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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 1

REPORTER'S RECORD

VOLUME 2 OF 21 VOLUME(S)

TRIAL COURT CAUSE NO. 1376698R

COURT OF APPEALS CASE NO. 02-14-00412-CR

THE STATE OF TEXAS

VS.

THOMAS OLIVAS

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IN THE 372ND JUDICIAL

DISTRICT COURT

TARRANT COUNTY, TEXAS

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PRETRIAL HEARING

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On the 29th day of January, 2014, the following

proceedings came on to be heard in the above-entitled

and numbered cause before the Honorable Scott Wisch,

Presiding Judge, held in Fort Worth, Tarrant County,

Texas;

Proceedings reported by computerized machine

shorthand with assisted realtime transcription.

KAREN B. MARTINEZ, CERTIFIED SHORTHAND REPORTER

Official Court Reporter

372nd Judicial District Court

Tarrant County, Texas

 FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS 3/27/2015 12:36:05 PM DEBRA SPISAK Clerk

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 2

APPEARANCES:

ATTORNEYS FOR THE STATE:

HONORABLE R. KEVIN ROUSSEAU

SBOT NO: 17324950

HONORABLE TAMLA S. RAY

SBOT NO: 24046687

Assistant Criminal District Attorneys

Tim Curry Criminal Justice Center

Fort Worth Texas 76196

Phone: 817-884-1400

Fax: 817-884-3333

ATTORNEYS FOR THE DEFENDANT:

HONORABLE TIM MOORE

SBOT NO: 14378300

Attorney at Law

115 West 2nd Street, Suite 202

Fort Worth, Texas 76102

Phone: 817-332-3822

Fax: 817-332-2768

- AND -

HONORABLE JOETTA L. KEENE

SBOT NO: 11165800

Attorney at Law

204 South Mesquite Street

Arlington, Texas 76010

Phone: 817-275-6611

Fax: 817-275-6621

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 3

CHRONOLOGICAL INDEX

Volume 2 of 21

PRETRIAL HEARING

January 29, 2014 Page Vol.

The Court Calls Case For Trial................ 6 2

Motion to Suppress............................ 7 2

STATE'S WITNESSES Voir

Direct Cross Dire Vol.

Stewart, Detective Byron 19,81 53 -- 2

Easley, Detective Daniel 88 106 -- 2

Both Sides Rest and Close..................... 121 2

State Waives Opening, Reserves Closing........ 123 2

Defendant's Closing Argument by Ms. Keene..... 123 2

State's Closing Argument by Mr. Rousseau...... 135 2

Court's Rulings............................... 139 2

Pretrial Hearing Concluded.................... 151 2

Court Reporter's Certificate.................. 152 2

ALPHABETICAL LISTING OF WITNESSES

Voir

Direct Cross Dire Vol.

Easley, Detective Daniel 88 106 -- 2

Stewart, Detective Byron 19,81 53 -- 2

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 4

EXHIBITS

STATE'S PRETRIAL

NO. DESCRIPTION OFFERED ADMITTED VOL.

* 1 Video Disc 12 12 2

(Tarrant-1376698R-RR-SXPT1.mp4)

* 1A Transcript to SX PT 1 13 13 2

* 2 Video Disc 12 12 2

(Tarrant-1376698R-RR-SXPT2.mp4)

* 2A Transcript to SX PT 2 13 13 2

* 3 Video Disc 12 12 2

(Tarrant-1376698R-RR-SXPT3.mp4)

* 3A Transcript to SX PT 3 13 13 2

* 4 Copy of Miranda Card 32 32 2

* 5 Consent to Search 35 36 2

* 6 Consent to Search 35 36 2

* 7 Consent to Search 35 36 2

* 8 Consent to Search 35 36 2

* 9 Consent to Search 35 36 2

* 10 Xerox Photograph 42 43 2

* 11 Xerox Photograph 42 43 2

* 12 Xerox Photograph 42 43 2

* 13 Xerox Photograph 42 43 2

* 14 Xerox Photograph 42 43 2

* 15 Xerox Photograph 42 43 2

* 16 Xerox Photograph 44 45 2

* 17 Xerox Photograph 44 45 2

* 18 Xerox Photograph 44 45 2

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 5

* 19 Xerox Photograph 44 45 2

* 20 Xerox Photograph 44 45 2

* 21 Xerox Photograph 44 45 2

* 22 Xerox Photograph 44 45 2

* 23 Xerox Photograph 44 45 2

DEFENDANT'S PRETRIAL

NO. DESCRIPTION OFFERED ADMITTED VOL.

* 1 List of Names Provided

by the State 75 75 2

 

(*) Denotes an exhibit designated for the record only.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 6

P R O C E E D I N G S

Wednesday, January 29, 2014 10:10 a.m.

(OPEN COURT, DEFENDANT PRESENT)

THE COURT: Prior to proceeding in what's

technically 1352014R, originally indicted as 1298688D,

both styled State of Texas versus Thomas Olivas,

documents have been prepared, served, request for notice

made, actual response to request for notice given, a lot

of legal paperwork was properly filed in the original

cause number, the 688D, last three digits. The case was

reindicted, and the 014R, which is the case that will

actually be tried, has some additional motions, legal

documents, subpoenas. And I told the parties, the clerk

of the court, everyone understands, that if these cases

involve an appeal of any legal issues by either side,

that the record of both cause numbers shall be

incorporated and forwarded upon proper request and be

made part of the record, instead of kill trees and

simply redundantly refile, reserve subpoenas, reissue

notices. And the parties are all in agreement with that

procedure and in fact requested it.

Is that accurate, State?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: Defense?

MS. KEENE: It is, Judge.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 7

THE COURT: All right. Secondly, we're here

for a motion to suppress in the 1352014R number, but

there are two motions filed in the original 688D number

of which one will be incorporated for purposes of our

pretrial hearing, the other has been superseded by the

new motion in the new cause number.

There is a motion to suppress evidence.

It's just styled Motion to Suppress. It's file-marked

November the 4th of 2013. And it addresses evidence

seized, physical evidence or photographs taken. That

motion -- there's a new motion to suppress evidence

that's filed that addresses that issue in the new cause

number.

And I understand the Defense believes that

motion to be superseded by their new motion in the new

cause number. Is that correct?

MS. KEENE: That's true, Judge.

THE COURT: And there's another motion filed

in the original cause number called Motion to Suppress

Statements, and I've been advised that motion is also

partially covered by a new superseding motion, but for

purposes of law, the Defense wants the Court to consider

and the State to be on notice that in addition to the

grounds in the new motion, they're also serving the

state statutory and constitutional grounds to suppress

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 8

statements that are alleged of the original motion but

aren't set out in the motion but factually the issues

will be addressed in the new motion.

Is that accurate? Does the new motion cover

the issues and there's just some law that you've

asserted in the prior motion that's not in the new

motion and you want that incorporated?

Let's take a break.

(Discussion off the record)

THE COURT: On the record.

We're hearing one motion to suppress for

purposes of a hearing that addresses evidence and

statements purportedly made by the Defendant under

various circumstances, but in addition to the law cited

in writing, any law either side wants to argue and bring

to the Court's attention of course is fair game, and

you're specifically wanting to incorporate the state

statutory and constitutional grounds to suppress the

statements that are in your original motion that somehow

the computer left out of your amended motion?

MS. KEENE: Correct.

THE COURT: All right. And the State

understands that and is prepared to deal with that?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: All right. Then I'm going to

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 9

close the original file and will allow the parties to

argue why the state constitution and statutes either

support or detract from the legality of any statements,

and I'll consider any law. And, plus, in all fairness

to the good lawyers who represent both sides in this

case, there's no rule that says you can't bring up any

applicable law at any time as a matter of argument. But

the facts of the original motions in the original case

are addressed by the new motion only, and so I'll only

hear the motion in the new cause number and decide all

the issues that are plead that deal with evidence and

statements.

All right. Anything for the record either

side needs to cover before we proceed with the motion to

suppress?

MS. KEENE: No, sir.

MR. ROUSSEAU: No, sir.

THE COURT: And, I guess, for the record,

there's a second motion to suppress styled First Amended

Motion to Suppress that deals with issues that don't

involve the testimony and issues raised by the original

motion and those will be dealt with once the first

motion is clear.

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: All right. Then...

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 10

MR. ROUSSEAU: First of all, Your Honor,

just for clarification, just so we're clear, I delivered

to you yesterday three discs accompanied by three

transcripts that -- well, anyway, three transcripts.

The first two discs and the first few transcripts all

come from an interview done on March 21st, 2011 at

Grapevine Police Department which would be the day

following -- the morning -- the day following the

offense. And have you had a chance to review all of

those?

THE COURT: Actually --

MR. ROUSSEAU: I'm sorry. State's Pretrial

Exhibit 1 and State's Pretrial Exhibit 2.

THE COURT: Actually, that's -- you hadn't

said that, but you've clarified that.

At the request of the parties I was provided

three sets of documents and three DVDs, digital video

discs, all purporting to show an interview of the person

I now recognize in court as the same person on the face

of those interviews, and, actually, I'm seeing ready-tobe-sworn other people who might have appeared on those

interviews, and they're marked State's Pretrial

Exhibit 1 and that one is also labeled "Interview Part

One, 3/21/11," March 21st, 2011. State's Pretrial

Exhibit 2 is marked and it says "Interview Part Two,

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 11

3/21/2011". Attached to each disc, or vice versa, was

what appears to be a transcription of the interview,

"part one" labeled in the upper right-hand corner of the

first page that corresponds to State's Pretrial

Exhibit 1, which is a 44-page document. "Part two" is

labeled in black ink in the upper right-hand corner.

It's a 43-page document. And there's a third disc --

might as well put this in the record now -- labeled

State's Pretrial Exhibit 3. It's described on the face

of the DVD in Sharpie as "arrest interview" or maybe

"post-arrest interview, 9/24/12," and there is a

transcription of that interview that doesn't have "part

one" or "part two" on it, but in the upper left-hand

corner says "Olivas, Thomas," cause number and

"Interview 9/24/2012, Officer BP Stewart," and it is a

46-page document.

With a laptop computer and Apple iPhone

earplugs, I watched, listened to and simultaneously

reviewed on the transcript each and every one of these

DVDs from what my opinion was pretty close to six hours

with intermittent breaks. And, in all fairness, I tried

to do it yesterday earlier and with all the other court

business and interruptions, I just gave it up and stayed

here until 9:00 o'clock last night, almost, to get it

done.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 12

I have made minor notes on the face of the

transcripts to keep up with what's going on and an

occasional highlight, and some of that was done just to

make sure I would keep up with the transcript and I'm

not losing pages. So no one should put any major

significance into what I wrote. But I did write at the

top of one "OJ in cuffs," so for reference, if I had to

stop and start, means orange jumpsuit and was cuffed at

the beginning of the tape, which refers to the 9/24

interview.

But if you want to offer for purposes of the

record at this time of this hearing State's Pretrial

Exhibits 1, 2 and 3, the DVDs, if there's no

authenticity issues, since everyone approved me looking

at them in advance, you can get that out of the way and

then you can just identify them.

MR. ROUSSEAU: I would like to offer them

for purposes of this hearing, Your Honor.

THE COURT: All right. Is there any

objection to State's Pretrial 1, State's Pretrial 2 or

State's Pretrial 3 for purposes of this hearing?

MS. KEENE: No, sir.

THE COURT: All right. Then each of the

DVDs as so identified is admitted into evidence.

(State's Pretrial Exhibit No. 1-3 admitted)

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 13

THE COURT: Off the record.

(Discussion off the record)

THE COURT: On the record.

The transcript that is labeled "part one" in

the upper right-hand corner that was attached to State's

Exhibit Pretrial 1 now has a court reporter exhibit

sticker "State's Pretrial 1-A". The transcript that was

labeled "part two" in the upper right-hand corner and

also on the left-hand side has the original cause number

and the date of the interview in the upper left-hand

corner, as did the part one section, part two is now

labeled State's Pretrial 2 and that was the one -- 2-A

which came attached to Pretrial 2. And the transcript

that deals with the 9/24/12 interview in State's Exhibit

Pretrial 3 is now labeled on the bottom right-hand

corner as "State's Pretrial 3-A".

Does the State offer those for purposes of

the hearing?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: Any objection?

MS. KEENE: None.

THE COURT: All right.

(State's Pretrial Exhibit No. 1A - 3A

admitted)

THE COURT: And the Court understands, and

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 14

the law is clear, it's what you hear is what counts, not

what's on the transcript, but it's there as an aid.

And, also, quite frankly, since they're in evidence, if

the parties have things they wish to discuss in detail,

my record and rulings I might pencil in, with the

permission of the parties, "on page six, line..."

whatever of an exhibit. If that comes up, y'all can use

that for reference, and we'll use the transcripts to

keep track of what we're talking about and that will

make it easier on any subsequent court, if there is some

issue. They'll be at a bigger advantage versus scanning

through a DVD.

MR. ROUSSEAU: No objection to you marking

the transcript any way you need to, to help you make a

ruling, Your Honor.

THE COURT: Agreed?

MS. KEENE: Agreed.

THE COURT: All right. And, again, let the

record reflect I've put a few little time things and

little notes and I had marked with a yellow highlighter

at different times and there's not any real significance

to that other than marking where I stopped if I took a

break and things like that. And I will be honest, every

now and then there was something that "hummmm" and I

might have just subconsciously marked as I listened,

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 15

pretending, thinking I'm the lawyer and not the judge,

from having done both of your jobs, but the yellow

marking has no significance, and I put it there. It

wasn't on the transcripts when they were delivered by

the State. Everything was black and white only. That's

my highlighter.

All right. Then off we go -- off the

record.

(Discussion off the record)

THE COURT: Go ahead.

MR. ROUSSEAU: I think we can get this out

of the way upfront.

Your Honor, although I have -- we have these

statements that we've been talking about, something that

I discovered only this morning, frankly, Detective

Stewart brought it to my attention, is that on the day

of the arrest, the interview dated 9/24, when he was

providing the warnings mandated by 38.22, one of the

warnings was inadvertently omitted, the second warning,

the one regarding any statement he makes may be used

against him in court.

I've done some research this morning. My

preliminary research indicates to me that that causes me

to lose this statement. That being the case, I will not

be asking you for a ruling today. I will acknowledge to

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 16

the Court that I believe right now today that the law is

against me on that and that it will not be properly

admissible in court.

I discussed this with the Defense and I'd

ask permission just to continue my research after today

and if I find anything to the contrary, perhaps revisit

this when we get ready for trial, and I will bring it to

anyone's attention if I do find anything. But I don't

believe as I sit here today that that is an admissible

interview.

THE COURT: And let me say, I've had this

happen before, particularly with multiple interviews,

and it's really easy to let it all run together, which

by practice is have a little sheet of paper and check it

off no matter how many millions of times you've done it.

But I've had this happen probably three or four times

over the course of 20 years in the umpire seat. It's

always been multiple interview things, and the one they

usually forget is "you can terminate the interview at

any time." It happens. It's a human system; life

happens.

I will say this. I will preserve everything

that I've reviewed on that, if there were an issue to

come up under an impeachment theory or some other legal

theory that circumvents the 38.22 specific technical

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 17

requirements. But the last time I looked at the law on

this, it was not a -- the substantial compliance is as

to what was said or how it was said, not to the fact it

wasn't said at all. And I think my guts tell me your

research to date is probably accurate unless there's

been something new.

MR. ROUSSEAU: That's where I believe we

are, Your Honor, but I'll keep checking.

THE COURT: Well, thanks for that.

MR. ROUSSEAU: With that, I'm ready to call

Detective Stewart.

THE COURT: All right. Come on up.

You want the witness rule?

MS. KEENE: Yes.

THE COURT: I thought so.

Why don't both of y'all come on up and I'll

swear you then put one of you back by the coffee pot.

Each of you state your full, legal names for

Karen.

THE WITNESS: Byron Stewart.

THE WITNESS: Daniel Wade Easley.

THE COURT: All right. Each of you face me

and raise your right hand.

(Two witnesses sworn)

THE COURT: You both have been placed under

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STATE v. THOMAS OLIVAS 18

witness rules on occasions of prior testimony; is that

correct?

THE WITNESSES: Yes, sir.

THE COURT: You understand what the rules

require, where you may and may not be, who you may and

may not talk to and about what and in whose presence

while the trial is in progress; is that correct?

THE WITNESS: Yes, Your Honor.

THE COURT: Was that a "yes" nod?

THE WITNESS: Yes, sir.

THE COURT: All right. Make sure you answer

out loud and even if we all know what you mean.

Then the rule is in place until this case

actually gets tried, even though today will only be

pretrial matters, and there will probably be a delay

before the trial on the merits happens for evidentiary

reasons. And so if I say something, you might know

about it, but if I say something now, I would be

violating the rule. So y'all can talk individually to

the lawyers about when the new trial date might be, but

"mum" is the word unless you're speaking in private with

the attorneys or their investigators about what you know

in order to assist in their preparation or to prepare

for your testimony.

So you can come on up and have a seat.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 19

(Witness takes the stand)

THE COURT: And, Detective Easley, you can

go back by the coffee pot.

