                                                                              PD-1514-14
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 6/15/2015 12:37:56 PM
    June 15, 2015                                             Accepted 6/15/2015 2:35:58 PM
                                                                              ABEL ACOSTA
                                                                                      CLERK
                            NO. PD-1514-14

__________________________________________________________________


                    COURT OF CRIMINAL APPEALS
                          AUSTIN, TEXAS

__________________________________________________________________


                    FROM THE 30TH DISTRICT COURT
                     OF WICHITA COUNTY, TEXAS

__________________________________________________________________

                        THE STATE OF TEXAS

                                  V.

                          RONNIE DABNEY

__________________________________________________________________

                         APPELLEE’S BRIEF

__________________________________________________________________

                                             Mark H. Barber
                                             SBOT No. 01708050
                                             900 8TH Street, Suite 116
                                             Wichita Falls, Texas 76301
                                             Tel. 940-761-3009
                                             Fax 940-761-4060


                    ORAL ARGUMENT IS REQUESTED
                                    TABLE OF CONTENTS

LIST OF AUTHORITIES...........................................................................   iii

SUMMARY OF THE ARGUMENT.............................................................. 6

ARGUMENT AND AUTHORITIES............................................................. 7

CONCLUSION AND PRAYER...................................................................         60

CERTIFICATE OF SERVICE....................................................................... 60

CERTIFICATE OF COMPLIANCE.............................................................. 61
                             LIST OF AUTHORITIES

CASES

   Bass v. State, 270 S.W. 3d 557..........................................24, 28
         (Tex. Crim. App. 2008)

   Bustillos v. The State of Texas, 464 S.W.2d 118...............35
          (Tex. Crim. App. 1971)

   De La Paz v. The State of Texas, 279 S.W.2d 336.............22, 24, 28
        (Tex. Crim. App. 2009)

   Devoe v. State, 354 S.W.3d 457........................................14
        (Tex. Crim. App. 2011)

   Gibson v. State, 619 S.W. 2d 169......................................26
        (Tex. Crim. App. 1981)

   Harrell v. The State of Texas, 884 S.W.2d 154.................47
        (Tex. Crim. App. 1994)

   Hernandez v. The State of Texas, 914 S.W.2d 226............32, 37
        (Tex. App.-Waco 1996, no pet)

   Hernandez v. The State of Texas, 176 S.W.3d 821............38, 52, 54
        (Tex. Crim. App. 2005)

   Hoagland v. State, 494 S.W. 2d 186..................................26, 27
        (Tex. Crim. App. 1973)

   Jaubert v. The State of Texas, 74 S.W.3d 1........................24, 29
        (Tex. Crim. App. 2001)

   Martin v. State, 173 S.W. 3d 463.......................................10, 15, 21, 25
         (Tex. Crim. App. 1996)


                                             iii
Meadows v. State, 455 S.W. 3d 166…………………….26
     (Tex. Crim. App. 2015)

Mays v. The State of Texas, 726 S.W.2d 937...................35
     (Tex. Crim. App. 1986)

Montgomery v. The State of Texas, 810 S.W.2d 372........9, 10, 21, 29
     (Tex. Crim. App. 1990)

Neumann v. State, 951 S.W. 2d 538.................................35, 37
    (Tex. App.-Austin 1997, no pet)

Perea v. The State of Texas, 870 S.W.2d 314..................35
      (Tex. App.-Tyler 1994, no pet.)

Powell v. State, 63 S.W.3d 435........................................24
     (Tex. Crim. App. 2001)

Prieto v. State, 879 S.W. 2d 295......................................10, 11
      (Tex. App.-Houston[14th Dist.] 1994, pet. ref’d)

Templin v. The State of Texas, 711 S.W.2d 30, 32........21
    (Tex. Crim. App. 1986)

U.S. v. Brown, 34 F.3d 569 (7th Cir. 1994)..........................13

U.S. v. Stubbs, 944 F. 2d 828 (11th Cir. 1991)……………. 12, 13

Washington v. State, 943 S.W. 2d 501...............................27
       (Tex. App.-Ft. Worth 1997, pet. ref’d)

Webb v. The State of Texas, 36 S.W.3d, 164......................36
     (Tex. App.-Houston[14th Dist] 2000)

Yohey v. The State of Texas, 801 S.W.2d 232 ................25

                                          iv
            (Tex. App.-San Antonio 1990, pet ref’d)




STATUTES

    Tex. Evid. Rule 404(B).....................................6,7,9,12,16,19,23,24,25

    Tex. Evid. Rule 609..........................................35-37

    Tex. Penal Code Sec. 7.2..................................8, 15


TREATISES

    Brown and Rendon, Texas Rules of Evidence Handbook (2015)…12

    Goode, Welborn, Sharlot, Texas Practice-Guide to the Texas .......35, 48
    Rules of Evidence (Volume 1`-3rd Edition)




                                               5
                          SUMMARY OF ARGUMENT

      The State was required to give notice of its intent to offer the alleged

extraneous offense into evidence during its case in chief because it was material to

Appellee’s specific intent to promote or assist in the offense as a party.

Accordingly, the State was required to give notice because it could offer this alleged

extraneous offense (assuming it could prove it beyond a reasonable doubt which is

disputed) into its case-in-chief without the defense ever opening the door through its

opening statement.

      Even assuming arguendo that the defense opens the door to the admission of

an extraneous offense, the State still has to provide notice of its intent to offer the

extraneous offense into evidence. Rule 404(b) by its very terms provides for the

rebuttal of defensive theories and accordingly, the State has a duty to anticipate what

defensive issues it may want to rebut in its case-in-chief.

      The Defendant had given a video and audio statement to the first officer on

the scene and told that officer that he had just arrived shortly before the officer did.

The State knew in advance of trial what the defendant claimed and accordingly,

cannot claim that the extraneous offense was offered as rebuttal to an unanticipated

defense.

      The trial court never reached the issue of whether the prosecutor willfully

                                           6
violated the Court’s pre-trial order because the trial court believed that the

extraneous offense was proper rebuttal evidence and therefore there was no

requirement to provide any notice to the defense. Accordingly, there was no

violation of the court’s pre-trial order. Accordingly, the Court of Appeals finding

that the prosecutor’s conduct was willful was appropriate.

        The admission of the alleged extraneous offense was not harmless error

because this was a circumstantial evidence case and the prosecutor admitted that the

admission of this evidence was “essential” to defeating the defense’s theory of the

case.

                       ARGUMENT AND AUTHORITIES

        Appellee will attempt to respond to the arguments made by Appellant in the

order they are presented in Appellant’s brief.

I.      Appellant was entitled to notice pursuant to Rule 404(b) and the pre-trial
        order that the State intended to offer the extraneous offense during the
        State’s case-in chief.

        A.    Assuming arguendo that the State was able to prove the extraneous
              offense beyond a reasonable doubt, the State could have offered the
              extraneous offense into evidence without the defense making any
              comment in opening statement or upon cross-examination of the
              State’s witnesses because it is arguable that the extraneous offense
              tends in logic and common experience to make a fact of
              consequence more or less probable. Accordingly, the State was
              required to provide notice of its intent to offer this alleged
              extraneous offense into evidence in its case-in-chief.

                                          7
      To determine if the State needed to provide notice of the alleged extraneous

offense in this case, it is necessary to understand the nature of the issues that were

disputed in the case.     First, Appellee was charged with Manufacturing of a

Controlled Substance. (C.R. 1:7) However, it was undisputed that Appellee was not

the “meth cook”. (R.R. 5:6-16, R.R. 6:91) It was undisputed that the actual person

who cooked the methamphetamine had already plead guilty to manufacturing the

methamphetamine.(R.R. 5:6-16, R.R. 6:91) The State had no eyewitnesses that

Appellee was involved in the “cook”. (C.R. 1:81-92; R.R. 6:9-22) The State had

no statements from Appellee that he was involved in the manufacturing of

methamphetamine. (C.R. 1:81-92; R.R. 6:9-22) The State admitted its case against

Appellee was circumstantial in nature. (C.R. 1:81-92) The jury was charged on the

law of parties and the State in closing argument argued to the jury that the

circumstantial evidence showed Appellee was a party to the offense. (R.R. 7:37-

39) Section 7.02 of the Texas Penal Code provides when a person is criminally

responsible for the conduct of another and reads as follows:

             (a)   A person is criminally responsible for an offense committed by
                   the conduct of another if:

                   (2)    acting with the intent to promote or assist the commission
                          of the offense, he solicits, encourages, directs, aids or
                          attempts to aid the other person to commit the offense;

                                          8
      It has also long been the law that mere presence at the scene of offense is not

a crime.   The issue at the trial was whether Appellee was merely present at the

scene of the offense or whether he was a party to the offense because he acted with

intent to promote or assist the commission of the offense.

      It is important to determine when an extraneous offense is admissible on the

issue of intent because Section 7.02 has a specific intent requirement.     Appellant

wrongly assumes that an extraneous offense can only be offered by the State in its

case-in-chief if the defendant “opens the door” through his opening statement or

through cross-examination of the State’s witness. This is not at all the case and has

never been the law. In Montgomery v. State, 810 S.W. 2d 372, 391(Tex. Crim. App.

