                                                                                 PD-1514-14
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
March 31, 2015                                              Transmitted 3/31/2015 10:30:51 AM
                                                              Accepted 3/31/2015 10:35:05 AM
                                                                                 ABEL ACOSTA
                         Cause No. PD-1514-14                                            CLERK



                  Court of Criminal Appeals of Texas


                         Ronnie Leon Dabney,
                              Appellant

                                   v.

                             State of Texas,
                                Appellee


    On Petition for Discretionary Review from the Court of Appeals,
             Second District of Texas No. 02-12-00530-CR


                       State’s Brief on the Merits


        Maureen Shelton                            John Gillespie
     Criminal District Attorney         First Asst. Criminal District Attorney
      Wichita County, Texas                    Wichita County, Texas
                                             State Bar No. 24083252
                                          John.Gillespie@co.wichita.tx.us

          John Brasher                            Andrew Wipke
        Special Prosecutor              Assistant Criminal District Attorney
      Wichita County, Texas                  State Bar. No. 24090824
     State Bar No. 02907800              Andrew.Wipke@co.wichita.tx.us
   brasherappeals@gmail.com
     900 8th Street Suite 415                  900 Seventh Street
   Wichita Falls, Texas 76301               Wichita Falls, Texas 76301
      (940) 244-0244 phone                   (940) 766-8113 phone
        (940) 244-0245 fax                     (940) 716-8530 fax
                    Identity of Parties and Counsel

Appellant                             Ronnie Leon Dabney, Texas
                                      Department of Corrections-
                                      Institutional Division

Defense Counsel at Trial              Mark H. Barber, 1101 Scott Avenue,
and on Appeal                         Suite 15, Wichita Falls. TX 76301

State Counsel at Trial                John R. Gillespie, First Assistant
                                      District Attorney, Wichita County,
                                      Texas

State Counsel on Appeal               John R. Gillespie, First Assistant
                                      District Attorney, Wichita County,
                                      Texas

Presiding Judge at Trial              The Honorable Robert P.
                                      Brotherton, 30th Judicial District
                                      Court, Wichita County Court House,
                                      900 7th Street, Wichita Falls, Texas
                                      76301




                                 ii
                                         Table of Contents

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

Index of Authorities ..................................................................................... v

Statement of the Case ...............................................................................vii

Statement Regarding Oral Argument .........................................................vii

Issues Presented ...................................................................................... viii

Statement of Facts ...................................................................................... 1

Summary of the Argument .......................................................................... 2

Argument .................................................................................................... 4

        I.   Appellant was not entitled to notice of rebuttal evidence
        used to rebut Appellant’s defensive theory that Appellant’s
        counsel advanced in voir dire and in opening statement .................... 4

        II.    The Memorandum Opinion ignored the Court of Criminal
        Appeals’ directive that the trial judge is afforded almost total
        deference on whether the prosecutor’s conduct was less than
        willful and improperly substituted its judgment for the trial
        judge’s that the prosecutor was engaging in gamesmanship
        rather than rebutting a defensive theory.......................................... 11

                 A.    The Trial Court’s decision to admit extraneous
                 offense evidence for rebuttal purposes fell within the zone
                 of reasonable disagreement ................................................... 12

                 B.    The Memorandum Opinion engaged in improper
                 speculation that the State willfully violated a discovery
                 order. ...................................................................................... 14

                         1.    There was no affirmative evidence in the
                         record to support the Memorandum Opinion’s guess
                         as to the prosecutor’s motives ....................................... 15

                                                     iii
                          2.    The Memorandum Opinion minimizes the fact
                          that the prosecutor had noticed Appellant 10
                          months before the trial started of the conviction that
                          formed the basis of the evidence the State used to
                          rebut Appellant’s defensive theory. ................................ 16

        III. Appellant suffered no harm by the admission of the
        rebuttal evidence because of the overwhelming evidence of
        Appellant’s guilt including the fact that Appellant absconded
        and was absent for closing arguments. ............................................ 17

Conclusion ................................................................................................ 19

Prayer ....................................................................................................... 20

Certificate of Compliance .......................................................................... 21

Certificate of Service ................................................................................. 21




                                                     iv
                                      Index of Authorities

Cases                                                                                              Page

Alba v. State, 905 S.W.2d 581, 585 (Tex. Crim. App. 1995) ..................... 13

