Curlee, Darrell

JANE HALL JANET McCONATHY COURT COORDINATOR COURT REPORTER jhall@co.hill.tx.us jmcconathy@co.hill.tx.us IDA ALCALA ASST. COURT COORDINATOR ialcala@co.hill.tx.us October 7, ~015 RECEiVED IN Sharon Keller, Chief Justice COURT OF CRIMINAL APPEALS Court of Criminal Appeals P. 0. Box 12308 NOV 16 2015 Austin, TX 78711-2308 Re: No. WR. 83,797-01 In re: Darrell Curlee Dear Judge Keller: I am new to the process of responding personally to an Application for Writ of Mandamus. One ofthe briefing attorneys that I spoke with at the Court of Criminal Appeals said that I could do so in letter form. I am a little confused over the filing of the Writ with your Court as the applicant entered into a plea agreement and was sentenced on July 31, 2015. I am attaching certified copies of each filing from Mr. Curlee's trial court file collectively as Exhibit A. I have also included a letter that I received from Mr. Curlee complaining about his trial counsel just before I appointed Mr. Lyle Gripp as additional and lead counsel. That letter is attached as Exhibit B. I have included a copy of the Order Appointing Mr. Gripp as Exhibit C. As you can see, the appointment does not remove Mr. Russell, it merely adds additional counsel. I This was done for two reasons. First,.Mr. Curlee complained. Second, at about the same time as the appointment of Mr. Gripp, I learned of a troubling series of events that led me to question Mr. Russell's fitness to practice law. When I served as the Judge of the County Court at Law of Hill County, I was, from time to time, assigned to sit as the Judge of the 66th District Court. One of those assignments was in Cause No. 37228, State of Texas v. James Ryder. Terence Russell had been appointed to represent Mr. Ryder by the Honorable F. B. McGregor, Jr., prior to my assignment to the case. I set the case for a jury trial on August 27, 20 14; however, I fell ill and the Honorable Alan Mayfield, Retired Judge ofthe 74th District Court of McLennan County, was assigned to preside over the jury trial.  Mr. Ryder faced three felony counts. The first count had a range of punishment from 25 years to life, the second count was from two years to 20 years, and the third count was from two years to 10 years. Ultimately, the juryfound Mr. Ryder guilty and sentenced Mr. Ryder to 99 years, 20 years, and 10 years, respectively. Although Mr. Ryder had been deemed indigent and had counsel appointed to him, no Ake v. Oklahoma or similar motions were filed with the court seeking funds for expert witnesses, investigators, or any other assistance. Mr. Ryder has now hired the Honorable Kristin R. Brown of Dallas to represent him on appeal. Ms. Brown filed a Motion for New Trial wherein she alleges that Mr. Russell required Mr. Ryder to provide $1 ,500 so that an expert could be hired. That expert, Dr. Trent Terrell, required a fee of only $1,000 for his testimony. Unfortunately, because of an alleged miscommunication, Dr. Terrell never appeared at the trial. Dr. Terrell did return an uncashed $1,000 check written from Mr. Russell's personal checking account. A $1,000 check was subsequently written to Mr. Ryder or his fiance as a refund. That check was not written on an IOLTA trust account but instead seems to come from Mr. Russell's and his wife's personal bank account. To this day, Mr. Russell has failed to account for or return the other $500 that he required the indigent defendant to tender to him. I have attached as Exhibit D a copy of the Motion for New Trial, together with the Affidavits of Dr. Terrell and Larenda Nichole Watkins (the fiance of Mr. Ryder who paid Mr. Russell the $1 ,500), along with a copy of the check that refunded the money to Mr. Ryder, and the receipt from Mr. Ryder when the money was deposited with Mr. Russell. I have attached as Exhibit E the transcript of the hearing on the Motion to Rescind and Second Motion for New Trial filed by Mr. Ryder wherein Mr. Russell testified that he did not maintain a trust account, and that he used his personal account for his client trust account. Also attached is the attorney fee voucher and proof of payment by Hill County to Mr. Russell for representing Mr. Ryder. Further, there is presently a case before your court styled In re Thomas Eric Lee, WR. 81,722-01. Mr. Russell represented Mr. Lee at the trial court and Mr. Lee has now alleged that Mr. Russell coerced him into pleading no contest. Mr. Lee alleged that Mr. Russell told him "that he was going to be elected district judge and Mr. Lee better hurry and plead to the charges because counsel would throw the book at him once counsel took the bench." Attached as Exhibit F is a copy of the transcript from the hearing conducted as a part of the Order issued by the Court of Criminal Appeals. Mr. Russell testifies, but never unequivocally denies telling Mr. Lee what he was alleged to have said. I believe Mr. Lee's assertion to be true because in a previous case, another defendant, Curtis Fields, made an allegation that "Russell emphasizes that he is utilizing political strategies to win votes for the up-coming judge's position." Attached as Exhibit a'is a copy of Mr. Fields' complaint. The above referenced allegation is made at the top of page 4.  Because my understanding is that I have a fiduciary duty to appoint competent counsel for indigent defendants, and because of my growing concerns regarding Mr. Russell, I appointed additional counsel to an indigent defendant. I have also complied with my duty to report \ misconduct to the State Bar of Texas as a result of the trust account issues referenced above. Cc: Terence Russell (w/o attachments) Mark Pratt (w/o attachments) Lyle Gripp (w/o attachments) EXHIBIT A . · .. "' \ ·~- r ~ INDICTMENT CAUSENO. 3Jt±58 THE STATE OF TEXAS VS. DARREL ALLEN CURLEE CHARGE: AGGRAVATED ASSAULT WITH A DEADLY WEAPON AGGRAVATED ASSAULT THREAT-WITH A DEADLY WEAPON -.. IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: THE GRAND JURY, for the County of Hill, ·State of Texas, duly selected, empaneled, sworn, charged and organized as such at the JULY/DECEMBER term, A.D., 2012 of the 66th Judicial District Court for said County, upon their oaths present in and to said court at said term that DARREL ALLEN CURLEE hereinafter styled Defendant, on or about the 15TH DAY OF JUNE 2012 and before the presentment ofthis indictment, in the County of HiJI and State aforesaid, did then and there unlawfully, intentionally or knowingly or recklessly cause bodily injury to Christopher Jordan Wally by cutting him with a knife, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife, that in the manner of its use-or intended use was capable of causing death or serious bodily injury. And it is further presented that prior to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on the 25th day of February 1983, in the District Court of San Miguel County, New Mexico in Cause No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name of Darrerll Allen Curlee, was duly and legally convicted in said last named Court of a felony, to-wit: Second Degree Murder upon an indictment then legally pending in said last named Court and of which said Court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commission of the primary offense. A CERTIFIED COPY I ATIEST g_ -,~ ANGELIAORR .201£._ DISTRICT CLERK HILL COUNTY. T ·~· And it is further presented that before the commission of the primary offense and after the conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed the felony of Burglary and was convicted on the 91h day of May I 989 in the Seventh Judicial District Court of San Juan County, Utah, in Cause No. 767. And it is further presented that on or about the tsm DAY OF JUNE 2012 in the County of Hill and State of Texas, the defendant, DARREL ALLEN CURLEE , did then and there intentionally or knowingly threaten Jerry Wayne Vessells with imminent bodily injury by attempting to cut and/or stab him with a knife and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury. And it is further presented that prior to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on the 25th day of February I 983, in the District Court of San Miguel County, New Mexico in Cause No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name of Darrell Allen Curlee, was duly and legally convicted in said last named Court of a felony, to-wit: Second Degree Murder upon an indictment then legally pending in said last named Court and of which said Court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commission of the primary offense. And it is further presented that before the commission of the primary offense and after the conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed the felony of Burglary and was convicted on the 9th day of May 1989 in the Seventh Judicial District Court of San Juan County, Utah, in Cause No. 767.  NO. 37,458 STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 66th JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § IDLL COUNTY, TEXAS WAIVER OF ARRAIGNMENT The undersigned Defendant, Darrell Allen Curlee, by counsel, waives formal pre-trial arraignment and preparation time between arraignment and trial, and agrees to be arraigned at time of trial, and enters a plea of not guilty. The undersigned attorney hereby enters appearance as attorney of record for Darrell Allen Curlee and agrees that the cause be set for trial in the courtroom ofthe 66th Judicial District Court ofHill County, Texas. SIGNED on September 6, 2012. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at Law PO Box 306 Hillsboro, TX 76645 245-396-3219 254-582-5593 (facsimle) ~~w/?.4 Terence A. Russel) State Bar No. 17437070 ,_,2f'L ~ Attorne~:~:~len Curlee ..- _ d L? .,....._ -7 '7' ~ .,t.,__ - ~ ~ ~ I I'- ~~ . Approved by~: ., J f) ' Signed on , /L~ / y ,)J( 2-c:::= .  (OPV N0.37,458 STATK.OF TEXAS ·§ IN THE DISTRICT COURT § vs. § 66th JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § HILL COUNTY, TEXAS : WAIVER OF ARRAIGNMENT The undersigned Defendant, Darrell Allen Curlee, by counsel, waives formal pre-trial arraignment and preparation time between arraignment and trial, and agrees to be arraigned at time of trial, and enters a plea of not ~ilty. The undersigned attorney hereby enters appearance as attorney of record for Darrell Allen Curlee and agrees that the cause be set for trial in the courtroom of the 66th Judicial District Court ofHill County, Texas. SIGNED on September 6, 2012. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at: Law POBox306 Hillsboro, TX 76645 ·o 245-396-3219 254-582-5593 (facsimle) ~~uJ'?A Terence A. Russell State Bar No. 17437070 J1,j_ £.4 /e?r~ ~ J. ~yfor Darrell Allen Curlee u· .t4.. ~ ,.- z_ u. ¥~· ~c;___.- __,., Approved by . Court: ~- /'/ ~~-- JUDGE P IDING ?'0!! A CERTIFIED ATTEST l.. ~ I .20 ANGELIAORR DISTRICT CLERK HILL. COUNTY. T BY  .,\: . . :1\.. \ 'oAnd Result ,.port ~K~OCERa · MFP 09/25/2012 08:14 Firmware Version 2KS_2F00.005.004 2010.04.13 [2KS_l000. 005. 001] [2KS_ll00. 001.002] [2KS_7000. 005. 001] ilt:lft>it~l:lll#.tlf:MS%KM:~mi''\@:•::';:~:;=• •==••=·= Job No. : 033502 Total Time: o•oo'l7" Page: 002 Complete Document: doc033S0220120925081330 •·/ ,' CAUSE NO. 37,458 THE STATE OF TEXAS § IN THE 66'1'11 JUDICIAL § DISTRICT COURT OF I HILL COUNTY, TEXAS $E'tTJNG ORQEBS THIS CASE IS ORDERED SJT FQR 1.. _XX_PRE-TRIAL MOTIONS IIEAlUNG UNDERARTICLEl8.01CCPSETON-OCTOBER 18,2012 9:00A.M. ) l._XX_FINALPRE-TRIALCON.FERENCE-NOVEl\tiBER 13,201.2 9:00 A.N.f.. 3. _XX_JURYTRW.JSSETFOR--JANUARY 14,2013 9:00A.M. 4. _PIAAIS SBTFOR _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ No. Date and Time Destination Times Type Result Resolution/ECH 001 09/25/12 08: 14 Terence Russell o•oo·1r FAX OK 200xl00 Normal/On [ QWGOXOB415 ] l  CAUSE NO. 37,458 THE STATE OF TEXAS § vs. § DARRELL ALLEN CURLEE § HILL COUNTY, TEXAS ORDER APPOINTING A DISINTERESTED EXPERT TO EXAMINE DEFENDANT It is ORDERED that Dr. Veri 0. Childers, Jr. is hereby appointed to examine DARRELL ALLEN CURLEE, Defendant in the above entitled and numbered cause, for the purposes of determining whether Defendant is competent to stand trial and whether Defendant is or was a person with mental illness at the time of the alleged offense or offenses. The Defendant, DARRELL ALLEN CURLEE is in the Hill County Jail on charges of Aggravated Assault with a Deadly Weapon and Aggravated Assault-Threat-with a Deadly Weapon, felony indictments. The meaning of competency to stand trial is whether the Defendant has sufficient present ability to consult with defense counsel with a reasonable degree of rational understanding and whether the Defendant has a rational as well as factual understanding of the proceedings against him. For the purpose of competency you should determine whether if at the time of the conduct charged, Defendant, as a result of mental disease or defect, did not know that his ORDER APPOINTING A DIS!NIERESTED EXPERT TO EXAMINE DEFENDANT 1 conduct was wrong. The term "mental disease or defect" does not include abnormality manifested only by repeated criminal or otherwise antisocial conduct. IT IS FURTHER ORDERED that the examiner appointed herein submit a written report ofthe examination to the Court within thirty (30) days of the date of this ORDER, including a description of the procedures used in the examination, the examiner's observations and findings pertaining to the Defendant's competency to stand trial, and the recommended treatment. If the examiner concludes that the Defendant is incompetent to stand trial, the report must also state the examiner's observations and findings and whether there is a substantial probability that the Defendant will attain the competency to stand trial within the foreseeable future. ' report be submitted to the Court setting IT IS FURTHER ORDERED that a separate forth the examiner's observations and findings concerning: 1. Whether the Defendant is a person with mentally illness (and meets the criteria for court-ordered inpatient mental health senrices under Subtitle C, Title 7, Health and Safety Code. 2. Whether the Defendant is a person with mental retardation and meets the criteria for commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code. 3. Whether the Defendant was sane at the time of the alleged offense~. IT IS FURTHER ORDERED if the examiner is a physician and concludes that the defendant is a person with mental illness, the examiner shall complete and submit to the court a Certificate of Medical Examination for Mental Illness. If the examiner is a physician or a licensed psychologist and determines that the defendant is a person with mental retardation and if the determination has been made in accordance with the standards established by ORDER APPOINTING A DlSlNTERESTED EXPERT TO EXAMINE DEFENDANT 2 ' ' Section 593.005, Health and Safety Code, the examiner shall submit to the court an affidavit setting forth the conclusions reached as a result of the examination. SIGNED this the :2. fl day of *-r: '2012. ·~~7~ F. B. (Bob) McGregor, Jr., Judge 66th Judicial District Court Hill County, Texas ORDER APPOINTING A DISINTERESTED EXPERT TO EXAMINE DEFENDANT 3  NO. 37,458 STATE OF TEXAS IN THE 66TH JUDICIAL VS. DISTRICT COURT OF DARRELL ALLEN CURLEE HILL COUNTY, TEXAS 230 S. Waco St. #108 Hillsboro, Tx 76645 ORDER TO: DARRELL ALLEN CURLEE You are hereby ORDERED to report to the Hill County Community Supervision and Corrections Department at 126 South Covington Street, on the North end of the Hill County Courthouse Annex, Hillsboro, Texas, at 8:00A.M., TUESDAY, DECEMBER 11, 2012. You are further ORDERED to provide the interviewing officer with true answers to questions concerning your criminal history, social history, work history, educational history and medical history. All information obtained is for the purpose of a PRE-SENTENCE INVESTIGATION required by Section 9, Article 42.12, Texas Code of Criminal Procedure, and the report will be handled in accord with said Section. ~""!:r:~ -~. -~ ,:;~ :,:Ill . :- SIGNED this 3rd day of October, 2012. ·... ; -ka.-. ~-,)- .~ ~--~--~=-~~~~~~---=----~ F. B. (Bob) McGREGOR, JR. a PRESIDING DISTRICT JUDGE -a ALLEGED OFFENSE: AGG ASSLT W/DEADLY WEAPON AGG ASSLT W/DEADLY WEAPON ccm/frms A CER.TIFIED ~OPY ATTEST .X - 3 / ~~~.,...;-.,.~_.20~ 1 r ANGELIAORR DISTRICT CLERK HILL COUNTY. TEXAS BY  ., Veri 0. Childers, Jr., Ph. D. 192HCR4319 Milford TX 76670 (817) 707-6010 Defendant: Curlee, Darrell A. County: Hill c:::.!;ause #: 37,45~ Date of Evaluation: 10/10/2012 Date of Report: 10/16/2012 . ' Specific Issues for Evaluation: Mr. Darrell A. Curlee is referred by the Honorable F. B. McGregor, Jr., Judge of the 66th District Court for evaluation of his competency to stand trial. The CoUrt requests information in regard to two questions: (1) does the defendant have a rational and factual understanding of the nature of the proceedings againsthim; and (2) does the defendant have sufficient present ability to consult with his attorney with a reasonable degree of rational understanding. The Court also seeks information as to his sanity at the time of the alleged offense and at present. Disclosures: Prior to any evaluation procedures, Mr. Curlee was provided with the following information and disclosure about the nature and purpose ·of this evaluation. The Court has ordered an evaluation ofyour mental status and characteristics with respect to the upcoming legal proceedings that you face. The information obtained during the evaluation process will be used in legal hearings about the charges pending against you, and I will be evaluating your competency to stand trial as well as your sanity. As part of this evaluation, I will be asking you a number ofquestions about your personal history as well as using standard procedures and instruments to gather information. What we say and do during the course of this evaluation is not privileged, private, or confidential. I am not treating you in a doctor-patient relationship. Regardless ofhow you participate or cooperate, I will write a report. The report will go to the Court, the prosecutor, and your attorney. As a result of the evaluation, I may be called upon by one of the attorneys to testify in the proceedings. Do you have any questions? Prot(<..u Cr>oo'At.ultor 'P. 0. l!D,X.5:116 Hllld>oro. 'IX}'6645 ~--+1}1;1' !~Sf~~ FAX FAX TO: ·n(rQ...,o.._ Rvs<;c l \ ~-S<4.;!- ""~.3 RE: DARREU. ALLEN C'URl..EE IN .JAILr 181ns C]No CHARGJ!.! JAIL JD 55831 PAGES: INCLUDING COVER 1 DATE: 8fJYJZ CC: COMMENTS: TinS PAX CONTAINS CONFIDBNrw) INFORMA noN. IF YOU ARE NOT TilE INTENDED RECIPIENT OF lli!S FAX, PLEAS.E CONTACT INDIGENT DEFENSI! OFFICE.  -· .- STATE OF TEXAS § IN THE DISTRICT COURT OF vs § HILL COUNTY, TEXAS 66TH JUDICIAL DISTRICT DARRELL ALLEN CURLEE Dear Mr. Curlee, August 13,202012 After reviewing your application for Court-Appointed Attorney, the appointing authority hereby appoints you MARK MORRIS, as your attorney, who can be reached as follows: 2121 W. WACO DR WACO, TX 76707 254-752-1254 NEXT COURT DATE: -NO DATE AT THIS TIME THANK YOU, IDA ALCALA INDIGENT DEFENSE COORDINATOR / ( ,--------------------------- ' NO. 37458 STATE OF TEXAS § IN THE DISTRICT COURT.-·' -:.·;~. .... . . .... § ;.:::, ~.) . ~~::.:; vs. § 66th JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § fiLL COUNTY, TEXAS -- MOTION FOR CONTINUANCE -':?. ~- .,:..-~ \,•) if TO THE HONORABLE JUDGE OF SAID COURT: . Now comes Darrell Allen Curlee, Defendant, and files this Motion for Continuance of this cause from its present setting of February 25, 2013 and shows the following: 1. This motion is filed in accordance with Article 29.03 of the Texas Code of Criminal Procedure. 2. Counsel for Defendant is involved in a OWl with Child Passenger trial on February 25, 2013, State vs. Vicki Sanchez, cause number CR11916 in the 355th Judicial District Court of Hood County, Texas. This is the 41h trial setting of this case. 3. This motion is not made for purposes of delay but that justice may be done. WHEREFORE, PREMISES CONSIDERED, Defendant ptays that the Court enter its order continuing this cause until some future date, or, in the alternative, sets this motion for hearing. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at Law PO Box 306 Hillsboro, TX 76645 245-396-3219 254·582-5593 (facsimle) A CERTIFIED~OPY } ATIEST l_ -l .20.1.1. ANGELIAORR DISTRICT CLERK HILL COUNT TEX BY ·~ . ~. Terence A. Russell State Bar No. 17437070 Attorney for Darrell Allen Curlee VERIFICATION STATE OF TEXAS § § COUNTY OF HILL § ON THIS DAY personally appeared Terence A. Russell, who, after being placed under oath, stated the following: "My name is Terence A. Russell and I am the attorney of record for Darrell Allen Curlee and have been so at all material times relevant to this proceeding. "I have read the Motion for Continuance and every statement is within my personal .___1~4~ knowledge and is true and correct." Terence A. Russell Sworn to and subscribed before me on --=-:h~f.L""':r-t.u'=:--=-=-=~~;.r;::---'--(~-2<-J---'1......:3;;;__--:--::..--- ~~ NOTARY PUBLIC SUSAN M. RUSSEll UY COMMISSION EXP1AES January 21, Z015 This is to certify that on February 14 2013, a true and correct copy of the above and foregoing document was served on the District Attorney's Office, Hill County, 3rd Floor, Hill County Courthouse, by hand delivery. Terence A. Russell  • •• NO. 37458 STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 66th JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § HILL COUNTY, TEXAS NOTICE TO CLERK OF COURT: ~ This motion is to be considered .EX PARTE and Is filed for purposes of the record. Th~ motion is required to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT. MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE THE FOLLOWING IS WORK PRODUCT OF THE UNDERSIGNED ATTORNEY AND IS INTENDED FOR DISCLOSURE TO THE TRIAL COURT ONLY. TO THE HONORABLE JUDGE OF SAID COURT: Now comes Darrell Allen Curlee, Defendant in the above entitled and numbered case, by and through the undersigned counsel, and to proceed ex parte, in camera, and on a sealed record with regard to applications for expert fees, and moves this Court pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 3, 3a, 10, 13 and 19 ofthe Texas Constitution, and Article 26.05(d) of the Texas Code of Criminal Procedure, to appoint an expert in police procedures to assist in the evaluation, preparation, and presentation of a defense, and for good cause shows the following: Factual Matters which establish Need for Expert Assistance The charged offense of aggravated assault with a deadly weapon occurred at a time when Defendant is believed to be insane. Defendant has been a MHMR patient since 1993, diagnosed with schizophrenia. Defendant's recollection of events relevant to this charge contain hallucinations regarding the character of the actors and his involvement in the event. Need for Expert Assistance Defendant has timely filed his intent to assert his insanity defense. Without expert assistance, MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE Page I I evidence which will be the subject of expert opinion is critical to a determination of Darrell Lee Curlee's sanity at the time of the offense. 3. IfDarreU Lee Curlee is not provided with expert assistance, Darrell Lee Curlee will be deprived of due process, due course, and equal protection of the laws, the effeetive assistance of counsel, the right to confront witnesses, the right to a fair and impartial trial, the right to present evidence on behalf of the defense, and the right to explain or deny evidence presented against the defense in the punishment phase, in violation of the Sixth ruid Fourteenth Amendments to the United States Constitution and Article I, Sections 3, 3a, 10, 13 and 19 of the Texas Constitution. WHEREFORE, PREMISES (;ONSIDERED, Darrell Lee Curlee requests that this Court consider this motion and order that sufficient funds be provided to the Defense to have a competent psychiatric or psychological expert assist in the investigation, evaluation, preparation and presentation of the defense. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at Law P0Box306 · Hillsboro, Texas 76645 Tel: (254) 396-3219 Fax: (254) 582-5593 )ly., £Autle ~ Terence A. Russell State Bar No. 17437070 Attorney for Darrell Lee Curlee BEFORE ME, the undersigned authority, on this day personally appeared Terence A. Russell, who, after being duly sworn, stated upon oath that the foregoing was true and correct. / Sworn to and subscribed before me on 1-~ /3) 2 0 f-3 · NOfii~fl~ MOTION TO PROCEED EX PARTE AND MOTI N FOR APPOINTMENT OF EXPERT ASSISTANCE Page 3 ·~ NO. 37458 STATE OF TEXAS § IN THE DISTRICT COURT § ~ 1 ~ vs. § 66 JUDICIAL DISTRICT h § DARRELL ALLEN CURLEE § HILL COUNTY, TEXAS NOTICE TO CLERK OF COURT: -.. vJ This motion is to be considered EX PARTE and Is filed for purposes of the record. Tht? motion Is required to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT. MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE THE FOLLOWING IS WORK PRODUCT OF THE UNDERSIGNED ATTORNEY AND IS INTENDED FOR DISCLOSURE TO THE TRIAL COURT ONLY. TO THE HONORABLE JUDGE OF SAID COURT: Now comes Darrell Allen Curlee, Defendant in the above entitled and numbered case, by and through the undersigned counsel, and to proceed ex parte, in camera, and on a sealed record with regard to applications for expert fees, and moves this Court pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 3, 3a, I 0, 13 and 19 of the Texas Constitution, and Article 26. 05(d) of the Texas Code of Criminal Procedure, to appoint an expert in police procedures to assist in the evaluation, preparation, and presentation of a defense, and for good cause shows the following: Factual Matters which establish Need for Expert Assistance The charged offense of aggravated assault with a deadly weapon occurred at a time when Defendant is believed to be insane. Defendant has been a MHMR patient since 1993, diagnosed with schizophrenia. Defendant's recollection of events relevant to this charge contain hallucinations regarding the character of the actors and his involvement in the event. Need for Expert Assistance Defendant has timely filed his intent to assert his insanity defense. Without e~pert assistance, MOTION TO PROCEED EX PARTE ANO MOTION FOR AI'POINTMENT OF EXPERT ASSISTANCE Page I • f counsel cannot effectively present this defense to the jury and additionally is without the necessary knowledge to understand the nature of Defendants mental condition as far as mitigation evidence in the punishment phase of this case, provided he is found guilty. Legal Basis for Expert Assistance The United States Supreme Court held that an indigent defendant has a constitutional right to the assistance of a competent, independent expert. See Ake v. Oklahoml!, 4 70 U.S. 68 (1985). The purpose of this holding is to ensure that indigent defendants are given the same due process as . wealthier defendants, including, and perhaps especially, the right to the effective assistance of counsel. ld Appointing an expert whose purpose is to assist the court and whose findings are made public necessarily renders such an expert incapable of an undivided loyalty to the Defendant. Appointing any expert other than one whose findings are privileged and whose efforts and advice are rendered exclusively in the Defendant's best interests, is not an expert rendering assistance to Defendant or the defense, and therefore the due process requirements of Ake are not met. See Rey v. State, 897 S.W.2d 333 (Tex.Crim.App.l995). When an indigent accused makes a clear showing to the trial judge that an expert's assistance is essential to assist in his defense, the judge has a clear duty upon request to appoint an expert to assist. Application for Fees 1. In the past, Counsel has spoken with Dr. Steve Karten, a competent and qualified specialist in the field of forensic psychology or psychiatry. At the time, this expert charged $2,000.00 to review mental health records; conduct an interview; and perform a psychological and social history examination and evaluation, including but not limited to a determination whether the Defendant was insane at the time of the alleged offense; and possibly testify at trial. 2. The services of a psychologist are necessary to enabie Darrell Lee Curlee to prepare effectively for trial, present favorable evidence and to cross-examine the state's witnesses. The MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISTANCE Page:Z • i evidence which will be the subject of expert opinion is critical to a determination of Darrell Lee Curlee's sanity at the time of the offense. 3. lf Darrell Lee Curlee is not provided with expert assistance, Darrell Lee Curlee will be deprived of due process, due course, and equal protection of the laws, the effective assistance of counsel, the right to confront witnesses, the right to a fair and impartial trial, the right to present evidence on behalf of the defense, and the right to explain or deny evidence presented against the defense in the punishment phase, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 3, 3a. 10, 13 and 19 of the Texas Constitution. WHEREFORE, PREMISES CONSIDERED, Darrell Lee Curlee requests that this Court consider this motion and order that sufficient funds be provided to the Defense to have a competent psychiatric or psychological expert assist in the investigation, evaluation, preparation and presentation of the defense. Respectfully submitted, Terence A. (Tiger) Russell Attorney & Counselor at Law PO Box 306 Hillsboro, Texas 76645 Tel: (254) 396-3219 Fax: (254) 582-5593 Jauk~ Terence A. Russell State Bar No. 17437070 Attorney for Darrell Lee Curlee BEFORE ME, the undersigned authority, on this day personally appeared Terence A. . Russell, who, after being duly sworn, stated upon oath that the foregoing was true and correct. Sworn to and subscribed before me on 1- ~ I3 J 2 a /..3 . ti~s·"f\\ }"~ " . ...,.g,· m:.~- SUSAN M. RUSSEU MY COMMISSION EXPIRES January 21, 2015 NO~~fl~ MOTION TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF E~PERT ASSISl'ANCE PageJ , 1 I N0.37458 STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 66 1h JUDICIAL DISTRICT § DARRELL ALLEN CURLEE § IDLLCOUNTY, TEXAS ORDER On _ _ _ _ _ _ _ _ _ , 20 ll, came on to be considered Darrell Lee Curlee's Motion to Proceed Ex Parte and Motion for Appointment of Expert Assistance, and said motion is hereby (Granted) (Denied) JUDGE PRESIDING MOTlON TO PROCEED EX PARTE AND MOTION FOR APPOINTMENT OF EXPERT ASSISl"ANCE Page4 - - - - - - - - - - - - - - - · - - --- - - - ---------------~---------------------------------------------------------------- HILL COUNTY SHERIFF'S OFFICEL A W EN F 0 R CEMENT 06 MAR 2 TSG, INC. Inmate Incident History PAGE 1 ·-------------------------------------------------------------------------------- Jail Id: 55832 Name: CURLEE, DARRELL ALLEN 31, t+SC6 Race: W Sex: M DOB: 10/30/1946 SO #: 23860 DL#: TX-04173584 SS#: XXX-XX-XXXX Date Booked: 06/16/2012 Date ...... Time ... Location . . . . . . . . . . . . . . . . . . . . . . Reported By ..•.•............. 03/06/2013 10:11am F-8 · CAPT.· CASTRO Type: JI (JAIL INCIDENT) Victim: MEDICAL Witnesses: Rpt Officer: 240 (CASTRO, A (SGT)) Supervisor: 1000 (MICHAEL COX, SH::miFF} Narrative: ON 6/15/2012 SUBJECT CURLEE.DARRELL ALLEN WAS BOOKED INTO THE HILL COUNTY JAIL. SUBJECT •:JAS PLACED IN HOLDING AFTER HE WAS BOOKED INTO THE JAIL. AFTER SUBJECT WAS ARRAIGNED HE WAS ALOWED TO MAKE HIS PHONE CALLS AND WAS CLASSIFIED TO SEPERATION FOR MEDICAL REASON. SUBJECT HAD SEVERAL INJURIES TO HIS FACE FROM AN INCIDENT PRIOR TO HIS ARREST. ON 8-09-2012 AFTER SUBJECT HAD BEEN RELEASE FROM MEDICAL SUBJECTNAS RECLASSIFIED TO POPULATION IN B-1 DORM. ON 08-16-2012 INMATES IN B-1 ASK TO SPEAK WITH ME ABOUT INMATE CURLEE. INMATES STATED CURLEE WAS JUMPING UP OUT OF HIS SLEEP~ WOULD YELL OUT THAT SOMEONE WAS IN THE CELL TRYING TO GET TO HIM AND HURT HIM. INMATES STATED SUBJECT WOULD YELL IN THE DIRECTION OF THE SHOWER IN THE CELL AND MADE THE STATEMENT THERE WERE PERSONS COMING THRUOGH THE SHOW AND COMING FOR HIM. I ASKED CURLEE TO STEP OUT OF THE CELL AND SPEAK WITH ME ABOUT THIS MATTER. SUBJECT MADE THE STATEMENT HE COULDN'T BE IN THE CELL BECAUSE THERE WERE PEOPLE TRYIBG TO GET TO HIM. WHEN I ASKED CURLEE IF HE WAS TALKING ABOUT THE INMATE IN THE CELL WITH HIM CURLEE STATED NO. I~S THE ONES COMING OUT OF THE SHOWER I KNOW THEY ARE TRYING TO GET TO ME AND HURT ME. SUBJECT WAS THEN REMOVED FROM THE CELL AND PLACE IN SEPERATIQN FOR HIS SAFETY AND THE SAFETY OF THE OTHER INMATES. WHILE MAKING ROUNDS IN SEPERATION I CAPT.CASTRO AND OTHER FLOOR OFFICERS HAVE WITNESS CURLEE TALKING TO THE WALL IN HIS CELL OR IN THE DIRECTION OF HIS SHOWER. WHEN ASKED IF HE WAS DOING OK? CURLEE HAS MADE THE STATEMENT THESE PEOPLE ARE STILL AFTER ME AND BEGAN TO CURSE AT THE~.WALL OR IN THE DIRECTION OF THE SHOWER.END OF REPORT. \ ~ -----------~--------------------~-~-------------------------------------------- .: .. .i' l  -se~d Result flport :8 K!:UlCERa MFP 03toa.'2013 16:30 Firmware Version 2KS_2FOO.OOS.004 2010.04.13 (2KS_IOOO. 005.001) [21<5_1100 .001.002] [2KS~O. 005. 001] _,;wm.~m~~m:~m~~w:i\\:i:N'>> •'•:=• Job No. : 044342 Total Time: o•ot·ss· Page: 012 Complete Document: doc04434220130306162730 ,,. Cause No. 37,458 lHESTATE OF TEXAS )( IN THE 66TH DISTRICT vs )( COURT OF DARREU ALLEN CURLEE . )( HILL COUNTY, TEXAS JUQGMfNT OF COMM!IMENJi MENTAL INCOMPETENCE Date of Hearing: MAROI 6, 2013 Attorney for State: Nicole Cl'aln,Asslstant Dlstrld Attorney Attorney for Defendant: Terence A. R~ll Data af Birth: 10-~0..46 Raca:White TRN NO· , 14316336X A001and No. Date and Time Destination Times Type Result Resolut1on/ECH 001 03/06113 16:28 Jail 0"01"55"" FAX OK 200xl00 Normal/On ' >-t.a . . f:> f/'-"'- F[], . ~~ ~~~~ ~~ f i s;o. ~~ 0-1/\ [ QWGOX08415 ]  I Cause No. 37,458 THE STATE OF TEXAS )( IN THE 66TH DISTRICT vs }( COURT OF DARRELL ALLEN CURLEE )( HILL COUNTY, TEXAS JUDGMENT OF COMMITMENT: MENTAL INCOMPETENCE Date of Hearing: MARCH 6, 2013 Attorney for State: Nicole Crain,Assistant District Attorney Attorney for Defendant: Terence A. Russell ~ - ~: .--1:- 4, Date of Birth: 10-30-46 Race: White ; .b'j} ~ 2.i:""l TRN NO: 914316336X AOOl and a- r-o- '>'7;;Jr- "rt ,.:., A:l~ u c::=oo TRN NO: 914316336X A002 Allen Reg. No: N/A ~ ~(/) -;-1 T:' :-<=tJ Cause No: 37,458 Offense: Count One (1) Agg. Assault W/l:iJeaJJfi Weapon and Count Two (2) Agg. Assault Threat W/A Deadly Weapon With prior felonies alleged following each count. The Defendant was charged by indictment for the offenses shown above In the above numbered and entitled cause. The Court called the cause for trial on the issue of competency. The State appeared by her Assistant District Attorney. As charged above, Defendant was presented by counsel. In advance of the trial on the merits, it came to the attention of the Court that a suggestion had been raised by the Defendant's attorney that the Defendant is incompetent to stand trial. After an Inquiry, the Court found there Is some evidence that the Defendant may be Incompetent to stand trial, and the Court is not required to hold a jury hearing to determine Defendant's Incompetent to stand trial because 1) neither party requests a jury on the issue of competence: 2) neither party opposes a finding of incompetency; and 3) the Court does not find that a jury hearing is necessary to determine incompetency. A CERTIFIED COPY ATTEST j ·- "\ f ANGEUA ORR . - 20./.Q_ DISTRICT CLERK Hill COUNTY, TEX S BY . ' . The Court heard the evidence submitted by the parties with Defendant and Defendant's counsel present. The Court then rendered its verdict and enters same upon the minutes of the Court as follows: The Court FINDS the Defendant Is INCOMPETENT to stand trial on this date. The Court finds defendant unable to effectively communicate with counsel at present, per representation of defense counsel, as an officer of the Court. The Court FINDS the Defendant is a person with MENTAL ILLNESS and requires obser~ation and/or treatment in a mental health facility, for his own welfare and protection or for the protection of others. The Court FINDS the Defendant's conduct does involve an act, attempt, or threat of a violent offense as defined in TEX.CODE CRIM.PROC. Art.17.032(a), and the indictment does allege a deadly weapon under Section 3g(a){2), Article 42.12. Accordingly, pursuant to Chapter 468 of the Texas Code of Criminal procedure, the Court ORDERS Defendant committed to and confined at the appropriate catchment facility within the state mental health system or the North Texas State hospital, Vernon, Texas, or other Mental Facility operated by the State of Texas as appropriate. The Court further ORDERS the Sheriff of Hill County, Texas to take the Defendant to North Texas State hospital, Vernon, Texas or other facility, as appropriate. The Court ORDERS that the Defendant is to be held for a period not to exceed one hundred twenty (120) days. The Court ORDERS the Clerk of this Court to send a certified copy of this judgment and any of the following documents available to the Court during the competency hearing: 1. The report of each expert; 2. Psychiatric, psychological, or sodal work reports that relate to the mental condition of the Defendant, including Court's Exhibit "A"; 3. Documents provided by the attorney representing the State or the attorney representing the Defendant that relate to the Defendant's current or past mental condition; 4. Copies of the indictment or Information and any supporting documents used to establish probable cause in the case; S. The Defendant's criminal history record; and 6. The addresses of the attorney representing the State and the attorney representing the Defendant; and 7. The Court reporter's record herein.  ... .. A copy of this order is to be' delivered to the Sheriff of Hill County, Texas and that such documents above referenced accompany the Defendant to the North Texas State Hospital Vernon, Texas, or other facility as appropriate. IT IS ORDERED that DARRELL ALLEN CURLEE be remanded into the custody of the Sheriff of Hill County, Texas for lawful execution of this Judgment of commitment. Signed this the 6th day of March, 2013. F.B. (Bob) McGregor, Jr.,Judge Presiding  10-22-2014 1/6 2 54 582 7521 Jail 10/2112014 10:36 P.003J003 FiU:_G lD/~ OCT 2? Milt: t 2 !!NAL PRE..TRIAL CONFERENCE SUMMARY ~ CASE STATUS REAQINESS REPRESENTATIOri TO THE COURI CAUSE No.:J'/,4~~ s STATEOFTEXAS § IN THE "m DISTRicr ~~~ dar /~t •I COVRTOF' Hll.L COU'N'IY. T'£V,S pEFINSit lt.EJECJ;ION OF FINAL SET'l'LEMltNT Oli'Fitlg 'l'll.e l'roseeutol"tll\lllll Settlem.eD.t Otter of: fL:IkiJ- /)uJ.XZ.. '-r.;!J Cttarp 2:5 u0:z S.teute"' \,b_._t~C.C~~- Otber (Speelfy) . .. Is avaUable WltO the Flll.al Pre-Trial Coarertu.ee II eotteludecl J a~tderstlUlcl tkat 110 .etdemeat oUen T.;;~~~The ~db_,..~~ 'tj~ROSECVTORS CEllTlFICATION OF TkiAL READJNESi Tbe merit• o( the ease have bee11 thoroqhly l'C\'Iewed. Pntrlalsetftetllalt n9tlatlou lave beea •llsuceessflltal4 tbe we l1i ready for trial. t'\ ~ ('_ \.o(e:\~H!. ~~~ , ·I Tb PI'O$.Cator •nd De!easc Couuel het"eby •&ree to the fGIIowktf ltlpulatloae: J ----  J;yS'i CHIEF JUSTICE NATHAN l. HECHT • 'Otbe ~upreme QCourt of 'CEexa5 201 Westl4thStreCI PostOfficeBox 12248 AI.ISiinTX78711 Telephone:- 5121463·1 J 12 Facsimile: S121463-1365 CLERK BLAKE A. HAWTHORNE JUSTICES GENEFML COUNSEL PAUL W. GREEN NINA HESS HSU PHIL JOHNSON DON R. WILLETT ADMINISTRATIVE ASSISTANT EVA M. GUZMAN NADINE SCHNEIDER DEBRA H. LEHRMANN JEFFREYS. BOYD PUBLIC INFORMATION OFFICER JOHN P. DEVINE May 14,2015 OSLER McCARTHY JEFFREY V. BROWN Hon. Ralph T. Strother via regular and electronic mail 19'h District Court McLennan County Courthouse 501 Washington Ave., Suite 303 RECEIVED Waco, Texas 76701 MAY 1 4. 2015 RE: Case No. 10~15-00157-CR: In re Darrell Curlee COURT OF APPEALS WACO, TEXAS Dear Judge Strother: Pursuant to the request of the Honorable Tom Gray, Chief Justice of the Tenth Court of Appeals District, and to the authority vested in me by Texas Government Code § 74.003(h), you are hereby assigned to service as a Justice of the Tenth Court of Appeals, Waco, Texas, for adjudication of the above-referenced case. This assignment will continue for such period of time as may be necessary to complete consideration of this cause and to pass on any motions for rehearing. ·Sincerely, ~gp- Nathan L. Hecht Chief Justice cc: Hon. Tom Gray, Chief Justice, Tenth Court of Appeals via electronic mail Hon. Sharri Roessler, Clerk, Tenth Court of Appeals via electronic mail Ms. Nita Whitener, Deputy Clerk, Tenth Court of Appea(s via electronic mail Comptroller's Office, Judiciary Section via electronic mail A CERTIFIED COPY ATTEST E..-\ 1 . 20j;{_ ANGELIAORR DISTRICT CLERK HILL COUNTY. TEXA BY  TENTH COURT OF APPEALS Chief Justice McLennan County Courthouse Tom Gray 501 Washington Avenue, Rm. 415 Clerk Justices Waco, Texas 76701-1373 Sharri Roessler Rex D. Davis Phone: (254) 757-5200 Fax: (254) 757-2822 AI Scoggins May 15, 2015 Mark F. Pratt Terence A. Russell Hill County District Attorney Attorney at Law P.O. Box 400 1040 E. Elm St. Hillsboro, TX 76645 Hillsboro, TX 76645 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 10-15-00157-CR Trial Court Case Number: 37,458 STYLE: In re Darrell Curlee Enclosed is a copy of a letter from the Texas Supreme Court assigning the Honorable Ralph T. Strother to sit with Justice Davis and Justice Scoggins in the above referenced proceeding. Sincerely, SHARRI ROESSLER, CLERK By: GA/i:b,_W~ Nita Whitener, Deputy Clerk CC: Hon. A. Lee Harris (DELIVERED VIA E-MAIL) LT. Butch" Bradt (DELIVERED VIA E-MAIL) Lyle Vincent Gripp (DELIVERED VIA E-MAIL) A .~I;RTIFI~P COPY . ~ffi;§T -~ ~ '> ( .2oj£_ ~NGELIAORR C!ISTRICT CLERK lbl, OOUNTY, TEXAS  IN THE TENTH COURT OF APPEALS No. 10-15-00157-CR IN RE DARRELL CURLEE Original Proceeding MEMORANDUM OPINION Relator's petition for writs of mandamus and prohibition are denied. ALSCOGGINS Justice Before Justice Davis, Justice Scoggins, and Judge Strothert Petition denied Opinion delivered and filed June 11,2015 (OT06) 1Ralph T. Strother, Judge of the 19th District Court of McLennan County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Texas Government Code. See TEx. Gov'r ~~~~~~~~~-'LU.~  1·1Lt:: CUJJY 2015 Jm: 15 Mi IO: 32 I TENTH COURT OF APPEALS Chief Justice I McLennan County Courthouse Tom Gray 501 W ashirlgton A venue, Rm. 415 I Clerk Justices Waco, !Texas 76701-1373 Sharri Roessler Rex D. Davis Phone: (254) 757-5200· Fax: (254) 757-2822 AI Scoggins June 11,2015 Mark F. Pratt Terence A Russell Hill County District Attorney Attorney at Law P.O. Box400 1040 E. Elm St. Hillsboro, TX 76645 Hillsboro, TX 76645 * DELIVERED VIA E-MAIL * *DELIVERED VIA E-MAIL* RE: Court of Appeals Number: 10-15-00157-CR Trial Court Case Number: 37,~58 STYLE: In re Darrell Curlee The Court this day issued an opinion and judgment in the above referenced cause. TEx. R. APP. P. 48. Sincerely, SHARRI ROESSLER, CLERK CC: Hon. A Lee Harris (DELIVERED VjiA E-MAIL) L. T. Butch" Bradt (DELIVERED VIA I E-MAIL) Lyle Vincent Gripp (DELIVERED VIA E-MAIL) A cERTIFIED coP:; / j ATIEST ~ ,- .;> , 20Jr_ ANGELIAORR rex "oiSTRICT c4ERK .HILL COUNTY. BY .· .  ··-----·--·------ BE IT REMEMBERED: THAT at the term of the Honorable Court of Appeals for the Tenth District of the State of Texas, begun and holden at Waco on the 1st day ofJanuary, 2015, present Justices REX D. DAVIS and AL SCOGGINS and Judge RALPH STROTHER In the cause No. 10-15-00157-CR IN RE DARRELL CURLEE Original Proceeding the following Judgment was entered on the 11th day of June, 2015: "Came on to be heard the original Petition for Writ of Mandamus filed in this Court on May 5, 2015, by Relator Darrell Curlee, and the same having been considered, because it is the opinion of the Court that the Petition for Writ ofMandamus should be denied; it is therefore ordered, adjudged and decreed that the Petition for Writ of Mandamus be, and hereby is, denied. It is further ordered that the Relator Darrell Curlee, pay all costs in this behalf expended and incurred in this Court." I, SHARRI ROESSLER, Clerk ofthe Court of Appeals for the Tenth District ofTexas, at the City of Waco, hereby certify that the foregoing is a true copy of the Judgment entered herein by this Court in the above entitled and numbered cause as appears of record in Minute Book 13, Page 519. IN WITNESS WHEREOF, I hereunto set my hand and affix the seal of said Court at Waco, this 11th day of A.D. June 2015. Sharri Roessler, Clerk By: di:J::L w~ Nita Whitener, Deputy Clerk ··"  .- - .. ·-·- . --------------------- .... ... ~ .... ~-" ·c~) 'I -· CAUSE NO. -sJ ~58 THE STATE OF TEXAS VS. DARREL ALLEN CURLEE CHARGE: AGGRAVATED ASSAULT WITH A DEADLY WEAPON b~SAJJLLTHREALW!I!!A PEADIY WEArPN IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS: ·' THE GRAND JURY, for the County of Hill, State of Texas, duly selected, empaneled, sworn, charged and organized as such at the JULY/DECEMBER term, A.D., 2012 of the 66th Judicial District Court for said County, upon their oaths present in and to said court at said term that DARREL ALLEN CURLEE hereinafter styled Defendant. on or about the 15TH DAY OF JUNE 2012 and before the presentment of this indictment, in the County of Hill and State aforesaid, did then and there unlawfully, intentionally or knowingly or recklessly cause bodily injury to Christopher Jordan Wally by cutting him with a knife, and the defendant did use or exhibit a deadly weapon during the commission of the assault, to-wit: a knife, that in the manner of its use or intended use was capable of causing death or serious bodily injury. And it is further presented that ior to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on th 25th day of February 1983, in the District Court of San Miguel County, New Mexico inCa e No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name o Darrerll Allen Curlee, was duly and legally convicted in said last named Court of a felony, to it: Second Degree Murder upon an indictment then legally pending in said last named Court nd of which said Court had jurisdiction; and said conviction was a final conviction and was conviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commis ion of the primary offense.  ' • • And it is further presented that before the commission of the primary offense and after the 1 conviction in Cause No. 81-73-CR was final, the defendant, Darrel Allen Curlee, committed the felony of B glary and was convicted on the 9th day of May I989 in the Seventh Judicial District Court of an Juan County, Utah, in Cause No. 767. And it is further pre nted that on or about the 15m DAY OF JUNE 2012 in the County of Hill and State of Tex , the defendant, DARREL ALLEN CURLEE, did then and there intentionally or knowin ly threaten Jerry Wayne Vessells with imminent bodily injury by attempting to cut and/or b him with a knife and the defendant did use or exhibit a deadly weapon during the comm is ·on of the assault, to-wit: a knife, that in the manner of its use or intended use was capable of c using death or seriotis bodily injury. And it is further presented that p ·or to the commission of the primary offense by the said Darrel Allen Curlee, to-wit: on the 5th day of February 1983, in the District Court of San Miguel County, New Mexico in Cau e No. 81-73-CR on the docket of said Court, the said Darrel Allen Curlee, under the name o Darrell Allen Curlee, was duly and legally convicted in said last named Court of a felony, to- it: Second Degree Murder upon an indictment then legally pending in said last named Court d of which said Court had jurisdiction; and said conviction was a final conviction and was a onviction for an offense committed by him, the said Darrel Allen Curlee, prior to the commiss n of the primary offense. And it is further presented that before the com 'ssion of the primary offense and after the conviction in Cause No. 81-73-CR was final, the endant, Darrel Allen Curlee, committed the felony of Burglary and was convicted on the 9th day of May 1989 in the Seventh Judicial District Court of San Juan County, Utah, in Cause No. 767.  Certification of Defendant's Rigbt of Appeal No. :JJ 1'-\S! The State ofTexas In the \ \~ Court v. of Ci,.c- c~\ \ (~,\-!(~ ~ ~, ~ \ ~~--"-'--~'------County, Texas Defendant TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL• I, judge of the trial court, certify this criminal case: Dis not a plea-bargain ease, and the defendant has the right of appeal. [or l Di• a plea-bargain case, but matters were raised by written motion filed and ruled on before trial and not withdrawn or waived, and the defendant has the right of appeal. [or] Dis a plea-bargain case, but the trial eoun has given permission to appeal, and the defendant has the right of appeal. [or] " i ; ] i s a piea·barxain ca , nd the defendant his N 0 right of appeal. [or] I have received a copy of this cenification. I have also been infonned of my rights concerning any appeal of this criminal case, including any right tO file a prose petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admoni5hed that my attorney must mail a copy of the court of appeals's judgment and opinion to my last known address and that I have only 30 days in which to file a prose petition for discretionary review in the Coun of Criminal Appeals. TEX. R. APP. P. 68.2 I acknowledge that,!{[ wish to appeal chis case and if l am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any cb&nge in the addres5 at which I am currently living or any change in my current prison unit. I understand tbat, because of appellate deadlines, if I fail to timely inform my appeUate attorney of an change in my address, 1 may l the opportu · fil{;pro "/)tition for discretionary review. ~~~~A~.~ . e ndant e ndant's Counsel ~\-e.G~; q~ Mailing Address~~ \ Sta~e. Bar ofTexas ID numbe_r (')~ ~ O<:;::J(, Telephone number: MaJhng Address: \OO N"':' \j. +(\\ '-~- \\ \ ( 1 Fax number (if any): • u A defendant in a criminal case has the right of appeal under these rules. The trial coun shall enter a certification of the defendant's right to appeal in every case in which it enters a judgment of guilt or other appealable order. In a plea bargain case-· that is, a ca!IC in which a defendant's plea was guilty or nolo contend~:~r~:~ and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant·· a defendant may appeal only: (A) those matters that were raise:d by written motion filed &lid ruled on before trial, or (B) after getting the trial court's permission to appeal." TEXAS Ruu: Of APPELLATE PROCEOURF. 25.2(a){2)  STATEMENT OF FACTS FOR.c\1 TO: Q[RECTOR, BUREAU OF CLASSIFICATO:.I TEXAS DEPARTME~T OF CORRECTIONS BOX99 HUNTSVILLE, TEXAS FROM: NICOLE CR.AlN, PROSECUTfNG ATTOR.i'IEY HILL COUNTY, TEXAS Cause No.: 3¥£5: 00""-'~=-- 1. Statement of offense or offenses (including time, date, place, manner in vvhich committed, mitigating or aggravating circumstances). !~N~~J:~!'~~~n "tit~~ 2. 0:ame of co-defend ts, disposition of their cases .J. Name and addresses of injured party, value of property stolen or the amount of loss sustained by injured paftiJ. Was stolen property returned to owner without loss?~~~~ ?Ja~ 4. Other cases again -r det~ndant, dismissed or pending: Prosecuting Attorney Hill County, Texas  Incident Report #2012181816 HILL COUNTY SHERIFFS OFFICE SHERIFF JEFFREY T. LYON 406 HALL STREET HILLSBORO, TX TEL 254-582-5313 FAX. 254·582-3848 sheriff@co.hill.tx.us /Event Info Date Reported Time Reported J'_hne ·Pispatched · time Arttved Time Completed 06/15/2012 21:09 21:09 21:11 22:10 Addr. Of Occ. City' District Grid Shift 322 CR 3108 HILLSBORO H 8 How Reported Dispatch. Disposition 911 OR Synopsis ·· .. CALL TYPE: ASSAULT Dispatch Notes CURLEE IN CUSTODY 6/15/2012 9:14:02 PM HEMS ENR TO SCENE 6/15/2012 9:16:26 PM 109 HAS RECOVERED WEAPON, IS SECURED IN HIS VEHICLE FOR EVIDENCE 6/15/2012 9:30:31 PM Agency1 Event StatUs/Dis po E~tStatus/Dlsp Initial Investigator HCSO CLEARED ADULT 06/1512012 BARNES, HUNTER ARREST §ssificatlon ------------~----------~ Classification Info COMPLETED Class S.ubclass. ASSAULT AGGRAVATED ASSAULT, NONFAMIL Y, KNIFE/CUT INSTR EventMO Hate/Bias Motivation Domestic VIolence Premise Auto Weapon Indicator NONE N OTHER LOCATION N Type WeapJForce S1.4spectad Using KNIFE/CUTTING INSTRUMENT NOT APPLICABLE [ Arrested._P_e_rs_o_n_.& - - - - - - - - - - - - - - - · - - - - - - - - - -.. ---·--·--·--·-] Arrestee Information Name Type ~~me ARRESTEE CURLEE, DARREL ALLEN Address City Stat& DLNo OLStata 804 S. 3RD ST, LOT #6 GRANDVIEW lX 04173584 lX DOB ~EX RACE EO HT WT 10/30/1946 M WHITE NON-HISPANIC 600 200 HAIR EYES Incident Report • Page 116  GRY BLU Arrestee Details Charge Code Charge D~crl~ion Charge Dispo 22.02(A)(2) AGG ASSAULT W/DEADL Y WEAPON ARRESTED 22.02(A)(2) AGG ASSAULT W/DEADLY WEAPON ARRESTED Ref Date ArrTime Arrf3y ArrAgency Arrest Location 06/15/2012 10:00 BARNESH HCSO HCR 3108 AND HCR 3121 Type Arrest Anne,dWitf1 ON-VIEW ARREST LETHAL CUTTING INSTRUMENT [suap~cts . ·---------~­ --------------------------1 I suspect Information Name Type Name SUSPECT CURLEE, DARREL ALLEN Relationships ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT INSTR Address City State DLNo DLState 804 S. 3RD ST, LOT #6 GRANDVIEW 1X 04173584 1X DOB sex RACE EO HT WT 10/30/1946 M WHITE NON-HISPANIC 600 200 HAIR EYES GRY BLU Suspect Information Name. Type Name SUSPECT CURLEE, DARREL ALLEN Relationships \ ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT INSTR Addre$& City. State DLNo DL State 804 S. 3RD ST, LOT #6 GRANDVIEW lX 04173584 lX COB· s~ ~­ EO HT WT 10130/1946 M INHITE NON-HISPANIC 600 200 HAIR EYES GRY BLU ~i_m_s____________________________________ _____ j Victim Information Name Type Name VICTIM WALLY, CHRI~TOPHER JORDAN Relationships ASSAULT/AGGRAVATED ASSAULT, NONFAMIL Y, KNIFE/CUT INSTR Address City State Zip COB 164 REAGON RD WHITNEY lX 76692 03/13/1994 SEX- RACE EO HT WT HAIR Incident Report - Page 2/6  -------~------·· ' M WHITE NON-HISPANIC 604 185 BRN Res Phone (254)479-1296 Victim Details Type VIctim Aggravated Assault/Homicide Circumstances INDIVIDUAL OTHER CIRCUMSTANCES Type InJury APPARENT MINOR INJURY Victim Information Name Type ~arne VICTIM VESSELS, JERRY WAYNE Relationships ASSAULT/AGGRAVATED ASSAULT, NONFAMILY, KNIFE/CUT lNSTR Address City State Zip SSN 322 HCR 3108 HILLSBORO lX 76645 XXX-XX-XXXX MlsciDNo DLNo OLState 008 SEX RACE 7035 lX-16098630 lX 01/03/1977 M WHITE EO tfT WT HAIR EVES Res Phone NON-HISPANIC 600 170 BRO BRO 254-266-0133 Occupat,ron "ar(~J $jatus R.!lsld Status POB CONSTUCTION MARRIED RESIDENT UGOTE, TX Victim Details Type Victim Aggravated Assault/Homicide Circumstances INDIVIDUAL OTHER CIRCUMSTANCES Type Injury NONE ~_a_rt~y-·__________________________________________________,___________ RPTG PARTY Information NameTy.pe Name RPTG PARTY VESSELS, SHEILA Address City State Res Phone 322 CR 3108 HILLSBORO lX (254) 266-0487 IProperty ~ L _ .- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · - - - - - - - - - - _j EVIDENCE Date Reported Status Evidence Item No. Property Type Color 06/1512012 EVIDENCE IN 2012181816-1 WEAPON, NON BLK/ Sll CUSTODY FIREARM Brah.d Property Quantity EMIRIL 1 [~ehlcle l __ .I Record Type - IMPOUNDED Incident Repor1 - Page 3/6 ' ' Date Reported Status e UCPiateNo State Vehicle 10 No 06/16/2012 POLICE TOW 207XPM 1X 1G4HP54K214208555 Year Make Model Style Color 2001 BUIC 4-DOOR PC TAN/fAN Comments BIG DADDYS WRECKER SERVICE lr'~ JaJOra. - t_ ive --· - - - - - - - · - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - · . .1 I Written By: BARNES, HUNTER On 06/15/2012 at approximately 9:09P.M. SGT.Bames and Deputy Sanchez were dispatched to HCR 31 08 in reference to an Aggravated Assault. Dispatch stated that the suspect had possibly stabbed two victims with a knife, and that the suspect was in the roadway. Dispatch al.so stated that the suspect who was an older man was driving a Gold Buick passenger car. Dispatch stated that the caller advsied that the suspect was trying to get her 16 year old daughter. Deputies arrived on location and observed a Gold in color Buick four door passenger vehicle in parked with the driver side door that was open, and a white male who was later identified as Darrel Allen Curlee (W!M 10/30/46) sitting in the driver seat. SGT. Barnes observed that as he activated his overhead red and blue lights, the brake lamps carne on the vehicle. With the information that was provided from the caller and that it was unkown if Curlee was still armed, SGT. Barnes via his patrol units P.A. system was able to get Curlee out of the vehicle and on the grotmd where he was safely detained. Deputy Sanchez remained on location with Curlee who appeared to have an injury to his right eye until Hillsboro Fire and EMS arrived to treat Curlee who later refused transport. SGT. Barnes went back to the complainants residence located at 322 HCR 3108 and made contact with the caller who was identified as Shiela Vessels (W/F 0 l/28/77). Sheila stated that her 16 year old daughter Megan Vessels (W!F 06114196) was walking with some friends down the road, and that an older white male (later ID as Curlee) attemtped to get Megan and possibly try to rape her. Shiela stated that Megan called her and was crying as she was telling her what happened. SGT. Barnes asked Megan if Curlee ever touched her or grabbed her, she stated no he didn't, he only was making comments towards her and repeatedly kept saying "hey girl". Megan stated that the man (Curlee) then got out ofthe car and started towards h_er and attempted to grab her, at which point (Jordan) also known as Christopher Jordan Wally (W/M 03/13/94) stepped between her and Curlee and told him to quit. Megan stated that Curlee then pulled a knife out on Jordan, who in return hit Curlee and she took off running and called her mother. Mega~ stated that her dad was able to get the knife away from Curlee. SGT. Barnes then spoke with Christopher Jordan Wally (W/M 03/13/94) (victim #1) who stated that they were walking down the roadway throwing rocks and running, when they passed the Gold vehicle, they turned back around to head back home and that there was a man standing outside of the car at this point. Wally stated , at this point the man (Curlee) went after Megan and tried to grab her, in which he couldn't allow to happen so he attempted to stop him, when Curlee pulled a knife on him and said " you pussy's want some". Christopher stated that the man (Curlee) then cut him with the knife so he in self defense hit Curlee twice and pushed him to the ground at which point he left to go back to the house. SGT. Barnes observed a small minor cut on the left shoulder and left chest of Christopher where he advised Incident Report - Page 4/6  .. · that he was cut by Curlee. SGT. Barnes captured digital images of the injury. SGT. Barnes then spoke with Megan1s Father, who was identified as Jerry Vessels (W/M 01103/77) (victim#2). Jerry stated that Megan called his wife saying that there was a man that was trying to attack her -and was saying nasty things to her and Jordan. Jerry stated that Megan advised that Jordan Wally was trying to keep the man (Curlee) from getting Megan. Jerry stated that he then left his residence at 322 HCR 3108 and ran as fast as he could to stop things from getting worse. Jerry stated he got there and asked what was going on, and the man that was on the ground pulled a knife and came towards him trying to cut him. Jerry stated that he at this point did strike the man and was able to get the knife away from him and returned to his residence and waited on Deputies to arrive. SGT. Barnes took possession of one Black handle with metal blade knife and captured digital images. SGT. Barnes later secured the knife that was used in the offense into the evidence lockers at the Hill County Sheriffs Office. Hillsboro Fire and EMS checked all subjects involved in which all including Curlee advised they didn't want to be transported to the hospital. an Both Jerry Vessels and Christopher Jordan Wally were provided affidavit of complaining witness form in which they both showed the desire to prosecute Curlee for Agg. Assault with Deadly Weapon(knife). SGT. Barnes also obtained voluntary statements from Wally, Jerry Vessels, and Megan Vessels as to the events in which they happened. SGT. Barnes asked Curlee to provide his side of the story, at which point he stated he never had a knife, then said he did have a knife in which he did pull out but doesn't remember trying to stab anyone with it. Curlee stated that he thought he pulled the knife because he thought that the kids were going to hurt him. With the evidence that was gathered on location and witness statements gathered, it was determined that Curlee did then and there while being located in Hill County, Texas commit two seperate offenses against two seperate victims of Aggravated Assault with a Deadly Weapon. Curlee was hit by the victims in self defense to prevent Cudee from stabbing them. Curlee was then transported to the HCLEC without further incident [supplem~ntal Narrative ------~ Date.Written: Wrttten·.By: 06/16/2012 SANCHEZ, ALBERTO On 06-15-2012 at approximately 9:09pm I, Deputy Albert Sanchez along with Sgt.H.Barnes were dispatched to 322 HCR 3108 in reference to an Aggravated Assault. HCSO dispatch advised that a male subject had possibly stabbed two victims, advised that he was out by the roadway. Deputies observed a W/M later identified as one CURLEE, DARREL ALLEN (WIM 10-30-1946) sitting in his Gold Buick 4 door passenger vehicle bearing Texas LIP 207 -XPM just past HCR 3121 right before the Hill College Rodeo grounds. CURLEE was detained until the incident could be investigated. I observed CURLEE to have dried blood on Incident Report· Page 5/6  j ... 0 'his right eye and some on his body. CURLEE was not wearing a shirt, had jeans on and boots. CURLEE appeared to have an injury to his right eye. · CURLEE advised that he had stopped on HCR 3108 and was fixing himself a sandwich and was drinking water. He advised that before he knew it that he had been jumped by some people down the road. He advised that he did not know why he got jumped and assaulted. I remained on scene with CURLEE while Sgt.H.Bames went back to 322 HCR 3 I 08 to speak with the complainants and get written statements in reference to the incident. Paramedics arrived on scene and attended to CURLEE. He later refused transport to the hospital. Sgt.H.Bames was provided with written statements in reference to the assault by two separate victims. Sgt.H.Barnes placed CURLEE under arrest for aggravated assault with a deadly weapon times two. CURLEE was transported to HCSO jail where he was booked in. End of report. A.S. IGraphics IAttachment List Attacltment TIUe. eate Entel'&d Entered By · FileName 2012181816 CURLEE 06/1612012 BARNESH 2012181816lMPOUND SHEET CURLEE.POF 2012181816 CURLEE 06/1612012 BARNESH 20121818162012181816 CURLEE.PDF ICase Manag~ment _j ~.----~----~-------------------------------- Initial Investigator EventStatusJDispo Event Status/Dispo Date Report Status BARNES, HUNTER CLEARED ADULT ARREST 06/1512012 APPROVED Approved By Solvability PercE!otage BARNES, HUNTER 0.00% Incident Report - Page6/6  vs. Q ,, \. C'l c (S' ' \ c (\ . ~}...' \~'Z O£STRICl'COURTOF HILL COUNn'. TEXAS .. WAIVER OFTIUAL BY JURY AND OTHER MA1TE8S . Cameaowfttedefeada~~ ()o..(' (e_\\ c'-'- ( \0 -£ ,OQ I l "?:1\ .~o \~ the above styled and a umbered cause 1a opea. Court a ad before havi~gpled to the indidatent herdu., ann.ouoces Ia. that deCeadant will piad guilty to said charge a ad herebyreque$ts the coasen.t aCJ,d approval o(the Caul-t a ad or ~ actoraey for dle State that defendant may mive the right to trial by jury herein and 'd~ upon the co nseot or 1 the Coun aud State s A«orueyy waive trial by Jury and eater hlslher plea of guilty; and defendant aad hlslher auoraey waive the 10 day waltlag period for trial aftet appointment of counsel; u11der Article l1.1B Ca the dd'eudaa.t aad the aUorney l"epr'e$elltlng the state ao.d the attorney representing the defeadaat file this their writtea. coueat tO the use or d.Gsed clrcutt video taecoafecucla.g, iC applkabfe, aad stipulate aUprerequ lsltes o( !r::rr;~ Defeudaot .~ AUomey for lh.e Defeadant . · Befoce file sald de!eadaac a.tea hlsJher- plea hereln, the .above m.atten aa.d requeSts o( tbe defend.aat herei11. are her6Jy coaseated to; and approved by me. the .attorney r-epresea.tln~e State herein.. \(\l~. ~ D~iney, Hili County, Texas Th~ aboveud foreg<~iag applicatioa oft.&.ede~daat and approval of the districtat~y h~ having dul co by the Cocut and It appeario.g to the court that the defe~daa.t is hereia charged witb a -"--.-.~=:oo~"--.;....,~---.J that the defeodant is repceseuted by eoullSel, and that ~c attorney ela hu given the coa.seet and approval to same, that deCeudant aad his attorney have period Cor erial after appolatmea.t o( counsel, eCore consent aod approval o( the aad aU ot.&.cc .utters aa appUcabl re •P·Dr!CWC.O: AGREEMENT TO STIPULATE TESTlMONY Said defendant, defendant's counsel, and the State's Attorney do hereby eater into aa. agreement that the deCendaat waives the appear-a nee, coafron.tation, and cross es:aminatlon o( witnesses i.o. the above entitted and nurub«ed cause and agrees that tb.e testiro.ony oC said ~tnes:ses. may be stipulated into the record by the State's Attorney, such testimony being the same as testifying under cath :~utd the defendant farther consents to the iD.troductloll or testlmoay by affidavit, written statements or witnesses, :and all other documcn.t.ary evidence tha( may be introduced by the Stale, snd w.aiV'es the filing o .alhucb. testimony~ affidaV'its and statements alllong th~ ~CkP~ EFENDANT . 0 BY  e Cause No. ~'1. ,'-\~~ THE STATE OF TEXAS § vs. § Oc, r \5L_ \ \ chl-, \~~ § HILL COUNTY, TEXAS WAIVER OF TX C.C.P., ART. 39.14 ADDITIONAL DISCLOSURES, Comes now the defendant and hereby waives any additional right to inspection or copying of discoverable items in the State's possession as pennitted by Texas Code of Criminal Procedure article 39.14, other than to the State's continuing duty under article 39.14(k), as well as under the United States and Texas Constitutions, to provide exculpatory, impeachment. or. mitigation evidence tending to negate the defendant's guilt or tending to reduce his punishment for the charged offense. My attorney has fully and completely explained to me my right to further discovery pursuant to article 39.14, and I understand that right. I am freely, knowingly, and voluntarily waiving that right after my attorney has fully infonned me of the consequences oftbis waiver. I am waiving the right to additional discovery in order to accept the State's recommended punishment. I am choosing to agree to the State's recommendation of my own volition because l believe it is in my best interests to accept the agreement after receiving the full advice of counsel and explanation of ?I' righ~ n 1,1.aAJ.Yf!.C~ efendant 1.h\ Date \ll Defense A orne (print) ~ Date This document was executed by the defendant, defendant's attorney, and then fl.}ed with the papers of the case. The defendant came before me and I approved the above waiver along with the defendant's plea of guilty or no contest. After I admonished the defendant of the consequences of his waiver, I ascertained that defendant entered it knowingly and voluntarily after discussing it with defendant's attorney. It appears that the defendant is mentally competent to waive any additional discovery, and is doing so freely and voluntarily. 1 find that the defendant's attorney adequately informed defendant of his article 39.14 ri ts a the effects of this waiver. Signed this __j_ day of , ·LA/ )~  STATE OF TEXAS § IN THE 66TH DISTRICI' vs. § COURT OF Do- \ '{>___ \ \ C.v- (' \£_~ § BILL COUNTY, TEXAS WAIVER OF PRE-SENTENCE INVESTIGATION Now comes Q G ( c.o \\ G 5 r l1-E.'R , Defendant and waives a pre- sentence lnvesdgadon in the above captioned cause, Code of Criminal Procedure 42.12, Section 9. Signed this_ day o( · 20_. ~~A.~ Defendant \ A CERTIFIErOP~ ATTEST . ,. I .20_}_;f_ ANGELIAORR DISTRICT CLERK f'\1illl COUNTY. TEXAS BY I \. ·' ' SI'ATE OF TEXAS § lN mE 66nl JUDICIAL vs. J DISTRICT COURT OF ~\<;"(2 \\ § HILL COUNTY, TEXAS CQURT'S APMQmSHftiENJ' TO DEf'ENDANT 11ae Co11rt, prior tG acceptlaj the ~e IWDtCl Defcadaat'r plea Ia. this cause. admocablaes uicf Def'eaclaat, . . \_ . (l) ~ raJIIt . or paltlaaeat .. · for tile otreaH of A ~ A~S:;,._ u_ \-J. U ) '"" \\ o..do~\, l'Jitf3tt,?3bX Ao(()f 02.}173.50 COMES NOW Defendant, Counsel for Defendant, and Counsel for the State of Texas herein, and would show that the following plea bargain agreement has been entered into be~Neen the undersigned: Defendant will plead: t-- GUlL TY __ NOLO CONTENDERE __ TRUE _2( Imprisonment in the Texas Dept. of Criminal Justice -Institutional Division for Confinement in State Jail for months. Uyears. _Punishment under 12.44 (a) Tex. Penal Code _ Offense under 12.44 (b) Tex. Penal Code Confinement in County Jail for __ days. (o as a condition of community supervision) Fine ~f $ · No Community Supervision to be granted. · * c. c- 3} (Q. oo Deferred adjudication and community supervision. Community Supervision to be granted for _ _ years, subject to all the terms and conditions imposed by tne trial court. Further, the judge may at any time during the period of community supervision alter or modify tile conditions. Restitution of$ Payable to: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Address:----------------- The parties request the additional offense{s) of _ _ _ _ _ in Cause No.(s)_ _ _ _ _ _ _ __ be pled in bar under 12.45 of the Tex. Penal Code. Additional provisions: Defendant will pay court costs, including indigent health, restitution, attorney fees and processing fees as ordered by the Court. Defendant waives right to appeal and to file motion for new trial or in arrest of judgment; and, if community supervision {probation) is granted, such standard and other terms of supervision as may be set by or at the direction of the court, and· Defendant waives any right to early release from communit'J supervision and to time credits under Texas Code of Criminal Procedure Art. 42.12 sec. 20 and 20A, except by written agreement of the State of Texas }JL/--317~> ~ The ~ndersigned certify that they have read the terms of the above agreement and state that it fully contains all of the provisions of said agreement. Defendant BY  & CRIMINAL DOCKET Case#: 37,458 r"\ iJJ ::;o Style of Case Attorneys Offense ,. Date of Filing i! State Of Texas DAN V DENT State AGGRAVATED ASSAULT W/ A J] vs. z /I ,,~ DEADLY WEAPON I Mo. I Day 1 Year AGGASSAULTTHREAT-WITHA I 8 I 241 2012 DARREL ALLEN CURLEE '< !=7-~ DEADL\' WEAPON Date of Orders 1 • ORDERSOFCOURT Process tP1I2'Tirz.l ki4 J- ~~~ 1~1~ z..e..= ·H'~ lZ7 c{J.r_ 0"-'Lf ~/ 114 -~ ,__ rr.~(/ .q-- ~ • tJ ~~ .~ ~ L-.z:., . '2.7/ .dVM/~- . !'./,!";> L,r/' lj h-:7: u ~ 4.,.?'~---h :?J~ ~ 1.-"'- 0-L..< d q 13t:j],lJ P'7 ~ ;n ·t Jr7. rf. FP7 G 11- L3 -fl. 'J 7 "/-'iY-' 7.,-=-----, ..,17_ z.t,>l ~ ?tt.-t.~~~-6 .~ ltA-:;;;Lko. ~ 9---1<-~~~-~&----- /J.,L;yJ 'ivfJ~-6u:-f-~e:.-#-~ ~- 1£.. ~ I ~~~#~~~;;r~~ II~~L-:~.:~~~:t=. ~~:;.;.;. ~~--'j ~ {(;4.-i~ .~.:~~~a#~·-!.~.~~~&~ IJM JJ/A. ~~. //1A;__/);J)A- a_;_____)_] ~ ~~LL!f6 {)' ~JhUIAJ ....... ~(~__A,)_p~ ? , y __, .....,-~~/?50:rx::ae..-k 1 . . . "' , : . ., V' '1" ---;!flf:::f(&C~'_t-:!:::7~~ ~/. I r I L . _ ~1 ~pE[r~~- ~-~~==~;3:>?;;--·'='-~-/------~-1----- ~ ~~ - --J ~, State of Texas VS. No 37,458 ..__ ·"'!!1 Page Number: _ _ __ DARREL ALLEN CURLEE Date of Orders ORDERS OF COURT i.,.., _,-- ·:S I ·' .... _...f·:r-" "' ,·,.., T . ..-- ..P. A· ·i' ' . _.._, .· I .l ... :. !J·'-' ..t......... ~ I2.4 II? I ar 1h3!1.(4b 'l:n:u6A -1131 11lf State by Dlslrict Anomey. Defendant in person and . . . . --..---t 12~ 'M_ __.._ ten (10) day waiting A-~-- .... ~ rifoonation. _Pled _ l~ .. ' IWI'7 ~··-···"'·-~·~ ..... ·~~ ....··-.... ·~·· .. • • • • • period _amL1r~~u:g of IX u I rt . • ·? ·""' ,.,, IU'J• __ _ ./7.. ~~~ft o_ \Y advised of provisions Article 44.02 an~ 2u. 13, ~ ou.. ~:-- .Ii ...~-~ Section A~Ode of-Crimal Procedure E:v:rlence ho..._,,-.-1 ~""' r\.ofnnt"''!llnt f,ltnA nrtiltu r l~f~ .,I·. -u--- A-M. ---£~ ~-:,....,t; Mv:sed of right to appeaL Punishment as~essed at 7 (p ~./ \t" (/!<;...- • /l ~ .!J Y.A. 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"--·--\ I; i~ -----~~-~-----~---· . ·-.. .___... _____ - ·~- ...... -~---·------------ .. ------·-----.. . .. ---~ -------·--*·~-- ~~------------ . . . .------··- .. --·~---~- ----~- ~-----~~--- ------~-- .... !i ~---~~---~-~------·;;-·---------~-- ----- !; . i: I' - ............. _______ . _____"__......--= ....- ----------- -··· ... , ........ ------------------ .............. .. ........... -------- ______ ...._.. -............. - .... --- ......... ··-----------~---------------·..·-r~-------------------- .. i: !. ----~---- . . . . . . . . ______ ~ -~ ---~-------- ·- ·----------·----------·--· ··~-~------ -···~- ···-~ .....~~-~·-·-····-···-· ·-· ·-···-···-------· --- ···--.. ····- . . ·-- ... ... ~- ----...---.~·---·---·--·-···._··~--·--··--·-. rr . ---·-n-·----··-·-- .. t: _____. _____________________________. ________________________________ ----------------------------------------~-~---------------------------------·-·-rr·--------------------- l; ··---· . - -----------------------~-- . ------------------------------------------------------------ --------------------------------------------·-n··--------------- - =~~~~~--~~-=~~=~=~=-=~=~=~~~-~~:=~--==:~==~.~~-~---~-=~~-~--~~~==~~--~~~=[[=~--~~~--~-·:· I: ____________. ______________________________________________________________lL____________ _ i; I I I' ---- ~p-~~-------~-~----- . ·---.. -----------------------·---------·-----~--·--·---------~ \ ... .. ---··-·~·-k~·-··---------· ---·-rr-·~ I ' ,; . . .---·-·--·- \} ................._ ..... ~----------------- ·~--- ..... ---·-- ----------------------------------"·"·-----··-·--·-·---------·-·--------------·+j-·---------·------ '' . . . · - - ••, •-•··•-- ,_ ~~--..-~---.~·-- ••• , ~ ... •" ,,• ., •-• "• · · - - --·•••••~~~ - - - • -·~ •••·- <•-·•"- • • • ,. •·~-•- •---•~--~· ~~--- • ~- ••.w---•- .. ·--• ·-·--••.. •·-··~·......--•-·•' -~-·••·-~ __ _,_..,.._... •• •~•·•w~.-,....._- .• ~~-*"-• .. •-'~•·---••.,--,,....__ ____ • • EXHIBIT C  CAUSE NO 37;458 STATE OF TEXAS § 66TH DISTRICT COURT VS § HILL COUNTY, TEXAS DARRELL CURLEE § ORDER APPOINTING ATTORNEY On the 27TH day of february, 2015, the Court determined that additional counsel was needed in the above reference case. Therefore, it is ORDERED that Lyle Gripp be appointed as additional counsel and designated as lead counsel in the above cause. · This defendant has been charged with: AGO ASSAULT W /DEADLY WEAPON X 2 COUNTS ATTORNEY CONTACT INFO: 100 N. 6TH STE. 703 WACO, TEXAS 76701 254-756-1112 NEXT HEARING DATE: JURY TRIALA-p·ri/. 