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1 REPORTER'S RECORD 2 VOLUME 2 OF 6 VOLUMES 3 TRIAL COURT CAUSE NO. 8701-A 4
5 ) . i EX PARTE ) IN THE DISTRICT COURT 6 ) f·'1 ) 7 ) ) 8 RODNEY REED, ) BASTROP COUNTY, TEXAS ) 9 ) . , ) !- 1 10 ) , .! ) 11 APPLICANT ) ) 21 ST JUDICIAL DISTRICT 1·2 , RECEIVED IN .· .: ':~~'~'·'1".':/·<''il'·t! Ii COURT OF CRIMINAL APPEALS'" . I, 13 ..'":.-':\.- ! 1 14 JUL 052006' [I : •.• J 15 ------'------Louise-R~onJ Clerk 16 . EVIDENTIARY HEARING 17 18
" 1 19 / i CJ 20 On the 23rd and 24th days of March, 200~, the following i .i l· ! !' 21' proceedings came on to be heard in the above-entitled and 22 numbered cause before the Honorable Reva L. Towslee Corbett, 23 Judge presiding, held in Bastrop, Bastrop County, Te~as;
I i 24 l I 25 Proceedings reported by machine shorthand.
ORtG1NA'L Dislrlet Clerk, BastroP ~ ; ! 2
1 A P PEA RAN CES
2 FOR THE APPLICANT: 3 SBOT NO. 24032750 Morris Moon 4 Texas Defender Service· 412 Main Street, Suite 1150 .1 5 Houston, Texas 77002 ; I , J Telephone: (713) 222-7788 6 7 .SBOT NO. 00000046 Morris Overstreet 8 i---··1 Texas Southern University j _...1 Box 12817 9 Austin, Texas 78711-0000 · I Telephone: (713) 313-7126 :· !I 10 Sandra S. Smalley 11 Lindquist &Vennum, P~L.L.P. i-I 4200 IDS Center 12 80 South Eighth Street Minneapolis, Mn ·55402
,::··~-.·.I. 13 Telephone: (612) 371-3958 14 FOR THE STATE: i'l,I I• SBOT NO. 19637700 J.j 15 Lisa Tanner Assistant District Attorney 16 Bastrop County, Texas .;~-;• Assistant Attorney General 17 P. O. Box 12548 Austin, Texas 78711-2548 '\ '..J 18 Telephone: (512) 463-2170 19 SBOT CO. 24026139 Tina Dettmer 20 Assistant District Attorney l Bastrop County, Texas ! t 21 Assistant Attorney General P. O. Box 12548 · 'f 22 Austin, Texas 78711-2548 I Telephone: (512) 936-2893 23 24 25 3
1 CH RON 0 LOG I CAL INDEX 2 VOLUME 1 3 (EVIDENTIARY HEARING) 4 MARCH 23, 2006 Page Vol.
5 Announcements. ~ . 7 2 6 Motion for Disqualification of Assistant District Attorney 7 Lisa Tanner . 8 2
: .j 8 Lisa Tanner! Direct Statement . 10 2 l -i ! 9 Cross Examination.; . 16 2 10 Argument by Mr. Moon . 17 2
11 Argument by Ms. Tanner . 18 2 12 Court's Ruling . 21 2
13 Motion for Substitution . 21 2
14 Court 's Ruling ; . 21 2
15 Recess . 22 2 I 16 Motion to Limit Issues to be Litigated .l 17 In Evidentiary Hearing . 22 2 1 j .2 .1 18 Court's Rul i ng : . 25
~ i I 19 Announcements of Ready . 30 2 ! I i I '--~ ) 20 Opening Statement by Mr. Overstreet . 30 2
I 21 Opening Statement by Ms. Tanner .. ~ . 32 2 _.. J1 22 APPLICANT'S WITNESSES 23 WITNESS Direct Cross Voir Dire Page Vol. 24 Calvin Garvie 33 45 2 i 25 47 53 2 . J
"..: __i 4
1 WITNESS Direct Cross Voir Dire Page Vol.
2 Martha Barnett ·56. . 69 2 3 101 103 '2
4 Luncheon Recess - 105 2
5 Court Reporter's Certificate ; . 106 2
6
7
8
9
; . i 10 ... \
I 11 :.-j :I '_ ... ; 12 13
14 15 16
17 . ; : ! ;.. ~ 18
.\ 19 i i 20
, 21 ' .. J 22
23 , 24 J 25 ,5
1 ALPHABETICAL WITNESS INDEX 2 WITNESS Direct .Cross Voir Dire· Vol. 3 Barnett, Martha 56 69 '2 4 101 103 2 5 Garvie, Calvin 33 -45 2 6 47 53 2 7 8 9 , 10 . ., , 11 :" ; i I 'J 12
~] ; 1 13 , .J 14 " j i : i 15 ;"j 16 :'-J 17 ,I", ,I 18 19 20 21 22 , j 23 24 25 6
1 EXHIBIT INDEX 2 STATE'S 3 NO. DESCRIPTION OFFERED ADMIITED VOL.
4 1 Letter 20 20 2
5 2 Statement 85 85 2
6 3 Arrest - DWI 97 97 2
7 4 List of Charges 97 97 2 8 9 10 11 12 13 14 15 16 17 ~ ) ~ I i :1 18 19 20 21 22 23 , 24 . ,1 25 { I J 7
1 (Cause Number 8701-A; the State of Texas versus Rodney Reed; 2 21st Judicial District Court, Bastrop County, Tex~s.)· 3 THE COURT: All right, good morning, ladies and 4 gentlemen, we have some preliminary matters to take care of 5 before we begin the hearing that we're set for here today. 6 One of the things I would like to advise all the 7 members of the audience of is that I do expect that respect 8 will be given to this Court,there will be no talking, there 9 will be no cell phones, recording devices, cameras or any type
:- i 10 of that in the audience. There will be no comments on ~_ • .J 11 testimony that may be presented from the audience. If you feel '12 that you have something to say you may do it outside this 13 courtroom, but if you decide to speak out in the courtroom you 14 will be excused and you will note be allowed to come back in. 15 Does everyone understand that? (Silence.)
"J i 16 All right. Now, in order to identify all the ..IJ. 17 individuals that with us this morning I'm going to ask that the
18 parties stand an~ identify yourself and who you represent. 19 We'll start with Mr. Reed's counsel. 20 MS. KASE: Kathryn Kase, your Honor, with the 21 Texas Defender Service in Houston. 22 THE COURT: Thank you very much. 23 MR. MOON: Morris Moon with the Texas Defender 24 Service in Houston. 25 MS. SMALLEY: Sandy Smalley from Lindquist & 8
1 Vennum in Minneapolis.
2 THE COURT: Thank you. 3 M'R. OVERSTREET: My name is Morri s Overstreet, 4 I'm a law professor at the Thurgood Marshall School of Law. 5 THE COURT: Thank you, sir. 6 MS. TANNER: Lisa Tanner, I'm Assistant Attorney " . 1 i 7 General and deputized assistant criminal, district attorney. 8 MS. DETTMER: I'm Tina Dettmer, Assistant 9 Attorney General and I'm deputized as well.
! 10 THE COURT: All right, I believe we have some ,-.j
(".-., 11 motions we need to address prior to the beginning of this \ , :! I i I , {.,.! 12 hearing.
I' : I i ,I ; 1 13 The first motion I would like to address would 14 be the motion that was filed on February 24th of the year 2006, (') II L,.i 15 it was tendered to the Court by Mr. Moon. That is your motion, 16 it is a motion that you had sought for disqualificatlon of the 17 Assistant District Attorney Lisa Tanner. Do you have any 18 evidence to proffer toward that motion? , 19 MR. MOON: No, Your Honor, we would rest on the I ! :'.. 1 20 motion. 21 THE COURT: Response from the State?
22 MS. TANNER: Yes, your Honor. The State has 23 filed a written response with the Court, it was actually just 24 filed yesterday. I don't know if the Court has had an 25 opportunity to look at it. And, also, in light of one of the 9
1 cases we cited in it we would like to -- I would like to 2 testify under oath with regard -- -solely with regard to the 3 issue of disqualification, if I may. 4 THE COURT: Okay, you may. 5 MR. MOON: I don't believe I received a copy of 6 the response. 7 MS. TANNER: I over-nighted it to counsel on 8 Monday. '9 MR. MOON: Yes, I have it here. 10 THE COURT: Would you like to take a moment to 11 'look at that, Mr. Moon? 12 MR. MOON: Yes, your Honor. r··' I.., 13 THE COURT: Please do. I..:: 14 (Opposi ng counsel revi ews .ftl ed response.) 15 THE COURT: All right, you may proceed. 16 MR. MOON: Thank you for time, Judge. 17 THE COURT: Do you want to come up here to the 18 witness stand? 19 MS. TANNER: Whatever the Court prefers. 20 THE COURT: . Can you see her from there? 21 MR. MOON: That's fine, Judge. 22 THE COURT: Okay, 'from there is fi ne . 23 LISA TANNER, 24 called herself as a witness and having first been duly sworn 25 testified as follows: 10' .
1 DIRECT EXAMINATION . 2 QUESTIONS BY MS. TANNER:
3 Judge, I would like to state for the record that 4 my name is Lisa Tanner, I'm an assistant attorney general have 5 been so employed sin February 1st of 1994. I'm deputized as a 6 assistant criminal district attorney for Bastrop County. I was 7 the lead counsel for the State on the case the State of Texas 8 versus Rodney Reed, both at trial and on appeal, and was also 9 the lead counsel on the habeas proceedings, Ex Parte Rodney ; ) 10 Reed in State Court. 11 With regard to the issue of the motion fro 12 disqualification, I would like to state for the record that I 13 was deposed in the federal litigation on October 16th of 2003 14 with regard to any knowledge I had of Martha Barnett or Steven , 15 Keng, and a few other matters that are not relevant for todays 16 hearing. And at that deposition, as I have included an excerpt 17 in our response to their motion, I testified then, as I do now, 18 that I never heard of Martha Barnett prior to, or during, or
, --j 19 after Rodney Reed's trial. I never spoke to her. I did not \:1 L:l 20 know any of the things that she said she saw. \ 21 I did not talk to or was not aware of Steven 22 Keng prior to, or during, or after Rodney Reed's trial. I knew 23 Mr. Keng by face only by virtue of the fact that I had done 24 cases in Lee County, and have never, to this day, spoken to him 25 or Martha Barnett about this case. 11
1 I never, prior to, during or after trial spoke i ; 1-, ,I 2 with Charles Penick about SteVen Keng or Martha Barnett, or·· j.; 3 anything that they may have said to him. 4 The first I knew of any .allegations with regard 5 to the suppression of exculpatory evidence with Martha Barnett 6 or Steven Keng ~as when I read it in the table of contents of 7 Petitioner's Federal· Writ of Habeas Corpus. That was my first 8 knowledge of the existence of any of these allegations and/or 9 the existence of these people ..
/. 10 If you look at the affidavits that have been L 11 attached, and I believe the testimony will bear this out, the
12 affidavits themselves demonstrate that I had no knowledge 13 before, during or after trial about these people or these 14 all egations. n I', , v. .I 15 Additionally, with regard to the sealed claim 16 that has been made regarding affidavits made by Mary Blackwell 17 and John Vasquez, you can look at those affidavits and tell 18 that they did not share any of that information with me prior
(! 19 to, or during, or after trial, and I can state the Court ~,_.J 20 unequivocally that they did not share any of that with me prior
: l \ '. , i ! ,21 to, during, or after trial. J 22 The first I knew of the existence of Mary :·1 ..' 23 Blackwell, or also Mary Best, was when I read the claim that
! 24 was made and the affidavit attached to it when it was served . \ 25 upon the State. 1 I ../ 12
i .: 1 As such, it is my position that I am not a 2 necessary witness for the defense because· I have no knowledge.
\ 3 If you look at the Rules of Professional Conduct; comment· ten 4 of the rules specifically say that "A lawyer should not seek to 5 disqualify an opposing lawyer by unnecessarily calling that 6 lawyer as a witness. Such unlntended application of this law, 7 if allowed, would convert its true purpose by converting· it to 8 a mere tactical weapon in litigation." 9 Now I'm providing this Court with this 10 information to demonstrate that I am not in· any way, shape or 11 form a necessary witness on anybody's behalf in this particular 12 case here. And I will state to the Court, unequivocally, that 13 it State of Texas has no plans whatsoever to call me as a 14 witness. 15 THE COURT: Thank you. 16 Mr. Moon, do you have any questions for Ms. 17 Tanner? 1 !- .. ~ 18 MR. MOON: Yes, just briefly, judge. 19 THE COURT: All right, you may proceed. 20 MR. MOON: Judge, actually, before we proceed . i .. I 21 at this time I would like to invoke the rule, in case there are
, 22 any witnesses in the courtroom. . ! 23 . THE COURT: All right, are there any·potential 24 witnesses either for the State or defense that are present in 25 the courtroom at this time? Will you please approach if you're 13
1 in the courtroom. I guess most of you have your witnesses 2 elsewhere; is that correct? 3 MR. OVERSTREET: Yes, that's correct. 4 THE COURT: .Could we bri ng in all the wi tnesses 5 at this time and let me swear everybody and put everybody under 6 the rule.. If you'll get your witnesses and if the State would 7 get theirs, please.
8 MS. TANNER: Judge, we could have one issue with 9 regard to the rule. I don't know that any of the deputies who 10 are in that this applies to them, however it might. There are 11 several Bastrop County_Deputies that could feasibly .become I L j 12 witnesses. Some of them, I think, could be on security duty so t : 1·"1 V... -~ 13 we would 'ask that they be exempt from the rule for obvious l' 14 reasons. I don't even know if any of the deputies it's 15 applicable to. I don't believe it does, but just in case. 16 There is one deputy, Deputy Castello.
17 THE COURT: And he may be a witness? 18 MS. TANNER: He has provided an affidavit in the
;-1 19 past so I don't know that he would be, for certain, but it's , , !- I '.,, ;I 20 possible. 21 THE COURT: You might need to trade him out with 22 somebody else then. Is there another deputy that could come in 23 and he could go somewhere else? I would prefer to do it that 24 way so there would be no inference of impropriety whatsoever. 25 (All available witnesses brought before the - 14
1 Court to be sworn and placed under the rule.} 2 THE COURT : All right, I·woul d Iike for you to 3 all state your name foi the court reporter. 4 (Gene Henderson, Texas Department of Safety,
, I '. I 5 Crime Lab; Calvin Garvie, attorney at Law; Misty Wolfe, office 6 of the Attorney General; Jeff Yarbrough, office of the Attorney 7 General; Randy Castillo, Bastrop County Sheriff's Office; Mary 8 Kay Keng; Martha Barnett.)
9 THE COURT: Mr. Moon, is this all of your 10 witnesses that you're aware of at this time? 11 MR. MOON: There are two more that are coming [.'·,i l ". 1... -", 12 across the street right now. 13 THE COURT: And your name, sir, is. 14 PROSPECTIVE WITNESS: Steven Keng.
