NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS MELISSA KAY DUBOSE APPELLANT,

Transcription

1 Appellant requests oral argument NO CR 5th Court of Appeals FILED: 01/12/12 14:00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS MELISSA KAY DUBOSE APPELLANT, V. THE STATE OF TEXAS, APPELLEE BRIEF FOR APPELLANT On appeal from Cause Number MA in the County Criminal Court No. 8 of Dallas County, Texas Honorable Jane E. Roden, Judge Presiding MELISSA KAY DUBOSE 2617 Boll St. Dallas, Texas APPELLANT PRO SE

2 IDENTITIES OF PARTIES AND COUNSEL 1. The Honorable Jane E. Roden, Judge Presiding of the County Criminal Court No. 8 of Dallas County presided over the jury trial. 2. The State of Texas, represented by Assistant Criminal District Attorneys: Hilary McAllister SBOT# Frank Crowley Courts Building 133 N. Industrial Blvd. LB 19 Dallas, Texas Stephanie Mitchell SBOT# Frank Crowley Courts Building 133 N. Industrial Blvd. LB 19 Dallas, Texas Defendant, Melissa Kay Dubose, represented by: Frank Jackson(Trial Counsel) SBOT No Boll Street Dallas, Texas i

3 TABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL i PAGE INDEX OF AUTHORITIES iii-iv PRELIMINARY STATEMENT STATEMENT OF FACTS POINT OF ERROR NO. 1 APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE STATE THROUGH ITS AGENT, THE DALLAS COUNTY SHERIFF S OFFICE, DESTROYED AND OR FAILED TO PRESERVE MATERIAL EXCULPATORY EVIDENCE OF A VIDEOTAPE RECORDING OF THE ALLEGED ACTIONS OF APPELLANT THAT FORM THE BASIS OF THE CONVICTION POINT OF ERROR NO.2 APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE STATE THROUGH ITS AGENT, THE DALLAS COUNTY SHERIFF S OFFICE DESTROYED AND OR FAILED TO PRESERVE POTENTIALLY USEFUL EVIDENCE OF A VIDEOTAPE RECORDING OF THE ALLEGED ACTIONS OF APPELLANT THAT FORM THE BASIS OF THE CONVICTION ARGUMENT IN SUPPORT OF POINT OF ERROR NO ARGUMENT IN SUPPORT OF POINT OF ERROR NO CONCLUSION PRAYER CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE ii

4 FEDERAL CASES: INDEX OF AUTHORITIES Arizona v. Youngblood 488 U.S. 51, S.Ct. 333, 102 L.Ed.2d 281 (1988) ,26 Brady v. Maryland 373 U.S. at 87, 83 S.Ct. at California v. Trombetta 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ,26 Crane v. Kentucky 476 U.S. 683, 106 S.Ct 2142, 90 L.Ed.2d 636 (1986) Giglio v. United States 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) Gilmore v.taylor 508 U.S. 333, 343, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) Higgs 713 F.2d at In re Oliver 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed.682 (1948) United States v. Agurs 427 U.S. 97, 112,96 S.Ct.2392,2401,49 L.Ed.2d 342 (1976) United States v. Gengler 574 F.2d.730,735 (3d Cir. 1978) Washington v. Texas 88 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019(1967) Webb v. Texas 409 U.S. 95, 93 S.Ct. 351, 34L.Ed.2d 330(1972) Youngblood v. State 488 U.S. at 57-58, 109 S.Ct. At iii

5 STATE CASES Coleman v. State 966 S.W.2d 525, (Tex. Crim. App. 1998) Ex parte Brandley 781 S.W.2d 886 (Tex. Crim. App. 1989) Gardner v. State 7745 S.W.2d 955, (Tex. App. 1988, no pet.) Gilbert v. State 840 S.w.2d 138, 142 (Tex. App. 1992) State v. Shelton 802 S.W.2d 80, 82 (Tex. App.1990, pet. granted) Vasquez v. State 230 S.W.3d 744 (Tex. Ct. App.-Houston[14th Dist.], 2007) iv

