Facts of the Case

Williamson County District Attorney John Bradley's Closing Statements:

The following excerpt of Williamson County Prosecutor, Mr Bradley's closing statements was taken from the court proceedings given on July 19th 2002 in the District Court of Williamson County, Texas 368th Judicial District for trial court cause number: 01-1096-K368, Threet vs State of Texas, Trial of Merits volume 8 of 10.

Closing statement - Part 1


21 It was not a fight. How many times have you
22 heard Brandon Threet throughout this trial or his friendly
23 witnesses talk about a fight? Yet when Brandon finally
24 testified and was asked the question as to what "fight" really
25 is, even he couldn't lie about that. He had to admit that


1 this was not a fight. There was nothing fair about it. There
2 was no exchange of anything in a fair way.

3 This was an ambush. It was an ambush that
4 started far earlier than the bit of videotape that you saw.
5 It was an ambush that was not an accident. It was not
6 something we could not have predicted. It was not something
7 that we could not have seen coming earlier in the evening if
8 we'd been there. I certainly hope that you won't hear this
9 called a fight again.

10 I thought that perhaps the most telling question
11 asked by the defense of the defendant was first objected to by
12 me. I think the question was something like: Now, Brandon,
13 isn't it true that you didn't know the risk of what you were
14 doing? And I objected because that's leading. I explained
15 that leading means you're trying to put words into the mouth
16 of the defendant, help him give an answer that will be helpful
17 to his case.

18 And so when he rephrased the question so that it
19 was not leading, kind of pointless at that point, since
20 Brandon already knows pretty much what he's supposed to be
21 saying now, so what does Brandon say when he's asked, "Were
22 you aware of the risk?" "Uh, no." It sounded kind of
23 awkward, didn't it? It didn't sound like the kind of language
24 or phrasing that Brandon would naturally volunteer himself.
25 It sounded kind of forced.


1 Then on cross-examination I kind of followed up
2 on that. "Brandon, why did you think it was important that
3 you say that you didn't know the risk?" "I don't know. I
4 don't understand the question." "Well, Brandon, if you had
5 said to this jury that you did know what the risk was and you
6 did it anyway or perhaps that you knew that the result of what
7 you were going to do was going to kill that young man or at
8 least seriously hurt him, what is the consequence of that,
9 Brandon?" And he struggled. And then he finally realized
10 that he had to say what you-all were thinking anyway. "Well,
11 I guess that would show I had intent." He understood that.
12 He's had nine, ten months to think about what that means.

13 He had to sit through me picking the jury and
14 explaining every single of one of those concepts. He knows
15 what that means. He finished high school. He started
16 college. He can figure it out. He knows there is a very
17 serious difference between you realizing that he knew what he
18 was doing and this phony, "I didn't know the risk." Think
19 about that when Mr. Minton is trying to explain why that
20 answer should be believed.

21 You have three different theories to apply the
22 facts. The jury charge gives you the first one, that
23 knowingly causes the death of Terence McArdle. I think
24 perhaps this is the easiest theory because Terence has -- I
25 mean Brandon has admitted every single thing in this. He


1 admitted that he caused the death of Terence McArdle. He
2 admitted he did it with his hands and feet. And look at what
3 the word, "knowingly," is defined as. All it requires is that
4 the defendant was aware that his conduct is reasonably certain
5 to cause the result.

6 He admitted he was a football player. He
7 admitted he had had head injuries. He admitted he knew the
8 head was a fragile thing. He wanted to play around with that
9 and try to act dumb. But you know he knew it. And what he
10 wants to do is he wants to give you this picture because he
11 wants you to think that he didn't think the exact moment that

12 foot is in the air, "I know I am killing Terence," that you
13 shouldn't find him guilty. What a phony, phony, phony
14 approach.

15 He has to know before he does it. The law
16 doesn't say he has to be thinking about it when he's doing it.
17 That isn't what the law says. That would be an impossible
18 standard. That would require some sort of machine that peeks
19 in his mind what he was thinking, and I extract it and present
20 it to the jury. Nobody can do that.

21 The second theory is pretty easy too because he
22 actually has to intend something less than death. The second
23 theory is that he intends to cause serious bodily injury.
24 What did Terence (Brandon Threet) say he thought was going to happen?
25 "Oh, I thought he'd get a bloody nose or a concussion." A


1 concussion, really? What's a concussion? We all know what a
2 concussion is. It's an injury to the brain such that you're
3 unconscious. And sometimes people don't recover from
4 concussions. That's a very serious injury. He acknowledged
5 that he knew that that was something that could happen. But
6 what do you think he's intending as that foot is going there?

7 He admitted the rest of it. How many people
8 testified that this was an act clearly dangerous to human
9 life? He doesn't have to believe that. You don't have to
10 believe that he believes that's an act clearly dangerous to
11 human life. That's not something I have to prove. It
12 objectively has to be proved to be an act clearly dangerous to
13 human life. How many doctors testified to that?

14 And then the third theory, this one is, frankly,
15 even easier, knowingly caused serious bodily injury. Now, on
16 this one, he doesn't even have to specifically intend to cause
17 that concussion. He can just know it's going to be caused.
18 Well, we know he knows it. He's been in football games. He's
19 seen fights. He's seen these things. He knows what the head
20 can do and what can happen to it. So he knows before he even
21 starts this. He can quibble about whether he knew he was
22 going to kill him. I think he certainly did. But how can he
23 quibble that he knew he was going to cause serious bodily
24 injury? How can anyone anywhere suggest that that is not
25 proven here?


