VOIR DIRE PROCEEDINGS
P R O C E E D I N G S
(Open Court, Defendant Present)
THE COURT: All right. This is Cause No. 1338521, the State of Texas versus William Thomas
Is the State ready?
MS. BELL: Yes, ma’am.
MR. GRAHAM: Defense is ready, Judge.
THE COURT: All right. Any pretrial motions by the State? I’m sorry, Hannah. I’m looking at Zane.
MS. BELL: That’s okay.
THE COURT: Any pretrial motions?
MS. BELL: No, ma’am.
THE COURT: Defense?
MR. GRAHAM: We’ll have a motion in limine when we start on Monday.
THE COURT: All right. And what is that on?
MR. GRAHAM: It’s relating to — In the incident report details and the 911 call, also in the offense report, there is mention of a Haltom City ODO.
ODO stands for off-duty officer.
THE COURT: Oh.
MR. GRAHAM: The interactions that are described say that Mr. Vaughn is, quote, fighting with him.
THE COURT: Uh-huh.
MR. CLAYTON: And I think the State would agree that we can’t locate that person. All other witnesses are accounted for. The officers who arrived.
There was a Cordrey Tolliver. We tried using that name with Haltom City. They said they’ve never had an officer by that name. And then also the passenger in the vehicle was a female. And same thing.
THE COURT: So we’re gonna — You’re asking to limine out the suggestion of — or any kind of statement about fighting with the defendant because the person is –
MR. GRAHAM: Is an unknown.
THE COURT: Yeah. Mr. Reid. We can argue this on Monday, but, I mean, if it’s agreed or if y’all can agree to it prior to then… You may respond.
MR. REID: Yes, Your Honor. I think the State oppose a motion in limine in regards to the off-duty officer. Although he’s not here to provide
testimony, I do believe it’s relevant information that the officers who do testify will have personal knowledge of. What they were — or the witnesses that we plan to call will have seen this individual. I do think it’s relevant because it may go to the mental state of the defendant at the time that he was arrested. I can prepare some case law and further argument on Monday if you’d like to wait to rule.
THE COURT: No. I’m gonna wait to rule, but… So this person, we know his name and — but you can’t find him and get him?
MR. REID: We do not know his name. I’ve contacted the arresting officer and asked him who that individual is that’s listed in the offense report.
THE COURT: Uh-huh.
MR. REID: And since the arrest has been years ago, he says he is unaware. And they have checked for that person, but they cannot — They don’t know who he is.
THE COURT: And that other police officer saw this?
MR. REID: The witnesses involved in the car accident in this case will, I think, be able to provide testimony about who that individual was.
THE COURT: I mean, because they saw it or because —
MR. REID: I believe so. That they saw it.
THE COURT: Well, we’ll find out Monday morning. You’ll be able to talk to ’em more and stuff like that. Okay. We’ll get started. Let’s bring in the jury, please.
THE BAILIFF: Judge, have we arraigned the defendant?
THE COURT: Oh, well, I guess we could do that. All right. Mr. Vaughn, William Thomas Vaughn III, you have been charged with driving while intoxicated, misdemeanor rep. And we’ll read the information with that paragraph on it. It’s a Class A misdemeanor. The range of punishment is up to a year and/or a fine up to $4,000. Do you understand that, sir? Are you Mr. Vaughn
THE DEFENDANT: Yes, I am.
THE COURT: You understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. If you’ll read the information, please. MR. REID: Judge, would you like me to pause and then read the enhancement or read the entire thing?
THE COURT: Well, either way. Doesn’t matter. (Information read)
THE COURT: “In the name and by the authority of the State of Texas comes now the undersigned assistant district attorney of Tarrant County, Texas, in behalf of the State of Texas, and presents in and to the County Criminal Court No. 7 of Tarrant County, Texas, that William Thomas Vaughn III, hereinafter called defendant, in the county of Tarrant and state aforesaid, on or about the 18th day of August 2013, did then and there operate a motor vehicle in a public place while the said defendant was intoxicated.” “Enhancement Paragraph Number One. And it is further presented in and to said court that prior to the commission of the aforesaid offense by the said defendant on the 15th day of August 1994, in County Criminal Court No. 10 of Tarrant County, Texas, in Cause No. 0456809 the said defendant was convicted of the
offense of driving while intoxicated and the said conviction became final prior to the commission of the aforesaid offense. Against the peace and dignity of the State.”
THE COURT: Thank you. Mr. Vaughn, to the offense of driving while intoxicated, misdemeanor rep, do you plead guilty or not guilty?
THE DEFENDANT: Not guilty.
THE COURT: And to the enhancement charge of the prior DWI out of Criminal Court No. 10, do you plead true or not true?
THE DEFENDANT: Not true.
THE COURT: All right. You may be seated. Okay. We can bring ’em in.
(Prospective jury panel seated.)
THE COURT: All right. You may be seated. All right. Good morning, ladies and gentlemen. I’m Judge Hardy. I’m the presiding judge of this court. I’m going to introduce to you the attorneys in front of, but first of all I need you to raise your right and be sworn as a member of the jury panel.
(Prospective Jury Panel Sworn)
THE COURT: All right. Thank you. I want to introduce the attorneys to you. You see two tables in front of you. And by the way, Mary Ann Clifton is my court reporter. The two tables in front of you, the first one is seated the two assistant district attorneys that are currently assigned to my court. They come in and they go out, you know, so we can get — they can get used to all the judges. They work for the district attorney’s office of Tarrant County, and their client is the State of Texas. The lead counsel is Hannah Bell.
MS. BELL: Morning.
THE COURT: And she is assisted by Zane Reid.
MR. REID: Morning everyone.
THE COURT: The second table are the defendant, the defense attorneys. The lead attorney is Clay Graham.
MR. GRAHAM: Morning.
THE COURT: And he is assisted today by Catherine Owens.
MS. OWENS: Good morning.
THE COURT: And I want to introduce the defendant. His name is William Thomas Vaughn.
THE DEFENDANT: Morning.
