Brooks v. State

• Court: Texas Court of Appeals
• Writing for the Court: Memorandum Opinion by Justice Silva
• Decision Date: 17 June 2021
• Docket Number: NUMBER 13-20-00085-CR
• Citation: Brooks v. State, NUMBER 13-20-00085-CR (Tex. App. Jun 17, 2021)
• Parties: JOHN PAUL BROOKS JR., Appellant, v. THE STATE OF TEXAS, Appellee.

JOHN PAUL BROOKS JR., Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-20-00085-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

June 17, 2021

On appeal from the 249th District Court of Somervell County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant John Paul Brooks Jr. appeals his convictions for possession of a controlled substance of more than one gram but less than four grams and possession of a controlled substance of less than one gram, first- and second-degree felonies, respectively.¹ TEX. HEALTH & SAFETY CODE ANN. § 481.115(b), (c); TEX. PENAL CODE ANN. § 12.42(d). By what we construe as five issues, Brooks argues the trial court (1) abused its discretion by denying his motion for a mistrial; (2) abused its discretion by denying his motion for continuance; (3) erred by denying his motion to suppress evidence; (4) erred by prohibiting Brooks from presenting evidence to the jury; and (5) erred by denying an article 38.23(a) instruction in the jury charge. See TEX. CODE CRIM. PROC. art. 38.23(a). We affirm.²

I. BACKGROUND

On December 12, 2018, Brooks was indicted for two counts of aggravated assault with a deadly weapon (counts one and two), possession of a controlled substance of more than one gram but less than four grams of methamphetamine (count three), and possession of a controlled substance of less than one gram (count four).³ TEX. PENAL CODE ANN. § 22.02(a)(2); TEX. HEALTH & SAFETY CODE ANN. § 481.115(b), (c). Prior to trial, Brooks filed a motion to suppress, which the trial court denied. When trial was set to begin, Brooks filed a motion for continuance alleging he was unable to secure the presence of two witnesses, which he deemed necessary. The trial court denied Brooks's motion for continuance. After the jury was empaneled and sworn, but prior to opening statements or evidence, the trial court was notified that a juror communicated with anotherindividual about the case. Brooks moved for a mistrial, citing juror misconduct. The trial court conducted a hearing on the allegations and subsequently denied Brooks's motion for mistrial.

A. Search Warrants

On October 19, 2018, Somervell County Sheriff's Office (SCSO) Captain Michael Gilbert signed a probable cause affidavit for a search warrant. According to the affidavit, Julie Dowdy presented herself to the Glen Rose Medical Center emergency room after being physically assaulted by Brooks. Dowdy told SCSO deputies Josh Beatty and John Gonzales that after an argument in Brooks's van, Brooks shot her in the face with a CO₂-powered BB gun and threatened to cut her throat with a green camouflage-patterned folding knife. Beatty observed Dowdy to have a hole in her cheek, visible swelling on the right side of her face, and blood on her clothing and hospital bed sheets; Beatty also observed photographs on Dowdy's phone of herself covered in blood.⁴ The affidavit sought a warrant to search Brooks's home and van for the BB gun, folding knife, and to locate Dowdy's blood stains in Brooks's van or on his wheelchair. The same day, a judge signed the search warrant, permitting SCSO to search Brooks's home and vehicle for the items listed.

Gilbert testified that on October 19, 2018, he and several other officers executed the search warrant at Brooks's residence. According to Gilbert, SCSO evidence clerk Katy Linnaberry and Texas Ranger Don Stoner searched Brooks's vehicle, while Gilbert,SCSO Investigator Thomas Cochran, and SCSO Chief Deputy Dwayne Griffin searched Brooks's residence. During the search, a CO₂-powered BB gun and green camouflage-patterned folding knife were recovered; additionally, Stoner found what appeared to be two blood stains in Brooks's vehicle. SCSO investigators found glass pipes and a crystalline substance later determined to be approximately 1.61 grams of methamphetamine inside Brooks's home. Griffin found several items used to consume narcotics in Brooks's nightstand while the methamphetamine was found inside a case in Brooks's chest of drawers at the foot of his bed. Another glass pipe was discovered by Cochran in the entertainment center in Brooks's living room.

Following the October 19 search, Gilbert obtained an arrest warrant for Brooks which was executed at his home on November 5, 2018. During the arrest, Stoner noticed a tray located on Brooks's nightstand with another glass pipe and a bag containing a white, crystalline substance, later determined to be approximately .27 grams of methamphetamine.

