                             NUMBER 13-13-00387-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

DARYL DOTSON,                                                                   Appellant,

                                             v.

THE STATE OF TEXAS,                                                              Appellee.


                 On appeal from the Criminal District Court 2
                         of Dallas County, Texas.


                          MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Benavides
                Memorandum Opinion by Justice Garza

       Appellant Daryl Dotson was convicted of capital murder and sentenced to life

imprisonment without parole. See TEX. PENAL CODE ANN. § 19.03 (West, Westlaw through

2013 3d C.S.). On appeal, he argues the trial court erred by: (1) prohibiting his trial

counsel from inquiring as to a witness’s pending criminal charge; (2) denying his motion

for mistrial “after the attorney-client privilege was violated”; and (3) instructing the court
reporter to “go off the record” prior to dismissing the original venire panel. We affirm.1

                                           I. BACKGROUND

        According to the testimony of several witnesses, Dotson and Nate Scott sold illegal

drugs out of a “trap house” in Dallas.2 On December 18, 2011, Dotson, Scott, and their

associate Debanair Wynn were overheard discussing a plan to rob and kill another drug

dealer, Steven Govan. The men called Govan and asked him to deliver MDMA 3 pills to

the trap house. Govan later arrived at the house with another man, Jonathan Williams,

who was unknown to Dotson and Scott. When Scott saw that Govan had brought an

unknown person to the house, he decided that both of them should be killled. Dotson

and Scott were overheard discussing where in the house the killings should take place.

When Govan and Williams entered the house, Scott fired his handgun at the men,

wounding them. Scott then told Dotson the men were still alive, so Dotson shot each of

them once with an assault rifle, killing them. Dotson, Scott, and Wynn placed the bodies

of Govan and Williams into the trunk of Govan’s car, drove the car to a remote area, and

set the car on fire.

        A Dallas County jury convicted Dotson of capital murder and, because the State

did not seek the death penalty, a mandatory sentence of life imprisonment without parole

was imposed. See id. § 12.31(a)(2) (West, Westlaw through 2013 3d C.S.). This appeal

followed.


        1
        This appeal was transferred from the Fifth Court of Appeals pursuant to an order issued by the
Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through 2013 3d C.S.).
         2 A “trap house” has been defined as “a crack house, or the surroundings in which a drug

dealer . . . would use to make their profit.” URBAN DICTIONARY, http://www.urbandictionary.com/define.php?
term=trap+house (last visited June 1, 2015).
      3 Also known as “molly” or “ecstasy.”     Drug Facts, NAT’L INST. ON DRUG ABUSE, http://
www.drugabuse.gov/publications/drugfacts/mdma-ecstasy-or-molly (last visited June 1, 2015).

                                                    2
                                      II. DISCUSSION

A.     Impeachment Questions

       By his first issue, Dotson argues that the trial court erred in prohibiting his trial

counsel from asking certain questions of witness Decoreum Clater. We review a trial

court’s decision to disallow evidence for abuse of discretion, and will uphold the ruling

unless it lies outside the zone of reasonable disagreement. Hernandez v. State, 390

S.W.3d 310, 324 (Tex. Crim. App. 2012).

       Clater, who stayed at the trap house during the weekend of the killings, was the

only witness to testify directly that he observed Dotson shoot the two victims. He also

testified, without objection, that he had been charged with and was awaiting trial for a

burglary offense in Rockwall County. When the prosecutor asked Clater, “I have nothing

to do with that crime that you’ve been charged with in Rockwall; is that right?,” Clater

replied, “No, sir.”

       Defense counsel reserved cross-examination of Clater and later recalled him as

part of Dotson’s case-in-chief. After a discussion regarding a statement Clater made to

police during the investigation of the murders of Govan and Williams, the following

colloquy occurred:

       Q. [Defense counsel]    Okay. Now, let’s go back to this Rockwall County
                               case that you have. Did you give a statement in
                               that case?

       A. [Clater]             No.

       Q.                      You hadn’t talked to anybody in that case?

       A.                      No.

       Q.                      No—no—no lawyers, no detectives, no anybody?

       A.                      No.

                                             3
       Q.                      You didn’t happen to tell who was there—

       A.                      No.

       [Prosecutor]:           Your Honor, I’m going to object to relevance at this
                               point.

       THE COURT:              Sustained.

       [Defense counsel]:      Your Honor, it goes to his credibility—

       THE COURT:              I sustained the objection.

       [Defense counsel]:      —his motive for testifying.

       THE COURT:              I sustained the objection.