(Witness excused from courtroom)

DETECTIVE BYRON STEWART,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. ROUSSEAU:

Q. You are Detective Byron Stewart; is that correct?

A. Yes, sir.

Q. Detective Stewart, are you a homicide detective

in the city of Arlington, Texas?

A. Yes, sir.

Q. Okay. And have you --

MR. ROUSSEAU: And with the Court's

permission, I'll lead a little bit to get to where we

need to be.

MS. KEENE: Absolutely.

THE COURT: That's fine.

Q. (BY MR. ROUSSEAU) And have you been a homicide

detective for a lot of years?

A. Yes, sir.

Q. I'll cut right to the chase then. Were you

assigned to investigate a capital murder, that is, a

murder involving two victims, that occurred at an

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STATE v. THOMAS OLIVAS 20

apartment in north Arlington on March the 20th of 2011?

A. Yes, sir.

Q. And did you -- ultimately did that investigation

reveal that the victims' names in that case were

Mechelle Gandy -- Mechelle, M-E-C-H-E-L-L-E, Gandy --

and Asher Ryan Olivas?

A. Yes, sir.

Q. And is it your understanding that Asher Olivas

was the child of Mechelle Gandy?

A. Yes.

Q. And did that homicide, those homicides,

essentially consist of Ms. Gandy being murdered by

cutting or stabbing at basically the same time that the

apartment is being caught on fire which caused the death

of the little baby?

A. Yes, sir.

Q. The little baby being Asher Olivas?

A. Yes, sir.

Q. So were you involved immediately, that is, from

the start, from the beginning of the night of March 20th

of 2011?

A. Yes.

Q. I want to move your attention somewhat forward in

the investigation. Did you become aware that the

individual, that the child, Asher Olivas, was purported

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 21

to be the biological son of an individual named Thomas

Olivas?

A. Yes, I did.

Q. And was it your understanding that there was some

sort of legal proceedings that had been initiated to

determine the parentage and ultimately to establish a

child support ruling regarding the child, Asher Olivas?

A. Yes.

Q. That is, a lawsuit had been established, had been

filed, that would ultimately result in the knowledge of

whether or not Mr. Olivas, Thomas Olivas, was in fact

the biological father of the child and in fact to

establish child support?

A. Yes.

Q. Okay. Were attempts made to contact Thomas

Olivas during the overnight hours between the fire

happening at the apartment and the next morning when the

sun came up?

A. Yes.

Q. And to your knowledge were any of those attempts

successful?

A. Not at that time, no.

Q. Is that a situation that you were monitoring;

that is, has anyone made contact with Mr. Olivas?

A. Yes, sir.

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STATE v. THOMAS OLIVAS 22

Q. And did you in the course of the early -- during

the part of your investigation did you determine that

Mr. Olivas lived in the city of Grapevine, Texas?

A. Yes, I did.

Q. And did you determine that he was employed at

Best Buy in Grapevine, Texas?

A. Yes.

Q. Did you do anything in regard to locating

Mr. Olivas, I mean locating where he actually was?

A. Yes.

Q. As opposed to where he lived?

A. Yes.

Q. Okay. Were Arlington police detectives

dispatched to locate Mr. Olivas sometime during the

morning of March the 21st?

A. Yes.

Q. And did you become aware during the day that

Mr. Olivas had in fact been located?

A. Yes.

Q. And was it that he was located at his job at Best

Buy?

A. Yes.

Q. Was this information related to you?

A. Yes, it was.

Q. And were you in Arlington at the time?

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STATE v. THOMAS OLIVAS 23

A. Yes.

Q. We're going to get to question-to-answer here in

a minute.

A. Okay.

Q. Was it brought to your attention that sometime

during the early -- during the afternoon that Mr. Olivas

had left his job and was en route presumedly back to his

apartment?

A. Yes.

Q. And were Arlington police -- well, were Grapevine

police personnel on scene at that apartment?

A. Yes, they were.

Q. Do you know whether or not contact was made with

Mr. Olivas after he had reached the parking lot of his

apartment?

A. Yes.

Q. Had you directed -- at that point in time did you

have a warrant to arrest Mr. Olivas?

A. No, I did not.

Q. Did you know for a fact whether or not Mr. Olivas

actually had any role in the death of his child and the

child's mother?

A. No, I did not.

Q. Was he -- how would you characterize Mr. Olivas

at that point in time?

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STATE v. THOMAS OLIVAS 24

A. As a person of interest and, also, as far as a

death notification that needed to be made.

Q. The death notification because he was the

purported father of the child?

A. Yes.

Q. All right. So once contact was made with

Mr. Olivas at the parking lot of his apartment, was that

information related to you?

A. Yes, it was.

Q. Did you make any type of request concerning

Mr. Olivas at that point in time?

A. I did.

Q. What did you do?

A. I contacted Detective Easley with the Grapevine

Police Department and I asked him if he would speak with

Mr. Olivas and ask him if he would be willing to be

transported to the Grapevine Police Department for

questioning.

Q. Do you know at that point in time whether or not

anyone asked Mr. Olivas whether they could conduct a

search of his premises, his apartment?

A. Yes, I am aware of that.

Q. And what was your understanding regarding whether

or not that consent was given?

A. My understanding is that he did give consent.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 25

Q. And do you recall who was on -- well, let me ask

you, who were you in contact with at -- who at that

parking lot were you in contact with?

A. Detective Easley with the Grapevine PD, Detective

Willis or Hummel with the Arlington police, as well as

Detective Layne Shimpaugh.

MR. ROUSSEAU: Just for the court reporter,

Shimpaugh is S-H-I-M-P-A-U-G-H.

Q. (BY MR. ROUSSEAU) And Detective Layne Shimpaugh

is a detective with the Arlington Police Department; is

that correct?

A. Yes, sir.

Q. All right. So you asked whether or not he

would -- anybody would give him a ride down to Grapevine

PD; is that correct?

A. Yes.

Q. Okay. Do you have any firsthand knowledge of how

he actually got to the Grapevine Police Department?

A. In my understanding, Detective Easley with the

Grapevine PD brought him to the...

Q. And I want to jump ahead a little bit. You

eventually interviewed Mr. Olivas, correct?

A. Yes, I did.

Q. And during that interview did he indicate to you

that it was in fact Detective Easley who had given him a

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STATE v. THOMAS OLIVAS 26

ride to the Grapevine PD?

A. Yes, he did.

Q. All right. Well, let's move back a little bit.

All right. Once you got word that he had

been contacted and that officers were dealing with him

at the complex, what did you do?

A. I started driving toward the city of Grapevine.

Q. And how long did it take you to get there?

A. I was rushing as fast as I could, but following

the rules of the traffic, it probably took me about

almost 30 minutes to get there.

Q. And when you arrived, where did you go?

A. Went straight to the police department in

Grapevine.

Q. Had you ever been there before?

A. I probably have in earlier times, but it's been a

while.

Q. When you got there, what did you do?

A. I contacted the person at the front desk, told

them who I was. They were -- I was told that, okay,

they were expecting me to come, so I was escorted to the

detective area.

Q. And in the detective area did you come into

contact with a person that you later came to know as

Thomas Olivas?

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STATE v. THOMAS OLIVAS 27

A. Yes, I did.

Q. And do you see that person present here in the

courtroom today?

A. Yes, I do.

Q. Could you point him out and describe an article

of clothing?

A. Sitting right here to my left wearing a dark

burnt orange jumpsuit.

THE COURT: What color is that?

THE WITNESS: It looks like Texas burnt

orange to me, but I can't tell if --

THE COURT: I don't think anyone at Texas

Tech would agree with that assessment.

Q. (BY MR. ROUSSEAU) I'm going to stand over here

and say: Is it this person?

A. No, it's not.

Q. Is it this person?

A. No.

Q. Is it this person --

A. Yes.

Q. -- in the firey red jumpsuit?

A. Is that firey red?

Q. That's pretty firey red.

A. Okay. Then firey red jumpsuit.

THE COURT: You need to slow down when

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STATE v. THOMAS OLIVAS 28

you're approaching all traffic intersections where the

lights run from left to right.

THE WITNESS: Okay.

THE COURT: But be very careful whether it's

yellow or red when there's so many choices.

I will let the record reflect when he asked

where is he, he looked at the Defendant, nodded toward

him and described where he's sitting in, I would call it

a Red Raider, I don't know if it would be firey, but

it's obviously red, and to be perfectly clear, it's not

close to burnt orange and that just happens to just be a

fact of color.

THE WITNESS: Okay.

THE COURT: But I have no doubt he's

referred to the Defendant in open court.

You may continue.

MR. ROUSSEAU: Okay. Thank you.

Q. (BY MR. ROUSSEAU) When you made contact -- is

this the same Mr. Olivas that we've been talking about

leading up to this point, as well?

A. Yes, it is.

Q. Once you made contact with him -- well, describe

where he was when you made contact with him.

A. He was sitting in the interview room at the

Grapevine PD.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 29

Q. We've had a chance to -- and we provided the

judge with a recording of -- with a video recording of

that interview and there's an interview room with the

Defendant sitting in it. Is that room where you first

made contact with him?

A. Yes, it is.

Q. And when we can actually see you walk into the

interview room, was that your first contact with him?

A. Yes, it is.

Q. Okay. It may speak for itself, but let me just

cover a couple of items. Was he -- when you made

contact with him, was he in handcuffs?

A. No, he was not.

Q. Was he in leg shackles?

A. No.

Q. Was he physically restrained in any way?

A. No, he was not.

Q. Was he fully clothed?

A. Yes, he was.

Q. In his normal civilian clothing?

A. Yes.

Q. Was there -- the door to the interview room, was

it open or closed?

A. It was open.

Q. Was there a police officer posted outside the

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 30

door?

A. No.

Q. Was there anything -- were his movements

restricted in any way?

A. No.

Q. And was he formally under arrest?

A. No, he wasn't.

Q. To your knowledge had he been threatened in any

way?

A. No.

Q. To your knowledge was he forcibly taken to the

Grapevine Police Department?

A. No.

Q. When you made contact with him did you tell him

who you were?

A. Yes, I did.

Q. Did you tell him what you do for living, that is,

you identified yourself as a police officer?

A. Yes.

Q. And did you provide to him the warnings that are

commonly referred to as Miranda warnings that are

specifically required by Article 38.22 of the Code of

Criminal Procedure?

A. Yes.

Q. And you did this even though he was not under

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STATE v. THOMAS OLIVAS 31

arrest, correct?

A. That's correct.

Q. Did he indicate to you that he understood each of

those warnings?

A. Yes, he did.

Q. Did you read those warnings to him from a card?

A. Yes.

Q. So you didn't just recite them from memory?

A. No.

Q. I want to show you what's been marked as State's

Pretrial Exhibit No. 4. Take a look at that.

Do you recognize that?

A. Yes, I do.

Q. Is that a photocopy of the -- I'm just going to

call it the Miranda card. Is that a photocopy of the

Miranda card?

A. Yes, it is.

Q. Is it a true and correct copy?

A. Yes, it is.

Q. There are some markings at the top, looks like in

ink. Can you explain to me what that is?

A. That is the signature of Mr. Olivas.

Q. Okay.

A. And the date.

Q. Did you read these to him individually?

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 32

A. Yes.

Q. Did you ask him, after each one, if he understood

the warnings?

A. Yes.

Q. And did he indicate that he did?

A. Yes, he did.

MR. ROUSSEAU: Your Honor, I'll offer for

purposes of this hearing State's Pretrial Exhibit 4.

MS. KEENE: No objection, Judge.

THE COURT: All right. Admitted.

(State's Pretrial Exhibit No. 4 admitted)

Q. (BY MR. ROUSSEAU) And you have the original with

you in your file; is that correct?

A. Yes.

Q. Did Mr. Olivas show any reluctance whatsoever to

talk to you?

A. No, he did not.

Q. How would you characterize his attitude regarding

assisting you in your investigation?

A. He was cooperative.

Q. Did you later -- well, did you proceed to inform

him about the substance of what you were -- the reason

you were there?

A. Yes, I did.

Q. You told him you were investigating the death of

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 33

Mechelle Gandy and his son?

A. That's correct.

Q. And did he, during the course of your interview,

acknowledge that Asher Olivas was, at least to his

knowledge, his son?

A. Yes.

Q. Did he continue to cooperate?

A. Yes, he did.

Q. At some point in time did you ask him if he would

consent to providing -- to allowing you to photograph

him?

A. Yes, I did.

Q. And did he consent to most of the photographs?

A. Yes.

Q. Was there any reluctance to consent to

photographs of his -- I'm just going to say his torso,

chest and back. That is something that would require

him to take off his shirt. Okay?

A. Yes.

Q. Did he have any reluctance to you photographing

those portions of his body?

A. He initially did, yes.

Q. Did he ultimately consent to that, agree to being

photographed in that way?

A. Yes, he did.

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STATE v. THOMAS OLIVAS 34

Q. And did he provide you with a signed consent to

take those photographs?

A. Yes.

Q. And I'll just back up a little bit. During the

time that -- the entire time that you were in the

interview room with him, did Mr. Olivas sign a consent

for the police to conduct various types of searches?

A. Yes, he did.

Q. Were you the one who was getting him to --

actually handing him the documents for him to sign or

was someone else doing that?

A. Someone else was at that time.

Q. Who was that?

A. Detective Easley.

Q. And is Detective Easley -- he's the same person

who's here today and was sworn in a little while ago; is

that correct?

A. That's correct.

Q. And was he present in the room for most of your

interview with Mr. Olivas?

A. Yes, he was.

MR. ROUSSEAU: May we take a couple-minute

break? I've got a few documents to mark.

THE COURT: That's fine. We'll take a short

recess.

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STATE v. THOMAS OLIVAS 35

(Break taken, 10:45 - 11:10 a.m.)

(OPEN COURT, DEFENDANT PRESENT)

(Witness on the stand)

THE COURT: You may proceed.

Q. (BY MR. ROUSSEAU) Let me show you what I've had

marked as State's Pretrial Exhibits 5, 6, 7, 8, and 9.

Take a look at those, please, and I'll ask you a

question about them.

A. Okay.

Q. Do you recognize each of those?

A. Yes, I do.

Q. Are they all true and correct copies of the

originals?

A. Yes, they are.

Q. Okay. Are all consents to search signed by the

Defendant, Mr. Olivas?

A. Yes, they are.

Q. In each of these, regarding each of these

consents, was the consent freely and voluntarily given?

A. Yes, it was.

MR. ROUSSEAU: I will offer for purposes of

this hearing State's Pretrial 5, 6, 7, 8, and 9.

MS. KEENE: No objection, Judge.

THE COURT: All right. State's Pretrial 5,

which says iPhone; State's Pretrial 6, which says buccal

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STATE v. THOMAS OLIVAS 36

swabs of skin and mouth, is admitted. Pretrial 7, which

says photographs and swab of body and clothing, is

admitted. Pretrial 8, which says green Ford Explorer

and the license number, is admitted. And Pretrial 9,

which says single family residence, 601 Park Boulevard,

No. 208, is admitted.

To be clear, 5, 6, 7, 8, and 9 are offered

for the record for purposes of evidence in this hearing

only at this time; is that correct?

MR. ROUSSEAU: Yes.

THE COURT: And they're all admitted,

without objection, on that basis at this time.

Is that correct?

MS. KEENE: That's correct, Judge.

THE COURT: Then so be it.

(State's Pretrial Exhibit No. 5 - 9

admitted)

Q. (BY MR. ROUSSEAU) All right. Let's talk

about -- well, let's take these one at a time. First of

all, the iPhone, did the Defendant hand you an iPhone he

had with him?

A. Yes, he did.

Q. And was that -- were some of the contents of the

iPhone recovered by the police there at Grapevine PD?

A. Yes.

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STATE v. THOMAS OLIVAS 37

Q. And where he gave you consent to get buccal swabs

of his skin and mouth, was that done there at Grapevine

PD?

A. Yes.

Q. And he gave you -- to your knowledge was the

consent for his apartment, the one at 601 Park

Boulevard, No. 208, was that search done?

A. Yes.

Q. And I want to focus on two issues then, one

regarding the photographs taken of his body. Did he

have any concern whatsoever with taking photographs on

any part of his body other than his torso, that is, his

chest, back and shoulder area?

A. No, he did not.

Q. He was fully comfortable with all that, correct?

A. Yes.

Q. Okay. But he did have concerns about taking off

his shirt and letting you take pictures of his chest and

back, those areas; is that correct?

A. That's correct.

Q. Did he at one point in time ask you -- when you

first asked him, did he say something to the effect of

"I would prefer to 'consent' with someone over that"?

A. Yes.

Q. And did you clarify by asking him, "consult," did

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STATE v. THOMAS OLIVAS 38

he mean "consult" with someone?

A. Yes.

Q. A little later on did you ask him specifically if

he meant an attorney, did he want to talk to an

attorney?

A. Yes, I did.

Q. And did he ever say that yes, he wants to talk to

an attorney?

A. No, he did not.

Q. Did he say, in fact, "I don't know who," or words

to that effect?

A. Yes, he did.

Q. Okay. Did you eventually -- did you ever tell

him that if he doesn't -- if he refuses to let you take

a picture of his -- that is, if he refuses to take off

his shirt and let you take a picture of his back and

chest, his torso, did you tell him that if he refuses

that you have to honor that?

