REPORTER'S RECORD
TRIAL COURT CAUSE NO. 2011-CR-3682
STATE OF TEXAS VS. CALVIN LEE DAY
IN THE DISTRICT COURT
379TH JUDICIAL DISTRICT
BEXAR COUNTY, TEXAS
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TRIAL ON THE MERITS
JUNE 11, 2013
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On the 11th day of June, 2013 the following
proceedings came on to be heard in the above-entitled and
numbered cause before the Honorable
Ron Rangel, Judge
presiding, held in San Antonio, Texas:
Proceedings reported by machine shorthand.
PAGE 10
"And we would
represent to the Court that we believe that Ms. Newcomb is
being manipulated by Mr. Del Cueto and Mr.
Brown and
Mr. Norton, that this constitutes tampering with a witness."
PAGE 24
"MR. HERBERG: If I may, Your Honor, let me make
it clear. This matter, of course, is still under
investigation."
At the Motion for a New trial
Hearing on 08/26/2014 it was learned that the above statements made by cliff Herberg were apparently not true as follows:
EXCERPTS FROM STATE OF TEXAS VS CALVIN DAY
HEARING ON MOTION FOR NEW TRIAL
AUGUST
26, 2013 (Exhibit I)
Page 5, lines 1 thru 3 & 10 thru 14
“THE COURT: ………..On the request of the Court,
the State provided
all of the documents in regards to this file
to the Court for an in camera inspection…..”
“THE COURT: And so the Court reviewed all of
those
documents, reviewed the State's file and was confident
that there was no investigation that was going on during the
course of the trial towards the defense attorneys or
Ms. Newcomb's attorney.”
Page 6, lines 8-14
“THE COURT: Yes. And I reviewed several
different -- several prosecutors' notes of what was going on.
………………the Court's confident that there was no investigation
that was going on, no ongoing, no active investigation that was
going on at any time.”
Page 6 lines 18-25
“MR. MCCRUM:……………….. Mr. Herberg
falsely represented that there was an investigation……………
Mr. Herberg's statement
to the Court on June 11th was:
"If I may, Your Honor, let me make it clear.
This matter, of course, is still under investigation," which is
a pretty affirmative statement. I don't think it gets more
affirmative.”
Page 7, lines 1-5
MR. MCCRUM: “And if we read it in context,
he's talking about
the matter of witness tampering involving Mr. Del Cueto,
Mr. Norton, and Mr. Brown
……..that was a
false representation to the Court”
Page 16, Lines 1-12, & 17-21
(Q = MICHAEL MCCRUM, A = JAY NORTON)
“Q ………Do you recall Mr. Herberg indicating that
his
office had initiated an investigation?
A Yes, sir.
Q Do you recall what type of investigation Mr. Herberg
indicated he had initiated or his office had?
A Felony
witness tampering.
Q All right. And do you recall whether or not you were
identified as a target of that investigation?
A Yes, sir, I was.
Q And what was your reaction
when you heard
Mr. Herberg's statement?
A My initial reaction was, he's crazy…………….
but he is capable of doing this for
all kinds
of reasons.
Q Capable of doing what, sir?
A Investigating Mr. Brown, Mr. Del Cueto and myself
and -- with the eye towards perhaps charging us.”
Page 22, lines 12-16
(Q = MICHAEL MCCRUM, A = JAY NORTON)
“Q …………..did you feel that it” (i.e., Herberg’s investigation threat) “would
have affected you in your representation of Dr. Day through the
remainder of the trial?
A Yes, I felt it would. In fact, I knew it would and
it did.”
Page 36, lines 7-13 (Q = MICHAEL MCCRUM, A = JAY NORTON)
“Q And when did the strategy change in your mind as to
whether or not to call Dr. Day?
A When Cliff Herberg walked
through the door just as
Mr. Rangel did at this moment (indicating).
Q And made the allegation that you were under
investigation.
A Yes, sir.”
Page 42, lines 11-13
(BY MR. MCCRUM) “………………what
now appears to be a false representation by Mr. Herberg to this
Court of an investigation.”
Page 43, lines 17-21 & page 44, lines 5-7
(Q = MICHAEL MCCRUM, A = JAY NORTON)
Q
(BY MR. MCCRUM) How did that play in your mind when
Mr. Herberg is standing on the record in front of the cameras,
representing to the Court that there is an active
investigation, a criminal
investigation, against you and
Mr. Brown?............
Q And as a result, sir, did that affect your strategy
and the remainder of the trial to the detriment of Dr. Day?
A
Yes, sir.
Page 63, lines 1-5
A (BY ALAN BROWN) ………“Cliff Herberg…..
I wouldn't think he
would just
walk in here and say a lie like that. That just
shocks me that he would do that, that anyone clothed in that
much power would stroll in here and make it up.”
