Pedder, David Clifford Jr.

I ~,160-o)
I A-\ oo) telfo . . PrQ
..Y/R 82,450- I'

I . EXPARTE

I ..... ·. ORANGE COU~'!):', TEXAS

I This document contains some
pages that are of poor quality
I at the time of imaging.

I
I IN THE COURT OF CRIMINAL APPEALS

I MEMORANDUM IN SUPPORT OF FIRST AMENDED APPLICATION FOR WRIT OF
'
HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER TEX. CODE CRIM. P. ART.11.07
I
I
I
I
I RECEijVED ~N
COURT OF CRIIVlii\J/41 APPEALS
I JUN 11 20 1 :..

I Ab@i ~©0~~, C~®rlk

I
I
.I
 RYAN W. GERTZ
ATTORNEY AT LAW
BOARD CERTIFIED CRIMINAL LAWYER
TEXAS BOARD OF LEGAL SPECIALIZATION

THE GERTZ LAW FIRM
2630 Liberty, Beaumont, TX 77702

COPY l·· p: (409) 833-6400 f: (409) 833-6401
e: rgertz®gertzadair.com

June 16,2015

The Honorable
Judge ofthe
Orange C ty
801 W. I vision St.
, TX 77630

RE: David Pedder, Jr.- Memoranda in Support of Writ of Habeas Corpus

Dear Judge Arkeen,

Per your order, I have enclosed for filing a Memoranda in Support of our Writ of
Habeas Corpus, accompanying exhibits and a Proposed Findings of Fact and Conclusions
of Law. For your convenience, I have also provided you a flash drive containing a PDF of
the Memoranda, the Exhibits and a Word version ofthe Findings of Fact and Conclusions
of Law.

We will provide a courtesy copy of the Memoranda and the Exhibits to the District
Attorney, the Comi of Criminal Appeals and Bruce Smith.

If the comi has any questions, please let us know.

Thanks in advance for your consideration.
 .__,.
. \

I
.I
I
I
I IN THE COURT OF CRIMINAL APPEALS

I MEMORANDUM IN SUPPORT OF FIRST AMENDED APPLICATION FOR
WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY
CONVICTION UNDER TEX. CODE CRIM. P. ART. 11.07
I TO THE HONORABLE JUDGE OF SAID COURT:

I This application concerns a conviction from the 1281h District Court,

I Orange, Texas. The Cause Number was: Al00640-R. The Trial Judge was

the Honorable Courtney Arkeen. Applicant was represented at trial by
I Bruce Smith (SBOT: 18543300). Judgment was entered on May 18, 2012

I whereby Applicant was convicted of Aggravated Sexual Assault and

I sentenced to forty (40) years.

Applicant previously filed a pro se writ application to this Court, the
I Cause Number was No. WR-82,450-01. On January 14, 2015, the Court of

I Criminal Appeals, entered an order regarding evidence gathering. Applicant
\

I filed an Amended Writ on April 10, 2015. At the Court's direction and in

accordance with the Rules, Applicant hereby files his Memorandum in
I Support of the Writ and accompanying affidavits and exhibits along with a .

I proposed Findings of Fact and Conclusions of Law.

I
I
I
I
I
I
I IN THE COURT OF CRIMINAL APPEALS

I MEMORANDUM IN SUPPORT OF FIRST AMENDED APPLICATION FOR
WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY
I CONVICTION UNDER TEX. CODE CRIM. P. ART. 11.07

I TO THE HONORABLE JUDGE OF SAID COURT:

I COMES NOW David Clifford Pedder, Jr., and files this Memorandum

in Support of First Amended Application for Writ of Habeas Corpus Under
I Tex. Code Crim. P. Art. 11.07, and in support thereof would respectfully

I show this Court as follows:

I I. WRIT

David Clifford Pedder, Jr. is illegally restrained of his liberty by the
I Texas Department of Criminal Justice pursuant to an order of cunviction in

I Orange County, Texas. This application seeks relief from that restraint in

I the form of a new trial or, alternatively, a grant of an acquittal by this Court.

Under Article 11.05 of the Texas Code of Criminal Procedure, this Court has
I the power to grant this Writ.

I
I 2

I
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I
II. SUMMARY OF RELEVANT FACTS
I The alleged sexual assault occurred on a Saturday morning, May 15,

I 2010 at Baker's Transmission in Downtown Orange, Texas. 1
The

I Complaint testified that David drove her to work at Baker's Transmission on

Saturdays and the·y would arrive before everyone else.Z She further testified,
I on the day of the alleged assault, that they "were the first ones there" and

I - that the doors were not locked upon their arrival. 3 During cross-examination

I 4
she changed her story and testified that David had keys to the building. The

Complaint did not allege any other instance of sexual contact with David
I and did not allege any location other than Baker's Transmission.

I Furthermore, she described the location where the sexual encounter occurred

I as the floor of the "room with the rollout rug on it." 5 No physical evidence

of any kind was presented by the State. No DNA. No semen. No blood.
I And, no photos of the scene or location were presented to the jury by either

I side.

I To counter the State's case, trial counsel, Bruce Smith, could have

called more than a dozen potential witnesses who would have testified to the
I impossibility of the Complaint's claims. Specifically, those witnesses would
I I
2
RR 4, 11-12.
RR 4, 8-10.

I
3
RR 4, 9-10.
4
RR4, 26.
5
RR4, 12.

I 3

I
I
I
have testified that: David did not have keys or the alarm code to open
I Baker's Transmission on May 15, 2010 or anytime before, the Transmission

I shop was never open unless a Freeman family member was present, and

I numerous people observed him on Saturday mornings arrive before the shop

was open and sit outside and wait for someone with a key to arrive. 6 In fact,
I two different witnesses specifically recall seeing David sitting in his truck,

I on a Saturday morning in the Spring of 2010, with the Complaint waiting for

I the shop to open. 7 Every one of these witnesses now indicate, via their

attached affidavits, that Bruce Smith did not interview them, request their
I testimony, or contact them at all. 8 Additionally, the impossibility of the

I offense was explained to Detective Keaton but those conversations were not

I communicated to Bruce Smith nor reflected in Detective Keaton's report. 9

III. SUMMARY OF THE ARGUMENT
I Applicant was denied effective assistance of counsel in violation of

I the Sixth Amendment and clearly established federal law, specifically

I Strickland v. Washington, 10 as well as Texas law. 11 Bruce Smith failed to

adequately investigate the allegations, failed to preserve error relating to
I
I 6
7
8
See Exhibits I-L, N-W.
See Exhibits N & S.
See Exhibits J-L, N-W.

I
9
See Exhibits J, L, andY.
10
Stricklandv. Washington, 466 U.S. 668 (1984).
11
Ex Parte Patterson, 993 S.W.2d, 114, 115 (Tex. Crim. App. 1999).

I 4

I
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I
pertinent procedural and evidentiary matters, failed to object to inadmissible
I evidence, failed to effectively present a readily available defense, and

I generally failed to render adequate legal assistance. The totality of the

I ineffectiveness by Bruce Smith directly caused the conviction and the

outcome of the case likely would have been different had Bruce Smith
I performed adequately at the guilt/innocence stage of the trial. Applicant was

I likewise denied effective assistance of counsel at punishment and his

I extremely harsh punishment was a logical result.

Additionally, Applicant is actually innocent of the crime for which he
I has been convicted and his punishment, therefore, violates the Eighth

I Amendment and the Fourteenth Amendment. Writs of habeas corpus are the

I proper vehicle for considering claims of actual innocence under federal and

state law. 12
I Finally, Applicant was denied a fair trial as a result of exculpatory

I information in the possession of law enforcement being withheld from the

I defense in violation of Brady v. Maryland.
13

I
I
I
12
Herrera v. Collins, 506 U.S. 390 (1993): Ex Parte Elizondo, 947 S.W.2d 202, 205
(Tex. Crim. App. 1996).
13
Brady v. Maryland, 373 U.S. 83 (1963).

I 5

I
I
I
IV. BRUCE SMITH'S RESPONSE TO COURT'S ORDER FOR
I AFFIDAVIT EXPLANATION

I On the Order of the District Court, Bruce Smith filed an affidavit

purportedly answering the queries posed by the Court relating to this Writ. 14
I
The Court Ordered Bruce Smith to respond to the following inquires:
I 1. Whether Trial counsel's performance was ineffective by failing to
investigate and interview six witnesses who could testify as to the
I impossibility of Applicant being able to gain entry into the
establishment where the Complaint claimed the sexual assault had
I taken place.

2. Whether Trial Counsel had a trial strategy for not calling said six
I witnesses to testify as to the impossibility of Applicant being able to
gain entry into the establishment where the Complaint claimed the
sexual assault had taken place.
I 3. What investigation Trial Counsel did in preparation for trial.

I 4. What evidence was obtained by Trial Counsel in response to any
discovery orders in the case or the District Attorney's open file policy.

I 5. Whether Trial Counsel had a trial strategy.

I
The affidavit filed by Bruce Smith did not adequately address the
I issues posed by the Court and to the extent that it did not, David Pedder

I objects to the Court regarding the record to be "silent" on those issues.

Bruce Smith had the opportunity to describe his strategy for failing to
I
investigate the myriad witnesses who would have described the impossibility
I 14
See Exhibit H.

I 6

I
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I
of David accessing Baker's Transmission to commit the offense. Clearly he
I had none. 15 Courts have consistently found there is never a strategic reason

I not to adequately investigate a viable defense or interview important fact

I witnesses - though Bruce Smith did not attempt to announce one.

The extent of Bruce Smith's "investigation" appears to have been
I interviews with David and his fiance, reviewing the State's file, getting a

I polygraph exam for David, and preparing motions that he never filed. He

I alleges that he interviewed and had several conferences with Don Freeman,

owner of Baker's Transmission, but Freeman's affidavit indicates that Bruce
I Smith failed to talk with him or meet with him until the Friday before trial. 16

I As such, his alleged trial strategy of showing that the incident could not have

I happened because David did not have a key to Baker's Transmission was

not even a viable defense for him before his first conversation with Freeman
I 72 hours before trial.

I Noticeably, he did not indicate that he interviewed any of the otqer

I Freeman family members who run Baker's Transmission or any of the

regulars who go to Baker's every Saturday morning for coffee and
I socializing. 17 He also failed to indicate his strategy for doing so, and the

I
I 15
16
17
Id.
See Exhibit I, affidavit of Don Freeman, pg. 2.
See e.g. Exhibits N & 0.

I 7

I
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I
Court should regard that as a lack of strategy rather than the record being
I silent on that issue.

I Finally, the most shocking revelation provided by the affidavit was

I the claim that "[Bruce Smith] prepared several pretrial motions on behalf of

Mr. Pedder that were ready to be filed at any time." It is bad enough that he
I actually filed no motions on David's behalf. Sadder still, however, is that a

I review of the motions he drafted indicates that Bruce Smith copied and

I pasted them from other cases 18 and that many of them were not even

relevant to David's case. For example, Bruce filed a Motion to Suppress
I Illegally Obtained Evidence; yet there was no physical evidence in the case,

I much less any indication that it was illegally obtained. This was merely a

I boiler-plate, irrelevant motion. When reading the motions, even a casual

observer can tell that the are not tailored to the facts and issues in David's
I case and would have served almost no purpose. His failure to file any of

I them though indicates how little attention Bruce Smith actually paid to this

I very senous case.

I
I
I 18
See Exhibit Z, Bruce Smith Motions, Motion To Suppress Illegally Obtained Evidence;
listing Kenneth Fuselier as his client.

I 8

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I
V. LAW OF THE CASE AND APPLICATION TO THE FACTS AND
I RECORD
1. Ineffective Assistance of Counsel at Guilt/Innocence

I The Sixth Amendment, applicable to the States through the Fourteenth

I Amendment, guarantees citizens accused of a crime the right to counsel in

criminal prosecutions. 19 In the pioneering case Strickland v. Washington,
I the United States Supreme Court held the right to counsel means the right to

I effective assistance of counsel. 20 To prevail under Strickland, a petitioner

I must show that counsel's performance was both deficient and prejudicial. 21

Texas has adopted the Strickland test for State cases as wel1. 22
I To establish deficiency, the petitioner must show "counsel's

I representation fell below an objective standard of reasonableness." 23

I Evidence of prejudice is shown by establishing a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding
I would have been different." 24 A reasonable probability is one sufficient to

I undermine confidence in the outcome. 25

I The Fifth Circuit agrees. "A 'reasonable probability' need not be

proof by a preponderance that the result would have been different, but it
I 19
U.S.C.A. Const. Amend. VI; Gideon v. Wainright, 372 U.S. 335 (1963).

I
20
See generally: Strickland, 466 U.S. 668.
21
Id. at 687.
22
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

I
23
Strickland, 466 U.S. at 688; see also Ex Parte Patterson, 993 S.W.2d at 115.
24
Strickland, 466 at 694.
zs Id.

I 9

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must be a showing 'sufficient to undermine confidence in the outcome. "' 26
I According to the Texas Court of Criminal Appeals, Strickland does not

I "require that the appellant show there would have been a different result if
. 27

I counsel's performance had not been deficient."

A. Failure to Perform Pre-trial Investigation
I Given that this issue relates to a fundamental constitutional right, the

I federal appellate courts provide great insight into what constitutes a

I sufficient investigation and whether harm results. Significant to this case, the

Fifth Circuit has addressed failure to investigate valuable witnesses and
I found it to lie outside the bounds of strategy. In Bryant v. Scott, the court

I overturned a denial of habeas relief in an armed robbery case because

I counsel failed to interview eyewitnesses and an alibi witness. 28 In finding

counsel ineffective, the court reasoned that choosing not to interview
I witnesses cannot be a contemplated strategy. 29

I The Fifth Circuit in Bryant, overturned a district court's denial of

I habeas relief from a state armed robbery conviction because counsel failed

I to interview two eyewitnesses, an alibi witness, and "restricted his pretrial

I
26
Williams v. Cain, 125 F.3d 269,279 (5thCir.1997) (quoting Strickland, 466 U.S. at
694).
27
Andrews v. State, 159 S.W.3d 98, 102 (Tex. Court Crim. App. 2005) (citing Strickland,

I 466 U.S. at 694).
28
29
28 F.3d 1411 (5th Cir. 1994).
Jd. at 1419.

I 10

I
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I
investigation to discussions with [the defendant], review of the indictment
I against [the defendant], and examination of the prosecutor's file." 30 The

I court concluded that "information relevant to [the] defense might have been

I obtained through better pretrial investigation of the eyewitnesses, and a

reasonable lawyer would have made some effort to investigate the
I eyewitnesses' testimony." 31 Interestingly, the "investigation" in Bryant

I reads almost like Bruce Smith's purported investigation in this case.

I The Fifth Circuit expressly rejected the notion that "vigorous" cross-

I examination of witnesses at trial can "cure" counsel's failure to interview

witnesses before trial. The panel pointed out that effective cross-examination
I
"does not necessarily indicate that a reasonable lawyer, viewing the trial ex
I ante, would have regarded an interview of the eyewitnesses as

I unnecessary. " 32 The Court also noted that even if cross-examination were

effective, "that is not to say it could not have been improved by prior
I
investigation." 33 The same is certainly true in this case.
I
Further, the Fifth Circuit rejected the argument that a failure to
I interview witnesses is excusable as "a strategic decision" if the witnesses

I 30
Bryant, 28 F.3d at 1418.

I 31
32
!d.
!d. at 1419.
33 !d.

I 11

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would not have been credible. 34 Acknowledging that a lack of credibility
I might support a strategic decision not to call a witness to testify at trial, the

I court explained that a witness's character ·flaws cannot support a failure

I to investigate. 35 Without contacting a witness, much less speaking with him,

counsel is "ill-equipped to assess his credibility or persuasiveness as a
I witness. " 36

I In Soffar v. Dretke, the court found counsel ineffective because he

I failed to interview and investigate the only known eyewitness to the crime. 37

I · There, the eyewitness could describe the gunman but was unable to identify

the accused in a photo lineup. 38 Citing Strickland, the court noted that the
I petitioner is not required to prove his innocence or demonstrate that

I counsel's deficiencies altered the outcome in the case by a preponderance of

I evidence. 39 Rather, the petitioner need only show that had defense counsel

conducted an adequate pretrial investigation, there is a reasonable
I probability that the jury's verdict would have been different. 40 Like in Soffar
I and Bryant, Bruce Smith's investigation in this case was deficient and there

I 34
35
!d.
!d.

I 36
!d.; see also Anderson v. Johnson, 338 F.3d 382, 392 (5th Cir. 2003) (holding that
counsel's failure to investigate an eyewitness constituted deficient performance).
37
Soffar v. Dretke, 368 F.3d. 441, 478 (5th Cir. 2004).

I 38
39
40
!d. at 475.
Soffar, 368 F.3d at 479.
!d. (citing Strickland 466 U.S. at 694).

I 12

I
I
I
is a reasonable probability that a thorough investigation would have altered
I the jury's verdict. The shortcomings in his investigation and the myriad

I witnesses who would have testified on David's behalf should certainly

I undermine this Court's confidence in the conviction.

I In this case, Bruce Smith did no real pre-trial investigation. In fact, at

the Motion for New Trial hearing held within months of the guilt/innocence
I trial, he could not recall whether he even looked at the DA's file. 41
I Obviously he did not interview pertinent witnesses provided to him by

I David (which will be detailed infra), he did not visit the scene (also

addressed infra), and he did not interview or speak with any of the
I
investigators in law enforcement. The affidavit submitted to the Court
I describing what he did conspicuously omits any of these obvious tasks. 42

I His lack of preparation alone - for a first degree felony trial - should be

I sufficient to meet both prongs of Strickland based on evidence that has come

to light after the trial.
I
Moreover, though, given the reputation of the Orange County District
I Attorney's Office for being dedicated to a just outcome and not merely

I obtaining convictions, a thorough investigation by Bruce Smith might have

I 41
42
RR 7, 5.
See Exhibit H.

I 13

I
I
I
provided him an opportunity to present the exculpatory evidence to the State
I and avoid the risk of a trial altogether. While not doing so might make

I strategic sense in Harris or Dallas counties, it makes no sense in Orange

I, County. Absent a thorough investigation, though, there would be no way for

Counsel to know of evidence - much less present it to the State - that might
I change the State's position on proceeding to trial in a first degree felony

I case.

I What should have happened is simple: Bruce Smith should have

I obtained affidavits or witness statements from the people who have provided

them in this proceeding as they show the practical impossibility of the
I Complaint's claims. 43 He should have visited the scene and taken pictures
I of location of the alleged sexual encounter to show the illogicality of the

I Complaint's story. 44 He should have brought those items to the District

Attorney, along with the report of polygraph examiner John Swartz, 45 in an
I
effort to have the charges dropped. Then, if that did not work, Bruce Smith
I would have been thoroughly prepared to present a persuasive case to the

I JUry.

I
I
43
See Exhibits I-L, N-W, AA-BB.
44
See Exhibits A-E. '
45
See Exhibit G.

I 14

I
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I
Instead, he appeared to be viewing the Complaint's statement for the
I first time in the midst of his cross-examination of her. 46 Worse still, he

t· attempted to cross-examine the Complaint about the lay-out of the building,

I but he did not have photos or a diagram for the demonstration and ultimately

lost the point that her story makes no sense. 47 In fact, he had never been to
I the building until the trial was underway. 48 And he never interviewed the

I key witnesses who could have exonerated David. 49 Additionally, during one

I exchange about who the outcry witness would be, Bruce Smith made clear

that he had not reviewed any of the statements made by the witnesses as he
I ~isunderstood whether Sheryl Pedder had even spoken with the Complaint

I. about the allegations. 50

I B. Counsel Not Prepared for Trial, but Failed to Preserve Error

I Bruce Smith evidently expressed to the Court that he was not ready to

I proceed with trial. However, he did not properly preserve potential error on

I that point. Courts who force a defendant to trial when counsel is unprepared

do so at their peril. But, lawyers who fail to preserve this easily reversible
I
I 46
47
RR 4, 29.
RR 4, 32-34; see Exhibit M, diagram of Baker's Transmission.