THE COURT: All right. Do any of you know any of us, had any dealings with these attorneys or Mr. Vaughn or anything? Okay. Good. Mr. Vaughn is called the defendant just because it’s an easier way of saying he’s a citizen accused. He’s not the citizen guilty. He’s assumed innocent — presumed innocent. But he is gonna be called the defendant just because it’s easier. That’s not any indication of guilt. He is accused and charged with committing the offense of driving while intoxicated. So this particular trial will be that subject matter of driving while intoxicated. Now, I’d asked you if any of you know any of us. And I’m also gonna ask you this. If you have a phone, which I do up here, but if you have a phone on you or beeper or anything, just make sure, if you haven’t already, that it’s already turned off and the volume’s down and off. Go ahead and do that while I’m talking. This trial, like all criminal trials in this state and all of the states of the United States, goes in two very distinct phases. The first phase of a criminal trial is where the judge or the jury — in this case the jury– decides whether the defendant is guilty
or not guilty. Obviously that’s the most important part. The second part, if the defendant is found guilty, is punishment. And in that case the defendant is entitled to select whether the judge or the jury assesses punishment. And in this case today the Judge will assess punishment And, again, only if there is a verdict of guilty that’s returned by the jury. And there’s 16 of y’all, and out of this we’re going to select six of you. And I’m gonna explain it to you. There’s a reason we don’t see this on television. It’s not very dramatic. It’s very important to get a good jury and one that’s gonna be fair to everybody, but, it’s — you know, it can be tedious. But we just don’t go on and on about it. They have 30 minutes to each side. They’re gonna ask you some questions in just a minute. But I’m gonna give you some information just so you’ll sort of know where we’re going and maybe that we don’t have to hear it again and again. The — Some of your original juror members have already been eliminated downstairs because of what we call exemptions. Some people can choose not to take the exemption. It could be age, it could be having children at home, or somebody you have to care
for or things like that that are listed on the back of what used to be a little bitty postcard and now you probably got a letter of two or three pages. But that’s the first level of elimination of a jury panel. Okay? So what we’re gonna do today is go to the next level of elimination. This is not a deal where we say we like him, we like her, we like him, him. You know, it’s not that kind of deal. We go in numerical order. So where is my little jury sheet here? Right here. We all got one of these. It’s got your name on it. And Juror Number 1 is Mr. Gleason. And Mr. Tatum you’re Number 8, and Number 9 is Mr. Stephens, and Mr. Ratner, you are Number 16. But that doesn’t mean y’all are safe back there. Because we — I mean, don’t be sitting there yawning because we oftentimes go back there. But in numerical it’s the first six people that have not been eliminated. And I’m gonna tell you what this elimination means, but let’s back up and talk about what we’re doing today. The process of voir dire is one of selection of a jury by elimination. The attorneys are gonna ask you a lot of questions. They’re not meant to pry into your personal life or the personal lives of your friends, but they might, and if they do so, and you
don’t wanna answer in front of your new 15 best friends, then you need to tell us. And that way when we’re finished, when we do our challenges, they’ll be outside the presence of the jury, and you can also come in and tell us the story that you wanna tell us. It’ll just be amongst us and on record, but it won’t be in front of everybody, if you have a problem with that. But we won’t know. We won’t know if it’s a sensitive subject unless you let us know. So be sure and say that. You’re not gonna be in any trouble or anything like that. These questions are aimed solely at seeing if you can be a fair juror in this case. It doesn’t mean we only want fair people. Of course, we’re gonna make the assumption here that everybody’s a fair person. But when it comes to something like the Cowboys playing the Steelers, you might be not exactly a fair person. You might be swayed on one side or the other. So everybody’s fair. It just that in this particular case, with this particular set of facts, with this particular offense you might have some problems in being fair. So any bias or prejudice that you may have against the people involved, whether it’s the defendant, the police officers, the witnesses, whatever, any bias or prejudice you may have about the law will naturally
prevent you from following your oath as a juror on the jury panel. So it’s very, very important to be blunt and to be truthful. Because it’s not wrong if you have a bias or prejudice against police officers, for instance. It’s not wrong if you have a bias or prejudice against the law as it stands now. You might think it’s way to strict and you might think it’s way too lenient. And that’s okay. The main thing is – I mean, even though some of us — Maybe sometimes it’s the whole panel and sometimes it’s at least — more likely than not it’s half of the panel — has some kind of experience in the past with DWI, whether it’s something — somebody they know or something that happened to them or they had a DWI or whatever. And that’s not gonna prevent you from being on the panel, because you know Mr. Vaughn had absolutely nothing to do with that. Yes. Mr. Vaughn. I knew your middle name was almost like a last name, so I thought I said it wrong. So Mr. Vaughn would have absolutely nothing to do with that. You know? If he had caused serious bodily injury or anything like that in the DWI, we wouldn’t even be in this court. So we know that he had nothing to do with that and he is presumed innocent. So you can set those experiences aside and follow the
law. That’s real important. But if you absolutely think anybody that’s accused of anything is automatically guilty, that’s a problem. Or automatically not guilty, or anything that a police officer or anybody says is the truth and totally 100 percent credible, then that might be a problem. Because they’re like everybody else. Some of ’em are and some of ’em aren’t. You’ll get it as we get into it. Okay? The second — The next level of elimination is that each side — and I’m gonna call ’em sides here — have three strikes. Just like baseball. And they can take ’em for any — any reason at all. And they may strike — Let’s say they strike number one but not number two or three or number four and strike number five. So those people are out of the panel. And we still — We start numerically with you, if nobody has stricken or struck you, and go further. But they only have three on each side, so that’s gonna leave ten on the panel. The final level of eliminating a juror from the panel is called a challenge for cause. And this is a variety of reasons. One is what I referred to earlier. If you absolutely 100 percent think somebody’s guilty or think, you know, somebody’s terrible or somebody’s believable or unbelievable or whatever, no
matter what you hear, then that’s probably going to get you a challenge for cause. But a lot of times it’s this. An attorney will come up ask some questions. And I will say that I try to pay attention to all the questions and things like that, but there’s sometimes when I don’t quite understand the question myself or I don’t quite get what they’re getting to. And because I’m a lawyer and a judge, I’ve heard a lot. You haven’t. If you’re a med tech, if you’re a doctor, if you’re in software and stuff like that and you started talking to me about that, I would be totally lost. Okay? So it’s the same thing. You’re gonna be a little lost at first. Maybe even at the end you’re still a little lost, but at the end of the trial you’ll get it. But you may have answered something absolutely no or yes, absolutely yes, I agree with that. And then as it goes down — they’ll ask Juror 3, Juror 4, Juror 5, Juror 6 and go on down the row, then you realize — or they change the question just a little bit enough to make you realize that that’s not really what they were asking in the first place. Or as you get through it you think, oh, okay, yeah, that’s true. I hadn’t thought about it that way, and I wanna change my answer. When you’re drawn back in here, if there’s a challenge, or if it’s just something we wanna clarify,
and you change your answer, that’s fine. You know, if you didn’t understand it, or whatever, that is absolutely fine. Don’t even be embarrassed to do that. If you wanna stick by your answer no matter what, stick by your answer no matter what. Okay. The amount of these challenges of cause — all of ’em. I mean, there’s no three strikes, 8 three challenges for cause. There’s an unlimited amount of challenges for cause. We’re hoping we can get a panel of six on this. We usually do. If you’re selected to serve as a member, we’ll be out of here by twelve, and we will start the trial on Monday morning. If you have nonrefundable tickets to Tahiti, I think that’s something we should know before you’re selected on a jury. If you are scheduled for surgery, that’s something we should know. If you have to work and it’s real important — I think everybody has to work and it’s real important. So that’s really not an excuse. But if it’s something that hits that level, then please let us know. You’d be surprised how — I bet there’s been three or four times we’ve picked a jury and one of the jury members tells me that after everybody’s gone. And, you know, it’s like I can’t do anything about it at this point. Okay? So be sure and tell one of the attorneys that or raise your
hand and tell me that before, you know, y’all step out the door. When we’re finished with this you’ll step outside the double doors and wait to see if any of y’all are called back in. Run down to the restroom or get water, or whatever, you want to. Now, I’m gonna quit here in just a minute. The function of the jury is to decide what the facts are. That sounds a little weird, but it’s true. You decide what the facts are. And in doing that you weigh the credibility, the imbalance of what they had to say, of each of the witnesses, any of the evidence that you hear. So if we all agreed what the facts were, I bet we wouldn’t be in trial today. Right? Now, interestingly, I know as much about the facts of this case right now as you do. And that’s the way it’s supposed to be for the judiciary. I don’t know anything about the facts. I haven’t read anything. I don’t know anything. The attorneys don’t talk to me about it, unless they’re both together, and then I’d be hearing both sides. But I don’t know anything about it. I don’t know if we have one witness or six witnesses. But I do know on Monday we’ll finish the trial, because we normally do. If I’m wrong and somebody can’t go late, or whatever, then we’ll try it more on Tuesday.