A. Yes, I did.

Q. Did you specifically tell him that he is not

under arrest?

A. Yes, I did.

Q. Did you tell him that you can't do this unless he

consents to it being done?

A. I did.

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STATE v. THOMAS OLIVAS 39

Q. Were there -- was there a back-and-forth

conversation between yourself and him and between

Detective Easley and him regarding your need for these

photographs?

A. Yes.

Q. And did he indicate to you that he didn't want to

take off his shirt for two reasons; one, because he does

in fact have scratches on his body -- at some point did

he tell you that?

A. Yes, he did.

Q. And that you might misinterpret those, or you

might assume that that was evidence of his guilt?

A. Yes.

Q. And I'm not quoting here but words to that

effect, correct?

A. Yes.

Q. And -- but he acknowledged that they were there?

A. Yes, he did.

Q. Did he also offer as a reason for not taking off

his shirt the fact that he suffers from a skin condition

that he calls eczema?

A. Yes.

Q. Ultimately, after discussion of this for, I want

to say, roughly around 20 minutes, did he ultimately

agree to take off his shirt and agree to be

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STATE v. THOMAS OLIVAS 40

photographed?

A. Yes, he did.

Q. Did you -- in order to convince him to take off

his shirt and agree to be photographed, did you threaten

him?

A. No, I did not.

Q. Did Detective Easley threaten him in your

presence?

A. No, he did not.

Q. Did you have the ability -- there were a few

times when you were out of the room, correct?

A. Yes. That's correct.

Q. When you were out of the room were you monitoring

the interview that Detective Easley was conducting?

A. Yes.

Q. Did you at any time see or hear Detective Easley

threaten the Defendant?

A. No, I did not.

Q. And by "threaten," I mean did you tell him, first

of all, did you imply or state directly at any time that

he would be injured if he did not comply?

A. No, I did not.

Q. Did you state directly or imply that he would be

arrested if he did not comply?

A. No, I did not.

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STATE v. THOMAS OLIVAS 41

Q. Did you state clearly or imply that if he did not

comply that he would be charged with capital murder?

A. No.

Q. Or with any offense whatsoever?

A. No, I did not.

Q. And he ultimately consented; is that correct?

A. Yes, he did.

Q. And -- well, he had previously signed a consent

for the photographing of other parts of his body,

correct?

A. That's correct.

Q. When I say "other parts," I mean, he had no

problem with rolling his sleeves up and showing you the

tattoos that go all the way up to his shoulder, correct?

A. That's correct.

Q. It was simply the torso that he had concerns

about?

A. That's correct.

Q. So he allowed you to photograph his hands, his

wrists, his arms, everything up to his shoulder, but he

didn't want to take off his shirt, correct?

A. That's correct.

Q. But he ultimately did give you that consent,

right?

A. Yes.

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STATE v. THOMAS OLIVAS 42

Q. And he took off his shirt?

A. Yes, he did.

Q. And the photographing took what would you say?

Can you give an idea of how long it took to take those

photographs?

A. I would say roughly five minutes.

MR. ROUSSEAU: Sorry, Karen, I should have

had you mark these on the break.

THE COURT: We'll take a short recess.

(Pause in proceedings)

Q. (BY MR. ROUSSEAU) Okay. I'll show you State's

Pretrial Exhibits 10 through 15. Would you take a quick

look at those and tell me whether or not those are true

and correct, whether they fairly and accurately depict

the torso of the Defendant as it appeared that day?

A. Yes, they do.

Q. Were these photographs taken by Detective Easley?

A. Yes, they were.

MR. ROUSSEAU: I'll offer 10 through 15

subject to any objection by Defense, for purposes of

this hearing.

MS. KEENE: No objection for purposes of the

hearing, Judge.

THE COURT: For purposes of the record, the

parties are in agreement these are the photos, some of

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STATE v. THOMAS OLIVAS 43

which you can observe being taken on the...

MR. ROUSSEAU: Yes, Your Honor, I --

THE COURT: Video, where there's noises,

that this is what appears to be going on?

Okay.

MR. ROUSSEAU: Yes, Your Honor, and there

are others that I'm not marking simply because they're

not the ones that involve his torso, but they are

photographs taken at the same time.

THE COURT: And I guess for record purposes,

these are things that during the course of at least the

interview that's on Pretrial 1 and 2, this is going on

in the course of the same events as the conversation

that's being discussed at this time. These pictures are

taken contemporaneous with the interview at the

Grapevine Police Department?

MR. ROUSSEAU: Yes, Your Honor. Yes.

THE COURT: Joetta, you agree with that?

MS. KEENE: Yes.

THE COURT: Okay. Then 10, 11, 12, 13, 14,

and 15 are each admitted for purposes of this hearing,

pretrial exhibits.

(State's Pretrial Exhibit No. 10 - 15

admitted)

(Pause in proceedings)

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STATE v. THOMAS OLIVAS 44

MR. ROUSSEAU: Judge, in an abundance of

caution, we're going to go ahead and offer the other

photographs that were taken that day. I missed one

involving the torso, but I'll qualify them to the

witness real quick.

THE COURT: All right.

Q. (BY MR. ROUSSEAU) Let me show you State's

Exhibit No. 16 through 23. Tell me if you recognize

those as being other photographs that were taken at the

same -- during the same interview that we've been

discussing?

THE COURT: Short recess.

(Discussion off the record)

THE COURT: All right. Have you had the

opportunity to look at the exhibits?

THE WITNESS: Yes.

THE COURT: You may continue.

Q. (BY MR. ROUSSEAU) They all fairly and accurately

depict the Defendant as he appeared the day that you

were interviewing him, that is, March 21st of 2011?

A. Yes, they do.

MR. ROUSSEAU: I'll offer State's 16 through

23 for purposes of this hearing.

MS. KEENE: No objection, Judge, for

purposes of the hearing.

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STATE v. THOMAS OLIVAS 45

THE COURT: All right. State's Pretrial 16,

17, 18, 19, 20, 21, 22, 23 are each admitted without

objection, for purposes of the pretrial hearing only.

(State's Pretrial Exhibit No. 16 - 23

admitted)

MR. ROUSSEAU: I'm not representing that

these are sequential. I'm just admitting them in that

order.

THE COURT: I understand that 10 through 23

inclusive are pictures taken during the course of the

interview that occurred at the Grapevine Police

Department, or contemporaneous therewith, not as to any

particular order or time sequence.

And you may continue.

Q. (BY MR. ROUSSEAU) Now, Mr. Olivas is -- do you

know his age, at the time you were talking to him? If

you need to refer to something, please do.

It might be stated -- the date of birth

might be stated on the Miranda card.

THE COURT: So to be clear, are you asking

what his age was or what his birth date was?

MR. ROUSSEAU: Just how old he was. That

might be useful to him.

THE WITNESS: '82, so...

Q. (BY MR. ROUSSEAU) This was 2011, so about

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STATE v. THOMAS OLIVAS 46

29 years of age?

A. Yes.

Q. Did he appear to be of at least average

intelligence?

A. Yes.

Q. Did he have any difficulties understanding your

communications with him?

A. No, he didn't.

Q. Did he ask sensible questions in response, that

is, if he needed clarification?

A. Yes, he did.

Q. Did the answers that he provided make sense in

the context of your conversation with him?

A. Yes.

Q. So he understood what you were saying?

A. Yes, he did.

Q. And just to jump ahead just a little bit, at one

point in time, when you were asking for consent to

search the Explorer, did he indicate that he had no

problem with it but it's not -- he had misgivings about

giving consent because he didn't know if he had the

right to do that?

A. That's correct.

Q. Was it your understanding that was a loner car;

that is, it did not belong to him?

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STATE v. THOMAS OLIVAS 47

A. Yes.

Q. And was that the basis of his misgivings?

A. Yes.

Q. At some point in time toward the end of the

interview, did he actually use the term "lawyer up"? Do

you recall that?

A. No.

Q. Let me help you out just a moment, please.

First of all, are you familiar with the term

"lawyer up"?

A. Yes, I am.

Q. What does that mean?

A. I take it as one wants a lawyer at that point.

Q. Okay. Turn to the, if you would, please -- you

have the transcript with you; is that correct?

A. Yeah, I have two. Which one are you...

Q. It's the transcript, the second part of the first

interview, the one from March 21, the second part of

that interview.

A. The one that starts off with "male voice off

camera" or...

Q. Let me show you.

A. Okay.

This one?

Q. Yeah. Turn to the last page.

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STATE v. THOMAS OLIVAS 48

Did you ask -- I want to go up ahead of that

just a little bit. There was a question you asked. Did

you ask Mr. Olivas a question about Amanda and giving

consent to search her car?

A. Yes.

Q. Now, is Amanda Rowe the individual that you

understand to be the owner of that vehicle?

A. That's correct.

Q. And Amanda Rowe -- he, the Defendant, told you

that's who owned the car, correct?

A. That's correct.

Q. So when you refer to "Amanda", you're talking

about Amanda Rowe?

A. Yes.

Q. Your question to him at the end of that is, "If I

have to get -- so you think I need to call her and get

her permission for that?" What is his response?

A. On line 12?

Q. Yes.

A. "I can't say yes to that one cause -- cause and

knowing her, she'll lawyer up."

Q. "I can't say yes to that one cause and knowing

her, she'll lawyer up"?

A. Yes.

Q. So does that indicate to you that he knew that a

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STATE v. THOMAS OLIVAS 49

person could say no to something?

A. It does.

Q. And say, "No, I want to speak to a lawyer"?

A. Yes.

Q. Did he ever, himself, refuse to answer a question

and say, "I want to speak to an attorney first"?

A. No, he didn't.

Q. Even though you had asked him specifically

whether or not he -- when he first said he would like to

consult with someone, you asked him specifically if he

meant a lawyer, correct?

A. That's correct.

Q. Did the Defendant tell you, during the course of

your interview with him, what he did for a living?

A. Yes.

Q. Did he indicate to you that -- you already knew

about his job at Best Buy, right?

A. Yes, I did.

Q. Did you already know about his job as a waiter at

a restaurant called TruLuck's?

A. I learned that in the interview.

Q. So is it your understanding a waiter's job must

deal with the public and talk to the people one-on-one

and be able to understand what they need?

A. Yes.

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STATE v. THOMAS OLIVAS 50

Q. Did he also say he had another job?

A. Those are the only two that I recall.

Q. Do you recall him saying anything about being an

Air Force reservist?

A. Oh, yes.

Q. Being in the military?

A. Yes.

Q. Did he say -- do you recall him saying what

specifically he did for the military?

A. He was in the medical field.

Q. An EMT?

A. Yes.

Q. And did he exhibit some knowledge -- when

Detective Easley was obtaining a buccal swab, did he

seem to indicate some knowledge that he had regarding

buccal swabs?

A. Yes.

Q. Did you inquire of him -- during the course of

your interview, did you inquire, did you ask any

questions regarding his educational background?

A. As far as...

Q. Did you obtain an understanding of his level of

education?

A. Yes.

Q. Do you recall what that is?

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STATE v. THOMAS OLIVAS 51

A. He finished high school and had some college.

Q. All right. So, Detective, just to sum it up, did

the Defendant, in removing his shirt and allowing you to

take photographs of his torso, did he do that fully

understanding what his rights were?

A. Yes, he did.

Q. And did he knowingly, voluntarily and

intelligently waive those rights and allow you to -- or

allow you to have Detective Easley take those

photographs that we've seen here in court?

A. Yes, he did.

MR. ROUSSEAU: I will pass the witness, Your

Honor.

Oh, Ms. Keene was kind enough to copy me --

she called me before she sent this email to Detective

Stewart a couple of days ago, and she was kind enough to

copy me on the email, requesting him to list out every

individual that he talked to in connection with this

offense. While I think that is an appropriate inquiry

for the trial, I don't believe it's appropriate for

here, for this proceeding, unless it has some bearing on

Mr. Olivas' consent, the issues that are raised in the

motion to suppress. Just because she was kind enough to

let me know she intended to ask about that, before she

starts talking, I'm saying it now rather than objecting

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STATE v. THOMAS OLIVAS 52

later.

MS. KEENE: Judge, it's a discovery issue.

It will be dealing with our discovery motion. It's not

for --

THE COURT: It's not something for crossing

a witness on a motion to suppress. It's stuff for --

MS. KEENE: I would like to ask him on the

record under oath about the witnesses he talked to,

their names, for purposes of discovery and the discovery

motion.

THE COURT: Was this reduced to writing?

MS. KEENE: I think he -- I asked if he

could reduce it to writing. We could do it that way,

too. It doesn't matter.

THE COURT: Did you get the list?

THE WITNESS: Yes, sir.

THE COURT: Do you have a copy of the

written document that lists the names?

THE WITNESS: Typed.

THE COURT: Typed document?

THE WITNESS: Yes.

THE COURT: Do you have it with you?

THE WITNESS: Yes.

THE COURT: I mean, that you prepared

specifically in reference to her request?

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STATE v. THOMAS OLIVAS 53

THE WITNESS: Yes, sir.

THE COURT: Okay. If you'll give me that

document, the sheriff will go make a copy for the State

and a copy for the Defense. And...

MS. KEENE: And we can move on.

THE COURT: And you're good. If you want

one for the record, you can mark one for the record.

Make like four copies.

And that covers your concern?

MS. KEENE: Yes.

THE COURT: Well, there you go.

And, Detective, thank you for that.

And you may continue.

CROSS-EXAMINATION

BY MS. KEENE:

Q. Okay. I hope I don't have that many questions

for you.

A. Okay.

Q. Whenever Thomas was brought to Grapevine Police

Department, he was not under arrest?

A. Yes, ma'am.

Q. He was free to go?

A. Yes.

Q. Did you have probable cause to arrest him if you

wanted to?

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STATE v. THOMAS OLIVAS 54

A. No.

Q. Did you have probable cause to detain him if you

wanted to?

A. Just for the questioning. I had probable cause

to detain him for questioning, yes.

Q. To detain him for questioning?

A. Yes.

Q. What was the probable cause you had to detain him

for questioning?

A. Well, I would say just to, again, speak with him

about the offense and, also, again, for the notification

of the deaths.

Q. Is that something that you could have done at his

house as opposed to the police department?

A. It could have been done there.

Q. How come you made a decision to do it at the

police department as opposed to his house?

A. Due to the number of questions that I had and the

fact that I wanted it documented, as well, I asked that

he go to the Grapevine Police Department.

Q. So in your mind you've got probable cause to

question him as far as notification of the death,

correct?

A. Well, I wouldn't say probable cause. Just the

obligation to tell him, you know, what the situation

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STATE v. THOMAS OLIVAS 55

was.

Q. But he was certainly in your mind at this point a

person of interest?

A. Yes. To talk to him about the offense, yes.

Q. But you knew that you didn't have probable cause

to detain him to ask him those questions, at that time?

A. Probable cause to detain him?

Q. Yes.

THE COURT: Will you define what you mean by

"detain," Counsel, so the record will be clear and we'll

all be clear.

Q. (BY MS. KEENE) You believe you had probable

cause to hold him and say, "I have questions and you are

not free to leave"?

A. Everything that I did with him was voluntarily,

so I asked if he would be willing to come to the

Grapevine Police Department.

Q. If he'd said no, you believe you could have said,

"Stop, I need to ask you some questions"?

A. If he'd said no, I would have to honor that, at

that time.

Q. Okay. And so you felt like you did not have the

probable cause to talk to him if he chose not to talk to

you?

A. At that time, yes.

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STATE v. THOMAS OLIVAS 56

Q. And you'd sent out, you said, an Arlington police

officer and there's also a Grapevine Police Department

present at his apartment; is that correct?

A. Yes.

Q. And you also sent them out to his work?

A. Well, yes.

Q. How many police officers went to his work, if you

know?

A. It was the detectives in the fugitive unit. They

also do surveillance, as well, and I would say at least

two of them had gone to Best Buy.

Q. And was that Arlington police officers?

A. Yes.

Q. And they were fugitive officers?

A. Yes.

Q. How come you chose fugitive officers as opposed

to parole officers?

A. They were plainclothes and, again, they do

surveillance, as well.

Q. So they were more equipped to just go see if the

guy has even showed up for work, basically?

A. Yes.

Q. It was not their job to identify themselves as

police officers and to detain him or to talk to him?

A. No.

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STATE v. THOMAS OLIVAS 57

Q. And they did their job, they saw that he was at

work?

A. Yes.

Q. And then they followed him back the entire way,

from Best Buy to his house?

A. Yes.

Q. And when they got to his house there were some

Grapevine police officers that were present at the

apartment complex?

A. Yes.

Q. How many Grapevine police officers were present

at Thomas' apartment complex?

A. I don't know exactly how many, but I know there

were at least two, and that would be Detective Easley

being one and a uniformed officer.

Q. So whenever Thomas parked his car, got out of his

car, did anything happen with any of these police

officers, if you know?

A. As far as what exactly?

Q. Did he get to go in his house? How does he end

up, with all these police officers at his house, to

being in the police department, if you know?

A. I don't know exactly what happened. I just know

that he was eventually taken to the Grapevine Police

Department.

