nal date~-~-~ · 2014-06-10 · 9 austin, texas 78711-0000 telephone: (713) 313-7126 10 sandra s....
TRANSCRIPT
RODNEY REED,
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EX PARTE
APPLICANT
REPORTER'S RECORD
VOLUME 4 OF 6 VOLUMES
TRIAL COURT CAUSE NO. 8701-A
)) IN THE DISTRICT COURT)))) BASTROP COUNTY, TEXAS))))))) 21 ST JUDICIAL DISTRICT)
RECEIVED INCOURT OF CRIMINAL APPEALS
JUL 05,2006
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EVIDENTIARY HEARING
On the 23rd and 24th days Marcy of 2006, the following
25: 'Proceedings reported 'by'machine, shorthand.
OR\G\NALF1ll:1J_~~~I"·
DATE~-~........-~
Cathy SmithDistrict Clerk, Bastrop COUnt{
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1 A P PEA RAN C E S
2FOR THE APPLICANT:
3 SBOT NO. 24032750Morris Moon
4 Texas Defender Service412 Main Street, Suite 1150
5 Houston, Texas 77002Telephone: (713) 222-7788
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7 SBOT NO. 00000046Morris 'Overstreet
8 Texas Southern UniversityBox 12817
9 Austin, Texas 78711-0000Telephone: (713) 313-7126
10Sandra S. Smalley
11 Lindquist &Vennum, P.L.L.P.4200 IDS Center
12 80 South Eighth StreetMinneapolis, Mn 55402
13 Telephone: (612) 371-3958
14 FOR THE STATE:SBOT NO. 19637700
15 Lisa TannerAssistant District Attorney
16 Bastrop County, TexasAssistant Attorney General
17 P. O. Box 12548Austin, Texas 78711-2548
18 Telephone: (512) 463-2170
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SBOT CO. 24026139Tina DettmerAssistant District AttorneyBastrop County, TexasAssistant Attorney GeneralP. O. Box 12548Austin, Texas 78711-2548Telephone: (512) 936-2893
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C H RON 0 LOG I CAL I N 0 E X
VOLUME 4
(EVIDENTIARY HEARING)
4 MARCH 24, 2006
5 APPLICANT'S WITNESSES
Page Vol,
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98 102
Direct Cross ·Voir Dire
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42 44
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6 WITNESS
7 John Vasquez
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9 Larry Franklin
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11 Pamela Duncan
12 Forrest Sanderson
13 Charles Penick
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r j 15 Luncheon. Recess .
16 Court Reporter's Certificate ~ .
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ALPHABETICAL WITNESS INDEX
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Direct
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42
64
-98
58
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Cross
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44
71
102
62
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Voi r Di re Vol.
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THE COURT: Are you ready?
MR. OVERSTREET: We call Mr. John Vasquez as our
John Vasquez.
THE COURT: It's a new day so I'm going to swear
(The witness was sworn.)
THE COURT: Would you come around and get
8 comfortable while they get their computers up and running.
9 (Brief interruptionw)
3 next witness.
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5 you in again.
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THE COURT: You may proceed.
JOHN VASQUEZ,
12· called as a witness and having first been duly sworn, testified
13 as foll ows:
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14 DIRECT EXAMINATION
15 QUESTIONS BY MS. SMALLEY:
16 Q. Sir, would you please state your name for the Court.
17 A. John Vasquez.
18 Q. Mr. Vasquez, where do you live?
19 A. I'm sorry?
20 Q. Where do you live?
21 A. I live in Mountain City, Texas, which is a little
_. 22 __town-lJe.a.L.KyLeJ_BJJda..._. . . ._.. ~_.__
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Q.
A.
And, sir, what do you do for a living?
I'm a retired police captain from the Austin Police
25 Department, but I'm also an artist and I do some
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1 investigations, and plus I instruct at the police academy.
2 Q. Okay. So you're now retired, you do some -private
3 investigation work, and you provide instructions to police
4 officer; is that correct?
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Q.
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Q.
Yes, ma'am. That's correct.
Okay. And when did you retire, sir?
Where did I retire from?
When did you retire?
1989.
And prior to that you were a police officer; is"that
11 correct?
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A. Yes J ma'am.
Q.. And what was your title?
A. I retired as a police captain.
Q. And were you captain of a particular division?
A. I had traffic enforcement for about three years; and
then I was the captain of the criminal investigatinn bureau,
18 which covered all the sexual offenses, the homicides,
19 burglaries, theft crimes .. i
20 Q. Okay. In your role as captain of the criminal
21 investigation bureau, is it safe to say you had plenty of
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24 250.
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A.
Q.
I would estimate during that period probably about
Okay. And just so we don't have to do the math,how
1 long have you been working as a private investigator?
2 A. About ten years.:- . ~
3 Q. Okay. And have you been trained to. -i nvesti gate
4 homicides during that time?
5 A. Yes, ma'am.
6 Q. And, sir, are you famlliar with the Stacey Stitesr ;
murder?\ ."f 7, .. ,
8 A. Yes, ma'am, I was way assigned by the Court to
9 assist.
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10 Q. Okay. So you were assigned by the Court to pr6vide
11 your investigative services; is that correct?
original investigator?
recall his· name, that worked the case also.
A. No, ma'am, there was another investigator, I don't.
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A.
Q.
A.
Q.
Q.
Right.
And on whose behalf?
On_ the defense.
Okay. And, sir, when did you -- were you the
Okay. And when were you -- when did your involvement
20 start?
21 A. It was early '98. I don't recall the exact date.
___________________22 Q_'-__O.kay_. So__y_QJJ_.wer.EL-P.CQv i dj n.g~j nVJ~~:tt.g.a:tJY_e.._~HtrV i C~~L_
23 during the trial; is that correct?
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A.
. Q.
Yes, ma'am.
Okay. Approximately how many months?
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A.
Q.
About ·three months, I gu~ss, approximately.
Now, would you say that you -- your investigative
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3 services were concluded at the end of the trial?
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A.
Q.
A.
No, ma'am.
Okay. What did you do after the trial was over?
Several weeks, approximately, after the conviction of
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7 Rodney Reed I was visiting with Constable Rocky Madrono in.
8 Austin and we were discussing the Rodney Reed case and one of
9 his deputy constables came by -- her name was Mary Best at the
10 time; now I think her name is Mary Blackwell -- and overheard
11 my comments about Rodney Reed's case
12 Q. Sir, I'm going to stop you there. So you were
13 talking with your friend Rocky Madrono; is that correct?
20 Mary Best, who is now Mary Blackwell; is that correct?
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Q.
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Q.
A.
Right.
What were you discussing?
What was I what?
What were you discussing?
The Rodney Reed case.
And you said that you had the occasion to talk with
Right.
23 A. She relayed a conversation she .had heard a Giddings
24 police officer Jimmy Fennell make while they were in training
25 ih a police academy. They were di.scussing domestic violence or
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1 something like this and he had made the remark about. -- that if
2 he caught Stacey Stites cheating on him that he would choke her
3 to death.
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Q.
A.
And, sir, what did you do after that discussion?
Well, trying to be a thorough investigator, I drove
6 to CAPCO, which is the Capital Area Planning Counsel which·
7 trains police officer, and looked at their rosters and
8 confirmed that Mary Blackwell and Jimmy Fennell had, in fact,
9 been in the police academy together.
that have to you?
A. Well, it gave credibility to her story then.
Q. And then what did you do?
A. I wrote up the information, and about a week later, I
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Q. Okay. And what did that -- what sort of meaning did
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15 don't know, I relayed it to Forrest in the DAis office.
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A.
Q.
Okay. Who is Forrest, sir?
Who what?
Who is Forrest? You said yo~ relayed the information
19 to Forrest, and who is Forrest?
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Q.
Sanderson, I think.
Okay. And Forrest Sanderson is who?
23 attorney at the time.
24 Q. Okay.
25 A.. And I expressed, you know; what I had found and
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1 shared it with him.
2 Q. And di d - - to your knowl edge, do have any idea what.
3 he did with that information?
6 testified, that you continued after the trial was not on
7 anyone's behalf in particular; is that true?
8 A~ No, I was -- I kept up with the case. I made -- I
9 wrote up a report, and then I was contacted by the appeals team
10 about two years ago and they took a copy of my report, then
11 they kind of kept me abreast. And I stayed up with the case.
15 time?
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No, ma'am, I do not.
Okay. Now, your investigativ~ services, as you've
Okay. But that was all on your own; is that correct?
Yes, ma'am.
You were not working on behalf of the defense at that
No.
Or the family of Rodney Reed was not paying you?
No, I've been working on my own.
19 Q.Okay.
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MS. SMALLEY: I have no other questions.
THE COURT : All ri ght.· Cross?..'
___. .22.- __. '-_.__, -'-- ~CROSS EXAMINATION
23 QUESTIONS BY MS. TANNER:
24 Q. Mr. Vasquez, you said you wrote up a report about
25 this?
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Are you talking ab6ut the one I gave to Forrest or -~
Did you hand Forrest- -- did you give Forrest
written, is that what you're telling us?
It was like a one-page memo with Mary Best -- Mary
5 Blackwell's name on it.
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2 Q.IIl'
3 something
4 A.
6 a. You gave Forrest a one-page memo with Mary
7 Blackwell's name?
8 A. - Right.
9 Q. Now, you were hired on behalf of Rodney Reed before
10 his trial, correct?
A. -Before and during the trial, yes.
Q. And you were paid by Bastrop County to work on Rodney
Q. And you were ~n investigator that worked as a part of
his defense team before and during his trial, correct?
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16 Reed's behalf, correct?
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a.Correct.
And do you recall about how much you made from
19 Bastrop County on this?
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a.8,000 or something like that.
About $8,000?
__________22.- A_. .Yeah, . _
23 a. And that would be in the Court's file because the
24 Court had to approve your fees and things like that, right?
25 A.· I'm sure that is.
1 Q. Ok~y. How did you get involved in this? Who asked
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2 you to get involved in the first place?
3 A. I was good friends with Neal Pfieffer and -- I'm
4 trying to recall exactly how that happened. I was in the
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courtroom and the next thing I knew the judge appointed me.
Q. Did you ask to be appointed?
7 A.. No.
8 Q.Did someone ask for you to be appointed?
9 A. Miss,Iwould be speculating, but -- .
11 on that case were Calvin Garvie and Lydia Clay-Jackson,
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Ld10 Q. Well, let me ask it this way. The defense attorneys
12 correct?
other investigator prior to the assig~ment?
Q. So did you know Duane Olney, the investigator -- the
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Uh-uh.
And you knew them, right?
Not prior to the assignment.
No.
So do you know whether or not the attorneys asked for
20 your appointment to be involved in this case?
21 A. I was -- uh -- in and around the courtroom with Neal
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23 I have to believe it was kind of like a carry-over, but I was
24 assigned to it and I don't really remember the process that led
25 to the assignment .
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1 Q. Okay. Now, have you worked with Calvin Garvie
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2 since -- had you work with him before?
Q.What about Lydia Clay-Jackson?
A.
Q.
A.
No.
Have you worked. with him since then?
No, ma'am.
7 A. No, ma'am.
8 Q. Have you worked with her since?
9 A. No.
10 Q. Have you worked in the past with Bill Barbish
11 (phonetic), a lawyer in Austin?
Q. And when you got assigned to the Rodney Reed case,
you worked very closely with Mr. Garvie and Ms. Clay~Jackson,
Q. Have you worked in the past with a lawyer by the name
of David Schoelmann (phonetic) in Austin?
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No.
No.
18 did you not?
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Q.
Yes, ma'am.
And you worked very closely with the other·,
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21 investigators, Mr. and Mrs. Olney, correct?
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23 Q. And you shared information with them and they shared
24 information with you and you strategized with them and things
25 like that, correct?
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A.
Q.
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Yes, ma'am.
And you knew what .the defense was in the case because
3 you helped them put it together~ correct?
A. .Rtqht .4
5 Q. And throughout the trial I imagine you talked with',
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6 Lydia and Calvin'and the Olneys on the telephone?
7 A. Yes.
8 Q. And in person, correct?
9 A. (The witness moved his head up and down).
10 Q.. 'You have to answer out loud.
11 A. Yes.
12 Q. And did you have their phone numbers written down
13 somewhere or programed into a phone somewhere or something
14 along thosel i nes?
, 15 A. To Lydia Jackson and Calvin Garvie?
16 Q. Yes, Lydia Jackson and Calvin Garvie.
17 A. Yes.
18 Q. Because you were working with them and you wanted to
19 get hold of them if you needed to, right?
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A.
Q.
Right.
Did you have all their numbers, their home, their
23 A. Miss, I had their numbers. I don't remember which
24 ones.
25 Q. Now,when you 'finished -- after the trial of Rodney
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1 Reed was concluded·you didn't, throw the numbers away, did you?
2 A. I'm sure I kept them. Yeah, I kept them ,for a while·
3 I'm sure.
4 Q. And it's your testimony that this conversation that
5 you had with Mrs. Best, now Mrs. Blackwell, occurred just a few
6 weeks after Rodney Reed was convicted of capital murder and
7 sentenced to death?
10 was still very fresh and had just happened, correct?
Q.. And you said that the. information yoti had compelled
you to write out a report, correct?
A. Yeah. The one-page memo that I gave to Forrest,
yeah ....
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A.
Q.
A.
Q.
A few weeks, yes.
Just a few weeks. And so it was all something that
Right.
And you did not call Calvin or Lydia with this
17 information, did you?
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A.
Q.
No, I di d . not ..
You di d not call the Ul neys wi th thi s i nformati on,
20 did you?
21 A. I think I called the Ulneys.
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A.
Q.
Yeah.
And the Ulneys were actually still working on the
25 case on behalf of Rodney Reed and they're still working on the
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1 case all the way up today, aren't they?
2 A. I'm sorry. Repeat that.
3 Q. The ,U1 neys have continued over ,the years to work on
4 this case on behalf of Rodney Reed's,defense team; would you
5 agree?
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6 A. I don't know whether they did or not.
7 Q. Okay.
8 A. I think I spoke to him, but I don't know what they
9 did.
10 Q. You feel 1i ke you told Mr. U1ney about this
11 , information pretty, quickly after you got it?'-,-I
lJ 12 MS. SMALLEY: Objection, your Honor: She is
13 providing testimony for the witness. He did not say
14 definitively th~t he gaVe the information to Mr. U1ney.
THE COURT: Overruled. This is cross.
Q. (By Ms. Tanner) So you indicated that you feel like
you told Mr. U1ney about this?
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A..'Q.
I think I shared it with him.
And you shared it with him pretty quickly after you
20 found it out, I assume, right?
21 A. No, I have to believe it was sometime later that we
, 22_ .Jnrmped__tnta.him. _
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Q.
A.
'Q.
Sometime later. Give me a ballpark.
It was after I spoke to Forrest.
After you spoke to Forrest. Close in time after you
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1 spoke to Forrest or i ong away inti me- after you tal ked to
2 Forrest?
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A.
Q.
A.
I think several months.
Several months. So within the same calendar year?
Yeah, I would say, yeah, several months after I spoke
6 to him.
7 Q. Certainly still probably within 1998?
8 A. Within what?
9 Q. 1998?
10 A. I would have -- yeah.
11 Q. Okay. So you spoke with Mr. U1ney about this in
12 1998, to the best of your reeo11ection?
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A. Right.
Q. All right. Now, did you tell anyone else- on behalf -
of the prosecution about this information that you're telling
us now?
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17 A. On the prosecution side?
18 Q. Yes, sir.
19 A. No, Forrest was the only one.
20 MS. TANNER: May I approach the witness, your
21 Honor?
_____. 2~ -THE_J:fiURJ--= yes-J----'D..a~_alJl ... .___________________ ___
- ; 23 Q. (By Ms. Tanner) You provided an affidavit with
24 regard to this information on January 2nd of 2005, correct?
25 Where does-mine start?
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1 Q. On number two. I'm sorry.
2 A.' Yes, ma'am.
3 Q. Okay. Now, in your affidavit that you provided about
A. Yeah.
A. Right.
Q. That's what she conveyed to you?
Q. So Mary conveyed to you that he said he was joking
That's in your affidavit, correct?
