Opinion
NO. WR-86,219-01
01-25-2017
EX PARTE KEITH JOSEPH BROSSETTE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16,697-2001A IN THE 402ND DISTRICT COURT FROM WOOD 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 this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child by contact and sentenced to ninety-nine years' imprisonment. The Sixth Court of Appeals affirmed his conviction. Brossette v. State, 99 S.W.3d 277 (Tex. App. — Texarkana, Feb. 3, 2003).
Applicant contends that he was denied due process and a fair trial because the prosecution failed to disclose exculpatory evidence to the defense, presented false testimony at trial, and failed to correct the false impression left by such testimony. Specifically, Applicant presents a copy of a video recorded interview of the complainant by CPS workers in which she denies having been inappropriately touched or sexually abused. Applicant alleges that this video was not provided to the defense pursuant to pre-trial discovery and Brady requests, and was only recently provided to a defense investigator by the Wood County District Attorney's Office. In addition, Applicant alleges that one of the CPS workers depicted in the video interviewing the complainant testified at trial that the complainant had unequivocally described the sexual abuse by Applicant to her during an unrecorded interview, and did not acknowledge the existence of the video or the fact that the complainant had ever denied being abused by Applicant. Applicant alleges that the video recorded interview was material evidence which could have been used to impeach the testimony of the CPS worker(s) and the complainant's testimony at trial.
Applicant has alleged facts that, if true, might entitle to relief. Brady v. Maryland, 373 U.S. 83 (1963); Ex parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996); Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). 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 the State to respond to Applicant's claims of failure to disclose favorable evidence, and presentation of false testimony. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
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 Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact as to whether the video depicting the interview of the complainant by CPS workers in which she denied having been abused was disclosed to the defense prior to trial, and if not, why not. The trial court shall make findings as to whether CPS workers testified falsely at Applicant's trial as to whether the complainant had been unequivocal in her assertion that she had been sexually abused by Applicant, and as to the existence of the video recording. The trial court shall make findings of fact and conclusions of law as to whether the State knowingly withheld material, favorable evidence from the defense, whether the State knowingly or unknowingly presented false testimony at trial, and if so, whether any effort was made to correct such false testimony. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application 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 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: January 25, 2017
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