PD-0124-15 February 4, 2015

IN THE UNITED STATES COURT OF CRIMINAL APPEALS 5TH Court of Appeals Number 05-14-00025-CR Trial Court: County Court at Law No 2. 002-80051-3031, Honorable Barnett Walker MELLANNISE HENDERSON PETITIONER V. THE STATE OF TEXAS RESPONDENT ______________________________________________________________ PETITION FOR DISCRETIONARY REVIEW Law Office of Mellannise Henderson-Love, P.L.L.C. Mellannise Henderson-Love Attorney for Petitioner State Bar No. 0079674 3102 Maple Avenue, Suite 400 Dallas, Texas 75201 Tel: (214) 638-8777 Fax: (214) 291-5331 IDENTITY OF PARTIES AND COUNSEL The following constitutes a list of all parties to the trial court's final judgment and the names and addresses of all trial and appellate counsel: Petitioner Mellannise Henderson Petitioner's trial counsel Kevin Brooks Petitioner's appellate counsel Mellannise Henderson Love Respondent The State of Texas Respondent's trial counsel Gregg Willis, District Attorney, 2100 Bloomdale Road, McKinney Texas 75071 Respondent's appellate counsel Gregg Willis, District Attorney, 2100 Bloomdale Road, McKinney Texas 75071 TABLE OF CONTENTS STATEMENT OF JURISDICTION: ............................................................................................ iv STATEMENT OF THE CASE:..................................................................................................... iv ISSUE PRESENTED ...................................................................................................................... v STATEMENT OF FACTS ............................................................................................................ vi SUMMARY OF PETITIONER’S ARGUMENT: .................................................................... vii ARGUMENTS AND AUTHORITIES: ................................................................................... viii B. DWI-Applicable Law: ........................................................................................................ viii NO PROBABABLE CUASE TO ARREST: ........................................................................... xiii IV. POINT OF ERROR: JURY CHARGE: ............................................................................ xiv V. POINT OF ERROR: JURY DELIBERATIONS & ADDED EVIDENCE: ...................... xvii VI. JURY VERICT INSUFFICENT TO SUSTAIN A VERDICT OF GUILTY ................... xix MIRANDA WARNINGS: ....................................................................................................... xxi CONCLUSION AND PRAYER” ....................................................................................... xxii CERTIFCATE OF COMPLIANCE .......................................Error! Bookmark not defined. TABLE OF AUTHORITIES Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). ............................................................ 11 Brown v. State, 279 S.W. 837 (1926) ......................................................................................................... 15 Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) .................................................................. 18 Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996) .................................................................... 8 Dowthitt, 931 S.W.2d at 255. .................................................................................................................... 13 Emerson v. State, 880 S.W.2d 759 (Tex. Crim.App. 1994)....................................................................... 9 Greer v. State, 32 S.W.2d 845 (1930);Teel v.. State, 283 S.W. 834 (1924). .............................................. 15 Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.). ......................................... 3,9 Miranda v. Arizona, 384 U.S. 436 (1966) . ......................................................................................... 20 Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App.1992), ................................................................. 8 Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993); ................................................... 15 Resendez v. State, 860 S.W.2d 605 (Tex. App. - Corpus Christi, 1993); Robinson V. State, 102 S.W.^[2] 220 (1937) ................................................................................................. 17 Stanley v. State, 625 S.W.2d 320 (Tex. Crim. App. 1981); ...................................................................... 17 Stone v. State, 823 S.W.2d 375, 381 (Tex.App.--Austin 1992 ........................................................ 9 Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). ............................................................. 17 Statutes and other authorities Article 38.22, §§ 2(a), 3(a)(1)-(2).............................................................................................................. 13 Tex. Code. Crim. Proc. Ann. art 38.22 (2011)........................................................................................ 13 18 U.S.C. § 3742 and 28 U.S.C. § 1291. ..................................................................................................... 13 STATEMENT OF JURISDICTION: This is an appeal from a final judgment from the district court in a criminal case, and an order affirming the ruling from the 5th Court of Appeals. Jurisdiction is invoked to the Texas Court of Criminal Appeals pursuant to Article V of the Texas Constitution. STATEMENT OF THE CASE: This is an appeal from a conviction for the offense of Driving While Intoxicated, a Class B Misdemeanor, allegedly committed on December 1, 2012. Petitioner, Henderson, hereinafter (“Henderson”) pled not guilty to committing the offense of driving while intoxicated (DWI). (RR III 3 pg. 6). After a jury trial, the court sentenced Petitioner to ninety days confinement in the Collin County Jail and assessed a $ 500 fine. (CR.^[1], 2). The court suspended imposition of the sentence and placed Petitioner on twelve- month probation. (RR Vol. ^[4] 39).Petitioner, Henderson, filed a Notice of Appeal on January 2, 2014, (CR 1). By this appeal, Petitioner presents the points of error below for the Court’s review.

Master Index December 2 - 3, 2013

1 REPORTER'S RECORD VOLUME 1 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR 3 THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS 6

7 8 _____________________________________________

9 MASTER INDEX _____________________________________________ Master Index December 2 - 3, 2013

1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 7 8 Attorneys for The State of Texas 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 14 Attorney for The Defendant Master Index December 2 - 3, 2013

VOLUME 1 MASTER INDEX

----------------------

VOLUME 2 Jury Trial - Voir Dire of Jury Panel

December 2, 2013

PAGE VOL. Pretrial Hearing ............................4 2

Court's Remarks to the Jury Panel ...........5 2

Jury Voir Dire by Mr. Wilson ...............35 2 Jury Voir Dire by Mr. Brooks ...............93 2

State Challenge for Cause .................133 2

Defendant Challenge for Cause .............135 2 Jury Impaneled ............................139 2

Jury Sworn by the Court ...................140 2

Jury Admonished ...........................141 2 Reporter's Certificate ....................144 2 Master Index December 2 - 3, 2013

VOLUME 3 Trial on the Merits

December 2, 2013

PAGE VOL. Arraignment .................................6 3

Opening Statement by Mr. Wilson .............7 3

WITNESS: DIRECT CROSS V. DIRE

CLIFTON CORLEY

By Mr. Wilson 10 v3 By Mr. Brooks 45 v3 11 By Mr. Wilson 60 v3 By Mr. Brooks 63 v3

PAGE VOL. State rests ...............................66 3

Defendant rests ...........................67 3

Both Sides Close ...........................67 3 Reporter's Certificate .....................71 3 Master Index December 2 - 3, 2013

1 VOLUME 3 2 ALPHABETICAL INDEX OF WITNESSES

3 DIRECT CROSS V. DIRE

4 Corley, Clifton 10 v3 45 v3 Corley, Clifton 60 v3 63 v3 Master Index December 2 - 3, 2013

1 VOLUME 3 2 INDEX OF EXHIBITS

3 Use is indicated as follows: J - Jury R - Record Only D - Demonstrative W/D - Withdrawn ID - Identification Only C- Court EXHIBIT DESCRIPTION OFFERED ADMITTED USE

SX 1 DVD 22 v3 22 v3 J

SX 2 DIC 24 form 42 v3 42 v3 J Master Index December 2 - 3, 2013

VOLUME 4 Trial on the Merits

December 3, 2013

PAGE VOL. Charge Conference ...........................4 4

Charge Read to the Jury .....................7 4

Closing Statement by Mr. Wilson ............13 4 Closing Statement by Mr. Brooks ............18 4

Closing Statement by Mr. Wilson ............22 4

Jury Note Received .........................29 4 Verdict ....................................36 4

Punishment Phase ...........................38 4

Both Sides Close ...........................39 4 Sentencing .................................39 4

Reporter's Certificate .....................43 4 State vs. Henderson December 2 - 3, 2013

STATE OF TEXAS ) COUNTY OF COLLIN ) Jury Trial December 2, 2013

1 REPORTER'S RECORD VOLUME 2 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR 3 THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS 6

7 8 _____________________________________________

9 JURY TRIAL _____________________________________________ Jury Trial December 2, 2013

1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 7 8 Attorneys for The State of Texas 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 14 Attorney for The Defendant Jury Trial December 2, 2013

VOLUME 2 Jury Trial

December 2, 2013

PAGE VOL. Pretrial Hearing ............................4 2

Court's Remarks to the Jury Panel ...........5 2

Jury Voir Dire by Mr. Wilson ...............35 2 Jury Voir Dire by Mr. Brooks ...............93 2

State Challenge for Cause .................133 2

Defendant Challenge for Cause .............135 2 Jury Impaneled ............................139 2

Jury Sworn by the Court ...................140 2

Jury Admonished ...........................141 2 Reporter's Certificate ....................144 2 Jury Trial December 2, 2013

(Proceedings occurring in open court, commencing at 9:32 A M. Defendant present.) THE COURT: Does either side have any motions we need to take up before we bring the panel in? MR. WILSON: Not from the state, judge.

MR. BROOKS: Judge, I had filed some

pretrial motions, primarily discovery motions. I'm going to represent to the court that the state has turned over the copies of the offense reports as well as the video recordings. I'm not aware of anything else. THE COURT: Do you have anything else that you intend to admit other than, you know, like photos or anything of that nature? MR. WILSON: No, Your Honor.

THE COURT: Any reports, supplements?

MR. WILSON: Everything that we have was given to defense and all we plan to offer are the videos and the D I C 24.

THE COURT: All right. And you've received both of those; correct?

MR. BROOKS: Yes, sir.

THE COURT: All right. Fantastic. Do we have a list yet, bailiff?

THE BAILIFF: Yes, just received it, judge.

THE COURT: All right.

Jury Trial December 2, 2013

(Unrelated docket matters heard, after which the following proceedings were had in open court. Jury panel seated. Defendant present.) THE COURT: Good morning, ladies and gentlemen. As you enter the courtroom, everyone is standing to pay their respects to you so you may feel free to have a seat. Thank you.

Everyone else may be seated.

Bailiff, report, please. THE BAILIFF: The panel is all present and accounted for, Your Honor.

THE COURT: Thank you, bailiff. Good morning, ladies and gentlemen. Welcome to Collin County

Court at Law Number Two. My name is Barnett Walker, and I'm honored to be your elected judge of this court. The reason we've asked the 24 of you to come here this morning is we need six of you to sit on the jury and decide the facts in this case. One of the first questions that I often hear from people is, number one, how long is this going to take?

I don't know any more about the case than you do right now. I know the defendant's name, I know what the charge is.

The system is intentionally designed so that

I don't know any more than you so I don't start prejudging Jury Trial December 2, 2013

the evidence just as we don't want you to start prejudging it. But I have asked the attorneys and both sides assure me they believe this case will be concluded today.

So based on that information, is there anyone here who, for some reason or another, cannot give us

their undivided attention for the remainder of the day, possibly let's include tomorrow up unto, say, 12:00 o'clock? Anyone have any plane tickets, caring for -- is anyone caring for someone who's sick? Are you sick yourself? Do you -- are you the single childcare provider for a child under 12? Any of those things apply, raise your hand, please. Okay. Great. Thank you.

One of the other questions I get is, Well, if you only need six of us, why are there 24 of us here?

In certain cases, people come to jury service and all have had different experiences, life experiences. Some cases more than others generate emotions.

For instance, this is a D W I trial. For different reasons, some of you may have very strong feelings about D W I. That might be because you had someone in your family who struggled with alcoholism, it might be that you know someone or someone you cared for was injured by a drunk driver, and because of that, we need to make sure that whichever people we put on the jury are not encumbered by feelings that would make them lean towards Jury Trial December 2, 2013 one side or the other. Does that make sense? What we're going to do here this morning is called voir dire. You've taken an oath so far. And that

oath was not to follow the law. Okay. You've only taken an oath to be truthful about your feelings and express those feelings. That's going to become very important because the first six of you on the jury are on the front row right now, beginning with Ms. -- is it Radice?

VENIREPERSON: Radice.

THE COURT: Radice. Ms. Radice. Ms. Radice, all the way to Ms. Stelling-Parker.

VENIREPERSON: Yes.

THE COURT: Y'all are the jury. The six of you right there on the front row. As time goes on and the lawyers start asking questions, one of them may strike you.

Each side is allowed to strike three people. They can strike you for any reason whatsoever except gender, race and national origin. Okay? But if one side hears a response from you and -- that causes them concern, they may decide to strike you. If they struck one of you, then

Kelly Mercer, you would be, sir, on the jury. And it goes on down the row. Now, the reason I tell you that is because sometimes people feel a little shunned if they're in the back row and the four of you on the back row because you Jury Trial December 2, 2013

don't get asked as many questions as, say, the people on the front two rows and I wanted you to understand why that is. Because eight out of 10 times, the jury is picked

within the first 15 or 16. So, David Christopher, raise your hand? Everybody to Mr. Christopher's right and everybody on the front row, you're in the splash zone at

Sea World. You're most likely going to get picked. The people, though, to the left of Mr. Christopher, don't fall asleep. About one out of every eight or nine times, we don't even get six people with the 24 that are here. All right.

Is there anyone here that speaks another language besides English? Carbajal? VENIREPERSON: Yes, sir.

THE COURT: What do you speak?

VENIREPERSON: Spanish. THE COURT: Thank you. Did I butcher your name? Did I say your name wrong?

VENIREPERSON: No, it's right. THE COURT: It's correct. Okay. Thank you.

Anyone else? Mr -- is it Noi-Mingle?

VENIREPERSON: Yes. THE COURT: Mr. Noi-Mingle, what languages do you speak?

VENIREPERSON: It's a local dialect. Gan.

Jury Trial December 2, 2013

THE COURT: I can't hear you. VENIREPERSON: It's a local dialect. Gan.

THE COURT: Okay. And the reason I ask that is because, before I became a lawyer, I was in the military for 22 years. And one of the first things they do is they want to find out if you're someone that can learn a second

language quickly. I took the test. I was anxious to get the results. I came back and said, How did I do? And they said, We're shocked you can even speak English. You're

terrible. You don't have the gift of hearing those subtle, you know, words. And so for those of you who speak more than one language, I really, really wish I had that ability. But I don't know how long you've been speaking English.

When we get through with the process today, if you -- if you have had trouble understanding what was said, let me know. Okay? We don't want to put you on a jury if you're having trouble understanding what's taking place. But if you are able to understand, we would love to have you. Does that sound fair?

VENIREPERSON: Yes. Because I feel like I

not understanding a lot of English. You know, I feel like I understand sometimes a few but it's not 100 percent. My

English is --

THE COURT: Well, your English is better Jury Trial December 2, 2013 than my Spanish, I'm sure. VENIREPERSON: I'm going to try. If I feel like I'm going to --

THE COURT: You're the best person to know. So when we're done, before -- before we pick the jury, I'll

ask you, Ms. Carbajal, were you able to keep up and understand everything? And you'll let me know. And if you are, great; and if you're not, then we'll excuse you.

VENIREPERSON: Sure.

THE COURT: Okay? All right. Thank you both very much.

Okay. We're going to go over some things that also causes sometimes people to have some reservations. I want to explain this to you. What our goal is is not to exclude you from jury service. That's

not our purpose. Our purpose is to keep from putting you in a position where we feel like you're going to have to violate your conscious. Okay?

And by that, I mean, I went to law school with someone who thinks -- and still this day, I run into him and he still feels this way. He thinks that this country has spent entirely too much money criminalizing the use of marijuana. And he thinks the marijuana laws are just dumb. That it causes young people to have a criminal record. That this smoking marijuana is no different than Jury Trial December 2, 2013

alcohol. And so if he were called to be on a jury and then the jury will take a second oath and that oath will be that you will follow the laws that I give you. Okay? He would have a very difficult time being on a marijuana trial because he believes that law is just retarded. Okay?

So if he really believed the state proved their case and the person was in possession of marijuana, he would be in a conflict between what he thinks he should do and what he's taken an oath to do. He would want to find the person not guilty because he thinks the law is unethical and unfair but he took an oath to follow that law.

If you have any conflicts like that, that's what we're just trying to find out from you. People ask me all the time in social gatherings -- it happened over

Thanksgiving -- Hey, you're a judge, how do I get out of jury duty? I don't know how to tell you to get out of jury duty but I can tell you how to get on the jury. All right?

Both sides are going to be listening for things that cause them concerns. If you sit there and you're quiet, welcome to the luxury seats because no one is going to strike you. Okay? So this is your time to be honest about how you feel, express yourself, there are no right or wrong answers whatsoever.

Now, this is a criminal case so that means Jury Trial December 2, 2013 the State of Texas -- and I'll introduce the parties to you in just a moment -- has the 100 percent burden in this case. That means that they are going to have to prove certain things to you. Those things are like a checklist of elements that constitute the offense of driving while intoxicated. And if they do not convince you beyond all reasonable doubt of all of those elements, then you are required to vote not guilty.

Does everyone understand that?

Okay. Now, here are the parties. First of all, to the right is my bailiff, Danny Jones. I've already introduced myself. I'm Barnett Walker. The woman to my left is my court reporter, Marigay Black. Representing the State of Texas today is assistant district attorney, Justin Wilson.

MR. WILSON: Morning, everybody. VENIREPERSONS: Morning.

THE COURT: Assisting Mr. Wilson is assistant district attorney, Ms. Geeta Singletary. MS. SINGLETARY: Good morning.

THE COURT: The defense attorney in this case is Mr. Kevin Brooks. MR. BROOKS: Good morning.

VENIREPERSONS: Morning.

THE COURT: Mr. Brooks' client and the Jury Trial December 2, 2013 defendant in this case is Ms. Mellannise Henderson-Love. THE DEFENDANT: Good morning.

VENIREPERSONS: Good morning.

THE COURT: Does anyone recognize or know any of the parties that I've just mentioned?

Yes, sir. Is it Mr. Kendall? Or, no.

Mr. Brown? VENIREPERSON: I recognize the bailiff, Your

Honor.

THE COURT: You recognize the bailiff? VENIREPERSON: Yeah.

THE COURT: How do you know him?

VENIREPERSON: I'm a deputy sheriff in Collin County.

THE COURT: What do you think about him?

