                        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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               DISSENTING MEMORANDUM OPINION1

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      I respectfully dissent. As the majority opinion points out, the court of

criminal appeals has held that rebuttal evidence may be offered in the State’s

case-in-chief if a defendant opens the door to such evidence in his opening

statement. Maj. Op. at 9 (citing 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)).

      1
      See Tex. R. App. P. 47.4.
Here, I would hold that defense counsel’s assertion in his opening statement that

Appellant Ronnie Leon Dabney did not know that his guests had set up a

methamphetamine lab on his property while he was away opened the door to the

admission of extraneous offense evidence that officers had previously discovered

a methampethamine lab on Dabney’s property—the very same property involved

here. See Bass, 270 S.W.3d at 563 & n.7.

      The majority opinion focuses on whether the State intentionally did not

disclose its intent to introduce the extraneous offense evidence in its case-in-

chief and instead chose to wait and offer it as rebuttal evidence, thus avoiding

rule 404(b)’s notice requirement. See Tex. R. Evid. 404(b) (requiring that State

provide, upon timely request, reasonable notice in advance of trial of intent to

introduce extraneous offense evidence in State’s case-in-chief). The majority

opinion surmises that the State knew of Dabney’s defensive theory prior to trial,

intended to introduce the extraneous offense evidence to rebut that theory at

trial, but nevertheless did not provide notice of such intent prior to trial. Maj. Op.

at 15. The majority opinion points to statements made by Dabney during the

police investigation and during voir dire that show that his position since the

beginning of the investigation was that he was not involved with the

methamphetamine lab on his property.         Id.   But the State’s knowledge that

Dabney told police that he was not involved with the drug lab did not charge the

State with knowledge that Dabney’s defensive theory at trial would be that he did
not know about the drug lab on his property.2 See, e.g., Gipson v. State, 619

S.W.2d 169, 170–71 (Tex. Crim. App. [Panel Op.] 1981) (explaining that “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”); see also Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App.

1992) (noting that “just because a competent defense attorney recognizes that a

particular defense might be available to a particular offense, he or she could also

decide it would be inappropriate to propound such a defense in a given case”).

And, as the State asserts in its brief on appeal, even if it suspected that Dabney

would present the defensive theory that he did not know about the drug lab on

his property, 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 Tex. R. Evid. 404(b) (requiring notice of intent to introduce extraneous

offense evidence in State’s case-in-chief). Simply because the prosecutor was

aware of and signed a discovery order requiring him to provide the notice

required by rule 404(b) does not imply that the State willfully intended to skirt the

notice requirement and “hide the ball, simply saving up evidence of extraneous

      2
       The majority asserts that Dabney’s defense was “not some esoteric,
unexpected defense. It is essentially a defense of ‘I’m not guilty.’” Maj. Op. at
16. To the contrary, Dabney’s defensive theory—the one that opened the door to
the rebuttal evidence at issue—was more than that; he asserted that
unbeknownst to him, his guests had created a methamphetamine lab on his
property while he was not at home.
offenses to spring on rebuttal.” Jaubert v. State, 74 S.W.3d 1, 7 (Tex. Crim.

App.) (Cochran, J., concurring), cert. denied, 537 U.S. 1005 (2002). Without

evidence that the State intended to introduce the extraneous offense evidence

yet engaged in the “manipulative strategy” of reserving such evidence as rebuttal

evidence, we should not so speculate.         Id. at *6.    Instead, the record

demonstrates that defense counsel opened the door to the extraneous offense

evidence during his opening statement, and the State was entitled to walk

through that open door. See id. at 7–8.

      Viewing the trial court’s ruling under the appropriate standard of review, I

would conclude that it is at least subject to reasonable disagreement whether

defense counsel’s opening statement opened the door to admission of the

extraneous offense evidence to rebut the defensive theory presented that

Dabney did not know about the methamphetamine lab on his property. See

Bass, 270 S.W.3d at 563 & n.7; see also Richardson v. State, 328 S.W.3d 61, 72

(Tex. App.—Fort Worth 2010, pet. ref’d) (upholding admission of evidence of

appellant’s “dumpster diving” for credit card receipts to rebut defensive theory

that appellant unknowingly moved receipts for a coworker).       Consequently, I

would hold that the trial court did not abuse its discretion by admitting the

extraneous offense evidence during the guilt phase of Dabney’s trial.        See

Powell, 63 S.W.3d at 438. Because the majority opinion does not, I respectfully

dissent.
                              /s/ Sue Walker
                              SUE WALKER
                              JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 16, 2014
