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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 1

REPORTER'S RECORD

VOLUME 5 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 9th day of September, 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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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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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 3

CHRONOLOGICAL INDEX

Volume 5 of 21

PRETRIAL HEARING

September 9, 2014 Page Vol.

The Court Calls Case for Trial................ 4 5

Information on Excused Jurors(UNDER SEAL)..... 5 5

Jurors Excused by Agreement................... 6 5

Defendant Waives Pretrial Arraignment and

Reading of Indictment......................... 7 5

Not Guilty Pleas Entered Through Counsel...... 7 5

State's Motion in Limine...................... 9 5

Court's Ruling................................ 18 5

Pretrial Hearing Concluded.................... 21 5

Court Reporter's Certificate.................. 22 5

EXHIBITS

COURT'S PRETRIAL

NO. DESCRIPTION OFFERED ADMITTED VOL.

* 1 Audio Disc - TCSO Jail

Telephone Recordings -- 20 5

(Could not be converted)

 

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

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 4

P R O C E E D I N G S

Tuesday, September 9, 2014 9:50 a.m.

(OPEN COURT, DEFENDANT PRESENT)

THE COURT: All right. Prior to proceeding

with trial on the merits in Cause Number 1376698R, the

State versus Thomas Olivas, a couple of housekeeping

matters.

First of all, I would like the record to

reflect that all the jurors are now assembled in the

hall, that the questionnaires, all but I think seven or

eight questionnaires, had been completed in advance,

were delivered to the parties yesterday, and those

individuals who did not follow the online instruction to

register have completed manual questionnaires this

morning. And everyone is supposed to have all of those.

Is that correct, State?

MR. ROUSSEAU: We do, Your Honor.

THE COURT: And Defense?

MR. MOORE: That's correct.

* * * * * * *

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 5

(THIS PAGE IS UNDER SEAL)

THE COURT: And the parties are in agreement

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STATE v. THOMAS OLIVAS 6

that 13, 35 and 51 should be excused. And that was done

prior to voir dire.

Is that correct, State?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: Defense?

MR. MOORE: Yes.

THE COURT: Also, the parties have advised

me that they have, no disrespect to Tamla and Joetta,

but basically a gentlemen's agreement, if you will,

under the old rules, that 36 and 30 are going to be

excused for reasons the record doesn't need to reflect

other than that both parties are agreeing those people

shouldn't serve, and prior to making strikes, they will

be struck from the official list by agreement.

Is that correct, State?

MR. ROUSSEAU: Yes, Your Honor.

THE COURT: And Defense?

MS. KEENE: Yes, Your Honor.

THE COURT: All right. Is there anything

else relating to the jury list at the present time that

either side needs to address?

MR. ROUSSEAU: Not related to the jury list.

MR. MOORE: No, not from us.

THE COURT: All right. Then one other

housekeeping matter. I've been advised several times by

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 7

Defense Counsel and again this morning that the

Defendant -- that's you, Mr. Olivas, you need to listen

up. Your lawyers have told me before we went on the

record that you have a copy of all the indictments,

including the one on trial, you can read and write

English, you're able to talk to them about it, and

they're going to waive a formal reading of the

indictment until the jury is sworn and the trial on the

merits commences, and is that all right with you, sir?

THE DEFENDANT: Yes, sir.

THE COURT: And they're going to waive

what's called a formal arraignment, where I read the

charges in open court and you enter a plea, and your

lawyers are simply going to enter pleas of not guilty to

all charging paragraphs of this 1376698R indictment, and

that would be four separate paragraphs, and they're

going to do that on your behalf, and I assume that's all

right, too?

THE DEFENDANT: Yes, sir.

THE COURT: And so do you officially waive

arraignment and enter those pleas at this time,

Mr. Moore?

MR. MOORE: Yes.

THE COURT: All right. Let the record so

reflect formal arraignment waived, not guilty pleas

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 8

entered before voir dire.

I see prior to voir dire that Defendant has

filed with the Clerk of the Court a sworn application

for community supervision if convicted; a sworn request

prior to voir dire that if convicted of anything less

than capital murder that, A, could be probation eligible

depending on charge; B, wants jury sentencing if

sentencing involves a range of punishment; and both

sides have signed an agreement that if the jury writes

notes during deliberations, they can be answered in

writing after reviewed by the parties without bringing

them into the courtroom.

Does the Defense agree with all those

statements and what's in the clerk file?

MR. MOORE: We do.

THE COURT: And does the State agree with

agreement on notes?