1 And it's certainly in the course of this
2 aggravated assault that he commits an act clearly dangerous to
3 human life, namely, a kick to the head and a kick to the face.
4 And, again, on this one, all I have to prove is that he was
5 aware that his conduct was reasonably certain to cause the
6 result, namely, serious bodily injury, such as a concussion.

7 Now, you do not have to believe all three
8 theories. All you have to do is believe one of them. And you
9 do not have to all twelve agree on the same theory. You can
10 each look at this and select for yourself which theory you're
11 most comfortable with. You may be comfortable with all three.
12 But as long as twelve of you get back there, look at this, and
13 say, "He committed a murder under theory one, two, or three,"
14 then you have come to a conclusion unanimously beyond a
15 reasonable doubt that the defendant is guilty of murder.
16 That's all you have to do.

17 Once you do that, you need to find that his hand
18 or foot was a deadly weapon. I don't think anybody is going
19 to contest that. We have a dead person, Terence McArdle, and
20 it was caused by the hand and foot of Brandon Threet.

21 What's Mr. Minton going to say? What's he
22 going to ask you to do? Well, he's going to say, "The
23 defendant needs to be convicted of something less serious. By
24 golly, this wasn't so serious. It's a terrible, terrible
25 tragedy. It was horrible. And, you know, kids will be kids."


1 I get angry every time I hear that. There were lots of kids
2 there that night. There were lots of young men and women that
3 did not go trying to hurt anyone.

4 Brandon Threet is the one who selected this
5 night to kill someone. But what they'll want you to do is
6 say, "Oh, you know, how can we know? You know, how can we
7 judge? It's just a moment, just 17 seconds." How many
8 seconds does it take to shoot someone? Not even one second.
9 How many people are in prison for shooting and killing someone
10 and forming the criminal intent to do it at the moment they
11 pulled that trigger? Brandon Threet took much longer than
12 that.

13 And all Mr. Minton is going to offer you to
14 support your idea of convicting him for some far less serious
15 offense, like manslaughter or criminally negligent homicide,
16 is you heard the defendant say, "I didn't know." But you know
17 what? You don't have to believe the defendant. You don't
18 have to accept his word over the mountain of evidence that
19 shows he knew. And perhaps the saddest part of this trial is
20 Brandon Threet's unwillingness to this day to accept
21 responsibility and admit what he did. He is still playing
22 games with that night.

23 You may remember that back while we were picking
24 the jury Mr. Minton compared criminal negligence and
25 manslaughter to running a red light. He used that as an


1 example. So if you are coming up to a red light and you see
2 that it's red but you don't think there's any cars coming and
3 so you decide, "Well, there's a risk that I could hit
4 somebody. But I'm going to consciously disregard it and run
5 through this intersection anyway," and as you're going through
6 the intersection you hit and kill someone, that would be
7 manslaughter. He didn't really mean to kill someone. And you
8 didn't see that car coming, but you knew that there was a risk
9 there. That's manslaughter.

10 Let's say you were in a hurry. You were running
11 through there, and you just didn't even see the red light.
12 The law says you should have been paying attention. You
13 should have known. So you run through that intersection, and
14 you kill someone. That's less serious because you didn't
15 know. You should have been aware of the risk, but you didn't.
16 So we find you guilty of criminally negligence homicide on
17 that one.

18 Mr. Minton is going to want to compare that to
19 what Brandon Threet did. Let's look at that. If Brandon
20 Threet is in a car and he's coming up to that intersection,
21 let's compare it to what he did in this case. Did he come up
22 there and say, "I don't think there's anybody in that
23 intersection. But, gosh, I'm going to run it anyway, even
24 though there's a risk"? How does that compare?

25 Brandon Threet saw someone laying on the ground


1 incapable of hurting him, and he made a decision to take three
2 steps and kick him in the head with the force of a thump that
3 you hear. Now, that's not manslaughter. That's not
4 criminally negligent homicide. That's not an accident.
5 Demand an explanation. See if you hear one. The defendant's
6 words, "Oh, Eric got upset, and I had to intervene." Eric
7 said he didn't care. He was trying to separate these people.
8 Brandon Threet wants to make Eric the bad guy.

9 How many times do we have to hear that Terence
10 was drunk? What is the purpose of that? What's the subtle
11 little thing going on there? Let's trash Terence. Brandon is
12 going to blame him to the day he dies. He's thinking, "That
13 little punk with his stupid goggles and being silly. What a
14 jerk." That's all it took for Brandon Threet to get mad and
15 kill him.

16 "I've never been in a fight. Let me say some
17 more self-serving things. I've never been in a fight. Oh,
18 yeah, yeah, yeah, yeah, yeah, yeah. I do now remember, now
19 that my lawyer tells me, that I cold-cocked Jerry Gardner in
20 the face merely because someone accidentally hit me. By the
21 way, I cold-cocked the wrong person. Oh, yeah, yeah, yeah.
22 Yeah, I do like to, you know, trade licks. That's kind of
23 cool," the point where we have to wonder whether he had some
24 kind of a fight club going.

25 We hear for the first time, "I thought Terence


1 was going to get up and attack me." Well, shame on him for
2 saying that. There's not a person in this courtroom that
3 believes that was true. And how he says, "Terence never went
4 to the floor in the house. I never pushed him down. He never
5 went to floor. No, no, he never went to the floor." You
6 heard it. Why is that guy here to make that up? He saw it.
7 It happened. Terence (Brandon Threet) knows that he was bothering --
8 Brandon knows that he was bothering Terence all night long.
9 He was getting it set up.