A. Right.
A. Yeah.
about this? That's what's in your affidavit.
Q. Okay. Now, in your affidavit, the last paragraph,
you said, "I told the Bastrop County District Attorney's Office
about the information that I had learned," correct?
4 14 months ago, you indicated that. when Mary told you this that
Jimmy -- what she s~id is that "Jimmy made a remark that if he
ever caught Stacey cheating on him he would choke her to death,
he then laughed and said he was joking."
Q. And then you went on and you said, "I believe that I
20 spoke directly to Distri~t Attorney Charles Penick," correct?
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21 A. Right.
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23 Forrest Sanderson.
24 A. Well, when I saw Forrest out there --
25 THE COURT: I'm sorry, sir. I didn't understand
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1 what you just said.
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A.
A.
I'm sorry?
'THE COURT: What did you just say?
I knew I had given the information to the DA's office
5 and I thought I had given it to Mr. Penick at the time, but
6 this morning when I saw Forrest sitting there I remembered, no,
7 it was Forrest I gave the information to.
8 Q. Okay. And you would agree with me that you were the1.-·'
9 first person that was involved in some way with the Rodney Reed
10 case who had the information that Mary Best Blackwell has
11' conveyed?
12
13 she
A. I don't know if she told anybody else, but, yes,
14 . Q. As far as you know you're the first person?
Q. And would you agree that you had this information
before anyone on behalf of Rodney Reed's prosecution team had
it, since you were the one that you say conveyed it to them?
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Q.
A.
Yes, ma'am.
I hope so.
I'm sorry?
You're saying, was I the first one to find out about
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Q.
A.
. Q.
Yes, sir.
And you're saying, if the prosecution knew about it?
What I'm asking you is, would you agree with me that
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1 based upon what you have testified to that you, yourself,
2 possessed this information a?out what Mary Best had said before
3 anyone from the prosecution team did?
4 A. Miss, I don't know if they knew that or not. Iwould
5 have to believe -- you know, I don't know if Mary Best told
6 anybody else.
7 Q. Okay. And you would also agree from your testimony,
.8 from your recollection that Mr. Ulney had this information
9 sometime in 1998? .
10 , A. I remember bumping into him and talking to Mr. Ulney,
11 but I can't swear that, you know, that he knew about Mary Best.
14 QUESTIONS BY MS. SMALLEY:
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15 Q.
MS. TANNER: I'll pass the witness.
REDIRECT EXAMINATION
Now, Mr. Vasquez, you had testified earlier that you
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16 worked as a police officer for a number of years; is that
17 correct?
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A.
Q.
Yes, ma'am.
And in that capacity were you familiar with the
20 county attorney?
21 A. Was I what with the county attorney?
-,-------22. ---.1J~-Eam:jl-i-ar---with-the--county.-a:ttorney-s1----------------.-
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Q.
A.
Oh, yeah.
And did you develop relationships with them?
Are you talking about Bastrop County?
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Q.
A.
Q.
A.
Yes.
1 1m friendly with both of them.
I misspoke, district attorney.
Yeah, Penick, he's a golfer and I'm a golfer. His
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5 brother was Charles Penick -- I mean, Harvey Penick in Austin,
6 a famous teacher over there.
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8
Q.
A.
So you're familiar with Charles Penick?
Yes. I had worked -- helped him also on another
9 murder case.
11 that correct?
relationships?
Q. How long would you say you've had those
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Q.
Okay. And you Ire famil i ar with Forrest Sanderson; is
Yes, ma'am.
Eight or nine years.
So you were comfortable disclosing this information
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17 when you did with the district attorney?
18 A. Of course, yes, ma'am.
19 Q. And why did you do that?
20 A. Why did I give the information to Forrest?
21 Q. Uh-huh.
23 prosecuted the case.
24 Q. And you thought, didn't you, that whatever needed to
25 be done at that point they would do it; is that correct?
1 A. I was going to share it also with·the appeals team,
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2 whoever they might be.
Q. But you told them the information re1ying on their
profession~l standing that they would do something with the
information; is that correct?
A. Yes, ma'am.
MS. SMALLEY: No further questions.
RECROSS EXAMINATION
9 QUESTIONS BY MS. TANNER:
10 Q. You indicated in response to questions just now that
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11 you felt like you would be s~re and tell it to the appeal.s
12 team. By the appeals team you mean Rodney Reed's appeals team?
13 A. Whoever was going to be appointed to handle the
14 appeal. I didn't know who.
15 Q. And by that you mean whoever was appointed to handle
16 the appeal on Rodney Reed's behalf?
\ .j, ·1
17
18
19
A.
Q.
A.
Right.
And did you tell the appeals team?
At some point, I would say, about two or three years
.:";
20 ago, they contacted me and kind of kept me abreast of what they
21 were doinp .
22 -.Q~---...so-aboutiwo--O.J:.--±.h.r...ee-¥_e.ars--8go.ihfly__c.ontacted_-Y-OlJ"""'?_-l;
". ! 23
24
A.
Q.
Uh-huh.
And how did they come to find you? Had you told them
25 about it already?
1 A. Uh -- I had sent a -- prepared a memorandum with my
23
2 beliefs about what happened, but -~ I'm trying to remember the
3 gentleman's name over there. He was the one that initially
4 contacted me, and that's who I·shared it with.
5:0-::-"1
!,- ;
6,
7
8
a. Well, I guess what I'm getting at is according to
your testimony, you know for sure you told somebody at the DA's
office?
Ai I told Forrest.
9 a. And you think you told Mr. Ulney. So what I'm asking
.,1- I, ,t-: .. J
. 10 you is' how woul d these attorneys have known to fi nd you?
. 11 Because you didn't go to .them, they came to you; right?
12 A. .Are you talking about the appeals team?
13 a. Yes.
14 Ai Yeah, they came to me.
15 . a. Obviously you had to tell somebody on the defense
16 team or on the defense side for them to know to contact you,
17 right?
20 defense's side --
______.__--22
23
.ef.ens_~L .. . _
' .. -.,
{.1
" j: j
;\ ;
j
18
19
21
A.
a.
A.
a.
Obviously what?
Obviously you had to have told somebody on the
You are talking about the prosecution told the
No. What I'm asking is, obviously, in order for
24 these folks to have known to come see you, you would have had
25 to have tipped somebody on the defense team off as to the
24
1 information that you had. Would you agree with that?
l : ': ;
'.-t
2
3
4
5
A.
Q.
A.
Q.
You'll have to ask them how they contacted me.
Well, they knew about you, right?
Yes, because they contacted me.
And so the whole reason this'affidavit of yours, i, ' 6 started was because these lawyers contacted you, you didn't
7 call them, right?
10 from somewhere about the information you say that you
11 possessed; correct?
A., Right.
'A. They found it someway. I do not know how.
Q. And you say -- according to you, the only p~ople you
told were Forrest and maybe Mr. Ulney?
;:;1
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r,",j"iL:
','"',.,""j,,
t"~tHo;
'..
8
9
12
13
14
15
16
17
18
A.
Q.
Q.
A.
. Q.
Yeah.
So obviously these lawyers had received information
You didn't tell anyone else? No?
No.
So that would certainly suggest then that you did, in
19 fact, tell Mr. Ulney about this early on; wouldn't you agree?
20 MS. SMALLEY: Objection. This has been asked
21 and answered three times.
23 trying to nail this down, how these people found out about it.
,·t
24 MS. SMALLEY: And, your Honor, it calls for
25 speculation. He responded, to his knowledge, about what he
25
1 remembered in connection with discussing it with Mr. Ulney.
2
3 clarification.
THE COURT: . Overruled .. Please answer. I need.
4 A. Okay. I gave a written memo to Forrest; all right?
5 Q. Uh-huh.
6 A. I can swear to that.
7 Q. All right.
8 A. But what I did speak to Mr .. Ulney about, I told you
9 ~everal times, I don't rememb~rexactly but I think I did
10 mention it. That's the best I can do. I'm sorry.
11 Q.: And you would hav~ mentioned it to Mr~ Ulney pretty
12 shortly after you mention~d it to Forrest?
r--.'\,.,L.
13
14
15
16
17
18
A.
Q.
A.
Q.
I think it was several months-
MS. SMALLEY: Objection; asked and answered.
THE COURT: Overruled.
(By Ms. Tanner) You think it was several months?
Approximately.
Okay. And then sometime later these attorneys
19 contacted you?
20
21
A. Yeah, like a couple of years.
MS. TANNER: No further questions.
-----------2-2 ------------+UE---COURl"...;..,--Any-t-f:l-l-ng--e-1-se-r--ma..!.-am':l------------ --.-
: .i
23
24
25 excused.
MS. SMALLEY: No further questions.
THE COURT: You may step down, sir. You may be
26
1
2
3
4
5
(Witness excused from witness stand.)
THE" COURT: -Who is your next wi tness?
MS. SMALLEY: Larry Franklin.
(The witness was sworn.)
THE COURT: Thank you, sir. If you will, come
6 around here and have a seat. We need you to scoot up. You
7 don't have to talk directly into the microphone, but if you
8 speak normally it will pick up and everybody will be able to
- 9 hear you~ Thank you so much.
10 You may proceed.
11 LARRY FRANKLIN,
12 called as a witness ~nd having first been duly sworn testified
, ,: I, I
Ij
13 as follows:
14 DIRECT EXAMINATION"'-1II
11 15 QUESTIONS BY MR. OVERSTREET:
And where do you live, Mr. Franklin, in terms of
For the record, please state your name.
Larry Franklin.
16 Q.
17 A.
18 Q.
19 city?
20 A.
21 Q.
- ii\
'.1!
My address is in Austin -- well, Killeen, 45 -
What city do you live in?
--------------22 ---A-.----l-l-iv-e--i.n-K.:UJ.e.efl-~----------------
: !
," I
23
24
25
Q.
A.
Q.
All right. And what is your occupation?
I'm a juvenile probation officers assistant.
Do you know a person whose name is Mary Blackwell,
27
1 her former name was Mary Best?
2 A. Yes.
3 Q. Do you know a person whose name is Jimmy Fennell?
4 A. Yes.
5 Q.. Now, when did you first become acquainted with Jimmy
6 Fennell?
i 7 A.
8 Q.
We met in the police academy in 1995.
When did you first become acquainted with Mary Best,
9 who is now known as Mary 81 ackwell?
10
11
A.
Q.
Same police academy, 1995.
And is it then safe to say you-all were in the police, i: .·1
!J~.. 12 academy together?
13
14
A.
Q.
Yes.
At some point in time did you become aware that Jimmy
It wasn't -- it wasn't a long time. I don't know the
And do you remember the girlfriend's name?
Stacey.
How soon after her death did you become aware of her
15 Fennell's girlfriend had been ~urdered?
Yes.16 A.
17 Q.
J 18 A.
19 Q.
20 death?
21 A.
23
24
25
Q.
A.
Did you attend the funeral?
No, I didn't.
Did you have conversations with Mary Blackwell, then
!i .
28 .
1 Mary Best, regarding Jimmy Fennell and his girlfriend Stacey?
2
3
A.
Q.
Yes, I did.
In terms of time, can you give us a general time
4 frame, and let's use the death as a point of reference, .when
5 those conversations may have occurred?
, !
6
7
A.
Q.
Ask me that questlon again.
Using Stacey's death as a .time line, would the
8 conversations have occurred before her death or after the
9 death?
10 A. Oh, okay. We had a conversation before her death and
11 we had a conversation after her death.
A. Okay.
Stacey's death .
13 death?
r::\ilIIL.:.
r'lI'l:l. I
. ,.::\
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12
14
15
16
17
Q.
A.
Q.
So you had conversations before and after Stacey's
Yes.
All right. Let's talk about the conversations before
18 Q.. What was the substance of that conversation? And who
19 was present at the conversation?
20 A. Okay.· I remember the first time, I think we were
21 doing a technical ~- oh, gosh, it's hard to remember. It was
-----------2-2. --Gl-ass--·gur4-nQ-c+ass..,--AAg-Ma~--eame--·to-me·J-i-:t·-may-have--beeR--8- -
23 break ~- I'm not real sure when it was -- and she was kind of
24 upset and she said Jimmy had just told her that she was not
25 allowed to talk to Stacey anymore and that he was' just being
29
1 mean to her, and she didn't understand why.
2 She didn't unde~stand -- Mary didn't understand
3 why Jimmy didn't want her speaking to Stacey or told her not to
4 speak to Stacey, something along that line. I just didn't pay
5 it any·attention. It didn't mean anything to me.
6 a, Were there anymore conversations regarding Stacey."
7 that you and Mary had prior to Stacey's death?
8 A. No, not that I can recall.
9 a. Now, let's talk about after the death. . Was there one
"j
;
10 conversation or more than one conversation regarding Stacey and
11 Jimmy after Stacey's death?
remember it was on the phone. It wasn' ti n person. Uh.,.-
a. My question was, did you have one conversation or
more than one conversation regarding Stacey after her death?
r1
1·.··'1,.~. ".
.-.. \i -":. . j
12
13
14
15
16
17
18
A.
A.
a.A•
We had a conversation after her death where -- I
We had at least one.
What was the substance of that conversation?
I'm trying to remember exactly, but it was along the
19 line of did I hear that Stacey was killed or something to that
20 affect.
21 a. You have to speak up. I'm sorry. I can't hear you.
--------22- --------A..----"-.I---Gon-.!.-t---r-ememba-r-t-he-exact-wor-d:i-ng-;--but---:i-t-was----
23 something along the lines of did I hear about Stacey being
24 killed or found dead or missing or something, you know.
25 a. Is that the only thing that Mary -- what was your
- 30
!. l
1 answer?
. 1
2
3
A.
Q.
I said -- wow, you're asking me to really remember.
Let me make sure here. Did you say that she asked
4· you if you had heard about Stacey's death? Is that what she
5 asked you?
i-\I].
6
7
A.
Q.
Something to that affect, yes, sir.
Now, I don't want to put words in your mouth, but it -
8 seems to me you can either say, "yes, you did" or, "no, you
9 didn't."
10
11
A.
Q.
Well, I lived in Austin. I wasn't -~ 1 wasn't--
I already know where you live. But what was your! ].' .
l~
1-1!j
12
13
14
15
response when she asked you if you had heard about it?
A. I don't remember, sir. I'm -- I'm really trying
to -- to remember, but that was some years ago.
Q.And if I ever ask you a question and you don't
16 remember, it's okay. That's what you should say. You should
17 say, I don't remember or I don't understand, and I'll try'
18 rephrase it.
A. Okay.
Q. Did you have any other conversations or was there
anything else said in your conversations, either that one or a
sUbs.equeJlt-...con.v-er-Sat-ion..,-t:.e.gamiil.g-Stac.e.y-'-s-~.d.eath-OL-Jj.mmY-Or
23 anything about Jimmy and Stacey?
19
20
·1 21ii !
22-
25 was telling me that she overheard that Jimmy said that he
I,.1
24 A. I remember Mary and I had a conversation about -- she
! .
31
1 would - - if he ever found his girlfriend cheating, that he
2 would kill her or strangle her or something, kill her.
3 Q. That he would do what?
4 A. That he would ki 11 her.
5 Q. Now, your testimony -- you're not testifying. that you
6 ever heard Jimmy say anything, correct?
7
8,.'
9
10
11
A.. I never heard Jimmy say that;
Q. Did you ever hear Jimmy say anything derogatory or
anything about Stacey or, any other person?
A. No.
Q. And you certainly didn't hear what Jimmy -- what Mary
12 said Jimmy said, correct?
13 A. I - -
14 Q. You didn't hear Jimmy say what Mary said he said?
15 A. No, I never heard Jimmy say that.
16 Q. And that's not the purpose of your testimony here
17 today, is it?
somehow you know that Jimmy said that?
Q. I mean, you're not trying to have us believe that,: 1••.. , .• j
1:1l_.J
18
19
20
21
A.
A.
No.
Exactly. I never heard Jimmy say that.
: 1; 1i j
________~2.£.2"_1-----O.--you~--'onl.y--conv.eytng--±o-the---Judge--_and_-us-whaLMaT:...Y_
23 told you?
i Il l
L!
I
24
25
A.
Q.