6 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS MELISSA KAY DUBOSE Appellant VS. THE STATE OF TEXAS Appellee STATEMENT OF THE CASE The Defendant, Melissa Kay Dubose, entered a plea of not guilty to the charge of assault before the Honorable Jane Roden, Judge Presiding, and a jury. (RR: Vol. 2 p. 16) The jury found the Defendant guilty of the offense of assault. (RR: Vol. 4 p. 28) The trial court set punishment at three days confinement in the Dallas County Jail and assessed a fine of $1,000 and costs of the court. (RR: Vol. 4 p. 31) STATEMENT OF FACTS Ms. DuBose, who graduated law school from SMU in May of 2004 and is currently a self-employed criminal defense attorney, testified that on September 3, 2004 she went with friends to Stan s Blue Note on Greenville Avenue to watch a football game. (RR: Vol. 3 p. 1

7 46; RR: Vol. 3 p. 35) While watching the game she had one glass of white zinfandel wine. O her way home Matthew Finley, a Dallas Police Officer assigned to the DWI squad, stopped her for running a red light and speeding.(rr: Vol. 2 p. 22, 24) Ms. DuBose recalls hurrying home but does not recall running a red light. (RR: Vol. 3 p. 48) Officer Finley performed one standardized field sobriety test on the Defendant, the Horizontal Gaze Nystagmus test. (RR: Vol. 2 p. 25) Cars were driving by while he administered the HGN test and, at one point, a vehicle drove between him and Ms. DuBose. (RR: Vol. 2 p. 41) Officer Finely testified she had an unsteady balance, exhibited six out of the six clues on the HGN test, bloodshot eye and breath smelling of alcohol. (RR: Vol. 2 p. 25) Officer Finley attempted to conduct the walk and turn test but Ms. DuBose refused, stating she had rods in her back due to a spinal fusion which resulted in one leg being shorter than the other, making it difficult to stand with her legs together. (RR: Vol. 2 p. 41; RR: Vol. 3 p. 86) During the investigation, Ms. DuBose also informed him she had recently taken the bar exam. (RR: Vol. 2 p. 51) Michael Williams, another Dallas police officer on the DWI squad, approached the scene as Officer Finely was finishing the HGN test. He stopped to assist Officer Finley, operating the video camera in Officer Finley s squad car from the driver s seat. (RR: Vol. 2 p. 73) Officer Finely placed Ms. DuBose under arrest, and walked her over to his squad car. (RR: Vol. 2 p. 27) Officer Williams testified Ms. Dubose refused to get into the squad car, stating she didn t need help getting in, so he reached out, grabbed her arm and pulled her into the front passenger seat of the squad car. (RR: Vol. 2 p ) Both Officer Finley and Williams 2

8 allege Ms. DuBose was yelling at them and she kicked the camera wires with her left leg, turning off the squad car camera. (RR: Vol. 2 p. 28) At this point the squad car video abruptly ends. (State s Exhibit No. 1) Officer Williams exited the vehicle and Officer Finely got into the driver s seat and read Ms. DuBose the DWI statutory warning. Ms. DuBose refused both the breath and blood test. (RR: Vol. 2 p. 29,74) At that point Officer Finley and Williams claim Ms. DuBose got her left handout of the handcuffs and tried to get out of the squad car. (RR: Vol. 2 p. 29) Officer Cathcart and Officer Williams walked around to the front passenger seat to help Officer Finley re-apply the handcuffs. Officer Finley stated that Ms. DuBose spit at Officer Williams, hitting him in the face. (RR: Vol. 2 p. 31) However, Officer Williams only recalls Ms. DuBose allegedly spitting on his left hand. (RR: Vol. 2 p. 75) Officer Williams, admittedly extremely mad at this point, used a hard empty hand control of a palm-heel strike to the side of Ms. DuBose s neck, while Officer Finley applied his thumb to her mandible, both in an effort to stun her and gain control. (RR: Vol. 2 p. 34, 76, 82) The Officers claim she continued to resist, behaving worse after being struck by Officer Williams. (RR: Vol. 2 p ) Ms. DuBose was then shackled at the ankles and placed in the back seat of the squad car. (RR: Vol. 2 p.33-34) Two other officers arrived and took Ms. DuBose to the book-in at the Dallas County Jail. (RR: Vol. 2 p. 36,37) There was no testimony or video regarding Ms. DuBose s behavior while being transported to the jail. Ms. DuBose arrived at Lew Sterrett and was asked routine book-in questions regarding suicide and she was thereafter placed on the wall at the back of the intake room on suicide watch. (RR: Vol. 3 p. 50; RR: Vol. 2 p.89) Matthew Terry, a Dallas Police Officer, 3

