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Brooks v. State

Court of Appeals of Texas, First District

September 24, 2019


          On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1515314.

          Panel consists of Justices Keyes, Kelly, and Goodman.


          Evelyn V. Keyes Justice.

         A jury convicted appellant, Celvin Brooks, of the offense of capital murder.[1]Because the State did not seek the death penalty and because appellant was younger than eighteen years old at the time he committed the offense, the trial court automatically assessed appellant's punishment at confinement for life.[2] In three issues, appellant contends that (1) the trial court erred when it denied his motion for mistrial because he was not afforded the opportunity to effectively cross-examine a key State witness concerning the witness's mental health history; (2) the trial court erred by refusing his request to submit a jury instruction on the lesser-included offense of murder; and (3) Texas's statutory scheme of automatically sentencing juvenile defendants who have committed capital felonies to confinement for life with the possibility of parole after forty years is facially unconstitutional and denied him due process because the scheme does not allow for an individualized sentencing hearing or for any meaningful opportunity of release. See Tex. Gov't Code Ann. § 508.145(b) (providing that person serving life sentence under Penal Code section 12.31(a)(1) for capital felony "is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years").

         We affirm.


         Demarquise Edwards, one of the complainants, lived in an upstairs apartment in the Arbor Court apartment complex in north Houston and was known for selling "drank, " a mixture of codeine and a beverage, usually soda. On March 20, 2015, Houston Police Department (HPD) officers were dispatched to Edwards's apartment after receiving reports that a shooting had occurred. When officers arrived, they discovered the bodies of Terrell Paynes, lying on a couch in the living room of the apartment, Kiara Jackson, lying on the floor of the bedroom, and Edwards, lying on the kitchen floor. Each of the complainants had suffered multiple gunshot wounds: Paynes was shot in the face and neck; Kiara Jackson was shot in the head and right leg; and Edwards was shot once in the left shoulder, three times in the back, and twice in the head.

         Cassandra Crosby, who, at the time, was a crime scene investigator with HPD, collected six fired cartridge casings from Edwards's apartment. All of the casings were the same caliber-nine millimeters-but were made by three different manufacturers. Crosby also collected one bullet fragment from the dining room and another bullet fragment that was lying on top of Kiara Jackson's body. Crosby observed drug paraphernalia in the apartment, including scales and narcotics located in the kitchen, in some cabinets, and in the washing machine.

         HPD Homicide Division Sergeant C. Cegielski did not have any immediate leads on who had committed the shooting at Edwards's apartment, but a few days after the shooting he began to receive tips through Crime Stoppers. Ultimately, after researching the tips, Cegielski learned that a silver truck had been seen fleeing the scene after the shooting, and he developed three suspects in the shooting: appellant, Broderick Bell, and Kevoughn Fields. Appellant spoke with Cegielski shortly after the shooting and voluntarily provided a saliva sample. Appellant also consented to the release of his cell phone records to HPD.

         Raveen Jones lived in the Arbor Court apartments in a building close to Edwards's. Jones's cousin, Casper, had been friends with appellant, Bell, and Fields before he was shot and killed at the Haverstock Hills apartment complex in February 2015, approximately one month before the shooting at Edwards's apartment. The Haverstock Hills complex was a ten or fifteen minute car drive from Arbor Court. Jones had met appellant, Bell, and Fields, and she had seen them at Casper's funeral. Two days before the shooting at Edwards's apartment, she saw appellant, Bell, and Fields standing by a white or silver truck in the parking lot at Arbor Court. She thought it was unusual to see these three men at Arbor Court because, prior to this occasion, she had only seen them at Haverstock Hills and at Casper's funeral. Jones did not stop to talk to the men, but they called out to her boyfriend, Andra Coleman, who also did not stop to talk. The next day, the day before the shooting, Jones saw appellant walking alone around Arbor Court towards Edwards's apartment. The silver truck she had seen the day before was again parked in the parking lot. Jones was away from Arbor Court most of the day of the shooting, and, by the time she returned home, the police had already arrived to investigate the shooting. She did not see appellant, Bell, or Fields that day.