Yes, sir.
And you don't know if it's true or not, what she
32
1 .said?
2 A.
3 Q.
4 A.
5
I don't know.
All you're saying is that she said it?
Exactly.
MR. OVERSTREET: May I approach the ·court
6 reporter and then the witness?
7
8 Q.
THE COURT: Yes, you .may.
(By Mr. Overstreet) Your testimony today, is it
9 based on your memory or·is it based upon something that you've
10 read?
11
12
13
14
A.
Q.
A.
Q.
No, it's from me.
It's from your memory?
Yes.
Now, I want to show you what you've been previously
:.'.';',.::'.'..
15 shown. It will be -- I want to show you what's been marked as
16 Defendant's Exhibit No.3, and I want you to examine it and
17 then tell us if you recognize that document.
18
19
20
A.
Q.
A.
I recognize it.
What is that document?
A witness -- a voluntary witness statement that I
21 wrote.
---------22 ------Q-.-----And-when---d-:i-d-You-g-:ive--t-hat--vol-unt-ar-y-wi-t-ness----.---.-
23 statement?
!_0"1
24
25
A.
Q.
March 17th.
And where were you when you gave that voluntary
1 witness statement?
2
3
A.
Q.
At work.
What were the circumstances of you giving that
4 voluntary witness statement?
IXi(~:.. I .
5
6
A.
Q.
What were the circumstances of it?
Yes. Did you approach to give that witness
7 statement?
I:..'.•.)I :,. ,
, '
t.:,
8
9
10
11
12
13
Q.
A.
Q.
A.
Q.
No, I didn't.
All right. Who did?
An investigator.
Investigator from whom?
The Attorney General's Office.
So the investigator came to your work place and asked
14 for statement?FJ1'\r It __:1
15
16
17
A.
Q.
A.
Yes.
Had you talked to them before?
Yes. She asked -- she asked when it would be a good
18 time to meet and we set· up an appointment and she came over and
19 we spoke, and I wrote this and that was it.
-----O,---And-does-that-sta-tement-pr-etty-rnuch--say--what..-y-Ou-hav-e- -
20
21
-----.-----2
Q.
A.
And is that statement true and correct?
Yes.
23 ,said here in Court?
24
25
A. Yes.
MR. OVERSTREET: May I approach the witness?
34
THE COURT: Yes,sir.
Q. (By Mr. Overstreet) -Now, did-you place any
limitations on them in terms of your conversation with this --
with the investigator with the Attorney General's office, like,
5 I have only 15 minutes, make it short?
6 A. No.,', I 7 Q. Were you free to talk to them as long as they neededi "-I;" 1;" I
':"-'
8 to talk?
: 11...1
UfJL"lL .····.1r:': •• 1
(1:::!,. :". :
9 A. Yes.
10 Q. Were you free to put anything in here that you needed
11 to?
12 A. Yes.
13 Q. Were they free to ask you all the questions they
14 needed to ask you?
15 A. Sure.
16 Q. Did they ask you about anything else?
17 A. Other than?
-18 Q. Other than what's in your affidavit?
19 A. We talked about people that we knew, common people
20 that we knew.
21 Q. But with regard to Stacey, Mary, or Jimmy?
--------22- -----A-.-~o"
23
24
25
--- ---------_._----_._---_._-_._-----_•..
MR. OVERSTREET: We pass the witness.
35
1 CROSS EXAMINATION
2 QUESTIONS BY MS. TANNER:
3 Q. If I ask you anything you don't understand just let
4 me know and I'll repeat ,i t or rephrase it. Okay?
5 A. Okay..:",
i 6 Q. The affidavit
7 Wolfe?
that you gave was to Investigator Missy
f'l
r- jv ,
8 A. Yes.
9 Q. And it's in your own handwriting?
10 A. Yes.
11 Q. And tell me if I'm wrong, but she came -- the two of
12 you visited and she hande~ you the statement form and let you
13 write it out on your own, and she even left the room; is that
14 correct?
\:1 '""J
15
.lI -.f
J
16
17
, 18
A." Yes, rna' am .
Q. And at that time did she say don't put anything in
19 there bad about Jimmy?
20 A. No.
21 Q. She said tell us what you know?
You indicated in your affidavit that you, yourself,Q.
__' ~__22_-l__:_--fL---Y~~-L-----------,-------.------ _
23
24 had never heard Jimmy say anything abusive?
25 A. Right.
36
! :
I' ;~ _l
,, ,
I
1 Q. And i~ your class at CAPCO you guys were in there
2 about six months, right?
3 A. ' Six or nine.
4 Q. It was a pretty good bit of time, right?
5 A. Yes, ma'am.
6 Q. And the folks in your class were required to sit'
7 alphabetically?
8'
9
A.
Q.
Yes:
And your name is Franklin, and there was Jimmy
10 Fennell. So where did you sit?
, 11 A.Same table;
I!Ii-.. J·
['.1"L
V1
[1
12
13
14
15
Q. Did you sit right ,next door or was there anybody
between you and'him?
A. I believe we sat next to each other.
Q. And let me show-~ let me show you what has been
16 introduced as State's Exhibit 6. This is the roster of your
17 class, right?
: ij
, .1
18
19
20
21
A.
Q.
A.
Q.
Right.
It shows Christopher Dezarn, Jimmy Fennell, and you?
Yes.
That would suggest that you sat next to each other?
-----------t-,-~.B.S-..-,----------,--,-------------,-----------------
,j 23 Q. So you sat next to Jimmy Fennell in a class six to
24 nine months, four hours a night and a bunch of Saturdays?
25 A. Yes.
1 Q. And you never heard Jimmy say anything disparaging
37
2 about hisgirl.friend or anyone else?·
3
4
A.
Q.
I don'~ recall any.
And if you had heard that, do you think that would be
5 something you would remember?
6 A. Depending upon what it was.
7 Q. Okay. Was Jimmy a loud obtrusive guy or a quite guy?
8 A. Jimmy was quite.
9 Q. Now, you told Counsel and you put in your affidavit
10 that Mary mentioned to you ~fter Stacey was killed a couple of
11 things. And the first thing you said was she called you on the
12 phone and asked if you had heard Stacey had b~enkilled?
f..'!; :.
13
14
A.
Q.
Right.
Do you recall how soon that conversati on came .about,(:1
i I,'.: , 15 or do you know?
I just don't know the ti me. I just don't 'know.16
17
A.
Q. But she made a point in calling you you and Mary
18 were close friends in the academy, weren't you?
19
20
A.
Q.
We were.
So she made a point to call you and say have you
21 heard this girl had been murdered?
-----.----22 --A-;-----I--t-hink--tha-t!-s--t-he-way--i-t--went-.----·----·--------------------- _.
23 Q. Did she say anything else about how she had been
24 murdered or any suspicions of how she had been murdered?
L..
25 A. I don't remember-that exact conversation, but I
·38
1 remember us talking about whether or not we thought Jimmy did
2 it or not.
3 Q. And in the context of those conversations about
4 whether or not you thought Jimmy did it was when the
5 conversation come up about, oh, I heard him threaten her; is
6 that correct?
7
8
.A.
Q.
It may have been.
When you had .this conversation did she express to you
, ".' ~ 9 something on her behalf that maybe h~ had done it?
10 A. I don't.remember her saying to me, exactly, "I
• "J, I, I• I\1
· ,
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11 believe Jimmy did this." I remember in our conversation we
12 talked about, "well,do you think," or "maybe he did it." I
13 don' tremember her saying Jimmy did that. I don't recall that.·
14 I remember us saying do you think he did it or something like
15 that. Those are not the exact words.
16 Q. But the gest of your conversation with Mary was
17 clearly the issue of whether or not Jimmy Fennell may have been
18 involved in this was something significant to her?
19
20
A.
Q.
Right.
And somewhere along the lines in there she mentioned
21 to you what she said he said about strangling his girlfriend?
--2-2 ---A-.--R-i{Jht-·.--------
23 Q. Now, you're a police officer. Did that sound like
24 something that could be significant in this case?
25 A. Yes.
39
1, Q.' And if you had information like that, as a police
2 officer, would you have tried to relay that to someone trying
3 to investigate the case?
4
5
A.
Q.
Yes.
I mean, that would just be something you would do as
6 an ethical and honorable police officer?
7
8
A-.
Q.
Right'.
Do you know whether or not Mary ever told anyone that!,.
" 9 was involved in the case about it?
10 A. I don't know, but generally that was something she
11 should have gone to the authorities about.
12 MR. OVERSTREET: Objection, this calls for this
13 witness to speculate about what should have been done. It
14 calls for ,speculation on the this witness' part~
". ;
". il !,',.j
15
16
17
18
Q.
A.
Q.
THE COURT: Overruled. Please answer.
(By Ms. Tanner) Do you want me ~oask it again?
Yes.
If,' in fact, Mary was reall y concerned about thi s,
. :19 and if, in fact, she had this important information, don't you
20 think it would be incumbent on.her to tell that to somebody
21 involved in this case?
___________~_22 . . MR.._O.Y.ERSIRE£L~_Tlle __q-y-e..s..:ttQJ:L--iJ?--P_L~mi_,$~g __..9RJ:L__
23 hypothetical, "if she was concerned." That's a hypothetical
24 and assumes they may have been concerned, but for him to answer
25 the question would have to conclude that she was concerned. So
JII..1
\\
40
.1 it's premised on a hypothetical.
2
3
MS. TANNER: He has testified to it as has she'.
THE COURT: Overruled.
4 A. Because of the importance of it?
5 Q.' Yes.
6 A. Yes.
7 Q.. Now, you were --
8 THE COURT: Let's take a recess. The court
9 reporter can't cough and wri te thi s down at the same ti me. So
10 I'm going to give her a little break.
11
12
(Recess.)
THE COURT: Thank you for your patience. My
! Ii ii. J
r1I'\"....J
13 court reporter is very important to these proceedings and I
14 need her not to be choking while taking down the record.
15 You may proceed.
16
17 questions.
MS. TANNER: I have justa couple more
18 Q. (By Ms. Tanner) You currently work as a juvenile
19 probation officer in Austin, correct?
20
21
A.
Q.
Yes, rna' am ..
How long have you been doing that?
23 .February.
24
25
Q. And when you got out of school, out of the CAPCD
school thatyoll were in with Mary and Jimmy Fennel, where did
41
1 you go to work?
~'II i
1..·1
C·1i !l )
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Blanco Police Department.
In Blanco over by Johnson City?
Yes, ma'am.
Okay. And how long were you there?
I was at Blanco for about two months.
Okay. And then where did you go from there?
Austin Community College Police Department.
So when were you at ACC?
Uh -- uh
About.
December.
Of '95?
'95.
Through -- how long?
2001. 2000 or 2001, I don't remember exactly.
Have you pretty much continuously worked in Austin
: i 18 from December of '95 up until today?
19
20
A.
Q.
Yes, ma'am.
Okay. Now, were you aware, living in Austin, about
21 the Stacey Stites case as it was progressing?
23 Q. Okay. And did you see it on the news and read it in
24 the paper and things like that over some period of time?
25 A. Some of it.
1
2
3
Q.
A.
Q.
You weren't following it specifically, right?
No.
Okay. But just living in Austin and being in the
42
4 area knowing some of the players that were involved in it,it
5 was something you were aware of?
6
7
A.
Q.
Yes, ma'am.
Arid it was covered in the press pretty extensively,
8 would. you agree?
Q. Mr. Franklin, you indicated that Mary called you and
REDIRECT EXAMINATION
QUESTIONS BY MR. OVERSTREET:
. :
......jvL"
[1r J
9
10
11
12
13
14
A.
. Q.
Yes,' ma'am.
Okay .
MS. TANNER: No further questions.
11I II .15 you-all had discussions. Did you have the ability to call her?
;/'\
; 1\ i, .!
16
17
18
19
A.
Q.
A.
Q.
Yes, sir. We called each other.
Did you ever call her?
Yes, sir.
All right. So contrary to the picture that the
--_.------ --
20 prosecution tried to paint, it was not Mary always calling you,
21 you were calling each other back and forth; is that correct?
----.----2-2 -.---A-..---¥..es-,---s-i-r:--.--------·-.----.--.------.------.----.-.
23 _ Q.All right. Now, you were asked a question that
24 bordered on ethical responsibilities to Mary, if, in fact, she
25 believed this information to be true, why dldn't she report it
', iI
4.3
1 to' authorities. Do you recall that expression?
," , 2 A. Yes, sir.!!
3 Q. Okay. Are you covered by the same ethi cal
4 requirements that you believe Mary would be?
5 A. Yes, sir.
6 Q. Could you have easily reported what Mary told you?1
, ,7 A. Yes, sir.i
'.
·8 Q. Did you?
9 A. No, sir.
10 Q. Now, were you buddy-buddy with Jimmy Fennell and his
11 group?['1fj 12 A. No.L.
['-1 13 Q. Did you interact with them a lot?1..1
14 A. No.
r- l 15 Q. Now, even though you sat next to him, would you say_J
I 16 that you-all socialized?,:1
II
17 A. No.
18 Q. Did you know him very well?
19 A. I did not know him very well.
20 Q. Your basic connection with Jimmy Fennell is that you
21 were in the same class and your names ended up in the same
-----------2-2· -a·lpR8bet-,-8nd,-t-her-ef-er-e,-y-eu-wer-e-r-equ=i-r--ed-t-e-s4-t--t-eget-he-r--;---'
23 It was not by choice, was it?
24
25.
A.
Q.
It was not by choice.
Were there certain people in your class that you
44
1 chose to develop a much warmer relationships with?
2
3
4
5
6
A.
Q.
A.
Yes, sir.
And Fennell was not one of those?
No, he wasn't.
MR. OVERSTREET: No further questions.
RECROSS EXAMINATION
7 QUESTIONS BY MS. TANNER:
11 correct?
8 Q. _With regard to the conversation when you talked to
9 Mary and Mary asked you if you had heard about Stacey being
10 killed, she's the one that balled you on that conversation,
Q. Okay. Thank you.
MS. TANNER: No further questions.
MR~ OVERSTREET: We have no further questions of
Li
[-jt.
(i
1';LJ
12
13
14
15
16
17
A.
Q.
A.
She could have been.
1 1 m sorry?
I think she --I think she called.
-::··'1'1.
:;
18 Mr. Franklin and ask that he be excused unless the State has an
19 obj ecti on.
20
21
MS. TANNER: No objection.
THE COURT: All right. You may be excused. If
-------------2-2- yeU-Wi-l-l-;-+Ust--l~av-e--a--J3hoAe--flUmbeF--~-A-o-as-e-we---need---t-e---r-eaeh----
23 you. Thank you, sir.
24
25
(Witness excused from witness stand.)
THE COURT: The next witness?
1 MR.' MOON: Judge, at this time we would call
45
2 Dr. Leroy Ridic (phonetic).
3. MS. TANNER: Your Honor, I'm going to object to
4 this testimony on the same basis as I objected to Mr. Singer's
5 testimony yesterday. Dr. Ridic (phonetics) has provided an
6 affidavit that goes into his assessment of the various forensic
7 aspects of this'case and that affidavit was provided in federal
8 court. I believe it's included in the habeas petition under
'9 one of the claims that has previously been dismissed by the
10 Court of Criminal Appeals.
11 And as such, by the same token, we believe his
12 testimony is not relevant to the two issues before this Court,
13 and, therefore; we object to it. It's Exhibit 5 in the
14 petition.
THE COURT: What is your response to that?
of all, under the CCA's order remanding the causes to this
f~~]",L.l
r '\
:1'... /
15
16
17
MR. MOON: Well, Judge, several things. First
18 Court, the CCAsaid that --
19 THE COURT: Excuse me for one moment, please.
20 State outside for a moment, please, sir.
21 MR. MOON: The CCA says that, "We have reviewed
_. 22, _ths-Clp-p1ic.ati.on_...and fi nd_.ihaLawLicllnt~s-.-Brady-.aJJ..e.gat.tons_______
23 regarding the Barnett and Keng affidavits and the items that
24 submitted under seal satisfy the requirements of 11.071,
25 Section 5. Accordingly, we remand to application to the trial
r 1Li
46
·1 court for consideration of these claims."
