                                                                               PD-1514-14
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
June 24, 2014                                                Transmitted 6/23/2015 3:11:35 PM
                                                              Accepted 6/24/2015 11:20:17 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 Reply Brief to Appellant’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
To the Court of Criminal Appeals:

      Pursuant to Rule 38.3 of the Rules of Appellate Procedure, the State

submits its Reply Brief to Appellant’s Brief on the Merits and responds to the

following points raised by Appellant’s brief.




                                       ii
                                         Table of Contents

Table of Contents .......................................................................................iii

Index of Authorities .................................................................................... vi

State’s Reply............................................................................................... 1

        1.      Appellant’s sufficiency argument is not properly before
                this Court as the court of appeals did not address it and
                Appellant did not file a cross-petition ........................................ 1

        2.      Appellant’s position that the State must anticipate “what
                defensive issues it may want to rebut” is contrary to
                longstanding Texas law and the fact that the defense
                does not give notice of the defensive theories it will raise. ........ 2

        3.      The trial judge’s limiting instruction restricted the jury’s
                consideration to rebuttal purposes. The evidence was not
                available as part of the State’s case-in-chief. ............................ 3

                a. Evidence is often admissible for multiple reasons and
                   for varied purposes during a trial. ......................................... 4

                b. Here, the rebuttal evidence was offered and admitted
                   for the limited purpose of rebuttal, and the judge
                   restricted the jury’s consideration to rebuttal purposes
                   only. ..................................................................................... 4

                c. As the law presumes that juries follow a court’s limiting
                   instruction, the evidence was not available to the State
                   for the specific intent, case-in-chief reasons that
                   Appellant claims. .................................................................. 5

        4.      The character of the proceedings at the time of the offer
                was rebuttal in nature. .............................................................. 5

                a. The evidence was expressly offered for rebuttal
                   purposes. ............................................................................. 6


                                                      iii
     b. The trial judged admitted the evidence specifically for
        rebuttal purposes. ................................................................ 6

     c. The trial judge instructed the jury that the evidence
        was admitted for rebuttal purposes. ..................................... 6

     d. Much like an examination of a hostile witness where
        the party calling the witness can cross-examine on
        direct, the content of the proceedings and not the mere
        form determines the nature of the proceedings. ................... 7

     e. The trial judge has broad discretion in conducting the
        order of the proceedings. While he could have
        required the State to wait until after the defense case
        to present the rebuttal evidence, the judge also had
        discretion to permit the rebuttal evidence earlier. ................. 8

     f. Using his discretion, the trial judge permitted an
        interruption in the State’s case-in-chief to admit
        rebuttal evidence. ................................................................. 9

5.   The defense attorney continued to advance the “my-
     friends-operated-a-meth-lab-on-my-property-and-I-just-
     came-home-right-before-the-cops-showed-up” defense
     throughout the trial. So, the defense opening accurately
     telegraphed the defensive theory. ........................................... 10

6.   At the new trial hearing, the trial judge rejected
     Appellant’s contention that the prosecutor had willfully
     violated a discovery order. ...................................................... 12

7.   The evidence supports the trial judge’s belief that the
     prosecutor did not violate any discovery order. ....................... 13

8.   The rebuttal evidence showed that Appellant had been
     caught with the accoutrements of an active meth lab at
     the same property in 2004. ..................................................... 17




                                        iv
        9.       The rebuttal evidence would also have been admissible to
                 rebut Stephanie Dickerson’s testimony in the defense
                 case. ....................................................................................... 18

        10.      The rebuttal evidence was essential at the time it was
                 offered to counter the defensive theory. But, when
                 Appellant absconded before closing, he greatly
                 strengthened the State’s case. ............................................... 19

        11.      Appellant’s brief improperly references alleged facts not
                 located in the record and asserts mere speculations as
                 fact. ........................................................................................ 20

Prayer ....................................................................................................... 22

Certificate of Compliance .......................................................................... 23

Certificate of Service ................................................................................. 23




                                                       v
                                       Index of Authorities

Cases                                                                                                  Page

Allridge v. State, 762 S.W.2d 145 (Tex. Crim. App. 1988)........................... 2

Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008). ................. 9, 11, 19

Bryant v. State, 282 S.W.3d 156, 168-69 (Tex. App.—Texarkana
     2009, pet. ref’d) ................................................................................. 7

Dabney v. State, No. 02-12-00353-CR, 2014 WL 5307178 (Tex.
    App.—Fort Worth 2014, pet. granted) (not designated for
    publication). ....................................................................................... 1

