•

RECEIVED IN.

COURT OF CRIMINAL APPEALS Sept.lt..,2015 SEP 16 2015 Abel Acosta Abel Acosta,' Clerk Clerk of the Texas Court of Criminal Appeals West 14th Street Austin, T~xas 78701 Chadrick Pate# 1563340 3060 FM 3514 Beaumont Texas 77705 Re: Emergency Motion for Permission to File Writ of Mandamus from a Void Final Felony Conviction with Emergency Writ of Mandamus frorri a Void Final Felony Judgment and Conviction included.

Dear Clerk, Enclosed you will find the original dopuments referenced above.

As my address indicates I am a inmate pro se filer.

I respectfully request that these proceedings be filed and submitted under em~rgency considerations under the Emergency Titles or which I have labeled them.

I also respectfully request that the Court consider the pleadings liberally and if need be consider the pleadings as an Or-iginal Ex Parte Habeas Corpus Proceeding only if the Court cai)Ilot provide expedious decision pursuant to my Writ of Mandamus.

Suspension of Rule: On a party's motion or on its own initiative an appellate court may - to expedite a decision or for other good cause -suspend a rule's operation in a particular case and order a different procedure; but a court must not construe this rule suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case.

Thank you for your kind consideration in this matter.

mgJa Chadrick Pate #\ 1563340 3060 FM 3514 Beaumont, Texas 77705

2.

IN THE TEXAS COURT OF CRIMINAL APPEALS, AUSTIN TEXAS

In Re: CHADRICK B. PATE# 01563340 REALTOR v. CAUSE NO. A-08-5080-4CR THE 36TH DISTRICT COURT ARANSAS COUNTY, TEXAS HONORABLE JANNA K. WHATLEY STATE OF TEXAS RECEIVED IN COURT OF CRIMINAL APPEALS RESPONDENT S£P 16 2015 AbeJ Acosta ' clerl( EMERC..E rJc.y MOTION FOR LEAVE TO FILE WRIT OF MANDAMUS FROM A VOID FINAL FELONY JUDGMENT AND CONVICTION AND EMERGENCY MOTION FOR RELIEF PURSUANT TO WRIT OF MANDAMUS FROM A VOID FINAL FELONY JUDGMENT AND CONVICTION

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Beaumont, Texas 77705 IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN TEXAS

In Re: CHADRICK PATE REALTOR v. CAUSE NO. A-08-5080-4CR THE 36TH DISTRICT COURT ARANSAS COUNTY, TEXAS HONORABLE JANNA K. WHATLEY STATE OF TEXAS RESPONDENTS

EMERGENCY MOTION FOR LEAVE TO FILE ORIGINAL WRIT OF MANDAMUS PURSUANT TO A VOID FINAL FELONY CONVICTION

To The Honorable Texas Court of Criminal Appeals, Comes Now, Realtor Chadrick B, Pate hereinafter referred to as Pate, proceeding pro se and respectfully request Emergency Relief for Motion For Leave To File Original Writ of Mandamus Pursuant To A Void Final Felony Conviction, filed with this Motion.

JURISDICTION This Court has jurisdiction of this proceeding pursuant to Texas Constitution Article 5 Section 5 of The Texas Constitution.

1.

Under exceptional circumstances, the court may deny the right to file a response and act on the motion any time after it is filed; Petition Practice before Texas Supreme Court 2008 Douglas W. Alexander and Lori Ellis Ploger.

Pate would show good cause and exceptional circumstances for emergency relief as follows: (1) Pate is entitled to the relief sought as a matter of law.

Pate filed the Writ of Mandamus pursuant to a Void Judgment and Conviction. The void statute calls for no discretion and no judicial decision , it mandates acquittal.

Mandamus will lie when a district court fails to observe a mandatory statutory provision conferring a right or forbidding a particular action. In these instances the trial . court's discretion is not invoked, and it's failure to comply with the mandatory provision renders it's order or judgment void. See: State Bar of Tex. v. Heard 603 SW 2d 829 Tx. Sup. Ct. 1980; Cline v. Niblo 117 Tex; 474 8 SW 2d 633.368.66 A.L.R. 916 Freeman on Judgments. 5th Ed. 354.

Pate has set out in his Writ of Mandamus a non exhaustive list of each of the violations of due process, abuses of discretion, and fraud upon the court by the court and it's officers used to illegally proceed to a trial and to render a void and illegal judgment and conviction and supported the abuses with an adequate record to establish the mandamus relief requested. See Walker v. Packer 827 S W 2d 833 837 (Tex. 1992); In Re Mata, No. 14-12-00460- CV Tx. App. 2012 and TRAP 52.3(k)(1) 52.7(a).

Therefore it is with respect and trust that Realtor Pate relies upon the judicial system to terminate the last more than Seven Years of the abuse of his liberty rights. Pate has 2. ...... -

professed his innocence from the very beginning of this ordeal and though not effectively due to his lack of knowledge of the law and financial resources he has never stopped looking to the judiciary to acquit him.

To force Pate to await a response from the same parties that are responsible for his illegal Judgment and Conviction and to await the response from this Honorable Court serves only to continue the abuse of Pate's substantial rights to his liberty and freedom from the State having brought an illegal indictment with no evidence to support the· indictment, his illegal incarceration, illegal trial and illegal Judgment and Conviction.

If the Honorable Court cannot make a decision for immediate Mandamus relief based upon the evidence supplied by Pate contained within his Writ of Mandamus, then Pate respectfully requests that if the court sees fit to allow a response from the Respondent and Interested Party then it would order an immediate response and that both the trial Judge Janna K. Whately and the District Attorney Michael Wellborn be recused from serving any such response and that a Special Judge be appointed to insure a fair and impartial response based only on the facts of the trial court record and any supporting facts offered by Pate. Not withstanding the serious conflict of interest that exists from any response from Judge Whatley or District Attorney Michael Wellborn, Judicial Cannon 2 prohibits the current District Attorney Michael Wellborn from any participation in t~e Mandamus Proceedings as·he was one of the presiding Pre Trial Judges over Pates trial, who had ex parte communications with the Prosecuting Attorney regarding Pate's trial defense and trial dates, and also 3. failed to provide a decision on Pate's properly filed Motion for Severance when a decision was requested. Judge Janna K. Whatley should be recused in accordance with Judical Cannon 2 as well as she was the presiding judge who among other abuses had ex parte communications and rendered and certified a fraudulent Judgment and Conviction into this Honorable Court. Canon 2 states: (A) A judge should respect and· comply with the law and should conduct himself or herself in a manner that promotes public confidence in the ·integrity and impartiality of the judiciary. (B). A judge should not allow family, social, or other relationships to influence his or her judicial conduct or judgment. Ajudge should not lend the prestige of his or her office to advance the private interests of himself or herself or others; nor should he or she convey or permit others to convey the impression that they are in a special position to influence him. or her. A judge should not testify voluntarily in an adjudicative proceeding as a character witness.

The Record provided by Pate in his Writ of Mandamus will reflect that .

Judge.Janna K. Whately was aware that the indictment was fatally defective rendering incomplete jurisdiction or authority over the matter of the offense of Murder charged and the personal authority over Pate and yet she allowed the State to bring Pate to trial and failed to excuse the jury and Pate upon that awareness. She further held ex parte communication in a pretrial hearing for the co defendant Christopher Hall and allowed the District Clerk to enter upon Pate's Criminal Docket Sheet that he had announced 4.

Ready for trial when in fact he was not before the Court at that proceeding was not aware of the proceeding at the time and did not announce Ready.

Judge Whately was also aware that Pate had a pending Motion for Severance before the pre trial court when she allowed the trial to go forward . She was also aware that at a pretrial hearing for the co defendant Christopher Hall that Judge Joel.Johnson had separated the trials of Pate and Hall and yet proceeded to a joint trial with Pate and Hall.

This same kind of abuse and violation of Pate's due process was continued throughout Pate's jury trial and the Record will reflect same. Once the Jury returned a Guilty verdict against Pate for which there was no evidence presented by the state for · conviction, Judge Whately did not order the jury to acquit Pate and instead rendered the illegally obtained Judgment and Conviction and certified and filed same fraudulent Judgment into both this Court, and the 13th Court of Appeals.

It will become evident upon the reading of the Writ of Mandamus that under the facts and law applicable to Pate's Jury Trial Case# A-08-5080-4CR presided over by the Respondent Janna K. Whately that she lost jurisdiction to proceed to trial and had no authority to enter a Judgment and Conviction but rather her only authorization was to order the jury to acquit and or order the ·dismissal of the indictment and the jury.

Judge Whately had no discretion to continue to a trial,.or a Judgment and Conviction or to enter a Fraudulent Judgment of Proceedings and certify them to the Courts of Appeals.

Because Judge Whately and Officer's of the Court violated Pate's Constitutional Due 5.

Process rights under both the U. S. and Texas Constitutions and because She and Officer's of the Court participated in a fraudulent scheme to illegally convict Pate her .· only authorization was a ministerial act and not discretionary to Order an Acquittal, Dismiss the Indictment , Pate and the Jury.

Because the Judgment rendered and entered by Judge Janna Whately is Void, it is a ministerial act of this court to issue the relief sought in this Motion and The Writ of Mandamus. See Void Judgment Bill of Review and Procedural Due Process in Texas, 40 Baylor L. Rev. 367, 378-79 (1988) See Thomas, 906 S W 2d at 262 (holding that trial court has not only power but duty t~ vacate a void judgment) A judgment is void only when it is clear that the court rendering judgment ~ad no jurisdiction to render judgment or no capacity to act as a court. When appeal' is taken from a void judgment, the appellate court must declare the judgment void. Pate's right to be ~eard, notice and a fair and impartial trial are demanded by Johnson v. Zerbst 304 U.S. 458 Supreme Court 1938 showing: If the constitutional rights of the defendant are not complied with the court no longer has jurisdiction to proceed and one imprisoned thereunder may obtain release. See also: 15 Tex. Jur 2d 50 pp 475-477 showing: judicial action without jurisdiction is void; where the court is without jurisdiction it has no authority to render any judgment other than one of dismissal.

Garcia v. Dial 596 S W 2d 524 Tex. Court of Criminal Appeals.

This Court found the following in Garcia v. Dial 596 S W 2d 524 Tex. Court of Criminal Appeals; The only proper order that the trial court judge could enter was 6. that of dismissing the indictment because the judge had issued a Void Order reinstating the indictment after he had lost jurisdiction. This Court granted the Motion for Mandamus and issued an order to the Judge to Set Aside the void order and to dismiss the cause.

Pate's circumstances are similar but the violations by his Trial Court are extensive, it is not simply an Order that is void. It is a Judgment of Conviction that is void. A Judgment under which Pate has been illegally imprisoned for over 7 years. A void and fraudulent judgment of the proceedings. Not only did the trial court violate Pate's due process rights at his jury trial, Judge Whately submitted a Fraudulent Judgment with fraudulent ' proceedings and failed to include legitimate proceedings upon which The 13th Court of Appeals relied to determine and deny his appeal. It was that same record that this court would rely when denying Pate's Writ of Habeas Corpus.

The Supreme Court, speaking through Folley, Commissioner, in Bridgman v. Moore, 143 Tex. 250, 183 S. W.2d 705, at page 707, said: "The .court has not only the power but the duty to vacate the inadvertent entry of a void judgment at any time, either during the term or after the term, with or without a motion therefore." We will not extend this discussion further than to state that we here reaffirm the holding on the point involved as announced by Justice Hightower in the former appeal (301 S.W.2d 181). While this holding was premature in view of the action of the Supreme Court (304.S.W.2d 265) reversing our holding, it was not upon the points discussed in Justice Hightower's opinion, but was on the point that since the judgment appealed from was an interlocutory one and not final, the appeal should be dismissed. However, we think our holding then is now appropriate. A void judgment has been termed mere waste paper, an absolute nullity; and all acts performed under it are also nullities Because the Trial Court Judgment is void both The 13th Court of Appeals Judgment and this Courts Judgments are also void.

Pate has supported all of the complaints of the violations of his due process rights, the 7. trial court's fraud on the court and on Pate, the illegal proceedings and concealment of them and the Fraudulent Certified Proceedings to the Courts of Appeals by competent evidence from the Record bf the trial Court. It is readilyapparent upon the face of the Record that the Judgment in cause no. A-08-5080-4CR for which Pate is illegally convicted and imprisoned is Void. See Where a void judgment has been rendered and the record in the cause, or judgment roll, reflects the vice then the court has not only the power but the duty and even after the expiration of the term to set aside such judgment.

Harrison v. Whiteley, Tex./com App. 6 S W 2d 89.

Any delay in deciding this Motion for Leave To File Emergency Motion for Mandamus continues the violation of Pate's due process to his liberty.

8.

PRAYER Where ore premises considered, Realtor Chadrick B. Pate prays for Emergency Mand mus Relief frqm each and singular of all issues presented in this Emergency Motio for Relief and the simultaneously filed Writ of Mandamus.

Those issues include immediate decision on Pate's Writ of Mandamus, recusal of Judge . Whately and District Attorney Michael Wellborn from filing a Response and onorable Court is unable to provide the relief requested based on the competent evide ce supplied by Pate in The Writ of Mandamus that a Special Magistrate be appoi ted for a proper impartial response.

Also at this Honorable Court issue Immediate Orders Reversing The Trial Courts illegal Judgment of Conviction, Dismiss Indictment , Issue Immediate Order of Acqui al and an Order to immediately Discharge Pate from his illegal incarceration in the cu todyofThe Texas Department of Criminal Justice, and any other relief that this Honor ble Court finds that is legally due and available to Pate.

R:specVJ;ubmitted, Realtor Cha rtc ate pro se #1563340 3060 FM 3514 Beaumont, Texas 77705 CERTIFICATE OF SERVICE I. Chadrick Pate hereby certify and swear under penalty of perjury that a true and correct copy of the foregoing Realtor's Writ of Mandamus from A Void Final Felony Judgment and Conviction and Emergency Motion was mailed to The District Attorney for Aransas County, Texas and to Honorable Janna K. Whatley, Judge 36th District Court Aransas County, on the 1&-Inday of Sept , 2015. The Original Writ of Mandamus from a Void Final Felony Judgment and Conviction and Emergency Motion will be hand delivered by Nema Bardin who is my Power of Attorney on or about the Jt..~ay of Sept. 2015.

Realtor Chadrick Pate #1563340 3060 FM3514 Beaumont,Texas 77705 CERTIFICATION Trap 52.3 I, Chadrick Pate do hereby certify under penalty of perjury that the foregoing Writ of Mandamus from a Void Judgment and Conviction and Emergency Motion that each and every factual statement in this petition is supported by competent evidence in the appendix or the record. ~ fak Realtor Chadrick Pate pro se #1566340 3060 FM 3514 Beaumont, Texas 77705 NOTARIZED CERTIFICATION State of Texas : ··· ~ County of 0t.-£MuY\ Chadrick Pate # 1563340, personally appeared before me, and being first duly sworn declared that, he/she signed this application in the capacity designated, if any, and further states that he/she has read the above application and the statements there in contained are true. ~ . lP h·Q~ ~t!R._ Notary Public

STEPHANIE LUTE Notary Public, State of Te~~s · My Commission Expir!='S . 03/03/2018 Notary without Bond THE COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

ALTORPROSE C ADRICK PATE #1563340 OFM3514 B AUMONT, TEXAS 77705

In R: FROM CAUSE NO. A-08-5080-4CR4CR CH RICK B PATE #01563340 THE DISTRICT COURT 36TH JUDI CAL REALTOR DISTRICT ARANSAS COUNTY, TEXAS vs. JAN AK. WHATELYTRIALJUDGE STA: E OF TEXAS REALTOR'S OATH OTION FOR LEAVE TO FILE WRIT OF MANDAMUS FROM A VOID INAL FELONY JUDGMENT AND CONVICTION AND EMERGENCY M TION FOR RELIEF PURSUANT TO WRIT OF MANDAMUS FROM A VOID FINAL FELONY JUDGMENT AND CONVICTION

STAT OF TEXAS COU TY OF JEFFERSON I CH DRICK PATE# 1563340, being duly sworn, under oath says" I am the RE OR in this matter and I know the contents of the above "MOTION FOR LEAVE TO FI E WRIT OF MANDAMUS FROM A VOID FINAL FELONY JUDGMENT AND ONVICTION AND EMERGENCY MOTION FOR RELIEF PURSUANT TO WIRT OF MANDAMUS FROM A VOID FINAL FELONY JUDGMENT AND ~- ICTION. , and according to my belief, the f~X'C'c(,bruments are Chadrick Pate #156~340

Subsc "bed and Sworn To Before me on, the <l~ay of Sept., 2015.

N STEPHANIE LUTE Notary Public, State of Texas My commission Exp,res 03/03/2018

\l.

IN THE TEXAS COURT OF CRIMINAL APPEALS, AUSTIN TEXAS

In Re: CHADRICK B. PATE #1563340 REALTOR v. CAUSE NO. A-08-5080-4CR THE 36TH DISTRICT COURJ' ARANSAS COUNTY, TEXAS HONORABLE JANNA K. WHATLEY STATE OF TEXAS RESPONDENT

Fl''\ f r~ G.~ rJ c_ 1 WRIT OF MANDAMUS FROM A VOID FINAL FELONY JUDGMENT AND CONVICTION

ir!pectf~lly SQJ;;ed, ~e 3060FM3514 prose #1563340 Beaumont, Texas 77705 IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS TRAP RULE 52.3 IDENITY OF PARTIES AND COUNSEL EMERGENCY WRIT OF MANDAMUS

REALTOR: Chadrick Pate pro se #1563340 3060FM3514 Bea~mont, Texas 77705

ATTORNEYFORTHESTATE Arahsas County District Attorney PO Box 1393 Sinton, Texas 78387 361-364-6220 TRIAL COURT Honorable Janna K. Whately Judge Presiding 36th District Court Aransas County 361-3646220

11.

TABLE OF CONTENTS Identity of Parties and Counsel ..................................................................................... 11

Table of Contents ... . .III-XVI ···········································································~····················

Index of Authorities..•.....•.•.....••....•....................••.....•.•...•.............•......................... iv,v,vii Statement of The Case ... ..... ••••••••••••••••••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••• VIII-VIllll . d.IC t•IOD ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• J UriS . X

Issues Presented .................•.....•.....•...•.•...•...•.....................••.....•...•..•..•••......•.............. xi Statement of Facts ...........•••.....••........••....•.....••....•.....•.....•...•.•........•........•.....•............ l-11 Argument and Authorities .....•.•...•.•...•...........•..••......•.........•.••.....•...•...............•........ ll-42 Co ncl usi o n .......................................•...•.•...•.....•...••..•...............•.•...•....••.....•.•.•....... ~ ......... 4 2 Prayer.....................••......•..............•........•......•......••••••••.....•.........•.........•.......•.....•..••.•...... 43 Certificate of Service ........•.••..•..•.•..•.••••.••.•..••••.....•..................••.•....•....................•......... xii C erti·r.IC8 t•IOD ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• XIII ...

Certificate of Compliance.....•.................•....••..•....•.......•...•.....••..........•......................... xiv Append ix....•........ -................................•...................•.....•..........•....•..............•.......... xv-xvi Record With 1-9 Certified Exhibits ..•.......•.••....•.....•................•....••.............••....•.•......xvi

Ill IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN,TEXAS

INDEX OF AUTHORITIES Adderley v. Florida. 3 85 U. S.39 ....... ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,29 Almanza v. State 645 S W 2d 885 Tex. App,-Ft. Worth 1983 ,,,,,,,,,,,,,,,,,,,,,22 Aoude v. Mobil Oil Corporation 892 F 2d 1115,1118 (1st Cir. 1989) ............................ .44 Aguilar v. State, 26 S.W 3d 901,909 (Tex.Crim.App. 2000) ....................................... ,,31 Boddie v. Connecticut. 401 U. S. 3 71, 3 773 79 ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,21 Browning v. Prostock, 1.65 S.W. 3D 336 (Tex 2005) ................................................. .43,46 Bulloch v. United States, 763 F.2d 1115, 1118 (1Oth Cir. 1985)(enbanc),,,,,,,,,,,,41 Burks v. State 876 S W 2d 877 Tex Cr. App94,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ... 15 Cantu v. State 939 S W 2d 627,633 Tx. Crim. App Carter v. Fenner 136 F 3d 1000, 1005 (5th Cir. 1998) ........................................................ 11 Caraway v. State v. State 550 S W 2d699Tx CrimApp.1977 ........................................ 29 Cole v. Arkansas, 333 U. S. 196, 201 ............................................................................ 26 Ex rel. Curry v. Gray 726 S W 2d 125 Tex Court Crim(1987) ........................................ 13 Davis v. Boone 786 S W 2d 85,87 (Tx. App. 1990) .......................................................... 12 Deck v. Missouri 544 U.S.622 ............................................................................... 37 Dikeman v. Snell 490 S W 2d 183 186 Tex 1973 ............................................................ 12 Douglas v. Buder, 412 U. S.43.: ........................................................... ,........................... 27 IV.

In re EP 185 S. W. 3d 908 (Tex. App.-Austin 2006) .............................. 32,33,36,37,40,42 Fa.y v. Noia 372 US 391 Supreme Ct. 1963 .................................................................... 11 Gregorgy v. Chicago 394.U.S.lll .................................................... ~················.··············21 Glunz v Hernandez 908 S W 2d 255 ................................................................................ 12 Haley 113 S W 3d 810 ..................................................................................................... 21 Hall v. State 225 3d 524 (2007) .................................................................................... 27 Hovey v. Elliot_ 167 U. S.409 .416-420 ........................................................................................... 12 _Hughes v. State, 673 SW 2d 654 Tex: Court of Appeals, 3rct Dist.1984 ......................... 27 Irving v. State 879 S W 2d 20 ......................................................................................... 42 Jackson v. Virginia, 443 US 307- Supreme Court1979 .................... ,,,,,,,,, ... 21,26,35 Johnson v. Zerbst 304 U.S. 458 SupremeCourt................................... .31,34,35,37,38,40 King Ranch v; Chapman, 118 S W 3d 742,752(Tex.003) .......................................... 31.38 Louis v. State 825 S W 2d 752, 757 Tex. App Houston 14th Dist. 1992 Malik v. State 953 S.W. 2D 234, 240Tex.Crim.97 ................................................. 22,23.24 Messenger v. State 638 S.W.2d 883 (Tex. Cr. App. 1982) ................................................ 22 Montgomery, 669 S. W. 2d at 313 Browning 165 S.W. 3D at 348 ................................. .42 Morales v. State 466 S W 2d 293 296 Tex. Crim. App 1971. .......................................... 31 In Re Padilla v. McDaniel122 S W 3d 805 807 Tx Crim. 2003 ..................................... 5 Planter v 9 S W 3d156 ........................................................................................... 16,23,24 Presnell v. Georgia, 439 U. S. 14 ..................................................................................... 26 Qualley v. State 151 S W 3d 655 Tx. Ct. App1h.Dist ....................................................... 31 In Re Roger Keeling 227 S W 3d 391 Tex2007 ............................................................... 11 Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (lOth Cir. 1995), cert. denied, 516 U.S. 1045 (1996) ................................................. .41 Smith v. Flack 728 S W 2d 788-789 ................................................................................. 12 Southwestern Bell Telephone Company 355 SW 3d@ 605 ...................... ~ .................... 12 Seidel2 S W 3d 524 (1999) 39 S W 3d 221 Tx. Crim. App. (2001) ................................ 28 Silva v. State 933 S W 2d 715 718-19 TexApp SanAntonio1996 .................................. 31 Thompson v. Louisville ... ~································································································27 Vachon v. New Hampshire, 414 US 47 ....... ;.................................................................. 27 Vela v. Maryland 17 S W 3d 750 .................................................................. 32,33,36,37,40 Wesbrook v. State 29 S W 3d 750 ............................................................................... 32,37 In Re: Winship, 397 U.S.35 ............................................................................................ ,.21 . TEXAS AND UNITED STATES CONSTITUTION Texas Constitution Article v,6 ............................................................................... ,.........vii v. Texas Constitutional Rights Article 1 and 10 ............................................................... vii,x U.S. Constitutional Rights Amendments 1,5,6 and ............................................ viii,x,4,41 AMERICAN BAR ASSOCIATION CRIMINAL JUSTICE STANDARDS ABA Criminal Justice Standard3.5,3 ......................................................................... .31,38 ABA Criminal Justice Standard 6.1.3 .................................................................. 27,32,38 ABA Criminal Justice Standard 6.1.1 ........................................................................ 27,32 GOVERNMENT CODES Government Code 22.221(b)(1) .... :................................................................................. vii.

Government Code Sec. 51.303 ......................................................................................... 29 TEXAS PENAL CODES Texas Penal Code 6.02 ................................................................................................ 20,21 Texas Penal Code7.01 ................................................................................................. 20,42 Texas Penal Code 7.02 ..........................................................• :................................... 20,42 Texas Penal Code 19.02 ............................................................................................ viii, 19 Texas Penal Code 22.02 ................................................................................................. viii.

Texas Penal Code 37.10 ....................................... ~ ................................................ 33,38, 40 Texas Penal Code 71.02 ................................................................................................ viiii TEXAS CODE CIVIL PROCEDURE TCCP 1.05 ................................................................................................................. ,34,41 TCCP 1.24 .......................................................................................................................... .

TCCP 2.01 ........................................................................................................................ 28 TCCP 247 ........................................................................................................... ;............. 34 TEXAS CODE CRIMINAL PROCEDURE T.CCP.21.15 ..........................................................•........................................................... 28 TCCP 21.03 ................................ ·...................................................................................... 28 ·TCCP 28.01 ................................................................................................................ 34,41 TCCP 32.02 ........................................................................................................................ .

TCCP 36.03·.:.................................................................................................................. ,.35 TCCP 36.09 ............................................................................................................. 30,31,3,6 TEXASRULESAPPELLATEPROCEDURE .

VI.

TRAP 52.3(a)ii (b )iii-xvi .(c )iv,v,viii (d)viii-viiii (e)x (f)xi (g)l-11 (h)ll-42 (i)43 U)xiii (k)( 2) xiv-xvi TRAP 52.7(1)(2) xvi TEXAS RULES OF EVIDENCE 36.03 ................................................................................................................................. 39

JUDICIAL CODES Canon 1............................................................................................................................ 34 Canon 2 ............................................................................................................................ 34

..

VII STATEMENT OF THE CASE Pate was charged by an Aransas County, Texas Grand Jury with 4 others in a joint two count indictment returned on 6/24/08 with Murder pursuant to Texas Penal Code 19.02 (Count 1) Aggravated Assault Texas Penal Code 22.02 & 71.02 Engaging in Organized Criminal Activity (Count 11). In a 4 day Joint Jury trial that started on February 9th 2009 in Cause No. A-08-5080-4CR a Jury found Pate Guilty of the offense of Murder as charged in the indictment on February 12th 2009. On February 13th 2009 the jury returned a punishment of 99 years or life and a $10,000 fine.

The Jury Trial was presided over by the Respondent Judge Janna K. Whately in the 36th District Court of Aransas County Texas.

Judge Janna K. Whately abused her discretion and ·authority when she violated Pate's U.

S. and Texas Constitutional rights to due process of law, right to be heard, notice and a fair arid impartial trial and because these constitutional mandates were not complied witJ;l, ...:the.'ttial court lost jurisdiction to proceed to a conviction and sentence. Pate's Judgmedt~\Con\riction and Sentence are Void for violation ofhis First, Fifth Sixth and Fourteenth U.S. Constitutional Amendment Rights and for the violation of his Texas ConstitUtional Article 1 and 10 rights.

Among other things that will be offered as evidence from the Court Record in this proceeding, Judge Whately did not instruct the Jury to Acquit when the State did not prove that Pate committed Murder as alleged in the indictment. She proceeded to tria~ Vll. while Pate's timely pre trial Motion for Severance was still pending and Pate was not before the Court or the Jury for adjudication. She suppressed the status of the Motion for Severance from the jury and Pate. She failed to hold a hearing with Pate's presence and provide an opportunity for him to be heard on his timely and properly filed Motion for Severance , and provide findings of fact, and failed to provide a court order denying or granting his Motion for Severance. She Suppressed Pat~'s Court Ordered Separate Jury Trial Date of 11/03/08. She suppressed ex parte hearings without Pate's presence, knowledge or permission and discussed his case. She told the trial court jury that the Defense had to disprove the conduct of knowingly and intentionally in the alleged offense. She failed to admonish and correct the State for telling the Jury that the indictment alleged that Pate acted alone "or together and not alone "and together," -,.

She suppressed the fact that there was no Motion, Court Order,Hearing or Findings of Fact for forcing Pate to wear "leg restraints'. She suppressed the fact that fraudulent entries of proceedings were entered by the Clerk of the Court onto Pate's Criminal Docket Sheet and that the Clerk did not enter legitimate proceedings.

She suppressed the fact that there was no Motion or Order for not permitting Pate's Mother to be present at Pate's public trial.

She filed a Fraudulent Certified Record of the Proceedings and Judgment into the Col}rts of Appeals. It. is from each of these violations that the Judgment, Conviction and Sentence are Void and from which Pate seeks and is entitled . '.'~ to Mandamus . ,- '~~~- relief . '\\\' .

V111.

STATEMENT OF JURISDICTION

Pate Invokes this Honorable Courts Jurisdiction pursuant to the Texas Constitution Article V.5 and Government Code 22.221(b)(l), and pursuant to this Court's inherent power.

X ISSUES PRESENTED Pate's Judgment, Conviction and Sentence are Void and any proceeding or court order pursuant to said Judgment Conviction and Sentence are also Void.

Not only is Pate Actually Innocent of the offense for which the Jury found him guilty.

The Trial Court Lost Jurisdiction to Proceed and to continue to Trial for Violations of Pate's Texas Constitutional Rights Article 1 and 10 and U. S. Constitutional Rights Amendments 1,5,6, and 14.

Judge Whately's actions by Negligent Misrepresentation, Concealment and Participation in a fraudulent scheme of extrinsic fraud with The State and other officers of the Court her Bias toward Pate, and structural errors violated Pate's U. S. 1st 5th 61h and 14th Constitutional Amendment Rights and his Texas Constitutional Rights pursuant to Article 1 and 10 causing the Trial Court to lose Jurisdiction leaving her with no authority to proceed or to continue a trial,.enter a Judgment, Sentence and Conviction and then to enter a Certified Fraudulent Record of Proceedings to the Courts of Appeals. The Ju<:fgment Conviction and Sentence are Void as a Matter of Law.

XI STATEMENT OF THE FACTS

The following facts are all contained in the Record Exhibits and the Appendix.

A.

Judge Whately participated with The State, Pate's Defense Attorney, Judge Well born, Stan Trupin and the District Clerk all Officer's of the court in a scheme of extrinsic fraud to illegally convict Pate for an offense he did not commit and once she entered the Judgment Sentence and Conviction she then entered a fraudulent certified record to the Court's of Appeals, that denied Pate once again to be properly heard on his Appellant issues.

Judge Whately did not instruct the Jury to Acquit when the State did not prove that Pate committed Murder as ,alleged in the indictment and she did not dismiss the indictment when there was no evidence to bring the indictment.. See Record Exhibits 1-9.

Pate is actually innocent of the offense for which he was found guilty and the indictment did not support the jury charge. When the accomplice witness testimony is removed from the evidence that the State brought against Pate, and only the evidence from the testimony of non accomplice is considered, there is not even evidence of an offense.

B.

Judge Whately, with the full knowledge of The State, Pate's Defense AttQrnyy, Judge . \ql\ Well born and the District Clerk knowing that Pate's pre trial properly filed Motion for Severance was still pending proceeded to trial , and each of them ~owing that Pate 1. was not jurisdictionaly before the Court or the Jury for adjudication.

See Record Exhibit# 1 Clerk's Record vo11 of 1 page 1listing Pate's Motion and page 36 Written Motion. Also See Exhibit Record # 1 page 1listing Order on Motion ·for Severance and see page 45 a document that purports to be a proceeding and document that _Grants Pate's Severance Motion, then see Appendix Exhibit # 6 Judge Well born's Post Conviction Letter indicating that he signed the Order by Mistake, and See Appendix Record # 8 Investigator Stacey Deville's certified Affidavit that Pam Heard the District Clerk, called the Motion for Severance just a piece of paper in the file. Then see Record Exhibits 1-9 Trial Court that demonstrates the joint trial of Pate with the Co Defendant and no record reflecting a hearing, order, or factual findings, but see Record Exhibit # 3 RR vol 2 of 9 where the defense attorney requests an answer on the motion and Judge Wellborn continues the Motion for Severance to 10/03/08 and then see the trial court Record Exhibit# 1 Clerk"s Record vol1 of 1 pages 1,2, and 3 showing no certified Judgment Proceeding where Pate never receives a hearing on his Motion either that date or any date.

She did not admonish Pate's Defense Attorney when he lied and told the Jury veniremen that he was being forced to have the joint trial with the co defendant. See Record Exhibit #5 vol 4 of 9 page 102 lines 6-25. Pate's attorney also lied to him aqd told him that the Motion had been denied See Appendix Exhi~it #9 Nema :aardin's · affidavit.

2.

The Trial Court Record file is available to all ·Pre Trial and Trial Court Judges and Judge Janna Whately and Judge Wellborn both knew that or should have known that the Motion for Severance was still pending and that Judge Johnson had separated Pates trial from the co defendant and there is nothing in the record that indicates that she took notice and advised Pate or his Defense Attorney that the Motion had received no Decision thus she concealed the Status of Pates Motion from him and the Trial Jury and proceeded to trial without authority to do so. She failed to hold a hearing with Pate's presence and provide an opportunity for him to be heard on his timely and properly filed Motion for Severance , and provide .findings of fact, and failed to provide a court order denying or granting his Motion for Severance.

c.

She, The State, Pate's 'Defense Attorney and the District Clerk Suppressed Pate's Court Ordered Separate Jury Trial Date of 11103/08, See Record Exhibit # 3 RR vol 2 of 9 pages 1&3 where Judge Wellborn ordered Pates trial date to 11/03/08 and see Appendix Exhibit # 1 RR vol 4 of 11 pages 3-6 where Judge Johnson separate? the co defendant"s trial date from that of Pate, denied the State's Oral Motion to keep the trials joined and told the Defense and State that he would be back in November to preside over Pate's Jury Trial.

D.

She , Judge Well born, The State and other Officer's of the Court suppressed apd held and had knowledge of both Judge Whately and Jlldge Wellborn·~ ex pa,rte heflrings without Pate's presence, knowledge or permission anp discussed his case. See 3. ~ '· Appendix Exhibit # 3 RR vol 5A of 11 pages 1-11,showing that Pate was not present. Pate's name or cause number was not called at the proceeding, that the State did not announce READY on Pate and Pate's Defense Attorney did not announce ready on Pate, and where the only question asked of Pate's Defense Attorney was " who will do punishment". Then See Judge Wellborn's ex parte hearing Appendix Exhibit# 2 RR vol 5 of 11 pages 3-7 showing that Pate was not present, not before the court, and · had no opportunity to be heard and where the State, the Co defendant's attorney and Judge Wellborn discussed at length Pate's pre trial defense motion, his defense attorney's status and opinions and Pate's trial dates. Then See Record Exhibit# 3 vol.

2 of 9 showing Pate was not present, had no opportunity to be heard or notice that his Motion for Severance was discussed or that his new trial date had been set to 11103/08 and Pate's attorney did not inform him of any such actions of the court or orders.

E.

She told the trial court jury that the Defense had to disprove the conduct of knowingly and intentionally in the· alleged offense and both the State and Pate's Defense attorney stayed silent. See Record Exhibit # 5 RR vol 4 of 9 page 28 lines 5-19 .

F.

She told the jury that the reason the defendants were being tried together was because the State had the right because they were the one's bringing the case and both The State and Pate's defense attorney stayed silent. See Record Exhibit # 6 RR vol 5 of page 3 lines 16-20 G.

She failed to admonish and correct the State for telling the Jury that the 4. indictment alleged that Pate acted alone "or together and not alone "and together," See Record Exhibit# 6 RR vol 5 of 9 pages 11&12 lines 8,9 and 15 on page 12 .

H.

She, The State, and Pate's defense attorney suppressed the fact that there was no Motion, Court Order,Hearing or Findings of Fact for forcing Pate to wear "leg restraints'.See Record Exhibit# 1 Clerk's Record pages 1-3 showing no Motion Order or Proceeding with factual findings listed there or included in the Certified ' Proceedings. See Also Appendix Exhibit# 10 }»ate's Affidavit regarding the leg restraints, and See Record Exhibit # 9 RR vol6 of 9 page 259-261 showing someone in the Arena announcing that Pate was in jail because she could see his leg restraints.

I.

She suppressed the fact that fraudulent entries of proceedings were entered by the Clerk of the Court onto Pate's Criminal Docket Sheet and that the Clerk did not enter legitimate proceedings. See Record Exhibit# 1 Clerk's Record vol1 of 1 pages 94.95, Pate's Criminal Docket Sheet showing fraudulent entries on the dates of 9/25/08 States Motion for Continuance Granted, 10/30/08 DX Motion for Cont Reset, JT set to 1/5/09 Ann. To 12/22/08. Then 12/22/08 Reset to Jt/ Feb. 9, 2009, Ann. To 2/5/09, Then 2/5/09 All R. Then See Record Exhibit #1 Clerk's Record Vol.1 of 1 pages 1-3 where there is No Order Granting the State's Motion listed for 9/25/08, No Defendant's Motion for Continuance or any Order for Reset of Trial Date to 115/09 or announcem~nt ''· for 12/22/09 or Reset Trial Date of2/9/09 or Reset Announcement V\ date of2/5/09listed . or contained in the Certified Record of Proceeding.

5.

J.

Regarding the legitimate proceedings that the clerk did not enter onto Pate's Criminal Docket sheet or into the Certified Judgment Record of Proceedings. Pate's Motion for Severance was not entered onto his Criminal Docket Sheet See Record Exhibit # 1 Clerk's Record vol1 of 1 pages 94, 95, and 96, however the proceeding was entered into the certified record of proceedings. See Record Exhibit # 3 RR vol2 of 9 page 3 lines 9-25 and page 4 lines1-4 Judge Well born's Oral Order to Continue the Matter of the Severance to 10/3/08 was not properly turned into a Written Order nor entered onto Pates Criminal Docket Sheet and was not listed as a proceeding/Order in the Certified Proceedings Judgment Record, See Record Exhibit# 1 Clerk's Record vol of 1 pages 1.2, and 3~ See Record Exhibit # 4 RR vol 3 of 9 page 33 line 6 Judge Johnson's Oral Order Denying Pate's Motion to Dismiss was not entered onto Pate's Criminal Docket Sheet not properly turned into a Written Order or entered into the certified Judgment Proceedings. See Record Exhibit# 1 Clerk's Record vol. 1 of 1 pages 1.2, and 3 and pages 94, 95, and 96. See Appendix Exhibit # 4 RR vol 4 of 11 page 5lines 16-25 Judge Johnson's Oral Orders Separating Pate's Trial from the Co defendant's Trial The State's Oral M<?tion to keep the Trials Joined and Judge Johnson's Oral Order Denying .the State's Motion to keep the Trials Joined were not entered onto Pate's Criminal Docket Sheet, and were not properly turned into Written ()rders and .·::.c : . · . ·I . ::\.~:· (

were not certified in the Certified Judgment Proceedings See. ~ecord ExhiBit ~ \ ':~..

Clerk's Record vol. 1 of 1 pages 1,2, and 3. See Appendi~ E~hibit # 3 RR vol5A of 6.

11 this proceeding a pre trial hearing on 2/5/09 for co defendant Hall was suppressed and concealed, not entered onto Hall's Criminal Docket Sheet and not entered into the Certified Judgment Proceedings in Hall's Cause. See Appendix Exhibit# 4 Hall's Criminal Docket Sheet, and Appendix Exhibit# 5 Hall's Judgment Index Sheet of the Certified Proceedings no such proceeding is listed there. This proceeding also under the Reporter's Record shows an out of sequence Record Number and a different .

Cause Number SA of 11 and S-08-5080-2. This proceeding was held 4 days prior to the trial date. This is the same purported proceeding where the District Clerk entered a fraudulent entry onto Pate's Criminal Docket Sheet purporting that he had announced Ready for Trial.

K.

She suppressed the fact that there was no Motion by any Party or Court Order for not permitting Pate's Mother to be present at Pate's public trial and the State and Pate's defense attorney stayed silent about it.. The Trial Court Record reflects no Motion or Order of any such proceeding, however See Record Exhibit # 6 RR vol 5 of 9 page 9line 24-25 page 60 lines 1-25 and page 61lines 1 -25 and page 62 lines 1-6 where Pate's Mom is admonished first by the Assistant District Attorney Retha Cable (who Pate's Mom did not know was a Prosecutor) and then by Judge Whately that she is not to be in the court room or talk to anyone regarding the trial.

L. 1 She, with the cooperation of the District Clerk filed a Fraudulent Certified Record of the Proceedings and Judgment into the Courts of Appeals. The following are those 7. proceedings that she certified that were fraudulent (1) See Record Exhibit# 1 Clerk's Record vol1 of 1 page 91 showing that the State in the interest of Justice determined not to proceed with Count Tw<? of the indictment and said count was hereby dismissed. A simple review of the trial court record reveals this not to be true. (2) See Exhibit# 1 Clerk's Record vol1 of 1 pages 1, 2, and 3 showing no such proceeding was had, and see pages 62-71 excerpts of the Jury Charge describing Count Two and see page 73 the Verdict Form describing Count Two and see Record Exhibit # 5 RR vol4 of9 page 71ines 24-25 page 81ines 1-25 and page 81ines 1-25 page 91ines 1-4, where Retha Cable reads the Indictment to Pate and the Jury. (3) See Record Exhibit# Clerk's Record vo11 of 1 page 91 where the courtfinds that the defendant used or exhibited a deadly weapon. The Certified Judgment Proceedings show no Hearing or Order for any such proceeding and if there was any such proceeding it was not held in the presence ofPate, and the Jury found no such Special Findings (4) See Record Exhibit# 1 Clerk's Record vo11 of 1 page 1 showing Order on Motion for Severance then see Written Order page 45 Order signed by Judge Wellborn, then see Appendix Exhibit# 6 Judge Wellborn's letter stating that he signed the Order by mistake. (5) See Record Exhibit # 1 Clerks Record vol1 of 1 page 2 listing Court's Docket Sheet then see pages 94, 95 and 96 showing proceedings listed under the dates of 9/25/08 10/30/08, 12/22/08, and 2/05/09 Th(\\~riminal Docket • 't ..

Sheet itself is fraudulent for listing the fraudulent proceedings u~~those dates and 8. there are no proceedings for those dates on the Clerk's Record or listed on SEE Record Exhibit # 2 Master Index listing no such proceedings.

The Judgment is also fraudulent for Judge Whately's concealment of and failure to include in the judgment the following legitimate proceedings. # (1) See Record Exhibit #1 Clerks Record vol. 1 of 1 pages 94, 95 and 96 showing no entry for Pate's Motion for Severance page 36 of the Clerk's Record. # (2) See Record Exhibit # 3 RR vol 2 of 9 page 3 lines 9-25 and page 4 lines 1-5 showing Pate's Defense Attorney's Oral Motion for a Decision on Pate's Motion for Severance and where Judge Well born issues an Oral Order to Continue Pate's Motion for Severance to 10/03/08 then See Record Exhibit #1 Clerk's Record vol. 1 of9 pages 1, 2, and 3 where there is No listing ofthe Oral Motion for Severance or the Judge's Oral Order to Continue the Severance issue and See pages 94, 95, and 96 where the District Clerk did not enter the Motion or the Order onto Pate's Criminal Docket Sheet. # (3) See Appendix Exhibit# 1 RR vol4 of 11 page 5lines 16-25 and page 6 lines 1-3 where The State does an Oral Motion to keep Pate's trial joined to the co defendant's Hall's trial after Judge Johnson provided an Oral.Order Granting the co defendant's Motion for a Continuance to 115/09, Judge Johnson provides and Oral Order denying the State's Oral Order to keep Pate's trial joined to the co defendant's . Then See Record Exhibit# 1 Clerk's Record vol~~1, of 9 pa.ges 1,2, and showing no listing of the Oral Motion or the Judge's Oral Order and see also pages 94,95, and 96 Pate's Criminal Docket Sheet showing the District Clerk did 9. not enter them there either.

And # ( 4) See Appendix Exhibit # 3 RR vol 5A of 11 this is the proceeding where the Court purports that Pate announced ready when in fact he did not and this proceeding was a Pre Trial Hearing for Christoper Hall the co defendant and Judge Whately did not certify this proceeding into the record proceedings of Hall's Judgment, See Appendix Exhibit# 8 Halls Mater Index RR vol 1 of 11 showing no such proceeding listed and see that the Reporter's volume number is out of sequence in Exhibit # 3 RR vo15A of 11 and that it reveals a different Cause No. other than the one used in every other Reporter's Record and the Criminal Docket Sheet at Appendix Exhibit # 4 Hall's Criminal Docket Sheet. Hall's Criminal Docket Sheet also lists the proceeding as an Announcement when clearly it was a Pre Trial Hearing and is listed as such in the Report's Record but it is the proceeding where Hall's Attorney announced Ready and the State announced Ready on Hall. Pate was not there and did not announce ready.

M.

She, The State, and Pate's Defense Attorney concealed and stayed quite that Pate did not waive his right to be present at pre trial hearings and announcement and that he was not notified by the Court or his attorney of the pre trial hearings and announcements and was not told about any Court Orders that flowed from them.

For all of the violations listed above, that include the violations of Pate's Constitutional Due Process of Law, for the fraud on the court by the court and for Pate's,.)Actual , 10. \\ Innocence of the offense of Murder charged in the indictment, Pate's Judgment, Conviction and Sentence are Void and he seeks Mandamus Relief for each of the reasons.

ARGUMENT AND AUTHORITIES VOID JUDGMENTS ISSUE PRESENTED Since the constitutional amendments entitle one charged with a crime to due process of law, right to be heard, notice,and a fair and impartial trial, compliance with these constitutional mandates are essential jurisdictional prerequisites to a trial courts jurisdiction to proceed to conviction and sentence. A courts jurisdiction at the beginning of the trial may be lost in the course of the proceedings due to failure to complete the court. If the constitutional rights of the defendant are not complied with the court no longer has jurisdiction to proceed and one imprisoned thereunder may obtain release. Johnson v. Zerbst 304 U.S. 458 Supreme Court 1938, Fay v. Noia 372U S 391 Sup. Ct. 1963. In Texas when a Order is Void even after final conviction relief is available through mandamus See In re Roger L. Keeling 227 S W 3d 391 2007. Because Pate's due processrights to to be heard, notice,and a fair and impartial trial, were violated mandamus relief is appropriate, as his conviction is final and he was illegally convicted for the trial court's violation of constitutional mandates that include fraud on the court by the court.

MANnATORY RELIEF .l,-/ Relief under void judgment Statute is Mandatory, Carter v. F;,enp~~l36 F 3d 1000, 11. ' ·~ J,: '

1005 (5th Cir) 1998. a void judgment decree or order may be vacated at any time on motion of a party or any person affected thereby. Johnson v, Zerbst 304 U.S,.458 Supreme Court 1938 showing when court violates Constitutional Rights they lose jurisdiction to proceed to trial and the conviction is void. A collateral attack is any proceeding to avoid the effect of a judgment which does not meet all the requirements of a valid direct attack. There is neither a set procedure for a collateral attack nor a statute of limitations. See Glunz, 908 S W 2d at 255: Davis v. Boone, 786 S. W.2d 85,87 (Tex. App- San Antonio 1990, no writ). A judgment is void if it is shown that the court lacked jurisdiction (1) over the party or property; (2) over the subject matter; (3) to .enter a particular judgment; (4) to act as a court. Glunz v. Hernandez 908 SW 2d 253 - Tex: Court of Appeals, 4th Dist. 1995 NO ADEQUATE REMEDY When a judgment is void it is not necessary to show there is no adequate remedy.

Southwestern Bell Tel~phone Co~pany 355 SW 3d@ 605, also Dikeman v. Snell 490 S W 2d 183,186 (Tex 1973) showing relief through mandamus available even after final conviction. However even if there is technically an adequate remedy, any other remedy would be time consuming and extend the time of the violation of Pate's constitutional due process rights. See Smith v. Flack 728 S W 2d@ 788-89.

MINISTERALACT The act of Acquittal for a Void Judgment acquired by a trial court who has lost jurisdiction to proceed to trial for violation of Compulsory Due Process and through No 12.

Evidence to support the indictment or verdict and for fraud on the court by the court is a ministerial Act. The question is not whether the trial court made an incorrect decision regarding the Judgment. The question is did trial court have the authority to rule in any way he believed proper. In the underlying proceedings, the trial court had already lost jurisdiction to proceed to the trial and thus had no authority to render/enter the Judgment and Conviction, and should have acquitted Pate before and after the Jury brought back a finding of guilt when number one Pate was not properly before the court or jury for adjudication and number two when there was no evidence supporting the jury's findings or the indictment. Ex rel..Curry v. Gray 726 S W 2d 125 Tex. · Court Crim. App. (1987). The trial court lost jurisdiction to try Pate, when it violated Pate's Constitutional Rights to notice, to be heard, and to a fair and impartial trial. This argument is developed in every issue presented.

A.

Because the State could not prove the elements of the offenses plead in the indictment, or the jury charge a scheme was developed to assure the conviction of Pate. The State used their unlimited resources and knowledge of the Judiciary to manipulate Pate, The Court, and The Jury to secret the invalid indictment, Pate's Defense Motion for Severance of Defendant's and Offenses, Judge Johnson's Order separatiqg }pe trial of ··~I\·' Pate and co defendant Hall, Pates Court Ordered Separate Jury Trial DateJ of .) \ 11103/08, and among other things, Pates Court Ordered Separate Jury Trial Date of 11/03/08, and among other things, ignored pre trial court orders, had ex parte communication 13. with Judge Well born and Judge Whately regarding Pate's defense motion, trial dates and or announcements. The State lied repeatedly to the tier of fact regarding the conduct charged in the indictment and the conduct and law applicable stated in the Jury Charge and violated Pate's Mother's right to access of the public trial. Each of these actions were in concert with the Trial Court Judge Janna Whately, The Pre Trial Judge Michael Wellborn, Pate's Defense Attorney John Gilmore, The District Clerk's Office and in some instances Stan Turpin the co defendant's attorney.

This is a case in which Pate's constitutional rights were abused from the very beginning.

The State brought no witness evidence to the Grand Jury or the trial jury that Pate was criminally responsible as a party to Aaron Watson's Murder by conduct of acting with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid the shooter to commit the offense other than that of the accomplice witness whose testimony was not corroborated as to any such conduct.

The State brought no evidence to the Grand Jury or the trial jury that Pate intentionally or knowingly shot Aaron Watson with a firearm, knew about a firearm, or was present at the scene of the murder before during or after the commission of the murder.

Even the accomplices all testified that they were asked to run the guy off not murder him. See Record Exhibit #8RR vol 7 pg 95lns. 15-18, Every accomplice witness testified that Pate was not at the scene when they committed the murder and that he did not know about a fireai'lll. See Record Ex #8 vol 7 pg. 96-97 Ins 13-15 & 1-9.

14.

There is no witness testimony outside that of the accomplices that Pate acted with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid the shooter to commit the offense.

When the accomplice witness testimony is removed from the other testimony, there is no evidence that Pate performed any of the above acts, or had intent or knowledge of the offense , or knew about a gun or was at the murder scene.

See Article 38.14, V.A.C.C.P, provides, "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. " The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense. Burks v. State. 876 S W 2d 877 (Tex. Cr. App 1994. cert: Denied, 513 U.S 114 115S. Ct. 909, 130 L. Ed 2d 791 (1995) In order to determine whether the accomplice witness testimony is corroborated, we eliminate all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense. Pate's offense would have been that of being a party to the offense of murder by acting with intent to promote or assist the commission of the offense, by soliciting, encouraging, directiqg, aiding, or attempting · 1rl'''·

to aid the shooter to commit the offense and that he intentionally or knowingly shot Aaron Watson with a hand gun first when he was alone then ag8;in when he was together 15. with the accomplices, Hall, Underwood, Tanton and Ray. Therefore after removing the accomplice testimony there must be witness evidence or some other evidence that Pate was a party/ accomplice to the offense by by acting with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid the shooter to commit the offense and that he intentionally or knowingly shot Aaron Watson with a hand gun first when he was alone then again when he was together with the 4 accomplices. A review of the Record of the Trial Court will reveal that there was no other testimony or evidence introduced by the State that Pate was responsible for any of the above conduct. Texas Law does not permit but rather prohibits a conviction based upon accomplice testimony alone. See Planter v. State 9 S W 3d 156 Texas Court of Criminal Appeals 1999.There was no evidence introduced by the State other than that of the accomplice witness's (who took a plea bargain for testifying against Pate) that Pate was a party to the offense by exhibiting the ' conduct of (1.) calling someone on the phone and asking that someone send some people down to "run a guy off' not murder a guy, and (2) that once the accomplices · arrived Pate (3) met the accomplices at a shack that had gang signs on the outside of the shack where there were three females present and (4) then Pate rode in a car with at least one of the gang members and directed them to the location of the crime scene, and once at the crime scene showed the accomplices how to get to t~~ actual residence of the victim, but then Pate limped off and (4) then Pate rode in a car with at least one of the gang members and directed them to the location; of the crime scene, and once at the 16. crime scene showed the accomplices how to get to the actual residence of the victim, . but then Pate limped off into the woods and was not seen again.

Because the State's theory was that Pate acted with intent to aid, assist, encourage, solicit, direct or attempt to aid the shooter or the other accomplices in the murder, and that he was responsible for the actions of the shooter and the other accomplices, SEE RECORD# 6 RR VOL 5 OF 9 specificly pages 11 through 14 where the State lays out their theory of the offense committed. Although the State lies to the Jury about what the indictment charges, they yet described their theory of the offense.

The State must have proved beyond a reasonable doubt that Pate was at the scene, acted with intent to aid, assist, encourage, solicit, direct or attempt to aid the shooter or • the accomplices in the murder, and that he was responsible for the action of the shooter and the other accomplices. The State did not prove any of it.

The State could have called the 3 girls where the accomplices said that they met up with Pate to discuss going to the victims house to run him off. See Record Exhibit # 8 RR Vol7 of9 pgs 90-911ines 1-25 & 1-6 & Rec Ex #9 vol8 page190 Ins 1-25.

They did not because Pate submits they would not have identified him as having been there with the accomplices.

The State could have produced the phone records that the Grand Jury subpoenaed to prove that Pate made phone calls to a Gang Leader and requested that he send the accomplices down to run the guy off. See Appendix Exhibit # 7 Phone Records. And See Record Exhibit# 7 vo16 of 9 page 244_and Exhibit 11 vol. 7 17. of 9 page 30 43 and 44 that Pate showed the co defendant's how to get to Aaron Watson's house (the evidence showed the co defendant's already knew how to get to Aaron Watson's home from a trip in December when they came down). See Record Exhibit# 8 vol 7 of 9 page 58.

Pate- submits that the State did not introduce the records as evidence because the records would not reveal any calls from Pate to anyone. Also See Record Exhibit #8 RR Vol 7 of 9 specifically pages 194 through 247 which shows accomplice witness testimony of the supposed events of the evening of the offense, which includes testimony about the phone calls, the shack where the 3 females were, the car that Pate was supposed to have ridden in, and the direction from Pate to "run the guy off." The State could have produced the finger prints of Pate from the trailer where the accomplices all met up to discuss going to the victims house, or fingerprints from the accomplices car that Pate rode in to show them how to get to the victims house any one piece of evidence that was just mentioned would have supported and corroborated the accomplices testimony that Pate called the gang leader to send them down to run the guy off. Judge Whately had the authority to dismiss the indictment for the lack of evidence as to Pate's participation in the offense, but she chose not to. Pate's defense attorney could have asked that the indictment be dismissed for lack of evidenc~ as to Pate's participation but he stayed silent. The State knew that they did not have any evidence as to Pate's participation \n the offense but they asked the Grand Jury for an 1·'\ indictment anyway. The Grand Jury could not have had any ey"~~ence of the essential 18. ·''' elements of Pate's participation as a party to the crime, as the State offered no proof of . his participation as a party by acting with intent to aid, assist, encourage, solicit,· direct or attempt to aid the shooter or the other accomplices in the murder, and that he was responsible for the actions of the shooter and the other accomplices.

Upon the reading of the indictment alleging Pate to be responsible for the murder of Aaron Watson by shooting him with a gun first alone, and then being responsible for the murder of Aaron Watson by shooting him again while together with the 4 co defendant's, Pate's Defense Counsel nor the Trial Judge Motioned for the Dismissal of the Indictment based on a lack of any evidence to support the offenses alleged in the indictment. Which is demanded under Jackson v. Virginia 443 U.S 307 Supreme Ct. 1979., and Butler v. State 769 S.W~2d 234 (Texas Crim. App. 1989) The State was alleging that Pate was criminally responsible as a party to Aaron Watson's Murder by acting with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid the shooter to commit the offense and that he ~as therefore responsible for the shooter's action of using a gun to murder Aaron Watson. However The Plain language of the Indictment See Record Exhibit #l Clerks Record Vol. 1 of 1 page 4 indicts Pate under Count One for Murder pursuant to Texas Penal Code 19.02 arid authorizes the jury to convict Pate only for Murder pursuant to that code. There is no language in .Count On~ 9f.~~he indictment that allows the Jury to convict Pate "-·\ as a party/accomplice for any conduct that would make him responsible for the actions 19. of others to the offense of Murder charged in the indictment. In addition the indictment charges Pate with both being the Principal and a Party.

The indictment under Count One for which the Jury found Pate guilty was Murder.

It reads: Comes now the Grand Jurors for the County of Aransas, State of Texas · aforesaid, duly selected, organized, impaneled and sworn as such at the April Term, A.D. 2008 of the 36th Judicial District Court, in and for said County, a quorum thereof being present, upon their oaths present in and to said Court that Michael Jason Underwood, Christopher Joseph Hall, Anthony Lee Ray, Chadrick B. Pate, and Kevin Ray Tanton, acting alone and together, on or about the 4th day of January, A.D. 2008 and anterior to the presentment of this indictment, in the County and State aforesaid, did then and there intentionally or knowingly cause the death of an individual, namely Aaron Watson, by shooting the said Aaron Watson with a firearm.

The indictment does not set out or track the language of The Party Statute"Texas Penal Code 7.02 or complicity under Texas Penal Code 7.01 or Texas Penal Code 6.02 The Statute for the requirement for criminal responsibility as described above.

The Indictment does not authorize the Jury to Convict Pate as a party/accomplice or for being responsible for the actions of others to the Offense of Murder.

However even if the Indictment or The Jury Charge or a hypothetically cqrn;,ct ,. Jury Charge had authorized a finding of Guilty as a party/accomplice and criminally responsible for the action of others, The State did not prove that Pate acte~ as a ... principal or party to the Murder of Aaron Watson. There was no evidence 20. that Pate was at the scene when the murder occurred, or that he was the shooter. There was no testimony other than that of the accomplice witness's (which must be removed) that he acted intentionally, or with intent, with respect to a result of his conduct when it was his conscious objective or desire to cause the result of murder.

The State did not prove that Pate acted knowingly or with knowledge, with respect to a result of his conduct that he was aware that his conduct was reasonably certain to cause a murder.

The State did not prove that Pate possessed used or knew about any deadly weapon or that Pate shot Aaron Watson. Texas Penal Code 6.02 describes what is and what is not culpability. Under section (b) a person does not commit any offense unless he intentionally or knowingly engages in conduct as the definition of the offense requires.

The trial court record reveals that Pate had no knowledge of the deadly weapon, that he was not there when the Murder occurred, that he did not solicit, encourage, direct aid or attempt to aid another person or persons in committing the offense of murder and did not intend to promote or assist in a murder.

All accomplices testified that Pate wanted "the guy run off (not murdered) All accomplices testified that Pate was not aware that anyone had a deadly weapon, and all accomplices testified that Pate was not at the scene of the murder.

The elements laid out above are all substantive ·.,\ elements of the..crime that Jackson v. Virginia, 443 U.S. 307 319 998 CT 2781 demands must be proven beyond a reasonable doubt. Also see Haley 113 S W 3d 810 the evidence must show that at the 21. time of the offense (in this case murder the parties were acting together each doing some part of the common design.