I
48
See Exhibit I, pg. 2.
49
See Exhibits J-L, N-W, AA-BB.
50
RR 3, 34.

I 15

I
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error are patently ineffective. 51 Bruce Smith failed to did so and the result
I was an inept defense against an extremely serious charge.

I C. Counsel Failed to Give Opening Stat~ment Before OR After State's,.

I Case

Experts universally find that jurors make up their minds early in a
I~
case about how they are going to vote. In fact, Dr. Donald Vinson - a

I renowned jury consultant- notes: "In all of our work as behavioral scientists

I involving pre-trial groups analysis, trial simulations, and post trial

interviews, we have reached the conclusion that 80 to 90 percent of all jurors
I~ come to a decision during or immediately after the opening statements." He

I goes on to write: "if you have not hooked your jurors early, it may be hard to

persuade them later. " 52
I
I Bruce Smith chose not to give an opening statement either before or

after the State's case in chief. 53 This omission is particularly damaging in a
I case where the nature of the charge likely has jurors' hackles up before

I hearing any evidence. It would have been a prime opportunity for Bruce

I
I
51
See e.g. Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008) (counsel
consistently objects to trial proceeding as he is not ready, Court of Criminal Appeals
reverses trial judge for proceeding regardless).

I
52
How to Persuade Jurors, Dr. Donald Vinson; ABA Journal The Lawyers Magazine,
2014. See http://www.vinsoncompany.com/pdf/How to Persuade Jurors.pdf.
53
RR 3, 10; RR 4, 40, 47.

I 16

I
I
I
Smith to frame the case in a way that impacted the outcome. And, it would
I not need to be long or complicated.

I For example, he could have opened with: "The facts in this case boil

~I down to one key piece of evidence: David Pedder did not have access to the

I building where Alahna says this crime occurred, when she says it occurred.

David didn't have a key to Baker's Transmission so he could not have been
I alone with Alahna to have sex with her on May 15, 2010. When listening to
I the evidence, nothing else matters except for the fact that the State's version

I of events is impossible."

I Of course, making such an openmg statement would reqmre trial

I preparation - interviewing witnesses, understanding the statements made by

the Complaint, understanding the shortcomings of the State's witness
I statements, and visiting the scene of the offense. Bruce Smith did none of

I these things, 54 so the lack of an opening statement prior to the evidence can

I be explained, not by strategy, but by lack of preparedness. Again, Bruce

Smith was asked by the Court to detail his trial strategy (the lack of an
I opening was raised by the Writ) and he provided none.

I
,, 54
The best evidence of this is his own Affidavit, Exhibit H, but its also seen throughout
the trial testimony and presentation.
I, 17

I
 While some courts have found that there may be a strategic reason for

waiving opening prior to the State's case, there is no conceivable strategic

reason to waive it after the State has rested. In this case, though, the

resulting harm was that a full day of testimony was presented and none of

the jurors had heard anything of value from the accused. As a practical

result, the jury had a significant amount of time to formulate an opinion as to

David's guilt before hearing anything from the Defense. That is

diametrically opposite of the approach outlined by Dr. Vinson and Bruce

Smith offers no strategic reason for failing to provide an opening statement.

D. Bruce Smith Failed to Adequately Cross-Examine Witnesses

Bruce Smith also failed to adequately cross-examme any of the

witnesses. In fact, the record reflects only-15 pages of cross examination on

Day 1 of trial (out of 129 total pages) despite the State calling seven

witnesses. 55 Most glaringly, though, Bruce Smith provided no cross

examination of the State's SANE nurse expert witness and an extremely

limited cross-examination of the chief investigator in the case.

One line of cross-examination that was not raised was the physical

evidence in support of the Complaint's claims: there was none. If the facts

55
See generally RR 3.

18
I
I were as the Complaint alleged to the investigators and the SANE nurse, why
I was there no physical evidence gathered from the girl or from Baker's

I.
,,
Transmission? Particularly, if this truly were her first time to have sex, 56 it

happened on the rollout rug, 57 and David ejaculated on the carpet, 58 there

should have been evidence gathered for the purposes of DNA analysis. It
I would not have been hard to obtain.

I Yet, Bruce Smith failed to cross examine Detective Keaton about the

I lack of blood or semen evidence that a thorough investigator would have

I· obtained. The State alone is required to prove its case beyond a reasonable

doubt. This line of cross-examination would have provided a great avenue
I for demonstrating the State's complete reliance on the word of a twelve year
I old. There is no strategic rationale for avoiding this line of questioning. It

I. merely reflects poor performance and preparation.

I E. Counsel Failed to Present Witnesses to Show Impossibility of
Complaint's Story
I Bruce Smith did not present the witnesses described in the attached

I' affidavits, who could have shown the impossibility of the Complaint's story.

I.
I. 56
57
58
See Det. Keaton Supplemental Narrative, Exhibit Y, pg. 6.
See RR 4, 12 & 26.
See SANE Nurse Report, Exhibit X, 3.

I 19

I
I
f·
interviewed by Bruce Smith. 62 Some highlights include the testimony of
I. Beverly, Jeff, and Greg Freeman who all agree that David did not have a key

I to the shop on May 15th or before. 63 In fact, .they all would have testified

1: that they had a meeting and agreed to give a key to David after June 2nd,

once the allegations had arisen and he was being harassed. 64
-I
1\ Other witnesses, Gerald Thomas and Quincy Procell, specifically

remember seeing David sitting outside the shop in his truck with the

I Complaint in the Spring of 2010 because he was waiting for a Freeman to

I arrive with the key. 65 Randy Becker, a Saturday regular at Baker's

.Transmission - for coffee and drag racing talk - recalls years of finding
I David sitting out· front of the shop on Saturdays waiting for a Freeman to
1: arrive because "we had no way to get in."66 Don Freeman's brother in law,

I~ Larry Haywood, worked for and lived with the Freemans for four years, yet

he would have testified that he was never given a key to the shop." 67
I David's grandfather, Leonard Hutton, who was never contacted by Bruce
,

I Smith, would have testified that he would go by Baker's Transmission shop

I.
., on Saturdays and "Dave would be waiting on Don Freeman, the owner to

62
63
See Exhibits J-L, N-W, AA-BB.
See Exhibits J, K, & L.
64 !d.
65

I 66
67
See Exhibits N & S.
See Exhibit 0.
See Exhibit P.

I 21

I
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I
arrive."68 More specifically, he would note, David did not have a key to the
I \
building. 69 David's daughter Latisa agrees, stating "he didn't have the keys

I to the shop, we had to wait on his boss to arrive to open the doors to the

shop." 70
I
I Of most particular interest to the defense, however, would have been

the testimony of witnesses who are not close to or friends with David. For
I' example, a businessman from Louisiana named Dan Weaver. Dan's

I company uses Baker's Transmission for repairs and has arrived earlier than

I the shop opened for appointments. Weaver indicates "Don was always the

person who had to unlock the door and I would wait to enter the building
I until after Don had deactivated the building's alarm." 71 Eric Wolfford, who
I, works on the vehicles for the city of Orange, who would have testified that

I one or more family members is always at the shop when the doors are

open. 72
1:·
.1 1
Kenny Pigg provides another example. In his affidavit Pigg writes: "I

have been by Baker's Transmission on many occasions. I have been by
I when they were closed and when they were opened. In all the years that I

I· 68
69
See Exhibit Q.
See Exhibit Q.
70

I~
See Exhibit U.
71
See Exhibit T.
72
See Exhibit BB.

I: 22

.I
,,
,,
have been doing business and friends with this group, I have never been by

.I' there when the shop was opened without one of the family members being

f) present." 73 Likewise, Leroy Perkins, who hauls scrap metal from Baker's on

,,
I~ a regular basis, indicates: "I have never been by the shop during business

hours when there was not at least on family member present and there was

almost always more than one family member present." 74 He continues: "I

I'·
,, have also been to Baker's Transmission on several occasiOns, m the

morning, when there were employees in the parking lot waiting for waiting

for Don Freeman or one of the family members to come and open the
I business." 75

I· Even the Orange County Sherriff, Keith Merritt, provided an affidavit,
II albeit under subpoena from Writ Counsel, indicating the same testimony as

I
,, all the others: only the Freeman family members had keys to the Baker's

Transmission shop. 76 Plus, the Sherriff adds: "I have never been by the shop

and seen it open and only Dave there." 77 And another prominent citizen, Dr .
.I· Robert Marroquin, would have told jurors: "It is my firm belief that unless

I
I 73
74
See Exhibit V.
See Exhibit AA.
75 !d.

I 76
See Exhibit W.
77 !d.

I 23

-a
I·
I
there is a Freeman family member present, the business IS closed and
I locked." 78

I According to Bruce Smith's affidavit for this Writ, his strategy in this

I case boiled down to the fact that David did not have a key to the building. 79

·I Yet, he failed to call numerous available witnesses to make the point. And,

if that were not enough, he bungled his· attempt to implement his lone trial
I strategy.

I
F. Counsel's Bungled his Only Attempt at Presenting Exculpatory
.I Evidence

1\ The Complaint testified at trial that when she and David arrived at

Baker's Transmission, the door to the business was open and yet no one was

I there. 80 This is a patently ridiculous claim - given the location of the

I business and the value of its contents of the shop - and it could have easily

been refuted by the Freeman family and a variety of other witnesses. Bruce
I Smith failed to interview or call any of them. For example, Greg Freeman

I indicates that "we have never left the doors to our building unlocked

I
I
78

I 79
80
See Exhibit CC.
See Exhibit H.
RR 4, 8-10.

I 24

'I
I
I·
overnight as we have hundreds of thousands of dollars worth of equipment,
I tools, and vehicles in our facility." 81