15 (All available witnesses sworn. ) 16 THE COURT: Ladies and gentlemen, the attorneys 17 have requested that rule be invoked. Many of you with law 18 enforcement backgrounds, I'm sure you're aware of what the 19 means but I must tell you on the record that that means you are 20 not to discuss your testimony amongst yourselves pending the 21 outcome of this hearing. You are allowed to discuss this 22 matter with the attorneys who have asked you here today but you 23 are not to discuss this matter with anyone else until you're 24 released from this rule. 25 Does everyone understand? 15
1 All right, i~ you-all want to go back to the 2 prospective places you were waiting, and I appreciate your 3 patience. I do·not know how quickly all this will go today so 4 I'll apologize right now if the wait is long, but we are going 5 to try to make sure that we cover all these matters and do it 6 in a just and write manner. So if you get stuck in one of 7 those rooms, I apologize. If you need to get out and walk 8 around just make sure someone knows where you are. 9 Thank you so mUCh. 10 (More prospective witnesses enter courtroom.)
G~ntlemen, r'>, 11 THE COURT: come up here, please. i ..1 I I [1 12 Just state what your name is so we'll have it on the record, f.; !.: 13 sir? (John Vasquez; Rick Bafrett.) 14 (Prospective witnesses sworn and placed under
15 the rule.)
16 THE COURT: Gentlemen, the rule has been invoked ! : 17 and that means that you-all are going to have to remain outside 18 the courtroom until you're called in as witnesses. You're not 19 allowed to discuss your testimony with each other or with 20 anybody but the attorneys who have asked you to be here while 21 this case a pending today. Is that clear? 22 (Yes.) 23 THE COURT: All right, thank you very much. 24 Mr. Moon, are you ready to ask Ms. Tanner any 25 questions that you might have, sir? 16 .
1 MR. MOON: Yes, thank you, Judge. 2 CROSS EXAMINATION 3 QUESTIONS BY MR. MOON:
4 Q. Ms. Tanner, did you ever asked Mr. Penick, Charles 5 Penick, about any exculpatory information based upon the 6 defenses' request for such information? 7 A. Charles Penick has told me -~ I specifically Charles
" .;
14 Q. And that was prior to trial; is that correct? ,!~]I I 15 A. The particular time that I recall was ~uring jury
.1 16 selection. He came to me and told me about a woman who had i 17 come up to him and mentioned that she had some information and 18 that we needed to get on top of it and we sent our investigator 19 out and took a statement from her, which is in file, and it was 20 provided in discovery. That's the incident that I recall 21 specifically. 22 There were other times we were talking about 23 what was out there', and we woul d di scuss it and deci de how to 24 go about finding out what it was and getting reports or 25 whatever, and what it was. 17
1 a. Did Mr. Penick at any time mention to you anything 2 about Martha Barnett?
3 A. No. 4 a. And did he ever mention to you·any information to you 5 about Mrs. Blackwell?
6 A. No. 7 a." Now, Ms. Tanner, you were aware that there was a 8 motion for exculpatory evidence by the defense? 9 A. Absolutely. , 10 a. And that motinri was granted? ,- ; r·--l 11 A. Absolutely. ! i :,. j • 12 MR. MOON: I have nothing further. 13 THE COURT: All right, any argument in regards 14 to the motion? Mr. Moon? 15 MR. MOON: Yes, Judge. Just a couple of quick
.16 points, first of all that this information is material to the 17 claim itself. Because it's a Brady claim the absence of 18 presence of knowledge on the part of the prosecution team is
"j, 19 absolutely relevant to the case, just because of the unique 20 nature of the claim. In story claims there might be cases 21 where a lawyer might not have information about the claim, but 22 not having information is materially relevant to this Brady 23 claim.
24 And so just by the dense of the testimony, and i • J 25 in fact by dense of the necessity to put this testimony on the 18
1 record that Ms. Tanner had no information about this claim, in 2 fact, goes to the heart of the claimi which-is dfd the 3 prosecution know of this evidence. 4 Secondly, it's clear that Ms. Tanner has been a 5 witness in this case as she testified that she testified at the_ 6 previous hearing, and she was deposed in Federal Court. And 7 whether that previous hearing has bearing on this hea~ing 8 doesn't matter in the whole of the case, she is a witness in 9 the case. I don't believe you can parse the case out by 10 claims. It would be like in a civil case having three causes 11 of action and having a lawyer saying I am a material witness to 12 one cause of action but I'm not on the other so I'm free to r~ i 13 litigate the other two causes of action. I• f L'J 14 We're here today on two Brady claims, but 15 they're just a part of the case. And Ms. Tanner has been, 16 clearly, a witness in the other parts of the case. 17 THE COURT: Response? 18 MS. TANNER: Yes, your Honor.
",-, 19 First of all, with regard to the previous i 20 evidentiary hearing. I think what is significant is that I was 21 called to testify by the defense. The defense called me as .~ ; 22 their first witness without a subpoena, and without any notice, . , ( 23 and then the defense did not complain in any way, shape or form 24 about my role in prosecuting that case. There was absolutely 25 no discussion about any qualms or concerns about any duel role - 19
1 and I have no doubt that Judge Towslee was perfectly capable of
2 del i neati ng between those two rol es. . 3 What all the case 1aw and rul e says is that 4 disqualification is ~ severe remedy, and in order to carry the .5 burden of disqualifying an opposing counsel'it is incumbent 6 upon the defense to prove actual prejudice to him or that the 7 opposing attorneys would testify adversely to their own client 8 to the State. 9 -I have testified and I now demonstrate to the 10 Court that I have no adverse testimony to the State and that 11 they cannot prove actual prejudice in any way. This is nothing 12 more but a dilatory. tactic to remove someone from the case. 13 If all it took to disqualify an oppQsing counsel 14 was to ask them did you know about something and if they didn't 15 know 'about it, then that's enough to get them off and turn them 16 into a witness, and then you could just about take them off any 17 time you wanted. And that's not what the rule says. i 1 ·-1 18 Secondly, and I should have mentioned this 19 earlier, I provided a letter to counsel on March 15th of 2006 20 pursuant to Rule 3.08(a)(5) of the Rules of Professional 21 Conduct, which is the provision that states that the lawyer 22 should not be excused if the lawyer has promptly notified 23 opposing counsel that the lawyer expected to testify in the 24 matter and disqualification of the lawyer would work a 25 substantial hardship on.the client. - 20
1 . And the case law has said that once a letter 2 such as that is provided then thatalle~iates any concern that 3 the lawyer may represent their client. We have provided that 4 letter to them again stating I don't have any knowledge about
\. 5 the claims that they've made. And for purposes of the record, 6 if I may introduce that. 7 -THE COURT: Would you like to have it marked? 8 MS. TANNER: Yes, I would.
9 THE COURT: All right. 10 MS. TANNER: The State would offer State's 11 Exhibit Number 1. 12 (State's Exhibit No.1 offered into evidence.) 13 MR. MOON: We received a copy of the letter, 14 Judge. 15 THE COURT: Do you have any objection?
i I . .1 16 MR. MOON: No objections. 17 THE COURT: It will be admitted. 18 (State's Exhibit No.1 admitted into evidence.)
19 MS. TANNER: Judge, it's the State's position 20 that the witness advocate rule is primarily concerned with 21 issues where you have an opposing counsel who wants to testify 22 in front on the jury. All the case law has said that a trial 23 court is more than capable of making that delineation as to 24 whether a lawyer is acting as a lawyer or as a witness. 25 Quite frankly, they can call me as a witness but 21
1 I don't have any evidence to give them, so therefore I'm not a 2 -necessary witness on their-behalf, I'm not a necessary witness 3 on the State's behalf, so as such I see no reason for 4 disqualification. 5 THE COURT: All right, having reviewed the 6 motion by defense counsel as well as the State's response it is 7 the Court's opinion at this time to deny that motion and she 8 will not be removed from this case. 9 All right, the next motion I have is a Motion
; : L -- 10 for Substitution of Counsel filed by Ms. Kase asking that she r ...... 11 be released from this hearing and allowing Judge Overstreet to I --. ~ I- I l. -~-1 12 come in as part of counsel that is assisting Mr. Moon. r- ) 13 Is there any objection from the State's 1 : 14 attorneys in regards to this motion? 15 MS. TANNER: No, your Honor.
16 THE COURT: It~s granted.
17 Ms. Case, you are released from your obligations 18 with that done.
19 MS. KASE: Thank you, Your Honor. 20 THE COURT: All right, I also have in the 21 Court's file a Motion to Limit the Issues to be Litigated in 22 This EVidentiary Hearing on a Subsequent Application for Writ i i . j 23 of Habeas Corpus .
24 Mr. Moon, have you received is a copy of that?
25 MR. MOON: Yes, I have, your Honor.
. J 22
1 THE COURT: All right. Do you have'any response 2 to that motion? 3 (Defense counsels disttissing issue:) , " : ~ , 4 THE COURT: Do you' need a moment? 5 MR. MOON: Yes, your Honor.
6 THE COURT: We're going to take a -- let's t~ke 7 about a five-minute recess and then y'all need to be able to 8 respond to that and then we'll go on from there. 9 (Recess.) 10 MR. MOON: Judge, I apologize, we can go 11 forward.
12 THE COURT: All right, so you've had an
C, .1 i : 13 opportunity to review the State's Motion to Limit the Issues to L,) 14 be Litigated in the EVidentiary Hearing on Second Subsequent r I t -; 15 Application for Writ of Habeas Corpus. Do you have any
',16 response as to that motion?
17 MR. MOON: Well, Judge, we understand that the 18 CCA sent this back solely limited to the two Brady claims that 19 were in the subsequent application. 'I 20 THE COURT: All righ~.
21 MR. MOON: And we agree that it is limited to 22 those two Brady claims, and we intend to put on all the 23 evidence we need to prove each prong of the Brady claim.
24 THE COURT: So, in other words, you agree with 25 their characterization of this hearing's parameter should be? - 23
1 MR. MOON: Well ,I guess I have· to honestly ·2 say, Judge, that I wasn't really clear on what the what they 3 believed the parameters here were.
4 THE COURT: I can tell. you that it appears to me 5 that they have tracked the order that I received from the·Court 6 of Criminal Appeals stating that that is exactly what I'm going 7 to do, so I'm going to tell you-all that it is my intention to
.: 8 follow the characterization in the State's motion; and, of . ; ;.-.,\ 9 course, at any time if you-all feel that perhaps the order from 10 Court of Criminal Appeals reaches further than that, I'll.be
C 11 happy to entertain information you wish to share with me in i·· '; r:i L·: 12 regards to that.
C--:'"--~ Ii 1'.1 13 MS. SMALLEY: Your Honor, may I respond? l ) 14 THE COURT: Yes, ma'am, but before you do that, 15 I have to you had a motion -- you're not a licensed Texas 16 attorney; correct? 17 MS. SMALLEY: That's correct. 18 THE COURT: And you're licensed in what state is
. j 19 it, rna' am . 20 MS. SMALLEY: Minnesota.
21 THE COURT: Okay. And you're asking that I 22 allow you to appear in order to aid in the defense of Mr. Reed 23 in his ex parte motion here today? 24 MS. SMALLEY: That's correct, yes, ma'am. ) 25 THE COURT: Has the State had an opportunity to 24
1 review her motion? 2 MS. TANNER: I have not received a copy of it 3 but I saw it in the·Court's file yesterday and We have no 4 objection. 5 THE COURT: All right, I'm going to grant that. i , \ 6 And just formality-wise, yes, I needed to do that first. 7 Now, yes, ma'am, you may proceed. 8 MS. SMALLEY:· Thank you, your Honor. 9 I would like to mention that if the Court is 10 going to stick with the characterization of the two Brady
11 claims, there is an element of proof that goes to prejudice, 12 and that proof relative to prejudice stems from the suppression Ci I' 13 of those affidavits.. So just so we don't have a very dogmatic Ll 14 understanding of what that second characterization is. 15 Certainly, part of our p~oof is going to go to what our 16 obligation is to prove up the Brady claim. That element· of 17 prejudice is -- that results from the suppression goes broader 18 than just the basic affidavits. And we anticipate the Court, 19 and the prosecution, does not interpret these characterizations 20 as to somehow limit our ability to prove up the Brady claim. 21 THE COURT: Okay, I'm -- I think I understand 22 what you're saying, but basically let me tell you what the 23 Court is going to do; I have been given a very specific job 24 today, and my orders come directly from Court of Criminal 25 Appeals. The requirement that I'm going to be following today 25
1 are such: They have reviewed the application and they did
2 remand it to me in· regard to the applic~nt's Brady·allegations 3 regarding.the Barnett and Keng affidavits and the items 4 submitted under seal that you all submitted. That is the
5 evidence I will be entertaining today~ and that is my orders 6 from the Court of Appeals and that is read directly from their I !".. , 7 order. All right? So doy'all understand that?
8 The order that I got from the Court is the one 9 I'm going to follow. And how the evidence -- since I'm not 10 quite sure what your items under seal are, I guess we're just 11 going to have to -- other than everything I've read under seal, i . ! I /'-.: 12 I believe it is set forth and we're goi~g to determine whether 13 or not these affidavits have a bearing on your Brady claims and 14 we· will progress from there.
15 I think we're all saying the same thing .. 16 Basically, you-all have some information you need to share with 17 me in order for me to do my job, to gather this information and .I 18 to send it back to the Court of Criminal Appeals. That's what 19 I'm going to do. 20 MS. SMALLEY: And, your Honor, we have discussed 21 in our papers what evidence was suppressed. 22 THE COURT: Yes. 23 MS. SMALLEY: And as a result there was 24 prejudice to the defense. That prejudice does require some 25 broader proof. 26
1 . THE COURT: I understand what you're saying, and 2 we'll go ·from there. 3 All right, so I granted your motion to allow you 4 to come in and practice about before this Court. 5 Ms. Tanner, do you have any response to what 6 they're saying, or any other clarification in regards to the 7 motion that you filed? 8 MS. TANNER: No, Judge, I think the parameters 9 the Court has indicated precisely the parameters I was asking 10 for. 11 THE COURT:, All right, and please understand now. '1 1 , /i 12 that I'm going to ask is there any other matter that I need to 13 take care of as far as preliminary matters before we proceed to 14 the job that the Court of Criminal Appeals has sent us here to
I. ; 15 do today? 16 MR. MOON: No, Your Honor. 17 THE COURT: Anything from the State? 18 MS. TANNER: Judge, I have two house-cleaning 19 matters. First of all, I have a little bit of discovery to 20 provide to counsel and I wanted to do that on the record. I've 21 just tendered that. It's five taped statements and 22 22 affidavits. 23 Secondly, I don't know if this is the 24 appropriate time or not to ask the Court to take judicial 25 notice of the previous proceedings that have occurred in this
, ( , I ! 27 -
1 case, that's probably going to. be relevant to the issues of
2 materialityand·prejudice~· 3 THE COURT: Okay, that would be so noted.
