Anthony Wayne Brooks v. the State of Texas

NO. 12-22-00174-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANTHONY WAYNE BROOKS, § APPEAL FROM THE 2ND
APPELLANT
§ JUDICIAL DISTRICT COURT
V.

THE STATE OF TEXAS, § CHEROKEE COUNTY, TEXAS
APPELLEE

MEMORANDUM OPINION
Appellant, Anthony Wayne Brooks, appeals his conviction for burglary of a habitation. In
three issues, he argues that the trial court erred by denying his motion for new trial without a
hearing, disallowing him from questioning a witness about an instance of past conduct, and
denying his motion for mistrial. We affirm.

BACKGROUND
On September 23, 2021, Aaron Knott (accompanied by his toddler son) was placing deer
feed on his leased property located in Cherokee County, Texas, when he noticed a suspicious
truck parked at a house across the county road. His family was familiar with the owner and
Knott knew generally that the house was unoccupied. The truck was backed up under the
carport, and Knott witnessed men carrying items out of the house, including an air conditioning
unit, and putting them into the truck. He also noticed a washing machine already in the back of
the truck. Knott decided to approach the house in his own vehicle to investigate further. On the
way there, he passed the suspicious truck traveling in the opposite direction and noticed that the
driver was one of the men he saw carrying items from the house to the truck. Knott followed the
truck and called 911 to provide the license plate information, but discontinued following because
the truck began erratically braking and he did not wish to endanger his son.
Deputy Hunter Goff of the Cherokee County Sheriff’s Department responded to the call
and took photographs of the scene. He observed that a washing machine appeared to be missing,
water was dripping from the hose (as though it was recently disconnected), and there were drag
marks in the dust on the floor. In the living room, there was a rectangular hole in the wall, which
appeared to previously hold an air conditioning unit. Elsewhere in the room, Goff found broken
and removed pieces of trim torn from the wall around the air conditioner. Cabinets, drawers, and
doors were open throughout the home. Goff also observed fresh tire tracks in the grass going all
the way around the house. Finally, Goff and Dr. Lyle Brown, the homeowner, walked through
the home and inventoried the items Brown identified as missing.
Detective Todd Driver of the Cherokee County Sheriff’s Department further investigated
the incident. During the investigation, Knott identified Appellant from a photographic lineup as
both one of the men carrying items to the truck and the driver of the truck. Thereafter, Appellant
was indicted for the offense of burglary of a habitation. 1 Appellant pleaded “not guilty,” and this
matter proceeded to a jury trial.
Brown testified that he acquired the house and land in 2014 and maintained insurance
thereon. He stayed at the residence at least monthly and kept some food items there. The house
had electricity and water service consistently since Brown purchased it and had power and water
service on the day of the burglary. When he went to the property on the night of the offense, he
saw that several items were missing, including a washing machine, an air conditioner, and two
oil paintings. The house lacked electricity and was in disarray, with doors, drawers, and cabinets
open that Brown had not left open. Brown noticed when he returned days later that the outdoor
electrical meter was pulled down and hung on its hinges, which disconnected the power to the
house. When he pushed the meter back up, the power returned. Brown testified that pulling
down the meter took some effort and he believed it could not have fallen down spontaneously.
Brown stated he did not know Appellant, and never gave him consent to enter the house or take
any items.
The jury found Appellant “guilty” of the offense and imposed a sentence of twelve years’
imprisonment. Thereafter, Appellant moved for a new trial, but the motion was denied by
operation of law. This appeal followed.