       [Defense counsel]:      Credibility of a witness on the stand is an issue—

       THE COURT:              I sustained the objection.

       [Defense counsel]:      —every case.

       THE COURT:              Let’s move on.

Dotson argues that the trial court erred in sustaining the prosecutor’s objection because

his counsel’s question was relevant as to Clater’s motivation to testify in this case. See

TEX. R. EVID. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) the fact is of consequence

in determining the action.”); Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App.

1998) (“Exposing a witness’[s] motivation to testify for or against the accused or the State

is a proper and important purpose of cross-examination. Parties are allowed great

latitude to show any fact which would or might tend to establish ill feeling, bias, motive

and animus on the part of the witness.” (internal quotations omitted)).

       Generally, when a party alleges evidence has been erroneously excluded, the

issue is preserved for appellate review only if the party informed the trial court of the

substance of the excluded evidence “by an offer of proof, unless the substance was

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apparent from the context.” TEX. R. EVID. 103(a)(2). However, when the issue is whether

defense counsel was denied the opportunity to question a witness “about a certain

general subject that might affect the witness’s credibility,” to preserve the error, the

appellant “must merely establish what general subject matter he desired to examine the

witness about during his cross-examination and, if challenged, show on the record why

such should be admitted into evidence.” Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim.

App. 1987).    Here, during a discussion of Clater’s unrelated burglary charge, the

prosecutor lodged a relevance objection to defense counsel’s truncated question, “You

didn’t happen to tell who was there . . . .” The trial court sustained the objection. Defense

counsel asserted that the questions were relevant as to Clater’s “credibility” and “motive

for testifying,” but did not elaborate further as to why Clater’s answer to the truncated

question in particular would be admissible.

       Assuming that the issue has been preserved, we nevertheless find that Dotson

has not shown that any error would be reversible. Dotson contends that, because Clater

was being prosecuted by the same party that was prosecuting Dotson—i.e., the State—

Clater was in a “vulnerable position” and may have had a motive to testify in favor of the

State. See Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004) (“The proponent

of evidence to show bias must show that the evidence is relevant. The proponent does

this by demonstrating that a nexus, or logical connection, exists between the witness’s

testimony and the witness’s potential motive to testify in favor of the other party. We have

found a nexus when a witness has been indicted . . . . In such cases, the witness is

placed in a vulnerable position and may have a motive to testify in favor of the State.”)

(footnotes omitted).   But the jury was already made aware, through Clater’s direct



                                              5
testimony during the State’s case-in-chief, that Clater was subject to a pending burglary

prosecution.4 Moreover, though Dotson intimates that Clater gave a statement to police

in connection with the Rockwall County case that was inconsistent with his trial testimony

here, Clater had already testified repeatedly without objection that he gave no statement

at all in connection with that case. For the foregoing reasons, any error in excluding

additional evidence of Clater’s pending prosecution would have been harmless. See

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that “overruling an

objection to evidence will not result in reversal when other such evidence was received

without objection, either before or after the complained-of ruling”); see also TEX. R. APP.

P. 44.2.

       Dotson’s first issue is overruled.

B.     Motion for Mistrial

       By his second issue, Dotson contends that the trial court erred by denying his

motion for mistrial after a microphone was found to have been installed on the courtroom

table at which he and his attorneys sat during trial. He claims that the microphone

captured audio recordings of conversations between him and his counsel regarding trial

strategy, thereby violating the attorney-client privilege and causing incurable error.

       1.      Applicable Law and Standard of Review

       A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class

of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.

App. 2009). A mistrial halts trial proceedings when error is so prejudicial that expenditure



       4  Although Dotson’s attorneys did not mention Clater’s pending burglary charge in their closing
arguments when they discussed the issue of Clater’s credibility, there was nothing preventing them from
doing so since the pending charge was already part of the evidence.

                                                  6
of further time and expense would be wasteful and futile. Id. Whether an error requires

a mistrial must be determined by the particular facts of the case. Id. A trial court’s denial

of a mistrial is reviewed for an abuse of discretion. Id. We view the evidence in the light

most favorable to the trial court’s ruling, considering only those arguments before the

court at the time of the ruling. Id. The ruling must be upheld if it was within the zone of

reasonable disagreement. Id.

       A person represented by an attorney “has a privilege to refuse to disclose and to

prevent any other person from disclosing confidential communications made to facilitate

the rendition of professional legal services” to the person. TEX. R. EVID. 503(b)(1).