Bass v. State, 270 S.W.3d 557, 563 n. 7 (Tex. Crim. App. 2008) ............ 5, 7

California v. Hodari D., 499 U.S. 621 (1991) ............................................. 18

Dabney v. State, No 02-12-00530-CR, 2014 WL 5307178 (Tex.
    App.—Fort Worth Oct. 16, 2014) (mem. op.) ........ vii, 10-11, 14-16, 19

Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) .................... 4

Francis v. State, 428 S.W.3d 850, 856 (Tex. Crim. App. 2014) ...... 11-12, 15

Hoagland v. State, 494 S.W.2d 186, 189 (Tex. Crim. App. 1973) ............... 8

Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App. 1981) ........................... 8

Jaubert v. State, 74 S.W.3d 1, 8 (Tex. Crim. App. 2002) ............................ 7

Mark de la Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) ...... 5-6, 14

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ............................ 16

Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App.
     1990) ......................................................................................... 12- 14

Oprean v. State, 201 S.W.3d 724 (2006) .................................................. 17

Powell v. State, 63 S.W.3d 435, 439-40 (Tex. Crim. App. 2001) .............. 4-5

Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth,
    1997, pet. ref’d) ................................................................................. 9

Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002) .....................




                                                  v
Yohey v. State, 801 S.W.2d 232 (Tex. App.—San Antonio 1990, pet.
    ref’d) .................................................................................................. 9

Statutes

Tex. Code Crim. Proc. arts. 37-39............................................................. 10

Rules

Tex. R. Evid. 403 ...................................................................................... 13




                                                    vi
                           Statement of the Case

       The grand jury indicted Appellant, Ronnie Leon Dabney, for

Manufacture of Methamphetamine over 400 grams. (C.R. 7). Appellant

pleaded not guilty. (R.R. 3:5). Before closing argument, Appellant

absconded from the trial and was absent for closing argument at the

guilt/innocence stage. (R.R. 7:4-5). The jury found Appellant guilty. (R.R.

7:43). The trial judge sentenced Appellant to 30 years in prison. (C.R. 106-

07).    The Second Court of Appeals issued a Memorandum Opinion

reversing the trial court’s judgment and remanding the case for a new trial.

See Dabney v. State, No 02-12-00530-CR, 2014 WL 5307178 (Tex. App.—

Fort Worth Oct. 16, 2014) (mem. op.). The State petitioned this Court for

review.

                   Statement Regarding Oral Argument

       Because the law on abuse of discretion and utilizing rebuttal evidence

to respond to a defensive theory advanced by Appellant during voir dire

and opening statements is so well-settled and the Second Court of

Appeals’ Memorandum Opinion is so contrary to the law, the questions for

review involving the admission of extraneous offense evidence for the

limited purpose of rebuttal may be resolved without oral argument.




                                    vii
                             Issues Presented

      (1)   Did the Memorandum Opinion incorrectly add a notice
requirement for rebuttal evidence that the State used to rebut Appellant’s
defensive theory after Appellant’s counsel opened the door to such
evidence in voir dire and in opening statement?

      (2) Did the Memorandum Opinion ignore the Court of Criminal
Appeals’ directive that a trial judge is afforded almost absolute deference in
determining whether a prosecutor acted willfully and thereby improperly
substituted its judgment for the trial judge’s in finding the prosecutor was
engaging in gamesmanship instead of legitimately rebutting a defensive
theory?

       (3) Did the Memorandum Opinion, in its harm analysis, improperly
ignore the overwhelming evidence of Appellant’s guilt, including the fact
that he absconded during trial and was absent for closing arguments at
guilt/innocence?




                                    viii
                            Statement of Facts

      Before trial, Appellant had requested notice of extraneous offenses

that the State intended to prove under Rule 403 or at punishment. (C.R. 26-

27). Additionally, Appellant had requested notice of prior convictions. (C.R.

26-27). The trial court signed a pretrial order informing the State to “provide

reasonable notice of any extraneous offenses it intends to introduce at

trial.” (C.R. 28). The State provided notice of its intent to use a Driving

While Intoxicated extraneous offense at the punishment phase. (C.R. 61-

62). The State also provided notice of its intent to offer prior convictions.

(C.R. 56-57). A conviction in cause 42,51-7-A was included in the notice of

prior convictions the prosecutor tendered to the defense 10 months before

trial. (C.R. 56-57).