1
TEX. PENAL CODE ANN. § 30.02 (West 2023).

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HEARING ON MOTION FOR NEW TRIAL
In his first issue, Appellant alleges the trial court erred by failing to hold a hearing on his
motion for new trial.
The purpose of a hearing on a motion for new trial is to decide whether the cause should
be retried and to prepare a record for presenting issues on appeal in the event the motion is
denied. See Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). The opportunity to
prepare a record for appellate review makes a hearing on a motion for new trial a critical stage,
but such a hearing is not an absolute right. Id. A hearing is not required when the matters raised
in the motion for new trial are determinable from the record. Hobbs v. State, 298 S.W.3d 193,
199 (Tex. Crim. App. 2009). To be entitled to a hearing, the motion for new trial must raise
matters which are not determinable from the record and establish the existence of reasonable
grounds showing that the defendant could be entitled to relief. Smith, 286 S.W.3d at 338-39. A
motion for new trial which raises matters not determinable from the record must also be
supported by an affidavit specifically setting out the factual basis for the claim. Hobbs, 298
S.W.3d at 200.
We review a trial court’s denial of a hearing on a motion for new trial for an abuse of
discretion and reverse only when the trial judge’s decision lies outside the zone of reasonable
disagreement. Id. Appellate review is limited to the trial judge’s determination of whether the
defendant raised grounds that are both undeterminable from the record and reasonable, meaning
they could entitle the defendant to relief. Smith, 286 S.W.3d at 340. This is because the trial
judge’s discretion extends only to deciding whether these two requirements are satisfied; if the
defendant’s motion and affidavit are sufficient, a hearing on the motion is mandatory. Id.
Appellant’s motion was not accompanied by an affidavit from either Appellant or any
other person. But Appellant expressly admits that his motion for new trial “set forth an issue that
was presented in part of record [sic] and thus was not required to be supported by affidavit[.]”
Appellant is correct that a motion for new trial need not be verified or supported by affidavit if
the allegations therein can be determined from the trial record. See Bitterman v. State, 195
S.W.3d 777, 779 (Tex. App.—Beaumont 2006, pet. ref’d). However, Texas law does not require
a hearing on a motion for new trial if the motion does not raise matters undeterminable from the
record. Hobbs, 298 S.W.3d at 200. Therefore, if we accept Appellant’s conclusion that his

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motion required no verification or affidavit in support, then he was not entitled to a hearing on
the motion, and the trial court did not err in denying same. See Smith, 286 S.W.3d at 340.
Even assuming arguendo that Appellant’s motion for new trial did raise matters not
determinable from the record, and therefore met the first criterion, the lack of verification or a
supporting affidavit is dispositive. “As a prerequisite to obtaining a hearing on a motion for new
trial, the motion must be supported by an affidavit, either of the accused or someone else
specifically showing the truth of the grounds of attack.” Crowell v. State, 642 S.W.3d 885, 889
(Tex. App.—Houston [14th Dist.] 2021, pet. denied) (citing Smith, 286 S.W.3d at 339). “A trial
court does not abuse its discretion if it denies a hearing on a timely motion for new trial that is
not supported by affidavits.” Medina v. State, No. 05-19-01116-CR, 2021 WL 247965, at *1
(Tex. App.—Dallas Jan. 26, 2021, pet. ref’d) (mem. op., not designated for publication) (citing
Klapesky v. State, 256 S.W.3d 442, 455 (Tex. App.—Austin 2008, pet. ref’d)).
In either case, because Appellant’s motion did not meet the criteria that would entitle him
to a hearing on his motion for new trial, the trial court did not abuse its discretion in denying
Appellant’s request for a hearing. See Hobbs, 298 S.W.3d at 200. We overrule Appellant’s first
issue.

CONFRONTATION CLAUSE AND IMPEACHMENT EVIDENCE
Appellant argues in his second issue that the trial court erroneously denied his
constitutional right to confrontation because it sustained the State’s objection to his impeaching a
witness with a specific instance of past conduct.
The Sixth Amendment guarantees a defendant the right to confront the witnesses against
him. U.S. CONST. AMEND. VI; Pointer v. Texas, 380 U.S. 400, 406 85.S. Ct. 1065, 13 L. Ed. 2d
923 (1965). The constitutional right of confrontation includes the right to cross-examine
witnesses to attack their general credibility or to show witnesses’ possible bias, self-interest, or
motives to testify. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); Carroll v.
State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). A trial court violates a defendant’s right of
confrontation if it improperly limits appropriate cross-examination. Carroll, 916 S.W.2d at 497.
But the trial court also has broad discretion to impose reasonable limits on cross-examination
based on concerns about, among other matters, harassment, prejudice, confusion of the issues,
the witnesses’ safety, or interrogation that is repetitive or only marginally relevant. Irby v. State,

