15TH ANNUAL

Criminal Defense Trial Skills & Trial Law Program A PROGRAM FOR THE DEFENSE

August 6-9, 2018 at The Center for American and International Law, Plano, Texas

Mock Case Materials

I. Fact StatementsII. StipulationIII. Evidence 1IV. Evidence 2V. Indictment

VI. Expert Stipulation

CAUSE NO. F08-31539

STATE OF TEXAS § IN THE CRIMINAL DISTRICT§

V. § COURT NO. 5§

T.L. ALLEN § DALLAS COUNTY, TEXAS

CASE MATERIALS

I. Fact Statements

1-1

CAUSE NO. F08-31539 STATE OF TEXAS § IN THE CRIMINAL DISTRICT § V. § COURT NO. 5 § T.L. ALLEN § DALLAS COUNTY, TEXAS FACT STATEMENT OF OVIS NATHAN

My name is Ovis Nathan. I am a 35 year old and I work as a set designer for a local television production company. We produce “reality” TV shows like Dallas DNA and Cops. On August 8, 2008, around 4:45 P.M., I was headed into downtown Dallas to meet some friends for happy hour. I was driving a 1991 Ford F150 pickup truck. The weather was clear.

I might have been driving a little over the speed limit because I was trying to beat rush hour traffic. Anyway, I was in the center northbound lane of Interstate 35. At that point, the highway is six lanes wide, three northbound and three southbound. I was leaning over to change the stations on my XM radio when I heard a horn. I looked up into my rearview mirror and saw an Expedition on my right going a lot faster than I was. I immediately jerked the wheel to the left but my truck was clipped on the rear passenger side. I had to crank the wheel hard to the left to avoid losing control of my truck.

Out of the corner of my eye I saw the Expedition cross the shoulder and head into the southbound service lane. I heard a crash. I pulled over as soon as possible. I saw the SUV lying upside down in the ditch. I could also see a bicyclist laying in the ditch. I immediately realized there had been a serious accident and called 911 for assistance. The front end of the expedition was totally smashed. The bicyclist was impaled on the handle bars. I rushed over to the bicyclist but I immediately saw that the bicyclist had passed, so I went to attend the driver of the Expedition who I now know to be T.L. Allen. Jan Swanson had already pulled T.L. from the expedition. T.L. was disoriented, looked dazed and confused. I asked T.L. if everything was okay and offered to exchange insurance information but didn’t get a coherent response. I went back to inspect the damage on my pick-up truck. I noticed that the passenger rear light fixtures were shattered, the rear fender was dented and the bumper had been pushed inward. I also noticed that I happened to pull onto the shoulder near where someone had apparently emptied a cooler of Miller High Life. I waited at my pickup truck for the police and emergency response team to arrive. The ambulance people gave me a routine exam to see if I was okay. I was at the scene for about two hours and gave a statement to the officer there. I later gave a follow-up statement to the police by phone when they called a few days later. At no time did anyone suggest that I caused the accident.

I was surprised to learn that I was being considered as contributorily negligent by the National Insurance Group. I did a little checking on my own and came across the facebook page of T.L. Allen. Within a week of the accident, there was an entry about how T.L. was lucky to be alive after the “60's weekend” in the Valley and how God had delivered a valuable lesson and that bikes are no match for SUVs. However, T.L. was just “born to party” and a “true one

I. Fact Statements

1-2

percent-er.” I did not veer into Allen’s lane of traffic. I have never been formally charged by the police in this case and I have fully cooperated in the investigation. Admittedly, I had a DWI conviction fifteen years ago when I was in college. I learned my lesson. I do not drink and drive. The beer bottles the police found in the bed of my pick-up were left by my crew after wrapping the final episode of “Dallas White Collar Lawyer.”

I. Fact Statements

1-3

CAUSE NO. F08-31539 STATE OF TEXAS § IN THE CRIMINAL DISTRICT § V. § COURT NO. 5 § T.L. ALLEN § DALLAS COUNTY, TEXAS FACT STATEMENT OF OFFICER MACDOUGAL

My name is Officer MacDougal. I am a six year veteran of the Lynam police force. As part of my patrol duties, I have attended many auto accident crashes and assisted in dozens of automobile accident investigations. Although I have no formal training in accident reconstruction, I have read numerous books and articles on the subject and have often discussed my conclusions with the crash scene investigators of the Dallas Police Department.

I was on patrol on I-35 around 4:45 P.M. when I received a 911 emergency call regarding an accident on Interstate 35 near the Croft exit. When I arrived at the scene the fire department was already working on the bicyclist. I was informed that the rider, Kim Smith, had been killed in the collision. As part of my duties, I helped set out highway flares and inspected the vehicles. The bicycle was destroyed but I could tell that it had been hit head-on front to passenger front with the Expedition in the ditch. The driver of the Expedition had obviously sustained cuts and bruises around the face but was otherwise ambulatory. I determined the driver to be T.L. Allen. I did a cursory review of the passenger compartment of the Allen vehicle. The only thing noteworthy that I could recall was an AT&T LG cell phone opened up with a partial text message typed inside. I opened up the glove box and found a small, metal cylindrical pipe with some residue. In my experience, similar pipes are used to smoke marijuana or other drugs. I attempted to talk to T.L. Allen. I asked what happened but Allen, who was being attended to by EMS personnel, was non-responsive. Even though there had been a major collision, I found the degree of Allen’s non-responsiveness to be remarkable and made a mental note to check for a history of substance abuse. Based on the information I obtained from the driver’s license, I found two arrests for possession of controlled substances but no note of dispositions.