Davila v. State, 651 S.W.2d 797 (Tex. Crim. App. 1983). ................... 21, 22

Francis v. State, 428 S.W.3d 850 (Tex. Crim. App. 2014). ........................ 12

Janecka v. State, 937 S.W.2d 456 (Tex. Crim. App. 1997). ................ 21, 22

Lewis v. State, 815 S.W.2d 560 (Tex. Crim. App. 1991) ............................. 5

Gibson v. State, 619 S.W.2d 169 (Tex. Crim. App. 1981) ........................... 2

Paschall v. State, 285 S.W.3d 166 (Tex. App.—Fort Worth 2009, pet.
     ref’d) ................................................................................................ 16

Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005). ........................... 4

Sapata v. State, 574 S.W.2d 770 (Tex. Crim. App. Panel 3 1978) .............. 8

Sotelo v. State, 913 S.W.2d 507 (Tex. Crim. App. 1995). ........................... 1

Suiter v. State, 310 S.W.2d 81 (Tex. Crim. App. 1958) ............................... 8

Tex. Cookie Co. v. Hendricks, 747 S.W.2d 873 (Tex. App.--Corpus
     Christi 1988, writ denied) ................................................................... 5



                                                      vi
Washington v. State, 943 S.W.2d 501 (Tex. App.—Fort Worth 1997,
    pet. ref’d) ....................................................................................... 2, 3

Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App. 1994)........................ 8

Yohey v. State, 801 S.W.2d 232 (Tex. App.—San Antonio 1990, pet.
    ref’d) .............................................................................................. 2, 3

Statutes

Tex. Code Crim. Proc. arts. 37-39 .......................................................... 2, 3

Rules

Tex. R. App. P. 21.7 ................................................................................. 22

Tex. R. App. P. 38.1(i). ....................................................................... 21, 22

Tex. R. App. P. 68.2(b) ............................................................................... 1

Tex. R. Evid. 404(b) .................................................................................... 3

Tex. R. Evid. 801(d) .................................................................................... 4

Tex. R. Evid. 801(e)(A). .............................................................................. 4

Tex. R. Evid. 803(1) & (2). .......................................................................... 4




                                                     vii
                                 State’s Reply

    1. Appellant’s sufficiency argument is not properly before this Court
       as the court of appeals did not address it and Appellant did not
       file a cross-petition.

      While Appellant argues that the evidence was insufficient for the jury

to find the rebuttal extraneous beyond a reasonable doubt,1 the court of

appeals did not address this argument2 and Appellant did not include this in

a cross-petition.

      This Court has repeatedly explained that it “only reviews ‘decisions’ of

the courts of appeals;” the Court does “not reach the merits of any party’s

contention when it has not been addressed by the lower appellate court.”3

The intermediate appellate court did not address this sufficiency argument.4

      Additionally, Appellant filed no cross-petition in response to the State’s

petition for discretionary review. T.R.A.P. 68.2(b) instructs that when one

party files a petition, the other side may file a petition “within 10 days after

the timely filing of another party’s petition.”5 In this case, the State’s petition

for review was filed on November 12, 2014 and accepted on November 14,

2014. In the months since the State filed its petition, Appellant has never


1    See Appellant’s Brief at 38-39.
2    See Dabney v. State, No. 02-12-00353-CR, 2014 WL 5307178, at *10 (Tex.
App.—Fort Worth 2014, pet. granted) (not designated for publication).
3    See, e.g., Sotelo v. State, 913 S.W.2d 507, 509 (Tex. Crim. App. 1995).
4    See Dabney, at *10.
5    Tex. R. App. P. 68.2(b).
                                        1
filed a cross-petition. Therefore, the issue of the sufficiency of the rebuttal

evidence is not properly before this Court.

    2. Appellant’s position that the State must anticipate “what
       defensive issues it may want to rebut” is contrary to longstanding
       Texas law and the fact that the defense does not give notice of
       the defensive theories it will raise.