So that’s a possibility. It’s a distinct possibility, it’s a very slight possibility, but it’s still there. So think about Tuesday as well when you’re talking about what you have to do. So the jury determines what the facts are. My job is to determine the law. When there are objections and so forth, I’m kind of like a referee and I keep things going and follow criminal procedure and so forth and so on. But your job is the most important. And that’s to determine what the facts really are. I will rule on the admissibility of evidence. Let’s say, like you see on TV, somebody makes an objection. It’s hearsay. And let’s say that I agree. I’ll sustain the objection if I agree to it. If I don’t think it’s hearsay — because there are exceptions to hearsay. I mean… Boring. There are exceptions to hearsay. — I will overrule the objection. So I am trying to follow the law as I understand it and as I read it and so forth. I — If I sustain one attorney, every single one of his or her objections and overrule every single one of his or her objections over here, that does not mean I’m trying to subliminally give you an idea of how I would go or what I would say or I don’t like one side or I don’t like the attorney or I don’t like their
client. It does not mean that at all. Okay? It doesn’t have anything to do with it. Sometimes we might have argument of counsel over an objection. And that’s the sort of thing that the jury leaves the court and they go back into the jury room for. There are certain things that a jury cannot be present for, and that’s one of them. So don’t concern yourself. Just figure that you got an extra break that we don’t have. And I’ll try to break at least once every hour, but if you need a break before then, just raise your hand and say you want a break. I am not against breaks. All right. Here’s very quickly a few general principles of law that you need to understand. The first is called the burden of proof. That means that — In a criminal case the State always has the burden of proof. It never shifts over to a defendant. The State has to prove each and every element of the offense of driving while intoxicated to you. Each and every one of ’em. But the burden of proof — Let’s start out and say it’s a dog bite case. Your neighbor’s dog came over and bit you on the leg. You are taking this — this neighbor to court. And you must show by what’s called a preponderance of the evidence,
percent to 49 percent, at least, to win. You have the burden of proof to show by the evidence that that dog came over to your yard, bit you, whatever the elements are, and these are your medical expenses and you want that money. Okay? That’s your case sort of. And you have the burden of proof of showing that. Of course, they can say, well, you’ve got a big hole in your fence and you don’t keep your fence right and you’re out there with a slab of T-bone on your leg and that’s why. You know, so it kind of shifts back and forth. But whoever wins, they win it by a hair. Just like the scales of justice. By a hair. Now, if you’re trying to put somebody in a mental facility or you’re trying to take somebody’s child away from them and terminate their parental rights, it’s a higher burden of proof. Wouldn’t it be? It’s a higher burden. It’s clear and convincing evidence. It’s not a feather more. It’s clear and convincing evidence to do something that serious. But in a criminal case it’s even higher because it affects somebody’s liberty, or could. I mean, even if they’re placed on probation, it affects their liberty in a way. But it is beyond a reasonable doubt in a criminal case. You know what reasonable means and you know what the word doubt means. And if
you have a reasonable doubt as to the guilt of the defendant, you have to return a verdict of not guilty. If you don’t have a reasonable doubt, then you return a verdict of guilt. But that’s what beyond a reasonable doubt means. Okay? And there’s all kinds of levels. There is a level of proof to pull over somebody. It’s kind of — It’s the lowest level, but it’s called reasonable suspicion. You might hear about that. And then they pull over somebody, they talk to ’em, they test ’em, whatever they do and whatever crime there is — and like I said, I don’t know anything about this case — they have to have what’s called probable cause to arrest ’em. And there are certain things that are outlined in case law and so forth that say what probable cause is. So then you go to this point and it jumps up quite a bit. You have to show beyond a reasonable doubt that the defendant is guilty. Okay. So that’s kind of your law lesson 101. You can go home and impress everyone with this new knowledge that’s so riveting. But it’s important today. Okay? It’s important. The defendant, Mr. Vaughn, in this criminal case is not required to prove himself innocent. He is presumed to be innocent. All of us are presumed to be innocent if we’re accused of any offense. If he
does not choose to testify, you may not hold that against him in any way. You can’t even talk about it, you can’t allude to it, anything like that when you’re back in the jury room to deliberate on a verdict. Because that absolutely is a nonissue. Okay? Now, I will have the district attorney read from this official court file. And they’ll read from what is called the information. It is merely a means that a case is filed in all of the states of the United States. It is not an indication of guilt whatsoever. The fact that he’s here is not an indication of guilt whatsoever. All right. The — Again, going back to the reasonable doubt, the point I wanna make on that is this is not Perry Mason. Somebody’s not gonna stand up in the courtroom and confess. And this is not beyond a shadow of a doubt, and it’s not beyond all possible doubt. It’s a doubt that is reasonable. So there’s a difference there. Okay? Not all possible doubt. At the end of the trial I’m gonna read you the Court’s charge which will contain this again. So — basically. Not quite as intense as I’m giving it to you now. The defendant in this case today, the defense attorneys, as well as the prosecutors and the State of Texas all — our whole system of justice
all require that a fair jury be chosen here today. One without bias or prejudice, one that’s free of opinion as to the guilt or innocence of the defendant. A fair jury is one not having heard any of the evidence is not committed to either side. You cannot be committed to either side at this point. A fair juror is one that is impartial to both sides and can and will follow the law. Now, the DWI law is defined in the Penal Code. And, of course, remember, it’s written by lots of lawyers, and non-lawyers as well, and it’s kind of tedious sometimes, but it contains one word three times. And that one word is “or.” So the DWI law contains lots of words, and the one word that’s key is intoxicated. And intoxicated is defined by that little word called “or.” One way or this way or this way. Now, this way could be your favorite way. You like that. All by alcohol. It’s not by any other way — any other means. They have to prove it by alcohol in this case. But you may say I really have to have that before I can — before I can find a person’s DWI. Maybe it’s the test, maybe it’s the other two ways. You really have to have it. Well, that is not following the law. Because if it was one way by a test and a person didn’t take a test, you think anybody else would ever take a test? No. I mean, that’s one way to find intoxication. So following
the law is following the law. That’s divided by the word “or.” Not “and.” “Or.” So remember that when we get into it. And they’re probably gonna put that up there in just a minute and you’ll see what I mean. So the attorneys are gonna ask you som questions. And they’re not meant to pry. Let us know if they do. I am winding up now. And I’m certifying the jury panel has been duly qualified, and we will continue with the — we will start the voir dire process. Ms. Bell.
MS. BELL: May it please the Court, counsel.
THE COURT: Yes, ma’am.
STATE’S VOIR DIRE EXAMINATION
MS. BELL: Good morning. The Judge already introduced me, and I’m gonna introduce myself again. My name is Hannah. It’s spelled just like Hannah. No one ever calls me by name correctly. So I’m gonna try to pronounce your names, and if I get it wrong, please feel free to correct me, because I know exactly how it feels. I’m pretty new. And this week I actually did a voir dire exercise where I got to sit in your seat
and take part in a jury panel. And it’s kind of nerve racking. So if you don’t really know what’s going on, it’s okay. I’m kind of right there with you. So today we talk about driving while intoxicated. I want you to talk to me. There’s no right or wrong answers. If you really feel that something’s wrong or right, it’s okay to disagree with me. So please feel free to do that. As the Judge said, if there’s an issue and I’m asking you a question and you don’t wanna talk about in front of everyone, just let me know and we can talk about it later with just the Judge and the attorneys. So the State, which is me — I represent the State in this case — must prove beyond a reasonable doubt that the defendant, on or about a certain day in Tarrant County, Texas, did operate a motor vehicle while on a public roadway while intoxicated. Now, did everyone drive here this morning? So if you drove a car to the courthouse this morning, you’ve satisfied the first six elements. The only thing that would be lacking would be while intoxicated. So does anyone here have personal experience with DWIs?
All right. Mr. Tatum?
MS. BELL: All right. So what sort of experience have you had?
VENIREPERSON: I was arrested for it, but I wasn’t charged for it.
MS. BELL: Okay. Did you feel like you were treated fairly?
MS. BELL: Okay. Thank you.
Does anybody else have a family member or a really good friend? All right. Mr. Jackson.
MS. BELL: So what happened to you? What was your experience?
VENIREPERSON: My brother was arrested for DWI.