4 MS. TANNER: We would ask the Court at this time 5 to take judicial notice of the following: The file transcript 6 . in The State of Texas versus Rodney Reed, cause number 8701; . 7 the evidence admitted in the State of Texas versus Rodney Reed 8in cause number 7801; the application for writ of hab~as corpus 9 in State Court in Ex Parte Rodney Reed, 8701-A, and the State's 10 answer to same; the supplemental application for rite of habeas
11 corpus that was filed in Ex Parte Rodney Reed i and the State'·s ! L-.i 12 answer to the same; the transcript of the evidentiary hearing 13 from March 15th of 2001 in Ex Parte Rodney Reed; the exhibits 14 introduced in that hearing in Ex Parte Rodney Reed on 15 March 15th of 2001; the trial court's findiMgs of facts and 16 conclusions of law that have been issued in Ex Parte Rodney 17 Reed. 18 We would ask the Court to take judicial notice 19 of those things. 20 THE COURT: All right, so noted. 21 Mr. Overstreet, do you have a comment? 22 MR. OVERSTREET: Well, that's very broad, and 23 without the 'State telling us the relevance of why they want the 24 Court to take jUdicial notice, then I would just have a general 25 objection that it's not relevant. - 28 1 THE COURT: Well, let me get you some 2 clarification. Ms. Tanner, what· is your purposes?' . 3 MS. 'TANNER: My purpose is that there will be
4 point~ in time with regard to the materiality and prejudice 5 where things that came in before the jury may become relevant, 6 and I'm asking the Court to simply take judicial notice of .- ., 7 previo~s proceedings in this case, and I do that solely because r .: 8 of the issue of the Court not being the trial jUdge, and I'm r \.-1 9 asking solely for that purpose. 10 MR. OVERSTREET: Well, .what I hear her saying is
e~sier ~. - I 11 that it would be to do it that way. But I don't want to i,I! Li 12 be stuck with everything that happened before and have a record 13 before the appellate court that I've not objected to it, in 14 terms of the written proceedings. The statement of facts from 15 the trial proceedings, I probably don't have any problems with
(.>"; 16 the Court taking notice of that. But the responses to the writ :. - ~ 17 of habeas corpus, and arguments at those hearing, I object to 18 as not relevant and would object to the Court taking judicial 19 notice of them. 20 MS. TANNER: Judge, if I may respond with regard 21 to one aspect of this. The Court of Criminal Appeals have 22 adopted the findings of fact and conclusions of law that were 23 signed by this previous trial Court, and we think it's 24 appropriate because of that this Court may take judicial notice 25 of those. 29
1 THE COURT: All righf, so noted and will be so 2 ordered. And please understand that my specific job is to do 3 what the Court of Criminal Appeals has sent me today. I am not 4 going to be ruling on the final outcome of this case or the
, ,i 5 final outcome of this write, I am a fact finding arm of the 6 Court because they do not receive evidence and therefore it 7 comes back to the trial Court to take care of that for them. 8 Thank you. 9 Anything else? 10 MR. OVERSTREET: Note our objection. 11 THE COURT: It is so noted. Is there anything 12 else? 13 MS. TANNER: Nothing from the State. 14 THE COURT: All right, then let me formally call 15 this then, I've already had announcements as far as parties.
(', 16 This is in cause number 8701-A, Ex Parte Rodney Reed. We're /'.:'>!r . ! r: : 17 here today on March 23rd of the year 2006, due to the request 18 and order of the Court of Criminal Appeals that this trial 19 Court receive evidence in regards to the application of the :1 20 writ of habeas corpus that they had reviewed. We're going to 21 consider evidence, as I stated earlier, and I'm reading
1 22 specifically from the order from the Court: In regards to the .I _I 23 Brady allegations regarding the Barnett and Keng affidavits and I J 24 the items submitted under seal that satisfy the requirements 25 according to the Court under Article 11.71 Section 5.
,_J 30
1 .Accordingly, they_are asking me to take a look 2 at these claims, to receive live testimonial eVidence'andat
3 the conclusion of this hearing I shal~ make findings of fact 4 and conclusions of law relevant and appropriate to the 5 disposition of these claims, and a transcript including all 6 documentary-evidence and the transcription of the court
7 reporter's notes from all he~rings, along with my trial Court's 8 findings of fact and conclusion of law shall be returned to the 9 Court. Do y'all understand that? 10 Also, at the conclusion of this hearing please 11 do not that the Court will ask that both sides will send to the 12 Court proposed findings of fact and conclusions of law for me ,-, ~ . i 13 to consider. •• 14 Now having said that, what says the defense in 15 this matter? Are you ready to go forward?
16 MR. OVERSTREET: The defense is ready to go 17 forward and request at least an opportunity to make some form 18 of opening statement to the Court.
19 THE COURT: Okay, thank you. The State? 20 MS. TANNER: The State's ready, Your Honor. 21 THE COURT: I'll be happy to entertain that 22 statement at this time. 23 MR. OVERSTREET: For the record my name is 24 Morris Overstreet and I represent the defendant in this case, 25 or the applicant, Mr. Rodney Reed.
I \ I• i . i : 31 I•
1 What the defense expects the evidence to show is 2 that the primary attorney appoint to represent the defendant·in 3 the case in chief was appointed on or about October 22,1997, 4 and that a second attorney was appointed on January 29, 1998. 5 That's less than six months that this case went to trial, from 6 the date of appointment. 7 We expect the evidence to show that one of the 8 motions filed by the defense was a motion for exculpatory and
~ . , :
~,- " ..; 9 mitigating evidence. That the elected prosecutor and the
I . i . i: _;~ 10 appointed prosecutor were aware that that motion had been filed i' .' 11 and that t~e Court had ordered exculpatory or any mitigating 12 evidence turned-over to the defense prior to trial. '>ir·'" 13 The Court's order was a continuing order. Not [ I ., ) 14 only the information that they had at the time the motion was
15 filed and the hearing was had and the JUdg~ ordered it, but any 16 i nformati on that may have come to the. prosecutors even that 17 there was a requirement that they comply with that motion. 18 We expect the evidence to show that the elected 19 prosecutor for Bastrop County, Charles Penick, received ; ; ~ .l 20 information from a credible source, or former colleague, Mr. 21 Steven Keng, who is a former elected county attorney in Lee 22 County, that there was a witness who could identify and place 23 the victim and her then boyfriend, Mr. Fennell, at a place
. : 24 close to Bastrop shortly before her death. That he made that 25 information aware to the person who is in charge of the 32 _
1. 1 prosecution and that it was exculpatory in nature, knowing full f-; 2 well that the boyfriend Fennell had been excluded because of an \ - 3 unlikely logistics that he could have come from Giddings to : r. , 4- Bastrop and made it back to· Giddings. A crucial piece of fi , ' ! 5 exculpatory evidence that the defense was never made aware of l 6 that witness or that information. 7 We expect the evidence to further show how the 8 State's failure to provide that information but to basically 9 withhold that information affected this entire process in terms
I; l.i 10 of the strate~y, the investigation and the outcome of this 11 lawsuit. That's what we expect the evidence to show in this 12 case. And that once that information was withheld from the 13 defense team they embarked on a strategy' that led to the 14 conviction of this defendant. 15 We also expect that that evidence not being 16 provided to other law enforcement agencies led to the exclusion 17 of who we believe is the person who committed this offense. 18 That's what we expect the evidence to show in this case.
19 THE COURT: Okay, thank you, sir. 20 State? 21 MS. TANNER: Judge,· if I may, very briefly. 22 I would simply like to state that at this 23 hearing it's incumbent upon them, in order for their to be 24 relief from another court, to prove that the evidence was 25 withheld and that it was material. And we believe that when 33
1 ,the Court hears all of the evidence before it that they will 2 fail on both counts. ,They will not be able to ,prove it because [ .-'. i.'. 3 it was not withheld, and it was not in the possession of the
[' .'1.'-r t j 4 State. Therefore the'State could not have withheld it because
·.·'··).' 'I 5 the State didn't have it. . i r."o,j 6 Secondly, if you look at the evidence factually 1'1 : I ( J 7 and make reasonable deductions therefrom it would be clear that
(:'1 8 the evidence would not have made a difference, that it was not i " 9 material, that it is not credible, and that it is highly Cl l.,i I 10 suspect. I think that's what the evidence will prove. f'] 11 Thank you. L 12 THE COURT: All right, having said that, shall [] 13 we get to the evidence, ladies and gentlemen. Are you ready to 14 call your first witness? ['1 tJ 15 MR. MOON: At this time we call Calvin Garvie. 16 THE COURT: You are the first witness of the 17 day, sir, and I· have turned on the microphone.' If you will 18 speak into it so everyone can hear you. 19 CALVIN GARVIE, 20 called as a witness and having first been duly sworn testified 21 as foll ows: 22 DIRECT EXAMINATION 23 QUESTIONS BY MR. OVERSTREET: 24 Q. For the record would you please state your name? 25 A. Calvin Garvie. 34
Q. . lim glad yqu speak up loud and clear, I don't hear as well as I used to and I appreciate that,·and: I'm sure the ·court reporter does to. Mr. Garvie, my name is Morris Overstreet and I'm representing -- one of the lawyers representing the defendant, 6 or the applicant, in this case, Mr. Rodney Reed. Were you 7 appointed by this court or a court to represent Rodney Reed in 8 cause number 8701 in the 21st Judicial District of Bastrop 9 County? 10 A. Yes, sir.
11 Q.' And was that for the offense of capital murder? 12 A. Yes, sir. 13 Q. Now at some point in time was a second lawyer 14 appointed to assist in the case? 15 A. Yes, sir, Lydia Clay-Jackson. t .t 16 Q. Now do you recall that you were appointed about ,j .1 17 October 22nd of 1997? 18 A. I don't remember the time that I was appointed, when 19 we began the appointment, exactly, but that sounds about right. 20 Q. Now did you file motions in preparation for trying
I ! , : 21 this case? 22 A. Both attorneys did. 23 Q. Do you recall filing a motion for discovery of 24 exculpatory and mitigating evidence?
25 A. Yes, sir, I believe I did file that. 35
1· Q. " And do you know whether or not that motion was 2 granted-by the Court? 1, j 3 A. I believe the Court did grant that motion. 4 Q. Do you have any reason to believe that it was not i':;i i 5 granted? j 6 A. No. 7 Q. Do you recall receiving any exculpatory or mitigating 8 evidence from the State prior to trial? 9 A. I don't recaJl, particularly. I'm certain that they
,".") I. I i i 10 would have given me something. I don't recall particularly - LA 11 particularly if you say mitigating, yes,. they may have given me 12 something mitigating. But I can't say that they never gave me 13 anything, that wouldn't" not be accurate.
14 Q. Now at some point in time after this case was tried, f.11.-~ 15 were you made aware by different attorneys who were 16 representing Rodney Reed of a witness whose name was Martha 17 Barnett as well as witness whose name is Steven Keng, a former 18 Lee County attorney?
19 A. No. Let me rephrase that. Those particular names, I )"1 :~_J 20 did not know of until earlier this week. 21 Q. Were you made aware of an affidavit given by Martha
1 22 Barnett in which she disclosed that she saw the victim in this I .i .. J 23 case, along with a man she identified as Fennell, at a location 24 in Paige, which is along the route from Giddings to Bastrop on
:1 25 the morning of the victim's demise? J 36
1 A. Absolutely not.
,I Ii 2 Q. Now when you say absolutely not. Are you saying that 3 the prosecution never revealed the existence of that document?
4 A. They never revealed the existence of that document, 5 or of any of those people, actually.
6 Q. Did they reveal to you that there was a witness who - 7 saw the victim and Fennell at a location on the morning,of the 8 victim's demise? 9 A. No. 10 Q. If they had given you that information would you have 11 remembered it? 12 A. Certainly. 13 Q. Would that have affected your trial strategy in this' 14 case? 15 A. It would have made a big difference in our case. Mr. 16 Fennell was one of the main suspects in this case, originally 17 by the State and also by the defense. And I believe his 18 statement had been that he had been at home all of that 19 morning~ and I believe he said he had received a call later in 'I r. ) 20 the morning that woke him up, or something to that affect, and 21 so he had been at, home when Ms. Stites had left that morning.
22 Q. Would you consider that bit of information at least 23 impeachable information of his testimony at trial, that he was ,24 at home between the hours of 3 and 5 o'clock in the morning 25 asleep when the victim left Giddings? 37
1 A. . I thi nk it woul d have been very criti cal to the 2 defenses' case. From a defense prospective· the whole case is 3 based on reasonable doubt. The State actually has to prove 4· guilt or innocence. The defense has to prove reasonable d6ubt 5 that the man was guilty, and obviously if one of the lead 6 suspects in the case is caught in a lie that he has no ·reason 7 to lie. You know, this is his fiance, he would certainly have 8 known on the morning of her death if he had seen her or not.
:..:"." 9 And so that certainly, in my opinion, would be very critical to
··i 10 the case. 11 Q. '.:), During your investigation in preparing fortri,al, did 12 you become aware that Fennell was. excluded as a potential
'. .1 :I : ! 13 suspect in this case? '_. ; 14 A. I believe he had been excluded on the DNA. And if 15 that means the same thing, the answer to that question is yes. .16 Q. Let me ask it a different way. Were you aware if he 17 was excluded because a Texas Ranger or any other investigating 18 officer coming to believe that it was almost impossible for him 19 to leave Giddings, Texas, go to the scene where the body was 20 found and to make it back to Giddi·ngs, Texas, to receive a 21 phone call from the victim's mother? 22 A. I think there was some suggestion of that at some 23 point from either law enforcement or the State, yes. 24 Q. Some suggestion of what? 25 A. That the distance was too great for him to have j i .. j
! .,, 38
1 traveled, but I think it also went in with the fact·that he 2 said he was at home asleep. 3 Q. Now would 4 A. And I might add that he' was also an officer. 5 Q. Is it your beli'ef that opinions may have changed if
6 someone had placed him near Paige, Texas, between the hours of 7 4:30 and 5:30 a.m.? 8 MS. DETTMER: I'm just going to object on 9 speculation. First of all, we don't know whose opinion he's 10 talking about. Is he talking about law enforcement opinions 11 changing or jury's opinions changing, that's speculation on his 12 part as to whether or not that would have changed whether or
·1 13 not they had that inform~tion. ~ -J 14 MR. OVERSTREET: I'll rephrase the question. . 1 : J J : , i 15 THE COURT: Please do. !-OJ 16 Q. (By Mr ..Overstreet) Did you, yourself, as part of 1\ 17 the defense team, investigate whether or not it was possible 18 for Fennell to go from Giddings, Texas to near Bastrop and back 19 to Giddings, Texas based upon the time the truck was spotted 20 and when he said the victim left home? 21 A. Yes. There was a discussion about that, several '22 di scussions, and al so the investigator was i nvol ved in that 23 discussion.
24 Q. And what was your conclusion? 25 A. I did not -- you would have to assume that if he was
. i 39
teiling the truth, first of all, and we did not believe that he
was telling the truth~ a.. Assuming that you believe he was telling the truth, in terms of the time line, did you-all conclude it was possible or impossible for him to leave his residence, go to the scene where the body was found and return to the residence in Giddings, Texas? A. We believed it was possible because the only person 9 who could document the time that he was at home was himself. 10 Nobody else was there wi"th him. So a~suming that he was at 11 home, you would have to assume that he was telling the ,truth. 12 And, as I said, we had some serious questions about his 13 credibility. 14 a. If you had been provided information of a potential 15 witness, Martha Barnett, whose testimony or affidavit would 16 have placed him in Paige, Texas, would that have made a 17 difference in your calculations?
" ", jl " ".J 18 A. Certainly. 19 a. Okay. And what would that difference have been, 20 generally? 21 A. It would have made a difference because you would 22 have a person who was lying about being at "home, first of all, 23 and if they're lying about that, they could have been anywhere. 24 I mean, for all we know they could have still been in Paige 25 instead of that home and the distance would not have been as 40
1 great as previously thought. 2 Q. And so in your opinion· would that make· the time· lines 3 more believable?
