TRIAL COURT CAUSE NOS & REPORTER'S RECORD VOLUME 1 OF 1 ) IN THE DISTRICT COURT OF )

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1 1 1 TRIAL COURT CAUSE NOS & REPORTER'S RECORD VOLUME 1 OF THE STATE OF TEXAS vs. KENNETH LEON SNOW ) IN THE DISTRICT COURT OF ) ) SMITH COUNTY, TEXAS ) ) 1ST JUDICIAL DISTRICT TRIAL ON THE MERITS 1 PLEA AND SENTENCING HEARING on the 1th day of November, 1998, the 1 following proceedings came on to be heard in the 18 above-entitled and numbered causes before the Honorable 19 Diane Devasto, Judge presiding, held in Tyler, smith 0 county, Texas: 1 Proceedings reported by computerized stenotype machine; Reporter's Record produced by computer-assisted transcription. :t DEFENDANT'S lo ~ EXHIBIT I i!> ID COPY

2 '-" FOR THE STATE OF TEXAS: A P P E A R A N C E S MR. DAVID E. DOBBS MR. W.B. MCAFEE OFFICE OF THE CRIMINAL DISTRICT ATTORNEY SMITH COUNTY COURTHOUSE, TH FLOOR 100 N. BROADWAY TYLER, TEXAS 0 (90} FOR THE DEFENDANT: MR. BRANDON BAADE ATTORNEY AT LAW POST OFFICE BOX 8 QUITMAN, TEXAS 8 (90) REPORTER'S NOTE uh-huh= Yes - Affirmative response Huh-uh = No - Negative response Quotation marks are used for clarity and do not necessarily indicate a direct quote.

3 ~ 1 I N D E X VOLUME 1 OF 1 (PLEA AND SENTENCING HEARING) NOVEMBER 1, 1998 Page court's admonishments to the Defendant... Defendant's plea... 1 state rests on guilt/innocence STATE'S WITNESSES: Direct Cross voir Dire DENNIS MURPHY 18 STATE RESTS DEFENDANT'S WITNESSES: Direct cross voir Dire KENNETH LEON SNOW JOE COSTELLO 1 Defendant rests.... State closes.... Defendant's Argument.... state's Response.... court's pronouncement of sentence.... I court Reporters cert1 icate.... f

4 1 EXHIBIT INDEX STATE'S NO. DESCRIPTION OFFERED ADMITTED 1 Stipulation 16 1 of Evidence in 6 each cause number 8 DEFENDANT'S 9 NO. DESCRIPTION OFFERED ADMITTED 10 1 Letter (Exhibits in court's file or custody of District clerk.)

5 1 P R 0 C E E D I N G S November 1, 1998 (Open court, defendant present, no jury.) THE COURT: And if the parties would like to step forward at this time, please. And I know there 6 may be some evidence here but we'll take that as we go. Mr. snow. And in each of these cause 8 numbers, , the indictment there is for 9 Aggravated Robbery, in , the indictment is 10 for Robbery, and that's what we're here about this 11 morning. If you'll raise your right hand, please. 1 (Defendant sworn by the court.) 1 THE COURT: I know you were here at prior 1 proceedings and I'm going to take judicial notice of all 1 those other prior actions. There was some testimony 16 elicited from one of the victims here. The matters that 1 we're going to go over are going to be numerous here this 18 morning. If you have any questions or anything you don't 19 understand, you ask me or you seek the advice of your 0 attorney, Mr. Baade. Now he's been with you throughout a 1 number of these proceedings that we've had here in this courtroom for, I guess, 18 months now or so. we'll first proceed as to a plea. And it is announced as a plea; is that correct? MR. BAADE: Yes, ma'am.

6 6 1 MR. McAFEE: It is, Judge, on cause No , however, it will be a plea to the lesser included offense of Robbery as opposed to Aggravated Robbery. The Defendant is charged with Aggravated Robbery, the Indictment is for Aggravated Robbery, the 6 stipulation will be to Robbery, and we're waiving a jury on his plea to a lesser included offense. 8 The admonishment states -- the written 9 admonishment states it's for Aggravated Robbery, we would 10 ask the oral admonishment be for Robbery since he is 11 charged with the Aggravated Robbery, the range of 1 punishment is the same. 1 MR. BAADE: That's my understanding, Your 1 Honor. 1 MR. MCAFEE: As enhanced. 16 THE COURT: And you have -also been over 1 that thoroughly with your client? 18 MR. BAADE: Yes, I have. 19 Do you want to answer? 0 THE DEFENDANT: Yes, ma'am. 1 THE COURT: You're going to have to speak up. Ms. McFadden takes a record in both of these. And actually, it's still a to 99 years or Life and 10,000 because of the enhancements, correct? Are they first degrees?

7 MR. MCAFEE: Not a 10,000. There's not a fine on to 99 or Life if it's an habitual offender. The only difference is that it's just not a (g) offense. THE COURT: okay. They're both that same range? MR. MCAFEE: That's correct, Your Honor. THE COURT: Okay. Mr. Snow, you understand that range of punishment and what we're going to be doing as far as your plea to the lesser included offense? 11 THE DEFENDANT: Yes, ma'am. 1 THE COURT: And these are consolidated,.,, here for trial, is that correct, Mr. McAfee? MR. MCAFEE: we are so moving. MR. BAADE: No objection. THE COURT: NO objection. And that is granted. As far as the paper work here, you've been over this with your attorney? 0 THE DEFENDANT: Yes, ma'am. 1 of these documents? THE COURT: Do you understand the contents THE DEFENDANT: Yes, ma'am. THE COURT: You have voluntarily signed each and every one; is that correct?