10 "No, no, no, no. I never think anything bad of
11 anyone. I'm a -- I'm a perfect human being. And I would
12 certainly never use the word 'chink' or 'gooch.'" Ah, but you
13 did. I'm not trying to suggest he's some flaming racist. I
14 don't know whether he is or he isn't. But I do know he's
15 going to shade all of his words to make himself look good.
16 And that means you don't believe him. You don't believe
17 anything he says.

18 Then he talks about how Terence never refused to
19 exchange punches. No. Terence wanted to do this. This is
20 great. It was going to be a fun thing. What did you finally
21 hear? Terence said no three times. I don't want to do that.
22 Terence had nine years of training in self-discipline that
23 taught him to be humble in that situation and to decline any
24 violence. I don't know why he went through with it, a lot of
25 peer pressure, and he had been drinking a little bit. But


1 Brandon took advantage of that to ambush Terence.

2 Then he has to say on the stand he didn't know
3 it would hurt Terence. You know, I can swallow a lot of
4 stuff, but I can't swallow that. You make Mr. Minton explain
5 to you why that has anything to do with common sense. After
6 he does, I'll talk to you some more.

Closing statement - Part 2

5 THE COURT: Mr. Bradley, you have forty-four and
6 a half minutes. Do you want the lights down?

7 MR. BRADLEY: Yes, sir.

8 We have seen some images that will stay with you
9 for the rest of your life. But the thing that will be even
10 greater than that that will stay with you for the rest of your
11 life is the decision that you make on whether or not Terence
12 McArdle was murdered or whether Brandon Threet gets to just be
13 a little guilty, kind of a minor guilty, a less serious
14 guilty.

15 And it's no accident that one of the last things
16 Brandon Threet said on the stand yesterday was that in
17 Williamson County they find out everything. Remember he was
18 talking about how he had seen lots of assaults that nobody had
19 gotten caught or messed with. I suppose that's true in Travis
20 County where he spent a lot of his time. But this crime was
21 committed in Williamson County. And Terence McArdle is here,
22 and I am representing, on behalf of the State of Texas, the
23 citizens of Williamson County who have a far different
24 standard for truth and justice than other jurisdictions. And
25 I don't apologize for it. I'll tell you that every one of you


1 are on the jury because you don't apologize for it. Each of
2 you agreed to follow the laws that are before you and to make
3 the hard decisions. And this one will stay with you for the
4 rest of your life.

5 Terence McArdle back in October was celebrating
6 a birthday with his parents, James and Chung, who sit here on
7 the first row waiting to see what justice will be. His
8 brother, Brendan, was there. And I'm grateful that they had
9 that opportunity. How many times has it happened that we
10 didn't have something what we can remember well on a person
11 who has died?

12 At that point, he had graduated from high school
13 successfully, and he had been accepted at the University of
14 Texas in Austin which, as it gets more and more competitive,
15 is not such an easy thing to do. That summer he got to spend
16 enjoying himself in Corpus Christi and down around South Padre
17 with his family. But he still had to get back and start
18 school so that he could begin to complete the education that
19 his parents were providing for him.
20 And it's amazing how well sometimes a picture
21 captures so much about a person. Brandon (Terence McArdle) certainly
22 enjoyed martial arts, as you can see from this Bruce Lee
23 poster. He had worked on it for years and was a second-degree
24 black belt. He was capable of defending himself and attacking
25 someone if he thought he needed to.


1 He liked music. I can't even begin to try to
2 describe what music it is that he liked or listened to. I
3 don't know who Green Day is. He liked the Beatles, which is
4 kind interesting that he's taken a previous generation's music
5 and incorporated it into his life. He was a considerate
6 person.

7 And what was supposed to happen that weekend was
8 he was supposed to come home and visit some family that was in
9 from out of town, sort of a reunion. But as the night went
10 on, James and Chung McArdle became concerned. They tried to
11 contact him. They knew that Brendan had contacted him on AOL
12 about 10:30 or 11:00. Then sometime shortly after that, I
13 guess, Terence went to this party. So at some time, at 2:30
14 in the morning, James McArdle gets a phone call. And that's
15 why you heard the testimony of Dr. Bedolla at Seton Northwest
16 Hospital. The most striking thing that he said was the
17 grayish-yellowish discoloration on Terence's skin and face.
18 From what he knew, Terence was dead. He had arrived dead at
19 Seton Northwest Hospital.

20 So what kind of feeling is that -- I don't know.
21 -- in the middle of the night to get a phone call and arrive
22 at a hospital and see that your son is dead and nobody
23 standing around giving you an explanation? And he eventually
24 does talk to Marie Puryear and gets the police involved.
25 James McArdle does. But no one had come forward at that


1 point. Brandon Threet hadn't called and told them what he had
2 done. Brandon Threet hadn't come to the hospital to help
3 explain what had happened so that perhaps some treatment could
4 be done. Brandon Threet had already run and hidden.

5 There was no neurologic or cardiac activity. He
6 was for all purposes dead. Dr. Bedolla did what he's supposed
7 to do, and he worked with a young heart. He got it started
8 again. Then he sent him off to Brackenridge for further
9 treatment. But he did notice that there was bruising on the
10 side of the face consistent with someone striking him.

