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MY NEARES1 RELAT1VE1S »\*_.%l@»l\.\s`l&c~e‘z~ AN13 mm PHONE NUMBER 13 cmp gsa 1<‘0'7 1AM 011/mc 11113 sTATEMENT 10 T)’ §1,».11,3 wHo HAS BEEN ‘PROPERLY vlDE;\J'I`IFiED AS A DEPUTY SHERIFF FOR THE NACOGDOCHES COUNTY SHEIUFF' S DEPAI\' I`MEN I`. _ 4 /W.\~, c-_»\..\L»u>*A-v\ war M¢xzmw_ X SI-A¢L'-\<-<-¢\ v\-v-M~#\ N°-»@ )OO‘“QQ-“Hl `l>u.w!&e. 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OF&\-Qu~. €.»b~\~ld S\"=\§> N’> \}>\)"\°`: ~’§~O\MA `\<\A_,`. K\\\RQ, \CJL»`M $+»\J\ &\'\o<_:)‘r'\~\g_._.¢ \Cp.~.~ %\'> `L'\N~D\\) `\'\'\,~ \CN\M \\<\N_, \Nd\,q',`_ 0&£\,_~\&$\~\,` \/\D\<,.m,_~ wed\h§c~.. “ a,¢>\\\»\;», L» \.\¢~»J>L~ §>P \C-z-- \>-~ \,\LM_<,~'>TQ»€§ w QNZ~:`~ -`q`,_@>\'¢_ \Cj,_,_… ". O\~ uv\A;!\l./`_ \~._, \\C&\'>Dv'}p `C,\.uk.~\ Q,\b¢>"_`\; \/\J`_`M]> KL*A~.S ow> ¢.¢<,\$T~<_\£> §_0\`§>-\»~.\`~ \~\ A,,\]\Q_g~¢_»§ m §§ § é>’r'.` » 9-9-2012 ' l, Janice E. Loudenslager, was at my residence at 2009- CR 41__1. Kevin Brittain arrived at my house at.or-_a.round 9;30 A.Nl. as l was getting ready fo`r church'. We' had decided ' to break up after a"2 plus year relationship and were separating He calmly:and kindly M_”_*maskederne=rfehe~eca'd -et:£?=:is:ee!eagi~e-gs=(.!;lx;~_eletbes;:b,ib!e§;shoes.ectt)slasked`him_to hurry and he began to raise his voice at me. When he walked outside with some of his - belongings, l closed and locked the door behind him. He stayed outside for about another five minutes, then he left in the direction of his »parent’s`house, who ' live just _ down the road from my house. l left and attended church. At-approximately G:OOP.l\/l., Kevin came back to my house, unaware that my two daughters Alyssa Loudenslager and Adysson Loudenslager were at home with me. l was standing in my kitchen when he`_knocked .on my front door. l walked into the living room where Alyssa was sitting in the living\room floor cutting out pictures for'her science project l opened the front door and Kevin asked to get the remainder of his things, l let him in. l didn’t want to have any altercations with Kevin with my daughters there, as we have both agreed to keep our differences away from the girls. l could tell Kevin'wa_s emotionally upset. As he got his ___things_, we were both crying and emotional. Adysson, walked up to Kevin and asked ‘Where is Kolten?” (Kevin’s son) “He is with my parents and l just"have some things l need to get.” He walked into the kitchen and asked me -for a trash bag out of the utility room to put"his clothes in. l said-“yes” and that l would help him. l waited for him to get a bag. Kevin’s class ring and a pocket knife were laying on my bar. l handed them both to him and he put them both in his shorts pocket. The longer he was there the more ' emotional we all became. Kevin walked into our bedroom and opened the chest of ,_ drawers where he kept his clothes and began to get them out and putting them into the bag.v l_-le walked back into the living room and sat down the bag still looking for all his ' belongings l asked him to hurry and that seemed to frustrate him. l could tell he was hurt, l was hurt. The girls were watching and crying.’ We had been a family for over t_wo years. lt Was hard to do, especially for my girls. l asked Alyssa to call her da'd (Bryan Loudenslager) with the sole intention to have him come over and pick up them and and take them home with him, in order to let Kevin and l talk through things without my girls being_ present Alyssa did as | a’sked. Kevin overheard this and got very upset, not knowing my intentions, l suppose. Kevin has never liked the character of Bryan and always tolerated him for the girls. He began to raise his voice at me wanting to know what l was thinking by calling someone like Bryan at a time like this. Kevin began looking around his room for his things. He lifted the couch looking for the ipad he bought me as_ a gift, because l sometimes slide it under the couch. Things seemed to become more and more tense, so l again asked Alyssa to call her daddy and make sure he was- coming. She did as l asked her. About ten minutes later Bryan and Brenda, his wife, arrived. At this point everyone was upset. Brenda came into the house to get the girls v and Bryan stood at the door. Kevin and Bryan walked into the front yard and began greer § Fr>;;¢ l ge /., talking as l, Brenda, and my two daughters stayed inside. Kevin and Bryan calmly spoke in the front yard for about five to seven minutes when the police car camej barreling into my driveway. l was instantly aggravated, because l knew that Bryan and Brenda must_have called them and that is something l did not want to happen. lt was uncalled for. l was completely unaware that the officers were calle`d. The officer asked me if we were ok and l said “yes, we are all just flne.” He walked over to Bryan and Kevin. They were still having a calm conversation l saw the Officer put his hand over his pistol and also, l think on his pepper spray. Kevin obviously saw too, and started backing away from'the officer slowly into the yard. l could see Kevin’s’ face was nervous. Kevin stepped at least eighteen to twenty feet from the Officer while the Officer stood still. Then the Officer pulled and pointed his pistol at Kevin and began to yell for Kevin to get on the ground. Kevin said “You haven’t even told me what l’ve done. Please put the pistol away!” Kevin had his hands in the air and l was terrified that the Officer was going to shoot Kevin, Kevin was terrified too. Kevin pleaded with the Officer to put the gun away and that he was unarmed. The Officer asked for any weapons, l Kevin responded “No, but l do have a pocket knife you would consider a weapon.” Then said “lf l get it out l arn afraid you will shoot me” the officer screamed for Kevin to get the knife out and throw it. Kevin complied and asked the officer not to shoot. Kevin pulled the knife out of his right bottom pocket of his shorts, the same one l had given him moments before in the kitchen.' Bryan began to scream “He’s got a knife” and “he’s going to shoot him, get inside the house.” That made everyone very nervous. Bryan was standing probably five to eight feet from the Officer.`The Officer told Kevin he was about ` to_sh.o_ot him and Kevin threw the knife away so hard it bounced off the house to the right of Kevin. Kevin didn’t charge or lunge at_anyone with'the knife. He was scared and threw_it instantly. l could tell Kevin was -terrifled. l was terrified. lt was horrible to see him this way. Kevin raised his hands§ palms up opened and slowly walked towards the Officer. When Kevin was eight to ten feet away from the officer Bryan grabbed Kevin by the arm andthe Officer holstered his gun_and “bul|dogged”. Kevin so hard. Kevin slid ' three to five feet on his back across the yard. Bryan jumped on Kevin and tried twisting -his\arm behind him. The officer was lying`on Kevin as well. Never did the Officer ask for Bryan’s help. The second Officer arrived and Bryan started yelling “Taze him, taze him!” and they