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STATE v. THOMAS OLIVAS 58

Q. Okay. And that's something -- Easley is here and

we can talk to him about that; is that fair?

A. That's fair.

Q. And it's your knowledge that Easley was one of

the persons that was present when this all happened,

when this event happened at his apartment?

A. That's correct.

Q. But, anyway, you were told that Thomas was

heading to the Grapevine Police Department?

A. Yes.

Q. Would Thomas have been allowed to get in his

truck and drive to the Grapevine Police Department?

A. I would assume he could have been, you know. It

just depends on what he and Detective Easley talked

about at the time.

Q. Would Thomas had been able to just go into his

house and shut the door?

A. Yes.

Q. How was Thomas brought to the police department?

A. My understanding, Detective Easley took him to

the police department.

Q. So he didn't bring his car?

A. No.

Q. He actually rode in a police car?

A. I don't know if it was a marked car, but, yeah,

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STATE v. THOMAS OLIVAS 59

it could have been a police car.

Q. He rode with the police, and we'll find out later

what type of car that was.

A. Yes.

Q. How many police officers do you think brought him

to the police station?

A. My understanding, it was just Detective Easley.

Q. And then once he got to the police station, how

long did he stay at the police station before you got

there to question him?

A. Well, I would consider the drive from his

apartment to the police department and then my time of

arrival, I would say he probably waited somewhere around

20 to 25 minutes.

Q. And in that 20 to 25 minutes was he free to go?

A. Yes, he was.

Q. If he got up and left, how would he get a ride

back to his apartment?

A. He would have to let Detective Easley know and

tell him what his desires were and at that point, take

him back.

Q. Okay. So once you've come into play and you get

there and begin to talk to him -- and we all can just

watch the video. I don't need to go -- the judge has

watched it. We've all watched it -- over the specifics,

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STATE v. THOMAS OLIVAS 60

but you begin to interview him; is that correct?

A. That's correct.

Q. And is everything that you said to him, any

interaction that you had with him, recorded?

A. Yes.

Q. Is there anything that you said to him or

anything that he said to you that is not recorded?

A. Not at that time, no.

Q. Are there -- do you know if there's any

recordings from Grapevine of anything they said or that

he said to them?

A. Prior to my arrival?

Q. Yes.

A. No, I'm not aware of anything.

Q. You don't know if there's any other tape

recordings or video recordings in regards to Thomas

Olivas, except for the ones that you took on that day?

A. That's correct.

Q. And then on the arrest day?

A. Yes.

Q. All right. Once you began to talk to him, he was

very cooperative?

A. Yes.

Q. And he agreed to answer your questions; is that

correct?

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A. That's correct.

Q. But you felt compelled to read him his warnings;

is that correct?

A. That's correct.

Q. How come?

A. Just in case his involvement was more than I knew

at the time.

Q. And so what were you worried about, if his

involvement was more than you knew at the time to read

him his rights, why was that important if he wasn't

under arrest?

A. I just wanted him to be fully aware of what his

rights were.

Q. Prior to you reading him his rights, did you ask

him about being able to look into his vehicle there at

the apartment? Do you recall?

A. No, I do not.

Q. Do you have the transcript?

This will be easier. I'll reference a page,

you can look at it, and then I'll ask you a question,

because I know it's, what, four hours, basically, of

conversation. It's going to be in the very first

transcript, page three, line ten to about line 30, that

general discussion in there.

THE COURT: Is ten, "Okay, we want to go

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STATE v. THOMAS OLIVAS 62

ahead and do the vehicle..." et cetera?

MS. KEENE: Yes.

THE COURT: Okay.

Q. (BY MS. KEENE) There's two transcripts from the

first report.

MR. ROUSSEAU: Byron, the first one is going

to start with "Male voice..."

(Pause in proceedings)

THE WITNESS: Okay. I'm sorry. What's the

question again?

Q. (BY MS. KEENE) All right. Basically, before you

read him his rights, you talk to him about the apartment

and the vehicle, searching it, correct?

A. That's correct.

Q. And he hesitates on the vehicle; is that correct?

A. That's correct.

Q. And he doesn't give you consent. And you say,

"Let's just talk about that in a minute," and then you

move on to the rights?

A. Yes.

Q. Is that fair to say?

A. Yes.

Q. And then you end up reading him his rights. You

basically said, "Let's just hold off on that." Y'all

had a small conversation, what, less than a minute

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STATE v. THOMAS OLIVAS 63

probably, in real time, and then you talk about a couple

of little things, but then you read him his rights; is

that correct?

A. That's correct.

Q. And then y'all talk about a number of different

things. And then now if you go over to the second

transcript and at about page 22 you revisit the issue

about the car. And does that kind of seem -- this would

be about two hours after the first conversation with the

car. So a significant time has passed?

A. Yes.

Q. Does that seem about right?

A. That's correct.

Q. Basically, you had a conversation with him about

the car. He's hesitant and does not give you consent.

Y'all then talk for two hours about a lot of things and

then you again bring up the car; is that fair?

A. That's fair.

Q. And you bring it up at about -- we can just --

line seven. Okay? You go back to his care, custody and

control of the car. Is that correct?

A. That's correct.

Q. And he tells you, "I can't give consent to that."

Is that correct?

A. That's correct.

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STATE v. THOMAS OLIVAS 64

Q. Is that a "no, I'm not giving you consent" to

you?

A. No. No, it's not.

Q. So if someone says, "I can't give you consent to

that," you don't take that as him saying, "I'm not

giving you consent to that"?

A. No.

Q. You take that as "I need to continue and ask a

lot more questions"?

A. I take that as "I need to make clarification on

why you can't."

Q. Okay. And so then you talk then for about, oh,

three or four pages on the transcript -- second

transcript, page 22, starting at about line seven -- and

then you guys talk and continue to talk about the car,

his ability and why you really need to look in the car,

get his consent; fair to say?

A. That's fair to say.

Q. And then it is not until page 24, line 38 that he

says, "Okay, then I'll give consent." Is that correct?

A. Page 24, line...

Q. Thirty-eight.

A. Yes.

Q. And so basically it took, on transcript, three

pages plus the first discussion to have with him before

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STATE v. THOMAS OLIVAS 65

he would give consent to look in the car; is that

correct?

A. That's correct.

Q. He had concerns about there being things in there

that might make look him guilty as well as him having

the authority to give you the consent; is that correct?

A. That's correct.

Q. And he talked to you about both of those issues

when he was making the decision to give the consent or

not; is that correct?

A. That's correct.

Q. So when he first told you, "I can't give consent

to that," he was referring to what you learned upon

talking to him more because he was talking about not

having the legal authority and also being concerned

about the smell of gas in the car?

A. That was his concern.

Q. Okay. So he had two concerns of why he could not

give consent, correct?

A. Correct.

Q. And you talked to him for these number of pages

and then he says, "Okay, then I'll give consent."

Correct?

A. That's correct.

Q. The judge can watch the demeanor and the manner

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STATE v. THOMAS OLIVAS 66

in which that conversation takes place because y'all

took a video of it?

A. That's correct.

Q. All right. Now, when we talk about the torso,

okay, that was really -- and in looking at this whole

interview, Thomas gave consent to look at his iPhone,

correct?

A. That's correct.

Q. No resistance at all?

A. That's correct.

Q. He just said, "Here, take my iPhone," correct?

A. Yes.

Q. You said, "What's this -- I think at some point

you say, "What's your password," and he gives out his

password for it. No problem. There's no talking him

into the consent for the iPhone, correct?

A. Yes, he gave consent.

Q. Or for the buccal swabs, the DNA; is that

correct?

A. Yes, he gave consent.

Q. For looking inside his house, correct?

A. He gave consent.

Q. But there was no talking him into that consent?

THE COURT: Am I understanding your

question, there was no prolonged discussion about it,

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STATE v. THOMAS OLIVAS 67

it's just...

MS. KEENE: Yeah, there you go.

THE COURT: "Can we do that?"

"Yes, that's fine." Is that what you mean

by "talking into"?

MS. KEENE: Yeah.

THE COURT: All right.

Is that correct?

THE WITNESS: Yes. Yes, Your Honor.

THE COURT: Okay.

Q. (BY MS. KEENE) In other words, "Can I look at

your iPhone," you know, you have consent, and he says

Yes. You don't have to have a long discussion about

whether or not he gives consent; is that correct?

A. Yeah, that was not a prolonged discussion.

Q. Where there were prolonged discussions was really

in two different areas. Is that from your memory? Am I

being correct?

A. Yes.

Q. One was the torso pictures, him taking his shirt

off and y'all taking pictures of his torso, and

the second one was the car, the search of the car; is

that correct?

A. Yes.

Q. And so if you look at what would be the second

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STATE v. THOMAS OLIVAS 68

interview, page eight, and you look at about page (sic)

11, this is the first time, I believe, that you begin to

talk to him about taking pictures of his body.

Okay. You see where I'm talking about, page

eight, line 11?

A. Yes.

Q. You say, "Are you willing to let me photograph

your hands?" And he says, "Yeah."

"How about your back and shoulders and all

that kind of stuff, will you let me do that?" And you

said, "I'd have to get consent."

"Actually on that one, I'm not... It's just

one of those things, uh, not yet, no," is that his

response?

A. I'm sorry. Hold on just a second.

Q. Well, actually I can keep it more simple than

this, than reading this. Whenever you first asked him

to take pictures of his torso, he said he did not want

to do that; is that correct?

A. That's correct.

Q. And then you begin, I think you testified on

direct, about a 20-minute conversation with him about

why he didn't want to do that, and that's when you

talked about the eczema and different things, correct?

A. That's correct.

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 69

Q. And then you also learned he was concerned about

the fact that he had scratches on his back. He also

didn't want to do it because of that, correct?

A. That's correct.

Q. So like the car where he had two different

concerns for why he didn't want to give consent, on the

body he had also two different concerns; one was he had

scratches and one was he was embarrassed by the eczema?

A. That's correct.

Q. And so it was after a 20-minute conversation with

him, after he said no, he didn't want to, to let the

pictures be taken, that he then says yes, instead of

reading every line. The judge has seen it, basically.

Is that about right?

A. Yes.

Q. He certainly said no in the beginning on the

taking pictures of his torso.

A. Are you asking me?

Q. Yes.

A. Yes.

Q. Okay. In fact, throughout the conversation you

had with him, you told him that you can get a search

warrant to take the pictures. Do you recall that?

A. No, I do not.

Q. Okay. Maybe you can clarify this. This is on

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 70

page 12. Maybe it's not you. Maybe it's Easley. It

says, "Actually, I can go get the search warrant."

"You can take the pictures." And I don't

know if that's a side conversation that's happened and

this is -- the transcript is revealing it incorrectly.

What is your memory of this?

A. I don't exactly know what that was, as far as in

relation to the pictures, but I don't think it's in

relation to the pictures.

Q. Okay. You think that's in relation to something

else? It just reads funny. It just reads...

A. I mean, you would have to talk to Detective

Easley. That "E" indicates it's him.

Q. Okay.

A. And so -- but there was no discussion as far as

search warrant for the pictures.

Q. So you never told Thomas in all this that you

could go get a warrant to take the pictures?

A. No, I did not.

Q. In fact, you didn't have probable cause to go get

a warrant to take the pictures, did you?

A. No.

Q. You were relying on his consent or you weren't

going to be able to get the pictures; is that correct?

A. Yes.

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 71

Q. And so that's why it was important for you to

continue to talk to him about letting you take the

pictures because he had said no. It was important to

get the consent.

A. Are you asking me that?

Q. Yeah.

A. Okay. I wanted the pictures and so I asked.

Q. But when he said no, you didn't honor the "no".

A. Well, my point was that he just needed to feel

comfortable as far as giving me the pictures and so I

asked him for the pictures on that basis.

Q. And when he said no, you didn't take "no" as an

answer?

A. That's correct.

Q. If he had said, "I want a lawyer. I do not want

to talk -- if you said, "Do you want to talk to me,

Thomas," and he said no, would you take that "no" as an

answer?

A. Okay. If he'd said he wanted a lawyer?

Q. Yeah.

A. Then I have to honor that.

Q. If you said, "You want to talk to me now," and he

said no, would you have to honor that "no" right then?

A. If he didn't want to talk to me?

Q. Yes.

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 72

A. No, I can still ask for that.

Q. So if he says, "I don't want to talk to you," you

can continue to talk to him?

A. If he says he wants a lawyer, I would have to

honor that. If he said he doesn't want to talk to me,

then, you know, it's my job to try to convince him to

talk to me.

Q. Okay.

MS. KEENE: May I approach the witness,

Judge?

THE COURT: Yes.

Q. (BY MS. KEENE) And I'm showing you what's been

marked as Pretrial 1. Is this basically the list of the

different witnesses that you or your team talked to

during your investigation in this case?

A. Yes.

Q. And this is something you prepared for the

pretrial hearing today? Or is this something you

already had prepared?

A. No, this is something I prepared.

Q. Okay. And you did it so that -- to basically

refresh your memory of what is really a lot of witnesses

that you talked to; is that correct?

MR. ROUSSEAU: Objection. Just a moment.

May I take him on voir dire on that point,

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 73

Your Honor?

THE COURT: Well, she hasn't offered it yet.

When she offers it, you can.

MR. ROUSSEAU: Well, it's the basis upon

which -- he prepared that in response to her request

that he do so, not to help him prepare for this hearing.

She asked him in an email to prepare it.

THE COURT: And that was the discussion off

the record of the email and the request and I think -- I

don't know if we were off the record when you were

saying is this hearing going into cross-examination

about discovery or is it going to deal with the

suppression motions. She sent an email. She

acknowledged. You got a copy. You acknowledged. I

asked him did he in fact respond to the request and he

showed me a document he prepared, that the deputy made

copies for everyone. And instead of her ask him to list

names or anything, there's a copy I told her she can

mark and offer to show these are the names we were

provided in response to the request instead of going

through a lengthy examination.

So I understand your concern about the

characterization of "this is done to refresh his

memory". Maybe that was poorly or unartfully worded

based upon the record that happened before, but I

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 74

understand he has a list she asked him to prepare. He

responded to her request. She has a copy, if she wants,

to put in the record to show this is a list of everyone

you talked to, to show her discovery concerns are

addressed. And if it's beyond that, then...

MR. ROUSSEAU: I understand, Your Honor.

That's fine.

THE COURT: I think we're in a different

situation.

MS. KEENE: It's not beyond that, Judge.

That's it. I didn't mean any characterization of

whatever was taken.

THE COURT: Well, I mean, what the

black-and-white will read, for posterity, is you

prepared this list to refresh your memory, to assist you

in trial versus you prepared this list because I asked

you to please make a list of all the witnesses and you

responsibly and professionally did what I asked as

opposed to have the judge order it. And so in light of

the context, I understand Kevin's concern, but it's a

discovery issue, and it's still your witness and it's

marked Defense Pretrial 1, so you may continue.

Q. (BY MS. KEENE) So in Pretrial 1, you prepared

this list in response to me sending you an email and

asking you to prepare the list; is that correct?

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STATE v. THOMAS OLIVAS 75

A. That's correct.

MS. KEENE: I'll offer Pretrial 1 for

purposes of this record, Judge -- I mean -- for purposes

of this hearing.

MR. ROUSSEAU: No objection for purposes of

this hearing.

THE COURT: All right. It's admitted and

it's admitted for purposes of the pretrial hearings in

general, not just the motion to suppress but including

any other motions that have been filed that have been

largely responded to without a court order, and I'm

happy to say on behalf of both sides in their

professionalism.

(Defendant's Pretrial Exhibit No. 1

admitted)

THE COURT: You may continue.

Q. (BY MS. KEENE) Did you ever talk to Thomas

outside of the two interviews that you recorded?

A. Yes.

Q. And when did you talk to him?

A. He called me on the phone a couple of times.

Q. Do you know when he called you on the phone?

A. Well, no, actually. I did not document those

times that he called.

Q. How long would you talk when he called you on the

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STATE v. THOMAS OLIVAS 76

phone?

A. Very briefly, at some point about the status of

the case. At one point I think he told me about an

attorney, that he was trying to contact an attorney.

Q. Okay. And what attorney was that he was trying

to contact?

A. I don't know exactly which one. I mean, it was

on his own, but he had mentioned that he was trying to

contact an attorney.

Q. And how long after the -- was this in between the

first conversation and the second conversation?

THE COURT: Are you talking about the first

video and the second video?

MS. KEENE: Yeah.

THE WITNESS: The first video on the -- when

he first -- when I talked to him?

Q. (BY MS. KEENE) It was after that but before the

arrest?

A. It was after that conversation.

Q. About how long after the March 21st, 2011

discussion with him did he call you?

A. I want to say a couple of days after that.

Q. And is that when he talked to you about he was

contacting a lawyer?

A. No. Again, the first conversation was about

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 77

what's going on and numbers that I can get in contact

with other people to verify where he was and stuff at

the time and then I would say maybe a month after that

he talked to me about an attorney.

Q. So a couple of days after this who did he tell

you that you could contact in the numbers that he gave

you? Do you recall that?

MR. ROUSSEAU: I object, Your Honor, for

purposes of this hearing. We're outside the scope of

the hearing.