THE COURT: I’m sorry. Y’all are gonna have to — I forgot to say this. You have to speak up really, really — You know, seventh grade speech class. Speak up. Okay?
MS. BELL: Please speak a little more loudly so our court reporter and the defense can hear you as well.
VENIREPERSON: Okay. Yes. My brother was arrested for DWI and put in jail.
MS. BELL: Okay. Did you feel like he was treated fairly in the process?
VENIREPERSON: I was not in the area. He was in another state.
MS. BELL: Okay. Do you feel like having your brother arrested and put in jail, would that affect your ability to sit on the jury for this case?
MS. BELL: Okay. Mr. Cox.
VENIREPERSON: My daughter was arrested for felony DWI.
MS. BELL: Okay.
VENIREPERSON: So, yeah, I have full personal experience with it.
MS. BELL: Now, do you feel like she was treated fairly?
VENIREPERSON: Not really.
MS. BELL: Not really. And so do you think having your daughter arrested for a felony, will that kind of affect you in this case?
VENIREPERSON: It could.
MS. BELL: It could. Well, I mean,
that’s — I mean, that is your daughter, so it’s pretty personal. And the defendant is a completely different person, but if you think that having your daughter arrested is gonna maybe bias you one way or another, just let — Do you think that it would?
VENIREPERSON: No, I don’t think so. But it makes me wanna listen to both sides a little bit closer.
MS. BELL: Okay. And that’s completely fair. Thank you. All right. Ms. Smithey?
MS. BELL: All right.
VENIREPERSON: My son was arrested and convicted of DWI and also DUI. So he is a felon.
MS. BELL: Okay. And do you feel like he was treated fairly in the process?
MS. BELL: All right. Do you feel likeif you sat on this jury that you could be fair and impartial, that it wouldn’t affect your decision one way or the other?
MS. BELL: Thank you.
All right. So has anyone here seen an
intoxicated person? All right. Have you seen a stranger intoxicated? All right. Now, how can you tell if someone’s intoxicated?
VENIREPERSON: Slurred speech.
MS. BELL: Slurred speech. Ms. Ruiz?
MS. BELL: All right. So that’s a really good sign. What’s another way?
MS. BELL: Stumbling. Thank you, Mr. Gleason. Does every intoxicated person look and act the same?
MS. BELL: All right. So have you seen a complete stranger and you’re like he’s drunk. But you don’t know him, so you wouldn’t know if that was his normally behavior. But, generally speaking, you can tell if someone is intoxicated, right? 21 All right. So has everyone heard the term light weight? So you have granny who takes a glass of wine, and she’s completely tipsy, but then you have your buddies that you watch Friday night football with and they can put back eight beers and you can’t even
tell that they’ve been drinking. So would you agree that alcohol affects different people in different ways?
MS. BELL: So there are definitely different levels of intoxication. And we’ll get later into the definition of intoxication. So how would you be able to tell a person driving a car is intoxicated? What’s some signs that you think you’d see? Mr. Reese.
VENIREPERSON: Yeah. I would think swerving or jerking to one side or another.
MS. BELL: Definitely. Mr. Tatum, what would you think if you saw someone driving that would give you a hint that they were intoxicated?
VENIREPERSON: I would say swerving.
MS. BELL: Swerving?
MS. BELL: Okay. Anybody else think that they’d see something different?
VENIREPERSON: Overly cautious. Driving under the speed limit. Just strange driving.
MS. BELL: Strange driving. Yes. Those
are all excellent answers. So how do you think you’d find out how much someone had to drink during this trial? What evidence do you think you’ll see?
VENIREPERSON: Blood alcohol test.
MS. BELL: Blood alcohol test. What are some other things that you think that you might see?
VENIREPERSON: A bar tab.
MS. BELL: Huh?
VENIREPERSON: A bar tab.
MS. BELL: A bar tab. That’s a good answer.
VENIREPERSON: Just ask ’em how much they drank.
MS. BELL: Mr. Kinchen?
MS. BELL: All right. Say that one more time. I didn’t hear you.
VENIREPERSON: Ask them how much they had to drink.
MS. BELL: Ask ’em how much they had to drink. Those are all great answers. So as the Judge already talked about for
us, we have different burdens of proof. Now, she said that reasonable suspicion is the lowest. And I’m a very visual person, so I like to have diagrams or stair steps. So here we have reasonable suspicion at the bottom. And that’s when the cops can pull you over. Reasonable suspicion is the lowest burden. Then we’re gonna have probable cause. So if an officer’s going to arrest you, he has to have probable cause. It’s a higher burden. Then we have preponderance of the evidence which is what is used in a civil suit. The next level of evidence is clear and convincing evidence, and this is the evidence that’s used if they’re gonna take your kids away. So that’s a pretty high burden, wouldn’t you agree? Then the last burden is beyond a reasonable doubt. Now, that’s not 100 percent. If you were 100 percent certain of what had happened this night that we’re going to talk about, would you be in the jury box? No. You’d be on the witness stand. So we’re gonna show beyond a reasonable doubt is not 100 percent, it’s not beyond all doubt, and it’s not by a shadow of a doubt. You’re gonna use your common sense and look at the bigger picture. So if I show you these puzzle pieces, can
you tell me what that’s a picture of?
VENIREPERSON: A puzzle piece.
MS. BELL: You’re right. That is a picture of a puzzle piece. Can you tell what the puzzle pieces are forming a picture of?
VENIREPERSON: (No response)
MS. BELL: But if I show you this, can you tell me what that is?
MS. BELL: What is it?
VENIREPERSON: A flag.
MS. BELL: A flag. So there are some pieces missing, but you can tell beyond a reasonable doubt that that’s supposed to be the American flag. So that’s our burden of proof is to show beyond a reasonable doubt the bigger picture what happened. So you might not see every piece, but step back and look and see if you can see the bigger picture. So when you’re operating a motor vehicle, there’s a lot of stuff going on at the same time. So — Let’s see. Ms. Carter-Irvin?
MS. BELL: What — If you’re driving down
the road and you’re looking around, what would you be looking for?
VENIREPERSON: Pedestrians, children playing, things like that.
MS. BELL: And what else do you have to pay attention to?
VENIREPERSON: Of course the road and other cars.
MS. BELL: Yes, ma’am. And Ms. Palmer, what else would you be looking for when you’re driving down the street?
VENIREPERSON: Anything in the road. You have to pay attention to what your doing, how fast or slow am I going. Not paying attention to other things that are distracting.
MS. BELL: Definitely. Ms. Watson, if you’re driving, what kind of physical things are you doing while you’re driving a car? What physical functions are you performing?
VENIREPERSON: Just making sure I’m aware of my surroundings.
THE COURT: Y’all speak up, please.
VENIREPERSON: Just making sure I’m aware of my surroundings and making sure I’m going the speed limit.
MS. BELL: And you’re also — Does it involve, like, putting on a blinker?
MS. BELL: Or your foot is — You’re using your foot to step on the gas or the brake. So there’s a lot of things you have to pay attention to. And I know for myself, I’m horrible with directions. So I have my phone’s GPS going the whole time so it can tell me when to turn. And it’s just — When you’re driving, there’s a whole lot going on. Now, as the Judge has said, there’s three ways for the State to prove intoxication. The first is not having the normal use of your mental faculties or not having the normal use of your physical faculties and, last, having an alcohol concentration of .08 or more. And as the Judge said, there’s a pretty crucial conjunction, and that would be “or.” So who can tell me what the “or” means? Mr. Ratner?
VENIREPERSON: Doesn’t mean “and.”
