell wasbefore you got the search warrant, right?

A. Yes, sir.Q. Okay. Can you tell the jury what the facts

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47were that led you to go and get a search warrant at thattime?

A. Sheriff Roberts had briefed hi m on th e case.And based on th e l ist of people who had access to th erecords, it was his belief from al l the interviews thathe had done so far that there was only tw o people thacould have had access to the records and wrote theletter was Ms. Mitchell and Ms. Galle.

Q. Okay. And did you draft the affidavit for thesearch warrant?

A. Yes, sir.Q. Did -- do you believe that the search warrant

contains facts that show probable cause a crime has beencommitted?

A. Yes, sir.Q. And what are those facts?A. I' d have to look at my search warrant again.

I f you had a copy, I could look at i t fo r you.Q. Here you go, sir.A. Thank you.Q. Actually that's your report.A. Oh, yeah.Q. Maybe this will help you, sir.A. Thank you.

Could you repeat your question so I cou

answer i t fo r you?Q. Yes, sir.

What are the facts that you feel are -establish probable cause that a crime has been committedin that?

A. It s the belief of affiant and he hereby

48

charges and accuses that Anne M. Mitchell or VickilynGalle, on or about April of 2009, intentionally andknowingly sent th e anonymous letter to th e Texas StaMedical Board l isting complaints against Dr. RolandoArafiles with th e intent to harm or defraud Dr. RolandArafiles and with th e intent to harass, annoy, alarm,abuse, torment, or embarrass Dr. Rolando Arafiles.

Q. But those aren't facts though. Those areconclusions. Those are speculat ion.What are the facts? How did they harm

him? Why do you believe they -- that sending a letterin harmed him?

A. The 39 -- th e Penal Code states on that chargofficial misuse of information.

Q. No, you didn't listen to my question. Tell methe facts of how notifying a licensing board of certainactions harms him.

24 A. I f t' s done improperly, then i t can be harmin0421PM 25 him.

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put my name on it , just like when I file charges onsomebody, I put my name on it .

This was sent anonymously. Myunderstanding wa s --

Q. What--

53

A. Now my understanding was that these specificcharges against this doctor had already been handled.

Q. Where is that in the search warrant?A. I t 's not.Q. Okay. And when you say already been handled,

do you mean internally by the hospital?A. Yes, sir.Q. Okay. And what is that based on, how do you

know that?A. From talking with the sheriff.Q. Were you aware that it is illegal for a

hospital to prevent licensed members from filingcomplaints with licensing authorities?

A. No.Q. Were you aware that even if you utilize

internal review processes you still have the right tofile a complaint with a licensing authority?

MR. TIDWELL: I object, Your Honor.Again, that's a misstatement of the law. Your compla intmust again be made in good faith.

MR. COOK: No, in good if you file -THE COURT: Rephrase. Go ahead.

Q. (By Mr. Cook) With his addi tion, if you fileit in good faith, it doesn't matter if there is internalcontrols in the hospital, you still have the right to dothat?

A. Good faith, yes, sir.Q. Huh?A. If hat's the law.Q. Well, did you know that last year?A. No.Q. Let me -- had they signed their name to it, do

you think it'd still be harassment?A. I f -- my understanding is i f you have a

54

complaint there is a chain of command you go through.If t' s done properly, I don't see why you shouldn't beable to file a complaint an d you should file acomplaint, as long as the chain of command is followed.

MR. COOK: Judge, I'm going to object fornonresponsiveness.

Q. (By Mr. Cook) And, chief, listen to myquestion please.

A. Okay.Q. Had they signed their name, do you still

believe it would have been harassment?

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A. No.Q. Okay. I f I report somebody for committing a

crime, am I harassing that person?A. Did they do th e crime?Q. Yes.A. Then no.Q. I f I -- even if I honestly believed they did

the crime but was mistaken, am I harassing them?

5

A. Well, that'd be my jo b to prove that one wathe other.

Q. Some people report illegal activityanonymously, don't they?

A. Yes, sir.Q. In law enforcement you want people to feel free

to report suspicions about criminal activity withoutfear of retaliation, don't you?