I also spoke to Ovis Nathan at the scene. Ovis was sitting on the tailgate of the F150 pickup truck smoking a cigarette. Just outside the passenger door I saw two or three bottles of Miller High Life, the champagne of bottled beers. The bottles were empty and were cool to the touch, which I also thought was unusual given the 95 degree temperature. However, when I spoke to Ovis I could not detect any odor of alcohol, just the cigarettes. Ovis said the Expedition had tried to pass on the right at a high rate of speed and crossed into the center lane colliding with Ovis’s truck. Ovis pointed out debris on the highway. I saw pieces of red and white plastic from Ovis’s right rear taillights in the far right hand lane about 500 feet from where the Expedition had come to rest. Because there was a fatality in the accident, I asked Allen for consent to draw a blood

I. Fact Statements

1-4

sample which the EMS personnel did at scene at my request. After hearing my request, Allen did not refuse to provide a sample, apparently acquiescing in the blood draw. A preliminary presumptive test for controlled substances on the pipe showed traces of methamphetamine. Based upon the relative positions of the vehicles, the lack of skid marks from the Expedition, the statement of Ovis Nathan, and the presumptive test for methamphetamine, as well as the partial text message on the phone, I determined that the cause of the accident was driver inattention on the part of T.L. Allen. In my opinion, T.L. Allen had attempted to pass the Nathan vehicle at a high rate of speed on the right, clipped the passenger rear of the Ford pickup truck, lost control of the vehicle, crossed the grassy shoulder, and collided head-on into the bike which was southbound on the service road. Common sense tells you not to speed and pass on the right and not to drive under the influence of alcohol or medication. My opinion was further buttressed by the results of the test done on the blood sample, which showed that Allen had traces of Valium, Xanax, and methamphetamine at the time of the accident.

I. Fact Statements

1-5

CAUSE NO. F08-31539 STATE OF TEXAS § IN THE CRIMINAL DISTRICT § V. § COURT NO. 5 § T.L. ALLEN § DALLAS COUNTY, TEXAS FACT STATEMENT OF JAN SWANSON

My name is Jan Swanson. I’m an insurance claims analyst for National Insurance Group. On August 8, 2008, I was headed into Dallas for a weekend conference on “adjusting insurance rates to fit the needs of a down-turned economy.” Traffic was surprisingly moderate on I-35 northbound given that it was almost rush hour on a Friday afternoon. As I came over the rise near the McWilliams exit on I-35, I saw in front of me a white pick-up swerve into the far right lane and apparently collide with an SUV. I saw the SUV swerve off the shoulder and into on-coming traffic on the service road where it collided with a small economy car. I telephoned 911 and pulled over on the shoulder to assist.

I went straight to the Expedition and helped the driver crawl out through the passenger side of the vehicle. T.L. Allen was bleeding from cuts on the forehead and I noticed that the airbags had been deployed but the front windshield was just about gone. I asked what happened and Allen mumbled something about being cut off. I had Allen lay down in the ditch to await the arrival of emergency vehicles.

There was a lot of confusion, but about 100 yards ahead of me, I saw the white Ford pickup had pulled over as well. The driver of that vehicle had opened up the passenger door of the truck and appeared to be throwing objects out onto the grass. I could not tell what they were. I approached the driver, Ovis Nathan, to see if there were any blankets or pillows for the bicyclist. Nathan seemed quite anxious that I not approach the pickup truck and hurriedly redirected me to give my attention to T.L. Allen. I thought I detected the odor of alcohol on Nathan’s breath. As I got closer to the pickup truck I could see a large scrap on the rear passenger corner. The passenger taillight had been busted out but the pickup appeared driveable.

When the EMS personnel arrived, I walked back along the route of travel. As a claims adjuster, I have assisted in the investigation of many automobile accidents. Although I have no formal training in accident reconstruction, I attended many in-house seminars on evaluating accident claims. What I observed was that all of the accident debris was in the far right lane. There was no debris in the center lane or even near the stripe dividing the lanes. Although there were no skid marks from the Expedition, I could see heavy black skid marks leading up to the pickup truck which to me suggests that the driver had slammed on the brakes immediately after impact. Given the length and darkness of the skid marks, the pickup truck must have been going at least 70 mph. I saw Officer MacDougal at the scene and gave him my business card. However, he declined

to take a statement from me at that time and told me he would follow-up with a telephone interview, which he did approximately one week later. From my observation, T.L. Allen had sustained a

I. Fact Statements

1-6

concussion at the time of the accident but exhibited no signs of intoxication. My view of the accident scene led me to believe that the accident was attributable to driver inattention in that Ovis Nathan had veered into Allen’s lane of traffic, colliding with the left front of Allen’s vehicle, causing it to lose control. Apparently Nathan was text messaging someone instead of watching the road. I don’t know if alcohol played any role in the accident. Further, it was not until after I spoke with Officer MacDougal that I learned that T.L. Allen was insured through the National Insurance Group and was a share holder in Borras Freight Lines, our anchor client.