MS. BELL: Doesn’t mean “and.” Thank you. So I don’t have to prove mental, physical and .08. I just have to prove one of these ways of intoxication. And when we select a jury, it has to be a
unanimous decision that our defendant is guilty, but it doesn’t have to be unanimous on how you think he’s intoxicated. So let’s say Mr. Gleason and Ms. Foreman believe that he’s lost the use of his mental faculties. And then Mr. Reese and Mr. Kinchen thinks he’s lost the use of his physical faculties. And then Ms. Carter-Irvin and Ms. Palmer thinks that he has an alcohol concentration of .08 or more. That’s a decision that he was intoxication even though you disagree on how intoxication was proved. So we’re almost done. The next stage of trial will focus on whether or not the defendant is guilty or not guilty. Now, what I want you to do is you’ll focus on the facts and the law only. We wanna put out all outside influences. Your personal experiences do play into a point, but, like we talked about earlier, you don’t want it to affect you during this case. Now, as the Judge has said, the defendant has a right not to take the stand. He is presumed innocent. And we don’t weigh that in the balance at all. It is his right to sit there. And if we as the State don’t prove beyond a reasonable doubt that he was — satisfy those elements of driving while intoxicated,
then he’s innocent and you’ll render a not guilty verdict. But if we can prove beyond a reasonable doubt that our defendant was driving while intoxicated, then you’ll render a guilty verdict. Now, is there anyone here who feels like they have to hear from the defendant to find him not guilty? All right. The Judge, as she has said, will decide punishment. So we’re gonna have witnesses on the stand on Monday. And I just want to talk to you about witness credibility. When someone takes that stand, they need to be — you need to start ’em at zero. And the weight you’re gonna give them is gonna be based on their prior experience, their testimony. Are the facts clear and concise. Do they — Does their story make sense. Now, we’re gonna have police officers on the stand. So does anybody have personal feelings regarding the police? Like strong personal feelings. 21 Mr. Ruiz. Oh, Ms. Ruiz. I’m sorry.
VENIREPERSON: I’m sorry. What was the question?
MS. BELL: Do you have any strong feelings regarding police officers as a whole?
MS. BELL: So Mr. Sauceda? Is that how you —
MS. BELL: Sauceda. Okay. Well, how do you feel regarding police?
VENIREPERSON: I can give ’em all the respect they deserve, however, I feel, in my opinion, that some of ’em are bullies.
MS. BELL: So how would you — When you say they’re “bullies,” do you think most officers are bullies?
VENIREPERSON: I don’t know about most officers. The ones that I’ve come in contact with, I mean, if you don’t do what they say, all of a sudden they stand behind — say do this do that, and if you don’t do it, they’ll strongarm you into what they feel you need to do. And I don’t particularly care for that.
MS. BELL: And that’s fair. So if I put a police officer on for testimony, would you be able to give his — what he says —
VENIREPERSON: I would start from zero.
MS. BELL: You’d start from zero?
VENIREPERSON: I’d start from zero and
take it from there.
MS. BELL: Okay. Does anyone else feel like Mr. Sauceda? Does anyone else feel that officers are bullies or they might strongarm you? No one? All right. Then thank you very much. I appreciate your time.
THE COURT: Thank you. Mr. Graham.
MR. GRAHAM: Thank you, Judge. May it please the Court.
THE COURT: Yes, sir.
MR. GRAHAM: Counsel.
DEFENSE VOIR DIRE EXAMINATION
MR. GRAHAM: Good morning, ladies and gentlemen. My name’s Clay Graham. I’m one of the defense attorneys for Mr. Vaughn. He’s over here. He’s my client. And I’ve represented him throughout the pretrial prospect in this case. You also have Katy Owens. She’s helping me today with the jury selection process. And we work together doing that frequently. One attorney that’s not here that will be here Monday, her name is Deandra Grant. And you’ll be able to tell the two of us apart pretty easy because she’s a woman and I’m a man.
I’d like to start by showing you a brief video. Okay. There are eight of you on both rows, so I’d like for the first row — We’ll call you the Black T-shirt team, you guys in the back White T-shirt team. There’s gonna be a group of about six women and they’re gonna be throwing a basketball to each other. So the Black T-shirt team I want you to count the number of times the ball’s thrown to the other team member. And the White T-shirt team same thing. Count the number of times that the ball is thrown to each other. Has anyone seen this before?
VENIREPERSON: (Raises hand)
MR. GRAHAM: Okay. You’ve seen it?
VENIREPERSON: (Nods head up and down)
MR. GRAHAM: Okay. Then you can kind of abstain. Okay? If you wanna whisper to him, that’s fine, or whisper to her, because she’s cute. Okay? Can everyone see?
MR. GRAHAM: Okay. So correct number of passes. Anyone get a number different than 16? What did you get, sir?
MR. GRAHAM: Mr. Tatum, right?
MR. GRAHAM: Okay. Who else raised their hand with a different number? Ms. Carter-Irvin.
MR. GRAHAM: Fourteen. Mr. Kinchen?
MR. GRAHAM: Now, did anyone see the gorilla that came across?
MR. GRAHAM: Was there anyone that didn’t see the gorilla? Raise your hands. It’s about half the group. Okay?
Did anyone notice that one of the team members stepped off the stage? Did anyone not see that? All right. That’s pretty good. That’s pretty good. And did anyone notice that the background changed? Did anyone notice that?
MR. GRAHAM: So no one noticed that? Correct? Okay. Well, let’s just look at it a little bit more. I’m not gonna take up a lot of time with this. Asking the same questions I asked. And then I’ll play it backwards a little bit slowly so you can see those things.
MR. GRAHAM: And that’s that. Hopefully that will be the only monkey business we’ll be engaging in this morning. Ladies and gentlemen, I’d like to ask you to give me the same amount of attention that you gave that video when you were counting the number of throws. Okay? And the reason why is because these things we talk about are confusing. And I noticed that a lot of you have never served on a jury. Okay? But this is –What we’re talking about is Mr. Vaughn’s liberty here. So it’s very important to me, because I’m the thing, the person, the advocate that is between you and him and the determination, the decision of guilty or not guilty. Okay? So I would ask you to do just a few things. One is to please pay attention, be honest. If I — If you don’t know the answer, if I’m
being — if I ask it badly, just say I don’t — I don’t understand the question. If you feel a certain way — We may tell you that the law feels — law tells you to do this, but you may still feel a certain way regardless of what the law is. And that’s okay. Because those are the answers that I want to hear if you’re being truthful. Okay? Can we agree to do that?
MR. CLAYTON: We kind of went on about this. The only thing I can say is the less you speak the more likely you are to be on the jury. Just kind of a rule of thumb. And this was sort of alluded to by Hannah. She’d asked about anyone being arrested. Is anyone a member of law enforcement or a retired member of law enforcement? I think someone was an airport police officer. Right, Mr. Sauceda?
MR. GRAHAM: Okay. Did you retire from that?
VENIREPERSON: No. I put in three years and then left.
MR. GRAHAM: Okay. Was it in San Antonio?
MR. GRAHAM: Okay. How would you describe the experience? Good, bad, or indifferent?
VENIREPERSON: Indifferent. I was primarily hired out of a group because of the anti-hijacking program. Everybody was starting to hijack airplanes and take ’em to Cuba. And then the United States enacted security guards at the check points.
MR. GRAHAM: Okay. Does anyone have family or a spouse that is in law enforcement, whether it’s being security or… Yes, sir.
VENIREPERSON: My brother-in-law’s retired FBI and now he’s an investigator for the state of New York.
MR. GRAHAM: Is that where — Are you from New York also?
VENIREPERSON: Twenty years ago.
MR. GRAHAM: Okay. That’s Mr. Gleason. Who else raised their hand? Okay. Ms. Smithey?
VENIREPERSON: Uh-huh. My son-in-law is an Arlington police officer.
MR. GRAHAM: And then Mr. Sauceda.
VENIREPERSON: Brother-in-law is DPS.