      During voir dire and opening statements, Appellant’s counsel

advanced a defensive theory that Appellant lacked any knowledge of the

meth lab discovered on Appellant’s property. (R.R. 4:146-47, 155-57; 5:16-

22). Specifically, in opening the defense claimed that Appellant was the

victim of his guests, who mischievously established a meth lab on his

property while he was away and that Appellant returned home to his

property shortly before the police raid and was the victim of a series of

unfortunate circumstances that put him at the wrong place at the wrong



                                     1
time. (R.R. 5:16-22).

        The State then sought permission to rebut Appellant’s defensive

theory by presenting evidence that linked Appellant to a previous meth lab

on his same property. (R.R. 6:9-15). This rebuttal evidence came out of

the conviction in 42,517-A was in the State’s notice of intent to offer prior

convictions.1 (R.R. 6:13).

      Even though the evidence was offered to rebut the defensive theory

advanced in opening and voir dire, Appellant objected, claiming lack of

notice under Rule 404(b). (R.R. 6:24). At the conclusion of the hearing, the

trial court permitted the State to present the rebuttal evidence of the

previous meth lab. (R.R. 6:21).

                          Summary of the Argument

      Through a Memorandum Opinion, the Second Court of Appeals has

manufactured out of whole cloth a previously non-existent notice

requirement for rebuttal evidence to refute a defensive theory advanced by

Appellant in voir dire and in opening statements.

      Ignoring the directive of this Court that a trial judge be afforded

almost absolute deference on the question of whether a prosecutor acted

1
 Ten months before trial, the State gave the defense notice of intent to offer prior
convictions for punishment and for impeachment. (C.R. 56-57). While this notice was
not for the purpose of rebuttal evidence, it showed the defense was not surprised that
Appellant had said conviction. (C.R. 56-57).

                                        2
willfully, the Memorandum Opinion engaged in rank speculation and

impugned the motives of the prosecutor in seeking to admit the rebuttal

evidence.    No evidence in the record supported the Memorandum

Opinion’s speculation as to the prosecutor having impure motives for

offering the rebuttal evidence. Additionally, the trial judge, who was in the

best position to determine whether the evidence was offered truly for

rebuttal purposes rather than as part of some sneaky trial stratagem to

circumvent notice requirements, implicitly found by admitting the rebuttal

evidence that the prosecutor was not acting in bad faith.       The dissent

eloquently explained that the Memorandum Opinion should not have

guessed about the motives of the prosecutor, but should have deferred to

the judgment of the trial judge who actually observed the proceedings and

saw first-hand the need for the rebuttal evidence to refute the defensive

theory.

      Finally, the Memorandum Opinion failed to follow the directive of this

Court and consider the overwhelming guilt of the defendant when

conducting its harm analysis.    The evidence at trial demonstrated that

Appellant had exclusive control over the premises with the lab, that

Appellant was physically present when officers arrived and smelled the

overwhelming odor of the meth lab on the property, Appellant had the smell



                                    3
of ether—a meth lab component—on his person, and Appellant had a

surveillance system with monitors in his bedroom that are commonly used

by meth cooks to secure property. Additionally, Appellant absconded and

was absent for closing arguments at guilt innocence.            Thus, the

overwhelming evidence of Appellant’s guilt militates against a finding of

harm.

                                Argument

I.      Appellant was not entitled to notice of rebuttal evidence used to
        rebut Appellant’s defensive theory that Appellant’s counsel
        advanced in voir dire and in opening statement.

        The Memorandum Opinion has improperly created a notice

requirement for rebuttal evidence used to refute a defensive theory

advanced by defense counsel in voir dire and opening statement. When a

defensive theory is raised by the defense, the door is opened for the state

to employ rebuttal evidence concerning an extraneous offense. Powell v.

State, 63 S.W.3d 435, 439-40 (Tex. Crim. App. 2001). Rebuttal evidence is

admissible when it has relevance aside from proving character conformity.

See Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

        Here the rebuttal evidence is relevant apart from character

conformity. Appellant was charged with manufacturing methamphetamine.