I Instead of taking advantage of this massive defect in her testimony,

I however, Bruce Smith fumbled the opportunity. She had testified that the

'I doors were simply open; but Bruce Smith chose to correct her and encourage

her to change her story and say that David had a key rather than the door
I simply being left open overnight. 82 This, of course, is where the lack of
~~~
preparation bears its poisonous fruit.

I In the wake of the allegations, William "BJ" Bishop and other family

·t members of the Complaint began harassing David at his home and place of

I work. So much so that the Freeman family had a meeting and decided to

give David a key and the alarm code so he could hide out there rather than
1: endure continued harassment at his home. 83 The Freeman's could have

I testified that they clearly remember when they gave him a key because it

I was right after they called the police on BJ Bishop for threatening them at

the shop. 84 That was weeks after the alleged incident would have occurred.
I As such, he could have made clear from evidence that David did not have a

I 81
See Exhibit K.
I, 82
83
RR 4, 26.
See Affidavits of Freeman family, Exhibits I-L.
84
See Exhibit F, Police Report.

I 25

'I
key on May 15, 2010. Frankly, though, given the nature and date of the

allegations, the fact that David got a key after the allegations arose should

not have been admissible under Texas Rule of Evidence 402 (in that it does

not make a fact at issue more or less probable) and under Rule 403 (that it is

unfairly prejudicial and that prejudice outweighs its probative value - which

is none).

Bruce Smith only presented Don Freeman to try to make this point

and he did so clumsily. His line of questioning with Freeman actually

diminished the defense and then opened the door to damaging and irrelevant

evidence. In fact, right off the bat, Bruce Smith asked Freeman: "did you

give [David] keys to the business?" and he answered affirmatively. 85 Bruce

Smith went on to try to fix the damage by asking when the key was given

and about May 15th, but the damage was done. Certainly there were jurors

who heard that David had a key and the whole defense went right out the

window for them.

Had he been prepared properly, the proper line of questioning would

never have even addressed giving him a key after May 15th, because that was

not relevant. The only material question was whether or not David had a

85
RR4, 49.

26
I
I
key on May 15th. It is reasonably probable that some or all of the jurors
I· heard that David had a key and did not listen to the rest of the questions

I relating to the key.

I Further, though, by only calling one witness to make the point, Bruce

I Smith limited the value of the point. An effective attorney would have

brought in a parade of witnesses to illustrate the importance of the key rather
~~
than hoping jurors heard it the one time it was asked during a two day trial. 86

I Had three other family members, two witnesses who had seen David with

I the Complaint waiting to enter the shop on a Saturday, and a parade of

regulars been called to the stand, the landscape of the testimony would have
I been dramatically different. 87
I
Additionally, however, by. bungling the direct examination and
I bringing up aQ the information about why David obtained a key in· June,

I Bruce inadvertently opened the door to !1 host of damaging information

about David's suicide attempts and the letters he left. 88 While the letters
I
themselves are not of particular harm, the whole suicide conversation
I,
deviates from the key point Bruce Smith should have been trying to make:

I that David did not have' a key on May 15, 2010.
86

I 87
88
See Exhibits J-L, N-W.
See Exhibits J-L, N-W.
RR4, 63.

I 27

I··
I
I ~

G. Counsel Failed to Object to an Array of "Outcry" Testimony
I
Bruce Smith did not file or preserve the proper objections under
I Crawford or Texas Code of Criminal Procedure 38.072 to prevent testimony

I that was obviously inadmissible. The Texas Rules of Evidence limit the

I admissibility of hearsay unless it falls into one of the exceptions in Rules of

Evidence 803 or 804, or it is specifically allowed "by other rules prescribed
I pursuant to statutory authority." 89 One of these "other rules" is Article

I 38.072 of the Code of Criminal Procedure. When a defendant is charged

I with certain offenses against a child under the age of 14 or a disabled

individual, Article 38.072 allows evidence of the Complaint's out-of-court
I
statement so long as that statement is a description of the offense and it is
I offered into evidence by the first adult the Complaint told of the offense. 90

I Though the terms do not appear in the statute, the victim's out-of-court

statement is commonly known as an "outcry," and an adult who testifies
I
about the outcry is commonly known as an "outcry witness." Only one

outcry witness may testify per single alleged event. 91

I Article 38.072 has additional requirements that must be met before an

I outcry witness may testify. At least 14 days before the trial on the merits
89

I 90
Tex. R. Evid. 802
Tex. Code Crim. P. Article 38.072.
91 Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim App. 2011).

I 28

I
I
I
begins, the State must notify the defendant of its intention to call an outcry
I witness, who must be identified. The State must provide a summary of the
/

I 92
outcry statement that will be offered into evidence. Outside the presence of

I the jury, the trial court must hold a hearing to determine, "based on the time,

content, and circumstances of the statement" whether the complainant's out-
I of-court statement is "reliable." 93 Finally, the complainant must either

I testify, or be available to testify, "at the proceeding in court or in any other

I manner provided by law."94

I Bruce Smith did not file a motion to limit hearsay recitations of the

events, did not make the State follow these rules, and, as a result, a plethora
I
of hearsay evidence regarding the Complaint's claims was admitted into
I evidence. For example, Officer Cowart was not the outcry witness, but his

I testimony about what the Complaint said was admitted without objection. 95

Then, when Bruce Smith finally realized what was happening, the Court
I
asked counsel to approach and the State seemed to elect Cowart as their
I outcry witness. 96 But later, when Bailey Chaloupka testified, Bruce Smith

I failed to object to her hearsay recitation even though Cowart had already

I 92
93
Tex. Code Crim Proc. art. 38.072 § 2(b)(l).
!d., at § 2(b )(2).

I
94
!d., at§ 2(b)(3).
95
RR 3, 30.
96
RR 3, 34.

I 29

I
I
I
expressed the outcry testimony. 97 Similar hearsay testimony from the SANE
I nurse was likewise admitted without objection. 98

I Additionally, Bailey's testimony appears to be driven by a hearsay

I statement that David confessed to Sheryl Pedder that he molested the

I Complaint. 99 It is of paramount importance to this case that David never

confessed and that Sheryl never testified that. he did. In fact just the
I opposite. 100 Regardless, this outrageously damaging hearsay statement went

I without objection from Bruce Smith.

I Regardless of the exchange with the Court and the State, the

I shortcoming of Bruce Smith's representation was his failure to file the

I motions in advance and force the State to elect a witness and specify what

their testimony would be. This serves no strategic purpose. In fact, it only
I serves a key goal of the State: to bolster the testimony of their Complaint

I when they have no physical evidence to support their case.

I
I
I 97
98
RR 3, 122-124.
RR4, 39.
99

I 100
RR 3, 122.
See RR 3, 92; Sheryl testifying that David denies anything happening with the
Complaint- not admitting it.

I 30

I
I
I
H. Bruce Smith Failed to Present Photographic and Demonstrative
I Evidence

Bruce Smith failed to present photographic exhibits of the scene and,
I according to the Freemans, never contacted them or visited Baker

I Transmission prior to trial. 101 Such evidence would have demonstrated the

I Complaint's story was far-fetched at best. The photos in Exhibit A illustrate

that the business is locked with a deadbolt on both sides of the entrance, that
I there is an alarm system connected to the door, and that the alarm has

I motion detection. The photos in Exhibit B show where the Complaint

I alleges the incident occurred. By showing the jury the "rug" she describes,

and the surrounding area, Bruce Smith could have shown the jury that its an
I
unwieldy, awkward, and unclean place to lay down on the floor and have
I sex. 102 Additionally, though, Exhibit C illustrates the other key shortcoming

I of the Complaint's story: the entire area she describes is surrounded by

glass. Exhibits C-1 and C-2 show the see-thru bay doors, that look directly
I
into the double glass doors of the "building room" shown in Exhibit C-4,
I and the window right over the "rug" can be seen in B-4. In other words,

I they show that the location the Complaint alleges is not obscured from the

view of someone outside the shop or in the bay area. The diagram of the
I
I 101
102
See Exhibits I-L.
See Exhibit B-2, B-3.

I 31

I
I
I
building in Exhibit M would have provided context for these arguments as
I well. Armed with the photos and the diagram, Bruce Smith could have

I efficiently and effectively chipped away at the believability of the

I Complaint's story. He failed to do so.

I Furthermore, adding to the failure, Exhibit D photos illustrate the

office at Baker's. The office has a couch, no tools or grease, and tinted
I windows that one can see out of but not into. 103 Bruce Smith could have

I used those photos to show that, had David wanted to have sex with someone

I at Baker's, the office would have been the obvious place to do it. It would

improve the comfort and cleanliness of the situation all the while making it
I
less likely to get caught. A thorough investigation and preparation might
I have allowed Bruce Smith to avail himself of such an argument, but he did

I not perform such an investigation.

I I. Bruce Smith Failed to File Pre-trial Motions in Limine or Notice
Demands Regarding 404(b) Evidence
I Bruce Smith failed to file a request under Rule 404(b) to determine

I other crimes, wrongs, or acts the State was intending to use at trial. He also

I failed to file a motion in limine to limit character evidence, irrelevant

evidence, and prejudicial evidence that should have been foreseeable based
I 103
See Exhibit I.

I 32

I
I
I
on the statements of the State's witnesses. And, as a result, the State
I presented damaging character evidence and hearsay that was not objected to.

I . Had Bruce Smith been prepared and done a thorough investigation, he

I would have filed motions in limine under Texas Rules of Evidence 402, 403,

and 404(b) regarding a great deal of the State's evidence. He did not.
I
Instead, the jury heard (without objection) evidence about David
I asking out his neighbors wife, 104 that his wife Sheryl called him a child
I molester, 105
that Detective Keaton was able to determine David's

I truthfulness based on his demeanor, 106 that William Bishop - in contrast -

seemed truthful in his denials, 107 evidence about David's suicide attempts, 108
I
conversations between Sheryl Pedder and Detective Keaton, 109 and the
I hearsay allegation that David might have had and deleted nude pictures of

I the Complaint on his phone. 110 While perhaps not individually devastating,

taken as a whole these evidentiary oversights clearly jaundiced the jurors
I
I
I 104
105
106
RR 3, 14.
RR 3, 17 (Officer Cobb) & RR 3, 26 (Officer Cowart).
RR 3, 53-54.

I
107
RR 3, 54-55.
108
See generally RR 3, 56-59; and specifically on 56: hearsay statement "Mrs. Pedder
had stated that she thought that David Pedder was suicidal and that he had left some

I notes."
109
110
RR 3, 69-70.
RR 3, 112.

I 33

I
I
I
eyes against David. When Bruce Smith failed to put on an effective defense,
I these failures virtually guaranteed a conviction.

I J. Conclusion

I
Bruce Smith's performance clearly meets the first prong of Strickland
I given the totality of the ineffectiveness of his representation of David

I Pedder. But, given that Counsel's unpreparedness was directly correlated to

I significant damaging evidence being admitted while presenting limited

exculpatory evidence, the outcome of the case likely would have been
I different had David had effective counsel. All together though, the errors

I and omissions by counsel - when viewed in light of the defense available to

I him - must undermine confidence in the verdict. As such, at the very least,

justice requires a new trial for David Pedder.
I
2. Ineffective Assistance at Punishment
I
In Wiggins v. Smith, the U.S. Supreme Court held that counsel "fell
I
short of ... professional standards" for not expanding pre-trial investigation .
I beyond the presentence report and one set of records they obtained,

I particularly "in light of what counsel actually discovered" in the

I
I 34

I
I
I
records. 111 More recently, in Porter v. McCollum, the United States
I Supreme Court found a defendant received ineffective assistance of counsel

I where trial counsel did not even take the first step of interviewing witnesses

I or requesting records pertinent to the defendant's background, mental

history, military service and other mitigating factors. 112 Beyond that, like
I in Wiggins, trial counsel in Porter ignored pertinent avenues for

I investigation of which he should have been aware. 113 The deficiency of

I counsel was glaring given the facts and the Court found the state court's

conclusion that the outcome of the case would not have been different had
I the- information been revealed "objectively unreasonable." 114

I Even with a month to prepare and knowing that the punishment range
I was 5-99 or life, Bruce Smith put on virtually no mitigation evidence of
(

I value at the sentencing phase. Had Bruce Smith prepared in the least for t~e

sentencing hearing, evidence available now indicates he might have put on a
I
persuasive case for a dramatically lower sentence than the forty years given
I him by the Court.

I
I Ill 539 U.S. 510,524,525 (2003)
112
558 u.s. 30 (2009).
I 113
114
Porter, 558 U.S. at 40.
Id. at 30.

I 35

I
I
I
Mitigation cases typically take two forms: either the convicted person
I has had substantial hardship in his life and the Court should consider that as

I a reason to reduce his sentence or the person is otherwise an exemplary

I citizen and the incident was an isolated error in judgment or not consistent

with his character. The latter form can be done while meekly disagreeing
I with the jurors' verdict. On the other hand, one way to virtually guarantee a

I substantial sentence is to attempt to re-try guilt/innocence at the punishment

I phase. That is precisely what Bruce Smith did here.

I The record indicates all of his witnesses were called to re-hash the

impossibility of the crime - an effort that Bruce Smith failed to effectively
I undertake at guilt/innocence. Remarkably, though, Bruce Smith had
I information at his fingertips that would have addressed either of the effective

I mechanisms for mitigation in punishment; and possibly both.

I David Pedder had a difficult life growing up. 115 His father was killed

when he was very young by his mother's boyfriend. 116 As a result, David
I
was forced to move in with his grandfather who was a grave digger.
I According to Don Freeman, those experiences had a significant and negative

I 115
While witnesses could have been called to detail this, Smith, at least, should have been

I aware of these issues because a number of them were reflected in the Court's Pre-
Sentence Report made a part of the record.
116
See Exhibit I, Freeman Affidavit, pg. 5.

I 36

I
I
impact of David's up bringing. 117 In addition to that, the financial impacts of
I his family life required him to quit school at age sixteen and go to work. He

I has also battled depression his whole life and had a wife who committed

suicide. 118
I
I Other witnesses would have testified to David's positive qualities in

an effort at mitigation. For example, Beverly Freeman writes: "I love Dave.
I He was my favorite of all our employees that we have had. He is quiet, soft-

I spoken, and got along really well with all ofus." 119 Another past employer,

I Kirby Procell, describes David as "reliable, productive, and honest." 120

Kirby's brother Quincy Procell calls David "the best and most qualified
I mechanic that ever worked for me." 121
I
This type of testimony would have put a human face on a person
I convicted by the jury of a very serious crime. Bruce Smith failed to

I investigate these avenues and certainly failed to present the testimony to the

I Court. The decision to do so could not possibly be considered within the

bounds of strategy- such a conclusion is "objectively unreasonabl~" 122 - but
I
117

I 118
119
See Exhibit I, Freeman Affidavit, pg. 5.
$ee Exhibit I, Freeman Affidavit, pg. 5.
See Exhibit J, Beverly Freeman Affidavit, pg. 1.
120

I 121
122
See Exhibit R.
See ExhibitS.
Porter, 558 U.S. at 30.

I 37

I
I
I
also likely would have impacted the Court's decision making as to
I punishment. While David maintains his innocence and believes effective

I counsel would have altered the outcome at guilt/innocence, Bruce Smith's

I failings at punishment are likewise unjust and David ought to be entitled to a

new trial or, at the absolute least, different sentence.
I
3. Actual Innocence
I
Applicant would submit to the Court that the evidence reflected in the
I
attached affidavits, coupled with the lack of physical evidence to support the
I allegations, indicate that the crime alleged did not occur. As such, David

I would ask the Court to rule in his favor under Herrera and Ex Parte

Collins. 123 Herrera claims involve a bare-bones claim of actual innocence.
I
To prevail, David must show by clear and convincing evidence that, despite
I the evidence of guilt that supports the conviction, no reasonable juror could

I have found the applicant guilty in light of the new evidence. 124 While

I difficult, the overwhelming evidence of impossibility and the illogicality of

the Complainant's story, when paired with the lack of physical evidence
I warrant relief under Herrera.

I
123

I Herrera v. Collins, 506 U.S. 390 (1993): Ex Parte Elizondo, 947 S.W.2d 202, 205
(Tex. Crim.App. 1996).
124
Ex parte Tuley, 109 S.W.3d 388, 392 (Tex.Crim.App. 2002).

I 38

I
I
I
4. The State had Exculpatory Evidence in its Possession that it
I Withheld in Violation of Brady

I Detective Keaton was the lead investigator in this case. He

I interviewed Don, Beverly, Jeff, and Greg Freeman at the Baker's

Transmission shop. 125 His report, however, which was part of the DA's file,

does not reflect those interviews. 126 Instead, it merely indicates a meeting

with Don Freeman - not his wife or sons. 127 Moreover, though, it does not

indicate that the Freemans' s disputed the notion of the doors being left

unlocked, 128 that Freemans's disputed the notion that Don was late for work
I on a Saturday, 129 that David was always early to work and did not have a

I key, 130 or that anyone had ever seeh the Complaint and David together in the

I shop before anyone arrived. 131 How could an experienced Detective fail to

ask the question of these four: "have you ever arrived at the shop and found
I David and the Complaint already inside?" Someone wanting to do justice

I
I 125
See Exhibits I-L.

I
26
I See Exhibit Y.
127 !d.
128
See Exhibit J, Beverly Freeman's affidavit ("we never leave our doors unlocked.and

I no one else can open them.").
I
29
130
See Exhibit J, K, & L.
See Exhibit K, Greg Freeman's affidavit ("On several occasions I cam to the shop on

I Saturday to work on my race car and Dave and [the Complaint] were in Dave's truck
waiting for someone to open up.").
3
I I See Exhibit Y.

I 39

I
I
I
and get the truth asks the right questions and takes careful notes of and
I reports the answers. Detective Keaton did neither.

I The United States Supreme Court's landmark decision in Brady v.

I Maryland, addressed the issue of the State suppression of evidence favorable

I to the defense. The Court held "that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where
I the evidence is material either to guilt or to punishment, irrespective of the

I good faith or bad faith of the prosecution." 132 To establish a claim

I under Brady, a habeas applicant must demonstrate that:

I (1) the State failed to disclose evidence, regardless of the
prosecution's good or bad faith;

I (2) the withheld evidence is favorable to him; [and]

I (3) the evidence is material, that is, there is a reasonable probability
that had the evidence been disclosed, the outcome of the trial would
I have been different. 133

I An Applicant must initially show that the State failed to disclose

I evidence "which had been known to the prosecution but unknown to the

defense." 134 Even if the prosecutor was not personally aware of the
I
I
132
Brady, 373 U.S. at 87.
133
Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002).
134
United States v. Agurs, 427 U.S. 97, 103 (1976).

I 40

I
I
I
evidence, the State is not relieved of its duty to disclose because "the State"
I includes, in addition to the prosecutor, other lawyers and employees in his

I office and members of law enforcement connected to the investigation and

prosecution of the case. 135
I
Here it appears that Detective Keaton selectively included items in his
I "\

report relating to his interview with the Freemans. In fact, it appears he

I either did not ask or did not care whether David had a key, the alarm code,

I or other means of entering the shop with no one else present. That would be

a critical piece of information. He also did not search the scene to determine
I ' if physical evidence were present.

I He certainly did not include the fact that Greg, Jeff, and Beverly were

I all present and answered questions related to the allegations. Yet each of

their affidavits make clear that they would have provided favorable evidence
I to David's defense. Yet, after speaking with them, he failed to even note

I they were present, much less indicate what they said.

I If it becomes the State's position that Bruce Smith failed to properly

request the Brady material, that would be another failure indicating the
I
I
I 135
Kyles v. Whitley, 514 U.S. 419,437 (1995); Ex parte Reed, 271 S.W.3d 698,726 (Tex.
Crim.App.2008).

I 41

I
I
I
ineffectiveness of the counsel David received. For that reason, amongst the
I many others, David should receive a new trial.

I If the State were to contend, however, that this information should

I have been known to Bruce Smith- through a diligent investigation that

obviously did not occur - that further bolsters David's claims regarding
I Bruce Smith's categorical ineffectiveness. To meet the Brady elements

I though, David need only show that the State failed to disclose favorable

I evidence and that it was material. This evidence certainly was and would

have impacted the jury's decision at trial.
I V. CONCLUSION

I The evidence is overwhelming that Bruce Smith failed to provide

I adequate counsel. Both the nature and extent of his errors and omissions

should give the Court grave concerns about the outcome of the trial. Plus,
I the fact that Detective Keaton failed to record, submit, or provide to counsel

I the exculpatory statements of the Freeman family indicate a serious Brady

I violation.

Perhaps, in lieu of conceding· Brady level suppression by the Orange
I Police Department, the State will simply agree to a finding of ineffective

I assistance of counsel by Bruce Smith and agree that a new trial is warranted.

I If the State feels, based on the evidence provided herein, that it could prevail

I 42

I
I
I
in a new trial, then they will suffer no harm by having one. On the other
I hand, if the State acknowledges, as it should, that the outcome of this case

I would likely be different with effective counsel, then David is entitled, under

Texas and Federal law, to a new trial.
I
VI. PRAYER
I WHEREFORE, PREMISES CONSIDERED, Applicant prays that the

I Court grant and issue a Writ of Habeas Corpus to the Sheriff of Orange

I County, Texas, then and there to show cause, if any there be, why Applicant

should not be discharged from such illegal restraint. Applicant further
I requests this Court, after receiving evidence, to grant Applicant any relief to

I which he may be entitled and issue findings of fact and conclusions of law.

I )

Respectfully submitted,
I THE GERTZ LAW FIRM
2630 Liberty St.
I Beaumont, Texas 77702
Tel: (409) 833-6400
Fax: (409) 833-6401
I
I By: ________~--~~-----------­
Ryan W. Gertz
I State Bar No. 24048489
Attorney for David Pedder, Jr.

I
I 43

I
I
I
I CERTIFICATE OF SERVICE

This is to certify that on June 16, 2015, a true and correct copy of the
I above and foregoing document was served on the District Attorney's Office,

I Orange County, Texas.

I
I
I
I CERTIFICATE OF COMPLIANCE

I This is to certify that the Memorandum accompanying the Amended

I Writ of Habeas Corpus in the foregoing matter is less than fifty pages in

length and contains 9,118 words in compliance with the Rules.
I
I
I Ryan W. rtz, Gertz Law Firm
Attorney for David Pedder, Jr.

I.
I
I
I 44

I
I
I PEDDER EXHIBIT LIST

I Exhibit A- Photos of door locks and alarms

Exhibit B - Photos of the building room
I Exhibit C- Photos of doors and windows into the building room

I Exhibit D - Photos of the office

Exhibit E - Photos of the bathroom
I Exhibit F- Police Report re Baker's and BJ Holden

I Exhibit G- Polygraph test results

I Exhibit H - Bruce Smith Affidavit to the Court

Exhibit I - Don Freeman Affidavit

I Exhibit J - Beverly Freeman Affidavit

I Exhibit K- Greg Freeman Affidavit

Exhibit L- Jeff Freeman Affidavit
I . Exhibit M - Diagram of Baker's Transmission

I Exhibit N - Gerald Thomas Affidavit

Exhibit 0 - Randy Becker Affidavit
I Exhibit P - Larry Haywood Affidavit

I Exhibit Q- Leonard Hutton Affidavit

I Exhibit R- Kirby Procell Affidavit

ExhibitS- Quincy Procell Affidavit

I Exhibit T- Daniel Weaver Affidavit

I Exhibit U - Latisa Pedder Affidavit

Exhibit V- Kenneth Pigg Affidavit
I
I
I
I Exhibit W- Keith Merritt Affidavit

I Exhibit X- Sexual Assault Examination & Forensic Report Form

Exhibit Y- Detective Keaton's Report
I Exhibit Z- Bruce Smith's unfiled motions

I Exhibit AA- Leroy Perkins Affidavit

Exhibit BB- Eric Wolfford Affidavit
I Exhibit CC- Dr. Robert Marroquin Affidavit

I
I
I
a,
I
I
I
I
I
I
I
I
I
I
I
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I
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I A
I
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I
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If I
I

I:
1:
I EXHIBIT.

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Detailed ~eport- Call #1013413

'all Detail.
~:;:;:At.m•mmamfflP·'Mm:;::~w~~~ -
~~ 06/.02/2010.12:29:46
Apt Zip Mile Post
_404 green .bakers transmission
·: City, State (County) SubGrid- Grid (District) Dispo of Call
' orange . . .. . lOth st. east I Park st. south CLEARED NO REPORT
.call Type Priority How Reported CaiiTaker
DISTURBANCE 0 PHONE. meltonk

HP.:ast Narrie . .· ·Fir_st Name Middle . Phone Address Apt City ST DOB InvType ·
freeman beverly · bakers

06/02/20 0 12:30:46 06/02/2010 12:31:11
• ARRIVED 06/02/2010 12:31:11 06/02/2010 12:50:11
CLEARED 06/02/201012:50:11 06/02/2010 12:50:11 0.00

·u Notes
~~~=a~~mg~~~~~~~~~~~~-~·~-~-~~~~~~~~~~~~
06/02/lO~O;:i2:~9:46: · (meltonk)
·ssuei:! by don freeman 6/i/20iO 12:52:30 PM
respass lssuedto both subjects 6/2/2010 12:49:53 PM
09/ck: holden, christina 10~29-86 6/2/2010 12:37:32 PM . . .
57 SEARCR ON BISHOP,WILLIAM,19801023 NAME: BISHOP, WILLIAM, FRANK, II DESCRIPTION:
~ITE\MALE\102319S0\5-07\180\RED\BLU_E SEX OFF: N COMM IMPED: N ORGAN DONOR: VISA EXP: PHYSICAL f.DD: 512 S
f.l _ 44TH STCI/CO/ST/ZIP: ORANGE,ORANGE,TEXAS,77630"~000 MAILING ADD: 512 S 44TH ST CI/ST/ZIP:
!fl ORANGE,TEXAS!77630-0000 REC STATUS: ELIGIBLE ADMIN STATUS: CARD STATUS: HME THR ASMT: EXP: CARD
a-vPE: DL·#: 16939037 CLASS: c TYPE: Di.. EXPIR DATE: 10232010 6/2/2010 12:34:04 PM .
Jl57/ w/m bishop, william ii 10-2~-so 6/2/2010 12:32:36 PM ·
~
: david pedder '
on scene;
. . .· rp apprehensive
.
to speak
..
6/2/2010 12:31:52 PM

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 .JOHN SWARTZ POLYGRAPH SERVICE
Criminal Polygraph Examiner Former Federal Examiner

I United States Dept of Justice

February 21, 2011
Mr. Bruce Smith
I Attomey at Law
2914 Eastex FWy
Suite 102
I Beaumont, Texas 77703

REPORT OF POLYGRAPH EXAMINATION
I EXAMINEE: David Clifford Pedder
EXAM DATE: February 21, 2011
I EXAM TYPE: Specific Issue-Aggravated Sexual Assault of a Child

SYNOPSIS:
I On February 21, 2011 Mr. David Clifford Pedder was administered a
specific issue polygraph examination regarding the instant offense for
I which is he charged: Aggravated Sexual Assault of a Child in Orange
County. Texas in 20 11. Mr. Pedder is represented by his attorney, Mr.
Bruce Smith. of Beaumont, who ha:;:; requested this e.--w;;:amination.
I PRE-TEST INTERVIEW:

I Prior to initiating the pre-test interview, Mr. Pedder was advised that a
polygraph examination in Texas is voluntary and that he would be
requested to read and sign a release, giving this· examiner permission to
I proceed with the interview and examination. He was also advised that by
· signing the release, he was authorizing distribution of this report to his ·
attorney only. He read and signed the release and the interview began at
I 9:15a.m.

Mr. Pedder appeared alert, on-time and properly oriented for his
I examination. He identified him.self with Texas Driver License #
09635826. He resides at 8872 Tulane, Orange, Texas.

I Mr. Pedder stated he was born on January 23, 1963 at West Morlan,
Pennsylvania. He is forty eight years old. He was raised in Orange where

I he attended high school through the tenth grade. He has no further
higher education or Iililita.ry experience.

I His father is deceased. His mother lives in Wichita Falls. He has one
brother and one sister. Mr _ Pedder has been married four times~ most
recently to Cheryl Pedder for less than a year. He has three daughters

I and a son from the prior marriages.

440 Louisiana Street, Suite 900, Houston, Texas noo2
I 713 460-3000 www.polygrapnusa.com
EXHIBIT

I I ------
I
I Mr. Pedder is employed at Baker Transmission in Orange as a mechanic.
He reported no prior arrests or convictions during his lifetime.

I EXA.l\IIINEE'S STATEMENT:

Mr. Pedder identified the alleged victim in his case as Alrula, the thirteen

I year old daughter of his step-son, . William Bishop, who lives in
Deweyville, Texas.

I Mr. Pedder stated Alana would sometimes come over on weekends "to
clean the shop" and one day she announced that she had been having
sex. In response to this, Mr. Fedder asked her, "What are you going to do

I when they find out?"

According to Mr. Pedder, Alana answered by telling him, ''I'll ten them I've

I been using tampons. You. .know one of them. You're kin to them". When
she made this comment, Mr. Pedder advised her he didn't know anyone
in Deweyville an.d she said, "'It's B.J." She subsequently mentioned her

I grandfather and a man she had babysat for.

Mr. Pedder stated he became confused and he asked her- why she was

I telling him this information. She responded by telling him, "They all
think you're messing with me".

I Mr. Pedder recalled that she then asked for a dirt bike and when he told
her no, she advised him, "All I have to do is show some tears and
everyone believes me".

I Mr. Pedder stated he became concemed over her allegations and he
consulted with a neighbor who is a Port Arthur Police Officer who in tum

I notified the Orange Police.