11 But when he got to Brackenridge Hospital, Dr.
12 Dan Peterson was in no better position. And, you know,
13 doctors go through that medical school, and they see all kinds
14 of things. That's a neurosurgeon. He opens up people's
15 brains on a daily basis, and he looks at them. He was choking
16 up here. Having seen that videotape of how this happened and
17 having spent a week with this family and having to describe
18 that to you, a medical doctor was breaking down because he
19 knew that this was -- this is not -- I'm tired of hearing the
20 word "tragedy." Tragedies make sense. Tragedies we learn
21 from. This is a vicious ambush. That's what it was. Let's
22 call it that. And Dr. Peterson knew that's what it was.
23 Despite all of his medical training and experience, he could
24 see through that, and his emotions came forward. He couldn't
25 do anything. There was no treatment that he could try. He


1 exceeded to the request of the family and brought in an
2 acupuncturist. He considered some homeopathic medicine,
3 considered a second opinion. But the truth was that it was
4 just a matter of days before that young heart couldn't even
5 continue.

6 And you will never forget the words of James
7 McArdle as he describes they're having to give him CPR for the
8 second or third time. He's watched this. His explanation is,
9 "They were ripping my son apart to save his life. And I told
10 them to stop." It was time to stop. Now, someone is
11 responsible for every bit of that. And the person who was
12 responsible was still over hiding at his girlfriend's. He was
13 still hiding, wondering if he was going to get caught,
14 wondering if Williamson County was going to find him. And he
15 knew that we could, and he knew probably that we would. But
16 he had to put it off as long as possible.

17 Then you heard from Dr. Vladimir Parungao who's
18 the medical examiner. He had to actually look inside of that
19 brain to make sure that the cause of death was what we thought
20 it was. Nobody disagrees with that. He said that the brain
21 was swollen and blackened with blood. You know, he had to
22 take that young man's head and cut it across and across here
23 and open it up and look at him. And that family had to wait
24 for a funeral because Brandon Threet decided to ambush him and
25 kill him.

1 And all of that started at this boy's house,
2 Eric Stahl. I don't like Eric Stahl. I don't like him. I
3 don't like his family. I don't like his house. He came in
4 here arrogantly, got his little new suit on. And he's
5 probably having another party this weekend. But I can't touch
6 that. I'm not here to touch that.

7 What I needed Eric Stahl to do is explain to me
8 what happened in his house. And sometimes you swallow your
9 bitterness to let that get into evidence. What Eric Stahl did
10 is he set up one of his many little parties. And what Brandon
11 Threet did, he went to one of those many little parties. And,
12 unfortunately, Terence went that night too.

13 That's what killed him right there. That's what
14 we're supposed to call a tragedy. We're supposed to think
15 it's a tragedy when Brandon Threet decides to kill this man
16 because he's wearing goggles and being silly. And you saw the
17 videotape of that party. There's some pretty stupid people
18 there. The guy doing, "the Bulls, the Bulls," (sic) I'd slap
19 him too. That's not the one that Brandon Threet picked. They
20 want you to believe that this thing was a spontaneous thing
21 that happened in the blue. Oh, my goodness, what happened?
22 Boom, it's over. How could we know?

23 This thing did not happen suddenly. It started
24 in this living room. You heard three witnesses who described
25 the many incidents that happened. I think that there are at


1 least two incidents between Brandon Threet and Terence. Mr.
2 Minton wants to kind of fuzzy it up and refer to them as, oh,
3 somebody might have been confused. Those witnesses were not
4 confused. The lawyer might have been confused. The witnesses
5 were not.

6 Eric Stahl starts off by saying he notices that
7 Terence does a back flip, a successful back flip, I would want
8 to suggest, because he lands on his feet. I'm not sure that
9 any one of us in this courtroom could do that. For a
10 stumble-drunk idiot, he was making an amazing move.
11 Nonetheless, it sounds like he did bump that dresser. And
12 what was Eric's response? No big deal. Come on, guys.

13 What was Brandon's response? That's when he
14 started to target him. He didn't like him. He had seen him
15 with the goggles. He was obnoxious. Didn't like the way he
16 looked, just didn't like him is what the witness said. So he
17 got in his face. He called him a faggot. He already knew he
18 played soccer. He didn't think much of that. We can kind of
19 just play over that. Oh, that's just boys having fun. Most
20 of the time it is. For Brandon, this time it was not.

21 Now, there is another incident that happened
22 there. He physically takes those goggles on a separate
23 incident away from Terence. And then he shoves him down. Why
24 Mr. Minton thinks that's unclear, I don't know. He's telling
25 you all the great clarity in Brandon's statement.


1 And what does the statement say? We'll find
2 that in a minute. Brandon actually said that he pushed him.
3 What he didn't want to say was that he pushed him down. But
4 you certainly heard John Stroder testify to that. No doubt in
5 his mind. He repeated it several times, no matter how many
6 times Mr. Minton asked it different ways to try to get a
7 different answer. That's a second incident. That's occurring
8 over time. And he's still targeting the same person.

9 How do we know this happened so many times over
10 the night? First he says he thinks Terence is a girl, soccer.
11 That's in his written statement. He calls Terence a faggot.
12 You heard a witness testify to that. He yells at Terence for
13 doing a back flip. You heard people testify to that. He
14 pushed Terence to the ground. Now Brandon wants to play like
15 he doesn't remember that. It's interesting that he can
16 remember it when he gives a written statement. But nine
17 months later when he's facing trial for murder, he can't
18 remember it. Why does he not want to remember it? Because it
19 sets up what he does later.

