PD-1514-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 31, 2015 Transmitted 3/31/2015 10:30:51 AM
Accepted 3/31/2015 10:35:05 AM
ABEL ACOSTA
Cause No. PD-1514-14 CLERK
Court of Criminal Appeals of Texas
Ronnie Leon Dabney,
Appellant
v.
State of Texas,
Appellee
On Petition for Discretionary Review from the Court of Appeals,
Second District of Texas No. 02-12-00530-CR
State’s Brief on the Merits
Maureen Shelton John Gillespie
Criminal District Attorney First Asst. Criminal District Attorney
Wichita County, Texas Wichita County, Texas
State Bar No. 24083252
John.Gillespie@co.wichita.tx.us
John Brasher Andrew Wipke
Special Prosecutor Assistant Criminal District Attorney
Wichita County, Texas State Bar. No. 24090824
State Bar No. 02907800 Andrew.Wipke@co.wichita.tx.us
brasherappeals@gmail.com
900 8th Street Suite 415 900 Seventh Street
Wichita Falls, Texas 76301 Wichita Falls, Texas 76301
(940) 244-0244 phone (940) 766-8113 phone
(940) 244-0245 fax (940) 716-8530 fax
Identity of Parties and Counsel
Appellant Ronnie Leon Dabney, Texas
Department of Corrections-
Institutional Division
Defense Counsel at Trial Mark H. Barber, 1101 Scott Avenue,
and on Appeal Suite 15, Wichita Falls. TX 76301
State Counsel at Trial John R. Gillespie, First Assistant
District Attorney, Wichita County,
Texas
State Counsel on Appeal John R. Gillespie, First Assistant
District Attorney, Wichita County,
Texas
Presiding Judge at Trial The Honorable Robert P.
Brotherton, 30th Judicial District
Court, Wichita County Court House,
900 7th Street, Wichita Falls, Texas
76301
ii
Table of Contents
Table of Contents .......................................................................................iii
Index of Authorities ..................................................................................... v
Statement of the Case ...............................................................................vii
Statement Regarding Oral Argument .........................................................vii
Issues Presented ...................................................................................... viii
Statement of Facts ...................................................................................... 1
Summary of the Argument .......................................................................... 2
Argument .................................................................................................... 4
I. Appellant was not entitled to notice of rebuttal evidence
used to rebut Appellant’s defensive theory that Appellant’s
counsel advanced in voir dire and in opening statement .................... 4
II. The Memorandum Opinion ignored the Court of Criminal
Appeals’ directive that the trial judge is afforded almost total
deference on whether the prosecutor’s conduct was less than
willful and improperly substituted its judgment for the trial
judge’s that the prosecutor was engaging in gamesmanship
rather than rebutting a defensive theory.......................................... 11
A. The Trial Court’s decision to admit extraneous
offense evidence for rebuttal purposes fell within the zone
of reasonable disagreement ................................................... 12
B. The Memorandum Opinion engaged in improper
speculation that the State willfully violated a discovery
order. ...................................................................................... 14
1. There was no affirmative evidence in the
record to support the Memorandum Opinion’s guess
as to the prosecutor’s motives ....................................... 15
iii
2. The Memorandum Opinion minimizes the fact
that the prosecutor had noticed Appellant 10
months before the trial started of the conviction that
formed the basis of the evidence the State used to
rebut Appellant’s defensive theory. ................................ 16
III. Appellant suffered no harm by the admission of the
rebuttal evidence because of the overwhelming evidence of
Appellant’s guilt including the fact that Appellant absconded
and was absent for closing arguments. ............................................ 17
Conclusion ................................................................................................ 19
Prayer ....................................................................................................... 20
Certificate of Compliance .......................................................................... 21
Certificate of Service ................................................................................. 21
iv
Index of Authorities
Cases Page
Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App. 1995) ..................... 13
Bass v. State, 270 S.W.3d 557, 563 n. 7 (Tex. Crim. App. 2008) ............ 5, 7
California v. Hodari D., 499 U.S. 621 (1991) ............................................. 18
Dabney v. State, No 02-12-00530-CR, 2014 WL 5307178 (Tex.