Mr. Ped.der stated denied ever having sexual intercourse with Alana or
ever having any sexual contact with her.
I EXI\.M .~MINISTRATION:
I The following relevant questions were formulated for Mr. Pedder's
polygraph examination based on the case facts and the results of the
pre-test interview. All questions were reviewed with him prior to the exam
I and his answers follow in parentheses:

4. Have you ever had sexual intercourse ~th Alana? (NO)
I 6. Have you ever engaged. i..'Tl any sexual acts with Alana? (NO)

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I EXAMINER'S ANALYSIS:

This examination was administered utilizing the U.S. Air Force MGQT
I format. It is the opinion of this examiner that there were no significant
physiological responses to the relevant qt1.estions in this series. This
exam is evaluated as NO DECEPTION INDICATED.
I
I Jo S. Swartz, License
Te:xas Polygraph Examiner
I Fonner Federal Examiner

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I
JOHN S. SWARTZ
I CRIMINAL POLYGRAPH EXAMINER
RETIRED FEDERAL EXAMINER
I U.S. DEPARTMENT OF JUSTICE

• POLYGRAPH CONSULTANT
I CHIEF'S COMMAND LEGAL STAFF
HOUSTON POLICE DEPARTMENT
I and
OFFICE OF THE INSPECTOR GENERAL
CITY OF HOUSTON
I
• MEMBER
I SEX OFFENDER TESTING COMMITTEE
AMERICAN POLYGRAPH ASSOCIATION

I • POLYGRAPH CONSULTANT
NBC NEWS/DATELINE
I NEW YORK CITY

John S. Swartz is a former Federal examiner for the United States
I Govemment and has been licensed by the State of Texas for twenty
nine years. He retired from the U.S. Department of Justice/Drug
Enforcement Administration in August 2012.
I Mr. Swartz is a graduate of the University of Texas at Arlington. While
in college, he was employed by the Dalias Police Department and the
I Texas Department of Public Safety. In 1976, the U.S. Drug
Enforcement Administration recruited him and he has served at posts
throughout Texas and South America. He initially attended Sturm
I School of Polygraph and later the United States Department of
Defense Polygraph Institute at Fort McClellan, Alabama. He
subsequently became the U.S. Govemment's only polygraph examiner
I in South America.

In 1995, Mr. Swartz opened his private practice in Houston. During
I his twenty nine years as an examiner he has tested persons charged
"l.vith a broad spectrum of Federal and state crimes.

I In 1995, Mr. Swartz initiated the sex offender testing program for the
Harris County DistriCt Courts for all sexual offenders on probation.

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He now tests probationers and parolees for ten South Texas counties
I and the United States Probation Office.

In 2007, Mr. Swartz became the examiner and consultant to NBC
I News/Dateline in New York on the Diane Zamora "Texas Cadet
Murder Case" and his report of Zamora's examination can be viewed
on the NBC/Dateline website.
I In 2008-2009, Mr. Swartz became one of ten examiners in the United
States invited to be a member of the American. Polygraph Association's
I Sex Offender Testing Committee 7 which just wrote and published the
national guidelines for testing sex offenders.

I In 2008 and continuing through 2011, Mr. Swartz became the
polygraph consultant and advisor to the Houston Chief of Police and
the Chief's Command Legal Staff as well as the Office of the Inspector
I General for the City of Houston. He retired from DEA in 2012 and now
conducts examinations worldwide.

I Additional agencies he has served include:

• Bexar County District Attorney's Office
I. • Brownsville Police Department, Chief Carlos Garcia, on Internal
Affairs issues.
I • Odessa Police Department on Internal Mfairs issues.

I • Montgomery County District Attorney's Office, Conroe, Texas on
Internal Affairs/ police issues.

I • De Witt County Sheriff's Department on Internal Affairs issues.

He is a frequent consultant to the Harris County judges, often serves
I as an expert witness, ·and he has provided training on polygraph
matters to judicial meetings, bar associations, and law enforcement
conferences throughout the United States including the Texas Center
I for the Judiciary, Harris County District Court Judges, and the Harris
County Criminal Defense ~awyers Association.

I Mr. Swartz has also appeared on the Dr. Phil Show in Los Angeles,
and has served as a polygraph consultant and interviewee with KTRK-
Channel 13 in Houston; KHOU Channel 11-Houston, Channel 26-Fox
I News-Houston, and KTRH Radio.

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I From:sm ith & .Ship I ey Law 40~8992648 06/0912015 l3 :21 #200 f;O.Q.2l004

I
I NO. A.clQ0,640-'AR

I :STAT:EOFTEXAS
COUNTY QF ORANGE

I
I My name is Bruce N. Sniith and t am the attorney whq teptesertted Ivf+< David C. Ped<:le,I';
Jr. lil this cause, in. which he VI'a$ charged
. with aggravated
. . sexual. assault.

I I was hired by Mr. Pedcierecame a,ppaient that our. Strategy. had to he.· that• Mr:. Pedder was simply·not.
gui}ty of these allegations andthat the own¢r of:tlJ.~ busiri.¢88 that Mr. Pedder .worked .at could
testify that he ¢ouid n.oth::Lvehacls¢~ w1th this child at his place o:fhill?m¢Ss as alleged b)' the child,

I ·due·t() ilie•factthatl\1r, P.eddet d1dnotl:iave:alrtS tram the vanous office!'s iirifolved, as
well as> the stateiil.~rit g_ ea
. .the p· ·olice from the aileg· v!ct.im. ta.lso teceh:ed eop·ie5 ofh~d
· I.v:en to ...
wnttenltitters Written by :Mr: :pedder; :(jneofth~eletter \¥.~a ha:ii4 VVritteri.lC:tter totb.e tbild aS
I well as suicide letters signed by :M:r; ·Fedder. J additionally reviewed the SANE report that had
beeri prepared by the Stiit~' s .expert, Brenda Ga:trisoiL. I later persorially mterviewed Ms; Garrison
tegardi!lg her flnqii;l~S iii the fepQ.ti that she filed.
I Subsequent to receiving this eviden,c.e from the State, 1 met with .:tv.f:r; Pedde.t on several
occasion. atiny office and we decided that he would snbmifhii:nself to a polygraph examination to
I be d.oile l:>:Y Mr.;Jo:hii Swartz; wh.ois ~fo:i:inet FedeJ:at.l::~aminer.fo.rilietrri.itciiStates Depart:znent
of Jlis.ti6e. .Mi\. svv:att:z is. a w~ll-kiioWJi cd.n1,inaJ. polygraph e:;jC~et located: iri HotistC>J4 Texas,
and was well regarded by law enforcement. Jn February 2011, I contach:~d Mr· Svvarl:z to illalce
I
I Pa elof:l
EXHIBIT

I \-\
I From: Sm i t h & Sh ipJey Lavl 4098992648 06/09(2015 13:28 #200 P.Q03/004

I
I diep_t
ar:tangceiJ;ients fqt: ni)' to be exa.ttJ.Itt~d by !Jim ailcl V/e arranged for th ~ exami:ilatiori. to. Oecllr
on February. 11~ 201L I spent a greaf deal of tiJlie ptepati:hg Mr. ?eddet :fot tlils poiygrapli.
exai:nination and even. gave him som:e written tn3;terial to study that vy(iul¢ help prepwe b#n• for
the polygraph examination. Ori FebruarY 21i 2011, Mr~ Swartz COJ1dl.lcted a .Polygraph
I exain:iriaticin of Mr. Pec1d.er ai:ld I received a Wri1;ten rep.oit froni ML SwartZ showing that Mr>
.P<.<4dei show¢<1 rio d.6(?eptio:o, wheii he den:i~d. havfug anyki.rid of sex vv:ith the alleged victim. To
the best ofmY rec(:)1lecti.9nll.1$ci deliv¢r¢d a copy ofthi~ polygraph repOrttothe.districtattomey's
I o:Efi:cefortheir teviev,;. A.ithaJ t:i:(lle :t Ma,in 4is¢ussed tile.: :PWPcirted e\r.1d.¢nce against.:M.t. .Pe4der:
with the prosecutor andagam·utged$.em•to tec.onsiderpuisuing·tlJ.i.$ c~e,

I Though the cows.e oft:he8e proc~~gs 1 had several meetiilgs With the prosecutor, Mi>
:P}fiiH:P Sln.ith; disct1s#rtg the ¢vtdeJ1¢e o:ftlle case~ ~ut, he made it clear :thatihey wefe g6iiig to
pursue the case ag~nsfMr.. Pedder antfwoul.(i not dis:tnl~s it; · ·
I .

lprepar~d ser;V:al p:i:'drlal n::i.oti<:>ns ori heha1fofMr. Pedded:batwere ready to be filed a(any

t~t~~::~pge;!:;:ia:;~~~~o;::e:fnU:1:~~J{b?~~~!rt~=~e~o!:n~t~~~;;r:~
6
I Statement; Motion for. .Production of Writings and Statemel1ts> 1\iiC>tion f;,pr,,;,..•' ----- ~ugUSI 26, 2015

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I The State of Texas

I County of Orange

Affidavit of Greg Freeman
I BEFORE ME, the undersigned authority on this day personally appeared Greg
Freeman, of Orange, Orange County, Texas, hereinafter called "Affiant", who after by
I me being first duly sworn did depose and say as follows:

"My family owns Baker's Transmissions. My mother, father, and brother all work at
I the business with me. Prior to June 2010, no one outside the family had access to a key
to the building. No one outside the family had the almm code to the building either.

I The work station, depicted in Exhibits B-1, B-2, and B-3 is my work station in the
"building room." In April, May, and June of2010, I never observed or noticed anything
on or around my work station that would indicate that people had had sex on the floor or
I elsewhere at my work station.

The Complainant, A.A., began working for several hours on Saturdays helping clean

I up, empty trash, and doing odd jobs in Februm·y of2010. On several occasions I came to
the shop on Saturday to work on my race car and Dave and A.A. were in Dave's truck
waiting for someone to open up. They had to wait because Dave did not have a key to
get in the building. Dave was always early to work, not only on Saturdays, but everyday.

After the allegations by A.A. surfaced, I lemned that Dave was being harassed and

I attacked by A.A.'s family. At that time, we held a family meeting to discuss giving Dave
a key and the almm code so he could stay at the shop and would be less likely to be
harmed by the family. Prior to that, Dave would never have had access to the building
I unless one of us family members was present.

I do not recall my father, Don Freeman, every being late for work--: by more than a

I couple of minutes - whether on Saturday or during the week. Fmther, we have never left
the doors to our building unlocked overnight as we have hundreds of thousands of dollars
wmth of equipment, tools, and vehicles in our facility.
I I was never contacted by Dave's lawyer before the trial to testify. The jury should
have hem·d from me. I think it would have made a difference."

I EXECUTED this the 'e , I ' I , • • \'

=~:=-L ~inP~Cs ,:~ ~~ii~~~~~,~~:__~~,=~:=j=t=~=~~:=
1 ! __

I
I ·-·-·-··-·-· ···-·-.-----.·---·--·--:---;--·-·-- ~--------- --------'-·'--'--·- - - - - - - -
· - - - - - - - · --:---- . ___ , - · - ~--·--·:-· _____ :__ ._ _; __: _ _; _
' j
-- ~
_- __ •_________ ,_ _,_ _, __ l, ___ -_ _1. _ _ : ___ • _____ • _ _ , _ \ _ .

__.___ __:________ ____.___.__ ____ :_______ : __ . ~--~ __:_;___ L__;__ ~ __ :___;__ j_; ___ ;_:~ _____ i_ i__ :_::-:

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Affidavit
I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared Gerald Thomas, of
I Orange, Orange County, Texas; hereinafter called "Affiant", who after by me being frrst duly sworn

I did depose and say as follows:

I "My name is Gerald Thomas and I have been friends with Don Freeman for over 20 years.

It is a habit of mine to go by Baker's Transmissions on Saturday mornings. To my knowledge, no
I one had a key to the building other than family members. I specifically recall a Saturday morning

I in the Spring of20 12 that I went to Baker's Transmissions and observed David Pedder and the young

girl sitting in David's truck. I stopped and greeted them. Don Freeman was not present nor was any
I member of his family and the business was locked and closed. Dave did not have a way into the

I building. I went to Procell's before coming back to Baker's. When I returned, Don had arrived and

I the shop was open. Now knowing the nature of the allegations, I believe them to be impossible and

I believe my testimony would have made a difference in Dave's case.

I I was never contacted by Bruce Smith. Had I been contacted I would have testified to these

I facts."

EXECUTED this the/ifday of~ 2015.
I
I ~
I 'cJu~;mscRIBED AND SWORN to before me by the said Gerald Thomas, on this the//-- day
of~2015.

I
DEANA AYLOR

I MY COMMISSION EXPIRES
August 26, 2015
EXHi~IT

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I Affidavit of Randy Becker

I The State of Texas

County of Orange
I
BEFORE ME, the undersigned authority on this day personally appeared Randy Becker, of
I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

I did depose and say as follows:

"My name is Randy Becker. On Saturdays we get together at Baker's Transmissions to drink
I coffee and talk drag racing. I have been at Baker's before Don Freeman arrived on a number of

I occasions. On many occasions Dave and I would sit outside the business because we had no way

I to get in. This has been our practice for the past thirty years. I think if I was contacted to be a

witness at Dave's trial, it would have made a difference in the jury's eyes."

EXECUTED this the ii!1day of~' 2015.

~~ffid(U_
I
I Affi t

SUBSCRIBED AND SWORN to before me by the said Randy Becker, on this the/!lfday
I of (k?tL. 2015.
tl

I
I DEANA AYLOR
MY COMMISSION EXPIRES
August 26, 2015

I
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I EXHIBIT

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I Affidavit ofLany Haywood

I The State ofTexas

County ofOrange

I
BEFORE ME, the undersigned authority on this day personally appeared Larry B. HayWood,

•III ()fBrookshirc, Wallet County, Texas, hereinaflcr called "Affiant''. who after by me being first duly

sworn did depose and say as follows:

I "My name is Larry B. Haywood. I worked for my brother-in-law for fmu· years. In that time

II I was never gh•en n key to the shop. One ofthefnmily, Don, Beverly, Greg, or Jeff was always there.

•I
There was no need for anyone else to have a key to the building. I was not contacted by Dave's

lawyer!'

•I
?Y ---
EXECUTED tlus thcg day of .Jt/~, 2015.
I

t! ~~d~
Affiant v
'

SU~CRJBED AND SWORN to before me by the said Larry B. Haywood, on this the/;,{' If.
_day of ·)IJ;):.c. 2015. ·

Notary' Public in and f~e ·---
State of Texas v
DEANA AYlOR
M'l COMMISSION EXPIRES
August 26, 2015

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I EXHIBIT

1- - ·- ·- · ·- - -:·-. . ·- · . --·-:;:.
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I AFFIDAVIT

I THE STATE OF ·

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BEFORE M , the undersigned authority on this day appearek_o ;\1/f;eO #Jo /)t:;Af
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County, Texas, hereinafter called "Affiam-, who ~fter by me
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I being first duly ~om c:fld depose and say as follows:

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I SfLJ

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'rf-1-~ Ot.VN~ A-IV2.JO~,
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{/UTD 11+£ bv l I i) 1'1\JG - S£ "~+E.

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EXHIBIT

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printed
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/..;!.(yJ.p,u:J /-fvrrrJ tJ 1

I Day of,~/
SUSSCRI AND SWORN to before me by the saicf
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, this the 5 7l(

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Nota
BEVERLY FREEMAN
p b
ry u lie, State ot Texas
My Commission Expires
March 14, 2018
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I Affidavit of Kirby Procell

I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared, Kirby Procell, of
I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn
did depose and say as follows:

I "I worked with David Pedder for twelve (12) years. This crime he was convicted of is not
in his character. This is not the man I knew. He was reliable, productive, and honest.

I Bruce Smith never called me about testifying at the punishment phase of the trial."

I EXECUTED this the Jli1_ day of ~-= , 2015.

I ·~Uaff__
Affiant ·
I B~CRIBED AND SWORN to before me by the said Kirby Procell, on this the ;;?'fday
of_ ,2015.
I /

I DEANA AYLOR
MY COMMISSION EXPIRES

I August 26, 2015

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I Affidavit of Quincy Procell

I The State ofTexas

County of Orange
I BEFORE ME, the undersigned authority on this day personally appeared Quincy Procell, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

did depose and say as follows:
I "My name is Quincy Procell. I was David C. Pedder' s employer for eighteen years. After

I' I closed my shop, Dave began working for Don Freeman at Baker's Transmissions. I have known

I Don Freeman for many years and I gave Don my highest recommendation that he hire David Pedder.

I also told Don that David was probably the best and most qualified mechanic that ever worked for
1,1
me.

I On numerous occasions I stopped to ta~ with Dave while he was waiting on Don in the
~y\J'
parking lot of Baker's. In the Spring of20~, I visited with David Pedder early one morning in the
I parking lot at Baker's Transmissions. I recall he and a young female were sitting in his truck and

I' they were waiting for Don Freeman to open the building. He could not get into the building until

Don arrived because he did not have a key to the building. I was not contacted by Dave's lawyer to
I fi
testify to that fact. I am sure that my testimony would have made a difference."

I EXECUTED this the/_14day of~· 2015.

I
I)
/1 SUBSCRIBED AND SWORN to before me by the said Quincy Procell, on this the~day

I of~1/Jf.L,
I"
2015.

DEANA AYLOR

I MY COMMISSION EXPIRES
August 26, 2015 EXHIBIT

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I Affidavit of Daniel J. Weaver

I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared, Daniel J. Weaver,
I of Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly
sworn did depose and say as follows:

I "I have known Don Freeman and his business at Baker's Transmission for twelve ( 12) years.
I have been to his business on several occasions throughout the years and I had never observed the

I business to be open without one or more of the Freeman family members present.

The company I am employed by uses Baker's Transmissions as our main source for

I transmission repairs. I personally have been at Baker's Transmissions the morning after receiving
a call from Don Freeman that a vehicle was ready for pick up. I am generally always early to an
appointment, and on a couple of occasions, I was earlier than the stores normal opening hour and

I Don was always the person who had to unlock the door and I would wait to enter the building until
after Don had deactivated the building's alarm.

I Don and I would finish our business and usually we would talk for a few minutes, drink some
coffee and continue with our work days."

I EXECUTED this the !!l!c day of YAY- , 2015.

I 0'
I
Affiant~
SU~BSRIBED AND SWORN to before me by the said Daniel J. Weaver, on this the/Jl
I day of _·:Jt...£-
~
, 2015.
.

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or the State of Texas
I oEANAAYLOR
MY COMMISSION EXPIRES
AUgUst 26, 2015

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I EXHIBIT
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I AFFIDAVIT

I THE STATE OFTIP(AS

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BEFORE M~, the undersigned authority on this day appeared: LCttl S0.. Pe.(Jd. eJ{"
I !
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0/l.tt}.)" l ,~(; £ County, Texas, hereinafter called "Affiant", who ~r by me
I
I being first duly sjlvom did depose and say as follows:

I ~ f\~ms- ~'::> \.r~~Q,. 2s: Me x I\ am ~e dru JtJ11-tr
I o\ ~cw{c\ ?ec~e__r, + c1Y?\le my clc&c\ iD o..nd Pxhm
\NDX'D t')€.,\fV~ [iQ~. \.\e c\\ or\\:- 'y)Q\J e ±\o e; h.e:< Y.h[lSS ±rl
I Cg{\\)R -1p
DQQo ±be doors ot 111 e.._ ;Shop., l, lQt15> a\ wety.s
M ro u5 din d·~ jD\f\ a:t \'bo 'hex ':S ... \ \rJfXl +: to QJ .l c£ his
I )'be£M u~ cv j-tlo d1C\f \Cll0'j£X' fJYJJ (:e_ 5vfldil 1 tf12en ±<>ld /1im
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-\-U-~~~~~.J..l....l..~:,.....u._..w.l.........l.._.li.A.~"8\e._f WD l.L1 d\1\4\Jt. c_a..U-td
I VVL L\.d e ()._ ~ I
\.0 t u.J& VLCl\J e.. tf-e.. '(ext~ e_ .
~T
EXECUTED this tile Sfi+- day of I II 51 f, 2014.
I '

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I EXHIBIT

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printed
I II · ~ . ·. ·•
SUBSCRIBED AND SWORN to before me by the said l..a:\1 :->f! 2e A£ie L .this the 6yt(
I Day of; ~014.
1

I
I
I ......:"'\~~~~;,,,,.,
~~o.'*~·····':'~,:-~ BEVERLY FREEMAN
= •
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·.":
: : Notary pu bl'IC, State of Texas

I ~;.;; .. ···i'i
,..,,,,~~~~,,,,...
My Commission Expires
March 14, 201S

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I Affidavit of Kenny Pigg

I The State of Texas

County of Orange
I BEFORE ME, the undersigned authority on this day personally appeared Kenny Pigg, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

did depose and say as follows:
I "My name is Kenny Pigg. I have been by Baker's Transmissions on many occasions. I have

I been by when they were closed and when they were opened. In all of the years that I have been

I doing business and been friends with this group, I have never been by there when the shop was

opened without one of the family members being present."
I EXECUTED thisthel!!!ctay of~ 2015.