13, ClOr5 ~Cf~ Signed this 27TH day of February, 2015 IZJDefendant is in the Hill County Jail D Defendant is not in the Hill County Jail and can be reached as follows: CC: ATTORNEY VIA FAX TERRENCE RUSSELL VIA FAX DEFENDANT VIA 0 US MAIL [g) JAIL MAIL EXHIBIT D  - - - - - - · - - ---- --· -·-· -- -. I ( I· ·'· . - :' . ',.. t I I •\ NO. 37228 ?. . '· ···' .... '· . .. ~ STATE OF TEXAS . INTHE66THJuDICIAL . vs. '' ' -·•• ·••' '••••• •••••u .. ••-•··••-••·• ••·-,, i DISTRICT COURT ~-~ - • • ' ' •••• ' • • •'• ' • • - ' '•' ''•'' ··--····-···-·-·-. .. ... -.... ·-·-· ······· • JAMES RYDER . L.I:I!L~ c.:c;nr~:r.y, 'I'~XA.~ MOTION FOR NEW TRIAL TO THE HONORABLE JUDGE OF SAID COURT: Under Texas Rules of Appellate Procedure 21 and 22, Defendant, James Ryder, files this Motion/or New Trial: 1. Defendant was sentenced on August 28, 2014. This Motion for New Trial, filed within the thirty-day timetable following sentencing is therefore timely. A hearing must be commenced before the 75th day after sentencing, or this motion is overruled by operation of law. 2. The verdict in this cause is contrary to the law and the evidence. See Tex. Rule App. Proc. 21.3. 3. The trial court has the discretion to grant a new trial in the interests of justice, as courts have emphasized in Mullins v. State, 37 Tex. 337, 339-340 (1873) and State v. Gonzalez, 855 S. W.2d 692 (Tex. Crim. App. 1993). 4. Trial counsel was ineffective in the course of this trial by failing to subpoena a necessary expert witness, Dr. Jonathan Trent Terrell.. See Affidavit of Terrence Russell. 5. When this witness did not appear, the Court denied trial counsel's motion for continuance to secure the expert witness's presence. See Affidavit of Terrence Russell. 6. 'Dr. Terrell is an expert in cognitive psychology, including memocy formation and . retrieval, as well as eyewitness testimony. See Exhibit B of Affidavit of Terrence •. Russell, Exhibit A of Declaration Under Penalties of Perjury of Dr. Jonathan Trent c Terrell. 7. Had Dr. Terrell been properly subpoenaed, he would have testified that the memory, especially in young children, is often inaccurate and is shaded by suggestion and therefore, often unreliable. See Affidavit of Terrence Russell, Declaration Under Penalties ofPerjwy of Dr. Jonathan Trent Terrell. 8. Dr. Terrell would have also testified about the phenomena known as "childhood amnesia," which is present in varying degrees in all persons. See Affidavit ofTerrence Russell, Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell. 9. Dr. Terrell would have presented valuable testimony, which was material to the Defendant's case. See Affidavit of Terrence Russell and Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell. 10. Had trial counsel secured the expert witness's presence through subpoena, the outcome of the trial would likely have been different. See Affidavit of Terrence Russell and Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell. 11. Trial counsel was ineffective in the course of this trial by failing to seek appointment of an expert, despite the Defendant's indigent status. See Declarations Under Penalties of Perjury of Dr. Jonathan Trent Terrell and Larenda Nichole Watk1ns. 12. Defendant would ask the Court to take judicial notice of the Court's file, particularly the lack of an Ake motion seeking expert assistance for an indigent defendant. 13. Trial Counsel required Defendant to pay an expert fee of $1500.00, despite the fact that Defendant was indigent. See Declaration ofLarenda Nichole Watkins. . \ 14; Trial Counsel paid Dr. Jonathan Trent Terrell, by check, a total of$1000.00-c---the amount agreed upon for Dr. Terrell's expert opinion an,d testimony. See Declaration of ( . Dr. Jonathan Trent Terrell. 15. After the trial was over, Dr. Terrell returned Mr. Russell's check to him, un- cashed. See Declaration of Dr. Jonathan Trent Terrell. 16. Mr. Russell refunded, to Larenda Nichole Watkins, $1000.00 ofthe $1500.00 paid for Dr. Terrell's assistance. See Declaration ofLarenda Nichole Watkins. 17. Mr. Russell has not refunded, and has failed to account for, the remaining $500.00 paid by the Defendant for Dr. Terrell's expert services. See Declaration ofLarenda Nichole Watkins. 18. The Affidavit of Material Fact of Terrence Russell, Defendant's Trial Counsel, is attached and Defendant incorporates it, in full, into this motion. 19. The Declaration Under Penalties of Perjury ofLarenda Nichole Watkins is attached and Defendant incorporates it, in full, into this motion. 20. ' The Declaration Under Penalties of Perjury of Dr. Jonathan Trent Terrell is attached and Defendant incorporates it, in full, into this motion. 21. For the foregoing reasons, and for such other reasons that may arise on the hearing of this Motion, Defendant requests a new trial. Defendant prays that the Court set aside the judgment of conviction entered in this cause and order a new trial on the merits. Respectfully submitted, The Law Office of Kristin R. BroWn, PLLC .. 1701 North Market St., Suite 402 Dallas, Texas 75202 Tel: 214-446-3909 Fax: 214-481-4868 Email: kbrown@ide.fenddfw.com /SiKri~ By: _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Kristin R. Brown State Bar No. 24081458 Attorney for James Duval Ryder Certificate ofPresentment I certify that a true and correct copy of this document will be hand-delivered to the court through the Clerk on the same day this document is received by the clerk. Is/ Kristin R. Brown Kristin R. Brown Certificate of Service This certifies that on _ _ _ _ _, a true and correct copy of this document was served on - - - - - - - - - - of the Hill County District Attorney, Appellate Division, PO Box 400, Hillsboro, Texas 76645-0400, phone (254) 582-4070, fax (254) 582-4036, by email to lsi Kristin R. Brown Kristin R. Brown  'I .· i. Order for a Setting on this Motion On ------------------------- - - - - - " the Defendant flied a Motion for New TriaL The Court fmds that the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED that a hearing on this motion is set f o r - - - - - - - - - - Signed on---------------------- JUDGE PRESIDING \ '· NO. 37,228 STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 66 1h JUDICIAL DISTRICT § .lAMES DUVAL RYDER § HILL COUNTY, TEXAS AFFIDAVIT OF MATERIAL FACT STATE OF TEXAS § § COUNTY OF HILL § r On September II, 2014, Terence A. Russell appeared before the undersigned notary public and made the following affidavit: "1, Terence A. Russell, was trial counsel for the above referenced Defendant in a trial beginning on August 25, 2014. In anticipation of such trial, I had, on July 22, 2014 contacted an expert on memory and memory development to assist me in defending against ou!cries from a young ' girl who was almost an infant at the time of the supposed events described in such outcries. "On August 20, 2014, arrangements were made with Dr. Trent Terrell, Psychology Chair at Mary Hardin Baylor (CV attached as Exhibit 'A') to appear and testify on Defendant's behalf. Dr. Terrell sent to me a copy of the proposed direct examination he felt would be appropriate in this case, a copy of such is attached hereto as Exhibit 'B.' "In an email received on the morning of August 25, 2014 (a copy ofwhich is attached as Exhibit 'C'), Dr. Terrell had said that Wednesday would be the only day open for him to come to Hillsboro to testify. Prior to the beginning of voir dire, in chambers, trial scheduling was discussed. The court determined that Dr. Terrell's testimony would not be needed until Wednesday. "In an email on the morning of August 26, 2014 (a copy of which is attached as Exhibit 'D'), I advised Dr. Terrell that his testimony would not be needed until the following day, Wednesday. AFFIDAVIT OF MA H.: RIAL FACr • T~rtnce A. Russell  't '' ,, "During that day, an email exchange took place wherein Dr. Terrell advised that he woould be free the whole next day and wanted to know what time he be testifYing; I responded that he should be present at 12:30 p.m. (email attached as Exhibit 'E') "At some point during August 26, 2014, my emails to Dr. Terrell did not all go through (see attached Exhibit 'F' and compare to Exhibit 'G'). "Desperately, I began, during every break in the trial, attempts to contact Dr. Terrell via email to an alternate address, texting and calling his cell phone, calling his mother's cell phone, and finally, during the lunch hour, spoke with Dr. Terrell who stated that he would be unable to appear given such late notice ofthe time of his testimony. "1 had no strategy in not having Dr. Terrell present. I was of the belief that continued communication by email was the most suitable form, _but believe I failed to provide effective awssistance of counsel in not subpoenaing Dr. Terrell or otherwise use a form of communication that would have ensured that this most essential witness would have appeared to testify on behalf of Defendant. "I feel that the testimony of Dr. Terrell was material to the defense. Prior to closing of testimony, I made an oral motion for continuance to allow for the time necessary to secure the presence of Dr. Terrell, which was denied by the Court. "Further Affiant sayeth not." Sworn to and subscribed before me on --'~=·==---:.·><'--~-----/_f-L...1_'2_-0_/--J.f___ ~;J1,~ NOTARY PUBLlC i\fFIIM. VlT OF 1\-IATERI.-\L FACT- TerMce A. R11ssell --:--~-------- --- -- 'l .. Jonathan Trent Terrell, Ph.D. University of Mary Hardin-Baylor Assistant Professor and Chairperson, Department of Psychology 900 College Street Belton, TX 765 13 254-295-4630 806-570-6849 (cell) tterrell@umhb.edu EDUCATION Bachelor of Arts in Psychology, Baylor University, May 2003 Master of Arts in Neuroscience, Baylor University, August 2005 Doctor of Philosophy in Experimental Psychology, Baylor University, May 2008 Specialization: Cognitive Psychology, Eyewitness Memory Academic Mentor: Charles A. Weaver, III COURSES TAUGHT General Psychology Psychological Methods Experimental Psychology Developmental Psychology Cognition Neurophysiological Psychology Psychology and Film freshman Seminar PROFESSIONAL AFFILIATIONS Association for Psychological Science American Association for the Advancement of Science Psychonornic Society-Associate Annadillo {Association for Research in Memory, Attention, Decision making, Intelligence, Language, Learning, and Organization) CONFERENCES ATTENDED Annual Meeting ofthe Psychonomic Society: 2006,2007,2009, 2010, 2011 Annadillo: 2006,2007 Texas A&M Annual Assessment Conference: 2010, 2011  ,. .. 'I ,, . 4. fl ... CONSlJLTING WORK I have consulted and testified in many criminal cases as an expert on eyewitness memory. My testimony addresses the basic processes of memory formation and retrieval, as 'well as estimator variables (such as event duration, stress, weapon focus, witness intoxication) and system variables (such as lineup construction, instructions given to witnesses, etc). COM!\'fiTTEE WORK Academic Institutional Quality Committee Student Success Team Committee Online Education Task Force Strategic Planning Stewardship Committee Chair-Student Scholars Day and Research Symposium Planning Committee, 2010-2011 UMHB Quality Enhancement Project Planning Team I PUBLICATIONS, PRESENTATIONS & AWARDS Weaver, C. A III & Terrell~ T. (2004). Laboratory in cognitive psychology:, Student Manual. Published by Baylor University. Weaver, C. A. III, Terrell, T., & Krug, K. S. (2004). Evaluating the reliability of witness memories in product identification cases. In Andrews Publications' Asbestos Litigation 2004 (Section 19, pp. 1-18). New Orleans, LA: Thompson-West. Weaver, C. A Ill, Terrell, T. & Krug, K. (2004, April). Remembrance of thing past: Evaluating the reliability of witness memories in product identification cases. Andrews Publications' Asbestos Litigation 2004 Conference: New Orleans. Weaver, C. A III. & Terrell, J. T . (2005, May). Eyewitness memory and product identification? Harris Martin Publications Asbestos Litigation Conference: The Increasing Prominence of Equipment, Gasket and Friction Defendants. Las Vegas. Weaver, C. A. III, Terrell, J. T., Krug, K.; & Kelemen, W. L. (2005, November). The delayed JOL effect with very long delays: Evidence from Flashbulb Memories. Paper presented at Memory and Metamemory: Papers in Honor of Thomas 0. Nelson, Toronto. Terrell, T. J., & Weaver, C. A, III (2005, November). The effects of misinformation on eyewitness memory and product identification. Paper presented at the 45th annual meeting of the Psychonornic Society, Toronto. Terrell, J. T. (2006, February). The effects of misinformation on eyewitness memory and product identification. Invited address. Baylor University Interdisciplinary I 'I .. l • • Scholarship Forum. I• Terrell, J. T. (2006, May). Winner, Outstanding Graduate Research, Baylor University Interdisciplinary Scholarship Forum. Weaver, C. A. III., Terrell, J. T., & Holmes, A. E. (2006, October). Evaluating the reliability of eyewitness memory in product identification cases, Asbestos Litigation in the 21st Century. New Orleans: American Law Institute/American Bar Association. Terrell, J. T. (2006, October). Creating new memories, destroying old ones: Refreshing recollections ofeyewitnesses. Invited address. Baylor University Nu Rho Psi Society. Terrell, J. T., & Weaver, C. A. III. (2006, October). Eyewitness memory in civil cases: Photo refreshing, suggestion, and product identification. Poster presented at the 16th annual Southwest Conference on Cognition, Texas Tech University: Lubbock. Terrell, J. T., & Weaver, C. A., III. (2006, November). "Refreshing recollection" of eyewitnesses: Memory retrieval or memory creation? Poster presented at the 47th annual meeting of the Psychonomic Society, Houston. Weaver, C. A., III, & Terrell, J. T. (2007, October). Remembering bad things, not bad guys: Eyewitness memory in product liability cases. Paper presented at the 17th annual Southwest Conference on Cognition. Trinity University: San Antonio. Terrell, J. T. (2007, October). Eyewitness memory and product identification: Suggestibility andfalse memory creation. Poster presented at the 17th annual Southwest Conference on Cognition. Trinity University: San Antonio. Terrell, J. T., & Weaver, C. A., III. (2007, November). Remembering products; not faces: "Refreshing recollection" of eyewitnesses in product liability situations. Paper of presented at the 48th annual meeting the Psychonomic Society, Long Beach. Weaver, C. A III, Terrell, J. T., Krug, K. S., & Kelemen, W. L. (2008, May). The Delayed JOL Effect with very long delays: Evidence from flashbulb memories. In J. Dunlo sky and R. A. Bjork (Eds. ), A handbook of memory and metacognition. Hillsdale, NJ: Lawrence Erlbaum Associates. Terrell, J. T. & Weaver, C. A. III (2008). Eyewitness testimony in civil litigation: Retention, suggestion, and misinformation in product identification. North American Journal of Psychology, 10, 323-346. Terrell, J. T. (2009, November). Repeated photo refreshing and product identification. Poster presented at the 501h annual meeting of the Psychonomic Society, Boston.  'I I ~ . J • . r! ... Weaver, C. A. III, Parra, K. F, & Terrell, J. T. (20 10, November). Addressing memory-related issues in asbestos cases. San Diego: Defense Research Institute. Weaver, C. A., III, Krug, K. S., Terrell, J. T., & Holmes, A. E. (in press). Eyewitness memory Issues in civil litigation. In A. Jamieson & A. Moenssens (Eds.), Wiley Encyclopedia of Forensic Science: Behavioral Sciences. Chichester, UK: John Wiley & Sons, Ltd. Terrell, J. T. (2011, April). Invited response to Frederick, K. (2011). The creation of a measurement instrument. The Evolution of a Psychometric Tool from Development to Application. Baylor University, Department of Educational Psychology Spring, 201 I Doctoral Student Symposi urn. Terrell, J. T. (20 11, July). The dynamics ofeyewitness identification. Paper presented at the Texas State Bar CLE Advanced Criminal Law Course and Criminal Law l 01, Houston. Parra,. K. F., Terrell, J. T., & Weaver, C. A. III (20 11, October). Differing cognitive loads affect knowledge updating in jurors. Poster presented at the 21st annual Armadillo Conference on Cognition: Texas A&M Commerce University: Commerce, TX. Parra, K. F., Terrell, J. T., & Weaver, C. A. III (2011, October). Do common misunderstandings of memory extend to attorneys? Poster presented at the 21st annual Armadillo Conference on Cognition: Texas A&M Commerce University: Commerce, TX. Terrell, J. T. (20 ll, November). Effects ofrepeated photo refreshing on eyewitness identification. Poster presented at the 52"d annual meeting of the Psychonomic Society, Seattle. INVITED PRESENTATIONS 2008, October: Eyewitness Testimony in Civil Litigation: Retention, Suggestion and Misinformation in Product Identification. UMHB College of Sciences Brown Bag Presentation 2010, March: Assessment Brown Bag, part of UMHB IQ CoWlcil 's Assessment Series. 2010, November: Presenter at UMHB Central Texas Book Club's discussion of .. The Screwtape Letters" by C.S. Lewis. 2011, March_: Presenter at UMHB Central Texas Book Club's discussion of"Into the Wild" by Jon Krakauer. 2011, April: Class Size 60: How I Put General Psychology Online and Lived to Tell About It. Faculty Conversation sponsored by UMHB's Center for Effectiveness in Learning and Teaching.  . ..' l I' • I .' 1.~ \ 2011, July: Dynamics ofEyewitness Identification. Paper presented at the 371h Annual State Bar of Texas Advanced Criminal Law Course, Houston. 2012, July: Eyewitness ldentifcation: Exploring the Relevant Factors Through Case Examples. Paper to be presented at the 38th Annual State Bar of Texas Advanced Criminal Law Seminar, San Antonio. 2012, September (pending): Counter Evidence of Eyewitness Unreliability: The Science. Paper to be presented at a training sponsored by the National District Attorneys Association in Harris County.  -- -- -- ------~----- ---- - ·, ' I. !} f f Direct Examination of Dr. Terrell Name: Dr. Trent Terrell Where do you live? Temple, Texas How are you currently employed? 9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor, Belton, TX. What are your areas of Specialization? Learning, Memory, and Cognition EDUCATIONAL BACKGROUND Academic Degrees? B.A., Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from Baylor University, Waco, TX What type of graduate training did you receive in the area of Memory at tbat time? Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research, dissertation. PROFESSIONAL RESPONSIBILITlES Could you describe your current responsibilities at the University of Mary Hardin~ Baylor? Cognitive psychologist with emphasis in memory Psychology Department Chairperson, August 201 0-present Teach 4 classes a semester-General Psychology, Psychological Methods, Experimental Psychology, Cognitive Psychology, Theories ofLearning, Neurophysiological Psychology, Developmental Psychology Supervise undergraduate research in Memory Numerous campus committees Do you belong to any Professional Associations? Association for Psychological Science Psychonomic Society-Associate Member American Association for the Advancement of Science PRIMARY RESEARCH INTERESTS Confidence and Accuracy in Evewitness Testimony ---------- - -  ' I '' r' In general, confident witnesses are perceived as more credible than less confident witnesses. However, confident witnesses are not necessarily more accurate. This research investigates factors that may inflate confidence without improving memory accuracy. Lineup Construction and Photo Refreshing How does the construction and presentation of lineups affect the likelihood of correct identifications? How do multiple opportunities to view lineups affect the likelihood of correct identifications? Have you published any works in the field of Eyewitness Identification memory accuracy? Yes Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the lab Have you testified as an expert at other hearings? Yes Have you given any presentations about eyewitness memory? Yes, I presented at the Texas State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio in 2012. I've also spoken to the National District Attorneys Association in Houston and the Center for American and JntemationaJ Law in Plano. Are you being paid by the defense to testify in this case? Yes. ·, l '· What is the most common mistaken belief about memory? That memory works like a video recorder or computer disk. Both these metaphors suggest that memory retains everything that has ever happened to us, implying that all events are ultimately retrievable. Memory is a reconstructive phenomenon, not a video recorder: In essence, all memory is false to some degree. Memory is inherently a reconstructive process, whereby we piece together the past to form a coherent narrative that becomes our autobiography. In the process of reconstructing the past, we color and shape our life s experiences based on what we know about the world. (Bernstein & Loftus, 2009) How does memory work then? Memory has three processes-encoding, storage, and retrieval. (NOTE: If you look to the bottom, there's a general Q&A about memory section. I can go into as much or as little detail as you think \vould be necessary here. rve worked with people who want to dl!vote titteen minutes to it others who just \Vane a brief answer. Whatever works for you.) Are memories of alleged sexual abuse the same as eyewitness memories? Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime being committed by someone they do not know, and later trying to identify that person after a very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but what and if. They're different kinds of memories, but the same factors can affect their reliability. Will we discuss some of those factors today? Yes. What documents have you reviewed? Very little. l've looked at an amended summary of what outcries would be described in court. Is it usual for you to review so few documents in a case like this? Each case is different, but especially in cases of alleged sexual abuse, my role is not to interpret the specifics of what happened, but rather to talk about factors that have been experimentally demonstrated to affect the reliability of such memories. So to clarify, you will not be testifying that the alleged abuse in this case did not take place? No, my testimony will only involve descriptions of how memory works and doesn't work. Have we spoken Defore today? Yes, via phone and email.  -··-------- --· · - - - - - - - - . ' Before we begin, let's be clear: are you going to offer testimony that the witnesses in this case are lying, or that they are not credible? No. Credible witnesses can experience and report false memories without intending to be · deceptive or lying. The empirical evidence from years of false memory research indicates that most false memories seem as subjectively real to witness as true memories. Why are you here, then? To provide information to the jury about how memory works from a scientific background, to identify some of the factors known to affect reliability, and to provide tools that the jury can use as they evaluate the reliability of the child in this case. In general, how do memory researchers classify factors that alter witness reliabili~? In the Eyewitness Memory literature, researchers discuss two broad classes of factors: Estimator variables and system variables. That distinction is not as important in this kind of case, but I do want to discuss one estimator variable, so I'll mention it. Estimator variables are those that cannot be controlled by the criminal justice system-they are simply the facts of what happened. How long something lasted, how long it has been since the event took place, stress levels of the victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly remembered later. These are called estimator variables because we can only estimate the impact they might have had on memories. System variables are those that investigators have some degree of control over, such as how information is gathered after the event In a case of alleged sexual abuse, system variables in play are how the child is interviewed, who conducts the interview, and in what context that interview takes place. What estimator variables do you feel might be relevant to this case? Latency, or the time between the event and the time when memories of that event were first reported. One of the most basic findings of eyewitness memory research is that memories decay over time. Just about every experimental protocol that manipulates the interval between exposure and testing has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In some scenarios, witnesses may not be prompted to think about an event at all after it has occurred, enhancing decay from memory (also called transience). This is true of lab studies, information learned in school, and eyewitness memory (Shapiro & Penrod, 1986). NOTE: Stress is also an estimator variable that reduces accuracy of subsequent memories. lfs a double- edged. sword though. If abuse did happen, it \vas likely stressfu I for the children. But if it's your case  ' I '·' . that it didn't happen. it wouldn't mak~ sense to talk about the stres:; of it interfering with subsequent recall. In the previous sex abuse case J did. the state was eager to make the argument that stn~ssfulitraumatic events are more likely to be remembere)d than more run-of-the-mill encounters. llhink it"s pwbably best to not mention this in the direct, and if the state mentions it in cross, I can talk about ho1.v stressful events are actually less likely to be wdl-rem~rnbered. What system variables could be relevant? Most research suggests that children are very suggestible witnesses. It is difficult to question young children about sexual acts without being suggestive to what may \ have happened. Why is it difficult to not be su~&estive with them? The clearest and most obvious guideline for how to conduct interviews non-suggestively is to use open-ended questions. Open-ended questions are ones that contain no information in them, and require an expository answer, such as "What happened next?" In contrast, closed questions , contain information in the question, and generally only require a yes/no answer. Such as "Did he touch you here?'' Young children will likely be able to fully articulate the details of sexual abuse without being guided by closed questions. Is there empirical evidence that closed or suggestive questionin& can cause children to create memories? Yes. While there are numerous experimental protocols that have demonstrated this, one of the most commonly discussed is known as the "Sam Stone" paradigm of research. In short, in these protocols someone named Sam Stone visits a classroom of young children, and subsequently the students are presented with the idea that Sam is a clumsy man who is always breaking things. Teachers or adults may say things like "Sam certainly was a clumsy man." Over a period of weeks, tbey are interviewed with suggestive questions like "Do you remember when Sam Stone ripped the book?" Eventually, many of the students incorporate the suggestions into their memory, and will tell you about the time Sam Stone visited and ripped the book, and in some cases even add additional components of cJumsiness not mentioned by adults in the questions. Naturally, the actor portraying Sam was very careful not to be clumsy during the visit. While some of the things the interviewers asked about did happen, all of the clumsy things referred to by the questions did not There are myriad factors that affect the likelihood that children will come to accept these suggestions and modify their memories accordingly, including the age of the children and the ' ' strength and modality (open/closed) of the suggestions. Generally speaking, the younger the children the more likely they are to incorporate suggestions, and the more likely they are to answer yes to a closed question (whether yes is the correct answer or not). The take-home fact is that if children are asked questions that presume something has happened and are placed in an environment where others seem to think it happened, there's empirical data illustrating they can and often will come to believe it themselves. The Sam Stone experiments seem to discuss children modifying their memories of something that reaJly h_appened. Is there any evidence that people can come to remember things from their childhood that did not occur at all? Yes, there are several examples. One experimental protocol involves what is known as the "Lost in the Mall" procedure. In this protocol, researchers enlist the help of family members to help make false suggestions to experimental participants that they were lost in the mall for an extended period of time when they were a child. When family members combine suggestions about true events along with the suggestion ofbeing lost in the mall (or being hospitalized \ overnight, or other traumatic events), many subjects not only come to accept that the event happened, but begin to elaborate add their own details of the event in subsequent recollections. When family are able to provide convincing details, such as the name of the mall they would've been lost in as a child, or even a store which they frequently shopped at, the subjects are able to imagine how th'at event might've occurred. There's a well-documented phenomenon known as imagination inflation-when subjects are asked to imagine somethirig occurring for just one minute, they are subsequently more likely to remember what they imagined as something that actually occurred. There's also a natural tendency to think that if everyone else in the family remembers this, I probably should, too. NOTE: DA's like to pick apart the lost in tl1e mall experiment, because the original study tried it with 25 pt.>op!e, and only produced the phenomenon in 6 of them. The small sample_ size ha~ to do with the complexities of recruiting family involv~ment, etc. lt's a very time-intensive and personal proto~;ol. And they'll say that creating this in 6 people is hardly ovenvhelming evidence, but th~ point is that it's possible at all-ifs really a pretty surprising thing that it happens at all. The protocol is also used on adults. not children, and all the evidence supports tl1c idea that the younger the child, the more suggestible they are. The broad, concrete point is that  ' I \ve've taken things that we know didn't happen, and convinced people it did so that they remember it as if it did. And the stak~s are IO\·Vcr in experiments-it doesn't really matter if you got lost in the mall or not. But, there's a lot more pressure to report sexual abuse, so it's not really a one-to-one comparison. Are there any developmental factors that may be relevant to this case? Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll explain below), "magical thinking" and an underdeveloped "Theory of Mind. Taking these one-by-one: · Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and all of us have virtually no episodic memories of the first two years of our lives. The time of offset of childhood amnesia (the ability to start to form long-term memories accessible as adults) is different for all people. Most of us would say our first memory is from around age 3 or 4. What causes childhood amnesia? A few things, the most important of which is the progression of language development. Our long-term memories are anchored in meaning and are rehearsed and stored phonologically (using language),. In short, children can't form memories accessible as adults in the first 2-3 years of life because they do not have the vocabulary necessary to represent those ideas in their minds and rehearse them. When children start learning language proficiently, they are able to rehearse better and begin to store memories that will be accessible as adults. Another factor potentially relevant here is a bit complicated to explain--the concept of encoding specificity. This means that memories are encoded in a certain way, using a certain way of thinking and a certain viewpoint, and that they need to be retrieved with.that same way of thinking and that san1e viewpoint. (Another more formal way of putting is to say that recreating the context of encoding at the time of retrieval makes it more likely to remember what was encoded). Most of the memories we have from childhood are encoded from a child's point of view, using childlike interpretations and childlike terminology. When we grow up, we are unable to access those memories because we no longer view the world in that childlike way-we think in adult terms and from adult viewpoints, and find it virtually impossible to remember the world the way we did when we were children. '  ' . --, •, ' .. ' Encoding Specificity. This idea of encoding specificity may be particularly important in a sexual abuse case, especially involving very young children. Young children (hopefully) do not understand sexual actions and ~exual terms as abuse is taking place. It's not at all likely that yotmg children immediately understand that they have been sexually abused. They may have been uncomfortable or upset or scared, but they're likely not able to encode what happened as sexual abuse. Therefore, when asked about sexual abuse as an adult (or an older child), the adult definition of abuse calls to mind different things than were likely .encoded during the abuse as a very young child. This explains why directive and closed questioning often has to be used, and illustrates the difficulty of interviewing children about possible abuse without being suggestive. "-. Investigators likely use euphemistic questions about touching and parts of the body touched, and the possibility must at least be considered that children cannot separate innocuous touching (such as diaper changing) from harmful touching. As an example, many children will respond to the closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the doctor just gave the child an injection. The child doesn't understand that the injection was for his/her benefit, and is just as upset with the doctor as would be if he/she had touched the child malevolently. It is vital to !liJderscore that not being able to remember abuse doesn't mean it didn't happen. It is nearly an impossible task to derive the pertinent infonnation without speaking vaguely (with euphemism) or suggesting the possibility of actions with closed questions. Magical Thinkine!fbeory of Mind. Refers to the idea that children in Piaget's Pre-operational stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical thinking is often seen during the grieving process as children are first encountering the concept of death. Not able to understand the finality of death, they rationalize the absence in the only way they have experienced-by assuming the loved one is out of town or has a gone away temporarily but will return. When presented with other information that is outside what they understand (such as the idea that Sam Stone was very clumsy), children of this young age are much more likely than adults to bridge the gap in what they understand than to challenge discrepancies. Often the shortest bridge is to accept what the adult says is true, or to accept what the other children are saying as true, and then build upon that concept subsequently. This  ' ' .. ' happens frequently when children are corrected by their parents about the names of things, colors of things, about language usage and other areas in which they make wrong assumptions. It is a normal part of cognitive development to accept ideas presented by an adult-Piaget calls this assimilation and accommodation. This all relates to the process of the child developing a Theory ' of Mind. A Theory of Mind is the understanding that all individuals have their own minds and their own way of seeing the world, and that different people have different opinions and not ~everyone knows the same information. While adults take this for granted, children have to learn this through trial and error. Piaget called this stage "egocentrism", because children do not understand that people have different feelings and desires as they do. Young children often exemplifY egocentrism when, for example, they are asked to show their mother the picture they drew, and they hold the picture out with the back of the picture facing mom and the actual picture visible to them. They feel that because they can see the picture, mom can too. lt's understandable that this concept can be reversed. If a non-fact is suggested to young children as if.it is fact, children are likely to accept this fact because they don't understand that the adult could have a different set of knowledge than they do, or that the adult might be lying or be mistaken. All of this speaks to why young children are more suggestible than adults and have a harder time saying "no" to closed questions. Are there protocols that can be used to reduce the su~&estiveness of child interviews? While there is not a formally-agreed upon process, there are suggestions for how to reduce the likelihood of suggesting information to children: • Use open-ended questions when possible • Listen as much as possible and try to let the child be in control of the direction of the conversation o In other words, refrain from pushing them back towards what is suspected to have happened as much as possible • Have someone not emotionally-involved with the situation conduct the interview o This reduces demand characteristics placed on the child to be a good boy or girl for a known authority figure • Attempt to establish rapport with the child with a series of unrelated questions before moving on to the more important questions I  ------ wrote: Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably the earliest I could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university assembly, so that would be a perfect day for me to be there at any time. Thanks ... Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor 900 College Street, Box 8014 r Belton, TX 76513 254-295-4630 ttenc I]((:uum hb .edu From: Terence Russell [mailto:tiger russell@att.net] about:blank 1/9  . ' < 911112014 Print Subject: Re: Creating memories From: Tiger Russell (tiger_russell@att.net) To: nerrell@umhb.edu; Date: Tuesday, August 26, 2014 4:04PM Location is correct. Just talked with Court and judge said it would be safe to be here by 12:30 p.m. State has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court say we will take early lunch and start earlier following lunch. Terence A. "Tiger" Russell Attorney at Law PO Box 306 Hillsboro, Texas 76645 254-396-3219 254-582-5593 (fax) Sent from my awesome new iPad! On Aug 26, 2014, at 9:17 AM, "Terrell, Dr. Trent" wrote: Good deaL If you can just let me know sometime tonight what time you think you'll need me, anytime tomorrow should work. I would be great with getting there at 9 AM and being first up, if that's when court starts. Is this where I'm headed?: Hill County Courthouse, 1 North Waco Street, Hillsboro, Texas 76645 l updated the direct a little bit (see attached). I really didn't change the content, but I just incorporated some more questions for you to ask me so as to keep me on point. \ Thanks, Trent Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor 900 College Street, Box 8014 about:blank 1111 9/11/2014 Print Subject: Re: Creating memories From: Terrell, Dr. Trent (Tierrell@umhb.edu) To: tiger_russell@att. net; Date: Wednesday, August 27, 2014 7:02AM Terence, I still haven't received any info from you about when I should appear in court. I'm persisting in emailing you because you said this was the best way to contact you. Lacking any further information, I'm heading into the office this morning. I have obligations there that I can work around with notice, but without a concrete time to plan around I have to give my full-time job priority. As I said, I have a night class this evening and a 9:30-2:30 teaching schedule Tuesday/Thursday. I also 4ave meetings scheduled today that I could've missed, but I'll move forward with my regular schedule unless I hear from you very soon. Thanks, Trent Sent from my iPhone >.On Aug 26,2014, at 7:40PM, "Tiger Russell" wrote: > > Did you receive my earlier message about the time? > >Terence A. "Tiger" Russell > Attorney at Law · >PO Box 306 >Hillsboro, Texas 76645 > > 254-396-32191 > 254-582-5593 (fax) > > Sent from my awesome new iPad! > >>On Aug 26,2014, at 6:22PM, "Terrell, Dr. Trent" wrote: >> >>Please advise as soon as possible this evening when you'll need me tomorrow, so I can plan out my day. It's at least an hour drive, depending on 35. I do have an evening class starting at 6, so need to be done before the end of the day in order to get back in time. >> >>Thanks .. >> >> Sent from my iPhone >> >>On Aug 26,2014, at 8:57AM, "Tiger Russell" > wrote: about:blank 1/9 ~· r 9rl 1/2014 Print Subject: Re: Creating memories From: Terence Russell (tiger_russell@att.net) To: TTerrell@umhb.edu; Date: Tuesday, August 26, 2014 10:23 PM Judge said it would be safe to be here by 12:30 p.m . State has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court say we will take early lunch and start earlier following lunch. Terence A. "Tiger" Russell Attorney & Counselor at Law PO Box 306 Hillsboro, Texas 76645 254-580-9282 254-582-5593 (fax) On Aug 26, 2014, at 7:41 PM, "Terrell, Dr. Trent" wrote: No, all I got this morning was that you wouldn't need me before Wednesday. So, what time will you need me? Sent from my iPhone On Aug 26, 2014, at 7:40PM, "Tiger Russell" wrote: Did you receive my earlier message about the time? Terence A. "Tiger" Russell Attorney at Law PO Box 306 Hillsboro, Texas 76645 254-396-3219 254-582-5593 (fax) about: blank 1/16 . ,, Cause No. 37228 STATE OF TEXAS § IN THE 66TH JUDICIAL § vs. § DISTRICT COURT OF § JAMES DUVAL RYDER § HILL COUNTY, TEXAS DECLARATION UNDER PENALTIES OF PERJURY STATE OF TEXAS, COUNTY OF lie(I I, Jonathon Trent Terrell, declare under penalties of perjury that the foregoing information and allegations of this Declaration are true and correct, and I say: 1. I have personal knowledge of the facts stated in this declaration. 2. I have not been compelled or threatened to sign this declaration in any manner. 3. lam signing this declaration knowingly, voluntarily, and freely. 4. My date of birth is October 9, 1980. 5. I fully understand the contents of this declaration, and I read, write, and speak English. 6. I am trained in the field of Psychology, specifically Cognitive Psychology and Eyewitness Memory. 7. I regularly consult and testify as an expert witness on matters related to my specialty. 8. I am educated as a Doctor of Philosophy in Experimental Psychology.  •. : 9. In addition to consulting and testifying as an expert witness, I am an Assistant Professor and the Chairperson of the Psychology Department at the University of Mary Hardin-Baylor. / 10. I have published numerous articles and presented numerous times on the subject matter of memory formation and retrieval and eyewitness testimony. 11. My curriculum vitae is attached as Exhibit A. 12. I was contacted initially by Tiger Russell regarding testifying on behalf of the defense in the matter of State of Texas v. james Duval Ryder, Cause No. 37228, in Hill County, Texas. 13. Because Mr. Russell did not want to approach the judge about securing funds for an expert witness citing the Defendant's indigence, I agreed to a minimal fee--$1000.00, and was sent a check from Mr. Russell. 14. Because I have a full time job at the University of Mary Hardin- Baylor, I told Mr. Russell, in advance and up front, that I must have 24 hours notice that my presence would be expected at trial. 15. I was not served with a subpoena to appear. 16. As the week of the trial began, Mr. Russell was unable to confirm when I would be needed in court. 17. It ultimately appeared that I would be needed on August 27, 2014. 18. On the evening of August 26, 2014, I emailed Mr. Russell three times, but received no response from him. 19. At approximately 10:15 the following morning, August 27, 2014, I received a phone call from Mr. Russell telling me that I would be needed for testimony at 12:30p.m. 20. I was not able to retrieve that message and return Mr. Russell's call until approximately noon on August 27, 2014. 21. Unfortunately, I could not leave my job responsibilities and travel two hours to Hill County at a moment's notice. DECLARATION UNDER PENAL TIES OF PERJURY-DR.JONATHAN TRENT TERRELL ' 2 '. I 22. I have returned the $1000.00 check, un-cashed to Mr. Russell. 23. I believe that my testimony would have been material to the defense of James Ryder. 24. The attached planned line of testimony would have been my testimony and opinion had I been properly subpoenaed, and I incorporate it in full into this affidavit. Further Affiant sayeth not. DECLARATION Under 28 U.S.C. § 1746 and Texas Civil Practice and Remedies Code§ 132.001 et seq., I declare that my name is Jonathan Trent Terrell. I am over the age of 18 years, and am competent to make this declaration. My date of birth is October 9, 1980. I have not been forced to sign this declaration. I declare that under the penal~ies of perjury that all assertions provided in this document are correct and true. 2~(/. County, Texas. Executed on September 25, 2014, in __,_H_-=--'---,-- ~ Jonathan Trent Terrell, Ph. D. DECLARATION UNDER PENALTIES OF PERJURY-DR. JONATHAN TRENT TERRELL 3  't / 11 Cause No. 37228 STATE OF TEXAS § IN THE 66TH JUDICIAL § vs. § DISTRICT COURT OF § JAMES DUVAL RYDER § HILL COUNTY, TEXAS DECLARATION UNDER PENALTIES OF PERJURY STATE OF TEXAS, COUNTY OF LEON I, Larenda Nichole Watkins, declare under penalties of perjury that the foregoing information and allegations of this Declaration are true and correct, and I say: 1. I have personal knowledge of the facts stated in this declaration. 2. I have not been compelled or threatened to sign this declaration in any manner. 3. I am signing this declaration knowingly, voluntarily, and freely. 4. My date of birth is December 29, 1985. 5. I fully understand the contents of this declaration, and I read, write, and speak English. 6. I am engaged to be married to James Duval Ryder, the Defendant in Cause No. 37228. 7. Because the Defendant was found to be indigent, he was appointed an attorney, Mr. Terrence Russell, for his defense. I \ I 8. In preparing for trial on this case, Mr. Russell informed us that we needed an expert on memory and that the expert's testimony would be key to the defense. 9. Mr. Russell did not suggest that he could have the court appoint an expert 10. Mr. Russell informed tis that to have the expert that was vital to the case, and we would need to pay $1500.00 for that expert's services. 11. On August 14, 2014, we paid Mr. Russell $1500.00. 12. We received receipt no. 067001 for that payment. 13. A photograph was taken of that receipt, a copy of which is attached and I incorporate in full into this affidavit. 14. Mr. Russell hired Jonathan Trent Terrell, Ph.D. as a testifying expert in this case. 15. Mr. Russell failed to secure the presence of Dr. Terrell through a subpoena. 16. Dr. Terrell did not appear and did not testify on behalf of the defense in this case. 17. Mr. Russell refunded $1000.00 of the $1500.00 payment made to him to secure Dr. Terrell's presence at trial. 18. The refund was issued to me by check number 1221. 19. A photograph was taken of this check, a copy of which is attached and I,incorporate in full into this affidavit. Further affiant says not. ( , C. DECLARATION Under 28 U.S.C. § 17 46 and Texas Civil Practice and Remedies Code§ 132.001 et seq., I declare that my name is Nichole Watkins. I am over the age of 18 years, and am' competent to make this declaration. My date of birth is December 29, 1985. I have not been forced to sign this declaration. I declare that under the penalties of perjury that all assertions provided in this document are correct and true. Executed on September 25, 2014, in Leon County, Texas. ~~C/Y·d~/ 6J14:)Je. 0\A~t~~? La'renda Nichole Watkins, Declarant  / EXHIBIT E  1 •• 'I'll .... ;.~; • '\',:>'~'; . l. .... .. '' , , ~· 1 REPORTER'S RECORD ••• 2 3 VOLUME 1 OF 1 VOLUME TRIAL COURT CAUSE NO. 37,228 STATE OF TEXAS IN THE DISTRICT COURT 4 5 vs. HILL COUNTY, TEXAS 6 JAMES DUVAL RYDER 66TH JUDICIAL DISTRICT 7 8 9 onta\ns some ·r~1 is documen" c (> \"hi 10 · f poor qua '"» pages that ar~ o . at the time of nnagmg. 11 12 . ';;tt~ ****************~*************************************** •• h ..,. . .. , 13 14 HEARING ON MOTION TO RESCIND AND 15 SECOND MOTION FOR NEW TRIAL 16 ******************************************************** 17 18 19 On the 6th day of November, 2014, the 20 following proceedings came on to be heard in the 21 above-entitled and numbered cause before the Honorable 22 Alan Mayfield, Judge presiding, held in Hillsboro, 23 Texas: 24 Proceedings reported by machine •• 25 shorthand . ORIGINAL  2 • 1 APPEARANCES 2 MS. NICOLE CRAIN Assistant District Attorney 3 SBOT NO. 24034548 Post Office Box 400 4 Hillsboro, Texas 76645 Phone: (254) 582-4070 5 ATTORNEY FOR STATE 6 7 MS. KRISTIN R. BROWN 8 The Law Office of Kristin R. Brown, PLLC SBOT NO. 24081458 9 1701 North Market Street, Suite 402 Dallas, Texas 75202 10 Phone: (214) 446-3909 ATTORNEY FOR DEFENDANT 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • 25  3 1 VOLUME 1 • 2 3 4 November 6, HEARING ON MOTION TO RESCIND AND SECOND MOTION FOR NEW TRIAL 2 014 Page Vol. 5 Announcements . . . . . . . . . . . . . . . . . . . . . . . . . 4 1 6 DEFENDANT'S WITNESSES Direct Cross Vol. Terence Russell 5' 19 16 1 7 Nicole Watkins 24 II 1 8 Defendant Rests 31 1 9 State Rests .......................... . 31 1 10 Closing Arguments by Ms. Brown 31 1 11 Closing Arguments by Ms. Crain 36 1 12 Closing Arguments by Ms. Brown, Cont ... 39 1 • 13 Court's Ruling ....................... . 41 1 14 Adjournment .......................... . 42 1 15 Court Reporter's Certificate . . . . . . . . . . 43 1 16 17 18 EXHIBIT INDEX 19 DEFENDANT'S 20 NO. DESCRIPTION OFFERED ADMITTED VOL. 1 Terrell 21 affidavit 24 24 1 2 Receipt 28 28 1 22 3 Copy of check 30 30 1 23 4 Proposed testimony of 24 J. Terrell 9 9 1 5 - 9 E-mails 13 13 1 • 25 PROCEEDINGS  4 • 1 THE COURT: We are here in Cause Number 2 37,228 for the purpose of a hearing to determine if the 3 Court should rescind its prior ruling in regard to a 4 motion for new trial and to consider the grounds for a 5 possible new trial in the event that it does rescind. 6 And the motion has been filed by Mr. Ryder's attorney, 7 Ms. Brown. You're ready to proceed? 8 MS. BROWN: We are ready, Your Honor. 9 THE COURT: Thank you. 10 And the State is ready to proceed? 11 MS. CRAIN: We're ready, Your Honor. 12 THE COURT: Thank you very much. • 13 All right. We 11, I think the burden is 14 on you at this point or at least you'd like it to be. 15 You'd like to go first, right? 16 MS. BROWN: Yes, please, Your Honor. 17 THE COURT: Okay. You may proceed. 18 MS. BROWN: Your Honor, do you want to 19 take up the motion to rescind first or do you want to 20 just 21 THE COURT: Let's just do them together. 22 MS. BROWN: Okay. Thank you. 23 THE COURT: I don't see any reason not 24 to. I think that.the evidence that you want to put on • 25 in regard to the other one applies to that, so --  5 1 MS. BROWN: Okay. • 2 3 4 THE COURT: at the same time and then make a the end. -- so I think we just do both ruling when we get to 5 MS .. BROWN: Okay. Thank you. We'll call 6 Terence Russell. 7 THE COURT: Mr. Russell. If you'll raise 8 your right hand. 9 (Witness sworn) 10 THE COURT: Thank you very much. Please 11 be seated. 12 TERENCE RUSSELL, • 13 having been first duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MS. BROWN: 16 Q Good morning. Could you please state your 17 name for the court reporter? 18 A Terence Russell. Often I 'm called Tiger. 19 Q Tiger, what do you do for a living? 20 A I 'm an attorney. 21 Q Okay. Were you the attorney appointed to 22 represent James Duval Ryder in Cause Number 37,228 in 23 Hill County, Texas? 24 A I was. • 25 Q Okay. And do you see Mr. Duval in the  6 1 courtroom tod~y? • 2 3 4 A Q I do. Could you identify him for us? where he's sitting and describe an article of clothing Just tell us 5 he's wearing. 6 A Yes. He'd be seated to your right, and he's 7 wearing the green jail uniform. 8 MS. BROWN: The record 9 THE COURT: The record will reflect that 10 the witness has identified Mr. Ryder as the person that 11 was his client at the prior hearing. 12 Q (By Ms. Brown) And, Tiger, were you the • 13 attorney for James Russell during the trial on this 14 matter which began on August 25th of 2014? 15 THE COURT: James Ryder. 16 MS. BROWN: James Ryder. Sorry. 17 A Yes, I was. 18 Q (By Ms. Brown) Thank you. What were the 19 charges in this case? 20 A He had one charge of aggravated assault -- 21 sexual assault of a child, one charge of indecency with 22 a child by contact, and one charge of indecency with a 23 child by exposure. 24 Q Okay. How old was the complaining witness at • 25 the time of this alleged event?  7 • 1 A At the time it happened they -- it was my 2 belief that they were in -- about two to -- I mean, 3 three to four years old. 4 Q Okay. In contemplation of trial, did you 5 contact an expert on July 22nd of 2014 to help in 6 James's defense? 7 A I did. 8 Q And who was this expert? 9 A His name was Trent Terrell. 10 Q What was Dr. Terrell's expertise? 11 A Dr. Terrell is an expert on basically memory 12 and memory development. • 13 Q Okay. You exchanged e-mails with Dr. Terrell 14 regarding his testimony and the questions that you 15 planned to ask and answers that he expected to be 16 giving. Is that correct? 17 A That's correct. 18 MS. BROWN: May I approach, Your Honor? 19 THE COURT: You may. 20 Q (By Ms. Brown) I'm showing you what has been 21 marked as Defendant's Exhibit 4. Do you recognize that 22 document? 23 A I do. 24 Q What do you recognize it to be? • 25 A This was the proposed direct examination that  8 • 1 Dr. Terrell sent me regarding the exact type of 2 testimony he expected to give in this case. 3 Q And were those the questions you planned to 4 ask him in his direct testimony? 5 A Yes. I would ask him every one of these 6 questions. 7 Q And the answers that he expected to be 8 giving? 9 A Yes. 10 Q Okay. And is this, in fact, the Exhibit B 11 that was attached to your affidavit in our motion for 12 new trial? • 13 A It is. 14 Q Okay. Is that a true and.correct copy of 15 that 16 A It 17 Q affidavit or that exhibit from that 18 affidavit? 19 A It is. 20 Q Thank you. 21 MS. BROWN: Tendering to defense -- or to 22 the State. 23 MS. CRAIN: I have no objection. 24 MS. BROWN: Offer Defendant's Exhibit 4. • 25 THE COURT: Defendant's Exhibit 4 has  9 • 1 been offered. No objection has been made. It is 2 admit ted. 3 Q (By Ms. Brown) Tiger, you believed and still 4 believe that the testimony of Dr. Terrell was material \ 5 to James's defense. Is that correct? 6 A Not only material but essential to my theme 7 which I announced in my opening argument. 8 Q And what was that? 9 A Was that these children were just mistaken 10 about what they saw and had created the events that they 11 described from things that they had viewed within the 12 home. • 13 Q Okay. Were there other reasons that you 14 believed that Dr. Terrell's testimony was material to 15 James's defense? 16 A That was primary the reason I was going to 17 have him here 18 Q Was 19 A -- was due to the fact that he could describe 20 the development of memory and how memories were 21 developed and how children use various objects and 22 visions and surroundings -- will incorporate those into 23 memories that they believe they have. 24 Q And who was the witness to that event -- to • 25 the alleged event?  10 1 A Kira Ryder and Cole Ryder. • 2 3 4 Q Okay. And these were both very small children at the time of the alleged event. A That's correct. 5 Q And did you believe that Dr. Terrell would 6 testify that suggestion is a powerful influence on a 7 young child's memory? 8 A Yes. He would testify to that. 9 Q And that that was material to James's 10 defense? 11 A Yes, it was material. 12 Q Did you believe that Dr. Terrell would testify • 13 that children have difficulty in correctly remembering 14 events 15 A Yes. 16 Q -- that happened when they were young? 17 A Yes. 18 Q And do you believe that that testimony is 19 material and favorable to James's defense? 20 A Yes. 21 THE COURT: You know, what this witness 22 believed the witness might testify to -- 23 MS. BROWN: What the -- 24 THE COURT: is kind of hearsay on top • 25 of that hearsay . So i t ' s not terribly relevant.  11 1 However, Dr. Terrell's statements as to what he would • 2 3 4 have been asked and what he would have testified to have been admit ted. So that's there. Anything else that this witness believed is simply a subjective belief that 5 can't be established unless Dr. Terrell were here, and I 6 understand he's not available. So -- 7 MS. BROWN: I understand. 8 THE COURT: Thank you. 9 MS. BROWN: One note on that, Your Honor. 10 Dr. Terrell is available by phone if we should need him 11 for anything. 12 THE COURT: Thank you. 18 would be called after lunch on Wednesday, August 27th, 19 2014? 20 A We did do that prior to beginning trial on 21 Monday. 22 Q Did you subpoena Dr. Terrell, requiring his 23 presence on August 27th of 2014? 24 A I did not. • 25 Q Did you attempt to contact him via e-mail to  12 • 1 let him know that his presence was needed at 12:30 on 2 that day? 3 A I did. On more than one occasion, actually. 4 MS. BROWN: May I approach? 5 THE COURT: Yes. 6 Q (By Ms. Brown) Tiger, I'm showing you what has 7 been marked Defendant's Exhibits 5 through 9. Do you 8 recognize those documents? 9 A Yes. These are hard copies of some e- -- of 10 some of the e-mails that I was doing with Dr. Trent 11 trying to secure his appearance at trial. 12 Q And are these true and correct copies of the • 13 e-mails that were exchanged between you and Dr . 14 Terrell? 15 A Yes. 16 Q And are these, in fact, Exhibits C, D, E, F, 17 and G from the affidavit that was filed by you with 18 excuse me, in conjunction with our motion for new 19 trial? 20 A I didn't file an affidavit 21 Q Okay. I understand. 22 A -- but I did create one 23 Q You did create one? 24 A -- and they were exhibits to that, yes. • 25 Q And this was created with your affidavit. Is  13 1 that correct? • 2 3 4 A objection. Yes. MS. I attached those to my affidavit. CRAIN: Your Honor, I have no 5 MS. BROWN: Offer Defendant's 5 through 6 9. 7 THE COURT: 5 through 9 are admitted. 8 Q (By Ms. Brown) Did you -- in your attempts to 9 contact Dr. Terrell, did you try more than one e-mail 10 address? 11 A I did. 12 Q Okay. Did you ever receive an e-mail • 13 confirmation back from him stating that he would be 14 present at 12:30 p.m. on August 27th of 2014? 15 A I did not. 16 Q When you were unsuccessful at contacting Dr. 17 Terrell via e-mail, did you attempt to contact him by 18 phone? 19 A I did on the day that he was supposed to 20 testify because I assumed that maybe he had gotten the 21 information and just had not responded. 22 Q Okay. Did you, in fact, call him on multiple 23 numbers? 24 A I actually -- yes. I called him, I called his • 25 mother, I called -- and I finally called the actual  14 1 psychology department and asked them to have him contact • 2 3 4 me. times, Q After calling those multiple numbers multiple were you finally able to reach Dr. Terrell on 5 August 27th of 2014? 6 A I was. It was sometime between 12:00 and 7 1: 0 0. 8 Q So this was less than an hour before testimony 9 would resume? 10 A That's correct. 11 Q And before he was supposed to be there to 12 testify? • 13 A That's correct . 14 Q Where would Dr. Terrell have been traveling 15 from? 16 A He would -- he is the psychology chair at Mary 17 Hardin Baylor, and I believe that's in Belton. 18 Q That's about two hours aw~y. Is that 19 correct? 20 A I wouldn't say two, but somewhere between one 21 and two. 22 Q Okay. Did Dr. Terrell ultimately appear to 23 testify on behalf of James? 24 A No . • 25 Q Did you move the Court for a continuance so  15 1 that you could secure Dr. Terrell's presence? • 2 3 4 A to appear, to that date, Dr. Terrell did tell me when he would be"able and I did ask the Court to continue the trial which would have been Thursday afternoon, 5 I believe. 6 Q Was that motion granted? 7 A No. 8 Q Do you believe that Dr. Terrell would have 9 been present to testify on behalf of the defense had you 10 properly secured his presence via subpoena or some other 11 method? 12 A I do. • 13 MS. CRAIN: Your Honor, I'm going to 14 object. That calls for speculation. 15 THE COURT: Sustained. 16 Q (By Ms. Brown) Did you have any trial strategy 17 in not subpoenaing Dr. Terrell? 18 A No. 19 Q Do you believe that you were ineffective as 20 trial counsel in not securing the presence of a material 21 witness on behalf of the defense? 22 A I do, regrettably. 23 Q Is it your belief that the outcome of trial 24 would have been different had you not been ineffective • 25 in your representation?  16 1 A Yes . • 2 3 4 James, Q A You were appointed by the Court to represent correct? That's correct. 5 Q Okay. Did you seek to have Dr. Terrell 6 appointed by filing an Ake motion? 7 A No. 8 Q Why not? 9 A I did not really discover that Dr. Terrell 10 might be useful to our case until like right before the 11 trial, and I felt like it was probably a little bit too 12 late to be asking the Court to appoint an expert at that • 13 point . So we were able to retain him. 14 Q So you hired Dr. Terrell? 15 A The family did. Yes. 16 Q So it wasn't with your own funds. It was from 17 funds from James's family. 18 A That's correct. 19 Q Okay. 20 MS. BROWN: Pass the witness, Your Honor. 21 CROSS-EXAMINATION 22 BY MS. CRAIN: 23 Q Now, in regards to Mr. Terrell, what did you 24 provide him for trial preparation? • 25 A I sent him, I believe, the offense reports. I  17 1 believe that's all I sent him, was just the offense • 2 3 4 reports, alleged. Q so he would have some kind of idea what was Okay. So if he stated in his affidavit that 5 he was only provided with the outcry notice, then that 6 would be incorrect? 7 A No. That may be what I did send him. My -- I 8 was trying to recollect. I knew I didn't send him very 9 much because I wanted him to just basically testify as 10 to generalities and not specifically to this situation. 11 Q Okay. And he had not interviewed the 12 defendant? • 13 A No. 14 Q And he had not interviewed the victim? 15 A No. 16 Q And you I mean, just to clarify, you only 17 wanted him to testify to generalities and nothing 18 specific in regards to this case? 19 A Yes. 20 Q Okay. 21 A And that just -- or I did -- yeah. I did not 22 expect him to testify regarding the specific incident in 23 this case but just to the development of memory and 24 where children's memory exist at the time that these • 25 children initially indicated that these offenses had  18 1 occurred . • 2 3 4 Mr. Q Terrell. I Okay. And you had an oral contract with can't remember what his last name is, Is that correct? but Mr. 5 A I believe so. 6 Q To appear? 7 A I believe so. 8 Q Okay. You had contacted him by phone, and it 9 was you felt like that he had agreed to appear? 10 A We had been communicating via e-mail. 11 Q Okay. And y'all had agreed even on a price in 12 regards to this case on how much he would accept for his • 13 testimony? 14 A We did agree on the price. 15 Q Okay. So while you did not subpoena him, you 16 did have an oral contract with him to appear as an 17 e~pert in this case, you believed? 18 A I'd have to review the actual correspondence 19 we had to find out if there actually had been an 20 acceptance of that because I do know that he did tell me 21 at one time that if for some reason he could not 22 testify, he would refund the money. So it had to 23 whether he -- you know, the scheduling was very 24 important to him when he was going to appear. • 25 Q Okay. So he had not made it clear to you that  19 1 he was going to be available for this trial? • 2 3 4 A certain day, Q He stated that he could be available on a Okay. yes, and certain time. And you testified that these were some 5 of the e-mails that y'all had exchanged between the two 6 of you. Were there other e-mails in regards to date and 7 time and appearance? 8 A No. I believe that's all of them. 9 Q And he stated that he could not appear until 10 almost the close of business 4:00 on Thursday afternoon, 11 correct? 12 A That's correct, due to his class schedule and • 13 other commitments he had . 14 MS. CRAIN: I ' l l pass the witness. 15 REDIRECT EXAMINATION 16 BY MS. BROWN: 17 Q Mr. Russell, had you subpoenaed him, he would 18 be required by the Court by law to be here, right? Is 19 that correct? 20 A That's my understanding of the law. 21 Q Okay. Did you ever at any time believe that 22 you had actually secured his presence for Wednesday 23 afternoon at 12:30? 24 A No. He -- I tried to notify him more than • 25 once via e-mail of the date and time that we had  20 1 secured, which was going to be within the window he ~ 2 discussed. He never responded to any of those e-rnails, 3 and then actuaily it was two or three days after the 4 trial was over I started getting these Daemon failure 5 notices or whatever they call those things corning back 6 saying that he -- that those e-rnails had not even gone 7 through to him. 8 Q So although you had an oral contract with him 9 to testify on James's behalf if the date and time could 10 be worked out, you were never able to let him know that 11 that date and time actually was worked out. 12 A That's correct. 13 THE COURT: You could have telephoned ~ 14 him, and you did eventually telephone him and talk to 15 him on the telephone. Is that correct? 16 THE WITNESS: That's correct, Your Honor. 17 THE COURT: Okay. And you were able to 18 reach him by telephone. 19 THE WITNESS: With great difficulty, yes. 20 THE COURT: And you reached him on the 21 day, Wednesday, prior to proceeding forward with the -- 22 your presentation of the defense. 23 THE WITNESS: That's correct, Your Honor. 24 It was -- I contacted him at lunchtime on Wednesday 25 because I was wanting to make sure that he was going to ~  21 1 be here after lunch as we had planned . • 2 3 4 THE COURT: Thank you. Now, represent to the Court that you had paid him a thousand dollars out of your personal funds? did you not 5 THE WITNESS: I don't think I said out of 6 my personal funds, no, Your Honor. 7 THE COURT: Well, that's what I 8 remembered you saying to me. And did I not tell you 9 that you shouldn't have done that but that you should 10 have petitioned the Court so that the Court would 11 have paid experts and that attorneys are not expected to 12 pay experts for their appointed clients? • 13 THE WITNESS: I do recall the Court 14 advising me of such. 15 THE COURT: Okay. On the petitions here 16 it indicates that you received $1500 from Mr. Ryder's 17 family? 18 THE WITNESS: That's correct, Your Honor. 19 THE COURT: You sent a thousand dollars 20 to Dr. Terrell? \ 21 THE WITNESS: That's correct, Your Honor. 22 THE COURT: He returned the thousand 23 dollar check uncashed? 24 THE WITNESS: That's correct, Your Honor. • 25 THE COURT: And you've returned that  22 1 money to the family? • 2 3 4 difference? THE WITNESS: THE COURT: I have, Your Honor. What about the $500 5 THE WITNESS: That's still in my trust 6 account currently. 7 THE COURT: The check that was returned 8 was on your personal account. 9 THE WITNESS: That's correct, Your Honor. 10 THE COURT: So you put 500 in your trust 11 account and put the balance of the money in your 12 personal account, paid it out of the personal account to • 13 Dr. Terrell, and you have a separate trust account that 14 holds $500? You didn't put the entire amount in your 15 trust account? 16 THE WITNESS: Well, that is my trust 17 account, Your Honor. 18 THE COURT: You use your personal account 19 as your client trust account? 20 THE WITNESS: I -- generally I just put 21 the money in there and write the check. That's the way 22 I do it. 23 THE COURT: You do not have a separate 24 trust account? • 25 THE WITNESS: I'm in the process of doing  23 1 that currently, Your Honor . I've had some difficulty • 2 3 4 getting the bank to understand what I want, have to go to a different bank. THE COURT: Thank you. so I may 5 MS. BROWN: I have, no further questions, 6 Your Honor. 7 THE COURT: Any other questions from the 8 State for this witness? 9 MS. CRAIN: I have no further questions. 10 THE COURT: You may step down. 11 As I recollect the evidence at the trial, 12 the child testified of an -- the incidents occurring • 13 when she was age six. 14 MS. CRAIN: That is my recollection as 15 well, Your Honor, when she was five and six. 16 THE COURT: The record will show that, 17 but not when she was three or four. The brother was 18 three or four. He did not testify and was not a 19 testifying witness at the trial. 20 MS. BROWN: Your Honor, I would ask the 21 Court at this time to take judicial notice of the 22 Court's file, particularly the lack of an Ake motion. 23 THE COURT: The Court will take judicial 24 notice of the Court's file. • 25 MS. BROWN: And, Your Honor, regarding  24 1 our unavailable witness, Dr. Terrell, the defendant • 2 3 4 would like to admit his affidavit testimony and the incorporated exhibits which I Exhibit 1. have marked as Defendant's 5 MS. CRAIN: Your Honor, I have no 6 objection to that. I believe that affidavits are 7 allowed in motions for new trial. 8 THE COURT: Defendant's Exhibit 1 is 9 admitted. 10 MS. BROWN: Your Honor, at this time we 11 would call Nicole Watkins. 12 THE COURT: Ms. Watkins. Please raise • 13 your right hand . 14 (Witness sworn) 15 THE COURT: Thank you. 16 NICOLE WATKINS, 17 having been first duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 BY MS. BROWN: 20 Q Good morning. 21 A Good morning. 22 Q Please state your name for the record. 23 A Nicole Watkins. 24 Q And, Nicole, how old are you? • 25 A 28.  25 1 Q Okay. Do you know James Ryder? • 2 3 4 A Q A Yes. James Duval Ryder. We're currently engaged. And how do you know him? 5 Q Okay. And is he in the courtroom today? 6 A Yes. 7 Q Could you tell me where he is sitting and 8 describe what he's wearing? 9 A Yes. He's to the right of you and he's 10 wearing a green jumper. 11 Q Okay. 12 MS. BROWN: Record reflect that the • 13 witness has identified James Ryder . 14 THE COURT: So noted. 15 Q (By Ms. Brown) And is James the subject of the 16 Hill County Cause Number 37,228? 17 A Yes. 18 Q And that is the case that we are here for 19 today on a motion for new trial? 20 A Yes. 21 Q Nicole, after James was charged in this case, 22 was he appointed an attorney due to being unable to 23 afford one on his own? 24 A Yes. • 25 Q Okay. And who was the attorney that was  26 1 appointed to represent James? • 2 3 4 Mr. A Q Terence Russell. Okay. During the preparations for trial, Russell inform you that an expert was needed for did 5 James's defense? 6 A Yes, ma'am. 7 Q And did Mr. Russell tell you that this expert 8 was vital to James's defense? 9 A He said that he was very well needed in this. 10 Q Did he find a suitable expert? 11 A Yes. 12 Q Who was that? • 13 A Mr. Terrell. 14 Q Jonathan Terrell? 15 A Yes. Yes, Trent Terrell. 16 Q Did Mr. Russell tell you that he would try to 17 have the Court appoint Dr. Terrell as an expert? 18 A No. 19 Q Did he suggest that was an option? 20 A No. 21 Q Did he ask for the family to come up with the 22 payment for that expert? 23 A Yes. 24 Q Okay. How much did Mr. Russell tell you was • 25 needed?  27 1 A 1500. • 2 3 4 Q A Q Did you pay that amount? Yes. Who did you pay that to? 5 A To Mr. Russell. 6 MS. BROWN: Approach the witness, Your 7 Honor? 8 THE COURT: You may. 9 MS. BROWN: (Indicating) 10 MS. CRAIN: I have no objection. No 11 objection. 12 Q (By Ms. Brown) I 'm showing you what has been • 13 marked as Defendant's Exhibit 2 . Do you recognize 14 that? 15 A Yes. 16 Q And what do you recognize it to be? 17 A That's the receipt for the 1500 for the 18 expert. 19 Q And is that a true and correct copy of the 20 receipt that you received on that day? 21 A Yes, ma'am. 22 Q And who is that signed by? 23 A Mr. Russell. 24 Q Okay. And what was the amount on that? • 25 A 1500.  28 1 And what was the date of that receipt? • Q 2 A August 14th. 3 Q And was the number of that receipt 067001? 4 A Yes. 5 MS. BROWN: Offer Defendant's Exhibit 2. 6 THE COURT: Defendant's 2 is offered. No 7 objection. It is admitted. 8 Q (By Ms. Brown) Did you believe that 9 Mr. Russell had hired Dr. Terrell to appear on James's 10 behalf? 11 A Yes. 12 Q And that Mr. Russell would use whatever legal • 13 means necessary to secure his presence at trial? 14 A Yes. 15 Q Okay. Did Dr. -- or did Mr. Russell subpoena 16 Dr. Terrell? 17 A No. 18 Q Did Dr. Terrell appear and testify on James's 19 behalf? 20 A No. 21 Q Did Mr. Russell refund you the $1500 paid to 22 secure the presence of Dr. Terrell at trial? 23 A He refunded a thousand. 24 Q Okay. How was that partial refund given to • 25 you?  29 • 1 A A check. 2 MS. BROWN: Permission to approach? 3 THE COURT: You may. 4 Q (By Ms. Brown) I'm showing you what has been 5 premarked as Defendant's Exhibit 3. Do you recognize 6 that? 7 A Yes. 8 Q What do you recognize it to be? 9 A The check for the refund for the thousand 10 dollars. 11 Q And is this photograph of this check that you 12 received a true and correct copy? • 13 A Yes. 14 Q Okay. And who is that signed by? 15 A Mr. Russell's wife. 16 Q And what account is that drawn on? 17 A Terence A. Russell and Susan Russell. 18 Q Okay. Check Number 1221. Is that correct? 19 A Yes. 20 Q And what is the amount of that check? 21 A 1,000. 22 Q And the date? 23 A 9-6 of '14. 24 Q Okay. • 25 MS. BROWN: Offer Defendant's Exhibit 3.  30 1 THE COURT: Any objection to 3? • 2 3 4 in the -- MS. CRAIN: THE COURT: Your Honor, was that included I think that she showed that 5 to you a moment ago. I don't know if it's included in 6 the others. 7 MS. CRAIN: I don't think -- I have no 8 objection. 9 THE COURT: Defendant's 3 is admitted. 10 Q (By Ms. Brown) Who was that delivered to you 11 by? 12 A The check? • 13 Q (Moving head up a'nd down). 14 A From his wife. 15 Q And have you received any further refund from 16 Mr. Russell? 17 A No, ma'am. 18 MS. BROWN: No further questions for this 19 witness. 20 MS. CRAIN: Your Honor, I have no 21 questions of this witness. 22 THE COURT: Thank you. You may step 23 down. 24 MS. BROWN: Defense rests, Your Honor. • 25 THE COURT: Defense rests. Does the  31 1 State wish to present anything? • 2 3 4 MS. present any evidence, CRAIN: THE COURT: The State does not wish to Your Honor. Thank you very much. We'll 5 take a short break. The Court will review the exhibits 6 and then come back with a ruling. 7 MS. BROWN: Could we argue on that, Your 8 Honor? 9 THE COURT: Sure. Let's take a short 10 break and let me review the exhibits before you argue. 