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On the 23rd and 24th days of March, 200~, the following
APPLICANT
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EX PARTE
RODNEY REED,
REPORTER'S RECORD
VOLUME 2 OF 6 VOLUMES
TRIAL COURT CAUSE NO. 8701-A
)) IN THE DISTRICT COURT))))) BASTROP COUNTY, TEXAS))))))) 21 ST JUDICIAL DISTRICT
, RECEIVED IN .· .:':~~'~'·'1".':/·<''il'·t!
COURT OF CRIMINAL APPEALS'" ...'":.-':\.-
JUL 052006'
- -- - -- - -- -- - -'- - -- - -- - Louise-R~onJ Clerk
. EVIDENTIARY HEARING
i .il· !!' 21' proceedings came on to be heard in the above-entitled and
22 numbered cause before the Honorable Reva L. Towslee Corbett,
23 Judge presiding, held in Bastrop, Bastrop County, Te~as;
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25 Proceedings reported by machine shorthand.
ORtG1NA'L DislrletClerk, BastroP~
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1 A P PEA RAN C E S
2FOR THE APPLICANT:
3 SBOT NO. 24032750Morris Moon
4 Texas Defender Service·412 Main Street, Suite 1150
5 Houston, Texas 77002Telephone: (713) 222-7788
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.SBOT NO. 00000046Morris OverstreetTexas Southern UniversityBox 12817Austin, Texas 78711-0000Telephone: (713) 313-7126
Sandra S. SmalleyLindquist &Vennum, P~L.L.P.
4200 IDS Center80 South Eighth StreetMinneapolis, Mn ·55402Telephone: (612) 371-3958
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14 FOR THE STATE:SBOT NO. 19637700
15 Lisa TannerAssistant District Attorney
16 Bastrop County, TexasAssistant Attorney General
17 P. O. Box 12548Austin, Texas 78711-2548
18 Telephone: (512) 463-2170
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SBOT CO. 24026139Tina DettmerAssistant District AttorneyBastrop County, TexasAssistant Attorney GeneralP. O. Box 12548Austin, Texas 78711-2548Telephone: (512) 936-2893
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C H RON 0 LOG I CAL I N D E X
VOLUME 1
(EVIDENTIARY HEARING)
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4 MARCH 23, 2006
5 Announcements. ~ .
6 Motion for Disqualification ofAssistant District Attorney
7 Lisa Tanner .
8 Lisa Tanner! Direct Statement .
9 Cross Examination.; .
10 Argument by Mr. Moon .
11 Argument by Ms. Tanner .
12 Court's Ruling .
13 Motion for Substitution .
14 Court 's Ruling ; .
15 Recess .
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Vol.
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16 Motion to Limit Issues to be Litigated
18 Court's Rul i ng : .
19 Announcements of Ready ~ .
20 Opening Statement by Mr. Overstreet .
21 Opening Statement by Ms. Tanner .. ~ .
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17 In Evidentiary Hearing . 22
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22 APPLICANT'S WITNESSES
23 WITNESS Direct Cross Voir Dire Page Vol.
24 Calvin Garvie 33 45 2i
25 47 53 2. J
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1 WITNESS Direct Cross Voir Dire Page Vol.
4 Luncheon Recess -
5 Court Reporter's Certificate ; .
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2 Martha Barnett
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2 WITNESS
3 Barnett, Martha
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5 Garvie, Calvin
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ALPHABETICAL WITNESS INDEX
Direct .Cross Voir Dire· Vol.
56 69 '2
101 103 2
33 -45 2
47 53 2
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2 STATE'S
3 NO. DESCRIPTION
EXHIBIT INDEX
OFFERED ADMIITED VOL.
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4 1 Letter
5 2 Statement
6 3 Arrest - DWI
7 4 List of Charges
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85
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1 (Cause Number 8701-A; the State of Texas versus Rodney Reed;
2 21st Judicial District Court, Bastrop County, Tex~s.)·
3 THE COURT: All right, good morning, ladies and
4 gentlemen, we have some preliminary matters to take care of
5 before we begin the hearing that we're set for here today.
6 One of the things I would like to advise all the
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7 members of the audience of is that I do expect that respect
8 will be given to this Court,there will be no talking, there
9 will be no cell phones, recording devices, cameras or any type
10 of that in the audience. There will be no comments on
11 testimony that may be presented from the audience. If you feel
'12 that you have something to say you may do it outside this
13 courtroom, but if you decide to speak out in the courtroom you
14 will be excused and you will note be allowed to come back in.
17 individuals that with us this morning I'm going to ask that the
18 parties stand an~ identify yourself and who you represent.
19 We'll start with Mr. Reed's counsel.
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Does everyone understand that? (Silence.)
All right. Now, in order to identify all the
MS. KASE: Kathryn Kase, your Honor, with the
21 Texas Defender Service in Houston.
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THE COURT: Thank you very much.
MR. MOON: Morris Moon with the Texas Defender
24 Service in Houston.
25 MS. SMALLEY: Sandy Smalley from Lindquist &
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1 Vennum in Minneapolis.
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THE COURT: Thank you.
M'R. OVERSTREET: My name is Morri s Overstreet,
4 I'm a law professor at the Thurgood Marshall School of Law.
7 General and deputized assistant criminal, district attorney." .
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THE COURT: Thank you, sir.
MS. TANNER: Lisa Tanner, I'm Assistant Attorney
MS. DETTMER: I'm Tina Dettmer, Assistant
9 Attorney General and I'm deputized as well.
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10 THE COURT: All right, I believe we have some
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11 motions we need to address prior to the beginning of this
12 hearing.
13 The first motion I would like to address would
14 be the motion that was filed on February 24th of the year 2006,
15 it was tendered to the Court by Mr. Moon. That is your motion,
16 it is a motion that you had sought for disqualificatlon of the
17 Assistant District Attorney Lisa Tanner.
18 evidence to proffer toward that motion?
Do you have any
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20 motion.
MR. MOON: No, Your Honor, we would rest on the
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THE COURT: Response from the State?
MS. TANNER: Yes, your Honor. The State has
23 filed a written response with the Court, it was actually just
24 filed yesterday. I don't know if the Court has had an
25 opportunity to look at it. And, also, in light of one of the
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1 cases we cited in it we would like to -- I would like to
2 testify under oath with regard -- -solely with regard to the
3 issue of disqualification, if I may.
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6 the response.
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8 Monday.
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THE COURT: Okay, you may.
MR. MOON: I don't believe I received a copy of
MS. TANNER: I over-nighted it to counsel on
MR. MOON: Yes, I have it here.
THE COURT: Would you like to take a moment to
11 'look at that, Mr. Moon?
THE COURT: Please do.
(Opposi ng counsel revi ews .ftl ed response.)
THE COURT: All right, you may proceed.
MR. MOON: Thank you for time, Judge.
THE COURT: Do you want to come up here to the
LISA TANNER,
THE COURT: Okay, 'from there is fi ne .
MS. TANNER: Whatever the Court prefers.
THE COURT: . Can you see her from there?
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18 witness stand?
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MR. MOON:
MR. MOON:
Yes, your Honor.
That's fine, Judge.
24 called herself as a witness and having first been duly sworn
25 testified as follows:
1 DIRECT EXAMINATION
10' .
. 2 QUESTIONS BY MS. TANNER:
3 Judge, I would like to state for the record that
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4 my name is Lisa Tanner, I'm an assistant attorney general have
5 been so employed sin February 1st of 1994. I'm deputized as a
6 assistant criminal district attorney for Bastrop County. I was
7 the lead counsel for the State on the case the State of Texas
8 versus Rodney Reed, both at trial and on appeal, and was also
9 the lead counsel on the habeas proceedings, Ex Parte Rodney
10 Reed in State Court.
11 With regard to the issue of the motion fro
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12 disqualification, I would like to state for the record that I
13 was deposed in the federal litigation on October 16th of 2003
14 with regard to any knowledge I had of Martha Barnett or Steven,
15 Keng, and a few other matters that are not relevant for todays
16 hearing. And at that deposition, as I have included an excerpt
17 in our response to their motion, I testified then, as I do now,
18 that I never heard of Martha Barnett prior to, or during, or
19 after Rodney Reed's trial. I never spoke to her. I did not
20 know any of the things that she said she saw. \
21 I did not talk to or was not aware of Steven
22 Keng prior to, or during, or after Rodney Reed's trial. I knew
23 Mr. Keng by face only by virtue of the fact that I had done
24 cases in Lee County, and have never, to this day, spoken to him
25 or Martha Barnett about this case.
2 with Charles Penick about SteVen Keng or Martha Barnett, or··
3 anything that they may have said to him.
4 The first I knew of any .allegations with regard
5 to the suppression of exculpatory evidence with Martha Barnett
6 or Steven Keng ~as when I read it in the table of contents of
7 Petitioner's Federal· Writ of Habeas Corpus. That was my first
8 knowledge of the existence of any of these allegations and/or
9 the existence of these people ..
10 If you look at the affidavits that have been
11 attached, and I believe the testimony will bear this out, the
12 affidavits themselves demonstrate that I had no knowledge
13 before, during or after trial about these people or these
14 all egati ons.
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I never, prior to, during or after trial spoke
Additionally, with regard to the sealed claim
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16 that has been made regarding affidavits made by Mary Blackwell
17 and John Vasquez, you can look at those affidavits and tell
18 that they did not share any of that information with me prior
19 to, or during, or after trial, and I can state the Court
20 unequivocally that they did not share any of that with me prior
,21 to, during, or after trial.
22 The first I knew of the existence of Mary:·1.. '
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23 Blackwell, or also Mary Best, was when I read the claim that
24 was made and the affidavit attached to it when it was served
25 upon the State.
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1 As such, it is my position that I am not a
2 necessary witness for the defense because· I have no knowledge.\
3 If you look at the Rules of Professional Conduct; comment· ten
4 of the rules specifically say that "A lawyer should not seek to
5 disqualify an opposing lawyer by unnecessarily calling that
6 lawyer as a witness. Such unlntended application of this law,
7 if allowed, would convert its true purpose by converting· it to
8 a mere tactical weapon in litigation."
9 Now I'm providing this Court with this
10 information to demonstrate that I am not in· any way, shape or
11 form a necessary witness on anybody's behalf in this particular
12 case here. And I will state to the Court, unequivocally, that
13 it State of Texas has no plans whatsoever to call me as a
14 witness.
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17 Tanner?1
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THE COURT: Thank you.
Mr. Moon, do you have any questions for Ms.
MR. MOON: Yes, just briefly, judge.
THE COURT: All right, you may proceed.
MR. MOON: Judge, actually, before we proceed. i
.. I 21 at this time I would like to invoke the rule, in case there are
22 any witnesses in the courtroom.,
. ! 23 . THE COURT: All right, are there any·potential
24 witnesses either for the State or defense that are present in
25 the courtroom at this time? Will you please approach if you're
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1 in the courtroom. I guess most of you have your witnesses
2 elsewhere; is that correct?
3 MR. OVERSTREET: Yes, that's correct.
4 THE COURT: .Could we bri ng in all the wi tnesses
5 at this time and let me swear everybody and put everybody under
6 the rule .. If you'll get your witnesses and if the State would
7 get theirs, please.
8 MS. TANNER: Judge, we could have one issue with
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9 regard to the rule. I don't know that any of the deputies who
10 are in that this applies to them, however it might. There are
11 several Bastrop County_Deputies that could feasibly .become
12 witnesses. Some of them, I think, could be on security duty so
13 we would 'ask that they be exempt from the rule for obvious
14 reasons. I don't even know if any of the deputies it's
15 applicable to. I don't believe it does, but just in case.
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There is one deputy, Deputy Castello.
THE COURT: And he may be a witness?
MS. TANNER: He has provided an affidavit in the
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19 past so I don't know that he would be, for certain, but it's
20 possible.
21 THE COURT: You might need to trade him out with
22 somebody else then. Is there another deputy that could come in
23 and he could go somewhere else? I would prefer to do it that
24 way so there would be no inference of impropriety whatsoever.
25 (All available witnesses brought before the
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Court to be sworn and placed under the rule.}
THE COURT : All ri ght, I·woul d Ii ke for you to
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3 all state your name foi the court reporter.
4 (Gene Henderson, Texas Department of Safety,
5 Crime Lab; Calvin Garvie, attorney at Law; Misty Wolfe, office
6 of the Attorney General; Jeff Yarbrough, office of the Attorney
7 General; Randy Castillo, Bastrop County Sheriff's Office; Mary
8 Kay Keng; Martha Barnett.)
9 THE COURT: Mr. Moon, is this all of your
10 witnesses that you're aware of at this time?
THE COURT: And your name, sir, is.
PROSPECTIVE WITNESS: Steven Keng.
across the street right now.
(All available witnesses sworn. )
THE COURT: Ladies and gentlemen, the attorneys
There are two more that are comingMR. MOON:11
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17 have requested that rule be invoked. Many of you with law
18 enforcement backgrounds, I'm sure you're aware of what the
19 means but I must tell you on the record that that means you are
20 not to discuss your testimony amongst yourselves pending the
21 outcome of this hearing. You are allowed to discuss this
22 matter with the attorneys who have asked you here today but you
23 are not to discuss this matter with anyone else until you're
24 released from this rule.
25 Does everyone understand?
1 All right, i~ you-all want to go back to the
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2 prospective places you were waiting, and I appreciate your
3 patience. I do·not know how quickly all this will go today so
4 I'll apologize right now if the wait is long, but we are going
5 to try to make sure that we cover all these matters and do it
6 in a just and write manner. So if you get stuck in one of
7 those rooms, I apologize. If you need to get out and walk
8 around just make sure someone knows where you are.
9 Thank you so mUCh.
12 Just state what your name is so we'll have it on the record,
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(More prospective witnesses enter courtroom.)
THE COURT: G~ntlemen, come up here, please.
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(Prospective witnesses sworn and placed under
the rule.)
THE COURT: Gentlemen, the rule has been invoked
17 and that means that you-all are going to have to remain outside
18 the courtroom until you're called in as witnesses. You're not
19 allowed to discuss your testimony with each other or with
20 anybody but the attorneys who have asked you to be here while
21 this case a pending today. Is that clear?
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(Yes.)
THE COURT: All right, thank you very much.
24 Mr. Moon, are you ready to ask Ms. Tanner any
25 questions that you might have, sir?
1 MR. MOON: Yes, thank you, Judge.
16 .
2 CROSS EXAMINATION
3 QUESTIONS BY MR. MOON:
4 Q. Ms. Tanner, did you ever asked Mr. Penick, Charles
5 Penick, about any exculpatory information based upon the
6 defenses' request for such information?
