Day 3: Trial of ETX mom accused of killing babysitter

TYLER, TX (KLTV) - Day three of testimony is underway this morning in the trial of an East Texas mother accused of killing her baby sitter.

45-year old Kimberly Cargill is accused of murdering her baby sitter to keep her from testifying against her in a child custody hearing.

Kimberly Cargill Trial Day 3

At an 8:30 hearing before the jury is brought in, the defense and prosecution discuss whether or not the testimony of a particular witness will be considered hearsay. Pertena Young is that witness. She got a call from Cherry Walker on June 18. In that call Cherry told Pertena what Cargill told her over the phone that day. Paula Wheeler works for Pertena, Cherry's case worker.

State agrees to all other witnesses for now while the defense looks over documents pertaining to Pertena's potential testimony.

Jury is brought in at 8:50am.

State calls first witness of the day, Paula Wheeler, Cherry Walker's case worker for Community Access. Wheeler says she stopped working there because, "my client was murdered". Defense objects to that question and answer. The jury is told to disregard the last question/answer.

Wheeler tells the jury she loved Cherry very much. She says she loved Cherry like her own child.

Wheeler says she would work with Cherry on her goals... Simple things to function daily. Wheeler says she was working with Cheery to help her learn her phone number. She says Cherry was childlike, sweet and had a good heart. She says Cherry couldn't read and her writing was illegible. Wheeler says Cherry would carry a coin purse and a cell phone with phone numbers written down on business cards. Cherry lived on food stamps. Wheeler says sometimes Cherry would want to buy things she couldn't afford. Wheeler says she couldn't count money. Wheeler tells a story of one time when Cheery insisted she had enough money to buy $300 worth of cleaning products. Wheeler says Cherry was a very neat and clean person.

Wheeler tells the jury she met Kim Cargill one time when she was late picking up her son and Cherry almost missed a dentist appointment.

Wheeler says she did have concern about Cherry watching a child. She says Cherry and Cargill's son would play a lot and put together puzzles. Wheeler says Cherry would give him baths and use her food stamps to buy him food.

Wheeler tells the jury if someone got mad at Cherry or yelled at her she would become very upset and start shaking. Wheeler says, like a child, Cherry didn't know to fight back. She would just sit there and take any angry things that were said to her.

State's exhibit 84-104 are admitted into evidence. These exhibits are photos of Cherry's apartment. The state goes through the photos with Wheeler, who tells the jury about Cherry's apartment, where she kept things and how she spent her time there. Wheeler says if a guest would use her restroom, she would clean the restroom immediately after the guest left.

State shows Wheeler a photo of Cherry and Wheeler is beaming with happiness. "That's Cherry," she says smiling.

Wheeler starts to tell the jury about the day Cherry was delivered the subpoena. She said she told Cherry she had to go to court and Cherry called Cargill. She says Cherry was talking to Cargill and told Wheeler, "Kim says I don't have to go," but Wheeler says she told Cherry she had to. Cherry says Kim asked to talk to Wheeler on the phone.

Wheeler says Cargill told her "they want to make Cherry go to court so they can make her look bad."

Wheeler says Cargill told her Cherry didn't have to go to court and she'd hide Cherry out at her house. Wheeler says Cargill told Cherry and Wheeler not to tell anyone about the subpoena but Wheeler says she told her supervisor about it.

Wheeler says she saw Cherry everyday for at least half a day and they were very close. Wheeler says Cherry loved getting her hair done but on June 18th, after talking to Cargill, Cherry didn't want to get out of the car to go in the salon and she didn't want Paula to leave her. Paula says she told Cherry she had to get out of the car.

Paula Wheeler begins crying. She says when Cherry got out of her car to walk into the beauty shop, that was the last time she'd ever see Cherry alive.

Paula says she spoke to Cherry again just before 8pm. She says Cherry was going to eat with Kim but Paula says she told Cherry not to go, to lock her doors and go to bed. Paula says Cherry told her she didn't want to go out to eat with Kim and that she was nervous and didn't feel good. Paula says Cherry also told her Kim wanted to pay Cherry to clean her house. Paula says Cherry liked money, needed money and loved cleaning. She tells the jury Cherry was easily mislead.

Paula says she spoke to or saw Cherry everyday. She says on Saturday and Sunday she kept calling and calling but couldn't get in touch with her.

Short recess

State tells Paula Wheeler they are going to go over notes and records of days which Paula noted she arrived to care for Cherry and Cargill's son was there.

Paula arrives at Cherry's between 8:30-9am each day.