20 He does take the goggles away from Terence. His
21 statement says that. A witness sees it. But on the witness
22 stand he doesn't want to say that. He doesn't want to admit
23 that. He can't remember that. I thought Mr. Minton said he
24 didn't say anything different on the stand than he told Pete
25 Hughey. He said lots different.


1 Remember Brandon's story is they just sort of
2 agreed to trade punches. And I asked him. I tried to do this
3 as clearly as I could so you would remember it now. "Didn't
4 Terence say he didn't want to do that? Didn't Terence say no?
5 Didn't Terence turn you down?" No. No. No. No. No. No.
6 No. No. No. "Now, are you saying you don't remember, or it
7 didn't happen?" "It did not happen." Why is John Stroder
8 going to make that up? He saw it. He repeated it here in the
9 courtroom. Three times Terence said, "No, I don't want to
10 exchange punches." And Brandon kept at him. This is after
11 he's called him a faggot for having a flip. It's after he's
12 pushed him to the ground and grabbed the goggles away from
13 him. So this is a third incident where he is trying to goad
14 Terence into the ambush. And you can hear it. How do you
15 think Terence felt? Sometimes people say things, and they
16 don't realize it. What did he say to Pete Hughey on the phone
17 call?

18 (State's Exhibit No. 18, an audiotape, was
19 played in open court. The intelligible portions are as
20 follows:)

21 BRANDON THREET: It -- it was like through the
22 whole night.

23 (End of audiotape presentation)

24 MR. BRADLEY: Let's try that again.

25 (State's Exhibit No. 18, an audiotape, was


1 played in open court. The intelligible portions are as
2 follows:)

3 BRANDON THREET: It -- it was like through the
4 whole night.

5 It -- it was like through the whole night.
6 It -- it was like through the whole night.

7 (End of audiotape presentation)

8 MR. BRADLEY: "It was like through the whole
9 night. The little faggot was bothering me the whole night."
10 That's what he meant. That's what he was remembering. That's
11 what he thought. But he doesn't want to say it to you on the
12 witness stand. That's what happened. "All night long I had
13 to look at that kid doing stuff, looking funny, wearing the
14 goggles, being obnoxious, talking to my girlfriend. I lost
15 the game. I'm going to get him." How do you get someone at a
16 party? You move them to the backyard. That's always a swell
17 place.

18 Now, Brett Midgley magically appears in the
19 backyard at the magical moment with a video camera, a video
20 camera that Terence, (Brandon Threet) when talking to Pete Hughey when
21 Pete Hughey finally asked him, "Do you know about this thing
22 is videotaped?" then Brandon remembers and says, "Yeah, yeah,
23 yeah, I did know that." Did he volunteer that in the phone
24 call? Did he volunteer that in the written statement? No.
25 He again waited for someone to ask him. By golly, maybe he'll


1 cross his fingers, and that tape is gone by now. It was gone.
2 Fortunately we got it back.

3 How amazing that Brandon knew that what he had
4 done had been videotaped. He knew it was missing from the
5 house. And he knew the name of a person to tell Pete Hughey
6 to follow up and call and recover it from, which took about
7 half a day. He didn't volunteer any of that, did he?

8 What is Terence saying at the beginning of that?
9 "Don't break my ribs." Terence knows something is going to
10 happen here. Who knows better what's about to happen, Terence
11 or Brandon? Terence is loose. His arms are down. He's
12 smiling. Brandon is like this. You just look at that. Why
13 is he like that? Because he's mad. He's got a target, and
14 he's got a plan. He's about to ambush this kid.

15 And then you've got Brett Midgley saying, "Man,
16 we're videotaping this shit." Yeah. "This shit" means
17 something cool, something important. Something neat is about
18 to happen. How does he know that?

19 Do you think those kids come in here and tell
20 you everything? Do you think I could keep them on the stand
21 for a week and get all the truth? It's like pulling teeth.
22 How many of them came in here? They looked scared. How many
23 of them had to be reminded of what they said and what the
24 truth was? And how many of them even had the courage to say
25 they were scared of that guy? Do you think that doesn't


1 influence some of this?

2 What is the next thing -- before Brandon has
3 thrown a punch, what's the next thing Brett Midgley says?
4 Brandon is pissed. Was Brandon pissed before he started this?
5 Maybe they see that, and they knew it. How does Brett Midgley
6 in a flash know that Brandon is pissed before he has thrown a
7 punch? Because there's a plan. There is an ambush going on
8 here. And this is the first part of the ambush. God bless
9 Terence. He's still smiling. That's the last smile he had.

10 But he trusted Brandon up to that second.

11 Now, James Debrow, I didn't hear the defense
12 mention a word to try to explain anything about James Debrow's
13 testimony. That man was unimpeachable. He is an expert in
14 use of force. He has watched videotapes and has made judgment
15 calls against or for police officers about whether they
16 appropriately used force and what state of mind they had when
17 they were doing it. Did you hear a defensive expert
18 contradict a word that James Debrow said? No, you did not.
19 Did you see some other expert offer a different alternative?
20 You did not. They can call anybody they want to. They didn't
21 because there is not an expert in the world that would give a
22 different opinion than Sergeant James Debrow did.

23 It was a massive use of force here. It was done
24 deliberately. It was done with the knowledge that it would
25 inflict serious bodily injury and likely death. Not one word


1 did I hear of that in final argument. Mr. Minton is a good
2 man. He's a smart man. If he had an argument to make about
3 that, he would have made it.

4 Ralph Rubino gave you some other insight. How
5 often do we actually know the defensive capabilities of the
6 man murdered? Terence was perfectly capable of blocking a
7 punch if he knows it's coming. He thought that punch was
8 coming right here. It was an ambush.