VENIREPERSON: He's a pretty good egg. THE COURT: Is he all right? Okay. Good.

Anything about the relationship between you and my bailiff that would be unfair to the other side, that cause you to lean one way or the other?

VENIREPERSON: No, Your Honor.

THE COURT: Okay. Thank you. Anyone else?

Is there any -- now, look to your right and left. I know it feels kind of funny to stare at someone Jury Trial December 2, 2013 right next to you. Look behind you. Do you recognize anyone else on the panel?

It's not that unusual. About one out of every six or eight times, we'll have either co-workers, husband and wife, boyfriend/girlfriend, that kind of thing.

And that's perfectly fine for those to serve on the same

jury provided that you're comfortable arguing with that person. Okay? If you're not, then that would be unfair.

So I'm glad no one knows anyone.

Now, one of the things that kind of comes up is, you know, it's almost unavoidable, that one of the attorneys, or both, are going to ask you questions that may

seem like it's prying into your private life. They're not trying to embarrass you. They just want to know a little

bit more about you. If you're asked a question and the answer does apply to you, for instance, Have you or someone in your family ever been, you know, arrested for D W I, if that applies to you, you're required to raise your hand.

However, if they say, Well, do you want to talk about the particulars, you are not required to do that in front of 23 of your newest friends. Okay? You can just say, I don't

want to discuss the details of it in public, and we'll bring you back in when it's just the attorneys and myself.

Is that fair? All right.

Who here knows what the Fifth Amendment is, Jury Trial December 2, 2013 just a basic -- well, that went quick. Ms. White. What is it?

VENIREPERSON: It's the right to due process. THE COURT: Close. That's the Sixth

Amendment.

VENIREPERSON: Fifth. Yeah. The due process. You have your rights and your --

THE COURT: It falls under the umbrella but what specifically is the Fifth Amendment? VENIREPERSON: Well, that's what I thought it was.

THE COURT: You're within what they call the umbrella level.

Yes, sir.

VENIREPERSON: You have the right not to incriminate yourself.

THE COURT: Correct. Okay. We have three

different types of trials in this country. We have civil cases. If you sue someone or they sue you, you can absolutely make them go up on the --

up on the witness chair and testify and ask them questions under oath. If that's the -- that's the civil cases.

Then we have family law cases. That's generally when there's divorces or C P S is getting Jury Trial December 2, 2013

involved about whether they're going to take a child out of a home. Once again, you can put that parent up on the stand, the State of Texas can call that parent, make that parent answer questions under oath. The only case at trial where you cannot force someone to testify is in a criminal case. Okay. So

if you're a defendant and you've been accused of a crime, the State of Texas has absolutely no right whatsoever to call you as a witness at your own trial. That was an amendment to our constitution. Ms. White, why do you think that our

forefathers wanted to give special protection to someone in a criminal case? VENIREPERSON: Because when the British were in our country, we didn't have the same rights.

THE COURT: That's right. Who knows what the number one fear in America is? Every year they do a poll and it's number one every time.

VENIREPERSON: Being accused of something you didn't do.

THE COURT: Close. Yes, sir?

VENIREPERSON: Mr. Jones, the bailiff, earlier stated that he thought it was public speaking.

THE COURT: Mr. Jones is going to get a beatin' at lunch.

Jury Trial December 2, 2013

(Laughter) THE COURT: Yes. Thank you, Mr. Jones.

Appreciate you.

It is. It's public speaking. All right. And here's the problem and here's the reason why our forefathers said, you know what, whenever there is a criminal case, we are going to give special protection to the person accused for this reason.

Everybody on the front row, get ready with

your answer, here's your question: Suppose that you are sitting in the audience and the person who gets up to speak is extremely nervous. What would you see or hear that would tell you that that person is nervous? Ms. Radice?

VENIREPERSON: Stuttering.

THE COURT: Stuttering. Fantastic. Is it Sbaiti?

VENIREPERSON: Sbaiti.

THE COURT: Sbaiti. Mr. Sbaiti? VENIREPERSON: I think they would probably fidget a lot.

THE COURT: Perfect. Ms. Simonson.

VENIREPERSON: Same thing. They would be shaking a little.

Jury Trial December 2, 2013

THE COURT: Tremoring, uh-hum. What do you think, Mr. Campbell?

VENIREPERSON: Shaky voice, shaky hands.

THE COURT: Thank you. Ms. Walker?

VENIREPERSON: They're fidgeting, the stuttering, the vibes -- THE COURT: And what?

VENIREPERSON: They're pausing in their speech. THE COURT: Kind of trying to grasp their next thought?

VENIREPERSON: Correct. THE COURT: What do you think, Ms. Sterling-Parker?

VENIREPERSON: It's Stelling. There's no R in it.

THE COURT: Oh, I'm sorry.

VENIREPERSON: That's okay. Normally, I would -- my first thought would be sweaty.

THE COURT: Sweating.

VENIREPERSON: Yeah. THE COURT: Okay. Mr. Mercer?

VENIREPERSON: I would say fidgeting, maybe avoiding eye contact.

Jury Trial December 2, 2013

THE COURT: Looking down. All right. Is it Byther?

VENIREPERSON: Byther.

THE COURT: Mr. Byther? VENIREPERSON: Just kind of loss of coherency, just be distracted and nervous obviously.

THE COURT: In law school, I saw someone get called on, one of the first days of criminal law class, and there's 450 people, and we had a reading assignment and the professor was just drilling this young lady. She got so nervous, she just threw up. It was pretty clear that she was nervous.

What do you think, Ms. Carbajal? VENIREPERSON: Like I am now?

THE COURT: Like you are now?

(Laughter.) THE COURT: I can't tell if you are. You're smiling. Is that a nervous smile?

VENIREPERSON: Yes. THE COURT: Okay. Ms. White?

VENIREPERSON: The fidgeting, sweating, avoiding eye contact, everything they were saying. THE COURT: And here's the problem.

Mr. Cassedy, what are all of those also a sign of?

VENIREPERSON: Guilt.

Jury Trial December 2, 2013

THE COURT: Lying. Right? VENIREPERSON: I didn't do it.

THE COURT: Yeah. People start to sweat, they're stuttering, they're fidgeting, they won't look you in the eye, they, you know, start to seem really nervous.

Could someone mistake that, Mr. Cassedy, as lying?

VENIREPERSON: Certainly. THE COURT: Okay. And our forefathers understood that. They're, like, you know what, we don't

want to put someone in a position where their freedom is at stake and they're put on the stand and the jury might see

these type of outward signs, and hear the stuttering and the shaking and the loss of concentration and refusal to look them in the eye and think that, oh, that's a sign the person is lying. So under the rules of our state and under the rules of our constitution, a defendant is never required to testify.

Now, that brings up a problem because my

mother is a trial court T V show junkie. And she loves to watch, and then she'll call and ask me all of these questions. And she doesn't understand the whole Fifth

Amendment, in my opinion. So I explained it to her just like I explained it to you. And then she says, I don't think you understand, I understand what you're saying, you're not understanding what I'm saying.

Jury Trial December 2, 2013

Who here has small children at least two, under the age of 15? Mr. Sbaiti. How old are your children?

VENIREPERSON: Seven months and two and-a-half years.

THE COURT: I need somebody a little bit older. Mr. -- is it Kieffer? VENIREPERSON: Yes, sir. My kids are nine and 11.

THE COURT: Perfect. The nine-year-old comes in to you and says, Daddy, daddy -- is the 11 boy or girl?

VENIREPERSON: 11 is a girl. THE COURT: Daddy, daddy, she hit me. You bring your 11-year-old daughter in and you say, What did

you do, tell me your side of the story. She says, Father, I do not wish to discuss it. What do you infer from that?

VENIREPERSON: I would infer that my nine-year-old is lying because he's the one that would hit her. I wouldn't think she had done it.

THE COURT: She denied it; right?

VENIREPERSON: Yeah. THE COURT: That's my mom, like, that's how

I raised you three boys and your sister. I bring you all in, I ask questions, and then I get to the truth. And what Jury Trial December 2, 2013

my mom is trying to say is, Look, I get what you're saying, but just because I walk through a door and somebody puts a sign outside that says Collin County Court at Law Number

Two, I can't stop being Jan Walker. I'm 60 some odd years old. This is how I feel. If you don't -- you're not guilty, you should be willing to stand up and answer

questions. Okay? I can't stop the fact that that's how I feel. Okay. Just because -- and turn that off just because I walk into a courtroom.

And then I understood. Okay, for her, she's the type that would say, you know what, I'll get to a mountaintop, rooftop, and shout my innocence. But she

doesn't have a fear of public speaking. Okay? What that comes down to is, my mom would be a fantastic juror because she's very fair, she's very thorough, she has great

instincts, but she can't sit on a criminal case because she has, honestly -- and we're all required to be honest about

it -- said, Listen, if the defendant doesn't get up and testify, it might affect how I decide the case because I feel like innocent people would be willing to testify.

So with that in mind, who's kind of -- on

the first row. We'll go row by row. Who's kind of like my mother? If the defendant does not testify, it might -- I'm not saying it would -- but it might affect how you decide a case? Would you raise your hand. We'll go one at a time.

Jury Trial December 2, 2013

Ms. Stelling-Parker. VENIREPERSON: Very good.

THE COURT: Tell me your feelings.

VENIREPERSON: I understand the not wanting to get up and talk because I'm the same way. I'll have the nervous hands and all. But I'm kind of like your mom. If

I haven't done something, I'm going to make sure that everybody around knows it.

THE COURT: Okay. Perfect. Let me come back to you. Who else? Mr. -- is it Byther?

VENIREPERSON: Byther.

THE COURT: Mr. Byther, tell me your feelings.

VENIREPERSON: I would be anxious to tell my story, my side of the story. THE COURT: Mr. Byther, where were you on

August 26th about 4:00 o'clock this year?

VENIREPERSON: August 26. I don't remember. THE COURT: You don't have any information you can give me?

VENIREPERSON: No. THE COURT: Okay. I'll come back to you too then.

Who else? Ms. White, did you have your hand Jury Trial December 2, 2013 up? VENIREPERSON: Yes, I did.

THE COURT: Okay. Tell me --

VENIREPERSON: Well, it's just being a teacher and it's been my experience because kids won't speak because --

THE COURT: Okay. VENIREPERSON: Feel like people don't want to stand up and speak up for themselves, they're hiding something. THE COURT: I'm going to give everyone a

chance because we're going to go through a couple of scenarios. If your answers change, now I want to raise my hand, or, hey, I raised my hand before but I want to change my answer, just let me know.

On the second row, if the defendant doesn't testify, could it possibly affect how you decide this case?

Raise your hand. No? All right.

On the third row, if the defendant doesn't testify, it might cause you to rule one way or the other.

Raise your hand. All right.

Now, I've been both a prosecutor in this county and I've been a defense attorney in this county. I will tell you that as a defense attorney, I had lots of clients who wanted to testify that I didn't want to Jury Trial December 2, 2013

testify. Okay? Because they don't come across very good. I've also had people that I said, You can't go testify because I can't support perjury and you're guilty so you have to sit here and just be quiet. Okay? But here's the problem.

On the second row, how do you respond to this? How does a person who's innocent, how would they act, what would they feel like if they got up here to testify because they've been falsely accused of a crime?

How do you think that person with would act, Mr. Cassedy? VENIREPERSON: Might be angry.

THE COURT: Angry.

What do you think, Mr. Lewis? VENIREPERSON: I would think they would be nervous that if -- that they might say something that could be misconstrued. THE COURT: Okay. What about Ms. Parker?

How would an innocent person who's testifying, how do you think they would act? VENIREPERSON: I think they would be angry.

THE COURT: You think they would be angry.

Would you be angry? VENIREPERSON: I would be very angry.

THE COURT: Okay. Is it Sennett?

VENIREPERSON: Sennett.

Jury Trial December 2, 2013

THE COURT: Mr. Sennett, what would you expect them to act like?

VENIREPERSON: You know, if I was in that situation, I would try to be more composed. I would think you would want to be composed to kind of show the truth.

THE COURT: Okay. So you're kind of confident that in the end, the system is going to work everything out?

VENIREPERSON: Yeah.

THE COURT: Perfect. Mr. Kieffer? VENIREPERSON: I would think you would try to act composed but I would think that you would be nervous, I think you would act nervous. THE COURT: Okay. Nervous.

Mr. Christopher.

VENIREPERSON: I might put myself in that situation. Underneath certainly would be perturbed, angry, distraught but I agree, I would act as composed as possible and concise and hope that the facts would reveal themselves and the jury sees them.

THE COURT: Thank you.

Mr. Kendall. VENIREPERSON: Well, I think that they would be almost too reserved, afraid to speak if they were falsely -- if they were falsely accused and they're already Jury Trial December 2, 2013 in that predicament, then I would -- I myself probably would be -- would hold back, afraid that something else was going to go wrong that I didn't expect.

THE COURT: Okay. So you're going to -- you would expect to kind of proceed cautiously.

VENIREPERSON: Right. Tread lightly.

THE COURT: All right. Mr. Brown. VENIREPERSON: Your Honor, it could be various, you know, from anger to reservation to being scared. Could be all the emotions. THE COURT: Could run the whole gamut.

Mr. Pate.

VENIREPERSON: I think someone would be maybe angry, maybe a little bit nervous, maybe passionate about their innocence which may come across as anger.

THE COURT: Sure. Is it Burdick?

VENIREPERSON: Yeah.

THE COURT: What do you think, Mr. Burdick? VENIREPERSON: If it was me, I would be angry that I was up there.

THE COURT: Why would you be angry? VENIREPERSON: Because I knew I was innocent if I knew and I would be argumentative --

THE COURT: Okay.

Jury Trial December 2, 2013

VENIREPERSON: -- to the person asking certain questions.

THE COURT: I think I'm kind of like you, I get argumentative if I feel strongly about something sometimes.

Mr. Noi-Mingle, how do you think a person would act? VENIREPERSON: Mixed emotions.

THE COURT: Mixed emotions?

VENIREPERSON: Yes. THE COURT: Mr. Moore?

VENIREPERSON: I think it would be pretty hard for most people not to be nervous. THE COURT: Is it Spruiell?

VENIREPERSON: Spruiell.

THE COURT: Spruiell. VENIREPERSON: Uh-huh.

THE COURT: Ms. Spruiell, how do you think

an innocent person would react up there? VENIREPERSON: Depending on the male or female. I think a female that was innocent, I mean, I would, I would boo hoo. THE COURT: You would cry?

VENIREPERSON: Oh, yeah.

THE COURT: I want to come back to that.

Jury Trial December 2, 2013

About 12 times I've asked this question and that's the first time someone has said that.

Mr. Fried?

VENIREPERSON: Freed (phonetic). THE COURT: Freed.

VENIREPERSON: I guess a combination of being angry and being frightened that it might go wrong even though I'm innocent.

THE COURT: Now, raise your hand if you -- if you saw Ms. Fried -- I'm sorry -- Ms. Spruiell on the stand and she was crying, who thinks that that might be because she's guilty? Yeah.

VENIREPERSON: That's iffy. I would probably cry along with her.

THE COURT: See, therein lies the problem and why I would tell my clients a lot of times, Look, I'm not sure I want you to testify, because people have all types of different images in their mind of what an innocent person would act like. They want to see you composed because this is going to work itself out. They want to see you angry because you've been falsely accused. They're crying. You know, I don't know how you're going to meet all of these expectations, you know. And I would tell them, you know, it's just like a doctor/patient Jury Trial December 2, 2013

relationship. When you're the patient, you're in charge, not the doctor. But if you go to see a surgeon -- Mr.

Pate, let's say you go see a surgeon, he tells you you need surgery. You might go to get two or three other opinions, but if they all said you needed surgery, you think you might tend to listen to them?

VENIREPERSON: I think so. THE COURT: Same thing with the lawyers.

Sometimes the lawyers might say, You know what, I don't

want you to testify, you don't come off right, you're too angry, you're too hostile, you're too this, too that, whatever, you're too talkative, that kind of thing. So sometimes the attorney says, you know, there's just no need.

The State of Texas has the complete burden to prove the case. By our law, Mr. Brooks and his client can sit here and play Angry Birds, Words With Friends, take a nap, they can do anything they want. She's done

everything she's required to do under the law just by being here. But for a lot of people like my mom, that's not enough. You ought to be willing to stand up and defend yourself. Okay. The law doesn't require it. My mom requires it. That make sense?

We're also going to want to talk to you about your prejudices and biases. And when I say Jury Trial December 2, 2013

prejudices and biases, I'm not talking about racial prejudice or racial bias. We're talking about things that you really, really like or really dislike.

For instance, I am very biased towards my father. I love my dad. We've got a fantastic relationship. If my dad tells me he caught a bass and it

was this big and it was in the river behind the house, then that's it. I don't need to see the bass, I don't need a

witness, I don't need a photograph. My dad caught a bass, it was that big and it was in the river behind my house. The State of Texas could come in here, nine of the world's leading oceanographers and say, Bass don't

even swim in that river. That just means dad caught the last one. Okay? It doesn't change the fact that I'm going to believe what my father says.

Some people have, not to that degree but to a large degree, they have those kind of feelings about law enforcement because they have people in their families that are law enforcement maybe. Someone who's in law enforcement has saved their lives or saved someone who's close to their lives. So we want to talk about that kind of thing. I'm going to let the attorneys talk to you now. They're going to take about 30, 45 minutes. Share your feelings with them. In between, we're going to take a Jury Trial December 2, 2013 break. I'll give you a 15-minute break. Now here's the rules for the break.

You need to call someone, tell them that

you're serving on a jury, or that you're doing jury service, that's fine. Do not tell them what kind of case this is.

Why do you think I don't want them to know what kind of case this is, Mr. Pate?

VENIREPERSON: They could possibly tell you something that -- THE COURT: Let me tell you what I know about D W I.

VENIREPERSON: Yeah. THE COURT: Let me tell you how many drinks you can have before you're drunk. That kind of thing.