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7 A. Charles Penick has told me -~ I specifically Charles
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14 Q. And that was prior to trial; is that correct?
15 A. The particular time that I recall was ~uring jury
16 selection. He came to me and told me about a woman who had
17 come up to him and mentioned that she had some information and
18 that we needed to get on top of it and we sent our investigator
19 out and took a statement from her, which is in file, and it was
20 provided in discovery. That's the incident that I recall
21 specifically.
22 There were other times we were talking about
23 what was out there', and we woul d di scuss it and deci de how to
24 go about finding out what it was and getting reports or
25 whatever, and what it was.
1 a. Did Mr. Penick at any time mention to you anything
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2 about Martha Barnett?
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A.
a.
No.
And did he ever mention to you·any information to you
5 about Mrs. Blackwell?
6 A. No.
7 a." Now, Ms. Tanner, you were aware that there was a
8 motion for exculpatory evidence by the defense?
And that motinri was granted?
THE COURT: All right, any argument in regards
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Absolutely.
Absolutely.
MR. MOON: I have nothing further.
14 to the motion? Mr. Moon?
15 MR. MOON: Yes, Judge. Just a couple of quick
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.16 points, first of all that this information is material to the
17 claim itself. Because it's a Brady claim the absence of
18 presence of knowledge on the part of the prosecution team is
19 absolutely relevant to the case, just because of the unique
20 nature of the claim. In story claims there might be cases
21 where a lawyer might not have information about the claim, but
22 not having information is materially relevant to this Brady
23 claim.
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24 And so just by the dense of the testimony, and
25 in fact by dense of the necessity to put this testimony on the
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1 record that Ms. Tanner had no information about this claim, in
2 fact, goes to the heart of the claimi which-is dfd the
3 prosecution know of this evidence.
4 Secondly, it's clear that Ms. Tanner has been a
5 witness in this case as she testified that she testified at the_
6 previous hearing, and she was deposed in Federal Court. And
7 whether that previous hearing has bearing on this hea~ing
8 doesn't matter in the whole of the case, she is a witness in
9 the case. I don't believe you can parse the case out by
10 claims. It would be like in a civil case having three causes
11 of action and having a lawyer saying I am a material witness to
12 one cause of action but I'm not on the other so I'm free to
13 litigate the other two causes of action.
14 We're here today on two Brady claims, but
15 they're just a part of the case. And Ms. Tanner has been,
16 clearly, a witness in the other parts of the case.
20 evidentiary hearing. I think what is significant is that I was
21 called to testify by the defense. The defense called me as
22 their first witness without a subpoena, and without any notice,
23 and then the defense did not complain in any way, shape or form
24 about my role in prosecuting that case. There was absolutely
25 no discussion about any qualms or concerns about any duel role
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THE COURT: Response?
MS. TANNER: Yes, your Honor.
First of all, with regard to the previous
19-1 and I have no doubt that Judge Towslee was perfectly capable of
2 del i neati ng between those two rol es. .
3 What all the case 1aw and rul e says is that
4 disqualification is ~ severe remedy, and in order to carry the
.5 burden of disqualifying an opposing counsel'it is incumbent
6 upon the defense to prove actual prejudice to him or that the
7 opposing attorneys would testify adversely to their own client
8 to the State.
9 -I have testified and I now demonstrate to the
10 Court that I have no adverse testimony to the State and that
11 they cannot prove actual prejudice in any way. This is nothing
12 more but a dilatory. tactic to remove someone from the case.
13 If all it took to disqualify an oppQsing counsel
14 was to ask them did you know about something and if they didn't
15 know 'about it, then that's enough to get them off and turn them
16 into a witness, and then you could just about take them off any
17 time you wanted. And that's not what the rule says.i 1·-1
18 Secondly, and I should have mentioned this
19 earlier, I provided a letter to counsel on March 15th of 2006
20 pursuant to Rule 3.08(a)(5) of the Rules of Professional
21 Conduct, which is the provision that states that the lawyer
22 should not be excused if the lawyer has promptly notified
23 opposing counsel that the lawyer expected to testify in the
24 matter and disqualification of the lawyer would work a
25 substantial hardship on.the client.
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1 . And the case law has said that once a letter
2 such as that is provided then thatalle~iates any concern that
3 the lawyer may represent their client. We have provided that
4 letter to them again stating I don't have any knowledge about\. 5 the claims that they've made. And for purposes of the record,
6 if I may introduce that.
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-THE COURT: Would you like to have it marked?
MS. TANNER: Yes, I would.
THE COURT: All right.
MS. TANNER: The State would offer State's
11 Exhibit Number 1.
12 (State's Exhibit No.1 offered into evidence.)
13 MR. MOON: We received a copy of the letter,
14 Judge.
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THE COURT: Do you have any objection?
MR. MOON: No objections.
THE COURT: It will be admitted.
(State's Exhibit No.1 admitted into evidence.)
MS. TANNER: Judge, it's the State's position
20 that the witness advocate rule is primarily concerned with
21 issues where you have an opposing counsel who wants to testify
22 in front on the jury. All the case law has said that a trial
23 court is more than capable of making that delineation as to
24 whether a lawyer is acting as a lawyer or as a witness.
25 Quite frankly, they can call me as a witness but
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1 I don't have any evidence to give them, so therefore I'm not a
2 -necessary witness on their-behalf, I'm not a necessary witness
3 on the State's behalf, so as such I see no reason for
4 disqualification.
5 THE COURT: All right, having reviewed the
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6 motion by defense counsel as well as the State's response it is
7 the Court's opinion at this time to deny that motion and she
8 will not be removed from this case.
9 All right, the next motion I have is a Motion
10 for Substitution of Counsel filed by Ms. Kase asking that she
11 be released from this hearing and allowing Judge Overstreet to
12 come in as part of counsel that is assisting Mr. Moon.
13 Is there any objection from the State's
14 attorneys in regards to this motion?
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MS. TANNER: No, your Honor.
THE COURT: It~s granted.
Ms. Case, you are released from your obligations
18 with that done.
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MS. KASE: Thank you, Your Honor.
THE COURT: All right, I also have in the
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21 Court's file a Motion to Limit the Issues to be Litigated in
22 This EVidentiary Hearing on a Subsequent Application for Writ
23 of Habeas Corpus .
Mr. Moon, have you received is a copy of that?
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25 MR. MOON: Yes, I have, your Honor.
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THE COURT: All right. Do you have'any response
2 to that motion?
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(Defense counsels disttissing issue:)
THE COURT: Do you' need a moment?
MR. MOON: Yes, your Honor.
THE COURT: We're going to take a -- let's t~ke
7 about a five-minute recess and then y'all need to be able to
8 respond to that and then we'll go on from there.
9 (Recess.)
10
11 forward.
MR. MOON: Judge, I apologize, we can go
12 THE COURT: All right, so you've had an
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13 opportunity to review the State's Motion to Limit the Issues to
14 be Litigated in the EVidentiary Hearing on Second Subsequent
15 Application for Writ of Habeas Corpus. Do you have any
',16 response as to that motion?
17 MR. MOON: Well, Judge, we understand that the
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18 CCA sent this back solely limited to the two Brady claims that
19 were in the subsequent application.
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THE COURT: All righ~.
MR. MOON: And we agree that it is limited to
22 those two Brady claims, and we intend to put on all the
23 evidence we need to prove each prong of the Brady claim.
24 THE COURT: So, in other words, you agree with
25 their characterization of this hearing's parameter should be?
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1 MR. MOON: Well ,I guess I have· to honestly
·2 say, Judge, that I wasn't really clear on what the
3 believed the parameters here were.
what they
4 THE COURT: I can tell. you that it appears to me
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5 that they have tracked the order that I received from the·Court
6 of Criminal Appeals stating that that is exactly what I'm going
7 to do, so I'm going to tell you-all that it is my intention to
8 follow the characterization in the State's motion; and, of
9 course, at any time if you-all feel that perhaps the order from
10 Court of Criminal Appeals reaches further than that, I'll.be
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11r:iL·: 12C--:'"--~
13Ii1'.1l )
14
happy to entertain information you wish to share with me in
regards to that.
MS. SMALLEY: Your Honor, may I respond?
THE COURT: Yes, ma'am, but before you do that,
15 I have to you had a motion -- you're not a licensed Texas
16 attorney; correct?
. j
17
18
19 it, rna' am .
20
21
MS. SMALLEY: That's correct.
THE COURT: And you're licensed in what state is
MS. SMALLEY: Minnesota.
THE COURT: Okay. And you're asking that I
22 allow you to appear in order to aid in the defense of Mr. Reed
23 in his ex parte motion here today?
)
24
25
MS. SMALLEY: That's correct, yes, ma'am.
THE COURT: Has the State had an opportunity to
24
1 review her motion?
2 MS. TANNER: I have not received a copy of it
3 but I saw it in the·Court's file yesterday and We have no
4 objection.
5 THE COURT: All right, I'm going to grant that.i , \
6 And just formality-wise, yes, I needed to do that first.
7
8
Now, yes, ma'am, you may proceed.
MS. SMALLEY:· Thank you, your Honor.
CiI 'Ll
9 I would like to mention that if the Court is
10 going to stick with the characterization of the two Brady
11 claims, there is an element of proof that goes to prejudice,
12 and that proof relative to prejudice stems from the suppression
13 of those affidavits .. So just so we don't have a very dogmatic
14 understanding of what that second characterization is.
15 Certainly, part of our p~oof is going to go to what our
16 obligation is to prove up the Brady claim. That element· of
17 prejudice is -- that results from the suppression goes broader
18 than just the basic affidavits. And we anticipate the Court,
19 and the prosecution, does not interpret these characterizations
20 as to somehow limit our ability to prove up the Brady claim.
21 THE COURT: Okay, I'm -- I think I understand
22 what you're saying, but basically let me tell you what the
23 Court is going to do; I have been given a very specific job
24 today, and my orders come directly from Court of Criminal
25 Appeals. The requirement that I'm going to be following today
I!" .. ,
25
1 are such: They have reviewed the application and they did
2 remand it to me in· regard to the applic~nt's Brady·allegations
3 regarding.the Barnett and Keng affidavits and the items
4 submitted under seal that you all submitted. That is the
5 evidence I will be entertaining today~ and that is my orders
6 from the Court of Appeals and that is read directly from their
7 order. All right? So doy'all understand that?
8 The order that I got from the Court is the one
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9 I'm going to follow. And how the evidence -- since I'm not
10 quite sure what your items under seal are, I guess we're just
11 going to have to -- other than everything I've read under seal,
12 I believe it is set forth and we're goi~g to determine whether
13 or not these affidavits have a bearing on your Brady claims and
14 we· will progress from there.
15 I think we're all saying the same thing ..
. I
16 Basically, you-all have some information you need to share with
17 me in order for me to do my job, to gather this information and
18 to send it back to the Court of Criminal Appeals. That's what
19 I'm going to do.
20 MS. SMALLEY: And, your Honor, we have discussed
21 in our papers what evidence was suppressed.
22 THE COURT: Yes.
23 MS. SMALLEY: And as a result there was
24 prejudice to the defense. That prejudice does require some
25 broader proof.
1
26
. THE COURT: I understand what you're saying, and
2 we'll go ·from there.
3 All right, so I granted your motion to allow you
4 to come in and practice about before this Court.
5 Ms. Tanner, do you have any response to what
6 they're saying, or any other clarification in regards to the
7 motion that you filed?
8 MS. TANNER: No, Judge, I think the parameters
'11 ,/i
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9 the Court has indicated precisely the parameters I was asking
10 for.
11 THE COURT:, All right, and please understand now.
12 that I'm going to ask is there any other matter that I need to
13 take care of as far as preliminary matters before we proceed to
14 the job that the Court of Criminal Appeals has sent us here to
15 do today?
16
17
18
MR. MOON: No, Your Honor.
THE COURT: Anything from the State?
MS. TANNER: Judge, I have two house-cleaning
,( ,I !
19 matters. First of all, I have a little bit of discovery to
20 provide to counsel and I wanted to do that on the record. I've
21 just tendered that. It's five taped statements and 22
22 affidavits.
23 Secondly, I don't know if this is the
24 appropriate time or not to ask the Court to take judicial
25 notice of the previous proceedings that have occurred in this
27-
1 case, that's probably going to. be relevant to the issues of
2 materialityand·prejudice~·
3
4
THE COURT: Okay, that would be so noted.
MS. TANNER: We would ask the Court at this time
!L-.i
5 to take judicial notice of the following: The file transcript
6 . in The State of Texas versus Rodney Reed, cause number 8701; .
7 the evidence admitted in the State of Texas versus Rodney Reed
8in cause number 7801; the application for writ of hab~as corpus
9 in State Court in Ex Parte Rodney Reed, 8701-A, and the State's
10 answer to same; the supplemental application for rite of habeas
11 corpus that was filed in Ex Parte Rodney Reed i and the State'·s
12 answer to the same; the transcript of the evidentiary hearing
13 from March 15th of 2001 in Ex Parte Rodney Reed; the exhibits
14 introduced in that hearing in Ex Parte Rodney Reed on
15 March 15th of 2001; the trial court's findiMgs of facts and
16 conclusions of law that have been issued in Ex Parte Rodney
17 Reed.
18 We would ask the Court to take judicial notice
19 of those things.
20 THE COURT: All right, so noted.
21
22
Mr. Overstreet, do you have a comment?
MR. OVERSTREET: Well, that's very broad, and
23 without the 'State telling us the relevance of why they want the
24 Court to take jUdicial notice, then I would just have a general
25 objection that it's not relevant.
28-1 THE COURT: Well, let me get you some
2 clarification. Ms. Tanner, what· is your purposes?'
3.
MS. 'TANNER: My purpose is that there will be
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4 point~ in time with regard to the materiality and prejudice
5 where things that came in before the jury may become relevant,
6 and I'm asking the Court to simply take judicial notice of
7 previo~s proceedings in this case, and I do that solely because
8 of the issue of the Court not being the trial jUdge, and I'm
9 asking solely for that purpose.
10 MR. OVERSTREET: Well, .what I hear her saying is
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11 that it would be e~sier to do it that way. But I don't want to
12 be stuck with everything that happened before and have a record
13 before the appellate court that I've not objected to it, in
14 terms of the written proceedings. The statement of facts from
15 the trial proceedings, I probably don't have any problems with
16 the Court taking notice of that. But the responses to the writ
17 of habeas corpus, and arguments at those hearing, I object to
18 as not relevant and would object to the Court taking judicial
19 notice of them.
20 MS. TANNER: Judge, if I may respond with regard
21 to one aspect of this. The Court of Criminal Appeals have
22 adopted the findings of fact and conclusions of law that were
23 signed by this previous trial Court, and we think it's
24 appropriate because of that this Court may take judicial notice
25 of those.