I
I A 1ant

SUBSCRIBED AND SWORN to before me by the said Quincy Procell, on this the/Jdday
I of~2015.

I
I DEANA AYLOR
MY COMMISSION EXPIRES
August 26, 2015

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I Affidavit of Keith Merritt

I The State of Texas

County of Orange
I
BEFORE ME, the undersigned authority on this day personally appeared Keith Merritt, of
I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

I did depose and say as follows:

I "My name is Keith Merritt and I am the Sheriff of Orange County, Texas. I have driven by

Baker's Transmissions on hundreds of occasions. I have known Don Freeman for 30 years. When

I the shop is open, the Freemans are always there to the best of my knowledge. I do not recall ever

I seeing the shop opened without one of the Freeman family members being present. I have never been

by the shop and seen it open and only Dave there/'
I EXECUTED this the /5~day of~ 2015.

I
I Affiant
. J-

I rz,::mscRIBED AND SWORN to before me by the said Keith Merritt, on this the ;sf-day
of~2015.

I DEANA AYLOR
MY COMMISSION EXPIRES

I August 26, 2015 Notary Public in ap
State ofTexas

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I 06/09/2010 08:15 FAX 409 839 8980 CAFS !4J 0002/0006

I Child Abuse & Forensic Senices
SANE Program

I . SEXUAL A~-S~ULT EXAMINATION & FORENSIC REPORT ~RM .
Date:.Time ofExam: f, :fDrm Location: CA£5 ·. SANE:r9.Giansoo C!wrt11: /{)_~ Q't/
I GENERAL INFORMATI::j~~-=--=--+-+-l..J-.::::.__:__ ____..:.~~~~:..1..04..!..-..--"Date: . & s~ I 0 r

r Office Use Only .

l w Enforcement: Case#: /0 13 / )
Are they the Referring Agency?
.L/ ln~ator: f.J.~. k.Jw.l:;-Wy]
~ ()no

I Agency:~ ~ED County: fMwzy. Phone:'fi8 //lfi;J Fax: qrJ -71/Jt/
I S: Case#:
Are they the Referring Agency?
·Case Worker: _ _ _ _ _ _ _ __
( )yes ()no

I Agency: _____________________.Phone:_ _ _ _..,..--'Fax:._ _ __

I
I
I
I
I Child Abuse & Forensic Services, 810 Hospital Drive, Suite 190, Beaumont, TX 77701
409-832-0411 (office) 409-839-8980 (fax) 409-895-7550 (after hours)
l2of5

I
 06/09/2010 08:15 FAX 409 839 8980 CAFS 1410004/0006

I
I llL . MEDIC..-\t IIISTORY: ·. . ../
. 2. ~Uil!Analm~.
1. Last normal periOd: . · ·~ .(tJNA · ·.·
I Surgical ___:__.=~~;-~:..::::....·.;.).::,__.. :. ·. . .,.·_._:_.
p . -----,.L-_.--=-··:._·------:---"'--:'-:,..__;'----

3. go~i~tiom:__~~~~~~---~--~~~~~~--~--~~-------
1 IV. ·- ~SAULT/ABUSE: Sorm;eof~stOcy
HISTORYOF
I. Docum~t history given by patient.
Identify solUte when
.Child ()Parent · ( )Ot;her________
including additional i.¢'onnation:

~-i.. :Did~me-~e:· . . Bleedirig? ._· .-: S -(~) ()NO{~
. -- - . · ·. Pairi? .. - _ .r ." ·· (-
)NO :.( ). UNK _ ( .. _ .
3. Histo_ry- of-ejaeul~~ (Crrcle one)D"':'~~ ·__ - · ( . _ ( )li.$)' _( ) UNIC_(- ) Probable/Possible -Site(s):_ _·
1 4. Condom Used? (Circle o.ne) ( )YES -(0NO · ( ). UNK.-- _: -·. - · ·- . · .- : · -
_·(rbld/~-J ·"
1
~·- ~~er:k~~s~ ·()YES (0NO {')·~----- - ·. --· - · -. .:
7' suspectS relationsW,p to Victim: . . . - .· / . . . -
.. ( ) Stiwlger ( ~- Re ·ve . $peeify: - · . . ·-cv1 Acquaintance ( ) Othei
8. _ ~ted ~e. since · incident:· It\ bov-'t" . 1 INl::. . . ~- _
1 9. How~ytimes? ( One __ ( )Morethanon:e: Patient Comment:......,__ _ _ _----,-~-~-.__,.-
- ~ -
. :V. _ GENERAL APPEARANCE ·
~uinentany~of~on~y.
. -. . :· .
: .... ·. - .

I
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I
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I. . .
Child A'bf[se &-Forensic Services, 8IO"l!qspit"ai Prfve. Sui!e"l90,.Beaum~· tx 77701 . :
409~32....()4_21 (office) 409-839-8980 (far)_ 409.--89~-7550 (t(ter ~

I
 409 839 8980 CAFS 1410005/0006
~~6/09/2010 08:15 F~

:..-···

. Relationship:._·-----~-~·-·

I
MALE:

I Penis:.
Scrotum:
.Meatus:.·

I Testicles:
Per.iilu.m.: ·

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Anus: ·

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· .... ChOdA~e ~ Forerutc'i~icd, aio iioSP.it~l)rlve. Sult~ 190, BI!4Wtfont. ~ 77701 ·
~4·or5 . 409-8J2.:C421·
. (o.ffiCf!) 40)J:..83~98C{(fax) 4Q9-89S-75SO. (after hoJIT'S)
'•

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 06/09/2010 08:16 FAX 409 839 8980 CAFS l4l 0006/0006

1 ·'] ..· . ·
I
.VII. ExAMIN'ATIONIMPRESSION:
I
I
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I vm. TR.F.KfMENr
(~'(F~itg;w11j};~thownMDasn~ ·
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PLAN

to office on .
. .

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< . co~llii.g aS
riee(loo, . . · ·
I . ..
500W:g
. ·( ) SID Propp.ylmds .- Cipro
lg .
Zithroinax
( ) ·Samples. of med.icatirm given . .
I ( ') ··(Pft:·gnancy
J Prescz:iption caUed·to pbatn;Iacy:._:,____,.--:.._ _ _ _ _ _......:Phone:·_._ _ __
Prophyl~- Lo-Ovral given· · . .
··{ ). Other.·__·_ _· ...,---......,..-,----'-----,-,___.,;_,.
1·.· IX. .'LAB.TEST
: ..

I ·~t:<'_~te
Reported Status Bin/Tag No Evidence Item No. Property Type

I ..
oS/30/2010
·'
r.1'odei/Oesc
EVIDENCE IN
CUSTODY
Date Rec./Rec.
55550

Recovered Value
1013174-1

- - - - -· -
Property Location
RECORDING,
AUDIONIDEO
- - - - -
Property Quantity
·ovo $0 1
I 05/31/2010 LOCKER #22
'.
EVIDENCE
Date Reported Status Bin/Tag No Evidence Item No. Property Type
I 05/30/2010 EVIDENCE IN
CUSTODY
55552 1013174-2 RECORDING,
AUDIONIDEO
Modei/Desc Date Rec./Rec. Property Location Property Quantity
I' INTERVIEW DVD
OF WILLIAM
Bi"SHOP II
06/02/2010 LOCKER# 22 1

·.';

I j Narrative

I httn·//rmssP.rvP-rfR M~vi!R M~/P.ntrv!R P.nnrtWritimr/DisnlavRenort2.asox?event=1 013174 8/23/2010
 E:Yent No. lOU 1"/4- lncwent ~"',on
I ~;:·:~: .( (
- -o- - -- -

r

I Written By:
COWART, CHRISTOPHER
OFFICER C.D. COWART#452-1026 /PATROL #56 I AGGRAVATED SEXUAL
I ASSAULT OF A CHILD
On 5/3.0/10 approximately 7:40 o.m., I was ilispatched to 40'ZI 44 thdst. intreferenceJ:o ak
possible report ot sexual assaultt:o a chlle1. Opbn my arnval rna e con ac1 with Chuc
I' Cobb. I know Chuck Cobb to be a Peace Officer and he informed me that he had been
·approched by a neighbor who had questions involving sexual issues regarding a juvenile.

I f)nitiated an investigation based on that report.
)s\,lpplemental Narrative _ _ _ _ _ _ _ _j I

I,. L: ·''

·f.~.~te Written:
05/31/2010
Written By:
COWART, CHRISTOPHER
OFFICER C.D. COWART#452-1026 /PATROL #56 I AGGRAVATED SEXUAL
I P}SSAUL T OF A CHILD
On 513.0/10 approximately 7:40 o.m. Twas dispatched to 407 44th St. in reference to a .
I poss1ole repott ot sexual assault'to a'ciu1e1. Upbn my arnva] I made contac1 With a 1Jav1d
Redder (1/23/63) and Chuck Cobb (2/18/70). ·Mr. Pedder stated that he had contacted Cobb
b.ecause he was a Peace Officer, and had a question involving sexual issues of a juvenile.
I' When I talked to Mr. Pedder, he informed me that he knew about sexual activity between
his stepson, William Bishop II (10/23/80), and "Mary Smith"-(pseudonym) (7/3/97). Mr.
Pedder said that he got her a job at Bakers Transmission on Saturdays cleaning the shop.
I H;e said that "Smith" and he had discussed her sexual activity on occasions, and she told
· !iim that she had been sexually active since the age of eleven. He stated that she said that he
khew of one person she had been involved sexually with personally, and told him the
I . :iiidividual was his stepson William. Mr. Pedder said that at that point "Smith" said that she
.:~rieeded to be spoiled, and if she told on William he could go to jail. Mr. Pedder said at that
:.pf>int he started giving her money to keep her quiet until she asked for a dirt bike about two
li Weeks ago. Mr. Pedder said that he went to go look at dirt bikes, but finally had to tell
'~:Smith" that he could not afford that much. He said that he confided in Officer Cobb, but
~fficer Cobb said that he could not keep that confidential and had to report it.

I While I was speaking to Mr. Pedder, his wife Ms. Pedder drove up an~ exited the car ~n an
. aggravated manner. She asked him how could he do that to a young g1rl, and called h1m a
child molester. I told Ms. Pedder that if she had anything to tell me, I would be more than
I happy to meet her and "Smith" at the Orange Police station. I then furthered my
conversation with Mr. Pedder and told him that since there was so information to please
write a statement and someone would return to pick it up when it was completed.
a· When I arrived at the police station, I made contact with Ms. Pedder, William Bishop II,
and Christina Holden ("Smith's" aunt). They stated that "Smith" was scared to come to the
pblice station, but later arrived with Baileigh Chaloupka. Chaloupka is the girlfriend of
a, ~~.Smith's" uncle Frank Holden, who "Smith" is currently living with. Ms. Fedder told me
that everything peaked today when she found out that "Smith" was working at Bakers
~ransmission, and Ms. Pedder had told Mr. Fedder not to be alone with "Smith". Ms.

I' Pedder said that she was on the way to meet with "Smith" because "Smith" was going to tell
her everything that was going on between her and him.
C~aptain Longlois and I met with "Smith" and asked her want happened between her and
I Mr. Pedder. She stated that Mr. Pedder had sex with her at Bakers Transmission about 3-4
weeks ago on the floor of the shop. She said that he told her to take her pants off, lie down,

I hth--·//rrnccPniPr!R M.~vi!R MS/entrv/ReoortWriting/DisplayReport2.aspx?event= 101317 4 8/23/2010
 Event No. 1UU 1 I 4 - 1nc10em: 15'"'"'lOD
I ( (

I' and she would like it. "Smith" said that Mr. Fedder would pick her up on Saturdays to go
work at the shop to clean up. When "Smith" was asked if Mr. Fedder penetrated her vagina
with his penis, "Smith" said yes that Mr. Fedder did penetrate her vagina with his penis.
I ':Smith" said that this was the first time this occasion happened, did not happened anymore.
':Smith" said that she did not go back the next Saturday after the occurrence. After this
statement was made, Detective G. Keaton was contacted, and turned over to the detective
f· division
. •.·

i ~~pplemental Narrative '
-~
I Date Written:
0!)/31/2010
Written By:
KEATON,G
Detective Sergeant G.D. Keaton Jr. 447/897
1: dn 05-30-2010 at 2145 hrs., I was the On-Call Detective and received a call-out to 201 8th
Street in reference to an aggravated sexual assault of a child. Upon my arrival, I met with
I Officer C.D. Cowart. Officer Cowart stated he had been dispatched to 407 44th Street in
r~ference to a possible sexual assault of a child which had occurred on a previous date.
Officer Cowart stated he met with Port Arthur Police Department Police Officer Chuck
I Cobb and with David Fedder. Officer Cowart stated Fedder advised he had contacted
Officer Cobb, who happens to be Fedder's nearby neighbor, because Fedder knows Cobb to
~~e a police officer and Fedder had a question involving sexual issues of a juvenile.

r ,1:
J¥fficer Cowart stated when he spoke with Fedder, Fedder stated he knew about sexual
'.~ttivity between his stepson, whom he identified as William Bishop II and "Mary
, :§inith" (PSEUDONYM). Fedder stated he had gotten "Smith" a job at Baker's
I '· Transmission cleaning the shop on Saturdays. According to Officer Cowart, Fedder stated

.,, ",'Smith" and he had discussed her sexual activity on occasions and "Smith" had told him she
. h:ad been sexually active since she was eleven years old. Fedder advised the officer "Smith"
said Fedder knew of one person, with whom she had been sexually active, personally and
told him the individual was Fedder's step-son, William Bishop II. Fedder advised Officer
Cowart it was at that time "Smith" advised Fedder she needed to be spoiled and if she told
I· on Bishop, Bishop could go to jail. Fedder advised the officer Pedder started giving her
money to keep her quiet until she asked for a dirt bike about two weeks ago. Officer
Cowart stated Fedder advised him Fedder had gone to look at dirt bikes, but finally told
I.•..!!/
"Smith" Fedder could not afford that much. Officer Cowart stated Pedder confided in
Officer Cobb, but Officer Cobb stated he would not keep such information confidential and
would report it.
1\ ~~

Qfficer Cowart stated while he was speaking with Fedder, Fedder's wife drove up, exited
the car in an aggravated manner and asked Fedder how could he do that to a young girl, ·
calling him a hcild molester. Officer Cowart advised Ms. Fedder he would meet with her at
I t.he Orange Police Station, then turned his attention back to D. Pedder, providing him with
statement forms so Fedder could provide a written statement. That statement was made
and was later provided to me. I made a copy of the statement to include with the case file
I ci.J:ld placed the original statement into Records.
At the police station, Officer Cowart stated, he met with Ms. Fedder, William Bishop II and
t· Christina Holden, who is "Smith's" aunt. Officer Cowart stated they advised him "Smith"
was scared to come to the station, but she later arrived with Baileigh Chaloupka, who is the
girlfriend of Frank Holden, "Smith's" uncle, with whom "Smith" is currently living. Officer
I Cowart stated Ms. Fedder advised him she had found out "Smith" was working at J?aker's
Transmission and she had told her husband not to be alone with "Smith." Ms. Pedderhad

II "·

httT-. ·Ilnn!olice Department, Orange County, Texas.
This statement is in reference to a sexual assault which occurred on or around 05-08-2010.

I About six or seven weeks ago David Pedder asked me if I wanted to make a little extra
money by cleaning the shop where he works. David works at Baker Transmission in
Orange, Texas. Don Freeman, the owner of the shop, was okay with me coming in for a
I) few hours on Saturdays, so I would ride with David to the shop at 8:00 a.m. and usually
work untilll:OO a.m. or maybe until noon, but no later than noon. When I finished work,
! David would take me home. Mr. Freeman paid me $30.00 for each Saturday I worked and
I. [)avid paid me $20.00, so I made $50.00 for each day.
:;·~~~

i 1\ Qne Saturday, after a couple of weeks working there, I was at the shop and David Pedder
~sked me if I would have sex with him. I told him "No." He asked me why not, and I told
hi'm "Just because." He asked me again the following Saturday and I told him no again.
The following week, when he asked me again, I felt intimidated. I was scared that if I told .
I him no again, something bad might happen to me or to someone I am close to, so I said
"Okay, whatever." David started telling me he loved me and asked me if I loved him. I told
him yes, I loved him, hoping if I told him that, he would leave me alone.

I David took me into one of the offices, one of the rooms behind the actual shop room where
the cars are. It was just after we got to work that day and there was nobody else there at the
time. He had me take off my pants and I was not wearing panties. I laid down on the rug in
~I· the office and he took off his pants. When David took off his pants, his penis was already
hard. He got down on his knees and took his time putting his penis into me. It did hurt
when he put it in. David had sex with me and I don't know how long it lasted, but it was not
I, · a>long time.

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I' When he was done, David got up and put his pants back on~ I put my pants on and went
back to work cleaning and just trying not to think about what happened. David drove me
home from work and I worked the next Saturday, but that was the last day I worked. The
last day I worked was the Saturday after school let out in Deweyville. I think that last day
was May 22. Before we left the shop on May 22, I told Mr. Freeman I was quitting. He
didn't aske me why I was quitting. David drove me home when we were done working.
I: When I got home, I told Christina Holden, who I was living with at the time, I was quitting.
When she asked me why I was quitting, I just told her I was tired of working there. I didn't
tell anybody about what happened .

.1' ;) On Sunday, May 30, I was at McFaddin Beach fishing with Frank Holden, Christina
· Holden's brother, and a few other people. When we were coming home, we went to a .
friend's house in Deweyville so Tamitha, I think her last name is Tompkins, could change
I ·:into dry clothes. Frank called Tamitha and said we needed to go to Christina Holden's. We
·went to her house and my Paw Paw was there with my cousin Misty Holden and Christina's
two boys. Misty and I took a walk and we walked down the road. Someone at the house
I 1· yelled to me and said I had to go with Tamitha to Baileigh Chaloupka's house, which is

where I currently live .
..,,:
1\ We went to Baileigh's house and she told me to get in the car and we came to the police
station. Baileigh said I had to make a statement. She asked me if anyone had ever touched
me and made me promise I would tell the truth. Everybody seemed to know about what
I happened and it all just seemed to happen today. I didn't know how anybody else found
out."

t End of "Mary Smith's" statement.
The juvenile signed the statement, in the name of "Ivlary Smith," in my presence. A copy of
. tb.e statement was made for the case file while the original was placed into Records.
t ~ irhile I was speaking with "Smith," I noticed she frequently stopped speaking, appearing to
be overcome with emotion. Several times she was crying and shaking as she spoke. I did
.I my best to reassure her she was safe and it was okay to speak with me. "Smith" stated she
; had never had sexual intercourse with anyone else, either before or after that incident.
"Smith" stated she only had sexual intercourse with Fedder and only had it with him that
I one time. I did specifically ask her if she had ever had sexual contact with William (B .J.)
Bishop, as it had been stated by the suspect, David Fedder, that "Smith" had been sexually
a,ctive with Bishop. "Smith" emphatically replied she had not and that Bishop had never
I· approached her or spoke to her in a sexual nature. ·
After speaking with "Smith," I escorted her back to the Orange P.D. report room, where she
I met up with Baileigh Chaloupka, with whom she currently lives. "Smith" left in the
company of Chaloupka. Contact was not made at that time with "Smith's" mother, as
"Smith" did not have contact information for her, although Chaloupka did state her mother
is. around and Chaloupka does not currently have anythin~ in writing showing her as
.I . ''Smith's" guardian. Chaloupka has since filed a report With Child Protective Services. On
06-03-2010 I made contact with CPS case worker Sean Martin, who has made contact with
'';Smith's" mother, Athena Johnson. Martin stated an emergency plan is in the works and
t Johnson is being very cooperative and will allow CPS to enable Chaloupka to seek any
medical or other assistance in the protection of" Smith."