8 8 1 THE DEFENDANT: Yes, ma'am. THE COURT: And what grade did you attain in school, sir? THE DEFENDANT: Tenth. THE COURT: And you can read and write the 6 English 1 anguage? THE DEFENDANT: Yes, ma'am. 8 THE COURT: The waivers that you've 9 presented, particularly as to your waiver of jury trial, 10 you understand that you can have a jury trial on both of 11 these charges, you understand? 1 THE DEFENDANT: Yes, ma'am. 1 THE COURT: And that you don't have to 1 give that up in any way. You can press forward, we'll 1 set this for trial. It would have, actually, a 16 preferential setting here because of the length of time 1 you've been incarcerated. so, if you want a jury trial, 18 you 11 get one. 19 Now, are you giving up your right to trial 0 by jury at this time -- 1 charges? THE DEFENDANT: THE COURT: Yes, ma'am. on these two -- two THE DEFENDANT: Yes, ma'am. THE COURT: And no one threatened, coerced

9 ~ you or otherwise intimidated you into doing so? THE DEFENDANT: No, ma'am. THE COURT: And at this time, we'll accept the waivers, all the admonishments contained within the plea packet, find that they have been entered voluntarily. The MR. MCAFEE: Judge, could I interrupt you just a second THE COURT: Yes. MR. MCAFEE: -- and see the plea packet in 80-8? THE COURT: 8? MR. MCAFEE: can I see the other packet? Thank you, Your Honor. Judge, at this time, we would make a trial amendment to the Indictment. we've amended the stipulation to coincide with the amendment to the Indictment by abandoning the first three paragraphs enhancement paragraphs which would start with the third paragraph in the Indictment and begins "and it is further presented in and to said court." That includes cause No. -- excuse me first two enhancement paragraphs, that includes cause No and Those two paragraphs we're moving to abandon. THE COURT: And that's in which cause

10 10 1 number? MR. MCAFEE: That's in cause No That leaves enhancement paragraphs for cause Nos and THE COURT: Any objection? 6 MR. BAADE: No objection to the trial amendment or deletion of those enhancements. 8 THE COURT: NOW with that amendment 9 MR. MCAFEE: I'll amend the actual 10 Indictment in the court's file, if I may. 11 THE COURT: You understand you have an 1 additional ten days also -- 1 MR. BAADE: we'd waive the ten days. 1 THE COURT: on that waiver -- on that 1 amendment of the Indictment? And do you waive your 16 additional ten days to prepare? And I'll give you just a 1 moment. 18 (counsel for defendant and defendant 19 confer.) 0 MR. BAADE: Your Honor, I've had a chance 1 to consult with Mr. Snow and we'd waive the ten days. THE COURT: And you do so waive, sir? / THE DEFENDANT: Yes, ma'am..._.., and proceed. THE COURT: And we will accept your waiver

11 11,.,, MR. MCAFEE: And I have marked through both charging paragraphs or enhancement paragraphs in the Indictment, and I've written "Abandon" out to the right of each paragraph and initialed and dated both paragraphs. THE COURT: And for the record, I'll also note -- my notation is that abandonment. And I need the other packet. And I know that Mr. Baade has represented you for quite some time. As far as the representation you've received, are you satisfied with that representation? THE DEFENDANT: Yes, ma'am. THE COURT: And as far as formal reading of these Indictments in either in either case, do you waive that? MR. BAADE: we'd waive the formal reading of the Indictments. THE COURT: would you like to summarize? I'm -- I'm familiar with the cases, but I would like some summary for the record, please. MR. MCAFEE: Yes, Judge. on January the 1st, 199, the Defendant is charged with robbing two individuals, Mr. Martinez and a Mr. Cole, in two separate locations. one was by using his -- just robbing him and

12 1 1 using his hands, and the other one was using a spray chemical -- Mace, a spray -- when he robbed and took the property from the complaining witnesses. I may have 6 referred to them as defendants but they're complaining witnesses. Both January 1st, 199. THE COURT: You understand the summary - THE DEFENDANT: Yes, ma'am. 8 THE COURT: of those charges? You know 9 what you're charged with, sir? 10 THE DEFENDANT: Yes, ma'am. 11 THE COURT: The date of offense being the 1 same MR. MCAFEE: That's correct. THE COURT: -- in both? okay. As far as competency here to enter a plea, 16 you believe his is competent? 1 MR. BAADE: Yes, Your Honor, I do. 18 THE COURT: You've never been declared to 19 be incompetent by a court or by a doctor, sir? 0 THE DEFENDANT: No, ma'am. 1 THE COURT: And you understand the seriousness of these proceedings? THE DEFENDANT: Yes, ma'am. THE COURT: You also have been able to assist Mr. Baade in the preparation of your defense?

13 1 1 THE DEFENDANT: Yes, ma'am. THE COURT: And based on my observations of you throughout these proceedings over many, many months, I would also make a finding that you appear to be competent here, based on my observations of you. 6 okay. As far as the influence of any drug or alcohol, you're not under the influence of any drug or 8 alcohol at this time? 9. THE DEFENDANT: No, ma'am. 10 THE COURT: NOW, this is -- this is 11 announced as an open plea which means you kind of take 1 you take whatever it is that I sentence you to. But, the,._,, 1 plea that you enter must be voluntary; so, as far as a 1 finding, you could be found guilty of both of these 1 offenses, two different -- in the lesser -- in the 16 Aggravated Robbery to the Robbery charge. I wouldn't 1 allow you to withdraw your plea. once you enter your 18 plea, your plea is -- is certainly for all intents and 19 purposes final, that plea. 0 And you've explained that to him? 1 MR. BAADE: Yes, I have, Your Honor. THE COURT: okay. The -- and I don't know what the -- what the argument is going to be to me on this at all. I mean, I have no idea what's going to be asked of me by your attorney or by the State. It could

14 1 1 be something in between, it could be what they ask for, it could be what your attorney asks for. Do you understand that? THE DEFENDANT: Yes, ma'am. THE COURT: The plea, again, must be 6 voluntary, what you want to do here; and you must be under no threat, coercion, you must not do anything other 8 than what -- what you desire to do. 9 one other admonishment, as far as your 10 citizenship, if you are not a citizen of the united 11 States, a plea of guilty or no contest for the offense 1 charged may result in deportation, exclusion from 1 admission to this country or denial of naturalization. 1 Do you understand that also? 1 THE DEFENDANT: Yes, ma'am. 16 THE COURT: And as far as the right to 1 appeal, you'd be waiving your right to appeal except on 18 matters raised and ruled upon prior to trial. 19 Have you been over that with him? 0 MR. BAADE: Yes, I have. 1 THE COURT: so this is your day in court. THE DEFENDANT: Yes, ma'am. THE COURT: Okay. And you have a full understanding of that? THE DEFENDANT: Yes, ma'am.