9 Paul Cox helps you because you know that this
10 defendant especially -- he had a lot of training in football,
11 four years of football. He had a lot of footwork. He had a
12 lot of weightlifting. He had a lot of running. He had a lot
13 of hitting. He got a lot of instruction about why you wear
14 helmets. He knew about heads. He had more and better
15 knowledge than your average citizen about how you can hurt
16 someone and be hurt. And for Brandon to pretend with you on
17 the witness stand or to flat out lie that he thought he might
18 just get a bloody nose is shameful. And you reject it. You
19 go with your common sense.

20 You don't have to have someone come in here and
21 say that he had the right state of mind, that he knew what he
22 was doing. You can infer from the conduct that you see. The
23 law never requires us to have someone utter the proper words.
24 Otherwise, nobody would ever get convicted. Everybody would
25 come in like Brandon and in response to a leading question say


1 "I didn't know the risk." Oh, I'm sorry. Not guilty. You're
2 gone.

3 James Debrow, Ralph Rubino, and Paul Cox also
4 help you with what I think was the most likely fatal blow, and
5 that's the kick to the head. It was preceded by him being
6 completely distracted and taken to the other side of the yard
7 by Choate. And then he turns around. He has to turn around
8 and make a decision. He has to pick a target. He has to take
9 three steps. And he has to deliver that kick directly to the
10 target. And he wants you to think, "Oh, I didn't know
11 anything about that."

12 What does he do next? Runs. He runs like a
13 coward. He leaves a man on the ground, suggesting that he had
14 no reason to go check on him because he was going to pop up in
15 a second. And he heads out that door, and he goes directly to
16 his car. Why? Because he knows he's in trouble. He knows
17 Williamson County will find him, and Williamson County will
18 deal with him. So he's got to get to a safe place.

19 The first person that comes at him is his
20 friend, the person who has been by his side, as Mr. Minton
21 says, for four years. And what's the first words out of her
22 mouth? She didn't see it. How much could she have learned
23 about it in that little bit of time? Somebody just told her
24 something. I don't know what it was. But what is her
25 conclusion immediately? "I don't want to be around people


1 like you." She knew what he had done. She knew what he was
2 capable of. And she knew what he knew he was doing. Why
3 would she get so upset over something that was a spontaneous
4 accident that she didn't even know the details about? Why
5 would she say, "I'm broken up with you forever"? Huh?
6 Because it was an ambush, and even Kate won't put up with an
7 ambush.

8 And then he gets out to the front door. Now,
9 remember his written statement was nice and sweet. It was
10 about how I saw him loaded up in the SUV and taken to the
11 hospital, and I was worried and blah, blah, blah. Well, you
12 know, there were so many witnesses that can prove that to be a
13 lie. He went ahead and started off through his lawyer, Roy
14 Minton, letting you know that that part might not be accurate.
15 But we're going to go with, "I was confused." Because, yeah,
16 you can be confused and invent a memory that you saw a guy
17 being carried dead out of the house and put into an SUV.

18 Yeah, that's the kind of memory you just accidentally have and
19 then write it down so that you sound better.

20 What does he tell Blake Toungate? "I just broke
21 up with my girlfriend, and I've got to go," not "There is a
22 guy in there on the ground, and I may have killed him." That
23 wouldn't sound so good. He's already forgotten Terence.
24 Terence doesn't matter. It's all about Brandon. Let's take
25 care of Brandon and keep him safe and get him out of here so


1 Williamson County doesn't find him.

2 He goes to his car, his Tahoe. I guess it works
3 well enough to get him home despite all those needful repairs.
4 Now, later on he claims he saw Terence, but we know that that
5 didn't happen. And he knows that he can't use that at trial,
6 so he's got to just dump that little theory. But he wanted to
7 put that into his statement so that he could avoid an
8 allegation that he was a coward, and he left without finding
9 out what happened to Terence. You know now that's what
10 happened.

11 He hid for five hours. They want to make a big
12 deal. He was a big man. He didn't run to his mother and his
13 father. Excuse me. His mother is paying for his car, and
14 he's living with his father, paying for his school. You know,
15 when he bumps a door, his dad is all over him, makes him
16 rebuild that door. Don't you think Terence (Brandon Threet) has some

17 idea that if he goes back home and his dad finds out what he's
18 done what the consequences are going to be? He's not taking
19 responsibility. He's running from it.

20 He knew there was a videotape too, and he had to
21 stop and think about that. He needed some time. I don't know
22 what phone calls were made. Everybody out there had a damn
23 cell phone. Nobody made a 911 call, but they called each
24 other and let them know what's going on. And somehow that
25 videotape got out of that house and got to somebody else's


1 house. Fortunately we recovered it. But if more time had
2 gone by, who wonders what would happen?

3 He had time to think of a story. But I'll grant
4 you. There's not many stories you can come up with, with this
5 being on videotape it's a hard thing to do. So he gave a
6 written statement to start off with to Sergeant Hughey. And
7 he knew Terence. Look there. He says, "Terence, who played
8 soccer." I'm not saying he was his best friend or anything,
9 but he knew his name. He knew what he did. He had targeted
10 him at the party.

11 "I took the goggles off his head in the living
12 room and then pushed him." "Did you push him down? Did he
13 hit the ground?" "No, he did not." "Are you sure?" "No way.
14 I know he never went to the ground." Why would you want to
15 say that, Brandon? Would it sound like maybe you really were
16 mad at him, and you set him up for an ambush? "I then kicked
17 him one time in the head and then stepped back."