9 testified that he was formerly an intake officer with the Dallas County Sheriff s Department and on September 3, 2004 he was working in the holdover section, assigned to watch the inmates sitting along the back wall. (RR: Vol. 2 p ) Officer Terry claimed Ms. DuBose first sat in the chair and then slumped out and had to be placed back into the chair. (RR: Vol. 2 p. 92) When she would not get up into the chair, Officer Margie Goggans, who was working as a fingerprint technician detention officer on September 3, 2004, came to assist him because, allegedly, Ms. DuBose s clothing was unintentionally causing a commotion with the male prisoners whenshe fell out of the chair. (RR: Vol. 2 p.93-94) Officer Terry and Officer Goggans, then took her back to the nurse s station. (RR: Vol. 2 p. 94; RR: Vol. 3 p. 6) He did not recall whether Ms. DuBose walked the five to ten feet to the nurse s station or if they helped her. (RR: Vol. 2 p. 96) While Ms. DuBose was with the nurse, the officers waited outside the door and then took her back to the wall. (RR: Vol. 2 p. 97) However, Officer Finley claimed he observed Ms. DuBose being belligerent with the nurse. (RR: Vol. 2 p. 59) Approximately three hours after Ms. DuBose was stopped, the restraint chair was wheeled into the book-in room and Officer Goggans and Officer Terry were ordered to put Ms. DuBose into the restraint chair to maintain control and keep her seated. (RR: Vol. 2 p. 98; RR: Vol. 3 p ; State s Exhibit No. 5 p.2) As Officer Goggans and Officer Terry walked Ms. DuBose over to the restraint chair, Officer Terry testified that he held her right arm and Officer Goggans held her left arm and Ms. DuBose kept bending over at the waist, calm one minute and irate the next. (RR: Vol. 2 p. 99) Officer Terry claimed that no force was being used against Ms. DuBose at this point but Officer Goggans admits Officer Terry put Ms. DuBose in a wrist lock, 4

10 applying pressure on the wrist which, according to Officer Goggans doesn t hurt but doesn t feel very good either. (RR: Vol. 2 p. 1`00; RR: Vol. 3 p. 11) Officer Goggans claimed she also put Ms. DuBose in a wrist lock to get her to stand up. (RR: Vol. 3 p ) At this point, while Officer Terry indicated Ms. DuBose was walking, Officer Goggans claimed she was on her knees. (RR: Vol. 2 p. 101; RR: Vol. 3 p. 3) Both Officer Goggans and Officer Terry claim Ms. Dubose bent over, attempt to bite Officer Terry and then bit Officer Goggans left leg above the knee. (RR: Vol. 2 p. 99, ; RR: Vol. 3 p. 13) This bite is the alleged assault that brought rise to this case. Officer Terry said Ms. DuBose was handcuffed when she bit Officer Goggans, however, Officer Goggans claims Ms. DuBose was swinging at them. (RR: Vol. 2 p. 109; RR: Vol. 3 p.12-13) Officer Terry did not recall if her feet were also shackled at that time. (RR: Vol. 2 p.109) Officer Goggans admits she then called Ms. Dubose a name. (RR: Vol. 3 p. 13) Officer Terry said there were several officers who came into contact with Ms. DuBose that night but that he doesn t remember how many officers were trying to retrain her. (RR: Vol. 2 p ) However, Officer Goggans maintains that she, Officer Terry and Sergeant Miley were the only officers restraining Ms. DuBose at the time of the alleged assault. (RR: Vol. 3 p.12; 23) While Officer Terry stated that Officer Goggans stepped away at this point, Officer Goggans maintains that she continued to put Ms. DuBose in the chair. (RR: Vol. 2 p ; RR: Vol. 3 p. 14) Conversely, Ms. DuBose testified that, immediately prior to the alleged assault, while handcuffed behind her back and shackled at the ankles, the officers took out her legs from under her, chunking her head first into the concrete floor, causing knots, a cut on her nose, 5