did over and over and over again. Then Bryan jumped in and started trying to twist Kevin’s arm behind him again when he was flat on his back. During that time the second Officer arrived and ran up'to them. He hand cuffed Kevinv and started Tazing and shocking him over and over again. Kevin’s body was locking up. They pulled Kevin up by the handcuffs and tazed him more. Kevin could hardly walk. Kevin has never even acted like would do any harm to me or the girls, and he did not deserve this at -all. Kevin has never been anything b`ut a very loving father figure and is my very best friend, who l love dearly. The police should have never been called and'l strongly believe that the calls ma'de`against Kevin by Bryan / Brenda were unnecessary and very _/ _ '€)*)/"B"_. “ pjf‘;‘$i§z likely fabricated Bryan has always tried to destroy and come between every relationship l’ve had since our divorce. He knew that he could cause@ big problem by calling the police, and did just that Till this day l love Kevin Brittain and trust him - completely at my home and to be in company of my daughters with or without my presence. He loves us and we love him deeply. l believe Bryan called the Officer and made false statements that Kevm had' gone crazy" ano“was_vanoanzingtnyhonie“rw wonder the Officers approached Kevin with such force when they arrived. l never saw Bryan or Brenda make a call, so they had to have made the false calls before arriving, as if there was anything to report Besides, this' is my home and Kevin had committed no crime. | just didn’ t want my girls there while he was getting his things. lt was too hard on all of us l or my daughters have ever been victimalized by Kevin. He loves us, and we love him dearly. Furthermore, l will not pursue charges on any innocent man. Bryan and Brenda are no longer welcome on my property since this happened. Kevin is allowed and always will be. Kevin could’ ve been killed just so Bryan could do what he does best, cause drama. Also my girls think more of Kevin as a father than Bryan anyday. ;‘€'v"»'_zj;' GARY marin ' '(“'= -Notary Public Stare of `l’exas .' § le Comrnission Expires a """" october 02 2015 't v \ l"lnm\\\\" ama tietz/§ l .,0,",, 0 \I ",\m n,, "`_;\_5,.~. gx HFBHH 311 v @ié,e 3 >(<3 ~INVESTIGATION REPORT » ` § . ` ~' CLIENT KEVIN BRITHAN //\lv€$) Fé/)v?>/& -t:. é/M>/WTTN ». ' DATE:12/3/12 AFTER RE_VIEWING ALL ORIGINAL STATEMENTS,V[EWING THE l t VIDEO AND [NTERVIEWING PERSONS WITH FI_RST HAND; - KNOWLEDGE OF THE BRIEF THV[E PERIOD OF THE ALLEGED ASSAULT OF A PEACE OFFICER, PARTIN CAN:ON;LY FIND ONE I\/IENTION OF A LUNGE OR ANY MOTION TOWARDS DEPUTY MOLANDERS IN ALL THE [NFORMATION GATHERED. TH_IS WAS :rt-=TWO SENTENCES IN THE PROBABLE CAUSE AFFIDAVIT t _PREPARED BY DEPUTY MCDONALD,WHO WAS NOT PRESENT IN _ THE TIME PERIOD THE ACT IS ALLEGED.. MCDONALD STATED “DEPUTY MOLANDERS ORDERED_ THE DEFENDANT TO DROP THE KNIFE’ ‘TI~[E DEFENDANT OPENED THE KNIFE AND LUNGED . TOWARDS DEPUTY MOLANDERS” “THE DEFENDANT THEN THREW THE KNIFE INTO THE FLOWER¢BED..IN.ERQN§I~`;.E,TI¢IE l.R]E`.SIDEI\I_CE.”. NO OT~HER PERS.`ON SUBMITTING A STATEMENT MADE MENTION OF. A LUNGING TOWARDS TI-IE01& “A” AGGRAVATED ASSAULT oF PUBLIC sERVANT “F1” THE PLAYERS IN Ttlrsthn)EN'r ARE IDENTIFIED AS FoLLoWs= KEVIN LEE BRITTIAN, WM, 7/1/75 ALLEGED AcToR JANICE EDWINDA EMERSON LOUDENLAGER, WF, 1 1/22/ 72 ALLEGED VICTIM é°("%; ?5§7 0162 ALYSSA ERIN LOUDENLAGER, WF,1/18/99DAUGHTER OF BRYAN AND JANICE LOUDERLAGER _ _ ss ADYSSON L'©_UDENLAGER, WF, 6/22/07, DAUGHTER OF JANICE AND DRYAN LOUDENLAGER ~ KOLTEN BRITTIAN, WM, 2/1/10, SON OF KEVIN BRITTIAN AND H_OLLY SCOGGINS HOLLY SCOGGINS, WF, EX-GIRLFRIEND OF KEVIN LEE BRITTIAN AND MOTHER OF KOLTEN BRITTIAN, PRIMAKY CQUSTODIAN OF KOLTEN BRITT.