15 1 1 THE COURT: I'm going to be asking you for individual -- individual pleas to the charges and to the enhancement paragraphs, so there will be separate pleas. Have you also been over that -- I'll be asking him for that -- Mr. Baade? 6 MR. BAADE: Yes, ma'am. THE COURT: In , in The State 8 versus Kenneth Leon snow, to the lesser included offense 9 of Robbery included in that Indictment, what is your plea 10 at this time, Mr. snow? 11 THE DEFENDANT: Guilty. 1 THE COURT: And in , to the 1 charge of Robbery as charged in that separate Indictment, 1 what is your plea? 1 THE DEFENDANT: Guilty. 16 THE COURT: And to the enhancement 1 paragraphs contained within both of those Indictments, 18 first of all, in , what is your plea? 19 THE DEFENDANT: Guilty. 0 THE COURT: It will be true or not true to 1 the enhancement paragraphs. THE DEFENDANT: Oh, true. THE COURT: And in , what is your plea? THE DEFENDANT: True.

16 16 1 THE COURT: And you have entered each of those pleas voluntarily; is that correct? THE DEFENDANT: Yes, ma'am. THE COURT: You've not been threatened, coerced, otherwise intimidate into entering those pleas? 6 THE DEFENDANT: NO, ma'am. THE COURT: You've not been promised any 8 certain result as a -- as a result of those pleas -- 9 THE DEFENDANT: NO, ma'am. 10 THE COURT: is that correct? And as 11 far as argument here or evidence, do we have certain 1 other evidence to adduce at guilt/innocence, Mr. McAfee, '--" 1 that you might have? 1 MR. MCAFEE: Not on the guilt -- we've 1 just got the stipulations that have been marked as 16 state's 1 in each of the respective cause numbers. And 1 the stipulation, again, in cause No is to 18 the lesser offense of Robbery. Each one of those 19 establishes the elements of the offense as well as the 0 enhancement paragraphs that make the offense the to 99 1 or Life as the Court has admonished the Defendant. we'd also offer State's 1 in , the stipulation of Evidence in that case as well. MR. BAADE: No objection. THE COURT: And you have read over those,

17 1 1 Mr. snow? THE DEFENDANT: Yes, ma'am. THE COURT: That's the paperwork we've been kind of going back and forth on here as far as what the stipulation of evidence is. But you've been over 6 those with your attorney? THE DEFENDANT: Yes, ma'am. 8 THE COURT: You understand that these two g documents -- and I'm going to show them to you -- each of 10 these amounts to a judicial confession as to the facts 11 contained within those documents. Do you understand 1 that? 1 THE DEFENDANT: Yes, ma'am. 1 THE COURT: And you're giving up your 1 right to cross-examine witnesses who might appear here 16 against you in this -- in this matter. 1 THE DEFENDANT: Yes, ma'am. 18 THE COURT: And as to state's 1, they're 19 admitted in each separate cause number. 0 MR. MCAFEE: State would rest on 1 guilt/innocence, Your Honor. THE COURT: And as we proceed to punishment, I know there may be some evidence at punishment and argument as to punishment. MR. BAADE: That's correct.

18 '"-.../ THE COURT: why don't we go ahead with that now. You can just have a seat there at counsel table. MR. MCAFEE: And, Your Honor, at this time, we would call Dennis Murphy to the stand. (Witness sworn by the court.) THE COURT: Go ahead. MR. MCAFEE: Thank you, Your Honor. May I proceed? THE COURT: Yes. DENNIS MURPHY, having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. MCAFEE: Q. would you state your name for the court and for the record, please, sir. A. My name is Dennis Murphy, D-e-n-n-i-s, M-u-r-p-h-y. Q. Mr. Murphy, how are you -- what occupation are you in? A. Special Agent, FBI. Q. How long have you been with the FBI? A. seventeen years, approximately. Q. what are your assignments and responsibilities with the FBI?

19 19 1 A. I investigate violations of Federal law, and I'm a member of the East Texas violent crimes Task Force. Q. what office are you assigned to? A. Q. Tyler, Texas. special Agent Murphy, would you tell us a 6 little bit for the record what the violent Crimes Task Force, what that is? 8 A. violent crimes Task Force is a group of State 9 and Federal agencies which unite to investigate violent 10 crimes which occur in the East Texas area. The FBI's 11 involvement in that is predicated on a Federal nexus, 1 absent that, we are not involved. 1 Q. what kinds of things do you do as a member of 1 this violent crimes task force? 1 A. I interview people, I do evidence collection, I 16 analyze information and I provide testimony. 1 Q. were you involved, specifically, in two cases 18 in smith county, in the case of the state versus Justin 19 Fuller and the State versus Edward Ates? 0 A. I was involved in the in the former but not 1 the later until I met Mr. snow. Q. where did you meet Mr. snow? A. I met Mr. Snow at the Smith county Ja i 1. Q. And you're referring to the Defendant Kenneth snow seated across counsel table from me?

