Opposition Brief — Billy John Bell, Petitioner v. Texas

1

No. 20-669

In the

Supreme Court of the United States

BILLY JOHN BELL,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE SIXTH JUDICIAL DISTRICT OF

TEXAS, AT TEXARKANA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Jeffrey W. Shell, Attorney Pro Tem

Rockwall County District Attorney Ofc.

Rockwall County Courthouse

1111 E. Yellowjacket Lane, Suite 201

Rockwall, TX 75087-4901

(214) 244-8480

jshell@rockwallcountytexas.com

jws0566@yahoo.com

COUNSEL OF RECORD

February 10, 2021

Gary D. Young, County-District Atty.

Lamar County-District Attorney’s Ofc.

Lamar County Courthouse

119 North Main Street

Paris, TX 75460

(903) 737-2458

gyoung@co.lamar.tx.us

2

QUESTION PRESENTED

THE FACTUAL CIRCUMSTANCES OF BELL’S CASE DO NOT INVOLVE

“MATERIALLY EXCULPATORY” EVIDENCE UNDER BRADY AND DO NOT

JUSTIFY A DEPARTURE FROM THE DEFENDANT’S BURDEN OF SHOWING

BAD FAITH UNDER FISHER, YOUNGBLOOD OR TROMBETTA BECAUSE THE

DISPUTED EVIDENCE WAS, AT BEST, “POTENTIALLY USEFUL” AND THE

TEXAS APPELLATE COURT REASONABLY CONCLUDED THAT THERE WAS

NO FINDING IN THE TRIAL COURT, AND NO EVIDENCE IN THIS APPELLATE

RECORD, THAT THE GOVERNMENT WAS AWARE OF THE CONTENTS OF THE

DISPUTED EVIDENCE (CPS RECORDS) BEFORE THEY WERE DESTROYED,

OR THAT ANY EXCULPATORY VALUE OF THE RECORDS WAS APPARENT

BEFORE THEY WERE DESTROYED UNDER A DOCUMENT RETENTION

SCHEDULE.

3

TABLE OF CONTENTS

PAGE:

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

REASONS TO DENY THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

THE FACTUAL CIRCUMSTANCES OF BELL’S CASE DO NOT

INVOLVE “MATERIALLY EXCULPATORY” EVIDENCE

UNDER BRADY AND DO NOT JUSTIFY A DEPARTURE

FROM THE DEFENDANT’S BURDEN OF SHOWING BAD

FAITH UNDER FISHER, YOUNGBLOOD OR TROMBETTA

BECAUSE THE DISPUTED EVIDENCE WAS, AT BEST,

“POTENTIALLY USEFUL” AND THE TEXAS APPELLATE

COURT REASONABLY CONCLUDED THAT THERE WAS NO

FINDING IN THE TRIAL COURT, AND NO EVIDENCE IN

THIS APPELLATE RECORD, THAT THE GOVERNMENT WAS

AWARE OF THE CONTENTS OF THE DISPUTED EVIDENCE

(CPS RECORDS) BEFORE THEY WERE DESTROYED, OR

THAT ANY EXCULPATORY VALUE OF THE RECORDS WAS

APPARENT BEFORE THEY WERE DESTROYED UNDER A

DOCUMENT RETENTION SCHEDULE.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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4

