Brooks, Adam Lamar ( 2015 )


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  •                                                                                   PD-1095-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 10/5/2015 4:45:01 PM
    Accepted 10/7/2015 3:26:44 PM
    No. PD-1095-15                                         ABEL ACOSTA
    CLERK
    IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS AT AUSTIN
    ADAM BROOKS,
    PETITIONER
    VS.
    THE STATE OF TEXAS,
    RESPONDENT
    PETITIONED FROM THE COURT OF APPEALS
    TENTH DISTRICT OF TEXAS
    10-13-00409-CR
    ON APPEAL FROM THE COUTNY COURT AT LAW NO. ONE
    BRAZOS COUTNY, TEXAS
    TRIAL COURT CAUSE NUMBER: 11-01734-CRM-CCL1
    STATE’S REPLY TO PETITIONER’S PETITION FOR DISCRETIONARY REVIEW
    THE STATE OF TEXAS
    RODNEY W. ANDERSON
    Brazos County Attorney
    JOSHUA HOLMES
    Assistant County Attorney
    Brazos County, Texas
    October 7, 2015             300 E. 26th Street, Suite 1300
    Bryan, Texas 77803
    Telephone: (979) 361-4516
    Fax: (979) 361-4312
    State Bar No. 24069095
    IDENTITIES OF PARTIES AND COUNSEL
    PETITIONER:                    ADAM LAMAR BROOKS
    Appellate and Trial Counsel:   CRAIG GREENING
    Attorney at Law
    P.O. Box 152
    Bryan, Texas 77806
    RESPONDENT:                    THE STATE OF TEXAS
    Appellate and Trial Counsel:   RODNEY W. ANDERSON
    Brazos County Attorney
    JOSHUA HOLMES
    Assistant County Attorney
    300 E. 26th Street, Suite 1300
    Bryan, Texas 77803
    TRIAL JUDGE:                   HON. AMANDA MATZKE
    HON. TERRY FLENNIKEN
    i
    TABLE OF CONTENTS
    IDENTITIES OF PARTIES AND COUNSEL ....................................................... i
    TABLE OF CONTENTS ....................................................................................... ii
    INDEX OF AUTHORITIES ................................................................................ iii
    STATEMENT REGARDING ORAL ARGUMENT .............................................1
    THE PETITIONER HAS FAILED TO STATE PROPER
    GROUNDS FOR REVIEW ....................................................................................1
    THE DECISION OF THE COURT OF APPEALS DOES NOT
    CONFLICTWITH THE DECISIONS OF ANOTHER COURT ............................2
    PRAYER ................................................................................................................4
    CERTIFICATE OF COMPLIANCE ......................................................................5
    CERTIFICATE OF SERVICE ................................................................................5
    ii
    INDEX OF AUTHORITIES
    TEXAS COURT OF CRIMINAL APPEALS
    Gregory v. State, 
    176 S.W.3d 826
    (Tex. Crim. App. 2005).…………………………….1
    Pham v. State, 
    175 S.W.3d 767
    (Tex. Crim. App. 2005)……….……………………….3
    Roquemore v. State, 
    60 S.W.3d 862
    (Tex. Crim. App. 2001). ..…………………...……2
    St. George v. State, 
    237 S.W.3d 720
    (Tex. Crim. App. 2007)…………………………...3
    State v. Daugherty, 
    931 S.W.2d 268
    (Tex. Crim. App. 1996)…..…………………....…2
    State v. Kelly, 
    204 S.W.3d 808
    (Tex. Crim. App. 2006)………………………………3-4
    Wehrenberg v. State, 
    416 S.W.3d 458
    (Tex. Crim. App. 2013)..…….………………….2
    Wilson v. State, 
    311 S.W.3d 458
    , 465 (Tex. Crim. App. 2010).………………………..2
    TEXAS COURTS OF APPEAL
    State v. Woehst, 
    175 S.W.3d 329
    (Tex. App.—Houston [1st Dist.] 2004, no
    pet.)……………………………………………………………………….……………...4
    Brooks v. State, No. 10-13-00409-CR, mem. op., 2015 Tex. App.
    LEXIS 7620 (Waco July 23, 2015) (not designated for publication)………………1, 3
    iii
    STATEMENT REGARDING ORAL ARGUMENT
    Because the Petitioner has failed to state a valid ground for review, the State
    believes his Petition for Discretionary Review should be denied without need for oral
    argument.
    THE PETITIONER HAS FAILED TO STATE PROPER GROUNDS FOR
    REVIEW
    In each of his grounds for review petitioner asserts, “The Court of Appeals
    erred in finding there was no causal connection between Sergeant Boyett’s fabricated
    lineup and Petitioner’s confession… .” (Petition for Discretionary Review at 2-3).
    The Court of Appeals made no such finding. Brooks v. State, No. 10-13-00409-CR,
    mem. op., 2015 Tex. App. LEXIS 7620, at *5-6 (Waco July 23, 2015) (not
    designated for publication). The trial court made the finding that the fabricated lineup
    is not what caused Brooks to confess. (2 Supp. C.R. at 5-6). The Court of Appeals
    merely determined the trial court’s finding was supported by the record. Brooks, at *5-
    6.
    “This Court has repeatedly and consistently said that a petition for review
    should specifically address error in the court of appeals’ s holding.” Gregory v. State, 
    176 S.W.3d 826
    , 827-28 (Tex. Crim. App. 2005) (Holcomb, J., concurring) (internal
    citations omitted) (emphasis added). Because neither of petitioner’s stated grounds
    for review complain of a decision made by the appellate court, his petition should be
    refused.