App.—Fort Worth Oct. 16, 2014) (mem. op.) ........ vii, 10-11, 14-16, 19
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) .................... 4
Francis v. State, 428 S.W.3d 850, 856 (Tex. Crim. App. 2014) ...... 11-12, 15
Hoagland v. State, 494 S.W.2d 186, 189 (Tex. Crim. App. 1973) ............... 8
Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App. 1981) ........................... 8
Jaubert v. State, 74 S.W.3d 1, 8 (Tex. Crim. App. 2002) ............................ 7
Mark de la Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) ...... 5-6, 14
Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ............................ 16
Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App.
1990) ......................................................................................... 12- 14
Oprean v. State, 201 S.W.3d 724 (2006) .................................................. 17
Powell v. State, 63 S.W.3d 435, 439-40 (Tex. Crim. App. 2001) .............. 4-5
Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth,
1997, pet. ref’d) ................................................................................. 9
Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002) .....................
v
Yohey v. State, 801 S.W.2d 232 (Tex. App.—San Antonio 1990, pet.
ref’d) .................................................................................................. 9
Statutes
Tex. Code Crim. Proc. arts. 37-39............................................................. 10
Rules
Tex. R. Evid. 403 ...................................................................................... 13
vi
Statement of the Case
The grand jury indicted Appellant, Ronnie Leon Dabney, for
Manufacture of Methamphetamine over 400 grams. (C.R. 7). Appellant
pleaded not guilty. (R.R. 3:5). Before closing argument, Appellant
absconded from the trial and was absent for closing argument at the
guilt/innocence stage. (R.R. 7:4-5). The jury found Appellant guilty. (R.R.
7:43). The trial judge sentenced Appellant to 30 years in prison. (C.R. 106-
07). The Second Court of Appeals issued a Memorandum Opinion
reversing the trial court’s judgment and remanding the case for a new trial.
See Dabney v. State, No 02-12-00530-CR, 2014 WL 5307178 (Tex. App.—
Fort Worth Oct. 16, 2014) (mem. op.). The State petitioned this Court for
review.
Statement Regarding Oral Argument
Because the law on abuse of discretion and utilizing rebuttal evidence
to respond to a defensive theory advanced by Appellant during voir dire
and opening statements is so well-settled and the Second Court of
Appeals’ Memorandum Opinion is so contrary to the law, the questions for
review involving the admission of extraneous offense evidence for the
limited purpose of rebuttal may be resolved without oral argument.
vii
Issues Presented
(1) Did the Memorandum Opinion incorrectly add a notice
requirement for rebuttal evidence that the State used to rebut Appellant’s
defensive theory after Appellant’s counsel opened the door to such
evidence in voir dire and in opening statement?
(2) Did the Memorandum Opinion ignore the Court of Criminal
Appeals’ directive that a trial judge is afforded almost absolute deference in
determining whether a prosecutor acted willfully and thereby improperly
substituted its judgment for the trial judge’s in finding the prosecutor was
engaging in gamesmanship instead of legitimately rebutting a defensive
theory?
(3) Did the Memorandum Opinion, in its harm analysis, improperly
ignore the overwhelming evidence of Appellant’s guilt, including the fact
that he absconded during trial and was absent for closing arguments at
guilt/innocence?
viii
Statement of Facts
Before trial, Appellant had requested notice of extraneous offenses
that the State intended to prove under Rule 403 or at punishment. (C.R. 26-
27). Additionally, Appellant had requested notice of prior convictions. (C.R.
26-27). The trial court signed a pretrial order informing the State to “provide
reasonable notice of any extraneous offenses it intends to introduce at
trial.” (C.R. 28). The State provided notice of its intent to use a Driving
While Intoxicated extraneous offense at the punishment phase. (C.R. 61-
62). The State also provided notice of its intent to offer prior convictions.
(C.R. 56-57). A conviction in cause 42,51-7-A was included in the notice of
prior convictions the prosecutor tendered to the defense 10 months before
trial. (C.R. 56-57).