[AN HOLLY SCOGGINS CONTACTED PARTIN BY TELEPHONE AND WANTED TO TELL PARTIN OF THE PLANS SHE v AND BRYAN LOUDENLAGER DISCUSSED TO USE KEVIN BRITTlAN AS A REASON TO GET CUSTODY OF ALYSSA LOUDENLAGER AND ADDYSON LQUDENLAGER FROM JANICE 'LOUDENLAGER. SI-IE SAID THAT BRYAN LOUDENLAGER -- WANTED THE PORTRAY KEVIN BRITTIAN AS A BAD PERSON THAT IS HAVING A BAD EFFECT ON THE TWO YOUNG GIRLS. SHE ALL,OWED THAT SHE WOULD TESTIFY TO THOSE DISCUS SIONS BETWEEN HERELF AND BRYAN LOUDENLAGER. SHE TOLD PARTIN THAT KEVIN HAD BEEN CLEAN AND SOBER SINCE THE BIRTH OF HIS SON, KOLTON. OTHER WITNESSES MAY BE DISC()VERED THAT WOULD AID IN THE DEFENSE OF BRITTIAN. DEPUT[ES INVOLVED IN INCIDENT: DEPUTY STEVEN MOLANDERS, NEW HIRE WITH ALMOST NO EXPERIENCE ON THE STREET. FORl\/[ER OCCUP_ATION WAS THAT OF A “RAPPER”, TRAVELING WITH AND DOING “H[P HOP” SHOWS WITH BLACK ENTERTAINERS. STEVEN MOLANDERS IS THE NEPHEW OF DEPUTY KENNETH KING ON NCSO. - l MOLANDERS APPEARS TO PARTIN TO BE PRETTY IMMUTURE AND TOO INEXPERIENCED TO WORK ALONE ON THE STREETS. DURING THIS INCIDENT, MOLANDERS USED VERY POOR TACTICS IN CONTROLING THE SCENE. H[S INJURY WAS MOST LIKELY DUE TO IHS ATTEMPT-T~O JUMP ON BRITTAIN AND TAKE HIM DOWN TO THE GROUND. MOLANDERS WAS SAID BY AT ever a 0163 '@,w£@ 9 LEAST TWO PERSONS TO HAVE LANDED ON HIS RIG11T ~ SHOULDER AS HE FELL ON TOP OF BRITTIAN. \N DEPUTY AUS.I§IN MCDONALD, MAY 11AVE A YEAR ON 'I`HE STREETS WITH NCSO. HE WAS A RE_SERVE FOR A WHILE AND ~6~6~°6'~6~666:666661613`1611366"`116wu111§111) 1N 111611 1311:61\71`CDON'A`LD 01 111N RODE WITH SEVERAL OFFICERS WHILE HE WAS A RESERVE. HE IS MOST LIKELY A BETTER DEPUTY THAN MOLANDERS_. MCDONALD COMES FROM A TROUBLED HOME IN GARRISON WITH PARENTS DEEPLY INVOLVED IN SUBSTAN_CE ABUSE. HE IS A PERSON WELL KNOWN TO PARTIN. AUSTIN MCDONALD WAS RAISED BY HIS PATERNAL GRANDPARENTS WHO WERE GOOD CHRISTIAN PEOPLE. DEPUTY 525 WHO WAS THE LAST DEPUTY TO RESPOND 10 THIS LOCATIC)N IS A PERSC)N UNKNC)WN B_Y PARTIN. HIS ACTIONS ON THE VIDEOS CAUSE PARTIN TO BELIEVE 1113 IS AN EXPERIENCED _ _ STREET OFFICER THE DISPATCHER WORKING THIS EVENT IS SAID TO BE COLTON 1 MURRAY WHO IS CURRENTLY WORKING NIGHTS AT THE NCSO LEC JAIL AFTER PARTIN LEARNS MORE ABOUT THE PHGNE CALLS BETWEEN ALYS SA LGUDENLAGER AND BRYAN LOUDENLAGER, PARTIN WILL ATTEMPT TO INTERVIEW MURRAY \/ v éXHFBJ’/I/”c 016 93.6¢1§7 w 10 14 4.`:`. - / ` .'.~`}1' _ Warr:_l__nt|ess Arrest Probz)ble Cause Aff'lcluvit' NACOGDOCHES 1 COUNTY_ SHER|FE'S lOFFICE l ll l ~ t ll ~Ki.l-l-m. . b . Stale of 'l`exas Cause #: Counly of Nacogdoches Case k': \/ °’-j`%' it Mép‘/\¢.IL _0r1thACOGD0c1-ttscoum'\'srln lFF'S OFFlCE under oath The undersigned, R sta\es that there existed probable cause for the arrest without warrant ofthe person named belle w based upon the l`ollowing: uan oram»srt-c: KEVrN L. 13111'1"131.