      Appellant’s position that “the State has a duty to anticipate what

defensive issues it may want to rebut”6 ignores longstanding Texas law7 and

the fact that, other than the insanity defense, the defense is not required to

give any advance notice of its defensive theories.8

      While Appellant makes much of his statement to Officer Whitefield that

he just arrived,9 Appellant overlooks the fact that defendants regularly deny

statements they made to officers at a scene or accuse an officer of

misrepresenting or misreporting what was said. Also, this statement was

inadmissible as self-serving hearsay.10




6      See Appellant’s Brief at 6. (“the State has a duty to anticipate what defensive
issues it may want to rebut in its case-in-chief.”).
7      See, e.g., Gibson v. State, 619 S.W.2d 169 (Tex. Crim. App. 1981) (explaining
since the defense determines what defensive theories are advanced, the State cannot
predict what evidence will be used as rebuttal before the trial); see also Washington v.
State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth 1997, pet. ref’d)(“By its very terms
the notice requirements [of 404(b)] are not applicable to rebuttal evidence.); Yohey v.
State, 801 S.W.2d 232 (Tex. App.—San Antonio 1990, pet. ref’d).
8      Tex. Code Crim. Proc. Arts. 37-39.
9      See Appellant’s Brief at 6.
10     See, e.g., Allridge v. State, 762 S.W.2d 145, 153 (Tex. Crim. App. 1988).
                                            2
       As Texas law does not require the defense to give notice of its

defensive theories (other than insanity), the State does not know what

defensive theories the defense will advance until the defense articulates

those theories to the jury.11 Also, nowhere in the plain language of Rule

404(b) does it reference “rebuttal evidence.”12 Thus, the Rule 404(b) notice

requirement does not apply to evidence offered for rebuttal purposes

following the defense opening-the-door and raising a defensive theory.

     3. The trial judge’s limiting instruction restricted the jury’s
        consideration to rebuttal purposes. The evidence was not
        available as part of the State’s case-in-chief.

     Appellant’s argument that the State could have offered the extraneous

offense as evidence of specific intent so the State was precluded from

offering it as rebuttal evidence ignores the fact that evidence is often

admissible on multiple grounds and for different reasons during a trial and

the fact that the judge restricted the jury’s consideration of the evidence to

rebuttal purposes only.




11     Tex. Code Crim. Proc. Arts. 37-39.
12     Tex. R. Evid. 404(b); see also Washington, 943 at 506; Yohey, 801 at 232.
                                          3
     a. Evidence is often admissible for multiple reasons and for
        varied purposes during a trial.

     A myriad of reasons can often support the admission of evidence

before a jury. For example, an out-of-court statement could be admitted for

a limited purpose not for the truth of the matter asserted (such as to show

context);13 could be admitted as a non-hearsay prior inconsistent statement

of the witness;14 or could be admitted as an exception to the hearsay rule

(such as a present sense impression or excited utterance).15

     As such, a trial court must consider the basis for admission articulated

by the proponent of the evidence.16

     b. Here, the rebuttal evidence was offered and admitted for the
        limited purpose of rebuttal, and the judge restricted the jury’s
        consideration to rebuttal purposes only.

     The State only articulated a rebuttal purpose for the admission of the

2004 meth offense in both its bench brief for admission and in the

prosecutor’s arguments before the trial judge.17 The trial judge admitted the

evidence for rebuttal purposes, and restricted the jury’s consideration of the




13   Tex. R. Evid. 801(d).
14   Tex. R. Evid. 801(e)(A).
15   Tex. R. Evid. 803(1) & (2).
16   See Reyna v. State, 168 S.W.3d 173, 180 (Tex. Crim. App. 2005).
17   C.R. 81-87; R.R. 6:9-21.
                                       4
2004 meth offense to rebuttal purposes in both an oral limiting instruction

and in the Court’s charge.18

         c. As the law presumes that juries follow a court’s limiting
            instruction, the evidence was not available to the State for the
            specific intent, case-in-chief reasons that Appellant claims.

         While Appellant argues that the 2004 meth offense would have been

available as evidence of specific intent in a circumstantial evidence case,19

Appellant’s speculation overlooks the fact that the evidence was expressly

offered and admitted only for a rebuttal purpose and the jury’s consideration

of it was so restricted.20 The law presumes that juries follow a trial court’s

limiting instruction.21 Thus, the evidence was not available to the jury for the

specific intent, case-in-chief purpose that Appellant claims.

     4. The character of the proceedings at the time of the offer was
        rebuttal in nature.

     Appellant’s reliance on the notice requirements of 404(b) for evidence

offered in the State’s case-in-chief is misplaced because the character of the

proceedings at the time of the proffer was rebuttal in nature, not case-in-

chief.