29
1 THE COURT: All righf, so noted and will be so
2 ordered. And please understand that my specific job is to do
i, ,
3 what the Court of Criminal Appeals has sent me today. I am not
4 going to be ruling on the final outcome of this case or the
5 final outcome of this write, I am a fact finding arm of the
6 Court because they do not receive evidence and therefore it
7 comes back to the trial Court to take care of that for them.
Anything else?
MR. OVERSTREET: Note our objection.
THE COURT: It is so noted. Is there anything
8 Thank you.
9
10
11
12 else?
13
14
MS. TANNER: Nothing from the State.
THE COURT: All right, then let me formally call
15 this then, I've already had announcements as far as parties.
16 This is in cause number 8701-A, Ex Parte Rodney Reed. We're
17 here today on March 23rd of the year 2006, due to the request
18 and order of the Court of Criminal Appeals that this trial
19 Court receive evidence in regards to the application of the
20 writ of habeas corpus that they had reviewed. We're going to
21 consider evidence, as I stated earlier, and I'm reading
22 specifically from the order from the Court: In regards to the
23 Brady allegations regarding the Barnett and Keng affidavits and
24 the items submitted under seal that satisfy the requirements
25 according to the Court under Article 11.71 Section 5.
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1 .Accordingly, they_are asking me to take a look
30
,-,~ . i
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2 at these claims, to receive live testimonial eVidence'andat
3 the conclusion of this hearing I shal~ make findings of fact
4 and conclusions of law relevant and appropriate to the
5 disposition of these claims, and a transcript including all
6 documentary-evidence and the transcription of the court
7 reporter's notes from all he~rings, along with my trial Court's
8 findings of fact and conclusion of law shall be returned to the
9 Court. Do y'all understand that?
10 Also, at the conclusion of this hearing please
11 do not that the Court will ask that both sides will send to the
12 Court proposed findings of fact and conclusions of law for me
13 to consider.
14 Now having said that, what says the defense in
15 this matter? Are you ready to go forward?
16 MR. OVERSTREET: The defense is ready to go
17 forward and request at least an opportunity to make some form
18 of opening statement to the Court.
19
20
21
THE COURT: Okay, thank you. The State?
MS. TANNER: The State's ready, Your Honor.
THE COURT: I'll be happy to entertain that
22 statement at this time.
23 MR. OVERSTREET: For the record my name is
I \I •
24 Morris Overstreet and I represent the defendant in this case,
25 or the applicant, Mr. Rodney Reed.
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31
What the defense expects the evidence to show is
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2 that the primary attorney appoint to represent the defendant·in
3 the case in chief was appointed on or about October 22,1997,
4 and that a second attorney was appointed on January 29, 1998.
5 That's less than six months that this case went to trial, from
6 the date of appointment.
7 We expect the evidence to show that one of the
8 motions filed by the defense was a motion for exculpatory and
9 mitigating evidence. That the elected prosecutor and the
10 appointed prosecutor were aware that that motion had been filed
11 and that t~e Court had ordered exculpatory or any mitigating
12 evidence turned-over to the defense prior to trial.r·'"'>i[ I
., )
13 The Court's order was a continuing order. Not
18
19; ;
~ .l20
21
22
23. :
14 only the information that they had at the time the motion was
15 filed and the hearing was had and the JUdg~ ordered it, but any
16 i nformati on that may have come to the. prosecutors even that
17 there was a requirement that they comply with that motion.
We expect the evidence to show that the elected
prosecutor for Bastrop County, Charles Penick, received
information from a credible source, or former colleague, Mr.
Steven Keng, who is a former elected county attorney in Lee
County, that there was a witness who could identify and place
the victim and her then boyfriend, Mr. Fennell, at a place
24 close to Bastrop shortly before her death. That he made that
25 information aware to the person who is in charge of the
1.
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1 prosecution and that it was exculpatory in nature, knowing full
2 well that the boyfriend Fennell had been excluded because of an
3 unlikely logistics that he could have come from Giddings to
4- Bastrop and made it back to· Giddings. A crucial piece of
5 exculpatory evidence that the defense was never made aware of
6 that witness or that information.
7 We expect the evidence to further show how the
8 State's failure to provide that information but to basically
9 withhold that information affected this entire process in terms
10 of the strate~y, the investigation and the outcome of this
11 lawsuit. That's what we expect the evidence to show in this
12 case. And that once that information was withheld from the
13 defense team they embarked on a strategy' that led to the
14 conviction of this defendant.
15 We also expect that that evidence not being
16 provided to other law enforcement agencies led to the exclusion
17 of who we believe is the person who committed this offense.
18 That's what we expect the evidence to show in this case.
19
20
21
THE COURT: Okay, thank you, sir.
State?
MS. TANNER: Judge,· if I may, very briefly.
22 I would simply like to state that at this
23 hearing it's incumbent upon them, in order for their to be
24 relief from another court, to prove that the evidence was
25 withheld and that it was material. And we believe that when
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33
1 ,the Court hears all of the evidence before it that they will
2 fail on both counts. ,They will not be able to ,prove it because
3 it was not withheld, and it was not in the possession of the
4 State. Therefore the'State could not have withheld it because
5 the State didn't have it.
7 and make reasonable deductions therefrom it would be clear that
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6 Secondly, if you look at the evidence factually
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8 the evidence would not have made a difference, that it was not
9 material, that it is not credible, and that it is highly
10 suspect. I think that's what the evidence will prove.
13 we get to the evidence, ladies and gentlemen. Are you ready to
14 call your first witness?
15 MR. MOON: At this time we call Calvin Garvie.
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12
Thank you.
THE COURT: All right, having said that, shall
16 THE COURT: You are the first witness of the
17 day, sir, and I· have turned on the microphone.' If you will
18 speak into it so everyone can hear you.
19 CALVIN GARVIE,
20 called as a witness and having first been duly sworn testified
21 as foll ows:
22 DIRECT EXAMINATION
23 QUESTIONS BY MR. OVERSTREET:
24
25
Q.
A.
For the record would you please state your name?
Calvin Garvie.
34
Q. . lim glad yqu speak up loud and clear, I don't hear as
well as I used to and I appreciate that,·and: I'm sure the ·court
reporter does to.
Mr. Garvie, my name is Morris Overstreet and I'm
representing -- one of the lawyers representing the defendant,
6 or the applicant, in this case, Mr. Rodney Reed. Were you
7 appointed by this court or a court to represent Rodney Reed in
8 cause number 8701 in the 21st Judicial District of Bastrop
9 County?
17 October 22nd of 1997?
A. Yes, sir.
A. Yes, sir.
Q. Now at some point in time was a second lawyer
Now do you recall that you were appointed aboutQ.
Q.' And was that for the offense of capital murder?
appointed to assist in the case?
A. Yes, sir, Lydia Clay-Jackson.
10
11
12
13
14
15
16t .t,j
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18 A. I don't remember the time that I was appointed, when
19 we began the appointment, exactly, but that sounds about right.
20 Q. Now did you file motions in preparation for tryingI
!, : 21 this case?
22
23
A.
Q.
Both attorneys did.
Do you recall filing a motion for discovery of
24 exculpatory and mitigating evidence?
25 A. Yes, sir, I believe I did file that.
35
1· Q. " And do you know whether or not that motion was
I'm certain that they
No.
Do you have any reason to believe that it was not
A. I don't recaJl, particularly.
Do you recall receiving any exculpatory or mitigating
evidence from the State prior to trial?8
9
2 granted-by the Court?
I believe the Court did grant that motion.3 A.
4 Q.
i':;i 5 granted?ij
6 A.
7 Q.
1 j,
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10 would have given me something. I don't recall particularly -
11 particularly if you say mitigating, yes,. they may have given me
12 something mitigating. But I can't say that they never gave me
13 anything, that wouldn't" not be accurate.
15 were you made aware by different attorneys who were
16 representing Rodney Reed of a witness whose name was Martha
17 Barnett as well as witness whose name is Steven Keng, a former
f.11.-~
14 Q. Now at some point in time after this case was tried,
Lee County attorney?
A. No. Let me rephrase that. Those particular names, I
did not know of until earlier this week.)"1:~_J
18
19
20
21 Q. Were you made aware of an affidavit given by Martha
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22 Barnett in which she disclosed that she saw the victim in this
23 case, along with a man she identified as Fennell, at a location
24 in Paige, which is along the route from Giddings to Bastrop on
25 the morning of the victim's demise?
, I
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2
A.
Q.
36
Absolutely not.
Now when you say absolutely not. Are you saying that
3 the prosecution never revealed the existence of that document?
4 A. They never revealed the existence of that document,
5 or of any of those people, actually.
6 Q. Did they reveal to you that there was a witness who-
7 saw the victim and Fennell at a location on the morning,of the
8 victim's demise?
9 A. No.
10 Q. If they had given you that information would you have
11 remembered it?
12 A. Certainly.
13 Q. Would that have affected your trial strategy in this'
14 case?
15 A. It would have made a big difference in our case. Mr.
'Ir. )
16 Fennell was one of the main suspects in this case, originally
17 by the State and also by the defense. And I believe his
18 statement had been that he had been at home all of that
19 morning~ and I believe he said he had received a call later in
20 the morning that woke him up, or something to that affect, and
21 so he had been at, home when Ms. Stites had left that morning.
22 Q. Would you consider that bit of information at least
23 impeachable information of his testimony at trial, that he was
,24 at home between the hours of 3 and 5 o'clock in the morning
25 asleep when the victim left Giddings?
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1 A. . I thi nk it woul d have been very cri ti cal to the
2 defenses' case. From a defense prospective· the whole case is
3 based on reasonable doubt. The State actually has to prove
4· guilt or innocence. The defense has to prove reasonable d6ubt
5 that the man was guilty, and obviously if one of the lead
6 suspects in the case is caught in a lie that he has no ·reason
7 to lie. You know, this is his fiance, he would certainly have
8 known on the morning of her death if he had seen her or not.
9 And so that certainly, in my opinion, would be very critical to
10 the case.
'.:),11 Q. During your investigation in preparing fortri,al, did
12 you become aware that Fennell was. excluded as a potential
13 suspect in this case?' . .1: I
: !'_. ;
14 A. I believe he had been excluded on the DNA. And if
15 that means the same thing, the answer to that question is yes.
.16 Q. Let me ask it a different way. Were you aware if he
17 was excluded because a Texas Ranger or any other investigating
18 officer coming to believe that it was almost impossible for him
19 to leave Giddings, Texas, go to the scene where the body was
20 found and to make it back to Giddi·ngs, Texas, to receive a
21 phone call from the victim's mother?
22 A. I think there was some suggestion of that at some
23 point from either law enforcement or the State, yes.
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24
25
Q.
A.
Some suggestion of what?
That the distance was too great for him to have
38
1 traveled, but I think it also went in with the fact·that he
2 said he was at home asleep.
Q. Now would
A. And I might add that he' was also an officer.
Q. Is it your beli'ef that opinions may have changed if
someone had placed him near Paige, Texas, between the hours of
4:30 and 5:30 a.m.?
3
4
5
6
7
8 MS. DETTMER: I'm just going to object on
9 speculation. First of all, we don't know whose opinion he's
10 talking about. Is he talking about law enforcement opinions
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11 changing or jury's opinions changing, that's speculation on his
12 part as to whether or not that would have changed whether or
13 not they had that inform~tion.
17 the defense team, investigate whether or not it was possible
18 for Fennell to go from Giddings, Texas to near Bastrop and back
19 to Giddings, Texas based upon the time the truck was spotted
20 and when he said the victim left home?
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14
15
16 Q.
MR. OVERSTREET: I'll rephrase the question.
THE COURT: Please do.
(By Mr .. Overstreet) Did you, yourself, as part of
21 A. Yes. There was a discussion about that, several
'22 di scussi ons, and al so the investigator was i nvol ved in that
23 discussion.
24
25
Q.
A.
And what was your conclusion?
I did not -- you would have to assume that if he was
. i
39
teiling the truth, first of all, and we did not believe that he
was telling the truth~
a.. Assuming that you believe he was telling the truth,
in terms of the time line, did you-all conclude it was possible
or impossible for him to leave his residence, go to the scene
where the body was found and return to the residence in
Giddings, Texas?
A. We believed it was possible because the only person
9 who could document the time that he was at home was himself.
10 Nobody else was there wi"th him. So a~suming that he was at
11 home, you would have to assume that he was telling the ,truth.
12 And, as I said, we had some serious questions about his
13 credibility.
15 witness, Martha Barnett, whose testimony or affidavit would
16 have placed him in Paige, Texas, would that have made a
17 difference in your calculations?" ",jl "".J
14
18
19
a.
A.
a.
If you had been provided information of a potential
Certainly.
Okay. And what would that difference have been,
20 generally?
21 A. It would have made a difference because you would
22 have a person who was lying about being at "home, first of all,
23 and if they're lying about that, they could have been anywhere.
24 I mean, for all we know they could have still been in Paige
25 instead of that home and the distance would not have been as
40
1 great as previously thought.
2 Q. And so in your opinion· would that make· the time· lines
, ~ i
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3 more believable?
4 A. It would have made the time lines more believable,
5 and the fact that she had seen both of them together would have
6 made a huge difference, because she would have also been
7 putting the victim there around that time.
8 Q. What difference would it· have made in your trial
9 strategy?
10 A. Again, Mr. Fennell's credibility was at issue. It
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11 was not unlike the -- many of the.other suspects. He would not
12 have had the motive of rape or anything like that, if he was
13 actually just killing her. So the fact that he was excluded by
14 DNA would not have made a difference. So it would have made a
15 very big difference because he was a suspect. Essentially, his
16 testimony was that Ms. Stites left the house, he stayed there,
17 and he never left. If that changes to where he's lying. about
18 them being at home together, then certainly what else is he
19 lying about? And why would he lie about something that he had
20 no reason to lie about?
21 Q. But how would it have changed your strategy if you
22 were able to substantiate a witness seeing him with the victim,
23 him being Fennell, in Paige, Texas? Are you familiar with this·
24 route?
25 A. Uhh --
41
1
2
Q.
A.
-
Have you been this route?
Somewhat. It's beensome:time but somewhat. ·1 know
3 exactly where Giddings is and I know where we are now, but it's
4 been a while. But obviously, if the distance and the time
5 changes
6 Q. That's not my question. My question is, are you
7 familiar with a route that takes you from Giddings, by highway
8 21, and then highway 21 to Bastrop?
9 A. 1.have traveled that road before, yes.
10 Q.. And would you say that Paige is substantially closer
to Bastrop than Giddings is to Bastrop?