2 These claims encompass every aspect of proof
3 that we need to make on these Brady allegations. And that is
4 that the evidence was suppressed, that it was exculpatory, and
5 that it was material. So it's been described several ways in
6 the federal law, but it's a reasonable probability that the
7 outcome would have been different or it's undermining the
8 confidence in the jury's verdict.
9 And we need to make proof on that aspect of the
10 Brady claim. If we're not allowed to prove that prong, then
11 .we're prohibited in this court from proving our Brady
12 allegations, which is what our burden is.
13 I. would also point the Court to the recent case
14 of Graves versus Director, which is Fifth Circuit Court case
15 that reversed the federal court for failing to grant relief on
16 a Brady claim. It's at 2006 West Law 515 485. It's very
17 recent and there's no cite and I can provide a copy to the
18 Court.
19 But the Court there said in reversing, they said
20 the problem with the State's argument is that it analyzes the
21 significance of the suppressed evidence against the backdrop of
_________._22-JlOw-ibe_.de£ense__p.r:es.ented-itS-CasB_-a:L.trj..a]---Wi-1bollLihB--__---l
23 suppressed statements. If the statement had been revealed the
24 defense's approach could have been much different and probably,..J
25 highly affective.
47
1 The Fifth Circuit indicated that we have to look
2 at all of the evidence· that would have flowed from -- I'm,1·
3 sorry, but all the evidence that would have been presented had
4 that evidence been timely turned over to the State. It's an
5 essential -- it's an essential prong in Brady and something we
6 need to prove.
7 Dr. Ridic's testimony goes directly to that.
G.·.·...:.:]'f-,'I"
'.-.'1i -
l.:J
8 We've heard argument about how the evidence we've presented is
·9 not material, how Jimmy Fennell could not have been a suspect
10 because his~ime frame just can't work out because there's not
11 enough time. This has been a theme that has come up over and
12 over again through cross-examination by the State.
13 Dr. Ridic goes to -- one of the things he talks
14 about is time of ~eath, whether there was a reliable
15 determination of the time of death. Dr. Bayardo placed the
16 time of death about 3:00 in the morning. If the victim is seen
17 alive -- if Ms. Stites is seen alive with her fiance between
18 4:45 and 5:30, then clearly that time of death can't be
19 accurate, which then would have led those trial attorneys to;. l, .. :
U 20 seek out expert assistance to take a closer look at the
21 forensic evidence and say, boy, I don't know if this can be
_____________-22. .J:.igh:t..-And_ibat.-le.ads._.to__the_-concJ_us.ions_-.anciihe_______________ ___.
23 determinations that Dr. Ridic makes.
24 So that's why we need to present this evidence,
25 so that we have the opportunity to fUlly prove our Brady claim
.,: i
48
1 in this Court.
2 MS. TANNER: Judge, it's the State's position
3 that there'-s absolutely nothing in the two issues before this
4 Court that possibly would·have precluded them or could have
5 precluded them from pursuing aspect of the forensics. The
6 forensics was a huge part of the case at trial; they had the
- 7 ability to do it at trial; and whether or not they knew about
8 this information has absolutely no bearing on that .. And this
9 goes far beyond the scope of this hearing.
10 The defense at trial, their defense was
11 potentially that Mr. Fennell had done it. So this has
12 absolutely nothing to do with what we're before th~ Court here
-13 today.
THE COURT; Anything else?
!-]
!] -,['jI-
!j
14
15 MR. MOON: Well, Judge, I would just point out
16 that as Judge Overstreet noticed here, actually the trial
17 attorneys were actually the same in the Graves case, and there
18 are further similarities.
19
20
21
------.----2-2
23
24
THE COURT: May I see your case?
MR. MOON: Yes, I'm sorry. May I approach?
THE COURT: Yes, you may.
-MR~-MGON-:--(-:r-endeFed-deeumeAt--te--the--e{}ur-t1-;-'----
THE COURT: Thank you very much.
MS. TANNER: Judge, if I may, and I don't know
25 if this is the appropriate time to do it, but Counsel brought
49
1 up the fact that the attorneys were the same in the Graves
2 case, Mr. Garvie and Ms. Clay-Jackson. If Ms. Dettmer would be"
3 permitted to respond to the argument, she's actually one of the
4 attorneys that worked on the Graves case from the State's
5 prospective and I think she can share how the Graves case is
6 f~ctually and materially different than this particular case.
i ..
7 THE COURT: All right.
j~.-j, .< .~-
8 MS. DETTMER: Your Honor, my only point in .
9 response to Mr. Moon's argument.with the.Graves.and the Fifth
10 Circuit's cioncern in Graves about limiting the materiality
11 aspect of it at the hearing -- I did attend that hearing; I was
12 part of the State's team at that hearing. And the issues in
13 that· case were completely different than the issu~s here.
14 The issues there went directly to co-defendant
15 statements who testified at trial, not to witnesses who were
16 never presented at trial. The Fifth Circuit's point in"that
17 case was, yes,there their theory could have been but there was
18 more of a direct connection between where the attorneys wanted
19 togo with the information presented with Graves than the
20 information presented here.
21 In Graves the information that the Court found
-.------------2-2 -t-ha-t"-.was-,-suPPFessed--Gould-hav-e--d.:i-F-eG-t-1-y--led-t-h-em--t-o-eer-t--a.:i-n------
23 things in certain areas. Here, in this case, it is very
24 different. The information with regard to Mrs. Barnett and
25 with regard to Ms. Best that was allegedly suppressed has
50
1 absolutely no connection to the testimony that they are trying
. 2 to offe~. There is ,nothing that these witnesses said or didn't
3 say that prevented them from doing this. And that is the
4 distinction between this case and Graves.
5 MR. MOON: Judge, just briefly. Although it may
r~Ji!,',J
tOJ
['],J
6 factually be different -- I mean, I believe that the law in the
.7 case speaks for itself. And, also, as Ms. Dettmer was the
8 attorn~y that was presenting,this theory in the distri~t court,
9 it's clear that the Fifth Circuit did not agree with it.
10 But, in addition to that, this does go directly
11' to the case, that is, there was no reason for Ms. Clay-Jackson
12 and Mr. Garvie to doubt the time of death. There was no reason
13 for them to look beyond the four corners of that autopsy and
14 say, I wonder if Dr. Bayardo got things wrong. There is no way
15 of looking at the four cornets of that autopsy and determining
16 that the autopsy was wrong, or that it wasn't as reliable as it
17 was made out to be at trial. And this strikes directly at the
18 heart of that.
19
20
MS. TANNER: Actually, Judge --
THE COURT: Okay. Enough. I'm going to tell
'. !
21 you what my ruling is and that is, as I have told you I'm going
--,22 -.:to-go-.w:j-th--the~{)b---that-the-Cour-t-O-f--Cr...:j-rn~-na-l---Appeals-9a-v-e-me~-
23 I understand what your point·is. I don't agree with that point
24 and I'm not going to allow that testimony.
25 Now, if you want to make the same objection as
51
1 you did yesterday and offe~ it t~rough affidavit as you-did
2 with the other, plea~e do that.
3
4
MR. MOON: Thank you, Judge.
Dr. Ridic is a medical examiner for the State of
5 Alabama. Could we have a few extra days to prepare that?
6
7
THE COURT: Yes. How about two weeks?
MR. MOON: And just to be clear, Judge, we
g are -- our preference, of course, would be to make a live
9 proffer under Rule 11.0'3 of the evi denti ary rul es ,
10 THE COURT: And as I ruled yesterday, that will
11 not be all owed. You may do it in affi davi t form.
12 MR. MOON: And I'm sorry, your Honor, how long
13 do we have to provide that? --
14 THE COURT: Let's make it two weeks since he's
15 out of state.
16 MR. MOON: Okay. Thank you, Judge.
17 THE COURT: Okay. Let's move on to next
18 witness.
19 MR. MOON: Thank you, Judge.
20 THE COURT: I've asked the district clerk to
21 make a copy of that case so I can return your copy to you.
--------------/ ------
23
24i ,
f (
MR----MQillt: r_llank_y..o.u~---J-udge--'---~-------------------
THE COURT: Who will be your next witness?
MR. OVERSTREET: Judge, at this time we would
25 like-to call Mr: Reed to the stand, but we want to arrive at an
52
1 understanding about the -- about,his proposed testimony.
3 go aff th~ iecord,for a moment and you talk to State's Counsel
4 and you-all see if you can reach some type of agreement. And
2 THE'COURT: Okay. Howabout,we do this, let's
iI!iii!! .,ii
5 if you don't, then I'll have to listen to what you're proposing ~'
6 and then we'll go from there. I don't think --
,14 you-all to talk first and then talk to me. And that's the way
15 I'm going to tell you to go do it, you-all go talk first and
16 then let me know and I'll come in and listen.
7
8
9
10
11
12 Honor, is that
13
17
18
19
MR. OVERSTREET: " May we approach the bench?
.THE COURT: Yes, sir.
(The,following was a brief discussion at the
bench.)
MR. OVERSTREET: What we would propose, your
THE COURT: I think my best suggestion was for
MR. OVERSTREET: Okay. Thank you. '
(Recess while counsel for both sides confer.)
MR. MOON: Your Honor,at this time our next
1"- :
I!....r.~~.':i."'
f.,_t:'~j- •
r· .i '
I;
20 witness will be Ms. Duncan.
21 (The witness was sworn.)
23 You may proceed.
24
25
1 PAMELA DUNCAN,
53
! i,
2 called as a witness and having first ·been duly sworn,testified
3 as follows:
4
5 QUESTIONS BY MR. MOON:
DIRECT EXAMINATION
11 closer. And if you will, speak just a little bit louder
12 because I'm having trouble and if I am then I know they're
13 probably having trouble, too.
Q. Now, did you live in Giddings in 1996?
A. Giddings, Texas.
Q. And where are you currently employed?
A.The Texas Youth Commission.
C','IIi
"!, I• Ii ;
i i: !
, ,:. iI :1
6
7
8
9
10
14
15
16
17
18
19
20
Q.
A.
Q.
A.
Q.
. A.
Q.
Good morning, Ms. Duncan.
Hello.
Could you introduce. yourself to the Judge, please.
Pamela Duncan.
THE COURT: Ma'am; can you scoot up a little
(By Mr. Moon) Ms. Duncan, where do you live?
Yes.
Did you at any time know a person by the name of
) t;
, I, .!
21 Jimmy Fennell?
_______.._~__22 -A~_-.Yes...~__" . . _
,
~i t
23
24
25
Q.
A.
Q.
And how did you know Mr. Fennell?
I dated him.
What period bf tim~ did y6u date him?
3 A. -- I worked at a convenience store that he came in as an
; -
'. tf l
1
2
A.
Q.
From September of '96 through September of '97.
How did you meet Mr. Fennell?
_54
4 officer to have coffee and hot dogs.
5 Q. How long had you known Mr. Fennell before you started
6 dating him?
A. Since May of '96.
Q. And how long did it take before your relationship
deepened?
A. We officially started dating September of '96.
Q. Was there a time that the two of you ever lived
together?
A. He stayed at my house a lot, but he -didn't live with
me, he had his own place.
Q. Initially what were your impressions of Mr. Fennell?
A. He was very quite?
Q. Even with you, he was very quite?
A. Yes.
Q. And during the period of your relationship did your
20 impressions of Mr. Fennell change?
21 - A. Yes.
---- -2-2- -----Q-.---And--wtly-was--t-nat-?------------------------------------------
23 MS. TANNER: Judge, I'm going to object to this
24 as being totally irrelevant for purposes of this hearing.
25 Secondly, this is evidence they could have brought out at trial
55
1 and, were perfectly capable of doing it: And so, therefore,
2thi~ is not relevant and should not be offered.
3 THE COURT: .Response? .
4 MR. MOON: Well, Judge, We heard from
5 Ms. Lydia Clay-Jackson that had they had the information that
i" .:' ~ , :'-:.:;
(·····1I,L:J
6 had been suppressed that they would have focused narrowly in
7 the few months that they had to prepare, and sent their
8 investigatofs out to talk to people who had information about
9 Mr. Fennell, about his relationships, and the background
10 information of Mr. Fennell.
11 This would have been relevant; it would have
'12 been reversible 4.04(b) ~vidence that could have beeri offered
13 at trial .. Also, Mr. Fennell testified and if they had had thi s
14 information prior to trial the trial lawyers could have given
15 Mr. Fennell the opportunity to rebut or deny these allegations.
16 And if he denied them -- if he admitted them, obViously,
17 Ms. Duncan wouldn't have been called; and if he denied them,
18 then she could have been called in as an impeachment witness.
19 MS. TANNER: Actually, they were focused on him
Ii
20 all the way through. So to say they would have focused on him
21 had they known thi sis actuall y compl etel y and factual 1y--_.-----------2-2-:i-R-Gons.:i--s-t--ent--w.ft-h--what--the--FeC--<>-F-O--aear-s---eut--aeG-ause---t-hey-wer--e---
23 focused on him. So, therefore, we don't see the relevance on
24 this now. It's like they're trying to retry the case.
25 THE COURT:- Mr. Moon, I'm trying to see how this
, .
i
I
·1 is related to the order that I got from the Court of Criminal
2 Appeals. I don't· feel that you're satisfying-- your
3 explanation is not satisfactorily for me to allow this
4 testimony. So I'm not going to allow it.
56
6 . request to make a proffer under the Texas Evidentiary Rule.
8 just·want to get it out. here in front of the Court and we're
9 going to object as we have before. And if they're going to
10 make a proffer, then an affidavit would be appropriate.
[:1i I
!]I,• -II)
'::j
I·:'"I,i
5
7
11
MR. MOON: Well, Judge, at this time we would
MS. TANNER: JUdge, it's the same thing. They
THE COURT: And I'm going.to do the same thing
r:1'. .:f". ~-
Flt • j .:.1
12 as I've done in the others. My ruling is going to be that if
13 you want to make a proffer you do it by affidavit.
14 MR. MOON: Thank' you, Judge. And how long do I
15 have to do that?·
16 THE COURT: Two weeks.
17 MR. MOON: Two weeks. Thank you, Judge.
'18 THE COURT: Ma'am, you may. be excused.
19 (Witness excused from witness stand. )
20 THE COURT: I'm going to make my same ruling
21 that I did yesterday as far as the audience. If there's any
----.------22 --commen-ts-to--A>e.-made--¥Ou-may.--be--:excused-.---I.f--Y-Ou-cont.:i..nue····-to._--
23 talk you will not be allowed to come back into the courtroom.
24 Let's make that clear.
25 MR. OVERSTREET: . I just want to make sure that
57
1 the record reflects that we object to making a proffer by
2 affidavit, and we're only making the proffer by affidavit
3 because the Court is not allowing us to make the proffers with
4 our witnesses who are present.
'-1\
5
6
7
THE COURT: That's so noted.
Next witness?
MR. OVERSTREET: Your Honor, this concludes the
8 Petitioner's case.
12 Forrest Sanderson as our first witness. ·He may actually be
13 upstai rs ..'.'...; 'I
i
I!
9
10
11
14
15
16
THE COURT: Thank you very much, sir.
Are you ready to call your first witness?
MS. TANNER: Yes, your Honor. We would call
(The witness was sworn.)
THE COURT: Please have a seat.
MS. TANNER: Judge, before thi"s witness
.;
17 testifies, just out of an abundance of caution and for the
18 record, I would like to state that we were -not aware that we
19 were going to call this witness at all. We had an affidavit
20 from Mr .. Vasquez that specifically said that he had told
21 Mr. Penick the information that he's relayed to this Court, not
----------2-2--Ms-SaAaeFS-efl-;--I-t-was---nat---unt-i-1--we-hear-a-Mr--;-\Ias-quez..!..s--------- -
, i 23 testimony that we had any realization that Mr. Sanderson might
24 end up being a witness. He has been in and out of the
25 courtroom; he was not placed under the Rule. And at the moment
58
..
1 I heard Mr. Vasquez say that he had told this to Forrest I
2 turned to him and said get out.
3 So I just want to make the record clear that we
4 did not know, so there is not an issue about a violation of the
5 rule.
6
7
8
9
THE COURT: All right.'
MS. TANNER: May I proceed?