Both sides in a case have had -- have equal access to the evidence in the case. They have witnesses, they've picked the case, they designed their case, can't combat what

somebody is telling Mr. Pate over the telephone. Okay? So don't tell anybody what kind of case it is. They're going to want to talk to you and share their wealth of knowledge.

Secondly, do not become a detective on your own. We had a case where someone used their smartphone to go and check some information out. The witness said that the road was one way going east and one lane going west, Jury Trial December 2, 2013

and the person on the jury thought that wasn't correct. So they used Google maps on their phone. And sure enough, it was two lanes going east, two lanes going west, that person was a liar. Mr. Christopher, have you seen any construction going on in Collin County?

VENIREPERSON: Quite a bit. THE COURT: At the time of the offense, it was one lane going each way, not any more. Okay? So do not go and get your own information. We'll bring the evidence to you. That is unacceptable and causes a mistrial.

Also, when you're outside, don't come back in, wait until the bailiff brings you in. The reason for that is we don't want someone to see us talking to you and wonder what's going on. We want to keep everything on the up and up.

Please take a good look at where you're seated because you have to sit in those exact same chairs. The reason is both sides are going to take a copious amount of notes. And it is important that they make sure that

they assign those notes to you. Lastly, we do not have a definition in the State of Texas for what beyond all reasonable doubt means.

The attorneys are not going to be able to give you a Jury Trial December 2, 2013 definition. They're going to give you what it doesn't mean, that kind of thing.

I can tell you, Ms. Radice, if you're on this jury, it means whatever you say it means. When there's been enough evidence that you don't have any reasonable doubt left in your mind, then they reached that burden. Mr. Sbaiti, you may require more evidence than she does. Ms. Simonson, she may require more evidence

than both of you. It's an individual standard. But when you don't have any reasonable doubt left, the state has met their burden. If you do have a reasonable doubt left, they state has not met their burden. All right? Any questions before we begin?

All right. You have to speak -- you're

going to be doing voir dire with the state first. They get to go first. Please do not talk to -- Mr. Wilson, are you going to do voir dire?

MR. WILSON: Yes, sir, I am. THE COURT: Please don't talk to where just

Mr. Wilson can hear. Okay? Because I have to hear everything that's said. Because one side may object and I have to make a ruling.

That brings me to my last point. For the six of you that are chosen for this jury, we have -- you Jury Trial December 2, 2013 and I have very different jobs. You will be listening to the witnesses, you will be examining the evidence, you will be talking and discussing the case with one another when

the case is over and trying to decide what evidence is believable, what testimony is believable, that kind of thing. I will not be up here doing that. I will not be

judging the credibility of the witnesses or examining the evidence. I will handle all of the legal issues. When one side objects, I'll decide whether or not that objection

should be overruled or sustained. Okay? So I'll handle all the legal issues. That may require that I have you leave the room so that the attorneys can talk freely. It doesn't make any sense for one side to object to certain evidence and I agree that that evidence should not be admitted and you're sitting in here listening to it. Does that make sense? All right. Thank you.

Mr. Wilson, you have the panel.

JURY VOIR DIRE

MR. WILSON: Thank you judge. May I use the projector, please.

THE COURT: Yes, sir. MR. WILSON: Good morning, everybody.

VENIREPERSONS: Morning.

MR. WILSON: As the judge introduced me Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Wilson Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks Jury Voir Dire by Mr. Brooks The reason, we've taken all the notes we're going to take about you, I'm going to announce the six of you who are going to be with us for the remainder of the trial. The rest of you, you need a note showing you've been here, stay behind when I release everyone else and my bailiff will provide you the form. All right? Thank you very much.

Bailiff, take charge of the panel.

THE BAILIFF: All rise. THE COURT: May I see the attorneys at the bench.

(The jury panel exits.) THE COURT: All right. Let the record reflect that all of the panel members are outside. All the parties are present. Challenges for cause from the state?

MR. WILSON: The state offers challenge for cause juror number one, Robin Radice. THE COURT: What says the defense?

MR. BROOKS: Defense would agree.

THE COURT: All right. Struck by agreement. MR. WILSON: Juror number five, Loretta

Walker.

THE COURT: What says the defense?

MR. BROOKS: What grounds? MR. WILSON: She said that she would not be

able to separate her prior D W I experience from the defendant and that she would be comparing what the kind of drinking and location and circumstances of her arrest to what happened with the defendant.

MR. BROOKS: I agree. THE COURT: Number five, Loretta Walker, is struck by agreement.

Next. MR. WILSON: Number eight.

THE COURT: What says the defense?

MR. BROOKS: I think number eight, I think he rehabilitated himself, judge.

THE COURT: On what grounds?

MR. WILSON: Your Honor, my grounds are that he stated that he would need to hear from the defendant, hear her testimony, so he would have difficulty following the Fifth Amendment. THE COURT: I've got him marked as on the Fifth Amendment as well.

MR. BROOKS: Yes, I see that on here. I agree, judge.

THE COURT: You agree to number eight being struck?

MR. BROOKS: Yes, I do. THE COURT: Number eight struck by agreement.

Next. MR. WILSON: Juror number 10, Cynthia White.

She also was one who indicated a problem following the Fifth Amendment. THE COURT: What says the defense?

MR. BROOKS: Agree, judge.

THE COURT: Struck by agreement. Next.

MR. WILSON: Juror number 13, Michelle

Parker, said that she would not be able to convict based on mental faculties and would also require a breath or blood specimen.

THE COURT: What says the defense? MR. BROOKS: Agree, judge.

THE COURT: Number 13, Michelle Parker, struck by agreement. Next.

MR. WILSON: That's all from the state, Your

Honor. THE COURT: Any from the defense?

MR. BROOKS: Juror number six, judge. She has said that law enforcement would have more credibility with her from the outset than any other witness. THE COURT: What says the state?

MR. WILSON: Your Honor, could we bring the juror number six back in and talk to her? THE COURT: I think she was very clear about her law enforcement bias. Plus I have notes on her that she also raised her hand when I was explaining the Fifth Amendment.

MR. WILSON: Then we have no disagreement, Your Honor. THE COURT: Number six is struck by agreement.

Any other challenges from the defense? MR. BROOKS: Just one second, judge. No, Your Honor.

THE COURT: What about Mr. Lewis and his law enforcement bias?

MR. BROOKS: Oh, that's right. Yes, number

12. THE COURT: What says the state?

MR. WILSON: Your Honor, I feel like

Mr. Lewis has just said that he would -- he has a lot of respect for law enforcement, that he would give them credibility but I don't believe -- don't believe that we've heard enough to say that he would not be able to follow the law. THE COURT: Number 12 is struck for cause by the court.

And what did the attorneys say about Ms. Carbajal and her ability to understand the English language? I noticed during several questions she responded

she doesn't understand the question. MR. WILSON: Your Honor, I would -- the state would request that Ms. Carbajal be struck for cause.

MR. BROOKS: I mean, I would agree to release her, judge. I don't know if it's for cause but I agree.

THE COURT: She's struck by agreement. Any others?

MR. WILSON: None from the state, Your

Honor. THE COURT: Anything else from the defense?

MR. BROOKS: No, sir.

THE COURT: All right. Check on that, the list of jurors. Looks to me like -- strike your list up to and including number 20.

Ms. Singletary, is that what the state shows?

MS. SINGLETARY: That's what I see, judge.

THE COURT: I beg your pardon?

MS. SINGLETARY: That's what I see. THE COURT: Is that what you show as well, Mr. Brooks?

MR. BROOKS: Yes, judge. THE COURT: All right. Let's go over it one more time to be clear. These are people struck by either cause or agreement. Number one is struck. Number five. Number six. Number eight. Number nine. Number 10.

Number 12. Number 13.

Any objections to those from the state? MR. WILSON: No, Your Honor.

THE COURT: Any from the defense?

MR. BROOKS: No, Your Honor. THE COURT: Strike your lists up to and including panel member number 20, please.

(Recess at 1:06 P M, resuming at 1:17 P M. Defendant present.) THE COURT: All right. Listen closely as I

call over the ones I show you struck. I show the state has struck panel member number two, Mr. Sbaiti. Panel member

number 11, Shawn Cassedy. And panel member number 19, Billy Pate. Is that correct? MR. WILSON: Yes, Your Honor.

THE COURT: I show the defense has struck panel member number 14, Brian Sennett. Number 17, Jon Kendall. Number 18, Robert Brown. Is that correct? MR. BROOKS: Yes, Your Honor.

THE COURT: This will be your jury: Number three, Carol Simonson. Number four, David Campbell. Number seven, Kelly Mercer. Number 15, Matthew Kieffer.

Number 16, David Christopher. And number 20, Michael

Burdick. Any objection to the array of the panel from the prosecution?

MR. WILSON: No, Your Honor. THE COURT: Any from the defense?

MR. BROOKS: No, Your Honor.

THE COURT: All right. Bailiff, would you bring them in. Here's the list.

THE BAILIFF: Yes, sir. All rise.

(The jury panel enters.) THE COURT: When you come in, you can just have a seat anywhere in the courtroom.

All right. Thank you. Everyone else may be seated.

If I call out your name, please gather all

of your possessions, come through the swinging doors, go up to the jury box, go in that swinging door. You can sit on the front row or the back row, whichever you're more comfortable, but please go all the way down to the end of the row just to make room for the other jurors that will be coming in behind you.

The jury will consist of: Carol Simonson;

David Campbell; Kelly Mercer; Matthew Kieffer -- Is it Kieffer or Kiffer?

VENIREPERSON: Kieffer.

THE COURT: Thank you. David Christopher. And number 20, Michael Burdick.

To those of you who were not chosen, dry

your eyes, don't be so sad. But in all seriousness, if we want our criminal justice system to work the way it was intended, then your service is just as important as those

who were chosen this particular day. So with that, you are excused. This concludes your jury service. If any of you need a note, please see my bailiff and we'll provide one showing that you were here today. Thank you for your service.

THE BAILIFF: All rise.

THE COURT: Not you. THE JUROR: Not us.

(The jury panel exits.) THE COURT: Everyone may be seated. As for the six of you who remain with us, please stand, raise your right hand, so I may administer your oath as jurors to you.

(The court swears the jury.)

THE COURT: Carol Simonson. THE JUROR: Yes, I do.

THE COURT: David Campbell?

THE JUROR: Yes. THE COURT: Kelly Mercer.

THE JUROR: Yes.

THE COURT: Matthew Kieffer? THE JUROR: Yes.

THE COURT: David Christopher?

THE JUROR: I do. THE COURT: Michael Burdick.

THE JUROR: Yes.

THE COURT: Thank you. You may be seated. By the oath you've taken as jurors, you

become officials of this court and active participants in the public administration of justice. In a moment, the bailiff is going to take you back to what will be called

the jury deliberation room. That's where you will meet and discuss the case, but not until after all the evidence is presented and I've given you your written instructions.

This is very important, that you not discuss

anything about this case or any other case until I've given you those written instructions. Okay? And then you can only do it after the evidence is closed and all six of you are together.

He's also going to give you a badge. That badge serves two very important purposes. One, it lets you gain access to the locked part of the courtroom so you can get back to your jury deliberation room. And it serves as a visual indicator that you're on a jury.

It won't surprise you that when I release

you for lunch in a minute that you're going to go to some restaurant, there will be attorneys, other jurors, prosecutors, defense attorneys and defendants, and they're

talking about cases. If you can hear anyone discussing a case in your presence, go up and let them know that you're a juror and let them know that you can hear the conversation. I've never even heard of a situation where that didn't stop the conversation, but if it doesn't, just

report to my bailiff what occurred and we'll take care of it. Okay? But you have to wear that juror badge on the outside of your clothing where everyone can clearly see it.

The bailiff is going to give you a security briefing also. You're in good hands.

It's now 1:30. Going to take him about 10

minutes to give you that briefing. I'm going to let you go to lunch. Be back here at 2:45. I want the attorneys and

all parties present to be here at 2:40, five minutes early, so we're not keeping the jury waiting when they come back.

I still think we'll finish this in one day. With that, follow the bailiff, and he'll give you your security briefing.

Thank you for your service. THE BAILIFF: All rise.

THE COURT: When you come in, just come in; everyone will always be standing. Just have a seat when you come in.

(The jury exits.) THE COURT: Everyone may be seated. I'll see everyone back at 2:40.

(Recess at 1:25 P M. Proceedings resume in Volume 3.)

STATE OF TEXAS ) COUNTY OF COLLIN ) Trial on the Merits December 2, 2013

1 REPORTER'S RECORD VOLUME 3 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR 3 THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS 6

7 8 _____________________________________________

9 TRIAL ON THE MERITS _____________________________________________ Trial on the Merits December 2, 2013

1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 7 8 Attorneys for The State of Texas 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 14 Attorney for The Defendant Trial on the Merits December 2, 2013

VOLUME 3 Trial on the Merits

December 2, 2013

PAGE VOL. Arraignment .................................6 3

Opening Statement by Mr. Wilson .............7 3

WITNESS: DIRECT CROSS V. DIRE

CLIFTON CORLEY

By Mr. Wilson 10 v3 By Mr. Brooks 45 v3 11 By Mr. Wilson 60 v3 By Mr. Brooks 63 v3

PAGE VOL. State rests ...............................66 3

Defendant rests ...........................67 3

Both Sides Close ...........................67 3 Reporter's Certificate .....................71 3 Trial on the Merits December 2, 2013

1 ALPHABETICAL INDEX OF WITNESSES

2 DIRECT CROSS V. DIRE 3 Corley, Clifton 10 v3 45 v3 Corley, Clifton 60 v3 63 v3 Trial on the Merits December 2, 2013

1 INDEX OF EXHIBITS

2 Use is indicated as follows: J - Jury R - Record Only D - Demonstrative W/D - Withdrawn ID - Identification Only C- Court

EXHIBIT DESCRIPTION OFFERED ADMITTED USE SX 1 DVD 22 v3 22 v3 J

SX 2 DIC 24 form 42 v3 42 v3 J Trial on the Merits December 2, 2013

(Proceedings occurring in open court, commencing at 2:47 P M. Defendant present.) THE BAILIFF: All rise.

(The jury enters.) THE COURT: Thank you. Everyone may be seated. Let the record reflect that all parties are present. Does the state wish to come forward and read the information?

MR. WILSON: Yes, Your Honor. Thank you. Members of the jury. In the name and by the authority of the State of Texas, now comes the Criminal

District Attorney of Collin County, State of Texas, and presents in and to the County Court at Law Number Two of Collin County, state aforesaid, that one, Mellannise

Henderson-Love, hereinafter styled the defendant, heretofore on or about the 1st day of December, 2012, in the County of Collin and the State of Texas, did then and there operate a motor vehicle in a public place while the defendant was intoxicated, against the peace and dignity of the state.

Signed the Criminal District Attorney of Collin County, State of Texas.

THE COURT: What says the defendant?

MR. BROOKS: If it please the court, members Trial on the Merits December 2, 2013 of the jury, the defendant pleads not guilty. THE COURT: Thank you.

The state wish to make an opening statement?

MS. SINGLETARY: Yes, Your Honor. THE COURT: You may proceed.

OPENING STATEMENT

MR. WILSON: May it please the court. Counsel. Members of the jury.

Nothin'. I've had nothing to drink tonight.

That's the story that the defendant told the officer around 12:47 A M on December 1st, 2012. But the facts as you will hear them through testimony and as you will see them through the presentation of video evidence will paint a very different picture for you.

You're going to meet Officer Corley of the Richardson police department. He's going to tell you about how around 12:47 A M, December 12th -- or, December 1st,

2012, he was driving down the street. He was going to provide backup for another officer. You'll hear testimony from him saying that it's a rare thing that these police officers, when they are

en route to provide backup for another officer, it's a very rare thing for them to pull off and get diverted and wind up taking care of some other situation rather than providing backup to the requesting officer. But in this Opening Statement by Mr. Wilson December 2, 2013

case, Officer Corley is going to tell you that he observed driving facts that made him concerned about the safety of the officer that was up the road ahead and concerned for himself. And so he initiated a traffic stop on the defendant.

When he approached the defendant's car, you're going to hear testimony that he smelled a strong odor of alcohol coming from her breath, that he saw watery

eyes, that he heard slurred speech. When he asked her for her driver's license and her proof of insurance, took an exceptionally long time for her to produce those documents.

He had to ask her a second time for the insurance.

After observing the various factors that he observed at that point in time, Officer Corley asked the defendant to step out of her vehicle, to perform a battery of field sobriety tests, in order to determine whether she would be safe to continue driving on the roads that night.

Officer Corley gave her some simple instructions to perform a test called the horizontal gaze nystagmus test. You will see on video and you will hear the words from the defendant that will show you that this defendant had an extremely difficult time following a simple set of instructions, to follow a stimulus with her eyes, without moving her head. After minutes of trying to get the defendant to follow the simple instructions, the Opening Statement by Mr. Wilson December 2, 2013

officer observed what he needed to observe. He moved on to ask the defendant to perform another couple of tests, the walk-and-turn and the one-leg stand.

The defendant refused to perform those simple tests, tests that the officer will tell you that only take a few minutes to perform, and the reason is because the defendant was consumed with her need to go to the bathroom. Rather than take a few minutes to perform

the tests and then be able to move on and go to the restroom as she said that she so desperately needed to do, she engages in the back and forth with the officer that winds up taking much longer time than would have been necessary had she just performed those tests. Now, after that, the officer felt like he had all the information he needed to place the defendant under arrest for driving while intoxicated. He takes her to the Richardson city jail. And while at the jail, he asked the defendant for a specimen of her breath. You will see on video, you will hear from the words the defendant said, that she refuses to provide that specimen of her breath. She was given the opportunity, even though she said that she had consumed no alcohol at all that night, she was given the opportunity to provide a specimen of her breath, and she refused. And you will find out that a warning, a statutory warning, that the officer read to her Opening Statement by Mr. Wilson December 2, 2013

made her well aware of the consequences of that refusal, 180 days, driver's license suspension. But even with that consequence looming, she still refused.