    1
    THE DECISION OF THE COURT OF APPEALS DOES NOT CONFLICT
    WITH THE DECISIONS OF ANOTHER COURT
    Even had petitioner stated a valid ground for review, the decision of the Court
    of Appeals in this case is not in conflict with any of the cases cited by petitioner. All
    of the cases from this Court cited by petitioner as in conflict with the decision of the
    Court of Appeals acknowledge the requirement of a causal connection between
    police misconduct and the obtaining of evidence before the evidence should be held
    inadmissible. Wilson v. State, 
    311 S.W.3d 458
    , 465 n. 49 (Tex. Crim. App. 2010)
    (noting specifically “[t]he State does not argue, in this Court, that appellant failed to
    show a causal connection between the violation of the law and the making of the
    confession”); Wehrenberg v. State, 
    416 S.W.3d 458
    , 470 (Tex. Crim. App. 2013)
    (holding that the independent source doctrine is not in conflict with Article 38.23 of
    the Code of Criminal Procedure because “the independent source doctrine by
    definition applies only to situations in which there is no causal connection between
    the illegality and the obtainment of evidence”); State v. Daugherty, 
    931 S.W.2d 268
    ,
    271 (Tex. Crim. App. 1996) (acknowledging that the “whole issue” in the case was
    whether “‘inevitable discovery’ really does break the causal connection between the
    illegality and the evidence”); Roquemore v. State, 
    60 S.W.3d 862
    , 870 (Tex. Crim.
    App. 2001) (noting that “evidence should be excluded once a causal connection
    between the illegality and the evidence is established”).
    Petitioner conflates the burden of persuasion into the burden of production by
    asserting some evidence of a causal connection is all that is required to conclusively
    2
    establish the existence of some causal connection. (Petition for Discretionary Review at
    11-12). To the contrary, “If a defendant produces evidence that there is a causal
    connection, the State may…try to disprove this causal evidence.” Pham v. State, 
    175 S.W.3d 767
    , 773 (Tex. Crim. App. 2005).
    In Petitioner’s case, the Court of Appeals acknowledged there was “at least
    some evidence of a causal connection… .” Brooks, at *5. However, this evidence was
    anything but “uncontroverted,” as Petitioner claims. (Petition for Discretionary
    Review at 8, 12). The Court of Appeals acknowledged that Petitioner’s identity as
    the driver of suspect vehicle had been established before he was shown the fabricated
    lineup, noting that the witness had reported Petitioner’s personalized license plates,
    Petitioner had been contacted in the same vehicle at Post Oak Mall several months
    after the initial report, and that Petitioner himself “admitted that he went to the Post
    Oak Mall regularly, and that no one, even relatives, drove his green SUV… .” Brooks,
    at *1-2. More importantly, however, “The State produced evidence that when Boyett
    called Brooks to tell him that a warrant had been issued for Brooks’ arrest, Brooks
    told Boyett that Brooks did not confess because of Boyett’s interviewing techniques
    but because the spirit of God touched Boyett to call Brooks after Brooks left the
    station at a time when Brooks had decided to tell Boyett the truth.” Brooks, at *5. A
    recording of that conversation was introduced into evidence at the suppression
    hearing. (Defendant’s Suppression Exhibit #3, track 3 at 8:58). Thus, the record
    supports the trial court’s finding that the fabricated lineup is not what caused
    Petitioner to confess. Brooks, at *5. If the “trial court makes explicit fact findings, the
    3
    appellate court determines whether the evidence (viewed in the light most favorable
    to the trial court’s ruling) supports these fact findings.” State v. Kelly, 
    204 S.W.3d 808
    ,
    818 (Tex. Crim. App. 2006).
    The Court of Appeals decision in this case is not in conflict with State v.
    Woehst, either. In Woehst, the trial court believed the defendant’s testimony that
    reading the incorrect version of the DIC-24 caused her to refuse a breath specimen.
    State v. Woehst, 
    175 S.W.3d 329
    (Tex. App.—Houston [1st Dist.] 2004, no pet.).This
    does not mean that the trial court must believe testimony given by a defendant during
    a suppression hearing. “[T]he trial judge is the sole trier of fact and judge of
    credibility of the witnesses and the weight to be given to their testimony.” St. George
    v. State, 
    237 S.W.3d 720
    , 725 (Tex. Crim. App. 2007) (internal citations omitted).
    PRAYER
    Because Petitioner has failed to allege a proper ground for review, and because
    none of the cases cited by Petitioner are in conflict with the decision of the Court of
    Appeals in this case, the State prays that this Court deny his Petitioner for
    Discretionary Review.
    4
    CERTIFICATE OF SERVICE
    This computer-generated document has a word count of 1,413 words, based
    upon the representation provided by the word-processing program used to create it
    CERTIFICATE OF SERVICE
    I, Joshua Holmes, attorney for the State of Texas, do hereby certify that a true
    and correct copy of the foregoing document was served through the electronic filing
    manager Efile Texas to the following parties on this, the 5th day of October, 2015:
    Craig Greening
    Attorney at Law
    P.O. Box 152
    Bryan, Texas 77806
    State Prosecuting Attorney’s Office
    P.O. Box 13406
    Austin, Texas 78711
    /s/Joshua Holmes____
    Joshua Holmes
    State Bar No. 24069095
    5