                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00409-CR

ADAM LAMAR BROOKS,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                       From the County Court at Law No. 1
                              Brazos County, Texas
                       Trial Court No. 11-01734-CRM-CCL1


                           MEMORANDUM OPINION


       Adam Lamar Brooks was convicted of indecent exposure and sentenced to 120

days in jail with a $1,000 fine. See TEX. PENAL CODE ANN. § 21.08 (West 2011). He was

also required to surrender his peace officer license. Because the trial court did not err in

denying Brooks’ motion to suppress, the trial court’s judgment is affirmed.

BACKGROUND

       Rebecca Bosquez saw a green SUV pull into a parking space near her at the Post

Oak Mall. She saw the driver of the vehicle put up shades in the front window of the
SUV, expose his penis, and begin to masturbate. Because she did not have a phone, she

asked another person in the parking lot to summon mall security. When the man in the

SUV decided to leave, she followed the vehicle and saw the license plate, which read

MRADAM. After another incident was reported at the same mall several months later

involving the same vehicle, a College Station Police officer made contact with the driver

of the SUV who was identified as Brooks. Brooks was a City of Bryan police officer.

Brooks was later asked to go to the College Station Police Department where he spoke

to Sgt. Craig Boyett. Although he admitted that he went to the Post Oak Mall regularly

and that no one, even relatives, drove his green SUV, Brooks denied masturbating in

the mall parking lot. Bosquez could not identify Brooks from a photo line-up; so Boyett

decided to fabricate a photo line-up and have a department secretary indicate on the

line-up that Brooks was identified, “100%.”       Boyett confronted Brooks with the

fabricated line-up and told him numerous times that Brooks had been identified as the

perpetrator. Brooks and Boyett discussed the help that would be available to Brooks,

but then Brooks left the police station still denying that he committed the offense.

About 15 minutes later, Boyett called Brooks, again mentioning that Brooks had been

identified as the perpetrator. After a series of dropped calls and call-backs, Brooks

confessed.

        In his written motion to suppress, Brooks contended his oral statements were

inadmissible pursuant to articles 38.22 and 38.23 of the Texas Code of Criminal




Brooks v. State                                                                    Page 2
Procedure. TEX. CODE CRIM. PROC. ANN. arts. 38.22, 38.23 (West 2005).1 The trial court

heard and denied Brooks’ motion to suppress prior to trial. Then, on the day of trial,

Brooks moved to reopen his motion to suppress so that he could testify. The trial court,

a different judge than the judge who heard the initial motion to suppress, allowed

Brooks to reopen and heard Brooks’ testimony. The court took the testimony under

advisement, and the issue of the admissibility of Brooks’ statements was retried before

the jury.      Each time testimony regarding Brooks’ admission of the offense was

presented, Brooks objected and the trial court overruled each objection.

MOTION TO SUPPRESS

        When reviewing a trial court's ruling on a motion to suppress, we view the

evidence in the light most favorable to the trial court’s ruling. State v. Robinson, 334

S.W.3d 776 (Tex. Crim. App. 2011); State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.

2006). If the trial court makes findings of fact, we determine whether the evidence

supports those findings. Id. We then review the trial court's legal rulings de novo

unless the findings are dispositive. Id.

        A defendant who moves for suppression under Article 38.232 due to the violation

of a statute has the burden of producing evidence of a statutory violation. State v.

Robinson, 334 S.W.3d 776, 779 (Tex. Crim. App. 2011); Pham v. State, 175 S.W.3d 767, 772

1Brooks does not complain on appeal about the admission of statements, if any, in violation of article
38.22.

2TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005) ("No evidence obtained by an officer . . . in violation
of . . . [the] laws of the State of Texas . . . shall be admitted in evidence against the accused on the trial of
any criminal case.")


Brooks v. State                                                                                          Page 3
(Tex. Crim. App. 2005). Only when this burden is met does the State bear a burden to

prove compliance. Id.

        Further, a defendant must show a causal connection between a statutory

violation and the obtaining of evidence before the evidence is rendered inadmissible.

Pham, 175 S.W.3d at 772-773. If the defendant produces evidence that there is a causal

connection, the State may either try to disprove this causal evidence, i.e. disproving that

there is a causal connection in existence at all, or, the State may make an attenuation-of-

taint argument. Evidence is not obtained in violation of a provision of law if there is no

causal connection between the illegal conduct and the acquisition of the evidence.

Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App. 2002). Thus, the evidence would

not be excluded pursuant to article 38.23.

        Relying on the Court of Criminal Appeals’ opinion in Wilson v. State, 311 S.W.3d

452 (Tex. Crim. App. 2010), Brooks argues that Boyett violated section 37.09 of the Texas

Penal Code, “Tampering with or Fabricating Physical Evidence,” by fabricating a photo

line-up and telling Brooks numerous times that he had been positively identified as the

person masturbating in the mall parking lot. The State argues that Wilson was wrongly

decided and should be overturned. We are not in a position to overturn an opinion by

the Court of Criminal Appeals.         Nevertheless, assuming without deciding that

fabricating a photo line-up violates section 37.09, we still must decide whether there

was a causal connection between the line-up and Brooks’ confession.

        Brooks testified at the reopened suppression hearing that he confessed because


Brooks v. State                                                                      Page 4
of Boyett’s use of the fabricated photo line-up. This is at least some evidence of a causal

connection between the violation of article 37.09 and obtaining Brooks’ confession

which shifts the burden to the State to disprove the connection. 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.

In findings of fact and conclusions of law, the trial court found that Brooks’ suppression

hearing testimony was not credible and concluded there was no causal connection

between the fabricated lineup and Brooks’ confession. The record supports this finding

and conclusion. Because the record supports the trial court’s finding and conclusion

regarding the lack of a causal connection, we need not discuss whether any “taint” of

the confession was attenuated. Accordingly, the trial court did not err in overruling

Brooks’ motion to suppress by overruling Brooks’ objections and admitting testimony

regarding Brooks’ confession in evidence.

        Brooks’ sole issue is overruled, and the trial court’s judgment is affirmed.




                                           TOM GRAY
                                           Chief Justice




Brooks v. State                                                                        Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 23, 2015
Do not publish
[CR25]




Brooks v. State                             Page 6