A. Yes, I believe it's closer.
11
12
13 Q. And if you had been made aware that a witness saw
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14 Fennell and the victim in Paige, would that have made a. ,
15 significant difference in how you went about developing your
16 strategy for your defense in this case?
17 A. Yes, it would. There were several things that would
18 ·have been called into questions under those circumstances.
19 Q. Now other than his credibility, what are those
20 things?
21 A. Well, I think you would have to go back and take
22 another look at, for example, the time of death. You would
23 have to take another look at other aspects related to Mr.
24 Fennell.
25 Q. Okay, is that what you would have done? I want to
. _42-
1 know what you would have done differently?
2 A. Certai n1 y, I wou1 d .have pursued and looked at every
3 angle. If that information is dropped in your lap, or
4 whatever. it's incumbent on you to pursue that angle.I
5 Particularly since., as I said, .before we ~ade this individual
6 suspect the State considered him a suspect at one time.
7 Q. Are were you aware the State eliminated him as a
8 suspect?
9 A. Yes, si r,· I was aware of that, and my understandi ng
10 was because of the DNA and the time frame.
11
12
13
Q.
A.
Q.
Did you eliminate him as a suspect?
No.
All right.· What did you do to establish him as a
14 suspect?
15 A. We ran down information -- I believe we actually sent
16 an investigator to Giddings to check on some records regarding
17 Mr. Fennell; also, when he was cross-examined of course -- and
18 I didn't actually do the cross-examination, my co-counsel,
19 Lydia C1ay-J.ackson did the cross-examination. But we certainly
20 took steps to establish things. The problem was that the only
21 person at that time who could establish where he was, was him.
22 But if somebody else, an independent witness who had nothing to
23 do with the case says I saw this guy at another time outside
24 the house, and not only outside the house but with the young
25 lady who was killed in this case, it's a huge difference.
1 Q. Let's assume that in response to your motion for
'43
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2 exculpatory evidence, the prosecution··revealedto you that
3 there was a witness who may have seen Fennell and. the victim in
4 Paige, Texas. What would you have d0rle if they just gave you· .
5 that information?~ " ..~
6 A. We would have immediately followed up on that and we
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7 would have talked to witness. We would have ran down anything
8 else that corroborated anything like that. For example, say if
9 there was somebody else at the store, of if the store was open,
10 or anything like that then we would have corroborated that.
11 But most importantly, it would have given us the poor to
12 impeach his testimony that he was at home the whole time. And
13 this is his fiance, it was the day of her death, there would be
14 no reason for him not to remember that.,
; 1 15 Q. Have you since seen the affidavit given by Martha
16 Barnett?
17
18
A.
Q.
Yes.
What is your professional opinion, your legal
19 opinion, as to whether or not a failure to have that
20 information before trial, either it was harmful of had no
21 affect on this case?
22 MS. DETTMER: Your Honor, I'm going to object to
23 that. That's a legal question to be decided by this Court. He
24 can obviously testify as to how it would have affected his
25 strategy, what he would have done differently, but to testify
44
1 ultimately to the issue that is before this Court I think is
2 improper in this case. I. think that's for·this(Courtto decide
3 not for this w;-tness to determine how it would have affected
/
4 the jury.
5 MR. OVERSTREET: I think the record reflects
6 that this witness has been a·lawyer for more than 20 years.{, ..,
[: : 7 You're right, it is a legal question, but he's a lawyer and I-.: !
8 think there is a presumption he has some expert and experts are
9 entitled to give their opinion under the rules of evidence.
10 And all I'm asking him is in his opinion was it harmful to his
11 case.C".;i i1."__ 1 12 MS. DETTMER: And, your Honor, without·
• 1;
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13 discrediting Mr. Garvie's experience, which I'm sure is
14 tremendous, but there is actually case law on this very issue
15 of having witnesses testify to the ultimate conclusion and
16 there is suggestion from the courts that they disfavor this
17 kind of evidence. And that is ultimately up to the Court to
18 decide that -- and not only that, I mean, he is a lawyer and he
19 has done many things but he has not been proffered as an expert
20 in this particular field.
21
22 sustained.
THE COURT: All right, your objection is
23 Q. (By Mr. Overstreet) Without the affidavit, or
24 without notice of the information, were you able to do all that
25 you could do for Rodney Reed in 'defending him?
1 A. No, we were lacking a critical piece of evidence,
45
2 that the prosecution had and didn't turnover to· us.
3
4
5
MR. OVERSTREET: I.pass the witness.
MS. DETTMER: May I have one moment, Your Honor?
THE COURT: Yes, you may.
6 CROSS-EXAMINATION
7 QUESTIONS BY MS. DETTMER:
8 Q. Mr. Garvie, my name is Tina Dettmer· and I'm an
; .-!
9 attorney with the Attorney General's Office. I wanted to ask
10 you some questions about your testimony here today.
11 You said that this information was criti6al and
12 one of ·the reasons it was critical was because it was important
13 to y6ur ability to impeach the testimony and the credibility of
14 Jimmy Fennell; ii that correct?
15
16
A.
Q.
Yes. That was one of the phases,. yes .
Now your ability to impeach Jimmy Fennell's
17 credibility with testimony from another witness would
18 necessarily depend on the credibility of that witness himself,
19 would it not?
Or how the jury viewed that particular witness.20
21
A.
Q. Exactly. So if your witness if the witness's
22 testimony was incredible or impossible to believe that would be
23 'detrimental to your ability to effectively cross-examine Jimmy
24 Fennell with this information; correct?
25 A. As to impeachment, yes; as to reasonable doubt, no.
.46
1 Q... Okay. Now you testified that you have reviewed the
2 affidavit·of Martha Barnett?
3
4
A.
Q.
Yes.
And that she was able to place Jimmy Fennell in
5 Paige, Texas with Stacey Stites; is that correct?
6
7
A.
Q.
That's correct.
Okay. Would your ability to us this information to
8 assist Mr. Reed depend.upon the viability of her testimony?OJ
9 A. Well, certainly, but of course the jury is fre~ to
10 believe or disbelieve whomever they want, on any witness.
11 Q. Okay. And would you not have had to investigate her
f ;l ;
12 testimony to see whether it was in fact even possible for what
13 she said she saw to be seen?
f5 would come up, but if the witness sits on the stand and tells
.16 the jury that then it woul d be up to the j ury to deci de if
17 she's telling the truth or not.
; 1-. !
t '.
14
18
A.
Q.
Well, certainly, that would be one of the phases that
Okay.
- j
19 A. But the jury would also look at their motives and why
20 they're here, and do they have anything to gain and all tha~
21 kind of stuff.
22
23
Q.
A.
Exactly.
And if you had a witness that didn't have anything to
24 gain,
25 it.i,
that, I think, would playa role in how the jury looked at
1 Q.
47
Okay, so by that token, if the jury were to see from
2 the testimony that the witness Martha Barnett had something to
3 gain or had lied, that would affect her credibility in front of
4 the jury, correct?
5
6
A. I think it would affect her credibility.
MS. DETTMER: I'll pass the witness.
7 REDIRECT EXAMINATION
8 QUESTIONS BY MR. OVERSTREET:
9 Q. Well, just to explore this area of cross-examination.
IL .'
10 Are you telling this Court the only thing you would have done
11
12
with this information is to impeach Jimmy Fennell?
A. No. Again, the questions were related to
i-II i(,
13 impeachment, but that and other affidavits. I mean, you
14 know -- again, the goal is reasonable doubt. And if a witness
15 sits on the stand and says "this guy", in so many words you
16 would have to say one or the other of them were lying, and he's
17 a suspect.
18 Q. Give us an idea of what you would have done other
19 than impeachment?
20
21
22
A.
Q.
Well, there were
How would you have focused on him as a suspect?
MS. DETTMER: Your Honor, I object, this has
23 been asked and answered on direct examination.
j -24
25 on.
THE COURT: I believe that's correct, let's move
1 MR. OVERSTREET: I'm sorry, what was her
48
2 objection again?
3
4 Q.
THE COURT: It's been asked and answered.
(By Mr. Overstreet) Did you have any reason to ask
5 the experts who assisted you to focus on the possibility that
6 someone else could have committed the crime?
7 A. ' Well, certainly we focused on other possibilities,
8 but Mr. Fennell would have become much more compelling given
9 what we now know.
A. The experts would have tracked -- looked again at the·
time of death. I believe, for example, the autopsy was done
'" ,1:.1t:---!
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10
11
12
Q. How would you focus on him with your experts?
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13 like a day later, or something like that. We had been given
14 information, I believe at one time, that the body hadn't been
15 moved but I believe it actually had been. But the point was
16 that Mr. Fennell's credibility was central as to whether or not
17 he should even be a suspect. And if you present it to a jury
18 that this guy is flat out lying and he has no reason to lie,
19 that changes a lot of things.
20 Q. Would you agree with the State's conte~tion that they
21 get to decide the credibility of the evidence before they turn
22 it over to you?
23 MS. DETTMER: Your Honor, I'm going to object, I
24 don't think that we characterized that or we made that
25 statement in our cross-examination. I believe that what I
49
1 asked was would hi~ assessment of his credibility factor in,
2 not the State's assessment of his credibility.
3 THE COURT: . I'm going to overrule that.
4 MR. OVERSTREET: Well, I guess the record
5 reflects ~hat was said.
6
7 'question.
MS. DETTMER: I would ask that he reask the
8
9 a.THE COURT: That would be most helpful.
(By Mr. Overstreet) Is it your understanding that
10 there has to be a determination of the credibility from the
11 evidence before a decision is made whether to comply with a
12 court order?
13 A. No, if it's exculpatory evidence there's no
14 discretion, the State absolutely has a duty to turn it over,
15 without exception.
l': I
I16 a. Did you ever ask the prosecutors in charge of. this
17 case whether or not they had any exculpatory evidence prior to
18 trial?
19 A. If you're asking me do I remember specifics incidents
20 where we sat down and did that, no. But I'm sure we would have
21 asked that. I'm sure that we would have had discussions about
22 that, because of the critical nature. I mean, this is capital
23 murder case, a guy's life is on stake. Any piece of evidence
24 that is favorable to him either in punishment or guilt or
25 innocence absolutely has to be turned over. The prosecutor has
50·
1 a duty to do that.
2 Q. Do·you recall about howmuch·time elapsed between the
3 day you were appointed to represent the defendant and the day
4 -you went to trial?'., .. ,, 5 A. If you say it was in October of '97, I believe the
6 trial started somewhere around March of the next. year. And I
7 think the verdict came in, in May. Actual around the time of .
8 my birthday, so I certainly wouldn't forget that. So that
9 period of time, which was basically a few months.
; 13 day you were appointed or shortly thereafter until you went to
14 trial?
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rlL.Ii )I I! ,-: :.i
10
11
12
15
Q.
A.
Q.
A.
Did you have an investigator working with you?
Yes.
And did the same investigator work with you from the
One of them did.' I believe we got a second
t·:;
:---!~. t
16 appoint -- I believe essentially around the time our
17 continuance was denied we were allowed to have a second
18 investigator for trial.
; !U
19
20
Q.
A.
And what was the purpose of the continuance?
We felt like we needed more time to prepare for the
21 case. I suppose at one point we thought it would be moved, it-
22 wasn't moved. We had to relocate to come here.,i. i'. I 23 MS. DETTMER: Your Honor, we just object to the
24 relevance of this. I'm not sure where he's going.
I
II
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, I, I__.. J
25 THE COURT:· I understand. I'm goi ng to sustai n
51
1 the objection, but he's already answered it, but let's get to
2 the heart of the matter and stay' on track. Please ~tay··
3 focused.
4 'Q. (By Mr. Overstreet) Since you were appointed the
5 second investigator, if this information had been turned over,
6 would you have then had the ability to determine the truth of
7 it, ask other questions and do other things to focus on Jimmy
8 Fennell as a suspect?
9 A. We would have been-- we would have aggressively
10 pursued that; and at the same time, of course, ·we were doing
11
12
DNA testing during trial. So, yes, we would have done that.
Q. So what would you have done with the expert -- what
13 would you have requested from the expert if you had received
14 that information?
16 question has also been asked and answered.
\ - 1: i'. Ii j
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.' 1
15
17
MS. DETTMER: Your Honor, I believe this
THE COURT: I don't think this specific this- one
18 has. I'll overrule it.
J
I.J
19
20
A. I'm sorry, was your question with the expert or
investigator? I'm sorry, I didn't hear you.
21 Q. (By Mr. Overstreet) The experts who assisted you.
22 What would you have requested from them if you had been
23 provided the information that produced a different time 1i ne
24 for the homicide?
25 A.' They would have went to work immediately on that
, "l, :~
52.. - -
1 .issue, on that angl e. If there was somethi ng wrong wi th the
2 time line, if this ,particular witness ·places··them at a
3 different time, then it could have been very well that the
4 medical examiner was·wrong. And, you know, that plays a role:
5 Q. Would it have affected your cross-examination of the
.".-\
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6 State's witnesses who testified at trial, the medical examiner
7 as well as the witness Blake who was a criminologist, or
8 whatever her title is? .
9 A. It might have affected-all of those witnesses, any of
10 them that was married, so to speak, to that time line.
11 Q. But would it have caused you to examine them in a
12 -different way?
13 A. In the sense that we would have went back and we
14 would have had to go back an pull apart everything related to
15 the scientific witnesses, because that would be major issue.
16 The time of death, particularly since a main witness perhaps
17 lied about where he was and whether or not he was at home.
18 And, of course, if we had had other affidavits that would have
, ,• II j; .l
19
20
made a difference too.
Q. So is it safe to say you're saying that you would
21 have had the investigators, as well as the medical experts
22 appointed to assist you, do things differently because of Jimmy
23 Fennell being made a suspect, and a logical suspect based on
24 the time line?
25 A. Yes, because it could change the time frame. It
53
1 could certainly change .the time of death and the time frame.
5 QUESTIONS BY MS. DETTMER:
,"-,; ;
t····.;-. ':~. ,
2
3
4
6
a.
a.
Thank you.
MR. OVERSTREET: No further questions.
RECROSS-EXAMINATION
Mr. Garvie, there was no question, was there, that,
; ; 7 the victim in this case was scheduled to be at work at 3:30
8 a.m. that morning; is that correct?
9 A. I don't remember, specifically, but if you say that
10 I'll take your word for it.
Q. Well, don't take my word for it. If the record were
to reflect that would you disagree with that?
14 are two different things.
[ i
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(,·1 .,
11
12
13
15
A.
a.
No .. But· scheduled to be at work and arriving at work
Mr. Garvie, I'm nbt asking you what time she arrived,(-- -j
~.-i, 16 I'm asking you that if the victim was scheduled to be at work
17 at 3:30 a.m. that morning, according to the record at trial?
