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
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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
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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
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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.
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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
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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
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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.
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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
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