Because the indictment alleged Pate to be both the principal and a party then the state was required to prove that he was both. The jury charge, See Record Exhibit # 1 Clerk's Record pages 60-61 charges that Pate was the principal OR a party.

Almanza v. State 645 S W 2d 885 (Tex App-Ft. Worth 1983: Although many recent opinions have offhandedly dismissed the changing of' and'. in the indictment to 'or' in the court's charge, such approach is dangerous and usually fatal in matters where aggravation or jurisdiction is involved. In the instant cause of aggravated rape the indictment joined the allegation·ofthreats of death to the standard form allegation of rape by the w9rd and. In the court's charge, [however],the aggravation feature was dis joined from rape by the word or. Such constitutes fundamental error." Messenger v. State. 638 S.W.2d 883 (Tex.Cr.App. 1982).

In the instant case alleging Pate acted alone (as the Principal to the offense of Murder) the indictment joined the allegation that Pate acted together (was a Party to the Murder) by the word "and", however in the jury charge the allegation that Pateacted alone (as the Principal to the offense of Murder) was dis joined from the allegation that Pate acted together with Underwood, Hall, Ray and Tanton by the word "or". According to Almanza and Messenger this constitutes fundamental error and is a violation of due process. Thus making the indictment inyalid and the Judgment and Conviction ,, pursuant to the invalid indictment Void as a Matter of Law. In Malik v. State 953 S W 22.

2d at 240 Tex. Court of Appeals 1997 the plain language states: sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case, Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Both the indictment and the Jury charge describes the particular offense as Murder by intentionally or knowingly shooting Aaron Watson with a firearm, not Murder by acting with intent to promote or assist the commission of the offense by soliciting, encouraging directing aiding or attempting to aid the other person to commit the offense The charge did not accurately set out the law, the jury charge was not authorized by the indictment. A simple review of the Jury Charge will reflect these simple truths.

See :Planter v. State, 9 S.W.3d 156, 159 (Tex.Cr.App., 1999) ("[b]ecause the evidence presented at trial does not comport with the allegations in the indictment, and because the jury verdict cannot be supported logically by either the actual jury charge or the hypothetically correct jury charge formulated by the Court of Appeals, the Court of Appeals erred in its assessment of the sufficiency of the evidence"). Even when measured against the standard in Malik, 953 W 2d at 240, which sets out that evidentiary sufficiency clearly requires that e:v.identiary sufficiency be measur~d against the "elements of the Offense", when Ip.easured ,.... against the "elements of the offypse, there is no evidence in the record to prove that Pate was guilty of the offense charged.

23.

Pate relies on Malik as he is entitled to Mandamus relief in this Court as to Acquittal just as Planter relied on Malik which recognizes the general rule that appellate affirmance of a conviction on the basis of a charge neither alleged in the ~ndictment or presented to the jury is constitutionally prohibited. See Planter, 9 S W 3d at 159 161 5; Malik, 953 S W 2d at 238 fn.3.

Pate is Actually Innocent of the Offense for which he was indicted and for which the Jury found him Guilty. There is not only Insufficient Evidence to support a finding of guilty beyond a reasonable doubt, there is NO evidence that supports a finding of guilty beyond a reasonable doubt. See RECORD Exhibit# 1 Clerk's Record vol1 of Indictment pg. 4 The indictment charges Pate with Murder by acting alone AND together did then and there intentionally or knowingly cause the death of an individual namely, Aaron Watson, by shooting the said Aaron Watson with a firearm. See Record Exhibit # 1 Clerk's Record vol1 of 1 Verdict Form page 72 signed by Presiding Juror Ronald Gore finding Pate Guilty of Murder as alleged in the indictment. Not as alleged by the State or the Jury Charge. The Jury Charge stated that if the jury found that Pate acted alone OR together with Michael Jason Underwood, Christopher Joseph Hall, Anthony Lee Ray, and Kevin Ray Tanton. did then and there intentionally or knowingly cause the death of an individual, namely Aaron Watson by shooting the said Aaron Watson with a firearm, then you will find the defendant guilty of Murder.

There is NO evidence that Pate caused the Murder of his Best Friend Aaron Watson by 24. acting alone and intentionally or knowingly causing his murder by shooting him with a firearm, and then after murdering him alone he intentionally or knowingly caused his murder again with Michael Underwood, Christopher Joseph Hall, Anthony Lee Ray, and Kevin Ray Tanton by shooting him with a firearm. The evidence conclusively demonstrates that The State proved not one single element of the Offense charged in the indictment. Pate is entitled to Relief as there is upon the record evidence adduced at the trial no evidence to support the tier of fact's findings that Pate was guilty beyond a reasonable doubt of causing the offense alleged in the indictment.

The Evidence contained in The Record of the Trial Court reveals that Pate was not even at the scene of the offense See Record Exhibit #7 RR vol 6 of 9 pages 246 and 248 and that the co defendant Christopher Hall shot Aaron Watson, See Record Exhibit # RR 6 of 9 page 251 lines 23-25 and page 252 lines 12-18 and that the other 3 co defendants who plead guilty and took deals to testify against Pate were at the scene of the offense with Christopher Hall and participated in assaulting Aaron Watson. See Record Exhibit #7f RR vol 6 of 9 page 247 and page 250 Testimony of co defendant's verifying that Pate was not there. (He limped off into the woods) The Jury Charge See Record Exhibit# 1 Clerk's Record vo11 of 1 page 61-71 where the Jury is instructed. "Our laws provide that a person is criminally responsible as ~

party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to 25. promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one party to a crime." None of the conduct described in this paragraph was alleged in the application paragraph of the jury charge or in the indictment.

The indictment charged none of the conduct listed in that paragraph.

The State had to prove according to the Indictment, that Pate intentionally or knowingly murdered the victim while he was alone, by shooting him with a gun and then he murdered the victim again intentionally or knowingly when he was together with the other 4 co defendant's by shooting him again.

The State had to prove according to the Application Paragraph of the jury charge that Pate intentionally or knowingly murdered the victim while he was alone by shooting him with a gun Or that he intentionally or knowingly murdered the victim while he was with the other 4 co defendants by shooting him with a gun.

The State should not have brought the charge to the Grand Jury and Pate should not have been indicted. The State violated Pate's constitutional rights even by bringing an indictment against Pate for which they had no evidence to charge him. See: Jackson v Virginia, 443 US 307 - Supreme Court 1979.

The U. S. Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt In re Winship. 397 U. S. 358. It is axion;mt,ic that a conviction upon a charge not m~~e or upon a charge not tried constitutes a denial of due process. Cole v. Arkansas. 333 U. S. 196, 201; Presnell v. Georgia, 439 U. S. 14. These 26. standards no more than reflect a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend. E. g., Hovey v. Elliott. 167 U. S. 409, 416-420. Cf. Boddie v. Connecticut. 401 U. S. 371, 377-379. A meaningful opportunity to defend, if not the right to a trial itself, presumes as well that a total want of evidence to support a charge will conclude the case in favor of the accused. Accordingly, we held in the Thompson case that a conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. See also Vachon v. New Hampshire. 414 U.S. 478; Adderley v. Florida. 385 U. S. 39; Gregory v. Chicago. 394 U. S. 111; Douglas v. Buder, 412 U. s: 430. The "no evidence" doctrine of Thompson v. Louisville thus secures to an accused the most elemental of due process rights: freedom from a wholly arbitrary deprivation of liberty. The Trial Court Judge, and the Defense Attorney had a responsibility to Motion for Acquittal once the Jury returned with a Verdict of Guilty.

ABA Justice Standard 6-1.3. Adherence to standards The trial judge should be familiar with and adhere to the canons and codes applicable to the judiciary, the ethical rules effective in the particular jurisdiction applicable to the legal profession, and standards concerning the proper administration of criminal justice.

ABA Justice Standard 6-1.1. General responsibility of the trial judge (a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of 27. the proceedings does not relieve the trial judge of the obligation of raising on his or judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose.

The trial court Judge allowed the State to use the Court to illegally convict Pate.

The trial court judge had the authority to acquit Pate based upon No Evidence.

The State knew that there was no evidence that Pate shot Aaron Watson, or that he was criminally responsible for the shooter's actions, and thus the indictment was illegal.

The State violated TCCP Title 1 Chap. 2 Article 2.01 Duties of the District Attorney: The primary duty of all Prosecuting attorney's is not to convict but to see that Justice is done. They shall not suppress facts or secret witness' capable of establishing the innocence of the accused. The State had no jurisdiction/authority to try Pate under the law of 'parties when no law of parties conduct consistent with criminal responsibility was charged in the indictment See : State Seidel 2 S W 3d 524 (1999) S W 3d 221 Tx. Crim App (2001) also see TCCP Article 21.03 showing: Everything should be stated in an indictment which is necessary to be proved, also See: Hall v. State 225 3d 524 (2007). Then See TCCP 21.15 must ~~lege ~cts "overt acts" It was necessary that the State prove that Pate participated with the co defendant's in the murder by proving that he committed some affirmative act. See 28. :· ~·· ..... ·: ' -;. '· --,

Caraway v. State, 550 S. W. 2d 699 (Tx. Cr. App. 1977)

B.

Concealing Pate's Motion for Severance and the fact that the Judge provided no hearing , . no factual findings and no Court Order and making it appear that it had been legally disposed of was a part of the scheme to illegally convict Pate for a offense he did not commit. Judge Whately, The State, Pate's Defense Attorney, Co defendant's Defense Attorney and the District Clerk committed fraud on the court by the court by concealing Pate's properly filed pre trial Motion for Severance through falsifying the Trial Court Record and staying silent about it, and when Pate's attorney lied to him and said that the Motion had been denied and when he lied and told veniremen that he was being forced to have the joint trial with the co defendant.

See: Aoude v. Mobil Oil Corporation 892 F 2d 1115,1118 (1st Cir. 1989) showing: " the requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme influencing the trier of fact or unfairly hampering the presentation of the opposing · party's claim or defense" The State developed the scheme to illegally convict Pate by hampering his defense motion in order to keep the trial a joint trial with the co defendant so that they could use evidence pertinent only to the co defendant a~~inst Pate and convince the jury that Pate was guilty of a offense he did not commit.

Pate never had the opportunity to be herd on his timely and properly filed pre trial Motion for Severanqe because Judge Whately, Pate's defense attorney, The State, and Judge Michael Wellborn thwarted his opportunity to litigate his defense motion by falsifying Court Records. They concealed the fact that he did not have a hearing or a Court Order Denying or Granting the Motion. Pate relied on his defense attorney when he told Pate that the Motion had been denied. The trial court judge and the officer's of the court violated Pate's Due Process of Law right to be heard,notice and a fair and impartial trial when not providing a hearing on his Motion and then proceeded to trial while the Motion was still pending. Pate had the right to bring evidence of co defendant's previous convictions and to show that the joint trial would prejudice him. In other words he had the right to be heard, notice, and a fair and impartial trial. Without a hearing neither the trial court judge or the pre trial judge could have determined if the Severance would be mandatory based upon the evidence that Pate would have provided or discretionaryi +.+ Texas Code Crim. Proc. Ann. Article 36.09 mandates severance .... ' under certain conditions and it does, then the Trial Court Judge is responsible to see that r?te is heard on his 30. properly filed motion. Because Judge Whatley did not follow statutory procedure, she violated Pate's due process and lost jurisdiction to proceed to trial. See Johnson v. Zerbst 304 U.S. 458 Supreme Court 1938showing: When a court violates due process they lose jurisdiction to proceed to trial and the conviction is void. Also See Qualley v. State 151 S W 3d 655 Tx. Ct. App. 8~ Dist.

2004. (quoting) See Texas CODE CRIM. PROC. ANN. Art. 36.09 - -.... (Vernon '1981) .

Article 36.09 mandates severance where a prior criminal conviction of one codefendant is admissible or where a joint trial would, as a matter of law, prejudice a codefendant; otherwise, the granting of a severance is within the sound discretion of the trial court.

Silva v. State. 933 S.W.2d 715, 718-19 (Tex.App.-SanAntonio 1996, no pet.). The denial of a motion to sever will constitute an abuse of discretion only when the movant satisfies the heavy burden of showing 11 clear prejudice. 11 King v. State. 17 S. W.3d 7, 16 (Tex.App.-Houston [14th Dist.] 2000, pet. refd); Louis v. State, 825 S.W.2d 752, 757 (Tex.App.-Houston [14th Dist.] 1992, pet. Refd).

When the defendant has filed a pretrial motion for severance based on prejudice that the court denies, the trial court has a continuing duty under the Federal Constitution to order a severance sua sponte if sufficient prejudice becomes·known during the course of the trial. 659*659 Aguilar v. State. 26 S.W.3d 901, 909 {Tex.Crim.App. 2000). Different degrees of culpability of codefendants does not warrant severance. See Morales v. State. 466 S.W.2d 293, 296 (Tex.Crim.App. 1971). In order to show clear prejudice, it must be shown that the respective defenses of the parties are mutually exclusive to the extent that the jury must believe the core of one defens~ and must necessarily disbelieve the core of the other. Aguilar v. State. 39 S.W.3d 700, 702 (Tex.App.-Corpus Christi 2001, pet. Refd). Pate asked for a Severance numerous times during the trial See

31- Record Exhibit #. vol of pages lines . and Judge Whately continually denied The severance motion and the jury must have relied on Judge Whately's denial because she had told the Jury that The defendant's were being tried together because The State had the right to try them together because they were the one's bringing the case to the jury. The trial court Judge Whately and officer of the court committed fraud on the court by the court when they all remained silent and concealed the fact that Pate had no hearing on his Motion for Severance. See In re E.P. 185 S W 3d 908 Tex App. Austin-2006 showing: " Fraud is defined as trickery or deceit, intentional misrepresentation, concealment of what should have been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury" emphasis added) also Vela v. Marywood 17 S W 3d 750 showing "Fraud may consist of both active misrepresentation and passive silence." See ABA Justice Standard 6 -1.3. Adherence to standards The trial judge should be familiar with and adhere to the canons and codes applicable to the judiciary, the ethical rules effective in the particular jurisdiction applicable to the legal profession, and standards concerning the proper administration of criminal justice.

ABA Justice Standard 6-1.1. General responsibility of the trial judge (a) The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his or her initiative, at all appropriate times and in an appropriate manner, matters which 32. may promote a just determination of the trial.

The purpose of a criminal trial is to determine whether the prosecution has established the guilt of the accused as required by law, and the trial judge should not allow the proceedings to be used for any other purpose. c.

Court Ordered Jury Trial Date Concealing Pate's Court Ordered Separate Jury Trial Date was a part of the State's fraudulent scheme to illegally convict Pate for a crime that he did not commit.

The Trial Court Judge , Pate's Defense Attorney, The State and The District Clerk violated Pate's Due Process and committed fraud on the court by the court when they each concealed Pate's Court Ordered 11103/08 Jury Trial Date by staying silent about the Court Ordered Trial Date, or falsifying Court documents to make it appear that the Court Order had been legally disposed of. See In re E.P. 185 S W 3d 908 Tex App. Austin-2006 showing: " Fraud is defined as trickery or deceit, intentional misrepresentation, concealment of what should have been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury" emphasis added) also Vela v. Marywood 17 S W 3d 750 showing "Fraud may consist of both active misrepresentation and passive silence." Also See See: Government Code Sec. 51.303 Duties of the Clerk showing: The clerk of the Court has custody of and shall carefully maintain and arrange the records relating to all that are lawfully deposited in the clerk's office and the clerk shall record the acts and proceedings of the court and also See See Texas Penal Code 37.10 showing: A person commits an offense 33. if he knowingly makes a false entry in, or false alteration of, a governmental record: makes presents, or uses any record, document or intentionally destroys, conceals, removes or otherwise impairs the verity, legibility, or availability of a governmental record. Also See Texas· Rule Civil Procedure# 247 showing that No cause which has been set upon the trial docket of the court shall be taken form the trial docket for the date set except by agreement of the parties or for good cause upon motion and notice to the opposing party. Pate was notified of any Motion, Order, or Notice that the trial date was being taken from the docket and reset and there is no record of any of those kinds of proceedings. Pate's Constitutional Due Process rights were violated and the court lost jurisdiction to proceed to trial and the conviction is void. Johnson v. Zerbst.

D.

Ex Parte Hearings/Communications With intent to influence the outcome of the proceedings on the basis of considerations other than those authorized by law, both Judge Whately and Judge Wellborn held exparte proceedings and allowed discussions of Pate's defensemotion, and trial dates between themselves, The State, and The codefendant's attorney. These proceedings violated Pates, right to be present , be heard, notice and a fair and impartial trial See TCCP Title 1 Chapter 1 Article 1.05 Rights of Accused show Pate and his attorney has the right to appear and be heard and see Article ~~.01 requiring Pate's presence at ... all pre trial hearings. Also See Judicial Codes 1 and 2 showing: A judge shall uphold and promote the , independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of Impropriety. A judge should perform the duties of his office impartiality, competently and diligently. The Judges and officers of the court committed fraud on the court by the court and violated Pate's due process rights to be heard, notice and a fair and impartial trial and lost jurisdiction to proceed to trial and the conviction is void. Johnson v Zerbst E.

The Defense has to Disprove the conduct of Knowingly or Intentionally Judge Whately's statement to the Jury that the Defense has to Disprove the conduct of Knowingly or Intentionally clearly were stated to shift the burden of prove to the Defense and not the State. Clearly it is the State that must prove the elements of the offense See Jackson v. Virginia 44. U S 307 99 S Ct. 2787, 61 L. Ed. 2D 560 Supreme court 1979 . Judge Whatley 's comment was intended to influence the tier of fact and the out come of the proceedings. She violated Pates due process right to a fair and impartial trial and clearly showed her bias against Pate. The conviction is void for the violation of Pate's right to a fair and impartial trial Johnson v. Zerbst

F.

Reason for Joint Trial The Trial Court Judge misrepresented to the Jury that the State had the right to try the defendant's together because they were the one's bringing the case to them. This was not true, The trial court Judge knew that Pate still had a Motion for Severance pending in the court and that it was mandatory to hold a hearing to ascertain whether not she had the discretion to grant or deny a Severance or whether it was mandatory that she grant a 35.- motion for Severance. See Article 36.09 Severance on separate Indictments.

I

Judge Whately violated Pate's Constitutional right to due process for misrepresenting the law on Joinder to the Jury and lost jurisdiction to proceed to trial and conviction See Johnson v Zerbst.

G.

Failure to Admonish State The State lied to the jurors and told them that the indictment alleged that Pate committed the offense by acting alone or together and not alone and together, violating Pate's due process rights to a fair and impartial trial and for committing fraud on the court, by the court. Judge Whately committed fraud for staying silent and for failing to admonish The State for lying. She also committed fraud by changing the word and to the Word OR in the Jury charge. The State's lie misrepresented the charge of the indictment and lessened their burden of proof as did Judge Whately's changing of the word and to the word or in the jury charge.

See In re E.P. 185 S W 3d 908 Tex App. Austin-2006 showing:" Fraud is defined as trickery or deceit, intentional misrepresentation, concealment of what should have been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury" emphasis added) also Vela v. Marywood 17 S W 3d 750 showing "Fraud may consist of both active misrepresentation and passive-silence." H.

Leg Restraints There was no motion, hearing, court order or factual findings for forcing Pate to wear 36. leg restraints at his trial.

See Deck v. Missouri 544 U.S. 622 (2007) showing: The Court must make an independent determination that restraint is justified. When appellate court is left to guess at the reasons for shackling it has no choice but to find a due process violation and vacate the conviction. The trial court violated Pate's due process, right to be heard, notice and a fair and impartial trial when restraining him with restraints without the proper due process of a Motion, Order, Notice and factual findings for the reason for the restraints. See Johnson v. Zerbst 304 US 458 Supreme Court 1938 showing when court violates Constitutional Rights they lose jurisdiction to proceed to trial and the Conviction is Void. The Trial Court Judge and officer's of the court concealed the fact that there was no due process hearing factual findings or orders of the court on the reasons for restraints and committed fraud on the court by the court. See In re E.P. 185 S W 3d 908 Tex App. Austin-2006 showing: " Fraud is defined as trickery or deceit, intentional misrepresentation, concealment of what should have been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury" emphasis added) also Vela v. Marywood 17 S W 3d 750 showing "Fraud may consist of both active misrepresentation and passive silence." I. and J.

Fraudulent Entry of Proceedings and Failure to Enter Legitimate Proceedings The Action of the Trial Court Judge, The State, The District Clerk and Defense Attorney's in either entering false proceedings or staying silent about the entry of false proceedings and of not entering legitimate proceedings or staying silent that they were 37. not entered amount to fraud on the court by the court, tampering with a court/government instrument and filing a fraudulent court instruments. See Texas Penal Code 37.10 showing: A person commits an offense if he knowingly makes a false entry. in, or false alteration of, a governmental record: make presents, or uses any record, document or intentionally destroys, conceals, removes or otherwise impairs the verity, legibility, or availability of a governmental record. Also See See ABA Criminal Justice Standard 3.5,3 The State Prosecutor should document what happens at proceedings to insure any orders issued to the prosecution is transmitted to the appropriate persons necessary to effectuate the order. The Clerks actions and the States Actions by not turning the Oral Orders into written instruments and not recording them properly were a part of the fraudulent scheme perpetrated on the court and kept Pate from being heard , notice and a fair and impartial trial. Pate was kept from litigating his Defense Motion. See King Ranch v; Chapman, 118 S W 3d 742, (Tex. 2003) . See also ABA Justice Standard 6-1.3. Adherence to standards The trial judge should be familiar with and adhere to the canons and codes applicable to the judiciary, the ethical rules effective in the particular jurisdiction applicable ' .·-··· to the legal profession, and standards concerning the proper administration'qfcFim~nal

justice. The deliberate actions of these officer's of the court amount to fraud on the court and a violation of Pates due process right to be heard, notice and a fair and impartial trial .and for these violations the conviction is void Johnson v. Zerbst,

38.

K.

Permitting Presence at the Public Trial The trial court judge did not follow statutory procedures when invoking the rule and in cooperation with the State violated Pate's due process right to a public trial, and this action was a part of the fraudulent scheme to obtain an illegal conviction against Pate. Pate had the right to a public trial, and it is his contention that the State supenoed Pate's Mother to testify although they did not call her to testify, but the purpose was to keep Pate's Mother out of the trial, so that it would appear to the jury that Pate had no family there to support him, and to keep her from observing the due process violations by the trial court judge, the state, and other officer's of the court.

See Article 36.03 Invocation of Rule showing: Texas Rules of Evidence, a court at the Request of a party may order the exclusion of a witness who for the purposes of the prosecution is a victim,. close relative of a deceased victim, or guardian of a victim only if the witness is to testify and the court determines that the testimony of the ~it~.~ss

would be materially affected if the witness hears other testimony at the trial. (b}On:.~h,~ ·,

objection of the opposing party, the court may require the party requesting exclusion of a witness under subsection (a) to make an offer ofproofto justify the exclusion etc. etc ... The trial court followed none of the requirements of Article 36.03 and violated both Pate and his Mother's due process rights to a public trial.

L.

Fraudulent Filing of Certified Judgment Proceedings The Trial Court Judge with intent to defraud, to keep Pate from Defending his 39.

Innocence, and to conceal the Officer's of the Court's Fraud on the Court by the Court, filed a Fraudulent Certified Record of Proceedings Judgment into the 13th Court of Appeals and other Courts of Appeals and violated Pate's right to be heard, notice and a fair and impartial Appeals process. See Texas Penal Code 37.10 showing: A person commits an offense if he knowingly makes a false entry in, or false alteration of, a governmental record: makes presents, or uses any record, document or intentionally destroys, conceals, removes or otherwise impairs the verity, legibility, or availability of a governmental record. Also Also See In re E.P.185 S W 3d.908 TexApp. Austin -2006 showing: " Fraud is defined as trickery or deceit, intentional misrepresentation, concealment of what should have been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury" emphasis added) also Vela v. Marywood 17 S W 3d 750 showing "Fraud may consist of both active misrepresentation and passive silence." Because Judge Whately filed a Fraudulent Judgment into the Courts of Appeals an.y, order of any Court of Appeals is Void as Pate's Judgment and Conviction are Void for all of the incidents of the Violation of his Constitutional Federal and State Rights and there fore any Orders that flow from the Judgment are also Void. See Johnson v. Zerbst.

M.

Pate did not waive his rights to Appearance Pate did not waive his right to appe~r ~t pre trial hearings and annq.4ncements, and was not permitted to appear at any pre trial hearings. Pate had the right to appear and be heard by both he and his attorney See TCCP Title 1 Chapter 1 Article 1.05 Rights of Accused. And see Article 28.01 requiring Pate's presence at all pre trial hearings.

Pate's defense attorney did not apprise Pate of pre trial hearings or of any orders of the court, violating his 6th Amendment rights to Counsel, his right to be heard, notice and a fair and impartial trial. For the Court's violation of Pate's mandatory and statutory right to appear at every stage of his trial, his Judgment and Conviction are void.

Johnson v. Zerbst.

CONCLUSION Each and every violation by the Trial Court and it's officer's described in this Application falls in the criteria mentioned in the following paragraphs and the violations support Pate's claims that the Judgment rendered/entered by the trial court judge in cause No. A-08-5080-4CR is VOID. The "fraud on the court" doctrine rests on two distinct features. First, as the Tenth Circuit has explained in Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (lOth Cir. 1995), cert. denied, 516 U.S. 1045 (1996), "whatever else it embodies, [fraud on the court]requires a showing that one has acted with an intent to deceive or defraud the court." Second, as the Tenth Circuit explained in Bulloch v. United States, 763 F.2d 1115, 1118 (lOth Cir~ 1985) (en bane), the deception must go to the heart of the judicial proceeding, creating an impression about the core, operative facts that is relied on by the court and is false. "Fraud on the court ... is fraud which is directed to the judicial .machinery itself." fraud ~ .

41. ~ ' ., ~.

is defined as trickery or deceit, intentional misrepresentation, concealment, or nondisclosure for purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or a false representation of a matter of fact by words or conduct or by concealment of what should have been disclosed that deceives or is intended to deceive another so that he shall act upon it to his legal injury (emphasis added) In re EP 185 S. W. 3d 908 (Tex. App.-Austin 2006). Extrinsic fraud justifies an exception to the tenet offinality because it prevents a real trial upon the issues involved Montgomery, 669 S. W. 2d at 313 Browning 165 S.W. 3D at 348.

Browning v. Prostock, 165 S.W. 3D 336 (Tex 2005) showing: Fraud upon the court "has been defined as that fraud committed by an officer of the court in any attempt to deceive, either by commission by omission, by speech, by any attorney or judge, it is a "fraud upon the court" The trial court tampered with Government/ Court Documents and committed fraud on the court to make it appear that Pate had a fair and impartial trial, that included Trial Court Orders Granting'· and ~ .

Denying Motions, Resetting trial dates, announcement dates and pre tri::11 dates for filing illegal proceedings in the trial court records and Courts of Appeal and for not filipg legitimate proceedings into the record of the Trial Court and the Courts of Appeal.

42.