The rebuttal evidence revealed that officers previously located a



                                   4
methamphetamine laboratory on Appellant’s property. (R.R. 6:23-27). This

evidence was highly relevant to rebut Appellant’s defensive theory that he

was simply the victim of a series of unfortunate events being in the wrong

place at the wrong time with the wrong people. (R.R. 4:146-47, 155-57;

5:16-22). Appellant’s defensive theory was the equivalent of claiming that

lightning struck. But, Professor Wigmore’s doctrine of chances advises that

“highly unusual events are unlikely to repeat themselves inadvertently or by

happenstance.” See Mark de la Paz v. State, 279 S.W.3d 336 (Tex. Crim.

App. 2009). Thus, Appellant’s participation in a previous meth lab on the

same property demonstrated that this was not a lightning-strike-type

chance occurrence.

     In Powell, during opening statements, appellant claimed that he

lacked the opportunity to molest the victim due to the presence of other

persons in the room. 63 S.W.3d at 436. The court determined that the

door was opened to rebut defendant’s defensive theory of lack of

opportunity by admission of rebuttal evidence that the defendant molested

others under similar circumstances. Id. at 438-40.

     The defense opening statement informs the State and the jury of “the

nature of the defenses relied upon and the facts expected to be proved in

their support.” Bass v. State, 270 S.W.3d 557, 563 n. 7 (Tex. Crim. App.



                                   5
2008).    Certain defensive theories in opening open the door to the

admission of rebuttal evidence. Id. The State is not required to wait until

after the defense’s case-in-chief to rebut the defensive theory advanced in

opening; rather, the State may rebut the defensive theory in the State case-

in-chief. Id.

      This Court has repeatedly explained that when the defense advances

a defensive theory in opening and/or through the questioning of witnesses,

this entitles the State to rebut that theory. See id. at 562; Mark de la Paz v.

State, 279 S.W.3d 336, 344-45 (Tex. Crim. App. 2009). “Our case law

supports a decision that a defense opening statement, like that made in this

case, opens the door to the admission of extraneous-offense evidence, like

that admitted in this case, to rebut the defense theory presented in the

defense opening statement.” Bass, 270 S.W.3d at 562.

      When the defense “chooses to make its opening statement

immediately after the State’s opening statement, the State may reasonably

rely on this defensive opening statement as to what evidence the defense

intends to present and rebut this anticipated defensive evidence during its

case-in-chief as opposed to waiting for rebuttal.” Id. at 563.

      In this case, Appellant’s trial counsel unequivocally presented his

defensive theory during opening statement:



                                     6
      This case – I have talked to you about movies where an
      innocent person is found in suspicious circumstances and
      they’re arrested, convicted, sent to prison, and they escape. In
      the rest of the movie they’re trying to show themselves to be
      innocent when they are, in fact, innocent. That’s what happens
      in this case. Ronnie [Appellant] is living that in real life. (R.R.
      5:16-17).

      Appellant claimed in opening that his friends, without his knowledge,

started a meth lab on his property while he was away and that the

Defendant “didn’t know [the meth lab] was going on; he didn’t give

permission; and he wasn’t assisting or aiding” the meth lab. (R.R. 5:16-22).

Thus, defense counsel forcefully argued that Appellant was merely the

victim of unfortunate circumstances and devious friends who started a meth

lab on his property without his knowledge or consent and that Appellant

came home to discover the meth lab shortly before the police arrived,

putting him the wrong place at the wrong time. (R.R. 5:16-22).

      Texas law clearly permits the State to rebut such an unambiguously

advanced defensive theory. See generally Jaubert v. State, 74 S.W.3d 1, 8

(Tex. Crim. App. 2002) (explaining that the State is entitled “to walk through

the open door” once the defense advances certain defensive theories); see

also Bass, 270 S.W.3d at 563 (holding rebuttal evidence is admissible to

counter a defensive theory of “fabrication” or “frame-up”).

      Additionally, Texas law does not require the State to provide notice of



                                     7
rebuttal evidence because, by its very nature, it rebuts a theory advanced

by the defense. See Gipson v. State, 619 S.W.2d 169 (Tex. Crim. App.

1981).   Since the defense, not the State, determines what defensive

theories are advanced, the State cannot predict what evidence will be used

as rebuttal evidence before the trial. See id.