18      R.R. 6:33; C.R. 98.
19      See Appellant’s Brief at 12.
20      R.R. 6:33; C.R. 98.
21      See Tex. Cookie Co. v. Hendricks, 747 S.W.2d 873, 882 (Tex. App.--Corpus
Christi 1988, writ denied); see also Lewis v. State, 815 S.W.2d 560, 556 (Tex. Crim.
App. 1991) (explaining limiting instructions ensure jury does not rely upon admitted
evidence for an impermissible purpose).
                                           5
     a. The evidence was expressly offered for rebuttal purposes.

       The State in both its bench brief and in its argument to the trial court

could not have been clearer that it was offering the evidence to rebut the

defensive theories raised in voir dire and opening.22 In fact, Judge Brotherton

indicated the reason for the hearing: “Prior to resuming this morning, the

State’s asked to present argument on a rebuttal theory.”23

     b. The trial judged admitted the evidence specifically for rebuttal
        purposes.

       The State not only argued that the evidence was admissible for

rebuttal, but also provided the trial judge with multiple cases supporting the

rebuttal basis for admission.24 After considering the State’s bench brief and

argument of the parties, the trial judge admitted the evidence to rebut the

defensive theories.25

     c. The trial judge instructed the jury that the evidence was admitted
        for rebuttal purposes.

       Immediately following the rebuttal testimony, the trial judge instructed

the jury that it had been “admitted for the limited purpose of rebutting, if it

does, the defensive theory of mistake or accident.”26 In the court’s charge,



22     C.R. 81-87; R.R. 6:9-21.
23     R.R. 6:9.
24     R.R. 6:9-21.
25     R.R. 6:20-21.
26     R.R. 6:33.
                                       6
the trial judge instructed the jury that as to the rebuttal evidence, they “may

only consider the same as evidence to rebut the defensive theory of mistake

or accident.”27 So, the trial judge instructed the jury that this evidence was

admitted as rebuttal evidence only.

     d. Much like an examination of a hostile witness where the party
        calling the witness can cross-examine on direct, the content of
        the proceedings and not the mere form determines the nature of
        the proceedings.

       Courts always look beyond mere form to determine the true character

of the proceedings. For example, when a party calls a hostile or adverse

witness, the party may use leading questions and conduct a cross-type

examination even though he appears to be on direct.28

       Similarly, here the State filed a bench brief and asked the trial judge to

admit the extraneous offense to rebut the defensive theory.29 The trial court

agreed with the State, admitted the evidence, and instructed the jury as to

the rebuttal purpose.30

       Thus, looking beyond mere form, at the point that the extraneous meth

offense was admitted, the true character of the proceedings was rebuttal in

nature. The evidence was not offered as part of the State case-in-chief, but

27      C.R. 98.
28      See, e.g., Bryant v. State, 282 S.W.3d 156, 168-69 (Tex. App.—Texarkana 2009,
pet. ref’d).
29      R.R. 6:9.
30      R.R. 6:21; C.R. 98.
                                         7
was rather offered and admitted specifically to rebut the defensive theory

advanced in voir dire and opening statement.

     e. The trial judge has broad discretion in conducting the order of the
        proceedings. While he could have required the State to wait until
        after the defense case to present the rebuttal evidence, the judge
        also had discretion to permit the rebuttal evidence earlier.

       This Court has long recognized that a trial judge has broad discretion

in conducting a trial.31 This discretion extends to the manner of examining a

witness,32 the means of presentation of documentary evidence to a jury,33

and to a variety of odd or unusual situations that may arise in a trial.34

       At the admissibility hearing, Appellant’s trial counsel informed the

judge: “I would agree, if [the prosecutor] wanted to offer this after we put on

our testimony he wouldn’t have to give me notice, but right now, Judge, he

has to give me notice.”35 While appearing to concede the evidence would be

admissible in rebuttal, Appellant’s trial counsel was complaining about when

in the trial the rebuttal evidence was admitted.36 Appellant’s counsel



31      See generally, Sapata v. State, 574 S.W.2d 770, 771 (Tex. Crim. App. Panel 3
1978) (“The trial court is necessarily vested with broad discretion to conduct a trial.
Such discretion is necessary to allow him to deal with the infinite variety of
situations…which can arise in a trial context.”); see also Wheatfall v. State, 882 S.W.2d
829 (Tex. Crim. App. 1994).
32      See Suiter v. State, 310 S.W.2d 81, 82 (Tex. Crim. App. 1958).
33      See Wheatfall, 882 at 838.
34      See Sapata, 574 at 771.
35      R.R. 6:20.
36      R.R. 6:20.
                                            8
overlooked the broad discretion afforded to the trial judge in managing the

trial.