PRAYER

Wherefore premises considered, Realtor Chadrick B. Pate prays for Mandamus·-'Relief from each and singular of all issues presented in this Writ that the Judgment entered by the trial court be ordered reversed, order for indictment's dismissal and an order of Acquittal be entered along with an order for Realtor (Chadrick B. Pate"s) Immediate Discharge from his illegal imprisonment in the Texas Department of Criminal Justice Stiles, Unit where he is presently housed and detained from his liberty, and an Order of the Conviction to be Expunged from any and all Governmental Records and any other relief that is legally available to him.

~~~ully Submitted, Realtor Chadrick Pate prose #1563340 3060 FM 3514 Beaumont, Texas 77705 CERTIFICATE OF SERVICE I. Chadrick Pate hereby certify and swear under penalty of perjury that a true and correct copy of the foregoing Realtor's Writ of Mandamus from A Void Final Felony Judgment and Conviction and Emergency Motion was mailed to The District Attorney for Aransas County, Texas and to Honorable Janna K. Whatley , Judge 36th District Court Aransas County, on the 1 c,-+(lay of Sept , 20 15. The Original Writ of Mandamus from a Void Final Felony Judgment and Conviction and Emergency Motion will be hand delivered by Nema Bardin who is my Power of Attorney on ~ut thell.,~ay of Sept. 2015.

~·p~ Realtor Chadrick Pate #1563340 3060 FM3514 Beaumont,Texas 77705 CERTIFICATION Trap 52.3 I, Chadrick Pate do hereby certify under penalty of perjury that the foregoing Writ of

u Mandamus from a Void Judgment and Conviction and Emergency Motion that each and every factual statement in this petition is supported by competent evidence in the appendix or the record. · ~.

Realtor Chad rick Pate pro se #1566340 3060FM3514 Beaumont, Texas 77705 NOTARIZED CERTIFICATION State of Texas County of )e Qre...v~lJ'c\ Chadrick Pate #1563340, personally appeared before me, and being first duly sworn declared that, he/she signed this application in the capacity designated, if any, and further states that he/she has read the above application and the statements there in contained are true. ~~~ Notary Public

Notary without Bond CERTIFICATION Trap 52.3 ()) I, Chadrick Pate do hereby certify under penalty of perjury that each and every factual statement in each of the instruments listed herein is supported by competent evidence in the appendix or the record of each instrument filed.

Motion for Permission to File Writ of Mandamus from a Void Final Felony Judgment and Conviction, Motion for Emergency Relief pursuant to Realtor's Writ of Mandamus from A Void Final Felony Judgment and Conviction and Realtor's Writ of Mandamus from a Void Final Felmij(u!\ment and Conviction ~J,(IL ~cvb Realtor Chadrick Pate pro se #1566340 -3060 FM 3514 Beaumont, Texas 77705 NOTARIZED CERTIFICATION State of Texas County of ~e ,(?Qw1(/(\ Chad rick Pa e # 1563340, personally appeared before me, and being first duly sworn declared that, he/she application and the statements there in contained are true. &::&ehO-.kLlO) + signed this application in the capacity designated, if any, and further states that he/she has read the above ule__.

Notary Public

Notary without Bond CERTIFICATE OF COMPLIANCE Trap 9.4 (3) I Chadrick Pate do hereby certify that the foregoing Writ of Mandamus from a Void Felony Judgment and Conviction according to this computer generated document in Open Office, the word count excluding: Identity of parties and counsel, table of contents. index of authorities, statement of the case, statement of issues presented statement of jurisdiction statement of procedural history. signed proof of service, certification. certificate of compliance and the appendix and record is t7..1 t6 ~ords, and "'\? \)lAC,. -e.~ '

Realtor Chad rick Pate pro se #1566340 3060 FM3514 Beaumont, Texas 77705 APPENDIX The petition must include an appendix containing: ( 1) a certified or sworn copy of any order complained of, or any other document showing the matter complained of, and (2) unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute or constitutional provision on which the argument is based. !d. R. 52.3(k)(l ). If the petition is for a writ of habeas corpus, the appendix must include proof of restraint. !d. R. 52.3(k)(l )(D).

RR Vol 4 of 11 Hall. ............................................................................................................ 1 RR Vol 5 of 11 Hall. ........................................................................................................... 2 RR Vol SA of 11 Hall. ........................................................................................................ 3 Hall's Criminal Docket Sheet ........................................................................................... 4 Master Index RR Vol 1 of 11 Hall.. ................................................................................... S Judge Michael Well born's Post Conviction Letter............................................................. 6 Grand Jury Subpoena Phone Records 2 pages .................................................................. 7 Affidavit of Stacey Deville ................................................................................................. S · Affidavit ofNema Bardin ................................................................................................... 9 Affidavit of Chadrick Pate ............................................................................................... 10 Clerk's Instrument Record 3 pages ................................................................................... 11 · . P-r-oof Qf Restraint. ............................................................................................................ 12 Letter to Clerk of The Texas Court of Criminal Appeals ................................................. 13

XV.

APPENDIX EXI-ITBIT # 1 RR VOL. 4 OF 11 HALL i{)\~~ ~ALL \ f"")\ ~ Scanned Jan 26, 2012 Pretrial Hearing 10-23-08 ... ¢"' :J. 7 5- Otf u:.....~ ~

1 REPORTER I s BECORD VOLUME LJ OF _lL_ VOLUMES 2 TRIAL COURT CAUSE NO. A-08-5080-2CR

5 THE STATE OF 'rEXAS ) IN TBB DISTRICT COURT ) vs. ) ARANSAS COUNTY, TEXAS ) CRRXSTOPBER JOSEPH BALL ) ) 36TH JUDicZAL oxA~eo IN COURT OF CRIMINAL APPEALS AUG 10 2011 11 Louise Pearson, Clerk 12 PRETIUAL BEARJ:NG

16 - Or~ginal produced on March 11. 2009-

20 On the 23rd day of October, 2008, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Joel B. Johnson, ,Judge Presiding, held in Rockport, AraQsas County, Texas.

24 Proceedings reported by computerized stenotype machine.

LISA TUCKER RILEY, CSR, RPR

fl ··""···"

Scanned Jan 26, 2012 2 Pretrial Hearing 10-23-08

1 APPEARANCES

3 MR. MARCEL:INO RODlUGUEZ SBOT NO. 00797336 Assistant District Attorney P.O. Box 1393 Sinton, Texas 78387 Telephone: 361-364-6220 A~torney £or the S~ate

8 MR. PA'l'Rl:CK L. FLAN:IGAN SBOT NO. 07109600 District Attorney P.O. Box 1393 Sinton, Texas 78387 Telephone: 361-364-6220 At~orney for the State MR. STANLEY A. TURPEN SBOT NO. 20344300 Attorney at Law P.O. Box 1209 Portland, Texas 78374 Telephone: 361-643-6422 Attorney fo:r tbe Derelldant: MR. JOHN S . GJ:LMORE, .::m..

SBOT NO. 07958500 Attorney at Law S. Tancahua Corpus Christi, Texas 78401 Telephone: 361-882-4378 Att:o:rney £or t;be Co-Defendant Pate

25L_____ -----'·------------l LISA TUCKER RILEY, (;SR, RPP.

Scanned Jan 26, 2012 3 Pretrial Hearing 10-23-08

1 P R 0 C E E D I N G S 2 (Defendant p'resent) 3 THE COURT: Christopher Hall, Mr. Turpen.

Stan, you just got re-appointed as a result of Ms. Cochran-May's employment in the county attorney's office.

MR. TURPEN: That's correct, Judge.

THE COURT: You need a reset?

MR. TURPEN: Big time.

THE COURT: Okay.

MR. TURPEN: I have talked to him for about an hour-and~a-half and talked to Tamara a little bit; talked to Marcelino a little bit but that is about it.

THE COURT: Okay. The next round of jury trials after this -- DEPUTY CLERK: December the 3rd -- or December ~ the 1st.

l7 THE COURT: Will you be ready by December you JB think, or no?

19 MR. TURPEN: Judge, I'm -- or that week I'm 20 going to tell you that to be honest with you I don't think I 21 could be ready by then.

THE COURT: Okay. January the 5th will be the ·~ trial date.

24 MR. TURPEN: Thank you, Judge. That was more or ') ~~ ~J less what I had mentioned to Marcelino. I figured January I

--------~-~---------=------ I,IS.A TUCKER EILEY, CSR, P.i?R Scanned Jan 26, 2012 4 Pretrial Hearing 10-23-08

should be able to be up for it.

DEPUTY CLERK: Announcement?

3 THE COURT: At 9:00 o'clock -- hang on. That is going to be tricky. It looks like the announcement docket "1ill be December ·the 30th. -~ 6 Now, guys, I am remissed to tell you whether that would be an afternoon or a morning.

8 DEPUTY CLERK: So far our list says 1:30 still.

9 THE COURT: That is what your list says?

10 DEPUTY CLERK: So far.

11 THE COURT: Then that is what I'm going to tell you.

13 MR. TURPEN: Judge, can I fax in my announcement on that? l5 THE COURT: On a murder case?

16 MR. TURPEN: I'm off the week afte~ Christmas.

17 THE COURT: You can't be off the week that I have got you. I want to set you for trial the first time and then be off the next week when you 20 MR. TURPEN: Well, I have put my announcement in for vacation. I do it every year. And the week after Thanksgiving I go hunting. The week after Christmas I do what I can do.

24 THE COURT: This is not the week after Christmas well the 30th I guess is.

w.

LISA TUCKER RILEY, CSR, RPR ' .

Scanned Jan 26, 2012 .s PcetriaJ. fiear.ing l 0--2 3·-08

1 MR. TURPEN: I think it is.

2 THE COURT: Okay. Can you have. an announcemern:: the week before Christmas on December the 22nd? .:? ...

MR. TURPEN: Okay.

DEPUTY CLERK: At 1:30? The clerk is going to get the b:lame.

7 MR. RODRIGUEZ: 9:00 o'clock is good.

8 THE COURT: I mean one announcement docket on ~ a:;::::::::==- -- one case, it should be 9:00 o'clock. That is what I'm -::::. ------....

10 thinkiryg.

ll MR. FLANIGAN: I would say for -- if we'll do 22 stuff on the 30th, let's do it at 9:00 o'clock as well.

_, :3 THE COURT: Well, you'Ll not do anything. on the 14 30th. I'm not doing anything cin the 30th right now.

MR. FLANIGAN: Okay.

MR. GILMORE: Judge, I have a codefendant in 17 this case.

19 as well.

~ 20 THE COURT: I know, but we'll try your case in ::21 November i,rhen I come over here.

22 MR. GILMORE: We'll try me?

23 THE COURT: You're my numbe:- one priority :i.n 24 life, John.

·t-IR. GILMORE:: do

.LJ:SJ::. TUC!<ER Ril,E:Y, CSR, RPR Scanned Jan 26, 2012 6 Pretrial Hearing .l0-23-08

1 MR. RODRIGUEZ: Got to be number one with somebody.

3 THE COURT: Somebody has got to be numbe~ one.

4 DEPUTY CLERK: Pretrial?

5 THE COURT: A pretrial. How many pretrials have already been conducted in this case?

7 DEPUTY CLERK: Everyone has been passed. We really haven't addressed anything yet.

9 MR. FLANIGAN: We have one pretrial, Judge, where, like, the discovery motions and all the non-evidentiary motions were agreed to, but there have been no evidentiary trial.

13 THE COURT: The 25th of November ··- no, that is the week before Thanksgiving. That is when you leave off the week after.

MR. TURPEN: I'm leaving the week after Thanksgiving. This is the week before.

THE COURT: All right. The 25th at 9:00 o'clock.

MR. TURPEN: At 9:00 o'clock.

THE COURT: And what that does is it has you appearing before the trial judge for your pretrial, for your -~-_..:~--~ announcement and for your jury trial·. ·-· ~- r-~--.z:::=-=~-- You stay hooked up with ·---------· where the case is set.

All right?

LISA TUCKER RILEY, CSR, RPR ..

Scanned Jan 26, 2012 7 Pretrial Hearing 10-23-08

1 MR. TURPEN: Sounds good, Judge.

2 THE COU;RT: Done.

3 (End of proceedings)

1? .L~

l3

?1

24 * * * *

LISA TUCKER RILEY, CSR, RPR . . . . ' Scanned· Jan 26, 2012 8

1 STATE OF TEXAS COUNTY OF ARANSAS 3 I, LISA TUCKER RILEY, Official Deputy Court Reporter in and for the 156th District Court of Aransas, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were reported by me. 11. I further certify that this Reporter's Record of the 12 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties.

14 I further certify that the total cost for the 15 preparation of this Reporter's Record is $44.00 and will be 16 paid in full by Aransas County.

17 WITNESS MY OFFICIAL HAND on this, the 11th day of March, 18 .2009. l _/) . . r----- 20 ~:J . ~~~ L:ISA 'l'UCKER R.I:LEY, CSR, 21 Texas CSR #3895 Official Deputy Court Reporter 22 P.O. Box 700 Sinton, Texas 78387 23 Telephone: 361-364-9320 Expiration: 12-31-2010

----~---~ LISA TUCKER RILEY, CSR, RPR APPENDIX EXHIBIT# 2 RR VOL .. 5 OF 11 HALL ·- £~ ·*~ ~ Scanned Jan 26, 2012 Pretrial Hea.ring 11-25-08 lf-<1, .:l1S-o.; 1 REPORTER'S RECORD VOLtlME 5 01!" II VOLtlMBS 2 TIUAL COORT CADSE HO. A-08-5080-2CR

5 'rBE STJU'E OF TEXAS ) Dt THE DISTRJ:CT Cotm.T ) vs. ) ARANSAS COON'ri , TEXAS ) JOSEPH BALL ) ) 36TH JUDIC1AL DIS~CT RECEIVED IN COURT OF CRIMINAL APPEALS AUG 10 2011 tomse pearson, Clerk

- Original produced on March 11 , 2009 -

20 On the 25th day of November, 2008, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Michael Welborn, Judge Presiding, held in Rockport, Aransas County, Texas.

24 Proceedings reported by computerized stenotype machine.

Scanned Ja1n 26, 2012 2 Pretrial Hearing 11-25-08

lB 2.1 ._,___._ _~_ _ j LISA TUC~ZR RI~EY, CSR, RPR Scanned Jan 26, 2012 :·:. ?=0~£la2 ~ear;~q 3.1 -.25 ·- D·(:

PI\OCEEO:INGS 1 (Defendant. present) THE COURT: Good morning, Mr. Turpen.

MR. RODRIGUEZ: I ' ll get the f il.e, your Honor, if we can go through it.

THE COURT: Which file?

MR. RODRIGUEZ: Mr. Hall's.

MR. TURPEN: Judge, for the record, I have the State, and I have also talked to Mr. Gilmore. has the Codefendant Pate. I represent Mr. Hall.

THE COURT: Okay.

MR. TURPEN: And T~ra Cochran~May represented him before I was, and there was a motion to sever that was filed, and they were going ·to not go forward on that motion.

I have talked to my client and he in agreement. ~ I have also checked with Mr. Gilmore, and it's my understanding he is in agreement with that, too, unless his client tells him something different. That was my understandinq.

THE COURT: Who is the codefendant?

MR. TURPEN: Pate is the last name. ··.·· THE COURT: Pate.

MR. RODRIGUEZ:. Chadwick.

MR • .TURPEN: Chad --

··r L _________.lffR_. _·._. _.R._'im~-RJ._£;._;r_m_:.z_._.:__C:_b_.a_d_.r_J_c._.lr_~_ _ _._.:.._ _ _ _ _ _ _ _....Jr Scanned Jan 26, 2012 4 Fx·et.r ial Hearing 11-25-118

THE COURT: When is that one scheduled f~ trial?' MR. TURPEN: Right now January the 5 t h ( j ; ! J ;:us c:: .

THE COURT: O~c~_ses -o~e .~s~­ t.r~al doc'<et at this time?

HR. RODRIGUEZ: Yes, your Honor.

THE COURT: Okay. Well, it's kind of hard to try the¥t the same time if it's not on the same docket.

MR. TURPEN: I understand, Judge.

THE COURT: Minor technicality.

- ·- DEPUTY CLERK: supposed to be here on the 5th. the 9th. -= And also Mr. Gilmore is not He. will be on vacation till

~ THE COURT: Yeah, supposed to be.

MR. RODRIGUEZ: Your Honor, may we approach

THE COURT: On what, Hall? Did you bring my file back in? I was going to say, no, you can't, because I 19 don't have a file.

,..~ .., MR. TURPEN: That's correct. "-'- MR. RODRIGUEZ: We went ahead and marked the

liS!~ T.';Jf.:KER RILEY, CSH, · R?R Scanned Jam 26, 2012 .liear:i.nq' ;_;o.-:-_..et:':.l.a..l ] 1--25--0E!

.l that you have filed, Mr. Turpen'?

2 MR. TU.RPEN: They are, Judge. I went ahead and 3 just refiled all the pretrial motions. The only one I was 4 going to carry over from Tamara's was the motion to sever. I _; don • t think ,,..,e' re going to use them.

6 TRE COURT: All right. Well, we have got the -- 7 all right. You've got a.n order on discovery here?

MR. TURPEN: Yes.

9 THE COURT: 1t looks like i t has got some pen- 10 and-ink changes on it. This particular order, is that the 11 one?

12 MR. TURPEN: Yes, sir.

THE COURT: Y'all are agreeing that this order H should be entered; is that correct?

i5 MR. RODRIGUEZ: Yes, your Honor.

} 8 MR. TURPEN: Thank you, Judge.

.1 9 THE COURT: Motion in limine we'll take up I ~~0 ·guess at time of hearing.

:21 MR. RODRIGUEZ: Yes, Your Honor.

n THE COURT: I'm looking at the different orders 23 here that are contained. There is a motion .for severance, and ;; 4 ::s I believe that has been withdrawn; is that correct?

MR. RODRIGUEZ: -- That • s correct, your Honor. { ~ Scanned Jan 26, 2012 6 Pretrial Hearing 11-25-W

1 THE COURT: Is that correct?

2 MR. TURPEN: Judge, what I would like to do on 3 that is leave it in the fil.e just in case we need it because I did talk to Gilmore. Gilmore says he didn't see any reason to sever unless his client talks otherwise, but I haven't talked 6 back with him to know that, and 1 don't think he has a motion in the file.

THE COURT: All right. Then no ruling on the ~ motion to sever. .:.L;· --======-- MR. TURPEN: Thank you, Judge. ll. THE COURT: Motion to inspect and examine and test physical evidence.

MR. RODRIGUEZ: Not a problem, your Honor.

1.4 THE COURT: Granted.

MR. TURPEN: A.t·the sheriff's office.

THE COURT: You'll just need to make an 20 ap;>·. :d rc trn.e::1 t t.o go wherever the items are.

MR. TURPEN: Okay. ,.... .. ~i. ~

THE COURT: Motion to require State to reveal 23 agreement. In other words, that is the deal. This is the 24 ..:1.'J~~s··'2n\enT~ with whom?

.~~)L t"'lR.. RODR.IC..UEZ: The codefendants, and that's - ::::.;-+ --·---------------~----------..J Scanned Ja1n 26~ 2012 7 Fr:e.t.r ial flea r i nq l.I-25-08 .

basically a public record now since they went ahead and entered their pleas. ..-- -------=- r---·· -~ 3 MR. TURPE_!!;' I have been told they have -- they

me. ---- have it i.n each one of their files. That is sufficient for He said it was the same deal for each codefendant; is that correct?

7 MR. · RODRIG'tlEZ: Yes. Each one received the same 8 plea offer.

9 THE COURT: So basically no objection to it.

- It's granted, and I would just simply indicate see ~odefendants' plea bargains. .--- 12 MR. TURPEN: Yes, sir.

13 THE COURT: And they are a public record.

14 M.R. RODRIGUEZ: Just awaiting sentencing at this . ---==; 15 point. ~ s~~?' 16 ~MR. TURPEN: I understand.

17 rHE COURT: This is one of the group that I J8 accepted the plea bargain on? . ., 1Q MR. RODRIGUEZ: That's correct, your Honor.

20 THE COURT: That we're waiting to get sentenced.

2"!

n - Okay.

What is this mo-:.ion tc instruct to .refrain from racial disct'irninati·!)n in the exer.cise of St<=~te • s d·ttorney

24 peremptory s~xikes?

.... 2S MR. ROD.:-<.IGUEZ.:

'( - - - - - - - - - - - - 1 It's kind of like that

LlSA T:JCKE.R !U.LEY, CSP., RP?: Scanned Jan 26, 2012 8 f'r.et..rial Hearing ll-25-()8

1 preemptive Batson.

2 THE COURT: I don't think 3 MR. RODRIGUEZ: I -- 4 THE COURT: the Court needs to grant any 5 motion in that regards. That is the law.

6 MR. TURPEN:. I understand, Judge. I have talked 7 to the State about it, but th:i.s case involves or at least the a allegations are that Mr. Hall is involved with a gang that is probably known for racial epithets and things that I just 10 wanted to preclude that from even coming up.

11 THE COURT: That' s a Batson.

12 MR. TURPEN: Here in Rockport·! don't think it 13 will any way.

14 THE COURT: That is a Batson issue at time of 15 trial.

16 MR. TURPEN: Yes, sir.

17 THE COURT: And the State will always be

: 20 THE COURT: Although I don't think it's : 21 necessary, and you'll be ordered not to do that.

: 22 MR. RODRIGUEZ: Yes, your Honor.

23 THE COURT: And they'll -- 24 MR. RODRIGUEZ: And I ' l l refrain from doing

25 '~t-h_a_t_·-------~~----------------------------------·------------~1 l..ISJ!. T<XKE.H RI:LEY, CSR, R.PB Scanned Jan 26l 2012 9

1 THE COURT: Motion for inspection of premises.

2 MR. TURPEN: It's a trailer and a yard i.n between.

4 MR. RODRIGUEZ: The only problem we have with that, your Honor, is I'm not sure who has the premises now.

6 It was a trailer. I'm not even sure it's still there. At one time it belonged to the mother of the vic-tim. Of course, the victim is now, of course, deceased. The mother that was living there is in custody, and the children are with CPS. So 10 there are basically -- unless someone else moved in. I don't 11 know who controls the premises. I told Mr. Turpen that I'll 12 try to fi.nd out who has it and make it available to him if I 1.3 can.

MR.· TURPEN: I'm not asking that the defendant 15 be present. I'm just for my personal vie•~~point.

18 always remain is is the premises under the control o.f the 19 State, and the answer is, no, it's not, is it?

20 MR. RODRIGUEZ: No. 21 THE COURT: I don't know how the State -- I can 22 order the State to all()w you to attend the premises when they 23 don't have control of the premises.

24 ~ffi. TURPEN: I understand. I guess we have an 25 agreement I think between us to find out who has control~

'!' oo:::.

Scanned Jan 26, 2012 10 ~-.. ~ :?} ;~ ~ .~ :.:..:l _;-:·e.;;_ r ~~ ;'-~9 .: J_ ·- ;: 5- ~;·f!

1 try to set something up where I can go out there and look at it.

3 MR. RODRIGUEZ: I will make an effort to assist him to get the information.

5 THE COURT; That's exactly what I'm putting on the order. I'm denying it but St:.ate is to assist in viewing of premises and not to take any measures that would deprive a him of the ability to examine it.

9 MR. RODRIGUEZ: If anything I can get a. floor 10 ·plan £or him.

11 MR. TURPEN: That's £ine.

12 MR. RODRIGUEZ: Tracy Watson who was living in 13 the residence is sti·ll here. I can probably get a diagram 14 MR. TURPEN: Get a diagram of the yard.

17 THE COURT: All right. Assist as best you can 18 in that, and most importantly don't take any.act.ion that would 19 deprive him of the ability to examine the premises noting that 20 it's not controlled by the State.

: 21 The only other thing we have is a motion for 22 voir dire of expert witnesses. What is this?

23 MR. TURPE/11: Basically it's a Da1.1bert challenge.

24 I have talked to the State. What I'm going to do is ask the 25 Court to hold it in abeyance until trial. I think I ma.y be

'~"'"~', ~... .......... ; .:. I. ! I Scanned Jan 26, 2012 11 F.r(-;t:r~c:l ifearinc_; .i. Z -25 -·OB

< able to resolve it without having to have that type of t:. hearing. ~;. I have been informed by the State, number one, I 4 have got the expert's names. I can call them; review the ~ stuff with them, but also it's my understanding one of these 6 tests, the scent test.

MR. RODRIGUEZ: The scent lineup.

8 MR. TURPEN: They are going to have one of these 9 supposedly in~- Ms. Cable is going to have'one in Sinton on .. :') the 15th or something like that, so I may be able to come up ]. 1. there.

- ·-·· 2 THE COURT: I have heard about those things. ., J. MR. RODRIGUEZ: And I'll provide him with <i information, the curriculum vita of the expert that will do ' ··' that. ..;. 6 THE COURT: Isn't the expert the dog?

l ., MR. RODRIGUEZ: Well, the handler.

1 E< THE COURT: I mean, if you want to voir dire a j l0 dog, feel free. ·:2 (J MR. RODRIGUEZ: The dog did have training, so I ".{ ...:.. 1 guess there is a certification.

' ~.~ ') <..<.. T~ COURT: I mean, which one is the witness?

::t:3 Which one is the expert witness? ) ~j MR. TURPEN: The dog or the trainer? ··"'"t .~:.~ s THE COURT: The dog or the trainer? I think the { '-------·------- ·----~----------~---··-·--·- Scanned Jan 26,2012 12 E"ret.dal Hear.ina n -· ?.:'i - uj)' - ._,. 1 dog is the wi.tness. I \"OLlld be willing t.c grant that. one to 2 see him voir dire a dog. I would like to watch that.

3 Okay. Yeah. Well. just hold that off. I think 4 I knOv/ ~1here you're going on that.

5 MR. RODRLGUE'Z: r1y unde:rstand.ing is the.

6 bloodhound is very truthful.

7 THE COURT: And 1 dor1' t. think t.h.at ·the defense 8 has r.o file any specific motion and be gran·ted a motion to voir dire an eKpert witness. I think they are jus~ putting LO you on notice as t:ar as I'm concerned as far: as admi s.s ib.i.l i ty ll of any te.stimoc-,y regen-ding any type of expert areas. You'.r-e 12 always entitled to take the witness on voir d:i.re to det.ermine 13 the competenc~r and ask the Court to make such a 14 det.enn.i.nation 15 MR. 'l'URPEN: underst.and.

16 THE COURT: even a"t: the time of hearing.

17 •'-m. TflRPBN: was goi~g to try to do it outside 1B the presence of the jury, but I Lhink we can probably r&solve J 9 .i.t.

20 THE COURT: The court woulc prefer that if it is 21 an issue that is qoinq to be in the t~ial of the case, it 2.2 ,,.,ould be best to do tr.is ahead of time if we know that it's 23 going to be an issue-- 24 MR. TURPEN: I will.

2:S I THE OJl 2. pre tria 1 rr.at r.er vc=.:.sus JJ L.~-- ----------------------------- -------------------------------- .LISA TUCKER RILEY, CSR, RPH Scanned Jan 26, 2012 1.4 .Pretrial .f!earing ~~25 -OB

1 THE COURT: Okay. Anything else on your 2 pretrials?

3 MR. TURP~N: That's all I have, Judge.

4 THE COURT: All right. Well, very good. Those 5 orders will enter as reflected.

6 MR. TURPEN: Thank you, Judge.

7 Also I think all the other -- I have asked that 8 all the other motions that Ms. Tamara Cochran-May be filed, 9 have those be struck at this time, too, so there is no 10 confusion.

' 11 THE COURT: Okay.

- 12 MR. TURPEN: I'm not sure what she filed.

13 THE COURT: All right.

14 MR. TURPEN: I just think it's cleaner to go 15 forward with what I have got.

1 6 TRE COURT: You're going forward on your motions 17 only? .l8 ---v HR. TtTRPEN: Right, except for the motion to ] 19 sever in case Hr. Gilmore comes back and says his client wants 20 to sever and needs to sever or something. We'll bring it 21 back.

~ r,.:::.£.") THE COURT: I think it's more than a want or a ' 23 neeG. .1. think there has to be some purpose behind some ?4 reason the case needs to be severed such as prior 2.5 history or something of that nature.

~·---·~-------- LISA TUCKER RILEY, CSR, RPR .. .

Scanned Jan 26, 2012 15 f'· ...~··;·:-t E.i.a .! HE..=:.a:~·: :i nq -~- .'! -· } ~-: -'\j'£';

2 .THE COURT: All right. Very good. Very good.

3 We'll see everybody on the next setting date, whenever that may be.

5 MR. RODRIGUEZ: ~22nd.

6 THE COURT: Well, we' 1.1 see everybody on that date. That's me. 8 (End of proceedings}

1.2

22 * *

SlSA 1~CKER RILE~, CSR, FPR I 0 t

Scanned Jam 26, 2012 16

J 2 COUNT!' OF AlUUIISAS 3 I, LISA TUCKER RXLEY, Official Deputy Court Reporter 4 in and for the 36th District Court of Aransas, State of Texas, 5 do hereby certify that the above and .foregoing contains a true 6 and correct transcription of all portions of evidence and 1 nf'hPr nrnr.PPrli nns rP-mlf~Sf'.F:cl in writ" i no hv r:ounRP.l for thP

-.-.·- ___ _... --~--- --- .... ______ -----, !10 in open court or in chambers and were reported by me. i].1..

:12 proceedings truly and correctly reflects the exhibits, if any, : .,. J3 14 I furthe.r certify that the total cost for the -1.~

-- Jl6 paid in .full by .n..ransas County.

•'~ .<. I':l

;),..- L ) ·1a 2009. \.._

y~ ].g. ( -- : l - -·· . -\\_~ . ~20 - L7SA TUCKER IULBY, CSR, R .:21 l"exa-s CSR #J99!i , Official Deputy Court Repo~r. !:22 P.o. Box 700 Sinton, Texas 78387 o·,'!.:, "l~l.•tt~tte-. Yol. -~ou~-<;.?J1'0 Expiration: 12-31-2010 .?5 w APPENDIX EXHIBIT# 3 RR'VOL. 5 A OF 11 HALL EXHIBIT # 8 RR VOL SA OF 11 DATE 10/23/08 HALL PRE TRIAL

Zi· #3 Uul5A-1 ~l .'

Scanned Jam 26, 2012 Pretrial Hearing 2-5-09

1 ~'SRBCORD WLDMB 5-A OF 11 VOLUMES 2 TRXAL ~ CAUSE HO. S-08-5080-2

5 '.I:BB STATE OF 'I'EDS ) D1 'DB DIS'.rlUC'l' OOtJRT ) vs. ) .ABAIISAS comr.rr, "1'BDS ) 7 ) ) 3ftll .JtJD:ICXAL D:IS'nl:ICT RECEIVED IN 9 COURT OF CRIMINAL APPEALS : 10 AUG l.<l 1111 LOUiSe Pearson, Clark 14..

.16 11'7 ta ORlGINAL 20 9, the following 21 proceedings came on to above-titled and 22 numbered cause before Whatl.ey, Judge 23 Presiding, held in Texas.

24 Proceedings stenotype machine.

91 JO 9I QS~·d .. . .

Scanned Jan 26, 2012· Pretrial Hearing 2-5-09

1 APPEARANCES

3 Mlil. PA'l'RICK L. Ji'LAHI:GAN SBOT NO. 07109600 4 District Attorney P.O. Box 1393 5 Sinton, Texas 78387 Telephone: 361-364-9390 fi At:f:O:rney for 'the State ·

B MR. S'rANLEY A. TURPEN 9 SBOT NO. 20344300 Attorney at Law :10 .E.O. Box 1209 Portland, Texas 78374 11 Telephone: 361-643-6422 At:t:orDeY for t:he De.t'eadant: Ba.l.l. .12 1.4. l'diL .:IOBH. S.~ GTLMOBE, .m.....

SBOT NO. 07958500 15 Attorney at Law s. Tancahua .J A\ C'.&lrpl.'I.S .C:I).rj.,sj-j ,- .T.e.x.as ].8 !tlU Telephone: 361-862-4378 17 At:t:onaey for t::he De£endan:t Pate La . 2!)

. "2.'2.

' 23

L-----~-------------------------~1 USA TUCKER RILEY, CSR, R?.R Scanned Jan 26, 2012 :?retTj.a.l ~"1~?aJ_-·1.n~r 2-·5-09

1 PROCEEDINGS 2 (Defendant present) 3 MR. FLANIGAN: I'm .ready on Hall. I'm not happy with a late-filed motion to suppress that we have in Mr. Hall's case.

6 THE COURT: It's not set for pretrial.

7 What is your motion, Mr. Turpen?

8 MR. TURPEN; Judge, well, first of all, I'm ready for trial subject to I have carried over, with Judge Welborn's permission, the Daubert challenge concerning the dog patch sniff test. I have talked to Mr. Gilmore. We feel it's probably a good idea to go ahead and go forward with that. I have also -- 14 THE COURT: I don't know how Judge Welborn can ca.rry over an evidentiary hearing without checking with everybody. Do you-all know about that?

17 MR. TURPEN: The State's attorney was present when he did that, Judge, at the last pretrial hearing. That's when we went through it. My understanding at that point the State wasn't ready to go forward with it that day; neither were we. That is why 22 THE COURT: Carried to trial. It's not carried to pretrial; carried to trial.

24 MR. TURPEN: Exactly. Carried to trial.

25 THE COURT: Oh, okay.

------------~ Scanned Jan 26, 2012 4 F,_ri:?t.ri.aJ. Hear_ii:..:;t 2-5-09

1 MR . .TURPEN: Tha:t's what I'm asking for is to carry i t to trial. I don't think i t will take that long. I just -- I have talked ·to David Cano. David Cano told me that you-all had one in Sinton, and evidently it was grante,d, so . . .

5 THE COURT: Are you talking about as far as a Daubert challenge?

7 MR. TURPEN: There was another Daubert challenge aga.ins t the same witness and in Sinton.

9 THE COURT: Don't know nothing about it.

10 MR. TURPEN: ~1on th and a half go • 11 MR. FLANIGAN: Judge Johnson heard that hearing ~ and denied the defense challenge -- 13 MR. TURPEN: Correct.

14 MR. FLANIGAN: -- to that- evidence by the Court, not that it makes any difference in this trial, but 16 THE COURT: I don't know anything about it.

17 Okay.

18 MR. TURPEN: Then on this case I was brought in on this case when Tamara Cochran-May

THE COURT: reset it this far down the road.

MR. TURPEN: I know all of it.

I have talked with Tamara. -- That is why we

What I have got is a motion to suppress on a photographic lineup. In the photographic lineup that I had from ~amara there was only one in the~e for Mr. Hall. Now, I filed my pretdal ~otion~'_j

l.ti SJl. 'r:.J·~.:·to·~.E.R P.l.LEY, (~.SR., B. PH.

Scanned Jan 26, 2012 s :r:.:.:.-f~ r:. r i..;; 1 Hea.r· ing ~?-.5·-09

1 the Daubert challenge and all the stuf.f in there and went 2 through it. At that point I didn't see any issues with 3 photographic lineups based on what I had seen.

4 Later, and I can't give you the exact date bu·t I 5 believe it was the early part of January, that first week in 6 January, I received some supplemental discovery from .7 Mr. Rodriguez, one of those being a photographic lineup of 8 Mr. Hall \~here he is identified as No. 5. I checked with 9 Tamara. We did not have that in our discovery before.

10 After I went through the first week in 11 January I had a trial that lasted most of the week in Kleberg.

12 The second week I was sick. I got sick the first week. So I 13 spent the second week trying to recover. The last 14 two-and-a-half weeks I spent getting ready on this trial.

15 When I sat down with Mr. Hall, Mr. Hall who has 16 been looking at these photographs for a long time before I 17 even -- I got the case, he noticed something t.hat I had not 18 seen and what he has put in _here I put in my motion to 19 suppress photographic lineup. He is alleging, and I certainly : 20 can't answer his questions on it, that the two photo arrays :21 that deal with him have been tampered with. The reason that . 22 he has brought this up is that when you look at the other : 23 photo arrays fer all the other codefendants the location of 24 the codefendant in the photo array is always the same and the

25 l. . _p_e_o_pl_e_s~u-r_r_o_u_n_d_i_n_q__h_i_m_h_.a_v_e__n_o_l_c_h_a_n___q_e_d_.____________.___ ___ Scanned Jam 26, 2012 .?:·.p;:r..:i.t:i Hearinq 2-·5-09

1 In Mr. Hall's photographic lineup, the two 2 lineups, for some reason his location changes from five to three and there is also different people that are surrounding him. So he is alleging that the photograp~~c arrays were S tampered with and that when the witnesses look at this, that there is a substantial likelihood of misidentification of the defendant in trial as a result of this procedure, specifically the tampered photo arrays of the defendant were different than the photo arrays of the codefendant.

10 The defendant's picture was rotated and 11 submitted with each array having different people around the 12 defendant, both acts -- 13 THE COURT: I don't need you to read your 14 motion, Mr. Turpen.

15 MR. TURPEN: I'm just explaining.

THE COURT: Explain in normal terms. You're }.7 reading • .1'8 MR. TURPEN: Okay. Explaining THE COURT: Your client thinks your photo array 20 is messed up. Cool.

.n So, Mr. Flanigan? : ?:?.. MR. TURPEN: And I think it would take probably 2?: five or ten minutes, and I would ask that it be carried to 24 trial along with the Daubert challenge. That's why I filed it 25. today so ·there wouldn • t be more of a surprise than what there ---------------- Scanned Jan 26, 2012 Pretri;:d Hearj_ng 2-5 -(/':!"

l is, if there is a surprise, instead o.f waiting till the, day of I 2 trial like I filed it today as soon as I found out there was 3 some issue that I have not seen.

4 MR. FLANIGAN:· Well 5 THE COURT: Sorry, guys. I haven't touch the £ cases before. It's all new to me. --, ( MR. FLANIGAN: Unfortunately the State is stuck.

S Either we have to dea1 with late filed motions or we have to - 9 deal with ine.ffective assistance of counsel. Because business !..

10 doesn't get taken care o.f in a timely fashion and according t<:> 111 the rules and according to the Court's schedu.le, we're going :12 Ito object. I'm not going to be surprised if the Court goes ahead and has a hearing however long it takes anyway, but, you .11 know, we're just at the mercy of the Court or at the pleasure i15 of the Court. Let me put it that way.

i16 THE COURT: Who needs to be witnessed? I mean, 17 who is supposed to be the witness on this? You're talking :18 about five minutes. The.r:e is no way you can do it in one !19 witness in five minutes.

MR. TURPEN: Well, you have got Officer Brooks 21 and one of the officers, probably Matt Baird.

THE COURT: Is that right? Do you know?

23 MR. FL&VIGAN: You know, Judge, I have no idea.

24 I got this about three minutes before I walked into court to deal with the schedules of th!s matter.

I ~------------------------------------~ l,ISA TUCKEP. RILEY, CSR, RPR ...·. .(.

Scanned Jan 26, 2012 8 Prerr~al Hea:inq 2-·5-G.~

1 THE COURT: Okay. All right.

2 MR. FLJlNIGAN: So 3 THE COURT: You need to figure out who i t is and I want to know how much time and when it is going to be done then. Okay? I need to know who the witnesses are so we can get them here to deal with it.

1' MR. FLANIGAN: I assume that they'll be here any way, Judge. They'll be available.

9 MR. TURPEN: They are on his witness list.

110 TRE COURT: Okay. Just make sure they .are. :11 Okay. ~12 MR. TURPEN: Judge, I think the Court needs 13 me -- well, I usu~lly try to file these things in a timely 14 manner. 'rhis is one of those situations where I have qot new :15 information. Granted if I could have gotten on top of it the :16 first week in January when it was handed to m~, that would ll7 have probably been a better situation, but that's not the way il8 it happened.

:19 THE COURT: Okay. What else?

MR. TURPEN: Other than that I would ask that ;:21 the Da bert challenge be taken up. Other than those two ~22 issues we're waiting, to qo to trial.

23 I have checked with my client he has also told . 2!1 JllP. :t.hat....hi.s .mot.b.e.r,. .who .is pr.e>..se..n.t. :t.oday,. t.ba.t :t.bey .MY£' :25 brought him clothing to the jail. He has not been able to Scanned Jam 26, 2012 9 --~'X:etrial Hea.r:i.nq 2--.5-0:-J

1 even look at the clothing yet, and I'm sure there .is some -- 2 THE COURT: He won't. They'll put it on him.

3 They have got it. I'm sure all -- like all th~ other jails, q t!":ey ha•;-e it.

s THE OFFICER: They' 11 dress him aut Monday morning. "7 MR. TURPEN: That is my request, Judge, is to at least have him try on the clothes before trial, because if they need to be altered -- 10 THE COURT: I'm not in charg~ of the jail, l:i Mr. Turpen. I'm sorry. You'll have to talk to somebody else

- J..2 about that. Okay? We're having a meeting at 3 o'clock, but J < you're asking things of me to do that 1 have no control over.

14 MR. TURPEN: I ' l l certainly address that with 15 the sheriff.

1<5 THE COURT: What else?

J -j MR. TURPEN: That's all I can think of, Judge.

1B THE COURT: Okay. Who is doing punishment?

19 MR. TURPEN: Ma'am?

20 THE COURT: Who is doing punishment?

21 MR. TURPEN: I have to talk to my client. He 22 has still not decided yet.

23 THE COURT: Before 9 o'clock it must be filed. ?:.1 MR. TURPEN: I understand, Judge.

2S THE COURT: Mr. Gilmore?

L ..

Scanned Jan 26, 2012 Pret.r.ial Hearing 2--5·-09

1 MEL GILMORE: ... think '•Je're going i:o jury for punishment.

3 THE COURT: File your election before 9 o'clock.

4 MR. GILMORE: Okay.

5 THE COURT: All right.

6 (Another case called for announcement) 7 MR. TURPEN: Yes. Judge, announcement on punishment, I'm pretty sure it will probably be the jury because we did discuss that at the jail yesterday evening, 10 but 11 THE COURT: Okay. If you-all don't tell me now 12 otherwise i t defaults to me. When I start at 9 o'clock Monday 13 morning i~ goes to the judge. I have to stop it because I can't get anybody moving on this stuff, and I have one person 15 that has done it today. ------------------------ 16 All right. - -~~er one is Hall and Pat~ l.7 Number two is Barns, subject to Mr. Roger's 18 availability, three is Ramirez, four is Moreno, five is 19 Satterlee, six is Campos, and I have down seven and eight for 20 Moreno, but I know we won't try both of them.

21 MR. FLANIGAN: Which Moreno are you speaking 22 about?

THE COURT: Ramiro. I'm sorry. I'm looking at 24 Moreno. Instead I wrote them down seven and eight. Then nine and ten, last two, Chupe and Soliz.

LISA TUC.KER RILEY,, CSR, RPR ..

Scanned Jan 26, 2012 11 Pretrial Hearina 2-5-Q9 -

2 THE COURT: Okay.

3 (End of proceedings)

:. 10

.I.?

: 18

24 +

L__ ·-·-----·-------------...1 LISA TUCf\ER RILF.:Y, CSR. .RPR .. '

. -- Scanned Jam 26, 2012 12

l S'I!A'l'E OF TEXAS 2 COON'l'Y OF ARANSAS 3 I, LISA TUCKER RILEY, Official Deputy Court Reporter 4 in and for the 36th District court of Aransas, State of Texas, 5 do hereby certify that the above and foregoing contains a true 6 and correct transcrip·tion of a.ll portions of evidence and 7 other proceedings .requested in writing by counsel for the B parties to be included in this volume of the Reporter's Record 9 in the above-styled and numbered cause, all of which occurred 10 in open court or in chambers and were repo.rted by me. ll I further certify that this Reporter's Record of. the 1.2 proceedings truly and correctly reflects the exhibits, if any, 13 offered by the respective parties.

14 I further certify that the total cost for the

17 WITNESS MY OF~ICIAL HAND on this, the 21st day of July, 18 201.1.

LISA TUCKER .RILEY I 21 Texas CSR #3895 Official Deputy Court 22 P.O. Box 700 Sin~nn. TPx~~ 7R~R7

25 l~--~------------------ I,ISA TUCKER RILEY, CSF,, RFR APPENDIX EXIDBIT # 4 HALL'S CRIMINAL DOCKET SHEET . ~(t:~ ~ Extla:' I . ~ d{. ~ - ( NUMBER OF CASE

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6' TBB STATE OF TEXAS ,* vs. • * ~6~ JODXCXAL DXSTRICT * a• 9: IAB!rEB ZNDB1I

12 ORIGINAL RECEIVED IN COURT OF CRIMINAL .4.P.PE..4J.S AUG 10 2011 15· !

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Z'.Z case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06112/12 Page 3 of 66 ex_ tf 9- Scanned Jan 26, 2012

CAUSE NO. A-08-5080-2-CR(HC3) EX PARTE: ( IN THE DISTRICI' COURT ) 36TH JUDICIAL DISTRICT CHRISTOPHER JOSEPH HALL ( ARANSAS COUNTY

INDEX

Order from Court of Criminal Appeals ....................................... .

Conespondence to Judge and District Attorney ................................ . 4 Order Appointing Attorney .............. , ................................. .

Order from District Court Judge Janna K. Whatley ................... : .......... . 6 .~J- ·...... w '""' ...:; v I:A i.f . ....

:·::::~::f ~~~i;:~ -~~~ -~~~~r·~~~:~~t~~~ ~~~~; $J~, :c: ~: {i ·>!~ i. :::::::::::: . 'rJi;(~r: v~~:.~j.tir...at,im,.~ ~m.t:DJ•. l(l.Jl_.~+J..:~1- ... (}x;~_v:~... ... ... ... ............. ... . t7 Receipt for Capias and Precept from Sheriff Department_ . .<t;.{. ~................. 19 Cosrres.oondence to Attome.v ................................................ . 20 ·v- cajpias Returned Served ................................................... . 21 Precept Returned Served .. / . ............................................. . 22 Co~espondenc~ from Defen~ant{... ;,;.a..,· . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Wawer of Ana•gnment - .. . 1 .7(//./; ........t/; / · .. /i,Pf .. -'J .. · · 25 7...... . fA ... t:·~f. ... 7(~ 1: ... jLJf: Mottion for Discovery with Order . . 1{ q. 27 MMion for Authorization to Expend Funds for Investigator ... :1.t.~I .. ~--~ ... 39

:=:7:ti~.:.f)ef~:{~i/:t;i~::~ ~ 1 ft 0 43 .h...., . vc.....er on ....-a y'- ., ....,(.. , .s:.... ,.,_ • -"' 11-(, • I -:7 lv&u"Clon &u£ l;...ullt'lnuana: •••• ~ •• ~•••• s· ·'· .T. : • • • . . • . . • • • • • . • . • • • • • • • ~ Order on Motion for Authorization to Expend Funds for Investigator • . . . . . . . . . . . . . . . 46 ~.·&WJA. ~~. . . . . . . . . . . . . . . . . . . . . •. . •. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~1

Mo1~~~~~yer. ~.l?c:·;.;.;.i ·~-vra)rtJ--'...TI~........................ 48 Dfr.ei:ldanl'.<~~ fnr .S~ ~ ......... ·. . .. . . . . . . . . . . . .. . .. .. . . . .. . . . . . . . . . . . .50 Case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06/12/12 Page 6 of 66 Scanned Jan .26, 2012

Stsate's Application for Subpoena ........................................... . 189 Su'bpoena Returned Setved .Tu.<ttio .P~ ~ - - ............. • .................................................. . 161 M<Otion to Suppress Photographic Identification ................................ . 162 _,, l~)J.t'l~· St."lte's Application for Subpoena ........................................... . 165 ' CcA-0:.:' Sulbpoena Returned Served ) ~ "\.,- ...: \ ;.:..rv· J Je.nnifer Leyva ........................................................... . 16i ;c. i p1i\ ,. t;:\ t) Jli:')' l)i1Jt': •..•.•.•... ,. - - ......•..- ........ - ...... ~ ~ .................................... -~ ...... ·' .. .. .. .. .. . .. . .. . . . 168 ,o : \ ()-./ • \ ., [} 1'/ )-' /'\\ o OJ' ' Ernest Solis .......................................................... · 169 -------. --·--·-------.....~-- Defendant's Election as to Punishment ....................................... . 170 Strike List - State ........................................................ . 172 StJ"ike List - Defense ............................................. ·........ . 174 Juey Chosen ............................................................ . 116 JueyNote 1 .............................................................. . 178 Chlllrge of the Court ...................................................... . ).(\) Ve:rdict ................................................................ . '191 lrnry Notr: l . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 191 Punishment Charge ...................................................... . 194 'l"~:."WrJ.. .............................................................................................. 198 Triial Court's Certification of Defendant's Right of Appeal ........................ . 19S Order to Withhold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ~ . . . . . . . . . . 20( N<ntice of Appeal filed Pro Se . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Or•der Appointing Counse-l ................................................. . 202 ·~o flee ol Appeal to Court ot A.ppe81s ........................................ . Wj Notice of Appeal ......................................................... . 204 W~ ~ Spt\.")\'~'~N:Mmrhrh.'l\1m\mi.TC,b*lf'Ra.~ ............. . 2.9':' Re.·quest for Preparation of Reporter's Record and Designation of Matters to 1be Included ........................................................... . 210 Amended Notice of Appeal to Court of Appeals ................................ : 212 Co,rrespondence to Court of Appeals ......................................... . 213 Cct•rrespondence from Court of Appeals .................................. : ... . 2f4 Co•rrespondence from Defendant ............................................ . 216

iv Case 2:12-cv-00093 Document 11-8 Filed in TXSD on 06/12/12 Page 7 of 66 Scanned Jatn 26, 2012

Correspondence to Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Jud;gment of Conviction by Jury; Sentence by Jury to Institutional Division, TDCJ . . . . . 218 Recei'pt tor Pen Packet . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 . Nc•1tice from Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 C\aiun ior rdtmyl )'avcnl\c A\\omey i-=s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 'l'lS Correspondence from Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 C$1'ii'c.r ~ - - . - .............. - .. - .. - ....... - ... - ......................... ·.. . . • . . . . . . . . . . . . 229 Ordler from 13111 Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 Not:ice of Setting ..•.........................................·. . . . . . . . . . . . . 233 Co11respondence from Defendant ................................ .'. . . . . . . . . . . . 234 Order Allowing Withdrawal of Counsel and Appointing New Counsel . . . . . . . . . . . . . . . 236 Aff'.Udavit oflndigence with Order Appointing Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Fax Notification of Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 t:ov·er Letter lrom Court ot Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~45 1udgment and Opinion from Court of Appeals (Withdrawn) . . . . . . . . . . . . . . . . . . . . . . . 24E C<Jflr·e...I...etMr li13m C<NA'lt of'A.w..oeh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27'?

Judtgment and Opinion from Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Clruim. fn~ Edtm."~tl.lu:vcmiJJ:. ~ Eees. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. . .. .. .. .. .. . .. .. .. .. .. .. .. . .. .. . .. 109 Conrespondence from Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 Conrespondence to Defendant .................................. ·. . . . . . . . . . . . . 312 Comespondence from Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Ma1:1date .................. ·.;... ; ....:··; ... ;_: . ;'· . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 Court Docket Sheet ..... 'A£::,k...~0~:-:-:)~................... . . . . . . . . . .. 315 ..... ..~ - •/'"" Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319

v APPENDIX EXHIBIT #6 JUDGE MICHAEL WELL BORN'S POST CONVICTION LETTER I COUNTIES: MICHAEL E. WELBORN Aransas District Judge Bee 36th Judicial District Live Oak P.O. Box 700 McMullen Sinton, Texas 78387-1303 San Patricio 361/364-9310 Fax: (361) 364-9410 October 5, 2012

The Law Office of Carrie Crisp E. Hopkins, Suite 206 San Marcos, Texas 78666 RE: The State of Texas v. Chadrick B. Pate, Cause A-08-5080-4-CR. In the 361h Judicial District Court of Aransas County, Texas.

Dear Counsel, First, I apologize for not getting you a response on a more timely basis. I did have to do some research to determine the correct answers to some of your questions.

The Judges for the 361\ I 56th and 343rct District Courts have concurrent jurisdiction in five different counties and the jurisdiction to generally exchange benches. The three Judges rotate from county to county on aset schedule and all criminal matters are set on available days without -regard to which presiding Judge will be setting. In the matter involving Mr. Pate, it was my scheduled date to handle all criminal pre-trial matters in Aransas County. (All criminal cases are scheduled for pre-trial, announcement and jury trial at the docket call of all new indictments according to the published calendar for the three district judges.)

Regarding Mr. Pates case, research shows that I did preside over the pretrial matters that involved multiple defendants in the same criminal indictment. The docket reflects that the Court was considering a motion to sever, however the issue became moot when it was announced that it appeared one or more of the defendant's were going to waive their right to a jury trial in the pending matter. Counsel for the State, did move for a continuance on the active trial setting.

Both State and Defendant agreed that said matter should be continued. I granted the State's Motion to Continue at the hearing on September 25, 2008. There were multiple orders presented and in the clerk's file at that time. The order presented to me at the hearing on September 25, 2008 was incorrect, as they presented the order on the motion to sever and not the order on the motion to continue. The order on the severance was signed by me in error on that date. The Court and the Clerk's office discovered the error before the order was formally filed (that same day) in the paper's of this cause. This ~s why the Order in question had not been file stamped.

Mr. Gilmore attorney for Mr. Pate filed the Motion for Severance that was scheduled for hearing on September 25, 2008. . .

Normally, any order granting amotion is file stamped by the District ·clerk's office afterit is granted and signed by the Judge. This order was not file stamped because it was quickly determined that the wrong order was handed to the Judge for signing.

If you have additional questio~s, please do not hesitate to call or write. I do respond to appropriate email iftime is of the essence. (Email: [email protected].)

Respectfully, . d£-tf/~ Mic{/et E. Welborn.

Judge Presiding 36th District Court.

·.... ,:, l ··.:. ~- ,... ~ - ;_..--.

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,(~~-_f:~ :r.( _:F_#=l.J ~:~~- :(.. J~.-~{l :;T·~ -T~~~:~· -~~~ .... - - >::; ,_....,_, "ll'l= fl.·- -.- ~ ·.····-' '' [~00: MICHAEL E. WELBORN n:.t>_} rr. ••. q., '"'-·· .... ,..,~ ..~t·~)... District Judge t··~ ~\ ~; ,7'l'(, ooi 36TH Judicial District ·- 0'2·4'/'F· ~R-.7~~<m":~,s.-oo ~ ~-.;- Y. WJ ..... --o- - .....:. · - • . . •- :n·' 5° P.O. Box700 . ......;~ . ::·~_.::../ SINTON, TEXAS 78387-1303 Wf'7-"&'j'S"i2'": 00013760790CT 05. 2012

THE LAW OFFICE OF CARRIE CRISP E. HOPKINS, SUITE 206 SAN MARCOS, TEXAS 78666 / I I

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"I _, - -------------- APPENDIX EXHIBIT# 7 GRAND JURY SUPOENAPHONE RECORDS 2 PAGES GRAND JURY SUBPOENA STATE OF TEXAS To the Sheriff Aransas County, Texas or any Peace Officer of the State of Texas, GREETING: YOU ARE HEREBY COMMANDED to summon, Custodian of Records, AT&T, National Compliance Center, PO Box 24679, West Palm Beach, Florida 33416 Phone- 800-635-6840, Fax-888-938-4715, to be and personally appear on the 25th day of March, A.D., 2008, at 9:30am before the Grand Jury of Aransas County, Texas now in session at the Court House of Aransas County, in the City of Rockport, Texas, then and. there to testify as witness in certain matters, (a felony), now pending and under investigation before the Grand Jury.

Said above named witness is further commanded to produce at said time and place above set forth the following records, and documents to-wit; Subscriber Information and Cellular telephone records, incoming and outgoing for (469) 323-2372 from 12:01am on December 1, 2007through 11 :59pm on January 8, 2008; You may comply with this subpoena by delivering the above described documents before the appearance date to: 36th Judicial District Attorney Investigator Russell Kirk P.O. Box 1393 Sinton, Tx. 78387.

Office- (361) 364-9390 Fax- {361) 364-9490 YOU ARE NOT TO DISCLOSE THE EXISTENCE OF THIS REQUEST FOR A PERIOD OF 90 DAYS FROM THE DATE OF THIS REQUEST. ANY SUCH DISCLOSURE COULD IMPEDE THE INVESTIGATION BEING CONDUCTED AND THEREBY INTERFERE WITH ENFORCEMENT OF THE LAW.

You will deliver to said witness a true copy of this Subpoena.

Herein Fail Not, and have you then and there before said Grand Jury this writ with your return thereon endorsed, showing how you have executed the same.

Given under my hand and seal of said Court, this the /d ~ay of ,4'fdr~ , 2008.

~~niP' District Attorney ~-!Zcff:! 36th Judicial District By !.bj___ , rrr- Deputy. "A disobedience of this Subpoena is puni$hable by fine not exceeding five hundred dollars, to be collected as fines and costs as in other criminal cases." Art. 24.05 Texas Code of Criminal Procedure /0

GRAND JURY SUBPOENA STAtE OF TEXAS To the Sheriff Aransas County, Texas or any Peace Officer of the State of Texas, GREETING: YOU ARE HEREBY COMMANDED to summon, Custodian of Records, AT&T, National Compliance Center, PO Box 24679, West Palm Beach, Florida 33416 Phone- 800-635-6840, Fax-888-938-4715, to be and personally appear on the 2ffh day of March, A.D., 2008, at 9:30am before the Grand Jury of Aransas County, Texas now in session at the Court House of Aransas County, in the City of Rockport, Texas, then and there to testify as witness in certain matters, (a felony), now pending and under investigation before the Grand Jury.

Said above named witness is further commanded to produce at said time and place above set forth the following records, and documents to-wit; Subscriber Information and Cellular telephone records, incoming and outgoing for (361) 205-0105 from 12:01 am on December 1, 2007 through 11 :59pm on January 8, 2008; · You may comply with this subpoena by delivering the above described documents before the appearance date to: 36th Judicial District Attorney Investigator Russell Kirk P.O. Box 1393 Sinton, Tx. 78387.

Office- (361) 364-9390 Fax- (361) 364-9490 YOU ARE NOT TO DISCLOSE THE EXISTENCE OF THIS REQUEST FOR A PERIOD OF 90 DAYS FROM THE DATE OF THIS REQUEST. ANY SUCH DISCLOSURE COULD IMPEDE THE INVESTIGATION BEING CONDUCTED AND THEREBY INTERFERE WITH ENFORCEMENT OF THE LAW.

You will deliver to said witness a true copy of this Subpoena.

Herein Fail Not, and have you then and there before said Grand Jury this writ with your return thereon endorsed, showing how you have executed the same.

Given under my hand and seal of said Court, this the /.2 rday of df~t.ret' 12008.

2#~- Patrick L. Flanigan

~'/2tB District Attorney 36th Judicial District By ~ ... - 0K Deputy. "A disobedience .9f this Subpoena is punishable by fine not exceeding five hundred dollars, to be collected as finE;!'s and costs as in other criminal cases." Art. 24.05 Texas Code of Criminal Procedure

1 ... ctc1~-.;f- . APPENDIX EXHIBIT #8 AAFFIDAVIT OF STACEY DEVILLE STATE OF TEXAS COUiNTY OF TRAVIS §

Befotre me, the undersigned authority, on this day personally appeared Stacey Deville, wJio, eemg 6y me owy sworn, stated: "My name is Stacey Deville. I am over the age of eighteen, of sound mind, capable of makilng this affidavit, and personally acquainted with the facts herein stated: I was; hired by·Nema Bardin to investigate the facts and circumstances associated with Chadll Pate's conviction for the death of Aaron Watson. Below is the information I learned durintg the course of my investigation.

I call~ed and spoke with Pam Heard, the district clerk for Aransas County (Ms. Heard was also the district clerk in 2008). While speaking with Ms. Heard she mentioned that there *~ li:IXJ :S\!'ft'Jcrm..~ ~w. 1 did at:Jt ~ (1(' lr.n-e « CI:J'fiY' at~ gnrttt.:tJ ~~ l1t.t «~ been informed by Attorney Carrie Crisp that a severance was in fact granted. I mentioned to M:s. Heard that there is reportedly paperwork from Judge Wellborn stating that the sever.ance was granteil. She smd that sbe clid not "know ol any severance, but il tnere was then iiit was "just a piece of paper" saying that it was granted but was not file stamped with 1their office. and thus was not granted, I call•ed and spoke with Juror Herlinda Maldonado. Ms. Maldonado repeatedly expressed that ~she did not understand why Chad Pate was tried with Christopher Hall, the co-- defemdant.. MS.. Maldonado told me that she tholl~Ytt that it was harmful to Chad's case that 1the two were tried together. Ms. Maldonado stated that. the jurors bad. trouble decip:hering which evidence and what witness' testimony applied to which defendant. Ms. Msld.amrda smred driK it was- /nnd dfl:rerr w1'r.rt \1&W did mel· tkc<Nk« lllta kCC(J IJ} } oftke evide:nce between them separate. According to Ms. Maldonado the jurors relied on the foren:um of the jury to get "everything straightened out." She told me that she and the otber jurors depended on the foreman to keep 'lne evidence s'aaigm between '\he twt) defen~dants. Ms. Maldonado said that Pate should not have been tried with the co- defen1dant because it did not help Pate's case and was "guilt by association''. She stated that Pate was prejudiced by the joint trial. It was the opinion ofMs. Maldonado that the Appticant's case was hurt by the fact that he was tried with the co--defendant. Juror Herlinda Maldonado also informed me that she (Ms. Maldonado) did observe applicant being: brought into the court room in leg restraints. . ~;p (initials) I DECLARE UNDER PENALTY OF PERJURY TIIAT 1HE FOREGOING IS TRUE AND CORRECT,." SIGNED this ~y of Pc.c.. ,.;9H- .:14(2.

X ~t. ~---.-~ Affiant, Stacey Deville APPENDIX EXIDBIT # 9 AFFIDAVIT OF NEMABARDIN .... " ......

STATE OF TEXAS COUNTY OF TRAVIS § § AFFIDAVIT Before me, the undersigned authority, on this day personally appeared Nema Bardin, who, being by me duly sworn, stated: "My name is Nema Bardin. I am over the age of eighteen, of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated: I am the mother ofChadrick Pate, Applicant in this cause. My son, Chadrick Pate (Chad), is innocent of murdering his best friend, Aaron Watson. He did not conspire to kill Aaron Watson, nor did he aid in any way or have any part in his death.

Because Chad is innocent he demanded a jury trial. To my knowledge, at no point did Chad indicate on the record or off the record that he wished to waive his right to a jury trial. Chad and I consulted often about his case and he would have told me if he intended to waive his right to a jury trial.

It was clear to us from the outset that if Chad were to be tried with Christopher Hall, the shooter and co-defendant at trial, Chad would be prejudiced. Chad's defense attorney, John Gilmore, filed a severance timely. Chad told Mr. Gilmore that he did not want to be tried with Christopher Hall, the co-defendant. Mr. Gilmore told Chad and me that the court would not grant a severance. John Gilmore spoke with me about Chad's case on several occassions.

Mr. Gilmore and I exchanged emails wherein we discussed the possibility of being granted a severance. At the time of Chad's trial and at the time of his appeal, neither Chad nor I knew that an order granting a severance in Chad's case was signed on September 25, 2008, by Judge Welborn.

The first day of the trial the State gave Chad's attorney discovery related to the co-defendant making a statement in writing against Chad .. This was something that was requested months before the trial.

During Chad's four day trial in Aransas County, Texas, from February 9, 2009 to February 12, 2009, he was in leg restraints that limited his movement. He told me that two jailers, one with the first name Miguel, put the restraints on his legs. He told me that one day they put them on the wrong way and the judge stopped the court proceedings for the leg restraints to be re-adjusted. Chad informed me that in addition to being painful,

12/20/2012 2:39PM prosecution was in the trial and was heard saying loudly that he must be in jail becasue he is wearing shackles. This witness to the prosecution was sitting behind the prosecutors, and next to the impaneled jury.

I looked at Chad's case file a few months ago, and I found no order for "leg restraints" in the file nor docketed on the docket sheet. I also found no Motion to restrain Chad during the trial. I found no "factual findings" filed anywhere within the case file either on the Severance Motion, Motion to Dismiss, or for the Motions to Continue nor any findings to warrant leg restraints.

I found that some of the Motions and Orders in the file were file stamped and others were not file stamped. I found that some of each were on the docket sheet and others were not.

I also found that there was an order filed on the 31st of July 2008 to Appear at 9am for the 29th of Sept. 2008. However, on the 25th of Sept. 2008 Judge Wellborn signed the Order to Sever Chad's trial, and the Order for a Continuance. there was a Motion to Dismiss my son's case dated and filed on the 16th day of Oct .2008 before the next order to appear dated the 30th day of Oct.2008, there was no hearing scheduled to rule on that motion. There was no evidence that the judge ruled on The Motion to Dismiss. The orders and dates of motions and hearings do not make since to me nor my son however I am certainly not an attorney and have not been able to figure that all out but it sure seems "unusual".

I do know that orders of the court and motions filed especially in a criminal trial where my son was fighting for his freedom should be treated with careful importance, where procedures should be followed as Chad was required by law and is required by law to follow all procedures and laws concerning the trial and all the following motions pursuing his freedom.

These observations of mine were not known by Chad nor myself until in recent months at the Habeas phase of his case, and had we known we would have inquired of the Defense Attorney and the Appellant Attorney as to why these observatons should not have been addressed at trial or for Direct Appeal. Neither the Defense attorney nor the appellant attorney brought these observations to my son's attention. Both my son and I beleive that he had both Texas State and United States Constitutional Rights to take advantage of a Granted Court Order for Severance and have his own trial, and that all the other orders and motions should have all been ruled on and signed by a Judge.

My Son's defense attorney did not hire a investigator, and visited my son as far as I can rememb~r only twice before his trial. My son requested visits from him on numerous occassions when I visited him in jail. I would call or email John immediately and tell him that Chad needed to see him. My son's appellant attorney did not order an investigation and as far as I remember only visited Chad twice before filing his appeal.

Because my son did not have benefit of his case being investigated before his trial, the present Habeas attorney Ms. Crisp told me how important that it would be to have an investigation done. I hired Ms. Stacey Wells at Ms. Crisp suggestion, and my son agreed to the investigation. As a result of Ms. Well's investigation, we discovered numerous things (information) that was not known to us (Chad and I) before or even during or immediately after his trial.

Ms. Wells has not presented me with a formal summation in writing of her investigtation, however the following information was provided to me either through emails from her or personal conversation with her.

Ms. Wells interviewd one Ms. Maldanado who was a juror at Chad's trial.

Ms. Maldanado told Ms. Wells that she never understood why Chad was tried with the co defendant Chris Hall and that she made the other jurors aware of her feelings more than a few times. She told Stacey that the jurors did not understand most of the law that was being presented to them and that they all relied on the foreman to figure it all out. She also said that they were told that Chad would not do 99 years that he would only do 35 years but it was ok to give him the 99 years since he would only serve 35 years. Stacey found that Ms. Maldanado was very forthcoming with her information during the first phone call to her, but that when she called her back sometime later Ms. Maldanado really did not want to talk with her. Ms. Wells told me that she recorded the conversations with Ms. Maldanado but she had not yet taken the conversation from her notes and recordings and recorded them in writing , for the purposes of attaching to Chad's Habeas Corpus.

Ms. Wells also interviewed Tracy Watson who was brought from State Jail while serving a sentence for brgulary of a habitation to testify against Chad at the trial, and who had been in a relationship with Chad, and was married to Aaron Watson. I have personal knowledge that Tracy Watson received a shortened term of imprisonment for her crime because she testified against my son. I also have personal knowledge that Tracy Watson had served time in prison before, and was on medication when she testified. In the telephone interview that Ms. Wells had with Tracy, she told her that she never beleived that Chad had anything to do with Aaron's murder. She also said that after Aaron was killed she had a relationship with an individual with the last name Kefawfer. She said that Kefawfer said that he was involved with the murder. Tracy said that Kefawfer told her that one of them had to go, meaning that either Chad or Aaron had to go. Ms. Wells said that Tracy was very coopertative with the initial phone interview.

I had asked Ms. Wells to confirm with Tracy that she had received a shortened sentence for testifying against Chad, but she had forgotten to do so. When Ms. Wells called Tracy back, she indicated that she was busy and would call her back. When Ms. Wells did not get a return call, she called Tracy again. This time Tracy told her that she would call her back but for Ms. Wells not to call her at this number again, becasue it was not her phone, it was her father in laws. Tracy never returned the second call to Ms. Wells.

In the course of Ms. Wells investigation she discovered that the prosecution had evidence of unknown DNA taken from the crime scene. Neither my son nor myself knew of any unknown DNA being revealed and the defense attorney never mentioned this to either of us. Ms. Wells investigation also discovered that the State investigation revealed no time stamps on items from their investigation. It appeared that the investigation of the house .and area where Aaron was murdered was left unattended by the police and investigators for some time after they removed Aaron Watson from the property down a few miles where Halo flight was called to take him to the hospital. When officers came back to the scene they found Tracy Watson there. The investigators asked her what she was doing there and she said she was packing Chad's clothes in a trash pack to leave outside on the trunk of a car. Tracy and her Mom JoAnn Budlong had been in jail during Aaron's murder, and they were released that same night after Aaron was murdered Neither Chad nor I were aware that the investigation of the State into the murder had no time stamps on the evidence that they recovered.

In the course of the trial, my nephew Brian Brock called me and let me know that he was in jail where Chad was in jail but that they were not near each other. He said that Chad was in a cell by himself, but that he (Brian) was in a cell with some gang members that were talking about Chad. He said that he did not reveal to them that he was Chad's cousin. He told me that it was hard for him to talk on the phone but he wanted me to know that the gang was trying to set Chad up to take the fall for Aaron being killed. He said that they all talked freely in front of him because he was acting like he wanted to be a part of them. He said he even passed notes back and forth between them. I told him that when he got out of jail to call me so that we could talk, because he may be able to help with Chad's defense. I called Chad's defense attorney and told him about who Brian was and what all he had said . John said well do you think he will testify I said yes and John said to set up a meeting with him when he gets out of jail so that he could talk to him. When Brian got out of jail, I called John and we set up a meeting so that he could talk with Brian and see if what he had to say would be helpful. I am explaining what happened next with as much detail as I can, as I found out through Ms. Wells investigation that the defense attorney Mr. Gilmore, did not remember a meeting with Brian and me.(There were other things he did not remember as well) Brian and I met John in Rockport, Texas at a car wash on Hwy. 35 across from Sigwald's(a heating or ac business). That was the spot that John choice because it was just a couple of blocks from the couthouse where the trial would be held and John had some appointments there that day. I picked Brian up and brought him there with me, I was driving my Maroon Dodge Durango and John was in his Bmw sport coupe. Brian and I got to the car wash before John and parked right in front , so that John would see us when he arrived. He parked beside us and got ·out and got into the backseat of my car. He asked Brian to explain what all he had heard. Brian told him everything. John then asked Brian if he was willing to testify. Brian then said no not really. John asked him why, and he said that the gang was very dangerous and he did not want to die. He said that he would put it all in writing for us , but he was afraid to testify. John thanked Brian for the information and said he would see what he could do. The next day John and I talked and he told me that Brian was not a good witness because he would not testify.

When I told the present Habeas attorney Ms. Crisp about Brian and what he knew, she asked if we could get him to do an affidavit. At the time I did not know where he was, but I said that I would try and fmd him. I did finally and he was in jail again in Missouri Texas. I got a message to him, and he said that he would send me a letter with everything that he knew. He also talked with our investigator Stacey Wells.

Unfortunatley, Brian was in jail when he wrote the letter and because he can't spell well. he had another inmate transcribe what he said and he signed the letter. I later found out that this could not be used as an affidavit, however he had told me everything that he wrote in that letter in more than one conversation, and that letter I have re created below.

BRIAN'S LETTER TO ME Dear Aunt Nema, While I was sitting in Rockport Texas county jail, they had me in cell 3 and I overheard an anglo they called "Spooky" saying he was sent to Arrons to collect on a drug debt and six other members came with him.

From the way they spoke, I heard them say that they went to Arrons to collect a drug debt of $7,000 that he owed, from what I heard about he didn/t have the total amount and so he had offered a motorcyvle and some cash.

Before I heard about the debt, a Chris Hall had contacted a person called "Do Boy" to get in touch with Chad Pate to find out where and how they could get in touch with Arron.

Thats when they had found out where arron lived. Chris Hall underwood Spooky Mathew Chips and two others whoms names I didnt hear clearly, all of them had went to visit Arron, things started to get out of hand, thats when Mathew Chips took Arrons daughters out of the room they were in.

Underwood and one other held Arron as Spooky held a knife to Arrons throat, then he heard his little girls scream for him, and that is when Arron began to try and fight back, they ended up on the floor towards the front door, that is when Chris Hall had pulled a handgun Im not sure what caliber it was but Hall then shot Arron in the stomach, then I overheard them say that after the shooting when they was leaving that someone appeared outside and that is when they shot off a couple of rounds at that person.

They said they could pitch the gun somewhere west of Houston Texas on I 35, thne when they were incarcerated a detective was at the jail questioning all of them about Arrons death. I overheard them plot to put the blame on Chad Pate I heard later they also killed Troy Arrons brother over the dope debt , thats how they found out where Arron lived from what I heard them say Troy was suppose to bring them back the methaphetimes or the money .... This is what I heard them say. this alot of people know this will get me hurt or kill knowing this yes I am scared for my life cause they are in A/C gang.

It is my belief that my son did not receive a fair trial.

_/!f::..+-__(Initial) 1/2-- _:r, r/(q_ ( I DECLARE UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CO

Affiant Nema Bardin SUBSCRIBE AND SWORN TO BEFORE ME by the said Ne.~~ &f~'"' on this the '2..6T\A.day of tl..tL\Jro'o..vl 'LCWL..

,,,,~~~t'''' ANJULI MARTINEZ /~~.':;:..; Notary Public, State of Texas ~}. .~)..§ My Commission Expires ..,::~;-.;\~~~ July 18, 2015 ''''"'''' to the investigation. As a result of Ms. Well's investigation, we discovered numerous things (information) that was not known to us (Chad and I) before or even during or immediately after his trial.

Ms. Wells has not presented me with a formal summation in writing of her investigtation, however the following information was provided to me either through emails from her or personal conversation with her.

Ms. Wells interviewd one Ms. Maldanado who was a juror at Chad's trial.

Ms. Maldanado told Ms. Wells that she never understood why Chad was tried with the co defendant Chris Hall and that she made the other jurors aware of her feelings more than a few times. She told Stacey that the jurors did not understand most of the law that was being presented to them and that they all relied on the foreman to figure it all out. She also said that they were told that Chad would not do 99 years that he would only do 35 years but it was ok to give him the 99 years since he would only serve 35 years. Stacey found that Ms. Maldanado was very forthcoming with her information during the first phone call to her, but that when she called her back sometime later Ms. Maldanado really did not want to talk with her. Ms. Wells told me that she recorded the conversations with Ms. Maldanado but she had not yet taken the conversation from her notes and recordings and recorded them in writing , for the purposes of attaching to Chad's Habeas Corpus.

Ms. Wells also interviewed Tracy Watson who was brought from State Jail while serving a sentence for brgulary of a habitation to testify · against Chad at the trial, and who had been in a relationship with Chad, and was married to Aaron Watson. I have personal knowledge that Tracy Watson received a shortened term of imprisonment for her crime because she testified against my son. I also have personal knowledge that Tracy Watson had served time in prison before, and was on medication when she testified. In the telephone interview that Ms. Wells had with Tracy, she told her that she never beleived that Chad had anything to do with Aaron's murder. She also said ~hat after Aaron was ( killed she had a relationship with an individual with the last name Kefawfer. She said that Kefawfer said that he was involved with the murder. Tracy said that Kefawfer told her that one of them had to go, meaning that either Chad or Aaron had to go. Ms. Wells said that Tracy was very coopertative with the initial phone interview.

I had asked Ms. Wells to confirm with Tracy that she had received a shortened sentence for testifying against Chad, but she had forgotten to do so. When Ms. Wells called Tracy back, she indicated that she was busy and would call her back. When Ms. Wells did not get a return call, she called Tracy again. This time Tracy told her that she would call her back but for Ms. Wells not to call her at this number again, becasue it was not her phone, it was her father in laws. Tracy never returned the second call to Ms. Wells.

In the course of Ms. Wells investigation she discovered that the prosecution had evidence of unknown DNA taken from the crime scene. Neither my son nor myself knew of any unknown DNA being revealed and the defense attorney never mentioned this to either of us. Ms. Wells investigation also discovered that the State investigation revealed no time stamps on items from their investigation. It appeared that the investigation of the house Unfortunatley, Brian was in jail when he wrote the letter and because he can't spell well. he had another inmate transcribe what he said and he signed the letter. I later found out that this could not be used as an affidavit, however he had told me everything that he wrote in that letter in more than one conversation, and that letter I have re created below.

BRIAN'S LETTER TO ME Dear Aunt Nema, While I was sitting in Rockport Texas county jail, they had me in cell 3 and I overheard an anglo they called "Spooky" saying he was sent to Arrons to collect on a drug debt and six other members came with him.

From the way they spoke, I heard them say that they went to Arrons to collect a drug debt of $7,000 that he owed, from what I heard about he didn/t have the total amount and so he had offered a motorcyvle and some cash.

Before I heard about the debt, a Chris Hall had contacted a person called "Do Boy" to get in touch with Chad Pate to find out where and how they could get in touch with Arron.

Thats when they had found out where arron lived. Chris Hall underwood Spooky Mathew Chips and two others whoms names I didnt hear clearly, all of them had went to visit Arron, things started to get out of hand, thats when Mathew Chips took Arrons daughters out of the room they were in.

Underwood and one other held Arron as Spooky held a knife to Arrons throat, then he heard his little girls scream for him, and that is when Arron began to try and fight back, they ended up on the floor towards the front door, that is when Chris Hall had pulled a handgun Im not sure what caliber it was but Hall then shot Arron in the stomach, then I overheard them say that after the shooting when they was leaving that someone appeared outside and that is when they shot off a couple of rounds at that person.

They said they could pitch the gun somewhere west of Houston Texas on I 35, thne when they were incarcerated a detective was at the jail questioning all of them about Arrons death. I overheard them plot to put the blame on Chad Pate I heard later they also killed Troy Arrons brother over the dope debt , thats how they found out where Arron lived from what I heard them say Troy was suppose to bring them back the methaphetimes or the money .... This is what I heard them say. this alot of people know this will get me hurt or kill knowing this yes I am scared for my life cause they are in A/C gang.

It is my belief that my son did not receive a fair trial.

-~'-~'---(Initial) APPENDIX EXHIBIT# 10

AFFIDAVIT OF CHADRICK PATE STATE OF TEXAS § WICHITA COUNTY §

AFFIDAVIT OF CHADRICK B. PATE Before me, the undersigned notary, on this day personally appeared CHADRICK PATE, the affiant, a person whose identity is known by me. After I administered an oath to affiant, affiant testified: "My name is Chadrick B. Pate. I am over the age_ of 18, of sound mind, and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

During my four day trial in Aransas County Texas from February 9, 2009- February 12, 2009 I was in leg restraints that limited my movement. The limitation of my movement was visible to people in the courtroom. I was made to wear the leg restraints in the presense of the Jury."

.. . :-.·~ . .. . ·~·t.f..'• •:~';•· .

SWORN TO AND SUBSCRIBED befor~ me, the undersigned authority on this day 1£.../ of May, 2012. ··,:, APPENDIX EXIDBIT # 11 CLERKS INSTRUMENT RECORD CAUSE NO.

INSTRUMENT I ATIORNEY

I ,1-1-· I: / /

,-. ,\ i'--9 /\. '"-) \ CAUSENO. A-08- 5080-4~~ ---~ST~A1~~E~O~F~TE~XA~S~ _ _ _ _ VS Q,h(lJ y-(t k 1) li-k INSTRUMENT I ATIORNEY

I~ I I I ::: ___ ___.!S~T~A·~TE"'--"O~F-"-TE=X~A=S_ _ _ _ _ VS ~ ,cf. /~ I INSTRUMENT ,' ATIORNEY I/P~ .

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. ., APPENDIX EXHIBIT# 12 PROOF OF RESTRAINT 5'21/2015 TDCJ Offender Details (H] TOCJ Home - New Offender Search

Offender Information Details I Retumto Search.list I SID Number: 05581316 TDCJ Number: 01563340 Name: PATE,CHADRICK B • "· ·Race: w Gender: M DOB: 1976-03-29 Maximum Sentence Date: 2107-05-04 Current Facility: STILES Projected Release Date: 2107-05-04 Parole Eligibility Date: 2038-05-04 Offender Visitation Eligible: YES r Information pr.ovided is updated once daily during weekdays and multiple times per day on visitation days. Because this information is subject to change, family members and friends are encouraged to call the unit prior to traveling for a visit.

SPECIAL INFORMAT!ON FOR SCHEDULED RELEASE: Scheduled Release Date: Offender is not scheduled for release at this time.

Scheduled Release Type: Will be determined when release date is scheduled.

Scheduled Release Location: Will be determined when release date is scheduled.

·~ .Parole· Rev.iew Information.·-~ . . '· ' . •' ; ,. - .

Offense H'tstory: Offense Sentence Sentence (YY -MM- Offense County Case No. Date Date DO) THEFT FROM A 2002-11-13 2003-03-06 TRAVIS 3022467 1-00-00 PERSON A-08-5080-4- ' http://offender .tdcj. state. tx. us/OffenderSearchloffenderD etai I.acti on?sid= 05581316 · 1/2 '\ 5121/2015 TDCJ Offender Details 2008-01-04 MURDER 2009-02-13 CR 99-00-00

u~et~;~m to Se~rc~,list I

The Texas Department of Crim[tu:it Justice updates this information regularly to ensure that it is complete and accurate, however this information can change quickly. Therefore, the information on this site may not reflect the true current location, status, scheduled termination date, or other in~ormation regarding an offender.

For questions and comments, you may contact the Texas Department of Crimfnal Justice, at (936) 295-6371 or [email protected]. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

New Offender Search TDCJ Home Page

http://offender. tdcj .state. tx .us/Offender SearchloffenderDetai l.action?sid= 05581316 2/2 APPENDIX EXHIBIT #12 PROOF OF RESTRAINT

APPENDIX EXHffiiT # 13 LETTER TO CLERK OF THE TEXAS COURT OF-CRIMINAL APPEALS Sept./(.1 2015 Abel Acosta Clerk of the Texas Court of Criminal Appeals West 14th Street Austin, Texas 78701 Chadrick Pate# 1563340 3060 FM 3514 Beaumont Texas 77705 Re: Emergency Motion for Permission to File Writ of Mandamus from a Void Final Felony Conviction with Emergency Writ of Mandamus from a Void Final Felony Judgment and Conviction included.

Dear Clerk, Enclosed you will find the original documents referenced above.

As my address indicates I am a inmate pro se filer.

I respectfully request that these proceedings be filed and submitted under emergency considerations under the Emergency Titles or which I have labeled them.

I also respectfully request that the Court consider the pleadings liberally and if need be consider the pleadings as an Original Ex Parte Habeas Corpus Proceeding only if the Court cannot provide expedious decision pursuant to my Writ of Mandamus.

Suspension of Rule: On a party's motion or on its own initiative an appellate court may- to expedite a decision or for other good cause -suspend a rule's operation in a particular case and order a different procedure; but a court must not construe this rule suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case.

Thank you for your kind consideration in this matter.

11;~~~ Chadrick Pate# 1563340 3060 FM 3514 Beaumont, Texas 77705

2.

RECORD EXHIBIT# 1 CLERKS'S RECORD VOL 1 OF 1 .... f:f ~r~'. -~,· ,. ·' . _:,;,_ '· . ., ; . ;'· . ·. .'· ' l •.•.. '· ; ·,, . '·

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-t . tY1 e l'l CLERKS RECORD _ ,. ·..

VOLUMEi::l OF 1

THE STATE OF TEXAS .. vs. . ~.

CH'ADRICK B PATE · · . ... ~

.. --- :.._ -- .

/.

I'-"\'\._ ' Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 2 of 60

CAUSE NO. A-08-5080-4-CR THE STATE OF TEXAS ( IN THE DISTRICT COURT vs ) 36TH JUDICIAL DISTRICT CHADRICK B. PATE ( ARANSAS COUNTY

INDEX Index .................................................................. . 1 • Caption . . . . . . . . . . . . . . . . . . . ..................................... ::-."'., ...... . 3 • Indictinent ............................................................. . 4 • Capias Returned Served ................ ·.................................... . 7 t" Precept Returned Served ...•..•..................... •· ..................... . 8 • Letter of Representation ..................................................... . 9 ..

Waiver of Arraignment .................................................... . 10 ..

Motion to Reduce Bond .................................. , ................ . 11 • Defendant's Motion to Reveal the Deal ....................................... . 13~ Request Under Article 37.07 Section 3(g) for Notice from State ................... . 16 •.

Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct .............. . 18 r Motion to Prohibit State from Attempting to Introduce Statements Allegedly Made by the Defendant without Prior Hearing on Admissibility ................... . 21 Motion for Discovery, Production and Inspection of Evidence ... ~ .................. . 23 Order on Rule 404(b) Request ... : ..................................... ·...... . 33 .

Order on Motion for Discovery ............................................. . 34 Order on Motion to Reveal the. Deal ......................................... . 35 • Motion for Defendant Chadrick Pate for Severance of Defendants ................. . 36 t

Motion for Continuance ................................................... . 38 • Order on Motion for Continuance ................................ , .......... . 42., State's Motion for Continuance ............. ................. · ................. . ' 43' Order on Motion for ~cvcrance 45 c

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 3 of 60

Motion to Dismiss . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 · Defendant's Motion to Elect the Jury to Assess Punishment ................. ·. . . . . . . 49 Defendant's Motion in Limine .............. , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 .

State's Strike List ........................ ·......................... , .. _-. . . . 53 Defendant's Strike List . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Jury Chosen .............................................................. _. 57 Jury Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 59 Charge ofthe Court ........................... ·...... .-.. . . . . . . . . . . . . . . . . . . . . . 60·-· Verdict (Guilt/Innocence) .... : ............................. , . . . . . . . . . . . . . . . 72 • JuryNote ............................... ·........... .-.- ......... ,.:·········· 74o Punishment Charge ...................... _......· ........·.................... 75 Verdict (Punishment) .....................• , ................ , ..... , . . . . . . . . 79 ·' J Trial Court's Certification of Defendant's Right of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . 80 ' 9tder to Withhold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 vNotice of Appeal ... ~ \ ~~ .\.'-?. .~ ..................................... 82 Affidavit oflndigence .............................................•........ 83 Order Appointing Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Notice of Appeal to Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 y')udgme~ of Conviction by JUfY; Sentence by Jury tllnstitu~nal ~ivision, TDCJ ..... . 89 • Court Doc~ . ~\ \~ .\~ ... ~.'. ~ .... ~ ..\.~. ~.~ ............ . 94 ° Certiba~~~-6 . .'-\\'(.:(\'C)''\' ............................ 97.

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 4 of 60

The State of Texas ( County of Aransas ) In the 36TH Judicial District Court of Aransas County, Texas, the Honorable JANNA WHATLEY, Judge Presiding, the following proceedings were held and the following instruments and other papers were filed in this cause, to wit: Trial Court Cause No. A-08-5080-4-CR THE STATE OF TEXAS, Plaintiff ( IN THE DISTRICT COURT vs ) 36TH JUDICIAL DISTRICT CHADRICK B. PATE, Defendant ( ARANSAS COUNTY, TEXAS

.· Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17713 Page 5 of 60

INDICTMENT.

THE STATE OF TEXAS va.• MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, . ANTHONY LEE RAY, CHADRICK B. PAlla AND KEVIN RAY TANTON · OFFENSE Murder, Aggravatad Auault /Engaging In Organized Criminal Activity TPC Sec. 11.021 Firat Degree Felony TPC Sec. 22.02171.02/1 Flm Degree Felony

WITNESS Michael Brooka, Ru...ll Kirk

. =:~~~:.:~:.~.:=~~ ~:.:~OOOOO~~=MOOOO~~O~=~. : IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS Count One COMES NOW THE GRAND JURORS for the County of Aransas, State aforesaid, duly selected, organized, impaneled and sworn as such at the April Term, A.D. 2008, of the 36111 Judicial District Court, In and for said County, a quorum thereof being present, upon their oaths present In and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, I ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and together, on or about the 4 111 day of January, A.D. 2008 and anterior to the presentment of this Indictment, In the County and State aforesaid, did then and there intentionally or knowingly cause the death of an individual, namely, Aaron Watson, by shooting the said Aaron Watson with a firearm;

CouptTwo AND THE GRA~D JURORS AFORESAID, upon their oaths aforesaid, do further present in and to said Court that MICHAEL JASON UNDERWOOD, CHRISTOPHER JOSEPH HALL, ANTHONY LEE RAY, CHADRICK B. PATE, and KEVIN RAY TANTON, acting alone and together, on or about the 4111 day of January, A.o: 2008 and anterior to the presentment of this -Case 4:13-:cv-00709 Document 5-13 Filed in TXSb on 05/17/13 Page 6 of 60

. Indictment, In the County and State aforesaid_, dfd then and there intentional!y, knowingly or recklessly cause serious bodily Injury to Aaron Watson by shooting the said Aaron Watson with a handgun, the same being a firearm; And the defendants did then and there commit said offense with the Intent to establish, maintain, or participate In a combination or In the profits of a combination who collaborated in carrying on said criminal activity;

against the peace and dignity of the State =-··

File,donthe ~I' dayof _ _ -7"l~~-------· 20 It'/ ?-' ·--_;;~-~_M_H_EA_R_D_ _ Clerk of the District Court ·----"~...;;.__·---~·~ By ·-----'1o:..:--¥~""""----.--·__ Deputy

THE.: STATE OF TEXAS Coutnty of - - - - - - - - - - , . - - - PAM HEARD I, - - - - - - - - - - - - - - - - - - - - - ' Clerkofthe District Court of - - - - - - - - County, Texas.. do hereby ce·rtif.y that the within and fore,goir).g is a true andll correct copy of the Original Bill of Indictment, filed In said ~~ ~~ tbR. - - - '"-'l ~ - - - - - - - ~.0. ~Q.. -----.,.I · hi Cause No. - - - - , styled .The State of Texas vs ... . Given .under my hand and the seal of said Court at office in ·-------~---------·'~~a~, \h~ --------~~ ~ _____________.A.D. 20. - - - - PAM HEARD Clerk .;,,1 by _ _ _ _ _ _ _ Deputy

36thl O.A. Form 650 - General Indictment 6/90 (12/99)

·---~ ··-¥··~·-·· ·····---~·-. -- -·-·· -·--- ···-· ----··· ·--·-··· --··---· .. -----··-· .. --...---- ... -·····-··· ..... ······· ········- ·····------------- :aplas lnstanter-<:omplalnt edoc Technologies, Inc. Austin, Tx

THE STATE OF TEXAS 36TH DISTRICT COURT vs ARANSAS COUNTY, TEXAS

CHADRICK B. PATE DOCKET NO. A-08-5080-4-CR CAPIAS SS: XXX-XX-XXXX DOB: 03/26/1976 DL#: 16716877 SEX/RACE: I To any Peace Officer of the State of Texas, Greetings: YOU ARE HEREBY COMMANDED to arrest CHADRICK B. PATE and safely keep, so that you have him/her before the Honorable 36TH DISTRICT COURT of Aransas County, Texas, at the Court House of said County, in the City of Rockport, TEXAS, INSTANTER, then and there to answer THE STATE OF TEXAS upon a charge by INDICTMENT pending in said court, charging CHADRICK B. PATE with the offense of MURDER INTENDS SBI CAUSING DEATH.

HEREIN FAIL NOT, but due make return hereof as the law directs.

WITNESS my signature and seal, on this the 25th day of June, 2008.

AMOUNT OF BOND:$500,000 SURETY

dF .

PAM HEARD, Clerk of the 36TH DISTRICT COURT By Deputy.

OFFICER'S RETURN Came to hand the on thed)S: day of ~:5"'day 9"n( q- ~ A.D.~ at/~o'clock-fJ M, and executed ~:A2>8 at~ o'clock M. by arresting the within named CJ,.ulrick 6. fm< at IJC()C in tKoc;...l'poq· , Texas, and taki~nd, which is herewith returned, placing CHADRICK B. PATE in the County jail of ~ITS County, Texas.

-----~-R_l<._G'_\.\.:_~~----- Sheriff/Constable A.fanlas ----~~--~----County, Texas

. .· · :;0~':,:;.,,, By: ~ PENIC?f,l'.~'.;: CIVIL PROCESSOR •recept

RETURN edoc Technologies, Inc. Austin, Tx

THE STATE OF TEXAS 36TH DISTRICT COURT VS ARANSAS COUNTY, TEXAS CHADRICK B. PATE DOCKET NO. A-08-5080-4-CR SS: XXX-XX-XXXX DOB: 03/26/1976 L/K/A: ARANSAS COUNTY JAIL, ,TX

PRECEPT TO SERVE COPY OF INDICTMENT

YOU ARE -HEREBY COMMANDED to deliver forthwith to CHADRICK B. PATE, the accompanying certified Copy of Indictment in Cause No. A-08-5080-4-CR, THE STATE OF TEXAS vs. CHADRICK B. PATE, now pending in the 36TH DISTRICT COURT of ARANSAS County, Texas, and to make due return of this writ without delay.

Issued and given under my hand and seal of Office, this 25th day of June, 2008.

PAM HEARD, Clerk of the 36TH DISTRICT COURT

By: ~ ,Deputy SHERIFF'S RETURN Came to hand on the L- ~day o~c ,c;;;!j_ at ~clock 'fJ .M., and executed by delivering to the within named d~;nt, CHADRICK B. PATE, in person, a certified copy of the i ictment mentioned within, and delivered to me with this writ, on the day of C?.r Jlh( 'a:t8.

Returned on the 2)" d~y of_.....,~,__/Vn' _ _ _ _ _ _ _,Aae __. :·,;__i_

------I,WAAu=R~.a.K-liiGL!::lL::;LI~A~_-_ _ _ Sheriff

----------~Al=m~~--~--------County By: ······-·- -··---· :-· ··········--·-···-···-· ' ~ ; .. .. . ; ·.,.···.

crprecsv .rcr John GJrnore Attomey At Law Deanna M. King Patricia T: Gilmore Legal Assistant Business Manager ·

June 26, 2008

Mrs. Pam Heard District Clerk Aransas County Couqhouse N. Live Oak Street Rockport, Texas78382

Re: The State of Texas vs. Chad Pate Cause No.: A-08-5080-4CR

Dear Mrs. Heard: Please be advised that our office represents Chad Pa,te in the above-referenced cause. Also, please find enclosed a waiver of arraignment. Please file it in your official records and bring it to the attention of the Court.

If you need anything further, please do not hesitate to contact our office.

Thank you.

Enclosure

. 622 S. Tancahua *Corpus Christi, TX 78401 * 361-882-4378 * 361-882-3635 fax Cause No. A-08-5080-4CR THE STATE OF TEXAS * IN THE DISTRICT COURT vs. * .361b JUDICIAL DISTRICT . CHADPATE * ARANSAS COUNTY, TEXAS WAIVEROF~GNMENT

NOW COMES the Defendant, Chad Pate, by. and through his attorney of record, John Gilmore and respectfully: 1. Enters a plea of not guilty to the information in the above-captioned case.

2. Requests a pretrial and jury trial in the above-captioned case.

3. Waives the right to be present at arraignment in this case.

4. States that John Gilmore has been retained to be his attorney of record in this case and that he has consulted with said attorney.

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 11 of 60

· Cause No. A-08-S080-4CR THE STATE OF TEXAS * IN THE DISTRICT COURT vs. • . 361111 JUDICIAL DISTRICT CHAD PATE • ARANSAS COUNTY, TEXAS WAIVER OF ARRAIGNMENT NOW COMES the Defendant, Chad Pate, by and through his attorney of record, John Gilmore and respectfully: 1. Enters a plea of not guilty to the information in the above-captioned case.

2. Requests a pretrial and jury trial in the abov~ptioned case.

3. Waives the right to be present at arraignment in this case.

4. States that John Gilmore has been retained to be his attorney of record in this case and that he has consulted with said attorney.

622 South Tancahua!P. 0. Box 276 Corpus Christi, Texas 78401 (361) 882-4378 FAX (361) 882-4378 ATTORNEY FOR DEFENDANT BAR NO. 07958500

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CAUSE NO. A-08-5080-4CR THE STATE OF TEXAS * IN THE DISTRICT COURT vs. * 36TH JUDICIAL DISTRICT CHAD PATE * ARANSASCOUNTY,TEXAS MOTION TO REDUCE BOND TO THE HONORABLE WDGE OF SAID COURT: Chad Pate, Defendant, moves the Court to reduce bond in the above- referenced case, and as grounds therefore shows the following: "' 1.

The defendant is being held in the Aransas County Jail for the offense of Murder. The bond is set at $500,000.00.

This amount is unreasonable and Defendant is not able to make said bond.

2.

The Defendant has not failed to appear for any court setting and isn't a flight risk.

3.

Defendant has the ability to make a bond of $25,000.00.

WHEREFORE, PREMISES CONSIDERED, Defendant prays the Court grant this Motion to Reduce Bond and that the bail in this case be reduced to $25,000.00.

Respectfully submitted,

Corpus Christi, Texas 78401 ATTORNEY FOR DEFENDANT (361) 882-4378 Fax: (361) 882-3635 Bar# 07958500 CAUSE NO. A-08-5080-4CR THE STATE OF TEXAS * IN THE DISTRICT COURT vs. * 36m JUDICIAL DISTRICT CHAD PATE * ARANSAS COUNTY, TEXAS

CERTJFICATE OF SERVICE I, John Gilmore, do hereby certify that a true and correct copy of the foregoing Motion To Reduce Bond has been served on the Office of the District Attorney, Aransas County Courthouse, Rockport, Texas 78382 this the _ _ day of, July 2008.

rM~ \./.JOHN GiLMORE CAUSE NO. A-08-5080-4CR THE STATE OF TEXAS * IN THE DISTRICT COURT vs. * 36TH JUDICIAL DISTRICT CHAD PATE * ARANSAS COUNTY, TEXAS

ORDER The Court, having considered Defendant's Motion to Reduce bond is ofthe opinion that said motion be GRANTED/DENIED;.

The Court therefore ORDERS Defendant be released on the posting of a surety bond in the amount of$ --------------~------------

SIGNED this _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ , 2008.

JUDGE PRESIDING /0 CAUSE NO. A-08-50SS'-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36tb DISTRICT COURT OF ARANSAS COUNTY, TEXAS DEFENDANT'S MOTION TO REVEAL THE DEAL TO TIIE HONORABLE JUDGE OF SAID COURT: COMES NOW Chadrick Pate, Defendant in the above-entitled and-numbered cause and moves the Court to require prosecution to reveal any agreement with any witness in the nature of concession by the State to the witness which could influence the witness' testimony, and in support of this Motion would show unto the Court the following: I.

The witness is a so-called confidential informant in the offense with which the ' Defendant is charged. It is expected that the witness will testifY on direct examination as a key prosecution witness and his testimony seeks to inculpate and implicate the Defendant as having engaged in the criminal conduct alleged herein.

II.

If the prosecution has either made, promised or implied that it will make concessions to the witness in order to induce his testimony, the defense has the right to know the nature of the concessions that have been made, promised or implied to the witness in any discussions which the prosecution has had with the witness or his ¢;.. day of FI~O 200 <f . ar--7~//6 ~lock~ Pam Heard, District Clerk Dist.r"~~;:;_..~·· Texas By .A:7, ..... ~ Deputy

;3 representative in order to prove the witness' testimony was biased by such discussions.

Without disclosure defense counsel only speculates that the concessions probably involved either pending or future charges against the witness. The disclosure is vital to prove on the issue of credibility.

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the Court issue an order requiring the prosecutor to reveal the exact nature of all negotiations and discussions with the witness or his representatives concerning any promises or expectations expressed or implied, of concessions which could or might be expected to occur in the event that the witness cooperated with the prosecution by testifying against the Defendant herein.

Respectfully submitted,

iOHNGILM S. Tancahua!P.O. Box 276 Corpus Christi, Texas 78403 (512) 882-4378 ATTORNEY FOR DEFENDANT BAR NO. 07958500 CAUSE NO. A-08-5058-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36tb DISTRICT COURT OF ARANSAS COUNTY, TEXAS CERTIFICATE OF SERVICE I, John Gihnore, do hereby certifY that a true and correct copy of the foregoing Motion to Reveal the Deal has been served on the Office of the District Attorney, Aransas County Courthouse, 301 North Live Oak Street, Rockport, Texas 78382 on this thd~y of July 2008.

/ j,J CAUSE NO. A-08-5080-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36tb DISTRICT COURT OF ARANSAS COUNTY, TEXAS REQUEST UNDER ARTICLE 37.07 SECTION 3(1) FOR NOTICE FROM STATE The defendant, Chadrick Pate, by his attorney, request from the State reasonable notice in advance of trial ofthe State's intent (ifthe State does so intend) to introduce any and all particular evidence at any hearing on punishment in this cause. This includes, but is not limited to, any and all evidence which the State intends to offer relating to the defendant's prior criminal record, his general reputation, his character, any opinion regarding his character, the circumstances of the offense for which he is being tried in this cause, and any and all other evidence of any extraneous crime or bad act asserted by the State to have been committed by the defendant or for which he could be criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. This also includes, but is not limited to, any evidence to be offered by the State of any adjudication of delinquency or in any way relating to acts asserted by the State to have been committed by the defendant as a juvenile.

The defendant makes this timely request pursuant to Texas Code of Criminal Procedure Article 37.07, Section 3(g). This request is made by service upon the State of a copy or copies of this document in the manner or manners set forth below in the Certificate of Service.

State Bar No. 07958500 S. Tancahua Corpus Christi, TX 78401 (361) 882-4378/phone (361) 882-3635/fax [email protected] (e-mail)

at ..;'(\ d'yof /o: Lt.

F(~ 2fJti_ dO'c!ock.-......._M Pam Heard, District Clerk Dist.~o~., Texas By _,.6/~ .~ Deputy • l'~ . _,....... ..._

CAUSE NO. A-08-5080-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36th DISTRICT COURT OF ARANSAS COUNTY, TEXAS

CERTIFICATE OF SERVICE I, John Gilmore, Attorney at Law, certify that on this date I served a copy of the foregoing motion has been served on the Office of the Aransas County District Attorney's Office on this :-.:.l/dday of July, 2008.

I

\ ' .;.,..,·.· ..... , ·.·. j p #i!u,J .· ' '?

I ·' CAUSE NO. A-08-5080-4CR .. ~:,::~:::.;;// *********** THESTArJE OF TEXAS VS. CHADRICK PATE *********** IN THE 36tb DISTRICT COURT OF ARNANSASCOUNTY,TEXAS RULE 404(b) REQUEST FOR NOTICE OF INTENT · TO OFFER EXTRANEOUS CONDUCT

To the Honorable Judge of Said Court: Now comes Defendant, ChadrickPate, herein, by and through Counsel, John Gilmore, and files this request pursuant to Article 37.07, Sec. 3(g) of the Texas Code of Criminal Procedure and Rule 404(b) of the Texas Rules ofCriminal Evidence, and in support thereof would respectfully · show wito the Court as follows: Rule 404(b) provides in part as follows: "(b) Other crimes, wrongs, or acts ...provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction.

(c) Character relevant to punishment. In the penalty phase, evidence may be offered by an accused or by the prosecution as to the prior criminal record of the accused. Other evidence of this character may be offered by an accused or by the Prosecution." Article 37.07, Sec. 3(a) provides in part as follows: "(a) ... any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally resJ>onsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.. .. " A~~~~'CWck~ Pam Heard, District Clerk D:0ourt, ransas Co., Texas j By Ooputy ~ Article 37.07, Sec. 3(g) provides in part as follows: "(g) On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the State intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occured and the name of the alleged victim of the crime or bad act." Defendant herein specifically requests the Court under Article 37.07, Sec. 3(g), Texas Code of Criminal Procedure, and Rule 404(b), Texas Rules of Criminal Evidence, to order the State to give notice of its intention to introduce such evidence, if any, with specific crime(s) or bad act( s) set ' forth, giving the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim ofthe crime or bad act, and any punishment received for same, at least thirty (30) days prior to the trial on the merits of this case. This information is necessary to preserve Defendant's right to effective assistance of counsel and his right to a fair trial, guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 ofthe Texas Constitution, and Articles 1.04, 1.05, and 1.05l(a) of the Texas Code of Criminal Procedure.

Wherefore, premises considered, Defendant requests this Honorable Court grant this Motion directing the Prosecuting Attorney to provide Defendant and his Counsel the information requested herein, and further grant Defendant any and all such relief to which he may be entitled.

Respectfully Submitted,

~(~ John Gihnore South Tancahua Corpus Christi, Texas 78401 (361) 882-4378; Fax: (361) 882-3635 STATE BAR# 07958500; ADM # 18181

CERTIFICATE OF SERVICE As Attorney of Record for Defendant, I do hereby Certify that a true and correct copy of the above and foregoing document was this date provided to the Attorney for the State.

John Gilmore · Case 4:13-cv-00709 DocL:Jment 5-13 Filed in TXSD on 05/17/13 Page 22 of.60 ,.

CAUSE NO. A-08-5080-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36t11 DISTRICT COURT OF ARANSAS COUNTY, TEXAS

MOTION TO PROIDRIT STATE FRQM ATTEMPTING TO INTRODUCE STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT WITHOUT PRIOR BEARING ON ADMISSIBD..ITY TO TilE HONORABLE ruDGE OF SAID COURT: NOW COMES the Defendant, Chadrick Pate. by and through his Attorney ofRecord. John GUmore; in the above entitled and numbered cause and respectfully moves the Court to instruct the Prosecuting Attorney not to mention or refer to, directly or indirectly, in the presence of the jury and not to attempt to introduce into evidence any statements allegedly made by Defendant to or in the presence of any law enforcement official(s) and/or agents, whether written or oral, without first requesting a hearing outside the presence of the jury to determine the admissibility of said statements, and for same would show unto the Court the following: I.

At the time ofvarious conversations with certain law enforcement o:ffi.cial(s) and /or agents, Defendant was either under arrest or deprived substantially of his freedom.

II.

To require Defendant to object to the admissibility of any such statements in the presence of the jury would be prejudicial and detrimental to his rights, if it was subsequently determined that the statements were inadmissible.

III.

Pam Heard, District Clerk Dist. c.91:'~Jfl~~ .c~~,Texas By p~ Deputy

cAl Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 23 of 60 ,.

Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04, 1.05, 1.051(a), 38.21, 38.22, and 38.23 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Motion be, in all things, granted.

Respectfully Submitted,

.~~6:=- Jobn Gilmore South Tancahua Corpus Christi, Texas 78401 (361) 882-4378; Fax: (361) 882-3635 STATE BAR# 07958500; ADM # 18181

CERTIFICATE OF SERVICE As Attorney ofRecord for Defendant, I do hereby Certify that a true and correct copy of the above and foregoing document was this dale provided j l:ttomer. r the State.