MR. GRAHAM: And that’s — He’s in Texas?
MR. GRAHAM: Mr. Stephens?
VENIREPERSON: I have a couple of cousins that are cops in Arlington.
MR. GRAHAM: Yes.
VENIREPERSON: My wife’s uncle’s a judge.
GRAHAM: Wife’s uncle. Okay. Isthat — Where is that?
VENIREPERSON: Dallas County.
MR. GRAHAM: Is it civil or criminal court?
VENIREPERSON: You know, I don’t know.
MR. GRAHAM: What’s — Do you know the
VENIREPERSON: [Unintelligible] MR. GRAHAM: Okay. He’s in County Criminal Court Appeals 2.
VENIREPERSON: Good to know.
MR. GRAHAM: Okay. Any — Anyone a member of MADD or any other alcohol public safety? Okay. All right. Here’s the question. I have
it scaled. I have scaled the answers. The question is “If a person has consumed any amount of alcohol and drives, that person is guilty of driving while intoxicated.” Mr. Gleason, what number would you choose. VENIREPERSON: Four. MR. GRAHAM: What about you, Ms. Foreman?
VENIREPERSON: Probably four.
GRAHAM: Okay. And Mr. Reese?
VENIREPERSON: Yes, sir. Four.
MR. GRAHAM: Mr. Kinchen?
MR. GRAHAM: And Carter-Irvin. Ms. Carter-Irvin?
VENIREPERSON: Four as well.
MR. GRAHAM: Ms. Palmer?
MR. GRAHAM: Ms. Watson?
MR. GRAHAM: Mr. Tatum?
MR. GRAHAM: Mr. Ratner?
MR. GRAHAM: Mr. Meraz?
VENIREPERSON: Number four.
MR. GRAHAM: Are you related to Cynthia Meraz?
MR. GRAHAM: Okay. Just curious. Charles Jackson?
MR. GRAHAM: Joseph Cox?
VENIREPERSON: I’m gonna do five also.
GRAHAM: Ms. Ruiz?
MR. GRAHAM: Ms. Smithey?
MR. GRAHAM: Anthony Sauceda?
MR. GRAHAM: And Mr. Stephens?
MR. GRAHAM: All right. So all of you answered four or five other than Mr. Stephens. And you’re the last. Just happens to be the first for follow up. So you somewhat agree. Tell me what your thoughts are on that.
VENIREPERSON: Drinking’s drinking. I mean, that’s a possibility of impairing yourself, period.
MR. GRAHAM: Okay. So if you’ve had a drink, you would say — If a person’s arrested – or stopped and they have alcohol on their breath, they should be arrested for DWI? Is that — Am I taking too much license with what you think? VENIREPERSON: I don’t drink so yeah. I mean, I wouldn’t mind having no one drinking on the roads because drinking and driving’s pretty bad.
MR. GRAHAM: So is it fair to say – This a DWI charge — because of that thinking would you not be able to be fair to Mr. Vaughn if he’s had any 12 alcohol and is driving?
13 VENIREPERSON: If he’d been drinking, he shouldn’t have been driving. That’s my thought. I mean, I — It goes to how much you had and how impaired you are. Some people — like the heavy weight and light weight question. So it’s all about the evidence. I mean, if he has — If he has alcohol on his breath, according to a calcu — like something that has a number on there, you shouldn’t have been driving. That’s my opinion.
MR. GRAHAM: Okay. So —
VENIREPERSON: A number shows up on the — on the alcohol thing, you shouldn’t have been driving.
MR. GRAHAM: Okay. You’d find him guilty if there was proof of any alcohol at this point?
MR. GRAHAM: Okay. You understand — because Hannah explained — What’s your last name, Hannah?
MS. BELL: Bell.
MR. GRAHAM: Bell. Ms. Bell explained that for the State to prove this case they have to prove all the elements. The driving — or operating a motor vehicle in the county on a certain day and the person was intoxicated. And nothing in that definition says because they had alcohol. They had — There was introduction of alcohol. And if the person lost their mental or physical faculties or if they provided a specimen of blood or breathe that’s over .08. Are you saying that —
VENIREPERSON: They have to – Proof means — If you can give me a readout saying that he was drinking, then he was drinking. Other than that – I mean, people can have a toe problem and not be able to pass the tests. People don’t know how to read and write, I mean, so they’re not able to pass the test. Proof to me is evidence you can take on a piece of paper and go home with it.
MR. GRAHAM: Okay. So if there’s a piece of paper and it shows any alcohol, you would vote guilty?
MR. GRAHAM: Yes?
MR. GRAHAM: Okay. That’s fine. That’s — That’s what I wanna hear. Thank you for your honesty, sir.
Okay. Let’s talk about your role. I combined the role of the juror and the jury because this is kind of a — I don’t know if you’ve ever heard of the Gestalt’s theory. “The sum of the whole is greater than its parts.” Well, so let’s talk about that. The jurors, each of you as an individual, who are the six remaining, are the exclusive judges of the credibility of witnesses and the evidence to be presented. And I think you-all pretty much covered what you would see. You’re probably gonna see a video along the roadside, a video at a station. You’re gonna hear from officers and their impressions of what they saw along the roadside. And based on that you make a decision. But you individually decide whether or not the evidence is credible or whether those witnesses are credible, whether or not you believe them. Do you
believe them a little bit, do you believe them beyond a reasonable doubt. Is everyone clear on that? Mr. Cox, any questions about that?
MR. GRAHAM: Ms. Smithey, are you following me?
VENIREPERSON: Yes. MR. GRAHAM: All right. So a juror can accept all or none of the testimony or evidence presented. You can disregard all of it or you can just take it all as true, but you are the one that’s gonna judge it. And the other thing is you guys don’t have to agree. In order for us to get a verdict — which verdict is a word that loosely translated means the truth. Veredicto. We call it true verdict, which sounds redundant. But you don’t have to agree. I kind of compare — as far as patriotic symbols go a juror is kind of like an eagle. Because an eagle to me is the ultimate patriotic symbol of independence. They — The eagle flies alone, you know, hunts alone and spends most of its time alone, unfettered by — by what other things — only by the wind really. So that’s — that’s you. You have a vote
and you stick with your vote. Now, when you deliberate, things can happen. There can be one of you voting one way, five of you going you’re crazy. Stick by your vote. Okay? Unless there’s a reasonable reason that doesn’t violate your conscience, you stick with your vote. Okay? Whichever the direction. Okay? Everyone clear on that? Judge Hardy is a neutral participant. She directs the trial. I think she’s already explained it to you very well. She’s a neutral participant. She’s calling balls and strikes. If I get up and say objection, Your Honor, blah, blah, blah, she’s gonna say overruled or she’s gonna say sustained. If she says sustained, then the question can’t be asked; if she says overruled, then I need to sit back down. Okay? And when she is making a ruling, she’s not commenting on the evidence. She’s not saying, well, I think a certain way about this outcome, so I’m gonna — I”m gonna control it in the way that I rule on it. That’s not what — That’s not her role. Is everyone clear about that? Like she said, she doesn’t know anything about the case. She knows as much as you do, which is nothing, other than the fact that, you know, that there’s a charge and it’ my client, Mr. Vaughn, who’s sitting over there.
We’ve already gone through that. I put this in a little bit different terms than what Ms. Bell described. So the question is “I would automatically put more weight on the testimony of a police officer.” Same scale of questions by number. Take a look at it.
VENIREPERSON: Can you qualify that? Versus anyone else? Versus Mr. Vaughn? Versus what?
MR. GRAHAM: Versus any other witness. Putting more weight on them would be — I’m saying that you put more weight on the officer, give them more credibility —
VENIREPERSON: Than anyone else that gets up there?
MR. GRAHAM: — Yes. — based solely on the fact that they’re an officer.
