COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00530-CR
RONNIE LEON DABNEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 51,705-A
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MEMORANDUM OPINION 1
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Appellant Ronnie Leon Dabney was charged by indictment with
manufacturing methamphetamine in an amount of 400 grams or more. A jury
convicted him, and the trial court sentenced him to thirty years’ confinement. In
three points, Appellant contends that the trial court abused its discretion by
admitting evidence of an alleged extraneous offense during the guilt phase
1
See Tex. R. App. P. 47.4.
because (1) the State failed to give proper notice under rule 404(b) of the rules of
evidence or under the parties’ agreed pretrial order; (2) the State could not and
did not prove the alleged extraneous offense beyond a reasonable doubt; and (3)
the admission denied Appellant a fair trial and violated the Fourteenth
Amendment Due Process Clause. Appellant also contends that the trial
prosecutor’s conduct likewise denied him a fair trial and violated the Fourteenth
Amendment Due Process Clause. Because we hold that the trial court abused
its discretion by admitting the evidence absent proper notice under rule 404(b)
since it was not true rebuttal evidence and that the error harmed Appellant, we
reverse the trial court’s judgment and remand this case to the trial court for a new
trial.
Procedural History
Appellant was originally indicted on November 3, 2010, in cause number
50302-A. On November 1, 2011, the State filed a pretrial rule 609 notice of intent
to use, among other prior acts, a prior state-jail-felony conviction of possession of
methamphetamine “for impeachment and/or punishment.” Appellant was re-
indicted, and the pleadings, motions, and notices from the earlier cause number
were transferred to the new trial court cause number.
Approximately four months before trial, Appellant requested that the State
provide notice of any extraneous offenses it intended to offer in its case-in-chief.
Specifically, on May 24, 2012, Appellant filed a “Request for Notice of State’s
2
Intention to Use Evidence of Extraneous Offenses at Trial.” It specifically
requested,
[p]ursuant to Rule 404(b), notice, at least ten days prior to the
commencement of trial, by the State of its intent to introduce
evidence in its case in chief of any other crimes, wrongs, or acts
allegedly committed by Defendant, other than those alleged in the
Indictment or Information in this cause. Such notice to include for
each incident all discovery required to be produced by the State in
this Court’s discovery orders entered in this cause.
The trial court signed a pretrial order, which stated in pertinent part:
8. NOTICE OF EXTRANEOUS OFFENSES. The Prosecution
shall provide reasonable notice of any such extraneous offenses it
intends to introduce at either stage of the trial.
The prosecutor also signed the pretrial order, and, at a final pretrial hearing
on September 7, 2012, Appellant reminded the trial court that pretrial orders had
already been signed.
About three months later (and approximately three weeks before trial), the
State filed its “Notice of Extraneous Offense, Prior Bad Acts, & Prior
Convictions.” The document provided:
The State of Texas files this notice of its intent to prove up the
following at the punishment phase of the trial:
1. The Defendant committed the offense of Driving While
Intoxicated [DWI] in Wichita County, Texas on or about June 16,
2012. The Defendant blew a .12 on the breath test at the jail. The
Defendant is charged by information in 57782-F with this offense. A
copy of the report and videos are available for review in the State’s
file in this cause.
The State does not challenge Appellant’s statement, “The State gave no
other written notice of its intent to offer extraneous offenses into evidence.”
3
The State’s opening statement concluded,
Once you hear all the evidence in this case, under the theory
of party liability, that people who are part of the meth lab team are
guilty just as much as the one who’s actually doing the cook—when
you hear about the ether smell that [Appellant] had on his person,
when you hear that he had control of the property, when you hear
about the coffee grinder with the white stuff, you know, close to his
bedroom, the baggies of meth in his bedroom, and how he had
adapted his premises with the security cameras and that latch on the
shed, I think . . . the evidence is gonna show beyond a reasonable
doubt that he was a party, he was a participant, he was a team
member in that meth lab that was happening at his residence. It
wasn’t an accident, it’s not a case of trespass where somebody’s
gotten onto somebody’s property and they have no idea. He knew,
he was put on notice about it, he participated in it. And once you
hear all of that evidence, I will ask you to find him guilty. Thank you.