~~~- JohnGUmore Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 24 of 6q

CAUSE NO. A-08-5080-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36dl DISTRICT COURT OF ARANSAS COUNTY, TEXAS MOTION FOR DISCOVERY. PRODUCTION AND INSPECTION OF EVIDENCE To the Honorable Judge of Said Court: Now comes the Defendant, Chadriek Pate, in the above entitled and nwnbered cause, by and through his Attorney of Record, John GUmore, and would make this Motion for Discovery, Production and Inspection of Evidence pursuant to Article 39.14, Texas Code of Criminal Procedure, and in support thereof, would show as follows: I.

STATEMENTS The Defendant moves the Court to order the Prosecution to produce and pennit the inspection of, and copying or photographing of, the following designated items: 1. All confessions, admissions, statements or comments, in writing, signed by the Defendant, in connection with this offense, or any factually related offense.

Granted: _____:_,/' _ __ Denied:-..,------ 2. All confessions, admissions, statements or comments, oral in nature and set down or otherwise preserved under Article 38.22 of the Texas Code of Criminal Procedure, made by the Defendant in connection with this cause, or any factually related offense.

_dii_day of Fl~" · 20 "Jl at" I(): It, o'clock~M Pam Heard, District Clerk By ;tV r----- Qlat.~~~~_!·· Texas ~ Deputy Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/l3 Page 25 of 60

Granted: v Denied: _ _ _ __ 3. All oral, written and recorded statements of the Defendant, and any ·memoranda of such statements made to any investigating officer, law enforcement agency or third party, which is in the possession of the Prosecution. or any agent thereof.

Granted:----'-/ __ Denied: _ _ _ __ 4. All statements of a nature as would be arguably admissible as a "res gestae" statement, spontaneous statement, or other utterance which the Prosecution intends to introduce in its case in chief, either during the guilt/innocence stage, or during the punishment stage.

../_--c Granted: __ Denied:----- 5. All handwritten or typed notes made by any law enforcement officers, agents or representatives, or any third parties who may be caUed by the Prosecution, which contain any reference to or content of any oral statements uttered by the Defendant and recorded therein, which may be used either in the case in chief, or as rebuttal evidence, or as impeachment of the Defendant's evidence.

Granted: ,-/ Denied: _ _ _ __ 6. Any statements, written or oral, by the Defendant or any co~Defendant or third party, which the State intends to introduce or which reasonably may be expected to introduce to show the existence of any conspiracy or joint conduct, including the date of such statement, the time and place of such statement, and the method by which such statement contributes to or implicates Case 4:13-cv-00709 Document 5-13 Filed in.TXSD on 05/17/13 Page 26 of 60.

the Defendant in such conspiracy or demonstrates culpability as a party to the alleged offense.

Granted: V Denied: _ _ _ __ REPORTS. STATEMENTS AND RECORDS 7. All hand-written, typed or otherwise recorded notes of police officers who investigated or participated in the preparation of this case for trial. tfJ.~ M-.A. 'N~ Granted:_../ _ __ Denied: - - - - - 8. The names of all suspects who were interrogated and/or arrested in conjunction with the investigation of the above and foregoing cause, or the facts which give rise to the above and foregoing cause, including addresses. phone numbers and physical description of the suspects.

Granted: ./ Denied: _ _ _ __ 9. Offense reports, police reports, arrest records, crime scene investigation reports or records or reports of any third parties, by way of written memoranda, letters, notes or transcriptions involving the alleged facts of the offense, the crime scene or any location which may have a bearing on any issue of the case.

Granted: ./ Denied:--~-- OBJECTS AND TANGIBLE TIUNGS Any and all objects and/or tangible property alleged by the State to have been taken or used by the Defendant or any co-conspirator during the course of the offense with which the Defendant is charged, including but not limited to the following: Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 2·?""oi (5"Q~-·· ""e1 10. All weapons alleged by the State to have been used by the Defendant, any co-Defendant or co-conspirator, or any decedent. b.f ~ Granted: _./:::....___ _ Denied: _ _ _ __ 11. All articles of clothing allegedly belonging to the Defendant, the victim or any decedent. Ja., ~,.,...~? .. .{- Granted: / Denied: _ _ _ __ 12. All contraband drugs, controlled substances and/or paraphernalia which was seized as a result of the investigation of this cause, in order to permit the Defendant to have an opportunity to examine the same and to have an expert examine, test, and inspect the same. ~~~ v Granted: - - - - ' ' - - - - Denied: _ _ __ 13. All documents, papers, books, letters, accounts, objects, or tangible things which are in the possession of the Prosecution, its agent or representative, or any third party subject to the control or guidance of the Prose~on as a result of the investigation of the Defendant, which are material and relevant to the case involving the Defendant, either in the guilt/innocence ~e or the punishment stage.

Omntcd: ./ Denied: - - - - - 14. Any written waiver alleged by the State to have been signed by the Defendant involving the Defendant's right to counsel, the right to remain silent, or the right to be free from search and seizure.

Case 4:13-cv-00709 , Document 5-13. Filed in TXSD on 05/17113 Page 28 of 60

Granted: v Denied:-----'-- 15. Any search warrantor arrest warrant and supporting affidavits thereof used by hiw enforcement officers to enter the Defendant's residence, vehicle or any secured premises or item subject to the control of the Defendant, or which is charged to the Defendant under any theory of possession, ownership or control.

Granted: V Denied: _ _ _ __ 16. Any and all stenographic or telephonic recordings or transcriptions of any electronic eavesdropping, wiretapping, surveillance or other means of obtaining undercover communications in the possession of the Prosecution or any agents or representatives thereof, including any tests, enhancements, or analysis of such recordings, in order to properly allow the Defendant to test the validity of such matters.

Granted: V" Denied: _ _ _ __ PHOTOGRAPHS 17. All photographs, drawings, charts, diagrams or sketches made by the Prosecution or any agent, representative, or officer of the State of Texas, the United States, or any third party cooperating with the Prosecution, of the crime scene, or any relevant and material aspect of the case in chief, either in the guilt/innocence stage or puniShment.

Granted: _ _/ _ _ Denied: _ _ _ __ 18. Any photographs of any decedent, victim or third party having relevance to the case Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 2~fof6o-·---

in question.

Granted: . v' Denied: _ _ _ __ :e.-in-tlie. possession of the State, but which are

20. All photographs of the Defendant which were used by the State during the investigation of the case, or any other photographs which were used in conjunction with the investigation of the case for purposes of identification of the Defendant or any co-Defendant or co-conspirator.

v Grunted: -==---- Denied: _ _ _ __ RESULTS OF TESTS 21. All fingerprints, palm prints, foot prints, shoe, tire or other prints made by any means which are related to the case at bar, and alleged to have some relation to the Defendant, co- Defendants or co-conspirators or shall be used by the State in trial on the merits of this case.

Granted: / Denied; - - - - - 22. All test results of any type, inc. udingbut not limited to field sobriety tests, as Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 30 of 60

23. All reports of scientific tests, experiments or comparisons, and all reports of any experts who conducted such tests, experiments or comparisons, together with the name and address of such experts, including but not limited to weapons, bullets, shots, waddings, cartridge cases, tool marks, blood, breath, hair, threads, drugs, or controlled substances.

Granted: / Denied: _ _ _ __ 24. All autopsy reports based on an examination of any decedent and/or medical records of the alleged victim.

Granted: Denied: _ _ _ __ 25. Any .medical or psychiatric reports relating to the.present case, whether of the Defendant or any witness or yictim.

Granted: / Denied: _ _ _ __ 26. Any evidence of insanity, incompetency or incapacity of the Defendant, the victim or any third party or a witness having some relation to the present case.

Granted: -/ Denied: - - - - - .

IDENTIFICATION EVIDENCE 27. All photographs made of the Defendant as a part of any line-up, including photographs of any other persons included in the line-up procedure.

Granted: L Denied: _ _ _ __ Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 3fof 60

28. The fonn used by law enforcement authorities to identify participants in the line-up which included the Defendant, including any information available on any other participants in said line-up.

Granted: / Denied: _ _ _ __ 29. A description of any identification procedures utilized by law enforcement officers or agents of the State, including the names and addresses of any participants in such identification process.

Granted: / Denied:-----,- PRIOR CRIMINAL RECORD 30. The prior criminal record of the following persons: ,~ e.,.,...-~._

a. The Defendant Granted: / Denied: _ __ b. Each co-Defendant Granted: / Denied: _ _ __ c. Each co-conspirator Granted: Denied: _ _ __ d. Any decedent Granted: / Denied: _ _ __ Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 32 of 60 ~ -..,J

e. Any victim or complaining witness Granted: ,/' Denied: _ _ __ f. All State's witnesses e.,~~~~~ Granted: / Denied: _ _ __ II.

In support of the foregoing, Defendant would show the Court that the production of all of the above evidence is necessary to the effective assistance of counsel. Such matters are in the possession or under the control of the Prosecution, and are relevant, material and necessary to the Defense. The items are not privileged and denial of the same would work a denial of a fair and impartial trial to Defendant Absent such discovery, the Defendant's rights under Article 39.14, Texas Code of Criminal Procedure, Article I, Sections 9, 10 and 19 of the Texas Constitution, and the Fourth, Fifth, Sixth and Fourteenth Amendments.to the Constitution of the United States Will be violated, to the irreparable injwy of Defendant. See also Articles 1.04, 1.05, 1.051 and 1.06, Texas Code ofCriminal Procedure, and Brady v. Maryland, 373 U.S. 83 (1963).

Wherefore, premises eonsldered, the Defendant respectfully prays that this Honorable Court grant this Motion for Discovery, Inspection, Production and Inspection of Evidence in all things, or in the alternative, that this Court will set this matter down for hearing, and that after Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 33 of 60

such hearing, that the Court grant such discovery in all things.

Respectfully Submitted,

JOHNGIILMO South Tancahua Corpus Christi, Texas 78401 (361) 882-4378; Fax: (361) 882-3635 STATE BAR# 07958500; ADM# 18181

CERTIFICATE OF SERVICE . As Attorney of Record for Defendant, I do hereby Certify that a true and correct copy of the above and foregoing dooument was Ibis date·~ Attorney fur the State.

JOHN GILM•G&=I--t-E-·------ CAUSE NO. A-08-5080-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36'b DISTRICT COURT OF ARNANSAS COUNTY, TEXAS

ORDER BE IT REMEMBERED, that on the _ _ day of _ _ _ _ _ _ _, 2008, came on to be considered the above and foregoing Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct by Defendant. After consideration of the same, it is the opinion of the Court that Defendant's Motion be: 0 GRANTED.

( ) DENIED, to which ruling the Defendant excepts.

( ) SET FOR HEARING ON THE _ _ day of _ _ _ _ _ _ __.

2008, at o'clock SIGNED: CAUSE NO. A-08-SOS8-4CR *********** THE STATE OF TEXAS VS. CHADRICK PATE *********** IN THE 36*b DISTRICT COURT OF ARANSAS COUNTY, TEXAS

ORDER BE IT REMEMBERED that the foregoing Motion to Reveal the Deal was presented to the Court on theM_ day of _ _ J_v~'fr-------, 2008, and it is therefore, ORDERED that the Motion is hereby GRANTED~IED.

DONE AND ENTERED this the L~ day of J YrJ 2008.

~on~ -Gha;t£ / ~PRESIDING """Y

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 37 of 60 ~··

THIE STATE OF TEXAS • IN THE DISTRICT COURT vs:. • .36th JUDICIAL DISTRICT CHAPRICK PATE • ARANSAS COUNTY, TEXAS MOTIOJ'!-~~.ENDANT·awfjiATE: FO.ft~___:~OYO____:._~ TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES the Defendant, Chadrick Pate, by and through his attorney John Gilmore, and respectfully moves this Court for an on1er severing the offenses charged agsrlnst this Defendantin the indictment herein from the offenses charged the co- defendants and for a separate trial thereon, on the grounds that this Defendant is by the joil111der herein and for good cause would respectfully show WJ.to the Court as follows: I.

Defendant believes that there are previous admissible against the co-defendants in fhis case. t; i II.

Further, we believe that there will be conflicts in the defenses of this Defendant andl the cCHiefendants which will be prejudicial to Defendant if they are tried together.

Ill. A joint trial of Defendant and his co-defendants poses a security riSk to Defendant and to trial participants and spectators.

WBEUFORE, Defendant respectfully prays that this Honorable Coun sever him fronn the co-defendant indicted herein and order ·a separate trial of the charges against him from the offenses charged the co-defendants and· for such other and further relief as this Honorable Court may deem just and proper.

,.; l ,-, ......

· ··case 4:13-c:V.:06709 Document 5-13 Fil~d in TXSD on 05/17/13 Page 38 of 60

]~·~·· ~·'~, ' ·•····•··•··•··

CERTIJ'ICAIE OF SER\?;CE I, John Gilmore, do hereby certify that a true and correct copy of the foregoing Motion of Defendant Chadrick Pate for Severance of Defendants bas been served on Aransas Co·unty District Attomey~s Office, Nueces County" Cowthouse, 301 N. Live Oak Street, JIDclq.1orlr Texas an this ~4 atJuly .. 2DP,8.. . .. . .

~ .. ... . . . . .. ~ '

. ' .. .. · . .• ..

··. : .·' . •': . ··. ·.

·uPtl.·~

.' .

...

~1 Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 39 of 60

SC)go-4- cAusE NO. A-08~-4CR THE STATE OF TEXAS • IN THE DISTRICT COURT vs. • 36TH JUDICIAL DISTRICT CHADRICKPATE • ARANSASCOUNTY,TEXAS MOTION FOR CONTINUANCE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES the Defendant, Cbadrick Pate, by and through his attorney of record, John Gilmore, and moves the Court to continue the t Jury Trial, which is set for Monday, August 4, 2008. In support of such motion would show the Court as follows: I.

The Defendant's attorney was in Trial in San Patricjo County, Tex~, in case styled: The State of Texas vs. Richard Cuellar, Cause No. S-07-3457-1CR and needs more time to prepare for Trial in the above-ref~renced case; therefore, Defendant's attorney ask the Court to re-set the Trial to a later date.

11.

This motion for continuance and is not made for delay. Defense Counsel requests this continuance in order to preserve Defendant's constitutional rights to effective assistance of counsel, due process and due course of law under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10, 13 and 19 of the Texas Constitution, and Articles 1.04, 1.05 and 1.051 of the Texas Code of Criminal Procedure.

WHEREFORE, PREMISES CONSIDERED, Defendant moves the Court, pursuant to the authority of Article 29.03, Texas Code of Criminal Procedure, to continue the Pretrial and Jury Trial in this cause until a future date.

Case 4:13-cv-00709 Document 5-13- Filed in TXSD on 05/17/13 P.age 40 of 60

JOHNGJLMO S. Tancahua/P. 0. Box 276 Corpus Christi, Texas 78401 (361) 882-4378 FAX (361) 882-3635 ATTORNEY FOR DEFENDANT STATE BAR #07958500 Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 41 of 60

STATEOFTEXAS • COUNTY OF ARANSAS • BEFORE ME, the undersigned authority, on this day personally appeared John Gilmore _ and after being by me first duly sworn deposed on his oath and said: "My name is John Gilmore. I am the attorney in Cause No. A-08-5058-4CR presently pending in the 3&h District Court of San Patricio County, Texas. I have read the foregoing Motion for Continuance to which this affidavit is attached and which is to be filed in the aforementioned cause. All of the facts and allegations contained in said motion are true and correct to the best of my knowledge and belief."

~~ JOl-IN GILMOR

SUBSCRIBED AND SWORN TO before me by the said John Gilmore on this the ·3/df- day of July, 2008. -Case 4:13-.cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 42 of 60

CAUSE NO. A-08-5058-4CR THE STATE OF TEXAS • IN TilE DISTRICT COURT vs. •• 36rn JUDICIAL DISTRICT CHADRICK PATE • ARANSAS COUNTY, TEXAS CERTIFICATE OF SERVICE I, John Gilmore, do hereby certifY that a true and correct copy of the foregoing Motion for Continuance has been served on the Office of the District Attorney, Aransas CoQnty Courthouse, N. Live Oak Street, Rockport, Texas 78382 on this the.)Y day of July, 2008.

~ J~aiiMo~

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 43 of 60

CAUSE NO. A~08-5058-4CR THE STATE OF TEXAS • IN THE DISTRICT COURT vs. • . 36TH JUDICIAL DISTRICT CHADRICK PATE • SAN PATRICIO COUNTY, TEXAS ORDER Defendant's Motion for Continuance, having been presented to the Court, the same is hereby GRANTED~.

SIGNED this :) l J_~_,b~+._____,, 2008. day of _ _

~i1YW\a Lhv-y GE PRESIDING

ORDER Defendant's Motion for Continuance having been GRANTED, the same is hereby re-set for Announcement on _ _ _ day of.,---.,.---' 2008 and the Jury Trial on the.___ _ day of _ _ _ _ _ , 2008 at _ _ _ o'clock, _ _ _.m.

SIGNED this _ _ _ day of _ _ _ _ _ _ _ _ _, 2008.

JUDGE PRESIDING ~a C tl--ef ~ h uv:J "; _u-r ((_.!-'\ ~ \ju-t ~0 o-vd-er () w" ~.--tfe~d r :J ru./Vl t~cr Cause No. A-08-5080-4-CR £+ THE STATE OF TEXAS § IN TifE DISTRICT COURT OF JS vs. § ARANSASCOUNTY,TEXAS CHADRICK B. PATE § 36TH JUDICIAL DISTRICT

STATE'S MOTION FOR CONTINUANCE Now comes the State, by and through her District Attorney, and asks this Honorable Court to continue this cause. In support of this Motion, the State would show as follows: 1. This case is set for jury trial on September 29, 2008.

2. The State seeks this motion for continuance due to information received in further investigation in this cause indicating the location of the weapon used in the murder of Aaron Watson. A D.P .S. dive team assembled by Ranger Oscar Rivera were able to locate and recover a revolver from a local bay matching the description of the weapon used in the ·commission of the charged offenses. The recovered revolver has been submitted to the D.P.S. Crime laboratory in McAllen for a series of forensic tests. Other evidence recovered in this cause have also been submitted to the D.P.S.laboratory in Austin and Corpus Christi for fingerprint and DNA testing of which the results are still pending.

3. Ranger Oscar Rivera, an investigator in this case and a material and necessary witness for the State, has recently undergone surgery and is not available to testifY until November.

4. This request is not made for the purpose of delay, but that justice be more effectively served.

WHEREFORE, PREMISES CONSIDERED, the State prays that this Honorable Court grant this motion for a continuance.

Respectfully Submitted,

CERTIFICATE OF SERVICE I, Marcelino Rodriguez, Assistant District Attorney for Aransas County, do hereby certifY that a copy ofthe Motion For Continuance was delivered to defense counsel by hand delivery, on this the 25th day of September, 2008.

CAUSE NO. A-08-5058-4CR THE STATE OF TEXAS • IN THE DISTRICT COURT vs. • 3~h JUDICIAL DISTRICT CHADRICK PATE • ARANSAS COUNTY, TEXAS ORDER~ BE IT REMEMBERED, that on the (}:5 day of ~. ,2008, came on to be considered and above and foregoing Motion of Defendant Chadrick Pate for Severance of Defendants; After consideration of the same, it is the opinion of the Court that Defendant's Motion be GRANTEDIB:efliMB. ik SIGNED this ;lS dayof ~ ,2008.

Case 4:13-cv-00709 Document 5-13 Filed in TXSD on 05/17/13 Page 47 of 60 l'lO fP CAUSE NO. A-08-50S8-4CR THE STATE OF TEXAS * IN THE DISTRICT COURT vs. • 361h JUDICIAL DISTRICT CHADRICK PATE • ARANSAS COUNTY, TEXAS· MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES the Defendant, Chadrick ·Pate, by and through his attorney John Gilmore, and respectfully moves this Court for an order dismissing the offenses charged against this Defendant in the indictment herein and for good cause would respectfully show unto the Court as follows: I.

Defendant is confined in the Aransas County Jail. During Hurricane Ike, defendant and other inmates at the jail were evacuated to other facilities. Defendant was forced to leave his property behind, at the Aransas County Jail. Included with the property were approximately 30 pages of handwritten notes, which were confidential communications to defendant's attorney, regarding his case. When defendant returned to ' the Aransas County Jail, his property and the confidential writings were not returned to him. All other inmates had their property returned to them. Defendant believes the confidential communications were intentionally removed from his possession and are being reviewed and used by investigating law enforcement officers, to assist in the prosecution of defendant's case.

II.

Defendant is charged with the offense of murder, under the law of parties. The primary evidence of defendant's culpability in the case, comes from co-defendants.

Defendant's confidential writings outlines his entire defense to the case and possession and review of these materials by law enforcement investigators severely hampers his ability to defend himself in this cause. __ik_dayot ..--fiLED/\ ~ 2~ at _ JO! ~ ' o'clock~M Case 4:13-cv-00709 Document 5~13 Filed in TXSD on 05/17/13 Page 48 of 60 •

Ill. Effective representation of counsel requires that a criminal defendant be permitted to confer in private with his attorney. Intrusion into the private attorney-client communications violates defendant's right to effective representation and due process of law guaranteed by the Fourteenth Amendment to the United States Constitution. These legal materials contained confidential infonnation protected by the attorney-client privilege and law enforcement inspection of these materials violates defendant's right to effective assistance of counsel guaranteed him by the Sixth Amendment to the United States Constitution and article I, section 10 ofthe Texas Constitution.

WHEREFORE, Defendant, Chadrick Pate, respectfully prays that this Honorable Court enter an order dismissing this prosecution, with prejudice, and for such other and further relief as this Honorable Court may deemjust and proper.

Respectfully submitted,

622 S. Tancahua/ P. 0. Box 276 Corpus Christi, Texas 78403 · (3Wc;r 88:i-4378/phone (361 882-3635/fax A ORNEYFOR DEFENDANT BAR NO. 07958500 -- '- -.( CAUSE ·No. A-08-5080-4-CR-_ I/ ""' ' J ...... i .., ' . ) THE STATE . OF . TEXAS § IN THE DISTRICT COURT vs. § 36m JUDICIAL DISTRICT CHADERICK B. PATE. §

DEFENDANT'S MOTION IN LIMINE

NOW COMES Chadri~k B.Pate the Defendant in the above entitled and numbered cause and requests the Court to instruct the Prosecuting Attorney, his assistants, or any of the State's witnesses in this cause, not to allude to, refer to, or in any way bring before the jury, whether as a panel, or jury selected to try this cause, during any stage ofthi~ proceeding, any of the following, and would show the Court that to allow such testimony would be prejudicial to the rights of the Defendant in this cause. \, ~ ....

This Defendant would urge the Court to instruct the Prosecuting Attorney not to refer to or allude to any of the following without first approaching the bench and making known to the Court and the attorneys for the Defendant outside the presence and hearing of the jury that he intends to offer such proof, thus pennitting the jury to be retired and the evidence and objections heard, and the Court to rule on the admissibility of such evidence before it is placed before the jury, thus preventing prejudicial error no subsequent instruction could cure. The Defendant prays this Honorable Court , ) preserve his rights under the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Texas Constitution, and Articles 1.04 and 1.05 of the Texas Code of Criminal Procedure, and hereby requests this instruction concerning the following evidence: I. Any alleged violations of the law, which have not resulted in a final conviction.

.~:~ . ~~· .'.$! ~i -'~ Cl\ ,,."~ 5J CAUSE NO.A-08-5080-2-CR & A-08-5080-4-CR STATE OF TEXAS IN THE DISTRICT COURT vs. 36TH JUDICIAL DISTRICT CHRISTOPHER JOSEPH HALL ARANSAS COUNTY, TEXAS CHADRICK B. PATE JURYNOTE: I ~t;·et·

.-1~·. '.': ~-~~(!6.- ...•p~·Qf lfZJJ;JJC: PRESIDING JUROR . ... · '1.r3D ·. ... . .·. . .. . COURT'S ANSWER ( ··~OFTHEJURY: _ _ _ _ _ _ _ _ _ _ _ _ __ ~. io I) - &A i.o beinJ Sent h ~ -ex.h.d?l± 5~ Uo ..fo l) , 3 ) .t 't) 1M. S ftt.k hX n±s •/]Q 1)1{ .]a y\Jct}-1 I

mr. UnrJuwoad rn, 'Ro] Wcve. not odrn i ~d ·,n ~ #

e V• c,lQ "(.( Q nc:! C6 nn a± b c 5 L (\ + IY\ ·:16 1\) Vs-.

dCAI'\V\C- IN~v t SIDING JUDGE

(, Charge Jury p. 1

1HE ST~ATE OF TEXAS § IN 1HE DISTRICT COURT OF § ARANSAS COUNTY, TEXAS CHADRJICK B. PATE § 361H JUDICIAL DIS1RICT CJ"MRGE QF TOE COI.WT MEMBEtRS OF 1HE JURY: Th~e defendant, CHADRICK. B. PATE, stands charged by indictment with the DffeJ'J$6$ d COLWTS 1 MlJRDER, a»eg«} 1b have been CONJOJi#eO (}/} 0t- .Jbom January ·4, 2008 in Aransas County, Texas; and COUNT. 2 AGORAVATED • ASSAUL.T, alleged to have been committed on or about January 4, 2008, in Aransas County, Texas. The defendpnt is also alleged to have CC?mmitted ~e offense of ~WJed As.wl1t in CooDt. 2 ~ENGAGING tN OBJlANl.ZED ClUMINAL ACTIVITY. The defendant has pleaded not guilty to each offense you are instructedll that the law applicable to this case is as follows: COUNT ONE J~

Owr law provides that a person commits murder if he intention~ly ·or '. """-:. ~·

knowingl31 causes the death of an individual. ,.

.C'.ba~F Jury p. 2

2.

A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result A person acts knowingly, or with knowledge, with respect to a result of his ~ ·~keiaamYm"tbat hia~ ia~ycettain toc.rmaetbe-~ A "deadly weapon" means a firearm ·u~dividual" means a human being.

3•.

\ Our laws provide that a person is criminally responsible as a party to an "-~offense if the offense is COIIU!Iitted by~own~ by the conduct of another . fox 'Rbidll be. i~!.c:dmi.tw11.1 ~~,Q.t b ~~ . ~ CC/f'-~ ~ CVV\ ~ i). A~ is criminally responsible for an offense llOJDJIIitted by the conduct \

. . of anothc:,'T if,~ with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit · otfen:se. .Mere presence alone w1I! not constftute one ftat!..v-t1'\""Ga crime. f-ertc..l 0od.<e M~ l' 11. t h---t. \\fl-e.Z.. 5..!t"".!Jcu~~ Cht.\? 1 No·w, if you find from the evidence beyond a ~nable doubt that on or about January 4, 2008, in Aransas County, Texas, the defendant, CHADRICK B.

Char;ge Jury~ 3

PATB, acting alone or together with Michael Jason Underw~ Christot>her Joseph Hall, Amthony Lee Ray, and Kevin Ray Tanton, did then and there intentionally or knowintgly, cause the death of an individual, namely, Aaron Watson by shooting the uid. Amon. WSJtstm. ~ a t'ixeum, t.bBa. 'JOU 'Jri.U fuv1 t.bJ! ~ ~ af Murder..

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof; you will acquit the defendant of murder as .a.U.qge.D iD Co.u.o.t £lot'!

ur you have found the defendant guilty of Count 1 do not proceed to Count Two of .Aggravated Assault

COUNT TWO ~- Our l•aw provides that a person commits an aggravated assault if the person intentionally, knowingly, or recklessly causes serious bodily injury io another.

6.

A '"deadly weapon" means a tireann.

Charge Jwy p. 4

The term "serious bodily injury" means bodily injury that creates a I substan1tial risk of death or that causes death, serious permanent disfigurement, or pro~ted loss or impairment of the function of any bodily member or organ.

7.

·:· or desirce to cause the result.

A. person acts knowingly or with knowledge, when he is aware that his ~· i..i.~~ ~tAQW.W:.t.bA~

A person acts recklessly, or is reckless, with respect to the result of his

unjustifi1able risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care

the actor's standpoint.

8.

Ouar laws provide that a person is criminally responsible as a party to an Charge Jwy p. S

for which he is criminally responsible, or by both.

A~ person is criminally responsible for an offense committed by the conduct DfJJnotber Jf, .l&ti9g with iwent tD pi'l>11JDtC DT ~ tbc c~ ofthc. off~~. he solic:its, encouragest directs, aids, or attempts to aid the other person to commit the offe:nse. Mere presence alone will not constitute one a party to a crime.

9.

A. person eommits an offense of Engaging in Organized Criminal Activity if, as a crinainal prison gang, he commits Aggravated Assault

10.

"Criminal prison gang" means three or more persons having a common identlfyilng sign or symbol or an identifiable 1eadershlp who continuously or .fE1.9l.darly· .associate .in the commi.cmion ofmminaJ.acDY.itie.a.

11.

It is no defense to prosecution for the offense of Engaging in .Organized Ctiminal M.i'lib; t.b.at:.

(1} one or more members of the combination are not criminally ~ponsible Cflarge Jury p. 6

(~2). one or more members of the combination have been acquitted, have not been prosecuted or convicted, have been convicted .of a different offense, or are , ~Ut.\W.~~ (31) a person bas been charged with, acquitted, or convicted of said offense; or, (4~) once the initial combination of three or more {)el"SODS is formed, there is a change iin the number or identifY of persons in the combination as long as two or more p«~ns remain in the combination and are involved in ·a continuing course of

LIMITING INSTRUCTIONS Y(JU are instructed· that if there is any evidence before you in the case .re~ tbe.~m:e. Df a~ pri.JDD §1111& tbeec~;s ~.iDs criminal street gang, and/or the criminal street gang's commission of criminal c

activities, such evidence, if any, was admitted for the limited purpose of aiding you, ifit does. aid you, tit aetermiruilg the issues oft&e defend'ant's guift or innocence of ~ in organized criminal activity, and for no other. This evidence, if anyvcan only be CQlSidered by you after you have determined the defendant is· in fact guilty of one onr more of the offenses charged. You may consider this evidence for that C'lJarge Juryp. 1

Cri.minsD.l Activity, each element of the crime must be proven beyond a reasonable doubt

regardilln.g the defendant's 'having committed offenses other than the one for which he is no1w on ·trial, you cannot consider said testimony for any purpose unless you

other offenses, if any wete committed, and even then you may only consider the same int; determining the ttlotive or identity of the defendant, and for no other ·

12.

Ncow, if you find from the evidence beyond a reasonable doubt that on or aboutJamtuary 4, 2008, in Aransas County, Texas, the defendant, CHADRICK B.

P.4TB• .sdiJJg .a.1m2e.DT ~with MicbaeJ .Jasl>R L~ C~ ~ Hall, AlnLthony Lee Ray, and Kevin Ray Tanton, did then and there intentionally, 1'0 knowinglfiy, or recklessly, cause serious bodily injwi.'Aaron Watson by shooting the said A.anon Watson with a Handgun, the same being a firearm. You will find the

Urnless you so find from the evidence beyond a reasonable doubt, or if you ·have a f"easonable doubt thereof, rou will acquit the defendant of Aggravated Charge 1wy.P· 8 Assaultt as alleged in Count Two IJf you have found the defendant guilty of Aggravated Assault in Count 2, .&~ ·tbe JJ»JoHMg specJaJ iaaDe -~, DoDOI.&'1SJJIN 1\Wl.spedaJ ~ ;.;~0 )@OJ SPECIAL ISSUE the evidence beyond a reasonable doubt that on or about

~ oo • "ine Aggtava\"ed AB8IWb: aYteged in Count 'l, was aWng as 11 · member- of a crimjnaJ_prison gang? Answer ''Yes" or "No." · 13.

v.·ou are insttucted that an accomplice as the term is herein after used meaQS

person .,who are connected with the crime, as such parties, by unlawful act or omission on their part transpiring either before or during the time of the commis..t~Jion of the offense. A person is criminally responsible as a party to an

for whicllh he is criminally responsible or by both. Mere presence alone, however, will not «constitute one a party to an offense.

ThLe witnesses Michael Jason Underwood, Anthony Lee Ray, and Kevin Ray T.a.WL"m ~ .sccompJJces. Jf JJm Dl'flmsc HW &~ you &81N1Dt &oovia tb.e defendarllt u~n accomplice testimony unless you first believe that the testimony is .. - .. ~-- ·-··-·. ·---- 27" Cbarge Jury p. 9

true antd mom~ Ueimman n gr1Jtey ~ t.htagta tali 1mm "'JfR4 ~ Ultliva ~ defendunt upon said testimony_,_ .unless you further believe that there is other testim.o1ny in the case, outside the evidence of the said witnesses Michael Jason

defendsnnt with the offense committed, if you find that an offense was committed, and the' corroboration is not sufficient it merely shows the commission of the

then frollm all the evidence you must believe beyond a reasonable doubt that the defendsunt is guilty of the offense charged against him.

14.

Dwr Jstt· pmtides tlMt a defettd6ttt may testa;· itt lti6 owrr be~Ndf ifbe ekx:ts to do so,. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be. taken as a circumstance against him. In this case, th(e defendan~ has elected not to testify, . and you are instructed. that you

take it inLto consi~eration for any purpose whatsoever as a circumstance against the defendant

in a felony prosecution. It is not. evidence of guilt nor can it be considered by you in passintg upon the question of guilt of the defendant. The burden of proof in all Cbtuge /uryp. 10

a\minml ~~ t~:.V£ ~ fbA ~~ tbA ~ uvJ. M'lel: ~&,s. to tbt!

defendsmt.

. JIUl persons are presumed to be innocent and no person may be convicted of m ~~ v.W&Ci!S. ~ ~ ~ t.W:. ~ \cc. ~ ~ '- ~ doubt. The fact that he has been arrested, coritined, or indicted for, or otherwise charged! with the offense gives rise to no inference of guilt at his trial. The law ~~·t.~,.~w,~hW.~~~m'J~~uW.t.

The presumption of innocence alone is ·sufficient to acquit the defendant unless the jUI'Oirs are satisfied beyond a reasonable doubt of the defendant's guilt after careful emd impartial consideration of all the evidence in the case.

The prt:VJC&JJtk\9 b.u tbc b.ur/Jm of pn>vmg the .deknda.W §WJJy .aDd it .DWJ\t do so .by proving each and every element of the offense charged beyond a reasonable doubt and, if it fails to do so, you must acquit the defendant Jt ia not reqWr/NJ tb.tt tbe proaecmion pl'OV8 p} }t beyoniJ a} } pcwJbJe·.tJ.o.vbt;· it. is re«quired that the prosecution's proof excludes all "reasonable doubt" concernilng the defendant's guilt In the event you have a reasonable doubt as to the defendant's guilt after oou.cV..deri.t~Jb elt t!v:. ~'l~ ~ 't.m., md. ~ ~' ,~ 'H\U ~­ him and tsay by your verdict "Not Guilty." Yr.,u are the exclusive judges of the facts proved, of the credibility of the ' .

Charge lUI)' p. 11

witnesses, and the weight to be giv~n their testimony, but you must be governed by the l.aw you shall receive in these written instructions.

your Pnresiding. Juror. It is his or her duty to preside at your deliberations, vote with yo•u, and, when you have unanimously agreed upon averdict, to certifY to the Presdding Juror.

D~g your deliberations in this case, you must not consider, discuss, nor

mentiont any personal knowledge or information you may have about any fact or person c:onnected with this case which is not shown by the evidence.

·~lo one bas any authority co coumtw#cate with you except the officer who has you in charge.· After you have retired, you may/communicate with this Court in writincg through this officer. Any communication relative to the cause must be written, prepared and signed by the Presiding Juror and . shall be . submitted to the

charge, CDr the attorneys, or the Court, or anyone else concerning any questions you may have~.

'{ Ullllr so\e duty at tnis tune is to ae'tennine 'ine guilt or innocence of 'ine defendan·t under the indictment in this cause and restrict your deliberations solely ~ ..

to the issue of guilt or innocence of the defendant.

F'ollowing the arguments of counsel, you will retire to consider your verdict

Dateltinrrte: _c?{_._tL-+/_fl1:....-_ _ Sf~

7{ Charge Jwy p: 13

Cause No. A-08-5080-2- CR THE STATE OF TEXAS § IN TIIE DISTRICT COURT OF § ARANSAS COUNTY, TEXAS CHADRICKB.PATE § 36TII JUDICIAL DIS1RICT

VERDier FORMS COUNT ONE We, the Jury, flnd the Defendant, CHADRICK B. PATE, GUILTY of MURDER, as alleged in the indictment

!?~vvdJ ;J. b PRESIDING JUROR ( OR (·Z ~ E)~ 6~ l}--

C1--- We, the Jury, find the Defendant, CHADRICK B. PATE, NOT GUILTY of MURDER ....

PRESIDING JUROR

H you find the Defendant not guilty of Murdet;" as alleged in Count One, then proceed to Count Two. · Charge Jury p. 14

( Cause No. A-08-5080-4- CR - TilE STATE OF TEXAS § IN TilE DISTRICT COURT OF § ARANSAS COUNTY, TEXAS CHADRICKBLAKEPATE § 361H JUDICIAL DISTRICT VERDICI' FORMS COUNT TWO USE ONLY ONE FORM:

We, the Jwy, find the Defendant, CHADRICK B. PATE, GUILTY of AGGRAVATED ASSAULT, as alleged in the indictment.

( PRESIDING JUROR SPECIAL ISSUE (Answer only if you have found the defendant guilty of this count) Did the Defendant, CHADRICK B. PATE, commit said offense as a member· of a criminal prison gang? (answer "Yes" or ''No") ·

ANSWER: a~ .

We, the Jury, find the Defendant, CBADRICKB. PATE, NOT GUILTY ofCOUNT TWO.

PRESIDING JUROR CAUSE NO.A-08-5080-2-CR & A-08-5080-4-CR ( STATE OF TEXAS IN THE DISTRICT COURT vs. 36TH JUDICIAL DISTRICT CHRISTOPHER JOSEPH HALL ARANSASCOUNTY,TEXAS CHADRICK B. PATE JURY NOTE:___;.__/_ · (u ~~a""' Con v \ c:.T ,~ u -8 Ec() Rt) s ~~ YATc A-ND MR I]fi LL ' (~)DoS>s rclt:: VLcitM 'REC.GJ\1£ Auy ?uRI1aN OF A"-'Y ffN'£ I

)3 . lc ':~06. ( ·~ COURT'S ANSWER MEMBERSOFTHEJURY: ______________________________ (Q.l( Ct"l No. ....

( Case 4:13-cv-00709 Document 5-14. Filed in TXSD on 05/17/13 P.age 16 of 38

Cause No. A-08-5080-4-CR 1HE STATE OF TEXAS § IN TilE DISTRICT COURT OF vs. § ARANSAS COUNTY, TEXAS CHADRICK B. PATE § 36TII mDICIAL DISTRICT PUNISHMENT CHARGE LADIES AND GEN1LEMEN OF TilE JURY: 1.

By your verdict returned in this case, you have found the defendant guilty of the offense of Murder as charged in the indictment. It is now necessary that the jwy assess and ftx punishment for this offense.

You are instructed that a defendant adjudged guilty of the offense of Murder as alleged in the indictment shall be punished by confmement in the Institutional Division of the Texas Department of Criminal Justice for a period ofnot less than ftve (5) years nor more than ninety-nine (99) years or life, and the jmy in its discretion, may, if it chooses, assess a fine in any amount not to exceed $10,000, in addition to confinement in the Institutional Division. Therefore, you shall assess the punishment of the defendant at a tenn of years of not less than five (5) nor more than ninety-nine (99) years or life, and you may assess a fme of up to $10,000.

2.

Under the law a defendant, if sentenced to a tenn of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time Case 4:13-cv-00709 Document 5-14 Filed in TXSD on 05/17/13 Page 17 of 38

earned by the prisoner. It is also possible that the length of time for which a defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable to this case, if the defendant is sentenced to a term of imprisonment, the defendant will not become eligible for parole until the actual calendar time served, without consideration of any good conduct time, equals one-half of the period of incarceration imposed or thirty years, whichever is less. If the defendant is sentenced to a tenn of less than four years, he must serve at least two years before he is eligible for parole.

Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if the defendant is sentenced to a term of imprisonment, because the application ofthese laws will depend on decisions made by prison and parole authorities.

You may consider the existence ofthe parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited " by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

3.

The State bas introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you, if it does, in determining the. proper punishment for the offense for which you have found the defendant guilty. You cannot consider the testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other acts. if any were committed. - Case 4:13~cv-00709 Document 5-14 Filed in TXSD on 05/17/13 Page 18 of 38

4.

Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testifY, that fact cannot be taken as a circumstance against him.- In this case, the defendant has elected not to testifY, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

You are further instructed that in fixing the defendant's punishment in these counts, which you will show in your verdict, you may take into consideration all the facts shown by the evidence admitted before you in the full trial ofthis case, and the law as submitted to you in this charge.

Under the instructions herein given, it will not be proper for you, in detennining the penalty to be assessed, to fiX the same by lot, chance, any system of averages or any other method than by a full, fair and free exercise of the opinion of the individual jurors under the evidence before you.

During your deliberations in this case, you must not consider, discuss, nor relate any matters not in evidence before you. -You should not consider nor mention any personal knowledge or information may have about any fact or person connected with this case which is not shown by the evidence.

You are the exclusive judges of the facts proved, of the credibility of the witnesses and ofthe weight to be given the testimony but the law ofthe case you must receive from the Court as contained in these instructions, and be governed thereby. You must disregard any comment or statement made by the Court during the trial or in these instructions which may seem to indicate an opinion with respect to any fact, item ofevidence or verdict to be reached Case 4:13-cv-0070~ Document 5-14 Filed in TXSD on 05/17/13 Page 19 of 3~

in this case. No such indication was intended.

After argument of counsel, you will retire to the jury room and proceed with your deliberations. After you have reached a tmanimous verdict, the presiding juror will certify thereto by filling in the appropriate fonns attached to this charge and signing his or her name as foreperson. The forms are not intended to suggest to you what your verdict should be.

If the Jury wishes to communicate with the Court, they shall notifY the bailiff. Any communication relative to the case must be written, prepared by the presidingjuror and shall be submitted to the Court through the bailiff.

Respectfully submitted,

Date/time: _O\--I-}_.;:;:I.!;_.h..;;;...61..;.__ Aransas County, Texas c q: 5op,..,.

l3 ~ 01 LCY·\0 ~ ~\l-- Cause No. A-08-5080-4-CR THE.STJ\TE OF TEXAS § IN THE DISTRICT COURT OF v. § ARANSAS COUNTY, TEXAS CHADRICK B. PATE § 36TII JUDICIAL DISTRICT

Verdict Form

5 nor motre than 99 years or life), confinement in the Institutional Division of the Texas Departme~nt of Criminal Justice and a fme of$ l0 (J\::)(j (from nothing to $10,000).

I2J;i-J.~ Presiding Juror ~

)3 No.AD8~ SQ804-~t?

THE STATE OF TEXAS IN THE~'\'-\DISTRICT COURT VS. OF A'{~~ TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL I, Judge of the Trial Court, Certify this criminal case: _x_ is not a plea-bargain case, and the defendant has the right of appeal. (or) is a plea-bargain case, but matters were raised by written motion filed and ruled on before trail and not withdrawn or waived, and the defendant has the right of appeal. (or) is. a plea-bargain case, but the trial court has given permission to appeal, and the defendant has the right of appeal. (or) is a plea-bargain case, and the defendant has NO right of appeal. (or)

~::;:dont r:;;;;;ght ofappeal. Date Ol/BLo 1 I have received a copy of this certification. I have also been informed of my rights concerning any appeal of this criminal case, including any right to file a prose petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure. I have been admonished that my attorney must mail a copy of the court of appeals's judgment and opinion to my last known address and that I have only 30 days in which to file a pro se petition for discretionary review in the court of appeals. TEX. R. APP. P. 68.2 I acknowledge that, if I wish to appeal this case and if I am entitled to do so, it is my duty to inform my appellate attorney, by written communication, of any change in the address at which I am currently living or any change in~ current prison unit. I understand that, because of appellate deadlines, if 1 fail to timely i form my appe 1 te attorney of an hange In address, I may lose the o o ity to 1le a pro se petition for scretio ew.

Attorney for Defendant Address: SBN: -------------------------- Address:------------- Telephone:------------- Telephone: - - - - - - - - - - Fax N o . : - - - - - - - - - - - - •· A DefendaDI in 1 criminal can bu lbe rigbt of appeal Wider lbcso rules. The trial court shall enter a certification of tho dofcndant'l rigbt to appeal in every cue in which it eotcra a judaemcnt of guilt or other appealable order. In a plea bargain case • tbat is in which a defendant'• plea of auilty or colo cooteodcre and tho puoillhmcot did oot oxccod tbe punishment recommended by the proaoculor 1111d apood to by tbo defendant • • defendant may appeal only: (A) those matter that were raised by written molioo filed and ruled oo before trill, or (B) after selling th•l trial court's permission to eppcal. n TEXAS RULE OF APPELLATE PROCEDIJ'RE 2S.2(a)(l).

Oiotrid CiortVPm6.lldonfcnd&nl risJIIIO appeal Case ~:13~cv-00709 Document 5-14 Filed in TXSD on 05/17/13 Page 22 of 38

Cause No. A-DB-50ffi-4~CF?

THE STATE OF TEXAS )( IN THE DISTRICT COURT ){ vs. )( 36th DISTRICT COURT )( l)odv-CLK "E. Vette __ ){ ARANSAS COUNTY, TEXAS INMATE: _ _ _ _ _ _ _ _ _ _ _ _ _TDCJ No . _ _ _ _ _ __ ORDER TO WITHHOLD GREETINGS: The above named defendant currently in the custody of the Texas Department of Criminal Justice Correctional Itlstitutions Division has incurred court fees and costs in the 361h District Court of Aransas County, Texas as a b o v = · d represented in the certified Judgment attached hereto in the amount of $ 2/e~-tV "-: THE COURT ORDERS that payment be made out of the inmate's trust fund account as follows: Pay an initial amount equal to the lesser of: (l) 20% of the preceding six months' deposits in the inmate's trust account; or (2) The total amount of court fees and costs.

In each month following the month in which the initial payment is made, the inmate shall pay an amount equal to the lesser of: (l) l 0% of that month's deposits to the trust account; or (2) the total amount of court fees and costs that remain unpaid.

Payments shall continue until the total amount of court fees and costs are paid, or the inmate is released from confinement. On Receipt of this Order, the department's Inmate Trust Fund Supervisor shall withdraw the funds from the account of the inmate, hold same in a separate account, and forward said funds monthly to Pam Heard, District Clerk of Aransas County at 301 N. Live Oak St., Rockport, Tx. 78382.

Defendant was admonished by the Court of garnishment of inmate's Trust Account with the above stated tenns and conditions.

THE COURT ENTERS THIS ORDER pursuant to Section 501.014(t)(5), Texas Government Code, on this the _Q_ day of fi,.b I<..U;.U, :20 0 5

cr.