18 A. Okay, finish that. What would that do? What are you
19 asking me?
20 Q. That's all I'm asking you?
21
22
A.
a.If she was?
If she was scheduled according to the evidence at
23 trial was the victim scheduled to be at work at 3:30 a.m. that
24 morning?
25 A. I don't recall specifically.
1-
MS. SMALLEY: I think he's answered that
54
2 question in that he doesn't have a specific recollection.·
3 THE COURT: Ma'am, I'm going to ask that you sit
-~
\ .,.•1
4 down. The lawyer who is taking the witnesses will do the
5 objections, so if Mr. Overstreet wants to make an objection
6 :1'11 be happy to entertain one,' but the lawyer who takes the
7 witness will make the objections.
8 MR. OVERSTREET: Then I voice that same
i !t J
rI~j
9 objection. That the witness has testified'he does.not have a
10 recollection.
11 THE COURT: I understand that, I get that; so
12 let's move on.
13 Q. (By Ms. Dettmer) Would you also -- let me ask it
ri1'1I, ,1"_'
14 this way.
15 There is also no question, Mr. Garvie, in this
16 case according to the record and evidence at trial that the
17 victim was found wearing her HEB uniform; is that 'correct?
18 A. I believe that's correct. Again, we're talking about
. , 19 '98.j
20 Q. Just one more question. There is no question, also,
21 that the truck, Jimmy Fennell's truck, was found at the Bastrop
22 High School at 5:23 a.m. that morning?
23 A. I know it was found at the high school. Thespecific
24 time, that sounds about right but I can't swear to that.
25 Q. But we can rely on the record as the best evidence of
55 ..
1 that?,.,
2 A. Always.1\ s .
i .f
3 Q. The investigator that was appointed in this case, wasL
4 that Mr. Vasquez, Mr. John Vasquez?
5 A. I believe that's correct. He was appointed around
6 trial, the initial investigator was Duane Olney.i,1-.-1 7
8
9
Q.
A.
Q.
So Mr. Vasquez was a member of your defense team?
Yeah, around trial time.
Okay. And one last question. Do you assess the
10 credibility of your witnesses before you put them on in trial?
credible, certainly.
A. Well, you always look to see if they w1ll be .[":.:'J
~- '.1
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11
12
13
14
15
16
Q. Thank you.
MS. DETTMER: No further questions.
MR\ 'OVERSTREET: No further questi ons.
THE COURT: May this witness be released or do
17 you need him to stay?
18 MR. MOON: We request that this witness be
19 rel eased.'
20 THE COURT: You may be released, Mr. Garvie,
21 safe travels to you.
22 (Witness excused from witness stand.)
j
)
·1
23
24 be?
25
THE COURT: Who is your next witness going to
MR. OVERSTREET: We would call Martha Barnett.
i .
1 THE COURT: Okay, Martha Barnett. But before
56
2 you do that, will yo~-all please approach for a momerit.·
3 (Discussion off the record at the bench.)
4 MARTHA ELIZABETH BARNETT,
5 called as a witness and having first been duly sworn testified
6 as follows:
7 DIRECT EXAMINATION
8 QUESTIONS BY MR. OVERSTREET:
12 . bit, Mrs. Barnett?
15 applicant, petitioner, in this case, Mr. Rodney Reed, and I
16 want to ask you some questions about his case and then the
17 attorneys representing the State will have an opportunity to
18 ask you some questions. Please listen carefully to the
19 questions and try to be as direct in your answer as possible,
~-.;
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r·~· '.~",.i:_.1
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9
10
11
13
14
Q.
A.
Q.
A.
Q.
For the record, will you please state your name?
Martha Elizabeth Barnett.
And .I'm going to ask you to speak up just a little
Yes, sir.
My name is Morris Overstreet and I represent the
20 okay?
21
22
A.
Q.
Yes, sir.
First of all, did you have reason to know a young
23 lady whose name was Stacey Stites?
24
25
A.
Q.
Yes, I did.
And how did you come to know Stacey Stites?
57
1 A. I would ~o intO HEB'and she would wait on me.
2 a. -Do you recall- on or about April 24, 1996 hearing
3 about her death?
4
5
A.
a.Yes, sir, I did.
Now where were you working during that period of
6 time?
7
8
9
A.
a.A.
Papa's Catfish.
And where is Papa's Catfish?
It's closed now, but at the time it was located in
t: 10 the Jalisco Mexican Restaurant building, which was directly in
11 front of the former HEB building here in Bastrop.
a. And what route would you take from your residence or
your home in Paige, Texas to your place of employment?
r-,
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L...J
12
13
14
15
a.A.
Where were you living at or about that time?
Paige, Texas.
A. Highway 290 west to Highway 21 and follow Highway 21
time, to leave your residence and drive to your place of
to Bastrop.
a. Generally how long would it take you, in terms of
employment, if you were going directly there?
A. Twenty-five to 30 minutes.
a. Now on the morning of April 24, 1996, were you
23 working at Papa's restaurant?
16I
17
18
19::. ;
20
21
22
24
25
A.
a.Yes, sir, I was.
Do you recall your work hours on that day?
;~ .
1 A. Yes, sir, six to two. ,
2 a. Okay, 6 a.m. or p.m.?
3' A. From 6 a.m. to 2 p.m.
4 a. Was that your normal work' hour schedule?
5 A. No, si r ,
6 a. What was your normal work schedule?
7 A. Normally my schedule was two to ten or four to
8 eleven.
58
9 a. Now did you work the 6 a.m. to 2 p.m. shift very
10 often?
13 multiple occasions or just one occasion?r "
I
ri" I'. • J
11
12
14
15
16
17
A.
a.
A.
a.A.
a.
No, sir.
During that period of time did you work it on
No, sir, just one occasion.
Just that one occasion?
Yes, sir.
Now let's go back to April 24th of 1996 and let's
18 talk about your actions that morning in preparation to go to
19 work.
20 A. Yes, sir.
21 a.Do you recall about what time you woke up and started
22 your preparation that date?
23
24
25
A.
a.A.
Approximately four a.m.
And what did you do once you left the house?
I loaded my four children and took them to my
'59
1 mother's house.
2 Q. And what is the approximate time in terms of·distance
3 or time from your house to your mother's house?
4
5
6
7
A.
Q.
A.
Q.
Driving time, sir?
Driving time?'
30 seconds; 45 seconds maybe.
She. lives fairly close to you?
1..
8 A. Yes, sir.
9 Q. Okay.· Approximately how long do you believe you
10 stayed at your mother's house?
13 mother's house?
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11
12
14
15
16
A.
Q.
A.
Q.
A.
Approximately 20 minutes, 25 minutes maybe.
All right. Now what did you do after you left your
I turned on Highway 290, going east --
East or west?
East, I was going back toward Giddings. I was going
17 toward a business.
18
19
Q.
A.
Okay, I'm sorry. And what did you do?
I followed 290 to the crossover and I pulled into
20 crossover to approach the business.
21 Q. All right, and what was the name of that business?
22 A. The Old Frontier.
23 Q. Now did you notice -- once you arrived at the Old
24 Frontier, did you notice any people either standing outside or
25 in cars that morning?
1
2
3
A.
Q.
A.
·n-Yes, sir.
All right. How many people di dyou notice?
Well ,there was a car leaving the parking lot as I
60
r_. '~
4 approached the parking lot. When I was in the turn lane, I had
5 to cross 290, I was waiting for on-coming traffic --
6 Q. Excuse me. Listen to my question. How many people
7 did you recognize once you arrived at that location.
8 A. There were two people standing out in front of the
i,
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1.':. J
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9 buil di ng.
10 Q. All right. Two men, two woman, a man and' a woman?
11 A. A man and a woman.
12 Q. At any poi nt in time did those two individuals get in
13 or out of a vehicle?
14 A. They got into their vehicle.
15 Q. Okay. What kind of vehicle was it?
16 A. Pt ckup .
17 Q. All right. What color was the pickup?
18 A. Red.
19 Q. Had you ever seen that pickup before?
20 A. Not to my knowledge, no, sir.
21 Q. All right. Which one got in on the driver's side and
22 which one got in on the passenger's side?
23 A. The gentleman got in on ~he drive's side and the
24 female got in on the passenger's side.
25 Q. Now before they got in the car did you notice
61
1 anything? Were they just standing, or did they appear to ·be
2 talking? What did you actually see?
3 / A. I approached the building in my van and they were
. 4 making hand gestures and talking to each other. You know, just
5 making hand.gestures like there was some kind of conflict
6 between them.( ".
i. !7 Q. And did you conclude that based on body language and
8 the hand gestures?;-...."
: ;1·. j
9
10
A~
Q.
Yes, sir.
After they got in the pickup and the female got on
11 the passenger side and the male on the driver's side, did they
12 leave first of did you leave?
Q. All right. Did you notice anything unusual or did
you notice anything after they got into the vehicle?
to"l
i I
I 1I Ii:. ~
13
14
15
16
A.
A.
I 1eft.
Yes, I did. When I drove up and opened the car door
17 to get out, the gentleman and the lady approached and got in
18 their vehicle; I got out and walked to the front of the
19 building, got a Coke from the Coke machine; as I approached and
20 got back into my vehicle, out of the peripheral vision on my
21 left side her head went down like that (demonstrating) and back
22 up.
23
24
25
Q.
A.
Q.
Could you hear anything?
Muffled voices.
Were the voices normal or elevated in terms of
62-
1 volume?
2 A. I would say they were elevated,thei-r windows were
3 rolled up and sa was mine.
Now after you left that location, where .did you go?"
To work.
And what was your route to work?
290 west to Highway 21, Highway 21 to Bastrop.
Approximately what time did you arrive at work that
I don't recall, sir, exactly.
Just approximately? What time were you scheduled to
12 be at work?
4 Q.
5 A.
6 Q.
7 A.
8 Q.
9 morning?
t;:Oj 10 A.
11 Q.
A. Between 5:30 and six.
A. I'm sorry, I don't understand the question.
Q. How long have y~u worked during your adult life?
A. I've worked since I was 14, sir.
Q. All ri ght. You know, some peopl e have a habi t, a
reputation, some people always arrive late, some people just
barely beat the clock, and some folks arrive early for work.
What is your reputation?
A. At arriving to work?
Q. Yes.
A. It's been my experience to get to work anywhere from
63
1 20 to 30 minutes early.
2
3
4
Q.
A.
Q.
Is that normally what you do?
Yes, sir.
Is th~t what you believe happened on April 24th,that
5 you arrived early for work?
6 MS. TANNER: Objection,' your Honor, she's
7 already testified that -- well, first of all, it's already been
8 asked and answered and she testified she didn't know what time
9 she got to work.
THE COURT: Sustained.
Q. And how long would it normally take you to drive from
that locati.on in Paige to work?
Q. (By Mr. Overstreet)
time that you arrived at work?
Do you know of an approximate
5:30.
Twenty-five to 30 minutes.
So what would you estimate the time that you arrived
A.
Q.
A.
10
11
12
13
14
15
16
17
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18 at that location, the Old Frontier?
19
20
A.
Q.
4:45.
Okay. Now at some point in time did you have a
21 conversation with a lawyer whose name is Keng, from Giddings?
22
23
24
25
A.
Q.
A.
Q.
Yes, sir.
Is he the former county attorney from Giddings?
Yes, sir.
All right. Did you have a conversation with him
~---~>,,'
64
1 about anything that you may have seen on April 24th?
2 A. . Yes, I di d.
3 Q. Okay. Why did you chose to have the conversation
4 with him?
5 A. Because I felt I knew something about what happened
6 to Stacey.
7 Q. All right. Did you have a conversation about what
8 you saw on the 24th prior to your conversation with Mr. Keng?
9
10
r-, 11l·-j
L_J 12
:~- j 13
14;~ :'1
! 15
16
A. Yes, I did.
parents, what did you do next, regarding what you saw on the
24th?
A. I called Steve Keng and asked for a conference.
Q. And at the conference what did you reveal to Mr.
17 Keng?
18 A. That I believed that I saw Stacey Stites the morning
19 of her death.
20 Q. Were you later -- at some point in time after the
21 morni ng of the 24th, were you abl e to determi ne in your mi nd,;
22 who the gentleman was?
23
24
25 be?
A.
Q.
Yes, sir.
All right, and who did you determine that person to
1
2
A.
Q.
Jimmy Fennell.
All right. And how were you abl eto make the-
65
3 connection of the person that you saw that morning was Jimmy
4 Fennell?
5
6
A.
Q.
Because his picture was run in the paper.
And did you recognize his picture as being the person
7 that you saw?
~.t • \ 8
9
A.
Q.
Yes, sir, I did.
Is there any _doubt in youi mind that the persons you
.-" ...., -1---;1--~'; .. ;
ri, ,;.' ~1
10 saw on the morning of April 24, 1996, at the Old Frontier,
11 sometime between the hour of fifteen minutes to five or
12 thereabouts, was Stacey Stites and Jimmy Fennell?
13 A. There is no question in my mind.
14 Q. Could you be off a little bit-either way on time?
15 A. Yes, sir.
16 Q. All right. Could you be off in any way on the
17 identification of the parties?
18
19
A.
Q.
No, sir.
Now you eventually gave an affidavit dated March
20 27th, 2002?
21
22
A.
Q.
Yes, sir.
Did anyone ask you to give an affidavit prior to
23 March 27th of 2002?
24
25
A.
Q.
No, sir.
Do you remember about when you had the conversation
66
1 with the'former county attorney from Giddings, TexaS?
2
3
A.
Q.
Yes" sir.
Cany6u give us a time frame of when that may have
4 been?
5
6
A.
Q.
On or about January of 1998.
Okay. Now do you recall that that was either before
r-c;I ir IL ,:
7 or after the trial of Rodney Reed?
8 A. Before.
9 Q. And are you sure about that? '
10 A. Yes, si r. '
11 Q. Now I want to ask you about some iss~es in your past.
12 Have you ever been convicted of a felony offense in this state
13 or any other state? But first let me ask you, do you know what
14
15
a felony offense is?
A. Yes, sir.
16 Q. Okay. A felony offense is one in which if you're
,°1
.-0'
17 found guilty you're assessed -- the range of punishment is more
18 than two years.·
19
20
A.
Q.
Yes, sir, I understand.
Have you ever been convicted of a felony in this
21 state any other state?
22
23
A.
Q.
No, sir.
Have you ever been convicted of a misdemeanor offense
24 involving either theft or moral turpitude, something that would
25 affect -~ well, I'll just say theft or moral turpitude?
1
2
A.
Q.
Yes, sir.