I. Fact Statements

1-7

CAUSE NO. F08-31539 STATE OF TEXAS § IN THE CRIMINAL DISTRICT § V. § COURT NO. 5 § T.L. ALLEN § DALLAS COUNTY, TEXAS STATEMENT OF T.L. ALLEN

My name is T.L. Allen. I was the driver of the Expedition involved in the crash on August 8, 2008. I am 48 years old. I am a very up front person. I am the owner of Borras freight lines, an interstate shipping company. We have a fleet of over 200 vehicles. I admit that I have used drugs in the past, however, I have no criminal record. I have been through one voluntary rehabilitation program. That program taught me to take responsibility for my actions. I learned that most recreational drugs effectively disappear from the system within 48 hours and drugs such as marijuana and methamphetamine have little or no effect on behavior after 24 hours. Of course, I know better than to drive on prescription medication. I was returning from a week’s working vacation at South Padre Island with my one of my top customers, Nachitgal Farms. I admit attending a beach party on Wednesday where I over imbibed. However, I do not remember taking any drugs. Also, in order to rest up for the drive back to Dallas I had taken some Valium Wednesday night before going to bed.

I had left South Padre Island Thursday around noon. I made a detour to El Campo to visit my aunt and uncle and had dinner with them Thursday night before driving for home. Although I might have been tired, in no way was I an impaired driver. As I approached Dallas, I was anxious to get home before weekend rush hour. From what I remember, there was a white pickup truck in the center lane ahead of me. The driver kept drifting to the right and then yanking the wheel back over to the left. In addition, the pickup would speed up to almost 70 mph and then slow down to 55 mph. I followed the pickup for approximately 2 miles and then decided that I needed to get around it because I was concerned about the erratic driving. As I sped up to pass, I went around to the right because there was a large semi-tractor trailer in the far left lane and I did not think I had room to pass on the left. Just as I pulled nearly even with the pickup truck it veered into my lane. I slammed on my horn and was forced to jerk the wheel to the right. I remember that my tires caught the soft earth on the shoulder. The last thing I remember is spinning around in the ditch. I don’t have a clear recollection of the rest of the events that day. I don’t remember speaking to any officers or EMS personnel. I have a vague recollection of being pulled from the truck.

The next day at the hospital, Officer MacDougal came to take a statement from me. However, at that time, there was a police officer stationed outside my hospital room and my nurse had advised that I was under arrest for intoxication manslaughter. I asked MacDougal if this was true, that I had been arrested without MacDougal even taking my statement. When I was formally advised that I was indeed under arrest, I asked to talk to a lawyer. MacDougal has never heard my side of the story. I did speak to an insurance agent of mine from the National Insurance Group and advised them that I had been run off the road by the white pickup truck. Of course, when I learned that Ms. Smith had been killed in the accident, I sent flowers and a letter of apology to the Smith

I. Fact Statements

1-8

family. My insurance company has assured me that I was not the primary cause of the accident. This has been a terrible experience and one that I will never forget. I have stopped using drugs and am willing to enter into another rehabilitation program. As a result of my arrest, my license has been suspended and I have been required to bum rides to work with my friend, Lee Hermann.

I. Fact Statements

1-9

CAUSE NO. F08-31539

STATE OF TEXAS § IN THE CRIMINAL DISTRICT§

V. § COURT NO. 5§

T.L. ALLEN § DALLAS COUNTY, TEXAS

STATEMENT OF STIPULATED FACTS

The parties agree and stipulate as to the following:

I.

This is a criminal trial that will be held before a jury. The prosecution is being made by and in the name of the State of Texas. The defendant, T.L. Allen, has been charged by indictment with the criminal offense of intoxication manslaughter for the death of Kim Smith. This will be a bifurcated trial. The parties will only try the issue of guilt or innocence. Should the defendant be found guilty, there will be a separate trial on the issue of punishment at some future date. An appropriate punishment or the range of punishment is, therefore, not an issue at this trial.

II.

The true bill of indictment reads in pertinent parts as follows:

“The defendant, on or about September 8, 2008, and before the presentment of this indictment, in the County and State aforesaid, did then and there operate a motor vehicle in a public place while intoxicated by not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of these substances into her body, and did by reason of such intoxication cause the death of another, namely, Kim Smith, by accident or mistake, to wit: by driving said motor vehicle into and against a bicycle occupied by Kim Smith.”

III.

There are no defects in the indictment. T.L. Allen has been properly warned of all rights, appropriate bail was set, and said bail has been posted.

All statements were given freely and voluntarily, and all of the legal requirements for the taking of these statements has been met. Allen’s sate and federal constitutional rights including the right against self-incrimination, right to counsel, and right to due process of law are not at issue with regard to any statement. The court has both subject matter and personal jurisdiction over the parties. All questions of fact are being submitted to the jury. Questions of law will be decided by the court.

IV.

All exhibits included herewith are authentic and are accurate copies of the originals. No

II. Stipulation

2-1

objections to the authenticity of the exhibits will be entertained. The only exhibits to be used at trial are those included herewith. The signatures of the witness statements and on all other documents are authentic. V.

Ovis Nathan and Officer MacDougal are to testify on behalf of the prosecution. T. L. Allen

and Jan Swanson are witnesses for the defense. They may not testify for or be called on behalf of the prosecution. VI.

The prosecution must prove the following elements beyond a reasonable doubt: (1) That T.L. Allen (2) Operated a motor vehicle (3) in a public place (4) while intoxicated by not having normal use of his/her mental or physical faculties by reason

of the introduction of a controlled substance, a drug, a dangerous drug, or a combination of two or more of these substances into his/her body

(5) and as a result of the intoxication, caused the death of an individual namely Kim Smith (6) through accident or mistake, to-wit; by driving a motor vehicle while failing to maintain a

single lane, or by striking another vehicle, or by moving from one lane of traffic to another lane of traffic in an unsafe manner, or by crossing lanes of traffic, or by operating a motor vehicle and causing said motor vehicle to collide with another vehicle occupied by Kim Smith, caused the death of an individual, namely, Kim Smith

VII.

