                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00313-CR


ROBERT O’BRYAN                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
               TRIAL COURT NO. CR-2013-08057-A

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                          DISSENTING OPINION

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      Respectfully, I cannot join the thoughtful majority. I do not understand the

majority’s hypothesis that in Texas, imputed knowledge may only expand the

authority of the prosecution but may not protect the constitutional rights of the

accused.

      The obligations stemming from imputed knowledge within the prosecution

team have long been recognized in Texas courts.           In 1989, in an early
exoneration case, the Texas Court of Criminal Appeals concluded that Randall

Dale Adams had been convicted of capital murder on perjured testimony. 1 The

Texas Court of Criminal Appeals explained,

              The issue of Miller’s perjurious testimony regarding her
      identification of the applicant involves both the suppression of
      evidence favorable to the accused and the State’s knowing use of
      false testimony. During the applicant’s trial, after the three rebuttal
      witnesses had testified and Miller had identified the applicant, the
      State closed. The applicant’s attorney then belatedly requested a
      hearing outside the presence of the jury in order to determine
      whether Miller’s identification testimony had been tainted by an
      improper photo spread or lineup. The trial judge observed that the
      request was untimely because Miller had already identified the
      applicant. Nevertheless, he permitted the hearing to allow the
      applicant to perfect a bill of exception. It was during this hearing that
      Miller perjured herself by testifying falsely that she had identified the
      applicant in a lineup and that no one had influenced her in her
      identification. After the hearing the trial judge commented that he
      considered the issue of a tainted identification to have been waived
      by the defense, but emphasized that the defense had the right to go
      into it in front of the jury. In this regard it must be remembered that
      at this time the applicant had no knowledge of the truth about the
      identification or the prior inconsistent statement.

             Following his comments to counsel, the judge concluded[] that
      Miller’s identification testimony “was not influenced either by the
      witness having seen photographs of the defendant or by the witness
      having viewed the defendant in a lineup of people conducted by law
      enforcement authorities.” He further stated: “The Court finds there
      is no taint, that the identification of the witnesses in court is based
      solely on the witnesses having viewed the defendant at the time and
      place where the offense was committed as alleged in the
      indictment.” He also comment[ed] that irrespective of his factual
      findings a waiver of a defect in the identification had occurred.

           Mulder testified that he did not know Miller had identified
      someone other than the appellant in the lineup, nor did he know that

      1
      Ex parte Adams, 768 S.W.2d 281, 290–91 (Tex. Crim. App. 1989).


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      the officer in charge of the lineup told her who she should have
      identified. However, this is insufficient to remove the taint of the
      prosecution’s knowing use of perjured testimony. As previously
      noted, the United States Supreme Court has expressly recognized
      that when confronted with perjurious testimony the prosecutor has a
      duty to correct it. Further, whether the prosecutor had actual
      knowledge of the falsity of the testimony is irrelevant. If the
      prosecutor should have known is sufficient. Thus, the Supreme
      Court has endorsed the imputation of knowledge, at least from one
      prosecutor to another. However, the extent of this imputation of
      knowledge has been expanded. In Williams v. Griswald, the court of
      appeals stated: “It is of no consequence that the facts pointed to
      may support only knowledge of the police because such knowledge
      will be imputed to state prosecutors.” In United States v. Antone, the
      court of appeals observed that it has “declined to draw a distinction
      between different agencies under the same government, focusing
      instead upon the ‘prosecution team’ which includes both
      investigative and prosecutorial personnel.”

             The Dallas police officer that “helped” Miller was by her own
      admission in charge of the lineup. Consequently, as a part of the
      investigating team his knowledge of Miller’s lack of identification at
      the lineup and his assistance to her is imputed to Mulder.
      Consequently, when Miller testified that she had identified the
      applicant in a lineup Mulder had an obligation to correct the perjured
      testimony.2

The Adams court “declined to draw a distinction between different agencies

under the same government, focusing instead upon the ‘prosecution team’ which

includes both investigative and prosecutorial personnel.”3




      2
       Id. at 291–92 (citations omitted).
      3
       Id. at 292; see also Ex parte Castellano, 863 S.W.2d 476, 484–85 (Tex.
Crim. App. 1993) (holding that peace officer who was not assigned to an arson
case but who took it upon himself to assist and engage in perjury for private
reasons was nevertheless acting under color of law and part of the prosecutorial
team).


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      The imputed knowledge rule is still alive and well. In 2014, the Texas

Court of Criminal Appeals stated,

             In Moulton, the Supreme Court indicated that a Massiah
      violation occurs only if the State “knowingly circumvented” the right
      to counsel. The court of appeals’s opinion suggests that a knowing
      circumvention did not occur because Midland law enforcement was
      unaware that appellant had counsel. Appellant’s position is that the
      knowledge of Ector County law enforcement should be imputed to
      Midland County law enforcement.

            Appellant has the better of the argument. In Michigan v.
      Jackson, the Supreme Court held that the State is responsible, in
      the Sixth Amendment context, for the knowledge of all of its actors:

            Sixth Amendment principles require that we impute the
            State’s knowledge from one state actor to another. For
            the Sixth Amendment concerns the confrontation
            between the State and the individual. One set of state
            actors (the police) may not claim ignorance of
            defendants’ unequivocal request for counsel to another
            state actor (the court).

            In so concluding, the Supreme Court cited and quoted from
      Moulton, a Massiah case. It is true that, in Montejo v. Louisiana, the
      Supreme Court overruled Jackson insofar as it imposed a
      prophylactic rule forbidding interrogation once the accused has
      requested counsel. But the Montejo decision expressly stated that it
      was not concerned with the substantive scope of the Sixth
      Amendment right to counsel, and in so saying it cited both Moulton
      and Massiah. We do not agree with the court of appeals that the
      Supreme Court’s decision to overrule Jackson constituted an
      abandonment of the rule of imputing knowledge to the State.4

      The majority is correct that, generally, the police may detain a person

based on an entry in NCIC. But in the case now before this court, the Denton


      4
        Rubalcado v. State, 424 S.W.3d 560, 573–74 (Tex. Crim. App. 2014)
(citations omitted).


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police department was aware that the car was not stolen and that there should

be no NCIC entry reporting that it was stolen. No one knows why the stolen

vehicle report was not properly withdrawn. But the knowledge of the Denton

police department is imputed to Northlake police.5 Consequently, police had no

reasonable suspicion to support their original detention of Appellant.

      The majority appears to suggest a good faith exception to the warrant

requirement when the police rely on NCIC. But Texas recognizes only the good

faith exception found in the Texas Code of Criminal Procedure:

      It is an exception to the provisions of Subsection (a) of this Article
      that the evidence was obtained by a law enforcement officer acting
      in objective good faith reliance upon a warrant issued by a neutral
      magistrate based on probable cause.6

      In the case now before this court, there is no warrant, and there is no

requirement that a neutral magistrate screen the information before it can be

entered on NCIC. Under the facts of this case, good faith does not justify the

unlawful detention of Appellant, nor does the NCIC entry that should have been

withdrawn because the Denton police candidly explained that they knew the car

had not been stolen, that it had been reported to them as stolen in error, and that

the entry should have been withdrawn. The original detention of Appellant was

unlawful.



      5
       See id. at 574.
      6
       Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).


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     For these reasons, I must respectfully dissent.




                                                 /s/ Lee Ann Dauphinot
                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

PUBLISH

DELIVERED: May 28, 2015




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