MR. ROUSSEAU: Just with the observation

that a potential lesser is murder for which probation is

not a possibility anyway, but with that, yes, Your

Honor, I agree.

THE COURT: I mean, you know, in all

fairness, based on the nature of the indictment and

depending of course on the facts, in the hypothetical

world, you might have charges involving the underlying

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 9

felony and not the death, and vice versa, some of which

would be probation eligible, some not, and depending on

what gets charged in the event of something that were

applicable, I think Defense is aware, as the Court is,

based on the offense date, murder is no longer a

probation eligible offense. That's no surprise to

anyone.

Is that correct, Mr. Moore?

MR. MOORE: That's correct. We don't intend

to go into it on voir dire, quite frankly.

(Pause in proceedings)

THE COURT: Okay. All right. On the

record.

Are there any legal issues either side needs

to address to the Court since the jury panel, those that

remain that haven't been excused, is now assembled, from

the State?

MR. ROUSSEAU: We have a motion in limine,

Your Honor, for voir dire purposes regarding extraneous

information regarding the victim, Asher Olivas. This is

a capital murder alleging the death of two individuals

in a single criminal episode. The fact of the matter

is, the two victims are mother and 13-month-old son.

There is no allegation in the indictment regarding the

age of the victim, that is, Asher Olivas, which could

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 10

have elevated into a capital murder based strictly on

his age. We have not made that allegation. So the only

thing before the jury is, for the jury to consider is,

whether or not there were two single victims in the same

criminal transaction.

For that reason, I would object to any

mention of the age of the victim, of Asher Rion Olivas,

during jury selection. If there's any need to address

particularized knowledge any individual juror might have

from publicity or any other source, I would request you

simply bring those individuals up and find out what that

information is rather than inform the entire jury panel

that we're talking about a child under the age of ten.

We can discern what it is they know and whether it's a

problem without informing everybody of the age of the

child.

THE COURT: What about the generic question,

"Does anyone have any problem giving full and fair

attention to an offense if the facts they happen to hear

involve a victim who might have been a child versus an

adult"?

MR. ROUSSEAU: That is --

THE COURT: The generic question.

MR. ROUSSEAU: That's a binding question,

Your Honor. It's asking them to resolve or not resolve

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 11

an issue based upon a fact that's not a part of the

indictment.

THE COURT: What about the case where the

priest is a victim and the Court of Criminal Appeals

says the generic issue of what if a priest was a victim

could you at least be able to, as a Catholic or

otherwise, make an independent and fair assessment and

not be distracted by that factor but apply the law to

the facts, not what would you do or how would it affect

you but just the generic idea of, quite frankly,

avoiding a mistrial from I think their viewpoint, if

it's someone comes here and someone freaks out,

without -- I agree with you about a specific age.

MR. MOORE: I agree with that, Your Honor.

THE COURT: Just a generic issue, if you

were to hear evidence that a victim of a crime whether

it was an adult or a child, would it make any difference

to you, without saying in this case it is or it isn't,

since we're not supposed to be saying what is or isn't

anyway.

MR. ROUSSEAU: I still think that's too

specific. I can see -- and I don't remember -- I do

remember the case that you're talking about, the

language, but I don't remember what the facts of that

case involved.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 12

THE COURT: A priest was killed --

MR. ROUSSEAU: Was it --

THE COURT: Yeah, or a nun. It was a priest

or a nun was killed.

MR. MOORE: It was a nun.

MS. KEENE: Nun.

THE COURT: Nun, yeah. And I think people

have said priest before like for voir dire purposes, the

same type of thing, or a nun. Because there's a

potential visceral response that any person of faith,

Catholic or not, or other -- that's like a helpless-type

category, is there an emotional reaction that would keep

you from making an objective determination, but not

whether it's an old nun or a novitiate or whatever the

circumstances, but just the generic question.

MR. ROUSSEAU: Okay. Well, my position,

Your Honor, is still that it's too specific to the facts

of our case. It's a lightning rod issue that the jury

will not be asked to consider. It's not a part of the

indictment. And it's something that frankly is going to

serve no purpose other -- we're not even able to flesh

out the details.

THE COURT: I understand.

MR. ROUSSEAU: So it's going to do nothing

more than cause a knee-jerk reaction from the people.

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STATE v. THOMAS OLIVAS 13

THE COURT: Or find out if someone says if

there's a nun that's a victim don't ever call me because

I could never be fair no matter what the facts are.

MR. ROUSSEAU: Sure.

MR. MOORE: And, Judge, in response, I do

plan on putting the indictment and the elements up to

discuss with the jury.