11 bruises and a black eye. (RR: Vol. 3 p. 51, 58, 72) Ms. DuBose also recalls being surrounded by officers, including Officer Goggans, on the ground and unable to move her hands and legs while the officers yelled at her, cursing and calling her names. (RR: Vol. 3 p. 52) At trial, Ms. DuBose characterized her alleged assault as fight or flight reaction to the excessive force being used against her. (RR: Vol. 3 p.59) Officer Finley did not witness the alleged assault but he was present after the assault and called the physical evidence section to come and photograph Officer Goggan s injury. (RR: Vol. 2 p. 61) Officer Michael Gonzales testified that at the time of the incident he was assigned to the crime scene investigation units and he was called to Lew Sterrett jail where he photographed Marie Goggans injury. (RR: Vol. 2 p.115) Afterward, Ms. DuBose recalled that she was taken to the nurse s office and told she had bit an officer. (RR: Vol. 3 p. 83) Ms. DuBose didn t recall biting anyone but she consented to give a blood sample so they could ensure she didn t have any transmittable diseases. (RR: Vol. 3 p. 83) The next day, when Ms. DuBose went home, she was achy and sore from the incident. (RR: Vol. 3 p.85) That day she had a friend who was a prosecutor in Collin County take photographs of her bruises and injuries. (RR: Vol. 3 p. 87) The photograph of her right arm showed handprints where the officers grabbed her arm. (RR: Vol. 3 p.89; Defense Exhibit No. 2) Another photograph showed her blackened eye and scrapes on her nose where she scraped on the concrete. (RR: Vol. 3 p. 89; Defense Exhibit No. 3) One photograph showed the cut and knot on her head. (RR: Vol. 3 p. 89; Defense Exhibit No. 4) 6

12 The jury found the Defendant guilty of the offense of assault. (RR: Vol. 4 p. 28) The trial court set punishment at three days confinement in the Dallas County Jail and assessed a fine of $1,000 and costs of the court. (RR: Vol. 4 p. 31) STATEMENT OF FACTS ON HEARING ON MOTION FOR NEW TRIAL th On June 4, 2010, a hearing on Appellant s motion for new trial was heard before the Honorable Jane Roden, Judge presiding of County Criminal Court No. 8 of Dallas County, Texas. Appellant argued that she was unable to develop her right to self-defense because of the destruction of the videotape of the book-in area. (RR: 6) During the trial, Ms. Dubose could not specifically recall what happened in the book-in area because of her mental condition at the time of her arrest. (RR: p.7) Appellant s counsel argued that the Dallas Sheriff s Department had a policy to preserve all evidence. (RR: p.10) However, the facts of this case indicated that there was some bad blood between the sheriff s department officials and Ms. Dubose during her arrest. (RR: p.10) Ms. Dubose threatened to sue the sheriff s department. (RR: p.10) Appellant s counsel argued that it was not unreasonable to assume the videotape had been destroyed. (RR: p. 11) Appellant argued that the action of recording over the videotape was an intentional act. (RR: p.11) Appellant s counsel further argued that Appellant was prejudiced because she couldn t recall the events in the book-in area where she allegedly assault police officers. (RR: p.12) There was no other evidence from the defense other than the tape to prove what occurred on the night of her arrest. (RR: p. 12) Appellant was given the charge of self defense and had the jury been given the videotape, she may have been found not guilty. (RR: p.13) Appellant s 7

13 counsel stated that the sheriff s department should have been concerned about preserving the tape and collecting the evidence to show that there was no misconduct on their part. (RR: p ) The State responded saying that testimony taken during the trial showed that the assault took place outside the range of the camera and there was no videotape recording the incident. (RR: p.18) The State further stated that there was no bad faith on the part of the police officers. (RR: p. 19) Appellant s counsel further alleged bad faith because there was a policy to preserve and the tape was not preserved. (RR: p. 20) It was not an issue of whether or not the assault took place in one room or another. (RR: p.20) He stated that while Ms. Dubose did not admit during trial that she had filed a lawsuit, she had told the police that she was filing a lawsuit. (RR: p. 21) Appellant s counsel further argued that the issue of spoliation should have been litigated earlier and Ms. Dubose alleged that her trial counsel was ineffective during her trial because this issue was not raised during her trial, there was no motion to dismiss based on this issue and there was no request for a charge on that issue during trial. (RR: p. 21) Appellant s counsel further argued that the jury did not properly address Ms. DuBose s mental condition. (RR: 22) There was no rebuttal from the State with respect to the expert that testified to her mental condition.(rr: p. 22) The jury did not have any contrary evidence with respect to her mens rea or her ability to commit the crime based on the two elements that the State would have to prove. (RR: p.22) The jury s verdict contrary to the evidence. (RR: 23) The State responded, alleging that intoxication caused Appellant to behave the way she did. (RR: p. 23) The trial court denied Appellant s motion for new trial. 8