During voir dire and opening statements, Appellant’s counsel
advanced a defensive theory that Appellant lacked any knowledge of the
meth lab discovered on Appellant’s property. (R.R. 4:146-47, 155-57; 5:16-
22). Specifically, in opening the defense claimed that Appellant was the
victim of his guests, who mischievously established a meth lab on his
property while he was away and that Appellant returned home to his
property shortly before the police raid and was the victim of a series of
unfortunate circumstances that put him at the wrong place at the wrong
1
time. (R.R. 5:16-22).
The State then sought permission to rebut Appellant’s defensive
theory by presenting evidence that linked Appellant to a previous meth lab
on his same property. (R.R. 6:9-15). This rebuttal evidence came out of
the conviction in 42,517-A was in the State’s notice of intent to offer prior
convictions.1 (R.R. 6:13).
Even though the evidence was offered to rebut the defensive theory
advanced in opening and voir dire, Appellant objected, claiming lack of
notice under Rule 404(b). (R.R. 6:24). At the conclusion of the hearing, the
trial court permitted the State to present the rebuttal evidence of the
previous meth lab. (R.R. 6:21).
Summary of the Argument
Through a Memorandum Opinion, the Second Court of Appeals has
manufactured out of whole cloth a previously non-existent notice
requirement for rebuttal evidence to refute a defensive theory advanced by
Appellant in voir dire and in opening statements.
Ignoring the directive of this Court that a trial judge be afforded
almost absolute deference on the question of whether a prosecutor acted
1
Ten months before trial, the State gave the defense notice of intent to offer prior
convictions for punishment and for impeachment. (C.R. 56-57). While this notice was
not for the purpose of rebuttal evidence, it showed the defense was not surprised that
Appellant had said conviction. (C.R. 56-57).
2
willfully, the Memorandum Opinion engaged in rank speculation and
impugned the motives of the prosecutor in seeking to admit the rebuttal
evidence. No evidence in the record supported the Memorandum
Opinion’s speculation as to the prosecutor having impure motives for
offering the rebuttal evidence. Additionally, the trial judge, who was in the
best position to determine whether the evidence was offered truly for
rebuttal purposes rather than as part of some sneaky trial stratagem to
circumvent notice requirements, implicitly found by admitting the rebuttal
evidence that the prosecutor was not acting in bad faith. The dissent
eloquently explained that the Memorandum Opinion should not have
guessed about the motives of the prosecutor, but should have deferred to
the judgment of the trial judge who actually observed the proceedings and
saw first-hand the need for the rebuttal evidence to refute the defensive
theory.
Finally, the Memorandum Opinion failed to follow the directive of this
Court and consider the overwhelming guilt of the defendant when
conducting its harm analysis. The evidence at trial demonstrated that
Appellant had exclusive control over the premises with the lab, that
Appellant was physically present when officers arrived and smelled the
overwhelming odor of the meth lab on the property, Appellant had the smell
3
of ether—a meth lab component—on his person, and Appellant had a
surveillance system with monitors in his bedroom that are commonly used
by meth cooks to secure property. Additionally, Appellant absconded and
was absent for closing arguments at guilt innocence. Thus, the
overwhelming evidence of Appellant’s guilt militates against a finding of
harm.
Argument
I. Appellant was not entitled to notice of rebuttal evidence used to
rebut Appellant’s defensive theory that Appellant’s counsel
advanced in voir dire and in opening statement.
The Memorandum Opinion has improperly created a notice
requirement for rebuttal evidence used to refute a defensive theory
advanced by defense counsel in voir dire and opening statement. When a
defensive theory is raised by the defense, the door is opened for the state
to employ rebuttal evidence concerning an extraneous offense. Powell v.
State, 63 S.W.3d 435, 439-40 (Tex. Crim. App. 2001). Rebuttal evidence is
admissible when it has relevance aside from proving character conformity.
See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
Here the rebuttal evidence is relevant apart from character
conformity. Appellant was charged with manufacturing methamphetamine.
The rebuttal evidence revealed that officers previously located a
4
methamphetamine laboratory on Appellant’s property. (R.R. 6:23-27). This
evidence was highly relevant to rebut Appellant’s defensive theory that he
was simply the victim of a series of unfortunate events being in the wrong
place at the wrong time with the wrong people. (R.R. 4:146-47, 155-57;
5:16-22). Appellant’s defensive theory was the equivalent of claiming that
lightning struck. But, Professor Wigmore’s doctrine of chances advises that
“highly unusual events are unlikely to repeat themselves inadvertently or by
happenstance.” See Mark de la Paz v. State, 279 S.W.3d 336 (Tex. Crim.