20 0 1 A. I am. Q. could you tell the court a little bit about the circumstances of how you met Mr. snow? A. I received word that Mr. snow had information on the Justin Fuller matter in which I had an active task 6 force investigative interest, and I went over to interview him on that matter at which time he presented 8 information that he also had on the Edward Ates pending 9 matter. 10 Q. I just want to back up just a minute. The 11 Justin Fuller case A. Q. A. Q. Yes. that was a capital murder? It was. And, in fact, that defendant was convicted and 16 received the death penalty in this court. 1 A. He did. 18 Q. You went to talk to Mr. snow in regard to that 19 0 offense? A. Yes. 1 Q. And what was the nature of the investigation that you needed to talk to Mr. snow about? A. Mr. snow had been contacted by the defendant in that matter, the defendant's request of Mr. snow was to provide false testimony that another a co-defendant

21 1 1 had, in fact, been the triggerman and not Mr. Fuller. Q. And did he, in fact, write a letter he being the defendant Justin Fuller -- write a letter to Mr. Snow outlining that? A. Yes. 6 Q. And did Mr. snow tell you about any willingness to testify or provide you information in that case? 8 A. He did Q. A. what did he tell you? He was willing and able to provide information 11 and testimony in that matter. 1 Q. Did he ever discuss the risk to you to himself 1 1 being a defendant in a criminal case and being in the smith county Jail, and providing such information? 1 A. He didn't have to discuss that risk. I was 16 well aware of it. 1 Q. okay. And are you aware of the risk of inmates both in county jails as well as the difference in penitentiary risk to people that provide information to the FBI or any law enforcement agency? 1 A. The risk is high. Q. In this particular case, did Mr. snow provide you information in the other case you were talking about, the Edward Ates murder case? A. Yes, he did.

22 \..,,' Q. was that at the same time or a subsequent time to the information provided on Justin Fuller? A. That was approximately the same time. I had a number of contacts with him fairly close in time. Q. How many contacts would you say you had with Mr. snow? A. Two or three. Q. was he cooperative in each one of those meetings? A. Yes. Q. And provided information in each meeting you had with Mr. snow? A. Yes, he did. Q. what did he provide in the way of information in the Edward Ates case? A. In the Edward Ates case, he similarly provided information that Ates had asked him, Mr. snow, to testify for Ates that another individual had killed the victim who Ates was charged with killing. Q. okay. so not exactly -- Mr. Ates wasn't trying to set up an alibi, he was actually trying to set up someone else as the suspect? A. Yes. Q. And did he provide any written documentation I say he -- did Mr. snow provide any written

23 1 documentation to you about Mr. Ates' plan? A. Yes. He told me that he told Mr. -- Mr. snow told me that he told Mr. Ates that he was confused as to exactly what Mr. Ates wanted him to talk to the Court and the jury about in his case, and that Mr. snow asked Mr. 6 Ates to write it down and Mr. Ates did, and he provided that document to -- to us. 8 Q. Do you know if Mr. snow testified in the Edward 9 Ates' trial? A. Q. A. Q. Yes, he did. Testify for the state in that case? Yes, he did. Do you have an opinion as to whether he was 1 instrumental in the testimony that -- well, it resulted 1 in conviction, I believe, of Edward Ates for the offense 16 of murder, did it not? 1 18 A. Q. Yes. Do you have an opinion as to whether he was 19 0 instrumental in that evidence that was produced in the Ates case? 1 A. In my opinion, he was a key witness. Q. Talking about the risk involved with somebody that provides information to a law enforcement agency, is there a difference in the level of violence, say, in a county jail as opposed to a penitentiary?

24 "-.../ A. I suppose there is a difference in the level of violence; however, it's -- it's minimal. Inmates seem to have a way of communicating between the county and the Texas Department of criminal Justice with high fidelity. Q. okay. so, if someone gives information while they're in the county jail, that kind of follows them to the penitentiary, the information seems to get to the penitentiary as well? A. Almost inevitably. Q. Are there prison gangs that are more well organized than gangs, say, in the county jail? A. Yes. They certainly are. Q. Are you familiar with any cases of retribution against people that provide information? A. Yes, I am. Q. By prison guards? A. Yes. Q. By other inmates as well? A. Yes. Q. And is that what you base the risk of being high for someone that provides such information? A. Yes, sir. MR. MCAFEE: Pass the witness. MR. BAADE: I don't have any questions. THE COURT: can this witness be excused?

25 1 MR. MCAFEE: Please. THE COURT: I know you've been here all morning. Thank you very much. THE WITNESS: You're welcome. (Witness excused.) 6 MR. MCAFEE: State rests. THE COURT: Anything as far as punishment 8 evidence here? 9 MR. BAADE: Yes, Your Honor. we call 10. Kenneth snow.. 11 THE COURT: Mr. snow. 1 Before you have a seat, Mr. snow, I need 1 to go over a couple of things with you. You understand 1 you've already taken an oath here, you are under no 1 obligation to testify whatsoever. Do you understand 16 that? 1 THE DEFENDANT: Yes, ma'am. 18 THE COURT: You're going to be asked 19 questions up here on this witness stand by your attorney 0 first, then you can be cross-examined by the State's 1 attorney about these two charges or about anything else within the Rules of Evidence, subject to rulings regarding admissibility of that testimony. THE DEFENDANT: Yes, ma'am. THE COURT: You have a Fifth Amendment

26 6 ' ~ 1 right not to testify. And have you been over this with him, Mr. Baade? MR. BAADE: I have. THE COURT: And as far as your taking the 6 stand, sitting in that chair, being questioned about these -- these events, at this time, are you waiving your 8 Fifth Amendment privilege and wishing to testify here in 9 this court? THE DEFENDANT: Yes, ma'am. THE COURT: okay. Thank you. Have a seat. And that is totally voluntary on your part? You have not been threatened into THE DEFENDANT: Oh, no waiver? THE COURT: waiving -- making that 1 THE DEFENDANT: No, ma'am. 18 THE COURT: okay. Thank you. 19 Go ahead. 0 KENNETH LEON SNOW, 1 having been first duly sworn, testified as follows: DIRECT EXAMINATION BY MR. BAADE: Q. Will you state your name for the record, please.