A. Yes, sir.Q. Is it very important for law enforcement -A. Yes, sir.Q. -- that people feel comfortable coming forward?A. Yes, sir.

MR. COOK: Pass the witness.

REDIRECT EXAMINATIONBY MR. TIDWELL:

Q. Chief, doing a criminal investigation, is itlike assembling a puzzle?

A. Yes, sir.

5

Q. When you get a complaint that criminal activityhas occurred, the minute you receive the complaint doyou have all the pieces of the puzzle assembled?

A. No, sir.Q. Do you start putting pieces together and find

where other pieces go and go look for other pieces thatfi t and assemble it just like a puzzle?

A. Yes, sir.Q. SO on the day you applied for the search

warrant, were you completely through with yourinvestigation?A. No, sir.

Q. Was the puzzle complete?A. No, sir.Q. I t still had holes in it , didn't it?A. Yes, sir.Q. By that time the -- you and the sheriff had

interviewed people and had narrowed down the potentiallist of who -- well, let me back up.

23 At one point was one of the items that24 y'all were investigating whether or not an employee at

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57 51 data? 1 letter to a piece of physical evidence that was in2 A. Yes, sir. 2 Ms. Mitchell's office at the community center?3 Q. And in fact, the list of people that initially 3 A. Yes, sir.4 were -- was obtained was the list of 20 so people that 4 Q. Puzzles just kept fitting together, didn't it?

04:30PM 5 would have had access to the medical records data? 04:32PM 5 A. Yes, sir.6 A. That is correct. 6 Q. Mr. Cook asked you if he makes a complaint7 Q. And in doing your investigation, at some point 7 against you with TCLEOSE, that's the law enforcemen8 did the Texas Medical Board send a copy of this 8 standards people --9 complaint letter to the sheriff? 9 A. Right.

04:30PM 10 A. Yes, sir. 04:33PM 10 Q. -- they're the ones if you're going to get in11 Q. And in that letter, just from the language of 11 trouble, they can get you in trouble, right?12 the letter, does it identify the person that sent the 12 A. Yes, sir.13 letter in? 13 Q. Okay. If he makes a complaint aga inst you14 A. No, sir. 14 would that bother you, and you said --

04:31PM 15 Q. Does it say I'm over 50 and a female? 04:33PM 15 A. Yes.16 A. Yes, sir. 16 Q. -- it would.17 Q. And putting the pieces of your puzzle together, 17 Would it bother you if he over the cours18 did that enable the sheriff's department to sort of pin 18 of several months made complaint after complaint af19 down potentially who left on the list could have sent 19 complaint afte r complaint?

04:31PM 20 the complaint in? 04:33PM 20 A. Yes, sir.21 A. Yes, sir. 21 Q. Would eventually you get tired of that?22 Q. And that narrowed it down to two, didn't it? 22 A. Yes, sir.23 A. Yes, sir. 23 Q. And if Mr. Cook finally sent in a complaint24 Q. And was it at that time that you decided to -- 24 that had erroneous information in it , do you think tha

04:31PM 25 you had -- the Texas Medical Board had already sent a 04:33PM 25 would bother you?58 6

1 copy of the complaint that they had received, correct? 1 A. Yes, sir.2 A. Yes, sir. 2 Q. If Mr. Cook had gone around town telling pe3 Q. And y'all had a copy of the complaint that 3 I'm going to get you, Swanson, I'm going to --4 Dr. Arafiles got that had the patients' names on it, 4 MR. COOK: Objection --

04:31PM 5 correct? 04:33PM 5 MR. CARNEY: Objection, Your Honor.6 A. Yes, sir. 6 MR. COOK: We - - I 've given him as mu7 Q. Do you know whether the sheriff ever went to 7 latitude -- we're leading --8 the hospital and obtained the patients' charts? 8 THE COURT: You guys approach.9 A. No, sir. 9 (AT BENCH, OFF THE RECORD)