14 POINT OF ERROR NO. 1 APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE STATE THROUGH ITS AGENT, THE DALLAS COUNTY SHERIFF S OFFICE, DESTROYED AND OR FAILED TO PRESERVE MATERIAL EXCULPATORY EVIDENCE OF A VIDEOTAPE RECORDING OF THE ALLEGED ACTIONS OF APPELLANT THAT FORM THE BASIS OF THE CONVICTION STATEMENT OF FACTS purposes. The foregoing statements of the facts are incorporated herein by references for all Facts regarding the video evidence While a portion of the squad car video was available, there wasn t a recording of what occurred inside the squad car because, Officer Finely and Officer Williams claim, Ms. DuBose kicked the wires in the squad car, turning off the camera. (RR: p. 22) The book-in room at Lew Sterrett was one big room. (RR: p.23) While in the book-in area, Ms. DuBose noticed a video camera, which was directed down to the same area in which she was thrown down to the floor. (RR: Vol. 3 p. 55) One of the ways the book-in room was monitored was via a camera set up in the book-in area. (RR: Vol. 3 p.24) Ms. DuBose attempted to locate the tape of that night but was told that they decided not to keep it. (RR: Vol. 3 p.58) At trial, Elizabeth Lutton, the records custodian and legal adviser to the Dallas Sheriff s Office, testified that they searched their system for a video recording of the book-in rd section of the Dallas County Sheriff s Department for September 3, 2004 and determined that there was a recording system in place but it was continuously recorded over after a period of 9

15 time. (RR: Vol.3 p. 96) However, Officer Lutton testified that the policy of the Sheriff s Department was to preserve the tape if a major incident occurred. (RR: Vol. 3 p. 96, 100) Officer Lutton stated the one camera in the book-in area was pointed at the shakedown area of central intake. (RR: Vol.3 p. 100) She claimed the camera did not capture the entire central intake room but she did not know what the camera captured for sure because she wasn t with the Sheriff s Department in 2004; instead basing her conclusions on statements made by other detention service officers. (RR: Vol. 3 p. 100) The video was not preserved in this case. (RR: Vo.. 3 p. 97) Facts regarding Ms. DuBose state of mind Ms. DuBose testified that, while in law school, she attended a clinic, which included DWI cases. During this clinic she was taught what circumstances made the standardized field sobriety tests unfair. (RR: Vol. 3 p ) The clinic taught them about police tactics and made her not trust them even though she recognized they have an important job to do. (RR: Vol. 3 p. 44) She had also learned about bad things that have happened to defendants that made her skeptical and untrusting. (RR: Vol. 3 p. 44) She stated these things were on her mind when she was stopped on September 3, (RR: Vol. 3 p. 44) Just prior to the arrest, Ms. DuBose took the bar exam. (RR: Vol. 3 p. 36) Studying for and taking the three-day bar exam was very stressful. (RR: Vol. 3 p. 36) At the time of the incident, Ms. DuBose was very stressed and depressed about trying to get a job to pay back her student loans and support herself. (RR: Vol. 3 p. 37) Ms. DuBose sought treatment from both a psychologist and a psychiatrist because she couldn t afford to be depressed. (RR: Vol. 3 p ) 10