THE COURT: Yes.
FORREST SANDERSON,
10 called as a witness and having first been duly sworn, testified
11 as follows:
Q. Would you state your name for the Court, please, sir.
DIRECT EXAMINATION
QUESTIONS BY MS. TANNER:
::-1
1.:1~ ..,..
r ;1
1- \i. j
12
13
14
15
16
17
A.
Q.
A.
Forrest Sanderson.
And how are you employed?
I'm an assistant district attorney here in Bastrop,ii
18 County.
19
20
21
Q.
A.
Q.
And how long have you been so employed?
Since 1986, I believe.
Were you a member of the prosecution team involved in
--' ---2-2 --t-he-cap.:i-t-a-1-mur-de-r-case-of-t-he-8t-at-e---ef-=F·e*as--veFStfs-R-odney--
23 Reed?
24
25
A.
Q.
Yes, I was.
And were you present in the courtroom, did you help
59
1 present witnesses, and help pick the jury, and were you
2 integrally involved in the prosecution of that· case?
3 A. Yes, I was.
4 Q. Mr. Sanderson, do you know a man by the name of John
5 Vasquez?
6 A. -I know him simply by virtue of having some
7 .i nteracti on with him during the trial of Rodney Reed.
8 Q. Have you had regular interaction with him since the
9 trial of Rodney Reed?
'Il..('II I1.'...1
f:i lL.,)
(Iil. "
10
11
12
13
14
15
16
17
A.
Q.
A.
Q.
A.
Q.
A.
Q.
No, I have not.
Do you know him well?
No.
Do you consider him to be a friend?
No.
Do you socialize with him?
No, I do not.
Mr. Sanderson, can you tell the Court, has
18 Mr. Vasquez ever come to you about the Rodney Reed case to
19 relay information to you that may be exculpatory in nature?
--22.- --so~--Of--wr-=i-tt-en-document.at--i-On-about---the-Rodney-Reed-~se2-----.-,iI
'- .!
20
21
23
24
A.
Q.
A.
Q.
Not that I can ever recall.
Has he ever come to you and provided you with any
Not that I can ever recall.
Do you think you would remember if Mr. Vasquez would
25 have come to you with a memo that recounted exculpatory
60
1 information about Rodney Reed?
2 A. Yes, I think would remember if he actually hanqed me. .
3 something like a piece.of paper or affidavit or something to
4 that affect that was significant or was material to the trial.
·5 MR. OVERSTREET: Your Honor, the answer has gone
6 beyond the scope of the question. The question could have been
7 with a yes or no. So we would object that the remaining part
8 of the answer beyond yes or no is not responsive.
9
10 Q.
THE COURT: Sustained.
(By Ms. Tanner) If Mr. Vasquez would have come to
11 you and provided you with any sort of written information
12 pertaining to the Rodney Reed case, would that be something you
13 believe you would remember today?:)! I, J
'II 1
L· I
14
15
A.
Q.
I think I would.
And if he would have provided you any sort of
16 written, exculpatory information regarding the Rodney Reed
17 case, would that certainly be something you would remember?
18
19
A.
Q.
I think I would.
And if he provided you with any information that
ji
.I
20 included a name and phone number of a potential witness in the
21 Rodney Reed case, do you think you would remember that?
--------~-·---22-----A-.----I-t-h-i-n-k-I-wou-l-d.
23
24
25
Q.
A.
Q.
And has he ever done that?
Not to my recollection.
Mr. Sanderson, you have worked for some time -- or
1 you did work for some time with Mr. Charles Penick, correct?
2 A. That's correct.i
3 Q. And what was his role when worked for him?you.'---j,
4 A. In the Rodney Reed case?!
5 Q. What was his title?
6 A. He was the elected criminal district attorney of
7 Bastrop County.
8 Q. And was he also a member of the trial team in the
9 Rodney Reed case?
61
Steve Keng, no.
become aware of an affidavit that was filed by Mr. Steven Keng?
A. I'm not specifically aware of an affidavit filed by"II
:1\.1
( I
[I
10
11
12
13
14
15
A.
Q.
Q.
Yes, he was.
And at some point in time prior to today, did you
But are you aware of, essentially, what he has said
16 with regard to Charles and the Rodney Reed case?
17 A. I am aware now. I was not fully aware until this
18 hearing began of the full nature and detail of those
19 allegations.
20
23
24
Q.
A.
Q.
Now, throughout the course of the Rodney Reed case
Yes.
If someone would have come to Charles with
25 exculpatory information about the case, in your opinion and
! !
j ;L ;
62
1 being a member of the team, do you think Charles would have
2 blown that off or would have proceeded with that?
3 MR. OVERSTREET: Objection, your Honor. It
4 calls for speculation on this witness' part, what someone else
5 would have done if they would have received information.
6 That's pure speculation on the witness' part. If they want to
7 know what Mr. Penick would have done, then I suggest they call
8 Mr. Penick.
9 MS. TANNER: We plan to; but in the mean time,
10 Judge, he was a member of the team just as well, he knows how
11 things were working during that period of time and therefore
12 it's relevant .
. 13
14 Please answer.
THE COURT: I'm going to overrule the objection.
15 A. I think if Mr. Penick was presented with exculpatory
16 information during the trial he would have been on it like
17 white on rice .. . ,.!
18
19
MS. TANNER: No further questions.
THE COURT: Cross?
rJ
20 CROSS EXAMINATION
21 QUESTIONS BY MS. SMALLEY:
------~2
23
--GT-Mr--;--Sander-..son------·---·--..-------.._----------------- ..._-
THE COURT: Okay. And just as in the former
24 call, let me tell you how it's going to go. I understood you
25 objected during the --
1
2
MR. OVERSTREET: Yeah.
THE COURT: Let me tell you how it goes in my
63
3 courtroom. Whoever takes the objections takes 'the witness, but
4 if you're going to ask her to do that, I understand that -- it
5 probably was a mistake that you stood up. She probably should
6 have. So I'm going to allow her to do the questioning. But
7 let's just make sure if you're going to object, you're' going to
8 ~sk the questions on each witness. So that we keep the .
9 attorneys and record straight.
10· MR. OVERSTREET: I understand and I apologize to
i 1, ,I
- !
:'1I
:",i 1
!.'.. J
11 the Court. We didn't know who their first witness was going to
12 be and she was reading the record.
13 THE COURT: Sure, I understand. But let's just
14 make sure that in the future whoever is going to object is
?15 going to take the witness, and whoever takes the witness is
16 going to do the objections. I just want to make it clear that
17 that's how it's going to be.
18 All right. Go ahead. She's going to be allowed
19 to do this, just this time.
20 MR. OVERSTREET: Your Honor, we're going to
21 reserve cross-examination of this witness at this time. Will
_________.-----...----t-......e_ ba.-8v--.ajJ .able-fuL-I:.ec a lJ2 ._. . -------_.-
I. i
23
24
25
THE COURT: I'm sure he will.
All right. Thank you. You may step down.
(Witness excused from witness stand.)
1
2
THE COURT: Okay. Next witness?
MS. DETTMER: Your Honor,the State calls
64
3 Charles Penick.
4 (The witness was sworn.)
5 THE COURT: Thank you, sir. If you will, come
6 around here and have a seat.
7 You may proceed.
8 CHARLES PENICK,
9 after having been first duly sworn testified upon his oath as
10 follows:
11 ,DIRECT EXAMINATION1·-:1
'\; "I
I!
'. ;
i j
, ,, ,
!
12 QUESTIONS BY MS. DETTMER:
13 Q. Good morning, Mr. Penick.
14 A. Good morning.
15 Q. Will you please state your name for record.
16 A. Charles Penick.
17 Q. All right. And how are you currently employed?
18 A. I'm retired.
19 Q. Okay.
20 A. I'm a rancher, I guess.
21 Q. Okay. Back in 1996, were you the elected DA in
--------------2-2 -Bast-r-Gp---GouRt-y-?--~---------------------_·_-------------------
23
24
25
A.
Q.
A.
That's correct.
Okay. For how long?
Since 1983.
65
1 Q. Okay.. And how long were you after 1996, the elected
2 DA?
, .'; ..
3
4
A.
Q.
I think until 2000 -- December 2002.
Were you directly invol-ved in the prosecution of the
5 Rodney Reed case?
6 A. Yes.
7 Q. How were you involved?
8 A. I guess as co-counsel with Lisa and Forrest.
9 Q. Okay. Are you fami1i ar' wi th the allegations that are
[1!It:: ..1
10 before this Court today?
11 A. -Somewhat, yes.
12 Q. Okay. And I want to ask you, have you ever in the
1.- I
ili..•....J .\
13 course of being a prosecutor received exculpatory information
14 about a case?,-'-'j
I'i IL.l
15
16
A.
Q.
Sure.
What is your general practice when you receive that
17 kind of information?
18 A. To let the defense lawyer know about it. We had an
19 open file policy in our office.
Okay. Do you investigate that information?
Sure.
Q.
A.
20
21
_________-----.22 Q~--.Okay~---.DD-y-Oll_.r.e.cB1J--«:iuI:ing.-tb1L.St.acey.___,Stj.t.e1)-cas~---
23 being approached by a Mrs. Keehner?
24
25
A.
Q.
Yes.
Okay. - Why did she approach you?
1 A.
66
She felt like Rodney Reed was not guilty of the crime
2 that was committed.
3 Q. So Mrs. Keehner approached you to tell you th~t she
;-.
4 thought the man that you wer~ trying for capital murder was
5 innocent, correct?
11 and I think they went and took a statement from her.
:. J
!
t· ".t
6
7
8
9
10
12
A.
Q.
A.
Q.
A.
Q.
That's my recollection, yeah.
Would you consider that. exculpatory information?
Sure.
Okay. What did you do with that information?
I either told Lisa or somebody in law enforcement,
Okay. And was that statement ultimately turned over
13 to the defense?
A. Yes.
familiar with the substance of her affidavit?
or during trial?
A. I have never been approached by her.
!"'.J
F...·~j'{:.".-.': .' }
14
15
16
17
18
19
20
21
A.
Q.
Q.
Q.
I believe so, yes.
Okay. Let's talk about Martha Barnett. Are you
Were you ever approached by Martha Barnett prior to
Okay. At some point prior to or during trial did you
--------2-2--r-aGe~-e-:i_nfor__mat_i_on-_r___egar--Gi-ng-MaF-th-a-Bar-Aett-?----
23
24
A.
Q.
No.
Okay. If you had received information regarding
25 Martha Barnett what would you have done with it?
1 A: The same thing as I did with Mrs. Keehner. I would
67
2 have found out what she had to say.
3
4
Q.
A.
Okay.
And if exculpatory I would have shared that with the
5 defense.
'6
7
Q.
A.
All right. Do you know a Steven Keng?
Yes.
8 Q.. Okay. Do you recall having a conversation with
9 Steven Keng about Martha Barnett?
12 conversation was?
!.,I I~.~. - !
;'1'[)
10
11
13
A.
Q.
A.
Yes.
All right. Do you recall what the substance of that
It was briefly· that he had a client that knew
14 something about.the Rodney Reed case.
15 Okay. And what was your response to that?
16 A. Well, I didn't know then that it involved Martha
17 Barnett
18 MR. OVERSTREET: Objection, your Honor. The
19 answer is not responsive. The question was what did you do.
20 Can we have the court reporter read back the question?
21 MS. DETTMER: I'll rephrase the question if that
---------.2-2 -he~_ps,-y-our--Heflor---. ---.-------.-.--------------..-
23 THE COURT: Why don't we do that. We'll just
24 have her rephrase it.
25 Q. (By Ms. Dettmer) What was your reaction to
68
1 Mr. Keng's statement?
2 A. I thought he was kind of gesting. I didn't take him
3 seriously.
4 Q. Okay. And did you say anything to Mr. Keng in
. i
5 response?
6 A. I think I did.
7 Q. Okay. What did you say?
8 A. ·1 think I said I had enough evidence against Rodney
9 Reed and I didn't need to hear that, or something like that. I
10 mean, I
11 Q. Okay. And then one last qtiestion. Was this
12 conversation with Mr. Keng before, during, or after the trial?
that conversation with Mr. Keng?
A. Not specifically. We were in a docket callout at
the law enforcement center and we talked about numerous things.
1· !• I• I
13
14
15
16
17
18
19
A.
Q.
Q.
A.
It was about four years after the trial.
Okay. Do you recall anything else in the context of
Okay.
We had an acquaintance that both of us knew and we
20 talked about him, you know, just various conversations.
21 Q. And --
_________22 ----A-r-~_sor--r-y-.----
23
24
Q.
A.
I'm sorry. Finish your response.
You know, we were killing time I think while a-,I
25 hearing was going on.
1
2
3
Q.
A.
Q.
69
And for the record, who was that acquaintance?
I think Calvin Taylor is the name Qf the individual.
Okay. You mentioned that during your conversation
4 with Mr. Keng he told you that he had a client that might have
5 information. Was that the actual topic of your conversation or
6 was that something that came up in passing in the conversation?
7 A. No, that was something that came up after we had
...~.1
,i jI.,;
8 talked for a good number of minutes, or time. You know, I
9 don't recall how long , but it was somethi ng, as I recal l ; that
10 just came up in passing as he was leaving the room where we had
11· been sitting.
12 Q. Okay .. So he didn't come up and find you and grab·you
13 and pull you aside and say, "Excuse me, Mr. Penick, I have
14 really"important informati6nI need to tell you."
15
16
17
A.
Q.
A.
No. No". No.
It was just something that happened --
It was something like, hey, I know something about
18 the Rodney Reed case; or I have a client that knows something
19 about the Rodney Reed case.
, '--.~.
---O~-Ok.a.y~---Do-you--+eca.l~--"--,,,~----------"---------------------
20
21
~-----"-~-22
23
24
25
Q.
A.
A.
Q.
A.
Okay~ Do you know a John Vasquez?
Yes.
I know of him; I don't know him that well.
Okay. How do you know him?
He was an investigator for the Rodney Reed case hired
70
1 by the defendant.
2 Q. Okay. Did you work with-Mr. Vasquez on any other
1...
3 case?
4 A. Not to my knowledge, no.
5 Q. Were.you.;.guys friends?
6 A. No.
7 Q. Did you socialize?
8 A. No.
9 Q. Did you see him often?
10 A. I saw him on a few occasions at the Rodney Reed trial
11 and then I saw him after that. Several years after that he
12 came to the office, but other than that I haven't seen him.
14 to the office, did he hand you any kind of document or report
'1t '"-I
b.. J
13 Q. Okay. In that several years after that when he came
: I
\;-.·1t J
(I!i
15 alleging that it had anything to do with the Rodney -Reed case?
16 A. No. No.
17 Q. What do you recall the substance of your conversation
18 with him being about?
19 A. About my uncle. About how he was a caddy when my
20 uncle was a golf pro and that he wanted to play golf with- me,
21 and that we ought to get together and play golf. Which we
------------22 -ne.v-er-d-i-d-.-------------------------·------------------- ---
~i
-J
23
24
25
Q. Okay.
MS. DETTMER: I'll pass the witness, Your Honor.
MR. OVERSTREET: Your Honor, we would request a
71
1 five-minute recess.
2 THE COURT: Okay. Mr. Penick, you may step
3 down. We'll take five minutes.
:"-'j
4
5
(Recess.)
CROSS EXAMINATION
6 QUESTIONS BY MR. OVERSTREET:
7 Q. Good morning, Mr. Penick. My name is Morris
8 Overstreet?
9
10
A.
Q.
Good morning.
And I'll be ~sking you some questions on
11 cross-examination.
14 just tell me you don't and I'll try to rephrase it for you.
17 examination that after some thought during the break that you
::-.jI 1
1i, I'-'./
!:" !i !
12
13
15
16
A.
Q.
A.
Q.
Okay.
If I ask you a question and you don't understand it,
Okay.
Is there anything that you said on your direct
•.. _ .1
18 recognize is either incorrect or inaccurate and you now chose
19 to correct it?
20 A. I don't I think so, other than I think I was
21 interrupted by an objection where I was asked a question about
__________--2 -wha:LS:teY.e--Keng----told-lDe-abQut-Mar~-Bamett---And--l-d.id---llot-know
23 about a Mary Barnett until after I read it in his affidavit.