CASES

TABLE OF AUTHORITIES

Arizona v. Youngblood,

488 U.S. 51, 102 L.Ed.2d 281,

109 S.Ct. 333 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . .

PAGE

passim

Brady v. Maryland,

373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed2nd

215 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5, 6, 7, 9

California v. Trombetta,

467 U.S. 479, 104 S.Ct. 2528,

81 L.Ed 2d 413 (1984) . . . . . . . . . . . . . . . . . . . . . . . . .

Ex Parte Napper,

322 S.W.3d 202, 230 (Tex. Crim. App. 2010) . . . . . . .

passim

8, 9

Fisher v. Illinois,

540 U.S. 544, 124 S.Ct. 1200,

157 L.Ed.2d 1060 (2004) . . . . . . . . . . . . . . . . . . . . . . .

Little v. State,

991 S.W.2d 804, 866 (Tex.Crim.App. 1999) . . . . . . . .

Napue v. Illinois,

360 U.S. 264, 269 (1959) . . . . . . . . . . . . . . . . . . . . . .

6, 9

6, 7

9

State v. Bell,

No. 06-19-00139-CR, 2020 Tex. App. LEXIS 227

2020 WL 111304 (Tex. App. –Texarkana (Jan. 10, 2020,

pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

State v. Morales,

232 Conn. 707, 722-727, 657 A.2d 585 (1995) . . . . .

United States v. Femia,

9 F.3d 990, 993 (1ST Cir. 1993) . . . . . . . . . . . . . . . . .

United States v. Gomez,

191 F3d 1214, 1218 (10th Cir. 1999) . . . . . . . . . . . . .

5

10

6, 7

6, 7

United States v. Valenzuela-Bernal,

458 U.S. 858, 870, 102 S.Ct. 3440,

73 L.Ed2d 1193 (1982) . . . . . . . . . . . . . . . . . . . . . . . .

9

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INTRODUCTION

In 2006, C.M. was sixteen years old and lived with her mother in Paris, Texas in a house

next door to Billy John Bell (Bell), who was her step-grandfather. See App, 4a. In November of

2006, C.M. called the police and said that she did not feel safe at home alone because she had

“sexual issues” with Bell. See App, 4a. About one week after, C.M. moved to Dallas, where a

representative from Child Protective Services (CPS) asked C.M. about the allegations against

Bell. See App, 4a. The CPS representative recorded the interview, but “C.M. did not say

anything.” See App, 4a. After the interview, C.M. did not speak to law enforcement, and the case

was not prosecuted by the State of Texas (the State), at that time. See App, 5a.

In 2016, after a delayed outcry, a grand jury in Texas returned an indictment that named

C.M. as the victim and charged Bell with three counts of aggravated sexual assault of a child and

one count of indecency with a child. See App, 2a. Pre-trial, Bell issued a subpoena to CPS seeking

records about C.M.’s allegations in 2006 and, when CPS could not produce any records from its

investigation, Bell moved to dismiss the indictment on due-process grounds. See App, 4a. After

a hearing, the trial court granted Bell’s motion to dismiss (App, 6a) and entered findings of fact

and conclusions of law. See App, 6a-8a.

On appeal, the State contended that the trial court erred because Bell did not show that the

State acted in bad faith. See App, 3a. In agreement, the intermediate Court of Appeals reversed

the trial court’s order dismissing the indictment and remanded for further proceedings. See State

v. Bell, No. 06-19-00139-CR, 2020 Tex. App. LEXIS 227, 2020 WL 111304 (Tex. App.—

Texarkana (Jan. 10, 2020, pet. denied) (mem. op., not designated for publication). The Court of

Appeals denied Bell’s motion for rehearing, and the Texas Court of Criminal Appeals denied his

petition for review.

By filing his petition for writ of certiorari, Bell now seeks review in this Court. On January

11th, this Court requested a response, and the State respectfully submits this brief in opposition to

Bell’s petition for writ of certiorari.

STATEMENT OF THE CASE

At no time during the pendency of the factual allegations against Bell did the

State destroy the CPS records in a calculated effort to circumvent the requirements

of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Rather,

Bell’s case is one in which the government no longer possessed the disputed evidence,

and is governed by Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct.

333 (1988) and California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct.

2528 (1984).

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REASONS TO DENY THE PETITION

I.

The factual circumstances of Bell’s case do not involve “materially

exculpatory” evidence under Brady and do not justify a departure from

the defendant’s burden of showing bad faith under Fisher, Youngblood

or Trombetta because the disputed evidence was, at best, “potentially

useful” and the Texas appellate court reasonably concluded that there

was no finding in the trial court, and no evidence in this appellate

record, that the government was aware of the contents of the disputed

evidence (CPS records) before they were destroyed, or that any

exculpatory value of the records was apparent before they were

destroyed under a document retention schedule.

A.

Due Process: Constitutionally Guaranteed Access to Evidence.

