                                   NO. 07-05-0393-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                DECEMBER 21, 2006
                          ______________________________

                            BARBARA STONE, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2004-407187; HONORABLE JIM BOB DARNELL, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                CONCURRING OPINION


       I concur that the Court’s opinion properly applies the Court of Criminal Appeals case

law that binds us, and so join in the Court’s opinion, but I write to express my concern over

the adequacy of the Brick factors in cases like this one. Brick involved a consensual

search of a residence that followed an assertedly unlawful arrest made at another location.

Brick v. State, 738 S.W.2d 676, 677 (Tex.Crim.App. 1987). The attenuation issue in Brown

v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), concerned an incriminating
statement given at the police station after an unlawful arrest. Here, like in Grimaldo,1 the

relationship between the evidence the State introduced at trial and the unlawful police

conduct is much more direct.2       Here, police received consent to search the same

apartment that, we have concluded, they had just forcibly and unlawfully entered. The

physical evidence the police found is the same evidence whose destruction they said they

sought to prevent by their sudden entry into the apartment. It seems to me that the Brick

factors are inadequate to evaluate fully whether denying the State the use of the evidence

obtained under such circumstances fits the purposes of the exclusionary rule. See, e.g.,

Brown, 422 U.S. at 609 (Powell, J., concurring) (“The point at which the taint can be said

to have dissipated should be related, in the absence of other controlling circumstances, to

the nature of that taint.”).




                                                 James T. Campbell
                                                     Justice


Publish.


       1
       Grimaldo v. State, No. 07-04-0246-CR, 2006 WL 563027 (Tex.App.–Amarillo
March 8, 2006, no pet.)
       2
         In its supplemental brief, the State argues Reasor v. State, 12 S.W.3d 813
(Tex.Crim.App. 2000), provides a standard for analysis of the attenuation issue, noting that
it dealt with a consensual search following an unlawful protective sweep of the same
premises. Despite its “taint” language, it is not clear that the opinion in Reasor was
intended to address an attenuation issue, since it gives the issue the same “short shrift”
the court criticized in Brick. See Reasor, 12 S.W.3d at 819 (“[a]ny taint from the illegal
sweep was sufficiently attenuated when appellant voluntarily consented to the search of
his residence”); Brick, 738 S.W.2d at 678 (quoting similar language from court of appeals
opinion).

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