The following instructions will be submitted to the jury: 1. In all criminal cases the burden of proof is on the state. 2. All persons are presumed to be innocent and no person may be convicted of an offense

unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all of the evidence in this case.

3. The prosecution has the burden of proving the defendant guilty and it must do so by providing each and every element of the offense charged beyond a reasonable doubt I and if it fails to do so, you must acquit the defendant.

4. It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all “reasonable doubt” concerning the defendant’s guilt.

II. Stipulation

2-2

5. In the event you have a reasonable doubt as to the defendant’s guilt after considering all of the evidence before you, and these instructions, you will acquit him and say by your verdict “not guilty”.

6. You are instructed in this case that certain evidence was admitted before you in regard to witnesses have committed offenses or having been convicted of offenses. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the credibility of the witnesses in this case, and to aid you, if it does aid you, in deciding upon the weight you will give to the witnesses and you will not consider the same for any other purpose.

7. Voluntary intoxication does not constitute a defense to the commission of a crime. 8. The term "Public place" means anyplace to which the public or a substantial group of the

public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops.

9. A person is criminally responsible if the result would not have occurred but for his/her conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient to produce the result.

10. If you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 2008 in Dallas County, Texas, the defendant, T.L. Allen, did then and there operate a motor vehicle in a public place while intoxicated by not having the normal use of his/her mental or physical faculties, by reason of the introduction of a controlled substance, a drug, a dangerous drug, or a combination of two or more of these substances into his/her body, and did by reason of such intoxication cause the death of another, namely, Kim Smith, by accident or mistake, to-wit: by driving said motor vehicle into or against another motor vehicle occupied by Kim Smith, then you will find the defendant, T.L. Allen, guilty of the offense of Intoxication Manslaughter as charged in Count One of the indictment. If you find the Defendant guilty of Intoxication Manslaughter, then you will not consider or render a verdict on any other offense or count in the indictment.

11. Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty and next consider whether the Defendant is guilty of the offense of Manslaughter in Count Two of the indictment.

12. You are instructed that our law provides that a person commits the offense of Manslaughter if she recklessly causes the death of an individual.

13. The term "individual" means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.

14. A person acts recklessly, or is reckless, with respect to the result of her conduct when she is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standpoint of the standard of care that an ordinary prudent person would exercise under all the circumstances, as viewed from the actor's standpoint.

15. If you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 2008, in Dallas County, Texas, the defendant, T.L. Allen, did then and there recklessly, to-wit: by driving a motor vehicle while failing to maintain a single lane, or by striking another vehicle, or by moving from one lane of traffic to another lane of traffic in an unsafe manner, or by crossing lanes of traffic, or by operating a motor vehicle and causing

II. Stipulation

2-3

said motor vehicle to collide with another vehicle occupied by Kim Smith, caused the death of an individual, namely, Kim Smith, then you will find the defendant, T.L. Allen, guilty of the offense of Manslaughter as charged in Count Two of the indictment.

16. Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty and next consider the lesser included offense of Criminally Negligent Homicide.

17. You are instructed that our law provides that a person commits an offense if she causes the death of an individual by criminal negligence.

18. A person acts with criminal negligence, or is criminally negligent, with respect to the result o f her conduct when she ought to be aware of a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

19. If you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 2008, in Dallas County, Texas, the defendant, T.L. Allen, did then and there by criminal negligence to-wit: by driving a motor vehicle while failing to maintain a single lane, or by striking another vehicle, or by moving from one lane of traffic to another lane of traffic in an unsafe manner, or by crossing lanes of traffic, or by operating a motor vehicle and causing said motor vehicle to collide with another vehicle occupied by Kim Smith, caused the death of an individual, namely, Kim Smith, then you will find the defendant, T.L. Allen, guilty of the lesser included offense of Criminally Negligent Homicide.

20. Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty,

21. You are instructed that our law provides that a defendant may testify on his/her own behalf if he/she elects to do so. This, however, is a privilege accorded a defendant, and in the event he/she elects not to testify, that fact cannot be taken as a circumstance against her in this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

22. A grand jury indictment is the means whereby a defendant is brought to trial in a felony prosecution. It is not evidence of guilt nor can it be considered by you in passing upon the issue of guilt of the defendant.

23. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he/she has been arrested, confined, indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at her trial. The law does not require a defendant to prove his/her innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.

24. The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

25. It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt.

26. In the event you have a reasonable doubt as to the defendant's guilt after considering all the evidence before you, and these instructions, you will acquit her and say by your verdict "not

II. Stipulation

2-4

guilty". 27. You are the exclusive judges of the facts proved, of the credibility of the witnesses and the

weight to be given their testimony, but the law you shall receive in these written instructions, and you must be governed thereby.

28. If you find the Defendant guilty of Intoxication Manslaughter, Manslaughter, or Criminally Negligent Homicide, then you will answer the Special Issue that follows your verdict forms. If you find the Defendant not guilty of Intoxication Manslaughter, Manslaughter, or Criminally Negligent Homicide, then you will not answer the Special Issue.

VIII.

The charge of the court is accurate in all respects and no objection to the charge will be entertained. IX.