16 At trial Ms. DuBose testified that she couldn t remember several of the events of that evening. However, she recalled Officer Williams hitting her neck, stating that when the officers became aggressive toward her, she became upset. (RR: Vol. 3 p ) Officer Finley testified that when he stopped Ms. DuBose she was having mood swings, initially being polite and then becoming more and more belligerent. (RR: Vol. 2 p.26) While in the book-in area she recalled being very upset and in a lot of pain. When the officers took out her legs from under her and chunked her headfirst onto the concrete floor. (RR: Vol. 3 p. 51) Ms. DuBose recalled being surrounded and cuffed where she couldn t move her arms and legs while the officers yelled curses at her. (RR: Vol. 3 p ) She said she didn t know what else to do but to scream in pain. (RR: Vol. 3 p. 52) She was terrified. (RR: Vol. 3 p. 53) At trial Ms. Dubose testified they used excessive force on her and the more force they used, the more frightened she became. (RR: Vol. 3 p. 53) Ms. DuBose testified that she was defending herself when she bit the officer because she was in severe pain. (RR: Vol. 3 p. 59) She didn t think about biting, it was just an instinctive reflex action. (RR: Vol. 3 p. 59) Ms. DuBose testified that then they restrained her in a chair and pushed it into the middle of the room. (RR: Vol. 3 p. 59) Officer Terry described the restraint chair as having a gap in the chair for the handcuffed hands. (RR: Vol. 3 p.59) Ms. DuBose testified the restraint chair was very scary looking chair that reminded her of the electrocution chairs you see in the movies. (RR: Vol. 3 p ) Moreover, they put a mask over her head, making the experience even scarier for her. (RR: Vol. 3 p.73-75) Ms. DuBose stated that the chair was very painful and she screamed in pain for quite awhile as the officers just watched. (RR: Vol.3 p. 73) 11

17 Officer Terry did not recall whether Ms. DuBose was screaming or calm prior to the alleged assault, nor did he did not recall her screaming about the handcuffs cutting off her circulation and cutting into her wrists. (RR: Vol. 2 p. 93, 106) Officer Goggans claims Ms. DuBose was acting very aggressively but that she did not notice her until Officer Terry began having trouble with her. (RR: Vol. 3 p. 22) Facts regarding Effexor Medication and Bipolar Disorder Ms. Dubose testified that Dr. Gary Patel, her psychiatrist, prescribed her Effexor. (RR: Vol. 3 p. 38, 45) She was taking one tablet of Effexor at night at this time and had last taken a dose twenty-four hours earlier. (RR: Vol. 3 p.48) Ms. DuBose had been taking Effexor three or four months before the incident, taking it a night because it made her sleepy. Ms. DuBose was on a high dose of Effexor, close to the maximum amount to be prescribed. (RR: Vol. 3 p. 138) She said her psychiatrist knew she had an occasional drink and didn t seem too concerned with that. (RR: Vol. 3 p. 61) Ms. DuBose did not tell Officer Finley about her depression before she took the field sobriety test because she didn t think it changed her ability to take the test. (RR; Vol. 3 p. 61) However, she did tell Officer Finley that she was on Effexor medication. (RR: Vol. 2 p. 47; RR: Vol. 3 p. 64) Ms. DuBose testified that while in the nurse s station, she asked for her medication several times. (RR: Vol. 3 p. 55) She said her medication was in a travel pillbox in her car but they wouldn t give it to her. (RR: Vol. 3 p. 55) She did not recall the nurse offering her an anti-depressant other than Effexor. (RR; Vol. 3 p. 68) However, she stated further that even if they had, she didn t think she should just switch to another medication. (RR: Vol. 3 p. 12

18 68) The next morning, after the alleged assault, the jail physician gave her some Effexor. (RR; Vol. 3 p. 55) At the time, Ms. DuBose didn t realize there might have been an adverse reaction to either not having taken Effexor in 24 hours or have taken it at all because she was not familiar with antidepressants and had never stopped taking Effexor before. (RR: Vol. 3 p ) After the incident, Ms. DuBose had to stop taking Effexor for a few days in order to have tests done on her spine. (RR: Vol. 3 p. 54) When she returned home from the tests, she had a panic attack and passed out, later realizing that this occurred because she hadn t taken Effexor for a few days. (RR: Vol. 3 p. 54) Officer Finley testified that he was a drug recognition expert but didn t know the drug Effexor, stating that he would have to look up the side effects of Effexor a any other antipsychotic drug. (RR: Vol. 2 p ) It did not occur to him that she was having a psychotic episode. (RR: Vol. 2 p. 48) He did not know of drugs that could have produced side effects similar to intoxication. (RR: Vol. 2 p. 2 p. 51) He further stated he did not know Ms. DuBose and did not know how she acted when she was not intoxicated. (RR: Vol. 2 p. 66) Officer Williams testified that he has seen this type of behavior in previous DWI arrests, stating that he has seen people accused of DWI s who were in fact having a psychotic episode instead of being intoxicated. (RR: Vol. 2 p. 84) He testified these people behaved irritated, aggravated, belligerent, and at times fought back. (RR: Vol. 2 p. 84) Officer Williams was unaware that Ms. Dubose was taking the medication Effexor nor did he did not know the symptoms of bipolar syndrome. (RR: Vol. 2 p. 85) Officer Goggans claimed she did not know that Ms. DuBose was a sick person that night and not intoxicated. (RR: Vol. 3 p. 26) 13