Under the Due Process Clause of the Fourteenth Amendment, criminal

prosecutions must comport with prevailing notions of fundamental fairness. See

California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 118 L.Ed.2d 413 (1984).

This Court has long interpreted this standard of fairness to require that criminal

defendants be afforded a meaningful opportunity to present a complete defense. See

id. To safeguard that right, this Court has developed “what might loosely be called

the area of constitutionally guaranteed access to evidence.” See id.

This Court’s jurisprudence divides cases involving nondisclosure of evidence

into two distinct areas: (1) Brady and its progeny address exculpatory evidence still

in the government’s possession, and (2) Youngblood and Trombetta “govern cases in

which the government no longer possesses the disputed evidence.” See United States

v. Gomez, 191 F.3d 1214, 1218 (10th Cir. 1999); United States v. Femia, 9 F.3d 990,

993 (1st Cir. 1993); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

1.

The Disputed Evidence in Bell’s Case Was No Longer in the

Government’s Possession.

“The Due Process Clause of the Fourteenth Amendment, as interpreted in

Brady, makes the good or bad faith of the State irrelevant when the State fails to

disclose to the defendant material exculpatory evidence.” See Youngblood, 488 U.S.

at 57. But, the Due Process Clause requires a different result when dealing “with the

failure of the State to preserve evidentiary material of which no more can be said

than that it could have been subjected to tests, the results of which might have

exonerated the defendant.” See id.

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Unquestionably here, Bell’s case involved the failure of the State to preserve

evidentiary material, as the trial court found that “the records from 2006 had been

retained for five years in the CPS system and then destroyed in conformity with the

CPS retention schedule.” See App, 7a (finding of fact # 12). So, the disputed evidence

was no longer in the government’s possession.

2.

Bell’s Case Is Governed by Youngblood and Trombetta.

Because the State no longer possesses the disputed evidence (CPS records),

Bell’s case belongs in the area of jurisprudence that is governed by Youngblood and

Trombetta. See Gomez, 191 F.3d at 1218; Femia, 9 F.3d at 993; Little, 991 S.W.2d at

866.

a.

Trombetta: The Due Process Clause Did Not Require Preservation of

Breath Samples.

In Trombetta, the question was raised as to whether the Fourteenth

Amendment demanded that the State preserve potentially exculpatory evidence on

behalf of defendants. See Trombetta, 467 U.S. at 480. In particular, the question

presented was whether the Due Process Clause required law enforcement agencies to

preserve breath samples of suspected drunken drivers in order for the results of

breath-analysis tests to be admissible in criminal prosecutions. See id at 481.

Factually, the respondents were stopped on suspicion of drunken driving on

California highways, and each respondent submitted to an Intoxilyzer test. See id at

482. Pre-trial, each respondent filed a motion to suppress the Intoxilyzer test results

on the ground that the arresting officers had failed to preserve samples of

respondents’ breath. See id. Although preservation of breath samples was

technically feasible, California law enforcement officers did not ordinarily preserve

breath samples, and made no effort to do so. See id at 482-83. All of respondents’

motions to suppress were denied, and were convicted. See id at 483. The California

Court of Appeal ruled in favor of respondents by granting new trials and by ordering

that the Intoxilyzer results not be admitted as evidence against the other two

respondents. See id at 484. The State unsuccessfully petitioned for certiorari in the

California Supreme Court. See id. This Court granted certiorari, see id, and reversed

for the following reasons:

(1)

To begin with, California authorities did not destroy respondents’ breath

samples in a calculated effort to circumvent the disclosure requirements established

by Brady v. Maryland and its progeny. See Trombetta, 467 U.S. at 488. In failing to

preserve breath samples for respondents, the officers here were acting “in good faith

and in accord with their normal practice.” See id. The record contained no allegation

of official animus towards respondents or of a conscious effort to suppress exculpatory

evidence. See id.

(2)

In Trombetta, this Court further held that to meet a standard of

“constitutional materiality,” evidence must both possess an exculpatory value that

was apparent before the evidence was destroyed, and be of such a nature that the

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defendant would be unable to obtain comparable evidence by other reasonably

available means. See id at 489. This Court reasoned that although the preservation

of breath samples might conceivably have contributed to respondents’ defenses, a

dispassionate review of the Intoxilyzer and the California testing procedures could

only lead one to conclude that the chances were extremely low that preserved samples

would have been exculpatory. See id.