\' " oou‘=* 07/01 75 Dale ol' arrest 09/09/|2 Time: \9:09:01 \ |’l:tce of nrrcs|: 2009 CR =ill The above-named person is currently being detained on lhc following eltarges: §t;\lttte §§pdr. Offcnse D:ttefl'ime .AGG ASSAULT /\G/\lNST PUBLIC SER 09/09/12 19:\2:03 22.02 (l))(2`)(B’) ‘ Z.CRlMlN/\L 'l`RESPASS l~lABlT/SUPERl-` 09/09/|2 l9:13'.33 30.05 (a)(l)(?.l) \ 3.RESlST ARREST SEARCH OR TRANSP 09/09/ |2 19:20118 38.03(3) 'I`be undersigned believes \hz\t probable cause existed for this warrantless arrest and the continue above-named person based upon the ihllowing information which was either known by the und obtained by the undersigned in his/her capacity as a peace officer s were dispatched to the 2000 t on 09/09/12 at approx 1815 hours deputie ival deputy molanders § reference to a disturbance in progress. Upon arr female subject yelling at each other on porch. Deputy molanders ordere step away from the porch and speak with deputy molanders.q&he defendant in his poeket. eputy molanders drew his duty weapon and ordered the de hands out of his pockets, when the de ordered the defenant to drop the knife. The defendant opened the knif deputy molanders. The defendant then threw the knife into the flower be residence- Deputy molanders took the defendant to the.ground in attempt mcdonald arrived and observed the defendant resisting and pulling away on the ground. deputy mcdonald drive stunned the defendant with his du have the defendant comply. deputy molanders was hospitalized due to in during the incident; deputy mcdonald spoke with th. victim of the distu the defendant entered her residence to get his things but refused to l yelling and7vandalized the inside of the residence. 'l`lte undersigned requcsls the magistrate 10 whom this statement cause existed for the above-chcribed;warrantlcss arresl, authorizing t the stated charges, and setting appropriate bail. il` any. _» ' . _// ._ _ Of`l`tecr “;jz%»z§%t /\1' W le wjr/deegan Q' V@.I 1,{ l" ` 01(4!(9|2 CAUSE NO. F1219562-A tx PARTE; § lN THE 145TH JuolcrAL ~’»‘.-'r._; . ~ § DlsTRlcT couRr or ‘ -“-.~“'i KEle LEE BRlTrAtN " § NACOG DGCH ES COUNTY ORDER DENY|NG APPLICAT|ON FOR WRlT OF HABEAS CORPUS WlTH F|ND|NGS OF FACT AND CONCLUSlONS OF LAW On this the 10th day of February, 2015 came on to be considered Re|ator’s application _ for Writ- of Habeas Corpus filed on February 3, 2015. The Court has carefully considered the Relator’s App|ication for Writ of Habeas Corpus, the attached exhibits, the sworn pleadings, the _Counsel's personal recollection, and finds that the App|ication is unfounded in fact and/or law and should be denied. Therefore, the relief sought in the App|ication is hereby DENIED. The findings of fact and conclusions of are set forth below F|ND|NGS OF FACT AND CONCLUS|ONS OF LAW F|ND|NGS OF FACT 1. The App|ican_t is a repeat offender who was placed on probation for Aggravated Kidnapping back in 2000 and later revoked in 2004. He received a live year sentence for his case when his probation was revoked. ln Ground Two of his application, the App|icant claims that l, the trial judge, recused myself in that matter. After reviewing the papers in that prior case it is clear that l never recused myself. 2. ln Gr'ound One the Applicant complains that his trial attorney was ineffective by telling him that he could not get a fair trial, and that he would receive a 99 year sentence or a A€>*-h:at:-'.‘.!!.£»..~James;ae.‘.'.er:sa:d:t-hat~tbes¢_t»pp!i.;-a;;:_£@ei:_‘.~s_<;@g€g;-_;§a§;-:.