11 MS. BROWN: Thank you. 12 THE COURT: Thank you. • 13 (Recess from 9:44a.m. to 10:00 a.m.) 14 THE COURT: Okay. The Court will 15 entertain closing statements at this point. 16 MS. BROWN: Thank you, Your Honor. First 17 I'd just like to note for the record that the sentence 18 in this case was imposed on August 28th of 2014, making 19 our 75-day window on which the Court can rule on this 20 matter open through November 11th of 2014, next week. 21 On our motion to rescind, defendant would 22 request that you grant our motion to rescind the order 23 denying the first motion for new trial, which was filed 24 by his trial counsel Mr. Russell. It was simply a form • 25 motion and was not in any way substantive .  32 • 1 If the Court does not grant our motion to 2 rescind, this hearing and the record created is a legal 3 nullity. Even if you're not inclined to grant our 4 second motion for a new trial, we ask that you please 5 grant our motion td rescind so that we -- so the 6 appellate court on direct appeal will have the benefit 7 of this record. As Your Honor has noted, much time and 8 effort has been put into this by all sides, you being 9 here today and taking the time to get James here today 10 and everything else. It would be a shame for that to be 11 for nothing, and even if you choose not to grant our 12 second motion, it saves the County money and the • 13 taxpayers money to be able to have this record to be 14 able to use on direct appeal instead of having to go 15 through the appellate process to a writ process. So we 16 would ask that you please grant our motion to rescind. 17 Regarding the motion for new trial, 18 defendant requests the Court grant our motion for new 19 trial based on the ineffectiveness of trial counsel. In 20 order to show effective assistance, two things are 21 required. First we must show that trial counsel's ( 22 performance wai deficient at trial, and we must show 23 that the deficient performance prejudiced the defendant. 24 These two components must be proven to a preponderance • 25 of the evidence .  33 1 Regarding counsel's deficient • 2 3 4 performance, where it can be argued that counsel made a decision based on reasonable strategy, shouldn't find a deficiency. the Court That can exist here, 5 though, because trial counsel has admitted both in his 6 affidavit and before the Court today in his testimony 7 that he had every intention of having Dr. Terrell here; 8 that Dr. Terrell's testimony was material to the defense 9 of James Ryder; that he was, in fact, deficient in 10 failing to secure Dr. Terrell's presence; that he had no 11 strategic method or decision or anything that went into 12 his not having Dr. Terrell here. There was no strategy • 13 involved. Therefore, trial counsel's performance must 14 be found to be deficient because a reasonable attorney 15 would have done so. 16 Second, prejudice to the defendant. To 17 demonstrate prejudice from the failure to call a 18 witness, it must be shown that the witnesses would have, 19 in fact, testified and that the testimony would have 20 been favorable to the accused. You have testimony in 21 front of you via Defendant's Exhibit 1, the affidavit of 22 Jonathan Trent Terrell and his incorporated exhibits, 23 that show that if he had been subpoenaed or otherwise 24 secured, Dr. Terrell would have been present to testify • 25 at trial; that Dr. Terrell would have testified as to  34 1 the susceptibility of young children to suggestion and • 2 3 4 what is remembered; childhood amnesia, is remembered; that all persons are subject to a period in which little to nothing that the complaining witness was in this 5 age that would be affected by childhood amnesia; that a 6 child often believes they are telling the truth and is, 7 in fact, credible even though what they say may have 8 little to no truth to it because of false memory; and 9 Dr. Terrell believed his testimony would not only be 10 favorable to the defense, but material. 11 Regarding what opposing counsel said 12 regarding no specifics of the case would be testified • 13 to, Dr. Terrell stated that each case is different, but 14 especially in cases of alleged sexual abuse, his role is 15 not to interpret the specifics of what happened, but 16 whether to talk about factors that have been shown to 17 affect the reliability of such memories in young 18 children. 19 Trial counsel also testified that Dr. 20 Terrell's testimony would have been favorable and was 21 vital to his defense. Because Dr. -- or counsel '.s 22 performance at trial in failing to secure the presence 23 of Dr. Terrell was deficient and because that prejudiced 24 the defendant and there was a reasonable likelihood that • 25 the outcome of the trial would have been different had  35 1 Dr. Terrell's presence been secured, a motion for new • 2 3 trial should be granted, 4 May I approach, Your Honor. I have a case on point, Your Honor? Ex Parte Briggs. 5 THE COURT: You may. 6 MS. BROWN: Out of the Court of Criminal 7 Appeals in 2005 in which trial counsel did not secure 8 the -- secure an expert because -- in this situation 9 because they wanted -- paid for the expert. The Court 10 stated that a reasonably competent attorney, regardless 11 of whether he is appointed o~ retained, must seek to 12 advance the client's best interest in a reasonably • 13 competent matter. In that case the clear and obvious 14 defense was one that was recognized, f ocu·s ing on the 15 medical history and the cause of death of the child. In 16 this case it was also recognized by trial counsel, and 17 it was focusing on the reliability of children's 18 memories. 19 In that case the Court said a reasonably 20 competent attorney where the applicant could not come up 21 with fees for medical experts would either subpoena the 22 treating doctors or would withdraw from the case or 23 would file an Ake motion. Your Honor, Mr. Russell did 24 not subpoena Dr. Terrell. He has admitted that both in • 25 his affidavit and today in testimony . He did not  36 • 1 attempt to withdraw from the case, and we know that he 2 did not file an Ake motion either. 3 The Court stated that the failure by an 4 attorney to take any steps to subpoena a treating 5 doctor, withdraw from the case, or file an Ake motion 6 provided ineffective assistance of counsel, it 7 constituted a deficient performance, and in that case it 8 did prejudice the defendant because the examination 9 would raise considerable doubt as to the reliability of 10 the records. 11 And in that -- in this case the testimony 12 of Dr. Terrell would have raised doubt as to the • 13 reliability of the child witness's memory. So, in fact, 14 it was material to the defense, it was favorable to the 15 defense, and it would have changed -- and it could have 16 changed the outcome of the trial. And we would ask that 17 you grant our motion for new trial. 18 THE COURT: You may proceed. 19 MS. CRAIN: Your Honor, the State would 20 object to this amended motion for new trial under 21 21.4 (b), which states that the time to amend on a motion 22 for new trial is within 30 days after the date when the 23 trial court imposes or suspends sentence in open court, 24 but before the Court overrules any preceding motion for • 25 a new trial, and that -- then it goes on to say,  37 • 1 Defendant may, without leave of court, file one or more 2 amended motions for new trial. 3 In this particular situation we would 4 object to the amended motion for new trial being timely 5 filed as the Court had previously overruled -- I mean, 6 had previously overruled the motion for new trial, and 7 we would ask the Court to rely on its initial ruling in 8 this case. 9 In regards to the determination on 10 whether or not counsel is ineffective in providing 11 expert witness testimony, there is no blanket rule that 12 if counsel does not provide an expert's testimony in a • 13 sexual assault case that that is first, per se, 14 ineffective assistance of counsel, Your Honor. 15 It should be -- and, in fact, in this 16 particular situation what you have to show is that the 17 witness would have been -- or that the witness was 18 unavailable and that -- well, I guess technically that 19 the witness was available to testify at trial and that 20 the result of the proceeding would have been different. 21 In this particular situation that is not 22 true. It is very clear from the testimony that Mr. 23 Terrell made himself unavailable, Your Honor. It sounds 24 like it was -- precautions were put in place to have him • 25 here and he was -- he made himself unavailable to the  38 • 1 Court when he knew that he was requested to be here . 2 Belton is maybe an hour, at most an hour and a half 3 away. We're talking about 12:00 in the afternoon. He 4 could have been here well before the close of business 5 on that day, and he chose to make himself unavailable to 6 the Court. 7 Your Honor, also, the testimony has been 8 from affidavits as well as from Mr. Russell that it was 9 just going to be generic testimony, that it was nothing 10 specific to the facts of this case, and, therefore, Your 11 Honor, there is nothing that would change the result. 12 You're just testifying to generalities, and there's • 13 nothing specific to the case that can point out and say, 14 Hey, this was wrong, this was wrong, this is why in this 15 case the memory of the child is ineffective, this is why 16 the -- her memory has been influenced -- improperly 17 influenced. And there was nothing from that case -- in 18 this case. 19 And, in addition, Your Honor, the defense 20 counsel had the opportunity to cross-examine the State's 21 witnesses in regards to these matters and, in fact, did 22 cross-examine in regards to several memory issues and 23 procedures used. And therefore and he presented his 24 defense through othe.r witnesses as well, and, therefore, • 25 he had the opportunity to put on his case.  39 • 1 It's not reasonable to say that if you 2 just present general and unspecific testimony in regards 3 to a case where a child is younger that that's 4 automatically going to be reasonable doubt in the minds 5 of the juries because then the State could never get a 6 conviction if an expert was presented that said a child 7 was of that age. And, therefore, that does not show 8 that the result of the proceeding would have been 9 different in any way. 10 And, Your Honor, in addition, in this 11 situation I think i t ' s clear that even in the situation 12 where Mr. Russell hadn't contacted an expert, he would • 13 not have been ineffective for not providing an expert in 14 this case. And, therefore, the fact that Mr. Terrell 15 did not make himself available to the Court is something 16 similar, and by not providing an expert in the case, 17 i t ' s not automatically going to be ineffective 18 assistance of counsel since i t ' s not necessary in every 19 case to provide an expert. 20 And that's all we have, Your Honor. 21 THE COURT: Thank you very much. 22 Anything further? 23 MS. BROWN: Brief response on the 24 timeliness issue, Your Honor. As the Court will note • 25 from the Court's file, the motion to rescind and the  40 1 motion for new trial filed by us was filed within the • 2 3 30-day time line on September the 26th of 2014. noted in our motion to rescind in State versus 4 Awadelkariem - sorry if I did not pronounce that right - And as 5 874 S.W.2d 721, texas Court of Criminal Appeals 1998, a 6 court can rescind orders granting or denying motions for 7 new trial so long as it does so within the 75-day limit. 8 As -- and as we've discussed, we are within that limit. 9 THE COURT: Thank you very much. 10 MS. BROWN: Thank you. 11 MS. CRAIN: Your Honor, if I may just 12 briefly respond to that? • 13 THE COURT: Yes . 14 MS. CRAIN: I would point out to the 15 Court that it's actually at 974. When I was looking it 16 up last night, I did notice that, so just for the Court. 17 But, also, in State versus Moore, 225 18 S.W.3d 556, the Court of Criminal Appeals, in that case 19 the defendant filed a motion outside of the 30 days, and 20 the Court said that the Court did have jurisdiction to 21 hear that motion as long as the State did not object, 22 and that's why the State has objected under 21.4 in this 23 case, so that 21.4 will take application. 24 MS. BROWN: Brief response, Your Honor? • 25 THE COURT: I understand that you filled  41 1 within the 30 . • 2 3 4 what they are, MS. BROWN: THE COURT: Exactly. Okay. Thank you. And the filings are so I ' l l take a look at that and somebody 5 smarter than I am can review those issues if they come 6 up at that level. 7 At this point in time, having considered 8 the evidence in the motion that was brought forward 9 today -- in the motion brought forward today under the 10 Court's direction, I've been requested to rescind and 11 then hear the motion for -- another motion for new 12 trial. The Court is of the opinion that the evidence • 13 that's been submitted today, were it to be heard as a 14 motion for new trial, would be irrsufficient to grant a 15 new trial anyway. But in addition to that, since that's 16 the case, there's no need for the Court to rescind its 17 first order. So at this point the Court denies the 18 motion to rescind its previous order denying the motion 19 for new trial and denies also -- were it to have done 20 that, it would have denied this motion for new trial 21 that's present·today. If, that's error, there's others 22 that can deci~e that, but I don't believe it is. I 23 don't think that there's sufficient evidence to justify 24 a new trial. Thank you. You'll prepare an order for • 25 the Court?  42 Yes, Your Honor. • 1 MS. CRAIN: 2 (Proceedings concluded) 3 4 5 6 7 8 9 10 11 12 • 13 14 15 16 17 18 19 20 21 22 23 24 • 25  43 1 THE STATE OF TEXAS • 2 3 4 COUNTY OF HILL I, Cindy Kocher, Official Court Reporter in and for the 66th District Court of Hill County, State 5 of Texas, do hereby certify that the above and foregoing 6 contains a true and correct transcription of all 7 portions of evidence and other proceedings requested in 8 writing by counsel for the parties to be included in 9 this volume of the Reporter's Record, in the 10 above-styled and numbered cause, all of which occurred 11 in open court or in chambers and were reported by me. 12 I further certify that this Reporter's • 13 Record of the proceedings truly and correctly reflects 14 the exhibits, if any, admitted by the respective 15 parties. 16 I further certify that the total cost for 17 the preparation of this Reporter's Record is $~~~--- 18 and was paid/will be paid by ~~~\_~~~~-----------· 19 WITNESS MY OFFICIAL ·HAND this the ~~day of~~ 20 2014. ~~ 21 ---------------------------- 22 CINDY KOCHER, Texas CSR 5387 Expiration Date: 12/31/15 23 Official Court Reporter, Hill County, Texas ,. 24 25 Post Office Box 274 Hillsboro, Texas 76645 (254)582-4045 •  21 . • 2 ... 1 • : ·, . 22, I haver~tlirn~d the $iOOO,OO check,un~cashed.toMr.R~ssell . . 23c · . ~~~~~s:·:~~~~~~~:~orY ~o~Id have b~~~ ~~tetial to the .• ;::~~i~:;~~~~r~~E~hbJ~iil~~~~~cr!:~:n~~~r.~~~ Further Affiants~y~thJlot. .. • · . . ... • • • • •• . . • Name: Dr. Trent Terrell Direct Examination of Dr. Terrell Where do you live? Temple, Texas How are you currently employed? 9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor, Belton. TIC What are your areas of Specialization? Learning, Memory, and Cognition EDUCATIONAL BACKGROUND Academic Degrees? B.A.• Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from Baylor University, Waco, TX What type of graduate training did you receive in the area of Memory at that time? Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research, dissertation. PROFESSIONAL RESPONSIBILITIES • Could you describe your current responsibilities at the University of Mary Hardin-Baylor? Cognitive psychologist with emphasis in memory Psychology Department Chairperson, August 201 0-present Teach 4 classes a semester-General Psychology, Psychological Methods. Experimental Psychology, Cognitive Psychology, Theories of Learning, Neurophysiological Psychology, Developmental Psychology Supervise undergraduate research in Memory Numerous campus committees Do you belong to any Professional Associations? Association for Psychological Science · Psychonomic Society-Associate Member American Association for the Advancement of Science PRIMARY REsEARCH INTERESTS Confidence and Accuracy in Eyewitness Testimony •  '· • In general, confident witnesses are perceived as more credible than less confident witnesses. However, confident witnesses are not necessarily more accurate. This research investigates factors that may inflate confidence without improving memory accuracy. Lineup Construction and Photo Refreshing How does the construction and presentation of lineups affect the likelihood of correct identifications? How do multiple opportunities to view lineups affect the likelihood of correct identifications? Have you published any works in the field of Eyewitness Identification memory accuracy? Yes Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the lab Have you testified as an expert at other hearings? Yes Have you given any presentations about eyewitness memory? Yes. I presented at the Texas State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio in 2012. I've also spoken to the National District Attorneys Association in Houston and the Center for American and International Law in Plano. • Are you being paid by the defense to testify in this case? Yes. • • What is the most common mistaken belief about memorv? That memory works like a video recorder or computer disk. Both these metaphors suggest that memory retains everything that bas ever happened to us, implying that all events are ultimately retrievable. Memory is a reconstructive phenomenon, not a video recorder: In essence, all memory is false to some degree. Memory is inherently a reconstructive process. whereby we piece together the past to form a coherent narrative that becomes our autobiography. In the process ofreconstructing the past, we color and shape our life s experiences based on what we know about the world (Bernstein & Loftus, 2009) How does memory work then? Memory has three processes-encoding. storage. and retrieval. (NOTE: If you look to the bottom. there ·s a general Q&A about memory section. I can go into as much or as little detail as you think would be necessary here. rve worked with people who want to devote fifteen minutes to it, others who just want a brief answer. Whatever works for you.) Are memories of aUeged sexual abuse the same as eyewitness memories? Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime being committed by someone they do not know, and later trying to identify that person after a • very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but what and if. They're different kinds of memories, but the same factors can affect their reliability. Will we discuss some of those factors todav? Yes. What documents have you reviewed? Very little. I've looked at an amended summary of what outcries would be described in court. Is it usual for you to review so few documents in a case like this? Each case is different, but especially in cases of alleged sexual abuse, my role is not to interpret the specifics of what happened, but rather to talk about factors that have been experimentally demonstrated to affect the reliability of such memories. So to clarify, you will not be testifying that the alleged abuse in this case did not take place? No, my testimony will only involve descriptions of how memory works and doesn't work. Have we spoken before today? Yes. via phone and email. • • Before we begin, let's be clear: are you going to offer testimony that the witnesses in this case are lying, or that they are not credible? No. Credible witnesses can experience and report false memories without intending to be· deceptive or lying. The empirical evidence from years of false memory research indicates that most false memories seem as subjectively real to witness as true memories. Why are you here, then? To provide information to the jury about bow memory works from a scientific background, to identify some of the factors known to affect reliability, and to provide tools that the jury can use as they evaluate the reliability of the child in this case. In general, how do memory researchers classify factors that alter witness reliability? In the Eyewitness Memory literature. researchers discuss two broad classes of factors: Estimator variables and system variables. That distinction is not as important in this kind of case, but I do want to discuss one estimator variable, so I'll mention it. Estimator variables are those that cannot be controlled by the criminal justice system-they are simply the facts of what happened. How long something lasted. how long it has been since the event took place. stress levels of the victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly • remembered later. These are called estimator variables becaUse we can only estimate the impact they might have had on memories. System variables are those that investigators have some degree of control over, such as bow information is gathered after the event. In a case of alleged sex1.18.l abuse, system variables in play are how the child is interviewed, who conducts the interview, and in what context that interview takes place. What estimator variables do you feel might be relevant to this case? Latency. or the time between the event and the time when memories of that event were first reported. One of the most basic findings of eyewintess memory research is that memories d~ over time. Just about every experimental protocol that manipulates the interval between exposure and testing has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In some scenarios, witnesses may not be prompted to think about an event at all after it has occurred, enhancing decay from memory (also called transience). This is true of lab studies, information learned in school, and eyewintess memory (Shapiro & Penrod. J986). NOTE: Stress is also an estimator variable. that reduces accuracy of subsequent memories. Jfs a double- edged. sword though. If abuse did happen, it ""1lS likely stressful for the children. But if if:; your case • . ----··---·-·--- • strength and modality (open/closed) of the suggestions. Generally speaking, the younger the children the more likely they are to incorporate suggestions, and the more likely they are to answer yes to a closed question (whether yes is the correct answer or not). The take-home fact is that if children are asked questions that presume something has happened and are placed in an environment where others seem to think it happened, there's empirical data illustrating they can and often will come to believe it themselves. The Sam Stone experiments seem to discuss ehUdren modifying their memories of something that really happened. Is there any evidence that people can come to remember things from their childhood that did not occur at aD? Yes, there are several examples. One experimental protocol involves what is known as the '"Lost in the Mall" procedure. In this protocol, researchers enlist the help of family members to help make false suggestions to experimental participants that they were lost in the mall for an extended period of time when they were a child. When family members combine suggestions about true events along with the suggestion ofbeing lost in the mall (or being hospitalized overnight, or other traumatic events), many subjects not only come to accept that the event happened, but begin to elaborate add their own details of the event in subsequent recollections. • When family are able to provide convincing details, such as the name of the mall they would've been lost in as a child, or even a store which they frequently shopped at, the subjects are able to imagine how that event might've occurred. There's a well-documented phenomenon known as imagination inflation--when subjects are asked to imagine something occurring for just one minute, they are subsequently more likely to remember what they imagined as something that actually occurred. There's also a natural tendency to think that if everyone else in the family remembers this, I probably should, too. NOTE: DA"s like to pick apart the lost in the mall experiment, because the original study tried it with ::!5 people. and only produced the phenomenon in 6 of th~m. The small sample size has to do \Yith the complexities of recruiting family involvement, etc. lfs a very time-intensive and personal protocol. And they'll say that creating this in 6 people is hardly overwhelming evidence, but the point is that it's possible at all-it·s really a pretty surprising thing that it happens at all. The protocol is also used on adults. not children, and all the evidence supports the idea that the younger the child, the more suggestible they are. The broad, concrete point is that • • we've taken things that we know didn't happen, and convinced people it did so that they remember it as if it did. And the stakes are lower in experiments-it doesn·t really matter if you got lost in the mall or not But. there's a lot more pressure to report sexual abuse. so ifs not really a one-to-one comparison. Are there any developmental factors that may be relevant to this case? Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll explain below), •'magical thinking.. and an underdeveloped "Theory of Mind. Taking these one-by-one: Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and all of us have virtually no episodic memories of the first two years of our lives. The time of offset of childhood amnesia (the ability to start to form long-term memories accessible as adults) is different for all people. Most of us would say our first memory is from around age 3 or 4. What causes childhood amnesia? A few things. the most important of which is the progression of language development Our long-term memories are anchored in meaning and are rehearsed and stored phonologically (using language). In short, children can't form memories accessible as adults in the first 2-3 years of • life because they do not have the vocabulary necessary to represent those ideas in their minds and rehearse them. When children start learning language proficiently, they are able to rehearse better and begin to store memories that will be accessible as adults. Another factor potentially relevant here is a bit complicated to explain-the concept of encoding specificity. This means that memories are encoded in a certain way, using a certain way of thinking and a certain viewpoint, and that they need to be retrieved with that same way of thinking and that same viewpoint (Another more formal way of putting is to say that recreating the context of encoding at the time of retrieval makes it more likely to remember what was encoded). Most of the memories we have from childhood are encoded from a child's point of view, using childlike interpretations and childlike terminology. When we grow up, we are unable to access those memories because we no longer view the world in that childlike way-we think in adult terms and from adult viewpoints, and find it virtually impossible to remember the world the way we did when we were children. • • Encoding Specificity. This idea of encoding specificity may be particularly important in a sexual abuse case, especially involving very young children. Young children (hopefully) do not understand sexual actions and sexual terms as abuse is taking place. It's not at all likely that young children immediately understand that they have been sexually abused. They may have been uncomfortable or upset or scared, but they're likely not able to encode- what happened as sexual abuse. Therefore. when asked about sexual abuse as an adult (or an older child), the adult definition of abuse calls to mind different things than were likely encoded during the abuse as a very young child. This explains why directive and closed questioning often has to be used, and illustrates the difficulty of interviewing children about possible abuse without being suggestive. Investigators likely use euphemistic questions about touching and parts of the body touched, and the possibility must at least be considered that children cannot separate innocuous touching (such as diaper changing) from harmful touching. As an example, many children will respond to the closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the doctor just gave the child an ~ection. The child doesn't understand that the injection was for his/her benefit, and is just as upset with the doctor as would be if he/she had touched the child • malevolently. It is vital to underscore that not being able to remember abuse doesn't mean it didn't happen. It is nearly an impossible task to derive the pertinent information without speaking vaguely (with euphemism) or suggesting the possibility of actions with closed questions. Magical ThinkinWJheorv of Mind. Refers to the idea that children in Piaget's Pre-operational stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical thinking is often seen during the grieving process as children are first encountering the concept of death. Not able to understand the finality of death, they rationalize the absence in the only way they have experienced--by asswning the loved one is out of town or has a gone away temporarily but will return. When presented with other information that is outside what they understand (such as the idea that Sam Stone was very clumsy), children of this young age are much more likely than adults to bridge the gap in what they understand than to challenge discrepancies. Often the shortest bridge is to accept what the adult says is true. or to accept what the other children are saying as true. and then build upon that concept subsequently. This • • happens frequently when children are corrected by their parents about the names of things, colors of things, about language usage and other areas in which they make wrong assumptions. It is a nonnal part of cognitive development to accept ideas presented by an adult-Piaget calls this assimilation and accommodation. This all relates to the process of the child developing a Theory of Mind. A Theory ofMind is the understanding that all individuals have their own minds and their own way of seeing the world, and that different people have different opinions and not everyone knows the same information. While adults take this for granted. children have to learn this through trial and error. Piaget called this stage ••egocentrism", because children do not understand that people have different feelings and desires as they do. Young children often exemplify egocentrism when, for example. they are asked to show their mother the picture they drew, and they hold the pictw'e out with the back of the picture facing mom and the actual picture visible to them. They feel that because they can see the picture, mom can too. It's understandable that this concept can be reversed. If a non-fact is suggested to young children as if it is fact; children are likely to accept this fact because they don't understand that the adult could have a different set of knowledge than they do, or that the adult might be lying or be mistaken. All of this speaks to why young children are more suggestible than adults and have a • harder time saying ..no" to closed questions. Are there protocols that can be used to reduce the suggestiveness of child interviews? While there is not a formally-agreed upon process, there are suggestions for how to reduce the likelihood of suggesting information to children: • Use open-ended questions when possible • Listen as much as possible and try to let the child be in control of the direction ofthe conversation o In other words, refrain from pushing them back towards what is suspected to have happened as much as possible • Have someone not emotionally-involved with the situation conduct the interview o This reduces demand characteristics placed on the child to be a good boy or girl for a known authority figure • Attempt to establish rapport with the child with a series of unrelated questions before moving on to the more important questions • • • • Conduct a formal, docwnented interview as soon as possible after initial outcry. Try to limit other discussions/interviews with family members before this interview, as these discussions can be very suggestive Limit repeat interviews if possible. The Sam Stone paradigm of research has demonstrated that off-the-cuff and non-factual narrative offered by children in one interview are often recalled as factual memories in subsequent interviews, especially if the content of that narrative is encouraged or met with positive response by the interviewers. Ask this if you w-ant, I think it'd be a decent way to end: It's the defense's argument that the children in this case were brainwashed to belieye that these events hapoened. Is there any evidence in your field that this is possible? Brainwashing is really more of a colloquial term than one we use routinely in the field. What I'm comfortable saying is that there is empirical evidence that people can come to remember things that didn't occur because that suggestion was made to them. Sometimes those suggestions are deliberate and purposeful, as in the lost in the mall procedure, and other times those • suggestions are unintentional-such as might occur when an investigator asks if something happened. I would reiterate that the biggest and most persistent misconception about memory is that once they're formed in the brain, they don't change. Memories are not shrink-wrapped facts stored in the brain waiting to be opened. They're reconstructed each time an event is re- experienced mentally, and every time that happens what's re-experienced is different. How you ask questions can change how memories are reconstructed, just as how an interviewer responds to answers can change how memories are reconstructed next time. It's an incredibly dynamic process. I wouldn't call that brainwashing, I would say that memories are very malleable and change over time . • • Background information .lus1 an FYI seclioH-il sounds like you '\.