04:31PM 10 Q. He never did that, did he? 04:33PM 10 THE COURT: Sustained. Leading,11 A. I don't believe he did, no , sir. 11 sustained. Rephrase.12 Q. The -- when Dr. Arafiles came in to make the 12 MR. CARNEY: While we're up here --13 complaint, the Texas Medical Board told him these are 13 (AT BENCH, OFF THE RECORD)14 the 10 people that are in issue? 14 THE COURT: That objection is overrule

04:32PM 15 A. That is my understanding. 04:35PM 15 Q. (By Mr. Tidwell) Chief, if, going back to16 Q. Okay. And when y'all had it narrowed down to 16 Mr. Cook's hypothetical, if he had told people that he17 two people and you had a copy from the Texas Medical 17 was going to get you and then started making this18 Board of the complaint that they had received, the 18 complaint after complaint after complaint, at some p19 anonymous complaint, did you deCide it might be helpful 19 does it -- do you think it becomes harassment?

04:32PM 20 to go see if you could match that to physical evidence 04:35PM 20 A. Yes, sir.21 in one of those two people's possession? 21 Q. Does it appear that we've gone beyond good22 A. Yes, sir. 22 faith?23 Q. Well, why would that be important? 23 MR. COOK: Objection, Your Honor. Th24 A. It's another piece to the puzzle. 24 a legal conclusion.

04:32PM 25 Q. Okay. And in fact did you match that actual 04:35PM 25 THE COURT: Sustained.15 of 21 sheets Page 57 to 60 of 84 03/11/201006:14


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61Q. (By Mr. Tidwell) Do you have an understanding

in your mind what good faith means?A. Yes, sir.Q. What does it mean to you?

MR. COOK: Judge, now I'm going to objectbecause in this case good faith is defined --

THE COURT: Sustained.Go ahead.

Q. (By Mr. Tidwell) Was getting the data off thecomputer toward the end of assembling the piece of thepuzzle?

A. Yes, sir .Q. And at some pOint y'all interviewed

Ms. Mitchell?A. Yes.Q. And Mr. Cook asked you were her Miranda rights

read to her?A. Yes.Q. Now she wasn't in custody at the time, was she?A. No, sir.Q. Technically do you have to Mirandize somebody

if they're not in custody?A. No, sir.Q. But did y'all just to be safe?A. Yes, sir.

Q. Okay.MR. TIDWELL: Pass the witness, Your

Honor.

RECROSS-EXAMINATIONBY MR . COOK:

Q. When you do a criminal investigation do youform the conclusion first and then go out and look forfacts to fulfill your conclusion?

A. No, sir .Q. Aren't you supposed to keep an open mind?

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A. I believe my job is to prove people innocent orguilty.

Q. Well, no, your job is not. You job is in factto investigate cases --A. Well, that's what my conclusion, when I

investigate a case, upon th e completion of myinvestigation, I prove somebody innocent or guilty.

Q. Okay. Well, if there was a kid who threw awindow -- a rock through my window every day and Icalled and complained about it and nothing was done,okay, after a while if I kept complaining are you goingto arrest me for harassment of that child, of that kidwho is throwing that rock through my window?

A. No, if I keep coming to your house and your

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window is broken.Q. No, you're not coming at all, you're not doing

anything.A. Well, that wouldn't be me.

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I would understand what you're sayinyes.

Q. Did you investigate any of the actions ofDr. Arafiles in this matter?

A. No, sir.Q. Did you -- are you aware of the sheriff

investigating any of the actions of Dr. Arafiles in thismatter?

A. No, sir.Q. I t is not uncommon in law enforcement for

somebody to try to report somebody else fir st becausethey know that person is going to report them, right?

A. That's happened in th e past, correct.Q. Do you think it's important if you are really

doing an investigation to keep an open mind?A. Yes, sir.Q. Did it matter to you whether or not

Dr. Arafiles really had done anything wrong?A. Well, it would, yes, if he did something wro

yes.Q. At anytime did the sheriff say that, you know,

let's figure this out, let's investigate the wholething, including Dr. Arafiles and what he did?