(3)

Finally, this Court held in Trombetta that even if one were to assume

that the Intoxilyzer results were inaccurate and that breath samples might therefore

have been exculpatory, it did not follow that respondents were without alternative

means of demonstrating their innocence. See id at 490. There were only a limited

number of ways in which an Intoxilyzer might malfunction, and the respondents

could raise these issues on cross-examination. See id; see also Ex parte Napper, 322

S.W. 3d 202, 230 (Tex. Crim. App. 2010).

b.

Youngblood: Unless a Criminal Defendant Can Show Bad Faith,

Failure to Preserve Potentially Useful Evidence Does Not Constitute a Denial of Due

Process.

In Youngblood, the State of Arizona indicted Larry Youngblood on charges of

child molestation, sexual assault, and kidnaping. See Youngblood, 488 U.S. at 52,

53. The jury found respondent guilty as charged, but the Arizona Court of Appeals

reversed the judgment of conviction. See id at 54. The Supreme Court of Arizona

denied the State’s petition for review. See id at 55. This Court granted certiorari,

see id, to consider the extent to which the Due Process Clause of the Fourteenth

Amendment required the State to preserve evidentiary material that might be useful

to a criminal defendant. See id at 52.

In Youngblood, this Court held that the Due Process Clause required a

different result when dealing with the failure of the State to preserve evidentiary

material of which no more can be said than that it could have been subjected to tests,

the results of which might have exonerated the defendant. See id at 57. Part of the

reason for the difference in treatment was found in the observation by this Court in

Trombetta that “[w]henever potentially exculpatory evidence is permanently lost,

courts face the treacherous task of divining the import of materials whose contents

are unknown and, very often, disputed.” See id at 57-58. Part of it stems from this

Court’s unwillingness to read the “fundamental fairness” requirement of the Due

Process Clause as imposing on the police an undifferentiated and absolute duty to

retain and to preserve all material that might be of conceivable evidentiary

significance in a particular prosecution. See id at 58.

In Youngblood, this Court reasoned that requiring a defendant to show bad

faith on the part of the police both limited the extent of the police’s obligation to

preserve evidence to reasonable bounds and confined it to that class of cases where

the interests of justice most clearly require it, i.e., those cases in which the police

themselves by their conduct indicate that the evidence could form a basis for

exonerating the defendant. See id. Therefore, this Court held that “unless a criminal

9

defendant can show bad faith on the part of the police, failure to preserve potentially

useful evidence does not constitute a denial of due process of law.” See id. Finally,

this Court mentioned that “[t]he presence or absence of bad faith by the police for

purposes of the Due Process Clause must necessarily turn on the police’s knowledge

of the exculpatory value of the evidence at the time it was lost or destroyed.” See id

at 56, n. (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)); see also Napper, 322

S.W.3d at 230.

c.

After Youngblood, this Court Decided Fisher v. Illinois, 540 U.S. 544,

124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004).

In Fisher the Appellate Court of Illinois held that the Fourteenth

Amendment’s Due Process Clause required the dismissal of criminal charges because

the police, acting in good faith and according to normal police procedures, destroyed

evidence that respondent had requested more than 10 years earlier in a discovery

motion. See Fisher, 540 U.S. at 545. In Fisher, the State of Illinois contended that

such a result was foreclosed by the decision in Youngblood and, in agreement, this

Court granted the petition for certiorari and reversed the judgment of the Appellate

Court. See id.

In Fisher, this Court resolved that the substance seized from the respondent

was plainly the sort of “potentially useful evidence” referred to in Youngblood, not the

material exculpatory evidence addressed in Brady. See Fisher, 540 U.S. at 548. In

Fisher, this Court explained that the applicability of the bad-faith requirement in

Youngblood depended not on the centrality of the contested evidence to the

prosecution’s case or the defendant’s defense, but on the distinction between

“material exculpatory” evidence and “potentially useful” evidence. See id at 549. In

Fisher, the destroyed substance was, at best, “potentially useful” evidence; and

therefore, the bad-faith requirement in Youngblood applied. See Fisher, 540 U.S. at

549; see also Napper, 322 S.W.3d at 230-31.