1990)(on rehearing), this Court held that the trial judge must conclude that the

evidence challenged under Rule 404(b) tends in logic and common experience to

serve some purpose other than character conformity to make the existence of a fact

of consequence more or less probable that it would be without the evidence. In

Montgomery, this Court analyzed the newly enacted Rule 404(b) to determine when

an extraneous offense is admissible. Id. This Court has stated that an extraneous

offense is admissible in the State’s case-in-chief in the following instances:

             That is a “party” may introduce evidence of other crimes, wrongs, or
             acts if such evidence logically serves to make more or less probable an

                                          9
             elemental fact, an evidentiary fact that inferentially leads to an
             elemental fact, or defensive evidence that undermines an elemental fact.

Martin v. State, 173 S.W. 3d     (Tex. Crim. App. 1996).

      “Intent to promote or assist in the commission of an offense” is an

elemental fact that the State is required to prove when they allege that a person is a

party to the offense. Tex. Penal Code Sec. 7.2. The 14th Court of Appeals in Prieto

v. State, 879 S.W. 2d 295 (Tex. App.–Houston [14th Dist.] 1994-writ ref’d n.r.e.)

summarized nicely the law as to the admissibility of extraneous offenses in the

State’s case-in-chief citing this Court’s decision in Montgomery:

             The test for the admission of extraneous offenses requires the
             determination of two issues:

                   (1)    whether the offense is relevant to a material issue in the
                          case, other than the defendant’s character, under Tex. R.
                          Crim. Evid. 404(b); and
                   (2)    whether the probative value of the extraneous offense is
                          substantially outweighed by the danger of unfair prejudice
                          to the defendant under TEX. R. CRIM. EVID. 403.

             Montgomery v. State, 810 S.W. 2d 372, 287-88 (Tex. Crim. App. 1991)
             (opinion on reh’g); Plante v. State, 692 S.W. 2d 487, 491 (Tex. Crim.
             App. 1985) Evidence of an extraneous offense is relevant where, apart
             from character conformity, it tends to establish some elemental fact,
             such as intent. Montgomery, 810 S.W. at 387 (citing Tex. R. Crim.
             Evid. 404(b)). If relevance is established, the evidence should be
             admitted absent a further objection under Rule 403. Id. At 389.
             Should such an objection be made, the trial court must determine
             whether the probative value of the relevant evidence is substantially
             outweighed by the danger of unfair prejudice to the defendant. Id. The

                                         10
             trial courts should favor admission in close cases, in keeping with the
             presumption of admissibility of relevant evidence. Id. The appellate
             court will not reverse the trial court’s decision under this test unless a
             clear abuse of discretion is shown. Id. at 391-392.

      In Prieto, the defendant was on trial for Injury to a Child. The 14th Court of

Appeals opinion never suggests that the defense “opened the door” to the admission

of extraneous offenses evidence in its opening statement or through cross-

examination of the State’s witnesses. During its case-in-chief, the State called a

neighbor, Gwen Alford, to testify that “while appellant was in residing in the

apartment next to hers, she often heard him yelling at Trevor and heard cries of pain.

She once saw him tell Trevor, “Get your m–f–ing ass in this house or I’m going to

beat your g–d–m a–“ On two occasions, she observed appellant grab Trevor roughly

by the arm and throw him several feet into the house.”

      The 14th Court of Appeals held as follows concerning Alford’s testimony:

             First turning to the admissibility of Alford’s testimony under Rule
             404(b) (relevancy), the record shows that her testimony tended to
             establish the material element of appellant’s intent at the time of the
             burning. The extraneous offense is relevant if its presence makes
             appellant’s criminal intent more likely than would be assumed in
             its absence. Plante, 692 S.W. 2d at 493. In this case, appellant’s past
             abusive treatment of Trevor makes his criminal intent to injure Trevor
             more likely than without the past abusive treatment. Because
             Appellant had shown a similarly unlawful assaultive intent toward
             Trevor on prior occasions close in time, it was less likely that he had
             lawful intent during the charged offense. See Robinson v. State, 701
             S.W. 2d 895, 898 (Tex. Crim. App. 1985); see also Plante, 692 S.W. 2d

                                          11
             at 491-92 (both cases applying the “doctrine of chances” to the
             relevance of extraneous evidence). We hold that Alford’s testimony
             was relevant to the issue of intent.

      When a crime requires both intentional or knowing conduct plus a specific

intent (e.g., possession of drugs with intent to distribute), evidence of uncharged

misconduct is necessarily relevant and is likely to be admissible in the prosecution’s

case-in-chief. Brown and Rendon, Texas Rules of Evidence Handbook , 262 (2015)

In U.S. v. Stubbs, 944 F.2d 828 (11th Cir.1991), the State offered testimony of an

extraneous offense through a co-defendant during its case-in-chief as follows:

             Q.    You stated that Mr. McBride [defendant’s boyfriend] and Ms.
                   Stubbs [defendant] are unemployed. Howe do they maintain
                   themselves?
             A.    They sell herb, marijuana.

      Defendant objected that the testimony was inadmissible pursuant to Rule

404(b). The Court summarized the law and ruled as follows:

             We have adopted a three-part test to govern the admissibility of
             evidence under Rule 404(b):

                   (1)    the evidence must be relevant to an issue other than
                          defendant’s character;
                   (2)    the probative value must not be substantially outweighed
                          by its undue prejudice;
                   (3)    the government must offer sufficient proof so that the jury
                          could find that the defendant commited the act.

             All three requirements are satisified here; the first two are met because
             “[e]vidence of prior drug dealings is highly probative of intent to

                                         12
             distribute a controlled substance, as well as involvement in a
             conspiracy.

      The defense did not “open the door” to this evidence through any means. It

was admissible to show the specific intent element (intent to distribute) and to show

that he was a party to a conspiracy in the State’s case-in-chief and was not “rebuttal

evidence”.

      In U.S. v. Brown, 34 F.3d 569 (7th Cir.1994), the defendant was on trial for

conspiracy and attempted purchase of cocaine. The government offered in its case-

in-chief four witnesses that testified that the defendant either bought drugs from

them or sold drugs to them. Id at 572. The Court stated that “the testimony was

only meant to establish that if he committed the acts with which he was charged he

committed them intentionally, not inadvertantly. Id at 573. The Court held as

follows:

             Generally, evidence of past bad acts is inadmissible as proof of a
             defendant’s character and propensity to commit crimes; however, under
             certain circumstances conditions prior bad acts may be admitted as
             proof of an element of a crime, such as intent, if the act demonstrates
             how the defendant’s behavior was purposeful rather than accidental.
             See Fed. R. Evid. 404(b); United States v. Beasley, 809 F. 2d 1273,
             1278 (7th Cir. 1987); 2 Wigmore, Evidence Section 3122 (3d ed. 1940)
             (“the oftener a like act has been done, the less probable it is that it could
             have been done innocently.”). Brown argues that the government’s
             evidence falls below this initial hurdle because he was not claiming to
             have committed the acts with innocent intentions, but rather he was
             claiming not to have committed the acts at all. Where, as here, the

                                           13
             crime charged does require proof of a defendant’s specific intent,
             circuit law hold that 404(b) evidence will always at least be
             relevant....Evidence of prior bad acts may be admissible in a case
             where the defendant is accused of committing a crime with a
             specific intent, despite his concession of intent, if the evidence still
             satisfies the other conditions of admissibility.

Id.
      In this case, the defense did not “open the door” to extraneous offenses.
The

Court held that in a case where the government has to prove “specific intent”

extraneous offenses are admissible in the government’s case-in-chief. Id.

 Accordingly, the government would have to give notice of its intent to offer this

evidence during its case in chief pursuant to Rule 404(b).

      This Court has ruled similarly in Devoe v. State, 354 S.W. 3d 457 (Tex. Crim.

App. 2011). At a pre-trial hearing, the trial ruled that the State could offer various

extraneous offenses into evidence during its case-in-chief.        Devoe, at 469-70.

Obviously, the defendant had not “opened the door” to the admission of the evidence

because the trial had not even started. This Court ruled as follows:

             We note that Appellant contends that because “no one was challenging
             the State’s version of events, “the introduction of the extraneous
             offenses was unnecessary to provide identity or any of the other Rule
             404(b) exceptions. The argument is without merit. Appellant did not
             plead guilty, and he argued at closing against a finding of guilt. When
             the identity of the perpetrator can be established by circumstantial
             evidence only, identity is a contested issue even if the defense rests with
             the State, puts on no evidence and raises no defensive theories. See

                                          14
               Jones v. State, 568 S.W. 2d 847, 858-60 (Tex. Crim. App. 1978).

Id., at 470-71.

       Similarly, in this case the State admitted to the Court that this was a

circumstantial evidence. Accordingly, under this Court’s ruling the extraneous

offense was admissible on the issue of “specific intent” even if the State raised no

defensive theories in its opening statement or cross-examination.                 Id.

Accordingly, the State was required to provide notice under Rule 404(b) and the pre-

trial order.

       In this case, the State was required to prove that not only did a person

intentionally or knowingly manufacture methamphetamine, it had to prove that

Appellee had the specific intent to promote or assist the commission of the offense.

See Tex. Penal Code Sec. 7.02. Accordingly, the State had the burden to prove the

elemental fact of Appellee’s specific intent to promote or assist in the commission

of the offense. In Martin, this court said the that a “party” may introduce evidence

of other crimes, wrongs, or acts if such evidence logically serves to make more or

less probable an elemental fact, an evidentiary fact that inferentially leads to an

elemental fact, or defensive evidence that undermines an elemental fact. Martin,

173 S.W. 3d at 466.      The State’s offer of this alleged extraneous offense went to

an elemental fact and therefore was not “rebuttal evidence.” As a result, the State

                                          15
was required to provide notice of its intent to do so. The trial court erred in allowing

the alleged extraneous offense into evidence.