         Duke Catalon was visiting his cousin at the Arbor Court apartments on the evening of the shooting. He was about to leave when he saw his friend, Terrell Paynes, and they stopped to talk. Paynes had locked the keys inside Edwards's car, and Catalon tried to help them resolve this problem. This included making an unsuccessful trip to a local Auto Zone to buy a "slim jim" to open the car door. Catalon returned to Arbor Court, but he then left to go pick up his sister. Later in the evening, on his way back to Arbor Court, Catalon texted Paynes to learn whether he had been able to unlock Edwards's car. Paynes responded that they were unable to unlock the car. Catalon sent Paynes another text message, but Paynes did not respond. Catalon called a friend of his, Myke Henix, who lived with Edwards, and Henix gave Catalon Edwards's cell phone number. Like Paynes, Edwards did not answer his phone when Catalon called him. Catalon then called one of Paynes's friends, whose nickname was Smoke, and asked him if he knew what was going on. Smoke told Catalon that he would investigate.[3]

         When Catalon arrived back at Arbor Court, he saw a brown Buick and some men standing around it. While walking around the apartment complex, he saw a white truck[4] parked near Edwards's apartment. When asked if he saw any people around the truck, Catalon testified that he saw one person running to the truck from the direction of Edwards's apartment, but he did not see this person actually leave Edwards's apartment. Catalon also stated that, while he was walking through the apartment complex, he heard a loud noise, but he did not hear any gunshots. He started running up the stairs to Edwards's apartment, but then he saw Smoke, who told him that everyone inside the apartment was dead. Catalon could no longer see the white truck.

         Dontay Bradley lived with his cousin, Raveen Jones, at Arbor Court in March 2015. He had been visiting a cousin who lived in a nearby apartment when he came back to Arbor Court on the evening of the shooting with his brother, Dominique Bradley, and Jones's boyfriend, Andra Coleman. When they got out of Coleman's car, a tan Buick, Bradley saw appellant, Bell, Fields, and a fourth person he did not know standing around a truck and wearing all black. Someone standing around the truck called out to Coleman, who went over to speak with them.

         Bradley, his brother, and Coleman all went back to Jones's apartment and stayed there until they heard gunshots, at which point Bradley went out onto his balcony and saw three people wearing all black running "from upstairs" towards the truck that he had seen earlier. It appeared that these three people were the same ones he had seen around the truck when he arrived back at Arbor Court. Bradley could not see the features of any of these three people, but he stated that one was tall and one was short. He believed that appellant ran down the stairs first-followed by Bell and then Fields, after several minutes-because appellant was the shortest of the three people. When they reached the truck, none of these three people got into the driver's seat. Bradley saw the truck drive away from Arbor Court.

         Shakeitra Woods also lived at Arbor Court. She had been friends with Edwards for years and was distantly related to appellant through marriage. Woods and Edwards lived in the same building, but their apartments faced different parts of the complex. On the evening of the shooting, Woods saw a lot of people wearing blue latex gloves standing near a pedestrian gate in the complex, and she saw a gold Buick pull up and stop near this group for a few minutes. After a little while, Woods left her apartment to go visit the resident who lived in the apartment underneath Edwards's apartment. On the way to this apartment, she noticed a silver truck parked near a stop sign, and she also noticed that the group of people she had seen earlier were no longer in sight.

         When Woods arrived at the apartment below Edwards's apartment, the resident did not immediately answer the door, and when he did, he did not open the door all of the way, he had all the lights off, and he told Woods, "I don't know what they got going on upstairs; but you need to move around from right here." Woods could hear cabinets opening and being slammed closed in Edwards's apartment. Before she could go back to her apartment, someone ran down the stairs from Edwards's apartment towards the silver truck. Woods started walking back to her apartment, but she kept her eyes looking down at the ground and her cell phone. She heard one gunshot and then heard another person run down the stairs from Edwards's apartment carrying a bag.[5] This person also ran towards the truck, and the truck fled the apartments. Woods was not able to make an identification of any of the people she saw in the Arbor Court parking lot or whom she saw running from Edwards's apartment, and she stated that she had never seen appellant at Arbor Court. Shortly after the shooting, Woods and her boyfriend left Arbor Court; when they were near the Hardy Toll Road, she saw the same silver truck she had seen at Arbor Court, swerving through traffic and quickly driving east towards Highway 59.

         At the time of appellant's trial, Andra Coleman was in custody awaiting sentencing in federal court for robbery charges. The State had told Coleman that if he provided truthful testimony in appellant's trial, the prosecutors would tell the U.S. Attorney's Office and the federal district judge of his cooperation.

         Coleman knew Edwards and had sold guns to him on previous occasions. He had also known appellant, Bell, and Fields since 2014, having met them through Jones's cousin Casper. Two days before the shooting at Edwards's apartment, Coleman saw appellant, Bell, and Fields at Arbor Court in a silver truck parked in the parking lot near Edwards's apartment. On the day of the shooting, Coleman again saw appellant, Bell, and Fields at Arbor Court standing outside the same silver truck and in the same general location. Appellant, Bell, and Fields, who were wearing all black with black gloves, called out to Coleman, who walked over to speak with them. Appellant asked Coleman, "What [do] you know about the drank man?" Coleman clarified that appellant was referring to Edwards. Appellant told Coleman that he "already went to go check it out" and "it's good, " which Coleman interpreted as appellant and his friends were intending to rob Edwards. Coleman told appellant "that's a suicide mission" and that he "sell[s] guns to these people." Coleman then left Arbor Court in his car, a tan Buick.