All righti And what theft offense have you·been
67
3 convicted of?
4
5
-A.
Q.
Theft by check.
Have you been convicted of any other offense other
6 than theft by check?
Q. Have you been convicted of -- have you been convicted
of theft by check on more than one occasion?
( i, .". -.
7
8
9
10
11
A.
A.
Q.
No, sir.-
Yes.
Let me go back and ask you something, I wrote down
12 April 24th, but this really was the morning,of April 23rd?
15 reporter?
r-';
Ii, )
[':. II I; ,J
13
14
16
17
A.
Q.
I don't understand th~ question.
MR. OVERSTREET: May I approach the court
THE COURT: Yes, you may.
(By Mr. Overstreet) I want to hand you an exhibit
18 marked as Defendant's Exhibit Number 1; I want to ask you one
19 question before I hand it to you. Is the day or morning that
20 you saw Stacey and Jimmy Fennell the same day that you learned
21 of her death?
22
23
A.
Q.
I don't recall that, sir, if it was the same day.
Let me show you an affidavit. What day does your
24 affidavit indicate that you saw them?
25 A. April 23rd.
1
2
a.A.
When did· you learn of Stacey's death?
It w8ssometimeafterher death.· I don't·recall
68
3 exactly.
4 a. Did' you 1ea-rn about it the same day that they
5 discovered her body?
6
7
A.
a.Yes, sir.
And if they discovered her body on April 23rd would
8 that have been the morning that you saw her?
A. Yes, sir.
April 24th; right?
: !
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9
10
11
12
13
A.
a.
a.
Yes, sir.
It would have been impossible for you to see her on
Do you have any reason to lie about what you saw on
14 the morning of April 23rd?
15
16
A.
·a.No, sir.
Do you have any reason to lie about the·
17 identification of the parties?
18
19
A.
a.No, sir.
How much thought did you give before you came forward
20 with the information that you have?
21
22
A.
a.A lot, sir.
Were there any factors that affected you prior to• J
23 coming forward with the information?
24
25
A.
a.I don't understand what you mean by factors.
What was going on in your life?
3 information?r-; ": ..
1
2
4
5
A.
Q.
A.
Q.
Yes, sir.
Now did you immediately come forward with this
No, sir.
Did you immediately identify Jimmy Fennell as the
69 .
6 person that you saw?
Q. An~ did ~ou immediately identify Stacey Stites as the
person that you saw?,'j
r: I
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7
8
9
10
A.
A.
Not immediately, no."'..-_.-._----....~
..':;.".
I believe I did, yes, sir.
11 MR. OVERSTREET: At thi s time I pass the, wi tness
12 for cross-examination.(:~I
\1\.:,1
13 CROSS-EXAMINATION
14 QUESTIONS BY MS. TANNER:
15 Q. Ms. Barnett, my name is Lisa Tanner and I have a few
16 questions for you, okay?
19 understand just let me know, all right?, "'\ !1 .\
~ !
17
18
20
"21
A.
Q.
A.
Q.
Yes, ma'am.
Now if there's anything that I ask you that you don't
Yes, ma'am.
Okay~ Now you told us that you worked at Papa's
22 Catfish back in April of 1996, right?
23
24
25
A.
Q.
A.
Yes, ma'am.
From when to when did you work there?
December of '95 until August or thereabouts of '96
70·
1 let me think. December of '95 until sometime after July of
2 '96.
3 Q. Okay. So you were working at Papa's for about. three
". .-1
4 months after all this happened?
5 A. Yes.
6 Q. Okay. ·At a minimum?
7 A. At a minimum, yes.
8 Q. Okay. And you said that you normally work the four
9 to eleven?
10 A. Yes, ma'am.
11 Q. And what was the occasion that had you working the·
12 6 a.m. shift on this particular day?
13 A. When I was on duty the night prior to the morning
t· -'1\- -J
(-. :J14 shift that I had to work, somebody had called in and they
15 needed someone to come in and prep.
18 day off, I didn't have to come in and they asked if I would
19 come in and prep and I said I would .
(0""l,
\".1
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16
17
20
Q.
A.
Q.
So you went in to do that?
And so since I was off -- the next day would be my
Okay, so the night before you worked the four to
21 eleven shift?
22
23
24
25
A.
Q.
A.
Q.
Yes, ma'am.
And so that put you home pretty close to midnight?
Yes, ma'·am.
And then the next morning you got up and worked the
71
1 6. a. m. shi ft?
2
3
A.
Q.
Yes, ma'am.
And who all, worked that shift wtth you, do you
4 remember?
1. i
5 A. Well, I was in back, I didn't waitress that day, I(, ,}
6 was in the back prepping.
7 Q. Were you the first one to get there or were there
8 other people there?
17 Overstreet's questions, you said your shift sta~ted as 6 a.m.?
A. Yes, rna' am .
.. I
L"j
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9
10
11
12
13
14
15
16
18
19
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Q.
No, the owner was there.
Who is the owner?
Paul Hansen.
And so had Mr. Hansen already unlocked the place?
He had unlocked the back door, yes, ma~am~
And you said you were due to get in there about six?
Between 5:30 and six.
Now when you first testified in response to Mr.
Okay. And then later on you said, well, it was
20 actually between 5:30 and six?
21 A. Yeah.
22 Q. But your actual shift started at six, right?
23 A. Yes, ma'am.
24 Q. And if you had been working until 11 o'clock the
25 night before, would it be reasonable to assume that you weren't
72
1 that fired up to get there really, really early at 6-arm. the
2 next morning?
3
4
5
6
, A.
Q.
A.
Q.
No, ma'am.
Okay. Now Papa's Catfish is pretty close to the HEB?
Yes, ma'am.
And I believe in your affidavit you said that you
7 used to go through Stacey's line and she would check you out?
C·":"!
l.l8
9
A. Yes" ma'am'.
Q.And did you do that all the way up until' pretty close;_"1
I j
l; 10 to the time she died?
13 her line week to week even, before she did? Probably?
Q., Okay.
A. I don't recall if I did or not.
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11
12
14
15
16
17
A.
Q.
A.
Q.
Yes, ' rna' am .
Okay. Do you remember -- I mean, did you go through
I don't recall that.
Okay. But do you have a sense that it was all the
18 way up until this happened that you were regularly going
through her line?
A. I don't recall that.
"
;"ji
19
20
21 Q. Okay. Now' if you're going from Paige into the City
22 of Bastrop, Highway 21 ;s the fastest way to go; rlght?
23
24
A.
Q.
Yes, ma'am.
You can go other ways from Paige to Bastrop but those
25 would all be out of the way; right?
1
2
A.
a.
7-3
Yes, ma'am.
Okay. Now you told the Court that on this particulat:'
3 morning, April 23rd of '96, you saw Stacey and Jimmy in this
4 red truck at the Paige country store; right? -
.. ..:
5
6
7
8
9
A.
a.A.
a.A.
Yes, ma'am.
Now you indicated that the truck was parked?
Yes, ma'am.
Now where was it parked in relation to the store?
Well~ here is the front of the store and I was parked
10 approximately in the middle, like at the middle of the
11 bUilding, and they were parked to left where the dumpster
12 always sits.
14 A. - No, ma' am .
:-1! .I'°1t- __ I
I-Ii-\
13
15
a.
a.
All right. And were -- the store was not open?
Okay. And when you first saw them, according to you
16 these people were outside of the truck?
17 A. Yes, ma'am..,'! 18 a. And they were standing?
19 A. Yes, ma'am.
20 a. And you were there long enough to get your soda and
21 head out; right?
22 A. Yes, ma'am.
23 a. Okay. And you got your Coke out" of the machine,
24 according to you, and then you turned and you went onto
25 Bastrop; right?
1
2
A.
Q.
Yes, ma'am.
And the truck and the people were still ·in the
74
3 parking lot when you left; right?
4
5
A.
Q.
Yes, ma'am.
Okay. And you indicated that they may have already
6 gotten in the truck or were they still standing outside the
7 truck when you left?
8
9
A.
Q.
They were in the truck when I drove away.
Okay .. But you 1eft the Pai ge country store before
LI
[I:1
10 those people left?
11 A. Yes, ma'am.
12 Q. And once you left the Paige country store and started
13 heading down 21 you didn't see anymore of them; right?
14 A. No, ma'am.
15 Q. Okay. They didn't pass you heading on Highway 21
16 because that would be something you would remember; right?. l
iIJ
17
18
A.
Q.
I don't recall if they passed me or not.
Well, there wasn't a red truck that went flying by
19 you on Highway 1 on your way to town?
20
21
A.
Q.
I don't recall that.
And surely if you recall seeing it in the parking lot~
22 you would recall if they would have blown past you on the road;
23 right?
24
25
A.
Q.
I don't know.
But as far as you know, they didn't?
75
A. I don't know if they did or not.
Q. Okay. But you have no recollection of a·red· truck
flying past you going toward Bastrop that morning, do
A. No, ma'am, I do not.
Q. Okay. Now when you saw this girl that you say was
7 Stacey, what was she wearing?
is that correct?
Q. Okay. Now you said that you heard that Stacey had
been murder on the same day that she had actually been murder;
11i.·.... j'r-'..
8
9
10
11
12
13
14
15
A.
Q.
A.
A.
Q.
I don't remember.
What was the guy wearing?
I don't remember that either.
Yes, ma'am.
And you working there open at Papa's Catfish on that
16 day; right?
about this, Mr. Keng, in January of 1998; right?
A. I believe that's the time, yes, ma'am.
1-:':, .
i j
17
18
19
20
21
A.
Q.
Q.
Yes.
Okay. Now you told us that you told your lawyer
Okay. And you talked to your folks shortly before
22 that, and that was all right together. You talked to your
23 folks and your folks told you to tell Mr. Keng and so you told
24 Mr. Keng. Is that a fair assessment?
25 A. Yes, ma'am.
76-
1 Q. Okay. So you would have told your folks probably in
2 January of 199 as well;· right?
A. Yes, rna' am .
A. Yes, ma'am .
Q. That you told your folks?
Q. And then you told Mr. Keng a year later?
No, ma'am.
No, ma'am.
Well, when, in December maybe?'
When did you tell yo~r folks?
To my recollection it was January of 1997 .
Q. Is that what you're telling us?
A. Yes.
A-.
"Q.
A.
Q.
.A.
Q . All right . Now, do you recall on Apr.i 1 23rd of 1996 ,
the day that Stacey Stites was murdered, the HEB being crawling
3
4
5
6
7
8
.9
. 10
11
12
13
14
15
. -~j
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16 with police offiter?
17 A. I don't remember that, I was inside the buildingI.rLJ 18 where I worked.
21 A. I don't recall.
23 was that day, so do you remember if you were still at work?
24 A.' No, I wasn't still at work when I heard.
19 Q. How did you find out that day that Stacey had been
20 murdered? How and where did you find that out?[j
[J
U
U
22 Q. Okay. Well, you told us that you remember that it
[ ~
• IU
25 Q. Okay. Did you go to work the next day, th~ following
77
. t
Yes, ma'am.
Yes, ma'ami I did, that evening·.
So you worked that evening shift then on the 24th?
And, by the way, when Mr. Overstreet was asking you
questions he· kept referring you to tha.24th arid you did not
1 day?
2 A.
3 Q.
4 A~
5 Q.
6
n, I-, 1
7 correct him; right?
8
9
A.
Q.
No, ma'am, I didn't.
Now you worked at Papa's Catfish about three months
10 after Stacey Stites was killed; right?
~l!j- .L
11
12
A.
Q.
Yes, ma'am.
And would you agree with me that Stacey Stites'
14 the HEB and that whole shopping center?
13 murder, her disappearance and her murder, was huge news around--]----:'
~)--
15
16
A.
Q.
Yes, I would agree.
And that was somethlng -- and I bet when you were
17 working at the restaurant thereat Papa's Catfish that that was
18 something lots and lots of people talked about?
19
20
A.
Q.
Yes, ma'am.
And was there a machine for the Bastrop newspaper
21 outside of Papa's?
22
23
A.
Q.
I don't recall a newspaper machine.
But the entire time you were working at Papa's
24 Catfish, the issue of who had killed Stacey Stites was a big
25 deal, wasn't it?
\,', I
. 78
1 A. Yes, ma'am.
2 Q. Now let me· make· it -real clear, you ·did not go to the
3 Bastrop Police Department ·and tell them .what you had seen;
4 correct?
5 A. No.
6 Q. And you did not go to the Bastrop Sheriff's Office,
7 and by that I mean ever. You've never gone to the Bastrop
8 Police Department and told them what you say; correct?
Sheriff's Office and told them what you saw?
A. Correct.
. ;
9
10
11
12
13
A.
Q.
Q.
Right.
And you have never to this day gone to the Bastrop
And you never went and told the Texas Rangers or
14 anyone affiliated with the Texas Ranger service what you have
15 told us you saw; right?i>:!j( '!
16
17
A.
Q.
Right.
And you did not tell anyone with the Giddings Police
18 Department, or the Paige -- does Paige even have a police
19 department?
20
21
A.
Q.
No, ma'am.
Okay. Well, the Giddings Police Department, you
22 didn't tell anybody there?
. c 23
24
A.
Q.
No ; rna' am.
You didn't tell anyone about this with the Lee County
25 Sheriff's Office; right?
79
1 A~ Right.
2 Q.Youdidnot tell anyone about this "who works for or
3 is affiliated with the Bastrop County Criminal District
4 "Attorney's office; correct?
5
6
A.
Q.
Correct.
And you did not tell anyone about this who works fori -. r1 -1; 1~ . - J
7 of is affiliated with the Texas Attorney Generals office;
8 correct?
9 A. Correct.
17 result of this particular OWl charge?
11 your fami 1y, was your 1awyer Mr. Keng, .and that was around
12 January of 1998; correct?
" )
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13
14
15
16
18
19
Q.
A.
Q.
A.
Q.
A.
Q.
Now the first person you told about this, outside
Correct.
And he was representing you on what?
I don't recall, I think it was a OWl charge~
Okay. And so you~affiliation with him came as a
Yes, ma'am.
Okay. And so that was something that when you told
20 him in January of '98, that was a year and eight months,
21 approximately, after Stacey Stites was murdered; correct?
22
23
A.
Q.
Yes, ma'am.
Okay. Now do you think that what you tell us you saw
24 that morning is something the- police would have been interested
25 in?
1
2
A.
Q.
80
Yes.
And do you think that that was something that people··
3 who were investigating what in the· world had happened to Stacey
4 Stites might have been interested in?
5
6
A.
Q.
Yes.
And you did not give the police the opportunity to·
7 determine whether this was of any relevance because you didn't
8 tell them; correct?
9
10
A.
Q.
Correct.