         With this broad discretion, the trial judge could undoubtedly have

required the State to wait until after Appellant’s case to present the rebuttal

evidence. Conversely, in light of this Court’s guidance in Bass v. State, the

trial judge also had the discretion to permit the State to present the rebuttal

evidence without waiting until after Appellant’s case.37

     f. Using his discretion, the trial judge permitted an interruption in
        the State’s case-in-chief to admit rebuttal evidence.

         When a trial judge exercises his discretion like this, he basically calls

a time-out to the State’s case-in-chief and allows the State to delve into the

rebuttal phase early.38 Logically, once the State finishes with the rebuttal

evidence, the State’s case-in-chief evidence resumes.

         This exact procedure happened here. Following the rebuttal witness,

when the State called its next witness, the trial judge asked, “Is his testimony

back on the case-in-chief?”39 When the prosecutor said that it was, the judge

admonished the jury about the preceding rebuttal evidence, and then the

State’s case-in-chief resumed.40


37       270 S.W.3d 557, 563 n.7 (Tex. Crim. App. 2008).
38       See generally id. at 563 n.7.
39       R.R. 6:33.
40       R.R. 6:33.
                                            9
       Situations like this are not uncommon in jury trials. For example, to

accommodate a witness scheduling issue, a trial judge has discretion to

permit a defense witness to testify before the State has rested its case-in-

chief.41

     5. The defense attorney continued to advance the “my-friends-
        operated-a-meth-lab-on-my-property-and-I-just-came-home-
        right-before-the-cops-showed-up” defense throughout the trial.
        So, the defense opening accurately telegraphed the defensive
        theory.

       Not only did Appellant raise the defensive theory in voir dire and

opening, but he also advanced that theory during his case-in-chief and during

closing argument. During the defense case, Appellant called Stephanie

Dickerson.42 Ms. Dickerson claimed that she and Appellant had gone for a

motorcycle ride and then had talked at another house “for a significant period

of time.”43 Ms. Dickerson testified that she and Appellant had returned “just

moments” before the police arrived.44 Ms. Dickerson said she hadn’t even




41     See generally Brown v. State, 907 S.W.2d 835, 842 (Tex. Crim. App. 1995)
(explaining that it is common for witnesses to be called out of sequence based upon
availability and that “a trial attorney must be prepared for unforeseen difficulties,
including unavailable witnesses, and accommodate those difficulties as best as
possible.”).
42     R.R. 6:103.
43     R.R. 6:107-09,112.
44     R.R. 6:109,112.
                                           10
had time to walk up onto the porch and knock on the door when the police

appeared.45

      During closing, Appellant’s attorney framed his argument with this

same defensive theory:

              “Ronnie Dabney is an innocent person who was
              found in suspicious circumstances. He has been
              gone all night long, came home right before the
              police showed up, didn’t know what was going on,
              and he got caught up in all these six arrests of these
              people. And so that’s what this case is about.”46

      Appellant’s closing continued along this theme with the defense

attorney insisting, “What really happened was is that Ronnie left with this

lady…He’s gone all night...but he comes back in the morning with her…and

there he is, an innocent person caught in suspicious circumstances…”47

      Throughout the defense case and closing argument, Appellant

continued to advance the defensive theory of an innocent person

accidentally and mistakenly in the wrong place at the wrong time with the

wrong people. Therefore, Appellant presented evidence on his defensive

theory which further justified the State’s rebuttal evidence.48




45    R.R. 6:109.
46    R.R. 7:17.
47    R.R. 7:27-28.
48    See Bass, 270 S.W.3d at 563 n.7.
                                         11
     6. At the new trial hearing, the trial judge rejected Appellant’s
        contention that the prosecutor had willfully violated a discovery
        order.

       Appellant claims that “the trial court never reached the issue as to

whether the State willful [sic] violated the pre-trial order because the trial

court believed that this was ‘rebuttal evidence.”49 Appellant defends the court

of appeals “finding that there was a willful violation.”50 However, in light of

this Court’s admonition in Francis v. State that the trial judge is owed “almost

absolute deference to the [trial judge’s] implicit conclusion that the

prosecutor’s conduct was less than willful,” the fact that Appellant claims the

trial court made no finding regarding prosecutorial willfulness (because the

trial judge did not believe the discovery order applied to rebuttal evidence

like this) demonstrates the inappropriateness of the appellate court ignoring

the trial judge and substituting its own finding of willfulness.51

       The Second Court’s violation of Francis is even more startling because

at the motion for new trial hearing, Appellant expressly argued that the

prosecutor willfully violated the discovery order.52       Appellant made this

contention in both his written motion and to the trial judge at the new trial




49     See Appellant’s Brief at 48.
50     Id.
51     428 S.W.3d 850, 856 (Tex. Crim. App. 2014).
52     Id.; R.R. (9:8,10).
                                         12
hearing.53 Importantly, the trial judge rejected Appellant’s claim in his ruling