A. No, sir.Q. And I never said that the sheriff got the

patients' charts, but I did say that the sheriff went tothe hospital and got HIPAA protected identifyinginformation as being the ir phone numbers and theiraddresses and confirming that they actually werepatients of the hospital.

Do you remember those printouts -A. I've never seen them.Q. -- from the hospital with all the patients'

names and addresses on them?A. I haven't seen those.Q. That was all - - that all predated your

involvement in the case, correct?A. Yes, sir.

MR. COOK: Pass the witness.

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MR. TIDWELL: No further questions, YourHonor.

THE COURT: You can step down.Approach.

(AT BENCH, OFF THE RECORD)THE COURT: Call your next witness.MR. TIDWELL: Charlene Beauchamp.

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(AT BENCH, OFF THE RECORD)THE COURT: We're at that good stopping

place around 5:00. We will be in recess until 9:00 inthe morning. Please keep in mind the instructions Igave you earlier.

When you get here, kind of gather in thejury room, and there should be some coffee or -- outhere and maybe some drinks in there. So please partakeof those if you see fi t to do so.

9:00 in the morning. Keep in mind myinstructions.

(JURY NOT PRESENT)THE COURT: Okay. Do we need to have a

hearing outside the presence of the jury on some issue?MR. CARNEY: Yes.THE COURT: Okay. Let's go.MR. TIDWELL: I guess let me put

Ms. Beauchamp on, Your Honor, and I could ask her whatthe statement is and then tell them --

THE COURT: Okay.Go ahead.MR. TIDWELL: And, Your Honor, I'm going

to just briefly --

CHARLENE BEAUCHAMP,

having been first duly sworn, testified as follows:DIRECT EXAMINATION

BY MR. TIDWELL:Q. You're Charlene Beauchamp, you're the

information technology officer at the hospital as wellas the HIPAA compliance officer; is that correct?

A. Yes.Q. 1'm going to skip through the items that were

retrieved of f the computer, let's just forget that for amoment.

Are you familiar with Anne Mitchell?A. Yes.Q. Are you familiar with Dr. Arafiles?A. Yes.Q. Is the Anne Mitchell you know the same Anne

Mitchell that's seated at counsel table to my right?A. Yes.Q. Have you ever had a conversation with Anne

Mitchell about Dr. Arafiles?A. Yes,Q. Did Anne Mitchell ever directly to you make

statements that were critical of Dr. Arafiles?A. Yes.

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Q. And what were those, as best you can remember

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6several?

A. I t was on several occasions, bu t th e one thatremember the date on was around April 30th of 2008

Q. Okay. And wha t was the statement?A. I t was -- what had happened is my daughter

fell and busted her lip, and I had taken her to Monahato have her lip stitched.

And I had talked to Mr. Wiley concerningwhy that the ER nurse said that they could not stitchher lip there in Winkler County. And Dr. Arafiles hadtold me that he wa s -- had -- was a surgeon an d he cohave stitched her lip f ine, that there wouldn't; havebeen no issue on why that I had to take her to adifferent hospital.

And i t was after that that had been saidthat Anne had told me to be careful about taking mychildren to Dr. Arafiles because that he wa s not areliable doctor.

Q. Okay. Do you remember, did she ever use thephrase Dr. Arafiles is a nut?

A. Yes.Q. Did she use the phrase Dr. Arafiles WOUldn't

last a year?A. Yes.Q. Did she use the phrase Dr. Arafiles is an

alternative voodoo doctor?6

A. I don't know i f she used the word voodoodoctor, bu t I do know that she did say that he uses alo t of alternative herbs and medicines.

Q. Did she say I will make sure he doesn't last ayear?

A. Yes.Q. And these are statements all directly out of

her mouth?A. Yes.

MR. TIDWELL: And that's all I have onthis issue, Your Honor.

CROSS-EXAMINATIONBY MR. CARNEY:

Q. Ms. Beauchamp, when were all these statementsmade?

A. I t was . - the reason wh y that I remember thdate is because that I had taken a picture of Ashley'smouth when she fell, and I took the picture onApril 29th. And i t was the day after that happened, si t was April 30, 2008.