I Copies to: IDCJ Defendant

~I ase 4:13-cv-00709 Document 5-14 Filed in TXSD on 05711/13. Page lS o_f as,__

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Tile following is to. be ftn(d out an:d ~died to aB JmQUBST FOR •

COUll'r APPOINTED ATFORNE¥8 by (Jle .Magistrate or.il~eo~ Ullder bls/lJ.er ~on and sul.Jmltted to the de9lguated Coordinator Q set forth b: the D.fstlict wide or County plim. on tile.

DEFENPANT;s NAME: Cltn~tfdc ~~ /}; Te.-. · DAT.EOFB~TIW·--~3~-~~~~----~~~----------- soClA.LsEcmurr NO ~:Ss- f.' 3' - 1 ..?1' I · DRlVBR'S LlCENSB NO; I b 7 I b 5" 7 7 T.RN~~~-------------------------- ·C1fARGBS PBNPING: DJ8TRlCf COURI foPI·o1--~ CifAROBS PENDING: CQ'(}Nl'Y COI1B.T

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P~llli Hn:.rd, Dh:;!ricl Clerk Oist. COt , . nsas Co., Texas ~---------------8-y.!.:./J=--tV----oe~~-ty----"---. -· ..

AFFIDAvrr OF' INDIGENCE . AND .

REQUEST FOR CoURT APPOINTED COuNSEL FJiLoNY AND MISDEMEANOR •· IMPORTANT: nus fonn tens the Cowt that you need an attorney to represent you. your pei.lcJWg cJuuuc(s). but do not have the money to hire an attorney. 'Ifyou quaiJfy Wider law,~ !.~~..~-~.29Y1Un. attomc.y.tolq)roscot-yau ur·your-caSe. .IF Y6U-~"NO"J?"F1L . OUT Tim FOLLOWING FORM COMJ?!BIELY AND' PROVIDE ALLBBQIJBS'Jl ~RMA.TlON, IT MAY LEAD TO A. DELAY IN PROVIDING YOU WITH A COl APPOJN'l7:ID ATTORNEY, EVEN JF YOU QUALlFY UNDBR Tim LAw~ Please rea careftllly and iiU in ALL mquestec1 infunnation. , NAMB:(be,.i~cl;_ ~~-· ; .

ADDRESS: Stmet or Box Num.bec._.ffi~\..a._ . ...!.:hlL:~:.._lJ-!,.~~~-=C::::;_.Ov..:J<:..:..-K~·---:-:-~--- City:g~~ Phone No . _ _ _ _~--- Smtc: ~~.\f. t D~ you wont? Y/N) 1''\ ~~?r------------------------~----- Ifyou WOlk, bow much DJOACY do you m.at.e1 /Weck _ _ _ _ /MDntiJ ....;..j·

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List .U pCmms cuamtlyu:sldlng with you: NAMB AOB

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Do you pay tho followiug monffdybiUB and if so, indicato the amo~ Water$:_.___ _ __ 'fe.lepbono $._ _ __ Bleetri.dCJas $.~---­ Automoltilo$'------ ~$.~--~--- GasoUno$.~------ OedltCa&ds$.~--- DO youpaycbildsupportandifso, ho~mucb? YfN,~t\~___,.. .t~------ " ' ....... ~4···· .... .. . . -· . ..... .. .. . . ·-··.. .. .. . ·- -~ .. - .. .

; "Iori. IXSD on 05/17/13 Page 27 of 38 2)oo4/oos r-~o. A·JL.?.t1:v..007.~~ 1 SlfiiW11#ltniiJ. coli~~ J~i 2/2.6/20 (No~ ......

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~yappeamd dac abovo named dotoAdaat ~ subscdbed thoforeBolDg ~f. aDd after'haviu&'boea duly~ Bratcd upon hlslhcroadl rf.tat tho fom8oiOB stat.am.cmt is cmc and

. ' Case 4:13-cv-00709 Do~ument 5-14 Filed in TXSD pn 05/17/13 Page 28 of 38

CAUSE NO. A-08-5080-4-CR OFFENSE: APPEAL

TO: CHADR1CK B. PATE, IN THE DISTRICT COURT Defendant 36TH JUDICIAL DISTRICT ARANSAS COUNTY

ORDER APPOINTING COUNSEL On this day came to be heard the sworn Affidavit of Indigence and the Court having determined that the defendant is not represented by counsel and that said defendant does not have sufficient money or other property to employ counsel, and has requested appointed counsel in charges pending before this court, the attorney listed below is appointed to represent the said defendant on pending charges in accordance with the Texas Fair Defense Act and the County Plan on file.

Name TERRY COLLINS Address 1701 PERCIVAL ROCKPORT, TX 78382 Phone No. 361-729-9520

Date: February 26, 2009

Court De{gtlCe

Case 4:13-cv-00709 Document 5-14 Fil~d in TXSD on 05/17/13 Page 29 of 38

CAUSE NO. A-08-5080-4-CR THE STATE OF TEXAS IN THE DISTRICT COURT OF vs. ARANSAS COUNTY, TEXAS CHADRICK B. PATE 36TH JUDICIAL DISTRICT NOTICE OF APPEAL On this 25TH day of February, 2009; the defendant in the above styled cause hereby excepts to the judgment of the court in said cause and gives notice of appeal.

DEFENDANT: CHADRICK B. PATE PLEA: NOT GUILTY ATTORNEYFORTHESTATE ATTORNEY FOR THE APPELLANT (Please list district attorney rather than assistant) (If appellant is proceeding prose, please list both his/her name and address and the name and address ofthe attorney at trial.)

Patrick Flanigan Terry Collins State Bar No. 07109600 State Bar No. 04619000 P.O. Box 1393 1701 Percival Sinton, TX 78387 Rockport, TX 783 82 Phone No. 361-634-6220 Phone No. 361-729-9520 APPOINTED _x_ RETAINED

DATE OF SENTENCING ......................................................... February 13, 2009 MOTIONFORNEWTRIALFILED ............................................................ No NOTICE OF APPEAL FILED .................................................... February 25, 2009 AMENDED NOTICE OF APPEAL ............................................................ No NAME OF COURT REPORTER ....................... , . , . . . Lisa Riley, Sylvia Trevino, Sharon Anderson DEFENDANT INCARCERATED? ............................................................ Yes AMOUNT OF BOND ........................ , ....., , ....................................... None OFFENSE: MURDER PUNISHMENT ASSESSED: We the Jury, assess punishment at 99 years confinement in the Institutional Division ofthe Texas Department of Criminal Justice and a fine of$10,000.

Please attach copies of notice of appeal, motion for new trial, and Certification of Right to Appeal, if any.

Case 4:13-cv-00709 Document 5-14 Filed io TXSD on ~5/17/13 Page 30 of 38 Cause No. A-08-5080-4-CR (Count One)TRN 914 665 6553 THE STATE OF TEXAS § IN THE 36TH JUDICIAL v. § DISTRICT COURT OF CHADRICKB. PATE, § ARANSAS COUNTY, TEXAS DEFENDANT- - SID: TX05581316 JUDG:MENT OF CONVICTION BY JURY; SENTENCE BY JURY TO Institutional Division, TDCJ DATE OF JUDGMENT: February 13, 2009 !

I JUDGE PRESIDING: Janna K.. Whatley ATTORNEY FOR THE STATE: Patrick L. Flanigan ATTORNEY FOR THE DEFENDANT: John Gilmore OFFENSE: Murder STATUTE FOR OFFENSE: Section 19.02, Penal Code DEGREE OF OFFENSE: First Degree Felony APPLICABLE PUNISHMENT RANGE (including enhancements. if any): First Degree S-99 yrs or life/max $10,000 fine DATE OF OFFENSE: January 4, 2008 CHARGING INSTRUMENT: Indictment PLEA TO OFFENSE: Not GoUty PLEA TO ENHANCEMENT Not Applicable PARAGRAPH(S): YERDICT FOR OFFENSE: Guilty FINDING ON ENHANCEMENT: Not Applicable AFFIRMATIVE FINDING ON Yes-firearm used or exhibited I i i DEADLY WEAPON: OTHER AFFIRMATIVE SPECIAL FINDINGS: Applicable, See Below ' DATE SENTENCE IMPOSED: PUNISHMENT AND PLACE OF February 13, 2009 Ninety Nine (99) years in the CONFINEMENT: Institutional Division-TDCJ, and a $10,000.00 fine TIME CREDITED TO SENTENCE: Two Hundred Eighty Five (285) days COURT COSTS: $265.00 TOTAL AMOUNT OF RESTITUTION: S-O- NAME AND ADDRESS FOR RESTITUTION: The Sex Offender Registration Requirements under Chapter 62, CCP, do not apply to the Defendant. The age of the victim at the time ofthe offense was not applicable.

This sentence shall run concurrently unless otherwise specified.

DS4: Judgment of Conviction by Court; Sentence By Jury, Cause No. A-08-5080-4-CR; Page 1 of 4 Pages

fi Case 4:13-cv-~0709 Document 5-14 Filed in TXSD on 05/17/13 Page 31 of 38 On the date stated above, the above numbered and entitled cause was regularly reached and called for trial, and the State appeared by the attorney stated above, and the Defendant and the Defendant's attorney, as stated above, were also present. Thereupon both sides announced ready for trial, and the Defendant pleaded not guilty and a jury, to wit: RONALD GORE, and eleven others, was duly selected, impaneled and sworn. Having heard the evidence submitted and having been duly charged by the Court, the jury retired to consider their verdict. Afterward, being brought into open court by the proper officer,_the Defendant, the Defendant's attorney, and the State's attorney being present, and being asked if the jury had agreed upon a verdict, the jury answered it had and returned to the Court a verdict, which was read aloud, received by the Court, and is now entered upon the Minutes of the Court as follows: "We, the Jury, f"md the Defendant, CHADRICK B. PATE, GUILTY of MURDER, as alleged in the indictment." Thereupon, the Defendant having previously elected to have the punishment assessed by the jury, pleaded to the enhancement paragraphs, if any, as stated above, and the jury was called back into the box and heard evidence related to the question of punishment. Thereafter, the jury retired to consider such question and, after having deliberated, the jury was brought back into open court by the proper officer, the Defendant, the Defendant's attorney, and the State's attorney being present, and being asked if the jury had agreed upon a verdict, the jury answered it had and returned to the Court a verdict, which was read aloud, received by the Court, and is now entered upon the Minutes of the Court as follows: "We, the Jury, assess punishment at Ninety Nine (99) years confinement in the Institutional Division of the Texas Department of Criminal Justice and a Fine of $10,000.00." A presentence investigation report was not required or done.

And thereupon the Court asked the Defendant whether the Defendant had anything to say why said sentence should not be pronounced upon said Defendant, and the Defendant answered nothing in bar thereof. Whereupon the Court proceeded to pronounce sentence upon said Defendant as stated above.

It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant is guilty of the offense stated above, the punishment is fixed as stated above, and the State of Texas do have and recover of said defendant all court costs in this prosecution expended, for which execution will issue.

It is ORDERED by the Court that the Defendant be taken by the authorized agent of the State of Texas or by the Sheriff of this county and be safely conveyed and delivered to the Director, Institutional Division-TDCJ, there to be confined in the manner and for the period aforesaid, and the said defendant is hereby remanded to the custody of the Sheriff of this county until such time as the Sheriff can obey the directions of this sentence.

The defendant is given credit as stated above on this sentence for the time spent in county jail. The Defendant also is ordered to pay restitution to the person(s) named above ~n the amount specified above. .

DS4: Judgment of Conviction by Court; Sentence By Jury, Cause No. A-08-5080-4-CR; Page 2 of 4 Pages . Cj() Case 4:13-cv-00709 Qocument 5-14 Filed in TXSD pn 05/17/13 Page 32 of 38 Furthermore, the following special fmdings or orders apply: Deadly Weapon: Pursuant to article 42.12, Section 3g, Code of Criminal Procedure & HBIS6 (77R) the court affll'Dlatively finds that the Defendant used or exhibited a deadly weapon, namely, a fireann, during the commission of a felony offense or during immediate flight therefrom or was a party to the offense and knew that a deadly weapon would be used or exhibited.

I In the inte!est of justice, the State b&s dete~ined not to proceed with Count Two contained in this indictment, and said Count is hereby_~ismissed.

Cause No. A-08-5080-4-CR; The State of Texas vs. Chadrick B. Pate; In the 36th Judicial District of Aransas County, Texas; Count Two- Aggravated Assault, Engaging fn Organized Criminal Activity

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DS4: Judgment of Conviction by Court; Sentence By Jury, Cause No. A-08-5080-4-CR; Page 3 of 4 Pages i J.' Case 4:~3-cv-00709 Document 5-14 FiJed in TXSD on 05117/13 Page 33 of 38

Pronounced in open court on the . JJ 1- dayof c/)dxao( ,20 87. . j"l.'-' S1gned on the_----~...;_..;;:;,..._~- ~y of ,Juh f'u " ~ • 20 Of .

Judge P idmg .

Defendant's right thumbprint

~: i J. i l r I' I. !. ' . Case 4:13-cv-00709 Document 5-14 Filed in TXSD on 05/17/13 Page 34 o! 38_

ATTACHMENT "A" Cause No. A-08-5080-4-CR THE STATE OF TEXAS IN THE DISTRICT COURT OF ·VS ARANSAS COUNTY CHADRICK B. PATE 36TH JUDICIAL DISTRICT JAIL CREDIT SUMMARY DATE REASON FOR CUSTODY TIME CREDITED OS-OS-081hrough 02-13-09 MayS, 2008: Arrested in Travis County in 285 days this cause. May 7, 2008: Booked into the Aransas County Jail for the offense of Murder and remained in custody. February 13, 2009: Convicted and semenced to ninety-nine (99) I years confinement in the Institutional Division ~. of the Texas Department of Criminal Justice.

Total Credit 285 days Judgment Total Credit

Additional Credit for Tune Served due the Defendant

,.

1: t Arracb. A 03-98 l !' CRIMINAL DOCKET CASE NO. A-~J?-.3""'1'~-¢-ab

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-a ~ Case 4:13-cv-00709 Document 5-14 Filed in TXSD on 05/17/13 Page 38 of 38

The State of Texas ) County of Aransas (

I, PAM HEARD, Clerk of the District Court of Aransas County, Texas do hereby certify that the documents contained in this record to which this certification is attached are all of the documents specified by Texas Rule of Appellate Procedure 34.5(a) and all other documents timely requested by a party to this proceeding under Texas Rule of Appellate Procedure 34.5(b) GIVEN UNDER MY HAND AND SEAL at my office in Aransas County, Texas this /If:! day of ~ , 2009. · .

PAM HEARD DISTRICT CLERK

'· , Deputy RECORD EXHIBIT # 2 RR VOL 1 OF 9 MASTER INDEX Case 4:13-cv-00709 Document 5-15 Filed in TXSD on 05/17/13 Page 1 of 15.

... -(-::ro '1 -- ( I ~ --c,yz_- 1 ~ j 1 R E p 0 R T E R I s R E C 0 R D VOLUME OF q VOLUMES 4 Trial Court Cause Number A-08-5080-4-CR THE STATE OF TEXAS * IN THE DISTRICT COURT OF 6 * vs. * ARANSAS COUNTY, TEXAS 7 * CHADRICK B. PATE * 36TH JUDICIAL. DISTRICT 9 MASTER INDEX -------------------------------------------- 11 ORIGINAL

..

Fl LED 18 IN THE 13TH COURT OF APPEALS CORPUS CHRISTl 19 JUN 1 0 2009 20 DORIAN E. RAMIREZ, CLERK BY ~ 'til( 2.3 (. J 24 Case 4:13-cv-00709 Document 5-15 Filed in TXSD on 05/17/13 ~age 2 of 15

1 T A B L E 0 F C 0 N T E N T S

VOLUME 1 : Master Index VOLUME 2 : Announcement (9-25-08) VOLUME 3: Pretrial Hearing -- Motion to Dismiss (10-23-08) VOLUME 4 : Jury Trial -- Voir Di~e Proceedings (2-9-09) VOLUME 5: Jury Trial -- Guilt/Innocence (2-9-09) VOLUME 6: Jury Trial -- Guilt/Innocence (2-10-09) VOLUME 7: Jury Trial -- Guilt/Innocence (2-11-09) VOLUME 8 : Jury Trial -- Guilt/Innocence (2-12-09) VOLUME 9 : Jury Trial -- Punishment-Sentencing (2-13-09) 16 Trial Exhibits -ooo-

RECORD EXIDBIT # 3 RR VOL20F9 9/25/08 EXHIBIT #3 RR VOL 2 OF 9 9/25/08 Case 4:13-cv-00709 Document 5-16 Filed in TXSD on 05/17/13 Page 1 of 5 (~- Dq-.( \~-~ !')' \,, 1 R E P 0 R T E R' S R E C 0 R D 2 VOLU~E ~.)_ OF q 3 TRIAL COURT CAUSE NO. A-08-5080-4-CR THE STATE OF TEXAS ) IN THE DISTRICT COURT OF 5 ) vs. ) ARANSAS COUNTY, TEXAS 6 ) CHADRICK PATE ) 36TH JUDICIAL DISTRICT ********************************************************* 8 ANNOUNCEMENT ********************************************************* A P P E A R A N C E S ATTORNEY FOR THE STATE:

r, MR. MARCELINO RODRIGUEZ 12 Assistant District Attorney P.O. Box 1393 13 Sinton, Tx 78387 (361) 364-6220 DEliVERED 14 Fax No. (361) 364-9490 SBN: 00797336 JUN 1 0 2009 13th COURT OF APPEALS ATTORNEY FOR THE DEFENDANT: MR. JOHN GILMORE 17 Attorney at Law S. Tancahua · FILED 18 Corpus Christi, Tx 78401 IN THE 13TH COURT OF APPEALS CORPUS CHRISTl (361) 882-4378 19 SBN: 07958500 JUN'l 0 2009 DORIAN E. RA~CLERK 21 BY -

23 On the 25th day of September, 2008, the following proceedings came on to be heard in the above-entitled and () 24 numbered cause before the Honorable Michael E. Welborn, Judge presiding, in Rockport, Aransas County, Texas: Proceedings reported by Shorthand Method. 0RIG IrJ AL SYLVIA D. TREVINO, CSR (361) 364-6200 Case 4:13-cv-00709 Document 5-16 Filed in TXSD on 05/17/13 Page 2 of 5

1 THE COURT: Mr. Gilmore, how are you today?

2 MR. GILMORE: I'm doing just fine, Judge.

3 THE COURT: You're here today-- Let's see.

4 You're on State versus Chadrick B. Pate. And what do we got going on, Counsel? What are your announcements in that case?

6 State has filed a motions for continuance, I believe?

7 MS. RODRIGUEZ: That's correct.

8 MR. GILMORE: We don't oppose it, Judge. We're going to -- Mr. Pate -- during the hurricane, Mr. Pate was taking extensive attorney/client notes prior to the hurricane.

11 When they were evacuated, he was instructed to put his notes in plastic garbage bags and when he got back from the evacuation, his notes were thrown out. Got that from Ricky McLester, Chief Deputy.

15 THE COURT: Threw all the plastic bags out?

16 MR. GILMORE: No. Just two people. Everybody got their stuff back except for two people. So all of his discovery is gone and all of his attorney/client notes are gone.

20 THE COURT: So he's not opposing a continuance because he needs to get back to square one?

22 MR. GILMORE: Yeah.

23 THE COURT: All right.

24 MR. GILMORE: I heard that you reset Ms. Cochran-May's case to November the 3rd.

SYLVIA D. TREVINO, CSR (361) 364-6200 Case 4:13-cv-00709 Document.5-16 Filed in TXSD on 05/~7/13 Page 3 of 5

1 THE COURT: Yes, sir.

2 ·MR. GILMORE: Which may be feasible, but I have a federal jury trial set then and those things in Judge Head's court, those things are known to fold. And last time I talked to my client, he wanted to go to trial.

6 THE COURT: All right. Well then what I'll do is go ahead and set that on November 3rd, making a note subject to your availability.

9 MR. GILMORE: Probably need -- We also need a decision -- I have a motion to sever, along with Ms. Cochran-May and she's going to need a decision on that, too.

12 There's going to be maybe a new attorney on that case.

13 THE COURT: That's what I'm waiting to find out. That's why I wanted to know, because I'm going to have to get a new attorney, going to need to get one pretty quick and that new attorney is going to want a new-- We'll need a pre-trial to decide. Basically three of these cases are going to be severed out anyway.

19 MR. GILMORE: We got a shooter and we got my guy that wasn't there.

21 THE COURT: He wasn't there.

22 MR. GILMORE: He wasn't there. I know what they're saying, but -- 24 THE COURT: You ain't going to figure out how they're going to get there. That's the reason they call it an

SYLVIA D. TREVINO, CSR (361) 364-6200 Case 4:13-cv-00709 Document 5-16 Filed in TXSD on 05/17/13 Page 4 of 5

1 allegation. All right. We are going to give you the same thing. We will have a pre-trial set on that for about the 3rd so we can look at severance at that time if see where we're at. And make a note that that's subject to your federal court.

6 (END OF PROCEEDINGS.)

SYLVIA D. TREVINO, CSR (361) 364-6200 Case 4: 13-cv-00709 Document 5-16 Filed in TXSD on 05/17/13 Page 5 of 5

1 THE STATE OF TEXAS COUNTY OF ARANSAS

4 I, SYLVIA D. TREVINO, Official Court Reporter in and fo~ the 36th Judicial District, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers, and were reported by me. 12 I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits; if any, admitted by the respective parties.

15 I further certify that the total cost foi the preparation of this Reporter's Record ~s ~~~nd was paid/will be paid by ~a"Vb~ 18 () . WITNESS MY OFFICIAL HAND this the--...<31-J&ay of J.l_ 1d!J)_, Jo~V; 21 .~le-{A_;_. )) .Jt{UAA~' ~ D. TREVINO, CSR 2733 22 Expiration Date: 12/31/08 Official Court Reporter, 23 36th Judicial District P.O. Box 700 24 Sinton, Texas 78387 (361) 364-9321

SYLVIA D. TREVINO, CSR (361) 364-6200 RECORD EXHIBIT # 4 RR VOL3 OF 9 10/23/08 REPORTERS RECORD .

VOLUME 3 OF 9

THE STATE OF TEXAS vs. CHADRICK 8 PATE Motion to Dism_._ss 10-23-08 ·.~-·

1 RE~ORTER'S ~CORD VOLUME _5 OF ~ VOLUMES 2 TRIAL COURT CAUSE NO. A-08-5080-4CR

5 THE STATE OF TEXAS ) IN THE DISTRICT COURT ) vs. ) ARANSAS COUNTY, TEXAS ) CHADRICK B. PATE ) ) 36TH JUDICIAL DISTRICT

12 MOTION TO DISMISS

20 On the 23rd day of October, 2008, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Joel B. Johnson, Judge Presiding, held in Rockport, Aransas County, Texas.

24 Proceedings reported by computerized stenotype machine.

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 APPEARANCES

3 MR. MARCELINO RODRIGUEZ SBOT NO. 00797336 Assistant District Attorney P.O. Box 1393 Sinton, Texas 78387 Telephone: 361-364-6220 Attorney £or the State

MR. JOHN S. GILMORE, JR. SBOT NO. 07958500 Attorney at Law 622 S. Tancahua Corpus Christi, Texas 78401 Telephone: 361-882-4378 Attorney £or the Defendant ( 13

LISA TUCKER RILEY, CSR, RPR Motion to DismLss 10-23-08

1 MOTION TO DISMISS 10-23-08 PAGE VOL.

4 DEFENDANT'S EVIDENCE Chadrick B. Pate Direct Cross V.Dire By Mr. Gilmore 5 v1 6 By Mr. Rodriguez 14 v1 STATE'S EVIDENCE Bryant Olson Direct Cross V.Dire 9 By Mr. Rodriguez 17 v1 By Mr. Gilmore 24 v1 Defense's Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 1 State's Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1 ( 13 Court's Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 1 Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 1

18 ....

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 ALPHABETICAL INDEX OF WITNESSES 2 Direct Cross V.Dire Olson, Bryant 17 v1 24 v1 Pate, Chadrick B. 5 v1 14 v1

(_ 13

LISA TUCKER RILEY, CSR, RPR Motion to DismLSS 10-23-08

1 P R 0 C E E D I N G S 2 (Defendant present) 3 THE COURT: This is the Chadrick Pate case, Cause No. 08-5080-4CR.

5 Mr. Gilmore, you have a motion that needs a hearing?

7 MR. GILMORE: It's a motion to dismiss, Judge, a rather unique situation I have never encountered it before.

9 It's a motion to dismiss for violation of due process and for violation of effective assistance of counsel.

11 THE COURT: All right. You may proceed.

12 MR. GILMORE: I'm going to call my client for ( 13 the limited purpose of addressing the issues in this motion, Judge.

15 THE COURT: All right.

16 Mr. Pate.

17 (Defendant sworn) 18 THE COURT: You may be seated.

19 MR. GILMORE: May I proceed, Judge?

20 THE COURT: You may.

21 CHADRICK B. PATE, 22 having been first duly sworn, testified as follows: 23 DIRECT EXAMINATION BY MR. GILMORE: 25 Q. Would you state your name for the Court, please.

I \

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. Chadrick Blake Pate.

2 Q. And, Mr. Pate, are you the defendant 1n Cause No. 08-CR-5080-4 in this court?

4 A. Yes, I am.

5 Q. How long have you been in custody on this case?

6 A. About six months.

7 Q. Okay. Do you recall the date that you were arrested?

8 A. I believe it was April 5th.

9 Q. Okay. Of 2008?

10 A. Yes, sir.

11 Q. And you're charged with the offense of murder?· 12 A. Yes, sir. ( 13 Q. In a two-count indictment?

14 A. Yes, sir.

15 Q. And without going into too much detail, you're not charged with being the actual person who murdered this victim.

17 You're charged under the law of parties; is that right?

18 A. Yes, sir. ...

19 Q. As being somebody who was a party to the offense -- 20 A. Yes, sir.

21 Q. is that right?

22 And basically the evidence against you in this case deals with codefendant testimony and circumstantial evidence; is that correct?

25 A. Yes, sir. ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 7 10-23-08

1 Q. During the course of your confinement at the Aransas 2 County jail your mother employed me to represent you; is that 3 correct·t 4 A. Yes, sir.

5 Q. And as part of my job I gave you the discovery packet h in this case; is that right?

7 A. Yes, sir.

8 Q. And I'm holding up ln rrom: or me L..Lt:JllL rruw uty ~..-ul-'y - .c -- - -- _: ~ 1- .J- - - . . .. ........ ... ., ........ ,.... ......... 't 7

9 of the discovery packet which you'll agree with me appears to ..I.. ..I.. be over an.... inch , thick. __ Is that reasonable? · 1 Zl YP~. sir.

12 Q. Okay. And is this basically what you had in your ( 13 possession?

14 A. Yes, si.r. 15 Q. And durlng our discussions I had asked you to .LO L 11 U L U U y 11 -L y .L c:::: v ..L c vv "- .1 .1...._ "-" ....... ....., .._. .......... - - J .c- - ...... -- _ -- __ _ -'-'----- .. ~1...1" and tO make noteS tO ~"'"; ""'·' t-he rli C::I"'(YITPr\1 nrir.kPt.

17 assist me in the preparation of your defense, did I not?

18 A. Yes, sir.

19 Q. Okay. And did you do that?

20 A. Yes, sir.

21 Q. tlGW l~ng did i t toke you to thoroughly go through all 22 of the statements, the investigative reports and the other 23 discovery matters and make notes on it? How long did it take 24 you to do that?

25 A. About three months.

I \

LISA TUCKER RILEY, CSR, RPR Motion to Disn,_,_ss 10-23-08

1 Q. Three months?

2 A. Yes, sir.

3 Q. And you were very thorough doing that, were you not?

4 A. Yes, sir.

5 Q. Did you make notes on the actual discovery materials itself?

7 A. Yes. I highlighted some stuff.

8 Q. And made notes in the margin?

9 A. Yes, sir.

10 Q. You did you also have individually handwritten notes about your defense; is that right?

12 A. Yes, sir. l 13 Q. And how many pages do you think you had of \ individually handwritten 15 A. Thirty-two.

16 Q. Thirty-two?

17 A. Yes, sir.

18 Q. And those all dealt with the core of your defense in this case; is that right?

20 A. Yes, sir.

21 Q. And those notes were directed to me so that I could help you prepare -- or you could help me prepare for the defense of your case; is that right?

24 A. Yes, sir.

25 Q. I assume you recall Hurricane Ike. (

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. Yes, sir.

2 Q. Do you recall when hurricane Ike was out in the gulf?

3 A. It was before the lOth because we left on the lOth.

4 Q. Okay. What happened to the inmates at the Aransas County jail as a result of Hurricane Ike?

6 A. They transferred us to Crystal City I believe it was.

7 Q. Was the whole jail population transferred there or just part of it? Do you know?

9 A. The whole jail.

10 Q. By the way, just for the Court's information you're in seg; is that right?

12 A. Yes, sir. ( 13 Q. So you have your own cell. You don't mix with other inmates; is that right?

15 A. Yes, sir.

16 Q. Okay. Do you recall what date you were evacuated from the Aransas County jail?

18 A. Yes, sir.

19 Q. What day was that?

20 A. I believe it was the lOth of September.

21 Q. And prior to your evacuation did you have these 32 pages of handwritten notes and the discovery packet with you?

23 A. Yes, sir. I just finished everything about two days before that.

25 Q. Okay. Did you request to bring that with you so that

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. Yes, slr.

2 Q. Do you recall when hurricane Ike was out in the gulf?

3 A. It was before the lOth because we left on the lOth.

4 Q. Okay. What happened to the inmates at the Aransas County jail as a result of Hurricane Ike?

6 A. They transferred us to Crystal City I believe it was.

7 Q. Was the whole jail population transferred there or just part of it? Do you know?

9 A. The whole jail.

10 Q. By the way, just for the Court's information you're in seg; is that right?

12 A. Yes, sir. ( 13 Q. So you have your own cell. You don't mix with other inmates; is that right?

15 A. Yes, sir.

16 Q. Okay. Do you recall what date you were evacuated from the Aransas County jail?

18 A. Yes, sir. ....

19 Q. What day was that?

20 A. I believe it was the lOth of September.

21 Q. And prior to your evacuation did you have these 32 pages of handwritten notes and the discovery packet with you?

23 A. Yes, sir. I just finished everything about two days before that.

25 Q. Okay. Did you request to bring that with you so that ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 you could maintain security over the privileged information in there?

3 A. Yes, sir.

4 Q. Okay. And what were you told regarding your ability to keep that?

6 A. They said I couldn't take anything but what I was wearing.

8 Q. Okay. What were you required to do with the information that you had prepared?

10 A. They gave us a bag with our cell number, our name and it said property on it and told us to put everything in the bag.

13 Q. Okay. And particular they gave you a bag?

i4 A. Yes, sir.

15 Q. You know that they gave it to every inmate at the jail, but you in particular had a bag; is that right?

17 A. Yes, sir.

18 Q. And can you .... describe the bag?

19 A. It was a big white trash bag.

20 Q. Okay. And how was your name affixed to that bag?

21 A. It had been in a black marker.

22 Q. Okay. And it had your name and it had your cell number?

24 A. My cell number and it said property on it.

25 Q. And what did you put in the bag? ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. Everything. My whole motion for discovery, basically my whole defense, all my commissary, I mean, hygiene, stuff like that.

4 Q. Okay. And what did you do with it?

5 A. I set it on top of my bunk. That is where they asked me to set it.

7 Q. Did you tie it in a knot, or did you -- 8 A. I tied it in a knot.

9 Q. Okay. And set it on top of your bunk?

10 A. Yes, sir.

11 Q. Is that something you were required to do?

12 A. Yeah. They told me to set it on top of my bunk. / 13 Q. And then you were evacuated? \ 14 A. Yes, sir.

15 Q. During the evacuation process when you were being moved from the jail did you see any officers that were involved in the investigation of your case?

18 A. I saw two of them. ...

19 Q. Who was that?

20 A. Gutierrez and Reddick.

21 Q. What is the last one?

22 A. Reddick.

23 Q. Reddick, okay.

24 And where were they in relation to your property? (

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. Well, they were standing outside the jail with shotguns.

3 Q. So they were helping with the evacuation?

4 A. Yeah, they were helping.

5 Q. When you were placed in the vehicle that took you to Crystal Falls is that where you went?

7 A. Crystal City.

8 Q. Crystal City, when you were placed in there was any mention made of your property?

10 A. Yeah. The officer that was transporting me said that my stuff was being put in a bag, and I told him, I said that couldn't be my stuff because they made me leave it in my cell. ( 13 Q. Okay. Somebody said that your stuff was being put in a bag, but -- 15 A. It wasn't. I looked. It was a box of somebody else's stuff I believe.

17 Q. Okay. You didn't have a box?

18 A. No. 19 Q. Okay. But there are boxes that are available?

20 A. Yeah. They sell them in commissary.

21 Q. And you didn't have one of those boxes?

22 A. No, sir.

23 Q. Okay. When did you return from Crystal City?

24 A. The 16th of September.

25 Q. Okay. And when you returned did you return to the ( LISA TUCKER RILEY, CSR, RPR Motion to Dism.LSS 10-23-08

1 same cell?

2 A. Yes, sir.

3 Q. Okay. Did you receive your property back? And in particular, did you receive your attorney/client notes and your discovery packet back?

6 A. No, sir.

7 Q. Did you make inquiry about that?

8 A. Yes, sir.

9 Q. What were you told?

10 A. They said that they were going to have to go look for it, and they never could find it.

12 Q. Do you have knowledge of whether or not anybody -- any other inmate lost any property?

14 A. Not to my knowledge. I asked around, and they said nobody else had lost their property.

16 Q. So you were the only one that lost their property?

17 A. Yes, sir.

18 Q. Now, for the Court's information, these garbage ba£s, are these the standard garbage bags that they use in the day-to-day operation of the jail?

21 A. No, sir.

22 Q. What distinguishes these gprbage bags from other garbage bags?

24 A. Well, the garbage bags that we use in seg are clear garbage bags. You can see right through them, and the garbage

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 bag that they gave me was a solid white one to put my property in.

3 Q. And it had your name on it?

4 A. Yes, sir.

5 Q. Did you to this day have you received your discovery packet back?

7 A. No, sir.

8 Q. And being aware that everybody but yourself received the discovery -- their property back, are you concerned that this may have been intercepted by law enforcement?

11 A. Yes, sir.

12 Q. And that law enforcement may be using the information ( 13 that you wrote to me in preparation to prosecute you? \._

14 A. Yes, sir.

15 Q. Okay. Other than that that's all the information you have; is that right?

17 A. Yes, sir.

18 Q. Okay.

19 MR. GILMORE: All right. Judge, I'll pass the witness on this issue.

21 MR. RODRIGUEZ: May I proceed, your Honor?

22 THE COURT: You may.

23 CROSS-EXAMINATION BY MR. RODRIGUEZ: 25 Q. Mr. Pate, these notes that were generated, you were ( \

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 the one that generated the notes?

2 A. Yes, sir.

3 Q. They came from you?

4 A. Yes, sir.

5 Q. And the discovery packet that you had, that was the discovery packet that your attorney gave you?

7 A. Yes, sir.

8 Q. Okay. You stated the property that was taken along with the property was the commissary stuff, shaving equipment, stuff like that?

11 A. Yes, sir.

12 Q. Did the jail reimburse you for all of that?

13 A. Some of the stuff they did; not all of it.

14 Q. When did you tell your -- well, put it this way: 15 When did your attorney become aware of these notes?

17 A. Right away.

18 Q. What do you mean right away? ...

19 A. I don't understand the question.

20 Q. When did you tell your attorney about these missing notes?

22 A. When did I tell him? As soon as I got back.

23 Q. Prior to you being evacuated to Crystal City when was the last time you saw your attorney?

25 A. Last time I saw him? I believe it was a week before (

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 that.

2 Q. Were your notes about completed at that time?

3 A. At that time, no. 4 Q. When did you start writing these notes?

5 A. About two-and-a-half months before that.

6 Q. Had you turned over any notes to your attorney prior to that?

8 A. No, sir.

9 Q. Why not?

10 A. Because I wasn't finished with everything yet.

11 Q. So you never turned over one note to your attorney?

12 A. No, sir.

13 Q. Despite three months of work you never turned one note over?

15 A. No, sir. I told him after I finish it is when I would give it to him.

17 Q. When did it come to your attention that.you were going to be evacuated to Crystal City?

19 A. That day.

20 Q. So the very day you were hauled out of the jail you were told to put your stuff in a bag?

22 A. Yes, sir.

23 Q. Did you attempt to call your attorney on that day to tell him about your notes?

25 A. I couldn't get a phone.

LISA TUCKER RILEY, CSR, RPR Motion to DismLss 10-23-08

1 Q. You couldn't get a phone?

2 A. They said we were being transported. The phones were turned off.

4 MR. RODRIGUEZ: I will pass.

5 MR. GILMORE: I don't have any further questions, Judge.

7 THE COURT: You may step down.

8 Your next witness, Mr. Gilmore?

9 MR. GILMORE: That's all we have on the lssue, Judge.

11 THE COURT: Mr. Rodriguez?

12 MR. RODRIGUEZ: Call Lieutenant Olson.

13 (Witness sworn) 14 THE COURT: Thank you.

15 MR. RODRIGUEZ: May I proceed, your Honor?

16 THE COURT: You may.

17 BRYANT OLSON, 18 having been first duly sworn, testified as follows: 19 DIRECT EXAMINATION BY MR. RODRIGUEZ: 21 Q. What is. your position, sir?

22 A. I'm operation manager for the jail.

23 Q. And how long have you had that position?

24 A. Approximately two-and-a-half months.

25 Q. Did you take over from Ms. Kutach? ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. Yes, sir.

2 Q. So back around September the lOth of this year you were the operations manager?

4 A. I was the operation manager, yes.

5 Q. About that time, September the lOth, what was the jail population? Do you recall?

7 A. We had about 160 in the jail. We let all of the misdemeanor ~nd traffic fines out, and with the approval of the Judge, of course, and I believe we transported a little over a hundred personnel to Crystal City.

11 Q. Was that a pretty big job?

12 A. It's a large job. ( ~ 13 Q. When did you start the evacuation?

14 A. We started the evacuation the day before. We had to arrange for all the transportation, all the officers to be on call, all the deputies and what have you to be there for security.

18 Q. Okay. Just to be clear, ,when did the evacuation take place?

20 A. I believe it was on the lOth.

21 Q. When did you inform the inmates of the evacuation?

22 A. Excuse me. They were told I believe that day, okay, that they were leaving.

24 Q. Okay. And what were they told to do?

25 A. They were told to pack all of their stuff in a

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 garbage bag, okay, and place their name upon the bag. And 2 they could not take anything with them because the other 3 facilities or the transportation doesn't have enough room to 4 take all of their personal belongings with them.

5 Q. So more of a logistical consideration?

6 A. Right.

7 Q; Did you become aware of Mr. Pate's complaint 8 regarding his property?

9 A. Yes, sir.

10 Q. And when did you become aware of that complaint?

11 A. Ever -- I believe it was a couple days after we 12 returned. ( 13 Q. It was a couple of days?

14 A. Yeah.

15 Q. Did you look into what happened to Mr. Pate's 16 property?

17 A. Yes, sir, we did.

18 Q. Now, was Mr. Pate the only person that lost property? ' 19 A. No, sir, he was not.

20 Q. How many other people are you aware of?

21 A. I believe that we had about a half dozen lost 22 everything that they had, and there was probably a dozen that 23 lost individual items.

24 Q. Looking into the matter involving Mr. Pate's property 25 what do you believe occurred?

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 A. When we found out that this property along with some others was missing we went back. Because there was a sergeant in charge of the details that were cleaning the jail when we moved the inmates out it always has been in the past that we bring the crews in to clean the jail. We brought power washers in to clean all the cells, okay, the walls, and the showers and the bunks.

8 What we can ascertain as far as a couple of them went was because he was in a small cell, they set the property bag outside of the cell, okay, when they were power washing his cell, and the crew that was doing the clean up picked it up as garbage and hauled it out because -- because it is no ( 13 place in the facility.

14 Q. The people that were doing the clean up, were they part of the jail?

16 A. Yes. They were officers from the jail. Yes. Yes.

17 We pulled out all of their bedding, all of their everything, their extra uniforms, towels. Everything that was in the cell we pulled out and washed or sanitized.

20 Q. So you believe this property was just thrown away as garb~ge?

22 A. I believe it was thrown away as garbage, yes, sir.

23 Q. Did you try to reimburse Mr. Pate for some of those lost items.

25 A. Almost everybody that lost their items, other than ( \

LISA TUCKER RILEY, CSR, RPR Motion to DismiSS 10-23-08

1 their personal letters and books and things like that, which you can't replace, okay, we replaced almost all of their commissary, their hygiene product, their underwear, their socks, T-shirts, their sweatpants, sweatshirts, whatever item they were missing the jail replaced. Doesn't mean we have got one hundred percent but we tried.

7 Q. Now, being in the jail are you separate from the investigative, I guess, department?

9 A. Yes, sir.

10 Q. Do you have any contact with them?

11 ·A. Basically only when they bring inmates in or they come over for interviews. Other than that I say hi to them, okay, but I don't see them on a daily basis.

14 Q. So there is no communication other than 15 A. No. 16 Q. Basically when the inmates were told that they had to bag up their property, what was going to happen with these bags? What was the plan?

19 A. All the bags would normally be put on their bunk.

20 Okay? In the big cell they were put all of them was put on a table and then the officers come in and put them on a bunk one bunk so they can strip everything else out of the cell so they could come in and power wash. Okay. Basically in the big cells none of the bags left the cells.

25 What happened was in the small cells because l LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 they are so small you can't leave the bag in there while you're doing -- the power washer is going on. They were set outside the door.

4 Q. So these were the only ones that were set outside?

5 A. Yes. And the garbage bags are the garbage bags that the jail used. They are not the one they have in the cell, okay, which is a small bag. The ones we gave them was large white bags. It goes in the larger garbage cans that are all over the jail because a lot of them have commissary that would fill up a store.

11 Q. So there was a lot of trash thrown away; is that correct?

13 A. Uh-huh.

14 Q. A lot of cells were cleaned out?

15 A. Lots of trash.

16 Q. So that a lot of things were thrown out that day?

17 A. There were lots of things that were thrown out.

18 Q. So basically if he didn't pu~it in a bag what happened to it?

20 A. If they put it in a bag in -- 21 Q. If they didn't put it in that bag.

22 A. If they didn't put it in the bag, okay, it was something personal like a personal Bible, okay, it was set aside, okay. But basically what was left over was, you name it, torn up uniforms, torn up towels, torn up cups, the list ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 goes on, okay, commissary wrappers, empty potato chip bags.

2 We filled up a whole dumpster with trash, okay, and then we still had the sallyport had trash; had to wait for them to come back and to fill it up again of just nothing -- personal stuff; just items that they discarded.

6 Q. So basically how would you respond to the claim that Mr. Pate's property was taken for the purpose of law enforcement to intrude on his rights?

9 A. I'm sorry, sir. Okay. We go through three or 4,000 people over there. None of the officers have time, okay, nor I doubt if any of them are interested in what his case is.

12 Probably half of them don't even know what he is there for.

13 Okay? We try not to pay attention to what most of the charges are because some of them would drive us up a wall. Okay?

15 Over the ten years I have been here, okay, we have never shared that I know of, okay, out of the facility any personal legal mail of any kind. Okay?

18 Now, mail that goes to the US postal service, okay, state law allows us to go through incoming/outgoing if we have a security reason. We do sometimes share that with DEA, the sheriff, with DA's office sometimes, okay? But as far as their legal mail, no. There are strict guidelines and rules. And the officers sometimes open legal mail, okay, accidentally when they are going through five or 600 letters, okay, but it doesn't happen very often.

I \

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 But we're basically -- none of us interested in what their cases are, okay, or anything on that order. Too many other things during the day to do.

4 MR. RODRIGUEZ: Pass the witness.

5 MR. GILMORE: May I proceed, Judge?

6 THE COURT: You may.

7 CROSS-EXAMINATION BY MR. 'GILMORE: 9 Q. When you became aware that there was going to be an evacuation did you take measures to ensure the people inmates' personal property was kept in a secure place and 12 A. It was kept in their cell, sir.

13 Q. So it would not be disposed of?

14 A. Yes, sir. But I can't help if it was taken outside.

15 Q. I'm just -- need to ask you what measures you took.

16 Did your staff write the inmates' names and their cell numbers on the bags?

18 A. Most of the inmates wrote their own names.

19 Q. Okay. So you don't know how Mr. Pate's got on there?

20 A. No. 21 Q. Okay. But everybody had their name written on their bags?

23 A. They were told they had to be on their bag.

24 Q. Okay. And the garbage bags from Mr. Pate's cell, are they the same garbage bags as the one you gave him? Are they

LISA TUCKER RILEY, CSR, RPR Motion to DisrrLLSS 10-23-08

1 the same type of garbage bag?

2 A. No. The ones that the cells get are small clear bags.

4 Q. Okay. Let me iust show you this -- 5 A. Yes.

6 Q. what I have right here. I'll mark this as Defendant's Exhibit 1. I'm going to show you what I'm handing you -- I have marked as Defendant's Exhibit No. 1. Can you .9 identify that?

10 A. Yes. That's one of the cell garbage bags.

11 Q. And just for the Court's information, this is a small -- goes in a small receptacle; is that correct? ( 13 A. Uh-huh.

14 Q. And it's basically see-through?

15 A. Yes. That's the ones that the six cells have. The big cells have big garbage bags.

17 Q. The garbage bags that you provided Mr. Pate and the other inmates to put their personal belongings in are different from that because they are bigger?

20 A. They are just larger. The large cells have large garbage bags which are white.

22 Q. So they are bigger like a 30-gallon?

23 A. Yes, sir, 30-gallon.

24 Q. And they are also not clear?

25 A. They are not clear. ( \

LISA TUCKER RILEY, CSR, RPR Motion to Dism-'-ss 10-23-08

1 Q. They are transparent or translucent, right?

2 A. Right.

3 Q. And everybody had their name on the outside?

4 A. Yes, sir. They were supposed to have their name on it.

6 Q. The people who went in and cleaned the cells are employees of the jail; is that right?

8 A. Yes, they are, sir.

9 Q. So they are familiar with the type of trash bags that ~orne out of the different types of cells?

11 A. Yes, sir.

12 Q. The seg cells have that like the Defendant's Exhibit ( 13 No. 1. The other ones have the bigger ones, right?

14 A. Yes, sir.

15 Q. And Mr. Pate, there is no disputing that he was in a seg cell?

17 A. No disputing, no. 18 Q. So the bigger not transparent or,translucent garbage bag would not have been typically coming from his cell; is that right?

21 A. No, sir.

22 Q. And especially not one with his name on it?

23 A. No, sir.

24 Q. Okay. And did you instruct the personnel from the jail who were doing the clean up to make sure that they

LISA TUCKER RILEY, CSR, RPR Motion to Dism-'-ss 10-23-08

1 watched out for people's personal property?

2 A. Many times, sir.

3 Q. Okay. It was important for you to preserve because some people have items that are irreplaceable?

5 A. That's right, sir.

6 Q. All right. But somehow during this clean-up process they threw away Mr. Pate's bag?

8 A. That is true.

9 Q. Okay. Are there security cameras set up in that ·10 jail?

11 A. Yes, sir.

12 Q. Okay. And are those security cameras functioning? ( 13 A. Yes, they do, sir.

14 Q. Did they show the hallways outside of the seg cells?

15 A. Yes, they do, sir.

16 Q. Okay. Do you recall being asked by Chief Deputy 17 McLester about Mr. Chad's --Chad Pate 1 s bag being missing and 18 his prQ_perty?

19 A. Yes, because we discussed it.

20 Q. Okay. And he talked to you as a result of a phone 21 call from me. Are you aware of that?

22 A. No. ' 23 Q. But he did come over and ask you about what happened 24 to his property; is that right?

25 A. I have had several people come and talk to me about ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 his property, yes.

·2 Q. At any point did you go to the videotape? I assume there is videotape.

4 A. Yes,. sir. We have gone back. We looked, okay, but you have to understand the cameras in the jail, all right, are motion sensitive. Okay? They take approximately ten to 15 seconds after a motion starts -- start. They take another 15, 20 seconds, and if this -- if you walk out of range they stop.

9 Q. Okay.

10 A. And so you can see, for instance, someone walk up to something, but if they stop the camera stops ahd then if they did something in the next 10 or 15 seconds, okay, and they ( 13 could be completely out of your site.

14 Q. Okay. Well, what I'm asking did you make an effort to see to check 16 A. Yes, sir. We could not find where it disappeared.

17 Q. I'm sorry. I have to finish asking the question.

18 A. Yes, sir.

19 Q. Did you make an effort to check the camera that was particularly that was trained on the hall outside of Mr. Pate's cell during the time of the evacuation and clean up? Did you make the -- did you make an effort to find out what happened to his property and who disposed of it?

24 A. Yes. We made a great effort to find Mr. Pate's property. Because if anybody approached that bag, that is a ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 motion, and it would have triggered the camera, yes, sir, but there was a lot more garbage bags than that one just in the hallway.

4 Q. I'm just asking did you check to make sure that you couldn't determine who moved that bag?

6 A. Yes, sir, we did.

7 Q. Okay. And you were not able to 8 A. Were not capable of doing it.

9 Q. Chief Deputy McLester talked to you within a week of the evacuation, did he not, about -- 11 A. Yes,· sir.

12 Q. about Mr. Pate? ~· 13 A. It was a week.

14 Q. Do you have any idea why he reported back to me that only one other person lost their property that Mr. Pate 16 A. Because at that moment that is all there was. Okay?

17 I still have -- as of this day, this morning, which I can show you the paper work, people saying that they have lost this article, this article, all the way back to the hurricane.

20 Q. All right. I'm going to hand you this packet right here.

22 A. Yes, sir.

23 Q. How much do you say that weighs?

24 A. A couple of pounds.

25 Q. Okay. Is that the kind of garbage that usually comes

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 out of cells?

2 A. A lot of it.

3 Q. Material packed like this?

4 A. A lot of them, paper work.

5 Q. And you don't think that a jailer who picked up a packet at least this heavy, probably heavier because it had more stuff in it, with Mr. Pate's name on it would have snapped to the fact?

9 A. They probably never noticed, sir, it had Mr. Pate's name. They were supposed to have but they did not.

11 Q. Did you talk to the people who cleaned out his cell?

12 A. I hollered at the people that cleaned out his cell.

13 Q. Who cleaned out his cell?

14 A. It could have been anybody of 30 people that were down there working at a lower level.

16 Q. So you don't know in particular?

17 A. Any specific officer, no. 18 Q. Okay.

19 MR. GILMORE: Okay. That is all I have, Judge.

20 MR. RODRIGUEZ: No further questions, your Honor.

22 THE COURT: You may step down.

23 THE WITNESS: Thank you, Slr.

24 THE COURT: Anything else, Mr. Rodriguez?

25 MR. RODRIGUEZ: No, your Honor. ( LISA TUCKER RILEY, CSR, RPR Motion to Disn1_,_ss 10-23-08

( 1 THE COURT: Anything else, Mr. Gilmore?

2 MR. GILMORE: That's all I have, Judge.

3 THE COURT: What lS your request?

4 MR. GILMORE: Well, Judge, you know., I have talked to Mr. Flanigan about this right after this -- it happened. I talked to the chief deputy about it. I have also brought it up to Judge Welborn that this happened, but I felt that it was necessary to do something officially and make a complaint about this because during the trial of this case it may become evident that these materials were being used against my client.

12 At this point I don't have any direct evidence ( 13 that these materials are being used against my client or have been reviewed by law enforcement which I think is probably what I'm going to be required to show to get the relief that I'm seeking, but somewhere during the course of this trial it may become evident that these materials are being used and not-- and I'~not pointing fingers at the district attorney's office. I don't believe they would do this knowingly, but some law enforcement personnel who have access to these materials know what Mr. Pate's defense is right now and are probably and if they do have possession of this and if reviewed it are actively working to combat the defense, and it may become evident during the trial.

25 But if they did do this intentionally, Judge, ( " LISA TUCKER RILEY, CSR, RPR Motion to Disnt.._ss 10-23-08

1 it's a violation of attorney/client privilege. It's a violation of his right to effective assistance of counsel, and it's a violation of his due process rights.

4 You know, I would like the relief that I requested in my motion, Judge, which is to dismiss with prejudice. I'm not expecting it, but that is what I would like, and I may renew this motion again during the trial if the Court denies the motion at this time.

9 THE COURT: Mr. Rodriguez?

10 MR. RODRIGUEZ: Basically the removal of the property, if in fact there were notes there, only take Mr. Pate's word what was in that bag, it was done. It was an accident. It wasn't intentionally done. It wasn't maliciously done. There is no evidence to show that it was.

15 We ask that the motion to dismiss be denied, your Honor.

17 THE COURT: Well, Mr. Gilmore, for what it's worth, I'm somewhat familiar with the efficiency with which the jail in Aransas County works, and unfortunately the circumstances I hear today are a par for the course for at least the last year and a half.

22 However, you're correct that if there is ever any proof introduced to this Court or any other court that sits in this district that those documents have come into the possession of some law enforcement agency or there is ever any

LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 direct evidence that these documents were intentionally ·destroyed or taken away from your client there will be immediate relief for you and immediate bad news for someone else.

5 MR. GILMORE: Yes, Slr.

6 THE COURT: Your motion is denied at this time.

7 MR. GILMORE: Yes, your Honor.

8 Just for scheduling, Judge, I know you're getting ready to take a recess, but I think we're set for 10 THE COURT: November the 3rd.

11 MR.· GILMORE: -- November the 3rd. And I talked to Mr. Rodriguez. I'm not sure that they have got everything ( 13 ready that they need to have done, Judge.

14 MR. RODRIGUEZ: We're still waiting on some reports by a dive team that collected the weapon, your Honor, and we're getting further evaluation done on the handgun that was collected from the dive team. It's a matter of doing a report. The testing has already been done.

19 MR. GILMORE: Are you going to be the trial Judge or -- 21 THE COURT: Yes. Yes.

22 MR. GILMORE: Are you going to be here for docket call? My only problem going to' trial or other than I don't have everything that they hav~ got so far, but I have a federal case that may go to trial in Judge Head's court. My ( LISA TUCKER RILEY, CSR, RPR Motion to Dism~ss 10-23-08

1 client is kind of vacillating. He doesn't know what he is going to do yet, so I haven't filed a motion for continuance.

3 I'll know next week what he is going to do, but I just like to inform the Court of that.

5 THE COURT: livhat are y 'all ready to try on November the 3rd?

7 MR. RODRIGUEZ: An attempted capital murder/sexual assault/injury to a child.

9 THE COURT: And the lawyers are ready?

10 MR. FLANIGAN: I think the primary case would be 11 the attempted capital murder. Mr. Wimberly, that is 12 Mr. Teague is defending on this case. ( \ 13 THE COURT: All right. Mr. Teague, and you 14 understand him to be ready?

15 MR. FLANIGAN: I believe he is going to be 16 ready.

17 THE COURT: Well, I think I'm going to leave it 18 to the judge who hears the announcement docket.

19 MR. GILMORE: Okay. Judge, that is fine. I 20 just wanted to let y'all know we may have a problem.

.21 THE COURT: I have been trying to get all of 22 Mr. Pate's cases off the docket as quickly as I can, John. I 23 have got one off that nobody wanted to try, and it would be my 24 pleasure to take another one off the docket that nobody wants 25 to try.

LISA TUCKER RILEY, CSR, RPR Motion to Dism_,_.ss 10-23-08

1 MR. GILMORE: Okay, Judge.

2 (End of proceedings)

11 * * * *

18 ...

21 .

( \ ' LISA TUCKER RILEY, CSR, RPR

1 STATE OF TEXAS COUNTY OF ARANSAS 3 I, LISA TUCKER RILEY, Official Deputy Court Reporter in and for the 156th District Court of Aransas, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. 11 I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, ( 13 offered by the respective parties.

14 I further certify that the total cost for the preparation of this Reporter's Record is $163.00 and will be paid in full by Aransas County.

17 WITNESS MY OFFICIAL HAND on this, the 11th day of March, 2009.

LISA TUCKER RILEY, CSR, RPR 21 Texas CSR #3895 Official Deputy Court 22 P.O. Box 700 Sinton, Texas 78387 23 Telephone: 361-364-9320 Expiration: 12-31-2010 ( LISA TUCKER RILEY, CSR, RPR RECORD EXIDBIT # 5 RR VOL40F 9 2/9/09 VOIR DIRE Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13, Page 1 of 69 . ~( .\ ...,... lo-o 1 ··""~ 1 R E P 0 R T E R ' S R E C 0 R D VOLUME _1_ OF _9._ VOLUMES 4 Trial Court Cause Number A-08-5080-4-CR THE STATE OF TEXAS * IN THE DISTRICT COURT OF 6 * VS. * ARANSAS COUNTY, TEXAS 7 * CHAD RICK B. PATE * 36TH JUDICIAL DISTRICT 9 JURY TRIAL · V O~r D' ~re p rocee d' ~ngs FILED JNTHE13THCOURTOFAPPEAU~ 10 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - GGRPUS~HRISTI A P P E A R A N C E S 11 JUN" I 0 2009 COUNSEL FOR THE STATE: " 12 MR. MARCELINO RODRIGUEZ DORIAN E..RAMIREZ, CLE ~ :~ MS. RETHA CABLE BY------~~~~--+-· 13 ASSISTANT DISTRICT ATTORNEY 36th Judicial District 14 San Patricio County Courthouse DELIVERED P. 0. Box 1393 15 Sinton, Texas 78387 JUN l 0 2009 Tel: 361-364-6220 16 Fax: 361-364-4978 13th COURT OF APPEALS SBN: 24046959 17 00785741 COUNSEL FOR THE DEFENDANT: MR. JOHN S. GILMORE 19 ATTORNEY AT LAW P. 0. Box 276 20 622 South Tancahua Corpus Christi, Texas Tel: Fax: 361-882-4378 361-882-3635 78403 ORI.GINAL 22 SBN: 07958500 ... ::.~ 23 On the 9th day of February, 2009, the following ( ), proceedings came on for trial in the above-entitled and numbered cause in said Court, HONORABLE JANNA K. WHATLEY, Judge Presiding, held in Rockport, Aransas County, Texas: 25 Proceedings were reported by machine shorthand.

Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 29 of 69

1 question?

2 THE COURT: You may.

3 VENIREPE~S.ON ROCK: Can you help me understand exactly what first-degree murder is?

5 THE COURT: Well, we only have one type of murder in Texas, just so you know. It's unlike television. You're going to find a lot of things are unlike television.

9 Right now -- I mean, not right now, but in Texas, the definition of "murder," intentionally or knowingly cause the death of an individual. That's the definition of "murder" in Texas. All right? And we only have one degree of that. Does that help?

14 VENIREPERSON ROCK: I think so. 15 THE COURT: Okay. Now, there are different ways of intentionally and knowingly causing death I will tell you and that's up to the State to prove or the Defense to disprove. But that is the definition you have in Texas. All right?

20 Now, can everyone consider the range of five to ninety-nine years or life depending on the circumstances of the case?

23 And there's one thing I forgot to mention which is most important. I did not mention the name of the deceased. Deceased was a gentleman by the name of Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page !;55 of 69

1 sir? Burden of proof?

2 VENIREPERSON ROCK: Right. I'm answering your question: "Does anyon·e have a problem II

4 MR. RODRIGUEZ: Okay. Any-one else?

5 Thank you very much, sir. Appreciate that.

6 Now is the time to talk about that.

7 Anyone? Anyone else, burden of proof?

8 Going, going ...

9 Okay. All right. Thank you very much, ladies and gentlemen.

11 Let's talk a little bit about the case, itself, at least the charge. Count One -- two-count indictment. One deals with murder and the other one deals with aggravated assault causing serious bodily injury.

15 What's going to happen if you become ~ juror in this particular case is that sometime after the evidence is presented to you, and evidence is someone sitting over there and tell you what happened. The verbal testimony is evidence. Any video that might be presented is evidence.

20 Any photograph is evidence.

21 But sooner or later, we're going to close the evidence. And at that time you're going to be asked to make a decision. What's going to happen is you're going to be getting a document called a ''jury charge," basically just a document that tells you the law with Case 4:13-cv-:-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 56 of 69

1 respect to this particular case. And you're going to be asked to deliberate on the facts; in other words, go back there, talk about what you heard and then come to some conclusion as to what the facts are, apply it to the law and come to a conclusion.