App. 2009). Thus, Appellant’s participation in a previous meth lab on the
same property demonstrated that this was not a lightning-strike-type
chance occurrence.
In Powell, during opening statements, appellant claimed that he
lacked the opportunity to molest the victim due to the presence of other
persons in the room. 63 S.W.3d at 436. The court determined that the
door was opened to rebut defendant’s defensive theory of lack of
opportunity by admission of rebuttal evidence that the defendant molested
others under similar circumstances. Id. at 438-40.
The defense opening statement informs the State and the jury of “the
nature of the defenses relied upon and the facts expected to be proved in
their support.” Bass v. State, 270 S.W.3d 557, 563 n. 7 (Tex. Crim. App.
5
2008). Certain defensive theories in opening open the door to the
admission of rebuttal evidence. Id. The State is not required to wait until
after the defense’s case-in-chief to rebut the defensive theory advanced in
opening; rather, the State may rebut the defensive theory in the State case-
in-chief. Id.
This Court has repeatedly explained that when the defense advances
a defensive theory in opening and/or through the questioning of witnesses,
this entitles the State to rebut that theory. See id. at 562; Mark de la Paz v.
State, 279 S.W.3d 336, 344-45 (Tex. Crim. App. 2009). “Our case law
supports a decision that a defense opening statement, like that made in this
case, opens the door to the admission of extraneous-offense evidence, like
that admitted in this case, to rebut the defense theory presented in the
defense opening statement.” Bass, 270 S.W.3d at 562.
When the defense “chooses to make its opening statement
immediately after the State’s opening statement, the State may reasonably
rely on this defensive opening statement as to what evidence the defense
intends to present and rebut this anticipated defensive evidence during its
case-in-chief as opposed to waiting for rebuttal.” Id. at 563.
In this case, Appellant’s trial counsel unequivocally presented his
defensive theory during opening statement:
6
This case – I have talked to you about movies where an
innocent person is found in suspicious circumstances and
they’re arrested, convicted, sent to prison, and they escape. In
the rest of the movie they’re trying to show themselves to be
innocent when they are, in fact, innocent. That’s what happens
in this case. Ronnie [Appellant] is living that in real life. (R.R.
5:16-17).
Appellant claimed in opening that his friends, without his knowledge,
started a meth lab on his property while he was away and that the
Defendant “didn’t know [the meth lab] was going on; he didn’t give
permission; and he wasn’t assisting or aiding” the meth lab. (R.R. 5:16-22).
Thus, defense counsel forcefully argued that Appellant was merely the
victim of unfortunate circumstances and devious friends who started a meth
lab on his property without his knowledge or consent and that Appellant
came home to discover the meth lab shortly before the police arrived,
putting him the wrong place at the wrong time. (R.R. 5:16-22).
Texas law clearly permits the State to rebut such an unambiguously
advanced defensive theory. See generally Jaubert v. State, 74 S.W.3d 1, 8
(Tex. Crim. App. 2002) (explaining that the State is entitled “to walk through
the open door” once the defense advances certain defensive theories); see
also Bass, 270 S.W.3d at 563 (holding rebuttal evidence is admissible to
counter a defensive theory of “fabrication” or “frame-up”).
Additionally, Texas law does not require the State to provide notice of
7
rebuttal evidence because, by its very nature, it rebuts a theory advanced
by the defense. See Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App.
1981). Since the defense, not the State, determines what defensive
theories are advanced, the State cannot predict what evidence will be used
as rebuttal evidence before the trial. See id.