Q. And all those statements that you just talkedabout with Mr. Tidwell were made during the same

the exact words, what were -- was it one statement or 0447PM 25 conversation?17 of 21 sheets Page 65 to 68 of 84 03/11/201006: 14


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69 711 A. Yes. They were made in th e hospital, the old 1 A. Scott Tidwell.2 part of th e hospital. I t was in Vicki's office. I was 2 Q. And so that was -- when was that -- when did3 down there working on th e computer. 3 that take place?4 Q. Okay. And those statements were made did you 4 A. It was a couple of weeks ago.

04:47PM 5 say April 30th? 04:49PM 5 Q. That was the first time y'all talked about6 A. Yes. 6 that?7 MR. CARNEY: Sorry, judge, I'm trying to 7 A. Yes.8 find -- 8 Q. And not before?9 THE COURT: That's okay. 9 A. No.

04:47PM 10 Q. (By Mr. Carney) You were part of this 0449PM 10 Q. And the end part of what you took away from11 investigation regarding the retrieval of information off 11 these comments was that -- what, from Ms. Mitchell?12 the computer; is that right? 12 A. What I took away from the conversation?13 A. Yes, I was. 13 Q. Yes.14 Q. And you were part of the investigation that -- 14 A. Was that he was no t a reliable doctor, don'

04:48PM 15 when the sheriff and Mr. Swanson came to the hospital 04:49PM 15 take your family to him.16 before that retrieval; is that right? 16 MR. CARNEY: We'll pass the witness,17 A. Yes, I was. 17 judge.18 Q. Did you ever tell them at that time about these 18 THE COURT: Anything else?19 statements made by Anne Mitchell? 19 MR. TIDWELL: Nothing else, Your Honor.

04:48PM 20 A. I don't think that i t ever came up. 04:49PM 20 THE COURT: You can step down. Thank y21 Q. Okay. Did you ever tell them? 21 MR. TIDWELL: That's the information we22 A. No. 22 intend to elicit in front of the jUry. I think it goes23 Q. You knew that they were investigating Anne 23 directly to the element of was this done for some24 Mitchell, right? 24 purpose other than a governmental purpose or in good

04:48PM 25 A. Yes. They had asked me fo r the serial numbers 04:50PM 25 faith.70 7

1 off th e computers, and I gave them the serial numbers 1 And this is, just so Your Honor is aware,2 off of al l three computers because i t was a part of my 2 this is the first of many instances where you'll hear3 inventory as information technology. 3 these same comments.4 Q. And subsequently you were in charge of going 4 MR. CARNEY: And, Your Honor, my concer

04:48PM 5 through and retrieving that data, right? 04:50PM 5 about this is that we've asked for notice of extraneous6 A. Yes, I was. 6 acts. Extraneous acts do not have to be crimes. They7 Q. And you knew what that was for, right? 7 do not have to be something that's under the Penal Code.8 A. Yes. 8 These are trying to show that Ms. Mitchell9 Q. And you knew there was a criminal investigation 9 acted in conformity with these comments that are charged

04:48PM 10 regarding Dr. Arafiles making a complaint about 04:50PM 10 in the indictment, and without notice to us. We asked11 Ms. Mitchell; is that right? 11 for notice, and we've brought it up several times, Your12 A. Yes, I did. 12 Honor, about tell us what you know, tell us a date, who13 Q. And you never gave a statement to anybody in 13 said it.14 this case about Ms. Mitchell at that time? 14 I t is not uncommon, and as the court is

04:48PM 15 A. No. 04:50PM 15 well aware, especially in sexual assault cases, any type16 Q. And when did you first decide to tell the 16 of a -- all felonies, the prosecution gives notice to17 prosecutor or anyone else about these statements that 17 the Defense about extraneous acts or bad conduct they18 you're saying Ms. Mitchell made? 18 want to prove up to show the Defendant acted in19 A. It was after that they were gathering their 19 conformity to that.