B.    Assuming arguendo that the State was able to prove the extraneous
      offense beyond a reasonable doubt, the State had to provide notice of its
      intent to offer the extraneous offense because the notice requirement still
      applies even if the defense “opens the door” to the admission of the
      extraneous offense.


       Rule 404(b) provides as follows:

             (B)    Other Crimes, Wrongs or Acts. 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.


      Approximately four months before the trial, Appellee requested that the State

provide notice of any extraneous offenses it intended to offer in its case in chief.

(C.R. 1:26-27) On or about May 24, 2012, Appellee filed a “Request for Notice of

State’s Intention to Use Evidence of Extraneous Offenses at Trial”. (C.R. 1:26-27)

The notice requested the following:

                                      Rule 404(b)


                                          16
             Pursuant 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.

(C.R. 1:26-27)

      On or about May 24, 2012, the Court entered a pre-trial order which stated in

part as follows:

             8.    NOTICE OF EXTRANEOUS OFFENSES. The Prosecution
                   shall provide reasonable notice of any such extraneous offenses
                   it intends to introduce at either stage of trial.


The prosecutor actually signed the pre-trial order (C.R. 28) and at a final pre-trial

hearing on September 7, 2012, Appellee reminded the Court that pre-trial orders had

already been signed. (R.R. 2:7)

      On August 27, 2012, the State filed The State’s Notice of Extraneous Offense,

Prior Bad Acts, & Prior Convictions. (C.R. 1:61). The document read as follows:

             The State of Texas files this notice of intent to prove up the following
             at the punishment phase of the trial:

                   1.     The Defendant committed the offense of Driving While
                          Intoxicated in Wichita County, Texas on or about June 16,
                          2012. The Defendant blew a .12 on the breath test at jail.
                          The Defendant is charged by information in 57782-F with
                          this offense. A copy of the report and videos are available

                                         17
                           for review in the State’s file in this cause.

 (C.R. 1:61)

The State gave no other written notice of its intent to offer extraneous offenses into

evidence. (C.R 1:61)

      On September 17, 2012, both the State and Appellee conducted their

respective voir dire of the jury panel and a jury was selected (R.R. 4) During voir

dire, Appellee questioned the panel as to whether it was possible that an innocent

person could be found in suspicious circumstances and be arrested although not

actually guilty of an offense. (R.R 4:146-47). On September 18, 2012, opening

statements were made and the State called eight witnesses to the stand before the

end of the day (R.R. 5:7-117)

      In his opening statement, Appellee’s counsel made the following comments:

               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 themself to be innocent when they are, in fact,
               innocent. That’s what happens in this case. Ronnie is living that in
               real life.


(R.R. 5:16-17) Additional statements were made that Appellee was innocent, had

come home just minutes before the police showed up, and was unaware that an

individual was on his property manufacturing methamphetamine (R.R. 5:16-20).

                                           18
      On the third day and last day of the guilt/innocence phase of the trial

(September 19, 2012) the State filed a brief entitled “The State’s Bench Brief on

Rebutting the Defensive Theory of Accident/Mistake.” (C.R. 1:81-91) The State

argued in its brief and to the Court that an extraneous offense (Manufacturing of a

Controlled Substance) should be allowed into evidence in its case-in-chief through

Bobby Dilbeck, even though no notice had been given as required by Rule 404 (b)

and the Court’s pre-trial order.       (C.R. 1:81-91; R.R. 6:9-22) Specifically, the

prosecutor told the Court the following:

               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...


(R.R. 6:11-12) The prosecutor further told the Court the following:

               The similarities between the 2004 event and this event is almost
               identical except the meth lab is in the trailer not the shop. But otherwise,
               it’s his residence, same place, he’s present when the search warrant is
               executed, and all of these acutrements of a meth lab are found right
               there.

(R.R. 6: 14)

      At the hearing outside of the presence of the jury, Appellee objected on the

grounds that Rule 404(b) requires the State to provide notice of any extraneous

offense that it intends to offer during its case in chief. (R.R. 6:15-22). The State

                                            19
argued in its written proffer and to the court that it did not have to provide notice to

Appellee of its intent to offer this extraneous offense in its case-in-chief because it

was “rebuttal evidence” which was offered to rebut the defensive theory of accident

or mistake. (C.R. 1:81-91; R.R. 6:9-21) The Court ruled that evidence of the

extraneous offense was admissible. (R.R. 6:21)

      Interestingly, Dilbeck testified that he had worked for the Wichita County

District Attorney’s Office for almost four years (R.R. 6: 23) This was well before

Appellee was arrested on the present charge. Nonetheless, Dilbeck admitted that

his own boss, the prosecutor, had never interviewed him about the events that

occurred in 2004 until after the second day of trial. (R.R. 6:28).     Dilbeck testified

that he had not looked at the probable cause affidavit until the morning of the third

day of trial. Dilbeck’s report was not in the State’s file prior to trial. (R.R. 6:16).




      The State contends that the extraneous offense was “rebuttal evidence” and as

a result, it does not have to comply with Rule 404 (b). The State confuses this

Court’s prior rulings and the law on extraneous offenses. It is a generally accepted

proposition of law that a defendant is entitled to be tried on the accusation in the

                                           20
State’s pleading and not for a collateral crime or for being a criminal generally.

Templin v. State, 711 S.W. 2d 30, 32 (Tex. Crim. App. 1986). Rule 404(a) generally

prohibits the use of character evidence to prove conforming conduct. The first

sentence of Rule 404(b) reiterates this principle by specifying that evidence of other

crimes, wrongs, acts is not admissible where the purpose is to “show action in

conformity with” that character. See Tex. Evid. Rule 404(b) However, this type

of evidence is admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity or absence of mistake or accident.

Tex. Evid. Rule 404(b). In Montgomery v. State, 810 S.W. 2d 372, 391(Tex. Crim.

App. 1990)(on rehearing), this Court held that the trial judge must conclude that the

evidence challenged under Rule 404(b) tends in logic and common experience to

serve some purpose other than character conformity to make the existence of a fact

of consequence more or less probable that it would be without the evidence. One

well-established rationale for admitting evidence of uncharged misconduct is to

rebut a defensive issue that negates one of the elements of the offense. Martin v.

State, 173 S.W. 2d 463, 466 (Tex. Crim. App. 1996); Montgomery, 810 S.W 2d at

387. That is a “party” may introduce evidence of other crimes, wrongs, or acts if

such evidence logically serves to make more or less probable an elemental fact, an

evidentiary fact that inferentially leads to an elemental fact, or defensive evidence

                                         21
that undermines an elemental fact. Martin, 173 S.W. 3d at 466. But a mere denial

of commission of an offense generally does not open the door to extraneous offenses

because, as appellant properly points out, a defendant generally denies commission

of the offense at trial-that is the reason for having a trial. De La Paz v. State, 279

S.W. 3d 336 (Tex. Crim. App. 2009) It seems evident that the “other purposes”

listed in Rule 404(b) that justify the admission of an extraneous offense are primarily

to allow the State to rebut or offer evidence to overcome defensive theories. See

Tex. R. Evid. 404(B) For example, an accused will defend against an allegation

claiming that he did not intend to commit the crime thus putting intent in issue. An

accused will claim that he was not the person who committed the crime or that he

had an alibi putting identity in issue.   An accused will sometimes contend that the

alleged criminal conduct was an accident or mistake thus challenging the issue that

he did not intend to commit the crime. Because an extraneous offense has to be

offered “to make the existence of a fact of consequence more or less probable”, the

Rule 404(b) notice provision puts a burden on the State to evaluate a case pre-trial

to determine what issues (facts of consequences) will be material to proving its case

and/or raised by the defense and provide the proper pre-trial notice if it intends to

offer an extraneous offense in its case-in-chief. This is, of significance, because the

State at trial and at the hearing on Appellee’s Motion for New Trial claimed that

                                           22
since it was rebutting the defensive theory of mistake or accident in its case in chief,

it did not have to provide the notice required by Rule 404(b) because such evidence

was “rebuttal evidence”.      (C.R. 1:81-92; R.R. 6:9-21;R.R. 9:4-10) Rule 404(b)

provides that the “absence of mistake or accident” is one of the “other purposes” that

make extraneous offenses admissible. Rule 404(b) states clearly that if the State is

going to offer an extraneous offense to show an absence of mistake or accident in its

case in chief that it has to provide the Appellee notice when it is timely requested.

However, the State contended in its trial brief and at the hearing on Appellee’s

Motion for New Trial that it did not have to provide notice of this extraneous offense

because it was rebuttal evidence because it was used to rebut a defensive theory.

(C.R. 1:81-92; R.R. 6:9-21; R.R. 9:4-10) The State’s logic would make the notice

provision of Rule 404(b) null and void. According to the plain meaning of Rule

404(b), if the State claims they are offering the evidence on the issue of absence of

mistake or accident the State has to provide notice of the extraneous offense prior

to trial if requested. However, if the State claims they are offering the evidence in

its case-in-chief to rebut the defensive theory of mistake or accident, then it is

rebuttal evidence and they do not have to provide notice. In short, all the State ever

has to do is claim it is rebutting a defensive theory in its case-in-chief and it does not

have to provide notice. For example, they could claim they are rebutting the

                                           23
defensive theory of alibi instead of offering the extraneous offense on the issue of

identity and therefore transform it into rebuttal evidence such that they would not

have to provide notice. One could go to every “other purpose” mentioned in Rule

404(b) and continue to show the ridiculous argument made by the prosecutor at trial.