Appellant contended in his opening statement that he had nothing to do
with the methamphetamine lab found in his home; others had created and used it
in his absence:
This case—I have talked to you about movies where an
innocent person is found in suspicious circumstances and they are
arrested, convicted, sent to prison, and they escape. In the rest of
the movie they’re trying to show themsel[ves] to be innocent when
they are, in fact, innocent. That’s what happens in this case.
[Appellant] is living that in real life.
Appellant went on to argue that the evidence would show that the
methamphetamine lab found on his property had been set up by his guests while
he was away:
The issue in this case and the issue that’s in dispute, did [Appellant]
know what was going on that day? Did Bubba Wilson or Chad
Lydolph call Mr. Pendergrass without [Appellant’s] knowledge and
tell him to come out there and powder his methamphetamine?
You’re gonna hear evidence that meth cooks will trespass.
4
On the third day of the guilt phase of the trial, the State filed a trial brief:
“The State’s Bench Brief on Rebutting the Defensive Theory of
Accident/Mistake.” The State argued in its brief and to the trial court that the
prosecution should be allowed to present evidence of the extraneous offense of
manufacturing a controlled substance in its case-in-chief through Bobby Dilbeck,
despite the trial court’s pretrial order and despite the fact that the State had not
provided notice as required by rule 404(b). Specifically, the prosecutor stated to
the trial court,
The testimony that I would proffer, I’ve attached Bobby
Dilbeck’s report. In July of 2004, the North Texas Regional Drug
Task Force executed a search warrant at the same residence, 823
Rathgeber. The Defendant was present. There was an active meth
lab in that trailer.
At the hearing outside the presence of the jury, Appellant objected on the
ground that rule 404(b) requires the State to provide notice of any extraneous
offense that it intends to offer during its case-in-chief. The State argued in its
filed brief and to the trial court that because Appellant had already asserted the
defense, the State could introduce the extraneous offense evidence during its
case-in-chief. The State further argued that it did not have to provide notice to
Appellant of its intent to offer this extraneous offense in its case-in-chief because
the evidence was “rebuttal evidence” offered to rebut the defensive theory “of
accident or mistake.”
5
Specifically, the State argued that Appellant had raised the defense that he
“was really just the victim of unlucky coincidences, and, like Harrison Ford’s
character in The Fugitive, it was all just an unfortunate accident or mistake.”
The State argued that it was entitled to rebut this defensive theory by
introducing evidence that officers had previously found a methamphetamine lab
in Appellant’s trailer and that in that case, he had signed a judicial confession to
having possessed more than four but less than 200 grams of methamphetamine
from that lab.
The State further argued that Appellant was on notice that the prior offense
existed before he advanced his defensive theory in voir dire and his opening
statement. The trial court ruled that evidence of the extraneous offense was
admissible.
The State then called Dilbeck to testify about the prior drug offense.
Dilbeck is an investigator for the district attorney’s office, and before that, he had
been a police officer with the Wichita Falls Police Department. Appellant’s
attorney objected to Dilbeck’s testimony on the ground that the State’s failure to
give notice of its intent to introduce the evidence violated due process. The trial
court overruled the objection.
Dilbeck testified that in 2004, he had participated in the execution of a
search warrant at Appellant’s residence. The prosecutor suggested, and Dilbeck
agreed, that the purpose of the warrant was to search for drugs or a
methamphetamine lab. Appellant was at the residence when the search was
6
conducted. During the search, the police found cans of ether, pseudoephedrine
blister packs, rubber hosing, syringes, starter fluid cans, and scales, and Dilbeck
testified that these items are commonly found in methamphetamine labs. The
prosecutor repeatedly made reference to a “meth lab.” On cross-examination,
Dilbeck testified that the law enforcement personnel conducting the search did
not find anhydrous ammonia, lithium batteries, or sulfuric acid and that there was
no smell of any chemical odor at the residence. He acknowledged that
anhydrous ammonia is a key component in making methamphetamine.