MR. GRAHAM: Okay? Does that make sense?
MR. GRAHAM: Great.
Mr. Ratner, what would your number be?
MR. GRAHAM: And Mr. Meraz?
VENIREPERSON: A four.
MR. GRAHAM: Mr. Jackson.
VENIREPERSON: Qualify that a little bit more. You talking about a person or you just talking about policemen?
MR. GRAHAM: Well, kind of both. Sort of — I wanna separate the two. When you associate —
VENIREPERSON: Every — every – every person — In my opinion, every person’s a little bit different. Just because they wear a uniform doesn’t mean they all wear it the same way.
MR. GRAHAM: Yes, sir.
VENIREPERSON: So, you know, I wouldn’t weigh him any different than anyone else.
MR. GRAHAM: So sounds like your answer would be four. I’m not putting a number in your head, but…
MR. GRAHAM: Okay. Thank you, Mr. Jackson. Mr. Cox.
VENIREPERSON: I’m saying four. And it’s because of the word “automatically.”
MR. GRAHAM: That is — That is kind of a conditional word in the question. Ms. Ruiz?
MR. GRAHAM: Ms. Smithey?
VENIREPERSON: Four. And I apologize. I thought my phone was off.
MR. GRAHAM: That’s okay. I didn’t hear a thing. Mr. Sauceda?
VENIREPERSON: Number four.
MR. GRAHAM: Mr. Stephens?
GRAHAM: Mr. Gleason?
MR. GRAHAM: Ms. Foreman?
MR. GRAHAM: Mr. Reese?
MR. GRAHAM: Two. So you somewhat agree?
MR. GRAHAM: I’ll get back to you on that. Mr. Kinchen?
VENIREPERSON: Well, four.
MR. GRAHAM: Ms. Carter-Irvin?
VENIREPERSON: Four as well.
MR. GRAHAM: Ms. Palmer?
MR. GRAHAM: Ms. Watson?
MR. GRAHAM: And Mr. Tatum?
MR. GRAHAM: Mr. Reese, you said number two, correct. You somewhat agree?
MR. GRAHAM: And what is the — what — Can you qualify that for us?
VENIREPERSON: Sure. I mean, I think — maybe not necessarily on the truthfulness. I wouldn’t necessarily just assume somebody because they’re in a uniform would be completely truthful, but I do think that they’ve been trained to do their job. They’ve got the certification to perform the test and to recognize impairment. And so, yeah, I would — I would give them a little more weight when it comes to assessing that. But that being said, I wouldn’t necessarily believe everything just because they’re an officer.
MR. GRAHAM: Okay. Kind of make it simple. You don’t give ’em a leg up just because they’re a police officer?
VENIREPERSON: No, not from a truthfulness standpoint.
MR. GRAHAM: If all the witnesses – If
being a witness meant running a race, a 100 yards, you’re not gonna start the police officer 10 yards ahead of everyone else?
MR. GRAHAM: Okay. Does everyone agree with that?
MR. GRAHAM: It’s a race. No one runs until the blank is fired. Right? Let’s talk about normal. Who’s normal? Anybody volunteer to be normal? Ms. Meraz, what makes a person normal? If you were gonna say I’m normal, why am I normal? Because I’m not. I don’t know with your normal is, right?
VENIREPERSON: (Shakes head side to side)
MR. GRAHAM: I don’t know your normal either, do I?
MR. GRAHAM: We’re all strangers here, so we don’t really know what we normally do. Okay? So what is normal? Is it subjective? Do you need some experience with a person to know what they normally do? That’s why we go see a doctor, right, if we don’t feel well. Because we’re not up to snuff, we don’t have the
energy we normally have. So what is normal?
MR. GRAHAM: Drum roll. Long drum roll. It’s a town in Illinois. And they’re having a ukulele fun jam next week, if you can make it. It’s two to four right now on Main Street. And there are some people picking and grinning. Okay. Standardized field sobriety tests. Has anybody seen these? Know what I’m talking about? Mr. Sauceda, you familiar with these?
MR. GRAHAM: Okay. So they’re standardized. What does standardized mean to you? Who’s a technical person? Somebody works at a lab, works at Abbott? Yes, sir.
VENIREPERSON: It’s a — It’s a list of criteria that must be met every time that you do that so that you’re not biased one way or the other.
MR. GRAHAM: Okay. The — The results can be replicated and get the same result. Would that be fair also?
MR. GRAHAM: With human tests we have to
take into account certain things, don’t we, if we’re giving a standardized… Things like age, height and weight. Perhaps injuries. Because we’re talking about physical tests. If I’ve got a blown out knee, I probably can’t stand on one leg very well, or if I’ve got a blown knee and a bad back, then this is not — this is not the stance for me. Okay. And let me just ask any of you — or all of you. Does anyone stand like this in their job? You can’t see me. Like this. One foot behind the other? You’re a physical therapist, right?
VENIREPERSON: I am.
MR. GRAHAM: Okay. Let me ask. Do you have your patients, your clients, doing stuff like this?
VENIREPERSON: Uh-huh. People say I couldn’t pass that before or are you a police officer. It’s so funny.
MR. GRAHAM: Just a train wreck.
MR. GRAHAM: But you’re doing that to generate their flexibility, their mobility and their strength, right?
VENIREPERSON: And balance.
MR. GRAHAM: Balance.
VENIREPERSON: And reaction time.
MR. GRAHAM: So people who come see you aren’t normally sober, are — aren’t normally intoxicated, are they?
VENIREPERSON: Exactly. Other impairment.
MR. GRAHAM: Okay. So they have to practice a little bit in order to get — to nail that — those types of things?
MR. GRAHAM: Anybody else do this type of — stand like this? Stand on one leg in their job? Is this something that people normally do?
VENIREPERSON: They do it for split seconds without realizing it.
MR. GRAHAM: Kind of like if you’re marching?
VENIREPERSON: When you put your pants on one leg at a time, you’re standing on one leg.
MR. GRAHAM: Right. Okay. So kind of an occupational therapy?
VENIREPERSON: Yeah. I’m just gonna take my little stand here.
MR. GRAHAM: Stand taken.
THE COURT: You have three more minutes.
MR. GRAHAM: Thank you, Judge. Okay. Little bit on this. Technology or computerized instrument. Does it always reliably and correctly measure what it’s intended to measure?
MR. GRAHAM: Does anyone say, yes, it does? Think of a thermometer. Your phone. You ever got lost using your GPS on your phone? It’s — it’s — It’s giving you a road map, but it’s not taking you where you wanna go. Were you gonna say something, Mr. Stephens?
VENIREPERSON: I mean, if there’s electricity in it and the screen’s not broken, then it’s most likely gonna be reading correct.
MR. GRAHAM: Okay. Well, let me move up a little bit because I – We’ll get to the fundamentals. The State’s prosecutor has the burden of proof. That’s these guys right here. Ms. Bell and Zane. So they have the burden of proof. That burden of proof is beyond a reasonable doubt, as explained. She had a good step stair to show you. The Judge explained it to you. Is there anyone that’s confused about that?
Let me ask you this. What does Mr. Vaughn have to do?
MR. GRAHAM: That’s right. Nothing. Here’s what — Here’s what it is. We’re in trial because we have a dispute. Okay? They’re saying we’ll do this, you plead guilty. He said — What do you think he’s saying? Prove it. He’s saying prove it. That’s all he has — That’s all he has to do. When we’re here today, symbolically, we’re saying, oh, yeah. Prove it. Everyone clear? And that’d be the same for all of you, that’d be the same for me if I was sitting where Mr. Vaughn is sitting. Mr. Vaughn’s presumed innocent. And he’s not legally required to testify to prove to you that he is innocent and you as a juror cannot hold that against him. Everyone clear on that? Ms. Foreman, you understand that?