And I believe that when all is said and done today, you're going to have all the evidence that you need to believe beyond a reasonable doubt that this defendant is guilty of the offense of driving while intoxicated. THE COURT: Thank you, counsel.

Mr. Brooks, would you like to make your opening now or reserve? MR. BROOKS: We'll reserve our right.

THE COURT: All right. Call your first witness. MR. WILSON: State calls Officer Corley.

THE COURT: Officer Corley. Sir, would you

please raise your right hand and be sworn in. (The court swears the witness.) THE COURT: Thank you. State may proceed.

MR. WILSON: Thank you, Your Honor. CLIFTON CORLEY, having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. WILSON: Q. Officer, will you please introduce yourself to the jury and state your name for the record.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. My name is Officer Clifton Corley with the Richardson police department.

Q. And, Officer Corley, how long have you been an officer with the Richardson police department? A. About eight and-a-half years.

Q. Are you a certified peace officer?

A. Yes, sir. Q. How long have you been certified peace officer?

A. About eight of those years.

Q. And what current duties do you perform with the Richardson P D?

A. The duty I'm assigned now is routine patrol which includes traffic stops, answering calls for service, and so forth.

Q. Are you a field training officer as well?

A. Yes, sir. Q. What duties do you have as a field training officer?

A. As a field training officer, I will take new officers that are coming to the street and show them the basic training that they will need to continue to a successful career as a police officer. Q. Describe to the jury the training and education that you have to undergo in order to become a certified peace officer.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. To become a police officer, I was hired by the city first and then the city put me through an academy to become certified by the state. It's an academy that's about six months long. Once we graduate that police academy, we go to our city's, what we call a mini academy where we undergo another 45 days of training.

Once that occurs, we complete that successfully, we move on to our field training officer, who we do about three months of field training, and then that field training officer, or a series of, will determine if we are suitable to continue.

Q. Are you certified to perform the standardized field sobriety tests? A. Yes, sir, I am.

Q. How long have you had that certification?

A. About eight and-a-half years. Q. Have you undergone any refreshers during that eight and-a-half year time span?

A. I have undergone two refreshers, the last one being about a year and-a-half ago.

Q. Over the span of your career with the Richardson police department, would you say you have performed few or many D W I stops?

A. I would say -- I would call it many. About 50 or so.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. Now, I'd like to direct your attention to December 1st of 2012. What were your duties that night?

A. Again, I was on basic patrol that night. It was

an evening shift. Working the east side of Richardson. Q. And so were you patrolling the east side of Richardson at about 12:47 A M that night?

A. Yes, sir. Q. And is that area a public place?

A. Yes, sir.

Q. Is it in Collin County, Texas? A. Yes, sir.

Q. What did you observe?

A. About that time, I was actually dispatched to back up another officer on east Renner Road. While

traveling to that location, about 12:45 or so in the morning, fairly light traffic, on my way to back up this officer, I noticed a black 2003 Lexus E S 300 sedan. First noticed it weaving within its lane a little bit. I decided that my priority at the time was to get to my back-up officer so I began to go around the vehicle.

Q. Officer, I'm going to stop you right there. You mentioned that your priority was to respond to the officer who requested backup. Why is it important, why did you make that your priority?

A. When an officer calls for backup, they either Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson have something that they feel is in danger or they need assistance with. So I want to get to that officer as quickly as I can safely do so to make it a safer environment for them or provide assistance if needed. Q. Did you see any other traffic offenses being committed while you were en route to provide backup?

A. I did note that I -- I witnessed a red light being run at some point on my way to that -- to back up the officer.

Q. And how did you respond to seeing the red light being run?

A. I didn't believe that it was such a violation that I needed to disregard the backup and make that traffic stop.

Q. And now let's move forward to, you were talking about the Lexus E S 300 that you observed weaving in its lane. Tell us more, explain to the jury more about what you observed with that car?

A. What first caught my attention, again, this was another vehicle that was on the roadway as I'm trying to get to the back-up officer. I noticed this vehicle was

swerving in its lane to some degree. I remember making the decision, I'm going to go around this vehicle to get to the other officer I'm trying to assist.

Q. And was that other officer -- where was that Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson officer located in relation to where your vehicle and the Lexus were located?

A. At the first time I saw them, approximately three-quarters or so of a mile ahead. Q. So on the same street then?

A. Yes.

Q. And were they within -- I guess within sight? A. They were becoming within sight. I don't remember if I could actually see the officer at the time that I first noticed the vehicle. Q. And what happened as you were -- you said that you were about to try to pass the Lexus. What happened as

you attempted to pass? A. The Lexus was in the right lane, stayed in the right lane until I began to pass in the left lane. This is a two-lane road, two lanes going the eastbound direction. I was passing the Lexus on the left side and, just as I began to approach, the Lexus came over into the left lane without signalling, causing me to -- I had to brake hard and swerve a bit to the left to avoid a collision.

Q. So when you say the vehicle came over, can you provide a little bit more detail as to what you mean by the vehicle came over?

A. It seemed to me as if it was possibly a quick lane change. Again, without signalling. It was to such a Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson close proximity to me, I felt like there was going to be a collision if I didn't avoid it.

Q. Did the vehicle actually cross over the dividing lines? A. I believe they came -- they came -- the left wheels came all the way over the dividing line. I believe about half of the vehicle came into the left lane. Q. And was there any -- any objects or other things in the lane of traffic that would have created some emergency that the driver of the Lexus had to avoid? A. Not that I noticed, no, sir.

Q. And so what happened after you hit your brakes

and steered to avoid the collision? A. At that point, I decided I wanted to reassess the driver. I pulled in behind the Lexus to determine if this was a possible intoxicated driver. I observed the Lexus, again, to continue to swerve within its lane. At one

point, it drifted where the left wheels did drive up on the reflectors. I believe they just crossed over the reflectors into the left lane before drifting back into the right lane. I watched the Lexus, the left rear turn signal

turn on for several seconds. The vehicle did not get into the left lane. And then the rear signal went back off. At about this time is when I can see the other officer's overhead lights ahead of me.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. And so did you initiate a traffic stop at that point?

A. Yes, I did.

Q. Why? A. Several reasons. I believe I may have -- may have had an intoxicated driver in front of me, which is a

danger to itself -- danger to the public, danger to me, and my major concern was that I had an officer stopped in the right lane about a quarter mile ahead of us.

Q. Is that why you chose to not overlook this particular person as you overlooked the red light runner earlier?

A. Yes, sir. Q. Let's talk about your approach. How did you approach the vehicle and make contact with the driver?

A. Once we made the traffic stop, the driver stopped in that right lane. I approached on the driver's side, to her window, as she was still sitting in the vehicle.

Q. How many people were in the vehicle? A. She was the only occupant of the vehicle.

Q. And was she the one driving?

A. Yes, sir. Q. So was that person operating a motor vehicle?

A. Yes, sir.

Q. How did you identify the driver?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. I asked for her driver's license which she did end up providing me and that's how I identified her.

Q. And what was the name that you saw on the driver's license? A. It was Mellannise Henderson.

Q. Do you see that individual in the courtroom today? A. Yes, sir, I do.

Q. Will you please point her out and identify an article of clothing she's wearing. A. Yes, sir. Be the female in the brown jacket with the gold scarf or shawl over her shoulders.

Q. If I'm seated in position number one, my trial partner is position number two, which seat position would she be?

A. She would be in four. MR. WILSON: Your Honor, let the record reflect that this witness has identified the defendant.

Q (By Mr. Wilson) All right. Let's talk about the defendant. What did you observe from her upon your initial contact?

A. Upon first speaking with her, I noticed she had kind of watery glazed-over eyes. Slurred speech as I was speaking with her, and I did notice a strong odor of alcoholic beverage coming from the vehicle.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. Was it coming from the vehicle or did you notice it coming from her breath?

A. At that point, as she sat in the car, I couldn't make that determination. Q. And you said that you asked her for her driver's license. Did you ask her to provide any other information?

A. I asked for her proof of vehicle insurance as well.

Q. And how did she respond to that request?

A. She began to look in her purse and throughout her vehicle for her driver's license for several seconds before eventually locating it and she handed me the driver's license only. Q. She didn't hand you the proof of insurance?

A. Not initially, no, sir.

Q. What did you do when she didn't hand you the insurance?

A. I believe I asked her a couple more questions

about whether it was her car and such, where she may be coming from, and then I once again asked her for her proof of insurance.

Q. And what happened then? A. I believe she did provide me a copy of that.

Q. You said that you asked the defendant where she was coming from. How did she respond to that question?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. She told me she was coming from downtown Dallas. Q. And did she say why she was in downtown Dallas?

A. Stated she was coming from work.

Q. What line of work did she say she was in? A. She stated she was an attorney.

Q. And did you have the opportunity to ask whether she had been drinking that night? A. Yes, sir, I did. I asked her if she consumed any alcohol at all.

Q. And what did she respond? A. She stated she had had none.

Q. Did you ask the defendant anything about -- about the driving incident that you had just experienced with her?

A. Yes, sir. I asked her what had happened with her lane change. Q. And how did she respond to you?

A. She -- she stated that she had seen some emergency lights ahead and thought that she wasn't sure what she needed to do, whether she needed to change lanes or not.

Q. What else did you ask her about the traffic? A. I asked her if she had changed lanes and I asked her if she had seen my patrol vehicle behind her when she did, and she stated, no, she did not see the police car Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson behind her -- or, a vehicle behind her. Q. And what did you notice about her responses to your questions at this point in time?

A. I'm not sure what you mean. Q. Well, how did her speech sound to you?

A. Again, I continued to hear the slurred speech.

Q. And did you ask the defendant to exit her vehicle?

A. Yes, sir, I did.

Q. Is your patrol vehicle equipped with a device capable of making a recording?

A. An audio and video recording, yes, sir.

MR. WILSON: Your Honor, may I approach? THE COURT: Yes, sir, you may.

Q (By Mr. Wilson) Officer Corley, I'm showing you what has been marked as State's Exhibit 1. You recognize State's Exhibit 1?

A. Yes, sir.

Q. What is State's Exhibit 1? A. This is a D V D copy of the audio and video recording from my patrol vehicle that night.

Q. Does the D V D also contain a copy of the video and audio that was recorded from the intoxilyzer room?

A. Yes, sir, it is.

Q. And have you had the opportunity to watch both of Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson those videos? A. Yes, sir, I have.

Q. Was the intoxilyzer room equipped with a device capable of making a recording as well? A. Yes, sir.

Q. And have there been any alterations or deletions made to either of those two videos? A. No, sir.

Q. Have you been able to watch those two videos today? A. Yes, sir, I have.

Q. And would you say that they are a fair and accurate rendition of what you observed on December 1st, 2012?

A. Yes, I do.

MR. WILSON: At this point in time, state offers State's Exhibit 1, will tender to defense.

MR. BROOKS: No objection.

THE COURT: State's 1 is admitted. Q (By Mr. Wilson) Officer, after you asked the defendant to exit the vehicle, were you able to smell any alcohol on her breath at that point in time? A. Yes, sir, I was.

Q. Now, let's talk about standardized field sobriety tests. First off, I would just like to talk about them in Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson general. What are standardized field sobriety tests?

A. It's a series of three tests that we use to determine what kind of percentage we believe that a person may or may not be intoxicated.

Q. Are they used all over the nation?

A. Yes, sir, they are. Q. And what are these three tests?

A. There's a horizontal gaze nystagmus, which is

basically a testing of the involuntary jerking of the eyes. There's also a walk-and-turn exercise, and a one-leg stand.

Both of those are a divided attention exercise.

Q. And how are these various tests scored? A. They each have several clues that could be gained

on each one, and once they reach a certain amount of clues, then we believe that that's the highest percentage that that person is intoxicated.

Q. What is a clue?

A. There are several clues. With the horizontal gaze nystagmus, for example, if the eye begins to jerk at a certain spot where the stimulus is, then that will count as a clue, one for each eye. Q. And what's the decision point?

A. A decision point is the point at which the officer decides that the person is indeed intoxicated.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. So if a -- so basically, are you saying, then, that a decision point, is that based on the number of clues that the officer observes?

A. Correct. Q. And does each particular test have a certain decision point associated with it?

A. Yes, sir. Q. And when you reach that decision point, what does

that indicate to you about the individual's level of intoxication? A. That there's a very, very high percentage that they are at least 0.8 [sic] on the blood alcohol content.

Q. What was the environment like when you performed these tests for this defendant?

A. It was actually a fairly mild day for December 1st. I don't -- maybe a light wind. It was dry as well. It was nighttime.

Q. What was the surface like?

A. It's a relatively smooth concrete surface. Q. Was it flat or at an angle?

A. It was pretty flat.

Q. And was there any debris on that surface at all? A. Nothing major, no, sir.

Q. And what about your -- the flashing lights on your patrol car at that time?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. We have the ability to turn off the front strobes on our vehicle and leave just the rear so that our vehicles can be seen from behind so that it doesn't affect any horizontal gaze nystagmus testing. So I was able to turn the front ones off.

Q. Why would the front strobe lights have an effect on horizontal gaze nystagmus? A. The strobing of the light can have an effect on the eyes, the involuntary jerking of the eyes.

Q. But you turned those lights off for the defendant?

A. Yes, sir.

Q. Okay. Let's talk about the horizontal gaze nystagmus test specifically. Was that the first test that you conducted?

A. Yes, sir. Q. And what is horizontal gaze nystagmus?

A. Nystagmus is the involuntary jerking of the eyes.

And in those tests we do are done on a horizontal plain, thus the name horizontal gaze nystagmus.

Q. What causes it?

A. There are some things that cause it but the most common is going to be a high level of introduction of alcohol into the body.

Q. Is alcohol a depressant?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. Yes, sir. Q. So is a depressant something that can cause horizontal gaze nystagmus?

A. Yes, sir. Q. Are there any other substances that cause horizontal gaze nystagmus?

A. I'm sure there are. I'm not familiar exactly which ones there would be but I believe there are.

Q. Would they be things like inhalants or P C P's?

A. Yes, sir. Q. Can something like caffeine cause horizontal gaze nystagmus?

A. Not that I'm aware of. Q. How about stress?

A. No, sir.

Q. How about need to use the restroom? A. No, sir.

Q. How about the wind or something like that?

A. No, sir. Q. And you mentioned that this jerking of the eye is involuntary. So is there -- when you say that, is there anything that a person can do to control that jerking movement?

A. No, sir.

Q. And when you talk about the jerking movement, Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

will you explain to you jury what exactly that really is. A. What you'll see with the involuntary jerking, it's a pretty small movement of the eye. I'm not sure how

else to explain it. It's something that you will see, you have to see up close, and the eye makes a small movement, something like this (Indicating).

Q. Do you see that sort of movement in a person who is not intoxicated or had one of these other inhalants or P

C P?

A. No, sir. Q. Did you attempt to perform the horizontal gaze nystagmus test on the defendant?

A. Yes, sir, I did. Q. And before I go further with that, what's the decision point on the horizontal gaze nystagmus test?

A. Once you have four clues of the six possible. Q. And how are those measured?

A. I'm sorry?

Q. How are those clues measured? A. Well, once you do -- perform the exercise, once you see the nystagmus, the required nystagmus, for each step, then you will count that as a clue. And again, it's one for each eye.

Q. So basically, are you saying, then, that there are three different things you're looking for, one for each Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson eye? A. Yes, sir.

Q. Does that make the total six?

A. Yes, sir. Q. Okay. What are the preliminary steps you take before conducting the horizontal gaze nystagmus test?

A. I will ask a series of questions regarding whether the person has had any brain trauma, been in any fights or car wrecks or anything that would cause trauma to the brain. Another step I will do, I will check their eyes for equal pupil size, which could indicate brain trauma as

well, and I will make sure that they had equal tracking, that both eyes can follow the stimulus. Q. Did you perform those preliminary steps on the defendant?

A. Yes, sir, I did. Q. And what were the results?

A. She had equal pupil size and was able to do equal tracking as well. Q. Did she have any head injuries or accidents that she related to you?

A. No, sir. Q. So in your opinion, did you feel like the defendant was a good candidate for the H G N test?

A. Yes, sir, I did.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. Tell the jury the instructions for the test as you told the defendant that night?

A. I will instruct the defendant to stand with their feet together and their hands down by their side. I will instruct them to keep their head still and I will show them a stimulus, which in most cases, I usually carry this one

pen. It's a white pen with a black top. I will ask if they can see this and they will indicate if they can or not. Which she did. She said she could see it.

I will instruct her that I will move the stimulus from side to side and, at the end of the test, up and down, and I will instruct them to follow with their eyes only without turning their heads. Q. Was the defendant able to follow those instructions?

A. No, sir. Q. What kind of problems did you see with the following of the instructions?

A. I noticed the defendant, after several times being asked, turned her head instead of just her eyes, she would follow the stimulus with her head.

Q. How did you respond when she did that? A. I asked her -- reminded her again that she needs to keep her head still and follow with her eyes only.

Q. And what happened when you reminded her?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. She again turned her head the next time I tried. Q. Did you try anything else to help the defendant out that night?

A. Yes, after several times of reminding her that she is still moving her head, I asked her if she would like to actually physically hold her head with her hands to keep her head still, and she said she would. Q. What happened when you -- or, did she wind up holding her hands to her head?

A. She did. She did hold her hands together -- or, hold her head with her hands.

Q. What happened when you tried to perform the test?

A. Still continued to turn her head with the stimulus.

Q. Did you have any other conversation with her about these instructions, about turning her head? A. It was actually over several minutes that I

actually tried to get her to cooperate with this exercise, so, I mean, there were things that were said. Q. And how did she respond?

A. I remember her telling me that she wasn't able to do it, she was not able to follow with just her eyes only. Q. Even despite all the difficulty the defendant had following the instructions, were you able to observe any clues during that test?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. Yes, sir. I was able to get two of the clues for each eye, so a total of four clues.