4 A. It would have made the time lines more believable,
, ~ i 5 and the fact that she had seen both of them together would have
6 made a huge difference, because she would have also been , ;_. i 7 putting the victim there around that time. 8 Q. What difference would it· have made in your trial 9 strategy? 10 A. Again, Mr. Fennell's credibility was at issue. It
, , 11 was not unlike the -- many of the.other suspects. He would not i i 12 have had the motive of rape or anything like that, if he was
; i 13 actually just killing her. So the fact that he was excluded by
14 DNA would not have made a difference. So it would have made a (0 : i i II 15 very big difference because he was a suspect. Essentially, his 16 testimony was that Ms. Stites left the house, he stayed there, . i 17 and he never left. If that changes to where he's lying. about - -I it 18 them being at home together, then certainly what else is he
19 lying about? And why would he lie about something that he had 20 no reason to lie about?
21 Q. But how would it have changed your strategy if you 22 were able to substantiate a witness seeing him with the victim, 23 him being Fennell, in Paige, Texas? Are you familiar with this·
24 route? 25 A. Uhh -- 41 -
1 Q. Have you been this route? 2 A. Somewhat. It's beensome:time but somewhat. ·1 know 3 exactly where Giddings is and I know where we are now, but it's 4 been a while. But obviously, if the distance and the time 5 changes 6 Q. That's not my question. My question is, are you 7 familiar with a route that takes you from Giddings, by highway 8 21, and then highway 21 to Bastrop? 9 A. 1.have traveled that road before, yes.
10 Q.. And would you say that Paige is substantially closer
11 to Bastrop than Giddings is to Bastrop? 12 A. Yes, I believe it's closer.
13 Q. And if you had been made aware that a witness saw
14 Fennell and the victim in Paige, would that have made a ,--:,. , , ·1 . , , \ ;- j 15 significant difference in how you went about developing your 16 strategy for your defense in this case? 17 A. Yes, it would. There were several things that would 18 ·have been called into questions under those circumstances.
19 Q. Now other than his credibility, what are those 20 things? 21 A. Well, I think you would have to go back and take 22 another look at, for example, the time of death. You would 23 have to take another look at other aspects related to Mr. 24 Fennell.
25 Q. Okay, is that what you would have done? I want to . _42 -
1 know what you would have done differently? 2 A. Certai n1 y, I wou1 d .have pursued and looked at every 3 angle. If that information is dropped in your lap, or 4 whatever. it's incumbent on you to pursue that angle.
I 5 Particularly since., as I said, .before we ~ade this individual 6 suspect the State considered him a suspect at one time.
7 Q. Are were you aware the State eliminated him as a 8 suspect?
9 A. Yes, si r,· I was aware of that, and my understandi ng 10 was because of the DNA and the time frame. 11 Q. Did you eliminate him as a suspect? 12 A. No. 13 Q. All right.· What did you do to establish him as a 14 suspect? 15 A. We ran down information -- I believe we actually sent 16 an investigator to Giddings to check on some records regarding 17 Mr. Fennell; also, when he was cross-examined of course -- and 18 I didn't actually do the cross-examination, my co-counsel, 19 Lydia C1ay-J.ackson did the cross-examination. But we certainly 20 took steps to establish things. The problem was that the only 21 person at that time who could establish where he was, was him. 22 But if somebody else, an independent witness who had nothing to 23 do with the case says I saw this guy at another time outside 24 the house, and not only outside the house but with the young 25 lady who was killed in this case, it's a huge difference. '43
1 Q. Let's assume that in response to your motion for 2 exculpatory evidence, the prosecution··revealedto you that 3 there was a witness who may have seen Fennell and. the victim in 4 Paige, Texas. What would you have d0rle if they just gave you· .
, , " 5 that information?
~ " ..~ 6 A. We would have immediately followed up on that and we 7 would have talked to witness. We would have ran down anything 8 else that corroborated anything like that. For example, say if 9 there was somebody else at the store, of if the store was open, 10 or anything like that then we would have corroborated that.
c: -~ 11 But most importantly, it would have given us the poor to i1..i/ I,:,: 12 impeach his testimony that he was at home the whole time. And 13 this is his fiance, it was the day of her death, there would be 14 no reason for him not to remember that. , ; 1 15 Q. Have you since seen the affidavit given by Martha 16 Barnett? 17 A. Yes. 18 Q. What is your professional opinion, your legal 19 opinion, as to whether or not a failure to have that 20 information before trial, either it was harmful of had no 21 affect on this case? 22 MS. DETTMER: Your Honor, I'm going to object to 23 that. That's a legal question to be decided by this Court. He 24 can obviously testify as to how it would have affected his 25 strategy, what he would have done differently, but to testify / 44
1 ultimately to the issue that is before this Court I think is 2 improper in this case. I. think that's for·this(Courtto decide 3 not for this w;-tness to determine how it would have affected 4 the jury. 5 MR. OVERSTREET: I think the record reflects 6 that this witness has been a·lawyer for more than 20 years.
{, .., [: : 7 You're right, -.: ! it is a legal question, but he's a lawyer and I 8 think there is a presumption he has some expert and experts are
9 entitled to give their opinion under the rules of evidence. 10 And all I'm asking him is in his opinion was it harmful to his 11 case. C".; i i 1." __ 1 12 MS. DETTMER: And, your Honor, without· 13 discrediting Mr. Garvie's experience, which I'm sure is 14 tremendous, but there is actually case law on this very issue 15 of having witnesses testify to the ultimate conclusion and 16 there is suggestion from the courts that they disfavor this 17 kind of evidence. And that is ultimately up to the Court to 18 decide that -- and not only that, I mean, he is a lawyer and he
• 1 ; 19 has done many things but he has not been proffered as an expert ," I I oJ L ! 20 in this particular field.
21 THE COURT: All right, your objection is 22 sustained.
23 Q. (By Mr. Overstreet) Without the affidavit, or 24 without notice of the information, were you able to do all that 25 you could do for Rodney Reed in 'defending him? 45
1 A. No, we were lacking a critical piece of evidence, 2 that the prosecution had and didn't turnover to· us. 3 MR. OVERSTREET: I.pass the witness.
4 MS. DETTMER: May I have one moment, Your Honor? 5 THE COURT: Yes, you may. 6 CROSS-EXAMINATION 7 QUESTIONS BY MS. DETTMER:
8 Q. Mr. Garvie, my name is Tina Dettmer· and I'm an 9 attorney with the Attorney General's Office. I wanted to ask 10 you some questions about your testimony here today. 11 You said that this information was criti6al and
; .-! 12 one of ·the reasons it was critical was because it was important 13 to y6ur ability to impeach the testimony and the credibility of 14 Jimmy Fennell; ii that correct? 15 A. Yes. That was one of the phases,. yes .
16 Q. Now your ability to impeach Jimmy Fennell's 17 credibility with testimony from another witness would 18 necessarily depend on the credibility of that witness himself, 19 would it not?
20 A. Or how the jury viewed that particular witness. 21 Q. Exactly. So if your witness if the witness's 22 testimony was incredible or impossible to believe that would be 23 'detrimental to your ability to effectively cross-examine Jimmy 24 Fennell with this information; correct?
25 A. As to impeachment, yes; as to reasonable doubt, no. .46
1 Q... Okay. Now you testified that you have reviewed the 2 affidavit·of Martha Barnett? 3 A. Yes. 4 Q. And that she was able to place Jimmy Fennell in 5 Paige, Texas with Stacey Stites; is that correct? 6 A. That's correct. 7 Q. Okay. Would your ability to us this information to 8 assist Mr. Reed depend.upon the viability of her testimony?
OJ 9 A. Well, certainly, but of course the jury is fre~ to 10 believe or disbelieve whomever they want, on any witness. 11 Q. Okay. And would you not have had to investigate her 12 testimony to see whether it was in fact even possible for what f ; l ; 13 she said she saw to be seen?
14 A. Well, certainly, that would be one of the phases that ; 1 -. ! t '. f5 would come up, but if the witness sits on the stand and tells
.16 the jury that then it woul d be up to the j ury to deci de if 17 she's telling the truth or not. 18 Q. Okay. 19 A. But the jury would also look at their motives and why - j 20 they're here, and do they have anything to gain and all tha~ 21 kind of stuff. 22 Q. Exactly. 23 A. And if you had a witness that didn't have anything to
, 24 gain that, I think, would playa role in how the jury looked at 25 it.
,i 47
1 Q. Okay, so by that token, if the jury were to see from 2 the testimony that the witness Martha Barnett had something to 3 gain or had lied, that would affect her credibility in front of 4 the jury, correct? 5 A. I think it would affect her credibility. 6 MS. DETTMER: I'll pass the witness. 7 REDIRECT EXAMINATION 8 QUESTIONS BY MR. OVERSTREET:
9 Q. Well, just to explore this area of cross-examination.
I 10 Are you telling this Court the only thing you would have done L .' 11 with this information is to impeach Jimmy Fennell? 12 A. No. Again, the questions were related to 13 impeachment, but that and other affidavits. I mean, you 14 know -- again, the goal is reasonable doubt. And if a witness i-I I i (, 15 sits on the stand and says "this guy", in so many words you 16 would have to say one or the other of them were lying, and he's 17 a suspect. 18 Q. Give us an idea of what you would have done other 19 than impeachment? 20 A. Well, there were 21 Q. How would you have focused on him as a suspect? 22 MS. DETTMER: Your Honor, I object, this has
23 been asked and answered on direct examination.
24 THE COURT: I believe that's correct, let's move j - 25 on. 48
1 MR. OVERSTREET: I'm sorry, what was her 2 objection again? 3 THE COURT: It's been asked and answered. 4 Q. (By Mr. Overstreet) Did you have any reason to ask 5 the experts who assisted you to focus on the possibility that 6 someone else could have committed the crime? 7 A. ' Well, certainly we focused on other possibilities, 8 but Mr. Fennell would have become much more compelling given 9 what we now know. 10 Q. How would you focus on him with your experts?
11 , A. The experts would have tracked -- looked again at the· 1:.1'" t:---! l·,-.l 12 time of death. I believe, for example, the autopsy was done j . I 13 like a day later, or something like that. We had been given rI J 14 information, I believe at one time, that the body hadn't been {:. : i ! I, ,; \ .: 15 moved but I believe it actually had been. But the point was
., I: 16 that Mr. Fennell's credibility was central as to whether or not 1 1 17 he should even be a suspect. And if you present it to a jury 18 that this guy is flat out lying and he has no reason to lie, 19 that changes a lot of things. 20 Q. Would you agree with the State's conte~tion that they 21 get to decide the credibility of the evidence before they turn 22 it over to you? 23 MS. DETTMER: Your Honor, I'm going to object, I 24 don't think that we characterized that or we made that 25 statement in our cross-examination. I believe that what I 49
1 asked was would hi~ assessment of his credibility factor in, 2 not the State's assessment of his credibility. 3 THE COURT: . I'm going to overrule that. 4 MR. OVERSTREET: Well, I guess the record 5 reflects ~hat was said.
6 MS. DETTMER: I would ask that he reask the 7 'question.
8 THE COURT: That would be most helpful. 9 a. (By Mr. Overstreet) Is it your understanding that 10 there has to be a determination of the credibility from the 11 evidence before a decision is made whether to comply with a 12 court order? 13 A. No, if it's exculpatory evidence there's no 14 discretion, the State absolutely has a duty to turn it over, 15 without exception. l': I 16 a. Did you ever ask the prosecutors in charge of. this I 17 case whether or not they had any exculpatory evidence prior to 18 trial? 19 A. If you're asking me do I remember specifics incidents 20 where we sat down and did that, no. But I'm sure we would have 21 asked that. I'm sure that we would have had discussions about 22 that, because of the critical nature. I mean, this is capital 23 murder case, a guy's life is on stake. Any piece of evidence 24 that is favorable to him either in punishment or guilt or 25 innocence absolutely has to be turned over. The prosecutor has 50·
1 a duty to do that. 2 Q. Do·you recall about howmuch·time elapsed between the 3 day you were appointed to represent the defendant and the day 4 -you went to trial?
'., . . , 5 A. If you say it was in October of '97, I believe the 6 trial started somewhere around March of the next. year. And I 7 think the verdict came in, in May. Actual around the time of . 8 my birthday, so I certainly wouldn't forget that. So that 9 period of time, which was basically a few months. 10 Q. Did you have an investigator working with you? i'l' 11 A. Yes. L 12 Q. And did the same investigator work with you from the rl L.I ; 13 day you were appointed or shortly thereafter until you went to 14 trial? i ) I !,I -: :.i 15 A. One of them did.' I believe we got a second t·:; :---! 16 appoint -- I believe essentially around the time our ~. t 17 continuance was denied we were allowed to have a second 18 investigator for trial.
19 Q. And what was the purpose of the continuance? ; ! U 20 A. We felt like we needed more time to prepare for the 21 case. I suppose at one point we thought it would be moved, it - , 22 wasn't moved. We had to relocate to come here. i. i '. I 23 MS. DETTMER: Your Honor, we just object to the 24 relevance of this. I'm not sure where he's going.
25 THE COURT:· I understand. I'm goi ng to sustai n I I
.. _JI
,I
__.. J 51
1 the objection, but he's already answered it, but let's get to
2 the heart of the matter and stay' on track. Please ~tay·· 3 focused.
4 'Q. (By Mr. Overstreet) Since you were appointed the 5 second investigator, if this information had been turned over, 6 would you have then had the ability to determine the truth of
7 it, ask other questions and do other things to focus on Jimmy 8 Fennell as a suspect?
9 A. We would have been-- we would have aggressively 10 pursued that; and at the same time, of course, ·we were doing
11 DNA testing during trial. So, yes, we would have done that.
12 Q. So what would you have done with the expert -- what 13 would you have requested from the expert if you had received 14 that information? \- 1 : i '. I i j 15 MS. DETTMER: Your Honor, I believe this
I ,! 16 question has also been asked and answered. I .' 1 17 THE COURT: I don't think this specific this- one 18 has. I'll overrule it.
J 19 A. I'm sorry, was your question with the expert or I .J 20 investigator? I'm sorry, I didn't hear you. 21 Q. (By Mr. Overstreet) The experts who assisted you. 22 What would you have requested from them if you had been 23 provided the information that produced a different time 1i ne 24 for the homicide?
25 A.' They would have went to work immediately on that 52 .. - -
1 .issue, on that angl e. If there was somethi ng wrong wi th the 2 time line, if this ,particular witness ·places··them at a 3 different time, then it could have been very well that the , "l , : ~ 4 medical examiner was·wrong. And, you know, that plays a role:
5 Q. Would it have affected your cross-examination of the 6 State's witnesses who testified at trial, the medical examiner
7 as well as the witness Blake who was a criminologist, or
.".-\ 8 whatever her title is? .
9 A. It might have affected-all of those witnesses, any of 10 them that was married, so to speak, to that time line.
, . 11 Q. But would it have caused you to examine them in a !.,I! [ ',i .. ". 12 -different way? r-; , -, 13 A. In the sense that we would have went back and we i ) 14 would have had to go back an pull apart everything related to I· i I: ( 15 the scientific witnesses, because that would be major issue. 16 The time of death, particularly since a main witness perhaps 17 lied about where he was and whether or not he was at home. 18 And, of course, if we had had other affidavits that would have
, , 19 made a difference too. •I ;I .lj 20 Q. So is it safe to say you're saying that you would 21 have had the investigators, as well as the medical experts 22 appointed to assist you, do things differently because of Jimmy 23 Fennell being made a suspect, and a logical suspect based on 24 the time line? 25 A. Yes, because it could change the time frame. It 53
1 could certainly change .the time of death and the time frame. 2 a. Thank you. 3 ,"-, MR. OVERSTREET: No further questions. ; ; 4 RECROSS-EXAMINATION
t····. ;-. ': 5 QUESTIONS BY MS. DETTMER: ~. , 6 a. Mr. Garvie, there was no question, was there, that , ; ; 7 the victim in this case was scheduled to be at work at 3:30 8 a.m. that morning; is that correct?