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327 S.W.3d 138, 145 (Tex. Crim. App. 2010). We review a trial court’s decision to limit cross-
examination under an abuse of discretion standard. Billodeau v. State, 277 S.W.3d 34, 43 (Tex.
Crim. App. 2009). Specifically, we consider the evidentiary ruling in light of what was before
the trial court at the time the ruling was made, and uphold the trial court’s judgment if it lies
within the zone of reasonable disagreement. Rodgers v. State, 205 S.W.3d 525, 529 (Tex. Crim.
App. 2006).
Under Texas Rule of Evidence 404(a)(3), a defendant may always offer evidence of a
pertinent character trait—such as truthfulness—of any witness. See TEX. R. EVID. 404(a)(3).
But, under Rule 608, the witness’s general character for truthfulness may be shown only through
reputation or opinion testimony. See TEX. R. EVID. 608. A witness’s general character for
truthfulness or credibility may not be attacked by cross-examining him concerning specific prior
instances of dishonesty, and the Confrontation Clause does not confer a general right to impeach
the credibility of a witness through otherwise prohibited modes of cross-examination. Hammer,
296 S.W.3d at 562-63 (citing TEX. R. EVID. 608(b)); Reyna v. State, 168 S.W.3d 173, 182 (Tex.
Crim. App. 2005). However, the Confrontation Clause of the Sixth Amendment may require
admission of evidence that Rule 608(b) would otherwise bar. See Lopez v. State, 18 S.W.3d 220,
225 (Tex. Crim. App. 2000). In weighing whether evidence must be admitted under the
Confrontation Clause, the trial court maintains broad discretion and should balance the probative
value of the evidence sought to be introduced against potential risks of its admission, including
harassment, prejudice, confusion of the issues, endangering the witness, and the injection of
cumulative or collateral evidence. Id. at 222.
We first examine whether the disputed evidence was in fact inadmissible under Rule 608.
Appellant sought to question Driver in the jury’s presence about an alleged extramarital affair, in
which the other party was a family member of a decedent in an open murder investigation. The
State objected based on Rule 608(b); the trial court sustained the objection but permitted
Appellant to question Driver in a sealed and closed hearing. Appellant does not argue that the
excluded evidence would have shown Driver’s possible bias, self-interest, or motive(s) to testify.
Nor was the evidence related to a previous criminal conviction, such that the exception provided
by Rule 609 would apply. TEX. R. EVID. 608(b), 609. Attempting to impeach a witness’s
truthfulness by cross-examining him regarding an extramarital affair (the facts of which were
unrelated to the crime of which Appellant was accused) is precisely the type of questioning Rule

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608 “explicitly disavows.” Green v. State, No. 04-06-00733-CR, 2008 WL 441753, at *2 (Tex.
App.—San Antonio Feb. 20, 2008, pet. ref’d) (mem. op., not designated for publication) (citing
Casterline v. State, 736 S.W.2d 207, 212 (Tex. App.—Corpus Christi 1987, pet. ref’d)).
Because the evidence was inadmissible under Rule 608, we next examine whether the
trial court abused its discretion in failing to apply the “Confrontation Clause exception”—that is,
in determining that the probative value of the evidence did not outweigh the potential risks of its
admission. Appellant states that he sought to use this evidence to attack Driver’s “credibility,”
that is, his overall character for truthfulness. Appellant does not contend that Driver’s alleged
affair had any bearing on the crime of which Appellant was accused, nor any relation to any
defensive theory save that a testifying law enforcement officer was generally untrustworthy.
Rather, Appellant’s purpose for presenting this evidence appears to be general character
assassination of Driver, which Rule 608(b) prohibits. See Hammer, 296 S.W.3d at 563 (“Our
state evidentiary rules frown on unnecessary character assassination.”). Even if this evidence
was admitted, it had little, if any, probative value as it was factually entirely unrelated to either
the offense or any of Driver’s alleged behavior in investigating the case. Disallowing
interrogation that is only marginally relevant falls within the trial court’s discretion in limiting
cross-examination. Further, considering the nature of the alleged conduct, the potential for
harassment and undue prejudice to the testifying witness was great. Graham v. State, No. 08-
01-00291-CR, 2003 WL 1386929, at *4 (Tex. App.—El Paso Mar. 20, 2003, no pet.) (mem. op.,
not designated for publication) (citing Lopez, 18 S.W.3d at 226).
We conclude that the trial court’s ruling excluding evidence about Driver’s alleged
extramarital affair falls well within the zone of reasonable disagreement. See Rodgers, 205
S.W.3d at 529. Accordingly, we overrule Appellant’s second issue.

IMPROPER JURY ARGUMENT AND MOTION FOR MISTRIAL
Appellant contends in his third issue that the trial court erred by failing to grant his
motion for mistrial because the prosecutor made an improper jury argument in the State’s closing
argument during the guilt-innocence phase of trial.
Standard of Review and Applicable Law
A trial court’s denial of a mistrial is reviewed for abuse of discretion, and the trial court’s
ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330