Q. And was the decision point reached?

A. On that test, yes, sir, it was. Q. What four clues did you observe?

A. I observed the lack of smooth pursuit, which is

the first thing I would be looking for. Basically, moving the stimulus across the eye, I'm looking for the eyes to roll, like a marble across a table just nice and smooth.

If that is -- if that doesn't occur, then we do have the clue of lack of smooth pursuit. Whereas the stimulus moves, the eyes will jump to try to catch up with the stimulus. I did notice that in both eyes. Q. And so --

THE COURT: Just a moment. I'm receiving an indication from one of the members of the jury that he needs assistance.

Bailiff, would you assist the juror, please.

(Sidebar conversation between the juror and the bailiff.) (Sidebar conversation between the court and the bailiff.) THE COURT: All right. Ladies and gentlemen, we're going to take a quick break for about 15 minutes. All parties except for the panel remain in the Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson courtroom. Bailiff, take charge of the panel.

THE BAILIFF: Yes, Your Honor. All rise.

(The jury exits.) THE COURT: You may be seated. Take a quick break.

(Recess at 3:19 P M, resuming at is 3:31 P M. Defendant present.) THE BAILIFF: All rise.

(The jury enters.) THE COURT: Thank you. Everyone may be seated. Let the record reflect that all parties are back in the courtroom. The jury is back in the jury box. This witness is still under oath.

State, you may continue with your direct examination. MR. WILSON: Thank you, judge.

Q (By Mr. Wilson) All right. Officer, so just to kind of recap, you had observed four clues for the H G N; correct?

A. Yes, sir.

Q. And now, you indicated earlier that you have performed about 50 D W I investigations; correct?

A. Give or take, yes, sir.

Q. Is the horizontal gaze nystagmus test designed so Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson that an average non-intoxicated person can perform the test without turning their head?

A. Yes, sir.

Q. And what does the turning of the head typically indicate to you when you're performing this test?

A. It indicates that the person, for whatever reason, is unable to follow your directions. Q. Does that sometimes indicate to you the possibility of intoxication?

A. It can be a symptom of intoxication, yes, sir. Q. And in your -- in all of your experience, have you run into anyone who had this kind of difficulty following the instructions for horizontal gaze nystagmus? A. From time to time, yes, sir, I have.

Q. And I guess, what was the status of intoxication for those individuals? A. Just about everyone who has trouble following those directions is intoxicated.

Q. Now, I'd like to move on and -- Are you familiar with the idea of divided attention?

A. Yes, sir.

Q. What does it mean? A. It's basically you're asking someone to follow your directions using their mind while performing a physical exercise at the same time.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. Is driving a divided attention task? A. Yes, sir, it is.

Q. And how does alcohol affect one's ability to perform a divided attention task? A. Alcohol will slow the decision-making process as well as the physical ability to do things, such as operate a motor vehicle. Q. Let's move on to the other tests in the standardized field sobriety test battery here.

Are you familiar with the walk-and-turn test?

A. Yes, sir.

Q. What is that test? A. Again, it's a divided attention test in which we

will ask someone to walk a line, giving them a certain number of steps to turn and walk back. During this, we're giving them a series of instructions to follow such as keeping their hands down by their side, touching heel-to-toe on the steps, turning like we ask them to, counting each step out loud.

Q. Will you actually provide the instructions to the jury as you would normally provide those instructions to someone?

A. Yes, sir, I can do that. What I would do, and I would demonstrate this as well while I do this. I would Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson ask the person to either stand on the line out there on the roadway or the surface or imagine a line from where they are, usually to my vehicle towards the camera. I will have him put their left foot on that line, and then put their right foot also on the line touching heel-to-toe, with their hands down by their side. So they're standing there

like this, this is a starting position, and I will ask to them to keep the starting position while I explain and demonstrate the exercise.

What I will ask them to do is not begin the exercise until I tell them to. I will ask them to take nine heel-to-toe steps -- heel-to-toe meaning you're

actually touching heel-to-toe -- down the line. Going to have them turn around by keeping their lead foot planted, which should be their left foot, and using their right foot to take the series of small steps to turn around. And again, nine heel-to-toe steps back down this line.

While they're doing this, I ask them to keep

their eyes down on their toes, count each step out loud, I ask them to keep their hands down by their side, and continue the exercise until they have completed the entire exercise, and not to stop. Q. Did you ask the defendant to perform the walk-and-turn test?

A. I don't know that I asked her to perform the test Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson by name but I asked her -- I let her know that I did have some other exercises I wished her to perform.

Q. How did she respond?

A. She indicated she was not sure she could do anything else because she needed to urinate.

Q. Did anything about her response seem out of the ordinary to you? A. I had to ask her -- at one point, she made it known that it's important to her, the most important thing to her right now was to go urinate, not to perform field sobriety exercises, and I found that a bit odd.

Q. Why did you find that odd?

A. I would think that someone, you know, who wished to show that they're not intoxicated would wish to perform the exercises for an officer.

Q. And did the defendant ever perform the walk-and-turn test that night?

A. No, sir.

Q. Could you have forced the defendant to perform that test?

A. No, sir.

Q. All right. Let's talk about the one-leg stand. What is the one-leg stand test?

A. Again, it's another divided attention test in which we're asking someone to do a physical test while Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson following instructions. Q. And what are you looking for when you -- when you ask them to perform that test?

A. Again, looking for them to follow directions, looking for their sense of balance, physical agility.

Basically, we're asking them to stand on one foot for a period of time and continue to do so for 30 seconds. Q. And will you just -- I know you basically gave the instructions but will you provide the jury the specific instructions you would typically give for that test? A. Yes, sir, I can do that. I will put them in a bit of a starting position while I give them instructions and I will demonstrate the exercise for them. What I would do is have them put their feet together, hands down by their side, just to have them standing there.

When I tell them to begin, I will ask them to pick up their foot and their toe about six inches off the ground. Keep that leg straight. And I will give them

the option of which leg, you can use whichever leg you feel more comfortable doing. Keep that leg straight, six inches off the ground, with your hands down by your side, looking at your toe, as you're counting out loud one 1,000, two 1,000, three 1,000 and so on until I instruct them that they can put their foot down.

Q. And how long do you usually have them stand in Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson that position? A. Thirty seconds.

Q. Did you ask the defendant to perform the one-leg

stand test? A. Again, I didn't ask her by name but that's one of the tests that I had intended for her to perform.

Q. And did she ever perform the test? A. She stated she was unable to because she needed to urinate.

Q. Based on your training and experience, about how long does it take someone to perform the combination of the walk-and-turn and the one-leg stand test?

A. Less than five minutes. Q. And did you ever explain to the defendant that those tests don't take very long to perform?

A. Yes, sir. I explained to her several times that she stated she needed to urinate, if we could continue and get the exercises done, we could reach a conclusion and we could get her to a restroom. Q. Did the back and forth you had with the defendant wind up taking longer than five minutes?

A. Yes, sir. Q. Let's talk about what happened after the standardized field sobriety tests.

What did you do after the defendant made it Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson clear that she would not perform the initial tests you were wanting her to perform?

A. Once I had determined that she was basically refusing to do the exercises, I placed her under arrest for driving while intoxicated.

Q. What happened next?

A. She was placed in the back of my patrol vehicle and taken to the Richardson police department to our intoxilyzer room.

Q. Did anything unusual happen on the way from the -- from the scene where you arrested the defendant over to the intoxilyzer room?

A. I don't recall anything unusual, no, sir. Q. All right. Let's talk about what happened at the Richardson city jail. Once you arrived there, where did

you take the defendant? A. We have a room that's designated for the processing of intoxicated drivers; that's our intoxilyzer room. That's where I took her. Q. And what do you -- What kind of instructions do

you provide the defendants when you bring them in to the intoxilyzer room? A. When I walk into this room, there is a straight line painted in this room on the floor which you will see it in the video and there is a black square that's Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson basically a one foot by one foot tile that is painted black while the rest of the floor is a white color. I'll instruct them to go stand on that black square.

Q. Did you give those instructions to this defendant?

A. Yes, sir.

Q. How did she comply? A. She had set her shoes down near the square and she actually walked around a counter and began leaning at the counter and the wall. Q. While you were in the intoxilyzer room, did you read the defendant the statutory warning?

A. Yes, sir. Q. Did you provide the defendant with a copy of that warning?

A. Yes, sir, I did. Q. Did she have the opportunity to read along with you.

A. Yes, sir. MR. WILSON: Your Honor, may I approach the witness?

THE COURT: Yes, you may. Q (By Mr. Wilson) Officer, I'm showing you what has been marked as State's Exhibit 2. Do you recognize State's

Exhibit 2?

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. Yes, sir, I do. Q. What is State's Exhibit 2?

A. This is a state form D I C 24, it's a statutory warning. Q. Is this a true and accurate copy of the warning that you provided to the defendant?

A. Yes, sir. Q. And there's some writing on this document. What is that writing?

A. The writing on the top, I've identified the defendant by her name that was on her driver's license, her

driver's license number, her date of birth, date of arrest, time of arrest, the county of arrest. And at the bottom, I -- I read the warning, I request a sample of -- a specimen of breath, which I checked the box for breath. She refused the -- that specimen and refused to sign saying that she refused so I checked that box indicating that as well.

Q. And is this your handwriting on the document?

A. Yes, sir. Q. And aside from the State's exhibit sticker at the bottom, has anything been changed or altered or deleted from this document from when you originally saw it? A. No, sir.

MR. WILSON: Your Honor, at this time, I offer State's Exhibit 2, while tendering to defense.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

MR. BROOKS: No objection. THE COURT: State's Exhibit 2 is admitted.

Q (By Mr. Wilson) Officer, what is the purpose of issuing the statutory warning? A. It is to provide the arrested person a warning

for the consequences of failing to provide a specimen of their breath and/or blood. MR. WILSON: Your Honor, may I have use of the projector, please.

THE COURT: Yes, sir. Bailiff, would you dim the lights just slightly, please, sir.

THE BAILIFF: Yes, Your Honor. Q (By Mr. Wilson) Officer, I'd like to call your attention to the second paragraph here where my pen is indicating. Will you please read that paragraph to the jury.

A. If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 180 days whether or not you are subsequently prosecuted for this offense.

Q. Did you read that statement to the defendant?

A. Yes, sir.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

Q. And so can you just explain to the jury, what are the practical implications of that provision in the statutory warning?

A. Basically -- MR. BROOKS: Your Honor, excuse me. I'm going to object. The document speaks for itself.

THE COURT: Sustained. Q (By Mr. Wilson) Based on your experience, officer, can you tell the jury kind of what the -- what the practical implications are of a 180-day driver's license suspension?

MR. BROOKS: Again, Your Honor, same objection. Document speaks for itself. THE COURT: Overruled as to that question.

A. Basically, the suspension of 180 days from the driver's license will disallow someone from operating a motor vehicle on a public roadway, which could, you know, cause all sorts of trouble getting to work --

MR. BROOKS: Objection. He's already answered the question, judge.

THE COURT: What's your legal objection?

I'm sorry? MR. BROOKS: I'm sorry, judge. Legal objection is asked and answered.

THE COURT: Overruled.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

A. Basically, your inability to operate a motor vehicle on a public roadway could interfere with someone's ability to get to work, make them depend on public transportation or someone else to get -- take care of business throughout their daily lives.

Q (By Mr. Wilson) And in general, based on your training and experience, what does the process of offering a breath specimen entail?

A. They will -- In our police department, they are taken to a nearby room where there is an intoxilyzer machine. This is a machine that you will blow in. They will be observed by an intoxilator op -- intoxilyzer operator for a period of five minutes to be sure that they're not touching their mouth or altering their sample in anyway. Once that is done, the observation period, they will provide two breath specimens and that machine will analyze them to determine the blood alcohol content.

Q. You said a five-minute observation period. Is it actually a 15-minute observation period? A. I apologize. Yes, sir, it is 15.

Q. And did you ask the defendant for a specimen of her breath? A. Yes, sir, I did.

Q. How did she respond?

A. She refused to provide the specimen.

Clifton Corley - December 2, 2013 Direct Examination by Mr. Wilson

MR. WILSON: Pass the witness. THE COURT: Mr. Brooks.

MR. BROOKS: Thank you, judge.

CROSS EXAMINATION BY MR. BROOKS: Q. Officer, with respect to the statutory warning, that 180-day suspension, you're aware that the individual can get an occupational license to cover their needs for work and things of that nature?

A. Yes, sir. Q. Now, also, with respect to the statutory warning, at the point in time where someone is being read that statutory warning, they are already under arrest; correct? A. Yes, sir.

Q. Nowhere in that statutory warning does it say to them that if you pass this test, you will be released, does it?

A. No, sir.

Q. In fact, in the video that we're about to see, you don't state that to Ms. Henderson either, do you?

A. No, sir.

Q. So it serves no value to taking the test, she's already under arrest; correct?

A. That's up to her.

Q. Okay. But that bottom line is, she's already Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks under arrest. A. Yes, sir.

Q. Now, earlier, you were asked some questions about different things that can cause nystagmus. Do you have any medical training?

A. No, sir, I do not.

Q. Do you have any paramedic training? A. No, sir, I do not.

Q. So in terms of what can or cannot cause nystagmus, you don't have any personal knowledge based on medical experience to answer that question correctly, do you?

A. That is correct, yes, sir. Q. Now, did you refresh your memory with anything today prior to testifying?

A. Yes, sir, I did. Q. A copy of your police report?

A. Yes, sir.

Q. All right. Mind if I take a look at it, sir? A. Yes, sir.

MR. BROOKS: May I approach, Your Honor?

THE COURT: Yes, sir, you may. THE WITNESS: (Hands document to

Mr. Brooks.)

THE COURT: Mr. Brooks, do you want the Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks lights to come back on or are you going to be referring to the exhibit?

MR. BROOKS: The lights can come back on, judge. THE COURT: Bailiff.

MR. BROOKS: May I have just a moment, Your

Honor? THE COURT: Yes, sir. (Pause).

Q (By Mr. Brooks) Now, at the start of your testimony, when you were asked how -- what you were doing or where you were en route to, I think you told us you were responding to an officer-in-need call?

A. An officer backup, yes, sir. Q. Officer backup. And that you were asked, had you noticed anything else unusual before you saw the Lexus, I think you mentioned seeing a car run a red light? A. Yes, sir.

Q. Okay. You weren't referring to Ms. Henderson's car, were you? A. No, sir, I was not.

Q. And in fact, you testified that after you pulled

her over and you told her why you pulled her over, she told you that she saw some emergency lights in front of her and she couldn't determine if she needed to go left or right?

A. Yes, sir.

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

Q. In fact, I think you stated there were emergency lights in front of her?

A. Once we stopped the vehicles, yes, sir, there were. Q. And on the video, you agree with me that looking just at the video from that vantage point, you can't tell if those emergency lights are in the left lane or the right lane, can you?

A. I don't believe from the video you can probably tell that, no, sir. Q. Let's talk about what happens after you first come in contact with her. You said that you asked her for her license and proof of insurance. A. Yes, sir.

Q. And it took her several seconds to get that. Did you happen to notice what size purse she was pulling those items out of?

A. I don't recall at this time, no, sir.

Q. If it was a large purse, it wouldn't be unusual for a woman to have to fumble around inside her purse to find those items?

A. No, sir. Q. So certainly that by itself would not be a sign of intoxication?

A. By itself, no, sir.

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

Q. In fact, when we looked at knowing that there are emergency lights in front of her as she stated, as you just now stated, she had to get over in response to those lights, that by itself is not a sign of intoxication, is it?

A. By itself, no, sir.

Q. Now, when you got behind her, you issued -- or, did you turn on your take-down lights? Are they still called take-down lights?

A. They are. If I didn't use that, I did at least use a spotlight, one or the other.

Q. And is that in and of itself a command, a non-verbal command? A. Yes, sir.

Q. And it's a non-verbal command for that car to pull over? A. Yes, sir.

Q. And the point in time where she notices that light, she has to begin to do some divided attention types of things; correct?

A. Yes, sir.

Q. She actually has to respond to your light, she has to slow down. Correct?

A. Yes, sir.

Q. She has to make sure she slows down and parks in Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks an appropriately safe place? A. Yes, sir.

Q. Correct? And she did all of those things correctly? A. Yes, sir.

Q. In fact, she did all of those things in a normal fashion? A. Yes, sir.

Q. When you approach her, as you told her, you asked for her driver's license, and she produced her driver's license to you in a normal fashion?

A. Yes, sir.

Q. Okay. It wasn't on the floorboard of the car or in the back seat or anything like that?

A. No.

Q. She reached in and pulled it out and gave it to you?

A. Yes, she did give it to me, yes, sir.

Q. So that's normal. A. Yes, sir.

Q. Now, when she pulled over, that was because you wanted her to pull over; correct? A. Yes, sir, that is correct.

Q. Now, at some point, you make the decision to ask her to get out of the car.

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

A. Yes, sir. Q. And you asked her to get out of the car?

A. That is correct.

Q. And she responded to that? A. Yes, sir.

Q. Normally?

A. Yes, sir. Q. She doesn't stumble out of the car?

A. No, sir.

Q. She doesn't grab the door to climb her way out of the car?

A. No.

Q. She gets out of her car in response to your command; correct?

A. Yes, sir.

Q. Now, was she respectful with you from your first encounter with her, your first time speaking with her?

A. Yes, sir, she was.

Q. Did she remain respectful with you throughout your time with her?

A. Yes, sir, she did.

Q. Isn't it true a lot of times in these type of situations, the person that you take in custody becomes quite belligerent?

A. Absolutely, yes, sir.

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

Q. Or hysterical? A. Yes, sir.

Q. And none of that happened here?

A. That is correct. Q. Now, when she got out of the car, you told her where to stand?

A. Yes, sir. Q. And she went and stood where you told her to stand?

A. Yes, sir. Q. Now, while she's standing there, and she's standing there for -- it's more than a minute, probably several minutes, isn't it? A. Yes, sir.

Q. She's not swaying or leaning up against her car or anything like that, is she? A. There was some slight swaying but no leaning up against the car, no, sir.