THE COURT: I am going to allow limited --

there's a motion to suppress statements of the Defendant

and since this is a conversation, I'm going to allow it

to go as long as it deals with the substance of the

conversation, in case this comes up later so it's in the

record and we've dealt with it. I'm not going to let

her ask did he call those people, what did they say, but

as far as any conversation with the accused, I'll allow

her to go into those, whether they're on video or not.

So you may continue -- read the last

question back to the witness.

THE REPORTER: "So a couple of days after

this who did he tell you that you could contact in the

numbers that he gave you? Do you recall that?"

THE COURT: You can answer.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 78

THE WITNESS: I think he gave me the name of

Isaac Huerta and Wasim -- I can't recall his last name.

These are two friends of his.

THE COURT: And hold on. What was that

second name?

THE WITNESS: Wasim, I think is his first

name.

THE COURT: Can you spell that, as best you

understood it, for the court reporter?

MR. ROUSSEAU: Your Honor, I can provide the

names, the first and last names, if it would be helpful.

THE COURT: You know that individual so you

can give that to Karen at the end of the hearing.

MR. ROUSSEAU: Yes.

THE COURT: Thank you.

You may continue.

Q. (BY MS. KEENE) Do you know if he gave you any

other names or numbers, if you recall?

A. I can't recall.

Q. But you know it was a short conversation, long

conversation?

A. Short.

Q. And he called you and basically gave you these

names, numbers of different people you could contact?

A. Either he called me or I called him. You know,

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 79

it could go either way.

Q. And then it was after that conversation, about a

month later, that he called and told you that he was --

A. Roughly, again, either I called or he called

trying to maintain contact.

Q. And is that when he talked to you about he was

talking to a lawyer?

A. He mentioned that he talked to his parents, or

something like that, and that they were trying to look

for an attorney, or something like that.

Q. And was there ever a time that you actually

talked to a lawyer about Thomas?

A. No.

Q. Do you recall a lawyer calling you and you

talking to a lawyer about Thomas Olivas?

A. I can't recall.

THE COURT: Just so I'm clear, does that

question refer to the timeframe between the two recorded

video interviews?

MS. KEENE: Yes, sir.

THE COURT: All right. Did you understand

the question that way?

THE WITNESS: Yes.

THE COURT: All right. You may continue.

Q. (BY MS. KEENE) Do you recall on one of these

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 80

interviews, and I'll look it up and figure out which one

it was, but I believe it was with Margie Campos, telling

her that you had talked to a lawyer of Thomas'?

A. I can't recall but -- I just can't recall.

Q. Okay. So you don't have any memory of a lawyer

calling you and telling you not to talk to Thomas?

A. No, I do not.

Q. Or a memory of a lawyer telling you that Thomas

was invoking his Fifth Amendment rights from that day

forward?

A. I don't recall.

Q. Would you have written that down if that

conversation took place, or possibly, or not?

A. It depends on where I was at the time. It could

have been on my cell phone. You know, it just depends.

Q. Okay. So if he called you on your cell phone and

you're working another case, it may not be something

that ended up getting in your file?

A. Yeah. It depends on where I was at the time.

Q. And you just don't recall if you had a

conversation with another lawyer?

A. I just can't remember, but that doesn't mean it

didn't or did occur.

Q. Okay.

MS. KEENE: I'll pass the witness, Judge.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 81

MR. ROUSSEAU: Just a few more questions,

Your Honor.

REDIRECT EXAMINATION

BY MR. ROUSSEAU:

Q. First of all, let's make clear what we're talking

about --

MR. ROUSSEAU: And, Your Honor, this is as

much for the record as anything else. The term "first

and second interview" have been tossed around here quite

a bit. Let's make clear for the record, there was a

single, unitary interview done on March the 22nd (sic)

of 2011. It was long and it takes up two discs, and so

we have two discs and two transcripts to go with those

discs but it's a single interview.

THE COURT: And the way that's been pitched,

probably the record is better discussing the "Grapevine

interview" or the "Arlington interview", the "pre-arrest

interview" or the "post-arrest interview". That's

probably better terminology. And, in fact, on the end

of one of the discs there's a part that says, "The disc

is going to be empty. We need to stop and put in a new

disc." I think the transcripts are clear. They have

two interviews identified on two separate dates. But

two discs, one interview, one on the other, I can see

how that can be confusing.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 82

MR. ROUSSEAU: My partner just told me that

I said March 22nd. I meant to say March 21st.

THE COURT: I think the dates are written on

the face of the transcripts and the DVDs and in

testimony. And on the face of the exhibits it says this

is what the date is.

You may continue.

Q. (BY MR. ROUSSEAU) All right. Just to clarify a

couple of things. Let's look at the first transcript,

the first portion of the March 21st interview. When you

are discussing with the Defendant, when he first says

something about the car -- you ask him about consent to

search the apartment and consent to search the car. Do

you recall that?

A. Yes, sir.

Q. That's going to be on page two occupying

basically the top half of the page. Were you on the

telephone at that time?

A. Yes, I was.

Q. So when you're -- a part of the -- your words

spoken on this page, you're actually speaking to someone

on the telephone, correct?

A. Yes, I am.

Q. So when you ask him about the car, were you at

the same time talking to someone on the telephone who

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 83

was actually present at the apartment complex with the

car?

A. That's correct.

Q. Was that person asking you if they had consent to

search the car?

A. Yes, they were.

Q. Okay. So they weren't going to search the car

until they had consent, correct?

A. That's correct.

Q. And is that when you asked him if he'd given

consent to search the car?

A. That's correct.

Q. Because you'd been in the room for all of three

or four minutes at that time, right?

A. That's correct.

Q. And these things were happening before you ever

arrived in the room, correct?

A. That's correct.

Q. So in asking him these questions, at the same

time that you're on the phone, are you trying to assess

what the status of the situation is right then?

A. I am.

Q. Okay. And so when he said something about the

car, not giving permission to search the car, is that

when you essentially said, "We'll get to that later,"

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 84

and you're talking to the person on the phone as well as

Thomas?

A. That's correct.

Q. Thank you.

Talking about his initial reluctance to

remove his shirt. When he would say he didn't want to

pull off his shirt, did he give you several reasons at

various times as to why he didn't want to take off his

shirt?

A. Yes, he did.

Q. They included, first of all, he had scratches on

him that he thought might make him look guilty, correct?

A. That's correct.

Q. So did you attempt to address that concern of

his?

A. I did.

Q. Later did he indicate to you that he had --

because he claims that he suffers from eczema was one of

his concerns regarding the appearance of his torso?

A. That's correct.

Q. That is, it was just embarrassing; is that

correct?

A. That's correct.

Q. So did you attempt to address that concern?

A. I did.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 85

Q. Okay. And later did he say that he didn't want

to take off his shirt because of the discomfort, that he

immediately goes into -- his skin starts to revolt and

it itches like crazy the second it's exposed to air, did

he say something along those lines?

A. Yes, he did.

Q. Okay. Did you attempt to address those concerns

by saying, "We'll be quick"?

A. I did.

Q. Okay. So as opposed to him just flatly saying,

"No, I'm not going to do it," he would say, "No, and..."

this is why, correct?

A. Correct.

Q. And then you would attempt to address those

concerns?

A. That's correct.

Q. Because you did want the photographs, right?

A. I did.

Q. While the time -- during the time that you were

there with Mr. Olivas at Grapevine PD, was he ever

formally placed under arrest?

A. No, he was not.

Q. Was he under arrest -- when you left the

Grapevine Police Department that night was Mr. Olivas

under arrest?

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 86

A. No, he wasn't.

Q. Do you know how Mr. Olivas -- well, was he put in

jail that night?

A. No, he was not.

Q. Did you make any requests about -- concerning

getting him back to his apartment?

A. Yes.

Q. Tell us about that.

A. I inquired the Grapevine officers that someone

get him back to his apartment.

Q. And during the course of the interview had

Detective Easley, or the Defendant himself -- and I

apologize, I can't remember which -- at one point in

time indicate that some of Mr. Olivas' property was

actually in their car, the car belonging to the

Grapevine Police Department?

A. Yes.

Q. You didn't have it?

A. No, I did not.

Q. Okay. Was this in the context of talking about

how he'd gotten there in the first place?

A. Yes.

Q. So you made a request that somebody take him

home, correct?

A. That's correct.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 87

Q. When you left -- then you left, right?

A. Yes.

Q. Do you know how he actually got home that night?

A. I don't know exactly how, but I would assume

through Grapevine Police Department.

Q. It was somebody, somebody that wasn't you,

correct?

A. Yes.

Q. Do you have an understanding one way or another

about whether he was in fact taken back to his house

that night?

A. Yes.

Q. What is that understanding?

A. That he was taken back.

Q. You just don't know how?

A. No.

Q. Okay.

MR. ROUSSEAU: I'll pass the witness.

MS. KEENE: I have no questions, Judge.

THE COURT: All right. May the witness be

excused for now?

MS. KEENE: He may.

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: All right. You're excused

subject to witness rules.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 88

(Witness excused from courtroom)

MR. ROUSSEAU: Detective Easley.

(Witness takes the stand)

THE COURT: State your full, legal name

again for the court reporter.

THE WITNESS: Daniel Wade Easley.

THE COURT: Who was sworn before we started.

State may proceed.

DETECTIVE DANIEL EASLEY,

having been first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. ROUSSEAU:

Q. Detective Easley, you're with the Grapevine

Police Department; is that correct?

A. Yes, sir.

Q. And how long have you been with the Grapevine PD?

A. Since 1999.

Q. Coming up on 15 years now?

A. Yes, sir -- actually, I'm sorry, I've been a

police officer since 1999. I've been at Grapevine since

2002.

Q. We're not going to reinvent the wheel here so let

me just kind of jump to the chase.

Were you requested to assist -- on March

21st, 2011, were you requested to give some assistance

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 89

to the Arlington Police Department in connection with a

homicide that occurred in their city?

A. Yes, sir.

Q. And what is the first thing you did, sir?

A. From what I recall, I responded to 601 Park, I

believe, to watch the residence of the suspect, or the

person of interest.

Q. Did you have a name for that person of interest

at that time?

A. Yes. As I was responding out there, I was told

that I'd be looking for Thomas Olivas and a picture was

given to me.

Q. And I think -- you and I discussed this last

night, correct?

A. Yes, sir.

Q. Do you recall whether or not you got a -- whether

that picture was given to you electronically?

A. I believe it was, yes, sir.

Q. In any event you had a photograph of Mr. Olivas,

at least the person that you were anticipating, that you

were looking for?

A. Yes, sir.

Q. Okay. And about what time of the day did you get

to his apartment?

A. From what I recall and without looking --

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 90

Q. Feel free to look at your report if it will help

you.

A. It was about 8:30, is about when I was told to go

out and help, so somewhere around 8:30 in the morning.

Q. Were there other officers on the scene, as well?

A. Yes, sir. Other officers had been sent out

earlier to do other tasks so...

Q. At some point in time did you become aware that

Mr. Olivas was expected there shortly?

A. Yes. I had been informed by two Arlington

detectives that they believed he was en route to the

location I was at, the residence.

THE COURT: All right. Time out.

(Discussion off the record)

THE COURT: You may continue.

Q. (BY MR. ROUSSEAU) At some point, anyway, you got

word that he was on his way home?

A. Yes, sir.

Q. And 601 Park Boulevard, is that an apartment

complex?

A. Yes, sir.

Q. Was there a specific apartment that you were

setting up on?

A. Yes, sir. It was Apartment 208.

Q. And did you witness a vehicle drive into the

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 91

parking lot that you had come to associate with this

person?

A. Yes.

Q. And was it a dark green Ford Explorer?

A. Yes, sir.

Q. Did the person get out of the car and proceed to

walk toward their apartment or --

A. Yes.

Q. -- toward his apartment?

A. Yes.

Q. Okay. And did you make contact with him?

A. Yes.

Q. About what time of day was this?

A. About 3:20, a little after 3:20 in the afternoon.

Q. Around 3:20 is when you got word he was on the

way, correct?

A. Yes.

Q. And it was shortly after that?

A. Yes.

Q. The person that you made contact with there in

the parking lot, do you see him present here in the

courtroom?

A. Yes.

Q. Could you point him out and describe some article

of clothing, please.

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 92

A. Yes, sir. He's sitting over to my left wearing a

red shirt.

MR. ROUSSEAU: Your Honor, may the record

reflect the witness identified the Defendant?

THE COURT: It may for purposes of this

hearing.

Q. (BY MR. ROUSSEAU) When you made contact with

him, initially, when you first made contact with him,

was anyone with you?

A. Yes.

Q. Okay. Who was with you when you made contact

with the Defendant?

A. Initially there was another detective from

Grapevine Police Department, her name was Detective

Rebecca Graves, and followed up very shortly by the two

Arlington detectives.

Q. So the two of you approached him together?

A. Yes, sir.

Q. How were you dressed?

A. In a dress shirt, slacks, very similar to how I'm

dressed now without the sport coat, wearing a badge and

a firearm, handcuffs, magazine, things of that nature.

Q. You were not in uniform?

A. No, sir.

Q. Were you driving a marked police unit?

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 93

A. No, sir.

Q. Was Detective Graves?

A. No, sir.

Q. So she was dressed similar to you?

A. Yes.

Q. Okay. Did you identify yourself as a police

officer?

A. Yes.

Q. Did you tell him anything about why it was that

you were there to talk to him?

A. No, sir.

Q. Did you know anything about the details of the

offense?

A. Not at this time, sir.

Q. You subsequently found out, though?

A. Yes.

Q. You said that you were joined shortly after that

by a couple of Arlington police detectives; is that

correct?

A. Yes.

Q. What is shortly after that? Give us some

approximation of the elapsed time between you making

contact and then the Arlington people showing up.

A. No more than probably four minutes or so, two to

four minutes.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 94

Q. Okay. Did the Defendant -- well, did you arrest

him?

A. No, sir.

Q. Did he make any comments to you while you were

standing there waiting for Arlington police to show up?

A. Yes. A comment that I noted, which I thought was

a little odd, he had made a comment. And I'll have

to -- he asked if we could go inside before his

neighbors think that he killed Rebeca and his daughter,

and I noted that in my report.

Q. I want to jump ahead a little bit in the story.

You later sat in on an interview with the Defendant; is

that correct?

A. Yes, sir.

Q. And he clarified that comment in some fashion,

correct?

A. Yes. He said that if he had known the

circumstances of the investigation, he wouldn't have

made that comment.

Q. Okay. Did you ask the Defendant what time he had

left for work that morning?

A. Yes. At some point I had asked him -- I remember

in my report I noted he indicated he left for Best Buy

between 8:30 and 8:45 in the morning.

Q. Now, do you recall whether or not that -- and I'm

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 95

looking at your report just like you're looking at your

report. Do you recall whether -- that back-and-forth

between you and him regarding what time he left for

work, do you recall whether that happened there in the

parking lot or was it later during the interview, do you

know?

A. I don't recall.

Q. Okay. You wrote this report when?

A. It would have been that evening or possibly early

the next day.

Q. Did you provide the Defendant a ride down to the

Grapevine Police Department?

A. Yes, sir.

Q. And about what time was that?

A. About 3:45 in the afternoon, is what I noted in

the report.

Q. So he had gotten home shortly after 3:20 in the

afternoon and by 3:45 -- or around 3:45 in the afternoon

you were headed to the Grapevine Police Department with

him?

A. Yes.

Q. Was he in custody?

A. No, sir.

Q. Did you tell him he had to go?

A. No, sir.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 96

Q. Was anyone else in the car with you other than

the Defendant?

A. I don't believe so. I believe, actually, I may

have transported him myself. I don't know for certain.

If there was anybody else in the car -- there may have

been another detective, only so she could get to the

police department, but not that I recall.

Q. Assuming it was just you and the Defendant, or I

guess even if there had been another police officer with

you, where would the Defendant have sat in the car?

A. I believe, and I don't recall for certain, but I

believe he sat in the passenger seat of the car.

Q. Front seat?

A. Yes.

Q. If you have someone in custody, where do they

seat?

A. In the backseat.

Q. Did you -- during the course of the interview

that later took place with Detective Stewart did you

obtain written consents from the Defendant and actually

collect some samples, say, for example, a buccal swab

and swabs from his hands, that sort of thing?

A. Yes, sir.

Q. And I am not going to go over it in great detail.

We have the video. We've seen those. But you are the

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 97

one that actually collected those items; is that

correct?

A. Yes, sir.

Q. All right. I want to move ahead a little bit.

I've already mentioned the fact that you took part in an

interview. This was not a Grapevine case, right?

A. Correct.

Q. You were there I guess more as a courtesy; is

that right?

A. Correct.

Q. I want to ask you -- when I say courtesy, I

guess, I mean courtesy to whom?

A. Arlington Police Department.

Q. While you were in the presence of the Defendant,

did anyone threaten him?

A. No, sir.

Q. Did anyone harm him in any way?

A. No.

Q. Did anyone -- was he ever placed in handcuffs?

A. No, sir.

Q. Was he ever restrained in any way?

A. No, sir.

Q. We have the video, of course, and we've seen the

Defendant sitting alone in a room prior to Detective

Stewart's arrival?