      In Gipson, a defendant charged with rape claimed, at the punishment

phase, that he only raped the victim because he was threatened by a co-

defendant. Id. at 169-70. The State countered with rebuttal testimony of a

previous victim who was raped by the defendant.           See id.    When the

defense complained on appeal that it was entitled to notice of this rebuttal

extraneous offense evidence, this Court rejected that claim:

      In this trial the State did not offer, and could not have offered,
      the proof of the [second rape] in its case-in-chief. It was a
      rebuttal to the appellant’s evidence in mitigation. In such a
      situation the defendant, rather than the State, determines
      whether a contested issue will be raised, and his determination
      will not be made known until he presents his case. It would be
      practically impossible for the State to give notice until that time,
      as it did in this case. The appellant did not claim that he was
      surprised, and did not ask for a continuance. The trial court did
      not err in receiving this rebuttal evidence on the question of
      punishment.

Id. at 170-71 (emphasis added); see also Hoagland v. State, 494 S.W.2d

186, 189 (Tex. Crim. App. 1973) (“To require the State to anticipate any

possible defense of an accused…would be to require an impractical and



                                     8
undue burden.”).

      Rule 404(b)’s notice requirement does not apply to rebuttal evidence

used to counter defensive theories. See Yohey v. State, 801 S.W.2d 232

(Tex. App.—San Antonio 1990, pet. ref’d). “By its very terms the notice

requirements [of 404(b)] are not applicable to rebuttal evidence.”

Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth, 1997,

pet. ref’d).

      “Notice of intent” only applies when there is actual intent to utilize the

evidence. There is no evidence in the record that the prosecutor had any

such intent to use this rebuttal evidence until after defense counsel

advanced his defensive theory in voir dire and opening statement. (R.R.

6:9-21).

      “The State cannot intend to introduce true rebuttal evidence before

trial. Evidence that is offered in rebuttal cannot be foreseen because the

State does not know what theories the defendant will advance . . . .” Id.

While the court in Washington was considering rebuttal evidence offered at

punishment, the reasoning equally applies to rebuttal evidence offered at

guilt/innocence to rebut a defensive theory. Id.

      Contrary to the Memorandum Opinion’s speculation, there was no

evidence in this case that the State knew before trial that the defense



                                     9
attorney   would    advance     the    “my-friends-started-a-meth-lab-on-my-

property-and-I-just-came-home-right-before-the-cops-showed-up” defense.

(R.R. 6:9-24).

      Furthermore, in her dissent Justice Walker persuasively argues that

even if the State suspected that Appellant might advance the “wrong

person, wrong place, wrong time” defensive theory, this “did not require the

State to give notice of an extraneous offense it had no intent to introduce in

its case-in-chief, but which might nonetheless become admissible if the

defense opened the door to the offense.” See Dabney, 2014 WL 5307178

at *10.

      By crafting a new notice requirement for such rebuttal evidence that

has never before existed in Texas law, the Memorandum Opinion creates

the absurd result whereby the State must divine any and every possible

defensive theory the defense might advance and then give notice of what

evidence it might need to respond to whatever defensive theories the

defense might advance.

      This new notice requirement for rebuttal evidence is even more

absurd when considering that other than the insanity defense, the defense

does not have to disclose to the State pre-trial what defensive theories

(such as alibi) it may advance. Tex. Code Crim. Proc. arts. 37-39.



                                      10
II.   The Memorandum Opinion ignored the Court of Criminal
      Appeals’ directive that the trial judge is afforded almost total
      deference on whether the prosecutor’s conduct was less than
      willful and improperly substituted its judgment for the trial
      judge’s that the prosecutor was engaging in gamesmanship
      rather than rebutting a defensive theory.

      The Memorandum Opinion failed to defer to the trial judge’s implicit

finding that the prosecutor’s actions were not a willful attempt to circumvent

the discovery order but were a sincere attempt to rebut a defensive theory.

(R.R. 6:21, 24).    Rather, the Memorandum Opinion engaged in rank

speculation, without any support in the record, as to the prosecutor’s

motives. See Dabney, 2014 WL 5307178 at *8.

      This Court, in Francis v. State, said that in examining a prosecutor’s

motives on whether a prosecutor acted to willfully circumvent a discovery

order, the trial judge is owed “almost absolute deference to the [trial

judge’s] implicit conclusion that the prosecutor’s conduct was less than

willful.” 428 S.W.3d 850, 856 (Tex. Crim. App. 2014).