11/19/09- Paula saw Cargill's son eating breakfast with Cherry; Cherry made him instant oatmeal; the child looked to be 3 or 4 years old

11/20/09-Paula saw child at apartment when she arrived; cherry was ironing the child's clothes

11/23/09-Paula saw the child wanted food but Cherry gave him something to drink

11/24/09- Child at apartment; he was just sitting there; Cherry wanted to go out but Paula couldn't take her because legally Paula can't drive the child anywhere

11/25/09-Child was watching TV while Cherry made him a bowl of cereal

11/27/09- Child finishing breakfast at Cherry's; Cherry was playing with her doll; Child started playing with his cars

12/14/09- Paula saw Cargill's son at Cherry's

12/15/09- Paula arrives and Cherry was fixing the child breakfast

12/16/09-Paula arrives and the child is sitting on the floor watching cartoons; Cherry is cooking breakfast

12/17/09-Child is there when Paula arrives; Paula cannot take Cherry to do laundry because legally Paula cannot transport the child

12/21/09-Child is there, in the bed sleeping and Cherry is ironing child's clothes.

12/22/09-Child is there; Cherry was shaking and upset because of a conversation she had with Cargill

12/23/09-Child is there; Cherry fixing breakfast for both of them

12/24/09- Child is there; *DA notes this is Cherry's last Christmas Eve*

Paula says Cherry told her Cargill's son was getting water instead of orange juice because his mom wasn't bringing him food

12/26/09- The child was not at Cherry's. Paula talked to Cherry about her Christmas. Paula says Cherry was upset.

1/12/10-Cherry was ironing; child on the floor watching TV

1/26/10-Child was at apartment

1/27/10-Paula notes she knows the Child spent the night; this is the day Paula meets Kim Cargill because Kim is late picking up her son and Cherry almost misses her appointment

1/29/10- Cherry was fixing the child bacon and eggs

2/8/10- Cherry was ironing the child's clothes; the child told her he wanted some eggs

2/9/10-Paula observed Cherry making scrambled eggs for herself; The child wanted something to eat but Cherry told the child his mom should have brought him something to eat

2/10/10-Cherry is ironing the child's clothes when Paula arrives; the child is watching TV

2/23/10-Child is at the apartment and sick; Paula says the child had a very runny nose with green snot; Cherry was ironing his clothes; then she gave him a bath

*Paula says she told Cherry's doctor Cherry had been watching a young child because Paula didn't think Cherry should be babysitting; the doctor confronted Cherry about this

2/25/10-The child is not there when Paula arrives, but there's a knock on the door later and Cargill is at the door dropping off her son

3/4/10- The child is at the apartment when Paula arrives

3/9/10-Child is sleeping in Cherry's bed; Cherry is ironing; Cherry gives the child a bath and makes him stay in the tub until all of the water runs out so no one gets water on the floor

3/12/10- Child sitting in a chair watching TV when Paula arrives; Cherry making the child a bowl of cereal

3/17/10- Child is sleeping at Cherry's apartment while Cherry is watching a scary movie; *Paula says Cherry loved scary movies

3/23/10- Child is at the apartment watching TV with Cherry

5/20/10- child is at Cherry's apartment watching TV; Cherry is happy because she hasn't seen Cargill's son in a while

State: At this point, its 5/20/10, that's the first time he's been there since 3/23/10 and Cherry has less than one month to live.

5/26/10-Cherry ironing; child watching TV

6/3/10-Child at the apartment watching TV; Cherry is ironing

State: At this point Cherry has approximately two weeks and 1 day to live

Paula says she has no other knowledge of the child being at Cherry's after 6/3/10; Paula says she had no knowledge that CPS would remove the child from Cargill's custody on 6/3/10.

State and defense consult at the judges bench for about 15 minutes.

State says they want to go back and look at 5/20/10. Paula says Cherry made a specific statement about something Cargill said to her on 5/20/10 that bothered cherry. Paula says Cherry told her Kim said "not to open the door for the police."

Paula says she didn't attend Cherry's funeral because she just couldn't take it.

State asks Paula if she knew Marcy Fulton. Paula says she did not know Marcy but Cherry did.

State: At the times you'd been with Cherry would she speak her mind

Paula: Yes

State: Sometimes when she'd do that was it embarrassing?

Paula: Yes

State: Have you ever met Mary Fulton?

Paula: No

Pass the witness

Defense asks if Cherry had a caregiver before Paula.

Paula says Cherry did have one provider before her but she didn't know for how long.

The defense asks Paula if Cherry babysat other children.

Paula says yes. She says she saw Cherry babysit some twins twice and another little girl multiple times.