In Gipson, a defendant charged with rape claimed, at the punishment
phase, that he only raped the victim because he was threatened by a co-
defendant. Id. at 169-70. The State countered with rebuttal testimony of a
previous victim who was raped by the defendant. See id. When the
defense complained on appeal that it was entitled to notice of this rebuttal
extraneous offense evidence, this Court rejected that claim:
In this trial the State did not offer, and could not have offered,
the proof of the [second rape] in its case-in-chief. It was a
rebuttal to the appellant’s evidence in mitigation. In such a
situation the defendant, rather than the State, determines
whether a contested issue will be raised, and his determination
will not be made known until he presents his case. It would be
practically impossible for the State to give notice until that time,
as it did in this case. The appellant did not claim that he was
surprised, and did not ask for a continuance. The trial court did
not err in receiving this rebuttal evidence on the question of
punishment.
Id. at 170-71 (emphasis added); see also Hoagland v. State, 494 S.W.2d
186, 189 (Tex. Crim. App. 1973) (“To require the State to anticipate any
possible defense of an accused…would be to require an impractical and
8
undue burden.”).
Rule 404(b)’s notice requirement does not apply to rebuttal evidence
used to counter defensive theories. See Yohey v. State, 801 S.W.2d 232
(Tex. App.—San Antonio 1990, pet. ref’d). “By its very terms the notice
requirements [of 404(b)] are not applicable to rebuttal evidence.”
Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth, 1997,
pet. ref’d).
“Notice of intent” only applies when there is actual intent to utilize the
evidence. There is no evidence in the record that the prosecutor had any
such intent to use this rebuttal evidence until after defense counsel
advanced his defensive theory in voir dire and opening statement. (R.R.
6:9-21).
“The State cannot intend to introduce true rebuttal evidence before
trial. Evidence that is offered in rebuttal cannot be foreseen because the
State does not know what theories the defendant will advance . . . .” Id.
While the court in Washington was considering rebuttal evidence offered at
punishment, the reasoning equally applies to rebuttal evidence offered at
guilt/innocence to rebut a defensive theory. Id.
Contrary to the Memorandum Opinion’s speculation, there was no
evidence in this case that the State knew before trial that the defense
9
attorney would advance the “my-friends-started-a-meth-lab-on-my-
property-and-I-just-came-home-right-before-the-cops-showed-up” defense.
(R.R. 6:9-24).
Furthermore, in her dissent Justice Walker persuasively argues that
even if the State suspected that Appellant might advance the “wrong
person, wrong place, wrong time” defensive theory, this “did not require the
State to give notice of an extraneous offense it had no intent to introduce in
its case-in-chief, but which might nonetheless become admissible if the
defense opened the door to the offense.” See Dabney, 2014 WL 5307178
at *10.
By crafting a new notice requirement for such rebuttal evidence that
has never before existed in Texas law, the Memorandum Opinion creates
the absurd result whereby the State must divine any and every possible
defensive theory the defense might advance and then give notice of what
evidence it might need to respond to whatever defensive theories the
defense might advance.
This new notice requirement for rebuttal evidence is even more
absurd when considering that other than the insanity defense, the defense
does not have to disclose to the State pre-trial what defensive theories
(such as alibi) it may advance. Tex. Code Crim. Proc. arts. 37-39.
10
II. The Memorandum Opinion ignored the Court of Criminal
Appeals’ directive that the trial judge is afforded almost total
deference on whether the prosecutor’s conduct was less than
willful and improperly substituted its judgment for the trial
judge’s that the prosecutor was engaging in gamesmanship
rather than rebutting a defensive theory.
The Memorandum Opinion failed to defer to the trial judge’s implicit
finding that the prosecutor’s actions were not a willful attempt to circumvent
the discovery order but were a sincere attempt to rebut a defensive theory.
(R.R. 6:21, 24). Rather, the Memorandum Opinion engaged in rank
speculation, without any support in the record, as to the prosecutor’s
motives. See Dabney, 2014 WL 5307178 at *8.
This Court, in Francis v. State, said that in examining a prosecutor’s
motives on whether a prosecutor acted to willfully circumvent a discovery
order, the trial judge is owed “almost absolute deference to the [trial
judge’s] implicit conclusion that the prosecutor’s conduct was less than
willful.” 428 S.W.3d 850, 856 (Tex. Crim. App. 2014).