6 Now, the jury charge may contain certain things and we want to talk about some of that. May or may not, but I want to talk to you about &orne of these things.

9 As far as murder is concerned is that the allegations in this particular case is that the defendant, acting alone or together, did, then and there, intentionally or knowingly cause the death of an individual -- namely, Aaron Watson by shooting the said Aaron Watson with a firearm.

15 Count Number Two talks about pretty much the same thing. The defendant, acting alone or together, did, then and there, intentionally or knowingly or recklessly cause serious bodily injury to Aaron Watson by shooting the said Aaron Watson with a handgun or a firearm. Now, ~acting alone or together,~ what that basically talks about is the Law of Parties. What that simply means is that a person can be held responsible for the conduct of another. And one of the most common hypotheticals -- we use hypotheticals to explain things -- is that of the bank robbery. Everyone talks about the bank robbery as a Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 57 of 69

1 hypothetical.

2 You have three, four people, whatever the amount. They get.together and they decide that they're going to rob a bank. And they meet and they talk about what's going to happen, who's going to do what. And they gather the things that they need, the weapons. They gather the vehicles. And they go out to the target, the bank. And some of them may get out and go into the bank to actually perform the robbery, itself. And because you don't have much time to get a cab or anything li~e that, you usually have someone outside in a car, engine running, waiting.

13 Now, even though you're outside with the engine running, the Law of Parties means you're just as responsible as the people inside committing the offense.

1~ If, with the intent to promote or assist in the commission of the offense, this person solicits, goes out there and gathers these people, encourages, directs or aids in the attempts or attempts to aid in the commission of the offense, they can be held liable as a party.

21 Anyone disagree with that?

22 Now, here's another thing that pertains to parties. If, for instance, your idea i~ to go in there and commit this robbery, and that's what everyone's thinking about; that's the intent. But something goes case 4:13-cv-00709 Document 5-18. Filed in TXSD on 05/17/13 P.age 58 of 69

1 wrong. You're sitting out there in your car. You're part of this. You've conspired to do this. You've planned to do this; you've encouraged, you've ·aided; you're there.

4 But while your partners are in there committing the robbery, something bad happens. Somebody gets scared or feels threatened by the bank guard and they decide to commit a murder, to use that weapon. Someone dies inside.

8 Under the Law of Parties, guess what? You're sitting out· there in that car waiting for them to come out. You're not only responsible for the bank robbery, you're now also a.s a party responsible for the murder that took place inside. So, you know, you knew, you were shown, you knew there was a possibility that could happen. Guys go in.

14 They're carrying a gun. Things like that could possibly happen. It happened. You're just as guilty.

16 Anyone disagree with that? Anyone?

17 VENIREPERSON ELLIOTT: I think I do.

18 MR. RODRIGUEZ: You're Mr ....

19 VENIREPERSON ELLIOTT: Thorn Elliott.

20 MR. RODRIGUEZ: Your name, again, sir?

21 VENIREPERSON ELLIOTT: Thorn Elliott.

22 MR. RODRIGUEZ: Number Twelve. Okay. You wouldn't agree with that scenario?

24 VENIREPERSON ELLIOTT: Not necessarily.

25 MR. RODRIGUEZ: Okay. So you feel that the Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 59 of 69

1 person that's out in that vehicle is not responsible for murder in the scenario I gave you. Okay. That's fine.

3 VENIREPERSON ELLIOTT: Yes.

4 MR. RODRIGUEZ: If you believe that, that's fine.

6 Let's start -- anyone on the first row disagree?

8 Second row? I got you. Mr ...

9 VENIREPERSON COYM: Coym.

10 MR. RODRIGUEZ: You feel the same way?

11 VENIREPERSON COYM: I do.

12 MR. RODRIGUEZ: That's Number Eight.

13 MR. TURPIN: Judge, can I make a suggestion?

14 When he has them like this -- it may help the stenographer, too; certainly help us -- to just have them stand up.

17 THE COURT: He's supposed to after the second row.

19 MR. TURPIN: Thank you.

20 MR. RODRIGUEZ: All right. How do you pronounce your name again, sir?

22 VENIREPERSON COYM: Coym.

23 MR. RODRIGUEZ: Coym.

24 VENIREPERSON COYM: Yes, sir.

25 MR. RODRIGUEZ: Okay. It's my own writing; . Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 60 of 69

1 I'm sorry.

2 So we have Mr. Elliott and Mr. Coym.

3 Now, the Law of Parties I dictated to you, can you follow the law? You said that you feel that person shouldn't be responsible, but legally they would be. Can you put your feelings aside and follow the law?

7 Like I said, we don't want to have this kind of, you know, problem. But I'm going to ask you can you follow the law.

9 VENIREPERSON ELLIOTT: I can't give a general statement. I can give a hypothetical statement.

11 MR. RODRIGUEZ: Well, I mean, that's the thing. And I said i t ' s unfair because we can't go into the facts of the case and we ask you to make a specific unequivocal answer kind of, like, you know, if your wife goes on a trip somewhere and she gets on the plane and you say, "Honey, baby, will you be faithful to me while you'rs gone?" 18 She says, "Well, I don't know. You know, well, let me qive you a hypothetical. T.~t. me give you a hypothetical." 21 (Laughter) 22 MR. RODRIGUEZ: When you leave the airport, you want to feel either good or bad, not, ooh, you know.

24 So I know i t ' s not fair. I'm not trying to make light of it. But, really, we need to get an answer to the best of Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 61 of 6~

1 your ability.

2 VENIREPERSON ELLIOTT: Since I can ~onceive

3 of exceptions to that rule, I think probably the fair statement would be no, I could not agree to that.

5 MR. RODRIGUEZ: All right.

6 VENIREPERSON ELLIOTT: I know it may not be the perfect answer for you, but 'it's one you need.

8 MR. RODRIGUEZ: Same question to you, sir.

9 Can you follow the law?

10 VENIREPERSON COYM: I don't think I can.

11 MR. RODRIGUEZ: The answer would be "yes" or -- 13 VENIREPERSON COYM: I think in this particular case with the co-defendant, i t ' s a very good question and I'm having a lot of trouble with it.

16 MR. RODRIGUEZ: And, again, I apologize. We can't give you more specifics than that.

18 VENIREPERSON COYM: I understand.

19 MR. RODRIGUEZ: But the answer is "no"? You cannot follow the law?

21 VENIREPERSON COYM: No, I can't.

22 MR. RODRIGUEZ: Okay. That's everyone on the second row.

24 Anyone on the first row change their mind?

25 VENIREPERSON BARRETT: I feel the same way.

Case 4:13-cv-00709 Document 5-18. Filed in TXSD on 05/17/13 Page 62 of 69

1 MR. RODRIGUEZ: You're Mr ...

2 VENIREPERSON BARRETT: Ricky Barrett.

3 MR. RODRIGUEZ: Thank you, Mr. Barrett.

4 Appreciate that.

5 Again, we don't want to have those conflicts back over there. I'm glad you're coming forward. That's what we want and only you can answer the question.

8 That takes care of, I think, the second row.

9 Anyone else? No?

10 Okay. Third row, cannot follow the law as it pertains to parties.

12 VENIREPERSON SPRINGSTEAD: I'm having a real problem with the guy sitting in the car, driving the car, 14 'cause he has no idea what the man in the bank with the gun is thinki~g.

16 MR. RODRIGUEZ: Okay. Well -- 17 VENIREPERSON SPRINGSTEAD: I couldn't give the man in the car ninety-nine years and give the other -- 19 THE COURT: You have to stand up; I'm sorry, Mr ...

21 Mr. Rodriguez, please get them to stand up.

22 Thank you.

23 VENIREPERSON SPRINGSTEAD: I said I couldn't give the man in the car sitting outside ninety-nine years for murder when he had no real part other than driving the Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 63 of 69

1 car.

2 MR. RODRIGUEZ: Okay.

3 MR. GILMORE: Is th~t Mr. Springstead?

4 THE COURT: Get his name, please.

5 VENIREPERSON SPRINGSTEAD: Springstead.

6 THE COURT: Thank you.

7 VENIREPERSON SPRINGSTEAD: Number Twenty- Two.

9 MR. RODRIGUEZ: So I guess the answer if you could follow the law would be ...

11 VENIREPERSON SPRINGSTEAD: No. 12 MR. RODRIGUEZ: Okay.

13 THE COURT: Well, Mr. Rodriguez has given y'all a hypothetical. The hypothetical you need to understand is not necessarily what the law is. Okay? And I see Mr. Elliott shaking his head. Mr. Springstead, if I wrote that down correctly, is stating with your hypothetical. But I need to make sure he can follow the law. Your hypothetical is one example of the law, Mr. Rodriguez. You need to make sure the jurors {sic) understand the difference.

22 MR. RODRIGUEZ: We're talking about the Law of Parties. I'm sorry we cannot go into any more depth as far as this particular case. But you're basically saying that you couldn't find someone guilty based on the Law of Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 64 of 69

1 Parties.

2 VENIREPERSON SPRINGSTEAD: Other than as being a party, yes.

4 MR. RODRIGUEZ: You're Mrs. Morgan?

5 VENIREPERSON MORGAN: Stephanie Morgan.

6 MR. RODRIGUEZ: I think we have you on another issue here.

8 THE COURT: Correct.

9 VENIREPERSON MORGAN: I wouldn't be able to either.

11 MR. RODRIGUEZ: Thank you, Ms. Morgan.

12 Appreciate that.

13 Anyone else on Mrs. Morgan's row?

14 And, again, thank you very much. I know it's hard to answer these questions. Sometimes added information that you would need but unfortunately 17 THE COURT: Let's move on. Anybody else on the left-hand side?

19 We got some jurors going to need a break, Mr. Rodriguez. I'm going to speed you up, please.

21 MR. RODRIGUEZ: Okay. Number Thirty-Four, Mrs ...

23 VENIREPERSON OUTTEN: Outten.

24 MR. RODRIGUEZ: Outten.

25 VENIREPERSON OUTTEN: Correct.

Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 65 of 69

1 MR. RODRIGUEZ: Can you follow -- 2 VENIREPERSON OUTTEN: -- one intent was robbery and the other·intent was murder and I could not convict the other one.

5 MR. RODRIGUEZ: So you cannot follow the Law of Parties.

7 VENIREPERSON OUTTEN: No. 8 THE COURT: You're going to have to -- all the jurors are getting facts, Mr. Rodriguez. This is not helping us, I don't think, in our selection process. You need to explain the Law of Parties again. You used an example to help the jurors, b~t they're coming back at you with specifics and that's not helping me. 14 VENIREPERSON: And my question I think it might help other people -- I need to go back to sentencing and we're given the guidelines. Is this jury going to be sentencing both defendants the same way or can they sentence them separately?

19 THE COURT: You'll have separate answers for each defendant.

21 VENIREPERSON: Thank you. I think that's helpful. Thank you.

23 THE COURT: If you get there with both defendants, that is.

25 MR. RODRIGUEZ: The way it works is that -- Case .4:13-cv-00709 Oocument 5-18 Filed in TXSD on 05/17/13 Page 66 of 69

1 THE COURT: Mr. Rodriguez, just go to Law of Parties. Will you explain that again to them.

3 MR. RODRIGUEZ: Basically a person is held criminally responsible for an offense -- a person's held criminally responsible for the offense or the conduct of another if he acts to promote or assist' in the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid in the commission of the offense. That's part of it. And the other part happens to be the fact that as a party you're also criminally responsible for whatever happens in the commission of the offense.

12 MR. GILMORE: I don't think that's exactly the law, Judge. I object to that.

14 THE COURT: I don't know what he's read.

15 I'm sorry.

16 MR. RODRIGUEZ: if the offense was committed in the furtherance of the unlawful purpose and should have been anticipated. When I use the hypothetical we talked about planning and someone going into a bank carrying a weapon, a gun, and i t could be anticipated that there could be a shooting because someone went in there with a gun. That's the hypothetical we talked about.

23 It's not hypothetical pertaining to this particular case.

24 We cannot talk about the facts in this particular case.

25 All right? I don't know if that helps any.

Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 67 of 69

1 All right. Ma'am, you're saying you cannot follow the law as it pertains to parties? Is that what your answer was?

4 VENIREPERSON OUTTEN: That was my answer.

5 MR. RODRIGUEZ: Okay. Number Thirty-Four.

6 THE COURT: I'm sorry; I couldn't hear her.

7 MR. RODRIGUEZ: Number Thirty-Four.

8 THE COURT: You best get them to stand up, Mr. Rodriguez, please. I can't hear up here; I'm sorry.

10 MR. RODRIGUEZ: Ma'am, please stand up.

11 THE COURT: You answered with the facts specific, Ms. Outten. You know, you're talking about burglary and something else and that's not what the law is. Okay? And Mr. Rodriguez has read it a few moments ago what he anticipates I ' l l be giving you as an instruction of the Court. And basically, bottom line is, you know, it's not the innocent bystander. Okay? It's someone has to assist, promote -- I mean, hB gave the definition of the other onAR. That's basically wh~~ tho Law of Parties is and I think we got off a little bit on the other issue.

22 VENIREPERSON OUTTEN: So my understanding, the man sitting .in the car that his intent was to rob should be punished according to robbery and the man that pulls the trigger and murders should be punished according Case 4:13-cv-00709 Document 5-18 Filed in TXSD on 05/17/13 Page 68 of 69

1 to murder.

2 THE COURT: I don't get the two different charges, where that came into ·the scenario. I guess --- 4 VENIREPERSON OUTTEN: What was your question to me?

6 THE COURT: Pardon?

7 VENIREPERSON OUTTEN: What is your question to me?

9 THE COURT: My question is can you follow the Law of the Parties. Basically 11 VENIREPERSON OUTTEN: Yes, I can.

12 THE COURT: Okay.

13 MR. RODRIGUEZ: We got to Row Number Three.

14 Row Number Four, pertaining to Law of Parties.

16 Row Number Five.

17 Row Number Six.

18 Anyone over here cannot follow the Law of Parties?

20 Again, as far as what we're doing here, first thing and the only thing that concerns you if you sit as a juror is to determine, first off, if the defendants are guilty or not guilty of the offense charged. If the determination is guilty to one or the other or both, then you go into sentencing. And Case 4:13-cv-00709 Document 5-18 Filed i!1 TXSD on 05/17/13 Page 69 of 69

1 sentencing is done individually based on whatever evidence is brought before you, the degree of their culpability.

3 But right now, we're just talking about Law of P~rties.

4 I'm sorry we got off track there. Apologize for that. I guess you saw an inherent difference in the culpability and thought process. All right.

7 Okay. Earlier I asked about people unable to sit in judgment of others. I mentioned that. One thing I forgot to ask is whether the fact that you cannot sit in judgment, would that preclude you from being fair and impartial in this particular case or any case. So I'm going to ask the people that had answered they cannot sit in judgment of someone else, would that also mean you cannot be fair and impartial in this case. Those 15 Ma'am? Cannot be fair and impartial?

16 VENIRE~ERSON: Yes, I cannot be fair and impartial.

18 MR. RODRIGUEZ: And the lady over here, saiq you cannot be fair and impartial?

20 VENIREPERSON: Cannot be fair and impartial.

21 MR. RODRIGUEZ: Okay. On this side.

22 MR. GILMORE: It would help to identify these people.

24 THE COURT: Let me go back over from the beginning. I had first one was Mr. Espinoza.

Case .4:13-cv-00709 Document 5-19 Filed in TXSD on 05/17/13 Page 33 of 54

1 VENIREPERSON STECKLER: Huh-uh.

2 MR. GILMORE: Okay.

3 VENIREPERSON STECKLER: Did something wrong.

4 MR. GILMORE: And there's nothing wrong with you feeling like that. Okay? There's absolutely nothing wrong with you feeling that way. But you got to tell us.

7 Okay? It just kind of slipped out of your I mean, people were asking these questions and you never raised your hand and then all of a sudden here it came. All right.

11 VENIREPERSON STECKLER: Doesn't mean I would judge them guilty, just means that something's going on.

13 MR. GILMORE: Okay. If that's the way you feel, there's nothing wrong with starting off that way.

15 Okay? But if you don't tell us about it, then we don't know what to do.

17 So is there anybody here who feels the same way Mr. Steckler does, that they start off thinking they I must have done something wrong; that I'm not presuming -- I can't presume them innocent? Raise your hands. I see a lot of heads shaking.

22 Okay. Ms. Cartwright.

23 VENIREPERSON FOSS: Mr. Gilmore.

24 MR. GILMORE: Yes.

25 VENIREPERSON FOSS: I asked you --my name's Case 4:13-cv-00709 Document 5-19 Filed in TXSD on 05/17/13 Page 34 of 54

1 Tim Foss, Number Seventy-Two.

2 MR. GILMORE: Yes, sir.

3 VENIREPERSON FOSS: You said that y'all were not a team.

5 MR. GILMORE: We're not'a team.

6 VENIREPERSON FOSS: Okay. I believe the Judge said these two gentlemen will be tried in the same case; is that correct?

9 MR. GILMORE: This is going to be one trial.

10 VENIREPERSON FOSS: One trial.

11 MR. GILMORE: One trial.

12 VENIRE PERSON FOSS: But you're not a team.

13 MR. GILMORE: We're not a team.

14 VENIRE PERSON FOSS: Okay, I guess.

15 MR. GILMORE: In other words, to be completely honest with you, I don't care what happens to Mr. Hall. Okay? My interests are for Mr. Pate. Okay?

18 VENIREPERSON FOSS: But you're doing it in the same trial.

20 MR. GILMORE: We're being forced to do it this way. Okay? All right?

22 VENIREPERSON FOSS: Thank you.

23 MR. GILMORE: We would rather not do it this way. Okay?

25 Yes, ma'am. . RECORD EXIDBIT # 6 RR VOL5 OF9 2/9/09 JURY TRIAL GUILT INNOCENCE ~· . • -~· -:

'

,Y ~~~1-" REPORTERS RECORD ~'i' l J' VIY ,~~ VOlUME 5 OF· 9 ,\I., 1.1)1

THE STATE OF TEXAS vs. CHADRICK B PATE --------

R E p ,0 R T E R I s R E C 0 R D

VOLUME OF _g_ VOLUMES -/

4 Trial Court Cause Number A-08-5080-4-CR THB STATE OF TEXAS * IN THE DISTRICT COURT OF 6 * '\l'S.. *· ~'2-.P-..\'fc«c.~cc. ~~,.uW~"' , "l~".A.'k~ 7 * CHJ!\.DRICK B. PATE * 36TH JUDICIAL DISTRICT F 9 JURY TRIAL G-Cl"fL 1. t/ 'Innocence A P P E A R A N C E S COUNSEL FOR THE STATE: 12 MR. MARCELINO RODRIGUEZ \~'21 . '1\~'i,.nk 'Ck"D"ir".! ( ASSISTANT DISTRICT ATTORNEY 36th Judicial District 1.f Sa!'I' Perc .e-li ci o Coc.crr cy Courtr'lou s e P. 0. Box 1393 15 Sinton, Texas 78387 ~~~~ 3uL-3u4-uLL~ 16 Fax: 361-364-4978 SBN: 24046959 ;7 00?85?..f1. ....

18 COUNSEL FOR THE DEFENDANT: \~'1\ . ;:;-c·n.~ 'Ei • 'tii'l.'l,~tfR'E 19 ATTORNEY AT LAW P. 0. Box 276 20 622 Soa~r'l rancar'lua Corpus Christi, Texas 78403 21 Tel: 361-882-4378 rax: 3ol-BB2-3o3~ 22 SBN: 07958500 23 On the 9th day of February, 2009, the fol~owing proceedings came on for trial in the above-entitled and nurnbered cause in said Court, HONORABLE JANNA K. WHATLEY, ige Presiding, held in Rockport, Aransas County, Texas: L Proceedings were reported by machine shorthand. --------~--------------------------------------------------------- i CHRONOLOGICAL INDEX ----------- VOLUME 5 - ----- ( JURY TRIAL -- GUILT/INN<X:ENCE PHASE PAGE (2-9-09) Jury Seated, Sworn and Apprised of Trial Procedures ...................... 2 Jury Instructed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Defendants Arraigned..................................................... 7 Rule Invoked............................................................. 10 Opening Statements: By State............................................................... 11 Reserved By Defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 STATE EVIDENCE Direct Cross Redirect Recross Voir Dire MICHAEL HUFEMAN 21 39 YVE'ITE GARCIA 34 50 , 52 54 CSR Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 -oOo- 1 P R 0 C E E D I N G S 2 THE COURT: All right. Camille's going to call your name. As your name is called, if you' 11 please come have a seat in the jury box.

5 THE CLERK: Mark Hofstetter, Theresa Kjar, Sheila Williams, Herlinda Maldonado, Armando Naranjo, Robert Springstead, Sarah Gyarmathy, David John, Gerald Goodwin, Leland Trammell, Alifonsa Chavez, and Ronald Gore, and the two alternates will be Gayle Hancock and / Justin Snead.

11 THE COURT: Ms. Hancock and Mr. Snead, y'all will be sitting out -- Doc will tell y'all, y'all have special spots. Y'all have to stay in the same spot.

14 Everybody else can mess around, but my alternates get ~ these two spots over here, guys. Y'all two can switch those two spots if you want to but -- I've just got to keep y'all in the corner sort of.

18 (The venire panel was discharged.)

19 THE COURT: All right, guys. I'm going to ask y'all to please stand and I'm going to swear you in.

21 If you'll raise your right hands.

22 (The jury was duly sworn by the Court.0 23 THE COURT: All right. Ladies and gentlemen, you've got some instructions before you. I

25 have to read those to you. I'm going to do that in just a

/ second once they shut the courtroom doors and get everybody situated. When I conclude this, the State will then formally read the charges out loud to the defendant --~.:::==·=~~-:t.::..~t~.:::!(';_-::-,J:.."C' :;~··.·~';{'_'-..;:, :::.~'""'~-.:!~:·~;:-.,._"":<;:· :::....':'.~~~~~:'11,'1!: .. ~- "l:~';M.·;:•.::':"'I.:..:':!f~,,., ••

4 and then we'll have opening statements. .. ·--:._:··.·· ···.::~·~ --.: ::~.:·· :: • -- .-.~ l''-'1 • ..., r;;~;._. . ..

5 The State will -- most likely they always ' make an opening statement. I assume they're going to.

7 It's sort of an outline of what they anticipate the evidence is going to show you in this particular case.

9 The Defense has options. They may choose to make an opening statement right after the State or they may choose to make one right -before they present their evidence in ,.., .LL the case. Again, I guess the best way to put it, like / \ 13 Mr. Gilmore said, they're not a team. So I ' l l be asking each one of the defense attorneys that question separately and they may do the same thing; they may not. All right?

16 So you have to understand that. The rea son the·-c::ases

19 ";· opt:_ .. ' i.on b_eca u.s;<;=. ~J .. t:-~ !;h_~_~.,E-" ...c:P,.()_.iF~~~Y .. They're the one bringing the case to you. . .l ,. -- ..·· .

Okay?

21 (The preliminary instructions were read to the jury.)

22 THE COURT: All right, guys. There's a couple of other things.

24 Ms. Hancock, Mr. Sneed, y'all are alternates. Until the time the jury begins deliberations, y'all are just like a regular juror, okay? The reason I put you outside, sort of out of my in my peripheral vision where I can see each. one of you, unless you are substituted in for one of these individuals, you will not go in the jury room to deliberate on the charges or -- and if we have a guilty verdict, the punishment. But you're considered just like a juror and i t ' s only for that particular reason you are sort of peripheral I would say.

9 But otherwise, every rule I make, every ruling I d~, is for y'all as 0ell as for me; okay?

11 The other thing is if anybody wants to take notes you can, but I will tell you when you go in to l 13 deliberate, you will not be allowed to take your notes in there with you; okay? You have to rely upon your memory.

15 I'm one of those, like I said to you earlier, I'm visual, so I take notes. That's how I remember. If I write it down, i t goes in the brain; if I just see it, sometimes it just -- I don't know -- jumps around in the eyeballs or something. I don't know. So if you want to, you may; but I will tell you, when i t ' s time to go deliberate, you'll have to leave your notes outside. Okay. That's the way Texas law is on that.

23 Jurors are not allowed to question witnesses or ask questions. You have to take what you get. So hopefully you get what you need. The only time I will ask you, and I told one of my jurors earlier that had a hearing problem, if you can't hear, raise your hand. All right. And we'll try to get it repeated right then and there. But if you wait ' t i l later, there's a long, lengthy process about getting testimony read back and we don't want to have to go there, all right, if we can help it. If you can't hear, we can adjust these mikes a little bit. They're not the best, but they're a lot better than what we had before which was nothing.

10 The courtrooms are open. People may be coming and going. I will -- may limit that just depending on what's going on, you know. So but don't be ( 13 disturbed if we don't look up. We have bailiffs and people who know the people in the courtroom that are around the doors 'cause some people will come looking for a judge to sign something. We had a lady came on Friday that was looking for the municipal court . Sat here for an .....

18 hour I'm exaggerating; she didn't sit that long. But she was late getting 'cause she was in the wrong place.

20 And we got done with everything else and I said, "Okay; I haven't called your name." 22 So that's why I .have people stationed around my doors. They'll check to make sure they're not due in Judge Adams' courtroom. He has court the next two days.

25 There's municipal court. We have two justice of the peace court that's going on. So 'it gets a little confusing, so that's -- if I don't look up, that means I'm not worried.

3 I've had jurors just stare at the person through that door thinking ohr my goshr no one's watching them. That's why we have people to help us do that over here so that works.

6 How many of y'all have been on -- jurors before?

8 Okay. So I got four out of six -- five of y'all? Most of y'all know, the lawyers will remain seated unless they're standing, talking to you or to me. It's the way we do i t in Texas. It's sort of -- I tell you the difference of television. Television, the lawyers get up and walk around and do all sorts of things. Well, we don't do that in Texas. I guess some courts may let you, but I don't. I'm the old, conservative, Baylor type of judge. That's what I learned, so I make everybody follow my rules. But I think we all do it.

18 But that's why they do that; all right?

19 They will stand to address you or myself. If they want to come talk to a witness, the lawyers will ask and then they'll come up, show them something or demonstrate an item. They may do that.

23 Let me think; what else ...

24 I guess that'~ it. Make sure you hear what ( you say, again, because i t ' s very difficult to get the court reporter to read back a record. It's not -- again, not like television.

3 All right. Anything else, guys? Other instructions?

5 MS. CABLE: No, Your Honor.

6 THE COURT: All right. Very good.

7 All right.

8 "',-. de.. f:r. et;1d,qn ~· . . t,s .. s.epa,ra t e 1 y? Is that how you want to do it or what do y'all think? You want to do it together?

10 MS. CABLE: You want me to read it twice or just read it once and have them enter their -- 12 THE COURT: Y'all have any objection to just l 13 reading it once and led the individual pleas 14 MR. GILMORE: I don't have any objection to that, Judge 16 THE COURT: They are identical indictments; is that correct?

18 MR. GILMORE: They are.

19 MR. TURPIN: No objection.

20 THE COURT: All right. Gentlemen, if y'all will please stand while the State reads the charges to you out loud.

23 (Defendants c<;mpl i ed.) 24 MS. CABLE: In the name and by the authority of the state of Texas, Count One, comes now the grand jurors for the county of Aransas, State aforesaid, duly selected, organized, impaneled and sworn as such at the April term, A.D. 2008, of the 36th Judicial District Court in and for said county, a quorum thereof being present, upon their oaths present in and to said Court that Michael Jason Underwood, Christopher Joseph Hall, Anthony Lee Ray,

8 qt,og,e.ther, on or about the 4th day of January A. D. 2008 and anterior to the"presentment of this indictment, in the county and state aforesaid did, then and there, intentionally or knowingly cause the death of an individual name 1 y .' Aaron Wa t son - - by shoot in g the sa i ci ( \ Aaron Watson with a firearm.

14 Count Two; and the grand jurors aforesaid upon their oaths aforesaid do further present in and to said Court that Michael Jason Underwood, Christopher Joseph Hall, Anthony Lee Ray, Chadrick B. Pate and Kevin ...

18 Ray Tanton, acting alone and together, on or about the 4th day of January A.D. 2008, anterior to the presentment of this indictment, in the county and state aforesaid did, then and there, intentionally, knowingly, or recklessly cause serious bodily injury to ~aron Watson by shooting the said Aaron Watson with a handgun, the same being a firearm. ( 25 And the defendants did, then and there, commit said offense with the intent to establish, ma£ntain, or participate in a combination or in the profits of a combination who collaborated in carrying on sa~d criminal activity.

5 Against the peace and dignity of the State, si~rned by the foreman of the grand jury.

7 THE COURT: All riqht. Mr . H a 11 ., how. c:Lo '1 o u olead to the allegations contained in Count One of the State's indictment?

10 DEFENDANT tt~t..L. ·.

11 THE COURT: And as to Count Two?

12 DEFENDANT HALL: Not guilty, also.

14 Mr. Pate, how do you plead as to the allegations contained in Count One of the State's 16 indictment~

17 DEFENDANT PATE: I'm not guilty.

18 THE COURT: And Count TvJO.

1_9 l '· m n o 't: g u ilt y .

20 THE COURT: All right. Thank you.

21 And, ladies and gentlemen, the reason I'm ll ~~in~ i~ ~ c~~~ain or6er, l'm going to go in the order that the State has named the defendants in the indictment.

24 Mr. Hall's name was named first and Mr. Pate's name was ~._I_n_a_m_E:>--a_·_s_e_c_o_n_d_.__T_h_e_r_e_'_s__ n_o_m_e_t_h_o_d__t_o_m_y_m_a_d_n_e_s_s_.__r_'_v_e__g_o_·_t__,l to keep up with it and I thought it'd be easier for everybody if I just went by numerical order. So that's how we're going to do that.

4 All right. Mr. Turpin.

5 MR. TURPIN: Judge, we would invoke the rule at this time.

7 THE COURT: All right. Ladies and gentlemen -- 9 We'll bring them in later I guess. If y'all will advise all the witnesses.

11 MS. CABLE: You want me to·bring the ones in that are here now?

13 THE COURT: Not right now. Let's go ahead and do an opening. Just let them know the rule's been invoked.

16 MS. CABLE: Okay. I ' l l go let them know.

17 THE COURT: Okay. Thank you. We'll do it in a little bit.

19 All right. Ladies and gentlemen, there is a certain rule number and we sometimes -- lawyers forget it, so we've all decided it's called "the rule." And what "the rule" means for us is that that means you may not 3 bring other witnesses into the c,o.Hr,t:f.P8N.:c.-t:. O.",;!.\@,B. ~ ..s:·~~.•~tJ_rno.n.Y That way you get ~air and unbiased testimony so no one says, "Well, I'm going to say the same thing that guy did a minute ago." We don't do that.

2 Neither party may do that during the case. And the lawyers -- the witnesses can't talk to anybody but the lawyers involved in the case. And so that's what that was just now.

6 All right. Mr. Rodriguez, State wish to make an opening?

8 MR. RODRIGUEZ: Yes, Your Honor.

9 THE COURT: All right.

10 MR. RODRIGUEZ: May it please the Court, Counsel.

12 BY MR. RODRIGUEZ: 13 Good afternoon, ladies and gentlemen. Ms. Cable just read the indictment and that indictment serves a good - .... ·._._ • .; : :___ .:-··~- '~.:;::. 'r .,.;;;__ • ... "·,.:._-:~.::.:.::~.... :--~- ,"',"'-~l- -~5- t'-. ~,·-:.. .-:."~.!:~ -· -· "it'

16 the o f.fens·e·.•.,t hat , ~ re ch..q,-f-9.3-<::l .. and it"~ lS.. ~ lets, Y.?.1l, k_~ow exactly, what __ you' r~ looking at as far as what the offenses \-' ;: .• - ·- - • • . ___ !; -- J';.;_:·_.-- .:.··:::··::;.~_."" .···-..:_:,~-:... --~:_~---·;,-;_·,--·-: ·:~~-~·-~·-.:-:":~.~:-.·

18 are goir}g.t_o.b_.e, - . -. . -- .. __·::. ~......

19 Now, at this point in time, I'm going to talk to you a little bit about some of the witnesses you're going to be hearing from over the next couple of days. And to understand, we're going to try to get through this case as quickly as possible, but you have to understand it is a serious case so we're going to take the time that's i\ necessary.

1 Now, we're going to begin basically by telling you a little bit about what happened the night of January the 4th, 2008. We're going to tell you that on or about that time, the address, 909 North Tenth Street in Fulton, Texas, Aransas County -- ~emember, we're talking about the elements -- on or about January 4th, 2008, in Aransas County. The allegations we have here is that the -~ 11\ defendants, "k";_c t in g a 1 one or togethep~with other ~ ::-;r:·.~·.. Y:~~.:--~~:··· .

9 co-defendants --\?cting alone or togethar ,did, then and ··~-;,, .·.... ~.•. :._,.,,,~.·-~ .,., -······;.:,.;~~."

10 there, intentionally and knowingly cause the death of an individual, Aaron Watson, by shooting the said Aaron Watson with a firearm. I ( \ 13 And, again, in Count Two we're alleging ~he law of ._____.

1 4 ;parties ; that on or · about January 4th, 2008 , in Aransas ··~.·l.. :-:_,_~-~ County, Texas, the defendants, acting alone or together,l ./ •• • ••••~ • .p

16 did, then and there, intentionally, knowingly, or recklessly cause serious bodily injury to Aaron Watson by ......

18 shooting the said Aaron Watson with a handgun.

19 And i t is further noted when we talked about this particular indictment that was read to you and the 1 defend an t s did, then and there , c Q:fnm. it sa i d · offense wi t h the intent to establish, .maintain, participate in a combination or the profits of a combination collabor~ted·

/ 24 and carried out said criminal activity. Basically \ t·hat··they conspired with each oth~r to commit this They're going to testify that they were living there in a little trailer that's located on the property at 909 North Tenth Street. 909 Tenth Street (sic) is basically a house that belonged to a woman by the name of Jo Ann Budlong and there's a trailer on that property, actually a pull-out area. You'll see a photograph of that in the course of this trial.

8 They're going to tell you that they were living there at that trailer with their dad, Aaron Watson, and their mother, Tracy Lynn Watson. And they're also going to tell you that they know the defendant, Mr. Pate. And that Mr. Pate sometimes lived there. Also that Mr. Pate was ( 13 also involved with Tracy Watson. They were boyfriend- girlfriend. They're also going to tell you that sometime along the line that Mr. Pate no longer started living there, that Ms. Watson, Tracy Watson, was getting back with her husband, Aaron Watson. These girls are also going to tell you about the fact that Mr. Pate had made some threats regarding Aaron Watson, that those threats included bringing his friends over to take care of him.

21 You have to understand that these girls are 11 and 13 years old.

23 They're going to tell you that on the particular morning, very early morning, they were home. They're going to tell you they were home with their father and there was no one else was there. Just them and their father~ Aaron Watson. They're going to tell you that on that particular day, men entered their home. Jessica in particular, Jessica Watson, will tell you that she was going to leave that trailer to go right next door just a few feet to her grandmother's house to get some medicine that she normally takes on a regular basis. It was late, but she wa s going to. go get it .

9 She's going to tell you that when she was at the door, these men came in, that one of them was armed with a gun and one was armed with a bat. She's going to tell you that these men came in. She got scared. She ran back to / ( 13 her room. She stopped before she got to her room, looked to see what was happening, and these men had circled her father. Her father was laying in his bed and they were there. The bed the father stayed at was right next to the door, the entryway. It was a very small trailer.

18 She's also going to say that she was shoved into her bedroom and the door was closed.

20 There's also going to be another little girl, Meghan Watson. She's going to testify that she was there. She was up and she was in her room. She's also going to tell you that Jessica was going to go get her medicine. She's going to say that some men came into her house, circled her father and one had a gun. She's going to tell you that her sister was forced into the room, bedroom, and the door was locked. She's also going to tell you that, after a few minutes, they left out the back door of that trailer. Her little room has a little door that goes out as well. There's an external door that let's them go in and out of that room.

7 They went out that door. And when they managed to get out the door, they saw their father running and that there was some men chasing him. They're going to tell you that one of the men that was ther~ was the defendant, Christopher Hall.

12 You're going to be hearing from the co-defendants. ( 13 Each one's going to take the stand and, again, they're going to talk about what happened that night. They're going to talk about the fact that they-- and I'm talking about "they" being Mr. Underwood, Mr. Tanton and Mr. Ray.

17 Mr. Underwood and Mr. Tanton are going to tell you that they are not from here, not from around here; that they know the defendant, Mr. Pate. They know him as "Sid." They're going to tell you that they were called by Sid to come down and take care of a problem that he had.

22 So those two men along with Christopher '. ,\, Hall come down from the Houston area and they drive down here. And they're going to tell you that when they got down here, they met with Mr. Pate along with another man by the name of Ray. They met, they talked, and they discussed what they were going to do. They're going to tell you that they came down here at the request of Mr. Pate and they're going to tell you they were told that there was some people in this trailer that are holding Mr. Pate's wife and kids practically hostages. They were told the story by Mr. Pate.

8 They're going to tell you that, under that assumption, they went into that trailer. And they're going to t~ll

10 you when they went into that trailer, they saw those two little girls. One of them will tell you that they took the little girls and put them in the back room. The other / \ 13 are going to tell you that, yeah, they assisted in the assaulting of Mr. Watson. But they're also going to tell you that one guy had a gun, a revolver, and that was Mr. Hall.

17 They're going to tell you that Mr. Hall shot Aaron ...

18 Watson as he sat in his own bed; that after Mr. Watson was shot, he managed to get up and run. One is going to tell you that Mr. Hall chased him. They're basically all going to say that they ran from the trailer after the shot.

22 They were expecting that the police would be called soon enough.

24 They're going to tell you that they finally, after the shooting, met up again in their vehicle. Underwood, Tanton and Hall were all in one vehicle and that Mr. Ray was in another vehicle. But they're all going to tell you that Mr. Pate wasn't in the vehicle after the shooting.

4 They're going to tell you that Mr. Pate, after meeting with them prior to the shooting and after showing them where to go and after telling them what they're supposed to be doing, leaves before the shooting. He doesn't enter the trailer. He takes off out into the woods.

9 So immediately after the sho6ting, after these other men meet up, Underwood, Tanton and Hall decide to head back to Houston. Ray's told to go back and find Pate.

12 Ray says he didn't do that. He said he just goes back and ( 13 gets on horne. Ray's from here, this area.

14 The three men from Houston, Hall, Underwood and Tanton, then leave the area going over the Copano Bay Bridge. Hall's driving the vehicle. Tanton is in the front seat. As they start to go over the bridge, Tanton's going to tell you that Hall asked him to remove his sock.

19 You need to hold the sock open. Bullets were placed in the sock. The handgun is then given to Mr. Tanton, and at some point over the bridge, he's told to throw the gun into the bay along with the bullets. And that's done.

23 The gun is thrown overboard, thrown out the car into the bay. -.....

25 They're going to tell you sometime later that they found out that Mr. Watson died from the gunshot wound.

2 You'll hear officers testify that around 6:30 that morning, Mr. Watson died of a gunshot wound to the abdomen. Died of internal bleeding. Mr. Tanton's going to tell you that he didn't know the man that died and he confesses to his part in it and he talks about what happened. Underwood's going to tell you that he wasn't aware the man had died, but he, too, then confesses and talks about his part and the other people that are involved. Same with Ray. They're going to testify they heard the man died and they talk about their roles, about their involvement in this shooting and death. ( 13 Tanton, as a matter of fact, takes the investigators to where he believed the gun was thrown. They described it as a thirty-eight revolver, some tape on the handle.

16 Takes them out there to where he believed it was thrown.

17 And even after months, finally a dive team is gathered.

18 The dive team goes out there and, guess what? They find the weapon, thirty-eight caliber revolver.

20 The gun is taken to the lab in McAllen and cleaned up.

21 But the firearms expert, Mr. Hitchcox, is going to tell you that the gun was in very poor condition to begin with.

·23 Being in salt water for that period of time didn't make it i any better. It would be dangerous to try to fire it. So I

25 he would be unable to do any type of ballistics. That would require firing the weapon. He's going to tell you, however, that he made a casting of the inside of the barrel. And with that casting and with the bullet that was removed from Mr. Watson, he looked at them. He's going to tell you, though he can't say it's a hundred percent match, it was very similar. Very similar.

7 Now, when the witnesses start coming forward, they'll be in much more detail than I just laid out. Consider the witnesses before you. And, again, most of the State's witnesses will tell you that they reached a plea agreement with the State regarding this.

12 I want to thank you very much, ladies and gentlemen, ( 13 for your time and your attention. I ' l l talk to you again.

14 THE COURT: Mr. Turpin, would you like to make an opening statement at this time?

16 MR. TURPIN: Judge, I waive at this time or reserve opening. ...

18 THE COURT: Mr. Gilmore.

19 MR. GILMORE: I'm going to reserve, Judge.

20 THE COURT: All right. Very good.

21 All right. Mr. Rodriguez, if you'll call your first witness.

23 MR. RODRIGUEZ: I ' l l see if she's (sic) ( 24 here, Your Honor. I ' l l call Huffman. '· 25 THE WITNESS: (Enters courtroom) 1 THE COURT: Come on up, please, sir, and I ' l l swear you in before you have a seat.

3 Raise your right hand, please, sir.

4 (The witness was sworn.)

5 THE COURT: Have a seat, please, sir.

6 THE WITNESS: Yes, ma'am.

7 THE COURT: For the jury and the record would you tell us your name, please, sir.

9 THE WITNESS: Michael Huffman.

10 THE COURT: All right. Mr. Rodriguez is going to begin with his questioning.

12 MR. RODRIGUEZ: My I proceed, Your Honor? ( 13 THE COURT: You may.

14 MICHAEL HUFFMAN, having been first duly sworn, testified as follows: 15 D I R E C T E X A M I N A T I 0 N BY MR. RODRIGUEZ: 17 Q. Deputy Huffman, where do you work?

18 A. I'm a deputy sheriff with the Aransas County Sheriff's Office here in Rockport.

20 Q. And how long have you worked with the sheriff's office?

22 A. Four years.

23 Q. And back on January the 4th, 2008, were you on duty?

25 A. Yes, sir.

1 Q. And what shift were you working?

2 A. I was on the 6:00p.m. to 6:00a.m. shift.

3 Q. And what were your duties that particular day?

4 A. I was a patrol deputy.

5 Q. During that shift, were you called out to 909 North Tenth Street?

7 A. Yes, sir.

8 Q. And is that located in Fulton, Texas?

9 A. Yes, it is.

10 Q. Is that loc~ted in Aransas County, Texas?

11 A. Yes, sir.

12 Q. What was the nature of your call? Why did you ( 13 get called out there?

14 A. I was in the jail booking in a subject that I had ' arrested on county warrants when I overheard communications dispatch Sergeant Harrison to a disturbance in progress. I checked clear from the jail and headed out to that location.

19 Q. And where exactly is that location?

20 A. 909 North Tenth Street, it's going to be -- 21 Q. Using this courtroom as this courthouse as being a point of origin, where would you go? How far is it from here?

24 A. I can't give you an exact distance, but if you travel Business 35 north all the way to F.M. 3036 and then past it, you're going to take a left on -- i t ' s either Myrtle (ph) or Mesquite (ph) to Ninth Street, you know, take a right. You're going to be running parallel to Business 35 on Ninth Street. It intersects with what would be Lone Star Road (ph) which makes an S-curve then runs back out towards the south.

7 Q. About what time did you receive this dispatch?

8 A. It was around 2:23 in the morning.

9 Q. What did you see when you arrived there at the scene?

11 A. When I initially arrived on the scene, I observed a young female that was standing in the roadway. The roadway, itself, on North Ninth Street, it runs straight.

14 When Ninth Street starts to take a left and turns into Lone Star Road, Ninth Street continues on and it's just a small dirt road that dead-ends. When I exited off the main pavement onto the dirt road, there was a young female that was standing -- would be to the left of my car.

19 Q. A young female.

20 A. Yes, sir.

21 Q.' Did you identify her?

22 A. All I knew is that she was one of the daughters.

23 Q. You said she was standing in the roadway? i ' 24 A. Yes, sir.

I.

25 Q. What else did you observe?

1 A. She was very distraught. She was crying. She was real upset. She was screaming. When I exited the patrol unit, I asked her if she was okay and she couldn't tell me anything other than that, "My daddy's been shot." 5 And I asked here, "Where?" She pointed to where he was and I ran out to where he was found.

7 Q. And where exactly did you find him?

8 A. He was in the backyard of a residence. It would be number -- I believe i t ' s 15 Sandra Drive. He was in the backyard. He was maybe twenty-five feet or so behind 1.1 the house laying on his side.

12 Q. When you got to him, was there any emergency ( 13 medical personnel there?

14 A. Not at that time, no. 15 Q. Anyone else there when you got there?

16 A. Officer Spencer Yarnall with the Rockport Police Department; he arrived on location at the same time I did.

18 He and I approached the victim, Aaron Watson. And then a Sergeant Harrison; he arrived just a few seconds later.

20 Q. So the gentleman that was laying there was Aaron Watson?

22 A. Aaron Michael (ph) Watson.

23 Q. Was he conscious?

24 A. He was in and out of consciousness. ( 25 Q. Did you assess him to see what kind of injuries he had?

2 A. I did. Sergeant Harrison and myself, we tried to talk to him. Like I say, he was in and out. He would make a few grumbles, but he really didn't say anything.

5 We rolled him over onto his back and that's when I noticed he did have blood on his hands. The front part of his shirt near his naval on the left side had a little bit of blood on the outside of his shirt. Sergeant Harrison cut his shirt open and that's when we noticed he had a wound from a gunshot that was in his lower left abdomen and he also had one in his leg. I believe it was also in his left leg. ( 13 Q. Did you call E.M.S.?

14 A. Yes. They had already been dispatched to the scene. We were told prior to arrival that Mr. Watson had been shot. We had already called for E.M.S. at that time.

17 They hadn't arrived on scene at that time.

18 Q. Was the fact that you were going onto a scene where a gunshot took place concern you in any way?

20 A. Yes, it did.

21 Q. In what way?

22 A. Well, we didn't know if the actors were still in the area. We had no idea if there was anybody in any of the houses. We didn't know if there was anybody hiding ( behind any houses. We had no idea. And for our safety and the safety of the E.M.S. personnel, we wouldn't want anybody to be on scene but us until we made sure that there was no further danger to the victim, there was no further danger to law enforcement and none to E.M.S.

5 personnel at that time.

6 Q. So what did you do with Mr. Watson?

7 A. When we called for E.M.S., we didn't have an exact arrival time for them because we didn't know there were still suspects in the area. We needed to make sure we had him in a secure location so the E.M.S. could come in and treat him. So we opted at that point in time with authorization from my supervisor, Sergeant Harrison, we / l \ 13 moved Mr. Watson to my patrol unit. I put him in the back seat. Myself, Officer Yarnall and Sergeant Harrison, we all three lift him up, put him in the back seat. I took him out of the immediate area, drove him to or drove Aaron Watson to the Stripes Fulton convenience store which is at ....

18 Cactus (ph) and Business 35 where we waited for E.M.S.

19 Q. You felt it wasn't safe to have him treated there at the scene?

21 A. No, it wasn't because we didn't know if -- maybe there was somebody still in the area that was watching and knew what we were doing that could possibly, you know, we didn't know if anybody was going to shoot at us or try to ( cause any more harm to the victim than was already done.

1 We didn't know.

2 Q. So he was taken to the Stripes Fulton convenience store?

4 A. Yes, sir, where we waited in the parking lot for E.M.S.

6 Q. Did E.M.S. arrive?

7 A. Yes, they did.

8 Q. Did he remain in your vehicle ' t i l E.M.S. arrived or how did that work?

10 A. He did. He was laying in the back seat of my car. They had the back door op~n and I was trying to talk to him. I did talk to him very briefly although he did tell me he was pain. I told him E.M.S. was coming; everything would be fine. He told me -- he kept telling me, he says, "I'm going to die; I'm going to die." 16 And I said, "Well, ·if you're going to die, you need to tell me who killed you." And he wouldn't tell me. We talked about that several times. And then, like I say 19 MR. TURPIN: Your Honor, I'm going to object at this time as to the nariative and ask for question and answers.

22 THE COURT: Sustained.

23 Q. (BY MR. RODRIGUEZ} What -- did he tell you anything?

25 A. He just kept telling me, "I'm going to die." 1 Q. Was he taken to the hospital with E.M.S.?

2 A. He was removed from the patrol car, put on a stretcher. He was placed in the ambulance where he was transported from there to the grassy parking lot area of the Paws and Taws Convention Center in Fulton where we waited for HALO-Flight.

7 Q. So he was HALO-Flighted?

I 8 A. Yes.

9 Q. You know where he was taken?

10 A. I believe he was taken to Spohn Memorial.

11 . Q. After he was removed from your vehicle and placed in the ambulance, what did you do? ( 13 A. I remained with E.M.S. from the time I met them at the Stripes store until we got to Paws and Taws, I stayed on location there until he was taken out by HALO-Flight. I returned back to the crime scene.

17 Q. Did you ride in the ambulance or what?

18 A. I followed in my patrol unit. ?

19 Q. Anyone ride in the ambulance with him?

20 A. Not that I'm aware of.

21 MR. RODRIGUEZ: I ' l l pass the witness.

22 THE COURT: Mr. Turpin.

23 MR. TURPIN: Thank you, Judge.

24 -oOo- ( 1 C R 0 S S - E X A M I N A T I 0 N BY MR. TURPIN: 3 Q. Officer Huffman?

4 A. Yes, sir.

5 Q. Good afternoon. I represent Mr. Christopher Hall. I'm going to ask you a few questions.

7 You said you didn't remember the name of the girl that you talked to?

9 A. No, I don't remember.

10 Q. She give you a synopsis of what had happened?

11 A. She did.

12 Q. You didn't write that in your report? f \ 13 A. Where i t ' s contained in my report is what I was relayed to from communications.

15 Would you like for me to read what was in the report?

16 Q. No, that's okay. I'm just ...

17 Okay. Now, you also asked Watson if he knew who had shot him; correct?

19 A. That is correct.

20 Q. And, in fact, Mr. Watson would not answer you.

21 A. He didn't answer me, no. 22 Q. Was it because he couldn't or because he wouldn't?

24 A. That I don't know.

25 Q. You said he was in and out. He was saying things; right?

2 A. Yes, he was.

3 Q. Okay. Now, when y'all find him, you said you didn't have adequate time to secure the scene. You called in emergency medical technicians; right?

6 A. That's correct.

7 Q. How many officers did you have on the scene?

8 A. Myself, Spencer Yarnall with the Rockport Police Department and Sergeant Harrison.

10 Q. So you got three officers on the scene. The little girls are there with you or where have they gone?

12 A. There was one that was outside when I got there. ( 13 After I had made contact with her and she told me where her father was, myself and Officer Yarnall went where he was at and then Sergeant Harrison arrived. If he talked to any one of those girls after that, I don't know what he talked to them about . ....

18 Q. So y'all placed Mr. Watson in your car?

19 A. Yes.

20 Q. And how did y'all do that?

21 A. We carried him. We picked him up.

22 Q. Did y'all make a stretcher for him?

23 A. No, sir. We didn't have time.

24 Q. Okay. Well, let me go back to that. You said you didn't have time and you felt the scene wasn't secured. What was so unsecured about the scene? Why did y'all feel insecure? You have three officers there.

3 A. The dispatcher had told us there was between two and five male subjects on the scene. The daughter already told me her father had been shot. We have a male subject that's down. He's been shot twice. We don't know how many people are out there. We don't know what they're capable of. Evidently someone's capable of shooting the victim. Are they capable of shooting us as well or the E.M.S. personnel on scene?

11 Q. Okay. How did y'all get him to the car? Did y'all carry him or did you drag him?

13 A. We raised him up. Myself and Officer Yarnall both got on each side of him, put our hands underneath his arms, up underneath the pit of his arms, placed our hands on his back and we pulled him to the car so that we didn't have to mess with his abdominal area. When we get him to the car, we leave 19 Q. So my question was did you drag himr and you're telling me halfway I guess; right?

21 A. Well, we dragged him.

22 Q. Okay. How f·ar was that to your car?

23 A. Maybe thirty feet, forty feet.

24 Q. Now, at this time I think you've already stated ( you know he's got two wounds you can see for sure; right?

1 A. Yes.

2 Q. Abdomen and you thought leg, too.

3 A. Yes.

4 Q. And how did y'all place him in the car? Did you roll him in or how did y'all get him in?

6 A. We had the back door open to the prisoner compartment. When we pulled him up to where the vehicle was, we had him sitting down on his rump. We had his back against the seat. Sergeant Harrison opened up the driver's side door at the back of the car to crawl through unde.!:!neath -- 12 (Interruption by Court Reporter) ( \ 13 A. (TO MR. RODRIGUEZ) Sergea.nt Harrison crawled through from the driver's side. He reached down there and grabbed him underneath his arms and then we stayed -- myself and Yarnall stayed outside the vehicle and helped to lift him ub and pull him into the vehicl~ at that time.

18 He was on his back.

19 Q. Okay. What did y'all do for the two wounds?

20 A. We left them the way they were. There was not a lot of extensive bleeding.

22 Q. In fact, Mr. Watson never would tell you who shot him; right?

24 A. That's correct.

25 MR. TURPIN: We pass.

1 MR. GILMORE: No questions.

2 THE COURT: All right. Thank you.

3 Further questions, Mr. Rodriguez?

4 MR. RODRIGUEZ: No, Your Honor.

5 THE COURT: All right. Officer Huffman, you may step down. The rule's been invoked, so please do not discuss the case with anyone until the conclusion of the trial except for the attorneys involved in the matter, please.

10 THE WITNESS: Yes, ma'am.

11 THE COURT: Thank you.

12 THE WITNESS: Thank you. (Exits courtroom. ) ( 13 MR. RODRIGUEZ: May I have a moment, Your Honor?

15 THE WITNESS: (Enters courtroom and is sworn.)

17 THE COURT: That mike will swing closer to you, just do that. And I'm going to let you, for the record and the court reporter, will you please tell us your name.

21 THE WITNESS: Yvette Garcia.

22 THE COURT: Yvette? And is that with a "Y"?

23 THE WITNESS: With a "Y"; Y-V-E-T-T-E.

24 THE COURT: Thank you.

25 You may proceed.

1 Mr. Rodriguez is going to start.

2 YVETTE GARCIA, having been first duly sworn, testified as follows: 3 D I R E C T E X A M I N A T I 0 N BY MR. RODRIGUEZ: 5 Q. Ma'am, do you live at 13 Sandia Drive or Sandra Drive?

7 A. Yes, sir, I do.

8 Q. Is that in Fulton Texas?

9 A. Fulton, Texas, yes.

10 Q. And do you live there alone?

11 A. No. I live with my husband and my two other children or my two children.

13 Q. And back on January the 4th, 2008, were you living at that address?

15 A. Ye s , 's i r , I wa s .

16 Q. Now, while you were living there, was there some disturbance that woke you up aro~nd 1:45 or so in the ....

18 morning?

19 A. Yes, sir, there was.

20 Q. What was the nature of the disturbance?

21 A. The nature of the disturbance was I was awake. I couldn't sleep that night. I was watching T.V. I turned off the T.V. probably about 12:30, 1:00 -- i i.

24 Q. You need to slow down just a little bit. \

25 A. I turned off the T.V. about 12:30 or 1:00 and I was laying in my bed and the dogs were barking just nonstop but kind of used to the dogs barking because i there's so many dogs down the back alleyway. So anyway, the dogs are barking and I just laid there. Around 2:00, dogs were excessively barking and it was directly behind our rear lot. So when that took place, I was like -- 7 THE COURT: Hang on one second; I got a juror needs to turn his phone off real quick for us.

9 All right.

10 Q. (BY MR. RODRIGUEZ) So basically around two o'clock?

12 A. Yeah, around two o'clock the dogs started ( 13 excessively barking. And when that took place, I just, you know, I laid there and thinking, oh go~h, okay, another night without sleeping with the dogs barking.

16 So anyway, around-- a little after 2:00 I heard like. The dogs are really, really barking, but I heard, like, "No, stop, don't do that," and I'm thinking, oh gosh, they're at it again. And what I'm 20 Q. What do you mean "at it again"?

21 A. Well, the whole week prior to this incident in the back, I had called the police a couple of times on that address because there was excessive fighting. r'\ 24 Q. What address was that?

25 A. 910 North Tenth Street or 912 North Tenth Street.

1 So I had called the police and had some encounters with the back neighbors there for a period of the week prior to. And I had made a couple of calls to law enforcement to come out. And that was the whole week during Christmas really.

6 Q. The week of Christmas?

7 A. Yeah, the week of Christmas.

8 Q. Okay.

9 A. So I was just laying there thinking, okay, the guy's beating up that girl again and ...

11 Q. Don'· t go there.

12 Basically what happened is that there was a ( 13 disturbance.

14 A. Well, there was a disturbance and I just laid there ~hich I feel really bad for now because of the fact that, you know, I laid there for a good five minutes or a little bit more, maybe ten. And I was laying there just, you know, hearing this and all of a sudden -- 19 Q. So, now, you were hearing something going on -- 20 A. Yeah. I could hear screaming 21 (Interruption by Court Reporter) 22 Q. (BY MR. RODRIGUEZ) You were saying, if I remember corr.ect, you were saying about ten minutes you heard -- 24 A. Yeah, about five -- i t was really funny 'cause, ( ' you know, when you're laying in bed, time kind of just goes and I looked at the clock and it was maybe about 2:10, 2:12 maybe because I know by the time I came back in after everything had happened, it was around maybe 2:30 by that point. So I'm -- it was after 2:00 when I heard the yelling and the screaming. And what woke me up was the oldest one, Jessica, with this really -- it was a terrible 8 Q. Okay. Let's just back up a little bit.

9 Now, you live next door to 909 North Tenth Street?

10 A. Yeah. Say my house is right here and my lot is, ··~ i k e , r i ght t o t he b a c k o f t ha t chai r t ha t ' s t he r e . And you have a little alleyway, little tiny -- I don't even ( 13 consider it a road. And then you have their location. \ I wouldn't even ~all it a house. It's just this shack. And that's where it's at. I mean, you can see everything from my back two windows where I reside.

17 Q. And you said -- mentioned a girl by the name of Jessica.

19 A. Yeah. J~ssica did this horrible scream.

20 Q. Okay. Hold on; back up a little bit. In that residence, does a girl by the name of Jessica Watson live there?

23 A. Yes. That's who I'm referring to; Jessica.

24 Q. And is there another girl by the name of Meghan Watson 1 A. Meghan, the little one, yes.

2 Q. Those two girls live there.

3 A. Yes. At that time, yes.

4 Q. Are you familiar with a person by the name of Tracy Watson?

6 A. Yes, their mother.

7 Q. And do you know a person qy the name of Aaron Watson?

9 A. I didn't know Aaron Watson to tell you the truth.

10 And after talking to the girls 'cause they were at our house from, like, 2:30 'til, like, 7:30 that morning, you know, they had told me that the reason why their dad was ( 13 there 14 MR. GILMORE: Your Honor, I object to any hearsay.

16 THE COURT: Sustained.

17 Q. (BY MR. RODRIGUEZ) Did you basically know Mr. Watson?

19 A. Yeah, but -- I've seen him at the house, but I don't know him personally like I knew the others. "--· 21 Q. You don't socialize -- 22 A. No, but all the -- my kids had confrontations with the little ones. You know, the kid neighborhood deal, so ... ( 25 Q. Do you know Chadrick B. Pate?

1 A. I know the name but as far as, you know, him personally, no, no. 3 Q. Don't know him personally.

4 A. No, sir, don't know him personally.

5 Q. Okay. Going back to when we were talking about you said around two o'clock the dogs were barking quite a bit and you laid in bed for about ten minutes?

8 A. I would say just close to about ten minutes.

9 Q. Now, you said the commotion was going on next door?

11 A. Directly behind my rear lot, my lot.

12 Q. Could you hear anything being said? ( 13 A. Yeah. When I got up, I got up and I moved my shades to the side and I saw Jessica outside the -- they have a porch light and I saw Jessica and that's when she was yelling, "Stop, no. II And the scream was really, really -- it was bad. That's what made me jump up 'cause it was cold that night. Our A.C.s were off. There was nothing on. I mean, I could -- it was just a quiet night, you know. It wasn't quiet at night, but, you know, you can hear, you know, what was going on.