The only issue to be determined by the jury is the guilt or innocence of T.L. Allen. Punishment will be determined in a separate hearing and only if the jury finds T.L. Allen guilty. The jury will be submitted the following verdict forms:

We, the jury, find the defendant, T.L. Allen, guilty of the offense of intoxication manslaughter as charged in the indictment or we, the jury, find the defendant, T.L. Allen guilty of manslaughter as charged in the indictment or we, the jury, find the defendant, T.L. Allen, not guilty. _______________________________ _______________________________ Attorney for the prosecution Attorney for the defense

II. Stipulation

2-5

JPS HEALTH NETWORK 1500 South Main

Fort Worth, Texas 76104

Patient Name: ALLEN, T.L. Medical Record #: 327-69-87 Admit Date: 08/08/2008 Service: Discharge Date: 08/08/2008 Pt. Location:

DISCHARGE SUMMARY

DISCHARGING SERVICE/TEAM: Surgery Team C. ATTENDING STAFF: Geno Tellez, M.D.

HISTORY OF PRESENT ILLNESS: The patient is a 48 year-old involved in a motor vehicle accident. Allen was the driver of a Ford, utility vehicle of some type. Allen was pinned under the wheel, unrestrained, and the car was inverted. Passersby noted that the patient was conscious and was conscious on arrival of EMS, was alert and oriented x2 and the patient had sustained an obvious open fracture on her right ankle. Allen was also complaining of exquisite neck tenderness and expressed concern about neck being very unstable.

PAST MEDICAL HISTORY: None. PAST SURGICAL HISTORY: None. PHYSICAL EXAMINATION: GENERAL: Upon arrival, Allen was alert and oriented x2. HEENT: The pupils are equal, round and reactive to light and accommodation. No obvious trauma. An abrasion to left forehead. CARDIOVASCULAR EXAM: Regular rate and rhythm, no murmurs. RESPIRATORY: Clear to auscultation bilaterally, no wheezes or crackles. ABDOMINAL EXAM: Benign. SKIN: Multiple abrasions, some on the forearm. NEUROLOGIC: Alert and oriented x3. Motor for left extremity biceps were 5/5, tricepts were 5/5, hip flexion was 5/5, and toe flexion was 5/5. There were no gross motor or sensory deficits at the time. Looking at sensation, Allen could feel fine touch and proprioception were otherwise intact and these tests were all performed on upper and lower extremities, so overall there is no neurologic deficit.

LABORATORY DATA: Upon admission, sodium was 139, potassium was 3.9, chloride was 109, bicarbonate was 24, FUN was 11, and her glucose was 100. Urine was negative for any signs of infection. White count was 10.4, hemoglobin was 12.6, hematocrit was 35.4, and platelets were 359,000. PT was 13.7, INR is 0.8, PTT was 23.9. Urine drug screen was positive for amphetamines/methamphetamine and cannabis, and was also positive for benzodiazepine, but she received fentanyl and versed while in the ER. CT of the head done on admission showed evidence of intraventricular hemorrhage in the left occipital horn. Linear densitities in the right frontal vertex consistent with subarachnoid hermorrhage. Associated early parenchymal hemorrhage contusions could not entirely be excluded. Repeat CT shows stable appearance of small areas of subarachnoid hemorrhage/petechial cortical hemorrhage involving the right front vertex, stable small amount of intraventricular hemorrhage in the left occipital horn and no new or mediastinal injury. Minimal basilar dependent atelectatic change, no fracture involving of the anterior aspect of the left scapula. CT abdomen and pelvis, no evidence of solid organ injury or free fluid. CT cervical spine, there was mild associated soft tissue swelling. There was no canal stenosis. L The fracture cannot be excluded involving the inferomedial aspect of the left lateral mass of C1. There are a few millimeters of apparent anterior listhesis of C2 on C3. MRI done on angio, cervical MRI; impression, there was no evidence of arterial injury related to the C2 fracture, no evidence of acute arterial abnormality involving the neck. MRI of the spinal cord and cervical; impression, there was one acute fraction of the C2 as described above, there was no canal stenosis or abnormal cord signal. There was associated mild right paracentral posterior disk protrusion of C2-C3.

III. Evidence 1

3-1

JPS HEALTH NETWORK 1500 South Main Fort Worth, Texas 76104

Patient Name: T.L. Allen Med. Rec. # 1. Abnormal marrow edema involving multiple cervical vertebral bodies and the T3 vertebral body as described

above. Findings concerning areas of marrow contusion and/or septal fracture. Mild compression deformity of the superior endplate of C4.

2. There are a few millimeters of anterior subluxation at C2 in relation to C3. 3. There was a thin area of prevertebral fluid in level of C2 down to C4-C5. 4. There was prominent posterior paraspinal soft tissue edematous changes from the level of the skull base to the

level of C6. 5. C4-C5 broad base posterior disk bulge mildly effaces the anterior thecal sac and narrow AP diameter of the

central canal up to 9 mm. ALLERGIES: NO KNOWN DRUG ALLERGIES HOSPITAL COURSE: The patient was admitted to the intensive care unit to be monitored very closely. C-spine precautions with C-collar and spine immobilization and implements for prevention of skin breakdown, and the patient’s C-collar was implemented. Patient was n.p.o. Neurosurgery was consulted and Ortho was consulted. The patient was placed on antibiotics and pain medications and GI prophylaxis. Since then, the patient remained in the ICU for approximately 2 days. She was then transferred to the floor. Since being transferred to the floor, the patient has undergone surgery with the orthopedic doctors on her right ankle. She had an open reduction and internal fixation of the right ankle performed on 8/8/08.