Rather than deferring to the trial judge’s assessment that the State
was truly offering the evidence for rebuttal purposes, the Memorandum
Opinion unfairly speculates and impugns the prosecutor’s motives for
offering the evidence. See Dabney, 2014 WL 5307178 at *8. Nowhere in
the Memorandum Opinion does the author show any deference to the trial
judge’s determination that the prosecutor was sincerely offering the
11
evidence for rebuttal purposes rather than engaging in trial-by-ambush
gamesmanship. See id. at *1-9.
A trial court’s decision to admit or exclude relevant evidence is
reviewed under an abuse of discretion standard. See Montgomery v.
State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). If the trial court’s
ruling was “within the zone of reasonable disagreement,” the court’s
decision will be sustained. Id. at 391. This standard holds true within the
context of a violation of a discovery order. See Francis, 428 S.W.3d at
855.
A trial court’s ruling on admissibility should not be overturned merely
because an appellate judge may have decided a question differently than
the trial judge. See Montgomery, 810 S.W.2d at 391. Here the trial court’s
decision was well “within the zone of reasonable disagreement” and should
not have been reversed by the Memorandum Opinion.
A. The Trial Court’s decision to admit extraneous offense evidence
for rebuttal purposes fell within the zone of reasonable
disagreement.
The State’s proffered testimony that Appellant had a previous meth
lab at his residence rebuts the “my-friends-did-it-without-my-knowledge-
and-I-just-arrived-back-with-no-clue” defense. (R.R. 5:16-22). At trial, the
State cited to Professor Wigmore’s Doctrines of Chances. (R.R. 6:12).
12
This doctrine teaches that “highly unusual events are unlikely to repeat
themselves inadvertently or by happenstance.” (R.R. 6:12). Appellant’s
defense that the meth lab was created without his knowledge becomes
considerably less probable when one learns that Appellant had previously
operated a meth lab on the same premises. Lightning may strike once, but
rarely twice.
Evidence of an extraneous offense that has a tendency to make more
or less probable an evidentiary fact or an elemental fact or to rebut a
defensive theory is relevant apart from its tendency to prove a person’s
character or conformity. Montgomery, 810 S.W.2d at 386-87; Johnson v.
State, 932 S.W.2d 296, 301 (Tex. App.—Austin 1996, pet ref’d). But, such
evidence is still subject to exclusion under Rule 403, if the probative value
of evidence is substantially outweighed by the danger of unfair prejudice.
See Tex. R. Evid. 403; see also Alba v. State, 905 S.W.2d 581, 585 (Tex.
Crim. App. 1995).
Here, the probative value of the rebuttal evidence is not substantially
outweighed by its prejudicial nature. First, Appellant did not object at trial
that the probative value of the rebuttal evidence was substantially
outweighed by its prejudicial nature. (R.R. 6:24). Second, the probative
value of this evidence was not substantially outweighed by its prejudicial
13
nature because the rebuttal evidence casts serious doubt on Appellant’s
defensive theory that his guests facilitated a meth lab on his property
without his knowledge. Under Professor Wigmore’s doctrine of chances,
highly unusual events are unlikely to repeat themselves inadvertently or by
happenstance. See Mark de la Paz, 279 S.W.3d 336.
Thus, the fact that Appellant had previously operated a meth lab on
his property would substantially decrease the likelihood of his defensive
theory: that his rogue guests created a lab on his property without his
knowledge and that he had arrived at the lab moments before the police
arrived. Therefore, the trial judge was correct in finding that the probative
value of the evidence in rebutting the defensive theory was not
substantially outweighed by its prejudicial effect. When there is reasonable
disagreement concerning the admission of evidence, a trial court’s
determination will be sustained. See Montgomery, 810 S.W.2d 372 at 391;
Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002).
B. The Memorandum Opinion engaged in improper speculation that
the State willfully violated a discovery order.
Justice Walker, in her dissent, excoriated the Memorandum Opinion’s
author for speculating as to the prosecutor’s motives for offering the
rebuttal evidence. See Dabney, 2014 WL 5307178 at *10.
14
1. There was no affirmative evidence in the record to support the
Memorandum Opinion’s guess as to the prosecutor’s motives.