·e already got ttlot ofbackgrowzd info. Some ofiizis is wr:v similar 10 my talk in Houston. General Memory O&A Probably the most common metaphors used to describe human memory are that "memory is a videotape" and "memory works like storage on a computer disk." Are these good analogies for human memory? No, and this is probably the most important finding of the last 100 years or so in memory research. Both videotapes and computer disks are reproductive media. meaning that they store information in a more-or-less literal manner. Both represent memory as being static and unchanging, and imply that what is stored in memory is always a faithful representation of the actual event. Furthermore, both metaphors suggest that memory retains everything that has ever happened to us, implying that all events are ultimately • retrievable. For example, we may have a difficult time remembering something, just as we might have troubling finding a certain 5-second clip on a videotape. Since we will eventually find this 5-second segment if we keep rewinding and reviewing the videotape, we often assume memories will be similarly accessible. But memory is DQtlike a videotape or bard disk. Videotape and hard disks are reproductive storage device, always retrieving the same information. In addition, what is stored on the tape or disk is a literal representation of the original event. But memory does not work this way. In fact, the single most important principle underlying memory is this: memory is a dvnamic. creative. and reconstructive process. Memory works by storing bits and pieces of the original events, combining those fragments with other sources of information to reconstruct the original event. What are the basic processes.used in memory formation and retrieval? Memory researchers typically speak of memory formation as having three distinct stages, encoding of new information, consolidation and storage of the information, and retrieval of the memory. The process of encoding refers to the conversion of perceptual and sensory • • information into a form that the brain can represent and store. In virtually all cases, encoding alters the sensory information in some way In fact, two people listening to the same conversation may have drastically different recollections of the same event Memory researchers would say that these two individuals encoded the information in different ways. A great deal of what we call ..forgetting" is often a failure of the encoding process. One classic demonstration involves the inability of most people to recall the front of a penny from memory. Which way does Lincoln face? Where is the date? What is written across the top and bottom of the coin? Some people can get close, but few are able to draw the coin with complete accuracy. Even when shown several possible alternatives and asked to identify the correct one-- usually, recognition is easier than recall-this task is still difficulL We might be tempted to say that we "forgot" what a penny looks like, but it would be more accurate to say we never knew in the ftrst place. Memory fails because the information was never encoded to begin with. 2. ConsoHdation and Storage Consolidation is the term used to refer to the process by which short-term memories are converted into long-term memories. Consolidation of memories in the brain is something like water being frozen into ice cubes. Both processes take time. and both can be disrupted. For • example, if an ice cube tray filled with water is taken from the freezer and vigorously shaken before the cubes have started forming, the process of ice cube formation has been irreversibly stopped. Once the water is spilled from the tray, there is nothing that can be done to get that water back in. Generally speaking, the degree of disruption is directly related to the severity of the injury. Storage refers to the preservation of the memory over a period of time. One of the most profound generalizations one can make about memory is that memory strength and accuracy declines predictably with the passage of time. 3. Retrieval Finally, retrieval is the process of finding and accessing previously stored memories. Retrieval does not occur in a vacuum. It is guided by retrieval cues. or bits of information that are related to items stored in memory. Retrieval cues can exert powerful effects on memory. Unfortunately, retrieval is the stage of memory where errors are most likely to be introduced Memory is a reconstructive phenomenon, a.'ld most of the reconstruction occurs during retrieval. • • When misleading or biasing cues exist at retrieval, they can seriously compromise the accuracy of retrieval. If memory is reconstructive, then, it must make errors. Has a taxonomy of memory errors and distortions been developed? Harvard University psychologist Daniel Schacter, one of the country's most prolific and distinguished memory researchers, recently identified seven factors clearly shown to reduce the reliability of memory. He identifies these as follows: • transience, or forgetting that occurs with the passage of time. As discussed earlier this is perh.aps the most profound generalization one can make about memory. • absent-mindedness, a lapse in attention during an event that inhibits (or precludes entirely) the successful encoding of a memory. As noted earlier, such encoding failures are devastating; one cannot retrieve what was never encoded to begin with. • blocking, or the inability to retrieve information due to interference by other items stored in memory. For example. learning a new computer password is often complicated by the intrusive recollection of previous passwords. • • misattribution, whereby an event that occurred in one context is mistakenly attributed to another. Furthermore, sometimes current feelings of familiarity are mistakenly attributed to past events. Phenomena such as source confusion and even deja vu result from misattribution. • suggestibility, in which misleading information from external sources are used to influence memory. In product identification cases, this can often result from reviewing photobooks or reviewing information obtained from Internet searches. (The same factors can also result in rnisattribution, in which a product is identified as familiar, and thus selected. Having reviewed the product in a book of photos can induce a sense of familiarity, even when a product was never actually used.) • bias, where various factors cause distortions in memory. Change and consistency biases cause us to reconstruct the past in a way that is different from (for change biases) or similar to (for consistency biases) the present. If memory of our past behavior is disturbing in some way, we may reconstruct the memory in a less threatening manner. Hindsight biases occur when we reinterpret past events in terms of currently available • • (but initially unavailable) information. Egocentric biases occur when we exaggerate our role or importance in past events. Finally, stereotypical biases influence memory by distorting them based on generic memories, what "usually" or "probably" happened. • persistence, in which (usually) emotionally charged memories intrusively come to mind. even when we attempt to suppress them. Persistence is responsible for such clinical phenomena as post-traumatic stress disorder and flashbulb memories. Does inaccurate identification by eyewitnesses cause innocent people to be convicted? Memory's reconstructive nature has profound implications one the role eyewitness memory testimony in the courtroom. Recent advances in DNA technology bas further demonstrate eyewitness fallibility. Based on information tracked by the Innocence Project, by August, 2007. more that 200 falsely convicted individuals have been exonerated by DNA evidence. Mistaken eyewitness identification was involved in more than 75% of those false convictions (see Innocence Project, 2008; The Justice Project, 2007). • What kind of errors are common among eyewitnesses? 1. Souree Monitoring and Source Confusion Source monitoring is defined as the ability to recall not only the content of memories, but also the source from which the information was obtained. According to Johnson et al, (1993), ''source monitoring is based on qualities of experience resulting from combinations of perceptual and reflective processes, usually requires relatively differentiated phenomenal experience, and involves attributions varying in deliberateness. These judgments evaluate information according to flexible criteria and are subject to error and disruption" (p. 3). Source confusion, then, results from a failure of source memory. Source confusion occurs when information is learned from one source but misattributed to another source. This can occur when witnesses are shown photographs of suspects or objects prior to questioning. and later are asked to identify the suspects or objects. In cases where the source of the information is entirely forgotten, source confusion can still exert effects by increasing self-reported confidence. Source confusion can also result from simply thinking about something. For example. individuals who are asked to imagine that a remote event happened to them later have difficulty • • in distinguishing actual events from imagined events, a phenomenon known as ''imagination inflation" (M. Garry & Polaschek, 2000; Roediger & McDermott, 2000). A person's subjective confidence in these memories is similarly inflated by imagination (Maryanne Garry, Manning, Loftus, & Sherman, 1996), further illustrating why confidence is not a reliable indicator of accuracy. The erroneous memories are quickly and easily formed; they can be created in real- world settings with a single imagination episode, within a few days of the imagined event (Seamon, Philbin, & Harrison, 2006). 2. Demand Characteristics Demand characteristics refer to biases introduced in research by the expectations of the researchers. the participants, or both. Well-known "halo effects" often occur in education settings. with teachers assigning higher grades to students from which they had expected better performance. In eyewitness memory settings, demand characteristics operate in any situation where there is an expectation of the witness. Most witnesses in criminal cases want to be helpful to the investigators, to be "good witnesses." When asked to view lineups in the presence of police officers, witnesses frequently make an identification even when they are uncertain (Wells & • Luus, 1990). For this reason, the US. Dept. of Justice now reCommends that lineups be conducted by individuals who are unaware which person is the actual suspect (U.S. Department of Justice, 199'9). Demand characteristics combine Schacter's "bias" and "suggestibility." 3. Leading Questions Leading questions, as described in an earlier section, introduce errors through the reconstructive processes of retrieval. Information present in the questions themselves becomes incorporated into a witness's memory. Furthermore, these effects are persistent; the biasing effects may permanently change the memory for an event. Leading questions result from Schacter's "suggestibility" and are exaggerated by the problems of transience. 4. Hindsight bias. Hindsight bias refers to the tendency of witnesses to report higher subjective confidence after making an identification than before. The diagnostic value of the confidence judgment, however, is impaired. Tills effect is exacerbated by any verbal reinforcement given after an • • identification is made. Wells (Wells & Bradfield, 1998) found that telling eyewitnesses "good, you identified the suspect" distorted further report. These biases need not be explicit, however. If a witness makes an identification but is asked to "look again." the implied message (i.e., the demand characteristics) is that the first identification was wrong (Wells & Bradfield, 1999). S. Encoding Failures Some memory errors can be overcome. Sometimes retrieval of information is temporarily blocked, as in so-called "lip of the Tongue" states. When retrieval blocks are removed (either experimentally, or by the passage of time), the correct answer can often be retrieved. Encoding failures, however, are "fatal" memory errors. Information that was never encoded in the first place is impossible to retrieve. Poorly encoded information, on the other hand, is more likely to suffer suggestibility effects (Hyman & Loftus, 2002). Encoding failures are the cause ofSchacter's "absent-mindedness." 6. Post-Event Information Because memories are not static snapshots in time, they can be influenced by events or information learned after the event in question. That is, our memories for the past are influenced • not only by the events itself, but by what we have learned since the event happened. Post-event information has its greatest effect when there is a relatively long delay between the event and post-event information and a short delay between the information and the test (Loftus. Miller, & Burns, 1978). Furthermore, it is difficult or impossible for witnesses to distinguish post-event information from real event information, a phenomenon known as the "knew-it-all-along effect" (Metcalfe, 2000). Mazzoni and her colleagues (Mazzoni, Loftus, & Kirsch, 2001) have proposed that the creation of false memories can be understood as a 3-phase process. First, individuals have to see the event as plausible, something that could have happened to them. Second, individuals come to believe that the event did happen to them, and begin imagining or generating elaborations concerning the fictitious event. Finally, individuals begin to mistake these internally generated events and details for external, real events (a problem of source confusion). • • Jonathan Trent Terrell, Ph.D. University of Mary Hardin-Baylor Assistant Professor and Chairperson. Department of Psychology 900 College Street Belton, TX 76513 254-295-4630 806-570-6849 (cell) nerrell@umhb.edu EDUCATION Bachelor of Arts in Psychology, Baylor University, May 2003 Master of Arts in Neuroscience, Baylor University, August 2005 Doctor of Philosophy in Experimental Psychology, Baylor University, May 2008 Specialization: Cognitive Psychology, Eyewitness Memory Academic Mentor: Charles A. Weaver, III COURSES TAUGHT • General Psychology Experimental Psychology Cognition Psychology and Film Freshman Seminar Psychological Methods Developmental Psychology Newophysiological Psychology PROFESSIONAL AFFILIATIONS Association for Psychological Science American Association for the Advancement of Science Psychonomic Society-Associate ArmadiJJo (Association for Research in Memory, Attention, Decision making, Intelligence, Language, Learning, and Organization) CONFERENCES ATTENDED Annual Meeting of the Psychonomic Society: 2006, 2007, 2009,2010,2011 Armadillo: 2006, 2007 Texas A&M Annual Assessment Conference: 20 I 0, 20 II • • CONSULTING WORK I have consulted and testified in many criminal cases as an expert on eyewitness memory. My testimony addresses the basic processes of memory formation and retrieval, as well as estimator variables (such as event duration, stress, weapon focus, witness intoxication) and system variables (such as lineup construction, instructions given to witnesses, etc). COMMITTEE WORK Academic Institutional Quality Committee Student Success Team Committee Online Education Task Foree Strategic Planning Stewardship Committee Chair-Student Scholars Day and Research Symposium Planning Committee, 20 J0-2011 UMHB Quality Enhancement Project Planning Team PUBLICATIONS. PRESENTATIONS & AWARDS Weaver, C. A Ill & Terrel~ T. (2004). Laboratory in cognitive psychology: Student Manual. Published by Baylor University. • Weaver, C. A. Ill, Terrell, T., & Krug, K. S. (2004). Evaluating the reliability of witness memories in product identification cases. In Andrews Publications' Asbestos Litigation 2004 (Section 19, pp. 1-18). New Orleans, LA: Thompson-West. Weaver, C. A III, Terrell, T. & Krug, K. (2004, April). Remembrance oflhing past: Evaluating the reliability ofwitness memories in product identification cases. Andrews Publications' Asbestos Litigation 2004 Conference: New Orleans. Weaver, C. A. III. & TerreU, J. T . {2005, May). Eyewitness memory and product identification? Harris Martin Publications Asbestos Litigation Conference: The Increasing Prominence of Equipment, Gasket and Friction Defendants. Las Vegas. Weaver, C. A. III. Terrell, J. T., Krug, K., & Kelemen, W. L. (2005, November). The delayed JOL effect with very long delays: Evidence from Flashbulb Memories. Paper presented at Memory and Metamemory: Papers in Honor ofThomas 0. Nelson, Toronto. TerreU, T. J., & Weaver, C. A•• Ill (2005, November). The effects ofmisiriformation on eyewitness memory and product identification. Paper presented at the 45th annual meeting of the Psychonomic Society, Toronto. TerreU, J. T. (2006, February). The e./focts ofmisiriformation on eyewitness memory and product identification. Invited address. Baylor University Interdisciplinary • • Scholarship Forum. Terre~ J. T. (2006, May). Winner, Outstanding Graduate Research, Baylor University Interdisciplinary Scholarship Forum. Weaver, C. A. III., Terre~ J. T., & Holmes, A. E. (2006, October). Evaluating the reliability of eyewitness memory in product identification cases, Asbestos Litigation in the 21st Century. New Orleans: American Law Institute/American Bar Association. TerreU, J. T. (2006, October). Creating new memories, destroying old ones: Refreshing recollections ofeyewitnesses. Invited address. Baylor University Nu Rho Psi Society. Terre~ J. T., & Weaver, C. A. III. (2006, October). Eyewitness memory in civil cases: Photo refreshing, suggestion, and product idemijicalion. Poster presented at the 16ch annual Southwest Conference on Cognition, Texas Tech University: Lubbock. Terrell, J. T., & Weaver, C. A.• III. (2006, November). "'Refreshing recollection" of eyewitnesses: Memory retrieval or memory creation? Poster presented at the 47th annual meeting of the Psycbonomic Society, Houston. Weaver, C. A, ID, & Terrell, J. T. (2007, October). Remembering bad things, not bad guys: Eyewitness memory in product liability cases. Paper presented at the 17th annual Southwest Conference on Cognition. Trinity University: San Antonio . • Terrell, J. T. (2007, October). Eyewitness memory and product identification: Suggestibility andfalse memory creation. Poster presented at the 1-rt' annual Southwest Conference on Cognition. Trinity University: San Antonio. Te~ J. T., & Weaver, C. A., III. (2007, November). Remembering products, nol faces: "Refreshing recollection" ofeyewitnesses in product liability situations. Paper presented at the 48th annual meeting of the Psycbonomic Society, Long Beach. Weaver, C. A. III, Terrell, J. T., Krug, K. S., & Kelemen, W. L. (2008, May). The Delayed JOL Effect with very long delays: Evidence from flashbulb memories. In J. Dunlosky and R. A. Bjork (Eds.), A handbook ofmemory and metacognition. Hillsdale, NJ: Lawrence Erlbaum Associates. Terrell, J. T. & Weaver, C. A. Ill (2008). Eyewitness testimony in civil litigation: Retention. suggestion, and misinformation in product identification. North American Journal of Psychology. 10, 323-346. Terrell, J. T. (2009, November). Repeated photo refreshing and product identification. Poster presented at the 50cb annual meeting of the Psychonomic Society, Boston . • • Weaver, C. A. III, Parra. K. F. & Terrell, J. T. (2010, November). Addressing memory-related issues in asbestos cases. San Diego: Defense Research Institute. Weaver, C. A., 111, K.rug, K. S., TerreU, J. T., & Holmes, A. E. (in press). Eyewitness memory Issues in civil litigation. In A. Jamieson & A. Moenssens (Eds. ), Wiley Encyclopedia of Forensic Science: Behavioral Sciences. Chichester, UK: John Wiley & Sons, Ltd. TerreU, J. T. (20Jl, April). Invited response to Frederick, K. (2011). The creation of a measurement instrument. The Evolution of a Psychometric Tool from Development to Application. Baylor University, Department of Educational Psychology Spring, 201 J Doctoral Student Symposium. Terrell, J. T. (20II, July). Tire dynamics ofeyewitness identification. Paper presented at the Texas State Bar CLE Advanced Criminal Law Course and Criminal Law 101, Houston. Parra, K. F., Terrell, J. T.., & Weaver, C. A. UI (20 I I, October). Difforing cognitive loads affect knowledge updating in jurors. .Poster presented at the 2 I st annual Annadillo Conference on Cognition: Texas A&M Commerce University: Commerce, TX. Parra, K. F., Terrell, J. T.., & Weaver, C. A. III (20 II, October). Do common misunderstandings ofmemory extend to attorneys? Poster presented at the 21st annual Armadillo Conference on Cognition: Texas A&M Commerce University: Commerce, TX. • TerreD, J. T. (20 I I, November). Effects ofrepeated photo refreshing on eyewitness identification. Poster presented at the 52"" annual meeting of the Psychonomic Society, Seattle. INVITED PRESENTATIONS 2008, October: Eyewitness Testimony in Civil Litigation: Retention, Suggestion and Misinformation in Product Identification. UMHB College of Sciences Brown Bag Presentation 2010, March: Assessment Brown Bag, part ofUMHB IQ Council's Assessment Series. 2010, November: Presenter at UMHB Central Texas Book Club's discussion of"The Screwtape Letters" by C.S. Lewis. 2011. March: Presenter at UMHB Central Texas Book Club's discussion of"Into the Wild" by Jon K.rakauer. 2011. April: Class Size 60: How I Put General Psychology Online and Lived to Tell About It Faculty Conversation sponsored by UMHB's Center for Effectiveness in Learning and Teaching. •  • • 2011. July: Dynamics ofEyewitness Identification. Paper presented at the 37'h Annual State Bar of Texas Advanced Criminal Law Course. Houston. 2012. July: Eyewitness Identifcation: Exploring the Relevant Factors Through Case Examples. Paper to be presented at the 38'h Annual State Bar ofTexasAdvanced Criminal Law Seminar. San Antonio. 2012. September (pending): Counter Evidence of Eyewitness Unreliability: The Science. Paper to be presented at a training sponsored by the National District Attorneys Association in Harris County. • •  Direct Examination of Dr. Terrell • Name: Or. Trent Terrell Where do you live? Temple, Texas How are you currently employed? 9/08- present: Associate Professor of Psychology, University of Mary Hardin-Baylor, Belton, TX. What are your areas of Specialization? Learning, Memory, and Cognition EDUCATIONAL BACKGROUND Academic Degrees? B.A., Psychology '03, M.A. Neuroscience '05, Ph.D. Experimental Psychology '08, all from Baylor University, Waco, TX What type of graduate training did you receive in the area of Memory at that time? Ph. D. in Experimental Psychology, (eyewitness memory). Classes, research, dissertation. PROFESSIONAL RESPONSIBILITIES Could you describe your current responsibilities at the University of Mary Hardin-Baylor? • Cognitive psychologist with emphasis in memory Psychology Department Chairperson, August 20 I 0-present Teach 4 classes a semester-General Psychology, Psychological Methods, Experimental Psychology, Cognitive Psychology, Theories ofLearning, Neurophysiological Psychology, Developmental Psychology Supervise undergraduate research in Memory Numerous campus committees Do you belong to any Professional Associations? Association for Psychological Science Psychonomic Society-Associate Member American Association for the Advancement of Science PRIMARY RESEARCH INTERESTS Confidence and Accuracy in Evewitness Testimony • ..MtJrEXHIBrt. (p.V.,'" ~1tli' '·~~. ~. ~~Nl  In general, confident witnesses are perceived as more credible than less confident witnesses . • However, confident witnesses are not necessarily more accurate. This research investigates factors that may inflate confidence without improving memory accuracy. Lineup Construction and Photo Refreshing How does the construction and presentation of lineups affect the likelihood of correct identifications? How do multiple opportunities to view lineups affect the likelihood of correct identifications? Have you published any works in the field of Eyewitness Identification memory accuracy? Yes Have you performed your own "hands-on" tests regarding memory accuracy? Yes, in the lab Have you testified as an expert at other hearings? Yes Have you given any presentations about eyewitness memory? Yes, I presented at the Texas State Bar Advanced Criminal Law Seminar in Houston in July, 2011, and again in San Antonio in 2012. I've also spoken to the National District Attorneys Association in Houston and the Center for American and International Law in Plano. • Are you being paid by the defense to testify in this case? Yes . •  What is the most common mistaken belief about memory? • That memory works like a video recorder or computer disk. Both these metaphors suggest that memory retains everything that has ever happened to us, implying that all events are ultimately retrievable. Memory is a reconstructive phenomenon, not a video recorder: In essence, all memory is false to some degree. Memory is inherently a reconstructive process. whereby we piece together the past to form a coherent narrative that becomes our autobiography. In the process ofreconstructing the past, we color and shape our life s experiences based on what we know about the world (Bernstein & Loftus, 2009) How does memory work then? Memory has three processes---encoding, storage, and retrieval. (NOTE: If you look to the bottom. there's a general Q&A about memory section. I can go into as much or as little detail as you think would be necessary here. I've worked with people who want to devote tifteen minutes to it, others who just want a brief answer. Whatever works for you.) Are memories of alleged sexual abuse the same as eyewitness memories? Not exactly-most research on eyewitness memory focuses on an individual witnessing a crime being committed by someone they do not know, and later trying to identify that person after a • very limited exposure to them. In alleged cases of sexual abuse, the focus is not on who, but what and if. They're different kinds of memories, but the same factors can affect their reliability. Will we discuss some of those factors today? Yes. What documents have you reviewed? Very little. I've looked at an amended summary of what outcries would be described in court. Is it usual for you to review so few documents in a case like this? Each case is different, but especially iii cases of alleged sexual abuse, my role is not to interpret the specifics of what happened, but rather to talk about factors that have been experimentally demonstrated to affect the reliability of such memories. So to clarify, you will not be testifying that the alleged abuse in this case did not take place? No, my testimony will only involve descriptions of how memory works and doesn't work. Have we spoken before today? Yes, via phone and email. •  Before we begin, let's be clear: are you going to offer testimony that the witnesses in this • case are lying, or that they are not credible? No. Credible witnesses can experience and report false memories without intending to be deceptive or lying. The empirical evidence from years of false memory research indicates that most false memories seem as subjectively real to witness as true memories. Why are you here, then? To provide information to the jury about how memory works from a scientific background, to identifY some of the factors known to affect reliability, and to provide tools that the jury can use as they evaluate the reliability of the child in this case. In general, how do memory researchers classify factors that alter witness reliability? In the Eyewitness Memory literature, researchers discuss two broad classes of factors: Estimator variables and system variables. That distinction is not as important in this kind of case, but I do want to discuss one estimator variable, so I'll mention it. Estimator variables are those that cannot be controlled by the criminal justice system-they are simply the facts of what happened. How long something lasted, how long it has been since the event took place, stress levels of the victim/witness, etc. Many things about an event can affect the likelihood that it will be correctly • remembered later. These are called estimator variables because we can only estimate the impact they might have had on memories. System variables are those that investigators have some degree of control over, such as how information is gathered after the event. In a case of alleged sexual abuse, system variables in play are how the child is interviewed, who conducts the interview, and in what context that interview takes place. What estimator variables do you feel might be relevant to this case? Latency, or the time between the event and the time when memories of that event were first reported. One of the most basic findings of eyewitness memory research is that memories decay over time. Just about every experimental protocol that manipulates the interval between exposure and testing has found that the longer this interval, the greater the likelihood of memory errors (Wells et al., 2006). In some scenarios, witnesses may not be prompted to think about an event at all after it has occurred, enhancing decay from memory (also called transience). This is true of lab studies, information learned in school, and eyewitness memory (Shapiro & Penrod, 1986). NOTE: Stress is also an estimator variable that reduces accuracy of subsequent memories. lfs a double- edged. sword though. If abuse did happen, it was likely strcssfi1l for the children. But if it's your case •  that it didn ·t happen. it wouldn't make sense to talk about the stress of it interfering with subsequent • recall. In the previous sex abuse case I did. the state \Vas eager to make the argument that stressful/traumatic events are more likely to be remembered than more run-of-the-mill encounters. I think if s probably best to not mention this in the direct, and if the state mentions it in cross, I can talk about how stressful events are actually less likely to be well-remembered. What system variables could be relevant? Most research suggests that children are very suggestible witnesses. It is difficult to question young children about sexual acts without being suggestive to what may have happened. Why is it difficult to not be suggestive with them? The clearest and most obvious guideline for how to conduct interviews non-suggestively is to use open-ended questions. Open-ended questions are ones that contain no information in them, and require an expository answer, such as "What happened next?" In contrast, closed questions contain information in the question, and generally only require a yes/no answer. Such as "Did he touch you here?'' Young children will likely be able to fully articulate the details of sexual abuse without being guided by closed questions. Is there empirical evidence that closed or suggestive questioning can cause children to create memories? • Yes. While there are numerous experimental protocols that have demonstrated this, one of the most commonly discussed is known as the "Sam Stone" paradigm of research. In short, in these protocols someone named Sam Stone visits a classroom of young children, and subsequently the students are presented with the idea that Sam is a clumsy man who is always breaking things. Teachers or adults may say things like "Sam certainly was a clumsy man." Over a period of weeks, they are interviewed with suggestive questions like "Do you remember when Sam Stone ripped the book?" Eventually, many of the students incorporate the suggestions into their memory, and will tell you about the time Sam Stone visited and ripped the book, and in some cases even add additional components of clumsiness not mentioned by adults in the questions. Naturally, the actor portraying Sam was very careful not to be clumsy during the visit. While some of the things the interviewers asked about did happen, all of the clumsy things referred to by the questions did not There are myriad factors that affect the likelihood that children will come to accept these suggestions and modify their memories accordingly, including the age of the children and the •  strength and modality (open/closed) of the suggestions. Generally speaking, the younger the • children the more likely they are to incorporate suggestions, and the more likely they are to answer yes to a closed question (whether yes is the correct answer or not). The take-horne fact is that if children are asked questions that presume something has happened and are placed in an environment where others seem to think it happened; there's empirical data illustrating they can and often will come to believe it themselves. The Sam Stone experiments seem to discuss children modifying their memories of something that really happened. Is there any evidence that people can come to remember things from their childhood that did not occur at aU? Yes, there are several examples. One experimental protocol involves what is known as the "Lost in the Mall" procedure. In this protocol, researchers enlist the help of family members to help I, . make false suggestions to experimental participants that they were lost in the mall for an extended period of time when they were a child. When family members combine suggestions about true events along with the suggestion ofbeing lost in the mall (or being hospitalized overnight, or other traumatic events), many subjects not only come to accept that the event happened, but begin to elaborate add their own details of the event in subsequent recollections. • When family are able to provide convincing details, such as the name of the mall they would've been lost in as a child, or even a store which they frequently shopped at, the subjects are able to imagine how that event rnight've occurred. There's a well-documented phenomenon known as imagination inflation-when subjects are asked to imagine something occurring for just one minute, they are subsequently more likely to remember what they imagined as something that actually occurred. There's also a natural tendency to think that if everyone else in the family remembers this, I probably should, too. NOTE: DA"s like to pick apart the lost in the mall experiment. because the original study tried it \Vith 25 people, and only produced the phenomenon in 6 of them. The small sample size has to do with the complexities of recruiting family involvement, etc. It's a very time-intensive and personal protocol. And they'll say that creating this in 6 people is hardly overwhelming evidence, but the point is that ifs possible at all-it"s really a pretty surprising thing that it happens at all. ·rhc protocol is also used on adults. not children, and all the evidence supports the idea that the younger the child, the more suggestible they are. The broad, concrete point is that •  'vve've taken things that ,.,-e know didn't happen, and convinced people it did so that they • rc:mcmher it as if it did. And the stakes are lower in experiments-it doesn ·t really matter if you got lost in the mall or not. But, there's a lot more pressure to report sexual abuse, so ifs not really a one-to-one comparison. Are there any developmental factors that may be relevant to this case? Potentially. Some possible factors are childhood amnesia, encoding specificity (which I'll explain below), "magical thinking" and an underdeveloped "Theory of Mind. Taking these one-by-one: Childhood amnesia. All of us have limited episodic memories from ages 3-5 of our lives, and all of us have virtually no episodic memories of the first two years of our lives. The time of offset of childhood amnesia (the ability to start to form long-term memories accessible as adults) is different for all people. Most of us would say our first memory is from around age 3 or 4. What causes childhood amnesia? A few things, the most important of which is the progression of language development. Our long-term memories are anchored in meaning and are rehearsed and stored phonologically (using language). In short, children can't form memories accessible as adults in the first 2-3 years of • life because they do not have the vocabulary necessary to represent those ideas in their minds and rehearse them. When children start learning language proficiently, they are able to rehearse better and begin to store memories that ""ill be accessible as adults. Another factor potentially relevant here is a bit complicated to explain--the concept of encoding specificity. This means that memories are encoded in a certain way, using a certain way of thinking and a certain viewpoint, and that they need to be retrieved with that same way of thinking and that same viewpoint. (Another more formal way of putting is to say that recreating the context of encoding at the time of retrieval makes it more likely to remember what was encoded). Most of the memories we have from childhood are encoded from a child's point of view, using childlike interpretations and childlike terminology. When we grow up, we are unable to access those memories because we no longer view the world in that childlike way-we think in adult terms and from adult viewpoints, and find it virtually impossible to remember the world the way we did when we were children . •  Encoding Specificity. This idea of encoding specificity may be particularly important in a • sexual abuse case, especially involving very young children. Young children (hopefully) do not understand sexual actions and sexual terms as abuse is taking place. It's not at all likely that young children immediately understand that they have been sexually abused. They may have been uncomfortable or upset or scared, but they're likely not able to encode what happened as sexual abuse. Therefore, when asked about sexual abuse as an adult (or an older child), the adult definition of abuse calls to mind different things than were likely encoded during the abuse as a very young child. This explains why directive and closed questioning often has to be used, and illustrates the difficulty of interviewing children about possible abuse without being suggestive. Investigators likely use euphemistic questions about touching and parts of the body touched, and the possibility must at least be considered that children cannot separate innocuous touching (such as diaper changing) from harmful touching. As an example, many children will respond to the closed question "Did the doctor hurt you?" with an emphatic "yes"-even if the reality is that the doctor just gave the child an injection. The child doesn't understand that the injection was for his/her benefit, and is just as upset with the doctor as would be ifhe/she had touched the child malevolently. • It is vital to underscore that not being able to remember abuse doesn't mean it didn't happen. It is nearly an impossible task to derive the pertinent information without speaking vaguely (with euphemism) or suggesting the possibility of actions with closed questions. Magical Thinkingffheory of Mind. Refers to the idea that children in Piaget's Pre-operational stage of cognitive development (roughly ages 2-7) are not yet logical thinkers, and often easily bridge gaps in their understanding with assumptions that logical adults wouldn't make. Magical thinking is often seen during the grieving process as children are first encountering the concept of death. Not able to understand the finality of death, they rationalize the absence in the only way they have experienced--by assuming the loved one is out of town or has a gone away temporarily but will return. When presented with other information that is outside what they understand (such as the idea that Sam Stone was very clumsy), children of this young age are much more likely than adults to bridge the gap in what they understand than to challenge discrepancies. Often the shortest bridge is to accept what the adult says is true, or to accept what the other children are saying as true, and then build upon that concept subsequently. This •  happens frequently when children are corrected by their parents about the names of things, colors • of things, about language usage and other areas in which they make wrong assumptions. It is a normal part of cognitive development to accept ideas presented by an adult-Piaget calls this assimilation and accommodation. This all relates to the process of the child developing a Theory of Mind. A Theory of Mind is the understanding that all individuals have their own minds and their own way of seeing the world, and that different people have different opinions and not everyone knows the same information. While adults take this for granted, children have to learn this through trial and error. Piaget called