Dilbeck testified that he had worked for the Wichita County District
Attorney’s Office for almost four years but that the prosecutor had never
interviewed him about the 2004 offense until after the second day of Appellant’s
trial in the case before us. Dilbeck testified that he had not looked at the
probable cause affidavit for the 2004 offense until the morning of the third day of
trial. Dilbeck’s report was not in the State’s file prior to trial.
There was no evidence that Appellant was convicted of manufacture of
methamphetamine as a result of the 2004 search, only the repeated allusion to a
“meth lab” and the prosecutor’s representation to the trial court that
[t]he similarities between the 2004 event and this event [are] almost
identical except the meth lab is in the trailer[,] not in the shop. But
otherwise, it’s his residence, same place, he’s present when the
search warrant is executed, and all of these accoutrements of a
meth lab are found right there.
7
Rule 404(b) Notice
In his first issue, Appellant contends that the trial court erred by admitting
evidence of a prior manufacture of methamphetamine because the State did not
give proper notice under rule 404(b). Appellant correctly argues that a defendant
is entitled to be tried on the accusation in the State’s pleading and not for a
collateral crime or for being a criminal generally. 2 Rule 404(b) provides,
Evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon
timely request by the accused in a criminal case, reasonable
notice is given in advance of trial of intent to introduce in the
State’s case-in-chief such evidence other than that arising in
the same transaction. 3
The Texas Court of Criminal Appeals has held,
Rule 404(b) literally conditions the admissibility of other-crimes
evidence on the State’s compliance with the notice provision of Rule
404(b). . . . This is not to say that a trial court is without discretion to
utilize its powers (such as granting continuances to reduce surprise)
to permit the State to bring itself in compliance with the notice
provision of Rule 404(b). But, a trial court must use these powers
to ensure compliance and not to excuse noncompliance.
Since the notice requirement of Rule 404(b) is a rule of
evidence admissibility, then it is error to admit Rule 404(b) evidence
2
Nance v. State, 647 S.W.2d 660, 662–63 (Tex. Crim. App. 1983).
3
Tex. R. Evid. 404(b) (emphasis added).
8
when the State has not complied with the notice provision of Rule
404(b). 4
The Texas Court of Criminal Appeals has also recognized that rebuttal
evidence may be offered in the State’s case-in-chief if a defendant opens the
door to such evidence in his voir dire and opening statement. 5 And rule 404(b)
does not require notice of the State’s intent to use the extraneous offense in
rebuttal. 6 But that exception is based on the fact that the State cannot anticipate
before trial genuine rebuttal evidence. 7
In her concurrence to Jaubert v. State, a case involving the notice
requirement regarding extraneous offense evidence admitted at punishment in
violation of article 37.07, section 3(g), not extraneous offense evidence admitted
during the guilt phase without notice under rule 404(b), Judge Cochran explained
the notice requirement and policy behind it:
4
Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005)
(emphasis added) (citations omitted).
5
Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Powell v.
State, 63 S.W.3d 435, 438–40 (Tex. Crim. App. 2001); see also Mendoza v.
State, No. 02-11-00197-CR, 2012 WL 43172, at *7 (Tex. App.—Fort Worth Jan.
5, 2012, no pet.) (mem. op., not designated for publication).
6
Tex. R. Evid. 404(b); Herring v. State, 752 S.W.2d 169, 172 (Tex. App.—
Houston [1st Dist.]), rev’d on other grounds, 758 S.W.2d 283 (Tex. Crim. App.
1988).
7
See Jaubert v. State, 74 S.W.3d 1, 5 (Tex. Crim. App.) (Cochran, J.,
concurring), cert. denied, 537 U.S. 1005 (2002); Wiggins v. State, No. 02-03-
00355-CR, 2004 WL 2201310, at *6 (Tex. App.—Fort Worth Sept. 30, 2004, pet.
ref’d) (not designated for publication).