9 A. I don't remember, specifically, but if you say that 10 I'll take your word for it.
[ i 11 Q. Well, don't take my word for it. If the record were !i l., 12 to reflect that would you disagree with that? f i I i 13 A. No .. But· scheduled to be at work and arriving at work t J 14 are two different things. (,·1 . , 15 a. Mr. Garvie, I'm nbt asking you what time she arrived,
(-- -j ~. -i, 16 I'm asking you that if the victim was scheduled to be at work 17 at 3:30 a.m. that morning, according to the record at trial? 18 A. Okay, finish that. What would that do? What are you 19 asking me? 20 Q. That's all I'm asking you? 21 A. If she was? 22 a. If she was scheduled according to the evidence at 23 trial was the victim scheduled to be at work at 3:30 a.m. that 24 morning? 25 A. I don't recall specifically. 54
- 1 MS. SMALLEY: I think he's answered that 2 question in that he doesn't have a specific recollection.· 3 THE COURT: Ma'am, I'm going to ask that you sit 4 down. The lawyer who is taking the witnesses will do the
-~ \ . ,.•1 5 objections, so if Mr. Overstreet wants to make an objection
6 :1'11 be happy to entertain one,' but the lawyer who takes the 7 witness will make the objections. 8 MR. OVERSTREET: Then I voice that same 9 objection. That the witness has testified'he does.not have a
i ! 10 recollection. t J r 11 THE COURT: I understand that, I get that; so I~j 12 let's move on. 13 Q. (By Ms. Dettmer) Would you also -- let me ask it 14 this way. ri 1'1 I, , 1"_' 15 There is also no question, Mr. Garvie, in this 16 case according to the record and evidence at trial that the 17 victim was found wearing her HEB uniform; is that 'correct?
18 A. I believe that's correct. Again, we're talking about
. , 19 '98. j 20 Q. Just one more question. There is no question, also, 21 that the truck, Jimmy Fennell's truck, was found at the Bastrop 22 High School at 5:23 a.m. that morning? 23 A. I know it was found at the high school. Thespecific 24 time, that sounds about right but I can't swear to that. 25 Q. But we can rely on the record as the best evidence of 55 ..
1 that? ,,. 1 \ s . 2 A. Always. i .f 3 Q. The investigator that was appointed in this case, was L 4 that Mr. Vasquez, Mr. John Vasquez? 5 A. I believe that's correct. He was appointed around 6 trial, the initial investigator was Duane Olney. i, 1-.-1 7 Q. So Mr. Vasquez was a member of your defense team? 8 A. Yeah, around trial time. 9 Q. Okay. And one last question. Do you assess the 10 credibility of your witnesses before you put them on in trial? 11 A. Well, you always look to see if they w1ll be . ":.:'J [~- '.1 12 credible, certainly. 13 Q. Thank you. 14 MS. DETTMER: No further questions. f,"j : I U 15 MR\ 'OVERSTREET: No further questions. 16 THE COURT: May this witness be released or do 17 you need him to stay? 18 MR. MOON: We request that this witness be 19 rel eased.' 20 THE COURT: You may be released, Mr. Garvie, 21 safe travels to you. 22 (Witness excused from witness stand.) 23 THE COURT: Who is your next witness going to 24 be?
25 MR. OVERSTREET: We would call Martha Barnett. j
) ·1 56
i . 1 THE COURT: Okay, Martha Barnett. But before 2 you do that, will yo~-all please approach for a momerit.· 3 (Discussion off the record at the bench.) 4 MARTHA ELIZABETH BARNETT, 5 called as a witness and having first been duly sworn testified 6 as follows: 7 DIRECT EXAMINATION 8 QUESTIONS BY MR. OVERSTREET: 9 Q. For the record, will you please state your name? 10 A. Martha Elizabeth Barnett.
~-.; 11 Q. And .I'm going to ask you to speak up just a little
'. , i. I'_-l lei 12 . bit, Mrs. Barnett?
~~· '. 13 A. Yes, sir. r·",.i :_.1 14 Q. My name is Morris Overstreet and I represent the fl I I LJ 15 applicant, petitioner, in this case, Mr. Rodney Reed, and I 16 want to ask you some questions about his case and then the 17 attorneys representing the State will have an opportunity to 18 ask you some questions. Please listen carefully to the 19 questions and try to be as direct in your answer as possible, 20 okay? 21 A. Yes, sir. 22 Q. First of all, did you have reason to know a young 23 lady whose name was Stacey Stites?
24 A. Yes, I did.
25 Q. And how did you come to know Stacey Stites? 57
1 A. I would ~o intO HEB'and she would wait on me. 2 a. -Do you recall- on or about April 24, 1996 hearing 3 about her death?
4 A. Yes, sir, I did. 5 a. Now where were you working during that period of 6 time? 7 A. Papa's Catfish. 8 a. And where is Papa's Catfish? 9 A. It's closed now, but at the time it was located in t: 10 the Jalisco Mexican Restaurant building, which was directly in 11 front of the former HEB building here in Bastrop. 12 a. Where were you living at or about that time? -, -, 13 A. Paige, Texas. r, -r L. ..J 14 a. And what route would you take from your residence or 15 your home in Paige, Texas to your place of employment? 16 A. Highway 290 west to Highway 21 and follow Highway 21 I 17 to Bastrop. 18 a. Generally how long would it take you, in terms of 19 time, to leave your residence and drive to your place of : :. ; 20 employment, if you were going directly there? 21 A. Twenty-five to 30 minutes. 22 a. Now on the morning of April 24, 1996, were you 23 working at Papa's restaurant? 24 A. Yes, sir, I was. 25 a. Do you recall your work hours on that day? 58
1 A. Yes, sir, six to two. , 2 a. Okay, 6 a.m. or p.m.? 3' A. From 6 a.m. to 2 p.m. 4 a. Was that your normal work' hour schedule? 5 A. No, si r , 6 a. What was your normal work schedule? ;~ . 7 A. Normally my schedule was two to ten or four to 8 eleven. 9 a. Now did you work the 6 a.m. to 2 p.m. shift very 10 often? 11 A. No, sir. 12 a. During that period of time did you work it on r " I 13 multiple occasions or just one occasion? 14 A. No, sir, just one occasion. ri " I '. • J 15 a. Just that one occasion? 16 A. Yes, sir. 17 a. Now let's go back to April 24th of 1996 and let's 18 talk about your actions that morning in preparation to go to 19 work. 20 A. Yes, sir. 21 a.Do you recall about what time you woke up and started 22 your preparation that date? 23 A. Approximately four a.m. 24 a. And what did you do once you left the house? 25 A. I loaded my four children and took them to my '59
1 mother's house. 2 Q. And what is the approximate time in terms of·distance 3 or time from your house to your mother's house? 4 A. Driving time, sir? 5 Q. Driving time?' 6 A. 30 seconds; 45 seconds maybe. 7 Q. She. lives fairly close to you? 8 A. Yes, sir. 9 Q. Okay.· Approximately how long do you believe you 10 stayed at your mother's house? 1.. .. 11 A. Approximately 20 minutes, 25 minutes maybe. L:l 12 Q. All right. Now what did you do after you left your
··· ' 1 ·'1· ,r i 13 mother's house? L: .1 14 A. I turned on Highway 290, going east -- ·-·... .',J r Iil",.J 15 Q. East or west? 16 A. East, I was going back toward Giddings. I was going 17 toward a business. 18 Q. Okay, I'm sorry. And what did you do? 19 A. I followed 290 to the crossover and I pulled into 20 crossover to approach the business. 21 Q. All right, and what was the name of that business? 22 A. The Old Frontier. 23 Q. Now did you notice -- once you arrived at the Old 24 Frontier, did you notice any people either standing outside or 25 in cars that morning? - ·n 60
1 A. Yes, sir. 2 Q. All right. How many people di dyou notice? 3 A. Well ,there was a car leaving the parking lot as I 4 approached the parking lot. When I was in the turn lane, I had r_. '~ 5 to cross 290, I was waiting for on-coming traffic -- 6 Q. Excuse me. Listen to my question. How many people 7 did you recognize once you arrived at that location. 8 A. There were two people standing out in front of the 9 buildi ng.
i, Q. t ! 10 All right. Two men, two woman, a man and' a woman? 11 A. A man and a woman. 12 Q. At any poi nt in time did those two individuals get in •.... 1 [ .':1 13 or out of a vehicle? . J 14 A. They got into their vehicle. ··; r·.1 \ 1 15 Q. Okay. What kind of vehicle was it?
16 A. Pt ckup . 17 Q. All right. What color was the pickup? :.!
'-I .._',I 18 A. Red. 19 Q. Had you ever seen that pickup before? 20 A. Not to my knowledge, no, sir. 21 Q. All right. Which one got in on the driver's side and 22 which one got in on the passenger's side?
23 A. The gentleman got in on ~he drive's side and the 24 female got in on the passenger's side. 25 Q. Now before they got in the car did you notice 61
1 anything? Were they just standing, or did they appear to ·be 2 talking? What did you actually see?
3 / A. I approached the building in my van and they were . 4 making hand gestures and talking to each other. You know, just 5 making hand.gestures like there was some kind of conflict 6 between them. ( ". i. ! 7 Q. And did you conclude that based on body language and 8 the hand gestures?
; -...." 9 A~ Yes, sir.
: ; 10 Q. After they got in the pickup and the female got on 1·. j 11 the passenger side and the male on the driver's side, did they 12 leave first of did you leave? 13 A. I 1eft. to"l 14 Q. All right. Did you notice anything unusual or did i I I 1 II i:. ~ 15 you notice anything after they got into the vehicle? 16 A. Yes, I did. When I drove up and opened the car door 17 to get out, the gentleman and the lady approached and got in 18 their vehicle; I got out and walked to the front of the 19 building, got a Coke from the Coke machine; as I approached and 20 got back into my vehicle, out of the peripheral vision on my 21 left side her head went down like that (demonstrating) and back 22 up. 23 Q. Could you hear anything? 24 A. Muffled voices. 25 Q. Were the voices normal or elevated in terms of - 62
1 volume? 2 A. I would say they were elevated,thei-r windows were 3 rolled up and sa was mine. 4 Q. Now after you left that location, where .did you go?" 5 A. To work. 6 Q. And what was your route to work? 7 A. 290 west to Highway 21, Highway 21 to Bastrop. 8 Q. Approximately what time did you arrive at work that 9 morning? t;:Oj 10 A. I don't recall, sir, exactly. 11 Q. Just approximately? What time were you scheduled to 12 be at work? A. Between 5:30 and six.
A. I'm sorry, I don't understand the question.
Q. How long have y~u worked during your adult life? A. I've worked since I was 14, sir.
Q. All ri ght. You know, some peopl e have a habi t, a reputation, some people always arrive late, some people just barely beat the clock, and some folks arrive early for work. What is your reputation? A. At arriving to work?
Q. Yes. A. It's been my experience to get to work anywhere from 63
1 20 to 30 minutes early. 2 Q. Is that normally what you do? 3 A. Yes, sir.
4 Q. Is th~t what you believe happened on April 24th,that 5 you arrived early for work? 6 MS. TANNER: Objection,' your Honor, she's 7 already testified that -- well, first of all, it's already been 8 asked and answered and she testified she didn't know what time 9 she got to work. 10 THE COURT: Sustained. 1 j 11 Q. (By Mr. Overstreet) Do you know of an approximate 12 time that you arrived at work? r: i\." .. I i: : 13 A. 5:30. L_.J 14 Q. And how long would it normally take you to drive from ,"1 II 15 that locati.on in Paige to work? 16 A. Twenty-five to 30 minutes. 17 Q. So what would you estimate the time that you arrived 18 at that location, the Old Frontier? 19 A. 4:45. 20 Q. Okay. Now at some point in time did you have a 21 conversation with a lawyer whose name is Keng, from Giddings? 22 A. Yes, sir. 23 Q. Is he the former county attorney from Giddings? 24 A. Yes, sir. 25 Q. All right. Did you have a conversation with him
~---~>,,' 64
1 about anything that you may have seen on April 24th? 2 A. . Yes, I di d. 3 Q. Okay. Why did you chose to have the conversation 4 with him? 5 A. Because I felt I knew something about what happened 6 to Stacey. 7 Q. All right. Did you have a conversation about what 8 you saw on the 24th prior to your conversation with Mr. Keng? 9 A. Yes, I did.
10 r-, 11 l·-j L_J 12 :~- j 13 parents, what did you do next, regarding what you saw on the 14 24th? ;~ :'1 ! 15 A. I called Steve Keng and asked for a conference. 16 Q. And at the conference what did you reveal to Mr. 17 Keng?
18 A. That I believed that I saw Stacey Stites the morning 19 of her death. 20 Q. Were you later -- at some point in time after the
21 morning of the 24th, were you abl e to determi ne in your mi nd,; 22 who the gentleman was? 23 A. Yes, sir. 24 Q. All right, and who did you determine that person to 25 be? 65
1 A. Jimmy Fennell. 2 Q. All right. And how were you abl eto make the- 3 connection of the person that you saw that morning was Jimmy 4 Fennell? 5 A. Because his picture was run in the paper. 6 Q. And did you recognize his picture as being the person 7 that you saw?
~ .t • \ 8 A. Yes, sir, I did. 9 Q. Is there any _doubt in youi mind that the persons you 10 saw on the morning of April 24, 1996, at the Old Frontier,
,.-" ....- 11 sometime between the hour of fifteen minutes to five or 1---; 1--~ '; .. ; 12 thereabouts, was Stacey Stites and Jimmy Fennell? ri, , 13 A. There is no question in my mind. ;.' ~1 14 Q. Could you be off a little bit-either way on time? 15 A. Yes, sir. 16 Q. All right. Could you be off in any way on the 17 identification of the parties? 18 A. No, sir. 19 Q. Now you eventually gave an affidavit dated March 20 27th, 2002? 21 A. Yes, sir. 22 Q. Did anyone ask you to give an affidavit prior to 23 March 27th of 2002? 24 A. No, sir. 25 Q. Do you remember about when you had the conversation 66
1 with the'former county attorney from Giddings, TexaS? 2 A. Yes" sir. 3 Q. Cany6u give us a time frame of when that may have 4 been? 5 A. On or about January of 1998. 6 Q. Okay. Now do you recall that that was either before 7 or after the trial of Rodney Reed?
8 A. Before. 9 Q. And are you sure about that? ' 10 A. Yes, si r. '
11 Q. Now I want to ask you about some iss~es in your past. 12 Have you ever been convicted of a felony offense in this state r-c; I i 13 or any other state? But first let me ask you, do you know what Lr ,:I 14 a felony offense is?
15 A. Yes, sir. 16 Q. Okay. A felony offense is one in which if you're 17 found guilty you're assessed -- the range of punishment is more , °1 .-0' 18 than two years.· 19 A. Yes, sir, I understand. 20 Q. Have you ever been convicted of a felony in this 21 state any other state?