27 ""-' A. Kenneth Leon snow. THE COURT: You're going to need to move forward, Mr. snow, and raise that microphone up just a little bit. Q. (BY MR. BAADE) Mr. Snow, you just pled guilty to two robberies; is that correct? A. Yes, sir. Q. From the time you were arrested until today,. how long approximately has it been? A. months. Q. Have you been incarcerated that entire time? A. Yes, sir. Q. In the smith county Jail? A. Yes, s i r. Q. You just heard the testimony of Special Agent Murphy, correct? A. Yes, sir. Q. Do you agree with his testimony? A. Yes, sir. Q. You did cooperate in the Justin Fuller case? A. Yes, sir. Q. And you cooperated in the Edward Ates case? A. Yes, s i r. Q. And that was all -- that cooperation occurred during the time you were being held in the smith county

28 Jail? A. Yes, sir. Q. would you describe to the court -- well, let me ask you this: Did you receive any retaliation from other inmates at the Smith county Jail as a result of cooperation with the state of Texas? A. Yes, sir. Q. would you describe to the court what type of retaliation occurred against you in the smith County Jail? A. Well, I -- I've had two or three (unintelligible) come -- THE COURT: You have to speak up, sir. A. Two or three different incidents where one - two inmates had pulled shanks on me when I Q (By MR. BAADE) what i s a s hank? A. Like a homemade knife. I reported two incidents to Sergeant Irvin at the time. And, you know, I -- I've been -- I've been put in position where I - you know, I have to -- when I go to court, I'm put in a conference room by myself. Q. Is that a conference room you said? A. Q. Yeah, conference room. Put in there by yourself? A. Yeah. And I can't go to -- when I go to

29 9 1 roof -- where we go to the roof up there, I have to go with certain people or sometimes go by myself, you know. But Q. A. Q. A. Q. Has there been verbal threats made against you? Yes. Has your life been threatened? Yes. As a result of your cooperation with the State 9 in these two cases? 10 A. Yes Q. Have you been segregated from the other inmates for long periods of time in the Smith county Jail? A. Not at times, but I have. Q. It's been periodic? A. Yes. Q. If you were to go to the Texas Department of 1 corrections and serve time in the penitentiary, if that 18 was your sentence, do you feel your life would be in 19 danger? 0 A. Yes. 1 Q. what do you base that on? A. Q. I base that on -- Why do you believe that? A. Because by the time that I've been locked up months, every inmate that goes to the Department of to

30 '"--' TDC, they tell other people that I'm a FBI informant, this and things. And I have -- a few friends I do have, the ones that writes me, you know, they explain to me that, uh, that, um, if I would come to TDC, I -- can be I can be killed or injured or whatever. Q. Are you sorry for what you pled guilty to? A. Yes. Q. Had a devastating affect on those victims, didn't it? A. Yes, s i r. Q. Had a devastating affect on your life, didn't it? A. Yes, sir. Q. You had a boxing career; is that correct? A. Yes, sir. Q. And you were a champion on ESPN; is that correct? A. Yes, sir. Q. And on another network, USA; is that correct? A. Yes, sir. Q. You still have a chance to possibly resume your career as a boxer; is that correct? A. Yes, sir. Q. This months you've been in jail, has it - you're financially broke; is that true?

31 1 "---" A. Yes, sir. Q. Now you've written a letter here, correct, that you wanted submitted to the Judge; is that correct? A. Yes, sir. MR. BAADE: I'm going to hand this to counsel. May I submit this letter from Mr. Snow to the court as Defendant's Exhibit 1? THE COURT: would you mark it as 1, please. It will be admitted as 1. MR. BAADE: May I proceed? THE COURT: Go ahead. Q. (BY MR. BAADE) I want to give you the opportunity, Mr. Snow, to say to the court what you would like to say other than the letter. she's read the letter -- Her Honor has read the letter. Is there anything you want to say to the court with respect to - to any sentence -- before you -- before you do that - I'm sorry. withdraw the question. You understand we've gone over the range of punishment in these -- these crimes, correct? A. Yes, sir. Q. And they carry to 99 or Life, do you understand that? A. Yes, s i r. Q. In argument, we will be arguing to the court

32 1 to -- to impose a deferred adjudication; is that correct? A. Yes, sir. 6 8 Q. And you would hope and -- and argue to the court that that deferred adjudication would be considered as a result of your remorsefulness for these crimes? A. Q. Yes, s i r. And as a result of your cooperation with the 9 State of Texas; is that correct? 10 A. Yes, sir. 11 Q. Now we have no deal with the State of Texas; is 1 that correct? 1 A. Yes, sir. 1 Q. We've pled open and thrown ourselves, really, 1 at the mercy of the court; is that true? 16 A. Yes, sir. 1 Q. Now, if the court were to grant deferred adjudication, are you committing yourself to not commit anymore crimes, staying out of trouble, going forward from this day? 1 A. Yes, sir. Q. And would you follow any terms or conditions of probation that the court would impose upon you as a result of that deferral? A. Yes, s i r.

33 1 Q. Are you represented currently by any agents with respect to your boxing career? A. Yes, sir Q. A. Who is that? Joe Costello. Q. okay. Does he have -- he's been in the boxing game a long time; is that correct? A. Yes, sir. Q. And he's had an opportunity to arrange for you to resume your career in boxing? A. Yes, sir. 1 Q. Was that a very financially lucrative career 1 for you while you were boxing? 1 A. Yes, sir. 1 Q. You were able to support yourself? 16 A. Yes, s i r. 1 Q. And your family? 18 A. well, I have no Q. You don't have a family? 0 1 A. Q. No. I'm sorry. You supported yourself? A. Yes, sir. Q. A. But this -- this life of crime is over? Yes, s i r. Q. And you've been incarcerated months already?