      Rather than deferring to the trial judge’s assessment that the State

was truly offering the evidence for rebuttal purposes, the Memorandum

Opinion unfairly speculates and impugns the prosecutor’s motives for

offering the evidence. See Dabney, 2014 WL 5307178 at *8. Nowhere in

the Memorandum Opinion does the author show any deference to the trial

judge’s determination that the prosecutor was sincerely offering the

                                    11
evidence for rebuttal purposes rather than engaging in trial-by-ambush

gamesmanship. See id. at *1-9.

       A trial court’s decision to admit or exclude relevant evidence is

reviewed under an abuse of discretion standard.         See Montgomery v.

State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). If the trial court’s

ruling was “within the zone of reasonable disagreement,” the court’s

decision will be sustained. Id. at 391. This standard holds true within the

context of a violation of a discovery order. See Francis, 428 S.W.3d at

855.

       A trial court’s ruling on admissibility should not be overturned merely

because an appellate judge may have decided a question differently than

the trial judge. See Montgomery, 810 S.W.2d at 391. Here the trial court’s

decision was well “within the zone of reasonable disagreement” and should

not have been reversed by the Memorandum Opinion.

A.     The Trial Court’s decision to admit extraneous offense evidence
       for rebuttal purposes fell within the zone of reasonable
       disagreement.

       The State’s proffered testimony that Appellant had a previous meth

lab at his residence rebuts the “my-friends-did-it-without-my-knowledge-

and-I-just-arrived-back-with-no-clue” defense. (R.R. 5:16-22). At trial, the

State cited to Professor Wigmore’s Doctrines of Chances. (R.R. 6:12).



                                    12
This doctrine teaches that “highly unusual events are unlikely to repeat

themselves inadvertently or by happenstance.” (R.R. 6:12). Appellant’s

defense that the meth lab was created without his knowledge becomes

considerably less probable when one learns that Appellant had previously

operated a meth lab on the same premises. Lightning may strike once, but

rarely twice.

      Evidence of an extraneous offense that has a tendency to make more

or less probable an evidentiary fact or an elemental fact or to rebut a

defensive theory is relevant apart from its tendency to prove a person’s

character or conformity. Montgomery, 810 S.W.2d at 386-87; Johnson v.

State, 932 S.W.2d 296, 301 (Tex. App.—Austin 1996, pet ref’d). But, such

evidence is still subject to exclusion under Rule 403, if the probative value

of evidence is substantially outweighed by the danger of unfair prejudice.

See Tex. R. Evid. 403; see also Alba v. State, 905 S.W.2d 581, 585 (Tex.

Crim. App. 1995).

      Here, the probative value of the rebuttal evidence is not substantially

outweighed by its prejudicial nature. First, Appellant did not object at trial

that the probative value of the rebuttal evidence was substantially

outweighed by its prejudicial nature. (R.R. 6:24). Second, the probative

value of this evidence was not substantially outweighed by its prejudicial



                                    13
nature because the rebuttal evidence casts serious doubt on Appellant’s

defensive theory that his guests facilitated a meth lab on his property

without his knowledge. Under Professor Wigmore’s doctrine of chances,

highly unusual events are unlikely to repeat themselves inadvertently or by

happenstance. See Mark de la Paz, 279 S.W.3d 336.

     Thus, the fact that Appellant had previously operated a meth lab on

his property would substantially decrease the likelihood of his defensive

theory: that his rogue guests created a lab on his property without his

knowledge and that he had arrived at the lab moments before the police

arrived. Therefore, the trial judge was correct in finding that the probative

value of the evidence in rebutting the defensive theory was not

substantially outweighed by its prejudicial effect. When there is reasonable

disagreement concerning the admission of evidence, a trial court’s

determination will be sustained. See Montgomery, 810 S.W.2d 372 at 391;

Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002).

B.   The Memorandum Opinion engaged in improper speculation that
     the State willfully violated a discovery order.

     Justice Walker, in her dissent, excoriated the Memorandum Opinion’s

author for speculating as to the prosecutor’s motives for offering the

rebuttal evidence. See Dabney, 2014 WL 5307178 at *10.




                                   14
1.   There was no affirmative evidence in the record to support the
     Memorandum Opinion’s guess as to the prosecutor’s motives.