         When Coleman returned to Arbor Court, he was in his car near the apartment complex office when he heard several gunshots. He could see the silver truck still parked by a gate, and he saw three men running to the truck. He recognized these men as appellant, Bell, and Fields. Coleman then left Arbor Court again, this time to pick up Jones. By the time he returned to Arbor Court with Jones, law enforcement had arrived at Edwards's apartment. Coleman spoke with Bell a few weeks later at Haverstock Hills, and they discussed what had happened on the day of the shooting. Bell seemed "happy" and "normal, " and he did not appear to be bothered by what had occurred.

         Dequan Jackson, who, at the time of trial, was in custody at the Harris County Jail for unrelated charges, and appellant are cousins. Both Dequan and appellant were seventeen at the time of the shooting and twenty at the time of appellant's trial. Dequan was acquainted with Bell, Fields, Raveen Jones, and Jones's cousin Casper. On March 21, 2015, the day after the shooting at Edwards's apartment, Dequan went to Fields's girlfriend's apartment at Haverstock Hills. Appellant, Bell, and Fields were all present. When Dequan went inside the apartment he saw "money flashing around, drank on the counter." Everyone present had money, and it was a lot more money than any of Dequan's friends typically had at any given time. Dequan asked where the group got the money, but no one wanted to tell him.

         Later that morning, Dequan and appellant left the apartment to buy cigarettes at another apartment in the Haverstock Hills complex. Dequan again asked appellant where they had gotten the money and the drank. Appellant stated, "I caught a body, " which Dequan interpreted to mean that appellant had killed someone. Appellant also told him, "I ran in. We ran in. Like, G [Fields] put us on a lick, " meaning a robbery. Appellant clarified that it was Bell, Fields, and he who were involved, and he told Dequan that "[t]hey ran in, started shooting." Dequan testified, "They just start shooting. [Appellant] went inside the room and started shooting the female [Kiara Jackson], and [Bell] was over the counter shooting the dude [Edwards] that was in the kitchen." Appellant also told Dequan that he had taken a handgun from Edwards's apartment, and Fields had taken money and drank. Appellant told Dequan that this occurred at Arbor Court, but he did not provide any further details. For about two or three months around the time of the shooting, Dequan had seen appellant driving a silver truck.[6] Appellant would typically park this truck at a daycare center next to the Haverstock Hills complex.

         Near the end of the State's direct examination of Dequan, the prosecutor approached the bench and stated that she intended to question Dequan about an incident that had occurred in December 2017 at the Harris County Jail, in which appellant and several other people entered Dequan's cell and appellant assaulted Dequan and called him a "snitch." Defense counsel objected to the admissibility of this evidence.[7] Dequan testified concerning this incident outside the presence of the jury. Defense counsel then stated that he wished to conduct a voir dire examination of Dequan outside the presence of the jury concerning his competency as a witness, based upon Dequan's acknowledgement that he had not completed ninth grade and "based on his mannerisms and answers on this." The trial court allowed defense counsel to conduct this questioning.

         Dequan acknowledged that he had been enrolled in special education classes before he left school in the ninth grade. He also testified that he receives social security disability payments because he has been diagnosed with ADHD and bipolar disorder. He stated that his counsel for his unrelated pending charges was aware of this diagnosis, but he had never informed the prosecutors in appellant's trial of his mental health history, and he was not sure if his counsel had informed them. Dequan testified that he takes medication for both ADHD and bipolar disorder, but he was not taking medication in March 2015, when the shooting occurred.

         Defense counsel also questioned Ray Castro, Dequan's appointed counsel, concerning Dequan's mental health history and competency. Castro was aware that Dequan had been diagnosed with bipolar disorder. Castro also testified that, early in 2016, he had had Dequan examined for competency to stand trial in his pending cases, and Dequan was found competent to stand trial. The trial court admitted a copy of the report finding Dequan competent. The trial court also stated that it saw "no further need to have another competency examination" of Dequan because Dequan had already been found competent and the court's opinion was "going to be that he is competent to testify based upon this report that has been presented."