Q. Can you see that slight swaying on the video? A. I don't know that you can, sir.

Q. So for their purposes, the jury won't have any evidence of that on the video? A. Without looking at it again, I don't recall seeing any major swaying, no, sir.

Q. You've looked at it before you got on the stand Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks and testified today? A. Yes, sir.

Q. And you don't recall seeing it?

A. Nothing major. Q. Now, the area that you were in, there was still some traffic going by -- going by you; correct?

A. Yes, sir. Q. And it's not like you guys were the only ones on the road?

A. Correct. Q. There wasn't heavy traffic but there was still traffic there?

A. Correct. Q. What is the N H T S A student manual, officer?

A. That is a manual that provides all the instructions to peace officers on how to perform field sobriety tests.

Q. It's basically a peace officer's bible for how to perform field sobriety tests? A. Yes.

Q. And in that -- is that the organization that certifies you to perform the H G N testing? A. Yes, sir, it is.

Q. There are certain things that they ask you to do prior to performing the H G N test?

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

A. Yes, sir. Q. One of the things they ask you to do is make sure that the subject is not facing passing traffic?

A. Yes, sir. Q. And that's so as to not be a distraction as far as those headlights going back and forth; correct?

A. Yes, sir. Q. To the same extent why you're supposed to take down your strobe lights?

A. Correct. Q. And we know on this video, Ms. Henderson is facing the passing traffic?

A. Correct. Q. They also ask you to do what's called a precheck.

A. Yes, sir.

Q. Are you telling this jury that on the video, they will see you doing a precheck of her eyes to determine whether they can track smoothly?

A. Yes, sir. Q. That's on the video?

A. Yes, sir.

Q. Okay. Now, going back to the N H T S A student manual, when's the last time you looked at that student manual?

A. About six months ago, I believe.

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

Q. And you're aware that in the manual, according to the manual, the H G N test is 77 percent accurate?

A. Before you told me, I knew there was a percentage. I don't recall exactly what the percentage was.

Q. But it's not 100 percent?

A. Correct. Q. And if I represent to you that in the manual, it says 77 percent, are you willing to accept that?

A. Yes, sir, I am. Q. They also give you a percentage of the walk-and-turn and one-legged stand test. Do you recall what those percentages are? A. I do not, no, sir.

Q. But they're not 100 percent either --

A. That is correct. Q. -- do you recall that?

A. Yes, sir.

Q. And they recommend that in order to make a determination as to whether or not someone is intoxicated, that you perform all three of those tests?

A. Yes, sir. Q. And in that manual, it also says that even with all three of those tests, the accuracy of that battery of tests is 80 percent -- Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

A. Yes, sir. Q. -- you recall that?

A. Yeah, I do, yes, sir.

Q. So even all three of those tests together is not a 100 percent validation or verification someone is intoxicated beyond their normal mental and physical faculties, according to the N H T S A manual; correct? A. That is correct, yes, sir.

Q. Now, Ms. Henderson told you that she needed to use the bathroom. A. Yes, sir.

Q. Did she also tell you that she was only two miles from home? A. She did indicate that it was pretty close, yes, sir.

Q. And you had her driver's license so you were able to verify if she was telling the truth or not?

A. Yes, sir.

Q. And you verified that she was actually very close to her home?

A. Yes, sir.

Q. So you don't know if she got in a situation where, on the way home, she figured she could go ahead and make it and rather use a bathroom in her own private bathroom versus a public bathroom, do you?

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

A. Correct. Yeah, I have no way of knowing that. Q. Now, in terms of not being able to do the testing, if she had tried to do the one-legged stand test

and lost control and peed on herself, you would've put that in your report as a sign of insobriety, wouldn't you?

A. Yes, sir.

Q. And the same thing if she tried to do the one-legged stand test and was unable to do it and started peeing while doing it, you would have put that as a sign of insobriety? A. Yes, sir.

Q. She was kind of between a rock and a hard place in terms of having to use the bathroom or taking a chance of peeing on herself.

A. That's understandable, yes.

Q. And in fact you were so concerned about whether or not she was going to pee on herself that you called in another officer and you told him, I wanted you to come because I don't want her to pee in my car. A. Okay.

Q. You remember that?

A. I don't recall saying that, no, sir. Q. If it's on the tape, you wouldn't dispute that?

A. No, sir, I would not.

Q. So after you made the decision to arrest her, Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks she's put in your squad car -- was that someone else's squad car?

A. That was mine, yes, sir.

Q. She was put in your squad car, and, I guess, the other officer, at that point, inventories her car and prepares it to be impounded?

A. Correct. Q. Now, the ride back to the police station, about how long would you say that ride took?

A. I would guess between seven and 10 minutes. Q. And in the ride back, the two of y'all had a conversation?

A. Yes, sir. Q. And that conversation never got ugly in anyway, did it?

A. No, sir, did not. Q. She remained respectful with you?

A. She did.

Q. She asked you about what was the process going forward?

A. Yes, sir.

Q. And she -- the two of y'all talked about who the car was registered to, who might come pick it up?

A. Yes, sir.

Q. Now, isn't it true that she expressed some Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks concern to you about the inventory of her car? A. I don't recall that. I'm certain it may have happened; I don't recall it.

Q. Do you recall telling her that you know the other officer and you trust him?

A. I don't recall saying that, but it's very possible. Q. If it's on the tape, it's on the tape.

A. Yes, sir.

Q. And do you recall her concern not being about personal items in the car but rather with items or files relating to clients of hers?

A. Again, I don't recall, but if it's on the tape, yes, sir.

Q. And if that's what's on the tape, that would indicate that she has -- was having a concern about maintaining the privacy of her clients' files; correct?

A. Yes, sir.

Q. Now, going back to the nystagmus, the manual tells you a certain way that that test is supposed to be performed and it's supposed to be 12 to 15 inches from the nose. A. Yes, sir.

Q. Slightly above the eyes at 45-degree angle?

A. Yes, sir.

Clifton Corley - December 2, 2013 Cross Examination by Mr. Brooks

Q. This jury has no way of determining from the video that it's 12 to 15 inches from the nose, can they?

A. Not perfectly accurately, no, sir.

Q. And they can't determine whether or not the pen is being held at the correct 45-degree angle?

A. No, sir.

Q. Isn't it true, officer, also that the manual sets out that some people have what's called natural nystagmus?

A. Yes, sir.

Q. But you don't have any testing or preliminary testing to determine whether or not she had natural nystagmus?

A. I'm not qualified to do that, no, sir. MR. BROOKS: Pass the witness.

MR. WILSON: Your Honor, may we approach?

THE COURT: Yes, sir. (Sidebar conversation between the court and counsel off the record.) THE COURT: You may proceed. MR. WILSON: Thank you, judge.

REDIRECT EXAMINATION

BY MR. WILSON: Q. Officer Corley, are you familiar with the validation studies that are included in the NHTSA handbook?

A. I have read them but it has been some time.

Clifton Corley - December 2, 2013 Redirect Examination by Mr. Wilson

Q. Would it help if I refresh your recollection? A. Yes, sir.

MR. WILSON: May I approach the witness, Your Honor? THE COURT: Yes, sir, you may.

Q (By Mr. Wilson) Sir, if you'll just read this page here to yourself, silently. Has your recollection been refreshed?

A. Yes, sir.

Q. Are you familiar with the three validation studies undertaken between 1995 and 1998 in Colorado, Florida and San Diego?

A. Yes, sir. Q. And is it true that the Colorado study came to the conclusion that when performed together, that the standardized field sobriety tests are about 93 percent accurate?

A. Yes, sir.

Q. And that the Florida test yielded a result that said the field sobriety tests were about 95 percent accurate?

A. Yes, sir. Q. And that the San Diego test stated that the field sobriety tests had about a 91 percent level of accuracy in showing that someone would be at least a .0 -- .08 level of Clifton Corley - December 2, 2013 Redirect Examination by Mr. Wilson alcohol concentration or greater? A. Yes, sir.

Q. And you're not -- you have no medical training; is that correct? A. Correct.

Q. Where does the information about what can cause horizontal gaze nystagmus, where does that information come from?

A. The only information I read has been in the N H

-- the NHTSA manual there. Q. And is this provided to you by the State of Texas?

A. Yes, sir. Q. Is it provided to all police officers in the State of Texas?

A. Yes, sir. Q. When it came to the statutory warning, does the statutory warning include any language about an occupational driver's license? A. No, sir.

Q. So on the face of it, if all you have in front of you is the information provided in the statutory warning, there's no way to know that you can go get an occupational driver's license; is that correct?

A. On the face of that, no, sir.

Clifton Corley - December 2, 2013 Redirect Examination by Mr. Wilson

Q. Based on your experience and all of the D W I investigations that you have conducted, have you ever run into individuals who are both respectful and intoxicated?

A. Yes, sir. Q. And would you say that there are slight nuances that you've been trained to see that aren't going to always show up on video? A. Yes, sir.

Q. And when it comes to the passing lights, why is it that under ideal conditions you don't have someone face passing traffic when performing the H G N test?

A. Under ideal conditions, if the traffic is heavy enough and cars are going by, the eyes can tend to follow the lights as it goes across.

Q. But does that cause an individual's head to turn?

A. No, sir. Q. And what was traffic like that night?

A. It was light.

MR. WILSON: Pass the witness. THE COURT: Anything further, Mr. Brooks?

MR. BROOKS: Yes, Your Honor. Just a couple of questions. RECROSS EXAMINATION

BY MR. BROOKS: Q. In reference to what you were just asked as far Clifton Corley - December 2, 2013 Recross Examination by Mr. Brooks as standing on the side of the road and the traffic going back and forth.

A. Yes, sir.

Q. Because of what you do for a living, your eight years of doing this, you're used to standing on the roadside where vehicles are going past you; is that a fair statement? A. Yes, sir.

Q. You have no reason to expect that Ms. Henderson would be used to being in that situation, would you? A. No, sir.

Q. And the battery of tests that we talked about, there are still other tests that could have been administered in terms of field sobriety testing, such as counting backwards from A B C, from Z through B, or B through T; correct? A. Correct.

Q. You could have done that. And that's perfectly acceptable test, isn't it? A. It's not a standardized test but I believe it could be acceptable, yes, sir.

Q. And you utilized that test before? A. I believe early on in my career, I did. It's nothing I used recently.

Q. What about counting backwards?

Clifton Corley - December 2, 2013 Recross Examination by Mr. Brooks

A. It's not something I generally use, no, sir. Q. Have you used that test before?

A. I have but it's been several years.

Q. And going back to when you and Ms. Henderson are talking about the inventory, she had the foresight to ask you if she was going to get a copy of that inventory, didn't she? A. Yes, sir.

MR. BROOKS: I don't think I have any other questions at this time, Your Honor. THE COURT: Any further questions of this witness from the state?

MR. WILSON: No, Your Honor. Witness may be excused by the state.

THE COURT: You want to reserve this witness, Mr. Brooks, or is he released? MR. BROOKS: Subject to recall, judge.

THE COURT: Sir, you're free to go.

THE WITNESS: All right. Thank you. THE COURT: Call your next witness.

MR. WILSON: Your Honor, at this time, the state has no more witnesses to call but I request permission to publish State's Exhibit 1.

THE COURT: Permission granted.

(DVD published on the overhead screen.)

MR. WILSON: Your Honor, that concludes the state's publishing of the in-car video portion of State's

Exhibit 1.

Now publishing the intoxilyzer room portion of the State's Exhibit 1.

THE COURT: My understanding is this next portion is about seven minutes; is that correct? MR. WILSON: About six, Your Honor.

THE COURT: Proceed.

(DVD published on the overhead screen.) MR. WILSON: Your Honor, that concludes the state's publishing the State's Exhibit 1.

THE COURT: Mr. Brooks, is there anything of any value past this point on the video?

MR. BROOKS: No, Your Honor.

THE COURT: All right. Lights, please. State, call your next witness.

MR. WILSON: At this time, Your Honor, members of the jury, the state rests. THE COURT: What says the defense?

MR. BROOKS: May we have a moment, Your

Honor? THE COURT: Yes, sir.

MR. BROOKS: Step to the conference room?

THE COURT: Yes, sir.

(Recess in place at 4:54 P M, resuming at 4:55 P M. Defendant present. Jury present.) MR. BROOKS: At this time, if it please the court, members of the jury, the defense rests.

THE COURT: All right. Both sides close?

MR. BROOKS: Defense close. MR. WILSON: State closes.

THE COURT: Lady and gentlemen of the jury, that's all the evidence you're going to hear in this case. At this point, I note for the court and the record that it's four minutes till 5:00. That's all of the evidence but we still have to have what's called the jury conference here on the charge, the instructions that you're

going to receive. I've been busily working on that in between running the court. I have them ready but I have to give the attorneys a copy and give them a chance to look at it, see if they have any requests for instructions.

We're here to serve you. So I'm going to let you go to the jury room and quickly take a consensus.

If you want to stay and work, we'll stay here and work

through the evening until you arrive at a verdict. If you want to go home, we will break now. I'll ask that you come back tomorrow morning, 9:00 o'clock.

Both sides will -- whether you stay or go, both sides are going to give a closing argument. It will be about 15 minutes long, telling you what they think the evidence has shown. Then you'll be able to start your

deliberations. So you still got at least 15 minutes of argument per side, that's a half hour, probably 15 minutes of looking at the jury charge, and I have to read it to you

by law. You're looking at at least an hour before you're going to be able to start your deliberations. All right?

So I will follow your lead. If y'all want

to, as a group, come back tomorrow, then we'll -- you'll be done and start deliberating by 10:00 o'clock. Or if you want to stay, then we'll stay. So at this time, I'm going to pass out the jury charge. Bailiff, take charge of the jury.

And decide amongst yourselves if you want to stay or come back tomorrow morning. Counsel, approach.

(The jury exits.) THE COURT: Please look over the proposed jury charge. We'll stand in recess for 10 minutes while y'all look that over and the jury decides what they want to do. (Recess at 4:57 P M, resuming at 5:07 P M. Defendant present.) THE BAILIFF: All rise.

(The jury enters.) THE COURT: Thank you. You may be seated.

Let the record reflect that all parties are present, the jury is back in the courtroom. Lady and gentlemen of the jury, it's come to my attention that you collectively have decided that you prefer to go home tonight and then reconvene tomorrow at 9:00 A M. Is that correct?

THE JURORS: Yes, sir.

THE COURT: All right. Now, I didn't mention this earlier because it's very rarely that it comes up. But I believe one of the jurors might have been taking notes. THE JUROR: Yes, sir.

THE COURT: The law in Texas on that is, you

can take notes if the judge allows, and I do allow it. But you cannot share them with anyone else. And you cannot have them when you go back and deliberate. So you can use

them, give them to the bailiff tonight, he'll secure them in an envelope. He'll give them back to you tomorrow for you to review if you would like before you go deliberate.

The reason the law doesn't allow you to take them back there, we don't want somebody relying on your

note taking instead of what they heard and saw in the courtroom just in case your notes are incorrect. (Jury Not Present) THE JUROR: Yes, sir. THE COURT: Okay. So, bailiff, collect any notes and mark them in an envelope, keep them separate.

No one is going to look at your notes. We'll return them to you tomorrow.

Remember my instructions. Don't begin discussing this case with anybody. We're almost at the end. I don't think you're going to hear more than 30 minutes of proceedings tomorrow. I'll come in, read you

the charge. We'll keep working on this so we're not wasting any of your time. Each side will take 15 minutes and then you'll be deliberating. All right. Thank you.

Bailiff, take charge of the courtroom -- THE BAILIFF: Yes, Your Honor.

THE COURT: -- or the panel.

THE BAILIFF: All rise. THE COURT: See everyone back here in the morning at 8:45. And collect the notes, bailiff.

THE BAILIFF: Yes, sir. (Adjourned at 5:10 P M. Resuming December 3, 2013, in Volume 4.)

STATE OF TEXAS ) COUNTY OF COLLIN ) Trial on the Merits December 3, 2013

1 REPORTER'S RECORD VOLUME 4 OF 5 VOLUMES 2 TRIAL COURT CAUSE NO. 002-80051-2013 COURT OF APPEALS CASE NO. 05-14-00025-CR 3 THE STATE OF TEXAS ) IN THE COUNTY COURT 4 ) VS. ) AT LAW NUMBER TWO 5 ) MELLANNISE HENDERSON ) COLLIN COUNTY, TEXAS 6

7 8 _____________________________________________

9 TRIAL ON THE MERITS _____________________________________________ Trial on the Merits December 3, 2013

1 A P P E A R A N C E S 2 Mr. Justin B. Wilson SBOT NO. 24080521 3 Ms. Geeta Yadav Singletary SBOT NO. 24060862 4 Office of Greg Willis, District Attorney Suite 100 5 2100 Bloomdale Drive McKinney TX 75071 6 Telephone: 972-548-4323 Facsimile: 972-548-3622 7 8 Attorneys for The State of Texas 10 Mr. Kevin Brooks SBOT NO. 03070735 11 Attorney at Law Suite 2475 12 325 N. Paul Dallas TX 75201 13 Telephone: 214-922-0212 Facsimile: 214-922-0294 14 Attorney for The Defendant Trial on the Merits December 3, 2013

VOLUME 4 Trial on the Merits

December 3, 2013

PAGE VOL. Charge Conference ...........................4 4

Charge Read to the Jury .....................7 4

Closing Statement by Mr. Wilson ............13 4 Closing Statement by Mr. Brooks ............18 4

Closing Statement by Mr. Wilson ............22 4

Jury Note Received .........................29 4 Verdict ....................................36 4

Punishment Phase ...........................38 4

Both Sides Close ...........................39 4 Sentencing .................................39 4

Reporter's Certificate .....................43 4 Trial on the Merits December 3, 2013

(Proceedings occurring in open court, commencing at 9:02 A M. Defendant present.) THE COURT: Court calls 002-80051-2013,

State of Texas versus Mellannise Henderson-Love. Let the record reflect the jury is outside the courtroom. All parties are present.