19 After the incident Ms. DuBose continued to see Dr. Patel for the prescriptions and then saw a specialist, Elizabeth Lombardo, who performed extensive testing on her diagnosing her with bipolar disorder. (RR: Vol. 3 p. 39) Ms. DuBose felt her behavior during the incident was so manic that it was clear she was not suffering from normal depression. (RR: Vol. 3 p. 39) She was very sorry that she bit the officer. (RR: Vol. 3 p. 46) Over the last six years she has been treated and has been gainfully employed. (RR: Vol. 3 p.4 1) She testified she had been prescribed Effexor at the time of her arrest and later learned that this was a very bad medication for bipolar disorder. (RR: Vol. 3 p 45) She said this drug can trigger violent behavior if the person taking it has a bipolar condition. (RR: Vol. 3 p. 45) William Hornyak, a psychologist with a specialty in psychopharmacology, t teaches students how chemicals work on the brain and what parts of the brain are being affected by the various pharmaceuticals. (RR: Vol. 3 p. 109) Mr. Hornyak stated that he has interviewed persons charged with serious and violent crimes and was formerly the supervisor for the Region 2 encompassing 92 counties as a parole supervisor for the Texas Youth Commission. (RR: Vol. 3 p ) Mr. Hornyak testified that he had examined Melissa Dubose and had reviewed the findings of Dr. Lombardo. (RR: Vol. 3 p. 115) He stated he was informed of offense of assault Ms. Dubose allegedly committed and was requested to evaluate her psychological state during that period of time. (RR: Vol. 3 p. 116) In addition to the report prepared by Dr. Lombardo, he also looked at the report summaries written by law enforcement officials and interviewed Ms. Dubose about the incident. (RR: Vol. 3 p ) 14

20 Mr. Hornyak said Dr. Lombardo s report stated that Ms. Dubose was diagnosed with a mild bipolar disorder, attention deficit disorder and anxiety. (RR: Vol. 3 p. 118) Bi-polar disorder usually doesn t manifest itself until people get to their early 20's. (RR: Vol. 3 p. 132 ) Mr. Hornyak testified that often times, people with Bipolar II only incur one manic episode, preceded by anxiety and depression. (RR: Vol. 3 p. 133) The witness described the symptoms of bi-polar disorder as a chemical imbalance which prohibits the brain to balance the ability to interact with others, producing a distinct experience of depression and at other times the chemical imbalance can cause agitated states or experiences of euphoria. (RR: Vol. 3 p. 118) He said when the positive feelings become grandiose the bi-polar person does not have good contact with the reality around them and the euphoric feelings can make the person view themselves as all powerful. (RR: Vol. 3 p ) He said they can also have manic attacks which makes it very difficult for them to respond in a rational manner. (RR: Vol. 3 p. 119) In some cases a person can experience very very high levels of energy that are beyond their ability to control. (RR: Vol. 3 p. 119) Mr. Hornyak testified that Dr. Patel had prescribed Effexor for Ms. Dubose, which was not approved for treatment of individuals having a bipolar disorder. (RR: Vol. 3 p. 121) Effexor was contraindicated and had a side effect of suicidal feelings in a bipolar patient. (RR: Vol. 3 p. 122) He said Effexor can cause manic episodes and cause the patient to act inappropriately. (RR: Vol. 3 p. 122) He further testified that Effexor could produce the same effects as alcohol when a person is given the horizontal gave nystagmus test. (RR: Vol. 3 p. 159) Mr. Hornyak testified that he thought Ms. Dubose had been mis-diagnosed with depression and further given medication which was not recommended for a person with a bipolar 15