9
[T]he letter of the law is not always a perfect reflection of the spirit of
the law. The spirit of Rule 404(b), article 37.07, § 3(g), and article
38.37 is to ensure that Texas criminal proceedings are not a contest
of clever gamesmanship or trial by ambush. . . . [O]ur Rules of
Evidence are drafted to ensure that Texas criminal practitioners
remain gentlemen and gentlewomen who do not spring evidentiary
surprises on their adversaries.
A number of our Rules of Evidence require advance notice
when practicable and reasonable. Rule 404(b) is one of those rules.
It requires that the prosecution give the defense reasonable notice of
its intent to offer extraneous offense evidence in the State’s case-in-
chief. . . . This requirement of advance notice, upon timely request,
applies only to the State’s case-in-chief because prosecutors are no
more clairvoyant than the rest of the world. They cannot, and thus
should not be required to, predict precisely what evidence the
defense will introduce or what rebuttal evidence might be relevant as
a result of a particular defense. Our law has long recognized this
fact.
On the other hand, it is possible for prosecutors to manipulate
the notice rule’s purpose and applicability simply by reserving all
extraneous offense evidence until its rebuttal case, when notice is
not required. Although this strategy conforms to the letter of the law,
it clearly violates the spirit.
....
[I]t may behoove a prosecutor to voluntarily deliver to the defense a
written list of all known incidents which are not explicitly set out in
the indictment, but of which the prosecutor is aware and which might
become admissible for any reason at any time. This self-imposed
duty has several beneficial aspects: 1) it assures that no conviction
will be reversed for the failure to give reasonable notice, should the
prosecutor decide that he needs to use what he had originally
thought might be rebuttal extraneous offense evidence during his
case-in-chief; 2) if the prosecution discovers additional extraneous
offense evidence on the eve of trial or even during trial, he has
shown good faith in revealing all of the evidence he was aware of
well before trial; 3) if the list is titled “potential intrinsic and extrinsic
act evidence,” neither the parties nor the trial judge need engage in
a hair-splitting debate concerning whether the specific evidence is
evidence of other acts under Rule 404(b) or is “same transaction”
10
evidence not subject to Rule 404(b) notice requirements; 4) a
defense attorney avoids any possible allegations of ineffective
assistance of counsel claims for failing to file a written request for
notice; 5) a trial judge need not grant a mid-trial continuance for the
defense to investigate “surprise” extraneous offense evidence; 6)
such an exercise requires both the prosecutor and defense to focus
on the entire body of potentially admissible evidence well before the
trial, and either or both may revise their original positions based
upon that review; finally, and most importantly, 7) it is fair beyond all
measure. 8
Similarly, this court has warned in article 37.07, section 3(g) notice cases,
[W]e caution the State that attempts to circumvent the notice
requirement of article 37.07, section 3(g) by offering extraneous
offense evidence in rebuttal when it does not properly rebut the
defendant’s punishment theories will be frowned upon. In all article
37.07, section 3(g) cases with notice issues, we will closely review
the nature of the “rebuttal” evidence to determine whether the State
introduced the evidence at that stage of the punishment trial merely
to avoid the mandatory notice requirements. 9
We see no reason not to follow that same policy in rule 404(b) cases with
notice issues.
The State contends that Appellant opened the door to the extraneous
offense evidence by “unequivocally assert[ing]” in his opening statement that he
“did not know what was taking place” in his home; that it offered the evidence as
rebuttal evidence and therefore was not required to give notice of its intent, since
it had no intent to offer the evidence at all until Appellant interjected his defense
8
Jaubert, 74 S.W.3d at 4–8 (Cochran, J., concurring) (footnotes omitted).
9
Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth 1997,
pet. ref’d) (op. on reh’g); see also Wiggins, 2004 WL 2201310, at *6.
11
at trial; and that offering the rebuttal evidence during its case-in-chief was proper.