denying the motion for new trial.54 The trial judge, thus, did not believe that

the prosecutor had violated his discovery order, much less willfully. The

Second Court and Appellant have both ignored the trial judge’s express

rejection of the contention that the prosecutor willfully violated the discovery

order.

     7. The evidence supports the trial judge’s belief that the prosecutor
        did not violate any discovery order.

       While Appellant engages in many speculative theories about the

subjective motives of the prosecutor, the trial judge did not find mal-intent by

the prosecutor, but instead expressly accepted the rebuttal need for this

evidence.55 In fact, there was no evidence to suggest mal-intent or

gamesmanship by the prosecutor.56 Clearly, the trial judge did not believe

such mal-intent existed, as evidenced by his ruling where he admitted the

rebuttal offense, expressly calling it “proper evidence.”57

       Further, the evidence supports the trial judge’s implicit finding that the

prosecutor was operating in good faith and had no intent to offer the 2004




53     C.R. 111-13; R.R. 9:8.
54     R.R. 9:10.
55     R.R. 6:21,24.
56     R.R. 6:1-24; 9:1-10.
57     R.R.6:21.
                                       13
offense until defense counsel raised his defensive theory that required a

rebuttal.

      First, the prosecutor did not file 404(b) notice, but filed notice of prior

convictions almost a year before trial,58 and timely filed a witness list,

designation of expert witnesses, and notice of prior convictions.59            A

prosecutor who files notice of prior convictions, a witness list, designation of

expert witnesses, and extraneous notice in a timely manner clearly knows

how to notice items that he believes are important to ensure he is able to

develop that evidence at trial. Rather than support some dark-hearted,

nefarious plotting by the prosecutor to somehow try to catch the defense

attorney off-guard, the simple explanation makes the most sense: the

prosecutor truly had no intention of offering the 2004 offense until the need

for rebuttal arose.

      Second, Investigator Dilbeck testified that he had not discussed

testifying about the 2004 rebuttal offense with the prosecutor until the

previous day60 (which would have been after the need for the rebuttal

evidence became apparent at trial).61 When asked if he had reviewed the




58    C.R. 56-57.
59    C.R. 58-60,61-62.
60    R.R. 6:28.
61    R.R. 5:1,16-22; 6:1.
                                       14
probable cause affidavit for the 2004 arrest “before today,” Investigator

Dilbeck said “I just looked at it this morning.”62 So, Investigator Dilbeck’s

testimony showed he had not been prepared in advance of trial to testify by

the prosecutor, but had only been contacted once the need for rebuttal

became apparent during the trial.63 This buttresses the trial judge’s implicit

finding that the prosecutor was operating in good faith to address a need for

rebuttal evidence, rather than calculating in advance to circumvent the trial

judge’s order.

      Third, the prosecutor clearly represented to the trial court, as an officer

of the court, that he was offering the testimony to rebut the defensive theories

that Appellant’s counsel had advanced in jury selection, opening statement,

and through his cross-examination of the witnesses up until that point.64 The

prosecutor consistently maintained he was offering the evidence for rebuttal

purposes.65

      Fourth, Appellant’s complaint that the drug results from the 2004

offense were not in the State’s file on the instant offense actually shows the

prosecutor had no intention to delve into the 2004 offense before the need




62    R.R. 6:28.
63    R.R. 6:28.
64    R.R. 6:9-21.
65    R.R. 6:9-21; 9:8-10.
                                       15
for rebuttal arose during trial. Instead of supporting a nefarious motive to