*_.;;;ai nor that he would receive a sentence of 99 years or life in prison. Based on the affidavit of Mr. James, the Court finds that the App|icant was given several months to consider the 5 year plea bargain and that he was advised by Mr. lames to talk to other attorneys about his case. 3. _ln Ground Two, the App|icant claims that his father is an_ investigator for the Nacogdoches District Attorney's Office. The court finds that his father is an investigator " for the Nacogdoches County Attorney's Office. Therefore, the claim regarding his _ _ _, father’s employment i_s false. The Applicant goes on to claim that his father had ¢QL / detained both the District Attorney and me during a disturbance. This is absolutely false. ' There has never been any disturbance involving me and the District Attorney. The \ App|icant claims that his attorney knew all of this and said that he would file a motion to A`\\ have the case transferred to another court; however he failed to do this. Based on the attorney's affidavit, the Court finds that this claim is false. v Furthermore, the applicant's father did detain me once but it had nothing to do with the »' District Attorney. Here are the details of that temporary detention. |n either-1978 or 1979 a group of fifteen to twenty teenage boys, including myself, gathered after a Key \ Club meeting to watch two other boys race their cars on the Loop in Nacogdoches. After 5’ the two boys raced by, Officer Brittain (the App|icant's father, then an officer for the ’ ' Nacogdoches Police Department) drove up beside the group and detained all of us. We Q\j /'/ were instructed to drive to the police station. We did as we were to|d. At the police `;\> l' station, two of us asked to see a copy of the law that they were holding us under. They \:J ' indicated that they were holding us for ”participating” in an illegal street race. We -` pointed out that we were merely observing and not participating. The officers agreed and let us go. Ever since then the App|icant's father and | have often joked that he is the _ only person to arrest this District ludge. investigator Brittain and l have a good relationship and kid each other on a regular basis. There are no hard feelings by me that would prevent this App|icant from receiving a fair trial in my court. ./ 4. ln Ground Three, the App|icant complains that his counsel failed to appeal the fact that l denied a motion to suppress. The counsel could not appeal because part of the 5 year plea bargain offer was that the App|icant would not appeal the denial of his motion to suppress. (See the App|icant's Certification regarding appeal marked as Exhibit 2.) The App|icant's attorney asked me at some point to make Findings of Fact and Conc|usions of Law regarding the motion to suppress. l did so and they are marked as Exhibit Three. 5. The App|icant complains in Ground Four that his attorney told him that he could not win his case due to the facts of his prior felony conviction, that the jury would be older Repub|icans, and because the victim was a ”cop". |n his affidavit Nlr. James states that in // " EXH:EEZT é Pg(£ogf’> his opinion the App|icant would have had a difficult time obtaining an acquittal due to the facts of the case. This includes the statements of the officers involved and the tape including the statement of the App|icant. He states that one of the eye witnesses stated that they saw the Applicant lung at an officer with a knife (which is the crux of the indictment)- He a|SO was Concernetd~wi_th_the_fa_ct__thattif_the_Appl.ican.t_took_the-s_tand_th.e State could use his prior felony conviction to impeach him, He states that the Applicant made the decision to take the 5 year plea bargain because he knew that a jury verdict would place him in prison far longer than the minimum which he received. The Court _ finds that the App|icant decided to plea due to the facts of the case and because of the fact that the State could have used his prior conviction to impeach him. There was no unfair coercion by his counsel. CONCLUS|ONS OF LAW 1. ln Ground One, the Applicant makes factual claims about his trial attorney that iftrue wouid most likely constitute ineffective assistance of counsel. However, the Court finds these factual allegations to be false, therefore the Court does not have to make any conclusions of law as to these allegations. 