22 So I went over to my daughter's room, you know, which is -- well, we have a small house, and just kind of went over to my daughter's room and opened her curtains and that's when I saw Jessica and I saw her running and I saw one man that was on the porch, but it was a second. And he didn't have very much hair and he just ran. So I ran back to my room, turned on the lights to my bedroom, turned on -- opened the shutters and started pounding on the window, "I'm coming." 6 Q. All right. You said you were able to go to your daughter's room and look out?

8 A. Yeah, yeah. I did before I made a decision to -- 9 Q. Can you see the porch?

10 A. Yeah. Oh, yeah, you can see the porch from my house.

12 Q. The porch where Jessica and Meghan -- ( 13 A. I only saw Jessie; I did not, see Meghan.

14 Q. But that's the house where they lived -- 15 A. Yes. Yes.

16 Q. And what exactly was Jessica screaming? f

17 A. Jessica was screaming right at the porch. But what caught my attention is Jessica started coming towards my rear lot 'cause I don't have a fence in the back. She was coming towards my lot yelling, "Help; call the police; they're going to kill" -- I thought she said they're going to kill her.

23 Well, turns out when I went outside, it was her dad.

24 And when I --my husband jumped up and I told him, "He's going to kill her," because I was assuming that that man was that was living with Tracy was going to hurt her.

2 So we got our shoes on. We ran outside the side door.

3 I turned on my floodlight in the back and you can hear the scuffle. There was something going on out there. And my husband was -- Jessica was screaming. Meghan was -- I didn't know there was another girl there and -- 7 Q. Let's slow down a little bit. Meghan was out there as well?

9 A. Yes. That's when Jessica told me, "Help; my little sister's out there trying to help my dad. II

11 Q. Do you know the man that was living with Tracy at the time? ( 13 A. Well, he was a very slender man. The girls told me it was Chadrick Pate that was living with -- 15 MR. GILMORE: Your Honor, that's hearsay again.

17 THE COURT: Sustained.

18 Q. (BY MR. RODRIGUEZ) Okay. So that night you spoke with Jessica and Meghan?

20 A. Oh, yeah.

21 Q. You said that Jessica was screaming.

22 A. Jessica was screaming, yes, sir.

23 Q. What about Meghan -- 24 A. Meghan? My husband, when we ran out, everything was so -- it was just so chaotic because my girls were awake and they were outside. You have Jessica screaming.

2 My husband was trying to go out towards the back 'cause Jessica said, "They've got a gun to my dad's head; they're going to kill him." 5 I made a couple of calls to the sheriff's department over a period of time. I think maybe three or four.

7 And ... It just -- my husband was out in the back, but I knew there was people out there running. And he was trying to help and that is just the worst thing. I w,as pretty scared myself.

11 Q. So just basically you said. when you looked out of the window, you saw someone running? ( 13 A. There was people running. Oh, yeah, there was people running. But it was dark because in that alleyway there is no light. The only ones that have light is ourselves. We have a floodlight.

17 Q. These people, could you tell if they were male, ....

18 female?

19 That I 'could not, no, knew of Jessica and .A. sir. I that one man that was in the porch just for a split second. But he was a bigger build. He wasn't skinny, so' you know, I couldn't tell you who it was. But I did -- I did see the running in the dark and the yelling and ...

24 Q. You said you saw people running.

25 A. Yes. There was a couple which I'm going to assume that that was the father and -- not Jessica; she was with me Meghan, maybe some of the other people, because it was so dark. You got to understand; it was really dark. But you can hear -- we had a bunch of leaves in the back -- the running, and it was, you know, it was -- our lot is so little -- I mean, you can even touch my neighbor's house. I mean, and it was my home, a neighbor's home and then the Wrights' (ph) horne where he was resting. So they're very close. They're not huge lots; they~re little lots. So you can hear a lot, but it was just dark.

12 Q. But you can tell there was more than one -- ( 13 A. Oh, yeah, yeah. And when my husband took off running, I was yelling for him to come back 'cause I knew there was others out there. But ...

16 Q. More than one person was running.

17 A. Yes.

18 Q. Let's go back. You said you looked out your daughter's window; you could see the porch where Jessica and Meghan lived.

21 A. Yes, sir.

22 Q. You said you saw a person out there?

23 A. Yes. ,: 24 Q. A man.

I \ 25 A. A man.

1 Q. Did you say you saw people running or heard them?

2 A. I saw -- well, from the porch -- you have the porch and the light, so the light -- their porch light lets off a little light a little distance so you can see their car where they park it at night. So that's where you could see people taking off running. But like I said, that area in the back, that alleyway, they head off towards a darker area where just anything can happen at all times. But they take off and they were running and 10 Q. Were they running from the house?

11 A. They were running from the house, yes, sir, towards the alleyway. / 13 Q. And there was more than one person. \ 14 A. Yes, sir.

15 Q. Did you ever leave your house?

16 A. Did I ever leave? You mean I went outside when this was all taking place, yes, sir, and I was out there for a period of time.

19 Q. Who were you out there with?

20 A. I was with my husband, Todd, who had went to go look at the victim and he got Meghan back 'cause Meghan wasn't about to leave her dad's side. He got Meghan back.

23 I had Jessica. I had my two daughters and I was trying to get everybody inside, but my husband was persistent on ( going back out. He said, "Yvette, he's been shot on the side. He's bleeding-- " 2 MR. TURPIN: Judge, I'm going to object to hearsay.

4 THE COURT: Just don't tell us anything anybody told you, please, ma'am. Thank you.

6 Q. (BY MR. RODRIGUEZ) So basically your husband went out to where this man was.

8 A. Yes, sir.

9 Q. . What is your husband's name?

10 A. Todd Garcia.

11 Q. Did you see the victim?

12 A. My husband did; I did not. There was -- the ( I \ 13 Wrights had a big' grassy area 14 MR. TURPIN: Judge, I'm going to object at this time to her describing what her husband did or didn't see, did or didn't do.

17 THE COURT: I agree. Overruled.

18 You may proceed.

19 Q. (BY MR. RODRIGUEZ) Describe the Wrights' property.

21 A. The Wrights' property is -- there's a little fencing, a l i t t l e fence, and then you have maybe, like, a little bit of grass growing. And it was -- his body my husband -- where I saw my husband's shadow, he was kneeling over was right by thei~ back window, the neighbors' back window. And, I mean, I could tell you what my husband saw, but I wasn't there. I mean, he just 4 Q. Basically you saw your husband leaning over.

5 A. Yeah. Yeah, he was leaning over. And I sa\'11 him because I had my floodlight on at that point. And I turned on my floodlight. When we ran outside to go help, I popped open -- we had open the floodlight that we have so we can look and see what was going on. And, you know, takes about a minute or two for that light to come on.

11 But finally, when it shines, it shines.

12 Q. Your husband was over there leaning over. You're ( 13 assuming i t was Mr. Watson.

14 A. Yeah, because the little girl, Meghan, told me, "My dad's 'been shot. Help him." 16 Q. Now, what happened with Meghan and Jessica?

17 A. What happened with them? ...

18 Q. You were out there at this time. Anyone take them in?

20 A. I did. I was the one that took them in for, like, five hours or so. They were with me from the time of the incident ' t i l 7:30, ' t i l their mother was released the next morning and Mr. Beck and her came to get them.

24 They were with me and my family.

25 Q. And you stated that the girls were pretty distraught?

2 A. Oh, gosh, yeah; very, very distraught along with all of us. We couldn't believe what had just happened.

4 Actually I could, but I never assumed in my backyard. But that house is just -- 6 Q. Anyway, going back to the girls, you said they were distraught and upset?

8 A. Oh, yes.

9 Q. And which one told you the dad got shot?

10 A. Both of them. But outside, Jessica was the one that said that someone had a gun to her dad and they were going to kill him. Whenever my husband was bringing ( 13 Meghan back, that's when I found out there was a second one. Well, Jessica said, "Go help -- my sister's out there helping my dad. II And when my husband was walking back, he brought ' Meghan back. And I really hadn't seen Meghan too, too much. I was more familiar with Jessica.

18 Q. Meghan was in the same kind of condition, emotional state?

20 A. Oh, gosh, yeah.

21 Q. You said the whole incident started around 1:45 -- 23 A. With the dogs barking down the alleyway, yes, ( 24 sir.

25 Q. And when did the police arrive? Do you recall?

1 A. Oh, gosh. They must have got there -- I'm going to say about 2:25, 2:30 maybe just about. Because I know when I was back inside of course -- i t had to be around 2:30 by the time we got back in, the girls were already inside in my home. And a county unit came in the back and a city unit came in the back and they told us just to get inside for our own safety.

8 Q. You said you were able to see somebody on the porch, a male.

10 A. Yes, sir.

11 Q. Did you recognize who that male was?

12 A. Like I said, he was of a bigger build, but, I ( 13 mean, you're not -- I'm not going to be able to say, "Hey, it was such and such person." I mean ...

15 MR~ RODRIGUEZ: May I approach the witness, Your Honor?

17 THE COURT: You may.

18 Q. (BY MR. RODRIGUEZ) I'm going to hand you the statement you gave to Michael Brooks and ask you if that helps you with your memory regarding I asked you if you remember the man that was on the porch.

22 A. What's that?

23 Q. I ' l l ask you if you remember the mari that was on the porch. ( 25 A. That describes pretty much what I saw; but, like I said -- I mean, as far as pin-pointing who that person was, I couldn't do that.

3 Q. Did he look familiar to you at all?

4 A. Who? The man?

5 Q. The man on the porch.

6 A. To tell you the truth, he looked a little ... The night -- the week of Christmas when I had called the police, there was known to me now -- I don't know if I can say this -- Chadrick Pate. The two girls and the mother were sitting on the porch. My girls were outside playing ~1 and they came in yelling that the dad was 12 MR. RODRIGUEZ: May I approach?

13 Don't go into that.

14 May I approach, Your Honor?

15 THE COURT: You may.

16 Q. (BY MR. RODRIGUEZ) Do you know if a man named Chadrick B. Pate lived next door?. ...

18 A. Yeah.

19 Q. Now .. This man, Chadrick B. Pate, is he present in the courtroom today?

21 A. I would say "yes." 22 Q. Please point him out and describe something he's wearing 24 A. I would say that's him right there.

25 Q. Which one?

1 A. I would say that's him because, to me -- of course, i t ' s been a year-- Chadrick B. Pate was of a thinner build.

4 Q. The man there looks familiar to you.

5 A. Like I said, it's been a year. He could look -- I mean, I look different. I've gained twenty pounds, you know, honestly.

8 Q. Okay.

9 A. I mean.

10 Q. All right. The man on the porch.

11 A. Yes, sir.

12 Q. Have you ever seen him before?

13 A. That's what I was going to say. The way that he looked looked like a man I had seen out there when I first called -- when I called the police the week prior to. He was with Chadrick B. Pate. And he was just standing there doing nothing in defense of that family. But he did. It ....

18 could have been. But like I said, I'm not.

19 MR. RODRIGUEZ: I ' l l pass.

20 THE COURT: Mr. Turpin.

21 C R 0 S S - E X A M I N A T I 0 N BY MR. TURPIN: 23 Q. Did you hear any sounds other than what you said you heard?

25 A. Did I hear any other sounds? Just yelling.

1 Q. Did you hear a gun go off?

2 . A. That I did not, no, sir.

3 Q. Did you see anybody with a gun?

4 A. No, I did not.

5 Q. Did you see anybody with a pipe?

6 A. No, sir, did not. I -- 7 Q. Did you see anybody with a baseball bat?

8 A. No. 9 Q. You also said something about ... You had the two girls with you for about four or five hours?

11 A. Yes, sir; that's correct.

12 Q. You waited until Tracy Watson was released? What ( 13 do you mean by that?

14 A. What I mean by that is the girls were being taken care of by their dad because their mom and their grandma was in jail. So when -- 17 Q. Hold on a minute. ......

18 A. That's why their dad was there taking care of them, because their mom and their grandma was in jail.

20 Q. Grandma is?

21 A. Jo Ann Budlong.

22 Q. Tracy Watson and the grandmother~ Jo Ann Budlong, are in jail. Do you know where they're in jail at?

24 A. Whenever my concern was when the girls came over to the house that they were asking who was going to take care of them because, you know, they told me about the mother and the grandmother and that their dad was -- had been shot, who was going to take care of them. So I asked one of the law enforcement officers and he said, "We're going to place a call to the Aransas County Jail" -- I believe that's what he told me, Aransas County J a i l - - "and see if we can get them out." It took such a long time because I needed to go to work by 8:00 the next morning and she wasn't released ' t i l about 7:30, 7:40.

10 And so that's why they were with me. 11 Q. Did they release both Tracy and Budlong?

12 A. No. They just released them to Tracy and that's ( \. 13 all I knew who was released was Tracy. And Mr. Beck came in at the time, Austin (ph) Beck -- or not Austin, his dad, Mr. Beck, Detective Beck.

16 Q. So that ended your care of the kids at that point.

18 A. Oh, yeah. Yeah.

19 MR. TURPIN: I pass.

20 c R 0 s s - E X A M I N A T I 0 N BY MR. GILMORE: 22 Q. You said that there was fighting over at the house the week ...

24 A. It was during the week of Christmas. ( 25 Q. During the week of Christmas. Was it after Christmas?

2 A. No, i t was before Christmas.

3 Q. You said, like, two weeks.

4 A. No. What went on January 4th, i t was the week before prior to the·new year. So maybe i t was. I thought i t was the week of Christmas 'cause we still had lights out.

8 Q. Could have been after Christmas -- 9 A. You know, it could have been 'cause we had our lights and so did they and so did the whole neighborhood, 1.1 so. 12 Q. So this fighting that you heard was probably / ~ 13 after Christmas?

14 A. I don't. You know what? Probably, probably not, because of the fact that 16 Q. 11 Probably,. probably not 11 ?

17 A. Well, you got to understand, i t ' s been a year.

18 It has been a year.

19 Q. Okay.

20 A. And ..

21 Q. So you're not really sure. It was sometime around 23 A.- Yeah, but I'm sure that Aransas County has the 24 records when I called. ( 25 Q. Okay.

1 A. All I know is they had been fighting for a long time. Almost every night and during the day, too.

3 Q. Okay.

4 MR. GILMORE: That's all the questions I have.

6 R E D. I R E C T E X A M I N A T I 0 N BY MR. RODRIGUEZ: 8 Q. You called the police department because of the fighting that took place?

10 A. The sheriff's department, yes.

11 Q. Sheriff's department.

12 A. Yes, sir.

13 Q. You said earlier it was a week before Christmas .or the week of -- 15 A. It was the week of Christmas. Like I said, they had their lights on and we had our lights on, too. But, you know, sometimes we don't take our lights down 'til after Christmas. So, like I said, I called in -- I want to say it was the week of Christmas because I remember thinking, those poor girls, what type of Christmas are they going to have, you know. But I remember that, thinking that to myself.

23 Q. All right. So it was around Christmas.

24 A. I'm going to say that, yeah.

25 Q. Do you have an idea who was involved in the disturbance?

2 A. At the time that I called at that point?

3 Q. Yeah 4 MR. GILMORE: Your Honor, unless she knows from personal knowledge, it's hearsay.

6 .A. (TO MR. RODRIGUEZ) It's going to be hearsay 'cause whenever I had the girls for several hours and they were talkative.

9 Q. No. I'm talking about the event which -- before Christmas.

11 A. You know, I asked the officer who it was and, of course, he didn't release any information to me. ( 13 Q. You weren't looking over there to see what was going on?

15 A. You could -- I could look over there, but, I mean -- 17 Q. Okay.

18 A. She had so many different men.

19 Q. I understand.

20 MR. RODRIGUEZ: I ' l l pass.

21 THE COURT: Mr. Turpin.

22 MR. TURPIN: No further questions.

23 THE COURT: Mr. Gilmore.

24 MR. GILMORE: (Shaking head) Nope.

25 THE COURT: All right. Ms. Garcia, we have something called "the rule'' has been invoked which means you may not discuss this testimony you've made today whatsoever including at home with any of your family members or anyone. The only two parties you may visit with are the State's attorneys or any of the Defense Attorneys until the case is totally over which may be later in the week. The D.A. may request you to keep in touch with them or not. You may go home or go back to work.

10 THE WITNESS: Thank you. (Exits courtroom.)

11 THE COURT: All right. Counsel, will y'all approach, please. (Interruption by Court Reporter) ( ~\ 13 (An off-the-record discussion was had at the bench.)

14 THE COURT: All right. Ladies and gentlemen, I'm going to ask you to please don't discuss the case with anyone during your break this evening.

17 Again, if anybody asks, "I'm on a criminal trial and I ' l l talk to you about it later." 19 I'm going to ask you to be back here ready for testimony beginning at nine o'clock. Doc's going to show you where we're going to be assembling you over here at the J.P. One courtroom. It's where you'll be going in the mornings so you don't have to be out in the hallway worrying about the witnesses.

25 Camille normally has coffee ·ready. She'll probably put it in there tomorrow because I think Judge Adams has a big docket, doesn't he, the next two days?

3 THE CLERK: Yes, I can put it in there.

4 THE COURT: All right. Okay. If you want to bring coffee or water, cokes, in the courtroom, I'm good with that. Just remember we may take an hour and a half before we take a break, so ...

8 All right. Thank y'all.

9 Please rise for the jury.

10 (The jury exited the' courtroom.)

11 THE COURT: Counsel, if you need anything of .12 me, I want it done at 8:45. And I want to be sure the defendants are in here by 8:30 in the morning. And then the other guys they're telling me we're going to try to start them at 1:30, or 1:00 or 1:30. We'll _have to sort of massage it.

17 MR. RODRIGUEZ: Actually, I guess I '11 just get all the officers taken care of then.

19 THE COURT: Well, we'll just -- 20 MR. ·RODRIGUEZ: It will be in the afternoon when we bring the other guys.

22 THE COURT: Well, we'll see. If things go fast, we'll be going back. We're thinking after lunch for 4 Mr . T·a n ton and Ray and Underwood i s what we ' r e thinking .

25 All right, guys. Thank you very much. Do y'all need to talk to your clients any?

2 MR. GILMORE: I do, Judge, but I also want to address an issue and I talked to Mr. Rodriguez about it. In the girls' statements, they talk about extraneous bad acts on my client's part and then they go into his reputation of being a criminal, and I just want them warned not to say that in front of the jury.

8 MR. RODRIGUEZ: I will tell them.

9 THE COURT: All right. Anything else, guys?

10 MR. TURPIN: Judge, I've got a concern that there may not be any way to remedy. I know we discussed it last week on how we were going to proceed as far as i ( 13 taking people to and from the restroom with the officers.

14 And I just don't want it to make -- I mean, I know we have the officers here, but I just don't want it to seem to the jury that, you know, we have all these officers here and basically steps on the presumption of innocence by having them escort us every time we go back there.

19 THE COURT: Well, you're going to have to, Mr. Turpin. That's just part .of it. In fact, this is better than any other counties most of them have. But y'all are more than welcome to walk with your client like (

23 you're consulting with them into the jury room. I've made arrangements and we moved the jury. But if you're concerned about it, walk with your client. Like I said, we'll ask the officers to maintain some distance and make sure y'all have some confidentiality.

3 MR. TURPIN: That'll work, Judge.

4 MR. RODRIGUEZ: As far as the Four-Oh- Four-B, we talked about the incident happened on or about Christmas Day. We kind of alluded to it through the witnesses. The girls are going to talk about that. That that's when Mr. Pate was, according to them, arrested and removed from the house. I think that is relevant in this particular case.

11 MR. GILMORE: I don't have any problem with that. ( \ 13 MR. RODRIGUEZ: But as far as -- 14 THE COURT: It's the other junk.

15 MR. RODRIGUEZ: aside from the general thing he talked about, I have no problem with that.

17 THE COURT: All right. Very good. If you think i t ' s going to be just remind them to answer the questions asked. That may help.

20 MR. RODRIGUEZ: I'll-do my best, Your Honor.

21 THE COURT: I understand that. Thanks.

22 MS. CABLE: May we be excused, Judge?

23 THE COURT: Yes, you may.

24 MR. RODRIGUEZ: One more thing, Your Honor.

25 THE COURT: Yes.

1 MR. RODRIGUEZ: We did invoke the rule in this particular case. There is one lady out there that has a husband or a boyfriend that keeps corning in and out.

4 I don't know if they're discussing the case or not. I'd ask -- 6 THE COURT: Who is it?

7 MR. RODRIGUEZ: Ms. Bardin (ph) and her, I guess, boyfriend that was in here.

9 MR. GILMORE: What about them? I didn't hear.

11 MR. RODRIGUEZ: Ms. Bardin has a boyfriend that keeps going in and out of here, so I don't know if they're discussing the case or not. I'd like them to be instructed not to if he's relaying information 15 THE COURT: She out there still? Go get her and I ' l l swear her in. i7 MS. CABLE: I did advise her, but she was rather hostile towards me, so ...

19 Excuse me, Mr. Gilmore?

20 MR. GILMORE: I can't imagine why. You're just prosecuting her son for murder.

22 THE WITNESS: (Enters courtroom.)

23 THE COURT: Hello, ma'am. I need you to come forward. I need to swear you in, please, ma'am.

25 THE WITNESS: (Complies) 1 THE COURT: I've messed' your name up all day ;

2 long. It' is ... Nema, N-E-M-A?

3 THE WITNESS: Nema Bardin.

4 THE COURT: If you'll raise your right hand, please, ma'am.

6 (The potential witness was sworn.)

7 THE COURT: Ms. Bardin, while y'all were outside, we did something called "the rule" was invoked which means you may not discuss the case with anyone whatsoever except for Mr. Turpin, Mr. Gilmore, or either the two attorneys' cases. I know you have a gentleman that's here with you that's been in and out. He's more ( \ than welcome to do that; but, if for some reason he's caught talking to you about the case, you will not be able to testify and I don't think you want that to happen.

16 THE WITNESS: Not a. problem. And just for your edification, the woman in red, I have no idea who she is. I've just seen her over here with Mr. Rodriguez.

19 THE COURT: She's a state's attorney.

20 THE WITNESS: Okay. But she invoked the rule to me outside.

22 THE COURT: Very good. Well, I wanted to do it officially. She told me she had -- 24 THE WITNESS: Appreciate that.

25 THE COURT: But I just thought it's better we tell you right up front.

2 THE WITNESS: It's not a problem, Your Honor.

4 THE COURT: Like I said, if you're here to testify, I think you'll do fine.

6 THE WITNESS: Thank you.

7 THE COURT: All right, guys. Thank y'all.

8 Anything else, guys? Guys, girls, people.

9 Mr. Turpin, Mr. Gilmore, why don't y'all maybe turn the table a little bit.

11 Mr. Turpin, you're not talking loud enough.

12 MR. GILMORE: I was going to suggest turning the table tomorrow.

14 THE COURT: Okay. If y'all don't mind, that would be helpful because I kept looking at my jury and they were okay. But I'm thinking if you get tired tomorrow afternoon, you are not going to be heard because I know your voice goes as the day goes on, so ...

19 (There was a discussion off the record.)

20 (Evening recess) 21 -oOo- 22 CONTINUED IN NEXT VOLUME

( Case 4:13-cv-00709 Document 5-19 Filed in TXSD on 05/17/13 Page 54 of 54

1 THE STATE OF TEXAS }{ COUNTY OF ARANSAS }{

4 I, SHARON D. ANDERSON, Official Court Reporter in and for the 343rd Judicial District Court of Aransas County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties and/or Court to be included in the Reporter's Record in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me on the designated dates.

9 I further certify that the following exhibits in this Reporter's Record constitute true and complete duplicates of the original exhibits (excluding physical evidence), if any, offered/admitted by the respective parties into evidence during the proceedings in the aforementioned and numbered cause.

I further certify that the total cost for the preparation of this Reporter Is Record i s J ..5-7(). o() and will be paid by Aransas County. -----------

16 WITNESS MY OFFICIAL BAND this the --~-~ day of

20 ~(~allkg~~~-'--- SHARON D. ANDERSON, CSR 21 OFFICIAL COURT REPORTER 343rd Judicial District 22 P. 0. Box 700 Sinton, Texas 78387 23 361-364-6202 361-364-6155 (FAX) 24 Cert. No.: 2650 Exp. Date: 12-31-10 25~----------------------------------------------------------~ RECORD EXHIBIT # 7 RR VOL60F 9 2/10/09 JURY TRIAL GUILT INNOCENCE ---·--· -----.---· . :.< • ~~~--

REPORTERS RECORD VOLUME 6 OF 9

THE STATE OF TEXAS vs. CHADRICK B PATE 1 R E p 0 R T E R I s R E C 0 R D

VOLUME Co OF VOLUMES

4 Trial Court Cause Number A-08-5080-4-CR THE STATE OF TEXAS * IN THE DISTRICT COURT OF * VS. * ARANSAS COUNTY, TEXAS * CHADRICK B. PATE * 36TH JUDICIAL DISTRICT 9 JURY TRIAL Gui~t/Innocence A P P E A R A N C E S COUNSEL FOR THE STATE: 12 MR. MARCELINO RODRIGUEZ MS. RETHA CABLE 13 ASSISTANT DISTRICT ATTORNEY 36th Judicial District 14 San Patricio County Courthouse P. 0. Box 1393 15 Sinton, Texas 78387 Tel: 361-364-6220 16 Fax: 361-364-4978 SBN: 24046959 17 00785741 COUNSEL FOR THE DEFENDANT: MR. JOHN S. GILMORE 19 ATTORNEY AT LAW P. 0. Box 2 7 6 20 622 South Tancahua (~(-~ ( ;____-l ~w ·.i. . \1it§): Corpus Christi, Texas 78403 I I I /1 '-....'::~/ LJ 21 Tel: 361-882-4378 Fax: 361-882-3635 22 SBN: 07958500 23 On the lOth day of February, 2009, the following proceedings came on for trial in the above-entitled and ,. ;.' numbered cause in said Court, HONORABLE JANNA K. WHATLEY, Judge Presiding, held in Rockport, Aransas County, Texas: 25 Proceedings were reported by machine shorthand.

1 MR. GILMORE: Your Honor, I'm going to object. That's based on hearsay. Objection.

3 MR. RODRIGUEZ: It is a lead.

4 THE·COURT: Why don't you rephrase your question.

6 Q. (BY MR. RODRIGUEZ) Based on the information received from Mr. Underwood, was Mr. Pate developed as a suspect in this case?

9 A. Yes, sir.

10 Q. Based on the information that you received in the statement given by Mr. Underwood, was Christopher Hall developed as a suspect? ( 13 A. Yes, sir.

14 Q. Now, there was another person that was looked at, person they refer to as "Dough Boy." Who was that?

16 A. Justin Padgett.

17 Q. And was he eliminated as a suspect based on that .....

18 statement?

19 A. Yes, sir.

20 Q. Now, one of the suspects developed was a person by the name of Kevin Tanton? Is that correct?

22 A. Yes, sir.

23 Q. Did you have an opportunity to meet with Mr. Tanton? ( 25 A. Yes, sir.

1 A. Yes, sir.

2 Q.· Now, prior to talking to him regarding the events that took place back on January the 4th, 2008, that led to the death of Mr. Watson, did you promise or did Mr. Leal promise anything to Mr. Tanton in exchange for his testimony or his statement?

7 A. No, sir.

8 Q. Do you know of any deal made between him and the district attorney's office?

10 A. No, sir, I don't.

11 Q. N?w, you said there was some suspects that ·were developed during the course of the statement that was ( 13 given to you by Mr. Underwood. The statements made by Mr. Tanton, did you develop any new suspects based on talking to Mr. Tanton?

16 MR. GILMORE: Your Honor, I would object again. This is based on hearsay and it violates Crawford and the Confrontation Clause~ This is a way of trying to get around the hearsay rule. I object to it.

20 MR. RODRIGUEZ: Goes only to the fact that he developed any particular witnesses or suspects -- 22 MR. GILMORE: Comes directly from what he was told, hearsay.

24 THE COURT: I ' l l sustain the objection. ( 25 Q. (BY MR. RODRIGUEZ) As to the content of the Underwood -- let me trace i t back. Let me go back to Tracy Watson? Is that correct?

3 A. Yes, sir.

4 Q. As a matter of fact, you were there with Baird?

5 A. Yes, sir.

6 Q. And you asked them or y'all asked her specifically if there was anybody that Aaron might have had problems with or owed money to; right?

9 A. Yes, sir.

10 Q. In fact, she gave you a name, didn't she?

11 A. Doughboy.

12 Q. Justin Padgett. ( 13 A. She said "Doughboy" at the time. She didn't know the name.

15 Q. That's who it was; right?

16 A. That's who it turned out to be, yes, sir.

17 Q. And she said that Aaron owed Padgett or Dough Boy ....

18 money.

19 A. Yes, sir.

20 Q. Said that he owed him, I believe, four hundred dollars; right?

22 A. I couldn't recall how much he owed. Just remember owing money.

24 Q. Okay. You said earlier -- I think the State ( asked you about -- again about Padgett. And I believe it was through Underwood's testimony to y'all that, in fact, after you went through with them that he determined that Padgett wasn't a suspect.

4 A. Yes, sir.

5 Q. Well, wasn't Padgett Dough Boy? Wasn't he, in f,9ct, indicted?

7 A. Yes, sir.

8 MR. RODRIGUEZ: I'm going to object, Your Honor, as to hearsay. The indictment's part of the record; Your Honor.

11 THE COURT: Sustained.

12 MR. TURPIN: Okay.

13 Q. (BY MR. TURPIN) So he was charged; right?

14 A. Yes, sir. There was a warrant for him, yes, sir.

15 Q. In this case.

16 A. Yes, sir.

17 Q. In fact, there was also a photo lineup; correct? .....

18 A. Yes, sir.

19 Q. That had Mr. Padgett's picture on it?

20 A. Yes, sir.

21 Q. And, in fact, Jessica Watson looked at this photo lineup. Is that correct?

23 MR. RODRIGUEZ: Object to any type of hearsay. ( 25 THE COURT: Sustained. --------------------

1 THE COURT: Um-hm.

2 (Counsel returned to counsel tables.)

3 THE COURT: All right. -Ladies and gentlemen, there's been an objection made as to basically the nonresponsive of the last question, I guess I'd say, and the response.

7 MR. GILMORE: Response to the question.

8 THE COURT: And the response. Any instruction -- I mean -- excuse me. Any answer that was just made by Mr. Tanton about any conduct on behalf of either defendant is going to ~e stricken from the record and you will not consider it whatsoever. ( 13 Additionally, the same instruction goes if Mr. Tanton says something Mr. Pate said, that cannot be used against Mr. Hall. Do you understand that? You have to only use it against the individual that was making the statement. Okay?

18 Thank you.

19 All right. You may proceed.

20 Q. (BY MS. CABLE) Now, when you went outside, was there a conversation about what y'all were getting ready to do?

23 A. Correct.

24 Q. And who all was involved in that conversation?

25 Who all was there when it took pla,ce? ' ' 1 A. Mr. Pate was there. Mr. Hall was there.

2 Underwood was there. Ray was there.

3 Q. Could you tell who was running the show or giving the directions?

5 A. At that time, Pate was telling Underwood and Hall about an easement, the woods that ran behind the victim's house, how to approach it without being seen. You know, basically mapping out how we're going to get up there without a bunch of Aryan Brotherhood dudes seeing us before, you know, we can get in place basically.

11 Q. And just so the jury understands, do the Aryan Circle and the Aryan Brotherhood get along? ( \ 13 A. Years of animosity.

14 Q. And so even though I guess they're both based on the White race, they don't like each other?

16 A. Correct.

17 Q. Now, after Pate, Chadrick Pate, the defendant, told you where you were going and gave you instructions, did he say anything about the kind of structure that was going to be on this location?

21 A. Could you elaborate the question -- 22 Q. Was it, like, a house, a trailer, or where were ~ y'all going?

24 A. It was just a house. They were talking about the ( house. I mean, it wasn't really, you know, specified, so, I mean, it was just "his house" is what he was saying.

2 Q. And so Chadrick Pate was saying it was his house.

3 A. Correct.

4 Q. Was there any information given to you and your other members of the gang that who was going to be in this house?

7 A. There was never any name. It was just affiliation, Aryan Brotherhood. That was all I knew.

9 That was all that was told to me. That's all I ever heard.

11 Q. Was there any information given to you by Chadrick Pate about whether anybody was being hurt in that ( \ residence?

14 A. I don't remember anybody being hurt. I just remember it being said that, you know, that there was guys there selling dope out of the house and, you know, he couldn't get them to leave basically. That was ... ...

18 Q. Was there an indication as to the number? One or more than one?

20 A. Yeah. It went from four and five to five and SlX

21 at one time, so, I mean ... Just Aryan Brotherhood ,. guy and some of his -- said his friends, members, whatever you want to call .them.

24 Q. And did the defendant, Chadrick Pate, say that he ( lived at that house?

1 A. Correct.

2 Q. Now, how long would you say you were at that residence there where you had this meeting? How long were y'all there?

5 A. Two hours max.

6 Q. And when you left there, who was in the vehicle with you?

8 A. Mr. Hall, Mr. Underwood.

9 Q. And who was driving that vehicle?

10 A. Mr. Hall.

11 Q. Now, on that particular night, how was Mr. Underwood feeling?

13 A. Mr. Underwood had the flu. He was real nauseous, real sick. You could tell. You could see i t all over him.

16 Q. Now, when y'all left the residence, who was the lead vehicle, yourself or the other 18 A. No, the other vehicle.

19 Q. And do you know who was driving the other vehicle?

21 A. I'm pretty sure it was Anthony driving the vehicle.

23 Q. And that'd be Anthony Ray? ( 24 A. Correct; yes, ma'am.

25 Q. And who was with Anthony Ray?

1 A. Sid. Chad Pate.

2 Q. And when y'all lef~ there, do you know where you went?

4 A. Like I said, I'm not from this area. All I know is we were following a car and I can describe the area for you.

7 Q. What kind of area was it?

8 A. Kind of desolate. I remember going up past, like, a can place that was on the right. We went all the way to, like, this dead-end where there was a bunch of ponds and stuff around. We came back and we parked in front of this wooded easement. ( 13 Q. And which vehicle was leading the way over there?

14 A. I'm assuming it was Ray's vehicle.

15 Q. Who was with Ray?

16 A. Pate was with Ray.

17 Q. Now, when y'all headed over there, you said it was a couple of hours. What time of day or night was it?

19 A. It was midnightish at the time.

20 Q. So was it daytime or dark?

21 A. No. It was dark. It was midnight, around midnight.

23 Q. When you.went to this back easement, what ( 24 happened when y'all got out of the vehicle? \

25 A. We parked. We got out. And Mr. Pate was telling ---- ----~-

1 us how to go through the woods and that, you know, where basically where, you know, the house would be from that particular point where we were at. And where 4 Q. Who led the way?

5 A. Mr. Pate.

6 Q. And 7 A. I mean, we were ...

8 Q. Go ahead.

9 A. We were, I mean, pretty much, you know -- you know, together, I mean, but he was, you know, leading the way, showing us how to get to -- the back way to the house. ( '·. 13 Q. Were there any lights or anything out there to help y'all see?

15 A. Really not that I can -- not that I remember. I was really dark.

17 Q. On the way to this house where these Aryan Brothers were held up, did y'all stop along the way?

19 A. There was -- right before in eyesight of the little house, there was, like, a dilapidated shed. We held up behind there. And at that time, I guess Pate saij he was going to, like, pull the phone lines I guess. And at that time, you know, i t was pretty app~rent that there wasn't going to be no six or seven Aryan Brotherhood guys there.

1 Q. As you approached, what made you think there weren't six or seven guys there?

3 A. No cars.

4 Q. Were there any lights or any noises 5 A. There was lights on in the house, but, I mean, there wasn't really any noise at all, a T.V. maybe. At that point ...

8 Q. As you approached -- as you approached, what was going through your mind?

10 A. Maybe I'm going to get out of here without getting shot at basically. I felt -- I felt that I had, you know, I felt -- I felt something wasn't right 'cause, ( 13 I mean, you know, i t didn't seem like the situation that I had been told. So, I mean, even-- I wasn't the only one that felt that way 'cause at that time Underwood turned back to Mr. Pate when we were behind that little shed and he asked him, you know, plain as day, "What do you want to .....

18 see happen here? You know, what do you want us to do?" I mean -- 20 Q. What did Pate say?

21 A. He said that he just wants this guy to leave.

22 You know, he wants, you know, he don't want these guys back at his house.

24 Q. Did he indicate it was one guy or more than one ( , __

25 guy at that time?

1 A. He was saying "guys." I mean ... I mean, there ( was, you know, there was a guy in question. I didn't know his name or anything about him at the time. There was a guy in question, but, you know, his friends were part of the problem, you know.

6 Q. Were you aware -- were you made aware as part of the plan that there were going to be kids in that house?

8 A. Absolutely not. Absolutely not.

9 Q. Would that have played a part in your decision- making?

11 A. I'd have took a bullet myself for leaving the situation. You don't mess with kids. You don't put kids ( 13 in that position. That's, you know, wrong.

14 Q. As you left that little shack and approached the

16 A. What do you mean?

17 Q. What did the trailer look like?

18 A. It was -- looked like a cross between a camper trailer with a house add-on almost. I mean, it was, you know, really small, you know. The closer I got to it, the more I was thinking, you know, I don't think six Aryan Brotherhood guys could even fit in this place.

23 Q. And as you approached, did Mr. Pate indicate what he was going to do? ( '·.

25 A. He said that he was going to pull the phone,lines before we even, you know -- he started acting really sketchy at this point. He said he was going to pull phone lines. And when we all took off to go to the house, he ran around the house and I didn't see him again really, I mean ..

6 Q. As y'all approached the house, was anybody armed?

7 A. Yes.

8 Q. Who had a weapon?

9 A. Everyboqy had a weapon at that point whether it be, like, a stick-type piece of well, there was, like -- there was all kinds of rubble, like rubbish in front of the house, and everybody just kind of grabbed I ( 13 whatever was laying around.

14 Q. What sort of weapon did Mr. Hall have?

15 A. He had a pistol.

16 Q. And was that the same pistol he had from his 17 A. From the trunk of the car.

18 MS. CABLE: Your Honor, may I approach'the witness?

20 THE COURT: You may.

21 Q. (BY MS. CABLE) I'm going to show you what's been marked as State's Exhibit Number 23 and ask you if you can identify the contents of this for me. 24 A. Looks identical to the gun. I'm positive that's ( it.

1 Q. And who had this weapon that night on January 4th, 2008?

3 A. Mr. Hall.

4 Q. And is that Mr. Hall the defendant you've identified here today?

6 A. Correct.

7 Q. And as yourself, Underwood, Anthony Ray, Chadrick Pate and Hall approached the residence, what -- how did Hall have the weapon? What was he doing with it?

10 A. He, like, had it tucked to his side right here.

11 Q. And you said everybody had a weapon.

12 A. Correct.

13 Q. Does that mean you had a weapon?

14 A. Correct.

15 Q. What kind of weapon did you have?

16 A. Some little piece 0 f' like, pipe thing I found in the trash can right in front of the house.

18 Q. And did Underwood have a weapon?

19 A. I'm pretty sure he did. I can't remember exactly what it was. I'm not going to sit here and say what it was because I can't remember. But, I mean, I'm pretty sure. I mean, it was a year ago. But, I mean, we all grabbed something before we actually went in.the home ' because we're thinking, you know, there's 'still -- even ( though there's no cars, there's still a possibility of a bunch of guys being in there and they could have been armed.

3 Q. And did you see whether Chadrick Pate picked up anything?

5 A. No, I don't think -- I couldn't say he did. Like I said, by the time we were actually standing in front of the door, I didn't see him anymore.

8 Q. So as you approached the door, Chadrick Pate ran off.

10 A. Correct.

11 Q. Said he was going to go cut the phone lines.

12 A. Correct, which I thought was odd because, if that ( 13 was my house, you know, I would definitely want the guy to see me that I was running off.

15 Q. So who was left as you approached the house then?

16 A. Me, Hall, Underwood and Spooky Ray.

17 Q. Ray's nickname is Spooky? ...

18 A. Correct.

19 Q. And as you approached the house, what happened?

20 A. Right as we -- I guess we're standing, you know, kind of, I guess, reluctant to actually to go in or whatever. The door opened up and there was a female standing in front of the door. i 24 Q. Could you describe what the female looked like? \.

25 A. I really can't.

1 Q. And as you see the female inside the door, what's / \ her reaction when she sees y'all?

3 A. Just kind of, like, shocked, stunned, you know what I mean? And then she could see that, you know, that there was weapons involved. She made a little scream and ran back into the house. And from there, everything happened really fast.

8 Q. So as she runs back in the house, what did you do?

10 A. We all -- we all went through the doors, you know, really quick. Hall told me and Underwood to make sure there wasn't nobody in the back. And as we're going ( 13 back there, there's, you know, there's screaming -- there's these girls in there, young girl screaming, "Please don't hurt me, please don't hurt me." 16 Underwood and I both said, you know, "Nobody's going to hurt you." Shut the door on them.

18 Q. And then where did you and Underwood go?

19 A. We went back to the little front of the, you know, by the door where there's, like, a bed/c9uch pull- out type thing.

22 Q. Was there anybody in that room as Y'?ll went in besides the girl? ,, 24 A. There was a man laying on the bed. ( 25 Q. Just one man?

1 A. Yeah, just one man.

2 Q. And when you came back from the girls, what was Hall and Ray doing? What were they doing?

4 A. They were standing over the guy. Hall had the gun pointed at him, like, towards his face. I'm wanting to say like in a pistol whip type motion. I don't know if he actually hit him with the gun, but he was, you know ...

8 Q. Did you feel like Hall was threatening him with the gun?

10 A. Definitely.

11 Q. The guy that was on the bed, was he fighting y'all at that time? ( 13 A. Yeah, he was definitely trying to squirm away, trying to get, you know, trying I mean, he was looked to me like he was trying to reach up for the gun to get it pointed, and he was saying, "Please, I got kids." 17 Q. And did Ray do anything?

18 A. He was hitting him.

19 Q. What was he hitting him with?

20 A. Whatever he had in his hands, stick, po)-e type object thing. I'm not even sure .exactly what it was.

22 Q. And did you see where Ray hit him?

23 A. I mean, he was -- he was standing, like, you know, I don't know how to actually, I mean, he was, ( like -- Hall was on this side and he was on this side and I was coming up towards the middle.

2 Q. Were they closer to the top of the bed where this guy's head was?

4 A. Actually, Hall was towards that side and Ray was towards the other. But by this time, he had done spun around to, you know, like, to face off, you know, so ...

7 Q. And the guy that y'all made contact with, could you describe him? Was he a big guy, little guy?

9 A. Seemed tall. Maybe not really big in build, but he seemed tall, kind .of wiry guy.

11 Q. Did this guy that y'all you went into his house, did he have a weapon?

13 A. Not that I could see.

14 Q. Did you ever hit the guy?

15 A. Yeah. Yes, ma'am, I did. I hit him towards, like, he was -- when he was crawling away, like, when we first went, you know, back towards, you know, I hit him when he was crawling away.

19 Q. Where did you hit him?

20 A. Leg-ish, thigh-ish-type area.

21 Q. And did you see him get shot?

22 A. Yes, I did.

23 Q. And who shot him?

24 A. Hall shot him. Mr. Hall shot him. ( 25 Q. Can you show the ju:t;y how that happened?

1 A. As the guy was, like, turning to face off and squirming away, like, trying -- he was, like, trying to get up to get out the door I guess. Hall -- I mean, Hall shot him. I mean, actually didn't see the shot, but, you know, he had the gun in his hand. I mean, I had just come back from the back side with Underwood and Underwood's standing right behind me and, you know, the shot. And then I see the guy get up and, I mean, I could actually see the wound, the puncture. I mean, it was, like, above his on his side right here kind of up, like, waist area.

12 Q. And when you saw that wound, who had the gun in ( 13 his hand?

14 A. Hall had the gun.

15 Q. And that's the defendant in this case -- 16 A. Correct.

17 Q. Mr. Hall. And when the guy gets shot, what does he do?

19 A. He bolts straight out the door.

20 Q. And as he ran out the door, did you ever see Hall fire at him again?

22 A. No. 23 Q. Did you ever see him try to fire at him again?

24 A. He had -- I mean, he was running behind him, but, you know, I can't say he tried to fire at him again or

\.r~~~:~:" j":;;··;x":~:~~~:c·~:u:~::~:',·;~t:";}::~~h there was a 2 discussion off the record.) . . . ' 3 THE COURT: 'Okay. Go ahead. <1.1-

5 out in the audience over here. I believe it's -- 6 THE COURT: Where? '7...

8 was Mr. Watson's family.

9 TBE COURT: Mr. Who? l.Q. MB.__ G.!...tJtU).'B.E._!__ W.ar-~c.o.._ I 11 :MS. CABLE: His mother and his grandmother.

12 It I s his mother. They're here with the little girls.

13 They're custodians.

14 MR. GXLMORE: But anyway, one of the people sitting behind the Watsons, his mother and father, said -- 16_ pointed over to my client and said~ "He's in iail. I know he ';3 in jail because I can see his leg brace." And it was said where the jury could hear it. And I just want them instructed not to be makinq statements in front of the jury.

21 THE COURT: I don't want anybody -- ahybody 22. that's involved with the witness or whatever does not need.

23 to lbe making any comments whatsoever about the case while they're sitting in the courtroom.

Rodriguez MS. CABLE: I don't know who was talking.

Who said that?

THE BAILIFF: That's the C.P.S. girl.

5 MS. CABLE: Okay, 'cause it wasn't our o-·· wi c nesses. rt wasn ...-t anyooa'y r nave contro..C over. ·rre ··..ci make the instruction and, for the record, I didn't hear thern make any comment.

·rln':' cacn:c-r: 1:1: the witness list.

11 THE CLERK: Stephanie? ~12· .f"d".li" CQQR.f".' l i s t . If that was her; I don't know-- 14 THE CLERK: I think that's her name. , c: ....!-''

16 going to get to be in the courtroom.

17 MS. CABLE: Not our witness anymore, Your

19 MR. RODRIGUEZ: She was basically having custody of the children, so that's why she was on the

2 2 permanent basis.

23 MS. CABLE: I don't think we're planning on

25 MR. RODRIGUEZ: We weren't planning on ··--·--------------------------------------::.

1 calling her, Your Honor. l.

2 THE COURT: You're going to have to check with triem, guys, at trie ~bor.

4 THE BAILIFF: Yes, ma'am.

5 THE COURT: Would be C.P.S.

7 (There was a discussion .off the record.)

8 THE COURT: Just for the record, gentlemen,

10 criminal history. I've reviewed Mr. Leal's --no, no. 11 wh. 0 i s t hi s?

13 THE COURT: I'm sorry; Ray's. There's ...

14 one felony conviction it looks like. Is that what y'all _.1_S,l 16 MR. RODRIGUEZ: On?

17 'l'HB COURT: Mr. Ray. It's a conviction for

L9 I don't know if that's the cocaine charge or not; I don't 20 kn:o·w . Less than a gram on him. ...?}.

22 (&xamining document/s). He's got a felony theft, Mr. Underwood does, guys.

25 THE COURT: Mr. Underwood has a felony THE STATE OF TEXAS }{ COUNTY OF ARANSAS } {

4 I, SHARON D. ANDERSON, Official Court Reporter in and for the 343rd Judicial District Court of Aransas County, State of Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions ~f evidence and other proceedings requested in writing by counsel for the parties and/or Court to be included in this volume of the Reporter's Record in the above-styled and numbered cause; all of which occurred in open court or in chambers and were reported by me on the ( 13 designated dates.

~M WITNESS MY OFFICIAL HAND this the :::::...2 ____ day of

q ---- U)/\iL_ -----~------' 20_03_.

19 ~~~<;::)_~-- SHARON D. ANDERSON, CSR 20 OFFICIAL COURT REPORTER 343rd Judicial District 21 P. 0. Box 700 Sinton, Texas 78387 22 361-364-6202 Cert. No.: 2650 23 Exp. Date: 12-31-10

RECORD EXIDBIT # 8 , RR VOL7 OF9 2/11/09 JURY TRIAL GUILT INNOCENCE ,, If .·I -.'//.' ·- I.·I .. /

} l

•

• REPORTERS RECORD

' VOLUME 7 OF 9

THE STATE OF TEXAS vs. CHADRICK 8 PATE 1' '' (\X.). \ ~fL ....:. . . -\ 6 ciI V\1!.,.1~ \ c:d :=..-vt 'o· --~- {/~ . (_/j-<._~"1/l c) ~t c.t' ~t:~ ~ '-Ll \~vt (Y\ v'{~ {_:L_~·c"-'-'i/~ l.---0 UL- ---;..-y-1 q c: .(_ E: ----~-··----- ----

1 R E p 0 R T E R I s R E C 0 R D VOLUME OF q VOLUMES

P.f' '·, I Trial Court Cause Number A-08-5080-4-CR

THE STATE OF TEXAS * IN THE DISTRICT COURT OF •• 6 * VS. * ARANSAS COUNTY, TEXAS 7 * • CHADRICK B. PATE * 36TH JUDICIAL DISTRICT 9 JURY TRIAL Gui~t/Innocence A P P E A R A N C E S COUNSEL FOR THE STATE: 12 MR. MARCELINO RODRIGUEZ MS. RETHA CABLE 13 ASSISTANT DISTRICT ATTORNEY 36th Judicial District 14 San Patricio County Courthouse P . . 0. Box 1393 15 Sinton, Texas 78387 Tel: 361-364-6220 16 Fax: 361-364-4978 SBN: 24046959 17 00785741 COUNSEL FOR THE DEFENDANT: MR. JOHN S. GILMORE 19 ATTORNEY AT LAW P. 0. Box 276 20 622 South Tancahua Corpus Christi, Texas 78403 21 Tel: 361-882-4378 Fax: 361-882-3635 22 SBN: 07958500 23 On the 11th day of February, 2009, the following proceedings came on for trial in the above-entitled and numbered cause in said Court, HONORABLE JANNA K. WHATLEY, Judge Presiding, held in Rockport, Aransas County, Texas: 25 Proceedings were reported by machine shorthand.

1 knew about Underwood and he said "no," so I'm. going to ask if he made the statement, Judge.

3 THE COURT: Not how you do it.

4 MS. CABLE: He needs to ask him if he can -- if seeing his statement would help refresh his memory and give him an opportunity to do that before he can read the statement into the record.

8 MR. GILMORE: Okay.

9 Q. (BY MR. GILMORE) Obviously seeing the statement might help you refresh your recollection since you don't remember.

12 THE COURT: We need a response, Mr. Tanton. ( 13 Q. (BY MR. GILMORE) You need to answer. Do you need to read this?

15 A. I guess, yes, sir.

16 Q. Then read this right here.

17 A. (Complies). Yes, but that was -- that was after, ...

18 you know, that had happened. That was a discussion after it had happened.

20 Q. Okay. Before you went·b-o the trailer, you did not know that Underwood had been there previously?

22 A. I knew h~ had been there, but I didn't know anything about girls there. I didn't know anything about kids there.

25 Q. So when you say that you were told by your major 1 A. Yes, ma'am.

2 MS. CABLE: Your Honor, may I publish State's Exhibit Number 36, 37 and 38 to the jury?

4 THE COURT: Yes.

5 MS .. CABLE: (Tendering document/s).

6 Q. (BY MS. CABLE) Now, when you got to that house with the lightning bolts, how were you feeling at that time?

9 A. Sick.

10 Q. What kind of symptoms were you having?

11 A. Just real bad cough and fever.

12 Q. So dld you go anywhere to try and get some ( 13 medication?

14 A. Yes, ma'am.

15 Q. And who took you?

16 A. Ray.

17 Q. And did y'all go in your car or his car? ...

18 A. His car.

19 Q. And do you know where you went?

20 A. To a stop-arid-go by Wal-Mart.

21 Q. And what did you go in and get?

22 A. Some Thera flu.

23 Q. When you left to go to the stop-and-go to get some Thera flu, who stayed back at that house .with the SS?

25 A. Tanton, Mr. Hall and Mr. Pate.

Q. Was there anybody else there at that house -- --2 A. There was some girls inside.

--3 Q. When you got back to that house there, were there any discussions about what was going to happen next? '--, 5 A. No. I just -- I don't remember exactly what was~ D said.

7 Q. Do you recall if anyone was given directions or not?

9 A. Just how we were going to go up on the house.

10 That's about it.

11 .Q. Who was doing that?

12 A. Mr. Pate. ( 13 Q. Do you remember what directions he gave you?

14 A. No, ma'am. I didn't remember at the time.

15 Q. And after Mr. Pate gave you the directions to go to the house, di·d you know what you were supposed to do at the house? ...

18 A. It wasn't clear. I mean, at that time it wasn't clear.

20 Q. Did you know how many people were supposed to be there?

22 A. He said "a few." 23 Q. And who's "he"?

24 A. Mr. Pate.

25 Q. Did he say if these -- a few people if they had

~\ \ ."~ .

1 A. People were probably asleep or something.

2 Q. Did it look like there were a bunch of Aryan (3 Brotherh6od there? \ \~/ /' ,~~' A. -"- No, I rna am. '-.._

5 Q. ~------- And was that your understanding, there was 6.supposed to be?

7 A. Yes, ma'am.

8 Q. And so what was going through your mind as y'all stopped behind that shed?

10 A. That this whole trip was bullshit. Excuse my language.

12 Q. That's all right. And so did you ask Pate anything at that time?

14 A. What he wanted done.

15 Q. So who was giving directions out there that night?

17 A. Pretty much Mr. Pate.

18 Q. And what did Mr. Pate say he wanted done?

19 A. Said he wanted the dude there ran off.

20 Q. Said "the dude"?

21 A. Uh-huh.

22 Q. Did he ever give you a name?

23 A. No, ma'am.

24 Q. At this time, did you see whether Mr. Hall had his gun?

\)~10\~ 1 A. I didn't see it at that time, no. 2 Q. Did you have a weapon?

3 A. No, ma'am.

4 Q. Did anybody else have a weapon that you saw?

5 A. Not that I was paying attention, no, ma'am.

6 Q. As y'all approached the trailer, what happened?

7 A. I walked up to the trailer.

8 Q. Why did you do that?

9 A. I was going to open the door.

10 Q. And did you operi the door?

11 A. No. I started to open the door, but a little girl opened the door. ( /13 14 Q.

A.

And where was Mr. Pate at that time?

He walked around the other side of the hDuse I / 1 5 think to pull the phone lines or something.

16 Q. And where was Mr. Tanton at that time?

17 A. They were all behind me. I don't know for sure. .....

18 Q. So you were the first one up to the door.

19 A. Yes, ma'am.

20 Q. You said that Mr. Pate went to go pull some phone lines?

22 A. Yes, ma'am.

23 Q. Did you see where he ·went from there?

24 A. He went to the side of the house, not the trailer, and did something. Then he started walking, 1/like, towards the woods.

2 Q. Did he stay with y'all?

3 A. No, ma'am.

4 Q. So he didn't come back to that location.

5 A. No, ma'am.

6 Q. Was that part of his plan?

7 A. I have no idea.

8 Q. Were you aware he was going to leave?

9 A. No; ma'am.

10 Q. Whose idea was it for y'all to be out there that night?

12 A. His. ( 13 Q. Who's "his"? ' 14 A. Mr. Pate's.

15 Q. As you and, I guess now there's four guys, you and three other guys approached the front of the trailer, can you tell whether anybody's armed at that time?

18 A. No 1 rna f am. •

19 Q. Did you know whether Mr. Hall had his weapon at the time?

21 A. I knew he had it, but, no. 22 Q. Did you see anybody else pick up any other weapons?

24 A. Not that I remember.

25 Q. Did you pick up a weapon?

1 A. My mother's.

2 Q. And what kind of vehicle was that?

3 A. A red Ford Focus.

4 Q. And who was driving that vehicle?

5 A. Me. 6 Q. And where -- and who was with you?

7 A. Chad Pate.

8 Q. Where was he in the vehicle?

9 A. Passenger side.

10 Q. And did there come a time on that night of January 4th -- January the 4th, 2008, that you had an occasion to meet up with Underwbod, Hall and Mr. Tanton? ( 13 A. Yes, ma'am.

14 Q. And where did that first take place?

15 A. Well, Chad had my cell phone and he received a call from him saying, "Well, hey, you know, we're in Rockport. Where do we meet you at?" 18 And we found out they were going down that highway, and I told Chad, "Well, let's meet them at the end of the street." 21 And so we went down to the end of the street and, when we asked them, "Well, hey, do you see us?" 23 "Yeah, we see you." 24 So they turned down where we were parked and we led them back to the house.

1 Q. Do you know who Mr. Pate talked to on your cell phone?

3 A. I believe it was Chris.

4 Q. Is that Chris Hall, the defendant?

5 A. Yes, ma'am.

6 Q. And when you first saw the vehicle that Hall, Underwood and Tanton were in, could you tell who was driving that vehicle?

9 A. I can't remember.

10 Q. And when you all left, I guess, the side of the road and met up with them, where did you go?

12 A. Well, we went back to that house on.

13 Q. Sawyer Lane?

14 A. Sawyer Lane.

15 MS. CABLE: Your Honor, may I approach the witness?

17 THE COURT: You may. ...

18 Q. (BY MS. CABLE) I'm going to show you what's been marked as State's Exhibit Number 36, 37 and 38 and ask you if you recognize these for me. 21 A. Yes, ma'am.

22 Q. And is that the house that you went to on Sawyer Lane that night?

24 A. Yes, ma'am.

25 Q. And I believe on the shed in State's Exhibit Number 37 there appears to be something on that shed.

2 Could you tell me what that is?

3 A. Those are SS lightning bolts.

4 Q. And does that mean anything to you?

5 A. Yes, ma'am. That's ... With a circle around it, that's kind of, like, an Aryan Circle patch.

7 Q. Okay. When you got back to that house there on Sawyer Lane, did you have occasion to learn where you were going and what y'all were getting ready to do?

10 A. Yes, ma'am. Well, we had hung out there a little bit and then we went outside and ...

12 Q. Did Mr. Pate tell y'all where you were going? ( 13 A. Yes, ma'am. He told us we were going back to that trailer that we had gone to before and he was just telling us, "Hey, we're going to go run these dudes off," you know.

17 Q. Going to go run what?

18 A. "Run these guys off." 19 Q. At that point, were you expecting violence?

20 A. Well ... Yes, ma'am.

21 Q. Now, did Mr. Pate give directions on how to get to that house while y'all were there?

23 A. Yes, ma'am.

24 Q. What did he say?

25 A. Well, we just jumped in the car and he just told me, you know, "Turn here, turn here." And then the other guys were following us.

3 Q. And can you describe for the jury the area where this trailer was located?

5 A. Well, I'm not too familiar with the area there, but I know we parked on the side of the road somewhere and we went through these woods, under this barbed wire fence through these woods and there's, like -- i t ' s kind of a woody area like grass and there's other trailers here and there or houses or whatever they were, but ...

11 Q. Do you know -- was i t a short distance or a long distance from the road to where the trailer was? ( 13 A. Short.

14 Q. Was it well-lit?

15 A. No. 16 Q. Was i t daytime or nighttime?

17 A. Nighttime. .....

18 Q. Do you know what time of night it was?

19 A. Somewhere ~round 2:00 in the morning, 3:00 in the morning or somewhere around there.

21 Q. Now, when you all got out of the vehicle, who led the way up to the trailer?

23 A. Chad.

24 Q. Okay. And that's Chad Pate, the defendant?

25 A. Yes, ma'am.

1 Q. And as y'all approached the trailer, did y'all stop anywhere along the way?

3 A. Yes, ma'am. We stopped behind this little shed thing I guess to see, like, how we were going to approach the trailer.

6 Q. Was there ever any discussion about what was going to happen at that point?

8 A. Well, Chad was saying -- he said, "Well, I don't want them to see that i·t' s me," you know.

10 So he kind of started to trying to back out and, you know, we were just kind of thinking, like, Well, are we going to storm up in there? Are we going to knock on the ( \ 13 door and call them out? You know, how's this going to go, you know.

15 And Chad said, "Well, Spooky, you know, you go around back and cut the phone lines," and, like, well, I don't really know what to look for . ...

18 And Chris Hall told him, "Man, you live here. You go back around there." 20 So he went back around there and did whatever and ...

21 Q. What did y'all do as Chad Pate went around to cut the phone line?

23 A. Well, from there we just kind of winged it, you know. We just kind of snuck up there and just walked in.

I \.