The State relies on this Court’s decisions in Powell v. State, 63 S.W. 3d 435, 439-

440 (Tex. Crim. App. 2001), Bass v. State, 270 S.W. 3d 557 (Tex. Crim. App. 2008),

Jaubert v. State, 74 S.W. 3d 1 (Tex. Crim. App. 2002) and De La Paz v. State, 279

S.W. 3d 336 (Tex.Crim. App. 2009) to argue that it presented “rebuttal evidence” in

its case-in-chief and did not have to provide notice under Rule 404(b). However,

none of these cases in anyway deal with providing notice under Rule 404(b) when

the State offers evidence of an extraneous offense in its case-in-chief. All these

cases stand for is that the defense “opens the door” to the admissibility of

extraneous offenses if it raises its defenses in opening statement or through cross-

examination of a State’s witness. This is summarized by this Court’s holding in

Bass v. State, 270 S.W. 557, 563 (Tex. Crim. App. 2008) as follows:

            Our case law supports a defense opening statement, like that made in
            this case, opens the door to the admission of extraenous-offense
            evidence, like that admitted in this case, to rebut the defense the
            defensive theory presented in the defense opening statement. See
            Powell v. State, 63 S.W. 3d 435, 438-440 (Tex. Crim. App. 2001).




                                        24
      These cases discuss the fact that the defense “opens the door” to the admission

of evidence if it raises a defense. This is consistent with this Court’s opinion in

Martin where this court held as follows:

             That is a “party” may introduce evidence of other crimes, wrongs, or
             acts if such evidence logically serves to make more or less probable an
             elemental fact, an evidentiary fact that inferentially leads to an
             elemental fact, or defensive evidence that undermines an elemental fact.


Martin, 173 S.W. 3d at 466.        In short, the defense “opens the door” to the

admission of the extraneous offense when it raises a defensive issue in opening

statement or in cross-examination because there is a material disputed issue of fact.

See Tex. R. Evid 401, 402. However, it does not make the evidence “rebuttal

evidence” such that notice of the extraneous offense does not have to be given

pursuant to Rule 404 (b) or that the witness who will provide this “rebuttal evidence”

would not have to be named on a witness list.

      The State claims that the Yohey v. State, 801 S.W. 2d 232 (Tex. App.-San

Antonio, 1990, pet. ref’d) as its authority for its position. However, like many of

the statements made by the prosecutor at the trial, his statement that the Yohey case

was applicable was misleading. In Yohey, the defense during its case-in-chief

called a psychiatrist who testified that “the killings were not the result of

premeditated acts by the Appellee, that Appellee was incapable of putting together

                                           25
an elaborate plan, and that Appellee was not a man of violence save in limited

circumstances.” Id, at 236. After the defense rested, the State called witness

during its rebuttal and proved up extraneous offense.        The Court held that the

notice requirements of Rule 404(b) only applied to extraneous offenses that the State

intends to offer in its case-in-chief and not during rebuttal. Id, at 235. Yohey does

not stand for the proposition that if the State offers an extraneous evidence during

its case-in-chief, it can rename it “rebuttal evidence” and avoid the notice

requirements of Rule 404(b). The State also relies on Gibson v. State, 619 S.W. 2d

169 (Tex. Crim. App 1981) and Hoagland v. State, 494 S.W. 2d 186 (Tex. Crim.

App. 1973) in contending that State does not have to give notice of its intent to offer

an extraneous offense in its case-in-chief at guilt/innocence. Both of these cases

were decided prior to the Texas Rules of Evidence were enacted and this Court in

Meadows v. State, 455 S.W. 3d 166 (Tex. Crim. App. 2015) held that the Texas

Rules   of   Evidence    overruled    prior    common-law     evidentiary   doctrines.

Nonetheless, neither case suggests that the Rule 404(b) notice requirement is

inapplicable when the State attempts to offer evidence of an extraneous offense after

the defense has “opened the door” through its opening statement or cross-

examination of a State’s witness. In Gipson, the Defendant plead guilty to the

charges and at punishment the Defendant testified that he was forced to rape the

                                          26
victim. Id at 619. In its true rebuttal case, the State offered other alleged rape

victims of the defendant to rebut the claim that defendant was forced to rape the

victim in the case at bar. Id. at 619.     This case is not in any fashion similar to the

one before the Court. In Hoagland, the Defendant testified in his case-in-chief that

he did not touch the girl’s breasts or private parts and that the girl in question actually

kissed him. Hoagland, at 186.During its true rebuttal case, the State called another

alleged 10 year old victim who testified that the Defendant exposed himself to her.

Id. at 186. Again this case, the facts of this case are not similar to the one before

this court. The last case cited by the State which it claims supports its position that

it was not required to give notice of its intent to offer the alleged exraenous offense

into evidence during its case-in-chief because it is “rebuttal evidence” is Washington

v. State, 943 S.W. 2d 501 (Tex App.-Fort Worth 1997) Washington is another case

where the State offered evidence of an extraenous offense during its rebuttal case

after the defense put on an expert witness of which it had not notice. This case

again is vastly different from the case at hand.

      The State cites no case to this Court that stands for the proposition that when

the defense allegedly opens the door to the admission of an extraneous offense in its

case-in-chief, that Rule 404(b) does not apply. What the State wants this Court to

do is to legislate from the bench do away with the notice requirement of Rule 404(b).

                                            27
If the Court follows the State’s logic, the State will never have to provide notice of

any extraneous offense because either the defense will open the door through its

opening statement or through trying to cross-exam the State’s witnesses. The

question has to be asked: “When would the notice requirements ever apply to a fact

situation?” Additionally, what the State does not point out is that the defense relies

on the notice provisions to develop its trial strategy. Further, the logic of the State’s

position would also change the rules concerning witness lists. The defense could

ask for a witness list pursuant yet the State would not have to list the “rebuttal

witnesses” of these alleged extraneous offenses. This is all clearly contrary to the

public policy statement made in the Michael Morton Act whose purpose was to

prevent the hiding of witness and other information.

      The Court of Criminal Appeals cases cited by the State in its trial brief (De La

Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009); Bass v. State, 270 S.W.3d

557, 562 (Tex. Crim. App. 2008) in no way deal with the notice requirement of Rule

404(b).   Both stand for the proposition that an defendant through its opening

statement can give notice of what its defensive theory is such that the State can rely

on that and present extraneous offenses during its case-in-chief on the contested

issue. As the Court would say in Montgomery, under the circumstance presented in

those two cases, the opening statement puts a fact in issue and the extraneous

                                           28
offenses offered during its case-in-chief” make the existence of a fact of

consequence more or less probable”. Montgomery, at 391.

This is why it is essential that it is understood that Rule 404(b) primarily allows

extraneous offenses into evidence to challenge the issues that the defendant puts in

issue such as intent, alibi, opportunity, mistake or accident. Accordingly, the State

has some burden to anticipate these defensive theories and provide notice of the

extraneous offenses during its case-in-chief. To rename something a “rebuttal of a

defensive theory” such that it becomes “rebuttal evidence” and not subject to the

notice provision is to legislate from the bench and wipe away Rule 404(b). If the

prosecution’s argument stands, prosecutors can play games with Rule 404(b) and

surprise an accused. Judge Cochran in her concurring opinion in Jaubert v. The

State of Texas, 74 S.W.3d 1, (Tex. Crim. App. 2002) stated as follows:

             I join the majority opinion. I add this concurrence simply as a
             reminder that the 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, Section
             3(g), and article 38.37 is to ensure that criminal proceedings are not a
             contest of clever gamesmanship or trial by ambush.

Jaubert, at 5-6.

      Rule 404(b) is clearly violated in both the letter and spirit of the law when

instead of offering evidence to show “absence of mistake or accident” it is offered

to “rebut the defensive theory of mistake or accident”. According to the State, the

                                         29
addition of five words allows it not to give notice to the Defendant of an offense for

which he was never arrested, indicted or convicted. This clearly the striking of a

“foul blow” described by Judge Cochran in Jaubert.

C.    The State knew well before the trial that the Defendant would claim that
      he was merely present at the scene of the offense and not a party to the
      offense. Accordingly, he cannot claim that the extraneous offenses were
      “rebuttal evidence” to a defensive theory he could not anticipate.

      Further, the prosecutor mislead the trial court in suggesting that he could not

anticipate the defensive theory of mistake or accident and therefore his rebuttal of

that defense theory was rebuttal evidence. (C.R. 1:81-92) In reviewing the State’s

file, counsel noticed that Officer Dottie Whitefield (the first officer on the scene)

had interviewed Appellee and recorded his statement. Appellee filed a motion for

the production of this statement. At the final pre-trial, there was a discussion about

this statement in the presence of the Court (R.R. 2:4-7) The State represented that

they obtained the video but that the audio did not work. (R.R. 2:4–7) Nonetheless,

Officer Whitefield admitted that Appellee told her at the scene that he had just

arrived at his house before she had:

             Q.    Officer, did you review your report before testifying today?

             A.    Yes.

             Q.    Did it refresh your memory


                                         30
              A.   Yeah.

                   Mr. Barber: Your Honor, I’d ask to be able to review it, discuss
                               it with the officer.

                   Mr. Gillespie:       I tender a copy of the report.

                   Court:                      So noted
(R.R. 5:57)

              Q.   All right. Now, did you Mirandize and interview any of these
                   folks about their knowledge of what was going on out there?