this stage "egocentrism", because children do not understand that people have different feelings and desires as they do. Young children often exemplify egocentrism when, for example, they are asked to show their mother the picture they drew, and they hold the picture out with the back of the picture facing mom and the actual picture visible to them. They feel that because they can see the picture, mom can too. It's understandable that this concept can be reversed. If a non-fact is suggested to young children as if it is fact, children are likely to accept this fact because they don't understand that the adult could have a different set of knowledge than they do, or that the adult might be lying or be mistaken. All of this speaks to why young children are more suggestible than adults and have a • harder time saying "no" to closed questions . Are there protocols that can be used to reduce the suggestiveness of child interviews? While there is not a formally-agreed upon process, there are suggestions for how to reduce the likelihood of suggesting information to children: • Use open-ended questions when possible • Listen as much as possible and try to let the child be in control of the direction of the conversation o In other words, refrain from pushing them back towards what is suspected to have happened as much as possible • Have someone not emotionally-involved with the situation conduct the interview o This reduces demand characteristics placed on the child to be a good boy or girl for a known authority figure • Attempt to establish rapport with the child with a series of unrelated questions before moving on to the more important questions •  • Conduct a fonnal, documented interview as soon as possible after initial outcry. Try to • • limit other discussions/interviews with family members before this interview, as these discussions can be very suggestive Limit repeat interviews if possible. The Sam Stone paradigm of research has demonstrated that off-the-cuff and non-factual narrative offered by children in one interview are often recalled as factual memories in subsequent interviews, especially if the content of that narrative is encouraged or met with positive response by the interviewers. Ask this if you \vant, I think it"d be a decent way to end: It's the defense's argument that the children in this case were brainwashed to believe that these events happened. Is there any evidence in your field that this is possible? Brainwashing is really more of a colloquial tenn than one we use routinely in the field. What I'm comfortable saying is that there is empirical evidence that people can come to remember things that didn't occur because that suggestion was made to them. Sometimes those suggestions are deliberate and purposeful, as in the lost in the mall procedure, and other times those suggestions are unintentional-such as might occur when an investigator asks if something happened. • I would reiterate that the biggest and most persistent misconception about memory is that once they're formed in the brain, they don't change. Memories are not shrink-wrapped facts stored in the brain waiting to be opened. They're reconstructed each time an event is re- experienced mentally, and every time that happens what's re-experienced is different. How you ask questions can change how memories are reconstructed, just as how an interviewer responds to answers can change how memories are reconstructed next time. It's an incredibly dynamic process. I wouldn't call that brainwashing, I would say that memories are very malleable and change over time . • • Bac1<2round information .lust an FYI seCiion-il sounds like yozi 've already got a lot ofbackgrowul info. Some ofiizis is voy similar 10 my talk in Houston. General Memory Q&A Probably the most common metaphors used to describe human memory are that "memory is a videotape" and "memory works like storage on a computer disk." Are these good analogies for human memory? No, and this is probably the most important finding of the last 100 years or so in memory research. Both videotapes and computer disks are reproductive media, meaning that they store information in a more-or-less literal manner. Both representmemory as being static and unchanging, and imply that what is stored in memory I is always a faithful representation of the actual event. Furthermore, both metaphors suggest that · memory retains everything that has ever happened to us, implying that all events are ultimately retrievable. For example, we may have a difficult time remembering something, just as we might have • troubling finding a certain 5-second clip on a videotape. Since we will eventually find this 5-second segment if we keep rewinding and reviewing the videotape, we often assume memories will be similarly I I accessible. But memory is not like a videotape or hard disk. Videotape and hard disks are reproductive storage device, always retrieving the same information. In addition, what is stored on the tape or disk is a literal representation of the original event. But memory does not work this way. In fact, the single most important principle underlying memory is this: memozy is a dynamic, creative, and reconstructive process. Memory works by storing bits and pieces of the original events, combining those fragments with other sources of information to reconstruct the original event. What are the basic processes used in memory formation and retrieval? Memory researchers typically speak of memory formation as having three distinct stages, encoding of new information, consolidation and storage of the information, and retrieval of the memory. The process of encoding refers to the conversion of perceptual and sensory •  information into a form that the brain can represent and store. In virtually all cases, encoding • alters the sensory information in some way In fact, two people listening to the same conversation may have drastically different recollections of the same event Memory researchers would say that these two individuals encoded the information in different ways. A great deal of what we call "forgetting" Is often a failure of the encoding process. One classic demonstration involves the inability of most people to recall the front of a penny from memory. Which way does Lincoln face? Where is the date? What is written across the top and bottom of the coin? Some people can get close, but few are able to draw the coin with complete accuracy. Even when shown several possible alternatives and asked to identify the correct one-- usually, recognition is easier than recall--this task is still difficult. We might be tempted to say that we "forgot" what a penny looks like, but it would be more accurate to say we never knew in the first place. Memory fails because the information was never encoded to begin with. 2. Consolidation and Storage Consolidation is the term used to refer to the process by which short-term memories are converted into long-term memories. Consolidation of memories in the brain is something like water being frozen into ice cubes. Both processes take time, and both can be disrupted. For • example, if an ice cube tray filled with water is taken from the freezer and vigorously shaken before the cubes have started forming, the process of ice cube formation has been irreversibly stopped. Once the water is spilled from the tray, there is nothing that can be done to get that water back in. Generally speaking, the degree of disruption is directly related to the severity of the injury. Storage refers to the preservation of the memory over a period of time. One of the most profound generalizations one can make about memory is that memory strength and accuracy declines predictably with the passage of time. 3. Retrieval Finally, retrieval is the process of finding and accessing previously stored memories. Retrieval does not occur in a vacuum. It is guided by retrieval cues, or bits of information that are related to items stored in memory. Retrieval cues can exert powerful effects on memory. Unfortunately, retrieval is the stage of memory where errors are most likely to be introduced Memory is a reconstructive phenomenon, a.'ld most of the reconstruction occurs during retrieval. •  When misleading or biasing cues exist at retrieval, they can seriously compromise the accuracy • of retrieval. If memory is reconstructive, then, it must make errors. Has a taxonomy of memory errors and distortions been developed? Harvard University psychologist DanielSchacter, one of the country's most prolific and distinguished memory researchers, recently identified seven factors clearly shown to reduce the reliability of memory. He identifies these as follows: • transience, or forgetting that occurs with the passage of time. As discussed earlier this is per~aps the most profound generalization one can make about memory. • absent-mindedness, a lapse in attention during an event that inhibits (or precludes entirely) the successful encoding of a memory. As noted earlier, such encoding failures are devastating; one cannot retrieve what was never encoded to begin with. • blocking, or the inability to retrieve information due to interference by other items sto~ed in memory. For example, learning a new computer password is often complicated by the intrusive recollection of previous passwords. • misattribution, whereby an event that occurred in one context is mistakenly attributed to • another. Furthermore, sometimes current feelings of familiarity are mistakenly attributed to past events. Phenomena such as source confusion and even deji1 vu result from misattribution. • suggestibility, in which misleading information from external sources are used to influence memory. In product identification cases, this can often result from reviewing photobooks or reviewing information obtained from Internet searches. (The same factors can also result in misattribution, in which a product is identified as familiar, and thus selected. Having reviewed the product in a book of photos can induce a sense of familiarity, even when a product was never actually used.) • bias, where various factors cause distortions in memory. Change and consistency biases cause us to reconstruct the past in a way that is different from (for change biases) or similar to (for consistency biases) the present. If memory of our past behavior is disturbing in some way, we may reconstruct the memory in a less threatening manner. Hindsight biases occur when we reinterpret past events in terms of currently available •  (but initially unavailable) infonnation. Egocentric biases occur when we exaggerate our • • role or importance in past events. Finally, stereotypical biases influence memory by distorting them based on generic memories, what "usually" or "probably" happened. persistence, in which (usually) emotionally charged memories intrusively come to mind, even when we attempt to suppress them. Persistence is responsible for such clinical phenomena as post-traumatic stress disorder and flashbulb memories. Does inaccurate identification by eyewitnesses cause innocent people to be convicted? Memory's reconstructive nature has profound implications one the role eyewitness memory testimony in the courtroom. Recent advances in DNA technology has further demonstrate eyewitness fallibility. Based on infonnation tracked by the Innocence Project, by August, 2007, more that 200 falsely convicted individuals have been exonerated by DNA evidence. Mistaken eyewitness identification was involved in more than 75% of those false convictions (see Innocence Project, 2008; The Justice Project, 2007). What kind of errors are common among eyewitnesses? • 1. Source Monitoring and Source Confusion Source monitoring is defined as the ability to recall not only the content of memories, but also the source from which the infonnation was obtained. According to Johnson et al, ( 1993 ), •'source monitoring is based on qualities of experience resulting from combinations of perceptual and reflective processes, usually requires relatively differentiated phenomenal experience, and involves attributions varying in deliberateness. These judgments evaluate information according to flexible criteria and are subject to error and disruption" (p. 3). Source confusion, then, results from a failure of source memory. Source confusion occurs when infonnation is learned from·one source but misattributed to another source. This can occur when witnesses are shown photographs of suspects or objects prior to questioning, and later are asked to identify the suspects or objects. In cases where the source of the infonnation is entirely forgotten, source confusion can still exert effects by increasing self-reported confidence. Source confusion can also result from simply thinking about something. For example, individuals who are asked to imagine that a remote event happened to them later have difficulty •  in distinguishing actual events from imagined events, a phenomenon known as "imagination • inflation" (M. Garry & Polaschek, 2000; Roediger & McDermott, 2000). A person's subjective confidence in these memories is similarly inflated by imagination (Maryanne Garry, Manning, Loftus, & Sherman, 1996), further illustrating why confidence is not a reliable indicator of accuracy. The erroneous memories are quickly and easily formed; they can be created in real- world settings with a single imagination episode, within a few days of the imagined event (Seamon, Philbin, & Harrison, 2006). 2. Demand Characteristics Demand characteristics refer to biases introduced in research by the expectations of the researchers, the participants, or both. Well-known "halo effects" often occur in education settings, with teachers assigning higher grades to students from which they had expected better performance. In eyewitness memory settings, demand characteristics operate in any situation where there is an expectation of the witness. Most witnesses in criminal cases want to be helpful to the investigators, to be "good witnesses." When asked to view lineups in the presence of police officers, witnesses frequently make an identification even when they are uncertain (Wells & Luus, 1990). For this reason, the US. Dept. of Justice now recommends that lineups be • conducted by individuals who are unaware which person is the actual suspect (U.S. Department of Justice, 19g9). Demand characteristics combine Schacter's "bias" and "suggestibility." 3. Leading Questions Leading questions, as described in an earlier section, introduce errors through the reconstructive processes of retrieval. Information present in the questions themselves becomes incorporated into a witness's memory. Furthermore, these effects are persistent; the biasing effects may permanently change the memory for an event. Leading questions result from Schacter's "suggestibility" and are exaggerated by the problems of transience. 4~ Hindsight bias. Hindsight bias refers to the tendency of witnesses to report higher subjective confidence after making an identification than before. The diagnostic value of the confidence judgment, however, is impaired. This effect is exacerbated by any verbal reinforcement given after an •  identification is made. Wells (Wells & Bradfield, 1998) found that telling eyewitnesses "good, • you identified the suspect" distorted further report. These biases need not be explicit, however. If a witness makes an identification but is asked to "look again," the implied message (i. e., the demand characteristics) is that the first identification was wrong (Wells & Bradfield, 1999). 5. Encoding Failures Some memory errors can be overcome. Sometimes retrieval of information is temporarily blocked, as in so-called "Tip of the Tongue" states. When retrieval blocks are removed (either experimentally, or by the passage of time), the correct answer can often be retrieved. Encoding failures, however, are "fatal" memory errors. Information that was never encoded in the first place is impossible to retrieve. Poorly encoded information, on the other hand, is more likely to suffer suggestibility effects (Hyman & Loftus, 2002). Encoding failures are the cause ofSchacter's "absent-mindedness." 6. Post-Event Information Because memories are not static snapshots in time, they can be influenced by events or information learned after the event in question. That is, our memories for the past are influenced not only by the events itself, but by what we have learned since the event happened. Post-event • information has its greatest effect when there is a relatively long delay between the event and post-event information and a short delay between the information and the test (Loftus, Miller, & Burns, 1978). Furthermore, it is difficult or impossible for witnesses to distinguish post-event information from real event information, a phenomenon known as the "knew-it-all-along effect" (Metcalfe, 2000). Mazzoni and her colleagues (Mazzoni, Loftus, & Kirsch, 2001) have proposed that the creation of false memories can be understood as a 3-phase process. First, individuals have to see the event as plausible, something that could have happened to them. Second, individuals come to believe that the event did happen to them, and begin imagining or generating elaborations concerning the fictitious event. Finally, individuals begin to mistake these internally generated events and details for external, real events (a problem of source confusion) . • • • I I· I •  911112014 Print Subject: RE: Creating memories From: Terrell, Dr. Trent (TTerrell@umhb.edu) .To: tiger_russell@att.net; Date: Monday, August 25, 2014 8:40AM ' Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably the earliest 1 I could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university ' assembly, so that would be a perfect day for me to be there at any time. Thanks ... Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor 900 College Street, Box 8014 • Belton, TX 76513 254-295-4630 tterrell@umhb.edu From: Terence Russell [mailto:tiger_ russell@att.net] Sent: Sunday, August 24, 2014 9: II PM To: Terrell, Dr. Trent Subject: Re: Creating memories I am hopeful. I should know tomorrow if it will be Tuesday or Wednesday. Terence A. "Tiger" Russell Attorney & Counselor at Law PO Box 306 • Hillsboro, Texas 76645 about:blank  9/11/2014 Print Subject: Re: Creating memories .To: From: Date: Tiger Russell (tiger_russell@att.net) TT errell@umhb.edu; Tuesday, August 26, 2014 8:57AM From discussions with the State and Judge yesterday, it was confirmed that you would not be called before Wednesday. Terence A. "Tiger" Russell Attorney at Law PO Box 306 Hillsboro, Texas 76645 254-396-3219 254-582-5593 (fax) Sent from my awesome new iPad! On Aug 25, 2014, at 8:40AM, "Terrell, Dr. Trent" wrote: Tuesday is a really full day on my end, I have class from 9:30-2:30 with only a short break, so probably. the earliest l could realistically get up there is 3:30-4:00. Wednesday the only class I have is cancelled for a university assembly, so that would be a perfect day for me to be there at any time. • Thanks ... Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor 900 College Street, Box 8014 Belton, TX 76513 254-295-4630 tterreiiCliiumhb.edu • From: Terence Russell [mailto:tiger russell@att.net] r aboul:blank I  9/11/2014 Print Subject: Re: Creating memories From: Tiger Russell (tiger_russell@att.net) • To: Date: TTerrell@umhb.edu; Tuesday, August 26, 2014 4:04PM Location is correct. Just talked with Court and judge said it would be safe to be here by 12:30 p.m. State has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court 1 say we will take early lunch and start earlier following lunch. · I Terence A. "Tiger" Russell I Attorney at Law I PO Box 306 Hillsboro, Texas 76645 254-396-3219 254-582-5593 (fax) Sent from my awesome new iPad! On Aug 26, 2014, at 9:17AM, "Terrell. Dr. Trent" wrote: Good deal. If you can just let me know sometime tonight what time you think you 'II need me, anytime tomorrow , should work. I would be great with getting there at 9 AM and being first up, if that's when court starts. I • I Is this where I'm headed?: Hill County Courthouse, 1 North Waco Street, Hillsboro, Texas 76645 1 updated the direct a little bit (see attached). I really didn't change the content, but I just incorporated some more questions for you to ask me so as to keep me on point. Thanks, Trent Trent Terrell, Ph.D. Associate Professor and Chair, Psychology University of Mary Hardin-Baylor • 900 College Street, Box 8014 about:blank 1/11  9/11/2014 Print Subject: Re: Creating memories .To: From: Date: Terrell, Dr. Trent (TTerrell@umhb.edu) tiger_russell@att.net; Wednesday, August 27, 2014 7:02AM Terence, I still haven't received any info from you about when I should appear in court. I'm persisting in emailing you because you said this was the best way to contact you. Lacking any further information, I'm heading into the office this morning. I have obligations there that I can work around with notice, but without a concrete time to plan around I have to give my full-time job priority. As I said, I have a night class this evening and a 9:30-2:30 teaching schedule Tuesday/Thursday. I also have meetings scheduled today that I could've missed, but I'll move forward with my regular schedule unless I hear from you very soon. Thanks, Trent Sent from my iPhone >On Aug 26,2014, at 7:40PM, "Tiger Russell" wrote: • ~ Did you receive my earlier message about the time? > > Terence A. "Tiger" Russell > Attorney at Law >PO Box 306 >Hillsboro, Texas 76645 > > 254-396-3219 > 254-582-5593 (fax) > > Sent from my awesome new iPad! > >>On Aug 26, 2014, at 6:22PM, "Terrell, Dr. Trent" wrote: >> >>Please advise as soon as possible this evening when you'll need me tomorrow, so I can plan out my day. It's at least an hour drive, depending on 35. I do have an evening class starting at 6, so need to be done before the end of the day in order to get back in time. >> >>Thanks .. >> >>Sent from my iPhone >> • >>On Aug 26, 2014, at 8:57 AM, "Tiger Russell" > wrote: about:blank 1/9 9/11/2014 Print Subject:. Re: Creating memories From: Terence Russell (tiger_russell@att.net) • To: Date: Tierrell@umhb.edu; Tuesday, August 26, 2014 10:23 PM Judge said it would be safe to be here by 12:30 p.m. State has 3 witnesses for the morning, so we should reach you after lunch. If State finishes before lunch, Court say we will take early lunch and start earlier following lunch. Terence A. "Tiger" Russel1 Attorney & Counselor at Law PO Box 306 Hillsboro, Texas 76645 254-580-9282 254-582-5593 (fax) On Aug 26, 2014, at 7:41 PM, "Terrell, Dr. Trent" wrote: No, all I got this morning was that you wouldn't need me before Wednesday. So, what time will you need me? • Sent from my iPhone On Aug 26, 2014, at 7:40PM, "Tiger Russell" wrote: Did you receive my earlier message about the time? Terence A. "Tiger" Russell Attorney at Law PO Box 306 Hillsboro, Texas 76645 254-396-3219 254-582-5593 (fax) • about: blank 1/16 .J 038732 10/06/2014 TERENCE A. RUSSELL ** *****2, 633.00 ---- TWO THOUSAND SIX HUNDRED THIRTY THREE & 00/10D DOLLARS ---- ** TERENCE A. RUSSELL ** P. 0. BOX 306 HILLSBORO, TX 76645-0306 01-6260 TERENCE A. RUSSELL 038732 (10/06/2014 DATE I. D. PO ll AMOUNT --------------------- G/L 8/29/2014 201409157394 2, 633.00 37228 IN/CT: (7/14/14, 8/20/14,8/29/14 (8/25-28/14 @ $300) CHECK TOTAL 2,633.00 01-6260 RUSSELL ** 038732 10/06/2014 AMOUNT JAMES DUVAL 2,633.00 •• TERENCE A. RUSSELL ** P. 0. BOX 306 HILLSBORO, TX 76645-0306 CHECK TOTAL 2,633.00 .· HILL COUNTY, TEXAS ATTORNEY FEE VOUCHER I. Jurisdiction 2. County 3. Cause Number Offense 4. Proceedings 181 District OCounty 37 228 Agg Sexual Assault - Child 181T rial-Jury DTrial-Court (Count I) 0 County Court at Law Hill lndecenc:t w/Child - Contact (Count 2) DPJea-Open OPiea- Bargain Court# 66th lndecenc:t w/Child - ExQ~ure jCount 3) DOther 5. In the case of: State of Texas v James Duval R_r_der 6. Case Level 181 Felony D Misdemeanor 0 Juvenile D Appeal 0 Capital Case i D Revocation - Felony 0 Revocation- Misdemeanor DNo Charges Filed 0 Other 7. Attorney (Full Name) 9. Attorney Address (Include Law Firm Name if 10. Telepho'le,.. (254);~ Terence A. (Tiger) Russell, Attorney at Law Applicable) Terence A. (Tiger) Russell, Attorney at Law 8. State Bar Number 18a. Tax JD Numher P. 0. Box 306 II. l;ax. 17437070 XXX-XX-XXXX Hillsboro, TX 76645-0306 .(2~) 582~ ~ 12. Flat Fee · ( ourt Apoointed Services ~ 12a~~tFee ~ ,£ l A\ , 13. In Court Services Hours Dates ~ 13a}'l'otal In Court Compensation. (Non-Jury) Hearing I 7/14114 ~'1-b.-=-:: ,.,., ~.>• :·· .. , ....._, ~. (Non-Jury) Hearing I 8/20/14""' •7 ,)\, -~ ~~·- Jury Selection & begin Jury Trial 7 8/25/l't\,.- ~tc>l., J_ury Trial 7 8/26114 ' ., J'-' ''1- .3C:t> l' "'" e Jury Trial 7 8/2'71J4 - '\'?{DO " t<-:"J) .£(Y of Pleadiif!fftlim Hill Co. Expenses $33.00 """'"" ./ / 18. Time Period ofserv".Rende~om A '~.,. ~t, 06/28/2012 Date to 08/29/2014 Date Addition2~'\-Y 20. Total Compensation and < 19. Expenses Claimed · $4733.00 21. Attorney Certification~!, the undersigned attorney, certify that the above infnrmation is' true and correct and in accordance with the laws of the State of Texas. The compeiisation' and expenses claimed were reasonable and necessary to provide effective assistance of counsel. y -.. ' / 181 Final Payment OPartial --. Ju.,,_ /{. ;.Z.h-f-'~{_ 08129/2014 t Signature Date 22. SIGNATURE OF PRESIDING JUDGE: L_p,p_, L1 ~OZJ)~ .L *·~ _.,.,.....-L_ . _ . - ~ I1A Reason(s) ~r Denial or V;t;;,on t.4 .£ J.~~ ~ ~~~_j)- ~- ~ ~M II" Ill ~"-- \ /1~ -w -Y""' , "'~ '"' ... - ' Adopted I0123/02 - Task Force on lodigenl Defense  \. Receipt# 44595 Cause # 33.00 Total Paid: $33.00 Total Paid: $33.00 by PAYEE: Terence Russell Angeli a orr, Districrcler ·· P. 0. Box 634 ~ 1 Hillsboro, Tx 7~5 ~ (254) 582-4042 . ' - Make online ·dayme~ss~24 hours a day at http://www~.ov~~.com/hillcountydccivil/ 1 ..r • J f . I CAUSE NO. 37,228 STATE OF TEXAS § IN THE 66TH JUDICIAL § v. § DISTRICT COURT OF § JAMES DUVAL RYDER § HILL COUNTY, TEXAS ORDER ON MOTION TO WITHDRAW as~~ o After considering Stephanie W. Johnson's Motion to Withdraw Court GRANTS the Motion and orders Stephanie W. Johnson withp~~orney of record for Defendant, James Duval Ryder. ~""Y ORDERS \e_r.e. .vtQ..c__ ~..S.S -e. //'t'~ · be substituted as attorney in charge for Defendant. L '\ '<;:. Y . SIGNED on ?.z day o~April, 201(~ ~.:61£~ ~::......' .. . . .-- Judge Presiding ORDER ON MOTION TO WITHDRAW AS ATTORNEY OF RECORD Page I K:'"SWJ1Rydci-12.222\Withdraw2.ord.wpd•50c EXHIBIT F  1 1 REPORTER'S RECORD 2 TRIAL COURT CAUSE NO. 37,695-A 3 VOLUME .1 OF 1 VOLUMES 4 5 STATE OF TEXAS )( IN THE DISTRICT COURT )( 6 )( v. )( HILL COUNTY, TEXAS 7 )( THOMAS ERIC· LEE )( 8 I ) ( )( 66TH JUDICIAL DISTRICT 9 10 -------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -' - - - - - - - 11 HEARING ON FINDINGS OF FACT 12 WRIT OF HABEAS CORPUS 13 14 15 On the 25th of November, 2014, the following 16 proceedings came on to be held in the above-titled and 17 numbered cause before the Honorable Alan M. Mayfield, 18 Senior District Judge·, held in Hillsboro, Hill County, 19 Texas: 20 Proceedings reported by machine shorthand. 21 22 23 24 25 SHERRY FOLCHERT, CSR * 817-946-5399  2 ·f 1 A P P EA RA NC E 5 2 PRESIDING JUDGE: Alan M. Mayfield 3 Senior District Judge 15826 Wortham Bend Road 4 China Spring, TX 76633 254-723-6360 5 FOR THE STATE: 6 Mark Frederick Pratt SBOT NO. 16240550 7 District Attorney, Hill County Hill County Courthouse 8 PO Box 400 Hillsboro, TX 76645 9 254-582-4070 10 FOR THE DEFENDANT: 11 Edward Alan Bennett SBOT NO. 02140700 12 SHEEHY, LOVELACE & MAYFIELD, P.C. 510 North Valley Mills Drive, Suite 500 13 Waco, Texas 76710 254-772-8022 14 15 16 17 18 19 20 21 22 23 24 25 (  3 1 INDEX 2 HEARING - FINDINGS OF FACT WRIT OF HABEAS CORPUS 3 4 NOVEMBER 25, 2014 5 6 PAGE 7 Caption............................................ 1 Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 Thomas Eric Lee 9 Examination by Mr. Bennett......................... 6 10 Examination by Mr. Pratt........................... 15 Further Examination by Mr. Bennett................. 25 11 Further Examination by Mr. Bennett ................. 41 Further Examination by Mr. Pratt. . . . . . . . . . . . . . . . . . . 44 12 Terence Russell 13 Examination by Judge Mayfield...................... 31 14 Examination by Mr. Bennett ......................... 33 Examination by Mr. Pratt........................... 35 15 Further Examination by Mr. Bennett ................. 37 Further Examination by Mr. Pratt................... 38 16 Court Reporter's Certificate ....................... 48 17 18 STATE'S EXHIBITS 19 NO. DESCRI PT I O'N OFFERED ADMITTED 20 1 Final Pretrial conference summary 28 28 21 22 23 24 25  4 1 P R0 C E E D I NGS 2 (Open court, Defendant present) 3 THE COURT: We are here in Cause No. 4 37,695-A in regard to a Writ of Habeas Corpus that's 5 been filed by Thtimas Eric Lee with the Court of Criminal 6 Appeals. The Court of Criminal Appeals has directed 7 that the originating court hold a hearing to establish 8 and enter findings of fact to be sent to the Court of 9 Criminal Appeals for their consideration. 10 Judge A. Lee Harris has appointed me, Alan 11 Mayfield, by order to hold the hearing. And so that's 12 what we're here for. 13 Present in the court today is the District 14 Attorney, Mr. Alan Bennett and Mr. Thomas Eric Lee. 15 And also subpoenaed as a witness and 16 present is. Mr. Terence Russell. 17 · So I'm ready to proceed .. 18 Are you ready to proceed, Mr. Bennett? 19 MR. BENNETT: Yes, Your Honor. 20 THE COURT: Is the State ready? 21 MR. PRATT: Ready, Your Honor. 22 THE COURT: Thank you very much. 23 You may call your first witness. 24 MR. BENNETT: Your Honor, I will call 25 Mr. Thomas Lee. SHERRY FOLCHERT, CSR * 817-946-5399  5 1 THE COURT: Okay. Mr. Lee, if you would 2 I tell you what I'm going to do, if you can hear him 3 from where he's at, I'm going to let you testify from 4 where you're at, because getting up and down to this 5 witness stand is going to be awkward. 6 MR. BENNETT: Your Honor, we'd also invoke 7 the Rule. 8 THE COURT: Okay. 9 Mr. Russell, if you will wait out in the 10 the foyer, .outside the hearing and the presence of the 11 witness. 12 Just go ahead and close the door if you 13 would. 14 (Mr. Russell excused from the hearing) 15 THE COURT: Mr. Lee, raise your hand. 16 (Defendant was sworn) 17 THE DEFENDANT: Yes, sir. 18 THE COURT: Thank you very much. 19 I'm going to ask that if the witness -- or 20 if the court reporter can't hear you, that we'll move 21 your chair over closer to her -~ 22 THE DEFENDANT: Yes, sir. 23 THE COURT: I if she has any difficulty. 24 But do keep your ~oice reasonably up. But I 25 we don't want it real loud because we don't want it SHERRY FOLCHERT, CSR * 817-946-5399  6 1 overheard out in the foyer. 2 MR. BENNETT: Thank you, Your Honor. 3 THOMAS ERIC LEE, 4 having been first duly sworn, testified as follows: 5 EXAMINATION 6 BY MR. BENNETT: 7 Q. Mr. Lee, will you please state your name for 8 the record. 9 A. Thomas Eric Lee. 10 Q. And you are currently serving a sentence for 11 unauthorized use of a motor vehicle; is that right? 12 A. Yes, sir. 13 Q. Was that enhanced with prior convictions? 14 A. Yes, sir. 15 Q. And what is your sentence for that? 16 A. Eight years. 17 Q. Okay: And that was in this cause number that 18 we're here in court on today, 37,695; is that right? 19 A. Yes, sir. 20 Q. And you were sentenced on August the 9th of 21 2013; i s that right? 22 A. Yes, sir. 23 Q. Okay. Now, I believe you pleaded no contest or 24 nolo contendere; is that right? 25 A. Yes, sir. SHERRY FOLCHERT, CSR * 817-946-5399  7 1 Q. All right. So let's talk a little bit about 2 the hearing when you did that. Okay? 3 A. Okay. 4' Q. Now, at that time you were charged with two 5 felonies; is that correct? \ 6 A. Yes, sir. 7 Q. You were charged with unauthorized use of a 8 motor vehicle and you were charged with being a felon in 9 possession of a weapon? 10 A. Yes, sir. 11 Q. Okay. Were there two separate indictments or 12 were they both in this case? 13 A. I'm not sure. 14 Q. Okay. But there were two charge~? 15 A. Yes, sir. 16 Q. And had the State made a plea offer in your 17 case? 18 A. Yes, sir. 19 Q. And what was the offer? 20 A. It was four years for the un-- unlawful use of 21 a motor vehicle and a felon with a firearm. Four years 22 altogether. 23 Q. Four years on both charges? 24 A. Yes, sir. Not -- not separate, but 25 altogether SHERRY ,_ FOLCHERT, CSR * 817-946-5399  8 1 Q. To run together? 2 A. Yes, sir. 3 Q. Okay. And Mr. Terence Russell was your 4 attorney; is that right? 5 A. Yes. 6 Q. Was he court appointed? 7 A. Yes, sir. 8 Q. Okay. And did you convey to Mr. Russell that 9 you felt like you were not guilty for the weapons 10 charge? 11 A. What's "convey" mean? 12 Q. Did you tell him that you didn't feel like you 13 were guilty of the weapons charge? 14 A. Right. Yes, sir. 15 Q. And so you were trying to get just a plea 16 bargain on the unauthorized use charge, but the deal 17 that was given to you involved both? 18 A. Right. 19 Q. All right. And you instructed Mr. Russell that 20 you wanted to contest th~ weapons charge; is that right? 21 A. Yes. Yes. 22 Q. And did you go to court for the purpose of 23 accepting a plea offer or were you just in the context 24 of a normal setting? 25 A. Well, I was-- I-- I-- I wanted to go to SHERRY FOLCHERT, CSR * 817-946-5399  9 1 trial. 2 Q. Okay. You wanted to fight the charges? 3 A. Yes. 4 Q. Okay. And did Mr. Russell do or say anything 5 to you to persuade you that you ought to consider 6 pleading guilty or no contest? 7 A. He just told me to hurry up because when he 8 makes the bench, he's going to throw --.he's going to 9 make sure I get the book thrown at me. 10 Q. Okay. So let's stop right there. 11 Make the bench, was he running for election 12 for district judge? 13 A. That's what he told me. 14 Q. Okay. And your case was pending in the 15 district court; is that right? 16 A. Yes. 17 Q. Okay. 18 A. And - - can I speak on - - can I say something? 19 Oh, go ahead. 20 Q. Okay. So he told you he was going to be the 21 judge? 22 A. Yes, sir. 23 Q. And that he was going to throw the book at you 24 if your case was not resolved before -- 25 A. Yes, sir. SHERRY FOLCHERT, CSR * 817-946-5399  10 1 Q. -- before that time? 2 A. Right. 3 Q. Okay. 4 A. And he told me that several times. 5 Q. All in that one - - the same day or at different 6 times? 7 A. He told me -- he told me that befo_re, too. He 8 told me that a couple of other times before I even 9 came because I think I came down here a couple of 10 times for hearings and stuff like that and he told me 11 that a couple of times, even told it right in front of 12 my wife. 13 Q. Okay. And so did that make you reconsider what 14 you were going to do with your case? 15 A. I was just -- I was scared. You know, I 16 didn't I didn't know what was going to happen. I -- 17 you know, I take my 1 awyer' s advice. You know. 18 Q. So you trusted him and followed his advice? 19 A. Yes, sir. 20 Q. And because of what he told you repeatedly 21 about him taking the bench and then throwing the book at 22 you, that was what made you ultimately decide to plead I 23 no contest? 24 A. Yes, sir. 25 Q. To the unauthorized use charge? SHERRY FOLCHERT, CSR * 817-946-5399  11 1 A. Yes. \ 2 Q. And you did that without any kind of plea 3 bargain or plea offer? 4 A. Right. 5 a. I But you were concerned that if you didn't do 6 that, that Mr. Russell would be elected the judge and 7 throw the book at you? 8 A. Yes, sir. 9 Q. If he had not made those statements to you, 10 would you have insisted on having a trial in your case? 11 A. A trial or -- I'd have to go from there. 12 Be c au s e I know for , one , I was n ' t g u i 1 t y of the pi st o 1 13 charge. And I was told -- Mr. -- Mr. Russell came and 14 told me that if you drop -- they're going to -- that 15 Mark Pratt would drop the pistol charge -- if you went 16 in front of the trial by judge right now for sentencing, (/ 17 he would drop the pistol charge. 18 Q. And that's what ultimately happened was you - - 19 you pleaded no contest before the Judge? 20 A. Right. Right. 21 Q. And there was kind of a mini trial - - 22 A. (Witness indicates.) 23 Q. - - j u.st in front of the judge, no jury? 24 A. Yes. 25 Q. And so your result - - you ended up waiving your SHERRY FOLCHERT, CSR * 817-946-5399  12 1 right to a jury trial? 2 A. Yes. 3 Q. And just basically throwing yourself on the 4 mercy of the Court? 5 A. Yes, sir. 6 Q. And you wouldn't have done that if Mr. Russell 7 had told you differently? 8 A. No, sir. No, sir. 9 Q. Okay. And what ultimately happened was you 10 were sentenced to eight years? 11 A. Yes. And I -- I never did get a plea offer for 12 just the one, which I know I don't have to have a plea 13 offer on, right? 14 Q. Right. Okay. So Judge Harris was the one that 15 sentenced you: is that right? 16 A. Yes, sir. 17 Q. And he sentenced you to eight years? 18 A. Yes, sir. 19 Q. That same afternoon? 20 A. So -- and I have one question, too. If he's a 21 misdemeanor judge -- and I know Mark Pratt just took 22 office the same time, why did we go in front of Mark 23 Pratt's judge, which it probably doesn't matter 24 Q. Okay. Well , I can -- I can help .you with that. 25 A. Okay. SHERRY FOLCHERT, CSR * 817-946-5399  13 1 a. Just -- the record will reflect that Judge 2 Harris is authorized to appear on behalf of Judge- 3 McGregor. 