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STATE v. THOMAS OLIVAS 98

A. Yes.

Q. And he's in that room alone; is that correct?

A. Yes.

Q. Do you recall if the door was open or closed to

that room?

A. The door, right before the interview started the

door remained open.

Q. Tell us about what's outside that door.

A. There's an office -- well, there's a series of

offices. The most immediate office belongs to our

investigative assistant.

Q. Investigative assistant, so is that a male or

female?

A. Female.

Q. Is she a police officer?

A. No.

Q. Does she wear a police officer's uniform?

A. No.

Q. Does she wear a firearm?

A. No.

Q. Was there -- in addition to her, was there a

police officer setting up on that door to make sure he

didn't leave?

A. No, sir.

Q. At various times during the -- or at least at

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STATE v. THOMAS OLIVAS 99

some point in time during the interview during a break

does the Defendant get up and wonder out of the room?

A. Possibly. I don't recall exactly.

Q. All right. And I don't know if you watched that

portion of the interview or not.

A. Not that I recall, watching that portion of the

video, that is.

Q. Was he deprived of water? Did he have water

while he was there?

A. Yes.

Q. Okay. Was he offered a chance to go to the

restroom?

A. Yes.

Q. There is -- do you have -- did I give you a copy

of the transcript when we met last night?

A. Yes, sir.

Q. Okay. Do you have it with you?

A. Yes.

Q. The part that I'm asking you about is going to be

in the second -- there's two portions of the transcript,

part one and part two. I want to turn your attention to

part two. Okay?

A. Okay.

Q. It's going to be page -- I think I'm correct.

Let's go to page 12. I may -- I'll just point out to

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STATE v. THOMAS OLIVAS 100

you what I'm talking about. It will save us a lot of

back and forth. Let me see yours.

Okay. You've made some corrections,

correct?

A. Yes, sir.

Q. All right. Then that's what I want to ask you

about. This is in -- follows a portion of the interview

regarding him giving some consent and I believe it's

consent regarding the search of the vehicle. I may be

wrong about that. I apologize if I am. But the

transcript right after Detective Stewart leaves the room

to take a phone call --

A. Yes.

Q. -- okay?

The transcript says -- and where it says

"E", that's "Easley" for you, correct?

A. Correct.

Q. Okay. "E", here it says that you say,

"Actually -- "I'll actually get this consent -- "I will

actually -- "Actually, I can go get the search warrant,"

correct, that's what it says in the typed words?

A. Yes, sir.

Q. We were listening to this last night, correct?

A. Yes, sir.

Q. Did you hear something different than that?

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STATE v. THOMAS OLIVAS 101

A. Yes, sir.

Q. What did you actually say right there at line 11?

A. What it sounded more like to me was "Actually, I

can go get the consent to search form."

Q. And did you in fact go get a consent to search

form immediately following that?

A. Yes. I had the consent to search form on the

video. I had the consent to search form on like a book

or a binder or something.

Q. And do you just -- does he in fact give him

instructions, a few lines down, regarding where to sign

and how to indicate that he is giving his consent?

A. Yes.

Q. And did you make a time reference so that you

could write it on that consent to search form?

A. Yes.

Q. Look at line 25.

A. Yes, sir.

Q. And what is the time reference:

A. "It is now 6:08."

Q. So that is from line 11 down to line 25, correct?

A. Yes, sir.

Q. Had there been any conversation between you and

the Defendant or Detective Stewart about you going and

getting a search warrant at that point in time?

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STATE v. THOMAS OLIVAS 102

A. No, sir.

Q. Was there ever a conversation about a search

warrant at all?

A. No, sir.

Q. All right. During the interview the Defendant

did provide, several times provided, consent to search

the apartment, for one, right?

A. Yes, sir.

Q. He gave consent to search -- ultimately gave his

consent to search the Ford Explorer, correct?

A. Yes.

Q. Gave his consent to search, to search, that is,

to take photographs of his body, his tattoos on his arms

and, finally, of his torso, correct?

A. Yes.

Q. He gave consent to obtain the contents of his

iPhone, correct?

A. Yes.

Q. And I may be leaving something out. Were all of

those consents given voluntarily?

A. Yes, sir.

Q. Were you present when he was warned of his

constitutional rights, rights under the -- the Miranda

warnings, as well as the rights under 38.22 of the Code

of Criminal Procedure?

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STATE v. THOMAS OLIVAS 103

A. Yes, sir.

Q. And did he appear to you to understand those

rights?

A. Yes.

Q. Did he waive each and every one of those rights?

A. Yes.

Q. Did he give these consents freely and

voluntarily?

A. Yes, sir.

Q. Was there ever any concern -- did you ever have

any concern about the Defendant's ability to understand

what was going on in that room?

A. No, sir.

Q. Did he strike you as an intelligent person?

A. Yes.

Q. Articulate?

A. Yes.

Q. Able to express his thoughts?

A. Yes.

Q. Able to understand what was being communicated to

him?

A. Yes.

Q. Did you ever hear him flatly say, "I will not

give my consent" for any of these items?

A. No.

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STATE v. THOMAS OLIVAS 104

Q. When he was talking about -- when -- did he show

a reluctance, though, to allow you to photograph his

torso?

A. Yes.

Q. Did he provide reasons for his reluctance?

A. Yes.

Q. That is, he has eczema?

A. Yes.

Q. And he also has scratches that he didn't want

anyone to see?

A. Correct.

Q. Okay. Did you and Detective Stewart attempt to

address those concerns with him?

A. Yes.

Q. Did you ever make him any promises regarding

him -- in order to obtain his consent?

A. Promised we wouldn't publish the pictures or show

anybody the pictures, things of that nature, but other

than that, no.

Q. Okay. And that was to address his concerns about

the way the eczema looks?

A. Yes.

Q. Did you ever tell him that if he didn't allow

these photographs or this consent to search this car he

would be arrested?

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STATE v. THOMAS OLIVAS 105

A. No.

Q. He ultimately was not arrested; is that correct?

A. Correct.

Q. He did provide during the interview his jacket

and some shoes; is that correct?

A. Yes.

Q. Do you know how the Defendant got back to his

apartment that night?

A. No.

Q. Is that something that we have asked you to try

to ascertain for us?

A. Yes.

Q. Have you had any luck?

A. No, sir.

Q. Can you tell us whether or not he was locked up

in jail that night?

A. He was not.

Q. He was free to go?

A. Yes.

Q. If you would, please, look on the same transcript

we're talking about there. Look at page eight, line --

well, let's just look at line 16. He has just been --

Detective Stewart has just told him that he, Detective

Stewart, will need consent in order to take these

photographs. You see where the Defendant states,

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STATE v. THOMAS OLIVAS 106

"Actually, on that one, I'm not... It's just one of

those things, uh, not yet, no"?

A. Yes.

Q. So he says, "Not yet, no," correct?

A. Correct.

Q. All right. And y'all continue to talk to him to

attempt to obtain a consent, correct?

A. Yes.

Q. That is all I have for now.

MR. ROUSSEAU: I will pass the witness.

CROSS-EXAMINATION

BY MS. KEENE:

Q. Let's just hit this first. If you flip over to

page nine, at the very top, were you present when, and

it may have been Detective Stewart, says, "How about

with that shirt off? Would you let me take pictures,"

and he says, "No." Is that correct?

A. Yes.

Q. And you were present whenever he said that,

correct?

A. Yes.

Q. There was no hesitation or ambiguity in his

answer at that point, was there?

A. Not that I recall.

Q. In fact, he just said "no". He said "yes" to a

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STATE v. THOMAS OLIVAS 107

lot of different pictures, but this is the particular

picture that he said "no" to; is that correct?

A. Yes.

Q. And then it was -- that's fine. That's enough.

So whenever you were sent out to his house,

his apartment, how long had you been there before he

arrived?

A. Quite a while. I'd been told to go out at about

8:30 and it was about -- it was a little bit after 3:20.

Q. So you're out there six, seven hours, eight

hours?

A. Yes.

Q. And whenever he arrives at 3:30ish in the

afternoon, how many police officers were out there?

A. Oh, I don't know for certain. We had taken

shifts. Our criminal investigations units had taken

shifts in watching the residence. There had been patrol

officers that had come and gone. At that particular

time only two people that I can absolutely attest to

being there were Mr. Detective Graves and myself.

Q. Detective Graves?

A. Yes.

Q. And you?

A. Yes. Detective Rebecca Graves.

Q. You don't remember any other Grapevine police

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STATE v. THOMAS OLIVAS 108

officers that were there, period?

A. Not at the time that --

Q. That he arrives?

A. -- we made contact with Mr. --

Q. Correct.

A. -- Olivas.

Yes.

Q. There were two Arlington police detectives that

came prior to Thomas right before he pulls up?

A. They came somewhere around the time that he

showed up. I don't know if it was just prior to him

showing up or if it was just after. I believe it was

just after. I know they walked up after we had made

contact with Mr. Olivas.

Q. How did you know? Did somebody inform you he was

on his way home or he's about to be there?

A. Yes.

Q. And were there police officers following him from

Best Buy to his residence?

A. I don't know if they were following him. I know

that they'd said that they believed he had just left

Best Buy in a green SUV.

Q. And about how much time after, when they told you

that, did he arrive at his apartment?

A. It wasn't very long at all.

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STATE v. THOMAS OLIVAS 109

Q. It's not a very long commute, is it?

A. No, ma'am.

Q. So five minutes or less, basically?

A. Yes.

Q. And then here comes the green SUV that you were

told that he'd be driving?

A. Correct.

Q. How many police officers total were there

whenever he gets out of the SUV and is confronted?

A. There was only two of us that approached him and

confronted him originally.

Q. And then how many total, before you guys leave,

police officers are there?

A. There were two Grapevine and I believe just the

two Arlington. I don't recall if anybody else showed up

or at all.

Q. So four officers total including yourself?

A. Yes, four. Yes.

Q. Each of the police officers are in plainclothes?

A. Yes, ma'am.

Q. Was it apparent, though, that -- you stated

that -- let me start over.

You stated that Thomas said, "Can I go

inside before the neighbors think I killed Rebeca and my

daughter?" Is that correct?

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STATE v. THOMAS OLIVAS 110

A. Yes.

Q. Is that when y'all are outside in the parking lot

area?

A. Yes.

Q. Was it apparent that he's been talked to by a

number of police officers?

A. Yes.

Q. Give me an idea, or give us an idea, of what that

looks like or why you'd think, "I'm going to go in. My

neighbors are going to be wondering what I did"?

A. I can see where -- well, not real sure exactly

what you're asking me. If you're asking me to paint the

picture --

Q. Paint the picture, yes.

A. There were four individuals standing around

Mr. Olivas, talking. I know at least two of us, it was

apparent that we were police officers because we had

identification on our belt. The Arlington detectives, I

don't recall if their identification was as obvious or

not, but, yes, four people standing in the parking lot

talking to him, obviously two of them being officials.

Q. And were y'all surrounding him or just talking to

him face-to-face?

A. I was just talking to him face-to-face.

Q. If he took off running, then you would be able to

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STATE v. THOMAS OLIVAS 111

stop him. He was that close?

A. If he took off running, I would not have chased

him. I don't have a reason really to chase him other

than to try to identify him, talk to him, what have you,

if that's what you're asking.

Q. No, but that's okay. How close are you to him?

A. Well, I don't recall. Generally I try to stay a

safe distance away from somebody. Probably maybe five

feet.

THE COURT: Point in here how far away.

Relative to you and the court reporter, close or same

or --

THE WITNESS: Probably a little bit closer.

Maybe just about the same distance. Maybe just a little

bit closer.

Q. (BY MS. KEENE) And the other police officers,

are they about the same distance? Are they with you?

Are they behind him?

A. Honestly I don't recall where they were standing.

Q. Okay. But there were four police officers, one

female and three males, talking to Thomas?

A. Yes.

Q. And was any of this conversation recorded in any

manner?

A. Not that I'm aware of.

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STATE v. THOMAS OLIVAS 112

Q. About how long was that conversation?

A. It was very short.

Q. And in the conversation, the only thing Thomas

said is, "Can I go inside before the neighbors,"

basically, "think I killed my wife and kiddo?"

A. That was the only notable thing that I recall.

There may have been other conversation, but it wasn't

anything -- I don't want to say anything of any

consequence, but it wasn't anything about -- relative to

the case or the investigation.

Q. Is there any discussion about why you are there?

A. Not that I recall. I remember thinking I didn't

want -- being that I didn't know anything about the

investigation, I didn't want to talk to him and tell him

exactly what was going on because I didn't know for

certain exactly how he was being implicated in the case.

Q. All right. Thomas gets out of his car. How is

he approached, by two, you said, police officers?

A. Yes.

Q. And you're one of them?

A. Yes.

Q. So what do you say? Just approach a citizen and

say, "Can you come down to the Grapevine Police

Department with me," or how does that take place?

A. From what I recall, and I don't remember exactly

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STATE v. THOMAS OLIVAS 113

how I said it, I do remember walking towards him as he

was walking -- because his vehicle was actually parked

quite aways away and he started walking so I had plenty

of time to tell the other detective, "Hey, this looks

like him walking to us now." I get out the car and I

approach him in the parking lot. I just said, "Hey, I'm

Officer Easley with the Grapevine Police Department.

Would it be okay if we talk?" It would have been

something along those lines.

Q. Okay. And then he says something like "yes"?

A. Yes.

Q. And then now you've got four of you that -- two

more approach, correct?

A. A total of three more. Myself and then three

more approach -- or two more.

Q. So four of y'all talking?

A. Yes.

Q. But what is being said?

A. I don't recall. I don't recall what was exactly

said.

Q. How is he convinced by these four police officers

to go get in the car with one of them?

A. From what I recall, we just asked him if he would

be willing to come in and talk to us. I don't recall if

we even told him why. We may have. Somebody may have,

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STATE v. THOMAS OLIVAS 114

but I don't recall if we did or not.

Q. Like someone may have said something like, what,

like "there's a double homicide" or "there's a fire," or

do you have any memory? You're the one that was out

there.

A. There may have been some mention of "have you

heard of the homicide in Arlington". May have been.

Like I said, I don't recall.

Q. What you don't recall is him saying anything that

jogged your -- that you remember of implicating himself

in this?

A. No, not at all.

Q. You certainly don't remember him saying anything

that stood out to you to be "I might need to make a note

of that," except for this "Can we go inside before the

neighbors think I killed Rebeca and my daughter"?

A. Yes.

Q. That's the only thing you heard him say out there

that caused you to think "I need to make note of that"?

A. Yes.

Q. Anything else he said that would have been, in

your opinion, something a normal person would have said

when four police officers approached them?

A. Yes.

Q. Okay. This was the only thing that he said that

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STATE v. THOMAS OLIVAS 115

stood out to you?

A. Correct.

Q. Okay. And then about how long is the

conversation that y'all have out there before he gets in

your car?

A. I don't remember exactly. I know from reviewing

the CAD times and the time that I estimated that we made

contact with him, there wasn't very many minutes between

those two times, and that's also going to include

getting into the car and things of that nature. So I

would estimate no more than ten minutes of talking

and/or silence.

Q. And so in the ten minutes after talking to him,

he then voluntarily says he'll come to the police

department?

A. Yes.

Q. How come he didn't drive his own car and follow

you?

A. I don't recall why that wasn't allowed, other

than I know Arlington was interested in the vehicle.

Q. Arlington didn't want any evidence that possibly

was in the vehicle to be contaminated; is that fair?

A. Yes.

Q. So it would be at least in Arlington's best

interest for him to get in your car and for the vehicle

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STATE v. THOMAS OLIVAS 116

that he drove to be left right there; is that correct?

A. Yes.

Q. And, actually, y'all put a guard on that vehicle,

or a police officer, to watch the vehicle?

A. I don't -- we may have.

Q. All right. So once you get him into your car --

and you said he sat in your front seat?

A. I believe so, yes.

Q. And how long did it take to drive him to the

police station?

A. It wouldn't have taken very long. Maybe five

minutes, seven minutes.

Q. Was he told in all this that he didn't have to

go?

A. I don't recall if I said that for certain. I

know my usual routine, being that this wasn't my first

investigation, is to repeatedly reiterate that they're

allowed to go, to ensure that they understand that, you

know, this is completely their decision and they can

leave at any time. I would imagine that was probably

brought up, but being that I didn't record it, I don't

know for certain.

Q. What you do know is you asked him to come and he

came?

A. Yes.

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Q. You don't know whether or not you said, "You

don't have to come," because you don't have a memory of

that, correct?

A. Correct.

Q. And so when he came, it's about a five-minute,

ten-minute? How long does it take in a car to get to

the police station?

A. Five to seven minutes.

Q. And is any of that recorded?

A. We do. I believe I did check out on the radio

with our dispatch that we were en route to the police

department. And I believe I checked in that we were --

we had arrived at the police department. It should all

be covered in our CAD system.

Q. I mean as far as video or audio recording of that

drive.

A. No. I was in an unmarked criminal investigations

car. It's not equipped with cameras.

Q. And was there any sort of conversation in the car

driving there between you and Thomas?