2. The same points made in Ground One apply to Ground Two. 3. |n Ground Three, the Applicant claims that his attorney should have appealed the trial Court's decision denying his motion to suppress. As mentioned in the findings the attorney could not appeal the Court's ruling because it was part of the plea bargain that the Applicant was giving up his right to appeal all issues. Therefore there was no ineffectiveness of counsel. 4. in Ground Four, the same points made in Grounds One and Two apply to Ground Four. A copy ofthis order shall be furnished to the Honorab|e Nico|e Lostracco, District Attorney for the 145"‘ ludicial District Court and the Applicant, Kevin Lee Brittain, TDCl #1915233, Larry Gist Unit, 3295 Fl\/l 3514, .Beaumont, TX 77705. Signed and entered this the _[O_ day of February, 2015. D|STRlCT JUDGE 5065;-'/'"€" _ .f§' 3 553 NO. F12-19562-A sTATE oF TExAs § iN THE 145TH DisTRicT couRT ' § ..5 § Q.F § KeviN LEE BRiTTAiN § NAcoGDocHEs couNTY, TExAS AFF|DAV|T My name is Tim James, l am an attorney in Nacogdoches, Texas. | am a Board Certified criminal defense lawyer and | have been practicing for 45 years. l am making this affidavit freely and voluntarily and am stating as follows: l §\ a f 1. l took this case £r/m)@ out of respect for Kevin Brittain's family. From the earliest time, | informed him that he had significant exposure because of the fact that he did have a knife and he was recorded after his arrest\at the patrol car telling the arresting officer that when the officer pulls a gun on him he will pull his knife on the officer He then apologized g U/hil‘\!\@.([»`l; \'i rl:__) § L(-;r"i » ~ ~(`\Ml [\\.i to “ 1 \\ \’ ~~\<..` _\`:\' \~; t~\" W.` l \//,i§ tit/SUin dial 1 rt , ) O\ 1" ~~~~~~~ l ,/ ,_ 1\ \\` h _ \{->< to the Offcer. ):\'/O pl ,_;\L é_lf vi §~ L"{’\‘ ` '/ jr §\l`/;"' ;¢ b :;’~ pier `i O("j VE/‘";,\ § ;D "/. f Z}>TJD.\V|!`/- l n : ‘\\ J\'/i/ .`\\1\/‘\\`1 ‘;L\'\`-‘\ \ ‘, 4` ~ \b( i;;v%"" We interviewed all of the witnesses and the arresting officers and it appeared from all of the witness statements that either the witnesses did not see the actual confrontation with the knife or'did(not agree with Mr. Brittain's version that he only threw the knife in a flower bed and . pmi that it had opened accidentally as he was pulling out_ One witness even stated that lVlr. Brittain ?‘t~/ pulled the knife out and lunged at the Deputy. We reviewed the videotape and based on the tape and the witness statements, we again emphasized to Mr. Brittain that this was a very \»\\ \1; §§ \,, »;~<»~ le \;n- ?t § tie \i)ti¢*~i¢» l;.;, kidd a;, lowest jj /\\~,\g;,\t)<¢,\ wait \ dot 1a pause _} . 2. We negotiated the State' s offer from 15 years down to 5 years, which was the Sef'lOUS Ca$e minimum for an enhanced Assault on a Pub|ic Servant case. We relayed this offer to l\/lr. Brittain several months beto his plea and continued to meet with him and discuss the case. `~_/\'0 (O)\ \/\o.... '\~€. Cp`\_\:(' €A.)