04:48PM 20 evidence fo r the trial is when that they asked me i f I 04:51PM 20 And that's exactly what this is. This is21 had ever heard -- directly heard that -- heard her say 21 not to do anything more to show that Anne Mitchell was22 that. 22 trying to act in conformity to that.23 Q. Who asked you that? 23 And temporally I don't know where they al24 A. The prosecutor. 24 fall in because I don't know what else they're going to

04:49PM 25 Q. Well, tell me who that is. 04:51PM 25 say, I don't know anything about each witness and what03/11/201006:14:22 PM Page 69 to 72 of 84 18 of 21


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73their testimony is. But I think there is also a concernwith regard to that of how that figures in to when thiscomplaint was filed.

MR. TIDWELL: Your Honor -I'm sorry. Are you through?MR. CARNEY: Oh, I'm sorry, yes.MR. TIDWELL: Your Honor, an extraneous

act would be me asking Ms. Beauchamp did Ms. Mitchellever try to attack Dr. Winton, another physician, andtr y to prove that there was this scheme to attack all ofthe doctors, and that would be an extraneous act as toDr. Arafiles.

We've specifically alleged in this casethat she intended to harm Dr. Arafiles and that doing -by saying I'm going to get him, he's a voodoo doctor,he's a witch doctor, the things that you're going tohear. Those go to the good faith, whether the reportwas made in good faith or was it made to harass.

THE COURT: Overruled.MR. COOK: Yeah.THE COURT: Anything else?MR. CARNEY: Judge, we'd ask that a 403(b)

hearing is held for each one of these witnesses if thecourt is --

THE COURT: Okay. Do y'all want to74

approach please.(AT BENCH, OFF THE RECORD)

MR. CARNEY: Your Honor, we've had aseveral-minute conversation regarding the 403 issuebefore the court which has been of f the record regardingour request for notice prior to this case coming totrial.

In the pretrial hearing, we brought it upbefore, and the court admonishing Mr. Tidwell that ifyou have any you need to give it to them. We believethis is something we should have been given prior totrial.

I know the court is upset because theydon't want to have a 403 balancing hearing because it isa waste of time, but we have no choice but to try to dothis now. We weren't apprised of it. We didn't -- weweren't given notice of it.

We think that each one of these people hasinformation that is prejudicial to Ms. Mitchell and aretrying to adduce evidence that shows that she's actingin conformity with it in order for this indictment to goforward.

I think that it's -- and under 404(b), itdoesn't have to be a criminal act, it can be a bad act.And I think that's what they're trying to -- they're not

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75offering it for any other purpose except for that. And,Your Honor, I think that that is -- we should have beengiven notice of it. We'd like to have the hearing.

And if the court is going to overrule,which is what the intimation of what the court hasintimated already, we'll -- we'd like a limitinginstruction given to the jury as well.

MR. COOK: Judge, and I have an additioobjection to all this eVidence, it's irrelevant. Andlet me explain that.

If good faith is defined in the goodfaith -- the good faith has nothing to do with thefeelings towards a doctor or not. I t has nothing to dowith it. The good faith definition in the MedicalPractice Act just says a nurse possesses reasonablebelief to believe that a physician has been practicingsubstandard care and that patient harm could result,okay?

And we think that if he's going to saythat this -- you know, the problem that I have, judge,is they're saying, okay, under this statute it'sharassment. But the code says it's not.

The code says if she has a reasonablebelief that patient harm has occurred, and, judge, thesfiles are solid, there is no doubt patient harm

7occurred, okay, that then it's my argument that all thisstuff is irrelevant. It's designed - - it's deSigned tojust let's throw mud up against the wall and maybe somof it'll stick.

And it is irrelevant to this charge. It'sirrelevant if you look at a nurse's duty to report.It's irrelevant if you look at any of our right to raisequestionable medical practices.

THE COURT: Overruled, as toMs. Beauchamp's testimony.

So you guys get together and exchangeinformation and we'll sit here and we'll take care ofeveryone of those witnesses.