I Once "Smith" left with Chaloupka, I went to 512 S. 44th Street and made contact with the
subject who identified himself as David Fedder. Fedder agreed to accompany meet with me

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I atthe Orange Police Department in order to provide a statement. Once at the Orange Police
DeJ?.artment, I escorted Fedder to an interview room. I left Fedder alone for a brief time
while I began the DVD recording for that room. Upon returning to the room, I informed
I Pedder I would like to gather his statement and needed to advise him of his rights. I did this
even. though Pedder was not in custody.

I While reading Fedder his rights, which I read verbatim from page one of the Voluntary
Statement, Pedder initialled beside the first two rights, indicating he understood those
rights. Upon being informed of number three, which advises of the right to have an attorney
1: present prior to and during any questioning, Fedder stated he wanted his attorney present.
At that point, I did not ask any questions and gave Pedder the opportunity to contact his
attorney. Fedder stated his attorney was Blaine Goins and he placed a call from his cell
I phone to his attorney. Fedder left a voicemail on the phone. Pedder did make the res gestae
. s-tatement "I know what I did wrong. I was trying to protect a family member." I then left
tQ.e room for several minutes.

1: 1.Jpon my return to the room, I asked Pedder if he had contacted his attorney and was
i-p:formed he had tried again, but did not reach him. I asked Fedder if he wanted to speak
with me anyway at that time, to which he replied "Yeah. I can stop at any time. 11 At that
I· ti.me, I read Pedder the rest of his rights verbatim from page one of the Voluntary
Statement. Pedder initialled beside each right, indicating he understood each right. Pedder
also signed the bottom of page one, indicatmg he wished to waive his rights and provide a
:I statement at that time.
At that time, I began speaking with, and listening to David Fedder. I did not write or type
t anything into the statement at that time, as I was trying to get a good understanding of what
he was saying. Fedder mentioned his wife, Sheryl, calling him and mentioning to him she ·
had heard "Smith" had quit working at Baker's Transmisswn and was upset because she
t didn't even know "Smith" had been working there. Fedder stated his w1fe told him she was
going to talk to "Smith." Pedder also stated "If shesays something about your son we need
: t6 get straight because I'm just as involved as he is."
I .

.t :t>:edder mentioned one time he was taking the victim to work and sat out in the parking lot
t}lere speaking with her. Pedder stated the victim mentioned about BJ and Christie (BJ was
identified as William Bishop II, from whom a statement was later obtained) asking her if
.I Redder was "messing" with her. Fedder stated wheri he asked why BJ would ask, she
advised "Because he knows I'm not a virgin." Fedder asked her if she had been going
around with little boys and said she advised no and that her oldest had been 39 years old .
.I· Pedder asked how she ended up with a 39 year old guy in Deweyville, but did not state why
he thought it was in Deweyville. Fedder stated "Smith" also stated she had sexual contact
with Bishop, one time while going hunting in the national forrest, specifically manually
I· masturbating Bishop. Pedder stated "Smith" told him it happened a second time and the two
had gotten high "Smith" stated Bishop "whooped it out and I started jacking him off and he
started fingering me, but it hurt because his hands were rough." Pedder immediately
I· followed that up by stating "I said 'Okay, well that's because he is a carpenter.' "
During the time he was speaking to me, P_edder kept his arms crossed for the vast majority
o.f the time. He did not seem to be emotionally involved in the statements he was making
I and avoided making eye contact with me, often looking down.
':·.

Pedder went ()n to state "Smith" had indicated she may have had sexual relations with
I several other persons. During the conversation, Pedder mentioned trying to get ahold of
Bishop, to whom he usually referred as BJ, in order to tell Bishop. Pedder stated "Smith"

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I mentioned she was 'spoiled'. Fedder stated he asked her if he gave her money, would she
not say anything about BJ, and that he, Fedder, gave "Smith" $20.00 in addition to her
weekly money she received from Baker's Transmission. Fedder advised he finally quit
I giving "Smith" money when she began being interested in getting a dirtbike and implied she
wanted him to provide it to her.

I While speaking with Fedder, I did directly state to him "The story I'm getting is that you had
s_~x with this girl." Wben I stated that, I observed Fedder to nod his head front-to-back
&everal times, which I usually associate with the positive or "yes." While nodding his head,
I Redder still had his arms crossed across his chest and stated "Right. That's what my wife
said when she· came out there." I again stated "That's pretty much the story I'm getting."
P.edder, still nodded and stated "Right." I then asked Fedder directly "You're telling me you
never had sex with this girl?" At that time Fedder shook his head back and forth, which I
.tJ . usually associate with the negative or "no," and stated "No sir. Only thing I did was cover
up for my step-son." Fedder later became irritated with my speaking with him and stated he
'Yanted to have his lawyer. At that time I stopped speaking with him about the incident. I
I stopped the recording for the interview room and drove Fedder back to his residence. I did
make a copy of the recording for the case file, while the original was was entered into
evidence. The Voluntary Statement fonn, which Fedder had initialled and signed, was
I submitted into Records even though there was no actual written statement, and a copy of the
s~gned form was placed with this case file.

'I
·~f.

robtained a handwritten statement from Baileigh Chaloupka .. Chaloupka is the first person
tfl.e victim is believed to have spoken about the incident. As she is a legal adult and
believed to be the first person to whom the victim has spoken about the incident, I believed
,I· h~r statement to be materiel to the case as being an 'Outcry.' The statement is included .
below, with the only change made by me being the victim's true name has been changed in
this report to the PSEUDONYM of "Mary Smith, 11 which the victim chose to use in order to
II protect her privacy and identity.

Beginning ofBaileigh Chaloupka's handwritten statement:

'
:1
"On May 30,.2010 "Mary Smith" my niece and I, at .8:30 we ~ere going to the police st.ation
so "Mary Sm1th" could make a statement about David melestmg her "Mary Smith" got m
our car and I said "Mary Smith" did David touch you in any innaproprate way She started
crying and repeating I was scared I ddint know what to do he asked me to have sex with im
and I was scared he was going to hurt me if I didnt I then asked "Mary Smith" did David
have sex with her she said yes. I then asked her if any body had ever asked her if any body
.I else had touched her she was crying hysterically she said no thats the first person to ever
touch her in any way I do believe "Mary Smith" when she told me this she has no reason to
.

li'e or make something up like this she was very upset and crying uncontrollably."
I End of Baileigh Chaloupka's handwritten statement.
J~ ..
...

I~ . A copy of Chaloupka's statement was made for the case file while the original was placed
into Records.

!:also obtained a handwritten statement from Officer Charles "Chuck" Cobb, who is
I employed by Port Arthur Police Department. Officer Cobb was off-duty at the time he was
approached by Fedder and stated Fedder approached him because he knows Cobb to be a
police Officer. Officer Cobb's statement was written at 2215 hrs. on 05-30-2010.
I Beginning of Officer Cobb's handwritten statement:

,1:
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 Event No. lUUl/4 -lnctaent feryon
a.- (

.1 · '.'On todays date at 6:59pm I received a cellular call from my neighbor Dave Pedder at 512
S. 44th St. He advised that he needed to ask me a ·police related question. I walked across
I· the street to his driveway. Pedder advised that he had screwed up +wanted to straighten
things out. He said that a 13 year old female had been working at the mechanic shop where
he is employed. Pedder said that approx. 3 weeks ago she told him that she had been having
·I sexual contact with Fedders stepson William (B.J.) Bishop II. Pedder said that the detail
she told him made him think she was telling the truth. Pedder said that because of Bishop
having 2 small children Fedder began paying the girl to keep quiet about the sexual contact.
After a couple of weeks, Pedder said the girl began wanting a motorcycle instead of cash.
1.· Fedder said that he couldn't afford that+ when he told her no she said that it was O:K.
because she was moving in with someone else. Fedder said that his wife called him earlier
on todays date+ told him that she was going to Deweyville because this girl was making
.I . some sort of claim aqbout him. Fedder said he didn't know what the girl was saying but he
wasn't going to keep quiet about Bishop any longer+ that was when he called me. I told
1 Pedder that him ttelling me that a Juvenile making an outcry + authorities had not been
I; notified left me no choice but to call Orange P.D. I called Orange P.D. +Officer Cowart
came to speek with Fedder+ obtain a witness statement. I then came to Orange P.D. to give
t,his statement."
:1 End of Officer Cobb's handwritten statement.

·r
{~ '

A copy of Officer Cobb's statement was made for the case file while the original was
submitted to Records.
'

\1 Officer Cowart provided me a statement which had been handwritten by Sheryl Fedder.. A
copy of that statement was included in this case file while the original was placed into
Records. Officer Cowart also provided a statement which had been handwritten by David

t Pedder. The statement was very difficult to understand due to the grammar and flow of
writing, but it did mention "Smith" stating she had sexual contact with several persons and

_, that Fedder did not report it. A copy of that statement was made and included with the case
file while the original was placed mto Records.
i ..l.;
On 06-02-2010 at 1525 hrs., I met with William Frank (B.J.) Bishop II at the Orange Police
:Department. Bishop stated he had recently been involved in a disturbance at 404 Green,
I Baker's Transmission, as he went to speak with his step-father, David Pedder, about Fedder
allegedly having sexual intercourse with "Smith." I escorted Bishop to Interview Room 257.
Since Pedder had accused Bishop of having sexually assaulted "Smith," even though
I Bi?hop was n~t in custody, when I spoke with him to begin the s~atem~n~, _I read Bi~hop his
M1randa wammgs from page one ofthe Voluntary Statement. B1shop 1mtmlled bes1de each
right, indicating he understood each right. Bishop also signed the bottom of page one of the
I Voluntary Statement, indicating he wished to waive his rights and provide a wntten
statement. This statement was also recorded on DVD.
In this written statement within this report, the only change made is I have inserted "Mary
.1-., . Smith," the PSEUDONYM chosen by the victim, mto Bishop's statement in those places
where he used her true name. This has been done solely to protect the privacy and identity
of the victim .
.I · J?.eginning of William Bishop's statement:
. /'
.

I "On 05-30-2010 My fiancee, Christina (Christie) Holden, and were at my mom's house
(~herylPedder) before heading out fishing. While we were at my mom's house we were

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~I talking and it came up in conversation that my fiancee's niece, "Mary Smith," was not
working with David any more. · David Pedder is my mom's husband and my step-father.
David is a mechanic at Baker's Transmission and "Mary Smith" had been workmg there on
I· Saturday's cleaning the shop for extra money: My mom was upset since she didn't even
know "Mary Smith" had been working there and David had never mentioned anything to
ner about it. She asked about what else "Mary Smith" had done with David, and I told her I
I knew she went to the races with him. My mom said she didn't know anything about that
either since David didn't tell her. My mom told me David said he was just going with some

.I of the guys from work and never mentioned anything about "Mary Smith" or anyone else
going. I knew she had gone since David had called and asked me and Christie if "Mary
Smith" could go since "Mary Smith" had been staying with us at the time.
'
When my mom found out about the races, she was upset David had been keeping things
I rQ:.om her. Christie and I left to go fishing and my mom ended up calling David. Christie
.a).1d I went back to our house after returning from fishing and my mom came over to my
house told me she had called David to ask him why she hadn't heard anything about "Mary
I Smith" working there or her going to the races with David. My mom told me she had to go
charge her phone at her house because it was going dead, but I didn't think that is what she
was going to do. I was afraid she was going over to David's house to confront him. She
I ended up going over there and I was heading that way when I got a call from my mom
t~lling me David was accusing me to the police of touching "Mary Smith."

I I 'told her I was going straight over to the police station to get this addressed. We all met up
and carne over to the police station together, meaning myself, Christie, my mom and my
friend Perry. After we got here, "Mary Smith" came to the station with Baileigh
·I Chaloupka. Baileigh lives with Frank Holden, who is "Mary Smith's" uncle. "Mary Smith"
had just moved out of our house a few weeks ago and moved in with Baileigh and Frank.
The officer said he did not need a statement from me at that time, but I assumed I would

I . need to speak with the detective since David had accused me.
_t
\\
'{~vlary
Smith" had lived with me and Christie on and off for about three years. She would
opcasionally move out to live with her mom, Athena Johnson, or her sister, Heather. For
I the most part, though, she lived with us. I know David accused me of having sex with
'~Mary Smith," but I have never had sex with her. I have never touched her inappropriately,
never said any inappropriate language to her, never had any sexual thought about her.
I Those accusations are complete fabricated lies. She is just like my own boys to me .. I've
been her father figure for three yers. We treat her like she was our kid.
·~:

I I've had suspicions before. "Mary Smith" (La La) would sometimes go hunting with us.
Sometimes I'd go by her stand and she'd be gone when I went to pick her up. I went by the
truck and she was sitting at the truck with David. She'd said David came out early and she
I had just been out there for a few minutes. I asked her later than night if David had ever
done or said anything, touched her or anything, and she told me he had not. I still had
suspicion, but didn't have proof of anythmg.
,I :..:

':(he night we came to the police station, "Mary Smith" came back in the room with us and
she told us David had had sex with her. That was the first time I had ever heard it, although
, r·;:did have those suspicions. "Mary Smith" also said something about having sent David
I dirty pictures on her cell phone a few months ago, but she had already deleted those
pictures. "Mary Smith" has lied about little things before, just like any kid, to keep out of
ttbuble, but she has never lied about anything important before and I have no reason to
I believe she is lying to anyone about this. She was completely distraught and crying while
taking with us that night, so I don't believe she is making this up. I've never seen her that

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.I upset about anything before. I believe her when she says she had sex with David."
End of William Bishop's statement.
I William Bishop signed the statement in my presence. A copy of the statement was made for
t4e case file while the original was placed into Records. A copy of the interview DVD was
I riiade for the case file while the original was placed into evidence.
While speaking with William Bishop, it appeared as though he maintained an open
I· demeanor. He was active in the conversation, maintaining good eye contact with me,
l{:eeping his arms open instead of crossing them across his chest. Bishop showed interest
~pd concern for the child while speaking with me.

I 06-04-2010
Several incidents have occurred since the initial call-out I received on 05-30-2010. The
I .I incidents included welfare concerns and disturbances, with the most serious incident being a
suicide attempt by David Fedder on 06-02-2010 (Event# 1013479). The report completed
by Capt. Stephenson for that event has been included with this case file. In his report, Capt.
I Stephenson stated he found several envelopes, two of which were inside the truck in which
he attempted suicide and four of which were found inside Baker's Transmission. I obtained
c:Opies of the letters, which were inside the envelopes, from Evidence and included those
I c;opies with the case file while the originals were retained in evidence. The envelopes all
· !tad names or statements on them, presumably stating what they were or to whom they were
'iptended. The envelopes were labelled as follows: Going Lawyer 882-9494, My Last Will.
I ((
P,avid Fedder, La La, Doi:l Freeman, Steve Neal, Latisa and Kids Bank Card, To Tisa
Candice Brandy David, and Orange PD.
...
'·.I

I I';was able to meet with Don Freeman, owner of Baker's Transmission, who provided a
written statement regarding this incident. For the purposes of this report narrative, I have
changed the victim's name to that of "Mary Smith," the PSEUDONYM chosen by the
victim. The original statement was placed into records and a copy of the statement was
I made for this case file. Those statements remain in their original form as written.
Beginning ofFreeman's statement:
I· "I was asked to make a statement in regard to our conversation about David Pedder and
"Mary Smith" bot of which worked in my shop. Dave came to work for me about a year
.I and a half ago. He has been a model employee and an asset to our shop. Over the years we
have had different people work cleaning the shop. One was a boy from Orangefield that
was the sane of a friend of Dave's. About four months ago, Dave asked if "Mary Smith"
I q{:mld come to work for us. He explaied that she was living with his step-son William
J?ishop and his wife which is "Mary Smith's" aunt. Her working here would help th
e~tep=son and "Mary Smith" by giving her money to help the family. "Mary Smith" did a

I good job. She actually did better than most. She worked from 8:00 o'clock until12:00
o'clock on Saturday. She was paid $30.00 durign the time frame we discussed. I was
present during the working hours of 8 to 12. We did business as usual. I noticed nothing
out of the ordinary."
I End ofFreeman's statement.

I While I spoke with Freeman, he advised he was only out of the shop on one Saturday in
recent memory, that being back in April2010, at which time he was at a race. Freeman

I
8/23/2010
 Event No. 1013174- Incident H"''~Ort
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',,

I stated he was present in the shop during each Saturday in May and that "Mary Smith" never
told him anything had happened. Freeman advised me he did not notice either "Mary
Smith" or David Pedder acting unusually around him or around each other and that he,
himself, had never seen or suspected anything unusual. Freeman advised his shop is a
family owned business which has a good reputation which he is trying to uphold and if he
had heard, or had reason to believe, Pedder had done anything he would have immediately
notified law enforcement.

On 06-04-201,0 at 1330 hrs., I went to Child Abuse & Forensic Services, 810 Hospital Drive
Suite 190, Beaumont, Texas, where I spoke to Brenda Garrison, RN. Garrison is a certified
Sexual Assault Nurse Examiner (SANE). I was met there by Bai1eigh Chaloupka and
"Mary Smith." Garrison conducted the SANE exam on "Mary Smith." Garrison advised
me she would forward her report to me once it is written. Garrison stated during the exam,
, she found that "Mary Smith" had healed tearing on her hymen at the seven o'clock position.
\: , Garrison advised me there was no semen, DNA or other physical evidence present so an
eyidence kit would not be provided. Garrison stated it was not possible to determine how
I ~ong ago the tearing occurred nor was it possible to determine what, specifically, caused the
te'aring, although she stated the healed tearing is consistent with sexual activity or
penetration of the sexual organ.
I ....·
..:·.
06-09-2010

I On 06-09-2010 I received the faxed report from Brenda Garrison. The written report
supported the verbal statements Garrison made on 06-04-2010, specifically stating in
Section VII: "Healed tear at 7 o'clock position to hymen- consistent with penetration of the
I female sexual organ."
As of06-09-2010 David Pedder is still under medical care for the suicide attempt and no
further attempts have been made at contacting him.
I This case is being forwarded to the DA's office.

I
i!.s:upplemental Narrative

I
...

date Written: Written By:
08/16/2010 KEATON,G

I, ·'
Detective Sergeant G.D. Keaton Jr. 447/897
This case was reviewed at the DA's office by Orange County District Attorney J.D.
Kimbrough on 06-21-2010. TheDA returned this case to me as "Temporarily Rejected"
and asked for additional informatio"n to be gathered. I met with the DA to discuss the case
in greater detail and to get clarification on what information the DA was requesting. While
speaking with the DA, it was determined the original statement by the victim, including the
pseudonym usedreferring to the victim in all of the statements, would remain.
I ·do verify that all references to "Mary Smith" or statements made by "Mary Smith"
regarding this case all refer to the victim, Alahna Apodaca.
The DA requested an additional statement from Sheryl Pedder, clarifying some of the
I ~comments made in her previous statement. I was specifically instructed to address
information regarding trips taken or gifts bought by David Pedder for the victim. The DA

I t--H-·''~"""'"'"""'"'"fD"t\lfC:"~ !Rl\A"C:: /.,.ntn.d~ PnnrtWritino-/IJi>.r!RM.~v1!R M~/F>.ntrv/R P.nnrtWritino-ffiisnlavRenort2.asnx?event= 1013174 8/23/2010
1: ..hvent No. 1U131/4- lncH1ent .l-)'i~;..f.:::.A!
By: _ _--_-·-_ _ _ _ _. _ ; . _ , - - - - - -
BRUCE N. SMITH
I State Bar No.l8543300
Attorney for DAVID PEDDER, JR.