A. Not memorable conversation.

Q. "Not memorable" meaning you just don't remember?

A. Correct.

Q. But it was certainly nothing like a confession?

A. True.

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Q. Okay. Because you would have made note of that?

A. Yes.

Q. And there was no discussion about this offense in

the car?

A. No.

Q. Whatever the discussion was, it would have

been -- it was insignificant and you didn't put it in

your report?

A. Correct.

Q. Or you guys just sat silently and drove all the

way there?

A. Possibly.

Q. Once you arrive at Grapevine, do you actually

drive up to the front and you guys get out, or do you go

like into a sally port?

A. We have an entrance close to our interview rooms

in our criminal investigations division. So we would

have parked in the back and walked through a back door

into the police department. I say back door. Our

police department is actually very confusing because

it's got a lobby that goes all the way through the

building, so the front and back are often confused for

each other. There's a main entrance in both the front

and back.

Q. Once he gets inside the police department where

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STATE v. THOMAS OLIVAS 119

do you take him?

A. Into one of the interview rooms.

Q. And is he sat inside the interview room?

A. Yes, he's sat in the interview room.

Q. And how much time after he's sat in the interview

room is the recording started?

A. It wouldn't have been very long. We try to get

the recording started as soon as we possibly can.

Q. And was he free to leave at that point?

A. Yes.

Q. Had he got up and just walked out, could he have

done that by himself?

A. Yes. He could have come out the same entrance we

went in.

Q. Whenever -- there's one time that he does leave.

Whenever he's given an interview, he gets to go smoke a

cigarette. Do you recall that?

A. No, I don't.

Q. When he left he was -- a police officer went with

him to go smoke a cigarette. Would that be standard?

A. If he had gone outside the building through the

entrance that we came in, he would not have been able to

come back. It's restricted access coming into the

building. Free access flowing out; restricted access

coming back in. So it would not have been uncommon for

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STATE v. THOMAS OLIVAS 120

an officer to go with them just to make sure that they

could get back into the building to where they were

sitting.

Q. So it wouldn't surprise you at all to hear that a

police officer went out with him to smoke a cigarette?

A. No, it would not.

Q. Because that's the only way you could get back

in, if you went outside?

A. True.

Q. Was to have somebody with authority or with the

right swipe or key to get back in?

A. Yes.

Q. But you don't have a specific memory of that

happening?

A. No.

MS. KEENE: Pass the witness.

MR. ROUSSEAU: I don't have any further

questions, Your Honor.

THE COURT: All right. May the witness be

excused, at least for now?

MS. KEENE: He may, Judge.

MR. ROUSSEAU: Yes.

THE COURT: All right. Remember your

instructions. Remember the witness rule. Thanks for

coming in.

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(Witness excused from courtroom)

(Pause in proceedings)

THE COURT: All right. Outside the presence

of the witness I just re-listened to the audio that's

referred to on State's Pretrial 2-A and it's been

discussed on line 11, page 12 and it sounds to me like

it says, "I can get the consent to search done,"

followed by him, "I know you filled out a lot of these,"

immediately discussing in the context of the tape. So

that's -- as a matter of fact that's what the Court

heard and the exhibit will speak for itself.

Y'all may continue. Still the State's case.

MR. ROUSSEAU: That's all I have at this

point, Your Honor.

THE COURT: You rest on Defense motion to

suppress?

MR. ROUSSEAU: Statements of the Defendant,

yes, sir.

THE COURT: All right. What about evidence,

what beyond what's here in evidence...

MR. ROUSSEAU: Can we go off the record?

THE COURT: Yes.

(Discussion off the record)

THE COURT: On the record.

State rests as to the pretrial Defense

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STATE v. THOMAS OLIVAS 122

motion to suppress?

MR. ROUSSEAU: Regarding the Defendant's

statements, yes, Your Honor.

THE COURT: And the evidence obtained during

the course of the interview when the statements were

given, particularly those contained in State's Pretrial

1 and 2?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: All right. And as of now,

you've indicated you have no desire, on the issue of, in

case-in-chief, to offer State's Exhibit Pretrial 3 based

on 38.22 issues, which are still being researched, and

you want to withhold any ruling or addressing that issue

at this time?

MR. ROUSSEAU: Just to be safe, Pretrial 3

is the 9/24 arrest interview?

MR. MOORE: Yes.

MR. ROUSSEAU: Then you're correct, Your

Honor.

THE COURT: All right. Does the Defense

have any evidence you wish to offer on the merits of the

motion and matter I just addressed with the State?

MS. KEENE: No, sir.

THE COURT: Do you rest, as well?

MS. KEENE: Yes.

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STATE v. THOMAS OLIVAS 123

THE COURT: All right. Then State waive

opening, reserve close?

MR. ROUSSEAU: Yes, sir.

THE COURT: All right. Then the Defense may

close.

DEFENDANT'S CLOSING STATEMENT

MS. KEENE: Judge, we really have two large

issues. One of them being an illegal detention of

Thomas Olivas on March the 21st, 2011. What we heard

from the detective is that they did not have probable

cause to detain him. However, they showed up at his

house, four in number, and become such a presence, and

they agree that they become such a presence, in the

parking lot that he says, "Can we go inside?" But they

don't go inside. Instead they say, "Let's come on down

to the police department."

I would submit to the Court that he does not

at this point believe that he's free to just go inside

because they said, "No, we'd like you to come to the

police department." If four police officers are present

outside, wanting to talk to you, how free do you feel

like you can say to them, "I don't want to talk to you"?

They said they didn't tell him why they wanted to talk

to him, but it was such a presence to him that he said,

"I don't want my neighbors to think I, you know, killed

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STATE v. THOMAS OLIVAS 124

my wife and kid." So something significant was

happening and he could tell it just based on that one

statement. So the detective said he did not have

probable cause but yet they were able to bring Thomas

down to the police station. No one is clear about why

Thomas couldn't drive himself down there. Except you

can glean from what was happening is they don't want

him -- they don't want him anywhere near that truck

because they don't want him to contaminate the evidence.

They want him in their car and with a perception that he

can't, that he's not free to leave, so Thomas then ends

up down at the police station without probable cause,

not believing that he can just get up and leave.

So it would be an illegal detention. And

based on that illegal detention, we would argue that all

the continuing consents are the fruits of that illegal

detention, being the consent to take his buccal swab,

consent to take any photographs of his body, period, the

consent to -- consent with the car, just the fact that

it was even discussed we believe would not be admissible

into evidence, and then, of course, the actual statement

itself. We would say that those, I think four major

items, would be suppressible based upon illegal

detention.

They also took his clothing he had on that

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STATE v. THOMAS OLIVAS 125

day, so that would be another piece of physical evidence

that we would argue would be a fruit of the poisonous

tree, as far as the illegal detention, and then, also,

anything that came off of his iPhone, because he

freely gave them his iPhone and talked about his iPhone.

We talked a little bit about it in this hearing. But if

the arrest is an arrest and it was not based on probable

cause and it was an illegal detention, so to speak, then

all of those things would be fruits of the poisonous

tree. So basically a ruling on the arrest and then all

of the things that came from the arrest we would ask the

Court to suppress.

And number two is, being just more specific,

is this idea of consent. And even assuming that this is

not an illegal detention, just looking at what does it

mean under the Fourth Amendment, what sort of rights do

citizens have. And we know from the Fourth Amendment

that a citizen has a right to be free from searches,

period, and all the searches are presumed to be

unreasonable unless there's a warrant. And we know that

the only exception to that is if someone gives their

consent. And so when Thomas says, "Yes, I'll give you

my iPhone -- he does it very freely and the Court saw it

in the videotape -- when Thomas says yes to whatever

else it was, "Yes, here's my buccal swab, you can have

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STATE v. THOMAS OLIVAS 126

it," but when they talk to Thomas about his body, he is

very clear and he says no. It is not ambiguous. It is

not anything. It is "no". So at that moment Thomas

invoked his Fourth Amendment right to not -- to be free

of an unreasonable search, a search without probable

cause. And the police officer, and you heard the police

officer, his view of the Fifth Amendment, too, if you

say you have a right, "I don't want to talk to you

anymore," he can just keep on talking to you and

convince you to give up your rights. That's not the

law. It's --

THE COURT: Well, let me just say, when it's

not a custodial interrogation, you don't have to warn

someone of their rights. There are some delineations.

And it wasn't really clarified with the witness.

MS. KEENE: You're correct. You're correct.

If he was in custody, maybe he would have had a

different answer. Actually, that's a very --

THE COURT: Right.

MS. KEENE: -- good point, Judge.

Certainly the Fourth Amendment doesn't

require custodial. You have a right to be free of a

search whether you're in custody or not. The police

don't have a right to just come up to you and say, "I

want all of your stuff," and take it from you. So if

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STATE v. THOMAS OLIVAS 127

you say no, you say, "I am invoking my Fourth Amendment

right not to be searched," they need to stop. They have

to stop. And so there are a number of cases that I

found. Most of them are older because I think this is

well-settled law. It says, "This reasoning is equally

applicable in using it against a defendant for refusal

to consent to entry of their house without a warrant.

The right to refuse protects both the innocent and the

guilty --

THE REPORTER: Could you slow down, please.

MS. KEENE: Oh, I'm sorry.

-- and to use its exercise against the

defendant would be," as the Court stated, "a penalty

imposed by the courts for exercising constitutional

right." So it's the same idea under the Fourth

Amendment as it is under the Fifth. If I say, "I'm

going to invoke Fifth Amendment right to remain silent,"

you can't bring that in front of a jury and use that as

evidence of guilt. And so when Thomas says, "I'm

invoking my Fifth Amendment right not to be searched, my

body," --

THE COURT: You mean his Fourth Amendment

right.

MS. KEENE: I mean, "my Fourth Amendment

right, for my body not to be searched," that can't be

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STATE v. THOMAS OLIVAS 128

brought before the jury, and they're supposed to honor

that. He says he honors it, but then we know after

20 minutes, ten pages of convincing him, "Oh, don't give

up that right," makes it not voluntary. He has invoked

his Fourth Amendment right "no". And he's very clear

about when he says yes and he's very clear about when he

says no. He ultimately concedes because they've

badgered him. You watched it. They badgered him about

"give us" -- "Come on, what you hiding," basically,

"under that shirt?" "What you hiding in that car?" And

so to show those conversations to the jury is going to

allow them to infer guilt based on him invoking his

constitutional rights. And that's what these various

court opinions, as well as the constitution, says you

can't do.

I mean, what kind of a -- I think it says in

this one -- I love this language -- "In the case of

silence, the prosecutor can argue that if the defendant

had nothing to hide, he would not keep silent. In the

case of refusal of entry, the prosecutor can argue if

the defendant were not trying to hide something or

someone, she would have let the officers in. In either

case, whether the argument is made or not, the desired

inference will be drawn by the jury. This is why the

evidence is inadmissible in the case of silence. It's

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STATE v. THOMAS OLIVAS 129

also why the evidence is inadmissible in the case of

refusal to let the officers search."

And so it is a constitutional right to be

free from the search. He did not give his consent

voluntarily. In fact, he said no. After 20 minutes or

more of them harboring in on him, they convinced him to

change his mind. And, Judge, this is the same thing as

if he's in custody and he says, "You have a right to

remain silent," and I invoke it, they don't get to keep

prodding on him, keep talking to him until he finally,

"All right. I concede. I'll talk."

On the issue of the car, he we would also

object to him invoking his right for the car not to be

searched and all of that -- tapes in regards to that.

THE COURT: Well, and let me just -- to be

fair to your record, it seems to me he's invoking

Amanda's possible right to object to the car not being

searched.

MS. KEENE: I believe that that is less

clear when he starts but then it becomes more clear that

he's talking about there's a smell of gasoline, he

doesn't want them to go in there, but, yes, it does

appear that he's invoking Amanda's --

THE COURT: And he can't be responsible for

what she might have in the car. He doesn't --

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STATE v. THOMAS OLIVAS 130

MS. KEENE: Correct.

THE COURT: -- like he searches the car. He

doesn't know what she may have.

MS. KEENE: Correct.

THE COURT: And I see your inference that if

it's the gasoline, it might affect me if in fact there

is something significant to the gasoline.

MS. KEENE: I think upon them further

talking to him, it becomes very clear that what he's

doing is invoking his Fourth Amendment right not to have

a search of his car.

THE COURT: Is there a standing issue, do

you think?

MS. KEENE: No -- well, there's a standing

issue ultimately when they go get consent to search the

car. That's why I'm not arguing about whatever they

found in the car, because they go to Amanda and they get

her consent, that's fine.

THE COURT: So you have two issues; one, the

search of the car, two, discussion with him whether it's

okay to search the car when he says no?

MS. KEENE: Correct. What we're arguing

about is the discussion with him about searching the

car. The actual search of the car, they do it legally

and they do it another way, so that's irrelevant, to

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STATE v. THOMAS OLIVAS 131

whatever they found in that car, with the pictures, et

cetera. It's the fact they're talking to him and really

all the discussion of him going, "No, no," and then why

do you have to go into the reasoning of why you're

invoking your Fourth Amendment right? Why are you going

to do that?

Under the constitution you have a right to

remain silent, you have a right to be free of searches.

If a police officer can come and say, "I want to come

into your house," you say, "No," and they go, "Why?"

"What?" And you have to explain why? And then that

gets to be put in front of a jury? Really? What kind

of constitutional right is it if I'm getting

penalized --

THE COURT: Let me ask you a question. If

you walk up and knock on a door and say, "Hi, your

neighbors think you're running a drug lab in your house.

Will you talk to me about it," and they say no and slam

the door in your face, you think that's admissible, if

they just go knock on your door and ask that question,

if in fact later you're charged with running a drug lab

in your house?

MS. KEENE: I think, yes, that's admissible,

the way you phrased the question. I think that if they

came in and said, "Can we look inside your house," and

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they said no, I don't think that that's admissible.

THE COURT: What would be the difference of

saying, "I'm not going to talk to you" versus "I'm not

going to let you look in my garage to see if there's a

drug lab to put the little old ladies at peace across

the street"?

MS. KEENE: I guess it depends exactly on

what is said and what the circumstances are.

THE COURT: Okay.

MS. KEENE: But certainly if you're in

custody, obviously any time you say, "I don't want to

talk," it's over. But if they just want to come up and

say, "I want to talk about the drug lab," I don't why

that wouldn't be admissible, that you said, "I don't

want to talk to you about no drug lab." That's their

words. But if they said, "We want to come search your

house. We don't have a warrant. We don't got no

probable cause. Will you let us," and you say no --

THE COURT: It's still words.

MS. KEENE: It's an invocation of your

Fourth Amendment right not to be searched.

THE COURT: All right.

MS. KEENE: And they don't get to then use

that, because what happens is they put that in front of

the jury, just exactly like the Court said, there's an

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STATE v. THOMAS OLIVAS 133

inference of "why", because we're all humans. Human

beings say, "Thomas, why won't you let us see your

body?" "Why won't you let us in the car?" "That's

funny, the two things you said no to." They're going to

use that as evidence and the jury is going to take it as

evidence.

So we would argue under constitutional

grounds, as well as under 403, and just good old

evidentiary grounds, of those issues being misconstrued

and taken as guilt even though he --

THE COURT: So your legal position that

whether you have a Fifth Amendment right concerning

conversations, whether you're in custody, whether you're

detained, is one issue, that a Fourth Amendment issue is

separate and distinct from a Fifth and Sixth Amendment

issue?

MS. KEENE: Absolutely.

THE COURT: That the right to a

reasonable -- to be free from unreasonable searches and

seizures...

MS. KEENE: Is for all citizens regardless

if they're in custody or not.

THE COURT: And I understand that argument

and I understand it when it says, you know, "Put your

hands on the wall. We're cutting off your shirt even

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though you said no," as opposed to the discussion of

"why you don't want your shirt cut off," had they forced

the shirt. I see those are different issues. Whether

there's the consent or not, I understand.

Just like the Fifth Amendment, if the

officer continues the conversation, well, maybe they can

still push it but the jury doesn't hear about it. But,

you know, if you knock on the door, "Your neighbor says

there's a lab. Will you talk to us," and they say no

and slam the door in your face when it's not custodial,

so I see the custodial issue still intertwines even with

the Fourth Amendment issue.

MS. KEENE: I do. Judge, I do, too. And if

he was in custody, it would intertwine in a big way.

THE COURT: Right.

MS. KEENE: Because he could actually argue

then that he was actually also saying a right to remain

silent on that issue and y'all kept talking to him about

it.

THE COURT: Right.

MS. KEENE: If it is construed, when you

look at the way he was detained, that he actually was in

custody for purposes of this conversation, then it's

also a good Fifth Amendment argument. But I'm saying

just forget that --

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STATE v. THOMAS OLIVAS 135

THE COURT: Right.

MS. KEENE: -- let's forget that and say,

you know what, it was a voluntary him-coming-down-there,

when he says no, it means no. And you don't get to put

in front of the jury that he said no and it took

20 minutes to convince him and all that conversation

that took place. When he says no and the cop says, but

doesn't do it, "I honor that," you honor that and you

don't get to basically convince him after 20 minutes of

conversation and take the pictures and put it in front

of the jury, all of that, because he said no. And it

wasn't -- both of those, he wasn't waffling.