18 Wait a minute. Wait a minute. When Brandon is
19 over here testifying, he's got all sorts of memory problems.
20 He can't remember what he was thinking. He can't remember who
21 was where. He thought this was happening. "I can't remember.
22 I don't know. I was out of control." But his written
23 provides -- He hasn't seen the videotape. He hasn't watched
24 the videotape, I'm guessing, at this point. He says very
25 specifically, "I then kicked him one time in the head and then


1 stepped back." Pretty good memory, wrote it pretty well.

2 In the phone call, he talks pretty fluently,
3 doesn't? He doesn't stutter, doesn't stop, doesn't act like
4 he doesn't understand what happened. On this witness stand,
5 what does he do? "Oh, Lord, I can't remember anything."

6 And then this last one, "I calmed down and was
7 not upset at all." Sure. After he ambushed him, he felt
8 pretty good. All that anger went away. He's on the ground.
9 He's hurt. "I don't care how he feels. I don't care how
10 badly I hurt him. I feel much better now."

11 Then he gets to the police station. We take
12 some pictures. There were no marks on this boy, nothing. But
13 let's listen to parts of that videotape. What does he say?
14 He says, "I kicked him in the side of the head." Earlier in
15 the written, "I kicked him once in the head." He knows
16 exactly where on the head he kicked him.

17 (State's Exhibit No. 18, an audiotape, was
18 played in open court. The intelligible portions are as
19 follows:)

20 PETE HUGHEY: You kicked him?

21 BRANDON THREET: Yes, sir.

22 PETE HUGHEY: Where did you kick him at?

23 BRANDON THREET: I'm pretty sure I kicked him
24 like in his side of his head.

25 PETE HUGHEY: In the side of the head?



2 PETE HUGHEY: You kicked him?


4 PETE HUGHEY: Where did you kick him at?

5 BRANDON THREET: I'm pretty sure I kicked him
6 like in his side of his head.

7 PETE HUGHEY: In the side of the head?
8 (End of audio presentation)

9 MR. BRADLEY: Do you think he could remember
10 that on the stand? "No, I can't remember exactly where I
11 kicked him. No, I didn't target the head. No, I wouldn't do
12 that. I don't know where I was trying to kick at. I just
13 happened to kick him." That's a big fat lie. You know it
14 because he was able to repeat it and describe it right there.
15 Now that he's had nine months to think about it, now that he's
16 looked at the law a little bit, now that he's had to realize
17 those mental states, dadgum it, those are a problem, he's
18 altered his testimony.

19 He also described how hard he kicked him. He
20 could remember that then.

21 (State's Exhibit No. 18, an audiotape was played
22 in open court. The intelligible portions are as follows:)

23 PETE HUGHEY: And then he got up, and -- what
24 happened then?

25 BRANDON THREET: Then -- then I was getting the


1 person off the back. And then I kicked him.

2 PETE HUGHEY: Was he standing up when you kicked
3 him?

4 BRANDON THREET: No, sir. I'm pretty sure he
5 was getting up.

6 PETE HUGHEY: He was just getting up, and you
7 kicked him?


9 PETE HUGHEY: So was he up on his all-fours yet
10 or what?

11 BRANDON THREET: No, sir. He was like -- like,
12 you know, when you're doing a situp and you start sitting up,
13 he was like that --


15 BRANDON THREET: -- from what I remember.

16 PETE HUGHEY: So did you kick him pretty hard?

17 BRANDON THREET: Yeah, I imagine. I was -- I
18 was pretty angry.

19 (End of audiotape presentation)

20 MR. BRADLEY: My goodness. Was he able to talk
21 that fluently with that great a memory on the witness stand?
22 No, no, because if he repeats those words here, "My goodness,
23 we might as well just plead guilty. Let's not do that. Let's
24 hope that the jury will believe my insane theory that I just
25 got out of control."


1 And he even tells us how he felt right
2 afterwards.

3 (State's Exhibit No. 18, an audiotape, was
4 played in open court. The intelligible portions are as
5 follows:)

6 BRANDON THREET: Like when he hit me and then I
7 hit him back, I don't know. I just got angry all of a sudden.
8 And then after that, then I was calm. I didn't -- I wasn't
9 angry or anything after I kicked him.

10 (End of audiotape presentation)

11 MR. BRADLEY: "I wasn't angry or anything after
12 I kicked him because I had been able to do what I wanted to
13 do." Now, where is the confusion? Where is the mystery?
14 Where's the old, "It was a baffling, you know, ten or eleven
15 seconds"? It's missing. It's only on the witness stand that
16 that appears.

17 He knows that he will be held accountable to the
18 law by twelve Williamson County jurors. And so he is trying
19 everything he can to avoid that. He would love for you to
20 just jump right to that old less serious thing, criminally
21 negligent homicide. This is not a menu. You're not in a
22 cafeteria. The law provides that you first decide whether or
23 not he's guilty of murder. All twelve of you have to look at
24 that and agree whether or not he is guilty of murder on any
25 one of those three theories. And you never even get to the

1 lessers of manslaughter or criminally negligent homicide
2 unless all twelve of you, every single one of you, says first
3 he is not guilty of murder. To do anything different would be
4 to violate that charge. I don't think you'll ever get that
5 far. You won't have to get to that. You won't have to get to
6 criminally negligent homicide. It never will get that far.

