Brooks, Dywan Shenille

• Court: Court of Criminal Appeals of Texas
• Decided: July 26, 2017
• Docket: WR-84,462-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-84,462-05, 84,462-06, 84,462-07 & 84,462-08

EX PARTE DYWAN SHENILLE BROOKS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CR31009-B, CR31010-B, CR31011-B & CR31012-B IN THE 253RD DISTRICT COURT FROM LIBERTY COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of evading

arrest, tampering with evidence, and two counts of possession of a controlled substance. He was

sentenced to twenty years’ imprisonment on each count. The Ninth Court of Appeals affirmed his

convictions. Brooks v. State, Nos. 09-15-00290-CR, 09-15-00291-CR, 09-15-00292-CR & 09-15-

00293-CR (Tex. App.—Beaumont June 15, 2016) (not designated for publication).

Applicant contends, among other things, that trial counsel failed to subpoena video footage 2

from an Exxon gas station. He also contends that the State failed to disclose this video footage in

violation of Brady v. Maryland, 373 U.S. 83 (1963).

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Brady v.

Maryland, 373 U.S. 83 (1963). In these circumstances, additional facts are needed. As we held in

Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate

forum for findings of fact. The trial court shall order trial counsel and the prosecutor to respond to

Applicant’s claims. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07,

§ 3(d).

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether video footage

from an Exxon station exists, counsel was deficient for not subpoenaing this video footage, and

Applicant was prejudiced. The trial court shall also make findings and conclusions as to whether the

State possessed video footage from an Exxon station and failed to disclose it, and whether it was

favorable and material. The trial court shall also make any other findings and conclusions that it

deems relevant and appropriate to the disposition of Applicant’s claims for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues.

The issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall 3

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be

requested by the trial court and shall be obtained from this Court.

Filed: July 26, 2017 Do not publish