THE COURT: And I understand that, and I

think --

MR. ROUSSEAU: I do, too.

THE COURT: -- in Kevin's defense, he could

have charged a child under six, he could have charged in

the course of an arson, he could have charged all kinds

of different theories of capital murder, and this

indictment is very clean and it's a multiple death, same

criminal episode, and so it doesn't matter as a matter

of law on their burden of proof. It's only an issue of

whether there is a due process and effective assistance

of counsel thing that kind of stretches and modifies the

general non-binding rules of jury selection. It isn't

binding of what would you do in this case. It's if the

general concept of the victim were a female or a child

or anything could you emotionally make an objective and

fair decision, or a nun or someone that would fit into a

subcategory, or of the race of a person, the general

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 14

question, would that affect your ability to be fair and

make an objective and fair decision and let the chips

fall where they may.

In the case about the nun and a couple of

companion cases clearly say you can throw out general

categories, does anyone have problems with general

categories of accused or victims, and that you're not

letting age or race or sex affect your ability to make a

decision. And, quite frankly, I hear every day good

lawyers on both sides talk about that the person on

trial might be Arab-American or African-American or

Asian-American, does that cause anyone a problem. And

the fact is, that's a fact and that's binding in a way,

but it's not asking will you hold it against him but do

you have a problem with the category of someone's

ethnicity, and I don't see this as being any different.

MR. ROUSSEAU: Well, then --

THE COURT: Because you're not talking about

"this defendant" any more than your particular victim.

MR. ROUSSEAU: I'm sorry, Your Honor, I

didn't mean to interrupt you.

THE COURT: That's okay. I kept going.

That's my fault, too.

MR. ROUSSEAU: The distinction I would draw

there, and if I misheard you, I'll stand corrected, is

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 15

that with those, I believe you were talking about the

defendant on trial --

THE COURT: Or a victim.

MR. ROUSSEAU: -- is they're usually visible

to the jury.

THE COURT: I know, but it still doesn't

count. He doesn't count. We're not talking about his

case; we're talking about any case. The rules of voir

dire -- and I know, human nature, people say, including

the State and the Defense, people of good conscience who

try to follow the rules, say "this defendant has a right

to remain silent, would anyone punish him". No, it's

not "this" defendant; it's "any" defendant. It would be

objectionable to make reference, for them to their

client or you to their client, but people aren't doing

it make reference to him because that's, as you're

saying, the common sense, that's the person who's here,

and all citizens have the right, but if you look at the

voir dire rules, it's not talking about him or your

victim or anyone else. It's talking about any case with

any victim and any defendant. And people always

personalize it just subconsciously because that's how we

have conversations in life, including with jurors. It's

not meant to bypass the rules, but that's why nuns as a

category is okay, children as a category might be okay

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 16

but not whether it's a two-year-old or a 12-year-old,

not whether -- you know, "clergymen" as a general rule.

There are categories that are allowed.

And, first of all, his point as to under six

is well-taken. That is irrelevant as a theory of proof.

What is it you wanted to do and then I'll

let him object if --

MR. MOORE: Basically exactly what you -- I

intend to have the elements, the four charging

paragraphs, and explain to them what the State's burden

is and -- but I did plan to go into the fact that one

victim -- how would that affect you if a victim was a

child.

THE COURT: Not to go into the fact --

MR. MOORE: Not to go into the age, the

facts or anything. I just I think I'm entitled to say

this because, you know, if it leads to a preemptory

challenge, or even if you say it's binding, if it leads

to a challenge for cause, I think it's still proper.

THE COURT: Well, and I will just say this.

The way you prefaced your question is probably the

reason for his limine motion, is it is a fact. You

don't get to say the victim in this case is a child.

You get to say in any case you have to make a decision

whether --

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STATE v. THOMAS OLIVAS 17

MR. MOORE: Right.

THE COURT: -- someone is a senior citizen

or a child or an in-between age, whether they're healthy

or other, you're supposed to decide what do the facts

prove and does anyone have a problem if in a case

someone is elderly or someone is a child or someone is

disabled; in making an objective decision, what are the

facts and do they prove anyone committed a crime and not

be emotionally affected and sway the facts by the status

of a victim or a defendant or anyone else in any case.

The generic question is allowed. The saying "in this

case the victim is a child," I think crosses the line.