When we concluded yesterday, I gave both sides a copy of the proposed jury charge and asked that you look it over.

Does the state have any requests for changes or additions?

MR. WILSON: Your Honor, first off, I just wanted to clarify that, would you like it to state Mellannise Henderson throughout the jury charge or change it to Mellannise Henderson-Love?

THE COURT: Well, the court doesn't have a preference. I used Mellannise Henderson only because that's how it was styled on the information itself.

MR. WILSON: The state has no objection then.

Secondly, Your Honor, the state requests that in the application paragraph, bullet point number three, since no evidence was presented in regard to an alcohol concentration, we ask that the alcohol concentration paragraph be removed from the jury charge.

Trial on the Merits December 3, 2013

THE COURT: Any objections by the defense? MR. BROOKS: Yes, Your Honor. I would objet to that. I believe what's in there is following the statute. THE COURT: Well, it follows the statute.

Why would it be necessary to put in? The jury couldn't

find her -- there's not going to be any evidence, the state having rested and closed, there's no evidence of an alcohol concentration, so why isn't that just unnecessary language?

MR. BROOKS: Okay. THE COURT: All right.

MR. WILSON: Nothing further from the state.

THE COURT: I'll strike paragraph three. Any requests from the defense?

MR. BROOKS: Yes, judge. I don't -- and you may have put it in here and I just missed it. Any reference to the verdict having to be unanimous.

THE COURT: Page three, counsel, the third paragraph from the bottom, the last sentence. Your verdict must be unanimous and signed by the presiding juror.

MR. BROOKS: Thank you, sir.

THE COURT: And does your client wish the information to read Mellannise Henderson or Mellannise

Henderson hyphen Love?

THE DEFENDANT: Mellannise Henderson is Trial on the Merits December 3, 2013 fine, Your Honor. THE COURT: All right. And you acknowledge that you're the same Mellannise Henderson that was stopped on this day? THE DEFENDANT: Yes, Your Honor.

THE COURT: Anything further from either side? MR. WILSON: No, Your Honor.

MR. BROOKS: No, sir.

THE COURT: Bailiff, I'm going to print -- do you want a fresh copy with the change with the missing paragraph, counsel?

MR. BROOKS: No, sir, that's not necessary for me.

THE COURT: Does the state want one?

MR. WILSON: Yes, Your Honor, please. THE COURT: Okay.

(Unrelated docket matters heard, after which the following proceedings were had, commencing at 9:40 A M. Defendant present.) THE BAILIFF: All rise.

(The jury enters.) THE COURT: Everyone may be seated.

Bailiff, the notes fell off on to the floor.

Lady and gentlemen of the jury, let the Trial on the Merits December 3, 2013 record reflect that all parties are present. The jury is back in the courtroom.

At this time, bailiff, would you please pass out a copy of the jury charge. THE BAILIFF: Yes, Your Honor.

COURT'S CHARGE

THE COURT: The jury charge is your instructions on how to proceed with your deliberations but before I read that to you, as I'm required to do by law, I want to also instruct you one more time on one other part of your duties.

In continuing to discharge your responsibilities as jurors, you will continue to observe all the instructions that have previously been given to you. These instructions are given to you because your conduct is subject to review, the same as that of the witnesses, the parties, the attorneys and myself. If it should be found that you have disregarded any of these instructions, it will be jury misconduct, and it may require another trial by another jury.

If any of you observe one or more of your number violating any of my instructions, you shall immediately warn the violator and caution him or her not to do so again.

Now, please listen carefully as I read the Trial on the Merits December 3, 2013 charge to you. The original will be delivered to you by the bailiff for you to write your verdict on it. You may take that copy back with you if you would like or you may

just take the official copy that has my signature back. "Members of the jury: The defendant, Mellannise Henderson, stands charged with the misdemeanor offense of driving while intoxicated in a public place in Collin County, Texas on or about December 1st, 2012. To this charge, the defendant has pleaded not guilty.

"Our law provides that a person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.

"A public place means any place to which the public or a substantial group of the public has access, and includes but is not limited to streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops.

"The word intoxicated means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances or any other substance into the body, or having an alcohol concentration of 0.08 or more.

"The term alcohol concentration as used herein means the number of grams of alcohol per 210 liters Trial on the Merits December 3, 2013

of breath. "The term motor vehicle means a device in, on or by which a person or property may be transported or drawn on a highway except for a device used exclusively on stationary rails or tracks.

"Now, if you find and believe from the evidence beyond a reasonable doubt that on or about the --" should read -- "on or about December 1st, 2012, in Collin

County, Texas, Mellannise Henderson did then and there operate a motor vehicle in a public place, while the said Mellannise Henderson was intoxicated by, one, not having

the normal use of her mental faculties by reason of the introduction of alcohol into the body, or, two, not having the normal use of her physical faculties by reason of the introduction of alcohol into the body, then you will find the defendant guilty as charged. "Unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you will

find the defendant not guilty. "You are instructed that the law allows the defendant to testify in her own behalf but the fact that

she did not do so is not a circumstance against her and shall not be considered as evidence of guilt or proof of any other matter. You shall not consider, discuss or even refer to the fact that the defendant did not testify, nor Trial on the Merits December 3, 2013

shall you draw any inference of guilt therefrom. "All persons are presumed to be innocent and no person may be convicted of an offense unless each

element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined or charged with an offense gives rise to no inference of guilt

at her trial. The law does not require a defendant to prove her innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.

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

"You are instructed that you are not to allow yourself to be influenced by what you may think or surmise the opinion of the court to be. The court has no right to indicate an opinion respecting any matter of fact involved in this case, or to indicate a desire respecting its outcome. The court has not intended to express an opinion upon any matter of fact in this case and if you've observed anything that you have or may have interpreted as Trial on the Merits December 3, 2013 the court's opinion upon a matter of fact in this case, you must wholly disregard it.

"You are instructed that any statements of counsel made during the course of the trial or during argument that is not supported by the evidence or statements of law made by the counsel not in harmony with the law as stated to you by the court in these instructions are to be wholly disregarded.

"You are further instructed that you should not question the bailiff concerning testimony or the law of this case, nor should you discuss the case in his presence.

If you have any questions, you should reduce them to writing to be signed by the presiding juror and present them to the court.

"If the jurors disagree as to the statement

of any witness, they may, upon applying to the court, in writing, have read to them from the court reporter's notes that portion of such witness' testimony and only that portion on the point in dispute. "You are instructed that the information is the means whereby a defendant is brought to trial in a

misdemeanor prosecution. It is not evidence, nor can it be considered as such when passing upon whether the defendant is guilty or not guilty.

"During your deliberations in this case, you Trial on the Merits December 3, 2013 must not consider, discuss nor relate any matters not in evidence before you. You should not consider nor mention any personal knowledge or information you may have about

any fact or person connected with this case which is not shown by the evidence. You are to base your decision on the evidence presented and are not to be swayed by any sympathy, prejudice or bias. "After you retire to the jury room, you should select one of your members as your presiding juror.

It is their duty to preside at your deliberations and vote with you. Your verdict must be unanimous and signed by the presiding juror.

"You are the exclusive judges of the facts proved, of the credibility of the witnesses, and the weight to be given their testimony. But you must be governed by the law you receive in these written instructions. "Suitable forms for your verdict are

attached hereto. Your verdict must be in writing and signed by your presiding juror. Your sole duty at this time is to determine whether the defendant is guilty or not guilty under the information in this cause and you are to restrict your deliberations to that issue. "Signed this the 3rd day of December, 2013.

Barnett Walker, judge presiding.

"Verdict. We, the jury, find the defendant Trial on the Merits December 3, 2013

guilty of driving while intoxicated as charged." If that is your unanimous verdict, the presiding juror will sign his or her name where it says signature and print the name where it says printed name. "Or, we, the jury, find the defendant not guilty."

If that's your unanimous verdict, then the presiding juror will sign his or her name where it says signature and print the name where it says printed name.

I noted we had two typographical errors. I will fix those and I will sign the official copy for you to take it back and for you to write your verdict on.

At this time, each side wants to do a 15-minute closing. They're going to highlight what they believe the evidence has shown in this case.

Under the laws of the State of Texas, the state has the right to go both first and last so they can split their time if they so choose.

The state may proceed. CLOSING STATEMENT

MR. WILSON: Thank you, judge. May I use the projector, please? THE COURT: Yes, sir.

MR. WILSON: May it please the court.

THE COURT: Yes.

Closing Statement by Mr. Wilson December 3, 2013

MR. WILSON: Counsel. Members of the jury. It's been my pleasure to represent the State of Texas to you over the last two days, and as the judge said, since I represent the State of Texas, I have the burden of proof. And it is something that I -- a burden

that I embrace. And also as the judge said, I get the opportunity to speak to you twice. Here in a little bit, Mr. Brooks, counsel for defense, is going to come up here and make his final argument, and then I will be back to make my final argument on behalf of the state. First off, though, I want to go through a few things that you'll find in the jury charge, just make

them a little bit more clear to you. So, first, I want to remind you that the standard that you are to use to evaluate the defendant is the average non-intoxicated person. Remember that yesterday, during voir dire, we talked about how you

collectively are the average non-intoxicated person. And it is that standard that you will apply to the defendant when determining whether or not she had the normal use of her mental or physical faculties.

Another thing I want you to remember is that the standardized field sobriety tests that you heard so much about yesterday are designed so that the average non-intoxicated person can perform them successfully on Closing Statement by Mr. Wilson December 3, 2013 roadsides all throughout the country. Next, you'll see on page two some of these definitions. You'll notice that while yesterday we talked about three definitions, you only really have to worry about two of those today. That's because no evidence was presented as to alcohol concentration since the defendant

refused to provide a sample of her breath. So you can basically think of the definitions and process them the following way like I've got on the board. Ask yourself the first question: Do I believe beyond a reasonable doubt that the defendant did not have the normal use of her physical faculties due to the introduction of alcohol into her body while she was driving? If the answer to that question is yes, the state

is entitled to a verdict of guilty. If the answer is no, you can move on to the next question. Do I believe beyond a reasonable doubt that the defendant did not have the normal use of her mental faculties due to the introduction of alcohol while she was driving? If the answer to that question is yes, the state is entitled to a verdict of guilty. Only if your answer to both of those questions is no, only then, will you find that the defendant was not guilty.

Next, you will see also on page two that all persons are presumed innocent. The thing is, though, Closing Statement by Mr. Wilson December 3, 2013

there's nothing in this jury charge that says all people are presumed to be honest. You are the ones who determine the credibility of all witnesses and all parties involved

in this case. You determine the credibility of Officer Corley yesterday, you also determine the credibility of the defendant.

Another thing, just to remind you, sympathy cannot be considered and the law applies equally to everyone. And, you know, the defendant, she seems like a nice person, she's an attorney, but your feelings about attorneys, whether they are positive or negative, should have no bearing on today's case and on your deliberations.

And finally, we talked a little bit yesterday about beyond a reasonable doubt. And unfortunately, you know, our state legislature did not give

you a clear-cut definition, but we talked about a few things as to what that standard -- what that burden of proof is not. And it's not a -- it doesn't mean beyond all possible doubt and it's not a 100 percent standard. And, Mr. Campbell, I believe yesterday I asked you yesterday about this puzzle and pointed out that when we've got the puzzle together on the board, you knew beyond a reasonable doubt that that was a picture of a shark, even though there aren't 100 percent of the puzzle pieces there. And I want you all to remember that as you Closing Statement by Mr. Wilson December 3, 2013 make your deliberations and determine whether or not you believe beyond a reasonable doubt that the defendant is guilty of driving while intoxicated.

Now I'm going to turn the floor over to Mr. Brooks. When I get back up here, make my final argument, and after that, you should have everything you need to believe beyond a reasonable doubt the defendant is guilty.

THE COURT: Thank you, counsel.

Mr. Brooks. MR. BROOKS: Thank you, judge.

THE COURT: Mr. Brooks, did you want to use the monitor as well? MR. BROOKS: Yes, sir.

THE COURT: It looks like it's stuck half

way up and down. Going up into the ceiling there. (Equipment set up.) THE COURT: Sorry for the delay. You'll get your full time, counsel. MR. BROOKS: Thank you, sir.

THE COURT: I'm going to try to turn it off

and bring it back up. If we can't get it working, I'll have the bailiff take the jury to the courtroom across the hallway and you can do your closing in that courtroom so that you can have access to the technology that you want to Closing Statement by Mr. Wilson December 3, 2013 use. You may proceed, counsel.

CLOSING STATEMENT

MR. BROOKS: Thank you, sir. Good morning, ladies and gentlemen. I know yesterday when we started, we had told y'all we expected

this to be a one-day trial. We tried. We almost got there. So I apologize for that. Hopefully, we'll get this thing finished today.

I want to talk to you about some of the things we talked about during voir dire, and one of the things we talked about during voir dire was the various

different burdens of proof we have in our criminal justice system. And we talked about how the lowest burden of proof is reasonable suspicion. And that proof of burden is the burden of proof I believe that Officer Corley used to arrest Ms. Henderson that night.

We talked about how the burden of proof, reasonable suspicion, is the lowest burden of proof but the highest burden of proof that you have to apply to this case

as far as beyond a reasonable doubt, how that is the highest burden of proof. We talked about the lowest versus the highest.

We also talked about how not guilty obviously includes innocent but it doesn't always -- but Closing Statement by Mr. Brooks December 3, 2013 it's not limited to that. We talked about how that is because you have to find beyond a reasonable doubt a not-guilty basically believing that the state has not proven this case beyond a reasonable doubt. Not guilty goes back to the central question for a jury in a criminal case. And the question is not whether or not the defendant is guilty, but the question is, does the evidence presented to me prove beyond a reasonable doubt that the defendant is guilty? That's the question for the jury.

I want to talk about some of the things that you saw yesterday and let's start with the video. If you recall the officer testified that he was trying to go around her and she almost hit him. Well, if you look at that video again -- and I'm going to ask that you please look at that video again -- you'll see that that

confrontation is not nearly as dramatic as he tried to make it. When you look at that near miss, as we call it, you'll

see that that near miss is something that, unfortunately, each and every one of us has had happen to us driving down the street, whether it's from inattention, distraction, not

paying attention to a blind spot, that very thing is the same thing that each and every person in this courtroom has had happen.

Now, that leads him to pull her over. He asks her if she saw him, she says that she didn't. And the Closing Statement by Mr. Brooks December 3, 2013

reason she didn't, she thought she saw in front of her emergency lights. Well, the officer came in here yesterday and corroborated that, in fact, there were emergency lights

in front of her. She told you -- told him she was trying to decide, she couldn't tell where they were, she needed to move over to the left or to the right. And he admitted to you that based upon that vantage point, you couldn't tell if those emergency lights were in the left or the right lane. So the officer corroborated what she was seeing.

Now, he also decided that he needed to give her field sobriety tests. Let's look at the field sobriety

tests that were given. The H G N test, you have no way of knowing if that test was being done correctly. He let you know and he admitted that, based upon that video, you can't tell if he's at the proper angle, you can't tell he's at

the proper distance, but you do know from his own testimony that she's not supposed to be facing the road as she was facing the road. And the reason she's not supposed to be facing the road is the same reason he has to turn the strobe lights off. Distraction. So you know part of that testing was being done incorrectly. The other parts you don't know if they are being done incorrectly, if they are being done correctly.

She told the officer with respect to the other tests that she needed to use the bathroom. And Closing Statement by Mr. Brooks December 3, 2013

apparently he believed her in terms of needing to use the bathroom because if you listen, if you watch on the video, he tells to the other officer that arrives there, that he

doesn't want her to pee in his car. You can hear him. He also admitted yesterday that if she had peed doing any of

the physical tests, he would put that down as a sign of intoxication. And he also admitted yesterday on the stand that at that point, she was between a rock and a hard place.

Now, they then go to the video room, and he wants to tell you that he instructed her to stand in the box, that she did that incorrectly. Well, look at that

part of the videotape. There is no instruction on where to stand. I think it's kind of interesting when you look at

that video that, yes, she is standing against the wall but, guess what? The officer himself is standing and bracing himself on the podium. So she's not doing anything different than what he is doing.

The other thing that I want you to consider is that there were two officers out there and yet only one officer testified. The other officer, I'm assuming, I have to assume, was available, could have come in and corroborated what Officer Corley told you.

Now, they're going to stand up and they're going to tell you that I had equal subpoena powers, I could Closing Statement by Mr. Brooks December 3, 2013

have subpoenaed Officer Corley to come in here and do that. But remember as the judge told you yesterday, I don't have a burden. It's not my job to corroborate what Officer

Corley testifies to. So why would you expect me to subpoena him? That's not my job. That's their job.

So when you look at all the facts and everything that was brought before you yesterday in terms of reasonable doubt, you see how we get to this statement.

A perfectly valid and lawful arrest can led to a perfectly valid and lawful not-guilty. And that's the verdict I'm going to ask you to return.

THE COURT: Thank you, counsel.

Mr. Wilson. You still have time remaining. You wish to use the overhead?

MR. WILSON: Yes, please, Your Honor.

THE COURT: All right. CLOSING STATEMENT

MR. WILSON: May it please the court.

Counsel. Members of the jury. Nothin'. I had nothing to drink tonight.

That's the story that the defendant expects you to believe.

But you've seen the facts. You've heard the testimony. You know that the facts and the evidence as they were presented to you paint a very different picture.

First off, let's break down what happened Closing Statement by Mr. Wilson December 3, 2013

that night and we'll begin with the defendant's driving. You saw that the defendant almost hit Officer Corley.

Yesterday when we were watching that video, I heard an audible gaff come from the jury box. You know it was something that was close. Defense counsel just said that we all are victims of people who nearly swerve into our lanes due to inattention, due to distractions, also due to intoxication.

In addition to that, after the near collision, you saw that the defendant was weaving, still weaving, in her lane. You saw that she -- her car even ran over those reflector bumps in the middle of the road. She had that time when she turned on her turn signal briefly but yet failed to change lanes.