25 Q. When you got to the residence, can you describe what it looked like as far as did i t look like anybody was there?

3 A. Well, we saw lights on, so we figured somebody was there, and we heard, like, voices, like a T.V. And so we knew people were there.

6 Q. When Mr. Pate went around the building to cut the phone lines, did you see where he went from there?

8 A. Yes, ma'am. He ran through this grassy field, looked like he was limping, and he went into the woods.

10 Q. Did you see him again after that?

11 A. No. 12 Q. As -- so I guess who's left is you, Tanton, ( \ 13 Underwood and Hall?

14 A. Yes, ma'am.

15 Q. So what happened at that point?

16 A. Well, we went into the trailer and there's a little girl -- 18 Q. Let me back you up.

19 A. Okay.

20 Q. How did y'all get in the trailer?

21 A. Well, we all kind of, like, snuck up to the door, and I'm not sure if Underwood pulled the door open or if, I mean, or if the little girl -- the little girl was right there at the door. She might have pushed the door open~

25 The door came open and we just walked in.

1 Q. What was the reaction of the little girl when y'all walked in?

3 A. She didn't look scared. She looked surprised like, you know, and she was, like, "Oh, hi, Underwood." 5 And, well, then, when she saw, you know, we were just kind of, like, walking in there and I guess menacingly, they kind of started freaking out.

8 Q. What happened to her? Where did she go?

9 A. Well, I'm not sure if it was Underwood-- by then I was already on one side of the bed and Chris Hall was on the other and I didn't see exactly who it was. It was Underwood or Tanton that took the two little girls into I \~..._ 13 another room and I guess to keep them out of danger, you know. And then it was just me and Chris Hall and whoever else. But he was, like, off over there, so I couldn't really see who it was.

17 Q. So you couldn't tell whether it was Underwood or ....

18 Tanton.

19 A. No. 20 Q. When you went in the residence, where did you go first?

22 A. I went around on the other side of the bed, like, I guess the side furtherest from the door.

24 Q. Did you see somebody in that room? ~ 25 A. Yes, rna' am.

1 Q. Did you know that person?

2 A. No. 3 Q. And where did Christopher Hall go?

4 A. He went on the other side of the bed and sat down on the bed with him.

6 Q. And when was the first time you saw that Christopher Hall had a gun?

8 A. When he sat down on the bed with him.

9 Q. Can you show the ladies and gentlemen of the jury what he was doing with the gun?

11 . A. He just sat down next to him and had the gun pointed at him and was saying, like, "Well, what's your [ \ 13 name, dude," you know.

14 Q. Did y'al1 know the name of the person you were looking for?

16 A. By then, yes.

17 Q. Who had told you the name of the person?

18 A. Chad.

19 Q. Is that the defendant, chad Pate?

20 A. Yes, rna' am.

21 Q. And what name did he give you?

22 A. Aaron.

23 Q. And so what did Chris Hall say when he sat down on the bed with this man?

25 A. Just, "What's your name," you know. Just kept asking him what his name was.

2 Q. What was this man's reaction when y'all came in?

3 A. He was just saying, like, you know, "Whoa, I don't know you guys. What are you guys doing in my house," you know. And, "Whoa, hey, let's talk about this," you know.

7 Q. Did the man on the bed have a weapon that you saw?

9 A. No. 10 Q. And did you have a weapon?

11 A. No. 12 Q. Could you tell whether Underwood had a weapon? ( \. 13 A. I didn't see him with one.

14 Q. And could you tell whether Tanton had a weapon?

15 A. I didn't see him with one.

16 Q. So what happened when you and Hall were sitting on the bed with Aaron Watson? ....

18 A. Well, I wasn't sitting on the bed; I was standing. But he kept asking, you know, "What's your name?" 21 And I asked him, you know, "What's your name, dude," you know.

23 And, well, he wouldn't give up his name, and Chris Hall -- he didn't hit him with the gun; he just tapped him on the head with the gun and was, like, "Come on, dude; what's your name?" 2 And, well, I got impatient and I punched him in the face and I -- 4 Q. With your hand?

5 A. With my hand.

6 Q. Was it an open hand or a closed fist?

7 A. Closed.

8 Q. And how many times did you hit him in the face?

9 A. Two or three times.

10 Q. And was it all in the front of the face?

11 A. No. In the front of the face and in the back of the head. / \. 13 Q. And then what happened?

14 A. Then, well, Chris puts a gun to him. It looked to me like he put it under his leg at the time. I t-hought he had put it under his leg. I guess not. But, anyway, he puts the gun up to him and he puts a pillow on it and ...

18 then, you know, "pop," you know, "bang," you know. Didn't really sound that loud but ...

20 Q. What was Aaron's reaction when you heard the pop?

21 A. Well, he didn't -- he acted like he didn't even get shot. He just went, "Ah, ah," and jumped up, and then there was just mass chaos.

24 Q. What happened? What did he do?

25 A. Well, he jumped up and he started, you know, going towards the door and he was intercepted by everybody else and he's getting beat up and I'm looking for a way, you know, everybody's just clumped up at the door and Aaron Watson's trying to get out and there's this horrible little dog and he jumps up on the bed and he starts biting me and so ..

7 Anyway, Aaron Watson makes it out the door and then everybody else just kind of funnels out the door and then I go out the door.

10 Q. So who was the first person out the door?

11 A. Aaron Watson.

12 Q. And could you tell where he went? ( \ 13 A. No. He vanished.

14 Q. Okay. And when you went out the door, where were you going?

16 A. I was running. I went down this grassy field and I wasn't even sure if that was the direction of, you know, where I was -- where I'd parked, you know. But I was running down this grassy -- it wasn't a field; it was like a -- I don't know what you would call that -- like a grassy road, and back to the vehicle.

22 Q. Did you see where Mr. Underwood went?

23 A. He was right behind me. 24 Q. And what about Mr. Tanton?

25 A. I figured he was right behind me. 1 Q. What about Mr. Hall?

2 A. I figured he was right behind me, too.

3 Q. When you got back to the vehicles, did you see him again?

5 A. Yeah, we were all there.

6 Q. And did Mr. Hall have the weapon with him?

7 A. I didn't see him with it, but I figured he did.

8 Q. And what did y'all do at that time?

9 A. Well, Chad had disappeared, so I was the only one in the vehicle that I was in and, well, they had took off over the bridge and I didn't know they were going, but ...

12 I guess I just kind of followed them and I'm not sure why. ( 13 But I followed them over the bridge going towards Holiday Beach.

15 And we stopped as soon as we got over the bridge and, well, Chris Hall got out of the car and came up to me and say, "Hey, man, where's Chad?" 18 I was, like, "Well, I mean, he's gone, dude," you know.

20 And he was, like, "Oh, man, we were supposed to stay together." And he said they had got rid of the gun and he said, "Well, you know, there's going to be cops but, you know, go back and look for Chad, you know, and if you can't find him, well, just, you know, just look for him once and split, you know." And so -- 1 Q. Did you do that?

2 A. No. No. I just went straight home.

3 Q. Now, you said that Mr. Hall, and that's the defendant in this case, told you he got rid of the gun?

5 A. Uh-huh.

6 Q. Is that a "yes"?

7 A. Yes, ma'am.

8 Q. Did you actually see him do that or he just told you that?

10 A. He just told me that. I didn't see him do it.

11 Q. Did he tell you where he got rid of it?

12 A. He just said, "We got rid of the gun. " 13 Q. At that point did you know that there had been a shooting?

15 A. I knew that the gun had discharged. I didn't think he was hit. I mean, just the way he just got up and just ran like that, you know, perfectly capable. You ....

18 wouldn't think he got shot. I didn't see any blood or anything like that. So, no, I didn't think he was shot, but I knew that the gun had been discharged.

21 Q. When you exited that trailer, could you tell whether Mr. Hall did anything else with the weapon?

23 A. He didn't do anything else with the gun. as far as I know.

25 Q. You didn't see him do anything.

1 A. No. 2 Q. After that meeting there on the side of the road with Hall and Underwood and Tanton, did you ever see them again?

5 A. No. 6 Q. Do you know whQ Ace is?

7 A. Yes, ma'am.

8 Q. What position does he hold in the Aryan Circle?

9 A. Director of the state.

10 Q. And would that be a high position or a low position?

12 A. High position. ( 13 Q. Is there anybody else higher in the state than Ace?

15 A. I wouldn't know what rank that is, but I think one other person.

17 Q. Did you see Ace on January 4th, 2008?

18 A. No. 19 Q. Was he out at that trailei when Mr. Watson was shot?

21 A. No. 22 Q. And what about Mr. Scott or Scott, the major?

23 Was he out there that night?

24 A. No. 25 Q. What about Mr. Padgett? Was he out there at the trailer that night?

2 A. No. 3 Q. Do you know how the Aryan Circle feels about you testifying here today?

5 A. Not -- not very good about it. I don't think they're too happy with it.

7 Q. Why's that?

8 A. Well, because I'm testifying against someone.

9 Q. And is that a good th~ng or a bad thing in the Aryan Circle?

11 A. A bad thing.

12 Q. And are there penalties for testifying in I 13 criminal cases?

14 A. Yes, ma'am.

15 Q. Do you know what those penalties could be?

16 A. You get ·x'd out.

17 Q. And what would that mean?

18 A. That would mean you get beaten up and kicked out of the gang.

20 Q. Are .you still in the gang?

21 A. No, ma'am.

22 Q. Now, I believe you used to have some tattoos on your arm and your leg which you've changed since then.

24 A. Yes, ma'am.

25 Q. What did you used to have on your arm?

1 A. Lightning bolts.

2 Q. Is that the same lightning bolts that are the symbol for Aryan Circle?

4 A. They don't have the circle around them, but they're lightning bolts.

6 Q. And did those signify anything?

7 A. (Nodding head) . I guess that I was a member of an Aryan gang.

9 Q. Was there any particular reason why you covered it up or changed it?

11 A. Because I don't want to affiliate myself with anything like that anymore. \' 13 Q. Why not?

14 A. Well, because I never really believed in it, in hating another race or anything like that, and plus I'd never really known too much about A.C. But the more I learned, now that I've learned more, you know, they're not really what they say they're about and I don't really want to represent anything like that.

20 Q. I believe you also had on your leg or inside your leg a swastika?

22 A. Yes, ma'am.

23 Q. Did you change that as well?

24 A. Yes, ma'am.

25 Q. And why did you do that?

1 A. Same reason.

2 Q. Did you do that after the shooting?

3 A. Yes, ma'am.

4 Q. So do you consider yourself a member of the Aryan Circle today?

6 A. No, ma'am.

7 Q. Have you ever heard of a group call the Aryan Brotherhood?

9 A. Yes, ma'am.

10 Q. Do you know what their relationship is with the Aryan Circle?

12 A. I'm not too read up on the history. But from ( \ 13 what I can gather, the Aryan Circle branched off of the Aryan Brotherhood I think.

15 Q. Do they like each other or not?

16 A. They're rivals.

17 Q. Now, do you remember back when you talked to the ....

18 police about your involvement in this case?

19 A. (Nodding head.) Yes, rna' am.

20 Q. You remember when you did that?

21 A. I was in the jail I think and I'm not too sure what the date was but 23 Q. You remember the month?

24 A. I think it was July, August.

25 Q. 2008?

1 A. Yes, ma'am.

2 Q. And at that time when you gave your statement to the police about your involvement, did you have a plea bargain agreement between yourself and the State of Texas for your involvement in this case?

6 A. No. Q. Did you give that statement freely and voluntarily?

9 A. Yes, ma'am.

10 Q. Did anybody try to get you to make those things up and put them in your statement?

12 A. No. ( i 13 Q. Did Scott ever tell you what to say?

14 A. No. 15 Q. What about Ace?

16 A. No. 17 Q. Underwood? ...

18 A. No. 19 Q. Tanton?

20 A. No. 21 Q. Or Mr. Hall?

22 A. No. 23 Q. Since that time when you gave your statement, have you made an·agreement with the State to resolve your criminal charges from January 4th, 2008?

1 A. Yes, ma'am.

2 Q. And what did you plead "guilty" to?

3 A. Aggravated assault and organized crime.

4 Q. And do you know what you're looking at?

5 A. Five to fifteen.

6 Q. And do you know who's going to make that decision what your punishment is?

8 A. I believe the judge.

9 Q. At this point, do you have any agreement with the State as to what your exact sentence will be?

11 A. No. 12 Q. That trailer that you, Mr. Underwood, Mr. Hall., (. 13 Mr. Tanton and Mr. Pate went to on January 4th, 2008, had you been to that trailer previously?

15 A. Yes, ma'am.

16 Q. And who lived there at that time when you had been there before?

18 A. Chad Pate and Tracy Watson I think.

19 Q. And do you know how many times you went there before that day?

21 A. Just once.

22 Q. Was that the occasion when Mr. Underwood and Mr. Hall were here previously?

24 A. Yes, ma'am.

25 MS. CABLE: Pass.

1 THE WITNESS: I'm sorry?

2 MS. CABLE: I'm passing you to the defense counsel. Sorry.

4 THE WITNESS: Oh. Okay.

5 MR. TURPIN: May I proceed, Judge?

6 THE COURT: You may.

7 C R 0 S S - E X A M I N A T I 0 N BY MR. TURPIN: 9 Q. Good afternoon, Mr. Ray. My name is Stan Turpin.

10 I'm representing Mr. Hall. Like to ask you a few questions.

12 First of all, when you went into this house where you ( 13 participated in this assault of Mr. Watson, what were you carrying? Did you have anything on you -- 15 A. No, sir. Sir?

16 Q. Did you have anything in your hands or you used your hands on him or what?

18 A. I used my hands.

19 Q. Okay. And there was a wallet missing from Mr. Watson. You took the wallet?

21 A. No. 22 Q. After Hall -- supposedly you said -- let's see; Hall and Underwood, when they were leaving the scene, you met with them and supposedly you were supposed to go back and look for Pate?

1 A. Yes, sir.

2 Q. And you didn't go look for Pate.

3 A. No. 4 Q. You went back to Rockport.

5 A. I went back home. Yes, sir.

6 Q. But you didn't have the wallet.

7 A. I didn't have the wallet.

8 Q. How often do you communicate with Mr. Scott?

9 A. I'm sorry?

10 Q. How often do you communicate with Scott?

11 A. Not often.

12 Q. But you do communicate with him.

13 A. Yes, sir.

14 Q. Of course you realize he's high up in the upper echelons of this Aryan Circle; right?

16 A. Yes, sir.

17 Q. How often do you communicate with Ace? ....

18 A. Not often, but I do communicate with him, or I did.

20 Q. And he's also high-up echelon in this Aryan Circle; is that correct?

22 A. Yes, sir.

23 Q. How often do you communicate with Justin Padgett, Doughboy?

25 A. Never. I have never met him before and I don't really even know the guy.

2 Q. So you do or don't know him.

3 A. I'm sorry?

4 Q. You do or do not know him.

5 A. I know him now, but not -- I mean, not well enough to say -- I mean, we don't hang out all the time.

7 We're acquainted.

8 Q. Just an acquaintance?

9 A. Yes, sir.

10 Q. Okay. This night, January 4th, 2008, you were smoking speed; right?

12 A. Yes, sir.

13 Q. Going into the house for the assault, January 4th, 2008, first one in the door was Underwood.

15 A. Yes, sir.

16 Q. Any way to miss Underwood?

17 A. I'm sorry? .....

18 Q. Is there any way to miss Underwood?

19 A. To miss Underwood?

20 Q. Yes.

21 A. You mean like 22 Q. If somebody's looking for him, could you miss him or not?

24 A. No, you wouldn't miss Scott.

25 Q. Why is that?

1 A. He's a pretty big fellow.

2 Q. You said that you went in with .Tanton and Underwood went to help the little girls?

4 A. One of them took the girls into the other room.

5 Q. So two girls are there. Mr. Watson is there.

6 Who else is there when y'all go ~n?

7 A. Well, I saw an adult female, but I've been told that there was no adult female there. But I'm pretty sure I saw an adult there, female.

10 Q. All right. When were you told there was not an adult female there?

12 A. Well, I had heard from the district attorney that l 13 the two l i t t l e girls said that -- 14 Q. I'm not asking for hearsay from two little girls; I'm just asking you when did you find out.

16 A. I guess just recently, just, like, I guess Friday.

18 Q. Not today?

19 A. No. 20 Q. Last Friday?

21 A. Yes, sir.

22 Q. All right. You also have psychological issues.

23 A. Yes, sir. ( 24 Q. What are they?

25 A. Schizophrenia, Bipolar Disorder, depression and stuff like that.

2 Q. When were you diagnosed with these?

3 A. When I was, say, 18' 19.

4 Q. How old are you now again?

5 A. 22.

6 MR. TURPIN: Pass.

7 c R 0 s s - E X A M I N A T I 0 N BY MR. GILMORE: 9 Q. Mr. Ray, you hired 10 MR. GILMORE: Is it okay, Judge?

11 THE COURT: Please.

12 Q. (BY MR. GILMORE) You or somebody in your family ( 13 hired a lawyer to represent you?

14 A. Yes, sir.

15 Q. Did your lawyer go over the case with you that the State had against you?

17 A. (Nodding head) . Yes, sir. ....

18 Q. Give you copies of the reports?

19 A. No, I didn't get the discovery.

20 ~· He didn't give you any of the discovery?

21 A. No, sir.

22 Q. Did he talk to you about what the law enforcement officers had gathered regarding your involvement in the .24 case?

25 A. Not a whole lot, but I had heard they found a bat with my scent on it.

2 Q. Okay. All right. So the lawyer told you that?

3 A. No. The investigators told me that and then I talked about it with my attorney.

5 Q. Okay. So the investigator talked to you before you got a lawyer? Is that it?

7 A. Yes, sir.

8 Q. But you didn't really give a statement to the investigators until after you got a lawyer; is that right?

10 A. Right.

11 Q. Did the lawyer go over the case against you? Did he talk to you about what all the witnesses were saying ! ~ 13 about your involvement in the case?

14 A. Vaguely. He didn't go into detail. He just -- he just said ... He just said. my story was different -- I mean, what everybody else was saying was basically -- what Tanton and Underwood had said was basically what I had said.

19 Q. So -- okay. When did he tell you this?

20 A. I'm not sure what the date was.

21 Q. Well -- okay. You went and talked to the law enforcement people, the investigators, on August the 12th of 2008.

24 A. Okay.

25 Q. Okay? Now, did he tell you that your story was different from everybody else's or the same as everybody else's before you went to talk to them or after?

3 A. No. He just basically told me what everybody else had said.

5 Q. Okay. So when you went in to talk to the investigator, did you already know what everybody else had said?

8 A. Not detail. I mean, I knew they had said, you know, basically what I had said just now.

10 Q. Okay. All right. Let me ask you about -- you said when you were talking to the investigators that there was a lady and two little girls there. ( 13 A. Right.

14 Q. That's what you told the investigators?

15 A. Uh-huh.

16 Q. You have to say "yes" or "no." 17 A. Yes.

18 Q. Okay. And which assistant district attorney told you that you were wrong? Which one of these two?

20 A. I believe it was the lady.

21 Q. Okay. She told you that you were wrong?

22 A. Yes, that the little girls had said that it was just them.

24 Q. Okay. So when you testified -- when she was asking you questions, you didn't talk about the lady.

1 A. I mentioned the lady, but, you know, she didn't seem to know anything about it.

3 Q. Were there any other things that she told you about your story that was different that you shouldn't talk about?

6 A. No. 7 Q. Let me ask you about the wallet.

8 A. Okay.

9 Q. Okay. You know where the wallet was found; right?

11 A. No, I'm not sure.

12 Q. You're not sure? ( \ 13 A. I don't know.

14 Q. Do you recall talking to the investigators about the wallet?

16 A. They'd asked me about a wallet, but I didn't know anything about it.

18 Q. Okay. Do you recall talking to the investigators and telling them that you knew about the wallet?

20 A. No, I didn't -- I had heard from somebody that the wallet was taken, but I didn't see anybody take the wallet from him that night.

23 Q. So before you talked to the investigators, you knew that the wallet had been found.

25 A. I didn't know that investigators found the wallet. I had heard that somebody took his wallet. I didn't know that was true. That could have been just a rumor.

4 Q. You heard that on the streets.

5 A. Right.

6 Q. Okay. Now, this location where this incident took place is in Fulton; right?

8 A. Right.

9 Q. And it's North Fulton: It's kind of like the northern part of Fulton?

11 A. Right.

12 Q. If the wallet was found closer to Rockport, that ( 13 would be south of the location where the incident took place; right?

20 north.

21 A. Right.

22 Q. Okay. And you're the only one that came back south that went into that trailer. You're the only one that came back south again to go home; right?

25 A. Right.

1 Q. And if the wallet was found south of the location, who would have been the only one in that trailer that could have taken the wallet?

4 MS. CABLE: Your Honor, I'm going to object.

5 That's speculation. There's no way this witness can know what everyone else did after they left each other.

7 THE COURT: Don't ask speculative questions.

8 Q. (BY MR. GILMORE) You took the wallet, didn't you?

9 A. Nope.

10 Q. Okay. But if the wallet was found south of the location, then 12 MS. CABLE: Again, Judge, I'm going to ( \ 13 object to that; speculation. He said he didn't do it.

14 Asked and answered.

15 MR. GILMORE: Okay. Okay.

16 Q. (BY MR. GILMORE) All the calls that were made to the Aryan Circle guys in Houston were made on X'?~ll

----- phone.

A.

Q.

Right.

And you're claiming that Chad used your phone and made all those calls. ~~----- 22 A. Yes, sir.

23 Q. And then after this incident happened and Chad ( 24 took off, you didn't see him again that night.

25 A. No. 1 Q. But you made calls to the Aryan Circle guys after the incident; right?

3 A. After the incident, yes, sir.

4 Q. Okay. I mean, you got-- there's no way out of this because they got your cell phone records; right? So they know you made phone calls to these people.

7 A. Right.

8 Q. Did you make calls to Ziggy? To Chris Hall?

9 A. Yes, sir.

10 Q. And did you make calls to Scott?

11 A. Yes, sir.

12 Q. What about Ace? ( \._ 13 A. Yes, sir.

14 Q. Okay. But you didn't make the calls to bring --·· ···--------···. ····-···-······---·····----·------------ these guys down. ---------·--·------····· 16 A. No. 17 Q. It just happened to be on your cell phone.

18 A. Yes, sir.

19 Q. This Aryan Circle -- I mean, you said you joined because you were going into SAFP and. I don't know if the jury knows; "SAFP" is Substance Abuse Felony Punishment Facility.

23 A. Yes.

24 Q. And that's for drug rehabilitation; right?

25 A. Right.

1 Q. Apparently i t didn't work too well for you; right?

3 A. Well, that night, that had been .the first time I had done drugs in.a long time and, I mean, I turned it down once, but then, I mean, just it just being there, you know, I just said, "Well, all right. Let me have it," you know.

8 Q. You were actually smoking it, weren't you?

9 A. Right.

10 Q. And you got these drugs f~om Justin Padgett.

11 A. Chad did.

12 Q. You went over with Chad to get these drugs from Justin Padgett; right?

14 A. Right.

15 Q. Were you actually in Justin Padgett's trailer?

16 A. Yes.

17 Q. So you saw Justin Padgett deliver the methamphetamine.

19 A. No. I was off on the other side of my trailer -- I mean his trailer, minding my own business.

21 Q. Okay. You weren't watching.

22 A. No, I was not watching, 23 Q. But you know i t carne from there; right?

24 A. Right.

25 Q. So you joined the Aryan Circle for protection.

1 And did you maintain your membership after you got out of SAFP?

3 A. I was just a prospect. I was never a full- fledged member.

5 Q. o·o y 'a 11 have regular meetings or something? Is i t like -- is it like a club or something, you know, where you have regular meetings and discuss things?

8 A. Yes. There's no specific location where they meet, but i t ' s wherever it happens to be-- 10 Q. Where have you met with the Aryan Circle for meetings?

12 A. In Corpus, in Rockport and that's it.

13 Q. Okay. And at the Rockport meetings, who was there?

15 A. Me ... It's a pretty small chapter. Me and Shane Evans and Matthew Chips (ph) and, at the time, that was it. ...

18 Q. Okay. What about Justin Padgett?

19 A. He never attended.

20 Q. He never went to the meetings?

21 A. No. 22 Q. He was A.C. though; right?

23 A. As far as I knew.

I 24 Q. And what about Chad Pate? '· 25 A. Chad Pate never attended any meetings. -~ / ~ ~ 1 Q. Okay. Now, when you go to these meeting, do they tell you who, you know, who's your boss?

3 A. Yes.

4 Q. Did anybody·at those meetings ever tell you that Chad Pate was your boss?

6 A. No. 7 Q. Okay. And as a prospect, you would know who your superiors were, wouldn't you?

9 A. You would know, yeah.

10 Q. 'Cause you know who the director of the state is; right?

12 A. Right. / '·· 13 Q. And you know who the major is in Houston; right?

14 A. Yeah, because I'm told that.

15 Q. But nobody ever told you that Chad Pate was a ranking member of A.C.; right? -:-~-----··----·-·---·----

17 A. Yeah, sure. Chad told me that.

18 Q. Yeah. But other than that, did anybody ever tell you that?

20 A. No. 21 Q. What's the purpose of being in A.C. if you're not in prison?

23 A. I don't know. I didn't really know a whole lot about the organization at the time.

25 Q. What kind of things were you asked to do for A.C.?

2 A. Well . . . Beat people up.

3 Q. Beat people up. That was your job?

4 A. Well, I mean, basically whatever it is you were asked to do, I mean, you know.

6 Q. Did Chad Pate ever ask you to beat anybody up besides this guy?

8 A. J.R. 9 Q. J.R. Okay. Let's talk about J.R. 10 A. Okay.

11 Q. You said that that night, the night that this happened to Aaroh Watson, that Chad Pate had to tell you ( 13 how to get to the trailer.

14 A. Right.

15 Q. Okay. Now, the first time in November when Mr. Hall and Mr. Underwood came down, they met you at the end of Copano Bay Bridge.

18 A. Right.

19 Q. And you were by yourself; right?

20 A. I was with a girl, but, I mean, yeah.

21 Q. And you took them to Mr. Pate's -- the trailer, the trailer that y'all went to that night; right?

23 A. Right.

24 Q. So you already knew your way there.

25 A. Yeah, but this time, we'd gone through some woods and it was dark. I mean, we didn't take backroads and go straight there; we went through 50me woods like commando style.

4 Q. Okay. So Mr. Pate had to tell you how to do that?

6 A. Yeah.

7 Q. And let me ask -- I don't want you to say what the district attorney told you or what anybody else told you. You think there was a woman there that night; right?

10 A. Right.

11 Q. And had.you met Tracy before?

12 A. Once briefly.

13 Q. You think Tracy was there that night, don't you?

14 A. That's who I thought it was.

15 Q. Before y'all went into the trailer that night -- well, let me back up to November. What did y'all do in November? What was the deal in November?

18 A. November when Chris Hall and Underwood came down?

19 Q. Yeah. What was the deal back then?

20 A. Well, that's when we were supposed to go fight with J.R. and his buddies and 22 Q. "J.R. and his buddies." It wasn't just J.R.?

23 A. No. 24 Q. And what did J.R. supposedly do? ( 25 A. Sexually assault his girlfriend.

1 Q. Okay. And Chad told you that?

2 A. Yes.

3 Q. Okay. And Chad's the one that called everybody down.

5 A. Right.

6 Q. When y'all got together and met, what did y'all do?

8 A. We just drove around. And I guess -- I don't kno\'11 why I was in the tailgate and I was kind of wondering what we were doing, but 11 Q. Did you know who J.R. was?

12 A. No. ( \ 13 Q. Never heard of him before?

14 A. Huh-uh.

15 Q. You have to say "yes" or "no"; sorry.

16 A. No. Sorry.

17 Q. Did you go to J. R. 's house? .....

18 A. No. 19 Q. You weren't with them when they went to J. R. 's house?

21 A. If they went to J.R. 's house, I didn't know that that was his house. I was in the back in the tailgate and they were talking in the cab. I didn't hear anything.

24 Q. Okay. So you were -- is this an open-bed pickup truck?

1 A. Right. Tailgate, yeah, open bed.

2 Q. So you were sitting in the back.

3 A. Right.

4 Q. You don't recall going by a house and stopping at the house?

6 A. We didn't stop at the house.

7 Q. So all y'all did was drive around.

8 A. Right.

9 Q. And this all occurred in one day?

10 A. Right.

11 Q. There's been previous testimony that they spent the night there at Chad's trailer, at the house by Chad's ( \ 13 trailer. Did it happen the day before they spent the night or the day after they spent the night? ) 15 A. Day after.

16 Q. The day after. So you led them to the trailer.

17 They spend the night and then y'all go looking for this guy.

19 A. Right.

20 Q. Can't find him anywhere, and then they just left; right?

22 A. Right.

23 Q. And you saw them leave.

24 A. Right.

25 Q. Where was Chad when they left?

1 A. Chad? He was with them.

2 Q. Did you assist them in stealing the jet ski?

3 A. No. They'd dropped me off already.

4 Q. But you know about the jet ski being stolen.

5 A. I didn't know it was stolen. I didn't know anything about a jet ski until I was told. Well, I wasn't even told. I looked at a statement and seen that it -- . ... ---------------------- yeah.

9 Q. Do you know why Chad Pate would have had his arm cut that day?

11 A. I didn't know he had his arm cut.

12 Q. Okay. He was with you all day and Mr. Hall and Mr. Underwood, but you didn't see him get his arm cut.

14 A. No. 15 Q. And you didn't have anything to do with him getting his arm cut.

17 A. No. 18 Q. Now, before y'all went in we're going to jump ahead to January the 4th, the morning of January the 4th.

20 What was your understanding of what y'all were going to do before you went into the trailer?

22 A. We were supposed to go in there and run off all these guys that were supposed to be in there, all these A~B. dudes.

25 Q. Were you there during the planning?

1 A. Chad? He was with them.

2 Q. Did you assist them in stealing the jet ski?

3 A. No. They'd dropped me off already.

4 Q. But you know about the jet ski being stolen.

5 A. I didn't know it was stolen. I didn't know anything about a jet ski until I was told. Well, I wasn't even told. I looked at a statement and seen that it -- ···---··--·-------------- yeah.

9 Q. Do you know why Chad Pate would have had his arm cut that day?

11 A. I didn't know he had his arm cut.

12 Q. Okay. He was with you all day and Mr. Hall and i ~ 13 Mr. Underwood, but you didn't see him get his arm cut.

14 A. No. 15 Q. And you didn't have anything to do with him getting his arm cut.

17 A. No. 18 Q. Now, before y'all went in we're going to jump ahead to January the 4th, the morning of January the 4th.

20 What was your understanding of what y'all were going to do before you went into the trailer?

22 A. We were supposed to go in there and run off all these guys that were supposed to be in there, all these A.B. dudes.

25 Q. Were you there during the planning?

1 A. Yes.

Q. Did anybody say anything about shooting anybody?

3 A. No. 4 Q. Did anybody say anything about beating people?

5 A. Nobody specifically said, "Beat these dudes up," but well, what was said, "We're going to go right these-- we're going to go run these dudes off and, if they want to fight, well, you know, what's up, you know." 9 Q. As far as you know, nobody went into that place -- before you went in and as you were going in, you didn't realize that anybody was armed; right?

12 A. Right. ( 13 Q. Even with bats or clubs.

14 A. Right.

15 Q. You didn't have a bat or a club, did you?

16 A. No. 17 Q. And as far as you know, nobody else had one . .....

18 A. Right.

19 Q. Okay. And the gun was never pulled and shown as far as you know in front of Mr. Pate.

21 A. Right.

22 Q. So -- and he never talked about shooting anybody, did he?

24 A. No. 25 Q. So you went in there and Mr. Hall hit the guy in the head. You start hitting him --.

2 A. He didn't hit him in the head. He just tapped him on the head to get his attention.

4 Q. Okay. Just tapped him a little bit with a gun on the head?

6 A. Well, not like, you know, just, like, "Hey, come on, dude, " you know, like, "Tell me your name. " 8 Q. "Tell me your name"?

9 A. Yeah. It wasn't like -- he didn't really smack him with it.

11 Q. And then he got a pillow and he put it over the gun, like, covering the gun and shot him?

13 A. Right.

14 Q. I mean, like, here's the front of the gun and here's the pillow. He put the gun up against the pillow and shoot him through the pillow?

17 A. No. 18 Q. Put the pillow on top of the gun?

19 A. Right.

20 Q. And that was a conscious effort on his part. He picked up the pillow, stuck i t on top of the gun and shot him.

23 A. Yes.

24 Q. And is this while everybody -- while everybody was beating him?

1 A. No. This was just while I was beating him.

2 Q. While you were beating him. Do you recall telling the investigators that you and Mr. Pate went out a day or two before this incident at the trailer and scouted the place out?

6 A. Yes, sir, but I think-- see, I wasn't really sure of the dates. So I guess I just said, you know, a day or two before. That was the time that we went -- that Underwood and them carne down I think.

10 Q. Okay. Well, you talked about driving by there and scouting the place out. You didn't talk about stopping and going inside the trailer. You talked ( 13 about ..

14 A. We probably did, yeah. It was a long time ago.

15 I don't know; I can't remember.

16 Q. Well, in August you told them a couple of days before this incident you and Mr. Pate went over and ...

18 scouted out the place.

19 A. So I guess I did.

20 Q. And you know that that's impossible; right?

21 A. I don't.

22 Q. You know that Mr. Pate was in jail the day before this happened and the week before this happened, don't you? ( 25 A. Okay.

1 Q. You know that, though, don't you?

2 A. I didn't -- I didn't -- yeah. Yeah, I did know that.

4 Q. Because the investigators told you that you were ·-··---------- ------------------- -------- - - -- wrong ar:~---~-0-~X §)_E;.O..J~-())c:i .Y.2!cl__ you. _were wron9_ about Tracy being there, too. ·-----------····--·-··. -------···-·····---------- 7 A. Okay.

8 Q. And so you tailored your story to meet whatever they're te 11 in_g .. you_; ____right?

1 o C~·--=!i~~i~5~ 11 Q.. You also told them that you left the A.C. because they were going to set you up.

13 A. Yeah.

14 Q. Is that right? So the A.C. does things like that; right?

16 A. Yes.

17 Q. You did -- you do something wrong?

18 A. It's all confusing to me because I was being set up for something I got told to do, you know, so -- so 20 Q. What was that?

21 A. What we were asked to do, to go do this, and apparently ... I was never really sure as to why, but from what I could gather, yeah, that's what it was, you know, bringing heat, you know, on everybody.

25 Q. So there's loyalty within the A.C. until they get

1 mad at you and x you out; is that ~ight?

2 A. Right.

3 Q. So if you're x'd out, everything is -- everything goes; right? Including being beaten up; right?

5 A. Right.

6 Q. Being shot? Is that right?

7 A. Right.

8 Q. And also filing or testifying falsely against ex A.C. members; right?

10 A. No. You're not supposed to testify at all, ever.

11 Q. Okay. And if they did tell you to do it, you sure aren't going to tell us they told you to do it; ( \ 13 right?

14 A. I don't guess I would.

15 Q. Probably wouldn't; right?

16 MR. GILMORE: Okay. That's all the questions I have. ....

18 R E D I R E C T E X A M I N A T I 0 N BY MS. CABLE: 20 Q. Did anybody tell you to testify falsely here?

21 A. No. 22 Q. And are you being truthful to this jury to the best of your ability?

24 A. Yes, rna' am.

25 Q. Did I ever tell you to lie?

1 A. No, ma'am.

2 Q. Did I tell you to try and tell the truth to the best of your ability?

4 A. Yes, ma'am.

5 Q. And this happened about a year ago?

6 A. (Nodding head). Yes, ma'am.

7 Q. Do you remember everything as perfectly now as you did then?

9 A. (Nodding head) . Yes, ma'am.

10 Q. Are you sure that Mr. Hall was there with you that night?

12 A. Yes, ma'am. ( \ 13 Q. Are you sure that Mr. Pate was there directing y'all to go to that trailer?

15 A. Yes, ma'am.

16 Q. Was Mr. Pate aware that y'all were there to do violence?

18 A. Yes, ma'am.

19 Q. Now, the Defense Attorney asked you, "Who did Justin Pate (sic) give the meth to the night of January 4th, 2008?" Who was that?

22 A. Chad Pate.

23 Q. When was the last time you communicated with Mr. Scott or Major Scott?

25 A. That was maybe, like, a week or so after January 4th.

2 Q. Was i t -- did you and he ever discuss your speaking with the police?

4 A. Yes. I mean, he didn't come right out and say, "Don't speak with the police," but he just said, you know, "Hey, what's going on with that," you know, "What happened," you know.

8 I said, "Well, i t ' s all a dead issue pretty much down here." 10 And he said, "Well, make sure i t stays that way." 11 Q. Was that ~ threat from Mr. Scott regarding your involvement in the case? ( 13 A. I felt so. 14 Q. Now, you have a nickname of "Spooky"?

15 A. Yes, ma'am.

16 Q. Can you tell the ladies and gentlemen of the jury how you got that nickname? ...

18 A. I'm very paranoid. Anytime somebody is talking amongst themselves, I immediately think they're speaking about me. And I always think everybody's out to get me. And so one day, my associates said, "You know, you're kind of a spooky dude, so that's what we're going to call you." 23 Q. Did you really know Justin Padgett prior to January 4th, 2008?

25 A. I'd only heard of him, but I'd never met him or, you know, I'd heard the name, but I'd never met him or anything like that.

3 Q. After leaving his house and Mr. Pate got drugs from Mr. Padgett, did you see him again that night?

5 A. I don't think so, no. 6 Q. Was he at the trailer with you?

7 A. No, ma'am.

8 Q. When was the last time you spoke with Ace?

9 A. About maybe, like, a few weeks, something like that, you know. Not long, but after January 4th, maybe like a month after.

12 Q. Did he in any way give you permission to testify ( 13 here today?

14 A. No. 15 Q. Do you know how you're going to be viewed when you go to prison as a snitch?

17 A. Well, yeah, yeah. I guess everybody's going to be mad at me. 19 Q. And how does that make you feel?

20 A. Nervous. Targeted.

21 Q. When Underwood and Hall came down in December of 2007, were they armed with firearms?

23 A. They didn't have the firearms on them.

24 There's -- in the back of the red truck, there's this ( little toolbox deal and that's where two firearms were.

1 -But they didn't have any guns on the~.

2 Q. But they did have weapons with them.

3 A. Right.

4 Q. You were aware of that?

5 A. Yes, ma'am.

6 Q. Was Mr. Pate aware of those weapons on that occasion as well?

8 A. I believe so, yes.

9 MS. CABLE: Pass the witness.

10 R E C R 0 S S - E X A M I N A T I 0 N BY MR. TURPIN: 12 Q. Mr. Ray, after these statements were made ( 13 August 12th, 2008, by you, did you assault somebody here at the jail for an A.C. member named Chips?

15 A. Yes, sir.

16 Q. What did you do to him?

17 A. I hit him once.

18 Q. You hit him?

19 A. Yes, sir.

20 Q. So you're still active with the A.C.

21 A. I wasn't doing it as an act of Aryan Circle, I mean .. I mean, pretty_much what I had heard was -- 23 Q. I'm not asking what you heard; I'm just saying you hit this guy.

25 A. I did it so I wouldn't get any, you know, so I wouldn't get beat up, you know, basically, 'cause they were talking about it.

3 Q. You told me you assaulted somebody for A.C. This is after the statements were made.

5 A. Who told you that?

6 Q. That's what I'm asking.

7 A. No. I didn't do anything for A.C.

8 Q. This guy named Chips?

9 A. Yeah.

10 Q. You don't know that he's A.C.?

11 A. I know that he's A.C.

12 Q. All right. ( 13 MR. TURPIN: I pass.

14 R E c R 0 s s - E X A M I N A T I 0 N BY MR. GILMORE: 16 Q. I didn't know about that. So Chips is A.C. and he asked you to hit somebody for him?

18 A. Yes.

19 Q. And this happened after you gave this statement?

20 A. Right.

21 Q. But it wasn't an Aryan Circle hit. It was just somebody that you knew in the Aryan Circle asked you to hit somebody.

24 A. Well, I was pressured into doing it. I didn't want to do it.

1 Q. In November when Mr. Hall and Mr. Underwood came down, did y'all go to Mr. Padgett's place?

3 A. Yes.

4 Q. Okay. What did you go there for?

5 A. We just went there just to meet Justin Padgett.

6 Q. You're going to be sentenced for pleading "guilty" to this crime; is that right?

8 A. Right.

9 Q. In your mind, do you think that you're guilty of this -- of shooting Mr. Aaron Watson?

11 A. I'm not being sentenced for that.

12 Q. Yes, you are. / 13 MS. CABLE: Your Honor, I'm going to object \ to relevance in his mind what .he's guilty of to this proceeding.

16 THE COURT: I ' l l allow the questioning, but I think you need to rephrase your question.

18 Q. (BY MR. GILMORE) You pleaded "guilty" to intentionally, knowingly and recklessly causing bodily injury to Aaron Watson by shooting him. Do you think you're guil t.y of that?

22 A. No. I didn't shoot the guy.

23 Q. And you didn't know before you went in the trailer that he was going to be shot, did you?

25 A. No. 1 Q. Okay. You're going to be sentenced anywhere from five to fifteen years; is that right?

3 A. Right.

4 Q. And Judge Welborn is going to sentence you; is that right?

6 A. I didn't know that, but, yeah.

7 Q. I think that's what Ms. Cable asked you. Judge Welborn is going to sentence you.

9 A. Okay. Yeah.

10 Q. So Judge Whatley's not going to sentence you.

11 A. Right.

12 Q. So the only way that Judge Welborn is going to ( 13 know about what you've done here is -if he talks to Judge Whatley or a prosecutor comes in and makes a recommendation for you; is that right?

16 A. Right.

17 Q. And the Prosecution, you assume they're going to make a recommendation based on how you perform in court?

19 MS. CABLE: Your Honor, I'm going to object.

20 That calls for speculation and assumption -- 21 MR. GILMORE: I.don't have any more questions, Judge.

23 THE COURT: Anything else? i.

1\ 24 MS. CABLE: Yes.

25 -oOo- 1 R E D I R E C T E X A M I N A T I 0 N BY MS. CABLE: 3 Q. Were you-- are you still a member of A.C.?

4 A. No, ma'am.

5 Q. Why were you involved in this assault with Mr. Chips?

7 A. I'm sorry; repeat that.

8 Q. Why were you involved in the assault with Mr. Chips in the jail?

10 A. Well, because he had asked me to do that and, well, at first, I told him "no." I told him "no," you know. ( \, 13 And we went to Crystal City and I had heard from another inmate, you know, "Hey, man, if you don't do that dude, they're going to get you, dude." So I mean ... I mean, I know it's kind of weird, you know. You don't really even know the dude or anything, but you don't have to beat them up. Just swing on them, you know, and, you know. So I did.

20 Q. Did anybody tell you to testify here differently than the truth?

22 A. No. 23 Q. Does that assault have anything to do with your testimony here today?

25 A. No. 1 Q. And has my office, myself, Mr. Rodriguez, the district attorney, ever told you that we're going to make a specific recommendation based on anything?

4 A. No. 5 MS. CABLE: Pass the witness.

6 MR. TURPIN: Did you pass?

7 MS. CABLE: I passed.

8 R E c R 0 s s - E X A M I N A T I 0 N BY MR. TURPIN: 10 Q. Your attorney was Ray Martinez (ph) right?

11 A. Right.

12 Q. Of course, they can't talk to you. Only your ( 13 attorney can talk to you; right?

14 A. Right.

15 Q. So your attorney obviously told you what the deal was going to be before you came in here and testified.

17 A. Okay. ....

18 Q. Right?

19 A. Right.

20 MR. TURPIN: I pass.

21 R E C R 0 S S - E X A M I N A T I 0 N BY MR. GILMORE: 23 Q. Did you know Ace's phone number before January of 2008?

25 A. I had it in my cell phone.

1 Q. Did you have it in your speed dial?

2 A. Previous calls, yeah, I guess speed dial, yeah.

3 Q. Did you know Scott's number before January 2008?

4 A. Same thing.

5 Q. What about Ziggy?

6 A. Yeah.

7 Q. You had his number, too. How about Mr. Underwood?

9 A. Underwood? I didn't even know he had a phone.

10 No. 11 Q. Okay. So you had these numbers ·available to you before January of 2008. i \ 13 A. Right.

14 Q. Did you have them before November of 2007?

15 A. No. 16 Q. When did you get them?

17 A. Well, I got them from -- oh, well, I had the numbers for Ace and Scott but not for Chris Hall. But for Ace and Scott, I had received those from ... Well, the one from Scott I believe I got from Chad, but the one from Ace, I had that. I'd always had that.

22 Q. Okay. Did you ever write those numbers down and give them to anybody?

24 A. Yes.

25 Q. And who did you give them to?

1 A. Chad.

2 Q. So you wrote those numbers down -- even though Chad already supposedly had these numbers, you wrote them down and gave them to Chad.

5 A. Ace did not I mean Chad did not have Ace's number. As a matter of fact, I didn't write -- I don't think I wrote down Scott's number and gave it to Chad. I think that was my number that I wrote down along with Ace's number and gave to Chad.

10 Q. When did you write these numbers down and give them to Chad?

12 A. I was working at Alby's Seafood. I guess that was in November or September.

14 Q. Before Mr. Hall and Mr. Underwood came down?

15 A. Yes.

16 Q. Okay. And did you give them to Chad for Chad or did you give them to Chad for Mr. Watson? ...

18 A. I gave·them to Chad for Chad. I didn't even know anything about Watson or anything like that.

20 Q. Okay. You never met Mr. Watson before?

21 A. No. 22 Q. When Chad was working there, did you ever see Mr. Watson there with Chad?

24 A. Not that I know of, no. 25 Q. You never -- you never met Mr. Watson at Alby's THE STATE OF TEXAS }{ COUNTY OF ARANSAS }{

4 I, SHARON D. ANDERSON, Official Court Reporter in and for the 343rd Judicial District Court of Aransas County, S~a te·~. f Texas, do hereby certify that the above and foreg~ng contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties and/or Court to be • I

10 included in this volume of the Reporter's Record in the above-styl~d and numbered cause, all of which occurred in open court or in chambers and were reported by ~e on the designated dates.

15 WITNESS MY OFFICIAL HAND this the _3-~~~ day of ----c=t~------' 20_(L]L.

~, _v ~ j~-~~~~--- N D. ANDERSON, CSR 20 OFFICIAL COURT REPORTER 343rd Judicial District 21 P. 0. Box 700 Sinton, Texas 78387 22 361-364-6202 Cert .. No.: 2650 23 Exp. Date: 12-31-10

Ua( 1 (}~q ~ RECORD EXHIBIT # 9 RR VOL8 OF9 2112/09 JURY TRIAL GUILT INNOCENCE ----------- ;4" ; \,,;-._. . .• ' ·. . • .. . '

\1~ ~i·•j ····~· ~ r¥ ~.. . J .... ·._ ~·.-.-·

c)-~"'\ c\ ~ ~~

~ REPORTERS RECORD VOLUME 8 OF 9

THE STATE OF TEXAS vs. CHADRICK B PATE C ""\--"- I <J ).~ )... 5 1./ .7 l )!.,~...~ ( i(e;]. ~...!~~u.. f ~,p-- 1~<~. ~~ i -- (0 ..

1 R E P 0 R T E R ' S R E C 0 R D VOLUME OF ~ VOLUMES 4 Tr~a~ Court Cause Number A-08-5080-4-CR THE STATE OF TEXAS * IN THE DISTRICT COURT OF 6 * vs. * ARANSAS COUNTY, TEXAS 7 * CHADRICK B. PATE * 36TH JUDICIAL DISTRICT 9 JURY TRIAL Guilt/Innocence A P P E A R A N C E S COUNSEL FOR THE STATE: 12 MR. MARCELINO RODRIGUEZ ,·· .. · MS. RETHA CABLE 13 ASSISTANT DISTRICT ATTORNEY 36th Judicial District 14 San P~tricio County Courthouse P. 0. Box 1393 15 Sinton, Texas 78387 Tel: 361-364-6220 16 Fax: 361-364-4978 SBN: 24046959 17 00785741 COUNSEL FOR THE DEFENDANT: ....

MR. JOHN S. GILMORE 19 ATTORNEY AT LAW P. 0. Box 2 7 6 20 622 South Tancahua Corpus Christi, Texas 78403 21 Tel: 361-882-4378 Fax: 361-882-3635 22 SBN: 07958500 23 On the 12th day of February, 2009, the following proceedings came on for trial in the above-entitled and -...... -~... . •; numbered cause in said Court, HONORABLE JANNA K. WHATLEY, ___/ \ " Judge Presiding, held in Rockport, Aransas County, Texas: 25 Proceedings ~ere reported by machine shorthand.

lf· s updated.

Q. And specifically, the number of cards that noted thalt Mr. Hall was a known gang member of Aryan Circle.

4 A. Mr. Hall's been documented four times.

5 Q. Now, did you also have an occasion to determine whe~her the defendant, Chadrick Pate, is a member -- 7 MR. GILMORE: May we approach the bench, Jud~re?

9 THE COURT: You may.

10 (The following discussion was had at the bench.)

11 MR.. G.I.LMO.R.E .: .J t:.b .o lJ .g.b .t .~ e .a J r e.a .d y .b a .d a rul~ng on this. I objected earlier and the Court ruled --) 13 that:. that was not admissible.

15 adm~ssible but just that their findings as far as the hear:say statements are inadmissible. But his J 7 .detE'r.wi.Datio.Y.' is ad.wissi.b2e.

18 THE COURT: I didn't say she couldn't bring it in; it's just-- ~!R. GILMORE~ -- all based on nearsay, Judge.

THE COURT: That's the law, Mr. Gilmore. I can't help it. That's the code. 23 MR. GILMORE: Well, I can certainly object to :Lt, Judge. ) 25l____ THE COURT: You certainly can. r- MR. GILMORE: I'm going to object to it. ) THE COURT: Okay. Very good. You may.

3 .(Cov.os.eJ re!:c.'nTed co counsel tables.)

4 Q. (BY MS. CABLE) Again, were you asked to look at and determine whether the defendant, Chadrick Pate, was a rner·:tber o.f .:~rJ'al? Circle?

7 MR. GILMORE: Judge, I object to any te~3timony regarding my client, Chadrick Pate.

9 Tou may have a running bill on thct t. Your objection's overruled.

11 Q. (BY MS. CABLE) Again, did you -- were you asked to .:Jo t ~l-?a t? ·- ) 13 A. Yes, I was.

14 Q. And did you use those same criteri.;1 set out by t.b.e at to L1~e y· g·e n e r a i ,. s decision in this case?

16 A. Yes, I did.

17 Q. And did you use the same cards' notation as you

19 A. Yes, I did.

20 Q. Atid how many cards noted that -- did you have in N~. Pa-te·· s conclusion?

22 A. Five. I

23 Q. What was your determination as an expert in gangsl Z4 in this region as to whether Mr. Pate is a member of a _) gang?

1 MR. GILMORE: We rest, Judge. -) 2 THE COURT: How are we coming?

3 MS. CABLE: It's almost done. Printing it out.

5 MR. GILMORE: Can we talk about what we want?

7 THE COURT:. All right. Ladies and gentlemen of the jury, you want to keep looking at those for a minute, you have all the evidence you're going to be seeing in the case. That's been submitted to you now. We are currently work~ng on the jury charge to get the cas~

12 charge~ to you. It may take us a little while to get that . ·) -;·.··· .

13 done because, to be real truthful, the State has the --- slow~st printer in the United Stat~s-of America. I don't have a printer at all so I got to be ca·r~ful why I complain. But everytime I'm over here, it spits out one ----- .-······ page, about two pages,,per five ~t_r:'!-.t1_"!=-~s. That's all I can 8 t.e 11 you . They don't have a'good.p:r:inter. -·····------------- --- 4

19 MS. CABLE: Well, we brought that from San Pat.

21 THE COURT: So, I don't know. Like I said, we wait for it to print all the time. But once we get it ··....

23 finalized, we'll be ready to go. I'--ve got a copy machine - that'll make the copies. ) 25 So if y'all want to look at those for a ---... 11 cou;.?le of minutes, when they all get done, let me know. ) Ther1 I will release y'all to go take a break. It may be an l1our; it may be twenty minutes; we do not know. This is 1:he unknown break time for y'all; okay? I ' l l let y'all knovi in just a couple of minutes. Just remain seated if you don't mind.

7 (Pause) 8 THE COURT: Okay. Y'all want to take a break, we' 11 k-eep you informed. Again, don't discuss an yt:hinq. ~-··

11 (The jury exited the courtroom and a recess was taken.)

12 THE COURT: Do y'all have any )/ --·· ..

14 MR. RODRIGUEZ: None by the State, Your Honor.

_ __: __ , -~~4iP~-~,~~~~·~-:f!.~::> ~~:TJ.~li'll.t~~~~~ '-\,)t~;;::.::~~:~~~:~j ~ct. i -u~, ~ 1.6 fB'r~-.,_M.,l?~·-;·-p·a te, Judge. ~--::;"~~~~--"·, ~-·~ .___.·--:,-:·_.- --:-:-~---'"; . ._·-_;l:, 18 THE COURT: Mr. Turpin.

20 THE COURT: Okay.

21 MR. GILMORE:- Just to let you know, the • : - . -~~~7~~... ~- .... \~·. , -· ___ : ..... . .:: -·. ca-se 'rrantDer · s on. m1ne .- ---~-~.5.; -·;· __. . ?·-· .. · .

23 THE COURT: Okay.

24 All right. Doc, bring them in.

___e_n__t_e_r_e__d__t_h__e __c_o__u_r_t_r__o_o_m__._J________________j 25l_____ _____________(_T_h_e___j_u_r_Y THE COURT: All right. Ladies and gentlemen, what's going to happen now, I'm going to read you the charge of the Ca~rt. You will nave two originals, one for the Defendant Hall and one for the Defendant Pate.

5 Wha·t we have agreed or everybody said I could do is I'm fi j .J..JS it read one of tfl.e charges. So I ' l l say "Pate" or 11 H a 11 11 but nu-t i"n g that yo u ' r e g o i n g to have t o a n s '"' e r two originals; all right? Does that make sense to

10 Y'all don't want me to read this twice, do y' a l_l?

12 JJidn ··t think so. All right. I ' l l start.

13 (The charge o:[_ the Court was read. to the jury-!

14 THE COURT: You have two verdict forms.

17 alleged in the indictment. There's a signature blank.·· Or: we, the jury, find the defendant not qui-Tty-· of murd"er, and, again, .there's a siq,na.t_l.l..l:~ b.L;e.r.>"lr~.

20 find the defendant not guilty of m~rder as alleged in ~-· ..-····;_·_ -····-···-· ---.----~ ZI Count One, then you pro-C'e..,ed· to Count Two; otherwise, you ...... _.

22 don' t go to Count Two. ·" 23 Count Two, you only use one of three forms: We, ~he jury, find the d~fendant guilty of aggravated ) assaalt as alleged i~ the indictment, and if you do find that, then you move to special issue. Answer only if you found the defendant guilty of this count. Did the defendant commit said offense_fts a member of a criminal ----------------·- prison gang, and you answer "yes" or "no." And then lastly or: We, the jury, find the defendant, Christopher Joseph Hall or Chadrick B. Pate, not guilty of Count Two.

7 All right. Who's starting?

8 MS. CABLE: Judge, for the State I ' l l be making closing. State would waive my opening and reserve full time to close.

11 THE COURT: Mr. Turpin.

12 MR._ . .. ';l'.URP IN-.,;_ Please the Court, please the ') 13 State. Approach? -- --- _,.~,.._ .... -~---....

14 BY MR. TURPIN: 15 Ladies and gentlemen, good afternoon. I'm going to be spea-;king fast, so bear with me. - ---- ,-- ----~----~-:-~~ 17 First o_t"..-all, go back through and review the charge, please, limi-ne Tnstructions. Main thing I want to hit on -------.... .... .,... ...,.__ "_""""'..... ...,..• , ..

19 is the Fifth Amendment. 01,1r .9.-Jients don't have to -· -·· ... --- . . .'"!-__-_ testify, don't have··to-.-put_ on any evidence. We didn't put on evidence. You're instructed you cannot hold that ----· ... -- ........... -"''''- . .,. - ·-.-::-..

22 against them for any reas&n what§6ever. I understand that's a hard thing to do"";-,.,.__ what I'm asking you to do is ..-.,~- - c•._,::~-~:--:•.•~~- -..,_- put blinders on and t o"'"J:n-CTe.k.~-s.i mp.l.y ...<:i. t:_ the evidence that .,.·:_~-~-

25 you have. Okay?

) 2 belong to, but that's not proof of murder.

3 Thank you.

5 MR. GILMORE: Your Honor, counsel.

6 BY MR. GILMORE: l i uo-n'·"L. 'Know l.I: you guys are ii'Ke me; you··o. pro"ba"b"ly rat~er be home eating dinner. That's where I'd rather be right now.

Let me make i t clear to you. Y'all are going to get a copy of this charge the Judge read to you to take back with you. I was listening to her read i t and I was "13 watc:.hing you g'!ys_aJ1d this is·v_~~y complicated. This is cmplicated even for somebody who's been practicing law "'· --··-·-- . -·~. --- ···---~-

15 for thirty years as I have. So you have to read this and - ~;;..-u .... ·:.... _ .~-.-.,·:-:. ..,._._,_

16 really understand i t because this is the law that applies t- - ~- • - :.

17 to the offense that Mr. Pate's G~arged with. And I told .

18 y ' ~ J.. 1 · at f i r s t during v_o i_:_.d ire 1 Mr . .-~- -. . -.1~:-·-·'·•··-....';:l" ···:.-·::.<·::• ..·•:-:,.

PatE; did not want t~ 9 b .§__j;_ __D e d w i t h Mr ~ 1-1a11: These cases are to. be cons ide r_~ d ----------------~ ,:.·----~-~

20 s~rately by the. ju-ry .. We we-re· forced iril:o::..this trial --.__ -· ··- 1 t a.g_f:!.l: h e r . Mr. Pate does not want to be sitting at that 22 table with Mr. Hall. Our position is that Chad Pate wa~

'-~--------- 4 an ~::_hi n g ~o do w ~-t, h this . T h~ t ' s our posit i 2-n . ) 25! ----8-~t-I have to look -at t_~_:_do_t~-~.r. ...~-~~-~- See; I don't have the luxury of listening to Ms. Cable argue first and ) then counteract her argument. So I have to anticipate what she's going to say. But I ' l l tell you that the State called twenty witnesses. That's my cqunt. Twenty witnesses. And of tho·s-e···w:Ctnesses, 5.€_venteen of them hac} ~

8 those witnesses ranging from police officers to Tracy W~son and the kids to this gsng expert to the dog ---- ex~ - /

10 a\1 those -- not one of those people hav@ any~iden~

11 all as to what Chad Pate did in the early morn:rng hours --.0 f ---------- January the 4th. ~----------..._ -·) 13 Now, I will tell you that there are ~~o0le(they could have called to show that Chad was associated with these people that committed this cr~me, two people that~

16 they could and should have called if these people -- if these people truly existed and if Chad ~as really there: The two girls at the house on Sawyer Lane, you k~e

19 they showed you the barn with the SS and the circle around 0 it_. Why didn't they call them to say, "Yeah, Chad was """' ---- there"? The only people that say that Chad was there they call seventeen witnesses that didn't have any information about what Chad Pate did on the_ early morning hours of the 4th of January -- were three people. Three _) people were the only people that testified as to what Chad THE STATE OF TEXAS }{ COUNTY OF ARANSAS }{

4 I, SHARON D. ANDERSON, Official Court Reporter in and for the 343rd Judicial District Cpurt of Aransas County, State,, f Texas, do hereby certify that the above and foreg~ng contains a true and correct tra~scription of all portions of evidence and other proceedings requested in writing by counsel for the parties and/or Court to be • included in this volume of the Reporter's Record in the above-styl~d and numbered cause, all of which occurred in open court or in chambers and were reported by me on the designated dates.

15 WITNESS MY OFFICIAL HAND this the day of

16 ----c=t~------' 20_~JL.

~~~SJ~~--- ~N D. ANDERSON, CSR 20 OFFICIAL COURT REPORTER 343rd Judicial District 21 P. 0. Box 700 Sinton, Texas 78387 22 361-364-6202 Cert. No.: 2650 23 Exp. Date: 12-31-10