At the hearing on the prosecutor’s request to admit the rebuttal
evidence, the record is devoid of any evidence to show the prosecutor was
acting with a bad-faith manipulative trial strategy. (R.R. 6:9-21). The
Memorandum Opinion fails to cite to a single piece of evidence in the
record to support its speculation that the prosecutor was engaging in
gamesmanship rather than legitimately attempting to rebut a defensive
theory raised by the defense in voir dire and opening. See Dabney, 2014
WL 5307178 at *1-8.
Importantly, the trial judge who signed the discovery order was in a
far better position than the author of the Memorandum Opinion to inquire
about and discern any subjective motive of the prosecutor. See Francis,
428 S.W.3d at 855. In fact, it was the trial judge’s discovery order that the
Memorandum Opinion claims the prosecutor sneakily plotted to circumvent.
(C.R. 28). The trial judge, being physically present at the proceedings, was
in a far superior position to determine whether the prosecutor truly needed
the evidence to rebut the defensive theory or whether the prosecutor was
playing fast and loose with his discovery order. See Francis, 428 S.W.3d
at 855. The trial judge found no such motive to circumvent his discovery
order as shown by his admission of the rebuttal evidence. (R.R. 6:24).
15
Thus, Justice Walker, in her powerful dissent, was correct that since
there was no evidence in the record that the “State intended to introduce
the extraneous offense evidence yet engaged in the ‘manipulative strategy’
of reserving such evidence as rebuttal evidence,” the appellate court
“should not so speculate.” Dabney, 2014 WL 5307178 at *10.
2. The Memorandum Opinion minimizes the fact that the
prosecutor had noticed Appellant 10 months before the trial
started of the conviction that formed the basis of the evidence
the State used to rebut Appellant’s defensive theory.
While insinuating that the State’s actions constituted “legal
gamesmanship and trial by ambush,” the Memorandum Opinion downplays
the fact that 10 months before trial the prosecutor noticed the defense of
the conviction which formed the basis of the rebuttal evidence. (C.R. 56-
57). Thus, defense counsel was on notice that his client had a similar drug
conviction and should have asked his client about the nature of the prior
conviction before choosing which defensive theories to advance in opening.
So, the Memorandum Opinion failed to properly defer to the trial
judge’s decision to admit the rebuttal evidence since the trial judge was in a
superior position to determine the subjective motive of the prosecutor and
the record shows no affirmative bad faith motivation by the prosecutor.
Because the trial judge’s decision to admit the rebuttal evidence after a full
16
hearing on the matter was within the zone of reasonable disagreement, the
Memorandum Opinion erred in failing to defer to the trial judge.2
III. Appellant suffered no harm by the admission of the
rebuttal evidence because of the overwhelming evidence of
Appellant’s guilt including the fact that Appellant absconded and
was absent for closing arguments.
Strangely, the Memorandum Opinion never considers the evidence of
Appellant’s guilt as part of its harm analysis. See, Dabney, 2014 WL
5307178 at *9-10. This Court has explained that overwhelming evidence of
guilt is a factor to be considered and a harm analysis for nonconstitutional
error. See Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“We
hold once again that the evidence of the defendant’s guilt is a factor to be
considered in any thorough harm analysis.”).
2
The Memorandum Opinion’s reliance upon Oprean v. State, is misplaced. 201 S.W.3d
724 (2006). In Oprean, affirmative evidence in the record existed that the prosecutor
acted willfully to disobey a discovery order. Id. at 727. Specifically, the prosecutor the
night before the punishment hearing told the defense attorney she only intended to offer
judgments and prior convictions; however, at the punishment hearing she offered a DWI
video that had never been available to the defense. Id. When confronted with the
discovery order, the prosecutor in Oprean claimed the discovery order did not apply to
punishment evidence. Id.
In this case, no evidence existed that the prosecutor intentionally attempted to
circumvent the discovery order and always intended to offer the evidence of the prior
meth lab. (R.R. 6:9-21). Rather, the trial judge explicitly found that the prosecutor
needed the evidence to rebut the defensive theory advanced in opening. (R.R. 6:21).
By admitting the evidence and rejecting the defense’s lack of notice objection, the trial
judge’s ruling implicitly found that the prosecutor was not acting willfully to avoid a
discovery order. (R.R. 6:9-24).