B.

Bell’s Case Does Not Justify a Departure from the Bad-Faith

Requirement.

1.

Bell’s Case Does Not Justify a Departure for Several Reasons.

In his petition, Bell contended that the Fisher reasoning “would place the

destroyed evidence at issue here in a category far removed from the fifth lab test on

an already confirmed controlled substance.”

P. 13.

First, however, Bell’s

characterization of “far removed” does not justify a further revision and/or a different

clarification of “potentially useful” evidence because courts would then “face the

treacherous task of divining the import of materials whose contents are unknown

and, very often, disputed.” See Youngblood, 488 U.S. at 58; Trombetta, 467 U.S. at

486 (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 870, 102 S.Ct. 3440, 73

L.Ed.2d 1193 (1982)).

Second, this Court has been unwilling to read the “fundamental fairness”

requirement of the Due Process Clause as imposing on the police an undifferentiated

10

and absolute duty to retain and to preserve all material that might be of conceivable

evidentiary significance in a particular prosecution. See Youngblood, 488 U.S. at 58.

Third, as was the case in Trombetta, the appellate record here contained no

evidence of official animus towards Bell, or of a conscious effort to suppress

exculpatory evidence. See Trombetta, 467 U.S. at 488. Finally, Bell’s petition heavily

emphasized CPS’s finding of a “reason not to believe” the victim (C.M.) along with the

trial court’s conclusion of law regarding the “reason not to believe.” See App, 7a-8a

(conclusions of law # 5, # 6 and # 13).

However, Bell could still raise that issue on cross-examination. See id at 490

(there were only a limited number of ways in which an Intoxilyzer might malfunction,

and the respondents could raise these issues on cross-examination.). Here, the

intermediate appellate court reasoned that Bell was able to solicit testimony from a

live witness during the pre-trial hearing that CPS’s destruction of its records after

five years indicated that it had made a “reason not to believe” finding. See App, 14a.

Thus, on remand to the trial court, Bell would still be able to subpoena that witness

at the time of trial or offer that testimony from the hearing on March 19, 2019. Either

way, Bell would be able to obtain comparable evidence of CPS’s finding “by other

means.” See App, 14a (citing Trombetta, 467 U.S. at 488-89).

Despite Bell’s “far removed” characterization, the evidence at issue here

correctly fell in the category of “potentially useful” evidence and, therefore,

Youngblood’s bad-faith requirement applied. See Fisher, 540 U.S. at 549. Because a

further revision and/or a different clarification of “potentially useful” evidence is

unwarranted, Bell’s case does not justify a departure from the bad-faith requirement,

and this Court should deny the petition.

2.

This Court Has Never Adopted the “Totality of Circumstances” Test,

Leaving that Approach to Courts Interpreting State Constitutions.

In his petition, Bell also suggested a different “methodology” and alleged that

“an analysis of the totality of the circumstances is appropriate.” P. 13. However, this

Court has never adopted the “totality of the circumstances” test, leaving that

approach to state courts interpreting their respective Constitutions. See, e.g., State

v. Morales, 232 Conn. 707, 722-727, 657 A.2d 585 (1995). Because the adoption of

any “totality of the circumstances” test is best left to the decisions by state courts,

this Court should deny the petition.

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CONCLUSION

The petition for writ of certiorari should be DENIED.

Respectfully submitted,

Gary D. Young, County & District Attorney

Lamar County and District Attorney’s Office

119 North Main Street

Paris, TX 75460

(903) 737-2458

gyoung@co.lamar.tx.us

and

Jeffrey W. Shell, Attorney Pro Tem

State of Texas Bar No. 18191660

Rockwall County District Attorney’s Office

1111 E. Yellowjacket Lane, Suite 201

Rockwall, TX 75087-4901

(214) 244-8480

jshell@rockwallcountytexas.com

jws0566@yahoo.com

COUNSEL OF RECORD*

*As submitted, Jeffrey W. Shell’s application for admission awaits approval.