And then, as you were told, the officer was concerned enough to divert himself from responding to a back-up request. You heard testimony from Officer Corley yesterday saying that when another officer requests you to arrive for backup, it means something important is going on that he needs your assistance for. Officer Corley ignored someone who ran a red light but he didn't ignore this defendant because he felt like her driving violations were serious enough that they warranted his full attention.

He even asked her if she was trying to change lanes and her answer was, I don't know if I was Closing Statement by Mr. Wilson December 3, 2013 trying to change lanes. Someone who -- the average non-intoxicated person who has the full use of his or her mental faculties would be able to answer a "yes" or "no" to that question, not, "I don't know." Let's move on to the next stage, the initial contact that the officer made with the defendant. Took her

a long time to find her driver's license. He had to ask her twice to produce her insurance card. Smelled the strong odor of alcohol coming from the car. He saw -- he heard slurred speech. Saw watery eyes. All signs of intoxication. And yet she still says that she had nothing to drink.

Officer saw all of these signs of possible intoxication so he asked her to step out of the vehicle.

And he performed the horizontal gaze nystagmus test. The first of a three-part battery that go along with the standardized field sobriety tests.

Now, defense counsel just said that you

don't know whether or not the officer performed these tests to the exact letter of the rule book. Well, what I say to you is that first off, on the video, there are some things

that you just can't tell. You can't tell whether he held the stimulus 15 inches above her eye level, you can't tell, you know, those little nuances like that. But what you can rely on is that Officer Corley has been a certified peace Closing Statement by Mr. Wilson December 3, 2013 officer for eight years. He has performed over 50 D W I stops. He is a field training officer for the Richardson

police department. He is an experienced police officer and he knows what he is doing. What is clear from the video is that the defendant was not able to follow the very simple

instructions given to her. First off, Officer Corley asks her to keep her hands by her side. You'll notice if you look at the video again, she went from behind her back to in front of her back and had to be asked a couple of different times before she finally put her hands by her side. And then you all saw the absolutely egregious inability to follow the simple instruction of moving her eyes independently from her head. She had to resort to holding her head still with her own hands. You know, you heard over and over again the officer having to ask her, follow the stimulus with your eyes, not your head, not your head. And eventually at some point in time, she said, I can't do that. Someone who has the normal use of her mental faculties would be able to move her eyes

independently from her head. That's a strong indication of intoxication. Even in spite of all of those difficulties following the instructions, the officer was still able to observe the four clues that reach that decision point that

Closing Statement by Mr. Wilson December 3, 2013 he talked about yesterday. And remember that these clues, this standard of -- standard eye movement is completely involuntary. There are only a few things that cause that.

And she told the officer that she did not have any head injuries and not been involved in any sort of accidents.

It was alcohol that caused that staggered eye movement.

Next, we get to the other standardized field sobriety tests which she refused to perform. And I don't have to remind you the kind of back and forth that occurred. Officer testified that these field sobriety tests could have been performed in about five minutes.

Then she could have been on her way, using the restroom, and they would have been over. But instead, she refused to perform, and yet somehow she still claimed she had nothing

to drink and she told the officer that, you know what, in spite of how she had to use the bathroom so bad that she could not perform those divided attention tasks that are part of the other standardized field sobriety tests. Yet she says that she is safe to drive which we all heard is a divided attention task.

Next, we have that inescapable smell of alcohol. The officer asked her, why do I still smell the strong odor of alcohol on your breath? And her response was, I don't know why. He then asked her, did someone spill a drink on you? I don't know. You think somebody Closing Statement by Mr. Wilson December 3, 2013

with the normal use of their mental faculties would be able to give a "yes" or "no" answer to the question, did somebody spill a drink on you? She said, I don't know.

Next, we get to the intoxilyzer room. Officer Corley, sure, yes, it is not on video when he asked her to stand in that black box, but he testified yesterday that he did deliver that instruction to her. And what you saw, you saw her shoes were nearby the black box and she was leaning against the counter. Officer Corley could prop

-- could lean against the podium if he so chose. He wasn't under arrest. He wasn't having to follow another officer's instructions.

And then the reason why we don't have any evidence about alcohol concentration is because the defendant chose to -- she refused to provide a specimen.

And even in spite of having that 180-day driver's license suspension, you heard testimony yesterday, you saw a copy

blown up on the big screen of that statutory warning, nowhere on its face does it say that there's the possibility of getting an occupational driver's license.

So for all intents and purposes, that was not communicated

to her. You can't assume that she knew that that was an option, though she can request a hearing at a later date.

What you have to know is that she was facing 180-day suspension. That means that from December -- January, Closing Statement by Mr. Wilson December 3, 2013

February, March, April, May, all of those months, license suspended; not until June would she get it back. And she even said on the video that she had a trial that following

week that she was preparing for. She faced the possibility of not being able to legally drive to that trial. All for

the -- all because she didn't want to provide a specimen of her breath, even though she said it, she had nothing to drink that night.

I think the evidence is clear. This defendant is guilty of driving while intoxicated, and I ask you to find her guilty on the jury charge.

THE COURT: Thank you, counsel.

I've corrected the jury charge that I read to you. There was two words that we repeated on page one, and at the bottom of page one, I corrected how the reading of the date appeared. Nothing else has been changed. Any objections to those changes by the prosecution?

MR. WILSON: No, Your Honor. THE COURT: Any objection by the defense?

MR. BROOKS: No, Your Honor.

THE COURT: Lady and gentlemen of the jury, you now have had all the evidence presented to you, you heard closing argument on both sides. The case is officially turned over to you. You can just leave those copies of your jury instructions in your chair or on the railing. We'll pick them up.

This is the copy, your official copy. I've

signed it. I'm turning it over to the bailiff to give you. When you're doing your deliberations if, for some reason, one of you has to exit the room, leave the room, for whatever reason, go to the bathroom, take a phone call, you have to suspend your deliberations. No

discussions on this case can take place unless all six of you are in the room together. The case is officially turned over to you.

We await your decision.

Thank you. THE BAILIFF: All rise.

(The jury exits.) THE COURT: Note for the record that the juror that was taking notes has left his notes in the courtroom in the sealed envelope.

Everyone may be seated. (Recess at 10:14 A M, resuming at 10:25 A M. Defendant present.) THE COURT: Back on the record in cause number 002-80051-2013. State of Texas versus Mellannise

Henderson-Love.

Note for the record that the jury is not in the courtroom but all parties are present. We've received a note from the jury. It reads as follows: Dated 12-3-13 at 10:21 A M. Texas V M

Henderson. We, the jury, respectfully request a copy of State's Exhibit A, comma, D V D for our review. Signed,

David Christopher, foreman.

The court intends to just have the bailiff take back all of the admitted items.

Any objection to that from the state?

MR. WILSON: No, Your Honor. THE COURT: Any from the defense?

MR. BROOKS: No, sir.

THE COURT: All right. So ordered. Now, we may run into a situation. I don't know whether or not that D V D is formatted to play on a D

V D player or if it requires the use of a computer. So I've asked the bailiff to see if it would play on the D V D player. If it does not, there is no mechanism in the jury room for them to view it. We would be -- either have to do one of two things: We would have to --

THE BAILIFF: (Shakes head.)

THE COURT: The bailiff just walked in. It will not play on the D V D player.

We will have to take a clean computer, meaning one that doesn't have any files on it, and let them (Jury Not Present) play it on the laptop there in the jury deliberation room. The downside to doing that is that you have six people huddled around a very small 14, 15-inch screen while trying to watch the video. The other option is to bring them back into the courtroom, allow them to play it

on the giant in-court screen. The problem with that, though, is all parties have to be in here, the state would have to be in here in order to play the video. That would mean the defense attorney, his client would also be allowed to be in the courtroom, entitled to be in here. I would order the courtroom sealed. We've done this in the past. And I will order all parties not to

make any outward gestures, to say anything, not make any facial gestures because you must remember that, technically, this jury is in the deliberation state.

What recommendations would the state like to offer in that respect?

MR. WILSON: State recommends that we play the video for the jury here because they may not be able to understand that there is -- how to view the video on full screen. There's also a microphone input from the officer's in-car microphone that has a lot of noise but does not capture anything that is being said between the defendant and the officer when they're out on the roadway. And so all that microphone does is just make it difficult to hear (Jury Not Present) what's being said between the officer and the defendant. And so I turned that microphone input off during playback

yesterday. So that way, it wouldn't interfere with the discussion between the officer and the defendant. THE COURT: What says the defense?

MR. BROOKS: Judge, I would like to suggest

that we bring the jury in here, have everything set up for them to view and we can vacate the courtroom and let the bailiff start it and then exit the courtroom.

THE COURT: Well, again, are you going to be able to set it up before you hit play for the jury to see or do you have to do anything in between that?

MR. WILSON: I think the bailiff could expand it to full screen presentation and turn off that problem microphone.

The other thing is that during playback in trial, I switched -- I guess once the defendant was placed in the patrol car, I switched from camera one to camera two, but I think the bailiff could handle that very easily. THE COURT: I'm not going to involve this on the bailiff to try to handle. I'm going to allow both parties to be in here. There's too many things that could be important to either side or both that the jury saw

before that they may wonder why they're not seeing or hearing now because the bailiff is trying to run a program (Jury Not Present) that the prosecution was running as far as switching microphones, switching views, in-car camera views and things of that nature, so I'm going to allow both sides to be present. But I'm going to order the courtroom sealed. Bailiff, lock the front door so that no one comes into the courtroom.

THE BAILIFF: Yes, Your Honor. Judge, I have the video.

THE COURT: Give it to the prosecution.

THE BAILIFF: Yes, sir. THE COURT: Play the video the same way you did yesterday during trial for the jury.

I'm ordering that all parties not say anything, make any outward facial, you know, gestures or anything else to this jury while they're in here. Just play the video. I'll ask the bailiff to ask the members of the jury if they need to see the video again or maybe

portions of the video again. And based on their response, we'll either play it again or they'll go back into deliberation.

Any objection from the state? MR. WILSON: None, Your Honor.

THE COURT: Any from the defense?

MR. BROOKS: No, Your Honor. (Jury Not Present) THE COURT: Bailiff, is the door locked? THE BAILIFF: Yes, Your Honor.

THE COURT: All right. Queue up the video.

Bring the jury in. THE BAILIFF: Yes, sir.

(Equipment is set up.) THE BAILIFF: All rise. (The jury enters.) THE COURT: Bailiff, prepare to dim the lights, please. THE BAILIFF: Yes, Your Honor.

THE COURT: Members of the jury -- everyone may be seated -- you are officially in deliberation at this time. No one has the right to communicate with you. Due

to technical limitations, we cannot give you this D V D and let you play it back in deliberation rooms because it requires a computer to play it. It's not one that can be played on a D V D player. So I either have to give you a clean computer with a 14 and-a-half inch screen, the six of you huddle around to try to see it on the screen, or we can bring you back into the courtroom and play it for you on

the larger screen. I've chosen to do option B. All parties -- it requires that the prosecutor be here because the technology of this video allows whoever is playing it to switch microphones and to (Jury Not Present) switch camera views. Sometimes you can see someone using the camera that shoots outside of the vehicle, sometimes there's a camera that's inside the vehicle and it can be shot. Someone has to manipulate those options. The state introduced the video. I'm going to let them play it in same exact manner, same camera views, same audio, same microphones as you saw yesterday. Once it's been played, I'll have the bailiff

go up to you and meet you in the hallway. You can let the bailiff know if there's a section you need to see again or listen to again and we will bring you back in and let you see it or hear it as many times as necessary. But no one can communicate with you at this point. I'm ordering the defendant, the defense

attorney, the prosecution, to say nothing during the playing of this video and make no facial gestures. At this time, the state will play the video.

(DVD published on the overhead screen.) THE JUROR: Your Honor. Your Honor. THE COURT: Pause the video. Take the jury out in the hallway. Somebody was calling my name. See what they want. THE BAILIFF: All rise.

(The jury exits.) THE COURT: You may be seated.

(Recess at 10:58 A M, resuming at 10:59 A M. Defendant present.) THE COURT: Bailiff has told me that that's all the portion of the video that the jury wished to see. The jury is outside the courtroom. They will continue their deliberations. And we'll stand in recess.

(Recess at 10:59 A M. resuming at 11:28 A M. Defendant present.) THE BAILIFF: All rise.

(The jury enters.) THE COURT: Thank you. Everyone may be

seated. Let the record reflect the jury is back in the courtroom. All parties are present. Members of the jury, it's come to my

attention that you've reached a unanimous verdict. If in fact that's the case, would the presiding juror please hand that verdict to the bailiff.

Thank you, bailiff.

THE BAILIFF: Yes, sir. (Hands documents to the court.)

THE COURT: Mr. David Christopher, you're the presiding juror? Would you please stand and read the verdict aloud.

The defendant please rise.

(The bailiff hands documents to the juror.) (Jury Not Present) THE JUROR: Your Honor, the State of Texas versus Mellannise Henderson. We, the jury, find the defendant guilty of driving while intoxicated as charged.

THE COURT: Thank you. You may have a seat. Members of the jury, as we stated to you

earlier, in every criminal case, the defendant enjoys the exclusive right to determine who will do their punishment if they're found guilty. In this case, Ms. Henderson-Love has chosen to have the court administer the punishment.

I'll do that in the second part of this trial. This concludes your duty to the county. I make it a practice to come back and thank the jury after every trial, also to answer any questions you may have about the process, and to see if there's any constructive critique you can give us on how we can make this a better process for the next jury. Thank you very much for your service to the county.

Bailiff, would you please take the jury back. I'll be back in less than 30 seconds. THE BAILIFF: Yes, Your Honor. All rise.

(The jury exits.) THE COURT: Thank you. You may be seated. Does either side intend to offer any evidence or testimony in the punishment phase?

MR. WILSON: Not from the state, Your Honor.

MR. BROOKS: Not from the defense, Your Honor.

THE COURT: None?

MR. BROOKS: No, sir. THE COURT: I'll go thank the jury. They sometimes want to talk to the attorneys -- or maybe not

want to, maybe not the best way to describe it. Willing to. So I'll ask them if they want to take the time to talk

to the attorneys and see if they have anything to offer, any insight. I'll be back momentarily. (Recess at 11:30 A M, resuming at 11:52 A M. Defendant present.) PUNISHMENT PHASE THE COURT: All right. Back on the record in cause number 002-80051-2013. State of Texas versus

Mellannise Henderson-Love. The jury having returned a verdict of guilty, now move to the punishment phase.

Does the state want to offer any testimony or evidence in regard to punishment? MR. WILSON: No, Your Honor.

THE COURT: Does the defense wish to offer any evidence or testimony with regard to punishment? MR. BROOKS: Other than to reurge that

Ms. Henderson filed her application for community supervision saying she has no prior felony convictions. (Jury Not Present) THE COURT: All right. Thank you. Both sides rest and close?

MR. WILSON: State closes.

MR. BROOKS: Defense closes. THE COURT: Have you reached an agreement or do you want to be heard with regard to punishment?

MR. WILSON: We have reached an agreement, Your Honor.

THE COURT: Who wants to recite the agreement? MR. WILSON: I'll be happy to, Your Honor.

THE COURT: Proceed.

MR. WILSON: The agreed punishment is going to be $900 fine, 90 days in jail, probated for 12 months, D

W I education, Victim Impact Panel, substance abuse education plus conditions -- or, substance abuse evaluation plus conditions, no alcohol, mandatory breath and blood, 24 hours community service, and one-time donation of $50 to

Crime Stoppers. THE COURT: How much to Crime Stoppers?

MR. WILSON: Fifty dollars.

THE COURT: Ms. Henderson-Love, the jury having found you guilty, the court now will assess your

punishment. I see no evidence of any prior convictions in any state or federal, therefore, I'm going to follow the (Jury Not Present) agreement. I'm sentencing you to 90 days in the Collin County jail, however, that will be suspended and you'll be on probation, community supervision, for a period of 12 months. I'm going to order you to pay a $900 fine plus court costs. Complete a D W I education course, a Victim

Impact Panel class, you'll have to take a substance abuse evaluation and comply with recommendations that come out of that evaluation. If asked to provide a sample of your breath or blood by your probation officer or any law enforcement officer, you'll have to do that; otherwise, it will constitute a violation of your probation. You are

ordered to pay $50 to the Collin County Crime Stoppers, and you are prohibited from consuming any alcohol, even in the privacy of your own home, while you're on probation over the next 12 months. Do you have any questions for the court?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Okay. Ms. Henderson-Love, as I was telling the jury, this is one of those offenses that doesn't require mens rea. Good people often find themselves guilty of this type of an offense because by the mere nature of how D W I works, the more alcohol you consume, the less able you are to evaluate your own condition. (Jury Not Present) I would ask and hope that you look at that video and not concentrate on the fact that you were found guilty of this offense, but be thankful for the fact that no one was hurt. I assure you that people like the Dallas

Cowboy football player who killed his best friend would

love to be in your shoes instead of his own. You couldn't see the officer's car. You were obviously unaware it was there. You're obviously a very-well educated woman:

You're a high school graduate, a college graduate, a law school graduate. The officer had to tell you 21 times according to my count, hold your head still, do you know

what that means, and you said, I don't understand. So I believe you may have had quite a bit to drink that night and that's why he could smell the strong odor of alcohol on

your breath. But once again, this isn't the type of offense that requires a person to be a bad person. It's not like you intended to do anything wrong. I wish you the best of luck.

Anything else from either side?

MR. WILSON: Not from the state, Your Honor. MR. BROOKS: No, Your Honor.

THE DEFENDANT: Thank you, Your Honor.

THE COURT: If you'll just have a seat, (Jury Not Present) we'll have the officer do the fingerprinting and do the judgment and sentencing, and you'll be on your way.

You live in Collin County; correct?

THE DEFENDANT: I do, judge. THE COURT: All right.

(Adjourned at 11:57 A M. End of proceedings.)

STATE OF TEXAS ) COUNTY OF COLLIN )