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S.W.3d 253, 292 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to
the trial court’s ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Mistrial is
the appropriate remedy when error is so prejudicial that expenditure of further time and expense
would be futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is a remedy
intended for extreme circumstances when prejudice is incurable and less drastic alternatives have
been explored. Ocon, 284 S.W.3d at 884.
Proper jury argument (1) summarizes the evidence, (2) makes reasonable deductions
from the evidence, (3) responds to arguments of opposing counsel, or (4) pleads for law
enforcement. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). A
prosecuting attorney is permitted in argument to draw all inferences from the facts in evidence
which are reasonable, fair and legitimate, and offered in good faith. Cantu v. State, 939 S.W.2d
627, 633 (Tex. Crim. App. 1997). Improper jury argument is generally considered non-
constitutional error, and not grounds for reversal unless a substantial right is affected. See TEX.
R. APP. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998); State v.
Dudley, 223 S.W.3d 717, 728 (Tex. App.—Tyler 2007, no pet.).
To evaluate whether the trial court abused its discretion in denying a mistrial for
improper jury argument, courts balance (1) the severity of the misconduct (also defined as the
magnitude of the prejudicial effect of the prosecutor’s remarks), (2) the measures adopted to cure
the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the conviction).
Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011).
Analysis
During closing arguments in the guilt/innocence phase, counsel for Appellant argued that
the jury should find Appellant guilty not of burglary of a habitation, but the lesser included
offense of burglary of a building, because Brown’s house lacked working electricity at the time
of the offense. 2 Counsel for the State argued on rebuttal that Appellant should not be able to
argue that the house was not a habitation because it lacked electricity when he pulled down the
outdoor meter to shut off the electricity. Appellant objected that the State was arguing facts not

The Texas Penal Code defines “habitation” as “a structure or vehicle that is adapted for the overnight
2

accommodation of persons.” Id. § 30.01 (West 2023).

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in evidence, but the trial court overruled the objection. Appellant then moved for a mistrial,
which the court denied.
It is apparent from the record that the disputed portion of the prosecutor’s argument was
based on a reasonable and fair inference drawn from the totality of facts in evidence (particularly
Brown’s testimony), and we find nothing to suggest that the State offered the argument in bad
faith. See Cantu, 939 S.W.2d at 633. Further, the prosecutor’s comment was focused on
addressing and refuting defense counsel’s argument that the lack of electricity at the house
required the jury to convict Appellant only of a lesser included offense. And responding to the
arguments of opposing counsel is an appropriate area of jury argument. See Wesbrook, 29
S.W.3d at 115. We conclude that the prosecutor did not engage in improper jury argument, and
therefore, the trial court did not abuse its discretion by denying appellant’s motion for mistrial.
Even assuming for argument’s sake that the State’s argument on this point was improper,
it was not so prejudicial as to be one of those extreme circumstances which required a mistrial.
Any prejudicial effect of the prosecutor’s remark would have been slight, as the jury previously
heard Brown testify (without objection) that the power had been functional when last he visited
the home, there was no power the night of the burglary, and that human intervention would have
been required to disconnect the meter. See generally Taylor v. State, 109 S.W.3d 443, 449 n.25
(Tex. Crim. App. 2003) (no reversible error where same evidence or argument presented
elsewhere during trial without objection). And there was other, more direct record evidence
supporting Appellant’s conviction— an eyewitness identified Appellant as the person he saw
removing items from Brown’s house and driving away with those items. Moreover, lack of
functioning electricity is not dispositive of a trier of fact’s finding that a burglarized building was
a “habitation.” See, e.g., Tharp v. State, No. 12-13-00261-CR, 2014 WL 3662027, at *3 (Tex.
App.—Tyler July 23, 2014, no pet.) (mem. op., not designated for publication); Hicks v. State,
204 S.W.3d 505, 507 (Tex. App.—Amarillo 2006, no pet.) (citing Blankenship v. State, 780
S.W.2d 198, 209 (Tex. Crim. App. 1989) (op. on reh’g)); Hollander v. State, No. 09-05-448 CR,
2006 WL 2623279, at *2–3 (Tex. App.—Beaumont Sept. 13, 2006, pet. ref’d) (mem. op., not
designated for publication). Without the allegedly improper statement, there was still more than
sufficient evidence from which the jury could find beyond a reasonable doubt that the house was
adapted for the overnight accommodation of persons, and therefore find Appellant guilty of
burglary of a habitation. Thus, even if the prosecutor’s statement regarding the electricity

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constituted improper jury argument, that argument did not impact Appellant’s substantial rights
and the trial court did not abuse its discretion by denying appellant’s motion for mistrial.
Accordingly, we overrule Appellant’s third issue.

DISPOSITION
Having overruled each of Appellant’s three issues, we affirm the trial court’s judgment.

JAMES T. WORTHEN
Chief Justice
Opinion delivered July 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2023

NO. 12-22-00174-CR

ANTHONY WAYNE BROOKS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 2nd District Court
of Cherokee County, Texas (Tr.Ct.No. 21971)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this Court that there was no error in
the judgment.

It is therefore ORDERED, ADJUDGED, and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.