MR. TIDWELL: Would you like to do thalike at 8:45 in the morning?THE COURT: No. I would like to do it

right now.MR. TIDWELL: Okay.THE COURT: Well, actually I would have

liked to have done it several months ago --MR. TIDWELL: May I --THE COURT: -- in one of the many

pretrials that we had in this case.MR. TIDWELL: May I simply tell you the

witness' name and a statement?03/11/2010 06:14


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THE COURT: Well, you get with them first.And there may be testimony that they don't have anyproblem with or objection, don't think that their motionin limine applies.

MR. TIDWELL: Okay. Let me make him alist then.

THE COURT: In fact, we'll just be inrecess. When y'al l are ready, le t me know.(A recess was taken from 4:58 to 5:28.)

THE COURT: Were you sworn earlier?THE WITNESS: Yes, sir.THE COURT: Okay. This is a hearing

outside the presence of the jury on the Defendant'smotion concerning extraneous offense and other bad acts.

Go ahead.

ROBERT L. ROBERTS.having been first duly sworn, testified as follows:

DIRECT EXAMINATIONBY MR. TIDWELL:

Q. Tell the judge your name please, sir.A. Robert L. Roberts.Q. And just -- all we're going to talk about is a

real limited issue here for just a moment.Sometime during April of 2008, did you

have occasion to hear Ms. Mitchell directly make anydisparaging comments toward Dr. Arafiles?

A. I believe it was sometime in April, yes, sir, Idid.

Q. Okay. And what, as best you can remember,specifically what comments did she make?

A. Would you like me to tell you the story?Q. Sure.A. As I remember it?

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We were in the commissioners' office. Iwas talking to th e commissioners and -- o r a couple ofth e commissioners.

And th e day before, I had played golf withDr. Arafiles. I had me t hi m fo r the f irst t ime andplayed golf with him.

And Anne Mitchell came into th e office tospeak to one of th e commissioners concerning a grantthat they were working on. And in conversation I said Imet our new doctor yesterday, I had a really good t imewith him, he's a really nice guy.

And she began to tell me that he's no t adoctor, he's a witch doctor, I don't know how we go t himhere, he shouldn't be here, our administrator messed up,he's going to get our county sued, and just ranted aboutit .

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Q. Okay. Is that, as best you can remember, whatthe conversation was?

A. Yes, sir.Q. Okay.

MR. TIDWELL: That 's all I have, YourHonor.

CROSS-EXAMINATIONBY MR. CARNEY:Q. When did this take place, sheriff?A. I believe it wa s towards th e end of April.Q. Of which year?A. Of '08.Q. And--A. I t wa s right after Dr. Arafiles f irst go t here.Q. Okay. And where did it take place?A. In the courthouse, in the commissioners'

office.Q. That's on the second floor?A. Yes, sir.Q. Okay. That's the Winkler County courthouse?A. Yes, sir.Q. And who was present?A. I was present, Commissioner Tommy Smith,

Commissioner Robbie Wolf, and I believe Probation

Officer Ron Cook.Q. And tell me how everybody was arranged.

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A. Anne Mitchell wa s standing next to CommissioWolf, wh o wa s sitting at his desk at the computer. Totheir left was Ron Cook. To Ron Cook's left wa sCommissioner Smith. And then I wa s left of CommissioSmith.

Q. Y'all are at a table or --A. No. Everybody had their ow n desk. An d I was

sitting in a chair next to Commissioner Smith.

it?Q. SO it's just an office with several desks in

A. Yes, sir.Q. And--A. There were tw o desks. Commissioner Smith ha

desk and Commissioner Wolf had a desk.Q. And so everybody was speaking together?A. Well, I wa s speaking to Anne.Q. Okay.A. And Anne was speaking to me .Q. All right . And Mr. Smith was there. Was he

speaking to y'all as well?A. I don't believe Mr. Smith said anything.Q. Okay. Well, was he sit ting right there?A. I don't -- nobody said anything. Anne was

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Q.A.Q.

Right, that was my question.Right .I mean, she was speaking, and the whole it's

05:31PM 5 no t like there was multiple conversations going on in6 the room?7 I mean, you've got one, two, three, four,8 four of y'all there, and Anne walks in?