III. Evidence 1

3-2

CERTIFICATE OF ANALYSIS BEFORE ME, the undersigned authority, personally appeared Kathy Jean, who being duly sown, stated as follows: My name is Kathy Jean. I am of sound mind, over the age of 18 years, capable of making this affidavit and personally acquainted with the facts stated in this affidavit. I am employed by the Texas Department of Public Safety Crime Laboratory, which was authorized to conduct the analysis referenced in this affidavit. Part of my duties for this laboratory involved the analysis of physical evidence for one or more law enforcement agencies. This laboratory is accredited by ASCLD/LAB. My educational background is as follows: Bachelor of Science degree in Chemistry with a minor in Biology from Texas Woman’s University (1975) and a Master of Science degree in Chemistry (emphasis: Analytical Chemistry) from Texas Woman’s University (1980). My traiing and experience that qualify me to perform the tests or procedures referred to in this affidavit and dettermine the results of those tests or procedures are as follows: Trained and worked at the Texas Department of Public Safety Crime Laboratory since September, 1999. I received the physical evidence listed on laboratory report no. L-339333 (attached) on the 8th day of August, 2009. On the date indicated in the laboratory report, I reported results from the following tests or procedures on the physical evidence: Gas Chromatograph-Mass Spectrometer analysis of the blood sample for amphetamine and methamphetamine. The tests and procedures used were reliable and approved by the laboratory. The results are as indicated on the lab report. _____________________________________ Kathy Jane Erwin, Affiant SWORN TO AND SUBSCRIBED before me on the ____ day of ________________, 20____. _____________________________________ Notary Public, State of Texas

III. Evidence 1

3-3

TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY SERVICE MSC 0460 P.O. BOX 4143 AUSTIN, TEXAS 78765-4143

Voice 512-424-2105 Fax 512-424-2869 THOMAS A. DAVIS, JR. COMMISSION

DIRECTOR TOXICOLOGY REPORT ERNEST ANGELO, JR.

February 23, 2009 CHAIRMAN DAVID MCEATHERON ASST. DIRECTOR

OFFICER MACDOUGAL LYNAM POLICE DEPARTMENT 225 W. RENFRO LYNAM, TEXAS 78550

Laboratory Case Number Agency Case Number Offense Date

L-339333 0529331 08/08/08 Suspect(s) Victim(s) ALLEN, T.L. DL#06304670 SMITH, KIM (DEC)DOB: 9-16-50 Offense: Intoxication Offense County of offense: Dallas Evidence Submitted On October 5, 2008 forwarded from Dallas DPS lab in person by Sandy Janek

Blood sample of T.L. Allen Results of Analysis Blood Drugs: Benzodiazepine (Xanax / Valium) 0.013 mg/L*

Amphetamine detected insufficient Methamphetamine 0.028 mg/L

*indicates abuse Blood Analysis: An enzymatic method (EMIT) was used to screen for five classes of drugs: amphetamines, barbiturates, benzodiazepines, cocaine and its metabolites, and opiates. The detection cut off for most drugs of interest is 0.1 mg/L in blood. The evidence will be returned under separate cover. Eduardo Pacheco Kathy Jean Forensice Scientist, Toxicology Forensic Scientist, Toxicology Texas DPS Austin Laboratory Texas DPS Austin Laboratory

III. Evidence 1

3-4

Accu-chem Laboratories 990 North Bowser Road, Suite 800/800 Richardson, Texas 75081 (971) 234-5412 www.accuchem.com _________________________________________________________________________________________ Client Dallas County DA Name/Case # ALLEN, T.L.

Sample ID 764211 2301 Cedar Springs SSN 05-29331 Dallas, Texas 75201 Matrix Other

Collected 08/08/08 00:00 Aux Data Received 02/09/09 18:38 Chain # 0529331 Completed 02/13/09 15:58 Reason Other Reported 02/13/09 15:59 Location _________________________________________________________________________________________ Analyses Ordered: 1190B - D, L-Meth. Quant., Blood _________________________________________________________________________________________ Analyte Result Quant. Screen Confirm

Cutoff Cutoff D, L-Methamphetamine, Blood DETECTED D-Methamphetamine DETECTED 100 10% I certify that the specimen identified by this chain number has been handled and analyzed in accordance with all applicable requirements. Date: 02/13/09 Certified by : John Tarver Laboratory director: John L. Laseter Ph.D., FACFE, DABFM Technical director: John Tarver, MS, MBA, DABFT, TC (NRCO) Accreditations/Certifications American Society of Crime Laboratory Directors (ASCLD/LAB) College of American Pathologists (CAP) Texas Department of Public Safety (DPS) U.S. Department of Health and Human Services (CLIA) - - - - End of Report - - - - Page 1 of 1

III. Evidence 1

3-5

TEXAS DEPARTMENT OF PUBLIC SAFETY CRIME LABORATORY SERVICE MSC 0460 P.O. BOX 4143 AUSTIN, TEXAS 78765-4143

Voice 512-424-2105 Fax 512-424-2869 THOMAS A. DAVIS, JR. COMMISSION

DIRECTOR Alcohol Analysis Laboratory Report ERNEST ANGELO, JR. September 10, 2009 CHAIRMAN

DAVID MCEATHERON ASST. DIRECTOR

OFFICER MACDOUGAL LYNAM POLICE DEPARTMENT 225 W. RENFRO LYNAM, TEXAS 78550

Laboratory Case Number Agency Case Number Offense Date

L-339333 0529331 08/08/08 Suspect(s) Victim(s) ALLEN, T.L. DL#06304670 SMITH, KIM (DEC)DOB: 9-16-50 Offense: Intoxication Offense County of offense: Dallas Received: 09/05/08 by express mail 1ZW7X7550343284760 Evidence Submitted: Blood sample of T.L. Allen 06304670 Results of Analysis: The sample contained 0.00 grams of alcohol per 100 milliliters. We are forwarding the specimen to the Austin Laboratory for the drug examination requested. Charles F. Mott Supervisor, Field Laboratory Texas DPS Waco Laboratory