MR. GRAHAM: Just went over this. Now, usually we’ll think of some other words that mean these words, but because of the necessity of time I want you to just consider another word that goes with this. Because we can’t give you a
definition of beyond a reasonable doubt. You use your common sense. But break it down and look at it and see what you come up with internally. THE COURT: It’s time.
MR. GRAHAM: About two minutes, Judge. I think I can wrap it up in two minutes.
THE COURT: I think you should.
MR. GRAHAM: Yes, ma’am. All right. I just want to point out, Mr. Vaughn is not required to prove his innocence. I think you guys get that, from what you’re saying. Not legally required to testify. You cannot infer guilt from his decision not to testify, and you can’t talk about his decision to [sic] testify. This mostly applies to the six of you who are gonna deliberate after — after the trial is concluded. The Judge is gonna give you a charge. Those are instructions. She’ll read it to you, but you’ll also get a copy. This language is gonna be in that charge. That’s the law. Can everyone follow this law?
MR. GRAHAM: This is more of the same. Presumption of innocence. This is the last thing, Judge. “The presumption of innocence is the
principle that requires the Government to prove the guilt of a criminal defendant and relieves the citizen accused of any burden to prove his or her innocence.” So Mr. Vaughn walks in here right now, he’s presumed innocent. Presumed means you can take it for granted that he is innocent. Okay? And it’s only unless the State proves each and every element that they describe for this offense of driving while intoxicated that you would find him guilty. If you have a single doubt, and it’s a doubt that’s found in reason, then your vote is not guilty. Is everyone clear? I don’t have to prove he’s innocent. I don’t have to do anything. Okay? You can’t consider evidence that wasn’t brought before you. What if he had done this, what if the officer had done that. That is not evidence. Only evidence you’re gonna hear is what’s gonna be played on the video screen or you’re gonna hear it at the witness stand. I think my batteries are about done, so I’m about done. I wanna thank you for your time and look forward to working with six of you.
THE COURT: All right. Officer, if you’ll take the jury out, please.
Be careful on that back row. There’s people that fall all the time.
VENIREPERSON: Ma’am, may I approach the bench?
THE COURT: Wait just a second.
(Prospective jury panel retires to the hall)
THE COURT: And, yes, you can. All right. Be seated. We have a juror that has requested, I guess, to talk to me.
VENIREPERSON: Can I just ask you a question?
THE COURT: Yes, you may.
VENIREPERSON: Next Saturday I do have plane tickets to fly back to New York. And you said we should –
THE COURT: Not tomorrow?
THE COURT: You’ll be fine.
VENIREPERSON: Okay. I just wanted to make sure.
THE COURT: Okay. Thank you very much. Y’all be seated.
Challenges by the State?
MR. REID: No challenges for cause by the
THE COURT: Challenges by the defense?
MR. GRAHAM: Yes, Judge. We challenge Number 9, Jason Stephens. His response — He wavered a little bit. I wasn’t really clear what he said, but the gist of it is if a person has had any alcohol and they’re driving, then they’re guilty of driving while intoxicated. I did explain to him that’s not what the law says. But my impressions of him is that he could not be fair to Mr. Vaughn if he hears any evidence of alcohol being present.
THE COURT: Any others?
MR. GRAHAM: No, Judge.
THE COURT: Any agreement?
MR. REID: State’s agreeing to waive Juror Number 9, be struck for cause.
THE COURT: I agree as well. Nine is out. All right. We’re gonna have a break for ten minutes.
(Attorneys make their strikes)
THE COURT: The strikes from the defense are 3, 4 — oops — and 16. My goodness. All right. From the State are 8, 10 and
13. So we have 1, 2, 5, 6, 7 and 11. Gleason, Foreman, Carter-Irvin, Lynn Palmer, Watson, Smithey. Okay. All right. Let’s bring ’em in.
(Prospective Jury Panel Seated)
THE COURT: You may be seated. Ladies and gentlemen, let me thank you on behalf of the attorneys as well for your kind consideration and attention. It’s an important process, and we try to make it somewhat entertaining and not too tedious. And I think the attorneys did a great job doing that. The good news is I don’t call your boss or your wife or your husband and tell ’em that you’re done by 11:08. So as far as I’m concerned, you have jury day all day. That’s why it’s called “day.” It’s not called jury half day. Okay? So do what you will with that. We have six people that are — have been selected to be on the jury through the process of elimination as I explained to you. And, you know, there are a lot of times that people are stricken, or struck, just because maybe the perception is they were paying more attention to the other side or nodded their head
most, but please don’t have your feelings hurt or be offended and wonder why you didn’t get on the jury. I hope that you really enjoy it, those of you who have been chosen, because it’s really — can be entertaining, but it certainly is educational. I mean, honestly, it is, in a good way. These people, when I call your name, please come over and have a seat in the jury box. Michael Gleason, Judy Foreman, Tiffanie Carter-Irvin, Lynn Palmer, Krystal Watson, and Jane Smithey.
THE COURT: Almost all woman jury. Almost. Y’all have a seat. Okay. One of my officer’s has some paperwork for the rest of y’all to take down to the first floor to that jury room. If you’ll go as a group and hand ’em that paperwork, and you’re gonna get your big check for today. But do remember this. Your tax dollars, as well as mine, pay for this building, pay for most of our salaries. You can come here any time you want to, if you just happen to be interested in the way government works or trials or anything. It doesn’t matter if it’s in my court or if it’s something exciting
you read about in the paper. The courtrooms are open to everyone. And it’s a good thing. You got a child thinking about a field trip or something like that, we gear it to their age, certainly give us a call. This is my coordinator right over here, Ms. Anglin. So have a wonderful day. Go shopping, go relax, go have your nails done, whatever. Thank you.
(Remaining prospective jury panel released)
THE COURT: All right. I am not gonna swear y’all in until Monday morning. I want you to be here — We’re gonna start at nine. You can come really any time after 8:30. The bailiffs are gonna be going back and forth and looking for you, and they’ll bring you in, put you in the jury room. Bring something to read if you want to. There’ll be coffee in there. I don’t drink it, so I don’t know if it’s any good. You can do whatever. Now, unlike being sequestered, the county does not pay for lunch or anything. We will go through lunch. I’ll give you probably an hour and a half or more for lunch because of just the proximity of the courthouse to almost no restaurants at all. So we will break for lunch around twelve or one. It just kind of depends on where we are. I’ll go as quickly and run the
trial as efficiently as I can. But we’ll get started at nine. Do park at LaGrave Field. It’s much better. They run those little buses every 15 minutes. And if we go late, we have access to squad cars and we can take you to your car. Don’t worry about safety or anything like that. Even though I don’t think there’s been any problems, but there won’t be with y’all. Okay? Have a wonderful weekend. I don’t have to tell you not to talk about the case because you really don’t know anything about it. All right. You’re excused.
(Voir Dire concluded.)
STATE OF TEXAS | COUNTY OF TARRANT |
I, Mary Ann Clifton, Official Court Reporter for County Criminal Court No. 7 of Tarrant County, Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence, and other proceedings requested in writing by counsel for the parties, to be included in this volume of the Reporter’s Record, in the above-styled and -numbered cause, all of which occurred in open court, or in chambers, and were reported by me. I further certify that this Reporter’s Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties. I further certify that the total cost for the preparation of this Reporter’s Record is $1570.00 and will be paid by the defendant.
WITNESS MY OFFICIAL HAND this the 13th of November 19 2015.
20 /s/ Mary Ann Clifton
21 MARY’s ANN CLIFTON, CSR NO. 2385
Expiration Date: 12-31-15
22 Official Court Reporter
County Criminal Court No. 7
23 Tarrant County, Texas
401 W. Belknap Street
24 Fort Worth, Texas 76196