4 A. Yes, sir. Yes. Yes, sir. ( 5 a. Okay. 6 A. Yes. 7 a. And so that's why you were in front of Judge 8 Harris. 9 A. Okay. 10 a. Does that help you? 11 A. Yes, sir. 12 THE COURT: In this county. 13 MR. BENNETT: In this county. 14 THE COURT: The County Court at Law has 15 con~urrent jurisdiction in most cases with the district 16 court. \ 17 THE DEFENDANT: Okay. 18 THE COURT: And can by assignment be -- 19 from the district court take cases. The Judge from that 20 court can then handle some of the district court -- 21 THE DEFENDANT: Right. 22 THE COURT: cases. 23 THE DEFENDANT: Okay. ( 24 THE COURT: And -- and that's done 25 occasionally. Doesn't handle capital cases, but he SHERRY FOLCHERT, CSR * 817-946-5399  14 1 could handle this type of case. 2 THE DEFENDANT: Yes, sir. 3 THE COURT: So that's how Judge Harris 4 handles both misdemeanor and felony cases -- 5 THE DEFENDANT: Okay. 6 THE COURT: -- in his court, because of 7 the -- the special jurisdiction that -- that the County 8 Court at Law has been given in this county. ' 9 THE DEFENDANT: Yes, sir. 10 MR. BENNETT: And every county is 11 different. 12 THE DEFENDANT: Right. 13 Q. (By Mr. Bennett) Okay. So basically you have 14 the two charges. Mr. Russell told you on more than one 15 occasion that you better hurry up and take a deal 16 because he was about to be elected judge and he would 17 throw the book at you if -- 18 A. Right. 19 Q. --he was the judge? 20 A. Right. 21 Q. Did you know that if Mr. Russell had, in fact, 22 been elected judge, that he would not be allowed to 23 preside on your case? 24 A. I -- I did not know that. 25 Q. You had no reason to know that? SHERRY FOLCHERT, CSR * 817-946-5399  15 1 A. (Witness indicates.) 2 Q. And so as a result of these comments and 3 statements that he made to you, you ended up pleading no 4 contest to the unauthorized use charge? 5 A. Yes, sir. 6 Q. Because that's what he told you to do? 7 A. Uh-huh. 8 Q. And you were concerned about what would happen 9 if he ended up being elected judge? 10 A. Yes, sir. He was always so fast i n talking 11 with me, you know, that yeah. I mean, yes, sir, 12 that's what happened. 13 MR. BENNETT: I'll pass the witness, Judge. 14 THE COURT: Do you have any questions? 15 MR. PRATT: Yes, Your Honor, I do. 16 EXAMINATION 17 BY MR. PRATT: 18 Q. So, Mr. Lee, as you understand it, the 19 indictment to which you plead is the one that's file 20 marked February 28, 2013, in which you were charged with 21 unauthorized use of a motor vehicle, two prior state 22 j ai 1 final felony convictions, and then it also alleged 23 an aggravated assault with a deadly weapon final felony 24 conviction. Although, that didn't actually enhance your 25 punishment range in this particular case; is that right? SHERRY FOLCHERT, CSR * 817-946-5399  16 1 A. I don't know. 2 Q. You don't know what you plead to? 3 A. No, I mean I'm talking about the -- you said 4 that it didn't enhance me and I didn't know what you I 5 meant. 6 Q. Okay. Well, I believe that Judge Mayfield I 7 already stated that your state jail felony punishment 8 range for unauthorized use of a motor vehicle was 9 enhanced to a third-degree felony punishment range 10 A. Yes, sir. But you said something about the 11 state jail; The other I didn't know what you meant on 12 that. I'm sorry. 13 Q. Due to your two prior third degree -- I mean 14 your two prior state j ai 1 felony convictions; is that 15 correct? 16 A. Uh-huh. 17 Q. Is that a yes? 18 A. Yes, it was enhanced because of my last two 19 state jail felonies. I thought it was enhanced, too, ( 20 because of that other one, too. But you're saying it's 21 not, so ... 22 Q. Okay. And so you're saying you haven't had a 23 chance to visit with Mr~ Bennett, your current attorney, 24 about any of that? 25 A. About what? SHERRY FOLCHERT, CSR * 817-946-5399  17 1 Q. What I -- what you just spoke about, sir. What 2 you just stated, that you didn't understand that about 3 your indictment and what your range of punishment was. 4 A. I know it was enhanced to a -- a third-degree 5 felony, which carries two to ten on -- on state- j ai 1 6 felonies. 7 Q. All right. 8 A. And I thought I was aware -- and I thought also 9 my second-degree felony was part of that enhancement, 10 too, and I even took that as part of my enhancement, 11 too. 12 Q. Well, it certainly could be considered.by a 13 jury in assessing your punishment 14 A. Right. ~ 15 Q. or a judge, for that matter, in deciding 16 what to do. 17 A. Okay. 18 Q. And you did agree that you were offered four . 19 years in both this case and your other pending felony 20 case, the weapons case, correct? 21 A. I knew I was offered four years for both 22 ·charges, yes. 23 Q. All right. And when you actually went to court 24 in this case, after having rejected that plea bargain 25 offer, that was on July 29th, 2013, with a jury sitting SHERRY FOLCHERT, CSR * 817-946-5399  18 1 in the courtroom ready to try that case at that moment, 2 correct? 3 A. Well, I didn't know -- I wasn't aware of no 4 trial, jury being there. 5 a. There was a jury sitting in the courtroom with 6 you, wasn'~ there? 7 A. I don't remember, sir. 8 a. You don't remember that? 9 A. No, sir. 10 a. Okay. And while that jury was sitting there 11 well , 1 et me ask you this way, because you're saying 12 that what you were afraid of was somehow your attorney 13 becoming judge and sentencing you to something more, 14 right? 15 A. I was just going by what he's saying, he's 16 going to throw the book at me. That's all I know. 17 a. But you knew you could avoid that with the jury 18 that was sitting right there, because it was your jury 19 trial day and we all appeared in court to try your case, 20 when you decided to change your plea to no contest, 21 correct? 22 A. I didn't know I was there for a trial day. I 23 did not know that. 24 a. So you didn't receive from Judge Harris a 25 notice that that was your jury trial day? SHERRY FOLCHERT, CSR * 817-946-5399  19 1 A. Not that I remember, no, sir. 2 Q. And you never discussed with your attorney that 3 you had a-- a jury trial sitting? 4 A. No, sir. Not that I remember. 5 Q. So you think it's possible you maybe forgot 6 about that? 7 A. No, sir. Not-- not-- not my trial, no, sir. 8 Q. All right. So you don't believe that there'll 9 be a record from our final pretrial conference setting 10 where you rejected the final pretrial offer and the jury 11 trial date was set July 29th, 2013, at 9:00a.m., and 12 that was signed by Judge Harris, signed by your 13 attorney, and it appears signed by yourself as well? 14 A. I don't know, sir. 15 Q. So you believe if we look at that transcript 16 that just -- that hearing won't have existed? 17 A. I'm sure you could look at it and I may have 18 signed it. But I Mr. -- Mr. Russell was always going 19 so fast with signing stuff with my -- my deal, you know 20 what I mean, at my desk. 21 Q. Well, didn't the Court go over that with you, 22 Judge McGregor or Judge Harris in court, in open court, 23 on what your trial date was and that you're rejecting 24 that offer and that was your jury trial date? And, in 25 fact, when you came in, there was a jury sitting SHERRY FOLCHERT, CSR * 817-946-5399  20 1 there-- 2 A. We 11 -- 3 Q. - - as we all handled -- 4 A. Well , if there was - - 5 Q. - - and then y'all came up and told me that you 6 changed your mind, you didn't want to have the jury 7 trial, you wanted to plead to the case? 8 A. If there if there was a -- if_ that, in fact, 9 did happen - - 10 Q. Right. 11 A. -- I was told to hurry up and get it over with 12 now. 13 Q. Well, it wouldn't have been because you were 14 afraid of the judge being on the bench because he 15 obviously wasn't sitting on the bench. He was your 16 defense attorney and there.was a jury that was about to 17 decide your fate, right? 18 A. I really wasn't aware of what was going on 19 because I just was told what Mr. Tiger -- Mr. Russell 20 told me. 21 Q. And then, in fact, after pleading before -- 22 pleading there in the courtroom, then you had a choice 23 of going to the jury for punishment or to the Judge for 24 punishment and you elected that you wanted to go before 25 Judge Harris for punishment, rather than a jury, didn't SHERRY FOLCHERT, CSR * 817-946-5399  21 1 you? 2 A. Because I was told that my plea bargain -- I 3 was told that my pistol charge would be dropped if I 4 went to a trial with sentencing by a judge. I was told 5 that my pistol charge would be dropped. 6 Q. And that's the way you wanted to proceed to 7 have your pistol charge dropped and proceed with 8 sentencing before the judge on the -- on the UUMV 9 charge? 10 A. It happened so fast, I really didn't know what 11 was going on. I mean I didn't have time to think or 12 any nobody explained anything to me. All I know i s I 13 was i n a hurry - - to hurry up and get done so I didn't 14 get, you know, a harsher - - a harsher punishment. 15 That's all I know. That's all I know. 16 Q. So you believe that if - - 17 A. I don't know what I believe. All I know is 18 that this i s what I'm telling you. That Mr. Russell 19 told me if I don't hurry up, that I'm going to - - he's 20 going to throw the book at me when he takes the stand. 21 That's all I know. That's why things went so fast and 22 this, that and the other. 23 THE REPORTER: Sir, I need you to slow down 24 just a little bit, please. 25 THE DEFENDANT: I'm sorry, ma'am. SHERRY FOLCHERT, CSR * 817-946-5399  22 1 Q. (By Mr. Pratt) Now, you say when your attorney 2 takes the stand, do -- do you believe that your attorney 3 now is going to take the witness stand? 4 A. Take the stand, judge, whatever. That's what I 5 meant. . Take the judge ... 6 Because he was running fo~ judge. He told 7 me that several times. Several times that I came down. 8 Q. Well, if -- if -- really what you're trying to 9 do was to get this matter over -- 10 A. I -- 11 Q. with either by trial or by plea prior to 12 what you're saying is your belief that perhaps your 13 attorney was going to become judge. I still don't 14 understand why that would have caused you to choose 15 not 16 A. Just the way - - 17. Q. Can you please. 18 A. he - - 19 Q. let me finish asking my questions. 20 A. Yes, sir. 21 Q. . Thank you. 22 Why that would have caused you to have 23 chosen to not have gone before a jury right then, when 24 you had one. Either you had to -- if you were going to 25 try the matter, 'it was either going to have to be before SHERRY FOLCHERT, CSR * 817-946-5399  23 1 a jury or a judge, wasn't it, one of the two? 2 A. I don't -- you're the DA. I don't know. I 3 everything happened so fast. He -- he was just like you 4 better hurry up and get this over with be-- before I 5 become judge or I'm going to throw the book at you and 6 that - - that's all I did was just listen to my court - - 7 my court-appointed lawyer, my represen~ation. 8 Q. And, in fact, that day, July 29, 2013, you had 9 both,a jury and/or a judge to have your case tried in 10 front of and then you selected, signed and stated on the 11 record that you didn't want the jury and you wanted the 12 judge to do it. Which is exactly what you got, right? 13 A. I have no idea. I don't -- I did not -- I was 14 not aware I was there for a jury trial. 15 Q. Well, the truth is is that you just aren't 16 happy that ultimately Judge Harris gave you eight years 17 and you feel he treated you unfairly, correct? 18 A. No, sir. That's not correct. 19 Q. Isn't that why you are alleging in your various 20 letters and your statement here on the record earlier 21 today that you believe that somehow -- 22 A. I'm here-- 23 Q. he was -- 24 Can you, again, please let me finish my 25 question. Because she can't \_ SHERRY FOLCHERT, CSR * 817-946-5399  24 1 THE COURT: Wait. Let him finish. 2 Q. (By Mr. Pratt) I'm not trying to bully you. 3 It's just she can't take both of us talking at the same 4 time and type~ 5 A. Yes, sir. 6 Q. All right. So that - - because really what you 7 thought was that Judge Harris was somehow my judge and 8 that he treated you unfairly and that's why you got 9 eight years, right? 10 A. No, I'm just asking. I -- I -- I just -- I 11 don't know. I'm just asking. I don't -- I just -- the 12 only thing I feel is that the way Mr. Terence Russell 13 approached me, that I was -- I was afraid that he was 14 going to -- it was going to be a harsher punishment. 15 Even though now that I found out he cannot be the judge 16 over me if he was elected. 17 Now, all that other stuff, I -- I don't 18 know because I'm-- I don't know the sy~tem. Yes, every 19 time I -- I've been -- this is my third time to TDC 20 prison and I -- I am aware, you know, I do do -- go do 21 my time, you know, but I don't know the system. I don't 22 know how it's supposed to work, you know, the court and 23 all that. I'm-- I'm green at that. But I do -- if 24 there is one thing I do know is that Mr. Terence Russell 25 told me if I do not hurry up and do this and get it over SHERRY FOLCHERT, CSR * 817-946-5399  25 1 with, he's going to throw the book at me when he takes 2 the stand or becomes the j~dge. Whatever that means. 3 Stand, judge, whatever. 4 Q. Well, ultimately since you were going to be 5 tried one way or another on July 29th, either before 6 that jury or judge, I guess that ultimately doesn't 7 matter, but what I guess my question is, is that had 8 Mr. Rus$ell not made those statements, which you allege 9 that he made, what would you have done differently that 10 day on July 29, 2013, on your trial date? 11 A. I haven't thought about it. But talk to my 12 lawyer. Go to trial. 13 Q. Which would have been right there that day, 14 correct? 15 A. I don't know. I -- 16 Q. Well, let's say that it was. 17 A. I don't have no idea. I don't know because I 18 can't ... 19 MR. PRATT: I don't have any further 20 questions, Your Honor. 21 THE COURT: Thank you. ,- 22 Mr. Bennett. 23 MR. BENNETT: Just briefly. 24 FURTHER EXAMINATION 25 BY MR. BENNETT: SHERRY FOLCHERT, CSR * 817-946-5399  26 / 1 Q. So apparently you went to court last year at 2 the end of July and you ended up being sentenced in 3 early August. And I think we've already discussed that. 4 Is that correct? 5 A. Yes, sir. 6 Q. Okay. Now, are you telling the Court you did 7 not understand that on that day, July 29th, or whatever 8 date it was, you did not understand at that point that 9 you were either going to have a jury trial on that day 10 or you were going to plead something in front of the 11 judge? 12 A. Yeah. I mean ... 13 Q. Did you understand that? 14 A. No, sir. 15 Q. Okay. Did Mr. Russell not explain that to you? 16 A. I really can't remember, but I don't - - as 17 today, no, I don't -- no. No, sir. 18 Q. And what you wanted was either, like we've 19 talked about, a plea offer on an unauthorized use 20 charge, you wanted to contest the weapons charge? You 21 wanted -- you wanted -- you wanted a trial on the 22 weapons charge? 23 A. A trial, yes. 24 Q. And you're saying to Judge Mayfield, to the 25 Court, you would not have pleaded no contest on this SHERRY FOLCHERT, CSR * 817-946-539~  27 1 A. Right. 2 Q. charge except for the fact that Mr. Russell 3 told you he was going to be the judge and he'd throw the 4 book at you? 5 A. Yes, sir. 6 Q. And that's a paraphrase. I don't know exactly 7 what he told you, but something to that effect . 8 . A. That's what it was. 9 Q. Okay. And you understand that if you had not 10 pleaded no contest to the Judge, then the other option 11 would have been a trial? 12 A. Yes, sir. 13 Q. Okay. And what you're telling the Court i s 14 you're not aware, you don't recall that the trial would 15 have actually happened that day? 16 A. I was not aware of that, no, sir. 17 Q. Okay. Do you feel 1 ike your plea was 18 involuntarily because of that advice he gave you? 19 A. Yes, sir. 20 MR. BENNETT: That's all I have, Judge. 21 THE COURT: Thank you. 22 Anything further? 23 MR. PRATT: Your Honor, I'd 1 ike to ask the 24 Court to take judicial of the Court's file in this 25 matter. SHERRY FOLCHERT, CSR * 817-946-5399  28 1 THE COURT: All right. 2 MR. PRATT: Additionally, I do not see a 3 file mark on the particular document, so I'd like to 4 show it to the witness and ask him if that's his 5 signature on that document. 6 THE DEFENDANT: Yes, it is my signature. 7 MR. PRATT: All right. I would like to 8 mark this as State's Exhibit 1. 9 (State's Exhibit No. 1 was marked) 10 THE DEFENDANT: Is there any way I can use 11 the restroom? 12 THE COURT: Sure. We'll take a short 13 break. 14 (A break was taken) 15 THE COURT: All right. We're back on the 16 record. 17 And you had had the exhibit marked as 18 State's 1? 19 MR. PRATT: Yes, Your Honor. The State 20 offers State Exhibit 1. ' ' 21 (State's Exhibit No. 1 offered) 22 MR. BENNETT: No objection, Your Honor. 23 THE COURT: State's 1 is admitted. 24 (State's Exhibit No. 1 admitted) 25 MR ..PRATT: The State has no further SHERRY FOLCHERT, CSR * 817-946-5399  29 1 questions, Your Honor. 2 THE COURT: Thank you. 3 Any other witnesses? 4 MR. BENNETT: Your Honor, I have no further 5 witnesses. 6 THE COURT: Okay. Did you wish to call 7 Mr. Russell, or question Mr. Russell? 8 MR. BENNETT: Well, Judge, I think the only 9 evidence before the Court is what my client heard 10 Mr. Russell say and so I don't think there's any 11 evidence to contradict what Mr. Russell told him under 12 this current record. 13 THE COURT: And that's why you don't want 14 to call any other witness. That's fine. 15 Does the State wish to call any witnesses? 16 MR. PRATT: No, Your Honor. .17 THE COURT: That's very interesting. I 18 think at this opportunity I'm acting more as a hearing 19 examiner than a judge and I think I have the right to 20 .call Mr. Russell and ask him so that I can enter 21 findings of fact. If I haven't the authority, then that 22 can be discussed with the Court of Appeals. 23 Ask Mr. Russell to step in. 24 (Mr. Russell enters the proceedings) 25 THE COURT: Mr. Russell, if you'd take the SHERRY FOLCHERT, CSR * 817-946-5399  r 30 1 witness stand. 2 (Witness was sworn) 3 THE WITNESS: I do. 4 THE COURT: Thank you. Please be seated. 5 Neither side has elected to call you, but 6 as the hearing officer i n this particular case I've 7 asked -- or I've had you subpoenaed and placed you on 8 the stand. 9 You remember this particular case with 10 Mr. Lee? 11 THE WITNESS: I do recall the majority of 12 it. I recall the actual incident for which he was 13 arrested and almost all of my negotiations with the DA 14 and then what we eventually did in this case. 15 THE COURT: Okay. And what do you remember 16 of the -- the plea bargain that was made at the final 17 hearing on July the 29th, 2013, when he entered a plea 18 ·of no contest, or was there a plea bargain? 19 THE WITNESS: Well, if I -- if I may begin 20 from the beginning, Your Honor, and kind of let you know 21 how this ·case came to .the point that it did. I 22 I recall that at arraignment when Mr. Lee 23 and I showed up, Mr. Pratt looked into the case that was 24 a felon in possession and said I don't believe we can 25 prove that he did this. We can't prove this case 'I SHERRY FOLCHERT, CSR * 817-946-5399  31 1 because I can't -- I -- I can't -- I don't think I can 2 prove that he knew it was there. c 3 THE COURT: The firearm? 4 THE WITNESS: Right. So he plead not 5 guilty to both of those cases. 6 The next thing that we had was we - - we 7 went to the case got assigned to Nicole Crain. And I 8 went in to Nicole Crain and Nicole said, Well, I '11 9 offer him four on the UUMV case and we'll 12.45 the 10 other case. I tal d her I say, Well, we can't 12.45 11 it because that's not a dismissal. That-- that is like 12 a -- a a -- basically a -- a plea and avoidance 13 thing. I said -- I said you got to dismiss that case. 14 I talked that over with Mr. Lee and Mr. Lee 15 understood exactly what we were saying. I went back and 16 told her the same thing. So we agreed that since she 17 wouldn't do that that we were going to have to do 18 something else. So we went before the Court with the 19 plea recommendation should be at the top .of the 20 thing -- and told the Court that we were not accepting 21 that plea bargain. Now 22 THE COURT: And that was on the pretrial 23 conference? 24 THE WITNESS: Right. The final pretrial 25 conference date. SHERRY FOLCHERT, CSR * 817-946-5399  32 1 THE COURT: Okay. 2 THE WITNESS: And Mr. Lee and I both went 3 in the Court and advised the Court that that was our 4 decision. 5 Now, it seems to me -- and I don't really 6 remember why, but this case was really expedited very 7 fast to court. And where we'd been in front of Judge 8 McGregor and gave our decision that we were going to 9 proceed to -- not proceed to a guilty plea or a no 10 contest plea at that point and we were going to do 11 something else. We were in front of Judge McGregor and 12 then it got really expedited and the next time -- I 13 remember this -- we were somehow set in front of Judge 14 Harris and Mark Pratt was going to -- going to be 15 handling the case. 16 Now, between that date and the date we 17 actually had the hearing, I remember Mr. Lee called me 18 back up and he said, Look, I'll take the four years. 19 And I contacted Mark and I said Mr. Lee said that he's 20 agreeable to take the four years and Mark told me -- he 21 said, Well, we're past the final pretrial date so there 22 is no more plea bargains available. 23 THE COURT: So the plea bargain had been 24 withdrawn. 25 THE WITNESS: So the plea bargain had been SHERRY FOLCHERT, CSR * 817-946-5399  33 \ 1 withdrawn at that point. So we go into the hearing and 2 we actually had the hearing. And I think that what we 3 did we decided to plead no con-- no contest to the -- to 4 the UUMV charge and go to the Court for the punishment, 5 if I -- if I -- to the best of my recollection, I 6 believe that's what we did. 7 And Mr. Pratt announced to the Court at 8 that time that he was going to dismiss the felon in 9 possession case. So we only proceeded on the UUMV 10/charge. And-- and at the result of the hearing, the 11 the Judge sentenced him to eight years, which -- which 12 was twice the amount that was actually offered in the 13 original plea bargain. I pointed to the Court in -- in 14 my closing argument that that final pretrial conference 15 sheet was in the file and exactly why we had set the 16 case for this hearing was because that we -- that they 17 would would not dismiss the felon in possession case 18 if we plead to the UUMV in that -- in that material. 19 And that was exactly why we h~d the hearing and I was 20 just hoping that the Court would understand that and 21 would give him the four years that he had agreed to take 22 once the -- the felon in possession case had been 23 dismissed. 24 THE COURT: Any questions? 25 EXAMINATION SHERRY FOLCHERT, CSR * 817-946-5399  34 1 BY MR. BENNETT: 2 Q. Mr. Russell, do you remember telling Mr. Lee 3 that you were running for judge at that time? 4 A. I don't recollect when this was. I don't think 5 that I had announced at that point. I may have 6 discussed to him that I was contem~lating that, yes. 7 Q. Do you recall telling him anything about if you 8 were elected judge, that you would throw the book at him 9 if you were the judge? 10 A. I never would have told him that at all. 11 Q. Did Mr. Lee understand on July 29th, or 12 whatever the date was, that y'all were actually set for 13 a jury trial? r 14 A. I believe -- yes, I believe that was what was 15 reflected in the trial readiness certificate we had 16 that that we were set for a jury trial, but at the 17 time we did not go forth with the jury trial. 18 Q. Yeah. I understand what the paperwork says. 19 I'm just asking you if you fully explained that to him, 20 if he understood that it was actually set for a jury 21 trial on that day? 22 A. Well, I explained to him what we were doing, 23 yes, that -- that -- I mean he sign-- he signed off on 24 the paperwork and I showeq him down there where the date 25 was at and -- and, you know, what -- that -- that it was SHERRY FOLCHERT, CSR * 817-946-5399  35 ~ 1 set for a jury trial, yes. 2 Q. So you explained it to him; what he was 3 signing? 4 A. Yes. 5 Q. And you felt like he understood what was going 6 on? 7 A. Yes. 8 MR. BEN~ETT: I'll pass the witness, Judge. 9 THE COURT: Mr. Pratt. 10 EXAMINATION 11 BY MR. PRATT: 12 Q. July 29, 2013, actually was the jury trial date 13 for this case. Is that not right? 14 A. Yes, I believe that's right. To the best of my 15 recollection. 16 Q. What your client, Mr. Lee, did not want to do 17 is take a conviction in both cases with four year 18 concurrent sentences, which was his final offer in this 19 case; is that right? 20 A. My understanding was the offer was basically 21 that he would plead to the UUMV case and that the felon 22 in possession was to be 12.45'd, which means it was 23 going to be taken into consideration on the sentencing 24 of the other case. Which 1 ike I say, is a plea and 25 avoidance type of plea. SHERRY FOLCHERT, CSR * 817-946-5399  36 1 Q. That was something you said that you discussed 2 with my assistant Ms. Crain, and y'all ultimately 3 rejected handling something like that? 4 A. Right. When we couldn't get the dismissal, 5 we -- we didn't know what to do at that point. Because 6 that was -- that was Mr. Lee's contention that he 7 wouldn't accept anything but a dismissal of the felon in 8 possession case. 9 Q. Mr. Lee ultimately decided that he did not want 10 to have a jury determine his guilt or innocence in the 11 UUMV case; is that correct? 12 A. Yes. I 13 Q. And, in fact, he entered a plea because he 14 didn't contest whether or not he was guilty of that 15 particular charge; is that right? 16 A. I believe that's correct, to the best of my 17 recollection. I- do remember that we stipulated all 18 the -- all the police reports that we didn't have any 19 actual witnesses. 20 Q. And then, although, he had a jury there for 21 July 29th to have had this matter -- his sentence 22 determined by a jury, he -- he decided he wanted that to 23 be done by a judge and waived his right to a jury for 24 sentencing and decided to proceed before a judge; isn't 25 that correct? SHERRY FOLCHERT, CSR * 817-946-5399  37 1 A. That's correct. 2 MR. PRATT: I'll pass the witness. 3 THE COURT: He's passed the witness. 4 MR. BENNETT: I'm sorry, Your Honor. 5 THE COURT: That's all right. 6 FURTHER EXAMINATION 7 BY MR. BENNETT: 8 Q. Mr. Russell , did you advise Mr. Lee that it 9 would be in his best interest not to have a jury trial 10 i n this case? 11 A.. I don't recall . Given the circumstances 12 that - - that existed at the time, I would - - I would 13 suspect that I told him that it probably was not his 14 best option, yes. But I don't recall whether I actually 15 told him that or not at this time. 16 Q. Well, he acted on someone's advice or -- to -- 17 to decide to waive the jury and just have a a bench 18 trial, did he not or-- 19 MR. PRATT: Objection; calls for 20 speculation. We don't know whether or not he -- he did 21 that on his own volition or based on someone's advice. 22 It would be purely speculation. 23 THE COURT: The witness can answer the ( 24 question if he knows. 25 Q. (By Mr. Bennett) What do you think? SHERRY FOLCHERT, CSR * 817-946-5399  38 1 A. Yeah. I'm pretty sure that I'd -- I would have 2 advised him of that. Like I say, that's what I believe 3 today and I don't think I would have believed anything 4 other at at that time. 5 Q. So you -- you thought it was in his best to 6 plead no contest to the Court. Is that a fair 7 statement? 8 A. Yes. 9 Q. And you advised him of -that? 10 A. Like I say, the best of my recollection, I 11 don't recall. But I-- I-- I do believe that I-- I 12 would have done so, yes. 13 Q. Okay. But -- but you're still telling the 14 Court you never told him that -- that you were about to 15 be elected judge and that you would throw the book at 16 ~im if you were on the bench in this trial? 17 A. I don't recall that. Because, like I say, I 18 I wouldn't have made that determination. I may have 19 told him that -- that I felt like the jury might do that 20 because of his prior record. 21 MR. BENNETT: That's all I have, Judge. 22 FURTHER EXAMINATION 23 BY MR. PRATT: 24 Q. So were your recommendations then taking into 25 account the strength of the case in this matter, which SHERRY FOLCHERT, CSR * 817-946-5399  39 1 involved a videotape of the Defendant actually 2 committing this particular offense, as well as his 3 criminal record showing at least three prior final 4 felony convictions, including a couple of trips to 5 state jail and one to the penitentiary for aggravated 6 assault with a deadly weagon? 7 A. I took that -- all that into consideration. 8 The fact that the -- that -- that there was a videotape 9 and there was also a LoJack in the vehicle. So it 10 was he was found easily, yes. And found behind the 11 wheel. 12 a. Yeah. He was actually observed and caught 13 while driving the stolen vehicle en route from the place 14 from which he stole it heading down the interstate, 15 correct? 16 A. That's correct. 17 a. And, in fact, in there there were a number of 18 items taken out of the center console of that vehicle, 19 which contained the weapon 20 MR. BENNETT: Judge, I don't think-- 21 a. (By Mr. Pratt) -- in which he was charged 22 with, correct? 23 A. I don't 24 MR. BENNETT: I don't see the -- 25 A. recall that -- SHERRY FOLCHERT, CSR * 817-946-5399  40 1 MR. BENNETT: relevance of going into 2 the facts of the underlying offense here. 3 MR. PRATT: Well, I believe if we're 4 what we're going in to is whether or not his 5 recommendations regarding how to proceed with the matter 6 were reasonable or not, then what else would you look at 7 except for the facts in this particular case. 8 THE COURT: Well, I don't know that we were 9 going in to whether or not his recommendations were -- 10 was reasonable under the facts. But I think is -- the 11 question was whether he had made certain representations 12 or -- or recommendations. Whether or not they're 13 reasonable recommendations is -- is another matter. But 14 as you say, it would necessitate knowing what the basis 15 of those recommendations were. 16 I'll overrule the objection, but there's no 17 need to go in any great depth on the underlying case. 18 MR. PRATT: I'll withdraw my question then, 19 Your Honor. 20 THE COURT: Thank you. 21 All right. Anything further? 22 MR. BENNETT: No, Your Honor. 23 THE COURT: All right. Thank you very 24 much. 25 THE WITNESS: May I be excused, Your Honor? SHERRY FOLCHERT, CSR * 817-946-5399  ( 41 1 THE COURT: Any objection to this witness 2 being excused? 3 MR. PRATT: No objection. 4 MR. BENNETT: No, Your Honor. 5 (Witness was excused) 6 THE COURT: All right. 7 Any further witnesses or any further 8 evidence to be submitted to the Court? \ 9 MR. BENNETT: Your Honor, could I recall 10 Mr. Lee just briefly? 11 THE COURT: Certainly. 12 Mr. Lee, I'll let you testify from where 13 you're seated. 14 THE DEFENDANT: Yes, sir. 15 THE COURT: And you may proceed. 16 You're still under oath, Mr. Lee. 17 FURTHER EXAMINATION 18 BY MR. BENNETT: 19 Q. All right. Mr. Lee, now after thinking a 20 little bit further about it, do you -- you understood / 21 when you guys went back to court on July 29th 22 MR. PRATT: Objection; leading. 23 THE COURT: Sustained. 24 Q. (By Mr. Bennett) Could you state whether or 25 not when you went to court on July 29th that you SHERRY FOLCHERT, CSR * 817-946-5399  42 1 understood that that was for jury selection? Yes or no? 2 A. I think I did know that it was for jury 3 selection. 4 Q. Could you state whether or not you understood 5 jury selection was the same thing as the actual jury 6 trial beginning on that day? 7 A. No, I did not. I did not know that. 8 THE COURT: Have you ever been to a jury 9 trial, Mr. Lee? 10 THE DEFENDANT: No, sir. 11 THE COURT: Okay. 12 Q. (By Mr. Bennett) The -- the intlictment refers 13 to three prior felony convictions. So are you telling 14 the Court that you pleaded guilty in all those cases? 15 A. Yes. 16 MR. BENNETT: That -- 17 A. Or no contest. 18 MR. BENNETT: -- that's all I have, Judge. 19 I just wanted to clarify his understanding of -- 20 THE COURT: What the process was. 21 MR. BENNETT: what that process was, at 22 least from his perspective. 23 THE COURT: So you understood that a jury 24 was going to be selected that day. 25 THE DEFENDANT: I know a jury was going to SHERRY FOLCHERT, CSR * 817-946-5399  ~ I 43 1 be selected. I -- I don't know -- if going to be held 2 that day or not, I did not know. 3 THE COURT: Okay. But you didn't know it 4 wasn't going to be, you just didn't know exactly. 5 THE WITNESS: Right. 6 THE COURT: But you knew that it would -- 7 that you were going to enter a plea of some sort, either 8 not guilty or 9 THE DEFENDANT: I 10 THE COURT: no contest or something? 11 THE DEFENDANT: I didn't know if I was 12 going to enter a plea or not. I wasn't ... 13 THE COURT: Okay. You had previously 14 entered a plea of not guilty and -- and requested a jury 15 trial, according to the documents I have here. Did you 16 understand that that was going to be happening? 17 THE DEFENDANT: That I was going to go to 18 trial? ' 19 THE COURT: Yeah. 20 THE DEFENDANT: I could -- yes, sir. 21 THE COURT: Okay. And you knew that was 22 the day the jury was going to be selected? 23 THE DEFENDANT: I knew it was, yes, sir. 24 THE COURT: You became aware of that when 25 you got there? SHERRY FOLCHERT, CSR * 817-946-5399  44 1 THE DEFENDANT:( It's-- 2 THE COURT: Yeah. Okay. 3 THE DEFENDANT: I just didn't know that 4 there was going to be a court date then. 5 THE COURT: That's fine. That's fine. 6 MR. PRATT: Was that your last question? 7 MR. BENNETT: Yeah. 8 MR. PRATT: Pass the witness? 9 MR. BENNETT: I pass the witness, Your 10 Honor. 11 THE COURT: You pass and I pass. 12 FURTHER EXAMINATION 13 BY MR. PRATT: 14 Q. And so, Mr. Lee, despite your testimony under 15 oath here earlier that you had no knowledge or -- or 16 memory that there was going to be a jury that day, 17 you're saying that -- that now your memory is starting 18 to come back and you remember that, right? You're not 19 saying that you were lying earlier, but you're just 20 saying that now 21 A. I knew that there wasn't going to be -- I was 22 not aware there was going to be a trial right then and 23 there. I that knew that there-- there)was a bunch of 24 people coming in in street clothes, going in there and 25 just sitting down waiting for whoever's in there to get SHERRY FOLCHERT, C.SR * 817-946-5399  45 1 done with -- that's what -- how I took it. And 2 that's how I took it. I didn't know that there was 3 going to be a trial date. I thought there was like a 4 jury selection. I didn't know how that -- I don't know 5 how that process works at all. Just a jury selection. 6 Like they were going to pick -- like the -- the 7 courthouse had 50 people in it. 40 -- 40 or 50 people 8 in there. I didn't -- 9 THE COURT: In the courtroom? 10 THE DEFENDANT: Yes, sir. 11 THE COURT: Okay. 12 THE DEFENDANT: I I didn't -- how much 13 does the jury trial take? Six or 12? So I didn't that 14 they were going to have all -- you !ca5 66-f~J--:d~t-;/JO~,y--~i'cf j >. V.S . f {o..u~/Vo]76/7 Jf//1~-ivJ.y,'Te;<:uS . Lwhs f~.n" f;JJ5 . J.l; IISbo:, o 1"'!:)«< S <::::::) 1-z. 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J)'v'o fs.f1. _f[(.;g,. a~{ .CJrred- clcu~rJT. 3() ....  HII. r COUNTY AFFIDAVIT OF IN.Jll.GENCE ) .I ,; This section to he filled out by Court Personnel No. ------------------ The State of Texas In the ---------------- Court vs. _____________________Councy Level of Offense Offense - - - - - - - - - - - - - - - ---------- j .................. ·~······-··~··~·~ .. ........... -•..A>-·---....-.. -·......... ~· ~---·...._ ............... ,_.._,.._.._ ....,_, ... ~- ........ ~_...._.~.-- ..,... -.-...~ ............. .. ~ ~J.oo:..<'""~----~....._ ............_ ... ____....._........... ,,.~ •...,.._...,..._., •.. .... ,._......_ ........,.,._"""\' ~., l All information must be completed by the defendant and must be current, accurate, and true. Intentionally j ~or knowingly giving false information may result in your prosecution for the offense of aggravated perjury, 1 !a felony. The punishment for aggravated perjury includes impris?nment not to exceed ten (IO~ar~ al i ~ne not .to exc.eed ten thousand dollars ($1 0,000).' Please fill m all ~lanks. .If you. do n_~kn~~he. pnformatlon bemg aske~, enter DO NOT KNOW m the blank. If the mformatwn bemg as~ do~~:;!lot; ~J :::~.~~;~~~:;~~::\~~~:~7:::;:;~:::~~::.~:;--·&~·~~-;;-c~~ Street Address Cicy, State, Zip '~ o' lh!rs1t"eV/ ; . J.}J//J t:lJ ro .J I?-, 7 b Gl f j rr. · · -&. -; ~ Social Securicy# Lftr- 71- K3J-f Driver's License# . . /Jf ISS Lf'l Date of Birth Name of Spouse Dependents: . .AI/1 Name(s) (list below): Age Relation Income Are you currently in jail or in a correctional institution? No ~es lfyes, grovide nameofinstitution: Are you currently residing in a m~tal health facility? /J; /f u1-vul1 :k/1 ~ Yes lfyes, provide name offacilicy: DQ yoy have an application pending at a mental health facility? L./No Yes If yes, provide name of facility Hill Cnunty Indigent Defense ' ., Employer lnfor.mation / Employer Phone Number Supervisor's Name Street Address: City, State, Zip Hours worked _per week or _per month Pay rate Spouse's Employer Street Address: City, State Zip Hours worked . _ per week o·r per month Pay rate If unemployed, list: . .~~;~d~~~:o:;;;~;,ed~mp~;f ~;~~ . City, State, Zip /)VI-/£) 7;>o 7,5).. /ij fJr