Particularly on the body, he was like "no".

THE COURT: Okay.

MS. KEENE: It's an interesting issue for

you, Judge.

THE COURT: I understand your position.

MS. KEENE: Okay. That's our argument.

THE COURT: All right. State may respond.

STATE'S CLOSING ARGUMENT

MR. ROUSSEAU: Well, first of all, he was

not in custody. It's well-settled law that if he

voluntarily accompanied police to a police station does

not constitute custody. Just like sitting down and

talking to your probation officer, you may be required

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to be there but you're not in custody. This is

well-settled law. And there doesn't need to be, I

believe, much time wasted on was he in custody or not.

He voluntarily went down there.

All this talk about he wasn't allowed to

drive his own vehicle, we don't know he wasn't allowed

to drive his own vehicle. They asked him if he would

accompany them to the police department and he said yes.

That's it. That's all the conversation. That's all the

testimony we have on whether or not -- on how he got to

the police department. So the rest of this conversation

about could he have driven his car, was he allowed to

drive his car, that's simply a non-factor here, because

there's no evidence that it ever entered his own mind to

drive his own vehicle. They asked him to ride with them

and he went. It's as simple as that.

So question is was it voluntary, and it was

in fact voluntary. The interview speaks for itself. He

was overwhelmingly eager to cooperate. He even made

statements many times like, "Whatever, Officer,

absolutely." "You're doing your job." "I'm here to

help you." "Whatever you need, Officer." "I absolutely

understand why you're doing this." "Whatever I can do

to help." "I have nothing to hide." He was eager to

assist them in any way he could until it came to the

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STATE v. THOMAS OLIVAS 137

question of taking a picture of his body, and I'm

distinguishing that from his arms and his hands and that

sort of thing.

THE COURT: The part of his body that was

not already exposed to air.

MR. ROUSSEAU: Yes, sir. Yes, sir. His

torso.

So that and the vehicle. And regarding both

of those topics, Your Honor, every time he would say no,

beginning with the first, the first question from the

detective about taking a picture of his torso, he said,

"Not yet, no. Not yet." So according to Defense he

should have stopped there, boom, asked no more

questions. Well, it's not that simple. The detectives

are there to obtain evidence if they can without

violating his rights, if they can do so legally. And he

never gave an unqualified "no" to anything up to and

including the time where he has that one-line answer

that says "no," because it's in the middle of a

back-and-forth. I apologize, I don't have it. I'm not

turned to it, Your Honor. But -- just one moment.

(Pause in proceedings)

MR. ROUSSEAU: "How about that shirt off?

Would you let -- this is the top of page nine -- "Would

you let me take pictures?"

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"No."

"You don't feel comfortable with that?"

"No, I don't."

"Okay."

"I would prefer to consent with someone over

that." And both detectives essentially, "You mean

consult?" He says -- Thomas says, "I completely

understand where you're coming from. It's just eczema.

I scratch a lot." So he throws out this explanation for

why he doesn't want to take off his shirt and be

photographed, and so they address the concern that he

raised over and over and over. He would throw out some

concern, from, one, "I have scratches that will make me

look guilty," that's one. Two, "I have eczema which is

embarrassing," to, three, "I have eczema which attacks

me like a swarm of angry bees the moment my skin is

exposed to air." The detectives, in response to him

throwing out these excuses, address those excuses to try

to put him at ease and, frankly, let's face it, to his

defeat his arguments against doing it. They want the

photographs if they can get them legally, and he

ultimately did consent.

A person is -- on the question of consent, a

person is most -- it's measured against a reasonableness

consent. And, you know, it's a person of reasonable

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STATE v. THOMAS OLIVAS 139

firmness. You look at police overreaching. You look at

threats. You look at the setting; was he restrained,

was he hounded, was he yelled at. None of this

occurred. In fact, you can see for yourself in the

interview, they were overly polite. They were extremely

kind to him. He was not deprived of water. He was

given the chance to go to the restroom. He was told

repeatedly he's not under arrest and "we can't do this

unless you tell us that we can." There's simply no room

in the law to say that the State does not get to use

evidence that's indicative of guilt because -- under

these circumstances. They essentially killed the man

with kindness. You cannot call this police

overreaching. You cannot call this browbeating. You

cannot call this custodial interrogation. And even if

it had been custodial interrogation, it was complied

with. The rules were complied with. 38.22 was fully

addressed. There's simply no basis to suppress any of

these items, Your Honor.

THE COURT: All right. The Court finds as a

matter of fact that on March 21st of 2011 that the

defendant in this cause, Thomas Olivas, was contacted by

officers of the Grapevine and Arlington Police

Department and requested to come to the Grapevine Police

Department for an interview, that he was transported

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STATE v. THOMAS OLIVAS 140

there, not in handcuffs and not under arrest at that, in

an unmarked vehicle, was taken to an interview room of

the Grapevine Police Department and thereafter was

involved in a multi-hour series of conversations with

intermittent breaks for intermittent purposes.

The interview, which concluded with the

words, "I'm done. I just want to call it an evening.

And if you need me, you know where to find me. I'm not

hiding from you. I'm giving you everything you need,

but I'm done. I hate to say it this time. I'm done,"

at which time the interview concludes and the Defendant

is allowed to leave the Grapevine Police Department.

The Court finds as a matter of fact,

concludes as a matter of law that the interview that

took place that's contained -- I keep saying four

corners -- within the four corners as relatively,

accurately transcribed State's Pretrial 1-A and 2-A and

contained within the video and words, audio and video,

of State's Pretrial 1 and 2 was not a custodial

interview within the meaning of Texas and U.S.

constitutional parameters nor within the parameters of

Article 38.22 of the Texas Code of Criminal Procedure.

However, as an appellate attorney might say,

assuming arguendo that it was, that on the face of the

interview shortly after its beginning, he was read his

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STATE v. THOMAS OLIVAS 141

38.22 warnings. It was recorded on the face of the

interview. And had it been a custodial interrogation,

at least for purposes of the statute, it was -- he

received the same warnings as would be proper and

appropriate for a custodial interview. So he was

advised of his constitutional rights.

And as a matter of law, if it's not a

custodial interview issue, raised by Ms. Keene properly,

which have very different impacts when you -- the issue

between invoking a constitutional right versus the

failure to waive a constitutional right that's

implemented as a matter of law. And once you're in

custody, it's not a matter of whether you choose to

invoke a right to remain silent, it's you must

affirmatively waive that right before the interview

takes place. So it's a timing issue. But I find as a

matter of fact, it was not a custodial interview.

I find as concerns State's Pretrial 5, 6, 7,

and 8 that -- well, first of all, 5, as concerns the

iPhone, unequivocal consent to search an iPhone. You

did everything but shove it in their hands. As far as

buccal swabs, I find free and voluntary consent to

provide buccal swabs and was quite impressed with his

discussion of DNA testing and how in the military you

give it for identification purposes in case you're a

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STATE v. THOMAS OLIVAS 142

combat casualty and there are pieces of you left and so

your family knows which casket has your body parts, and

how even the military says it cannot be used in any

criminal or non-identification purpose, showing a very

sophisticated knowledge on his part of the concept of

DNA testing and the privacy rights that are given to our

servicemen and women such that someone can't say, "I

want to see if he's the father," "he's a suspect," or

any other reason, because the military requires you to

give that for purposes of identification. I would note,

too, that based upon that, I am impressed and grateful

for the Defendant's service to his country before these

allegations, which is irrelevant to the legal decision

here today.

I find the search of the apartment as

evidenced by State's Pretrial 9 is a free and voluntary

consent based on the context of the discussions and the

actual execution of the documents.

I understand the concerns as to what I will

assume State's Pretrial 7 covers, which is photographs

and swabs of the body. And I understand and clearly

understood Ms. Keene's concern about he said no. But

the whole eczema issue was a nonresponsive comment the

Defendant made when the officer -- he says, "I need to

consult with someone," I can respect that, and then he

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 143

goes off into the eczema descriptions and goes on and on

about eczema and scratches and looks like a cat got him

and how you scratch and its involuntary and all these

reasons implying an embarrassment to show or be seen.

And when you look at the entire context of the

circumstances -- this conversation continues to go on

because he keeps throwing "eczema" out like he's almost

embarrassed that he's not cooperating with the photos

but he's embarrassed about the appearance of the eczema

and having to deal with the hereditary condition.

And when you look at the entire context of

the entire series of conversations, he is not in

custody. I'm not aware of a rule that says whether you

consent or aren't sure if you want to consent. The

bottom line is the consent that allowed the photos to be

taken and what was its context, and I find that to be a

free and voluntary consent. Whether that's what's

governed in writing by 7 or simply the conversations and

statements he makes in the manner and means in which he

displayed himself and cooperated with the photography.

I believe as a matter of fact that his position was,

and, quite frankly, as a matter of trial strategy still

is, I have nothing to hide and here's these pictures but

I don't want my medical condition misconstrued. And,

quite frankly, from the face of the record, scratches

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STATE v. THOMAS OLIVAS 144

due to eczema are much preferable to scratches without

explanation. And the context shows an attempt to

cooperate and a free and voluntary consent to those

ultimate photographs, which I assume are contained

within and observed in 10 through 23, inclusive, but

most specifically as to those that show bare skin on the

chest or torso where a T-shirt would normally cover. I

don't have the specific numbers. It's clear that he was

unequivocal and unhesitating to show other injuries,

including scratch injuries that were not covered by the

chest, in fact, gave explanations of how they occurred.

I find as a matter of fact, conclude as a

matter of law that each and every exhibit offered in

this hearing today, be it the visual display of the

interview, the oral interview, the photographs, the

iPhone, the clothing collected, and all testing done

thereon, were the direct result of the Defendant's

presence at the Grapevine Police Department on the date

of this interview and had he not been there, these items

would not have been obtained by consent or otherwise.

And if he were in custodial custody, I still find that

the consent was freely and voluntarily given, because

there is no rule that says you can't get a consent to

search from a person who's in jail, as long as it's

freely and voluntarily provided.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 145

As far as the specifics, in all fairness,

I'm not sure this hearing is exactly the time and place

to go in -- every little statement made during the

course of all these interviews or the things that out of

403 or other issues may or may not need to be trimmed

because the context might be misunderstood, I'm not

going to make a ruling on that. I'm making a

constitutional and statutory ruling on their

admissibility.

But, Joetta, just like the situation, you

come to the door and "The little old lady said you have

a drug lab in your garage. Do you mind if we look to

calm their 80-year-old fear," and you say no, you have

a right to say no, but I'm not sure you'd have a right

to have that same "no" barred. But I'd be willing to

look at the issues on the discussion of the consent and

the what, and there might be pieces that maybe under 403

might be more confusing. I'm not saying that clearly at

this time because I don't have an objection before me on

that basis.

MS. KEENE: Well, I did object on 403.

THE COURT: Well, but it's not line-itemed

and I can't shotgun a 403 to everything in those papers.

You'll have to be more specific.

MR. ROUSSEAU: Your Honor, there was a

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 146

portion in there we didn't really discuss. The

detective asked, "Have you ever been arrested before,"

and there's a conversation about that. We will

obviously be deleting that before --

THE COURT: There's discussions about when

he was in the service, and I mixed my interviews up of

what was a post-arrest discussion versus the pre-arrest

discussion on that he was getting out of the service and

he didn't care and everything was dropped there. There

are issues throughout that may be on independent legal

basis to those addressed today under 38.22, 38.23,

Fourth Amendment, Fifth Amendment, Sixth Amendment, U.S.

Constitution, Article 1, Section 9, Section 10, which is

the legal basis of everything before me, as I

understand.

Is that correct, Ms. Keene?

MS. KEENE: That is, Judge. That was

beautiful. I have one question for you.

THE COURT: Hold on. Those basis, the

motion to suppress as a matter of law is overruled as to

the matters I have directly addressed in this record.

And at the time evidence is brought to court,

biologicals, DNA swabs, things other than the photos

that are in evidence today, if there is anything that

either side believes is covered by this motion that was

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STATE v. THOMAS OLIVAS 147

collected as a direct result of these consents,

independent of the auto issue where the owner gave an

independent consent, which would be addressed

separately, if before they're offered, as long as

they're identified for the record outside the jury's

presence that these are issues that -- "we are in

agreement or disagreement" -- were covered by Court's

prior ruling. And I'll tell you, "Yes, it was and the

ruling stands and is a running objection," or "No. I

didn't have a chance to address that." Or the other

side can say, "No. We think this is independent of a

prior ruling of the Court." But I will give you a

record to make sure there's no piece of evidence that

slips through this trial. Because y'all had the

professionalism and courtesy to the court reporter for

storage and other reasons not to bring every little

possible item in here today, I will make sure you have a

record, as the items are marked for trial on the merits,

as to whether this motion covered it or not, outside the

jury's presence.

So now you may...

MS. KEENE: How do you want us to address

the 403s? You said you wanted us to line-item, like

submit these sections?

THE COURT: What I think probably you need

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 148

to do on the 403s, I'd get a clean copy of the motion,

I'd get together and if you're in agreement with the

things, like "have you ever been in trouble before,"

other events involving third parties, of throwing

phones, of breaking things, stuff -- if it's something

that's motive, then it might come in and I can rule.

Since I don't know the big picture that the trial

lawyers on both sides know, of legal theories, of

defense or prosecution -- I can sense through all these

interviews there are two women and two babies and

neither would probably be happy with the other. There

could be other events that might directly relate to a

state of mind of the deceased or the accused that might

be admissible. There might be things that are just

things that happened that the officer wants to pursue to

decide is this a person of interest or a suspect.

Anything y'all agree to remove, take it out. Anything

you can't agree to remove, you can mark on the

transcripts and say here's what our objection is and

why, and you'll have a clean record without having to

play the tape, and I can address that prior to trial at

a mutually convenient time.

MS. KEENE: Including the "no" on the

consent?

THE COURT: Well, on the consent, yeah. The

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 149

"no" on the consent, my opinion right now is that's like

"can we come in your house" and you say no. I'm willing

to reconsider that based on law that addresses a

noncustodial refusal to cooperate, where someone walks

up to you on the street and says, "Hey, buddy, will you

talk to us? We'd really like to clear this up," and you

say no. The time and place and circumstances are very

specific, as to whether that's just a fact that you said

no because you're an old fart -- pardon me -- or you

don't understand or because you're trying to obstruct

justice. There are all these different rules and

circumstances that are sometimes admissible and

sometimes it's not, and I would like to look at specific

cases before I rule on whether that comes out.

MS. KEENE: Okay.

THE COURT: But the general conversation is

admitted. If there are certain particular parts -- I

think if it's not custodial, it's just the conversation.

But the difference between allegedly invoking a Fourth

Amendment right and being punished for it versus

refusing to waive it and being punished for it, the

refusing to waive is crystal clear. The invoking part

is not as crystal clear if you just say, "I don't want

to talk to you because I have a Fifth Amendment right,"

and if you throw that out in a conversation, it's not

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STATE v. THOMAS OLIVAS 150

insulated versus if you say, "I don't want to talk,"

after you're advised of that right.

And having said that, even if this is a

noncustodial conversation, there is the additional legal

issue both sides can look at, that they warned him of

his rights whether they had to or not and if you warn

someone of their rights and then they say, "Well, I

don't want to talk" or "I want to lawyer up," or

anything else, can it be used against them even if you

didn't have to warn them of their rights after you tell

them something and then is it a lie if it wasn't --

didn't apply.

This is a little gray and so on those

specific line-item details, if you will, and deletions,

I'd want to look at a little more law before I make

those kind of rulings, because this is kind of a hybrid

record.

All right. Anything else on that?

MS. KEENE: There's nothing else from us,

Judge.

MR. ROUSSEAU: No, Your Honor.

THE COURT: All right. Off the record.

(Discussion off the record)

THE COURT: On the record, real quick.

The State indicates they intend to present

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STATE v. THOMAS OLIVAS 151

their motion on discovery of defense experts. So y'all

have until tomorrow morning to decide for in-house use

only or testimonial, and you can make your decision and

let me know in the morning.

We'll be in recess until tomorrow at 9:00

o'clock.

(Pretrial Hearing concluded at 1:45 p.m.)

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 152

COURT REPORTER'S CERTIFICATE

THE STATE OF TEXAS )

COUNTY OF TARRANT )

I, Karen B. Martinez, Official Court Reporter in and

for the 372nd District Court of Tarrant County, State of

Texas, do hereby certify that the above and foregoing

contains a true and correct transcription of all

portions of evidence and other proceedings requested in

writing by counsel for the parties to be included in

this volume of the Reporter's Record, in the

above-styled and numbered cause, all of which occurred

in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of the

proceedings truly and correctly reflects the exhibits,

if any, admitted by the respective parties.

I further certify that the total cost for the

preparation of this Reporter's Record is located at the

end of Volume 21.

WITNESS MY OFFICIAL HAND this the 30th day of March,

2015.

/s/ Karen B. Martinez 

Karen B. Martinez, Texas CSR 6735

Expiration Date: 12/31/2015

Official Court Reporter

372nd District Court

Tarrant County, Texas

(817)884-2996

kbmartinez@tarrantcounty.com

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