                                                                                  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




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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


                                            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




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