€)\¢=.»QQ'{ b£p d‘;b/\\Ja>€c{ r"§t t j\ NW@§M /| 61/63£/“ i'F 65 /§/3 3. Mr. Brittain had ample time to talk with any other lawyer and y_v_eni fact engg_ntag_edbtntn)_qgsg to see if anyone else had any ideas that would be of benefit |Mt . § _ r;kno§ðer he spoke with anyone else, but there were no other alternatives other than to try his case to a jury. We set this case for a l\flotion to Suppress. The incriminating film gentaining the confession was the main evidence The Motion was overruled by the judge and the case was then set on the' jury trial docket. lt was then up to Mr. Brittain as to whether he wished to go to a Jury trial. He continued to ask us our opinion and we continued to tell him that he was probably going to lose the case based on the statements contained in the tape and the testimony of the two Deputy sheriffs and the Ue_eyQtvitne,ss We also explained this to his famiiy. wet ngf\t\i:/la:;*/‘f”‘/\ §§§1?:/\ */t»@*" ‘“iii°“ ‘“ 44 Mr. Brittain’ s father was not an investigator for the D_istrict Attorney s office and \_.___,4/'/ .. _‘_ 4.. he had_ not in previous years detained either Jud_ge Cox or District Attorney Nicole l_oStracco » ». iii This allegation"'\`iiias never made to us by Kevin Brittain and was never presented by him as any ._, 4 ,_ 4__~~ _ /,. . v grounds supporting any request for a C_h_a_nge of Venue or Motion _to Rec_use_ S__uch conversation ___ /f,. ______ ~1 , . _ _ / \ ,._`,_\ t for a Change of V_enu_e or a nflotion to Recuse the Judge. t " w 44 ' ~ ~ 44\ 5 '\ _~ §§ `3 _/.,hever took place, the facts never took placel and even had it occtinred_,__there were no grounds 5. After the adverse ruling on the nflotion to Suppress, the nextstep in the case i i'=.\/ would be th'e trial of the case. A lVlotion to Suppress cannot be appealed by the defendant ___ vs \tj_ before trial. but must be carried along through the`trial and made a part of any subsequent ""'»/\\i appeal if there is an adverse verdict at trial. 6. in evaluating the ‘case, it was obvious after investigation, after reports, after extensive work, (all of which is reflected in our file) that Mr. Brittain would have a very difficult time obtaining an acquittal from a Jury This was based on tbej_agt,sbf tbeLase,Jlot othe fact that he had a prior conviction o_r that the person assanlted was a policeman Those factors `44\_"/_"/ would probably play into some of the decision-making by a jury, but' in a case of this nature, the big dilemma would be whether or not Mr. Brittain would choose to testify because by doing so l I E>GiFSI,/" ij faa §§ his prior conviction would be placed in evidence before thejury. lt would be naive to assume a y jury would not consider that he was a prior convict and that the person assaulted was a peace officer with no prior criminal backgroundl Kevin Brittain's decision to plead guilty was based on the fact that he understood a jury verdict would probably place him in prison ror a very substantial amount of time and almost certainly would be far more than the offer that was negotiated at the minimum |imit. 7. All efforts, investigations, and strategies were done on l\/ir. Brittain's behalf. He received excellent representation and a thorough investigation and evaluation of.his case. lt was his decision based on our mutual analysis of the case to accept the plea and to avoid exposure to a jury, which would have surely sentenced him to substantially more time in prison. . H~_._. ., ___/1 "‘-\`______________.____ ,,.~--____ __` Affiaht © SWORN TO AND SUBSCR|BED before me the undersigned authority, on this the L/U day Of FEBE_\>AL\, ' 2015. /;/~%L\ n l § \ :-'"'"»'=" JOY JUEL$ON ~ -` * '"g-‘o<‘= Noiary Publlc. 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