34 '\,,,_..,I A. Yes, sir. Q. Now I want to give you that opportunity now. Do you want -- is there anything you want to say to the Judge other than what's in that letter. she's read the letter. A. Yes, sir. I would like to say if I'm granted the 10 years judificated (sic) probation, you know, I can't never say that I -- I haven't asked for a chance to get my life together. And I know if I violate the stipulations of that probation, I know that I can go back to -- to prison for life. So, you know, I know I have you know, by -- by being on probation, I have choices that I have to make out there, and I have to make the right choices out there, get my life together and stop being being a follower, and listen to people that really has really love me as -- for me and has invested time and and money and years into me getting myself together or -- or just helping me succeed. And um -- and it's one person I have and that's Mr. Joe Costello, you know. And I really owe it not only to him, I owe it to myself, and I owe it to show the Judge and the District Attorney and my lawyer and anybody else that I can be -- I can live out there in society, live by society's laws and do what -- do what I

35 1 have to do to stay out of jail by doing the right things. And I feel I know that. I don't feel, I know if I'm granted 10 years judificated (sic) probation, and if I violate it and don't live up to my agreement, I can't come back -- I can't be in smith county Jail or in 6 this courthouse mad at anybody. Only person I can be mad at is myself. You know, well, I never was granted the 8 opportunity to do this or that. If I'm granted the 9 opportunity, I got to do what's live with the 10 stipulations stated in the 10 year pro years 11 probation and stay out of trouble and stay mostly -- 1 really, just change people, place and things, situation. 1 I have to change all that. 1 I've been told that before and I done -- I 1 done things -- I've done things till I get my life 16 together and I'm just -- I'm just sick and tired of being 1 tired, you know. I realize by the months that I've 18 been in here, that if I keep doing I keep doing -- I 19 was doing the same things over at times and expecting 0 different results when I can't get the results unless I 1 change it, and I'm willing to change it. And if I don't, if I'm granted the 10 years probation, I know I know -- I know what -- I know what to expect. I can't be mad at nobody but myself. And if they take me back to prison for 99 years or 0 years, that's my stuff. All

36 6 '\,_ I'm "" asking for is -- I know -- the last opportunity to get my life together. Q. Now, you keep mentioning 10 years deferred adjudication. A. Yeah. NO' s i r. Again, there's no deals here, correct? Q. All right. And you mention that, but we've talked about that being maximum deferred adjudication? A. Yes, sir. Q. Now, you understand if you did something wrong and -- if the Judge granted you a deferred adjudication and you did anything wrong, didn't follow the terms and conditions of probation, that the Judge would have a - the full range of punishment for these offenses within which to sentence you should she find you guilty or find a violation true, do you understand that? Honor. BY MR. A. Yes, sir. MCAFEE: MR. BAADE: I'll pass the witness, Your MR. MCAFEE: Brief cross, Judge? THE COURT: Yes. CROSS-EXAMINATION Q. Now, the information that you provided to Dennis Murphy and the FBI and the District Attorney's office in these other two cases --

37 1 A. Yes, sir. Q. -- Mr. Baade asked you about threats and threats of violence to you since you've been in the county jail. A. Yes, sir. 6 Q. And that's occurred since you gave that information to him? 8 A. Yes, sir Q. A. But you were in prison before, weren't you? Yes, sir. 11 Q. And you knew about the kind of threats and 1 risks that occurred to somebody that gave information \..,_/ 1 when you were in prison, didn't you? 1 A. Not really, sir. 1 Q. okay. But you knew there was a risk to you 16 before you gave this information, didn't you? 1 A. Yes, sir. 18 Q. And you gave it anyway? 19 0 A. Q. Yes, sir. And you knew you didn't have a deal with the 1 District Attorney's office for this information, didn't you? A. Q. Yes, sir. And you went ahead and gave the information anyway?

38 A. Yes, s i r. Q. In fact, got up on the stand and testified in the Edward Ates trial knowing these risks as well? A. Yes, sir. Q. I want to talk to you a little bit about your criminal history here because your counsel has been over this Presentence Investigation -- that's that document I'm holding up here -- hasn't he? A. Yes, sir. 10 Q. And there are an awful lot of crimes listed on 11 these two pages, aren't there? 1 A. Yes, sir. 1 Q..And I notice more than half of them occurred 1 within a one-month period back in 198? 1 A. Yes, sir. 16 Q. six of these offenses occurred within that one 1 month period; is that right? 18 A. Yes, s i r. 19 Q. And you went to prison for those offenses, 0 didn't you? 1 A. Yes, sir. Q. However, I notice that none of the offenses that you've gone to prison on or been charged with until these two offenses involved any violence; is that fair? A. Yes, sir.

39 9.'-"' Q. All of those were forgeries or thefts? A. Yes, sir. Q. That these two cases that you pled guilty to before the court are the first two that involved any type of assault or any type of injury or threat to someone else A. Yes, sir. Q. -- is that accurate? A. Yes, sir. Q. Now, counsel asked you about your boxing career, and you said that was financially lucrative. That made money for you, didn't it? A. Yes, sir. Q. okay. And you have an agent now, Mr. Costello, I believe the person seated out here on the second row in the courtroom; is that right? A. Yes, sir. Q. would it be fair to say that it was also a lucrative business for whoever represents you or whoever manages you, they make money as well, don't they? A. Yes, sir. Q. so, there's kind of a financial reason for you to stay out of trouble as well as them to help you keep out of trouble; would that be fair? A. Yes, sir.

40 0 1 Q. Because as long as he keeps you out of trouble, he makes money if you fight; is that fair? A. Yes, sir. Q. okay. why are you going to be able to stay out 6 of trouble now when you didn't stay out of trouble before? what are you going to do to keep from getting in 8 9 trouble again? A. what I'm going to do this time is really just change -- change myself, you know, and -- and do the 10 right things. You know, first one I got, when I -- first 11 things was happening, I was just, you know, I was just 1 like, well, maybe I'm just having bad luck or something 1 like that. well, I know there's no bad luck or nothing, 1 it's me. And I have to really work on myself. And I 1 said, well, I'll work on myself, really get my life 16 together. 1 You know, this -- this is my -- this will 18 be -- this is my last time to make anything and do 19 anything to get my life together. This is it. You know, 0 it ain't no coming it ain't no coming back. This is 1 it. This is the last shot. This is it. You know, and that's the choice that I rather I rather live a productive life in society than be locked up for the rest of my life. I'd rather do that. Q. You talk to Mr. Costello about helping you do

41 1 1 those things that would keep you on the right track? A. Q. Yes, sir. Has he agreed to do that? Is he interested in helping you stay on the right track? A. Yes, s i r. 6 MR. MCAFEE: Pass the witness. MR. BAADE: I have no further questions. 8 THE COURT: Okay. Thank you, Mr. Snow. 9 Just have a seat, pl ease. 10 MR. BAADE: Your Honor, may I call 11 Mr. Costello very briefly? 1 THE COURT: Yes. If you'll raise your 1 right hand. 1 (Witness sworn by the court.) 1 THE WITNESS: I do. 16 THE COURT: Thank you. Have a seat. 1 Go ahead. 18 JOE COSTELLO, 19 having been first duly sworn, testified as follows: 0 DIRECT EXAMINATION 1 BY MR. BAADE: Q. please. A. Q. would you state your name for the record, Joe Costello. And, Mr. Costello, do you know Kenneth snow?