24 That's'the only thing, and I may have clarified that.
25 Q. 'I want to ask you some questions about the Rodney
72
1 Reed prosecution, prior to trial, during trial, and after
2 trial. Now, you have given several depositions regarding
3 Rodney Reed; is that correct?
4
5
A.
Q.
Two.
And do you recall some depositions during the year of, ..' 6 2003, particularly maybe August of 2003, as well as October of
7 2003?
8 A. I'm not sure about the dates, but that sounds about
9 right, yes, sir.
11 courthouse in connection with a cause of action in the Federal.. ,;·-.i
10 Q. Do you recall giving one at the Bastrop County
C'1! 'IJ !c. ~
12 District Court of the Western District of Texas?
13
14
A.
Q.
Yes, sir.
Now, were you the plaintiff in a civil suit involving
15 a newspaper?
16
17
A.
Q.
Yes, sir.
And did you give a deposition in connection with that
18 case?
19
20
21
A.
Q.
A.
That's correct.
Has that 'case been finely concluded?
No, sir. It's at the Court of Appeals.
MS. DETTMER: Your Honor, I'm going to object to
23
24
.. . ~---.......a~---Aru:Ldo-¥_au-hava-..aJj..nancj-aUllter.-est_--=ill-OutcDnte-Of ..
that case?
'25 the relevance of this line of questioning.
1
2 .basis for bias.
3
73
MR~ OVERSTREET: I mean, financial interest ;s a
MS. DETTMER: A basis of a bias of a -- that is
4 a case that is not before this Court. He's asking about his
5 financial interest in a civil suit. This is habeas matter.;. ;
6 Whatever his bias mayor may not be in that case is not
7 applicable here.
8
9 develop it
MR. OVERSTREET: I think if we're allowed to
the basis of the lawsuit had to do with the same
, ,I
r. ;10 thing, and that is suppression of evidence I think the
11 newspaper accused Mr. Penick of and he sued claiming that that
12 was not true.
14 evidence in the Rodney Reed case, and certainly it would be in
15 Mr. Penick's interest that it be found that he did not suppress
r· ~I
\ iI', I'._!
13 And so you have the same issue involving
16 evidence. It's the same issue as in the civil lawsuit, and he
17 has a financial interest in that outcome.
18 MS. DETTMER: And if I may, your Honor, I
19 believe the allegations there were different. The allegations
20 of suppression here are very limited, and if I understand the
21 civil suit correctly there were many different allegations that
. . 22 _.a,r:e--'l.o.:L.a±-.-:i-S.s.ue.-he.r:.e~.-An.d.-l-.W.o.u]n_jJJs1..xe..quast...fhat.whatevar.
23 testimony regarding his bias be limited to these specific
24 issues here, not other allegations that mayor may not have
25 been made .
• J
1 THE COURT: Well, I can tell you that I have
74
2 never seen the petition in the civil suit; I don't know. the
3 allegations; I haven't s~en a judgment. So I don't have
4 anything in front of me that tells me anything about the civil
5 sui t other than the one questi on that you've asked.. And if
6 you're simply asking fora yes or no, does he have something
7 financially invested in that case, then he can answer yes or no
8 to that. But I don't want to go into the civil case because
9 I'm not here on that.
10 So I'm going to overrule the objection. You m~y
: ): I
11 answer yes or no to that. But I don't have anything in front
12 of me on the civil suit. So keep it limited to what I keep
13 saying, ~elre hete on Court of Appeals in regard to the
14 specific order they granted for me to come back and hear
15 evidence in regard to the Barnett and Keng affidavits, and
16 that's what we're going to stay with. That's why we're here.
17 Do you understand that instruction?
18
19
20 Q.
MR. OVERSTREET: I do.
THE COURT: All right.
(By Mr. Overstreet) Mr. Penick, was one of the bases
21 for your lawsuit -- well, did you bring a lawsuit against the
_~2__2 _J1ewspape.r.5--:in-Smithville2. . . ._.. _
23
24
A.
Q.
That's correct.
And was one of your reasons for bringing that lawsuit
25 because you thought they reported something incorrectly?
75
1 A. They reported a lot of things incorrectly.
2 Q. Now, regarding the Rodney Reed case did they ever
3 report or allege that you suppressed information regarding the
4 Rodney Reed case?
5 A. I think they alleged that the prosecution, the Judge,
6 the -- you know, the police -- without looking at the
7 newspapers articles, I haven't read them in a long time, but I
8 think they pretty well covered the criminal justice system.
9 Q. Well, let's just talk about you, and the newspape~
10 and their allegations. Did you bring a lawsuit because you
11 thought they had reported something improperly about you?
12 A. I brought the lawsuit because I felt like they
13 slandered my name.
r!i -1; i
14
15
Q.
A.
And how did you believe they slandered your name?
They talked about all the evidence that we supposedly
16 had that we didn't give to the defense, and they did not talk
17 at all about the evidence that we had where Rodney Reed's DNA
18 was found in the anal canal of Stacey Stites.
19
20
THE COURT: One moment, please.
MS. DETTMER: I'm going to object and I'm going
1. i
21 to re-urge my previous objection. I didn't object earlier to
--~ 2-2--th~-s-quest--i-en--beeause--l-was-wa4-t--'i--ng-to--s-ee--i-f-he-was-go-i-ng-t-o-----_.
23 1ink up that lawsuit with the specific all egati ons of
24 suppression in this case. And I would again just re-urge my,
25 objectlon that unless that civil lawsuit specifically had to do
76
1 with the allegations of ~uppression in this ~ase, that he not
2 be allowed to question this witness about that lawsuit.
3
4
MR. OVERSTREET: That's what I'm trying to- do.
THE COURT: All right. So I'm going to overrule
5 the objection.
6 I We're going to keep this -- the job -is very
7 specific as to what we're here on. Let's get to this matter
8 and I'm not going to get bogged down in evidence that does not
9 pertain to what we're supposed to be here about. So let~s
10 stick to the order from the Court- of Criminal Appeals .
12 purposes of record, the lawsuit that we're talking about was
13 filed before these allegations were even made. So I don't know
14 why we're going into this at all.
. j
".1
, I, J
:1
I,
.1:J
11
15
MS. DETTMER: Your Honor, I think, just for
THE COURT: I think I've just given an order as
16 to what we're going to do. I don't know what his next question
17 is, so until I hear the next question --;-1 18
19 Q.
MS. DETTMER: Okay, thank you, your Honor.
(By Mr. Overstreet) Did the newspaper make
20 allegations that you or your office suppressed evidence in the
21 Rodney Reed case?
___________..22 -A......_WitUQllt_J_D_Qkin9__at tb.fLne..ws_pJ:ip-er_a.rt i cl.eJ~-J_.J_.-lLclY~D_'-L -
23 read them in quite sometime, but I think so, yes.
24 Q. Now, your deposition of October 30th, 2003, do you
25 remember giving that deposition?
1
2
A.
Q.
In the civil lawsuit?
No, it was Rodney Reed~ Petitioner, versus The
77
3 Director of the Texas Criminal Justice?
4 A. Yes, sir, I remember that.
5' Q. So that is directly related to this criminal lawsuit?
6 A. Yes, sir.
7 Q. All right. How long have you known Mr. Keng?
8 A. I would say as long as I've been an assistant and a
9 prosecutor in Bastrop County, probably about 26 -- 25, 26 years
10 now.-
that, but lim not sure.
!.....J; .I'. :
11
12
13
Q.
A.
So you have known him since about 1980?
'79 or '80, somewhere 'in that time. Maybe before
14
15
Q. Do you recall when he was elected County Attorney in
lee County in 1984?
\,:]Ii
16
17
A.
Q.
Yes, sir.
And did you know him the whole time that he served as
18 County Attorney for lee County?
19 . A. I've known him ever since 1980, and that includes
20 that.
21 Q. Now, do you remember being asked a question in this
_, ~ .__-.22_ ._de-P_Qs_Lu_Qo Ln.Dctnber__about__.-Wb_e-.tb.eJ.:_ox:_I1Q:L_Y9JJ.-IsOeW_OI---.b~.a.r:d_._
23 the name of Martha Barnett and whether or not you knew a lawyer
24 named Steven Keng?
25 A. Yes.
1 Q. And do you recall making this statement, that you
- 78
2 never had any professional dealings with Mr. Keng while he was
3 a County Attorney of Lee County?
4 A. That's correct. I was the District Attorney in
5 Bastrop County and he was a County Attorney in Lee County, and
6 therefore he was not a criminal defense lawyer as he is now,
7 and I had no reason to have any -- any that I remember.
.... \:
8
9 reporter?
10
MR. OVERSTREET: May I approach the court
THE COURT: Yes, sir.
11 Q. (By Mr. Overstreet) Mr. Penick, let me show you what
,iI
',. J
12 has been marked as Defendant's Exhibit No.4. It purport~ to
13 be the oral deposition of Charles Penick on October 30th of
142003.
15
16
A.
Q.
That's what it appears to be, yes.
Do you have any objections that this is what it
------------2-2- ----Q.----I-want--t-e-t-uF-A-t{)--page-:-25-of-t--h:j-s--{fepos.:f-t-i-on--and---as-k
23 you to read yourself the questions and answers on page 23 -
24 excuse me, page 25.
25 A. (Witness complies.) Okay, I've read it.
79
1 Q.. Now,. you were asked a question about your
2 .acquaintanceship with Mr. Keng; is that correct?
3
4
A.
Q.
Yes, sir.
And in your deposition did you state that you had
5 several cases with him as a criminal defense lawyer? Did you
6 state that in your deposition?
7 A. I had several cases with him when he was a criminal
8 defense lawyer, yes .. ,I,.,1\ ..-' 9 Q. That's what I said, when he was a criminal defense
10 lawyer.
c.··.I\~ ,
11
12
A.
Q.
Yeah, right.
And then a question was a~kedof you, "Did you ever
, ;1
\
13 have any professional dealings with Mr. Keng while he was
14 County Attorney of Lee County?" And your answer was, "No, I
15 wouldn't have any reason to, not that I recall."
, · ..i
'i16
17 A.
Is that answer true or is that untrue?
To the best of my knowledge that's true. When he was
i
18 a county attorney I was a district attorney here and we were in
19 separate jurisdictions and I had no reason to have any -- I
20 mean, I couldn't represent criminal defendants in his court and
21 he couldn't represent criminal defendants in my court .
.----··-----·---22 -----Q-.-::r-hat--!-s-·-t-r;re-.--But--you--nev-er--had--any--pr-of-ess-i-ona+l-~---f
23 dealings with him while he was County Attorney?
24
25
A.
Q.
Not to my knowledge, no, sir.
Okay. Was there ever a time when Mr. Lee (sic), in
80
1 his capacity as County Attorney, tried cases on behalf of the
2 State in Bastrop County?
3 A. Mr. Lee?
4 Q. Yeah -- no, excuse me, Mr. Keng?
5 A. He may have. I don't remember that.
6 Q. Did you ever have any cases involving public
7 officials in which an outside prosecutor was brought in to
8 handle the cases?
, i,!
9
10
11
A.
Q.
A.
Yes, sir.
All right. Was that outside prosecutor Mr. Keng?
No. What I recall, the two that I had, one was Bill, .'j
1'/
i'JI': '' ..
f" I: 1
12 Turner out Bryan/College Station and the other one was Jeff Van
13 Horn out of Lockhart. But I don't remember Steve -- I would
14 not have asked hi~ to come over here. I don't remember it. If
15 he did, I don't remember that.
Q. Is your testimony today that Mr. Keng never brought
to your attention the matters regarding Martha Barnett during
the year that that case was tried in 1998?
"." '.jli·:··
;.:ji I, 1
16
17
18
19
20
A.
Q.
Absolutely.
And if Mr. Keng said that he had brought that to your
I.J
21 attention would he be telling the truth or would he telling a
-----------------2-2 -1-:1-e':1----------__--------------------------·--------------------------.------------ -------
23
24
A.
Q.
He's telling a big lie.
Have you ever publicly acknowledged that your opinion
25 of Mr. Keng was that he was an honest, hard working, reliable
81
1· person?
2 A.. I think I may have done that in a campaign that he
3 had that was contested early on. I'm not sure if I did. I
4 know that the attorneys around Bastrop County assisted me, and
5 I may have done that for him, also.
6
7 reporter?
MR. OVERSTREET: May I approach the court
Q.
THE COURT: Yes, you may.
(By Mr. Overstreet)' Mr. Penick,! want you to take a
10 look at Defense .ExhibitNo. 5. Do you recognize that document?
11 A.· It's my signature.
A. Yes, sir.
Q. All right. And what is that document?
\I;.:J
I \\ I
: ]
12
13
14
15
Q.
A.
Do you recognize the document?
It's a letter that I gave to Steve for purposes of
16 his re-election efforts.
17 Q. And what does it say with regard to his honesty and
.. 18 i ntegri ty?
19
20
21
A.
Q.
A.
Do you want me to read the letter?
Okay.
"This letter is in regard to your district attorney
-.----------2-2- teve-Keng-.----I-have-k-newn-ane-eeeas-iena-lly---'-Wor-k-ee---wi-t-h-Steve-
23 for over 15 years and know him to be a very competent, honest,
24 profession prosecutor that I'm proud to be associated with as a
25 neighboring district attorney. He has served the office well
82
1 duri ng the time he has held the off; ce as di stri ct attorney.
2 Yours truly, Charles Penick, Bastrop County Criminal DA."
3 Q. Now, when you wrote that, was that the truth.or was
4 it a lie?
;.. !; J
5
6
7
8
A.
Q.
A.
Q.
I guess it was the truth.
You wrote it, correct?
Yes, sir. And I assume that
I'm asking you to not guess, but when you wrote it
9 were you telling the truth or were you telling a lie?
10 A. Well, Steve was a friend of mine and I was doing this;
, ,11 to help him --
MR. OVERSTREET:. I object. That is not
(,·1', ..
12
13
14
responsive.
Q. (By Mr. Overstreet) My question is, when you wrote
I! 15 the letter were you telling the truth or were you telling a
16 1 i e?
17 THE COURT: It's sustained. Just answer the
18 question yes or no.
19
20
21
A.
Q.
A.
Yes.
(By Mr. Overstreet) Yes, what?
It was the truth.
22 -.----O And-i-n__tha-l-etier-__.y-Our_opj.nj..on__was.__that_-he_wa~n---
23 honest person?
24
25
A. I was doing this to help Steve get re-elected.
MR. OVERSTREET: Again, your Honor, it's not
83
1 responsive.
2 THE COURT: Mr. Penick, will you just answer his
3 question, please.
Q. (By Mr. Overstreet) - The letter speaks for itself,
but I want to hear what Mr. Penick has to say.
4
5
6
7
A.
A.
Well, the letter speaks for itself. Okay?
Well, at the time when he was in prosecution I felt
8 that way, but when he became a criminal defense lawyer_he
9 changed, he changed an awful lot.
10 Q. So he was honest when he was a prosecutor and when he
11 became a defense lawyer then he changed.
12 A. Well, the dealings that I had with him were-limited
:-1'$ -,
: Ii.: l
13 when he was a prosecutor. The dealings I had with him after he
14 became a criminal defense lawyer were not good.
16 wrote this letter?;-~ "j-\
I".J
15
17
18
19
20
21
Q.
A.
And so were you trying to fool the public when you
Probably, but what I was doing
MR. OVERSTREET: Objection, your Honor
(Talk and laughter from audience.)
MS. DETTMER: Your Honor, I object.
MR. OVERSTREET: It's been asked and answered.
-------- ----<C.2.L2 ----._----------.--T!lE-COUR::r..:.---lt--has.-been-.so-..-"'-.:i.:t..~.s-_O¥er-r-u).ed~-
23
24
Will both of you sit down one moment?
Let me make this very clear. I am trying to
25 give respect to this matter because it is very important to
84
1 this gentleman sitting ·hete at the table. If there is anymore
2 talk, you're out. Do you understand? This is a courtroom and
3 it will be respected. It's important to the State of Texas and
4 to Mr. Reed and respect will be given to this matter. - Another
5 outbreak and you're out.
