COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00313-CR

ROBERT O’BRYAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

TRIAL COURT NO. CR-2013-08057-A

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DISSENTING OPINION

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Respectfully, I cannot join the thoughtful majority. I do not understand the 

majority’s hypothesis that in Texas, imputed knowledge may only expand the 

authority of the prosecution but may not protect the constitutional rights of the 

accused.

The obligations stemming from imputed knowledge within the prosecution 

team have long been recognized in Texas courts. In 1989, in an early 
2

exoneration case, the Texas Court of Criminal Appeals concluded that Randall 

Dale Adams had been convicted of capital murder on perjured testimony.1 The 

Texas Court of Criminal Appeals explained,

The issue of Miller’s perjurious testimony regarding her 

identification of the applicant involves both the suppression of 

evidence favorable to the accused and the State’s knowing use of 

false testimony. During the applicant’s trial, after the three rebuttal 

witnesses had testified and Miller had identified the applicant, the 

State closed. The applicant’s attorney then belatedly requested a 

hearing outside the presence of the jury in order to determine 

whether Miller’s identification testimony had been tainted by an 

improper photo spread or lineup. The trial judge observed that the 

request was untimely because Miller had already identified the 

applicant. Nevertheless, he permitted the hearing to allow the 

applicant to perfect a bill of exception. It was during this hearing that 

Miller perjured herself by testifying falsely that she had identified the 

applicant in a lineup and that no one had influenced her in her 

identification. After the hearing the trial judge commented that he 

considered the issue of a tainted identification to have been waived 

by the defense, but emphasized that the defense had the right to go 

into it in front of the jury. In this regard it must be remembered that 

at this time the applicant had no knowledge of the truth about the 

identification or the prior inconsistent statement.

Following his comments to counsel, the judge concluded[] that 

Miller’s identification testimony “was not influenced either by the 

witness having seen photographs of the defendant or by the witness 

having viewed the defendant in a lineup of people conducted by law 

enforcement authorities.” He further stated: “The Court finds there 

is no taint, that the identification of the witnesses in court is based 

solely on the witnesses having viewed the defendant at the time and 

place where the offense was committed as alleged in the 

indictment.” He also comment[ed] that irrespective of his factual 

findings a waiver of a defect in the identification had occurred.

Mulder testified that he did not know Miller had identified 

someone other than the appellant in the lineup, nor did he know that 

 

1Ex parte Adams, 768 S.W.2d 281, 290–91 (Tex. Crim. App. 1989).
3

the officer in charge of the lineup told her who she should have 

identified. However, this is insufficient to remove the taint of the 

prosecution’s knowing use of perjured testimony. As previously 

noted, the United States Supreme Court has expressly recognized 

that when confronted with perjurious testimony the prosecutor has a 

duty to correct it. Further, whether the prosecutor had actual 

knowledge of the falsity of the testimony is irrelevant. If the 

prosecutor should have known is sufficient. Thus, the Supreme 

Court has endorsed the imputation of knowledge, at least from one 

prosecutor to another. However, the extent of this imputation of 

knowledge has been expanded. In Williams v. Griswald, the court of 

appeals stated: “It is of no consequence that the facts pointed to 

may support only knowledge of the police because such knowledge 

will be imputed to state prosecutors.” In United States v. Antone, the 

court of appeals observed that it has “declined to draw a distinction 

between different agencies under the same government, focusing 

instead upon the ‘prosecution team’ which includes both 

investigative and prosecutorial personnel.” 

The Dallas police officer that “helped” Miller was by her own 

admission in charge of the lineup. Consequently, as a part of the 

investigating team his knowledge of Miller’s lack of identification at 

the lineup and his assistance to her is imputed to Mulder. 

Consequently, when Miller testified that she had identified the 

applicant in a lineup Mulder had an obligation to correct the perjured 

testimony.2

The Adams court “declined to draw a distinction between different agencies 

under the same government, focusing instead upon the ‘prosecution team’ which 

includes both investigative and prosecutorial personnel.”

3

 

2

Id. at 291–92 (citations omitted).

3

Id. at 292; see also Ex parte Castellano, 863 S.W.2d 476, 484–85 (Tex.

Crim. App. 1993) (holding that peace officer who was not assigned to an arson 

case but who took it upon himself to assist and engage in perjury for private 

reasons was nevertheless acting under color of law and part of the prosecutorial 

team).
4

The imputed knowledge rule is still alive and well. In 2014, the Texas 

Court of Criminal Appeals stated,

In Moulton, the Supreme Court indicated that a Massiah

violation occurs only if the State “knowingly circumvented” the right 

to counsel. The court of appeals’s opinion suggests that a knowing 

circumvention did not occur because Midland law enforcement was 

unaware that appellant had counsel. Appellant’s position is that the 

knowledge of Ector County law enforcement should be imputed to 

Midland County law enforcement.

Appellant has the better of the argument. In Michigan v. 

Jackson, the Supreme Court held that the State is responsible, in 

the Sixth Amendment context, for the knowledge of all of its actors:

Sixth Amendment principles require that we impute the 

State’s knowledge from one state actor to another. For 

the Sixth Amendment concerns the confrontation 

between the State and the individual. One set of state 

actors (the police) may not claim ignorance of 

defendants’ unequivocal request for counsel to another 

state actor (the court). 

In so concluding, the Supreme Court cited and quoted from 

Moulton, a Massiah case. It is true that, in Montejo v. Louisiana, the 

Supreme Court overruled Jackson insofar as it imposed a 

prophylactic rule forbidding interrogation once the accused has 

requested counsel. But the Montejo decision expressly stated that it 

was not concerned with the substantive scope of the Sixth 

Amendment right to counsel, and in so saying it cited both Moulton

and Massiah. We do not agree with the court of appeals that the 

Supreme Court’s decision to overrule Jackson constituted an 

abandonment of the rule of imputing knowledge to the State.4

 

The majority is correct that, generally, the police may detain a person 

based on an entry in NCIC. But in the case now before this court, the Denton 

 

4Rubalcado v. State, 424 S.W.3d 560, 573–74 (Tex. Crim. App. 2014)

(citations omitted).
5

police department was aware that the car was not stolen and that there should 

be no NCIC entry reporting that it was stolen. No one knows why the stolen 

vehicle report was not properly withdrawn. But the knowledge of the Denton 

police department is imputed to Northlake police.5 Consequently, police had no 

reasonable suspicion to support their original detention of Appellant.

The majority appears to suggest a good faith exception to the warrant 

requirement when the police rely on NCIC. But Texas recognizes only the good 

faith exception found in the Texas Code of Criminal Procedure:

It is an exception to the provisions of Subsection (a) of this Article 

that the evidence was obtained by a law enforcement officer acting 

in objective good faith reliance upon a warrant issued by a neutral 

magistrate based on probable cause.6

In the case now before this court, there is no warrant, and there is no 

requirement that a neutral magistrate screen the information before it can be 

entered on NCIC. Under the facts of this case, good faith does not justify the 

unlawful detention of Appellant, nor does the NCIC entry that should have been 

withdrawn because the Denton police candidly explained that they knew the car 

had not been stolen, that it had been reported to them as stolen in error, and that 

the entry should have been withdrawn. The original detention of Appellant was 

unlawful.

 

5See id. at 574.

6

Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
6

For these reasons, I must respectfully dissent.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PUBLISH

DELIVERED: May 28, 2015