42 1 A. Q. A. Q. Yes, s i r. Is he seated here in the courtroom? Yes, he is. would you describe for the court what your -- type of business you're in? 6 A. I'm a general contractor by profession, but 8 I've also been a boxing manager and trainer for 1, 0 years. 9 Q. okay. Here in Tyler? 10 A. Yes. 11 Q. And how many boxers have you managed over that 1 1 or 0 years would you say? ~ 1 A. A hundred probably. 1 Q. okay. so, it's a vibrant business for you. 1 would it be a fair characterization that's something 16 you're really involved in? 1 A. Yes, it is. 18 Q. Do you have a gym here in town? 19 A. Yes, I do. 0 Q. okay. what's the name of your gym? 1 A. Q. Joey's Gym. Through that gym, did you have an opportunity to meet Kenneth Snow? A. Yes. Q. And when did you meet Kenneth Snow?

43 ~ A. In '8, 198. Q. You've known him for some time? A. Yes, I have. Q. Did you work reasonably close with him during the years here from '8 since you've known him? A. Yes, I have. Q. okay. How old was Kenneth when you first met him, roughly? A.. Q. And did you see -- A. or younger. Q. Did you see him -- a promising career with Kenneth? A. Oh, yes. Q. And THE COURT: You'll need to speak up, both of you, a little bit. MR. BAADE: I'm sorry. Q. (BY MR. BAADE) He enjoyed some success as a result of his skills in boxing? A. Yes, he's very talented. And should have been a world champion. Q. Now, you're familiar with the troubles that he's in here and why we're here in court; is that correct?

44 1 A. Yes, I am. Q. And you understand that -- that when I argue for sentencing, that I'm going to argue for Mr. snow to receive a deferred adjudication, you understand that? A. Yes, sir, I do. 6 Q. All right. I want to talk to you just a little 8 9 bit about -- if the Judge should grant that, what -- are you willing to take steps in order to help Mr. snow that he's just represented in his testimony? 10 A. Yes, I am. 11 Q. okay. what kind of steps will you take to help 1 him? 1 A. well, I have a -- housing available for him. I 1 also can employ him and can also train him or see that 1 he's trained at the gym, and then I can also do the 16 match-making for him and take care of his boxing 1 business. 18 Q. when you say "employ him," would that be beyond 19 his boxing? 0 A. Yes. 1 Q. so he would actually have a job other than boxing that he could do for you? A. Yes, with my construction company. Q. And you could provide him with a place to live; is that correct?

45 1 A. That's correct. Q. okay. And do you see him at this age and the fact that he's been in jail for months still having an 6 opportunity to pursue that boxing career? A. If he's serious and will work hard, he has an excellent still has an excellent reputation. THE COURT: I can't hear you, sir. 8 what what did you say? 9 A. If he's serious and will -- and will apply 10 himself and will follow instructions, he still has an 11 excellent record that's -- in boxing, he still has a 1 record, so it would be a matter of him training and 1 getting a couple of preliminary fights and he'll be right 1 back in the world ratings. 1 Q. (BY MR. BAADE) okay. Have you ever known 16 Kenneth to be violent with anyone other than when he's in 1 boxing? I'm talking about outside the ring. 18 A. No, never have. 19 Q. He's a pretty cooperative individual, isn't he? 0 A. Yes, he is. 1 Q. Do you have an opinion as to whether or not he would be able to turn his life around after this incident and -- should the Judge grant deferred adjudication? Do you think he would be able to do that? A. There's no doubt that he could do it if he will

46 6 1 do it. And under the circumstances, him knowing this is his last opportunity, I think he'd be very foolish not to take opportunity of it. MR. BAADE: I'll pass the witness. MR. MCAFEE: I don't have any questions. 6 Thank you, Mr. costel 1 o. THE COURT: Thank you, Mr. Costello. Just 8 have a seat, please. 9 MR. BAADE: Defense would rest, Your 10 Honor. 11 MR. MCAFEE: State closes. 1 THE COURT: okay. As far as argument here 1 from the State. 1 MR. MCAFEE: Nothing from the State, 1 Judge. 16 MR. BAADE: Your Honor, on behalf of 1 Mr. snow we are, as I've pointed out in the testimony, 18 requesting that the court impose deferred adjudication on 19 Mr. snow. 0 THE COURT: His eligibility for that, 1 also, could you address that? MR. BAADE: I believe he is eligible for deferred adjudication as a result of these convictions. I mean, it's discretionary, I think, with the court. THE COURT: okay.

47 1 MR. BAADE: I -- I know he has no -- we have no deals, he has -- has been forthright about that. He's come forward on behalf of the State of Texas and put himself in danger in the two cases that Mr. McAfee went over in the testimony with special Agent Murphy. He did 6 that willingly, voluntarily reported that information to the state of Texas. They didn't know about it before he 8 reported it. And, quite frankly, Your Honor, I didn't 9 know about it before he reported it to the State of 10 Texas. He did it without consulting his lawyer. which 11 speaks something about the character of Mr. snow, I 1 think, that he is truly trying to do the right thing in 1 providing that information and putting himself at risk. 1 Additionally,.he has some qualities as 1 testified to that would -- that he can develop out in 16 society, and all be it it's boxing, he's still very 1 talented. It's a legal sport as long as he confines it 18 to that, then that's, I think, productive. He 19 understands, too, Your Honor, the nature of the problem 0 should he violate probation. I know -- don't know what 1 would happen to him as far as the sentence, but I know the range and he knows the range, and it's -- it's a lot. And the minimum would be years. And Mr. snow just really wants another opportunity to turn his life around. He has stayed