The defense goes over a list of dates, which Paula noted in her file, Cherry babysat other children.

Paula says she did not observe any other children at Cherry's besides Cargill's son, another little girl and a set of twins.

Defense begins asking Paula about Cherry's seizures. Paula says she knows Cherry was taking 6-8 pulls per night at one point.

Defense: When Cherry would shake would you become concerned that she'd have a seizure?

Paula: Yes.

Paula says it wasn't just normal shaking, it was more significant than a little quivering. She says Cherry shook this way the day the subpoena was delivered.

Defense goes over the morning of the 18th. Cherry calling Kim, Paula talking to him, Kim saying she'd hide Cherry out.

The defense asks Paula if:

-Kim Cargill knew Paula was there when Cherry was subpoenaed

-Cargill knows Paula had to document the subpoena in writing in a file

-Cargill has spoken to Paula on the phone

-Cargill knew Paula's supervisor already knew about the subpoena.

Paula says yes to all of the above.

Pass the witness

State asks Paula if she has any control over Cherry watching children. Paula says no.

Of those six to eight medications Cherry was taking were two Tums antacid, one a vitamin and one a sleeping aid? Paula says yes. She says Cherry was very good about taking her medicine every morning and night. Paula says she's never seen Cherry have a seizure.

State: If you thought she was having a seizure would you take her to the doctor?

Paula: Yes.

State decides to go over phone calls between Cargill, Paula and Cherry on June 18. State writes on a white board the differences between the two conversations. Paula says it was in the second conversation, when Cargill calls back, that Cargill learns Paula has told her case manager about the subpoena.

Paula says she knows Cherry was keeping Cargill's son before September 2009.

Neither the defense or prosecution has further questions at this time for Paula Wheeler.

Recess until 1pm

State calls first witness Pertena Young.

Pertena Young works at community access as a supervisor. She was Paula Wheeler's caretaker. Community Access falls under the Texas Home Community Based Services department. Cherry became a client at community access in 2009.

Nelda Battee was Cherry's first caregiver. Paula Wheeler took over in September of 2009.

Pertena talks about how Cherry was childlike and would shake when she got upset or nervous.

Pertena says she'd talked to Cherry about why she shouldn't be watching children. Pertena says she asked Cherry to have Kim Cargill call her so they could talk about Cherry's babysitting.

Pertena talked to Cargill about Cherry babysitting. Pertena said she told Cargill that Cherry shouldn't be babysitting and that she was going to turn Cargill in to CPS.

Pertena: [Cargill] said, do what you think you have to but I have friends down at the DA's office

DA: She said what?

Pertena: She had friends at the DA's office

DA: Oh does she?

((people in the courtroom chuckle))

Pertena says she told Cargill she had friends at the DA's office too. Pertena says when Cargill got an attitude, she hung up on her.

Pertena said Cherry told her she really liked Paula. Pertena says she saw Cherry on June 18, 2010 before she went to the beauty shop. Pertena says she was in the office 15-30 minutes because Pertena was making copies of the subpoena.

Pertena says she got a call from Cherry sometime after she got home from the beauty shop... Before 5pm. She says Cherry was upset but the conversation was short because Pertena wanted to get off the phone and call the DA's office.

Pertena says she never went shopping with, out to eat with, or anything with Cherry. She says she spoke with Cherry on occasion.

State: Was she someone, in your opinion, who could be manipulated easily?

Pertena: Yes, she was. You could take advantage of her.

State: Does Paula still work for you?

Pertena: No

State: After this happened to cherry she couldn't do it anymore?

Pertena: No

State: She got too close to her?

Pertena: Yes

State asks Pertena if Cherry wore earrings. Pertena says, yes she wore little silver hoop earrings her mother had given her.

Defense has no questions.

State calls next witness Chandler Police Officer Arthur McKenzie.

He has worked for Chandler PD since 2008. He was working as a patrol officer in June 2010.

State unseals a piece of evidence. It's a traffic warning McKenzie wrote Cargill on June 18, 2010.

McKenzie says he doesn't know how fast she was going because it was just a warning, but he thinks it had to be at least 10mph over.

McKenzie: I usually don't stop someone in Chandler unless they're going at least 10 over the speed limit.

State: Really? Now, where is that in Chandler?

((courtroom chuckles))

McKenzie says that night he was working the west side of Chandler.

McKenzie made notes about the stop.. He wrote Cargill was a nurse at ETMC and that she said people had told her to slow down in Brownsboro and Chandler. McKenzie explains his usual protocol when pulling someone over.