The State characterizes Appellant’s defense as “mistake or accident.” Appellant
did not raise a mistake-of-fact defense. Nor did he raise a defense of mistake or
accident. Such defenses require that the defendant admit that he did the act, but
because of his own mistake of fact or accident, he lacks the requisite culpability
to have committed the offense. 10 Appellant’s defense was that he did not create
or use a meth lab at his home; someone else did in his absence and without his
knowledge.
Despite its improper use of the term “accident or mistake” in characterizing
Appellant’s defensive theory, the State made clear below and explains in its brief
that it offered the extraneous offense evidence to rebut Appellant’s theory that he
had been in the wrong place at the wrong time. The prosecutor argued,
[T]he Court of Criminal Appeals case law talks about Professor
Whitmore’s Doctrine of Chances, that highly unusual events are
unlikely to repeat themselves inadvertently or by happenstance. So
you might have this series of unfortunate things that happen once,
but when almost identical things have happened in the past, the
odds of it being an accident or mistake just are impossible. And
that’s why it serves as rebuttal evidence.
Appellant questions the State’s claim that it was surprised when Appellant
pointed out in voir dire that any drug activity had been set up during his absence
and without his knowledge or assistance. That had been his claim from the start
10
See Johnston v. State, 145 S.W.3d 215, 222–24 (Tex. Crim. App. 2004);
Morgan v. State, 692 S.W.2d 877, 881–82 (Tex. Crim. App. 1985).
12
of the police investigation. As Appellant points out, the State had in its file a
report from the first officer on the scene regarding the instant offense, Officer
Dottie Whitefield, and that report stated that Appellant had told the officer that he
had just arrived at the scene (his home) before she did. When Appellant
attempted to ask Whitefield on cross-examination whether he had told her that he
had only been there for a few minutes when the police arrived, the State lodged a
hearsay objection that was sustained. That was Appellant’s argument—he had
just arrived home to find that people had set up a drug lab in his absence.
Appellant’s position was supported by the testimony of Stephanie Dickerson
Harris, who testified that she and Appellant had arrived at the house
just before the police arrived. She was arrested with Appellant.
Because Appellant had insisted from the date the police investigation
began that he was not involved with the drug lab, he argues that the State’s
contention that it did not intend to offer the extraneous offense evidence until the
prosecutor heard his opening argument is not credible.
This evidence of the extraneous offense for which Appellant was neither
prosecuted nor convicted is not true rebuttal evidence. The State was aware that
Appellant’s unwavering stated position was that he had arrived home
immediately before the police arrived. Appellant was therefore entitled to rely on
the State’s notices and to conclude that the convictions listed therein, including
13
the DWI conviction and methamphetamine possession conviction, “were the only
[extraneous offenses] that the State intended to offer.” 11
Again, in the case before us, the trial court had signed a pretrial discovery
order requiring the State to “provide reasonable notice of any . . . extraneous
offenses it intend[ed] to introduce at either stage of trial.” The Texas Court of
Criminal Appeals has held,
Evidence willfully withheld from disclosure under a discovery
order should be excluded from evidence. When reviewing a trial
judge’s decision to admit or exclude evidence, an appellate court
must determine whether the judge’s decision was an abuse of
discretion. 12
In determining whether the State’s failure to comply with a discovery order
rises to the level of willfully withholding disclosure under the discovery order, we
are instructed to consider the conduct and representations of the State. In
Oprean, the Texas Court of Criminal Appeals noted,
Two things are particularly unacceptable about the
prosecutor’s conduct. First, the prosecutor told defense counsel the
night before the punishment phase began that she intended to
introduce only the judgments and sentences from the previous
convictions. She did not dispute the fact that she made that
statement. There is no suggestion that later that night or early the
next morning she suddenly discovered the videotape’s existence.
And because her signature appears at the end of the discovery
order, it cannot be said that she was unaware of it.
11
McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005).
12
Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (quotation
marks and citations omitted).