somehow try to catch the defense off-guard, Occam’s razor suggests a

simpler explanation: the results were not in the file on the instant case

because the prosecutor had no intent to introduce the 2004 case66 (other

than the prior conviction for impeachment or punishment) until defense

counsel opened the door by forcefully advancing the mistake/accident

“wrong person, wrong time, wrong place” defensive theory in jury selection,

opening, and through his examination of the witnesses. As a result, the

prosecutor tracked-down the 2004 file and Investigator Dilbeck during the

trial.67




66      There is also no evidence in the record that the defense attorney, after receiving
notice of the State’s intent to offer the 2004 conviction for possession of controlled
substance for impeachment and/or punishment evidence, ever asked to see the file for
cause number 42,517-A, which contained the drug results related to that conviction.
(R.R. 6:1-21; 9:1-10). The defense attorney had notice of that conviction 10 months
before trial and could have requested to see that file, if he so wished. (C.R. 56-57).
        As this Court is well aware, a certified copy of a judgment will suffice for
impeachment purposes or to prove up a prior conviction. See, e.g., Paschall v. State,
285 S.W.3d 166, 174 (Tex. App.—Fort Worth 2009, pet. ref’d)(noting that certified copy
of a judgment is preferred and convenient means of proving up a prior conviction).
Thus, the prosecutor had no reason to believe that the contents of the file (other than a
certified judgment of the conviction) related to the 2004 conviction were evidence in the
instant case, until defense counsel articulated his defensive theory to the jury that
elucidated the importance of the 2004 case and its rebuttal value. (R.R. 5:16-17).
67      R.R. 6:28. This is a reasonable inference from Investigator Dilbeck’s testimony.
Additionally, there is no evidence in the record that the prosecutor had contacted or
prepped Investigator Dilbeck regarding the 2004 offense before the rebuttal need for the
evidence arose during trial. (R.R. 6:1-28; 9:1-10).
                                           16
       Fifth, as Appellant’s trial counsel has admitted he was aware of the

prior drug conviction, the prosecutor is not to blame for defense counsel’s

strategic decision to advance a defensive theory in opening that opened the

door to rebuttal evidence stemming from that drug conviction.68 With this

knowledge of the prior meth conviction, defense counsel should have been

more careful about his defensive theories.

        Sixth, the prosecutor is not responsible for Appellant’s trial counsel’s

failure to ask for a recess or extra time for the court to prepare for the rebuttal

evidence. Appellant could have asked for a recess or a brief continuance to

investigate, but he never made any such request.69 Defense counsel cannot

now legitimately blame the prosecutor for the defense decision not to request

additional time if he believed he needed it.70

     8. The rebuttal evidence showed that Appellant had been caught
        with the accoutrements of an active meth lab at the same property
        in 2004.

       The record reveals the utter falsity of Appellant’s attorney’s claims that

the prosecutor somehow misled the trial judge about the rebuttal evidence

showing a previous active meth lab on the same property.71 In accusing the




68     See Appellant’s Brief at 35.
69     R.R. 6:15-21.
70     R.R. 6:20.
71     See Appellant’s Brief at 39.
                                        17
prosecutor of misleading the court, Appellant’s attorney selectively cites

portions of Investigator Dilbeck’s testimony.72     Conveniently, Appellant’s

attorney decided not to recount73 this exchange:

             Prosecutor: And based on your training and
             experience as a narcotics officer, did it appear to you
             that there was an active meth lab at that trailer?

             Investigator Dilbeck: It appeared to me that there
             had been, yes.74

       Additionally, Investigator Dilbeck found the following evidence that was

consistent with a recent, active meth lab at the residence: ether cans,

punched blister packs from pseudoephedrine packages, rubber hosing,

syringes, weapons, two sets of scales commonly used to weigh drugs prior

to being sold, Prestone starter fluid cans, and more than a personal-use

quantity of methamphetamine.75 All of this testimony supported the

prosecutor’s representations and was received by the trial judge.76

     9. The rebuttal evidence would also have been admissible to rebut
        Stephanie Dickerson’s testimony in the defense case.

       The rebuttal evidence would also have been admissible following

Stephanie Dickerson’s testimony in the defense case which further



72     See Appellant’s Brief at 40-46.
73     See Appellant’s Brief at 40-46.
74     R.R. 6:27.
75     R.R. 6:26-27,32.
76     R.R. 6:26-27,32.
                                         18
advanced the defense theory of accident or mistake.77 This Court has been

clear that while a trial judge does not have to require the State to wait until

after the defense case to rebut a defensive theory that opens the door in

opening statement, the trial judge additionally commits no error if the rebuttal

evidence would have been admissible following the defense case, but was

admitted earlier in the trial.78 Stephanie Dickerson’s testimony in the defense

case would have also supported admission of the rebuttal evidence.79 As

such, even assuming en arguendo that admission at the time was error, the

rebuttal evidence would have been admissible following the defense case.