7 But it's not as if you go back there and go,
8 "Hey, anybody think criminally negligent homicide? We could
9 just start there." That isn't how it works. The State is
10 arguing for murder. The jury charge says you have to begin to
11 consider murder. And all twelve of you, every single one of
12 you, has to agree or disagree on that before you move on.
13 And I'm confident that all twelve of you on one of the
14 theories will think that he's guilty of murder.

15 Yeah, he's remorseful. You know, Mr. Minton
16 spent a lot of time on some rabbit trails during his argument
17 talking about all the things that we put on in evidence that
18 he thinks are bad things about the defendant. Well, think
19 back. Who mentioned those things first? Who brought out
20 first, for example, that Brandon smoked marijuana? Mr. Minton
21 did. Brandon is sitting right up here. It's his witness.
22 It's his client. And he says, "Son, did you smoke marijuana?"
23 "Oh, no, sir. I stopped back in about the middle of the
24 senior year." Did I bring that up? No. Mr. Minton did.
25 He's smart. He's good because what he's doing is he's setting


1 up an argument for himself for final argument. "Look at all
2 the mud this district attorney is slinging."

3 Hey, what's he doing? He wants to show you this
4 is such a clean-cut kid. My God, he's white, middle-class.
5 He's educated. How can you-all, white people, find him
6 guilty? Don't do that. That is what's going on, the little
7 subtext to this trial. Don't let that happen.

8 Did I bring up the car? Who brought up the car?
9 When Brandon is first testifying, what is he spending time
10 talking about? "Yeah, I work. And I work so I can buy a
11 car." How does that help you decide if he's guilty of murder
12 or not? What's he trying to do? He's a good kid. Come on.
13 He's a good kid. He works. Yeah, I'll tell you what he works

14 for. He works so he can drive around the neighborhood showing
15 this off. Yeah, that's remorse. This didn't happen before
16 the murder. This happened after the murder. And he wants you
17 to think that that should be mitigated because that was bought
18 by his mom. And he tried really, really, really hard to get
19 his mom to say that it was her car, which is laughable. I
20 don't really think she is tall enough to get in that car.
21 Even she said honestly, "No. That's Brandon's car. I'm
22 paying for it, but that's Brandon's car."

23 So where is Brandon's mind right now? "I want
24 to get in a little good time before I go off to the pen."

25 (State's Exhibit No. 7, a videotape, was played


1 in open court. The intelligible portions are as follows:)
2 UNIDENTIFIED MALE: Hold on, bro. Hold on, bro.


4 UNIDENTIFIED MALE: Hey, dude, don't like break
5 my ribs, all right?

6 UNIDENTIFIED MALE: We're videotaping this shit.
7 Oh, God. Brandon's pissed.

8 UNIDENTIFIED MALE: Ah, no, dude, no.


10 UNIDENTIFIED MALE: Brandon, Brandon, Brandon,
11 Brandon, Brandon, Brandon.

12 UNIDENTIFIED MALE: Ah, come on now.

13 UNIDENTIFIED MALE: Chill, chill, chill.


15 UNIDENTIFIED MALE: Brandon. Brandon, chill.

16 UNIDENTIFIED MALE: Brandon, Brandon.


18 UNIDENTIFIED MALE: He's high as a kite.

19 UNIDENTIFIED MALE: All right. We have some guy
20 hitting the bog right here.

21 UNIDENTIFIED MALE: Did you get that?

22 UNIDENTIFIED MALE: I got that on videotape,
23 dude.

24 UNIDENTIFIED MALE: Dude, that's wrong, man.



1 (End of audible videotape presentation)

2 MR. BRADLEY: I'm sorry you have to watch that.
3 But someone died. And someone's justice cries out for
4 recognition with that videotape. You know it's sad that kids
5 made that thing. But in the long run, it was probably a good
6 thing they did. What do you think we'd be arguing about what
7 happened today here if I didn't have that videotape? What do
8 you think Brandon would be telling you? What do you think all
9 those kids' stories would be if we didn't have the videotape?
10 How many of them would be protecting Brandon, the good jock,
11 the neighborhood friend?

12 That videotape is going to burn in all of our
13 minds, and we're going to think about ten, twenty, thirty
14 years from now. And I hope that the next thought is: That's
15 the videotape of where that boy was murdered because if you
16 follow Mr. Minton's suggestion, it's going to be, "Oh, yeah,
17 yeah. It's like what's that word, criminally negligent
18 homicide or something? Yeah, I don't know." "Well, what
19 happened?" "Well, it's a funny videotape. This kid just
20 backed up three steps and kicked this guy in the head and
21 killed him." "Right there on videotape?" "Yeah." "That
22 wasn't a murder?" Yeah, it was a murder.

23 The last words on that videotape are someone
24 saying, "That's wrong." Even as screwed up as these kids are,
25 drinking, using dope, being ignorant -- even in that state,


1 someone knew that this was wrong, and they said it. They
2 probably felt bad immediately. They had just seen an ambush.
3 They had just videotaped it. It sounded like it was going to
4 be fun, but that was wrong.

5 Now, nobody is going to remember this tomorrow
6 without a verdict. Do you think it's some sort of accident
7 that this courtroom is full, that people care? Williamson
8 County is looking to see if some kind(s) of kids get treated(better) than
9 other kind of kids, or do(es) everyone get treated the same.
10 (sic) That's a good-looking kid. Terence didn't do anything
11 wrong, and he died. James and Chung and Brendan are going to
12 sit out here, and they're going to wait for a verdict. I'm
13 confident that that verdict is murder. Thank you.

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