Page 65, lines 11-12
A (BY ALAN BROWN)
……Andrew Del Cueto was gone, and so my opinion still is
the district attorney's office tricked him or lied to him.
Page 66, lines 4-16
(Q = MICHAEL MCCRUM, A = ALAN BROWN)
“Q (BY MR. MCCRUM) Mr. Brown, I want to be clear as to
how do you think it would
affect your trial strategy and what
has happened to you in the past that would affect how you think
about this, this being that you're being placed under
investigation.
A
Well, just a huge thing. I thought if we lost, they
would quit.
Q You thought if --
A We lost the case --
Q That they would --
A Quit the
investigation.
Q -- quit investigating?
A Yes.”
Page 69, lines 18-20 & lines 24-25 & page 70, lines 1-3
(Q = MICHAEL
MCCRUM, A = ALAN BROWN)
Q………… how did that affect your
judgment in terms of Mr. Herberg's investigation of you for
witness tampering?.....
Q
And how did that affect your representation of
Mr. Day for the balance of the trial?
A I mean, it affected the whole trial, the whole
balance. It affected me from that minute on. I never
did -- I
never had my heart in the trial.
Page 73, lines 11-14
A (By ALAN BROWN) “……Herberg…….I could not believe he
walked in this courtroom and said something like that, okay, if
it wasn't true. Because to me, that's a huge -- if he is an
officer of the court, walked in here and told –“
Page 73, lines 24-25 & page 74, line 1
A (By ALAN BROWN)
“….. Herberg……
…had tried…..
to -- he had conned me.”
Page 75, lines 14-19
& Page 76, lines 7-8, 21-23
& page 77, lines 3-5
(Q = MICHAEL
MCCRUM, A = ALAN BROWN)
“Q (BY MR. MCCRUM)
What about Mr.” (Jay) “Brandon's presence in
this situation? …………….
Q
Was he involved in this situation, sir?
A Yes, he was. Yes, he was.
………….he carried on a lie of
Mr. Herberg. As a matter of fact, I consider him a liar, too.
…………Mr. Brandon caused it, some of it. He participated in it by
coming down here with that bunch of bull. He came down here
and made me believe the investigation was real
–
…….he carried the theme forward that Mr. Herberg had started. He
did, okay? And I think Catherine Babbitt did it, too. Those
are the three that I think did it.”
Page 80, lines 15-16
(A = ALAN BROWN)
“…………We did not
try the case right after that”
(i.e.,
Herberg’s investigation threat) “happened.”
Page 81, lines 12-14
(A = ALAN BROWN)
“……..Herberg ……
was playing some strategy to get my eye off the ball, …… I'm
ashamed to say it worked, okay?”
Page 82, lines 3-10
(A = ALAN
BROWN)
“I couldn't believe the district attorney's office was
trying a case in which they thought that I had tampered with a
witness or that Jay Norton had or that anybody had.
To me,
stop the trial, stop everything, get it straightened out. I
could not believe. They're supposed to be in the interest of
justice. It just shocks me that they do that. I've never
seen -- I don't think I've seen a U.S. attorney or a DA's
office do that before.”
Page 87, Lines 13-14 & Lines 18-19
(Q = JAY BRANDON,
A = ALAN BROWN)
“Q (BY MR. BRANDON) Okay. So you don't know what your
professional responsibility is.”
…………..I did better than y'all did. I
didn't lie to people and con people, okay?”
Page 89, Lines 6-11
(A = ALAN BROWN directed at ADA JAY BRANDON)
“………what
y'all did in creating this
conflict, you messed up the trial, and that's what caused me
to -- that caused it and got it all off track, slowed it down
and messed it up and just -- you know,
that caused all the
trouble. All the trouble caused here was by coming in this
courtroom and targeting me.”
Page 91, line 18
(A
= ALAN BROWN directed at ADA JAY BRANDON)
“…y'all did it just to -- because you thought you were losing.”
Page 97, lines 2-14
(Q = MICHAEL
MCCRUM, A = ALAN BROWN)
“Q Why? What happens when you're told by Mr. Herberg in
his position that you're under criminal investigation?
A I mean, I think it's serious to a first assistant
district attorney telling you something like that in a
courtroom with the press listening and the judge listening.
That's a very serious allegation. I think it's actually per se
libelous.
It's probably against everything there is to tell me
a lie like that. And for an officer of the court to stroll in
here and say that to me and not be true? That's incredible to
me, okay?
Q Now --
A I mean, he shouldn't be first assistant, obviously,
okay? I feel sorry for the district attorney.”
Page 104, Lines 21-22
“THE COURT: All right. In the interest of
justice, the Court will grant the Defense motion for new trial.”