              A.   I Mirandized them.

              Q.   Okay. Did you interview them?

              A.   I asked them what—I believe I asked them about what was going
                   on over in the shed, yes.

              Q.   Okay. Now, for some reason that video and audio didn’t record;
                   is that correct?

              A.   Oh, that, I don’t know.

              Q.   Okay. Have you reviewed the video or audio recording?

              A.   Not since.

              Q.   Okay. Because it says, on video and audio I Mirandized all
                   subjects.

              A.   Uh-huh.

              Q.   Correct?

              A.   Yes.

                                          31
             Q.     And Mr. Dabney said that he had only been there a few minutes.
                    Correct?

                    Mr. Gillespie:      Objections. Calls for hearsay.

                    The Witness:        Yes.

(R.R. 5:59-60)

      The State had in its file the report of Officer Whitefield (R.R. 5:57). The

report clearly stated that Appellee claimed to have just arrived at the scene. (R.R.

5:59-60). The State knew that Defendant had given a recorded statement to the first

officer that had arrived on the scene. (R.R. 5:57) Yet, the prosecutor had the audacity

to claim that it was offering the extraneous offense as rebuttal evidence to rebut

unanticipated evidence. (C.R. 1:81-92; R.R. 6:9-21; R.R. 9:4-10).

      In Hernandez v. The State of Texas, 914 S.W.2d 226, 234-235 (Tex. App.-

Waco 1996, no pet.), the Waco Court of Appeals dealt with the argument made by

the prosecutor in this case. The Court stated as follows:

             Finally, the State argues that extraneous-offense testimony is a form of
             rebuttal evidence, and that Rule 404(b)’s notice requirement is not
             applicable to rebuttal evidence. See id. Even though the testimony in
             question was offered during the State’s re-direct examination of Cantu
             in the State’s case-in-chief, the State urges us to treat the testimony as
             rebuttal evidence. The State opines in its brief: “Where Appellee has
             opened the door to otherwise inadmissible evidence through cross-
             examination, how could the State be aware that the situation would
             arise so as to be able to prepare a pretrial notice?

                                          32
            First, the State’s own motion shows that it was aware of the situation
            and had already attempted to provide the requisite pre-trial notice of the
            event. Cantu gave a statement to police on October 5, 1993, describing
            the extraneous offense in question. The State has argued that this
            statement was available to the defense over a year before the trial
            through open-file discovery. Obviously, it was also available to the
            State. Further, in the untimely “State’s Motion to Introduce
            Extraneous Offenses in its Case-in-Chief,” the State lists the same
            extraenous offense that is in question: “On an occasion during the last
            weeks of August, 1993, Defendant hit or punched [the victim] on or
            about the stomach during a fight with Berlinda Cantu.”
            Second, Rule 404(b) plainly requires that the State give reasonable
            notice “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.” Id.
            (Empahsis added). The literal text of the rule demonstrates the fair
            objective meaning of the rule—that it applies during the State’s case-
            in-chief. See Hernandez v. State, 861 S.W. 2d 908, 909 (Tex. Crim.
            App. 1993). The Code of Criminal Procedure dictates the order of
            proceeding in a trial:

                   4.    The testimony of the part of the State shall be offered
                   5.    The nature of the defenses relied upon and the facts
                         expected to be proved in their support shall be stated by
                         defendant’s counsel.
                  6.     The testimony on the part of the defendant shall be offered.
                  7.     Rebutting testimony may be offered on the part of each
                         party.
            Tex. Code Crim. Proc. Ann. Art 36.01 (Vernon Supp. 1995) (emphasis
            added). Plainly, the State cannot introduce “rebutting testimony” during
            its case-in-chief because the defendant has yet to introduce any
            evidence for it to rebut.

      The State also contended at trial that it had given proper notice to the defense

that it intended to offer evidence of an extraneous offense of Manufacturing of a


                                         33
Controlled Substance in its case-in-chief by filing a Rule 609 notice concerning a

conviction for possession of a controlled substance. (C.R. 1:81-92; R.R. 6:9-21).

On or about November 1, 2011, the State filed its Original Notice of Intent to

Introduce Prior convictions “for impeachment purposes as provided in Rule 609(f)

of the Texas Rules of Evidence and in the punishment phase of the trial under Article

37.07, Sec 3 of the Texas Code of Criminal Procedure”. (C.R. 1:56-57) The notice

stated as follows:

             The State gives notice of intent to use the following prior convictions

             for impeachment and/or punishment:

                     1) 42517-A                      POCS 8/19/05

(C.R. 1:56-57).

      The State mislead the Court by stating that this somehow put the Appellee on

notice that it intended to offer in its case in chief an extraneous offense of

Manufacturing of a Controlled Substance. Rule 609 provides that “for 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 is a felony or involved moral turpitude”. Tex. Evid.

R. 609. This rule does not allow the introduction of a conviction into evidence

during the State’s case-in-chief. Only if the defendant testifies does it potentially

                                          34
allow the admission of the conviction to “impeach” the defendant’s credibility.

            “A criminal defendant with a prior record thus finds himself hooked on
            the horns of a dilemma. If the defendant testifies, the jury will learn
            of his criminal past and perhaps will convict him because he is a bad
            person. Yet if he remains silent, he runs the risk that the jury will infer
            guilt from his failure to testify.


Goode, Wellborn and Sharlot, Texas Practice-Guide to the Texas Rules of Evidence,

Section 609.1 (Volume 1`-3rd Edition 2002)         Accordingly, counsel had to be

concerned about this conviction for POCS coming into evidence only if the

Defendant testified. Accordingly, the Rule 609 notice gave no notice that the State

intended to offer an extraneous offense of Manufacturing of a Controlled Substance

in the State’s case-in-chief. Secondly, the conviction that was going to potentially

used to impeach the Defendant was for Possession of a Controlled Substance not

Manufacturing of a Controlled Substance. Further, the specific facts or details of

the alleged crime are not allowed into evidence under Rule 609. Although the fact

that a witness has been previously convicted of a crime may be introduced into

evidence, the details of that offense are inadmissible. Mays v. State, 726 S.W.2d

937 (Tex. Crim. App. 1986); Bustillos v. State, 464 S.W.2d 118, 119 (Tex. Crim.

App. 1971) Perea v. State, 870 S.W.2d 314 (Tex. App.-Tyler, 1994, no pet.).

Accordingly, notice that a conviction for POCS is going to be offered under Rule


                                         35
609 provides no notice to a Defendant that the State is going to intend to offer an

extraneous offense of manufacturing in its case-in chief.

      In Webb, the Court of Appeals summarized previous caselaw on what did not

consitute proper notice under Rule 404(b):

             The State argues in its supplemental brief on rehearing that the
             complainant in the extraneous offense (Porter) was on its subpoena list
             and therefore, the Appellee should not have been surprised by the
             State’s intent to present her testimony on an extraneous offense at trial.
             The State’s argument both overlooks and exemplifies the primary
             purpose of Rule 404(b)’s notice provision----to inform the defendant of
             the State’s intent to use extraneous evidence so that the defendant can
             prepare his defense. See Tex. R. Evid. 404(b); Hayden, 13 S.W. 3d at
             77; Self, 860 S.W. 2d at 264. The Texas Court of Criminal Appeals
             has made it clear that the burden of compliance with this rule is on the
             State; no intent is presumed. In Buchanan v. State, 911 S.W. 2d 11
             (Tex. Crim. App. 1995), the Court noted that “the mere presence of an
             offense report indicating the State’s awareness of the existence of such
             evidence does not indicated an ‘intent to introduce’ such evidence in its
             case in chief.” 911 S.W. 2d at 15. Likewise, merely witnesses who
             could give testimony concerning other crimes, wrongs, or acts of the
             defendant does not communicate an intent to use evidence of such
             matters at trial. A witness on the subpoena list could have evidence of
             extraneous offenses as well as other types of evidence; thus, the mere
             fact that the witness is subpoenaed to testify does not necessarily
             support an inference that the witness is being subpoenaed for the
             purpose of giving evidence of other crimes, wrongs, acts..


Webb v. The State of Texas, 36 S.W.3d 164 (Tex. App-14th Dist. 2000)

      Similarly, a Rule 609 notice of a conviction for a different offense which can

only be used to impeach the Defendant if he takes the stand and where no details

                                          36
concerning the alleged offense could come into evidence does not provide notice

that the State intends to offer into evidence a different offense in its case-in-chief.

      Advising defense counsel on the third and last day of the guilt/innocence

phase of the trial is obviously not sufficient notice. Rule 404(b) says the notice has

to be given “in advance of trial”. See Texas Rule of Evid. 404(b). The third and

last day of the guilt/innocence phase is not in advance of trial. When notice was

requested ten months before trial and written notice was given on Friday afternoon

before trial was to begin on the following Monday, the notice was not reasonable.

See Hernandez v. State, 914 S.W.2d 226, 234-235(Tex. App.—Waco 1996, no pet.)