22 A. No, sir. 23 Q. Have you ever been convicted of a misdemeanor offense 24 involving either theft or moral turpitude, something that would
25 affect -~ well, I'll just say theft or moral turpitude? 67
1 A. Yes, sir. 2 Q. All righti And what theft offense have you·been 3 convicted of? 4 -A. Theft by check. 5 Q. Have you been convicted of any other offense other 6 than theft by check? 7 A. No, sir.- 8 Q. Have you been convicted of -- have you been convicted 9 of theft by check on more than one occasion?
( i ." 10 ., -. A. Yes. 11 Q. Let me go back and ask you something, I wrote down 12 April 24th, but this really was the morning,of April 23rd? r-'; Ii 13 A. I don't understand th~ question. , ) 14 MR. OVERSTREET: May I approach the court [':.I I I ; ,J 15 reporter? 16 THE COURT: Yes, you may. 17 Q. (By Mr. Overstreet) I want to hand you an exhibit 18 marked as Defendant's Exhibit Number 1; I want to ask you one 19 question before I hand it to you. Is the day or morning that 20 you saw Stacey and Jimmy Fennell the same day that you learned 21 of her death? 22 A. I don't recall that, sir, if it was the same day. 23 Q. Let me show you an affidavit. What day does your 24 affidavit indicate that you saw them? 25 A. April 23rd. 68
1 a. When did· you learn of Stacey's death? 2 A. It w8ssometimeafterher death.· I don't·recall 3 exactly.
4 a. Did' you 1ea-rn about it the same day that they 5 discovered her body? 6 A. Yes, sir. 7 a. And if they discovered her body on April 23rd would 8 that have been the morning that you saw her? : ! i:j 9 A. Yes, sir.
I ! 10 a. It would have been impossible for you to see her on f:·] 11 April 24th; right? li C.-.J 12 A. Yes, sir. r-'1 : 1 13 a. Do you have any reason to lie about what you saw on l.i 14 the morning of April 23rd? 15 A. No, sir. 16 ·a. Do you have any reason to lie about the· 17 identification of the parties? 18 A. No, sir. 19 a. How much thought did you give before you came forward 20 with the information that you have? 21 A. A lot, sir. 22 a. Were there any factors that affected you prior to
• J 23 coming forward with the information? 24 A. I don't understand what you mean by factors. 25 a. What was going on in your life? 69 .
1 A. Yes, sir. 2 Q. Now did you immediately come forward with this 3 information? r-; " : .. 4 A. No, sir. 5 Q. Did you immediately identify Jimmy Fennell as the 6 person that you saw? 7 A. Not immediately, no. "'..-_.-._----....~ ..':;.". 8 Q. An~ did ~ou immediately identify Stacey Stites as the 9 person that you saw?
,'j r: I l..:.J 10 A. I believe I did, yes, sir. 11 MR. OVERSTREET: At thi s time I pass the, wi tness 12 for cross-examination.
(:~I \1 13 CROSS-EXAMINATION \.:,1 14 QUESTIONS BY MS. TANNER: 15 Q. Ms. Barnett, my name is Lisa Tanner and I have a few 16 questions for you, okay? 17 A. Yes, ma'am. 18 Q. Now if there's anything that I ask you that you don't
, "' \ ! 19 understand just let me know, all right? 1 .\ ~ ! 20 A. Yes, ma'am. "21 Q. Okay~ Now you told us that you worked at Papa's 22 Catfish back in April of 1996, right? 23 A. Yes, ma'am. 24 Q. From when to when did you work there? 25 A. December of '95 until August or thereabouts of '96 70·
1 let me think. December of '95 until sometime after July of 2 '96.
3 Q. Okay. So you were working at Papa's for about. three 4 months after all this happened? 5 A. Yes. 6 Q. Okay. ·At a minimum?
7 A. At a minimum, yes. 8 Q. Okay. And you said that you normally work the four
". .-1 9 to eleven? 10 A. Yes, ma'am. 11 Q. And what was the occasion that had you working the·
12 6 a.m. shift on this particular day? 13 A. When I was on duty the night prior to the morning 14 shift that I had to work, somebody had called in and they t· -'1 \- -J (-. :J 15 needed someone to come in and prep.
(0""l, \".1 16 Q. So you went in to do that? \""~ 17 A. And so since I was off -- the next day would be my 18 day off, I didn't have to come in and they asked if I would
.. 1 19 come in and prep and I said I would .
". J 20 Q. Okay, so the night before you worked the four to 21 eleven shift? 22 A. Yes, ma'am. 23 Q. And so that put you home pretty close to midnight? 24 A. Yes, ma'·am.
25 Q. And then the next morning you got up and worked the 71
1 6. a. m. shi ft?
2 A. Yes, ma'am.
3 Q. And who all, worked that shift wtth you, do you 4 remember?
1 5 A. Well, I was in back, I didn't waitress that day, I . i (, ,} 6 was in the back prepping.
7 Q. Were you the first one to get there or were there 8 other people there?
9 A. No, the owner was there. 10 Q. Who is the owner? 11 A. Paul Hansen. 12 Q. And so had Mr. Hansen already unlocked the place?
13 A. He had unlocked the back door, yes, ma~am~ 14 Q. And you said you were due to get in there about six? 15 A. Between 5:30 and six.
.. I 16 Q. Now when you first testified in response to Mr. L"j 17 Overstreet's questions, you said your shift sta~ted as 6 a.m.? -'i i
•." j 18 A. Yes, rna' am .
19 Q. Okay. And then later on you said, well, it was 20 actually between 5:30 and six? 21 A. Yeah. 22 Q. But your actual shift started at six, right? 23 A. Yes, ma'am. 24 Q. And if you had been working until 11 o'clock the 25 night before, would it be reasonable to assume that you weren't 72
1 that fired up to get there really, really early at 6-arm. the 2 next morning?
3 , A. No, ma'am. 4 Q. Okay. Now Papa's Catfish is pretty close to the HEB? 5 A. Yes, ma'am. 6 Q. And I believe in your affidavit you said that you 7 used to go through Stacey's line and she would check you out?
C·":"! 8 A. Yes" ma'am'. l.l 9 Q.And did you do that all the way up until' pretty close
;_"1
I j l; 10 to the time she died? 11 A. Yes, ' rna' am . 12 Q. Okay. Do you remember -- I mean, did you go through
['J L' I 13 her line week to week even, before she did? Probably? t..•.~.!· 14 A. I don't recall that. II [-i 15 Q., Okay. r,; '.'-.1 .: , 16 A. I don't recall if I did or not. I.: ; 1. , 17 Q. Okay. But do you have a sense that it was all the 18 way up until this happened that you were regularly going
" ; 19 through her line? "j i 20 A. I don't recall that.
21 Q. Okay. Now' if you're going from Paige into the City 22 of Bastrop, Highway 21 ;s the fastest way to go; rlght? 23 A. Yes, ma'am.
24 Q. You can go other ways from Paige to Bastrop but those 25 would all be out of the way; right? 7-3
1 A. Yes, ma'am. 2 a. Okay. Now you told the Court that on this particulat:' 3 morning, April 23rd of '96, you saw Stacey and Jimmy in this 4 red truck at the Paige country store; right? - 5 A. Yes, ma'am. 6 a. Now you indicated that the truck was parked? 7 A. Yes, ma'am. 8 a. Now where was it parked in relation to the store? .. ..: 9 A. Well~ here is the front of the store and I was parked 10 approximately in the middle, like at the middle of the 11 bUilding, and they were parked to left where the dumpster 12 always sits.
:-1 ! .I 13 a. All right. And were -- the store was not open? '°1t- __ I 14 A. - No, ma' am . I- I i- \ 15 a. Okay. And when you first saw them, according to you 16 these people were outside of the truck? 17 A. Yes, ma'am. ., '! 18 a. And they were standing? 19 A. Yes, ma'am. 20 a. And you were there long enough to get your soda and 21 head out; right? 22 A. Yes, ma'am. 23 a. Okay. And you got your Coke out" of the machine, 24 according to you, and then you turned and you went onto 25 Bastrop; right? 74
1 A. Yes, ma'am. 2 Q. And the truck and the people were still ·in the 3 parking lot when you left; right? 4 A. Yes, ma'am. 5 Q. Okay. And you indicated that they may have already 6 gotten in the truck or were they still standing outside the 7 truck when you left? 8 A. They were in the truck when I drove away. 9 Q. Okay .. But you 1eft the Pai ge country store before 10 those people left? 11 A. Yes, ma'am. LI 12 Q. And once you left the Paige country store and started 13 heading down 21 you didn't see anymore of them; right? 14 A. No, ma'am. [I :1 15 Q. Okay. They didn't pass you heading on Highway 21
. l i 16 because that would be something you would remember; right? I J 17 A. I don't recall if they passed me or not. 18 Q. Well, there wasn't a red truck that went flying by 19 you on Highway 1 on your way to town? 20 A. I don't recall that. 21 Q. And surely if you recall seeing it in the parking lot
~ 22 you would recall if they would have blown past you on the road; 23 right? 24 A. I don't know. 25 Q. But as far as you know, they didn't? 75
A. I don't know if they did or not. Q. Okay. But you have no recollection of a·red· truck flying past you going toward Bastrop that morning, do
A. No, ma'am, I do not. Q. Okay. Now when you saw this girl that you say was 7 Stacey, what was she wearing? 8 A. I don't remember. 9 Q. What was the guy wearing? 10 A. I don't remember that either. 11 Q. Okay. Now you said that you heard that Stacey had 12 been murder on the same day that she had actually been murder; 11 13 is that correct? i.·r- .... j' '.. 14 A. Yes, ma'am. 15 Q. And you working there open at Papa's Catfish on that 16 day; right? 17 A. Yes. 18 Q. Okay. Now you told us that you told your lawyer
1-:': 19 about this, Mr. Keng, in January of 1998; right? , . i j 20 A. I believe that's the time, yes, ma'am. 21 Q. Okay. And you talked to your folks shortly before 22 that, and that was all right together. You talked to your 23 folks and your folks told you to tell Mr. Keng and so you told 24 Mr. Keng. Is that a fair assessment? 25 A. Yes, ma'am. 76 -
1 Q. Okay. So you would have told your folks probably in 2 January of 199 as well;· right? 3 A-. No, ma'am. 4 "Q. Well, when, in December maybe?' 5 A. No, ma'am.
6 Q. When did you tell yo~r folks? 7 .A. To my recollection it was January of 1997. 8 Q. That you told your folks? .9 A. Yes, ma'am . . 10 Q. And then you told Mr. Keng a year later?
. -~j 11 A. Yes, rna' am . L i. lJ 12 Q. Is that what you're telling us? 13 A. Yes.
14 Q. All right . Now, do you recall on Apr.i 1 23rd of 1996 , 15 the day that Stacey Stites was murdered, the HEB being crawling 16 with police offiter? 17 A. I don't remember that, I was inside the building I.r LJ 18 where I worked. [j 19 Q. How did you find out that day that Stacey had been 20 murdered? How and where did you find that out? [J 21 A. I don't recall. 22 Q. Okay. Well, you told us that you remember that it U 23 was that day, so do you remember if you were still at work? U 24 A.' No, I wasn't still at work when I heard. 25 Q. Okay. Did you go to work the next day, th~ following ~ [• I U 77
. t 1 day? 2 A. Yes, ma'ami I did, that evening·. 3 Q. So you worked that evening shift then on the 24th?
4 A~ Yes, ma'am. 5 Q. And, by the way, when Mr. Overstreet was asking you ,nI -, 1 6 questions he· kept referring you to tha.24th arid you did not 7 correct him; right?
8 A. No, ma'am, I didn't. 9 Q. Now you worked at Papa's Catfish about three months 10 after Stacey Stites was killed; right?
~l 11 A. Yes, ma'am. !j- . L 12 Q. And would you agree with me that Stacey Stites' --]----:' 13 murder, her disappearance and her murder, was huge news around 14 the HEB and that whole shopping center? ~)-- 15 A. Yes, I would agree.
16 Q. And that was somethlng -- and I bet when you were 17 working at the restaurant thereat Papa's Catfish that that was 18 something lots and lots of people talked about?
19 A. Yes, ma'am. 20 Q. And was there a machine for the Bastrop newspaper 21 outside of Papa's?
22 A. I don't recall a newspaper machine. 23 Q. But the entire time you were working at Papa's 24 Catfish, the issue of who had killed Stacey Stites was a big 25 deal, wasn't it? . 78
1 A. Yes, ma'am.
\ 2 Q. Now let me· make· it -real clear, you ·did not go to the ,', I 3 Bastrop Police Department ·and tell them .what you had seen; 4 correct? 5 A. No. 6 Q. And you did not go to the Bastrop Sheriff's Office, 7 and by that I mean ever. You've never gone to the Bastrop 8 Police Department and told them what you say; correct? 9 A. Right. 10 Q. And you have never to this day gone to the Bastrop 11 Sheriff's Office and told them what you saw? 12 A. Correct. 13 Q. . ; And you never went and told the Texas Rangers or 14 anyone affiliated with the Texas Ranger service what you have 15 told us you saw; right? i>: !j 16 A. Right. ( '! 17 Q. And you did not tell anyone with the Giddings Police 18 Department, or the Paige -- does Paige even have a police 19 department? 20 A. No, ma'am. 21 Q. Okay. Well, the Giddings Police Department, you 22 didn't tell anybody there?
. c 23 A. No ; rna' am.
24 Q. You didn't tell anyone about this with the Lee County 25 Sheriff's Office; right? 79
1 A~ Right. 2 Q.Youdidnot tell anyone about this "who works for or 3 is affiliated with the Bastrop County Criminal District 4 "Attorney's office; correct? 5 A. Correct. 6 Q. And you did not tell anyone about this who works for i -. r 1 -1 ; 1 ~ .-J 7 of is affiliated with the Texas Attorney Generals office; 8 correct? 9 A. Correct. 1'0 Q. Now the first person you told about this, outside 11 your fami1y, was your 1awyer Mr. Keng, .and that was around 12 January of 1998; correct? 13 A. Correct.
14 Q. And he was representing you on what? " ) I .1 15 A. I don't recall, I think it was a OWl charge~
,.-~ .! 16 Q. Okay. And so you~affiliation with him came as a .\ J 17 result of this particular OWl charge? . -,j i '.oj 18 A. Yes, ma'am. 19 Q. Okay. And so that was something that when you told 20 him in January of '98, that was a year and eight months, 21 approximately, after Stacey Stites was murdered; correct? 22 A. Yes, ma'am. 23 Q. Okay. Now do you think that what you tell us you saw 24 that morning is something the- police would have been interested 25 in? 80
1 A. Yes. 2 Q. And do you think that that was something that people·· 3 who were investigating what in the· world had happened to Stacey 4 Stites might have been interested in? 5 A. Yes. 6 Q. And you did not give the police the opportunity to· 7 determine whether this was of any relevance because you didn't 8 tell them; correct? 9 A. Correct. 10 Q. Now you would agree with me that it was common 11 knowledge, particularly amongst people who work so close to,the ,I.....,j' ~ . '.. 12 Bastrop HEB and shop at the HEB, that there was a $50,000 '1 13 reward out for information relating to Stacey Stites' murder? \ 14 A. Yes, I would agree with you. 15 Q. And you were fully aware of that; correct? 16 A. I don't know if I thought about it at the time. 17 Q. But you were aware back in 1996 that there was 18 $50,000 sitting out there for somebody if they knew something 19 about what in the world had happened to Stacey Stites? 20 A. I don't recall. I don't recall ever thinking about 21 that. 22 Q. Okay. But you knew about it? 23 A. I don't know if I did or not.