III. Evidence 1

3-6

IV. Evidence 2

4-1

IV. Evidence 2

4-2

IV. Evidence 2

4-3

INDICTMENT

NO.____________ Bond Recommendation $__________________

The State of Texas v. T.L. ALLEN

Charge: INTOXICATION MANSLAUGHTER, MANSLAUGHTER

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

THE GRAND JURY, for the county of Johnson, State of Texas, duly selected, impaneled, sworn, charged, and organized as such at the OCTOBER Term AD, 2008 of the 249th Judicial District Court for said County, upon their oaths present in and to said Court at said term that

T. L. ALLEN

hereinafter styled Defendant, on or about AUGUST 8, 2008, and before the presentment of this indictment, in the County and State aforesaid, did then and there:

OPERATE A MOTOR VEHICLE IN A PUBLIC PLACE WHILE INTOXICATED BY NOT HAVING THE NORMAL USE OF HER MENTAL OR PHYSICAL FACULTIES BY REASON OF THE INTRODUCTION OP ALCOHOL, A CONTROLLED SUBSTANCE, A DRUG, A DANGEROUS DRUG, OR A COMBINATION OF TWO OR MORE OF THESE SUBSTANCES INTO HER BODY, AND DID BY REASON OF SUCH INTOXICATION CAUSE THE DEATH OF ANOTHER, NAMELY, KIM SMITH, BY ACCIDENT OR MISTAKE, TO-WIT: BY DRIVING SAID MOTOR VEHICLE INTO AND AGAINST ANOTHER MOTOR VEHICLE OCCUPIED BY KIM SMITH,

AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT DURING THE COMMISSION OF THE ABOVE DESCRIBED FELONY, THE SAID DEFENDANT DID USE A DEADLY WEAPON, TO-WIT: AN AUTOMOBILE, THAT IN THE MANNER OF ITS USE OR INTENDED USE, WAS CAPABLE OF CAUSING DEATH OR SERIOUS BODILY INJURY.

COUNT TWO: AND IT IS FURTHER PRESENTED) IN AND TO SAID COURT THAT THE SAID DEFENDANT IN THE COUNTY OF DALLAS AND THE STATE AFORESAID ON OR ABOUT THE 8TH DAY OF AUGUST, 2008, DID THEN AND THERE RECKLESSLY, TO-WIT; BY DRIVING A MOTOR VEHICLE WHILE TAILING TO MAINTAIN A SINGLE LANE, OR BY STRIKING ANOTHER VEHICLE, OR BY CROSSING THE MEDIAN, OR BY MOVING FROM ONE LANE OF TRAFFIC TO ANOTHER LANE OF TRAFFIC DI AN UNSAFE MANNER, OR BY CROSSING LANES OP TRAFFIC, OR BY OPERATING A MOTOR VEHICLE AND CAUSING SAID MOTOR VEHICLE TO COLLIDE WITH ANOTHER VEHICLE OCCUPIED BY KIM SMITH, CAUSE THE DEATH OF AN INDIVIDUAL, NAMELY, KIM SMITH.

AND IT IS FURTHER PRESENTED IN AND TO SAID COURT THAT DURING THE COMMISSION OF THE ABOVE DESCRIBED FELONY, THE SAID DEFENDANT DID USE A DEADLY WEAPON, TO WIT: AN AUTOMOBILE, THAT IN THE MANNER OF ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS BODILY FUNCTION.

V. Indictment

5-1

CAUSE NO. F08-31539 STATE OF TEXAS § IN THE CRIMINAL DISTRICT § V. § COURT NO. 5 § T.L. ALLEN § DALLAS COUNTY, TEXAS LADIES AND GENTLEMEN OF THE JURY:

The defendant, T.L. Allen, stands charged in Count One of the indictment with the offense of Intoxication

Manslaughter, alleged to have been committed on or about the 8th day of August, 2008, in Dallas County, Texas. The

defendant, T.L. Allen, stands charged in Count Two of the indictment with the offense of Manslaughter, alleged to have

been committed on or about the 8th day of August, 2008, in Dallas County, Texas, to these charges the defendant has

pled not guilty.

I.

Our law provides that a person commits the offense of Intoxication Manslaughter if she operates a motor vehicle

in a public place and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.

"Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction

of a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body.

You are instructed that voluntary intoxication does not constitute a defense to the commission of a crime,

"Public place" means anyplace to which the public or a substantial group of the public has access and includes,

but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings,

transport facilities and shops.

A person is criminally responsible if the result would not have occurred but for her conduct, operating either

alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the

conduct of the actor was clearly insufficient to produce the result.

1

V. Indictment

5-2

II.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 2008 in

Dallas County, Texas, the defendant, T.L. Allen, did then and there operate a motor vehicle in a public place while

intoxicated by not having the normal use of her mental or physical faculties by reason of the introduction of a controlled

substance, a drug, a dangerous drug, or a combination of two or more of these substances into her body, and did by

reason of such intoxication cause the death of another, namely, Kim Smith, by accident or mistake, to-wit: by driving

said motor vehicle into or against another motor vehicle occupied by Kim Smith, then you will find the defendant, T.L.

Allen, guilty of the offense of Intoxication Manslaughter as charged in Count One of the indictment. If you find the

Defendant guilty of Intoxication Manslaughter, then you will not consider or render a verdict on any other offense or

count in the indictment.

Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable

doubt thereof, you will acquit the defendant and say by your verdict not guilty and next consider whether the Defendant

is guilty of the offense of Manslaughter in Count Two of the indictment.

III.

Our law provides that a person commits the offense of Manslaughter if she recklessly causes the death of an

individual.

"Individual" means a human being who is alive, including an unborn child at every stage of

gestation from fertilization until birth.

A person acts recklessly, or is reckless, with respect to the result of her conduct when she is aware of but

consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and

degree that its disregard constitutes a gross deviation from the standpoint of the standard of care that an ordinary prudent

person would exercise under all the circumstances, as viewed from the actor's standpoint.

2

V. Indictment

5-3

IV.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 2008, in

Dallas County, Texas, the defendant, T.L. Allen, did then and there recklessly, to-wit: by driving a motor vehicle while

failing to maintain a single lane, or by striking another vehicle, or by crossing the median, or by moving from one lane of

traffic to another lane of traffic in an unsafe manner, or by crossing lanes of traffic, or by driving the wrong way on a

one-way road, or by operating a motor vehicle and causing said motor vehicle to collide with another motor vehicle

occupied by Kim Smith, cause the death of an individual, namely, Kim Smith, then you will find the defendant, T.L.

Allen, guilty of the offense of Manslaughter as charged in Count Two of the indictment.

Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, you

will acquit the defendant and say by your verdict not guilty and next consider the lesser included offense of Criminally

Negligent Homicide.

V.

Our law provides that a person commits an offense if she causes the death of an individual by criminal

negligence.

A person acts with criminal negligence, or is criminally negligent, with respect to the result o f her conduct

when she ought to be aware of a substantial and unjustifiable risk that the result will occur. The risk must be of such a

nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the actor's standpoint.

VI.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 8th day of August, 2008, in

Dallas County, Texas, the defendant, T.L. Allen, did then and there by criminal negligence to-wit: by driving a motor

vehicle while failing to maintain a single lane, or by striking another vehicle, or by crossing the median, or by moving

from one lane of traffic to another lane of traffic in an unsafe manner, or by crossing lanes of traffic, or by driving the

wrong way on a one-way road, or by operating a motor vehicle and causing said motor vehicle to collide

3

V. Indictment

5-4

with another motor vehicle occupied by Kim Smith, cause the death of an individual, namely, Kim Smith, then you will

find the defendant, T.L. Allen, guilty of the lesser included offense of Criminally Negligent Homicide.

Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, you

will acquit the defendant and say by your verdict not guilty,

VII.

Our law provides that a defendant may testify in her own behalf if she elects to do so. This, how-ever, is a

privilege accorded a defendant, and in the event she elects not to testify, that fact cannot be taken as a circumstance

against her. in this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer

or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a

circumstance against the defendant.

VIII.

A grand jury indictment is the means whereby a defendant is brought to trial in a felony prosecution. It is not

evidence of guilt nor can it be considered by you in passing upon the issue of guilt of the defendant.

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of

the offense is proved beyond a reasonable doubt. The fact that she has been arrested, confined, indicted for, or otherwise

charged with, the offense gives rise to no inference of guilt at her trial. The law does not require a defendant to prove her

innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant,

unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration

of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every

element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's

proof excludes all "reasonable doubt" concerning the defendant's guilt_

In the event you have a reasonable doubt as to the defendant's guilt after considering all the evidence before you,

and these instructions, you will acquit her and say by your verdict "not guilty".

4

V. Indictment

5-5

You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given

their testimony, but the law you shall receive in these written instructions, and you must be governed thereby,

After you retire to the jury room, you should select one of your members as your Presiding Juror. It is his/her

duly to preside at your deliberations, vote with you, and when you have unanimously agreed upon a verdict, to certify to

your verdict by using the appropriate forms and signing the same.

No one has any authority to communicate with you except the officer who has you in charge. During your

deliberation in this ease, you must not consider, discuss, nor relate any matters not in evidence before you. You should

not consider nor mention any personal knowledge or information you may have about any fact or person connected with

this case which is not shown by the evidence.

If you find the Defendant guilty of Intoxication Manslaughter, Manslaughter, or Criminally Negligent

Homicide, then you will answer the Special Issue that follows your verdict forms. If you find the Defendant not guilty of

Intoxication Manslaughter, Manslaughter, or Criminally Negligent Homicide, then you will not answer the Special Issue.

After you have retired, you may communicate with this court in writing through the officer who has you in

charge. Do not attempt to talk to the officer who has you in charge, or the attorneys, or the court, or anyone else

concerning any question you may have. After you have reached a unanimous verdict, the Presiding Juror will certify

thereto by filling in the appropriate forms attached to this charge. You may now retire to consider your verdict.

DATE AND TIME PRESIDING JUDGE 5

V. Indictment

5-6

CAUSE NO. F08-31539

STATE OF TEXAS § IN THE CRIMINAL DISTRICT§

V. § COURT NO. 5§

T.L. ALLEN § DALLAS COUNTY, TEXAS

STATEMENT OF STIPULATED FACTS REGARDING EXPERT TESTIMONY

The parties agree and stipulate as to the following:

The State will call an expert, Kathy Jean, Texas DPS forensic scientist, who will say that these quantities of drugs in the body would cause loss of normal use of mental or physical faculties.

The Defense will call an expert, Wendell Gray, a private forensic toxicologist, who will say that these quantities of drugs in the body would not cause loss of normal use of mental or physical faculties.

Both experts are equally believable.

VI. Expert Stipulation

6-1