48 8 '"-../ incarcerated for months. Quite frankly, Your Honor, it's my contention that should he go to the penitentiary, he will not live in the penitentiary, he will die in the penitentiary as a result of cooperation with the State of Texas. Mr. Ates is already in the penitentiary. Mr. Fuller is in the penitentiary. And these people - his life has been threatened. He entered that risk zone voluntarily. I think as a result of that cooperation, as a result of his willingness to turn his life around, with the support system that he would have in place through Mr. Costello, and a job, a place to live, understanding the seriousness of a violation that deferred adjudication, although extraordinary, not normally granted in a situation like this by the court, is an appropriate punishment at this time. And given his cooperation, given his willingness to go forward and not engage in criminal activity. And given the fact that he doesn't have a history of violence in this prior convictions. And I would -- we'd ask the court impose some deferred adjudication for a number of years that it deems appropriate. THE COURT: Anything else from the state? MR. MCAFEE: May I response -- respond to the court's question on eligibility for deferred

49 9 1 adjudication? The state has nothing that would show a criminal history further than what is revealed in the Presentence Investigation. In fact, the Presentence Investigation is a little more thorough and complete than the information that I had in my file. 6 None of those convictions are -- there shows no arrests, charges, convictions or indictments for 8 any of the offenses under 1.11 of the Penal code, of the Penal code, or.01 which would prohibit a 10 deferred adjudication. Also, there is no offenses, no 11 arrests, charges, indictments for convictions for 1 anything under Health and safety code 81.1 of the._.,,- 1 Penal code which is possession of drugs in a protected 1 area. There are no charges like that which, again, would 1 prevent deferred adjudication if this were to be one of 16 those offenses for which he was charged, for which it is 1 not. Nor is there anything under.1 1B that would 18 prohibit the deferred adjudication. None of the offenses 19 under that section. 0 THE COURT: Thank you. one other matter 1 that we're going to have to take up, if you could come to the bench, please, with Mr. snow. Mr. snow, the Presentence Investigation has been completed. It's been in the file for quite some time, since the end of September.

50 0 1 Have you had a chance to go over that with your client? MR. BAADE: I believe I have. This has 6 8 been a little time. THE COURT: MR. BAADE: THE COURT: deletions -- sure. I think we went over it. Any additions, corrections or 9 MR. BAADE: No, Your Honor. 10 THE COURT: to the Presentence 11 Investigation? Anything from the State? 1 MR. MCAFEE: Nothing from the State. 1 THE COURT: The number of questions that I 1 had you've addressed to some extent and the criminal 1 history is here. 16 I want to mention, however, there seems to 1 be a blue warrant out there or white warrant issued while 18 he was in custody. I don't know, there seems to be a 19 parole problem here. 0 You need to understand, Mr. snow, that 1 these proceedings can be used as far as any proceedings against you in a parole matter. Do you understand that? Yes? Is your answer yes? THE DEFENDANT: Yes, ma'am. THE COURT: And I don't know what the

51 1 1 status is. Do either of the parties know what the status of that parole hearing is? MR. BAADE: Go ahead. MR. MCAFEE: I don't. MR. BAADE: He has not had that parole 6 hearing yet. He has had an interview with his parole officer. I believe the parole officer is going to -- 8 correct me if I'm wrong -- recommend that that blue 9 warrant be 1 i fted. 10 THE COURT: I see. 11 MR. BAADE: Is that correct? 1 THE DEFENDANT: Yes. 1 MR. BAADE: who is your parole officer? 1 THE COURT: usually, they wait for our 1 proceedings to finish before MR. BAADE: That's what they're doing in 1 this case. But he would go ahead. 18 THE DEFENDANT: I seen him Tuesday, and he 19 came over and talked to me and he said he was going to 0 come back today -- before Friday and talk to me. And he 1 said -- he asked if I was granted anything, or after -- he was going to work out when he wanted me to have parole hearing. MR. BAADE: After these proceedings? THE DEFENDANT: After these proceedings.

52 '"'-" 1 where he said he would vote for me to go -- I mean, be released, but it was condition that he like MR. BAADE: He would impose conditions on you if you got rel eased on parole? THE DEFENDANT: Right. 6 THE COURT: okay. But you understand we don't have any control over what they do? 8 THE DEFENDANT: Yes, ma'am. 9 THE COURT: They make their own 10 independent decisions. 11 THE DEFENDANT: Yes, ma'am. 1 THE COURT: And they can come over here, 1 they can ask Ms. McFadden for every single word that's 1 happened here this morning and use that against you in 1 another hearing. 16 THE DEFENDANT: I know. 1 THE COURT: okay. The Presentence 18 Investigation -- and certainly I'm going to take into 19 consideration everything that is said here in this 0 Presentence Investigation and the prior hearing where 1 Mr. col e was here. You remember what Mr. Cole said. I mean, Mr. Cole was a victim of this offense. He -- I believe he termed you to be a predator. He makes a -- he made some very strong statements.

53 1 I think that Mr. Martinez has not been found; is that correct? He is missing. MR. MCAFEE: That's correct, Judge. THE COURT: And there have been many efforts to find him. we don't have any kind of 6 information from him. victim notification proceedings, victim input into these proceedings is important. 8 Decisions that I make and any judge makes in this 9 courthouse is based upon everything, your record, your 10 willingness to comply with the court's orders. 11 And that was another thing I wanted to 1 discuss with you, you have not done that in the past. 1 Why is this going to be different than the other times? 1 You were probated back in '8, revoked, revoked, revoked. 1 That's what this record indicates, that you -- you've 16 been given a chance and you didn't do it. And I listened 1 very carefully to what you were saying to me as to why it 18 didn't happen those other times, that you had you had 19 no support system or you had other influences in your 0 life that were bad. Now, how do you change that? 1 THE DEFENDANT: You asking me that THE COURT: This time how do you change that? THE DEFENDANT: Miss DeVasto, you know, I change that by just making choices -- making the right