24 .Q. Okay. Now you said that you took Highway 21 to get 25 into work; right? 81
1 A.Yes, ma'am. 2 Q., ,'And that you don ':t recall the red truck passing you 3 up; correct?
4 A. Correct.
'wo~ld 5 Q. And it be reasonable for us to assume J then, , 6 that if people in that red truck were heading into Bastrop they 7 would have been heading into Bastrop after you, according to 8 your testimony; correct?
9 A. Correct.
10 Q. Do you know where Bastrop High School is?
11 A. Yes, I do. C) i ·"i l-.:.) 12 Q. And Bastrop HighSchool is pretty far into town, 13 isn't it, from where you were going? lJ~.1 14 A. No. ',., "i [ •.•. 1 15 Q. Okay. Is it on the way to where you were going? [1 16 A. No. It's not where I-- I was going past downtown. 17 Q. Okay. Bastrop High School off at the -- if you're
18 going toward the right of downtown, Bastrop High School is off
19 to the left? 20 A. No.
21 Q. Where's it at?
, , 22 A. When you come in to Bastrop off of 21, where 21 and ! l 1" -; ! ; l' 23 95 meet, Bastrop High School is to the right, down by the r I; 24 cemetery, you go that way, and I went straight and across the U 25 old town river bridge and up to HEB. - 82
1 Q. And up to the point where you went straight and the 2 high school went off to the left you had not been at··any time 3 passed by a red truck resembling the one you said you saw in 4 Paige at the country store; right? 5 A. Corrected." 6 Q. Okay. Now, Mrs. Barnett, you say that you told your 7 lawyer about this in January of 1998 and then you gave your 8 affidavit on March 27th of 2002, is that pretty accurate? 9 A. Yes, ma'am. 10 Q. Who came to see you in 2002? How did it come to pass 11 that you gave this affidavit in 2002? 12 A. Is there were private investigators that contacted -- ,'.J ..j 13 I'm not sure how, but there were investigators that contacted ; 14 Steven"Keng and Steven Keng's office contacted me. 15 Q. Okay. And then you gave your affidavit as a result
" , ! 16 of that? ..! 17 A. Yes, ma'am. . 1 ) 18 Q. Now who came and took your affidavit? 19 A. I don't recall their name. .J 20 Q. Was there more than one person?
\ j 21 A. And elderly gentleman and his wife. 22 Q. Okay~ and did they represent to you that they were ! .j 23 law enforcement officers, lawyers, private investigators or 24 what? 25 A. Private investigators. 83 -
1 Q. Okay. And since that time, since you gave the 2 affidavit on· March 27th of 2002, that have you since met with 3 those same individuals? 4 A. No, ma'am. 5 Q.' Okay. Have you met with other individuals regarding 6· what you say you saw on April 23rd of 1996? 7 A. No, ma'am.
".! 8 Q. Okay. Have you talked to these lawyers over here ij . 9 about what you say you saw on April 23rd of 1996? ; I : .1 10 A. Yes, ma'am. · .' 11 Q. And which ones of these lawyers have you talked to? 12 A. I spoke to Lori LaVeen and Morris -- I'm not sure of
• 1 f I 13 his last name. 14 Q. Okay. And how many times have you done that? · ) .1 "j i 15 A. Twice.
'/ 1.-'·1 16 Q. Okay. And when was that, approximately? , ! ) 17 A. A couple of weeks ago. 18 Q. Okay. And did you talk to Lori and Morris together 19 or separate from one another? 20 A. Together. 21 Q. And so they both came -- did you talk to them in 22 person or on the phone? 23 A. In person.
24 Q. Did they come to your house? i .' 25 A. Yes, ma'am. ,84
1 a. And that's been on two occasions? 2 A. Yes, ma'am. 3 MR. OVERSTREET: Just for the record, since two 4 of us have the same first name, and I know I have never been to 5 her house, I just wanted to clear it up since it's Morris Moon 6 and Morris Overstreet so that the record is accurate. I want 7 to make sure the record indicates which one she's referring to. 8 THE COURT: Is that accurate, ma'am. 9 A. Yes; ma'am, this gentleman here. 10 THE COURT: Okay, thank you.
.',.'", 11 MS. TANNER: May I approach the court reporter? 1.',1 1",1",I L:J 12 THE COURT: Yes, ma'am, you may. I') I; I I- ! 13 a. (By Ms. Tanner) Let me show you what has been marked 1:,1 14 as State's Exhibit Number 2, is that a copy of your affidavit? 15 A. Yes, ma'am.
\·1 16 a. Does that have your signature on it? , i 17 A. Yes, ma'am. 18 a. And is that a fair and accurate copy our of your 19 affidavit? 20 A. Yes, ma'am.
" J i 21 a. And that's the affidavit that you gave on March 27th 22 of 2002? 1 ".J 23 A. Yes, ma'am. 24 MS. TANNER: We would offer State's Exhibit 25 Number 2. 85·
1 . (State's Exhibit No.2 offered into evidence.)
2 MR. OVERSTREET: We have no objections to 3 State's Exhibit Number 2. 4 THE COURT: It shall be admitted. 5 (State's Exhibit No.2 admitted into evidence.) 6 Q. (By Ms. Tanner) Now, Ms. Barnett, with regard to 7 your affidavit of Mach 27th of 2002, tell the Court, if you 8 would, what time it was that you said you saw this truck?
9 A. Appr~ximately 5 a.m. to 5:30 a.m .. 10 Q. Okay. So you wrote out, on March 27th of 2002, "On 11 the morning of April 23rd, 1996, at approximately 5 to 5:30 12 a.m."; correct?
; i 13 A. Yes, ma'am. ..~ 14 Q. Okay. Now you testified to the Court today that, 15 well, it was actually probably about 4:45? , \ 16 A. Yes, malam. J 17 Q. Okay,· now that 18 MR. OVERSTREET: Your Honor, we would insist
"I 19 certainly we have no objection with approaching the witness to I ; 20 show them a document but we do have an objection to 21 cross-examination at the witness stand and ask that she return· 22 to the counsel table for cross-examination. But we, of course, 23 have no objection to approaching the witness to show the ., 24 witnesses a copy. 25 MS. TANNER: Okay, I'll come back. 86
1 THE COURT: Thank you. However, if there are .." ' ·2 going to be several questions·in·a row you· do have the·Court's 3 permission to stand there and ask all of them at that same 4' time. 5 MS. TANNER: Thank you, your Honor.
6 Q. (By Ms. Tanner) Okay, so back in 2002 you swore 7 ·under oath that you saw this vehicle and these people between 5 f·- 8 and 5:30 a.m.; correct? 9 A. Yes, ma'am. 10 Q. And today you came here and told us that,well, it .11 was actually closer to 4:45; is that a fair assessment? 12 A. Yes, ma'am. 13 Q. Now since March 27th of 2002, you said you've talked 14 to these lawyers; correct? 15 A. Yes, ma'am. 16 Q. And you talked to them about the time you saw this, 17 haven't you? 18 A. I don't recall if we talked about the time frame. 19 Q. Has anybody shared with you the fact that the truck
., 20 in question was found at the Bastrop High School at 5:23 a.m. 21 on April 23rd of 1996? 22 A. No, ma'am. 23 Q. Okay. If in fact the truck was found at Bastrop High 24 School at 5:23 a.m., it would be difficult if not impossible 25 for that to have been the truck you saw between 5 and 5:30; 87 r- . , . ; i 1 would you agree with that? At the Paige country store?
2 A. I don't know. . 3 Q. Okay. You testified earlier in response to counsel's 4 questions.that it took you from Paige about -- let me make sure 5 I got it right 25 to 35 minutes to get -- excuse me, you 6 said that it took -- hold on one second and let me find it. 7 You testified in response to counsel's questions 8 that it took you between 25 and 30 minutes to get to work in 9 Bastrop from Paige? 10 A. Yes, ma'am. 11 Q. And that's pretty accurate? 12 A. Yes, ma'am. r- ".; I·, 13 Q. Now, I asked you earlier about when you told anyone [::~ .: 14 about this and you said that you didn't tell your lawyer until 15 January of 1998. You were aware, of course, that the question 16 of what happened to Stacey Stites was very, very significant in 17 this community; right? 18 A. Yes, ma'am.
: 19 Q. Do you recall seeing the Bastrop newspaper on a I : 1 ;; ... 20 regular basis? 21 A. No. 22 Q. Do you recall headlines in the Bastrop newspaper 23 asking people for help in finding out who had done things to 24 Stacey Stites? 25 A. No, ma'am. 88 .
1 MS. TANNER: May I approach the witness? 2 THE COURT: Yes , you may.· 3 Q. (By Ms. Tanner) I'm going to show you the Bastrop 4 Advertiser, and .that's the local paper here in town; correct? 5 A. Yes. 6 Q. And it runs all over this community; correct? 7 A. Yes, ma'am. 8· Q. And in 1996 you were working in this community; 9 correct? 10 A. Correct. 11 Q. Do you recall seeing the headline from April 27th of . i 12 1996, "Police Search for Leads in Stites Murder." "Who saw '.-: ; 13 Stacey Stites' truck on Tuesday morning?" Do you remember . , 14 seeing that? 15 A. No, ma'am, I don't. 16 Q. Do you remember seeing the paper in Bastrop on 17 Saturday, May 11th of 1996 with the headline, "Police still 18 mystified by Stites' strangling"?
't 19 A. No, ma'am. ·1 : 20 Q. Or June 22nd of 1996, "Slow progress on murder case." 21 Do you remember seeing that? 22 A. No, ma'am. 23 Q. July 13th of 1996, "Police ask citizens to aid in 24 ongoing Stites murder probe." Do you remember seeing that? 25 A. No, ma'am. 89
: '
: t 1 Q.Would it be fair to say that from these newspapers 2 that just,1ooki ng at it objecti ve1Y. the City of Bastrop and 3 the law enforcement in Bastrop were begging people in this 4 community to help them figure out what had happened to Stacey 5 Stites; would you agree? 6 A. ',Yes, ma'am, I agree with that.
7 Q. And each of the articles also make reference, very
'8 early on, to that $50,000 reward; right? 9 A. I see you have it highlighted, yes, ma'am, and I. 10 agree. "0. '
, ""'\ 11 f .1 Q. And yet you didn't tell anybody who had anything to 1J 12 do with this case anything about this, did you? 13, A. No, ma'am. 14 Q. Now you told us that the reason you knew that the man 15 you saw was Jimmy Fennell was because you saw his picture in 16 the Giddings paper a couple of weeks after this happened; is 17 ,that correct? .:j 18 A. I'm not sure it was the Giddings paper. 19 MS. TANNER: May I approach the witness? _! 20 THE COURT: Yes, you may.
-,, 21 Q. (By Ms. Tanner) In your affidavit that you gave, on 22 March 27th of 2002 you said, and I quote, "I found out about 23 two weeks later that the man with her that morning in front of 24 the Frontier was Jimmy Fennell because his picture was run in 25 Giddings Times and News, and that's when I recognized him." Is 90
1 that right? 2 A. Yes, ma'am. 3 Q. OkaYi so, when you gave your"affidavit about four 4 years ago now, you were clear then that the picture of Jimmy 5 Fennell that you saw was in the Giddings paper; correct? 6 A. Yes, mavam , f'l !.il '7 Q. All right. I want you to look through here and I'm 8 going to show you the Giddings Times News, okay? And I'm going 9 to show you from April 25th of '96, two days after Stacey was 10 killed -- oh,by the way, I know what I was going to ask you. - :- i 11 The Giddings Times·and News comes out once a week; right? , <.1 [--.'J 12 A. That's correct.
!. : Ii 13 "Q. Comes out on a Thursday; right? 14 A. It actually comes out on a Wednesday. r~ " II, I r 15 Q. Okay, but it's dated Thursday? 16 A. Yes, ma'am. 17 Q. Okay. So we've got 4/25 of ';96, the next week paper; 18 we have May 2nd of '96, so that's the very next one; right? 19 A. Yes, ma'am. 20 Q. We've got May 16th of '96; we've got June 6th of '96. 21 By the way, do you take the Giddings Times and News? 22 A. No, ma'am, I don't. 23 Q. Okay, we've got July 18th of '96; we've got October 24 24 of '96; we've got Aptil 10th of '97; we've got 25 September 18th of '97; we've got February 5th of 1998; we've
: I 91 n 1 'got April 2nd of '98; we've got April 16th of '98; we've got :1 2 April 30th of '98; we've got May 7th of '98; we've got May 14th, : I 3 of '98.
4 MR. OVERSTREET: Judge, maybe I missed it, but 5 what's the question?
6 MS. TANNER: I have two more to go. 7 THE COURT: She's almost there, give her a 8 second.
9 Q. (By Ms. Tanner) We've got May 21st of 1998; and
'j , ., [-':] 10 we've got May 28th of '98. ,
C] 11 A. Yes, ma'am. 1.;.1I, ,..-I 12 Q. Can you tell the Court where in any of those
"'J 13 newspapers I just showed you there's a picture of Jimmy ~- J 14 Fennell?, , ....-\ -, , I I [,J 15 A. There's not one. 16 Q. There's not one, is there? 17 A. No, ma'am. .! ,: j 18 Q. His picture is not in there, is it? 19 A. No, ma'am. 20 Q. So there in no way that you identified Jimmy Fennell 21 by the Giddings Times News, contrary to your affidavit, is '.1 22 there? 23 A. I guess not, it must have been another paper. 24 Q. Okay. What other paper did you read? 25 A. The Austin paper. 92
1 Q. Well, let's look ad the Austin paper. And rather _2 than going through each-of them I'll ·justrepresent to you that· 3 this is all the stories in the Austin paper about -this case. 4· Go ahead and flip through there and tell me if you can find a 5 picture of Jimmy Fennell.- i -J 6 A. (Witness complies.) 7 THE COURT: Let's take a fi ne mi nute break whil e 8 she does that, I need to make a ~hone call, if you-all will 9 excuse me for a moment. Thank you. . I : , 10 ,I!I (Recess.) 11 THE COURT: You may proceed. 12 Q. (By Ms. Tanner) before I get back to what we were 13 talking about, I wanted to go back and ask you something else. 14 You told Mr. Overstreet that you got up at 4 a.m.; correct? [!, ' ! J 15 A. Correct. 16 Q. And you said you had four kids at home at the time; 17 right? 18 A. Correct.
19 Q. And how old were your kids at that time? 20 A. I had a 16-year-old, a 13-year-old, an eight-year-old 21 and a three-year-old.
22 Q. And did you have to get them all fed? 23 A. No, ma'am. 24 Q. Okay, but did you have to get them all four up? 25 A. Yes, ma'am. 93
1 Q. Okay. So you got all four of your kids up and got-
r r : j 2 them dressed; right? I 3 A. Well, the older ones dressed themselves. 4 Q. But you, yourself, probably had to particip~te in 5 dressing at least your younger ones? 6 A. Yes, ma'am. 7 Q. And you got them all loaded up and-you carried them 8 over to your mom and dad's house; right? -9 A. Yes, ma'am. 10 Q. And- then you told Mr. Overstreet that you spent 20 to
11 30 minutes visiting with your folks? 12 A. That's an approxi mate amount of ti me; I don't recall 13 how long I was there. Q. r---'; 14 You were there for some period of time? II l-. .1 ~.- - ! 15 A. Some period of time, yes.