Notice given the morning of trial where Rule 404(b) request was made six weeks

before was not reasonable. Neumann v. State, 951 S.W.2d 538, 540 (Tex. App.—

Austin 1997, no pet.) In Webb, the defendant requested notice six months before

trial and received it on the Thursday before trial on the following Monday. Webb,

at 178. The Court in Webb stated that the Appellee had only one business day

before trial to prepare for the cross-examination of this important witness and to

make any necessary adjustments to trial strategy and accordingly the notice was not

timely. Webb, at 178. In this case, counsel had no time to prepare an argument

against the admissibility of the extraneous offense, no time to prepare a proper cross-

examination, no time to investigate the allegations (reviewing lab reports,

                                           37
photographs, etc.) and it was much too late to change trial strategy. The Court of

Criminal Appeals has held that the Rule 404(b) notice provision has to be complied

with or the proposed evidence is not admissible:

             The State, therefore argues that the Rule 404(b) notice provision is not
             a rule of evidence admissibility. We disagree. Rule 404(b) literally
             conditions the admissibility of other-crimes evidence on the State’s
             compliance with the notice provision of Rule 404(b). See Rule 404(b)
             (other-crimes evidence may be admissible “provided that upon timely
             request by the accuseed 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”); Roethel, 80
             S.W. 3d at 281 (rejection claim that State’s failure to comply with the
             notice provision similar to notice provision of Rule 404(b) does not
             automatically render such evidence inadmissible). This is not to say
             that a trial court is without discretion to utilize its powers (such as
             granting a 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 when the State has not complied with the notice provision of
             Rule 404(b).


Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005).For all of the reasons

stated above, the State violated Rule 404(b) and the trial court erred in allowing the

admission into evidence of the extraneous offense.

      Appellee also contends that trial court erred in allowing the admission of the

evidence of the alleged extraneous offense because it was not proven to the trial


                                         38
court beyond a reasonable doubt.

      On the morning of the third and last day of guilt/innocence, the prosecutor

right before the testimony was to start filed a bench brief and ask the court to admit

evidence of the extraneous offense.         In its bench brief, the State made the

following statement:

            When the North Texas Regional Drug Task Force executed a search
            warrant at the Defendant’s residence of 823 Rathgeber on July 1, 2004
            officers located a meth lab in the Defendant’s trailer. The Defendant
            was also present on the property. The Defendant signed a judicial
            confession, admitting that he possessed 4 grams or more but less than
            200 grams of methamphetamine that came out of the lab on his
            property.
(C.R. 1:81-92)

      This statement is completely false as will be shown below.

             In the bench brief, the State stated as follows:

                   The similarities between the 2004 event and this event are
                   compelling; an active meth lab, at the same residence, with the
                   defendant present when the search warrant is executed.


(C.R. 1:81-92)

      This statement is also false as will be shown below.

      During his argument to the Court, the prosecutor told the Court the following:

             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

                                          39
               Defendant was present. There was an active meth lab in that trailer...


R.R. 6:11-12) The prosecutor further told the Court the following:

               The similarities between the 2004 event and this event is almost
               identical except the meth lab is in the trailer not the shop. But otherwise,
               it’s his residence, same place, he’s present when the search warrant is
               executed, and all of these acutrements of a meth lab are found right
               there.
(R.R. 6: 14)

      Dilbeck was allowed to testify and upon cross-examination it was shown that

there was no active methamphetamine lab present, all the ‘acutrements” were not

there and that methamphetamine could not have been manufactured with what was

found. (R.R. 6:21-33) On these issues, Dilbeck testified as follows:

               Q.    Okay. You didn’t find----anhydrous ammonia is one of the key
                     components, is it not?

               A.    Yes, sir.

               Q.    There was no anhydrous ammonia there, was there?
               A.    We didn’t find any. No sir.

               Q.    There’s no lithium batteries or lithium battery things, were there/

               A.     Not that I recall

               Q.    There was no hydrosulfur----no sulfuric acid type materials or
                     cans where you can get the sulfuric acid or the salt?

               A.    No, sir.


                                            40
              Q.   The ether can be used for other things, correct?

              A.   Yes, sir. Everything used to make methamphetamine can be
                   used for a legitimate purpose.
(R.R. 6:28-29)

      He further testified as follows:

              Q.   I don’t see anything that can be used for—that you found any
                   containers used for a generator; is that correct?

              A.   I don’t recall finding any. No, sir.
(R.R. 6:30)

              Q.   And there was no smell of any chemical odor when you got there,

                   was there?

              A.   No, sir not that I can recall.

(R.R. 6:31)

      To start the manufacturing process, you have to have pseudoephedrine,

lithium (typically from batteries) and anhydrous ammonia.             This process of

manufacturing methamphetamine was discussed with the State’s chemist the day

before:

              Q.   Would it be fair to start the meth cook you have to have
                   pseudoephedrine and anhydrous ammonia and lithium of some
                   type and maybe lithium batteries or some other source to create
                   the chemical reaction you need?

              A.   Yes, sir.


                                          41
Q.   Okay. And those three things when combined together will, in
     fact, make a chemical reaction, will they not?

A.   Correct. Yes.

Q.   Okay. And then----well, I’m having a hard time here.
     Anyway, after that do they—do they add ether to it of some type?

A.   Generally yes.

Q.   Okay. And does that make----

A.   Some solvent.

Q.   Huh, I’m sorry?

A.   Some solvent.

Q.   Could be ether, could be something else.

A.   Yes, sir, it could be.

Q.   Okay. And does that make the liquid meth? Is it liquid meth
     here at this point?

A.   It depends of what you’re talking about.

Q.   Okay.
Q.   Well, what—is it a gas, is it a solid, or is it a liquid?

A.   It’s in solvent so it would be liquid.

Q.   Okay. So it’s a liquid here–

A.   Yes.

Q.   —and then it stays a liquid here.

                              42
            A.     Correct.

            Q.     And then it has to be powdered, is that right, at some point?

            A.     Yes, sir. That’s right.

            Q.     Okay. And to powder it, you need to create a gas; is that
                   correct?

            A.     Correct

            Q.     Can you tell us what kind of gas?

            A.     It’s hydrogen chloride

            Q.     Okay.

            A.     – or HCL

            Q.     And then you bubble that gas into this liquid solution and then it
                   will powder out into this solid-type methamphetamine.
                   Correct?

            A.     Yes, sir. It converts the base form of the methamphetamine to
                   the solid form.


(R.R. 5:38-40)

      Karl King, the lead investigator on the case, also testified in great detail about

the process of manufacturing methamphetamine. (R.R. 6:68-70; 75-76; 80; 88)

King testified that you have to have pseudoephedrine, anhydrous ammonia and

lithium to start to make methamphetamine. (R.R. 6:68-70; 75-76; 80; 88)          Those

                                          43
three chemically react.(R.R. 6:68-70; 75-76; 80; 88) You take the reaction material

and add either ether (obtained from starter fluid) or Coleman fuel. (R.R. 6:68-70;

75-76; 80; 88) A solid substance goes to the bottom and the “meth oil” rises to the

top. (R.R. 6:68-70; 75-76; 80; 88) You then have to have a filter and you filter the

“meth oil” from the solid substance (which is often called the bones). (R.R. 6:68-70;

75-76; 80; 88) To do so, you have to have a filter to drain it and usually coffee filters

are used to catch the solid substance (bones). (R.R. 6:68-70; 75-76; 80; 88) You

then have to create HCL gas by mixing salt and sulfuric acid (obtained from drain

cleaner) in a “generator” which is usually a plastic gas can or coke bottle.(R.R. 6:68-

70; 75-76; 80; 88) You put tubing into the generator and pump the gas into the “meth

oil” and it powders.(R.R. 6:68-70; 75-76; 80; 88) There is a distinct chemical smell

throughout all the process. (R.R. 6:70)

      Dilbeck did not find any of the necessary three ingredients to start the

manufacturing process:

             1.     Pseudoephedrine powder or pills;
             2.     Lithium;
             3.     Anhydrous ammonia.

(R.R. 6:23-32)

      Further, he did not find anything to powder with;

             1.     No salt;

                                           44
            2.     No drain fluid or any type of sulfuric acid;
            3.     Or a generator (container).

(R.R. 6: 23-32)

      He did not find anything to filter the liquid from the solid or any coffee filters.

(R.R. 6:23-32) There was no chemical odor associated with the manufacturing

process. (R.R. 6:23-32)

      What did Dilbeck find?

            1.     Powder methamphetamine;
            2.     Tubing;
            3.     Ether (starter fluid); and
            4.     Empty blister packs.

(R.R. 6:23-32)



      Dilbeck admitted that his alleged confidential informant never told him that

Appellee was manufacturing methamphetamine (R.R. 6:31) Appellee was not

arrested for manufacturing (See Dilbeck’s report), was not indicted for

manufacturing or convicted of manufacturing (C.R. 1:81-91; R.R. 6:30-31).

Interestingly, counsel reviewed Dilbeck’s report for the purposes of this appeal and

noted that Appellee was arrested for Possession of Certain Chemicals

(Pseudoephedrine) with Intent to Manufacture (C.R. 1:81-91) He was also arrested

for possession of less than a gram of methamphetamine. (C.R. 1:81-91) Attached

                                          45
as Exhibit 1 to Appellant’s brief at the Court of Appeals was a dismissal showing

that the Possession of Certain Chemicals (Pseudoephedrine) with Intent to

Manufacture was “no billed” by the grand jury. The request to dismiss the charge

was signed by the very prosecutor in this case. In his report, Dilbeck claimed he

found   18.5 grams of crushed pseudoephedrine tablets and under 1 gram of

methamphetamine (C.R. 1:88-91) Although Appellee was arrested for possession of

less than a gram of methamphetamine, he subsequently, plead to possession over 4

grams and under 200 grams of methamphetamine. (States Exhibit 53; R.R. 6:101-

102) After the trial, Appellee told his counsel that the alleged pseudoephedrine

powder (18.5 grams) was tested at the lab and found to be methamphetamine and

not pseudoephedrine and that is why the possession of methamphetamine rose from

a state jail felony amount (less than 1 gram) and became over 4 grams and under 200

grams. Since counsel had no notice hat this “extraneous” was going to be used, he

had never seen the lab report or investigated into the Possession of Chemicals with

Intent to Manufacture. (R.R. 6:9-21) However, it was clear that the State could not

prove Possession of Certain Chemicals with Intent to Manufacture after the

substances were test at the lab was performed and according, 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

                                        46
manufacture, advised the trial court that there was an active meth lab with every

component part present. (R.R. 6:9-21)This was not a hard blow, but a foul one.