"In this case the victim is a nun" crosses the line. If

you say, "What if the victim were like a nun or an old

person, does that cause a problem," I think it doesn't

cross the line, because if someone says, hey, if anyone

ever did anything to a nun, I am not going to

objectively be able to make a guilt or not guilty

decision," or "follow an objective range of punishment,"

"my emotional, spiritual," whatever, "is going to take

over and I can't make a cool, collected decision based

on the law and the facts". And if you phrase that in a

term of would the age of a person affect your ability to

do that, whether it be a child or whatever, if it's put

in the generic context of "your duties are the same,

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KAREN B. MARTINEZ

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STATE v. THOMAS OLIVAS 18

whether the victim is three days old or 103 years old,

your rules are the same," I don't have a problem with

generically making sure -- and, quite frankly, I don't

have a problem preventing mistrials, either. Because

what happens when that happens is that person crosses

their arms in the jury room at the end of the trial and

says, "A kid, there is no flexibility," and then you

have jury misconduct and you do it all again.

So it's granted in the context of talking

about "this particular case the victim is..." versus "if

in a case is the age of a victim going to affect your

ability to objectively make a decision." If you use

examples of a child or elderly or anywhere in between,

some people -- and you can point out, "Some people have

sympathy for the elderly and it clouds their vision to

decide are they even a victim or not, or certainly did

the person on trial do anything or not," because you see

an old person, you give sympathy and you're not

objective anymore, or sometimes as a child that's a

victim. It clouds your objectivity. Just like the

things with cops, you can handle it the same way, is if

you're going to call police officers, "if anyone has a

problem trusting the testimony of a police officer,"

well, that's kind of binding but it's not really because

it's not "will you believe Officer Flores, homicide

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 19

investigator". It's "will you automatically believe or

disbelieve a cop because of their status as a cop

because of some life experience". It's the same issue

with having a child or an elderly victim or defendant of

a particular race or sex or creed that offends someone's

personal sensibilities that wouldn't affect a fair and

objective juror.

So granted in part, denied in part to the

generic question.

Anything else?

MR. ROUSSEAU: Offhand, I cannot think of

anything else, Your Honor.

THE COURT: All right.

MR. MOORE: This can be off the record.

(Discussion off the record)

THE COURT: One last housekeeping matter on

the record.

I have been advised by the parties and the

court reporter that the CD/DVD, electronic recording of

the various phone calls that were discussed and subject

to the motion for continuance, have been surrendered to

the court reporter. It's marked as Court's Pretrial 1.

And I want the record to reflect those are the items

that were the subject matter of the continuance motion

and the discussion surrounding the same.

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OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 20

(Court's Pretrial Exhibit No. 1 admitted)

THE COURT: And, for the record,

Mr. Rousseau, that's the only copy, other than the one

in the possession of the Defense, that you were aware of

that; is that correct, sir?

MR. ROUSSEAU: Yes, sir. We are at a

disadvantage now.

THE COURT: All right. And I will remind

the Defense that the limine applies to both sides as to

any reference to any calls from the jail.

MR. ROUSSEAU: I say that with a grain of

salt, Your Honor.

THE COURT: I understand that.

MR. MOORE: So subject to the ruling of the

Court, we're not required to file a motion in limine,

and it's my understanding that subject to your ruling

that neither party will be able to use any kind of phone

recordings?

THE COURT: Unless -- there's two things

that the Court said yesterday in the midst of a lot of

discussion, and I will admit that, between everybody and

setting a factual record for your motion, no one makes

reference to any calls being made to and from the

Defendant in jail to anyone, either receiving them or

him making calls. There's no reference to jail calls

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 21

from either side without approaching the bench and

saying here's why it's relevant and here's why it's not

going to -- or with the recognition it might change a

prior ruling. No one makes reference to the existence

of or the contents of anything that's on Court's

Pretrial Exhibit 1 other than what's in the record by

officers of the Court as to how the exhibit was created

in the limited review y'all did in your office. It's

off limits unless you approach the bench first.

MR. MOORE: Thank you.

THE COURT: But that's a two-way street.

And in all fairness, too, cannot be used

offensively or defensively regardless of the contents.

And as Mr. Rousseau points out, they don't have the

ability to continue to listen to it. You're allowed to

keep your copy in the remote event that at some point in

the future there's something that actually would be

Brady and you can make a subsequent record. And if not,

I'll expect your copy be turned into the court reporter

after your review.

MR. MOORE: Thank you.

THE COURT: All right. Sheriff, lock and

load.

(Pretrial Hearing concluded at 10:15 a.m.)

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KAREN B. MARTINEZ

OFFICIAL COURT REPORTER

STATE v. THOMAS OLIVAS 22

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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