State hands the warning and McKenzie's notes to the jury.

McKenzie says he asked Cargill if she had an emergency and she said no. McKenzie says he cut her a little slack because she said she was a nurse at ETMC.

State submits into evidence the dash cam video of Kimberly Cargill being pulled over on June 18, 2010. The jury reviews it in the courtroom.

15 minute break

State calls next witness. Bobby Lewis, in 2010 Lewis worked at Pizza Hut; called 911 around 3pm because he was on his way to pick up a co-worker for work and he saw a body.

State shows Lewis photos from the scene. He says this is the same scene he saw on June 19, 2010. Lewis looks uncomfortable after seeing some of the photos. State goes over the photos in more detail with Lewis. Lewis says he saw the body and wasn't sure at first if it was trash or a person. He says he walked 10-15 feet from it and noticed it was a burned body.

"I already knew what it was, so there was no need to go any closer," Lewis says.

He says he went back to his car, called 9-1-1 and stayed on the scene until police officers arrived.

Lewis says he stayed on the scene talking to officers for about two and a half hours until he was released.

Pass the witness

Defense asks if he moved the body at all. Lewis says he did not. He said he waited for the police maybe 15-20 minutes.

He describes the area as overgrown with weeds. He says there was ash all around Walker's body, burnt clothes and trash bags within eye sight maybe 30 yards away.

Pass the witness.

Lewis says he only got close enough to tell it was a person but he couldn't tell the sex. He says he did not pick anything up or put anything down.

State calls next witness, a Whitehouse police officer, Josh Brunt. Brunt was a peace officer for WHPD from 2006-2011. He was a patrol officer and a Whitehouse ISD school resource officer.

Brunt says he arrived and saw Lewis parked on the side of the road. He and a fireman walked up to the body, said the person was noticeably deceased and taped off the area.

The state goes over the same photos of the body with officer Brunt.

As the state continuously shows photos of Cherry Walker's burned deceased body on the side of the road, Kimberly Cargill begins to cry. She then closes her eyes and starts slowly rocking herself back and forth.

Defense asks Brunt if he wrote a report on this case. He says he did not. He says he got the contact information of the man who called 9-1-1 and handed it off to the deputy.

State calls next witness, Brent Davis, a Texas Ranger with DPS.

He was a trooper for 7.5 years before that. Davis was called to work the case with the Smith County Sheriff's office. Davis has a Sphereon 360 Camera as software that the DA's office purchased for more than $250,000 with money seized from drug busts.

Davis begins to show the court aerial photos of the crime scene taken with the special camera. The camera shoes the crime scene and pinpoints where different pieces of evidence were found. He says the camera can take fish-eye photos and captures each photo at more than 20 different f-stops (lighting levels).

By going through the pictures, Davis says you can tell the body was dumped because the dirt in that area is a red clay and there was no dirt on the bottom of Cherry's tennis shoe. She shows a photo of Walker's shoes still on her feet and they are white In color and look very clean.

State calls next witness Larry Smith.

Larry Smith is a retired special agent with the Bureau of Alcohol Tobacco and Firearms. Smith says since retiring in 2011 he has helped the DA's office investigate 3 deaths involving fire.

The state goes over Smith's expertise. Smith says he responded to the Pentagon after 9/11 as well as Grenada. He has had DEA training, forensic training, ATF national response team training, etc. State says there are about 4 pages of his specialty training.

Smith says his investigation showed Cherry Walker's body was intentionally set on fire with an igniting fluid and an open flame. Smith rattles off about 11 different igniting fluids kerosene to running alcohol.

Smith begins to review the sphereon photos. He says he notices the damage to the body and the clothing is indicative of some kind of ignitable liquid bing poured on the body. He says the burning and charring to Cherry Walker's face wouldn't have occurred without ignitable liquid being used.

There is a non-burned straw wrapper under Cherry's burned leg. Smith is explaining how Cherry's leg can be burned and the straw wrapper is not. He says, depending on the ignitable liquid used, the straw wrapper may not have been exposed to the heat necessary for it to burn for long enough. Smith says he recalls most of the burns being on the right side of Cherry's body.

State: Would you expect in this situation to see that creamer package or that straw package burned at all?

Smith: No, sir.

State: How sure are you that ignitable liquid was poured on this body?

Smith: 100%

State: Do you believe this to be a fire that is intentionally set?

Smith: Yes

Smith says in his experience people burn bodies to make them unrecognizable, and to destroy finger prints and dental records.

Smith says from the damage he can tell the body burned for a short duration.

We will post courtroom updates all day long. Keep checking back to KLTV.com.