      The State could not prove manufacturing because none of the there starting

ingredients was present (pseudoephedrine powder, lithium and anhydrous

ammonia). (R.R. 6:23-33)

      The question of the appropriate standard of admissibility for extraneous acts

evidence was resolved in Harrell v. State, 884 S.W.2d 154, 157-161 (Tex. Crim.

App. 1994) There, the court relying in part on the instruction to the jury as to its

consideration of such evidence, held that the trial judge must be satisfied that the

jury could find beyond a reasonable doubt that the defendant committed the

extraneous offense. Harrell, at 157-161.     The alleged “extraneous” should never

have been heard by the jury. None of the three necessary starting ingredients were

present.(R.R. 6:23-32; R.R. 6:68-70; 75-76; 80; 88) There was no generator and

none of the chemicals required to create the HCL gas necessary to “powder” the

meth oil were found. (R.R. 6:23-32; R.R. 6:68-70; 75-76; 80; 88) No filter or coffee

filters were found.(R.R. 6:23-32; R.R. 6:68-70; 75-76; 80; 88). It is clear that the

State could not prove beyond a reasonable doubt that Appellee committed the

offense of Manufacturing of a Controlled Substance. One of the problems with the

failure to give notice is that Defendants do not have time to investigate into

                                        47
uncharged conduct and prepare a proper objection to the trial court to prevent its

admission. The following statement is instructive:

               Of course, even where the other act which the state proposes to offer in
               evidence was a the subject of a conviction adequate notice may have
               another benefit. It not only permits the accused to prepare a possible
               objection based on Rules 404(b) and 403 but it may be important in
               allowing the trial judge adequate time to reflect and rule on such
               objections.


Goode, Wellborn and Sharlot, Texas Practice Guide to the Rules of Evidence Section
404.6.5 (Volume 1-3RD Edition, 2002).

         Here counsel did not have time to investigate into an allegation that Appellee

had never been arrested for, did not have to time to prepare a proper objection and

did not have time to provide the Court with pertinent case law. The trial court

abused its discretion in allowing the alleged extraneous offense into evidence

because the State could not and did not prove the extraneous beyond a reasonable

doubt.

II.      The trial court agreed with the prosecutor that the alleged extraneous
         offense was true rebuttal evidence and therefore the State was not
         required to comply with Rule 404(b) or the pre-trial order.

         The trial court never reached the issue as to whether the State willful violated

the Court’s pre-trial order because the trial court believed that this was “rebuttal

evidence” and as a result, the State did not have to give any notice of its intent to


                                            48
offer this evidence. (R.R. 6:9-22) Since the Court did not believe the State had to

give notice, it did not find any violation of the pre-trial order. Accordingly, never

made any finding that the prosecutor did not “willfully” violate the pre-trial order.

      During the hearing on whether the alleged extraneous offense was admissible,

the prosecutor never told the Court that he was surprise by the defensive theory of

the case. (R.R. 6:9-22) He never told the Court he had no intention of offering the

extraneous offense into evidence during his case-in-chief, but was forced to because

of the defense’s opening statement. (R.R.6:9-22) The prosecutor knew that the

defendant had given an audio and video statement to the first officer on the scene

because he produced same at the pre-trial hearing (R.R. 2:4-7) The fact that the

Defendant told Officer Whitfield that he had just arrived on the scene a few minutes

before she did was in her report.   (R.R. 5:57-66) The prosecutor knew that none of

his witnesses could testify how long the Defendant had been on the premises prior

to the arrival at the scene. (R.R. 5:61, 5:108, 6:77-78) The prosecutor had Officer

Dilbeck listed as a witness on his witness list but did not have his reports in the

State’s file. This prosecutor had signed the dismissal of the case (Possession of

Certain Chemicals with Intent to Manufacture) when the Defendant was arrested

years earlier. (Exhibit 1 to Appellant’s brief with the Court of Appeals) If he

interviewed Officer Dilbeck, he knew that none of the three essential ingredients to

                                          49
manufacture methamphetamine were not present at the time of his arrest. (R.R.

6:21-23) If he interviewed Officer Dilbeck, he knew that there was no salt or sulfuric

acid present to create the gas which is necessary to powder the liquid solution that is

created during the process of manufacturing methamphetamine.             (R.R. 21-23)

Further, he misrepresented to the trial court that there was an “active meth lab” at

that time. (C.R. 1:81-92; 6:9-22) He represented to the Court in his written proffer

that this was a “circumstantial evidence” case and that this evidence was “essential”

to defeat the defensive theory. (C.R. 1:81-92) The prosecutor knew that by bringing

up on the last day of the guilt/innocence phase of the trial that the defense would not

be able to investigate into the facts of that case.

      What competent prosecutor would not want to offer this evidence during its

case-in-chief in a circumstantial evidence case where none of the State’s witnesses

could testify how long the defendant had been on the premises? The prosecutor

never informed the Court that he never intended to offer the facts surrounding the

alleged extraneous offense into evidence. (R.R. 6:9-22) The prosecutor never told

the Court that he did not know that the defense would be that the defendant was

merely present at the scene of a crime because he had just arrived. (R.R. 6:9-22)

The prosecutor never told the Court that he had made a mistake in failing to provide

notice of this extraneous offense. (R.R. 6:9-22)The only argument that the State

                                           50
made to the Court was that this was rebuttal evidence and that there was no

requirement to give pre-trial notice of its intent to offer this alleged extraneous

offense into evidence at the trial of this case. (R.R. 6:9-22) The Court of Appeals

finding that    the State had to provide notice of its intent to offer the alleged

extraneous offense into evidence as correct and its finding that there was a willful

violation was appropriate.


III.   The Appellant was harmed by the admission of the extraneous offense.

HARM ANALYSIS

       Appellee contends there are three different harm standards that this honorable

court must apply.

       1.      Harm standard for failure to give notice under Rule 404(b)

       This Court of Criminal Appeals also cleared up the harm standard when the

Rule 404(b) notice provision has not been complied with as follows:

               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.” See King v. State, 953 S.W.2d 266,
               271 (Tex. Cr. App. 1997). The issue in cases like this is how to apply
               this standard. We find helpful the Austin Court of Appeals’ discussion
               in Roethel, 80 S.W.3d at 281-282:
               Accordingly, we must assess harm from the violation [a notice
               provision similar to Rule 404(b)’s] against its intended purpose.
               Although the violation of the notice provision resulted in improper
               admission of evidence, we cannot employ the harm analysis used for

                                          51
            violations of the rules of evidence concerning relevancy because the
            purpose of those rules differs from 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 admissible to prove the character of a person
            to show that the commission of the crime at issue is consistent with
            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 effect 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 the evidence used
            for improper reasons. The notice requirement found in [Rule 404(b)],
            however, does not relate to substantive admissibility of the evidence.
            The lack of notice does not render the evidence inherently unreliable,
            but instead raises a question about procedure noncompliance. The
            purpose of the notice requirement is to enable the defendant to prepare
            to meed the extraneous offense evidence. Thus, we must analyze how
            the deficiency of the notice affected [the defendant’s] ability to prepare
            for the evidence.


      The Court in Hernandez said that the Rule 404(b) notice provision of

preventing surprise is a valid consideration in conducting a Rule 44.2(b) harm

analysis. Hernandez, at 825. However, the Court in Hernandez also made the

following statement:

            This is not to say that a trial court is without discretion to utilize its
            powers (such as granting a 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.


                                         52
Hernandez, at 824.

      The Court in Hernandez also stated that it was necessary how the defense

strategy may have been different if the State had provided the proper notice.

Hernandez, at 826.

      Appellee had timely (4 months prior to trial) requested notice from the State

of extraneous offenses that it intended to offer in its case-in-chief. (C.R. 1:26-27)

Appellee had obtained a pre-trial order that required the State to disclose any

extraneous offenses that it intended to offer in its case-in-chief. (C.R. 1:28).

Appellee was not arrested in 2004 for Manufacturing of a Controlled Substance

(C.R. 1:87-91). Appellee was never indicted or convicted of Manufacturing of a

Controlled Substance arising out of the events in 2004 (R.R. 6:30-31). The State

did not advise Appellee’s counsel or the Court that it intended to offer this evidence

until the third and last day of the trial (C.R. 81-91: R.R. 6:23-32) Interestingly, the

State did not interview Dilbeck about this alleged extraneous until after the close of

testimony on the second day of the trial even though Dilbeck worked for the D.A.’s

office. (R.R. 6:23-32) the State did not anticipate this evidence pre-trial, how

could the defense? Dilbeck’s report was not in the State’s file. (R.R. 6:9-22) How

could the defense have been more surprised? The Court of Criminal Appeals stated

as follows in the Hernandez case:

                                          53
             Appellee is correct in asserting that “simply because the defendant
             knew about the extraneous acts does not mean he has been given notice
             of the state’s intent to use the evidence...[or that] he is properly prepared
             to defend against them. A defendant who has asked for notice of what
             uncharged misconduct the State intends to use against him, may think,
             when the State fails to respond, that the prosecutor does not know of
             those prior pecadillos. Thus, he need not be prepared to defend against
             their use because the State is either unaware of .