I CERTIFICATE OF SERVICE

I This is to certify that on November 14, 2011, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, ORANGE County, by hand

I delivery.

I
I BRUCE N. SMITH

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I STATE OF TEXAS
NO. Al 00640-R

§ IN THE 260TH JUDICIAL DISTRICT
§_
I vs. §
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I
APPLICATION FOR COMMUNITY SUPERVISION

I TO THE HONORABLE JUDGE OF SAID COURT:

Now comes DAVID PEDDER, JR., Defendant, and files this application for conm1Unity
I supervision and in support thereof shows:

I Defendant has been sworn prior to making this application.

Defendant has never been convicted of a felony in the State of Texas or in any other state.

I WHEREFORE, PREMISES CONSIDERED, DAVID PEDDER, JR. prays that, in the

event of conviction herein, the Court grant community supervision to Defendant of any sentence that
I is imposed.

I Respectfully submitted,

I BRUCE N. SMITH
ATTORNEY ATLAW
2750 IH-10 E
I Beaumont, Texas 77703
(409) 899.1046
(409) 899.2648 Fax
I ·-·-;
'i
,/'1 1;2J!/)
J-.r" .
---~/
By: ~- , ;,::r- . , •
I BRUCE N. SMITH
State BarNo.l8543300
Attorney for DAVID PEDDER, JR.
I
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I
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I·
VERIFICATION
I "My name is DAVID PEDDER, JR .. I have been sworn in making this application and the

I matters it contains are the truth.

"I have never been convicted of a felony in this state or in any other state:

I
I DAVID PEDDER, JR.

I
I Sworn to and subscribed before me o n - - - - - - - - - - - - - - - - - -

I NOTARY PUBLIC

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 I
I NO. Al00640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
I vs.
§
§
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I
MOTION FOR NOTICE AND TO SUPRESS
I TO THE HONORABLE JUDGE OF SAID COURT:

I Now comes, DAVID PEDDER, JR., Defendant, and files this Motion to Suppress Statements

and in support would show:

I 1. At the time of any conversations between DAVID PEDDER, JR. and law

enforcement officers, DAVID PEDDER, JR. was (a) under arrest or (b) substantially deprived of
I freedom by the conduct of the law enforcement officers and the circumstances surrounding the mrest

I or deprivation of freedom.

2. Any statements made by DAVID PEDDER, JR. were involuntary and were coerced

I and enticed from DAVID PEDDER, JR ..

3. DAVID PEDDER, JR. was deprived of right to counsel and DAVID PEDDER, JR.
I did not make an intelligent and knowing waiver of that right.

I 4. The statements made by DAVID PEDDER, JR. were tainted by the illegal and

unlawful detention and arrest, in violation ofD AVID PEDD ER, JR.'s constitutional rights under the

I Fifth and Fourteenth Amendments to the Constitution of the United States, Article I, Section 9 of

the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure.
I 5. Statements made by DAVID PEDDER, JR. were taken without the safeguards

I required by and in violation of Article 38.22 ofthe Code of Criminal Procedure.

6. The admission of statements by DAVID PEDDER, JR. is a violation of DAVID

I PEDDER, JR.'s rights pursuant to the Fourth, Fifth, Sixth, andFourteenthAmendments to the United

States Constitution, Article I, Section 9 and 10 of the Texas Constitution and .Articles 1.05 and 3 8.23
I ofthe Texas Code of Criminal Procedure.

I
I
I
I WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court hold a

pretrial heming on this motion, and after hearing the evidence order the suppression of any and all

I confessions and statements taken from DAVID PEDDER, JR..

Respectfully submitted,
I
BRUCE N. SMITH
I ATTORNEY ATLAW
2750 IH-10 E
Beaumont, Texas 77703

I (409) 899.1046
(409) 899.2648 Fax
,.,
I By: /'
/):
..---)
__
I
1.~7 ~If
HI:?
i -

BRU~SMITW{ ~·
I State BarNo.18543300
Attorney for DAVID PEDDER, JR.

I CERTIFICATE OF SERVICE

This is to certify that on November 14, 2011, a true and correct copy of the above and
I foregoing document was served on the District Attorney's Office, ORANGE County, by hand

I delivery.

I BRUCE N. SMITH

I ORDER FOR A SETTING

I On _ _ _ _ _ _ _ _ _ , 2011, the Defendant filed a Motion to Suppress Statements.

The Court finds that the party is entitled to a hearing on this matter, and it is THEREFORE

I ORDERED that a hearing on this motion is set for _ _ _ _, at _ __

Signed o n - - - - - - - - - - - - - -
I
I JUDGE PRESIDING

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I
I NO.A100640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
I vs.
§
§ COURTOF
§
I DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS

I ORDER
On _ _ _ _ _ _ _ _ _ , 2011, came on to be considered DAVID PEDDER, JR.'s

I Motion to Suppress Statements, and said motion is hereby

(Granted) (Denied)
I
I JUDGE PRESIDING

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I STATE OF TEXAS
NO. A100640-R

§ IN THE 260TH JUDICIAL DISTRICT

I vs.
§
§
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I MOTION TO DETERMINE ADMISSIBILITY OF STATEMENT

I TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the Defendant, and files this motion to determine the admissibility of statements,

I and in support thereof would show:

1. This motion is brought pursuant to Article 3 8.22 (Sections 2 and 6) ofthe Texas Code
I of Criminal Procedure.

I 2. This matter is related to charges brought against DAVID PEDDER, JR. for the

offense of Aggravated Sexual Assault .

I 3. DAVID PEDDER, JR. made a written statement to police officers.

4. The circumstances and the nature of the statement raise the question of the
I voluntariness ofthe statement.

I 5. Article 3 8.22 (Section 2) of the Code requires that prior to making the statement,

DAVID PEDDER, JR. receive a warning from either a magistrate or the person to whom the
\•

I statement was made that:

a. DAVID PEDDER, JR. had the right to remain silent and not make any statement at
I all and that any statement made could be used against him at trial.

I b. any statement made by DAVID PEDDER, JR. maybe used as evidence against him

in court.

I c. DAVID PEDDER, JR. had the right to have a lawyer present to advise him prior to

and during any questioning.
I d. ifDAVID PEDDER, JR. was unable to employ a lawyer, he had the right to have an

appointed lawyer to advise him prior to and during any questioning.
I e. DAVID PEDDER, JR. had the right to terminate the interview at any time.

I
I
 I
I 6. The Code requires frniher that prior to and dming the making of.the statement,

DAVID PEDDER, JR. knowingly, intelligently, and volunta.Iily waive the rights set fmih.

I Movant requests that the Court make a determination of whether or not the Code provisions

were met in this instance and to determine the admissibility of the statement ofDAVID PEDDER,
I JR ..

I WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the court set this

matter for an evidentimy hearing so that a detennination may be made as to the admissibility of the

I written statements ofDAVID PEDDER, JR..

Respectfully submitted,
I
BRUCEN. SMITH

I ATTORNEY AT LAW
2750 IH-10 E
Beaumont, Texas 77703
(409) 899.1 046
I (409) 899.2648 Fax

I By:_··~-~~-~-·
p_~/
BRUCE N. SMITH
-
I State BarNo.l8543300
Attorney for DAVID PEDDER, JR.

CERTIFICATE OF SERVICE
I This is to certify that on November 14, 2011, a true and correct copy of the above and

I foregoing document was served on the District Attorney's Office, ORANGE County, by hand

delivery.

I
BRUCE N. SMITH
I
I
I
I
I
 I
I ORDER FOR A SETTING
On _ _ _ _ _ _ _ _ _ , 2011, the Defendant filed a Motion to Determine

I Admissibility of Statement. The Court finds that the party is entitled to a heming on this matter, and

it is THEREFORE ORDERED that a hearing on this motion is set for _ _ _ _ _ _ _ __
I at _ __

I Signed on _ _ _ _ _ _ _ _ ___:___ _ __

I JUDGE PRESIDING

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I STATE OF TEXAS
NO. A100640-R

§ IN THE 260TH JUDICIAL DISTRICT
§
I vs. §
§
COURT OF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I ORDER

I On , 2011, came on to be heard the Defendant's Motion to Determine

Admissibility of Statements, and after careful consideration of the motion and arguments of counsel,
I the Court ORDERS that said motion is hereby

I (GRANTED) (DENIED)

Accordingly, the statement in question is ruled to be:

I (GRANTED) (DENIED)
Signed on _ _ _ _ _ _ _ _ _ _ _ __
I
I JUDGE PRESIDING

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I
I NO.Al 00640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT

I vs.
§
§
§
COURT OF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I MOTION TO SUPPRESS STATEMENTS

I TO THE HONORABLE JUDGE OF SAID COURT:
Now comes, DAVID PEDDER, JR., Defendant, and files this Motion to Suppress Statements

I and in supp01i would show:

1. At the time of any conversations between DAVID PEDDER, JR. and law
I enforcement officers, DAVID PEDDER, JR. was (a) under arrest or (b) substantially deprived of

I freedom by the conduct of the law enforcement officers and the circumstances surrounding the arrest

or deprivation of freedom.

I 2. Any statements made by DAVID PEDDER, JR. were involuntary and were coerced

and enticed from DAVID PEDDER, JR ..
I 3. DAVID PEDDER, JR. was deprived of right to counsel and DAVID PEDDER, JR.

I did not make an intelligent and knowing waiver of that right.

4. The statements made by DAVID PEDDER, JR. were tainted by the illegal and

I unlawful detention and arrest, in violation ofDAVID PEDDER, JR.'s constitutional rights under the

Fifth and Fourteenth Amendments to the Constitution of the United States, Article I, Section 9 of
I the Texas Constitution and Article 38.23 of the Texas Code of Criminal Procedure.

I 5. Statements made by DAVID PEDDER, JR. were taken without the safeguards

required by and in violation of Article 38.22 ofthe Code of Criminal Procedure.

I 6. The admission of statements by DAVID PEDDER, JR. is a violation of DAVID

PEDDER, JR.'s rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United
I States Constitution, Article I, Section 9 and 10 of the Texas Constitution and Articles 1.05 and 38.23

I ofthe Texas Code of Criminal Procedure.

I
I
I
I WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Comi hold a

pretlial hearing on this motion, and after hearing the evidence order the suppression of any and all
I confessions and statements taken from DAVID PEDDER, JR ..

I Respectfully submitted,

BRUCE N. SMITH .
I ATTORNEY ATLAW
2750 IH-10 E
Beaumont, Texas 77703
I (409) 899.1046
(409) 899.2648 Fax

I /--.).v I /7/?HJ
I
' . _..._....-----,..'[;I //
//. ~
By: ..... . "' .. .
BRUCE N. SMITH
I State Bar No.18543300
Attorney for DAVID PEDDER, JR.

I CERTIFICATE OF SERVICE .

This is to certify that on November 14, 2011, a true and correct copy of the above and

I foregoing document was served on the District Attorney's Office, ORANGE County, by hand

delivery.
I
I a~b BRUCE N. SMITH

I ORDER FOR A SETTING

I On _ _ _ _ _ _ _ _ _ , 2011, the Defendant filed a Motion to Suppress Statements.

The Comi finds that the party is entitled to a hearing on this matter, and it is THEREFORE

I ORDERED that a hearing on this motion is set for _ _ _ _, at _ __

Signed o n - - - - - - - - - - - - - -
I
I JUDGE PRESIDING

I
I
I
I STATE OF TEXAS
NO. Al 00640-R

§ IN THE 260TH JUDICIAL DISTRJCT

I vs.
§
§
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I
ORDER
I On _ _ _ _ _ _ _ _ , 2011, came on to be considered DAVID PEDDER,JR.'s

I Motion to Suppress Statements, and said motion is hereby

(Granted) (Denied)

I
I JUDGE PRESIDING

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I
I NO. Al00640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT

I vs.
§
§
§
COURTOF

§
I DAVID PEDDER, JR. ORANGE COUNTY, TEXAS

MOTION FOR PRODUCTION OF WRITINGS AND STATEMENTS

I TO THE HONORABLE JUDGE OF SAID COURT:

Now comes DAVID PEDDER, JR., Defendant, and brings this Motion for Production of

I Writings and Statements pursuant to Rules 612 and 615 ofthe Texas Rules of Evidence, and in

support thereof shows:
I 1. If a witness uses a w1iting to refresh memory before or while testifying, an adverse

I party is entitled to have the writing produced for the purposes of inspection and cross-examination,

as provided by Rule 612 of the Texas Rules of Evidence.

I 2. Furthermore, after a witness other than the defendant has testified on direct

I, examination, the party who did not call the witness can move for the examination and use any

st,atement of such witness in the possession of the opposing attorney that relates to the subject matter

II concerning which the witness has testified, in accordance with Rule 615 of the Texas Rules of

Evidence.

a· 3. Defendant hereby moves for the production of all such writings and statements

pursuant to Rules 612 and 615 of the Texas Rules of Evidence.
I 4. Defendant makes this motion to avoid the possibility of prejudice resulting from the

I jury seeing documents tendered to Defendant and not being admitted into evidence; Prejudice would

result particularly when no cross examination was forthcoming.

I WHEREFORE, PREMISES CONSIDERED, Defendant prays that the Court order the

production of the writings and statements requested hereinabove under Rules 612 and 615 of the
I Texas Rules of Evidence.

I
I
I
 I
I Respectfully submitted,

I BRUCE N. SMITH
ATTORNEY AT LAW
2750 IH-10 E

I Beaumont, Texas 77703 ·
(409) 899.1046
(409) 899.2648 Fax

I~ /.) . f) 7?/
B;b /-··-£!.~Z£
I BRUCE N. SMITH
State Bar No.18543300
Attorney for DAVID PEDDER, JR.
I_
CERTIFICATE OF SERVICE
I This is to ce1iify that on November 14, 2011, a true and correct copy of the above and

I foregoing document was served on the District Attorney's Office, ORANGE County, by hand

delivery.

I
;I BRUCE N. SMITH

a· ORDER FOR A SETTING

On _ _ _ _ _ _ _ _ _ , 2011, theDefendantfiledaMotionforProductionofWritings

I' and Statements pursuant to Rules 612 and 615 of the Texas Rules ofEvidence. The Court finds that

the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED that a hearing on
I, this motion is set for _ _ _ _ , at _ __

I, Signed o n - - - - - - - - - - - - - -

a· JUDGE PRESIDING

1-
1
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I
I NO. A100640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
I vs.
§
§
§
COURTOF

I DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS

I. ORDER
On _ _ _ _ _ _ _ _ _ , 2011, came on to be considered DAVID PEDDER, JR.'s

I Motion for Production ofW1itings and Statements pursuant to Rules 612 and 615 ofthe Texas Rules

of Evidence, and said motion is hereby

I (Granted) (Denied)

I.
JUDGE PRESIDING

I
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,I
I NO. A100640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT

I vs.
§
§
§
COURT OF

DAVID PEDDER, JR. ORANGE COUNTY, TEXAS
.I §

MOTION FOR VOIR DIRE OF EXPERT WITNESS

I, TO THE HONORABLE JUDGE OF SAID COURT:

Now comes DAVID PEDDER, JR., Defendant in the above styled and numbered cause, and

1: moves this Court to conduct a hearing prior to trial and outside the presence of the jury to determine

,I the preliminary question of the qualification of all expeii witnesses upon which the state intends to

rely at trial, and to detem1ine the underlying facts and data upon which their opinions are based, and

I for good cause shows the following:

1. DAVID PEDDER, JR. expects the state to rely upon expert witnesses to prove its

I case.

2. The burden of establishing the admissibility of an expert's opinion rests on the party
I offering the evidence.

I 3. Whether the proffered witness possesses the requisite qualifications is a preliminary

matter for the trial court to decide and not a matter of weight only to be determined by the jmy.
I) 4. The party offering such evidence also bears the burden of establishing its relevance,

and that its probative value outweighs its prejudicial potential.
I . 5. DAVID PEDDER, JR. requests a hearing on the preliminary question concerning the

II expert's qualification pursuant to Rule 104( a) of the Texas Rules of Evidence.

6. In addition to the Rule 104( a) hearing, DAVID PEDDER, JR. is entitled to a voir dire

I examination out of the hearing of the jury "directed to the underlying facts and data upon which the

opinion is based." See Texas Rules of Evidence 705(b).
1: WHEREFORE, PREMISES CONSIDERED, DAVID PEDDER, JR. respectfully prays

I that this Honorable Court grant this motion and order a voir dire hearing pursuant to Texas Rules

ofEvidence 104(a) and 705(b).

I
I
 I
1: Respectfully submitted,

I BRUCE N. SMITH
ATTORNEY AT LAW
2750 IH-10 E

I Beaumont, Texas 77703
(409) 899.1046
(409) 899.2648 Fax

I /---))< _,..~-~)/7 j) ?J/
By: //:nw..Ji£
I, BRUCE N. SMITH
State Bar No.18543300
Attorney for DAVID PEDDER, JR.

I CERTIFICATE OF SERVICE

I This is to certify that on November 14, 2011, a true and correct copy of the above and

foregoing document was served on the District Attorney's Office, ORANGE County, by hand
I' delivery.

1\
BRUCE N. SMITH

I'
ORDER FOR A SETTING
i I' On _ _ _ _ _ _ _ _ _ , 2011, the Defendant filed a Motion for Voir Dire ofExpert

I Witness. The Court finds that the party is entitled to a hearing on this matter, and it is THEREFORE

ORDERED that a hearing on this motion is set for _ _ _ _, at _ __

1: Signed o n - - - - - - - - - - - - - -

1 JUDGE PRESIDING

1:
I
I
I
I
I NO. A100640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
I vs.
§
§
§'
COURTOF

ll DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS

I, ORDER
On _ _ _ _ _ _ _ _ , 2011, came on to be considered DAVID PEDDER, JR.'s

I Motion for Voir Dire of Expert Witness, and said motion is hereby

(Granted) (Denied)

I
I
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JUDGE PRESIDING

I'
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I NO. A100640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
I· vs.
§
§
§
COURTOF

:I DAVID PEDDER, JR. §

MOTION FOR WITNESS LIST
ORANGE COUNTY, TEXAS

I TO THE HONORABLE JUDGE OF SAID COURT:

Now comes DAVID PEDDER, JR., Defendant, and files this Motion for a List ofWitnesses
II and seeks production of the items requested hereinbelow relating to witnesses to be called by the

I State at any stage of the proceedings in this cause:

1. A list of the names and addresses of all witnesses the prosecution intends to call at

I any stage of the proceedings in this cause.

2. A list of the names, addresses and professions of all expe1i witnesses the prosecution

I· intends to call at any stage of the proceedings in this cause, along with each expeli's qualifications,

I the subject and a desc1iption of his or her contemplated testimony, and his or her report.

3. Any evidence. in possession of the state that any of its witnesses is presently

I incompetent to testify, or that any of its witnesses has been found incompetent to testify,

incompetent, or insane.
I 4. The criminal record of each witness for the state showing every conviction or

probationforfelonyormisdemeanorinvolvingmoralturpitudewhichisadmissibleforimpeachment
I under Rule 609 of the Texas Rules of Evidence.

I 5. The criminal record of each witness for the state showing every event which can be

used to impeach the witness including any deferred adjudication probations, arrests, or juvenile

I adjudications pending against the witness between the time of the offense alleged against Defendant

and Defendant's trial.
I· 6. All inducements offered by the state which might tend to motivate its witnesses to

I testify against Defendant, including, but not limited to, plea bargain agreements, fee, expense, or

reward arrangements, agreements to dismiss or reduce or not bring charges, or any other agreement

I.
. •!
 of leniency.

7. All writings used to refresh the recollection of any witnesses, as provided in Rule 612

of the Texas Rules of Evidence.

8. Any supplementation hereof should be produced no later than 24-hours p1ior to the

trial in this matter. See Richardson v. State, 744 S.W.2d 65, 77. (Tex. Crim. App. 1987); Hightower

v. State, 629 S.W.2d 920 (Tex. Crim. App. 1981 ); Young v. State, 54 7 S.W.2d 23 (Tex. Crim. App.