     At the hearing on the prosecutor’s request to admit the rebuttal

evidence, the record is devoid of any evidence to show the prosecutor was

acting with a bad-faith manipulative trial strategy. (R.R. 6:9-21).      The

Memorandum Opinion fails to cite to a single piece of evidence in the

record to support its speculation that the prosecutor was engaging in

gamesmanship rather than legitimately attempting to rebut a defensive

theory raised by the defense in voir dire and opening. See Dabney, 2014

WL 5307178 at *1-8.

     Importantly, the trial judge who signed the discovery order was in a

far better position than the author of the Memorandum Opinion to inquire

about and discern any subjective motive of the prosecutor. See Francis,

428 S.W.3d at 855. In fact, it was the trial judge’s discovery order that the

Memorandum Opinion claims the prosecutor sneakily plotted to circumvent.

(C.R. 28). The trial judge, being physically present at the proceedings, was

in a far superior position to determine whether the prosecutor truly needed

the evidence to rebut the defensive theory or whether the prosecutor was

playing fast and loose with his discovery order. See Francis, 428 S.W.3d

at 855. The trial judge found no such motive to circumvent his discovery

order as shown by his admission of the rebuttal evidence. (R.R. 6:24).

                                   15
     Thus, Justice Walker, in her powerful dissent, was correct that since

there was no evidence in the record that the “State intended to introduce

the extraneous offense evidence yet engaged in the ‘manipulative strategy’

of reserving such evidence as rebuttal evidence,” the appellate court

“should not so speculate.” Dabney, 2014 WL 5307178 at *10.

2.   The Memorandum Opinion minimizes the fact that the
     prosecutor had noticed Appellant 10 months before the trial
     started of the conviction that formed the basis of the evidence
     the State used to rebut Appellant’s defensive theory.

     While    insinuating that   the     State’s   actions constituted   “legal

gamesmanship and trial by ambush,” the Memorandum Opinion downplays

the fact that 10 months before trial the prosecutor noticed the defense of

the conviction which formed the basis of the rebuttal evidence. (C.R. 56-

57). Thus, defense counsel was on notice that his client had a similar drug

conviction and should have asked his client about the nature of the prior

conviction before choosing which defensive theories to advance in opening.

      So, the Memorandum Opinion failed to properly defer to the trial

judge’s decision to admit the rebuttal evidence since the trial judge was in a

superior position to determine the subjective motive of the prosecutor and

the record shows no affirmative bad faith motivation by the prosecutor.

Because the trial judge’s decision to admit the rebuttal evidence after a full




                                    16
hearing on the matter was within the zone of reasonable disagreement, the

Memorandum Opinion erred in failing to defer to the trial judge.2

      III.   Appellant suffered no harm by the admission of the

rebuttal evidence          because of the overwhelming evidence of

Appellant’s guilt including the          fact that Appellant absconded and

was absent for closing arguments.

      Strangely, the Memorandum Opinion never considers the evidence of

Appellant’s guilt as part of its harm analysis.             See, Dabney, 2014 WL

5307178 at *9-10. This Court has explained that overwhelming evidence of

guilt is a factor to be considered and a harm analysis for nonconstitutional

error. See Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (“We

hold once again that the evidence of the defendant’s guilt is a factor to be

considered in any thorough harm analysis.”).


2
 The Memorandum Opinion’s reliance upon Oprean v. State, is misplaced. 201 S.W.3d
724 (2006). In Oprean, affirmative evidence in the record existed that the prosecutor
acted willfully to disobey a discovery order. Id. at 727. Specifically, the prosecutor the
night before the punishment hearing told the defense attorney she only intended to offer
judgments and prior convictions; however, at the punishment hearing she offered a DWI
video that had never been available to the defense. Id. When confronted with the
discovery order, the prosecutor in Oprean claimed the discovery order did not apply to
punishment evidence. Id.
       In this case, no evidence existed that the prosecutor intentionally attempted to
circumvent the discovery order and always intended to offer the evidence of the prior
meth lab. (R.R. 6:9-21). Rather, the trial judge explicitly found that the prosecutor
needed the evidence to rebut the defensive theory advanced in opening. (R.R. 6:21).
By admitting the evidence and rejecting the defense’s lack of notice objection, the trial
judge’s ruling implicitly found that the prosecutor was not acting willfully to avoid a
discovery order. (R.R. 6:9-24).