B. Motion for Continuance

Brooks filed a motion for continuance prior to trial on the basis that he was unable to locate and serve subpoenas on Brett Yates and Amanda LaFan⁵, who were material witnesses to the assaultive offenses.⁶ The trial court held a hearing on Brooks's motion on November 25, 2019, wherein the State notified the court that it would not beproceeding on the assaultive offenses. In response, Brooks's counsel noted that he believed the witnesses were necessary to rebut the information set out in Gilbert's affidavit in support of the October 19, 2018 search warrant as part of Brooks's motion to suppress. The trial court took the motion under advisement.

Brooks reurged the motion on December 2, 2019, when the parties were set to begin voir dire. During the discussion, Brooks testified that Yates and LaFan "were present and observed the behavior of both [Brooks] and [Dowdy]" on the day of the alleged assault. On cross examination, Brooks confirmed that neither Yates or LaFan were present when the warrants were executed on October 19 and November 5. Brooks's counsel noted that while Yates⁷ may be present at the time of the hearing, LaFan still had not been served. The trial court denied Brooks's motion for continuance. On December 5, 2019, prior to opening statements and evidence, Brooks yet again moved for a continuance asserting that LaFan had still not been located and served. The trial court again denied Brooks's motion.

C. Motion to Suppress

Although Brooks filed a pretrial motion to suppress, the trial court did not hear the motion until after the jury was sworn and empaneled. Brooks's motion to suppress challenged the initial affidavit, alleging the affidavit in support of the request "fail[ed] to state facts sufficient to allege[] probable cause to search the residence." Brooks specifically challenged the affidavit as being composed of conclusory statements rather than factual allegations, and he argued that the affidavit "fail[ed] to allege sufficientunderlying facts to demonstrate that there would be a fair probability that evidence tending to show that [Brooks] committed an offense would be found in the residence," the affiant failed to corroborate the facts contained therein by independent investigation, and that "the information in the affidavit is too general to support a conclusion that any evidence tending to show that the Defendant committed an offense would be found." Despite the numerous grounds for suppression listed, at the hearing Brooks only presented evidence on and argued that Gilbert intentionally withheld information that would have eliminated probable cause for the search warrant. Brooks makes the same argument on appeal and does not address the other grounds listed in the motion to suppress.

Gilbert was the only witness to testify during the motion to suppress. Gilbert testified that SCSO began investigating an assault after Dowdy went to the Glen Rose Medical Center to obtain treatment for injuries allegedly sustained during the assault. According to Dowdy's interview, she was with Brooks and two other individuals on October 10, 2018, when the assault occurred: Yates and LaFan—both of whom witnessed the assault. Gilbert testified that although he made attempts to interview Yates and LaFan, he was unable to. According to Gilbert, Yates and LaFan were homeless and did not have phones through which they could be contacted.⁸

Gilbert stated he did not interview Brooks following the October 10 assault to prevent Brooks from removing or destroying potential evidence. Gilbert testified that he did not mention Yates or LaFan in his affidavit because he had not located either of themby the time he applied for the search warrant. Gilbert recounted that he found Dowdy's claims to be credible based on her injuries, as observed by Beatty and Gonzales, and the way she described the assault. Gilbert could not recall whether, at the time he completed the probable cause affidavit, he was aware that Dowdy had a criminal history.⁹

Dowdy's written statement that she provided to SCSO was admitted for the trial court's review. According to Dowdy's statement, while in Brooks's vehicle, Brooks grabbed Dowdy, so she grabbed him back. Brooks then repeatedly punched her in the head and ultimately grabbed a silver or chrome and black CO₂-powered BB gun and shot her in the face. Although Yates and LaFan were not specifically named in her statement, the statement refers to at least one other individual and explains that during the assault, Dowdy "started screaming for someone to hand [her] a knife." Dowdy's statement then goes on to state that Brooks "put a camo folding knife approximately 4[inches] long to the right side of [her] throat." The assault ended and Dowdy walked away, eventually walking herself to the emergency room.

During his case in chief, Brooks called Yates and Dowdy, but the State objected as to relevance. After an offer of proof for each witness, the trial court sustained the State's objections. Brooks requested the trial court include a jury instruction pursuant to Texas Code of Criminal Procedure article 38.23 regarding unlawful searches or seizures. TEX. CODE CRIM. PROC. ANN. art. 38.23. The trial court denied Brooks's motion to suppressand request for jury instruction pursuant to article 38.23 and entered findings of fact and conclusions of law related to the motion to suppress and underlying affidavit...