Thus, no harm could have resulted from its admission.80

     10. The rebuttal evidence was essential at the time it was offered
         to counter the defensive theory. But, when Appellant
         absconded before closing, he greatly strengthened the State’s
         case.

       While Appellant claims there is some inconsistency between the trial

judge agreeing with the prosecutor that the rebuttal evidence was “essential”

to rebut the defensive theory and the State representing on appeal that the

overwhelming evidence of Appellant’s guilt militated against a harm finding,




77     R.R. 6:107-09,112.
78     See Bass, 270 S.W.3d at 563 n.7.
79     R.R. 6:103-112.
80     See Bass, 270 S.W.3d at 563 n.7.
                                          19
Appellant ignores the fact that he absconded after the rebuttal evidence had

been admitted but before closing argument.81

       Absconding before closing materially changed the position of the case.

Defense counsel was left without a client at trial.82 The State was clear in its

brief on the merits that it was Appellant’s absence from closing—which the

memorandum opinion ignored—coupled with the circumstantial evidence

that militated against a harm finding.83 To accuse the State of hypocrisy,

Appellant’s attorney has to overlook the fact that the State’s harm argument

hinged upon Appellant’s fleeing before closing.84 It is difficult to understand

how Appellant’s counsel missed this key point as it was contained in the bold

header introducing the State’s harm argument and referenced throughout

that argument.85

     11. Appellant’s brief improperly references alleged facts not located
         in the record and asserts mere speculations as fact.

       Appellant’s brief makes several references to so-called facts that are

outside the record. This Court has rejected such unsupported assertions: “It

is a long-standing principle that we cannot review contentions which depend




81     See Appellant’s Brief at 58-59.
82     R.R. 7:4-5.
83     See State’s Brief at 17-19.
84     See Appellant’s Brief at 58-59.
85     See State’s Brief at 17.
                                         20
upon factual assertions outside the record.”86 “Assertions in an appellate brief

unsupported by evidence cannot be accepted as fact.”87 Further, the Texas

Rules of Appellate Procedure require an appellant’s brief to contain

“appropriate citations…to the record.”88

      First, Appellant’s attorney references a conversation he had with

Appellant following the trial.89       There is not a record cite for this

conversation.90 And, the State could not locate this conversation in the

record. It appears Appellant is improperly referencing items outside the trial

record, which cannot be accepted as fact or considered by this Court.91

      Second, Appellant’s attorney alleges the following:

            “the prosecutor recommended a no bill to the grand
            jury. In short, the prosecutor who recommended the
            no bill for possession of pseudoephedrine with intent
            to manufacture, advised the trial court that there was
            an active meth lab with every component part
            present.”92

Appellant’s attorney cites to no evidence in the record—nor is the State

aware of any record support—concerning any recommendation to the grand




86    Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1997).
87    Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. 1983).
88    Tex. R. App. P. 38.1(i).
89    See Appellant’s Brief at 46.
90    See id.
91    See Janecka, 937 at 476; Davila, 651 at 799.
92    See Appellant’s Brief at 46-47.
                                        21
jury.93 This gross speculation, unsubstantiated by the record, falls outside

the bounds of appropriate briefing and cannot be accepted as fact for the

purposes of the present appeal.94

                                          Prayer

       The State prays that the Court reverse the decision of the Second

Court of Appeals and affirm Appellant’s conviction.

                                           Respectfully submitted,

                                             /s/ John R. Gillespie
                                           John R. Gillespie
                                           First Assistant District Attorney
                                           Wichita County, Texas
                                           State Bar No. 24010053
                                           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

93      See id.
94      See Tex. R. App. P. 38.1(i); Janecka, at 476; Davila, at 799. Additionally, the trial
judge had a hearing on Appellant’s motion for new trial on November 30, 2012, more than
two months after the jury trial in this case. (R.R. 9:1). Appellant’s attorney offered nothing
to support these contentions at the motion for new trial, either. (R.R. 9:1-10). Trial courts
can certainly receive evidence at hearings on motion for new trial. See Tex. R. App. P.
21.7. So, Appellant’s attorney failed to develop these alleged facts at either the trial or
the motion for new trial hearing, even though he had an additional two months to inquire
into this information. (R.R. 9:1-10).


                                             22
                           Certificate of Compliance

        I certify that this brief contains 4,701 words, after the applicable

exclusions.

                                         /s/ John R. Gillespie
                                       John R. Gillespie


                              Certificate of Service

        I hereby certify that on June 23, 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.

                                         /s/ John R. Gillespie
                                       John R. Gillespie




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