                                         17
     First, Appellant was living at the property where the meth lab was

found and had control of the premises. (R.R. 5:56, 89-90). Second, the

odor of the meth lab was so strong that an officer driving by could smell it

from the roadway. (R.R. 5:51-52). Third, Appellant was physically present

on the property when the officers arrived and smelled the strong odor of the

meth lab. (R.R. 5:55-56). Fourth, Appellant had the strong odor of ether, a

component in making meth, on his person. (R.R. 6:65,68,71). Fifth, in a

bedroom of the trailer on the property which contained mail addressed to

Appellant, officers located monitors for a surveillance system on the

property. (R.R. 5:98).   A veteran narcotics officer testified that such a

surveillance system is common on property where the owner wants to cook

meth. (R.R. 5:98). Thus, the evidence of Appellant’s guilt as a party to the

meth lab on property under his control, on property on which he was

physically present at the time officers smelled the odor of the meth lab from

the road, and with the smell of ether, a component in the meth-making

process on his person, was overwhelming. (R.R. 5:51-56,98, 6:65,68,71).

     Additionally, Appellant absconded during trial and was absent for

closing argument at guilt/innocence. (R.R. 7:4-5). Appellant’s empty chair

during closing proclaimed his guilt as loudly as all the evidence introduced

at trial. See, e.g., California v. Hodari D., 499 U.S. 621 (1991) (citing the



                                   18
proverb “The wicked flee when no man pursueth.”). The Memorandum

Opinion, in its harm analysis, never mentions Appellant’s absconding. See

Dabney, 2014 WL 5307178 at *9-10.

     Thus, the evidence of Appellant’s guilt was overwhelming and

Appellant could not show harm by admission of the rebuttal evidence.

                                Conclusion

     The Memorandum Opinion erred in three significant ways: first, it

crafts an unworkable notice requirement for rebuttal evidence that is

completely contrary to binding precedent from this Court.         Second, it

improperly substitutes its own judgment for that of the trial judge by

speculating about the prosecutor’s motive in offering the rebuttal evidence.

The appellate court, unlike the trial judge, conducted no evidentiary hearing

to discern the prosecutor’s motives and no evidence in the record

supported the Memorandum Opinion’s impugning of the prosecutor’s

motives, especially when the trial judge implicitly found no such bad faith.

Third, the Memorandum Opinion also ignored this Court’s directive that in

conducting a harm analysis, an appellate court should consider the

overwhelming guilt of the defendant.       Nowhere in the Memorandum

Opinion does it mention the overwhelming evidence that demonstrated

Appellant’s guilt, including the fact that Appellant absconded before closing



                                   19
arguments at guilt/innocence.

      Justice Walker’s powerful and persuasive dissent coupled with the

significant departure of the Memorandum Opinion from the binding

precedent of this Court highlights the importance of this Court granting

review and overturning the Memorandum Opinion and affirming the

judgment of the trial court.

                                    Prayer

      The State prays that this Court reverse the Second Court of Appeals’

decision; and that the judgment of the trial court be affirmed in all respects

and for such further relief to which the State may justly be entitled.

                                    Respectfully submitted,

                                      /s/ John R. Gillespie
                                    John R. Gillespie
                                    First Assistant District Attorney
                                    Wichita County, Texas
                                    State Bar No. 24010053
                                    Wichita County Courthouse
                                    900 7th Street
                                    Wichita Falls, Texas 76301
                                    (940) 766-8113
                                    Fax: (940) 766-8177
                                    Email: John.Gillespie@co.wichita.tx.us

                                      /s/ John Brasher
                                    John Brasher
                                    Asst. Crim. Dist. Attorney
                                    Wichita County, Texas
                                    State Bar No. 02907800



                                     20
                        Certificate of Compliance

     I certify that this brief contains 4,301 words, after the applicable

exclusions.

                                     /s/ John R. Gillespie
                                   John R. Gillespie

                           Certificate of Service

     I hereby certify that on March 31, 2015, I electronically filed the

foregoing document with the clerk of court for Texas Court of Criminal

Appeals, using the electronic case filing system of the court. The electronic

case filing system sent a “Notice of Electronic Filing” to the following

attorney of record: Mark H. Barber, Mbarberlaw@aol.com; and to the State

Prosecuting Attorney, at information@spa.texas.gov, P.O. Box 13046,

Austin, TX 78711-3046, on this the 31st Day of March, 2015.

                                     /s/ John R. Gillespie
                                   John R. Gillespie




                                   21