14
Second, when defense counsel argued that he had not
received notice as required by the discovery order, the prosecutor
responded by stating that “there was no [Article 37.07] charge in
[the] Court’s discovery order.” When affirming the judgment of the
trial court, the Court of Appeals relied on the prosecutor’s
explanation. 13
The Oprean court concluded,
[T]he validity of the explanation offered by the prosecutor is a
relevant factor that should be considered when determining
willfulness. The discovery order did not mention anything about
Article 37.07, and therefore was not limited by that provision.
Because the prosecutor knew about the discovery order and chose
to invoke Article 37.07 after counsel called her attention to the order,
she made a conscious decision to violate the plain directive of the
discovery order. 14
Like the Oprean prosecutor, the trial prosecutor in the case before this
court was aware of the discovery order—he signed it. He gave Appellant notice
of intent to offer evidence of the possession conviction and others as
impeachment and punishment evidence. He later gave Appellant notice of the
State’s intent to offer evidence of a prior DWI conviction in the punishment phase
of the trial, but the prosecutor gave no notice of intent to offer evidence of an
extraneous offense of manufacturing methamphetamine. At no point did the
prosecutor suggest that he was not aware of the discovery order. As did the
Oprean prosecutor, the prosecutor in this case made the conscious, tactical
decision not to disclose his intent to offer extraneous offense evidence despite
13
Id. at 727 (citation omitted).
14
Id. at 728.
15
the discovery order. Accordingly, we hold that the trial court abused its discretion
by allowing the State to present evidence to the jury of the alleged extraneous
offense of manufacturing methamphetamine when same had not been revealed
to Appellant in response to his 404(b) request.
The dissent states that “the State’s knowledge that [Appellant] told police
that he was not involved with the drug lab did not charge the State with
knowledge of [his] defensive theory at trial,” 15 which was that he was not involved
with the drug lab. Appellant’s defense is not some esoteric, unexpected
defense. It is essentially a defense of “I’m not guilty.” If a statement in voir dire
that the defendant is not guilty of the offense he is charged with opens the door
to the admission of undisclosed prior acts of misconduct, discovery orders have
no meaning. Both courts and the legislature have spoken to the importance of
complying with discovery orders and avoiding legal gamesmanship and trial by
ambush.
Harm
The next issue is whether the State’s failure to disclose its intent to
introduce evidence of the alleged extraneous offense of manufacturing
methamphetamine rendered the trial court’s erroneous admission of the
undisclosed extraneous offense reversible error.
15
Dissenting Op. at 2.
16
The Hernandez court has discussed the appropriate harm analysis for
failure to provide the required 404(b) notice of intent to offer evidence of
extraneous offenses:
Since the notice requirement of Rule 404(b) is a rule of
evidence admissibility, then it is error to admit Rule 404(b) evidence
when the State has not complied with the notice provision of Rule
404(b). The Rule 44.2(b) harm standard is whether the error in
admitting the evidence “had a substantial and injurious effect or
influence in determining the jury’s verdict.” The issue in cases like
this is how to apply this standard. We find helpful the Austin Court of
Appeals’ discussion in Roethel:
Accordingly, we must assess harm from the
violation of (a notice provision similar to Rule 404(b)’s)
against its intended purpose. Although the violation of
the notice provision resulted in the improper admission
of evidence, we cannot employ the harm analysis used
for violations of the rules of evidence concerning
relevancy because the purpose of those rules differs
from the purpose of the (Rule 404(b) notice provision).
The rules of evidence governing relevancy limit the use
of evidence that may be unfairly prejudicial or
misleading; for instance, evidence of other crimes,
wrongs, or acts is inadmissible to prove the character of
a person to show that the commission of the crime at
issue is consistent with the defendant’s character, but is
admissible for other purposes. When evidence of an
extraneous offense is admitted to prove such character
conformity, we examine the record to determine how the
admission of this substantively inadmissible evidence
affected the jury’s verdict. That test is appropriate
because the erroneous admission of the evidence
thwarts the rule’s purpose of shielding the jury from
evidence used for improper reasons. The notice
requirement found in (Rule 404(b)), however, does not
relate to the substantive admissibility of the evidence.