         The next morning, defense counsel again raised the question of Dequan's competency as a witness and moved for a mistrial to "get the [mental health] records that we need to effectively deal with this and perhaps have a pretrial determination if [Dequan's] competency returns." Defense counsel also orally requested a three-day continuance to allow time to obtain and review Dequan's mental health records, and counsel requested "wide latitude" in conducting cross-examination of Dequan on these issues. After hearing further testimony from Castro outside the presence of the jury concerning Dequan's competency and his behavior when he was on and off his medication, as well as testimony from Dequan's mother concerning his mental health history, the trial court denied appellant's motion for mistrial and motion for continuance. The trial court granted the request for wide latitude on cross-examination, and defense counsel was able to question Dequan in front of the jury concerning his diagnoses, his medications, the fact that he was not taking his medications at the time of the shooting, and the fact that he had consumed codeine on the day he spoke with appellant about the shooting.

         On March 22, 2015, two days after the shooting, Harris County Sheriff's Office Deputy R. Burgess was dispatched to a daycare center located next to the Haverstock Hills apartment complex concerning a silver truck that needed to be towed from the location. Burgess was not involved in conducting an inventory search or any processing of the truck, but he ensured that the truck was towed to a lot owned by the Harris County Sheriff's Office. Burgess identified a picture of the truck that he had towed to the Sheriff's Office lot. This truck was the same truck that Duke Catalon identified as having been present at Arbor Court on the evening of the shooting and that Dequan Jackson identified as having been driven by appellant around the time of the shooting.

         During the inventory search of the truck, officers recovered, among other things, a cigarette butt and a McDonald's receipt dated March 21, 2015. Officers also dusted and swabbed various surfaces of the truck in the hope of recovering fingerprints or a DNA profile. Deputy D. Payavla compared appellant's known fingerprint to a fingerprint observed on a seatbelt buckle of the truck and concluded that the fingerprints matched. Dustin Foley, a DNA analyst with the Harris County Institute of Forensic Sciences, testified that the swab of the interior passenger door handle of the truck had a DNA profile with a major and minor contributor to the mixture, and appellant could not be excluded as a possible major contributor. Appellant also could not be excluded as the major contributor to a DNA mixture found on a swab of the passenger seat. Additionally, appellant could not be excluded as the sole contributor of the DNA profile found on the cigarette butt recovered from the truck.

         Ryan Hookano, also with the Harris County Institute of Forensic Sciences, examined the cartridge casings and bullet fragments recovered from Edwards's apartment and from the complainants' autopsies. He testified that of the six cartridge casings recovered from Edwards's apartment, five were fired from the same firearm, a nine millimeter semiautomatic firearm. The remaining cartridge casing recovered from the apartment was also fired from a nine millimeter semiautomatic firearm, but upon examining the mark that the firing pin made on the cartridge, Hookano determined that this casing was fired from a different handgun.

         Hookano also examined the bullet fragments recovered during the complainants' autopsies. The fragments recovered from the autopsies of Paynes and Kiara Jackson were both consistent with being from "the .38 caliber family" and fired from a nine millimeter semiautomatic firearm, but two of the fragments recovered during Edwards's autopsy were from "the .32 caliber family" and were consistent with being fired from a revolver. Hookano stated that those two fragments recovered from Edwards's autopsy could not have been fired from the firearms used to shoot Paynes and Jackson. Three other fragments recovered during Edwards's autopsy were from "the .38 caliber family, " but had different types of markings from the fragments recovered from the autopsies of Paynes and Jackson. Hookano thus concluded that it appeared that three different firearms were used during this shooting. No firearms were recovered in this case, so Hookano could not compare the cartridge casings recovered from the apartment to casings fired from a known handgun.

         Appellant was indicted for capital murder, specifically, for causing the deaths of three individuals during the same criminal transaction. The jury charge included an instruction on the law of parties. Appellant requested that the trial court also include an instruction on the lesser-included offense of murder, but the court denied this instruction. The jury found appellant guilty of the charged offense of capital murder. Because appellant was seventeen years old at the time of the offense and the State did not seek the death penalty, appellant's punishment was automatically assessed at confinement for life with the possibility of parole after forty years. This appeal followed.

         Effective Cross-Examination of Witness

         In his first issue, appellant contends that the trial court erred when it denied his motion for mistrial, made when defense counsel learned during trial that Dequan Jackson had a history of mental illness, because counsel was unable to effectively cross-examine Dequan regarding his mental health history.

         A. Standard of Review and Governing Law

         "A mistrial is the trial court's remedy for improper conduct that is 'so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). Only in extreme circumstances, when the prejudice from the improper conduct is incurable, will a mistrial be required. Id.; Simpson v. State, 119 S.W.3d 262, 272 (Tex.Crim.App. 2003) ("Mistrial is appropriate for only 'highly prejudicial and incurable errors.'"). Whether an error requires a mistrial must be determined by the particular facts of the case. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009). We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Hawkins, 135 S.W.3d at 77. We view the evidence in the light most favorable to the trial ...

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