8 you would try to fool the general public with- 1
;r't
; ",-.i
Iit~ ~ J
6
7
9
10
11 read
12
Q.
A.
A.
Go ahead, Mr. Overstreet.
(By Mr. Overstreet) Mr. Penick, if you admit that
That's not what I said.
MR. OVERSTREET: I request the court reporter to
May I add to that?
13 THE COURT: Just one minute, Mr. Penick. What
14 are you asking me to do?
15 MR. OVERSTREET: I request the court reporter to
16 read the previous question and the witness' answer.
17 THE COURT: Ma'am, are you able to do that for
18 us, please?
20 the public. when you wrote this letter?" Is that the question?.. i
.\
19
21
THE REPORTER: "And so were you trying to fool
THE COURT: Mr. Overstreet, she's trying to read
------------------2-2 -t-he-ques-t-1-Gn--te·-yeu--,-s--i-~.---I-f-yeu-w:jf-l,-rnak--e-sur-e---t-h-at--s-he-'--s-
23 got the right one.
24 Would you please repeat that, ma'am?
25 THE REPORTER: Question: "And so were you
·85
1 trying to fool the public when you wrote this letter?"
2
3 was doing
Answer: "Probably, but what ·1 .
"
; . ~
4
5
6
7 Q.
THE COURT: Is that the question you wanted?
MR. OVERSTREET: Yes.
THE COURT: Thank you very much.
(By Mr. Overstreet) Now, do you disagree with the
, j
r 1i i! i: ...1
8 . court reporter --
9 A. I was interrupted in my answer by an objection by
10 you. I didn't get to finish my answer.
11 Q. Let me ask you another question.
12 A. Well, can I --
13 THE REPORTER: Let me clear something up. You
14 asked me to read it arid then I was interrupted. So I feel like
15 I need to finish the answer I wasreading~ After his answer I
16 do have reporter's dashes, which means he was interrupted by
17 you.
18 MR. OVERSTREET: Judge, I'm going to object. I!
19 mean, the court reporter's job is to simply to sit and take,;.:.._~
>1I [
20 down everything that's said and done in the courtroom. AndI so',!
21 we would object to that statement. I mean, how could she --
.. 22- -well,-I-would--;j.ust-ob:j-6c-t-t-o-t-hat--8ct--ey-t-he--e-Du-r-t-r-eper-t-eF-.--- --
23 THE COURT: Let's move on. Do you have another
24 question, please?.J
25 MR. OVERSTREET: . Yes, I have a lot more
- 86
1 questions of Mr. Penick.
2 Q. (By Mr. Overstreet) Mr. Penick, at any point in time
r:
3 have you ever said that Mr. Keng gave you the information but
- 4 he -- and you told him you had enough information or enough
5 evidence to try the case?
6
7
A. About four years after the case was tried.
MR. OVERSTREET: That's not responsive and can
;":.'=.-j8 we assume that the answer is yes?
9
10 be yes?
THE COURT: Mr. Penick, would the answer to -that
11
12
A.
Q.
Yes.
(By Mr. Overstreet) Now, why would you make the
f.~ 1!-- I;-"·1
tJ13 statement, "1 have enough evidence to prosecute the case" if
14 ydu_.had already prosecuted the case?r: \, 1
I. I 15 A. I didn't say I had enough evidence to prosecute the
- 1
.)
16 case. I said I had enough evidence against Rodney Reed
17 already.
18 Q. I want to read to you a deposition that was taken in
" i
1:
19' August of 2003. Do you remember taking a deposition at that
20 time?
21 A. And what was that in reference to?
----.---------------.---------2-2-- -·-----Q·;·--S:j·r~--------------------------------~--------c--------------------·----------·------
23
24
25
A.
Q.
A.
What was that in reference to?
Okay. -It is in Charl es Peni ck versus Cox Newspaper?
Okay. I remember that, yes, sir.
1
2 reporter?
MR. OVERSTREET: May 1 approach the court
87
3
4
5 Q.
THE COURT: Yes, you may.
(Discussion off the record at the bench.)
(By Mr. Overstreet) All ri ght. Mr. Peni ck, 1 want
6 to show you two pages from a deposition taken on August 1st of
7 2003, Charles Penick, plaintiff, versus Cox Texas Newspaper
8 doing business as Smithville Times. Do you remember that
9 deposition?
10
11
A.
Q.
Yes, sir.
And 1 have had marked as Defendant's Exhibit No.6,
\ II •1·1
12 pages 212 and 213. Iwant to direct· you to line 14 in which
13 the question is: "Okay. He's the County Attorney for Lee
14 County, right?" And your answer is: "He was the DA over there
15 and he's now in private practice."
16 Line 18: "Did you have any conversation with
17 him before the Reed trial between the time Mr. Reed was
18 indicted and the time it went to trial· about a client of
19 Mr. Keng's who said she had seen Stacey Stites and Jimmy
20 Fennell together on the morning of Ms. Stites' murder?" And
21 your answer was "no."
.... . 22 A~ ..Jnat..~s._.corrnct., . .. : . _
23 Q. All right. Question: "You don't remember it or it
24 didn't happen?" And your answer is: "I don't. remember it
25 happening. 1 don't think it happened."·
88
1 Question: "Okay. And so you didn't t~ll him
2 that you had all, the evi dence you needed and you di dn' t want to
3 hear anything more ~bout the case?1I Answer: "I do kind of
4 remembering in passing Steve -- 1 remember making that -- 1
5 remember making that statement to Steve. II
6 A. That's correct. Four years after the trial.
·7 Q.' 'Now, did you say that in your deposition?
'. j-.
8
9
A.
Q.
No, sir.
Did you have an opportunity to say that in your
10 deposition?
But the truth of the matter is you had an opportunity
then to say that it was four years later?
A. 1 guess 1 had the opportunity.
A. That was not cleared up,no.
that was not cleared up.
That is ambiguous, but
11 didn't do it.
That was not cleared up, no.
Pardon me?
A.
Q.
Q.
11
12
13
14
15
16
17
i
l. ; !
18 mean, that's obvious that'l didn't do it, but it was four years
19 after,that.
20 Q. Now, from a common sense approach now that we have
21 established by your sworn testimony that you made the statement
... 22 tQ_._s.t_eY_R,J{e,ng_tb.at ~~l-.ha.Y_e __al.Lrhe__exidence__Lneeded"__:_::..__l..e~..s__
23 go back to my original question. Why would you say that if you
24 had already tried the case?
25" A. Because we had already tried the caSe. We had the
89
1 evidence of him -- his DNA in Stacey Stites.
2 Q. Why wouldn't you say, for example, hey,. that case has
3 been tried and it's over with?
4 A. Because I had been under questioning in that
5 deposition for about seven or eight hours. I mean, it was a
6 long time. And that caught me completely -- you know, I didn't
7 remember it at first until he started asking me questions about
8 it and then it made me remember my conversation with Steve out
9 at the law enforcement center.
10 Q. Now, when did you become certain that it was four.; v.
11 years after the trial?
12 A. During that question -- during that period during
: '.i
- !
if,
13 that deposition period. And I got to thinking about it and I
14 went back and he was representing Stacey Stites -- Amanda Sykes
15 during that period of time, and that's when it occurred,
16 sometime during that period of time.
17" Q. Did you become certain after the deposition or were
18 you certain before your sworn testimony?
19 A. I was certain before that -- during that deposition
20 that it did not occur before the trial .
21 Q. And had you ever said that before today?
...----- ... ---.--.··----2-2-- .....-.----A ·,-··----¥es-·,··-i·n--·-that-ot-her---eepos-i--t-i-on-;------·---·--·---·--·--------·----·------------·-- _co.
23
24
25
Q.
A.
Q.
Are you talking about the October deposition?
The one pertaining to this case, yes.
Now, are you sure that you made the determination
90
1 . about your firmness on four years after the trial before the2 deposition in August, or was it after the deposition in August3 and in preparation for the deposition in October that you went4 back and reviewed the records to become firm in your testimony5 that it was going to be.four years after the trial?6 A. Would you repeat the question and state what7 depositions you're talking about because I don't -- I don't get8 the depositions, the dates of the depositions, when nne was9 taken and when the other was taken .
11 ask another question. In preparation for your October12 deposition taken in 2003 involving the Rodney Reed case
.. i
.. !LJ
i.. ·.j· .i~.::
10
13
14
Q.
A.
Q.
Now, in preparation -- I'll restate the question or
Okay.
that I've shown you, did you talk to any member of15 the a~torney general's staff prior to giving that deposition?16
17
A.
Q.
Briefly.
As a result. of your conversations with the attorney
;.. ,
18 general's office, did you go back and pull files in the19 district clerk's or county clerk's office with cases in which20 Mr. Keng was the defense lawyer?
21 A. No. I got the dates of the docket calls of one case,-..--·----·------------22-- -t--ha-t--bei-ng-'Amanda ---Sykes-;---' .......-----.-----------.---------.------...---..--..------------
23
24
Q.
A.
All right. Where did you get that information?
I think I called the DA's office and they pulled it25 up on the computer, which was tied in with the district clerk's
91
1 office.
2 n. Is this a fair statement,. that· after your deposition·3 in August 2003 and prior to your deposition in October of 20034 you made some effort to go back and find cases in which you5 dealt with Steven Keng?
6 A. No, I knew what case it was. I went back to that7 case and found out what the dates were that he would have been8 over here because I remembered then, back in the first9 deposition, of the conversation that I had with Steve Keng and
10 it was over at .the law enforcement center when he was11 representing Amanda Sykes on a murder case where she had killed12 her husband.
13 n.. Is that the only time you visited with Mr. Keng14 regarding the Rodney Reed. case?
15
16
17
A.
n.
A.
Yes.
Could it have occurred at some other time?
I don't remember it occurring at some other time. I·1 18 don't think it would have occurred at some other time because
19 if it had occurred before he was tried I would have wanted to.'. j 20 know what that witness was going to say.
21 n. What if it occurred during the course of the trial?, ..__ ..__. .-22_ ---.--..----A~----_Same.,...t_h-i_Rg-.--We--had-'Gases~-~--or-wi-tness-es'-dur-;'-ng--the--'
23 trial that we were interviewing as the trial was going on.24 Missy was talking to witnesses throughout the course of that25 trial.
1 Q. And so is it your testi mony that Mr. Keng, .that you
92
2 wrote the letter for, is just lying when he says he told you3 about this information?
4
5
A.
Q.
That's correct.
Now, at any time prior to today, have tried to6 clarify the dates in a deposition or in a courtroom?
A. Other than those two depositions, that's the onlytime that I've --I guess I don't understand your question.
Q. Prior to your testimony today, are you saying thatyou made an attempt to clarify the statement that Steven Kengmade to you was made four years after the trial ended?
A. No, that hasn't chang~d. That's always been -- Imean, from the first deposition to the second deposition totoday, that's what happened.
Q. Now, if I give you your deposition of August 2003,your complete deposition, do you think you can find that inyour deposition?
A. What's that?
Q. That you told the person who was asking you thequestions that the information was provided four years afterthe date of the trial?
-...--.-----.-----.,-----22----------A-.--------y~u-_just----showed---rne----t-hat---por-t-'i-en--ef----'the--depos-i-t-'i-Qfl--and---- ---23 it doesn't contain it.
24
25
Q.
- A.
And so what does that mean?
That means that I didn't elaborate on it at the
93
1 time -- I mean, that was something that was totally --
2 totally -- you know, out of the blue. At first I didn't
3 remember it until he started talking about it and then I
4 remember that it w~s that conversation that I had with Keng out
5 at the law enforcement center.
.0.\
:
'.·'1.'.-;
6
7
8
Q.
A.
Q.
Well, did you ever attempt to tell them that?
No.
And so is> this a fair statement, it's not in
9 deposition?
10 A. That's correct. That statement is not in that
11 deposition., It's in the other deposition.
12 MS. DETTMER:, Okay. Your Honor, my only
r \I I\_l
~ - \-. t
I
13 question is that we clarify which deposition we're talking,
14 about by date because there's two. So when he says it wasn't'
15 in there and'I'm just asking for clarification.
16 THE COURT: Will you please do that?
17 Q. (By Mr. Overstreet) Is it a fair statement that
18 there is no indication on your part in the deposition of August
19 2003, that if a conversation took place if it was four years
20 after the trial ended?
21 A. And that's the deposition involving my lawsuit
-- --,---- -------------:-22 -~ga:i-nst----the -Sm:i-thv:i-l--:J-e--T-imes?------------- ---------,---------------- -------------------------------------
23
24
Q.
A.
Yes.
There is nothing -- what's in that deposition is what
25 you've shown me and what you've read.
1 -Q. And was the first time that you mentioned, either
94
2 pUblicly, by affidavit, or sworn testimony; that it was four3 years after the trial ended that Mr. Keng had a conversation4 with you was in your October 2003 deposition after you had a
< 5 chance to talk to the attorney general's office?,'. i
.J6 A. It was after I was told that that there was going--7 to be -- that they were going to depose me about this case that8 I went - - first of all, I went and asked Forrest if he had
12 been previously marked, on page 5, I'm going to ask you a13 question and see if you remember this.
9 overheard that conversation with Keng, and then I got the dates10 ,of when he would have been in court representing Amanda Sykes.! I, ,
I'
r,'lL-·..(.: J
]
11
14
15
16
Q.
A.
Now,in your deposition, in Defendant's 4 that has
MR. OVERSTREET: May I approach the witness?
THE COURT: Yes, you may.
Is that the deposition in this case or in the17 other--
18
19
20
21
Q.
A.
Q.
A.
Rodney Reed versus Director of Texas
All right, sir.
-- Defendant's 4
Okay.
.-..-----.c·-----------------22 ----------Q;-,----------page--5-,--l~-ne ---13-.----Quest-i-on-:----!!-Oi-d -you-r-ev~-ew--any--- -'23 materials before you came to this deposition here today?"24 Answer: "Uh-huh, I made a list of some things." Question:
-25 "Could you tell me what you reviewed?" Answer: "I --well, I
95
1 thought this pertained to a -- supposedly a conversation that-2 Steve Keng and I had . And I went back and got the DA's offi ce3 to pull updates of an arraignment, pre-trial, and jury of the4 case that I remember that Keng was representing -- the5 defendant was Amanda Sykes -- when this supposed -- when this6 affidavit that he supposedly gave. I haven't reviewed the7 affidavit. II
8 But is this the first time you mentioned that it9 was in it was after the trial had ended?
10 A. No, I mentioned that in the original deposition.11 Q. Okay. What original deposi ti on? -
12 A. I mean, I didn't spell that out, but when I was asked13 did I talk to Steve Keng before the trial~ I said no.14 Q. Now, you said you spelled it out in the original15 deposition?
16 A. I did not.
17 Q. You did not?
18 A. No. We've already gone over that. I did not.19 Q. Have you told anyone else about the conversation that20 you and Steve Keng had regardless of when you had it? Did you21 tell anybody about that conversation prior to being asked about
---------------------.,--22- --.:j-t--..:jfl-your----depos-i-t-i-eA~--------------------- ..------------------------------------------------ ---23
24
25
A.
Q.
A.
Which deposition?
Your deposition of August, 2003?
And that was being the deposition with the newspaper
1 or the deposition in this' case?
96
I, "2
3
Q.
A.
In the newspaper.
No, I had not talked to anybody about it. In fact~ ·r
.'j
"j, ,, -)
4 mean, th~t was something that I had forgotten until they
5 started, you know, asking me questions about the conversation,
6 which jogged my memory.
8 that Mr. Keng had provided some information was when you were
9 asked about it in your deposition of 2003 that oc6urredin
10 October in Rodney Reed versus Director?',I!i
'..' I
. "
; "}
\1l .-\',:,J
7
11
12
Q.
A.
Q.
So you-- so the first time you disclosed to anyone
Yes, sir.
And did you talk to the attorney general's office
.,j,
;, '
.-,
.;
13 today before you testified as a witness?
14 A. In what case - - testified as with a witness here
15 today?
16 Q. Yes .
17 A. I talked to them day before yesterday, yes; sir.
18 Q. And did you review any documents prior to your
19 testimony?