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9 A. I can't test i fy to what th e other people were05:32PM 10 doing. I know I was talk ing to Anne, I wa s l is tening to

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Anne.Q.

present?A.Q.A.Q.A.Q.

Al l right. And there were four of you there

Yes, sir.And Anne walked in?Yes, sir.Okay. No t a big office?No.So is it -- it's a common like morning

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123

A.Q.

right?A.Q.

Right.-- is that what y'all have there; is that

Right.And everybody has a cup of coffee and talks

about the da y events?A.Q.

Right .So everybody chimes into other people's

4 conversations?05:32PM 5

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A. Yes, sir .Q. Okay. And there is nothing mentioned in your

reports o r investigation that you did of this offenseabout this conversation, is there?

A. No, sir .Q. And there is nothing in the search warrant

about that, is there?A.Q.

No, sir .And there is no statement that you made,

supplement statement, to your report about that, isthere?

A.Q.

NO , sir .And when was the f irst t ime that you told

Mr. Tidwell about this?A. I -- I don ' t recall. It ha d to be somet ime

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05:33PM 20 during the course of our invest igat ion, I don' t remember21 when.22 Q. Well, when was that investigation, do you23 remember?24

0533PM 25A.Q.

It started in Apri l o f '09.And so from April '0 9 unti l May of '0 9 is when

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you go t a search warrant, correct?A.Q.

Yes, sir.Nothing in there, reports or anything, to

8

4 supplement that that you had heard this statement or0533PM 5 used it to establish what Ms. Mitchell had meant to do?

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A. No, sir.MR. CARNEY: I'l l pass th e witness, judge.MR. TIDWELL: Nothing further, Your HonorTHE COURT: You can step down. Thank yoAnybody else?MR. TIDWELL: Nobody that's here, Your

12 Honor, I'm sorry.13 I'l l be glad to resume as early as yo u14 would like fo r us to in the morning. I will have th e

05:34PM 15 people here, and we can do them back to back.16171819

05"34PM 202122

THE COURT: Okay. Have them here at 8:3MR. TIDWELL: Yes, sir.THE COURT: Is that al l right?MR. CARNEY: Yes, sir, we'l l be here.THE COURT: There are eight more?MR. TIDWELL: Yes, sir.THE COURT: We'll see you in the morning

23 then unless there is something else we need to do.2425

MR. CARNEY: No, sir.(COURT ADJOURNED)

REPORTER'S CERTIFICATE2 THE STATE OF TEXAS

4 COUNTY OF ANDREWS

6 I f K e l l y Al l e n , O f f i c i a l Cour t Repor teran d fo r th e l 09 th Dis t r i c t Court of Andrews County,7 Sta t e o f Texas, do hereby c e r t i f y t h a t th e above an dforegoing con ta ins a true an d c o r r e c t t r ansc r ip t ion o8 a l l por t ions of evidence an d o ther proceedings requesin wri t ing by counse l for th e pa r t i e s to be included9 t h i s volume of the Repor te r ' s Record in the above-styan d numbered cause , a l l of which occurred in open c ou10 or in chambers an d were r epor t ed by me .

11 I fu r the r c e r t i f y tha t t h i s Repor te r ' sRecord of t he proceedings t r u l y an d cor rec t ly r e f l e c t12 th e e xh i b i t s , i f any, of f e r ed by th e re spec t ive pa r t i13 I fu r the r c e r t i f y t ha t th e t o t a l cos t foth e prepa ra t ion of t h i s Repor te r ' s Record i s $14 an d w i l l be pa id by Hr . Brian Carney, Attorney---" 'f"-o-Defendant .1516 of171819202122232425

WITN8SS MY OFFICIAL HAND t h i s th e.?.QlO..

Kelly Allen, CSRO f f i c i a l Court Repor ter109th Dis t r i c t CourtAndrews County, TexasAndrews County Cour t hous e , Room 20 1Andrews, Texas 79714Phone: (432) 524-1480CSR No. 1618E xpi r a t i on : 1 2 / 3 1 / 1 0

d

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