Now you would agree with me that it was common
I..... j', ,~ .'..
'1\
11 knowledge, particularly amongst people who work so close to,the
12 Bastrop HEB and shop at the HEB, that there was a $50,000
13 reward out for information relating to Stacey Stites' murder?
14 A. Yes, I would agree with you.
15 Q. And you were fully aware of that; correct?
16 A. I don't know if I thought about it at the time.
17 Q. But you were aware back in 1996 that there was
18 $50,000 sitting out there for somebody if they knew something
19 about what in the world had happened to Stacey Stites?
20 A. I don't recall. I don't recall ever thinking about
21 that.
22
23
24
Q.
A.
.Q.
Okay. But you knew about it?
I don't know if I did or not.
Okay. Now you said that you took Highway 21 to get
25 into work; right?
81
1 A.Yes, ma'am.
2 Q., ,'And that you don ':t recall the red truck passing you
3 up; correct?
4
5
A.
Q.
Correct.
And it 'wo~ld be reasonable for us to assume J then, ,
6 that if people in that red truck were heading into Bastrop they
7 would have been heading into Bastrop after you, according to
8 your testimony; correct?
13 isn't it, from where you were going?
C)
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[1
9
10
11
12
14
15
16
17
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Correct.
Do you know where Bastrop High School is?
Yes, I do.
And Bastrop HighSchool is pretty far into town,
No.
Okay. Is it on the way to where you were going?
No. It's not where I-- I was going past downtown.
Okay. Bastrop High School off at the -- if you're
18 going toward the right of downtown, Bastrop High School is off
23 95 meet, Bastrop High School is to the right, down by the
A. No.
to the left?
, ,! l1" -;! ;l'
19
20
21
22
Q.
A.
Where's it at?
When you come in to Bastrop off of 21, where 21 and
rI ;
U24 cemetery, you go that way, and I went straight and across the
25 old town river bridge and up to HEB.
82-
1 Q. And up to the point where you went straight and the
2 high school went off to the left you had not been at··any time
3 passed by a red truck resembling the one you said you saw in
4 Paige at the country store; right?
5
6
A.
Q.
Corrected. "
Okay. Now, Mrs. Barnett, you say that you told your
,'.J.. j
;
7 lawyer about this in January of 1998 and then you gave your
8 affidavit on March 27th of 2002, is that pretty accurate?
9 A. Yes, ma'am.
10 Q. Who came to see you in 2002? How did it come to pass
11 that you gave this affidavit in 2002?
12 A. Is there were private investigators that contacted --13 I'm not sure how, but there were investigators that contacted
14 Steven"Keng and Steven Keng's office contacted me.
Q. Okay~ and did they represent to you that they were
law enforcement officers, lawyers, private investigators or
16 of that?" ,!!..
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15
17
18
19
20
21
22
23
Q.
A.
Q.
A.
Q.
A.
Okay. And then you gave your affidavit as a result
Yes, ma'am.
Now who came and took your affidavit?
I don't recall their name.
Was there more than one person?
And elderly gentleman and his wife.
24 what?
25 A. Private investigators.
83-
1 Q. Okay. And since that time, since you gave the
2 affidavit on· March 27th of 2002, that have you since met with
3 those same individuals?
Q.' Okay. Have you met with other individuals regarding
4
5
A. No, ma'am.
6· what you say you saw on April 23rd of 1996?
Q. Okay. Have you talked to these lawyers over here
about what you say you saw on April 23rd of 1996?
". !ij .
; I: .1· .'
7
8
9
10
11
12
A.
A.
Q.
A.
No, ma'am.
Yes, ma'am.
And which ones of these lawyers have you talked to?
I spoke to Lori LaVeen and Morris -- I'm not sure of• 1
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13 his last name.
14 Q. Okay. And how many times have you done that?
15 A. Twice.
16 Q. Okay. And when was that, approximately?
17 A. A couple of weeks ago.
18 Q. Okay. And did you talk to Lori and Morris together
A. Together.
or separate from one another?19
20
21 Q. And so they both came -- did you talk to them in
22 person or on the phone?
i.'
23
24
25
A.
Q.
A.
In person.
Did they come to your house?
Yes, ma'am.
1
2
3
a.A.
,84
And that's been on two occasions?
Yes, ma'am.
MR. OVERSTREET: Just for the record, since two
4 of us have the same first name, and I know I have never been to
5 her house, I just wanted to clear it up since it's Morris Moon
6 and Morris Overstreet so that the record is accurate. I want
7 to make sure the record indicates which one she's referring to.
A. Yes, ma'am.
as State's Exhibit Number 2, is that a copy of your affidavit?
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8
9
10
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12
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16
17
18
A.
a.
a.A.
a.
THE COURT: Is that accurate, ma'am.
Yes; ma'am, this gentleman here.
THE COURT: Okay, thank you.
MS. TANNER: May I approach the court reporter?
THE COURT: Yes, ma'am, you may.
(By Ms. Tanner) Let me show you what has been marked
Does that have your signature on it?
Yes, ma'am.
And is that a fair and accurate copy our of your
19 affidavit?
20 A. Yes, ma'am."
Ji
1
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21 a. And that's the affidavit that you gave on March 27th
22 of 2002?
23 A. Yes, ma'am.
24
25 Number 2.
MS. TANNER: We would offer State's Exhibit
85·
1
2
. (State's Exhibit No.2 offered into evidence.)
MR. OVERSTREET: We have no objections to
3 State's Exhibit Number 2.
THE COURT: It shall be admitted.
A. Yes, ma'am.
a.m."; correct?
(State's Exhibit No.2 admitted into evidence.)
Q. (By Ms. Tanner) Now, Ms. Barnett, with regard to
your affidavit of Mach 27th of 2002, tell the Court, if you
would, what time it was that you said you saw this truck?
A. Appr~ximately 5 a.m. to 5:30 a.m ..
Q. Okay. So you wrote out, on March 27th of 2002, "On
the morning of April 23rd, 1996, at approximately 5 to 5:30
Q. Okay. Now you testified to the Court today that,
15 well, it was actually probably about 4:45?
4
5
6
7
8
9
10
11
12; 13i..~
14
,\J
16
17
18
A.
Q.
Yes, malam.
Okay,· now that
MR. OVERSTREET: Your Honor, we would insist
"II;
19 certainly we have no objection with approaching the witness to
20 show them a document but we do have an objection to
21 cross-examination at the witness stand and ask that she return·
22 to the counsel table for cross-examination. But we, of course,
23 have no objection to approaching the witness to show the.,
24 witnesses a copy.
25 MS. TANNER: Okay, I'll come back.
1 THE COURT: Thank you. However, if there are
86
" '.. ·2 going to be several questions·in·a row you· do have the·Court's
3 permission to stand there and ask all of them at that same
4' time.
5
6 Q.
MS. TANNER: Thank you, your Honor.
(By Ms. Tanner) Okay, so back in 2002 you swore
f·-
7 ·under oath that you saw this vehicle and these people between 5
8 and 5:30 a.m.; correct?
9
10
A.
Q.
Yes, ma'am.
And today you came here and told us that,well, it
.11 was actually closer to 4:45; is that a fair assessment?
12
13
A. Yes, ma'am.
Q. Now since March 27th of 2002, you said you've talked
14 to these lawyers; correct?
15
16
A.
Q.
Yes, ma'am.
And you talked to them about the time you saw this,
17 haven't you?
18 A. I don't recall if we talked about the time frame.
19 Q. Has anybody shared with you the fact that the truck.,
20 in question was found at the Bastrop High School at 5:23 a.m.
21 on April 23rd of 1996?
22 A. No, ma'am.
23 Q. Okay. If in fact the truck was found at Bastrop High
24 School at 5:23 a.m., it would be difficult if not impossible
25 for that to have been the truck you saw between 5 and 5:30;
87
r- ., .;i 1 would you agree with that? At the Paige country store?
2
3
A.
Q.
I don't know. .
Okay. You testified earlier in response to counsel's
4 questions.that it took you from Paige about -- let me make sure
5 I got it right 25 to 35 minutes to get -- excuse me, you
6 said that it took -- hold on one second and let me find it.
7 You testified in response to counsel's questions
8 that it took you between 25 and 30 minutes to get to work in
9 Bastrop from Paige?
14 about this and you said that you didn't tell your lawyer until
15 January of 1998. You were aware, of course, that the question
16 of what happened to Stacey Stites was very, very significant in
17 this community; right?
A. Yes, ma'am.
Q. And that's pretty accurate?
Q. Now, I asked you earlier about when you told anyone
Yes, ma'am.A.10
11
12
13r- ".;I·,[::~ .:
regular basis?
Q. Do you recall seeing the Bastrop newspaper on a:I
: 1;; ...
18
19
20
A. Yes, ma'am.
21 A. No.
22 Q. Do you recall headlines in the Bastrop newspaper
23 asking people for help in finding out who had done things to
24 Stacey Stites?
25 A. No, ma'am.
1
2
3 Q.
MS. TANNER: May I approach the witness?
THE COURT: Yes , you may.·
(By Ms. Tanner) I'm going to show you the Bastrop
88 .
4 Advertiser, and .that's the local paper here in town; correct?
5 A. Yes.
6 Q. And it runs all over this community; correct?
7 A. Yes, ma'am.
8· Q. And in 1996 you were working in this community;
9 correct?
10
11
A.
Q.
Correct.
Do you recall seeing the headline from April 27th of. i
'.-:;
. ,
12 1996, "Police Search for Leads in Stites Murder." "Who saw
13 Stacey Stites' truck on Tuesday morning?" Do you remember
14 seeing that?
15
16
A.
Q.
No, ma'am, I don't.
Do you remember seeing the paper in Bastrop on
17 Saturday, May 11th of 1996 with the headline, "Police still
18 mystified by Stites' strangling"?
't·1:
19
20
A.
Q.
No, ma'am.
Or June 22nd of 1996, "Slow progress on murder case."
21 Do you remember seeing that?
22
23
A.
Q.
No, ma'am.
July 13th of 1996, "Police ask citizens to aid in
24 ongoing Stites murder probe." Do you remember seeing that?
25 A. No, ma'am.
: '
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1 Q.Would it be fair to say that from these newspapers
89
2 that just, 1ooki ng at it object i ve1Y. the City of Bast rop and
3 the law enforcement in Bastrop were begging people in this
4 community to help them figure out what had happened to Stacey
5 Stites; would you agree?
6 A. ',Yes, ma'am, I agree with that.
7 Q. And each of the articles also make reference, very
'8 early on, to that $50,000 reward; right?
Q. And yet you didn't tell anybody who had anything to
do with this case anything about this, did you?
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10
11
12
13,
14
A.
agree.
A.
Q.
I see you have it highlighted, yes, ma'am, and I .
No, ma'am.
Now you told us that the reason you knew that the man
15 you saw was Jimmy Fennell was because you saw his picture in
16 the Giddings paper a couple of weeks after this happened; is
17 ,that correct?.:j
_!
-,,
18
19
20
21
A.
Q.
I'm not sure it was the Giddings paper.
MS. TANNER: May I approach the witness?
THE COURT: Yes, you may.
(By Ms. Tanner) In your affidavit that you gave, on
22 March 27th of 2002 you said, and I quote, "I found out about
23 two weeks later that the man with her that morning in front of
24 the Frontier was Jimmy Fennell because his picture was run in
25 Giddings Times and News, and that's when I recognized him." Is
90
1 that right?
2
3
A.
Q.
Yes, ma'am.
OkaYi so, when you gave your"affidavit about four
4 years ago now, you were clear then that the picture of Jimmy
f'l!.il
5
6
'7
Fennell that you saw was in the Giddings paper; correct?
A. Yes, mavam ,
Q. All right. I want you to look through here and I'm
8 going to show you the Giddings Times News, okay? And I'm going
9 to show you from April 25th of '96, two days after Stacey was
10 killed -- oh,by the way, I know what I was going to ask you.
A. That's correct.
-The Giddings Times·and News comes out once a week; right?
"Q. Comes out on a Thursday; right?
A. It actually comes out on a Wednesday.
Q. Okay, but it's dated Thursday?
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12
13
14
15
16
17
A.
Q.
Yes, ma'am.
Okay. So we've got 4/25 of ';96, the next week paper;
18 we have May 2nd of '96, so that's the very next one; right?
19
20
A.
Q.
Yes, ma'am.
We've got May 16th of '96; we've got June 6th of '96.
21 By the way, do you take the Giddings Times and News?
22
23
A.
Q.
No, ma'am, I don't.
Okay, we've got July 18th of '96; we've got October
: I
24 24 of '96; we've got Aptil 10th of '97; we've got
25 September 18th of '97; we've got February 5th of 1998; we've
n:1: I
91
1 'got April 2nd of '98; we've got April 16th of '98; we've got
2 April 30th of '98; we've got May 7th of '98; we've got May 14th,
3 of '98.
4 MR. OVERSTREET: Judge, maybe I missed it, but
5 what's the question?
6
7
8 second.
MS. TANNER: I have two more to go.
THE COURT: She's almost there, give her a
9 Q. (By Ms. Tanner) We've got May 21st of 1998; and'j
, .,[-':] 10 we've got May 28th of '98. ,
13 newspapers I just showed you there's a picture of Jimmy
14 Fennell?,
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11
12
15
16
17
18
19
20
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Yes, ma'am.
Can you tell the Court where in any of those
There's not one.
There's not one, is there?
No, ma'am.
His picture is not in there, is it?
No, ma'am.
So there in no way that you identified Jimmy Fennell
'.121 by the Giddings Times News, contrary to your affidavit, is
22 there?
23
24
25
A.
Q.
A.
I guess not, it must have been another paper.
Okay. What other paper did you read?
The Austin paper.
1 Q. Well, let's look ad the Austin paper. And rather
92
_2 than going through each-of them I'll ·justrepresent to you that·3 this is all the stories in the Austin paper about -this case.4· Go ahead and flip through there and tell me if you can find a5 picture of Jimmy Fennell.-
i -J
6
7
A. (Witness complies.)
THE COURT: Let's take a fi ne mi nute break whil e
I: ,I!, I
8 she does that, I need to make a ~hone call, if you-all will9 excuse me for a moment. Thank you. .
10 (Recess.)
13 talking about, I wanted to go back and ask you something else.14 You told Mr. Overstreet that you got up at 4 a.m.; correct?[!, '
! J
11
12
15
16
Q.
A.
Q.
THE COURT: You may proceed.
(By Ms. Tanner) before I get back to what we were
Correct.
And you said you had four kids at home at the time;17 right?
18
19
20
A.
Q.
A.
Correct.
And how old were your kids at that time?
I had a 16-year-old, a 13-year-old, an eight-year-old21 and a three-year-old.