1977).

9. In support of this motion, Defendant would show that (a) the items requested are in

the exclusive possession, custody and control of the State ofTexas or the United States Government

by and through its agents, the police or the prosecuting attorney's office, and Defendant has no other

means of ascertaining the disclosure requested; (b) the items requested are not privileged; (c) the

items and information requested are material to this cause and the issues of guilt or innocence and

punishment to be determined in this cause; (d) Defendant cannot safely go to trial without such

information and inspection, nor can Defendant adequately prepare a defense herein; (e) Defendant's

rights will be violated under Article 39.14 of the Texas Code of Criminal Procedure, Article I,

Sections 3, 3a, 10, 13 and 19 of the Constitution of the State of Texas, and the Fifth, Sixth, Eighth

and Fomieenth Amendments to the Constitution of the United States of America absent such

discovery.

WHEREFORE, PREMISES CONSIDERED, DAVID PEDDER, JR. prays that the State

be ordered to provide said discovery relating to witnesses in this case as requested in this motion.

Respectfully submitted,
I
lr BRUCE N. SMITH
ATTORNEY AT LAW
2750 IH-10 E
I· Beaumont, Texas 77703
(409) 899.1046
(409) 899.2648 Fax

I·
By:
.
'V ---~)
,.(
..-"'> /-"' £;
...........-~
-1 . .
&·
f
7 ../
·
-
i

I BRUCE N. SMITH
State Bar No.18543300

I
I~ CERTIFICATE OF SERVICE

Tllis is to certify that on November 14, 2011, a true and correct copy of the above and

I foregoing document was served on the District Attorney's Office, ORANGE County, by hand

delivery.
I
I BRUCE N. SMITH

I ORDER FOR A SETTING

On _ _ _ _ _ _ _ _ _, 2011, the Defendant filed a Motion for Witness List. The
·t Court finds that the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED

I that a hearing on this motion is set for _ _ _ _ , at _ __

Signed on _ _ _ _ _ _ _ _ _ _ _ _ __

I
I" JUDGE PRESIDING

I
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I STATE OF TEXAS
NO. Al 00640-R

§ IN THE 260TH JUDICIAL DISTRICT
§
I· vs. §
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I
ORDER
1/ On _ _ _ _ _ _ _ _ , 2011, came on to be considered DAVID PEDDER, JR.'s

I. Motion for Witness List, and said motion is hereby

(Granted) (Denied)

I
I·~ JUDGE PRESIDING

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II
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I STATE OF TEXAS
NO. Al00640-R

§ IN THE 260TH JUDICIAL DISTRICT

I vs.
§
§
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I MOTION FOR DISCOVERY

I TO THE HONORABLE JUDGE OF SAID COURT:
Now comes DAVID PEDDER, JR., Defendant in the above entitled and numbered cause,

I by and through undersigned counsel, and makes this Motion for Discovery, and for good cause

shows the following:
I I.

I A. WITNESSES
Defendant moves the Court to order the District Attorney to produce and permit counsel for

I Defendant to inspect the following designated items relating to any witnesses in this case:

1. A list of the names and addresses of all witnesses the prosecution intends to
I call at trial.

2. A list of the names, addresses and professions of all expert witnesses the
prosecution intends to call at trial, along with each expert 1s qualifications, the subject and a
description of his or her contemplated testimony, and his or her report.

3. Any evidence in possession of the state that any of its witnesses is presently
incompetent to testify, or that any of its witnesses has been found incompetent to testify,
incompetent, or insane.

I 4. The criminal record of each witness for the state shov.ring every conviction
or probation for felony or misdemeanor involving moral turpitude which is admissible for
impeachment under Rule 609 of the Texas Rules of Evidence.

I 5. The criminal record of each witness for the state showing every event which
can be used to impeach the witness including any deferred adjudication probations, arrests,
or juvenile adjudications pending against the witness between the time of the offense alleged
I against Defendant and Defendant 1s trial.

6. All inducements offered by the state which might tend to motivate its
I witnesses to testify against Defendant, including, but not limited to, plea bargain agreements,
fee, expense, or reward arrangements, agreements to dismiss or reduce or not bring charges,
or any other agreement of leniency.

I 7. All writings used to refresh the recollection of any witnesses, as provided in
Rule 612 of the Texas Rules ofEvidence.
 I
I B. STATEMENTS

Defendant moves the Comito order the Disb.ict Attorney to produce and pem1i t counsel for

I Defendant to inspect the following designated items relating to any statements in this case:

1. All written confessions, admissions and statements, made by Defendant to the
I state in connection with this case.

2. All oral confessions, admissions and statements, made by Defendant to the
I state in connection with this case, which have been electronically recorded.

3. The substance of all oral confessions, admissions and statements made by

I Defendant to the state in connection with this case, which were not electronically recorded.

4. All statements, written or oral, electronically recorded or not, given by
Defendant which are exculpatory or which tend to mitigate punishment.
I 5. All Wiitten wamings, admonitions, rights and waivers given by the state to
Defendant before Defendant gave any written or oral statements, admissions or confessions
I or testimony at any examining trial or grand jury hearing.

6. All statements of a nature as would be arguably admissible as a "res gestae"
statement, spontaneous statement, or other utterance which the State intends to introduce in
I its case in chief, either during the guilt/innocence stage, or dming the punishment stage.

7. All witness statements as that term is used in Rule 615 of the Texas Rules of
I Evidence, whether in final, rough, draft, or other form.

C. WARRANTS AND WAIVERS
I Defendant moves the Court to order the District Attomey to produce and permit counsel for

Defendant to inspect the following designated items relating to warrants and/or any waivers in this
I case:

I 1. The search warrants and affidavits in support thereof obtained by law
enforcement authorities to search Defendant1s real property, residence, vehicle, effects,
papers or person in this case.

I 2. The arrest warrants and writs of capias, and affidavits in support thereof,
obtained by law enforcement authorities to arrest Defendant in this case.

3. The written consent to search Defendant's real property, residence, vehicle,
I effects, papers or person alleged by the state to have been signed prior to the search and
seizure of said property.

I 4. Any written waiver alleged by the State to have been signed by the Defendant
involving the Defendant's right to counsel, the right to remain silent, or the right to be free
from search and seizure.

I
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I D. LAW ENFORCEMENT AND INVESTIGATION

Defendant moves the Comt to order the District Attorney to produce and pem1it counsel for

I Defendant to inspect the following designated items relating to law enforcement and the

investigation ofthis case:
I 1. Offense reports, police reports, c1ime scene investigation reports or records
or reports of any third parties, by way of written memoranda, letters, notes or transcriptions
I involving the alleged facts of the offense, the crime scene or any location which may have
a bearing on any issue of the case.

I 2. The name, rank and badge number of any law enforcement officer and any
employee of the Office of the District Attorney who participated in any way in the
investigation of this case, whether at the scene, in transp01iing Defendant, at the Police
Station, at the jail or elsewi:ere.
I 3. The name and address of any person (including any suspects in this case)
interviewed by representatives of the State of Texas, whether an employee of a law
I enforcement agency or of the Office of the District Attorney or otherwise, in connection with
this case.

I 4. All hand-written, typed or otherwise recorded notes of law enforcement
officers, relating to any part of this case (such as arrest, investigation, iriterrogation,
interviews, or any other aspect) who investigated or pariicipated in the preparation of this
case for trial, enforcement agency or of the Office of the District Attorney or otherwise, in
I connection with this case.

E. PHOTOGRAPIDC EVIDENCE
I Defendant moves the Court to order the District Attorney to produce and permit counsel for

I Defendant to inspect the following designated items regarding to photographic-related evidence in

this case:

I 1. All photographs, videotapes, audiotapes, drawings, charts and diagrams made
by the state or law enforcement agency with reference to this case, including, but not limited
to those of the scene of the crime and the scene ofDefendant's arrest.
I
I

2. All photographs of the complainant, whether taken at the scene of the alleged
offense, at the scene where the complainant was discovered, at the hospital, or at the time of
the autopsy, if any.
I 3. All photographs of suspects which were shown to all witnesses to the alleged
offense, concerning the identity of the perpetrator of the offense for which Defendant has
I been charged.

4. All photographs of Defendant which were used in the investigation of this

I case, including any photograph which may have been shown by any law enforcement officer
to any potential witness in this case.

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I case.
5. All "mugshots" of Defendant made by the state following his anest in this

I 6. All photographs of all line-ups conducted in this case, including any line-up
in which Defendant participated.

7. All photographs, line-ups, or show-ups presented to any witness in this case,
I whether or not Defendant was in it, or was identified by the witness.

F. PHYSICAL EVIDENCE
I Defendant moves the Court to order the District Attorney to produce and permit counsel for

I Defendant to inspect the following designated items relating to physical evidence in this case:

1. All physical evidence seized by the state from Defendant in connection with
this case.
I 2. All physical evidence seized by the state from Co-Defendants, co-
conspirators, parties or accomplices, before, during, or after their arrest, in connection with
I this case.

3. All physical evidence, prope1iy, documents, papers, books, accounts, letters,

I photographs, objects, records or tangible things belonging to Defendant which are now in the
possession of the state or its agencies.

4. All physical evidence in possession or control of the state which the state
I intends to offer at trial in this case.

5. All physical evidence alleged to be the instrumentality ofthe crime for which
I Defendant stands indicted.

6. All physical evidence removed by the state from the scene of the alleged
cnme.
I 7. All weapons in possession or custodyofthe state, alleged to have been used
by Defendant, Co-Defendants, co-conspirators, parties, accomplices, complainants or
I witnesses in this case, including ammunition, shells, cartridges, bullets, slugs, wadding,
projectiles, missiles, and fragments recovered from the scene or any person.

I 8. All blood samples, bodily fluids, tissues or hair samples taken from the scene
of the alleged crime or from the person of DAVID PEDD ER, JR., or the home or vehicle of
DAVID PEDDER, JR. or from any complainant or witness.

I 9. All contraband including drugs, controlled substances, and/or paraphernalia
which was seized as a result of the investigation of this cause, in order to permit counsel for
Defendant an opportunity to examine the same and to have an expert examine, test and
I inspect the same.

10. The location from which each piece ofphysical evidence was found, the time

I it was found, and the name of the person who found it.

11. All other physical evidence, property, documents, papers, books, accounts,
letters, photographs, objects, tangible things orrecords which constitute or contain evidence
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I material to any matter involved in this case which are in tht1 possession, custody or control
of the state or any of its agencies.

I G. TESTS, REPORTS AND SCIENTIFIC EVIDENCE

Defendant moves the Court to order the District Attorney to produce and pem1it counsel for

I Defendant to inspect the following designated items relating to tests, reports and any other scientific

evidence in this case:
I 1. All latent fingerprints, palm prints, foot prints, tire tracks or tool marks and
reports generated with respect to said prints, discovered by the state which are material to the

I commission of the crime for which Defendant has been charged.

2. All reports of scientific tests, experiments and comparisons, and the name of
each person who made such repmi or performed such tests, experiments or comparisons,
I including, but not limited to, DNA, hair, drugs and controlled substances and fingerprints.

H. STATEEVIDENCE
I Defendant moves the Court to order the District Attorney to produce and permit counsel for

I Defendant to inspect the following designated items relating to State's evidence in this case:

1. All evidence in possession of, or within the knowledge of, the state or any of
its agencies, including impeachment evidence, which is favorable to Defendant and material
I either to guilt or to punishment.

II.
I In support of this motion, Defendant would show that: (a) the items requested are in the

I exclusive possession, custody and control of the State of Texas or the United States Government by

and through its agents, the police or the prosecuting attorney's office, and Defendant has no other

I means of ascertaining the disclosure requested; (b) the items requested are not privileged; (c) the

items and information requested are material to this cause and the issues of guilt or innocence and

I punishment to be determined in this cause; (d) Defendant cannot safely go to trial without such

information and inspection, nor can Defendant adequately prepare a defense herein; (e) Defendant's
I rights will be violated under Article 39.14 of the Texas Code of Criminal Procedure, Article I,

I Sections 3, 3a., 10, 13 and 19 of the Constitution of the State of Texas, and the Fifth, Sixth, Eighth

and Fourteenth Amendments to the Constitution of the United States of America by such absent such

I discovery.

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I WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this

Honorable Comi will grant this Motion for Discovery in all things.

I
Respectfully submitted,
I BRUCE N. SMITH
ATTORNEY ATLAW
I 2750 IH-10 E
Beaumont, Texas 77703
(409) 899.1046

I (409) 899.2648 Fax

ll ·'
I B :/~/J ~-; .~~
:Grl§CE!\C-~Hf//'
I ,,.-
y
'·state BarNo.18543300
I ATTORNEY FOR DEFENDANT

I CERTIFICATE OF SERVICE

This is to certify that on November 14, 2011, a true and correct copy of the above and

I foregoing
, document was served on the District Attorney's Office, ORANGE County, by hand

delivery.
I
BRUCE N. SMITH . . .
I
I ORDER FOR A SETTING

On___,__ _ _ _ _ _ _ _, 2011, the Defendant filed aMotion for Discovery. The Court
I finds that the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED that

a hearing on this motion is set for _ _ _ _, at _ __
I Signed o n - - - - - - - - - - - - - -

I
I JUDGE PRESIDING

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I NO. A100640-R

§ IN THE 260TH JUDICIAL DISTRICT
STATE OF TEXAS
§
I vs. §
§
COURT OF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I
ORDER
I On _ _ _ _ , 2011, came on to be heaTd Defendant's Motion For Discove1y, and after

heming saTne, the Comi orders discovery as indicated in the body of the motion.
I
I PRESIDING JUDGE

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I NO. Al00640-R

STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
I vs.
§
§
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I MOTION FOR DISCOVERY OF PUNISHMENT EVIDENCE

I TO THE HONORABLE JUDGE OF SAID COURT:

Now comes DAVID PEDDER, JR., Defendant, and moves the Court to order the State's
I attorney to disclose the following as they relate to the punishment hearing in this cause:

1. The names and locations of any witnesses that the State intends to call to testify about
I DAVID PEDDER, JR.'s propensity for violence or that he poses a continuing threat to society.

I DAVID PEDDER, JR. alleges that the requested information is within the possession or

control of the State ofTexas or its agents. Other than discovery by these means, DAVID PEDDER,
I JR. has no other means by which to obtain the information requested, which is necessary for the

proper preparation of the defense of this cause in the punishment hearing.
I WHEREFORE, PREMJSES CONSIDERED, DAVID PEDDER, JR. respectfully prays

I that the Court grant this motion.

Respectfully submitted,

I BRUCEN. SMITH
ATTORNEY ATLAW
I 2750 lli-10 E
Beaumont, Texas 77703
(409) 899.1046
I (409) 899.2648 Fax

I B)(v6 .-- ~
BRUCE N. SMrT~
l .... .

State Bar No.l8543300
I Attorney for DAVID PEDDER, JR.

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I CERTIFICATE OF SERVICE

I This is to celiify that on November 14, 2011, a true and con:ect copy of the above and

foregoing document was served on the District Attorney's Office, ORANGE County, by hand

I delivery.

I BRUCE N. SMITH F~=---~

I
ORDER FOR A SETTING
I On _ _ _ _ _ _ _ _ _ , 2011, the Defendant filed a Motion for Discovery of

I Punishment Evidence. The Court finds that the pa1iy is entitled to a hearing on this matter, and it

is THEREFORE ORDERED that a hearing on this motion is set for _ _ _ _ , at _ __

I Signed o n - - - - - - - - - - - - - - -

I
JUDGE PRESIDING
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I
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NO. Al00640-R
I STATE OF TEXAS § IN THE 260TH JUDICIAL DISTRICT
§
I vs. §
§
COURTOF

DAVID PEDDER, JR. § ORANGE COUNTY, TEXAS
I
ORDER

I On _ _ _ _ _ _ _ _ _ , 2011, came on to be considered DAVID PEDDER, JR.'s

Motion for Discovery of Punishment Evidence, and said motion is hereby
I (Granted) (Denied)

I
JUDGE PRESIDING
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I Affidavit of Leroy Perkins

I The State of Texas

County of Orange
I BEFORE ME, the undersigned authority on this day personally appeared Leroy Perkins, of

I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

I did depose and say as follows:

"My name is Leroy Perkins. I haul scrap metal away from Baker's Transmission and have

I done this for approximately five years. I generally go by Baker's Transmission once a week. In the

I approximately five years I have been hauling scrap metal, I have never been by the shop during

business hours when there was not at least one family member present and there was almost always
I more than one family member present. I have also been to Baker's Transmission on several

I occasions, in the morning, when there were employees in the parking lot waiting for Don Freeman

or one of the family members to come and open the business. From my observation, no employee
I could enter the business until Mr. Freeman or a member of his family appeared and opened the

I business. I knew that there was no reason for me to go to Baker's Transmission to haul scrap metal

I until after 7:30a.m. and closer to 8:00a.m. because there was no way I could access the building

without Mr. Freeman or a family member being present and having opened the business. "

I EXECUTED this the/sl1ay of~· 2015.
I
I Affiant d
SUBSCRIBED AND SWORN to before me by the said Leroy Perkins, on this the/sffday
I of~2015.

I OEANAAYLOR
MY COMMISSION EXPIRES
Notary Public in and for t
EXHIBIT
August 26, 2015
State ofTexas
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Mfidavit ofEric Wolfford
I The State of Texas

I County of Orange

BEFORE .ME, the undersigned authority on this day personally appeared Eric Wolfford, of
I Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being first duly sworn

I did depose and say as follows:

"My name is Eric Wolfford. I have been an employee of the City of Orange for
I approximately twenty-four years: My job is to maintain the entire fleet equipment that would include

'I police cars, fire tmcks, tractors, and all other vehicles. I have done business with Baker's

Transmission through the city for approximately twenty years. I would deliver and pickup vehicles
I and equipment that needed transmission repair work and tllis was often done by Baker's

I Transnlission. I would also frequently drive by Baker's Transmission on weekdays and weekends.

I have known Don Freeman for at least twenty years and his family and have become familiar with
I the vehicles that they drive. There is always one or more family member at the shop and if not, the

I shop is closed. I can always tell whether or not Baker's Transmission is opened or closed based

upon whether or not at least one family members' vehicle is on the premises."
I EXECUTED this the /..b_-day of Vat1Jtt, 2015.

I
I
AND SWORN to before me by the said Eric Wolfford, on thls theL5~ay
I ~./z/ _SUBSCRJBED
.. ,
of.~,2015.

I DEANA AYLOR
MY COMMISSION EXPIRES
Notary Public in, d for the
August 26,2015 State ofTexas
I EXHI~IT

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Affidavit of. Dr. Robert Marroquin
I The State of Texas

I County of Orange

BEFORE ME, the undersigned authority on this day personally appeared Dr. Robert
I Marroquin, of Orange, Orange County, Texas, hereinafter called "Affiant", who after by me being

I first duly sworn did depose and say as follows:

"My name is Dr. Robert Marroquin. I have done business with Baker's Transmission from
I approximately 1984 to date. I estimate that I have gone to Baker's Transmission at least twelve

I times per year since 1984 for mechanic work. In addition, I go to Baker's Transmission for social

or diagnostic questions on my vehicles at least ten times average per year since 1984. I have never
I been to Baker's Transmission during business hours when at least one family member is on the

I, premises. I have also been to Baker's Transmission in the morning prior to them opening and have

waited in the parking lot with employees until Don Freeman or a family member appears on the
I premises to open the business. I have also been with Don Freeman on several occasions when he

I is the last person leaving and observed him lock the building with no other employees on site or in

the shop. It is my finn belief that unless there is a Freeman family member present, the business is
I closed and locked."

I EXECUTED this the 1~'7-lf: day of 4~--;rt_..t._.
/
, 2015.

I
I SUBSCRIBED AND SWORN to before me by the said Dr. Robe1t arroquin, on this the
~day of ~.vne _ , 2015.
I
I Notary Public in an
State ofTexas
EXHIBIT

I I