The lack of notice does not render the evidence
inherently unreliable, but instead raises a question
about the effect of procedural noncompliance. The
purpose of the notice requirement is to enable the
17
defendant to prepare to meet the extraneous offense
evidence. Thus, we must analyze how the deficiency of
the notice affected (the defendant’s) ability to prepare
for the evidence. 16
The State contends that “Appellant cannot claim surprise as to the event
itself” because “[t]he State did give notice of the conviction that arose from the
events testified to by Bobby Dilbeck, pursuant to Rule 609 of the Texas Rules of
Evidence.” Appellant challenges the State’s contention that it had given him
proper notice that it intended to offer impeachment evidence of the extraneous
offense of manufacturing a controlled substance by filing a rule 609 notice that it
intended to introduce a prior conviction for possession of a controlled substance.
Appellant argues that the State misled the trial court by stating that its notice
under rule 609 regarding the possession offense also put Appellant on notice that
the State intended to offer in its case-in-chief evidence of a prior extraneous
offense of manufacturing a controlled substance.
Rule 609 provides that “[f]or the purpose of attacking the credibility of a
witness, evidence that the witness has been convicted of a crime shall be
admitted if elicited from the witness or established by public record but only if the
crime was a felony or involved moral turpitude.” 17 As Appellant points out, this
rule does not allow the introduction of impeachment evidence during the State’s
16
Hernandez, 176 S.W.3d at 824–25 (citations omitted).
17
Tex. R. Evid. 609.
18
case-in-chief. 18 It is admissible only if the defendant testifies, and then it is
admissible only to impeach the defendant’s credibility. 19 Finally, even if
conviction of a prior felony offense may be admissible as impeachment, the
details of the offense are not admissible. 20
Appellant did not testify, but the State nevertheless offered evidence of an
extraneous offense, complete with its version of the details of the offense that
improperly suggested that Appellant was guilty of manufacture of a controlled
substance, ostensibly to defeat the suggestion that Appellant was going to deny
his guilt. The State argued to the jury that Appellant was guilty of manufacturing
methamphetamine in the case on trial, although another person had confessed to
being the cook in the case, and Appellant had confessed to only mere
possession in the prior case. The extraneous offense evidence was primarily
used to show character conformity, although there was no evidence that
Appellant was guilty of a prior manufacturing offense. When the trial court
admitted the evidence suggesting that Appellant had previously been involved in
the manufacture of methamphetamine, Appellant suffered harm: the harm of
18
Id.
19
Id.
20
Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986), cert. denied,
484 U.S. 1079 (1988).
19
being unprepared to defend against that evidence and the harm of the jury’s
great likelihood of being improperly influenced by the evidence.
Often appellate courts suggest that when the State fails to comply with
discovery rules, the defendant’s remedy is to seek a continuance. 21 But here the
problem is not merely the failure to comply with discovery rules and discovery
orders; it is also the fact that the harmful, undisclosed evidence was not
admissible even with proper notice. “When the trial court improperly admits
substantially inadmissible Rule 404(b) evidence that substantially influenced the
jury’s verdict, the influence on the jury verdict will always be ‘injurious.’” 22
Following the rationale of the Oprean court, we hold that the trial court’s
abuse of discretion in admitting evidence of the unadjudicated manufacture of
methamphetamine offense was reversible error. We sustain Appellant’s first
issue, and because it is dispositive, we do not reach his remaining issues.
Conclusion
Having sustained Appellant’s first issue, which is dispositive, we reverse
the trial court’s judgment and remand this case to the trial court for a new trial.
21
Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d,
92 S.W.3d 531 (Tex. Crim. App. 2002).
22
Oaks v. State, No. 05-07-00384-CR, 2008 WL 3307083, at *1 (Tex.
App.—Dallas July 31, 2008, no pet.) (not designated for publication) (citing
Hernandez, 176 S.W.3d at 825).
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/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
WALKER, J., filed a dissenting opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 16, 2014
21