17
First, Appellant was living at the property where the meth lab was
found and had control of the premises. (R.R. 5:56, 89-90). Second, the
odor of the meth lab was so strong that an officer driving by could smell it
from the roadway. (R.R. 5:51-52). Third, Appellant was physically present
on the property when the officers arrived and smelled the strong odor of the
meth lab. (R.R. 5:55-56). Fourth, Appellant had the strong odor of ether, a
component in making meth, on his person. (R.R. 6:65,68,71). Fifth, in a
bedroom of the trailer on the property which contained mail addressed to
Appellant, officers located monitors for a surveillance system on the
property. (R.R. 5:98). A veteran narcotics officer testified that such a
surveillance system is common on property where the owner wants to cook
meth. (R.R. 5:98). Thus, the evidence of Appellant’s guilt as a party to the
meth lab on property under his control, on property on which he was
physically present at the time officers smelled the odor of the meth lab from
the road, and with the smell of ether, a component in the meth-making
process on his person, was overwhelming. (R.R. 5:51-56,98, 6:65,68,71).
Additionally, Appellant absconded during trial and was absent for
closing argument at guilt/innocence. (R.R. 7:4-5). Appellant’s empty chair
during closing proclaimed his guilt as loudly as all the evidence introduced
at trial. See, e.g., California v. Hodari D., 499 U.S. 621 (1991) (citing the
18
proverb “The wicked flee when no man pursueth.”). The Memorandum
Opinion, in its harm analysis, never mentions Appellant’s absconding. See
Dabney, 2014 WL 5307178 at *9-10.
Thus, the evidence of Appellant’s guilt was overwhelming and
Appellant could not show harm by admission of the rebuttal evidence.
Conclusion
The Memorandum Opinion erred in three significant ways: first, it
crafts an unworkable notice requirement for rebuttal evidence that is
completely contrary to binding precedent from this Court. Second, it
improperly substitutes its own judgment for that of the trial judge by
speculating about the prosecutor’s motive in offering the rebuttal evidence.
The appellate court, unlike the trial judge, conducted no evidentiary hearing
to discern the prosecutor’s motives and no evidence in the record
supported the Memorandum Opinion’s impugning of the prosecutor’s
motives, especially when the trial judge implicitly found no such bad faith.
Third, the Memorandum Opinion also ignored this Court’s directive that in
conducting a harm analysis, an appellate court should consider the
overwhelming guilt of the defendant. Nowhere in the Memorandum
Opinion does it mention the overwhelming evidence that demonstrated
Appellant’s guilt, including the fact that Appellant absconded before closing
19
arguments at guilt/innocence.
Justice Walker’s powerful and persuasive dissent coupled with the
significant departure of the Memorandum Opinion from the binding
precedent of this Court highlights the importance of this Court granting
review and overturning the Memorandum Opinion and affirming the
judgment of the trial court.
Prayer
The State prays that this Court reverse the Second Court of Appeals’
decision; and that the judgment of the trial court be affirmed in all respects
and for such further relief to which the State may justly be entitled.
Respectfully submitted,
/s/ John R. Gillespie
John R. Gillespie
First Assistant District Attorney
Wichita County, Texas
State Bar No. 24010053
Wichita County Courthouse
900 7th Street
Wichita Falls, Texas 76301
(940) 766-8113
Fax: (940) 766-8177
Email: John.Gillespie@co.wichita.tx.us
/s/ John Brasher
John Brasher
Asst. Crim. Dist. Attorney
Wichita County, Texas
State Bar No. 02907800
20
Certificate of Compliance
I certify that this brief contains 4,301 words, after the applicable
exclusions.
/s/ John R. Gillespie
John R. Gillespie
Certificate of Service
I hereby certify that on March 31, 2015, I electronically filed the
foregoing document with the clerk of court for Texas Court of Criminal
Appeals, using the electronic case filing system of the court. The electronic
case filing system sent a “Notice of Electronic Filing” to the following
attorney of record: Mark H. Barber, Mbarberlaw@aol.com; and to the State
Prosecuting Attorney, at information@spa.texas.gov, P.O. Box 13046,
Austin, TX 78711-3046, on this the 31st Day of March, 2015.
/s/ John R. Gillespie
John R. Gillespie
21