22 Q. And did you have to get them all fed?23 A. No, ma'am.
24 Q. Okay, but did you have to get them all four up?25 A. Yes, ma'am.
2 them dressed; right?r r :
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3
4
Q.
A.
Q.
Okay. So you got all four of your kids up and got-
Well, the older ones dressed themselves.
But you, yourself, probably had to particip~te in
93
5 dressing at least your younger ones?
6
7
A.
Q.
Yes, ma'am.
And you got them all loaded up and-you carried them
8 over to your mom and dad's house; right?
17 store?
30 minutes visiting with your folks?
A. That's an approxi mate amount of ti me; I don't recall
how long I was there.
Q. And you've told us now that it was around 4:45 that
you got there?
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12
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16
18
19
20
- 21
22
A.
Q.
Q.
A.
Q.
A.
A.
Q.
Yes, ma'am.
And- then you told Mr. Overstreet that you spent 20 to
You were there for some period of time?
Some period of time, yes.
And then after that you drove to the Paige country
Yes, ma'am.
Approximately.
So it would have taken you only 45 minutes to get
23 four kids ready, get them out of the house, get them dressed,
24 get them taken to somebody else's house, visit with them for 20
25 to 3D minutes and then get to that store; is that your
94
1 testimony?
2 A. I mother doesn't live very far· from where I lived at3 the time.·" ... ,
•. I, .i 1
I 4 Q. And then you told Us that it would have taken you
Q. In fact, it .was closer to six, wasn't it?
Q. Okay. So you certainly wouldn't have gotten to workat like 5 o'clock or 5:15 would you, because that would havebeen just crazy; right?
A. I don't recall that it was that early~
A. No, I wasn't that late.
. Q. Okay. Now 1et me go back to what we were talki ng14 about before. You said you did take the Austin American15 Statesman and you have had the opportunity to look at the
6
7
8
9
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16 Austin American Statesman and Jimmy Fennell's picture is not in17 the Austin American Statesman either --
18 MR. OVERSTREET: Judge, I would like to make an19 objection. We don't know if these papers represent all the20 papers of that Giddings newspaper, and they certainly are not21 the entire copies of each newspaper that was printed. And so22 I'm going to object if we have selective newspapers and23 selective parts of the newspaper, so until they present the
.24 entire newspapers for that period of time we're going to object25 to this line of questioning.
95
1 THE COURT: And the basis of your objection is
2 what?
3
4
MR. OVERSTREET: Ma'am?
THE COURT: What is your legal objection to
,. lr '. 5 this?
6 MR. OVERSTREET: There's been no authentication
He's looked at them over the break.
All right. Have you shown them to
All right. Your objection is duly
7 of these that they ate really the papers o~ Giddings.
Judge, Rule 901.6 says they're8 MS. TANNER:
9 self-authenticating.
10 THE COURT:
11 counsel?
12 MS. TANNER:
13 THE COURT:
14 noted however I'm --
.:, .
15 MR. OVERSTREET: May I approach, I can't hear
16 you'.·
17 THE COURT: I'm sorry. Yes, your objection is
18 noted but overruled. Let's move on.
19
20
21 a.
MS. TANNER: May I approach the court reporter?
THE COURT: Yes, you may.
(By Ms. Tanner) Mrs. Barnett, you have told the
22 Court that you knew Jimmy Fennell because of seeing his picture
23 in the paper; correct?
24
25
A.
a.I didn't know him, that's how I recognized him.
You recognized him. You had never had any
interaction with Jimmy Fennell prior to this, had you?
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2
3
A.
Q.
Yes, "I had.
Yes, you had. And, Mrs. Barnett, you knew Jimmy
96
4 Fennell from something completely independent of the Giddings
5 newspaper, didn't you?
6
7
A.
Q.
Yes, ma'am, I did.
And you didn't mention that in your affidavit,
8 State's Exhibit Number 2~ did you?
9
10
A.
Q.
No.
You represented to the world in your affidavit that
11 you knew Jimmy Fe~nell solely -- or that you recognized him
12 solely from the Giddings newspaper; right?
17 I show you what's been marked as State's Exhibi~ 3 and State's
18 "Exhibit 4?
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13
14
15
16
A.
Q.
A.
Q.
Correct.
That isn't true, is it?
Yes, it is true.
Okay. Well, let's see if this jogs your memory any.
19 A. Yes, ma'am.
20 Q. Does that jog your memory?
21 A. Yes, I do.
22 Q. Do you recognize your name on there?
23 A. Yes, I do.
24 MS. TANNER: The State would offer State's
25 Exhibits 3 and 4.
1
2
3
97
(State's Exhibit Nos. 3 &4 offered. into
evidence.)
MR. OVERSTREET: No objection to State!s.Exhibit
4 ~umbers 3 and 4, your Honor.
9 on to that.
THE COURT: All right, they shall be admitted .
(State's Exhibit Nos. 3 & 4 admitted into
evidence;)
,.--rl.
.5
6
7
8 Q. (By Ms. Tanner) Okay, State's Exhibit Number 3, hold
10
11
A.
Q.
Okay.
It reflects, does it not, that you were arrested for
12 OWl; correct?"'1'
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13 A. Correct .
14. Q.
15 correct?
And that's what Mr. Keng was representing you on;
,.\
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16
17
18
19
20
21
A.
Q.
A.
Q.
A.
Q.
Correct.
Who arrested you for the OWl?
Jimmy Fennell.
And when did Jimmy Fennell arrest you for the OWl?
In 1997.
In fact, he arrested you on November 5th of 1997,
22 didn't he?
23
24
25
A.
Q.
A.
Yes,he did.
And Jimmy Fennell stopped your car; right?
Yes, he did.
Q. And State's Exhibit Number 4 that we've admitted
reflects that in addition to that you were arrested for this
DWl and he also charged you with a traffic ticket, failure to
t :
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
Q.
A.
Q.
A.
Q:A.
Q.
A.
Q.
A.
Q.
A.
Arid he did field sobriety tests on you?
Yes, he did.
And he placed, handcuffs on you? .
Yes, he did.
And he put you in his patrol car?
Yes,he did.
And he'transported you to jail?
Yes, he did.
And he put you in jail?
Yes, ma'am, he did.
And you were charged with that offel)se?\
Yes, ma'am.
98
16 maintain your proper lane; right?
17
18
A.
Q.
Yes.
And you were also charged with a warrant arrest for a
!: ~
19 theft case; right?
20 A. Right.I", 21 Q. And so he executed a warrant on you for another
22 offense?
23 A. I don't recall getting a warrant, they told me about
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24 it the next day when I went in front of a judge.
25 Q. So the bottom line is, Jimmy Fennell placed you under
99
1 arrest for OWl, failure to maintain your lane, and a warrant on
2 November 5th of 1997; correct?-
! i
3
4
A.
Q.
Yes, ma'am.
And I imagine, Mrs. Barnett, you were none to happy
5 about that?
6 A; Yeah-, yeah, you can imagine that., :! [ 7 Q. Arid you probably did not want to have to face
8 criminal charges for OWl, did you?
\ .
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9
-10
11
12
A.
Q.
A.
Q.
1 don't know if I wanted to or not.
You weren't happy about i~ though, were you?
I can't say that I was happy or unhappy.
Okay. Well, most people aren't happy with being
13 charged with OWl or other criminal offenses, are they?
14
15
A.lcan't speak for everybody.
Q. Okay. And it's your testimony that you didn't tell
16 your lawyer about this in all the -- you dldn't tell anyone
17 about this in all of 1996, did you?
Q. No. You didn't tell anyone in 1996 about what you
say you saw on the morning of April 23rd of 1996; correct?
.~
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18
19
20
21
22
A.
A.
Q.
About the OWl?
Correct.
And you didn't tell anybody in April of 1996, May,
23 June, October, November Oecember of 1996, did you?
,-
24
25
-A.
Q.
Not to my recollection.
And you didn't tell anybody in 1997, did you?
100-
A. Yes, I did, I spoke to my parents and my family about
Q. And then you told your lawyer in January of 1998?
A. Yes, ma'am.
Q. And that's sort of what got this whole ball rolling,
6 wasn't it, when you told your lawyer?
8 for a conclusio~ on the part of the witness. What is this "got·
9 the whole ball rolling"? It calls for a conclusion on this
10 witness's part that her affidavit 'got something started, and so
11 we would object to it.
12 THE COURT: All right. And, Ms. Tanner, would
13 you clarify that for us. Thank you .
(--
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7
14 Q.
MR. OVERSTREET: I object, your Honor, it calls
(By Ms. Tanner) You telling your lawyer, Mr. Keng,
15 about this is what ultimately led to you being here; right?
16
17
A.
Q.
Ultimately, yes.
Okay. And, iri fact, I noticed that your lawyer's
18 wife is the one that notarized your affidavit; correct?
19
20
A.
Q.
Correct.
Okay. And so you tell your lawyer in January of 1998
21 about this, and so you tell your lawyer about this for first
22 time, somebody outside of your family for the first time, right
23 afterJi mmy Fennell has charged you wi th a crfmt nal offense;
24 would you agree with that?
25 A. I agree with that, but Jimmy didn't charge me with
101 .
1 anything.
2
3
4
Q.
A.
Q.
He took you to jail didn't h~?
He arrested me but he didn't charge me~
He's the officer ·that placed you under arrest and he5 was the officer that ultimately would have testified against6 you in that case; correct?
7
.8
A.
Q.
Correct.
Okay. And that. happened just before you told your9 . lawyer about what you say that you saw; correct?
'. ,!
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10
11
12
13
A. Correct.
MS. TANNER: No further questions.
MR. OVERSTREET: I have just a few questions.
REDIRECT EXAMINATION
14 QUESTIONS BY MR. OVERSTREET:
15 Q. Now the prosecution, obviously, and you understand,:;)
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16 is t~ying to establish that maybe you have a motive for17 claiming that it was Jimmy Fennell . Is it your testimony that18 you told another person, your parents, that Jimmy Fennell was19 the person you saw on the morning of April 23rd of 1996, long20 before this arrest?
21 A. Yes, sir.
22 Q. Well, let me just ask you, do you think you were23 drunk when he stopped you?
24 A. Yes, I was drunk.
25 Q. Do you think that may have some affect on your
102
1 inability to recognize hi~ on the night of your a~rest?
A., Yes, sir,: it did.2
3 Q. I m~an, if you were in control of your mental and
4 physical-faculties he probably never would have arrested you
5 for driving while intoxicated, would he?
6
7
A.
Q.
No, he wouldn't have.
So the mere fact that he stopped you and you were
8 charged ~ith it is some indication that maybe they Were
9 impaired?
Q. Are you making up -- did you sign an affidavit or
tell your lawyer about Jimmy Fennell in some sort of response
13 for retaliating against him arresting 'you for a DWI?
i,, '
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11
12
14
15
A.
A.
Q.
They were extremely impaired.
No, sir.
Now a matter that was discussed on cross-examination,
16 I know what you said in your affidavit, but are you telling
17 this Court that you saw Jimmy Fennell's picture, wherever you
18 saw it, and that it was in some connection with Stacey's
19 disappearance and murder?
20 A. Sir, I don't recall that the picture in the paper
21 that I saw of him had anything to do with Stacey Stites.
22
23
24
25
Q.
A.
Q.
A.
But you saw a picture of him?
Yes, I did.
And the picture had his name?
Yes.
103
1 Q. And is that when you made the connection that is was
2 the person that.you saw that· morning?
3rI:
4
5
6
7
8
9
A. Yes, sir.
paper. Are you one of those individuals who don't necessarily
read the paper, .youknow, read it rel i gi ousl y every morni ng
before you leave?
MR. OVERSTREET: No further questions.
RECROSS EXAMINATION
Yes, sir, it is.A.
A. No, sir, I don't subscribe to the paper but there's
always papers laying around and I pick them up and read them.
Q. And has the testimony that you have given today been
the truth and the whole truth as you know it?
Q. I know some people find it hard to believe, but I
think there are a large number of folk who just don't read the
10
11
12
13
14
15
] :I··.·'i· .'
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16 QUESTIONS'BY MS. TANNER:\111\ :
17
18
Q.
A.
You told us already that you did take the Statesman?
Yes, ma'am, I bought it but I didn't have a
19 subscription to it.
20 Q. Now in your affidavit you made it very specific, you
21 saw his picture a couple of weeks after this happened, after
22 Stacey was killed, in the Giddings Times and News; right?
23
24
25
A.
Q.
A.
Correct.
And it's not there, would you agree?
In those it's not there.
1 Q.
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Now you also told this Court all about how you saw
2 arms waiving and-acting out-in some sort of-~ apparently-in·
3 some sort of violence, correct, on the morning of April-23rd of
4 1996?
11 Q. - (By Ms. Tanner) You just sai d that you saw Stacey
12 Stites and the man that you recognized as Jimmy Fennell
13 standing in front of a red truck; right?
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105
4 questions, is th~t correct, and you're asking that she be
5 released? Or just excused subject recall by telephone if
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II .' 1 excused, unless the State has any objections.
2 MS. TANNER: No objection.
3 THE COURT: All right, so you have no furtherr·' .i :
6 necessary; is that correct?
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MR. OVERSTREET: Yes, that's okay.
THE COURT: Ma' am, if you' 11 make su re you 1eave
9 a phone number where if comes up we need you we will be able to
10 reach you. You may be excused.
11 (Witness excused from witness stand.)
.12 THE COURT: All right, it is now seven minutes
13 after 12, believe it or not, we've been here all morning.
14 All right, it's the Court's intention at this
17 1 :30.
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,I.. ' 15 time to take a break so that everyone can get a bite of lunch
16 and then we'll come back in and start back up with evidence at
Thank you very much.
(Luncheon Recess·.)
106
1 REPORTER I S CERTIFICATE
2 THE STATE OF TEXAS )
3 COUNTY OF BASTROP ),.'
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4 I, Carolee Murt~y, Official Court Reporter in and for the
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11 court or in chambers and were reported by me.12 I further certify that this Reporter's Record of the13 proceedings truly and correctly reflects the exhibits, if any,14 admitted by the respective parties.
15 I further certify that the total cost for the preparation16 of thi s Reporter I s Record is $ 2,2'1f?, 50 and was pai d by17 Bastrop County for indigent applicant.
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WITNESS MY OFFICIAL HAND this the 9th day of April, 2006.
if!tt~~Carolee Murray, Texas SR 1938Expiration Date: 12/31/2006Official Court Reporter335th District CourtBastrop County, Texas282 Xaanapali LaneBastrop, Texas 78602-5530TELE: (512) 581-4236 or (512) 321-2699FAX: (512) 581-7139