,.. 16 Q. And then after that you drove to the Paige country L·1 .. -_: )--- \ c. 17 store? 18 A. Yes, ma'am. 19 Q. And you've told us now that it was around 4:45 that 20 you got there? - 21 A. Approximately. 22 Q. So it would have taken you only 45 minutes to get 23 four kids ready, get them out of the house, get them dressed, 24 get them taken to somebody else's house, visit with them for 20 25 to 3D minutes and then get to that store; is that your 94
1 testimony? 2 A. I mother doesn't live very far· from where I lived at
·" ... , 3 the time. •., .I i 1 I 4 Q. And then you told Us that it would have taken you
6
7 Q. Okay. So you certainly wouldn't have gotten to work 8 at like 5 o'clock or 5:15 would you, because that would have 9 been just crazy; right?
\ :1 10 A. I don't recall that it was that early~
".': 11 Q. In fact, "I it .was closer to six, wasn't it? I .. i 12 A. No, I wasn't that late. -"1 "j 13 . Q. Okay. Now 1et me ') go back to what we were talki ng 14 about before. You said you did take the Austin American 15 Statesman and you have had the opportunity to look at the 16 Austin American Statesman and Jimmy Fennell's picture is not in 17 the Austin American Statesman either -- 18 MR. OVERSTREET: Judge, I would like to make an 19 objection. We don't know if these papers represent all the 20 papers of that Giddings newspaper, and they certainly are not 21 the entire copies of each newspaper that was printed. And so 22 I'm going to object if we have selective newspapers and 23 selective parts of the newspaper, so until they present the .24 entire newspapers for that period of time we're going to object 25 to this line of questioning. 95
1 THE COURT: And the basis of your objection is 2 what? 3 MR. OVERSTREET: Ma'am? 4 THE COURT: What is your legal objection to
,. l r '. 5 this? 6 MR. OVERSTREET: There's been no authentication .: , . 7 of these that they ate really the papers o~ Giddings. 8 MS. TANNER: Judge, Rule 901.6 says they're 9 self-authenticating. 10 THE COURT: All right. Have you shown them to 11 counsel? 12 MS. TANNER: He's looked at them over the break. 13 THE COURT: All right. Your objection is duly 14 noted however I'm -- 15 MR. OVERSTREET: May I approach, I can't hear 16 you'.· 17 THE COURT: I'm sorry. Yes, your objection is 18 noted but overruled. Let's move on. 19 MS. TANNER: May I approach the court reporter? 20 THE COURT: Yes, you may. 21 a. (By Ms. Tanner) Mrs. Barnett, you have told the 22 Court that you knew Jimmy Fennell because of seeing his picture 23 in the paper; correct? 24 A. I didn't know him, that's how I recognized him. 25 a. You recognized him. You had never had any i .~ 'j 96
1 interaction with Jimmy Fennell prior to this, had you? 2 A. Yes, "I had. :..: 3 Q. Yes, you had. And, Mrs. Barnett, you knew Jimmy 4 Fennell from something completely independent of the Giddings 5 newspaper, didn't you? 6 A. Yes, ma'am, I did. 7 Q. And you didn't mention that in your affidavit,
8 State's Exhibit Number 2~ did you? 9 A. No. 10 Q. You represented to the world in your affidavit that
11 you knew Jimmy Fe~nell solely -- or that you recognized him 12 solely from the Giddings newspaper; right? 13 A. Correct. 14 Q. That isn't true, is it? 15 A. Yes, it is true.
i 16 Q. Okay. Well, let's see if this jogs your memory any. ! 17 I show you what's been marked as State's Exhibi~ 3 and State's .. J ! .-'. 18 "Exhibit 4? 19 A. Yes, ma'am. 20 Q. Does that jog your memory?
21 A. Yes, I do. 22 Q. Do you recognize your name on there?
23 A. Yes, I do. 24 MS. TANNER: The State would offer State's 25 Exhibits 3 and 4. 97
1 (State's Exhibit Nos. 3 &4 offered. into 2 evidence.) 3 MR. OVERSTREET: No objection to State!s.Exhibit
4 ~umbers 3 and 4, your Honor.
.5 THE COURT: All right, they shall be admitted . 6 (State's Exhibit Nos. 3 & 4 admitted into 7 evidence;)
8 Q. ,.-- (By Ms. Tanner) Okay, State's Exhibit Number 3, hold r l. 9 on to that. 10 A. Okay. 11 Q. It reflects, does it not, that you were arrested for 12 OWl; correct?
"'1' .!, 13 ".--! A. Correct. _... J 14. Q. And that's what Mr. Keng was representing you on; 15 correct? 16 A. Correct. 17 Q. Who arrested you for the OWl? , .\ ~ .\ 18 A. Jimmy Fennell. 19 Q. And when did Jimmy Fennell arrest you for the OWl? 20 A. In 1997. 21 Q. In fact, he arrested you on November 5th of 1997, 22 didn't he? 23 A. Yes,he did. 24 Q. And Jimmy Fennell stopped your car; right? 25 A. Yes, he did. 98
1 Q. Arid he did field sobriety tests on you?
t : 2 A. Yes, he did. 3 Q. And he placed, handcuffs on you? . 4 A. Yes, he did. 5 Q: And he put you in his patrol car? 6 A. Yes,he did.
7 Q. And he'transported you to jail? 8 A. Yes, he did. 9 Q. And he put you in jail?
: { ,I 10 A. Yes, ma'am, he did. "'.J 11 Q. And you were charged with that offel)se? \ 12 A. Yes, ma'am. k.,. .,J 13 Q. And State's Exhibit Number 4 that we've admitted 14 reflects that in addition to that you were arrested for this I•.'.:] !-.J 15 DWl and he also charged you with a traffic ticket, failure to 16 maintain your proper lane; right? 17 A. Yes. 18 Q. And you were also charged with a warrant arrest for a 19 theft case; right? ! : ~ 20 A. Right. ",I 21 Q. And so he executed a warrant on you for another 22 offense? 23 A. I don't recall getting a warrant, they told me about
I i 24 it the next day when I went in front of a judge. ,j 25 Q. So the bottom line is, Jimmy Fennell placed you under 99
1 arrest for OWl, failure to maintain your lane, and a warrant on 2 November 5th of 1997; correct?- 3 A. Yes, ma'am. ! i 4 Q. And I imagine, Mrs. Barnett, you were none to happy 5 about that? 6 A; Yeah-, yeah, you can imagine that. , : ! [ 7 Q. Arid you probably did not want to have to face 8 criminal charges for OWl, did you? 9 A. 1 don't know if I wanted to or not.
-10 Q. You weren't happy about i~ though, were you?
\ . 11 A. I can't say that I was happy or unhappy. I 12 Q. Okay. Well, most people aren't happy with being 13 charged with OWl or other criminal offenses, are they? 14 A.lcan't speak for everybody. 15 Q. Okay. And it's your testimony that you didn't tell 16 your lawyer about this in all the -- you dldn't tell anyone 17 about this in all of 1996, did you? . i \ 18 A. About the OWl? .~
"! 19 Q. ! No. You didn't tell anyone in 1996 about what you j 20 say you saw on the morning of April 23rd of 1996; correct?
I I ··1, 21 A. Correct. 22 Q. And you didn't tell anybody in April of 1996, May, 23 June, October, November Oecember of 1996, did you? 24 -A. Not to my recollection. 25 Q. And you didn't tell anybody in 1997, did you?
,- - 100 A. Yes, I did, I spoke to my parents and my family about
Q. And then you told your lawyer in January of 1998? A. Yes, ma'am. Q. And that's sort of what got this whole ball rolling, 6 wasn't it, when you told your lawyer?
7 MR. OVERSTREET: I object, your Honor, it calls 8 for a conclusio~ on the part of the witness. What is this "got· 9 the whole ball rolling"? It calls for a conclusion on this (-- 10 witness's part that her affidavit 'got something started, and so LII • 11 we would object to it. 12 THE COURT: All right. And, Ms. Tanner, would
_-'.'. , 1,-"I 13 you clarify that for us. Thank you . L: J 14 Q. (By Ms. Tanner) You telling your lawyer, Mr. Keng, 15 about this is what ultimately led to you being here; right? 16 A. Ultimately, yes.
17 Q. Okay. And, iri fact, I noticed that your lawyer's 18 wife is the one that notarized your affidavit; correct? 19 A. Correct. 20 Q. Okay. And so you tell your lawyer in January of 1998 21 about this, and so you tell your lawyer about this for first 22 time, somebody outside of your family for the first time, right 23 afterJi mmy Fennell has charged you wi th a crfmt nal offense; 24 would you agree with that? 25 A. I agree with that, but Jimmy didn't charge me with 101 .
1 anything.
2 Q. He took you to jail didn't h~?
3 A. He arrested me but he didn't charge me~ 4 Q. He's the officer ·that placed you under arrest and he 5 was the officer that ultimately would have testified against 6 you in that case; correct? 7 A. Correct.
.8 Q. Okay. And that. happened just before you told your 9 . lawyer about what you say that you saw; correct? 10 A. Correct.
'. , 11 MS. ! TANNER: No further questions. ,-j 12 MR. OVERSTREET: I have just a few questions. 13 REDIRECT EXAMINATION 14 QUESTIONS BY MR. OVERSTREET:
15 Q. Now the prosecution, obviously, and you understand, :;) t~ying i 16 is to establish that maybe you have a motive for 17 claiming that it was Jimmy Fennell . Is it your testimony that 18 you told another person, your parents, that Jimmy Fennell was 19 the person you saw on the morning of April 23rd of 1996, long 20 before this arrest? -! l 21 A. Yes, sir.
1 22 Q. Well, j let me just ask you, do you think you were j 23 drunk when he stopped you? 24 A. Yes, I was drunk. 25 1 Q. Do you think that may have I some affect on your I J 102
1 inability to recognize hi~ on the night of your a~rest? 2 A., Yes, sir,: it did.
3 Q. I m~an, if you were in control of your mental and 4 physical-faculties he probably never would have arrested you 5 for driving while intoxicated, would he? 6 A. No, he wouldn't have. 7 Q. So the mere fact that he stopped you and you were 8 charged ~ith it is some indication that maybe they Were 9 impaired? i, 10 A. They were extremely impaired. , '
Ii 11 Q. Are you making up -- did you sign an affidavit or I 'I L,\' 12 tell your lawyer about Jimmy Fennell in some sort of response 13 for retaliating against him arresting 'you for a DWI? [,': 14 A. No, sir. 15 Q. Now a matter that was discussed on cross-examination, 16 I know what you said in your affidavit, but are you telling 17 this Court that you saw Jimmy Fennell's picture, wherever you 18 saw it, and that it was in some connection with Stacey's 19 disappearance and murder? 20 A. Sir, I don't recall that the picture in the paper 21 that I saw of him had anything to do with Stacey Stites. 22 Q. But you saw a picture of him? 23 A. Yes, I did. 24 Q. And the picture had his name?
25 A. Yes. 103
1 Q. And is that when you made the connection that is was 2 the person that.you saw that· morning?
3 A. Yes, sir. r I: 4 Q. I know some people find it hard to believe, but I
5 think there are a large number of folk who just don't read the
6 paper. Are you one of those individuals who don't necessarily
7 read the paper, .youknow, read it rel i gi ousl y every morning
8 before you leave?
9 A. No, sir, I don't subscribe to the paper but there's
] : I··.·' 10 always papers laying around and I pick them up and read them. i· .' r: 11 Q. And has the testimony that you have given today been LJ 12 the truth and the whole truth as you know it? 13 A. Yes, sir, it is.
14 MR. OVERSTREET: No further questions.
15 RECROSS EXAMINATION
\1 16 QUESTIONS'BY MS. TANNER: 11 \ : 17 Q. You told us already that you did take the Statesman? 18 A. Yes, ma'am, I bought it but I didn't have a 19 subscription to it.
20 Q. Now in your affidavit you made it very specific, you 21 saw his picture a couple of weeks after this happened, after 22 Stacey was killed, in the Giddings Times and News; right? 23 A. Correct.
24 Q. And it's not there, would you agree? 25 A. In those it's not there. - 104
1 Q. Now you also told this Court all about how you saw 2 arms waiving and-acting out-in some sort of-~ apparently-in· 3 some sort of violence, correct, on the morning of April-23rd of 4 1996? 5 A. Some sort of confrontation, yes, ma'am. 6 Q. That is also not in your affidavit, is it? 7 A. No, ma'am. 8 Q. According to your affidavit --
9 MS. TANNER: May I approach the witness? 10 THE COURT: Yes, ma'am.
r:~-l 11 Q. - (By Ms. Tanner) You just sai d that you saw Stacey j: )'i v , } 12 Stites and the man that you recognized as Jimmy Fennell fJ L·.! 13 standing in front of a red truck; right? [ ! 14 A. Yes, ma'am. 15 Q. Okay. And that was it, you didn't say anything about 16 any confrontation, did you? 17 A. No, ma'am. 18 Q. And this affidavit was sworn to as being the truth;
;., 19 right? 20 A. Yes, ma'am, I swore to it. 21 Q. And it's in your own handwriting; correct? 22 A. Yes, ma'am. 23 MS. TANNER: No further questions. 24 MR. OVERSTREET: Your Honor, we don't plan to 25 call the witness back and we would ask that the witness be 105
r r > I I I .' 1 excused, unless the State has any objections. 2 MS. TANNER: No objection. 3 THE COURT: All right, so you have no further r·' . i : 4 questions, is th~t correct, and you're asking that she be 5 released? Or just excused subject recall by telephone if 6 necessary; is that correct? 7 MR. OVERSTREET: Yes, that's okay. 8 THE COURT: Ma' am, if you' 11 make su re you 1eave 9 a phone number where if comes up we need you we will be able to 10 reach you. You may be excused. 11 (Witness excused from witness stand.) .12 THE COURT: All right, it is now seven minutes 13 after 12, believe it or not, we've been here all morning. 14 All right, it's the Court's intention at this , I.. ' 15 time to take a break so that everyone can get a bite of lunch 16 and then we'll come back in and start back up with evidence at 17 1 :30. Thank you very much. 18 (Luncheon Recess·.) 19 20 21 22 23 24 25 106
1 REPORTER I S CERTIFICATE 2 THE STATE OF TEXAS ) 3 COUNTY OF BASTROP ) ,.' 4 I, Carolee Murt~y, Official Court Reporter in and for the ..
r·: 11 court or in chambers and were reported by me. Lj 12 I further certify that this Reporter's Record of the 13 proceedings truly and correctly reflects the exhibits, if any, 14 admitted by the respective parties. 15 I further certify that the total cost for the preparation 16 of thi s Reporter I s Record is $ 2,2'1f?, 50 and was pai d by 17 Bastrop County for indigent applicant. 18 WITNESS MY OFFICIAL HAND this the 9th day of April, 2006. 19 20 if!tt~~ 21 Carolee Murray, Texas SR 1938 Expiration Date: 12/31/2006 22 Official Court Reporter 335th District Court 23 Bastrop County, Texas 282 Xaanapali Lane 24 Bastrop, Texas 78602-5530 TELE: (512) 581-4236 or (512) 321-2699 25 FAX: (512) 581-7139