20 A. My deposition, yeah.
21 Q. Which one?
.. '_"_'__'''_' .22.. .__._ .._.__._...A~ .__.__Bnth.. __ _. ._ _. . .._. .__. ._ _._. . .__._. .. ._._._. .. __ .. __. .. . _ ..
23
24
Q.
A.
Did you review any other documents?
Well, this morning I asked Ester, the DA's secretary,
25 to pull up the docket sheets for when the cases were set for
97 -
1 Amanda Sykes and I reviewed those.
2 .Q. Now, just out of an abundance of caution, did you
3 have them look at any and all docket sheets or cases that
4 Mr. Keng was involved in from January of '98 forward, just to
5 determine if there was a possibility that he could have talked
6 to you about that affidavit that Martha Barnett gave?(It·.:
i7 A. No, I didn't because I'm sure that that was the case
8 that he was over here on when we tal ked about it, .and that was
9 the Amanda Sykes case.
10 Q. Did you make a notation at that time? When you had
11 the conversation with Mr. Keng?
12 A. I didn't think it was important. I thought Mr. Keng
13 was in gest, basically~
14 Q. Okay. You've convinced me that you didn't treat it
15 seriously, but my answer -- my question is this: Did you make
16 a notation of any kind, anywhere, at the time you received the
17 information?
18
19
20
21
A.
Q.
A.
Q.
About what he told me?
Yes, sir.
No.
And why not?
......... -- ... --_ ... -- ..-----22--·----·· ·-A-;··-----T-he..--case-was----over·,·-I--di dn't---th-ink---that~--there-was--'----------
23 anything to it, and I just -- Steve Keng just -- I don't know.
24 I just don't take him seriously -- okay -- or I didn't, and I
25 sti 11 don 't.
1
2 at this time.
3
4
MR. OVERSTREET: I'm going to pass the witness
THE COURT: Do you have any other questions?
MS. DETTMER: Yes.
98
5 REDIRECT EXAMINATION
6 QUESTIONS BY MS. DETTMER:
7 Q. Mr. Penick, I want to start'by going batk to your .
,L·
8 August 2003 deposition. Was this the first time that you had9 been asked about your conversation with Steven Keng?
11 involving my lawsuit against Cox Newspapers, isn't it?
A. No. The August deposition is the deposition1
'I,"j
.,..... \.I ..
i.. '.·'-.1
10
12
13
Q.
A.
Yes.
Yes, that's the -- I mean, I didn't have any14 recollection of it until the attorney that was asking me15 questions started, you know, telling me things that, you know,16 were said, and that refreshed my memory.
17 Q. You testified before this Court that when Mr. Keng
i (: !,
18 told you what he did when he said, you know, I have a client or19 someone who may know something about Rodney Reed, you testified20 that you thought he was in gest and you didn't take it21 seriously, correct?
···········.··.·----·-··22-- -_. ·······-·--A·.-- .. ·--·i-hat--'·s---cor-rect-;--··-----· ..-- ------- ..--- - ------ .._ _.-.-.- --..-.- - -_.i \'I ~• I 23
24
Q.
A.
So it wasn't something that stood out in your mind?No .. If he had come to me at any other time other
25 than in the midst of a hectic docket call and said, I know·some
99
1 information that you need to know about, about this case, I
2 would have directed him to law enforcement or to these folks,
3 which I guess he knew enough to go th~re.
4 Q. Okay. So in the time that passed between you having
5 that conversation with 'Steven Keng, which because of the
6 context and the circumstances of the conversation didn't strike
7 you serious, until the time you gave the deposition in August
8 of 2003, a lot had happened, had it not? You had had many
9 conversations with many people, correct?
Q. In general -- I mean, just everyday conversation,
talking to different lawyers and different people, you had many
conversations; is that right?
. 'L·.:
r r- ..., .', I
LJ
10
11
12
13
14
15
A.
A.
Ask that again.
I'm sorry. Ask the question a~ain.
THE COURT: I need to ask you to do me a favor.
16 You need to slow down a little bit.
21 the time you had your conversation with Steven Keng and the
··_-_······_·_·-2:2-·--t-i-me·-that~-you-gave--thi-s-·deposi-ti-on--i-n..-August-of--2003-?··..·__·_ .. ·_·__·__ ··.... · --_.
i .L
r :I i
I 'l. __
17
18
19
20
23
24
Q.
A.
Q.
A.
Q.
MS. DETTMER: I'm sorry, your Honor.
(By Ms. Dettmer) I'll rephrase my question.
Okay.
Many, many months, if not a year had passed between
That's correct, right.
Okay. So when they started asking you about this you
25 didn't recollect it right away, correct?
3 they did ask you were you clear about the fact that this, ,, '
A.
Q.
100
No.
Okay. But I want to.clear up for the record, when·
4 conversation had not taken place prior to or during trial?
5
6
A.
Q.
Absolutely.
And you made this clear in your August 2003
: :: . ~
.'7 deposition, did you not?
8
9
A.
Q.
That's correct.
And even though you didn't recall necessarily
'I, ,, .. i1, ••..... 1
c:,I', '\I'__ ',J
10 specifically when they began asking you questions exactly the
11 date that it happened, you knew for a fact that it did not
12 happen prior to or during trial?
13
14
A.
Q.
Correct.
Following that deposition and following them bringing,--",\
:1lJ 15 up that conversation did you begin to think about the
16 conversation and wonder when it had taken place, and tried to
17 put a more specific time frame on it?
••• 1
18 A. No, I remembered when it took place. I remembered
, ;
"
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\ :I ;
19 the time frame when it took place, and that was when he was
20 representing Amanda Sykes. And I didn't think anything about
21 it until I was notified by you-all that they were going to take
"'22-"'-my---depos-i-t-i-on;----And"at-that-ti-rne--I-'went·-and-'''pul-l-ed- 'up--the-"-
23 various dates of the docket.
24 I knew that it was long after we had tried
25 Rodney Reed, but I went and pulled up the various docket
101
· 1 settings that he would have been over here in order to prepare
2 for that deposition. And sometimes- between January of '02 and
3 August and October of '02 is when this conversation took place.
4 I've seen the affidavit since then and he signed
~ ,.5 it in April 01 '02. So I assume that it was before that so it
6 ~ould have been between January and April of '02.
7 Q. Okay. Now, I'm going to ask you _this: Whenyou
- i
8 pulled the Amanda Sykes file, was that before you talked to
9 someone in the attorney general's office --
)':..-.- i
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J
10
11
12
A.
_Q.
A.
No.
-- in regard to your deposition?
No, it was afterwards. It was not at the direction
13 of anybody in the AG's bffice; it was for my own benefit.
14 Q. It was after you were notified of the deposition?
15 A. That's correct.
16 Q. I want to go back to talking about the letter that
17 you wrote on behalf of Mr. Keng. What was the date on that
18 1etter?
19 A. It was in 1996. I don't remember what the date was,
20 but it was before the election. February of 1996.
21 Q. And at the time you wrote that letter was Mr. Keng
.. -----------------------2-2---st:n-l--the---Count-y--Attor:ney.---------------·------------.------------------------ ----'--------------------- ---
23 A. I believe he was. I believe he was in a contested
24 election for re-election.
25 Q. And you testified earlier that your opinion of
102
1 Mr. Keng while he was a prosecutor was reflected in that
2 letter, correct?
3
4
A.
Q.
That's correct.
And you testified that your opinion changed after you
5 wrote that letter, correct?
6 A. Since I've been dealing with him as a criminal
7 defense lawyer he's changed completely.
8 Q. So your opinion when you wrote that letter and your
9 opinion sitting here today are two different things?
12 letter were you attempting to fool the public and you said
13 "probably," you said that you were interrupted. Would you like·
14 to finish your reply?
Ii,.",r I,..:)
10
11
15
A.
Q.
A.
Very much two different things.
Earlie~ when you were asked if when you wrote that
I would. If I had known what I know now about Steve
16 Keng I would have never written that letter.
; '",:: .,:
17
18
19
MS. DETTMER: I'll pass the witness.
THE COURT: Mr. Overstreet?
MR'. OVERSTREET: I have just a few questions.
20 RECROSS EXAMINATION
21 QUESTIONS BY MR. OVERSTREET:
.-- ...... --- -------22-- -.-.----.-O -e- --.---Rega r:ding--the--t-i-m:i-og ...-of-some--.of-.-your.---act-ioo,---:Lf--.the-- .---. -._.
23 recoid reflects that Martha Barnett gave her affidavit on
24 March 27th of 2002, when do you recall that you first ever
25 heard her name, after that regarding the affidavit?
; ,
(
(-;
",~,,
103
1 A. Would you repeat that? I didn't get - -
2 Q. If the record reflects that Martha Barnett gave her
3 affidavit in March of 2002. when do you say that you first
4· learned of this affidavit?
5 A. I think the first time I saw that afttdavt t was day
6 before yesterday.
t .i\ '
7, Q. No. But my question was. when did you first learn
8 about it. not see it?
9 A. I think it was day before'yesterday. I can't·
••\ '
1-':'I \Ii
10 remember ever -- I thought the whole thing was an affidavit
11 that Steve Keng gave and I don't remember -- I don't remember
12 ever seeing an affidavit by Martha Barnett before day before,
13 yesterday.
14 Q. Isn't it
15 stories printed by
16 affidavit given by
17 and was one of the
18 lawsuit?
true that one of the allegations or the
Smithville's newspaper involved this
Martha Barnett. which you took offense to.
reasons. among others. that you filed a
19 A. I don't remember reading an affidavit by Martha
20 Barnett in that newspaper article.
21 Q. I'm not asking if you read it. I'm asking you. you
··----·22-· --·-f-;--l-ed----·-t-he -Fawsut ·t·.,,-.- ' '-----.--.. -..-.---- ~. . -.-- ----- -..-..-.. ~ .._---_..-- .-- "-'-- -.--.~- .._..- ,--_ -.-- -..- ------ --." .._"'-'--"'-"-'-'-'-"---'-"'~---"-'---'-'- ..-'--- .--
23
24
25
A.
Q.
A.
Yes. sir.
-- together with your lawyers.
Yes. sir.
1 a.
104
And isn't it true that one of the reasons that you
2 filed the lawsuit was because they claimed that you had heard
3 about the Martha Barnett affidavit and suppressed it?
4 A. I would have to review those newspaper articles. I
5 mean, those newspapers articles ran from like August to
6 December and
7
8 the question.
MR. OVERSTREET: . I obj ect . He's not answeri ng
9
10
a. (By Mr. Overstreet) Yes, I understand that.
MR. OVERSTREET: Your Honor, it is crucial about
C'j'0" ,~~. :I '', I
11 this Martha Barnett affidavit and when Mr. Penick found out
12 about it, not that he read it or had a copy. I think the
13 record reflects that it was one of the allegations in the
14 newspaper which led to the basis of the lawsuit, which is
15 contradictory of his testimony that he only knew about it in
16 2003.
17 MS. DETTMER: If I may, your Honor, I believe
,-. :
18 that the witness has stated that he doesn't recollect and he
19 won't be able to unless he reviews those files. So I guess
20 before he can answer that question I would ask that he would be
21 permitted to review whatever files he needs to in order to
..... - ·········:22· ~··ref-r-esh -hf-s-memorv-on ··-that··;·········_······················· .. - .
23 THE COURT: I think we're talking about
24 newspapers, not files.
25 MR. OVERSTREET: I agree that he s~id
l '
105
1 newspapers, but what I was going to recommend that he review.·
I 2 the petition itsel f.i
! :3 THE COURT: And I'm going to tell you I think
4 that -- from what my impression is thus far, he's not
5 understanding the question. So would you re ask it and let's
6 see what he says. And if it's necessary, then I'll ask him to
7 review it if that's possible.
8
9
MR. OVERSTREET: I'm sorry?
THE COURT: I don't think he understood your
10 last question. Can you say it again and perhaps break it downiv.
11 into parts. And if he doesn't know, then we'll go from there.
12 Thank you.
13 Q. (By Mr. Overstreet) Mr. Penick, was one of the
, :~. . j
. 14 reasons you sued the newspaper because they reported that you
15 had knowledge of this Martha Barnett affidavit or information
. 16 and that you suppressed it?
17 A. If that's inthe newspaper article along with all .the
18 other allegations 'and-- I mean, you can't just take one part
19 of that article out and say that's the reason I filed the
20 lawsuit. It's because of all of the articles and everything
21 that was alleged in articles. I don't remember reading about
··-------··.. ·--·-----2-2- --an---aff-i-davi-t--that--Mar-tha·--Barnet-t--gavei-n---the--Aewspaper--ar-t-i-ele-;~---·
23 Q. I'll rephrase it. Was one of the reasons -- and
24 there may have been multiple reasons for the lawsuit -- but was
25 one of the reasons an allegation that you suppressed
106
1 information regarding Martha Barnett?
2 MS. DETTMER: Your Honor, I'm going to object as
;,
3 to asked and answered. He has repeatedly stated that he does
4 not recoll ect an affi davi t from Martha Barnett; therefore, -he
5 doesn't remember whether that was one of the reasons why he
6 filed a lawsuit. And he stated that.
7 THE COURT: I think I'm quite capable of
8 remembering what I heard. Thank you. Sustained.
9 MR. OVERSTREET: Your Honor, my second question
10 really was different. It had nothing to do with the affidavit.
11 It just said'Martha Barnett. I'm not asking Mr. Pehick if he
12 read the affidavit or if he knew the affidavit existed. I'm
13 asking him, was one of the many reasons that he sued the
14 newspaper because the newspapers accused him of suppressing
15 information regarding Martha-Barnett.
16 THE COURT: And I believe he's answered that and
17 I sustained the objection. Let's move on.I i !(-: . 18 MR. OVERSTREET: Then I'd request during the
!--1i Ii" .
t· \
19 noon hour that Mr. Penick be allowed to go get the information
20 so that we can determine, conclusively from the record, whether
21 or not that was one of the reasons he sued the newspaper.
---- ---------22-- ---------------------------- -- -T-HE---GGUR1"-:------If---i -t---s-t-at€d---in--hi-s-pet-i-t-i-on-.--i-s-------- ---- -
23 that what you're saying?
24
25
MR. OVERSTREET: I didn't hear you.
-- THE COURT: It it's stated in his petition, is
107
1 that what you're saying?
3 the basis of the lawsuit., .L <
2
4
MR. OVERSTREET: Yes, one of the allegations for
THE COURT: That's fair enough. I guess he can
5 review any document.
6 You know what, we need to take a break for
!: -j
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r·· '
III. I
( .... ,.\. I" ':1L.·..
7 lunch.' And I think this would be as good a time as any. The
8 bad news is, we're going to come back at 1:30. So.you're only
9 going to have about an hour and ten minutes. Let's come back
10 at about 1:30. We'll see you then.
11 Thank you very much. I need all the exhibits
12 that have been admitted to be given to the court reporter ..
13 (Luncheon Recess.)
14
15
16
17
18
19
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21
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1..I
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108II '
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
3 COUNTY OF BASTROP )
(
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11
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4 I, Carolee Murray, Official Court Reporter in and for the5 335th District Court of Bastrop County, State of Texas, do6 hereby certify that the above and foregoing contains a true and7 correct transcription of all portions of evidence and other8 proceedings requested in writing by counsel for the parties to
..9 be included in this volume of the Reporter's Record, in the
10 above-styled and numbered cause, all of which occurred in open11 court or in chambers and were reported by me.12 I further certify that this Reporter's Record of the13 proceedings truly and correctly reflects the exhibits, if any,14 admitted by the respective parties.'
15 I further certify that the total cost for the prepar~tion
16 of thi s Reporter's Record is $ 2,f41, Sf) and was pai d by17 Bastrop County for Indigent Applicant .
. !! 18
19
WITNESS MY OFFICIAL HAND this the 17th day of April, 2006.
20
21
.... _ 22..- .
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25
~i:u~SR1938Expiration Date: 12/31/2006
..._.--Of..f.:i..cial--Cou.r.t--Repor..t ..er.. -- ..·.-.- ..335th District CourtBastrop County, Texas282 Kaanapali LaneBastrop, Texas 78602-5530TELE: (512) 581-4236.or (512) 321-2699FAX: (512) 581-7139