Hernandez, at 825-826. Appellee’s counsel had never seen Dilbeck’s report, the

lab report or any photographs associated with the events of 2004. (R.R. 6:9-22)

Counsel had no reason to believe the State would try to suggest that Appellee was

manufacturing methamphetamine in 2004. Further, a continuance on the last day

of the guilt/innocence phase would have been the “excuse noncompliance” and not

appropriate. Hernandez, at 824. Additionally, the trial court would not have

granted a continuance. The State argued that it did not have to give notice because

this was rebuttal evidence or alternatively, they gave notice pursuant to Rule 609

when the gave notice that the intended to impeach Defendant with his conviction for

Possession of Methamphetamine over 4 grams.             (R.R. 6:9-22) The trial court

obviously believed that the State was correct in its assertions as he stated “All right.

Mr. Gillespie, you may proceed with this proper evidence.” (R.R. 6:21) The Court

did not make any comment suggesting that it believed the State had violated Rule

404(b) at all. (R.R. 6:9-22) Accordingly, not only would a continuance have

                                           54
excused noncompliance, it obviously would not have been granted.

      After counsel was allowed to argue whether the extraneous should come into

evidence (R.R. 6:9-22), the State’s first witness before the jury was Dilbeck. (R.R.

6:23-32). Appellee’s counsel had no time to prepare a proper cross-examination.

Appellee counsel never got to look at the lab report (R.R. 6:9-22). Appellee’s never

got to look at any photographs that were taken of this alleged lab (R.R. 6:9-22) or

inspect the seized components (R.R. 6:9-22). Appellee never got to investigate into

the allegation at all. Only upon reviewing this matter for the purposes of appeal,

did Appellee’s counsel realize that the charge of Possession of Certain Chemicals

with Intent to Manufactured was no billed. (See (Exhibit 1 to Appellant’s brief at the

Court of Appeals) to Appendix). Counsel did not get to cross-examine Dilbeck on

those matters or present a certified copy of the dismissal to the jury. Counsel had

no time to prepare a proper objection to the extraneous or find case law. If counsel

had been given notice of this extraneous, counsel would have been able to

thoroughly investigate this matter and strongly argue to the trial court that the State

could not prove the extraneous offense beyond a reasonable doubt as discussed

previously in this brief. Any experience trial lawyer knows that preparation is the

key to trial work. A voir dire examination has to be thought through and prepared.

An opening statement has to be thought through and prepared. So to, counsel has

                                          55
to have time to prepare for a motion by the state to introduce extraneous offenses.

Counsel would have requested that the admissibility of this extraneous be taken up

at the pre-trial hearing on September 7, 2012. (R.R. 2:4-6) Alternatively, counsel

would have been prepared to argue to the trial court that the State could not prove

this matter beyond a reasonable doubt. In civil matters, counsel have three days to

prepare for hearings and in criminal matters all motions must be filed seven days

prior to the pre-trial. This is obviously done so counsel will not be caught off guard

at those hearings and can properly prepare for same.

      The Court in Webb stated that the Appellee had only one business day before

trial to prepare for the cross-examination of this important witness and to make any

necessary adjustments to trial strategy and accordingly the notice was not timely.

Webb, at 178 In this, counsel had no time to prepare an argument against the

admissibility of the extraneous offense, no time to prepare a proper cross-

examination of “this important witness”, no time to investigate the allegations

(reviewing lab reports, photographs, etc.) and it was much too late to change trial

strategy. Accordingly, Appellee requests that this honorable court reverse this

matter and remand it for a new trial.

      The State’s own arguments in its trial brief and closing argument show how

important the extraneous offense evidence was to their case. In its trial brief, the

                                         56
State made the following statements to convince the trial court that the extraneous

offense should be admitted:

            7)     Due to the defensive theory of mistake/accident combined
                   with the circumstantial nature of the case and the similarities
                   between the prior meth lab at defendant’s residence and this
                   lab, the probative value of the 2004 offense outweighs any
                   prejudicial effect.


                   First, defense counsel has aggressively advanced the theory that
                   his client is “living a nightmare” of a confluence of unfortunate
                   events that make him look guilty. So, he has clearly advanced a
                   theory of mistake/accident. Second, the 2004 meth lab at the
                   same residence when the defendant was also present obliterates
                   any claim of accident under Professor Wigmore’s “Doctrine of
                   Chances.” The similarities between the 2004 event and this
                   event are compelling: an active meth lab, at the same residence,
                   with the defendant present when the search warrant is executed.
                   Third, there is no remoteness rule for extraneous evidence
                   offered to rebut a defensive theory. See Prince v. State, 192
                   S.W.3d 49 (Tex. App.-Houston [14th Dist.] 2006, pet
                   ref’d)(permitting admission of ten-year-old extraneous offenses
                   because there is no remoteness rule and because the focus is on
                   the similarities between the extraneous offense and the instant
                   offense in determining probative value). Fourth, this is a
                   circumstantial case of party liability. There is no confession
                   by the defendant. And, the defense, through its theory of
                   mistake, has advanced innocent explanations for the
                   evidence tying the defendant to the lab: the smell of ether on
                   his clothes, the existence of the lab on his property, and the
                   baggies of meth in his bedroom. Therefore, this evidence is
                   essential to the State to rebut the defensive theory of
                   accident/mistake. Thus, the probative value of this highly
                   similar evidence of a prior meth lab at the defendant’s residence
                   when the defendant was present outweighs any risk of unfair

                                        57
                    prejudice.

(C.R. 1:86)

      The State in its written memorandum to the trial court said the evidence was
“essential” to

rebut the defensive theory of accident/mistake. Yet, now the State claims that there

was overwhelming evidence of the Defendant’s guilt.

      Also, in closing argument the prosecutor strongly argued that the extraneous

proved that Appellee was manufacturing on this occasion:

              He wants you to think this his client is Harrison Ford from the fugitive,
              but there’s this confluence of unfortunate events that frame him. But,
              ladies and gentlemen, common sense says its’ not an accident if it
              happens twice. That’s why we were able to bring you the 2004
              incident and you got to hear the testimony from Bobby Dilbeck, and
              you got to see the Defendant’s Judicial Confession. And you got to
              hear when they got called out by the CI. CI told the North Texas Drug
              Task Force that Mr. Dabney was selling meth out of his trailer. They
              execute a warrant on the property. He’s present. They have all the
              accoutrement for a meth lab, all the items, pseudoephedrine, the various
              items plus they have meth. You can see his judicial confession. You
              get to consider that because the law----it’s the Doctrine of Chances.
              Something bad might happen to you once that’s an accident, but if it
              happens twice, it’s not an accident. It’s not a mistake. And, ladies
              and gentlemen, that’s important evidence that rebuts their defensive
              theory.


              Mr. Barber used this movie theme, that this is a movie and his client is
              trapped in a movie where he’s trying to–he’s an innocent person
              through this unfortunate set of circumstances, he’s framed. If this is a
              movie, ladies and gentlemen, it’s a sequel. If this is a movie, ladies

                                          58
             and gentlemen, it would be titled Meth Lab at Ronnie’s Part 2. This
             time they move it to the shed. It’s happened twice. That rebuts their
             defensive theory. It’s not an accident, it’s not a mistake. He knew
             what he was doing.

             Making meth is a team sport, we talked about that. Party Liability.
             You all gave me your word that you could apply the law of party
             liability in a case. You told me it was a fair law and that you could
             apply it and I’m holding you to your law–to your word. If you solicit,
             encourage, direct, aid or attempt to aid.
             You can’t make meth without a location. He has the perfect location

             in that shed in that property out in the country. He let them use his

             property.

(R.R. 7:37-39)

      All of the State’s witnesses who testified on the issue admitted that another

man was the actual cook and had already been convicted for that offense. (R.R. 5:6-

16; R.R.6:91) Additionally, the none of the State’s witness could testify how long

Appellee had been present at the scene prior to the arrival of the first officer. (R.R.

5:61, 5:108; 6:77-78) Appellee’s defense was that he had just arrived home and did

not know what was going on at his property. (R.R. 6:103-114) It is clear that the

wrongful admission of this alleged extraneous that was not and cannot be proven

beyond a reasonable doubt was not harmless error.

                 CONCLUSION AND PRAYER FOR RELIEF

      For the reasons herein and upon the authority herein the Appellee, Ronnie

                                          59
Leon Dabney, requests that this Court would affirm the ruling of the Court of

Appeals.



                                                Respectfully submitted,

                                                Mark H. Barber
                                                900 8th Street, Suite 116
                                                Wichita Falls, TX 76301
                                                Tel. 940-761-3009
                                                Fax 940-761-4060

                                                /s/Mark H. Barber_______________
                                                Mark H. Barber
                                                State Bar No. 01708050


                           CERTIFICATE OF SERVICE

      On the 15th day of June, 2015, a copy of the foregoing document was served
upon opposing counsel.

                                                /s/Mark H. Barber____
                                                Mark H. Barber




                        CERTIFICATE OF COMPLIANCE

         Counsel certifies that his computer count says there are 13,851 words in this
brief.

                                         _/s/Mark H. Barber_____
                                         Mark H. Barber

                                           60
61