Moreover, in a criminal case, “a client has a privilege to prevent a lawyer or lawyer’s

representative from disclosing any other fact that came to the knowledge of the lawyer or

the lawyer’s representative by reason of the attorney-client relationship.” TEX. R. EVID.

503(b)(2).

       2.     Facts

       At a lunch break on the third day of trial, defense counsel discovered that a

microphone had been placed on her table by crew members of After the First 48, a

television documentary series featuring homicide prosecutions. Outside the presence of

the jury, defense counsel requested a hearing “to determine how we can dispose of the

audio evidence that was collected during the course of this trial without the permission of

counsel nor of the defendant in this case.” Counsel also requested “an order that they

turn [the recordings] over to us and we have an opportunity to review what has been

recorded thus far.” The trial court initially denied the request after receiving unsworn

confirmation from a production crew member that the recordings had not been “shared”



                                             7
with anyone. After the day’s testimony concluded, the trial court granted a hearing on the

matter.

       At the hearing, Thomas Treml testified that he is a freelance video production

associate and was “primarily responsible for the logistical aspects of the production” of

the show. He agreed that, according to the directives given to him by his associate

producer, he was supposed to obtain “releases from the employees of the court, the bailiff,

the court reporter, the judge, generally anyone [that] speaks on camera . . . .” He stated

that he obtained signed releases from the bailiff, the court reporter, the judge, and the

prosecutors; however, he did not obtain a release from Dotson or his counsel. He also

did not advise Dotson or his counsel that microphones were being placed at their

courtroom table, though he “assumed that folks involved were aware of their presence”

because “[p]eople were in the . . . environment when we were placing the devices and so

on.” He did advise the prosecutors that they were being recorded, and “the prosecution

asked us not to place a microphone on their table.”

       Treml testified that there were two cameras in the courtroom during Dotson’s trial

and that each camera had two audio inputs fed by microphones. Treml’s assistant had

put the microphones in place around the courtroom and monitored the audio as it was

being recorded. Treml denied that “the audio file in this case has been transmitted

anywhere.” He explained the audio recordings made during the case are “stored on cards

in the camera” and are then downloaded onto a hard drive. According to Treml, “all the

recording, all the audio, all the video currently exists on a hard drive that we have with

us.”




                                            8
       After the hearing, defense counsel reiterated her request for an order requiring the

production crew to turn over “all recordings that have been conducted in the course of

this proceeding” to the defense. Counsel further moved for mistrial on grounds that the

attorney-client privilege, as well as Dotson’s Fifth Amendment right against self-

incrimination, were violated. Counsel additionally pointed out that, though the prosecution

was advised of the situation and asked to not be recorded, “defense counsel was not

provided that same opportunity.” In response, the prosecutor suggested that the trial

court “not allow [the recordings] to be used in any way” and order them “destroyed.” The

trial court denied the motion for mistrial but ordered the crew to “turn over that portion that

came out of [defense counsel’s] microphone to [defense counsel].”

       Subsequently, the trial court reconsidered its ruling upon an assertion by the

prosecutor that “by releasing the entire transcript of the trial, then that’s basically unfair

prejudice as far as them having an entire transcript of the actual trial itself.” The trial court

agreed, withdrew its earlier ruling, and ordered that the recordings be turned over to the

court reporter and sealed “until the trial is over with.”

       Defense counsel later subpoenaed all recordings made during trial, but the trial

court granted the production company’s motion to quash the subpoena and the

recordings were returned to the production company.

       3.     Analysis

       Dotson contends that the attorney-client privilege “was clearly violated by the

production assistant’s ‘monitoring’ of the audio from the microphone at defense counsel’s

table.” He further asserts that “the trial court plainly erred in actually turning over to [the

production crew] the recordings of defense counsel and Dotson,” presumably referring to



                                               9
the trial court’s decision to quash the subpoena for the recordings issued by defense

counsel.

       Assuming, but not deciding, that the creation and disclosure of the recordings

violated Dotson’s attorney-client privilege, we nevertheless find that Dotson has failed to

show reversible error. Dotson urges that “the attorney-client privilege is the sort of

fundamental protection that, when violated, is among the narrow class of highly prejudicial

and incurable errors” for which a mistrial is the appropriate remedy. See Ocon, 284

S.W.3d at 884. However, he has not cited any authority, and we find none, establishing

that a mistrial is necessarily appropriate when a third party intrudes upon a defendant’s

communications with his attorney. The State cites United States v. Irwin, in which the

federal Ninth Circuit Court of Appeals held:

       [M]ere government intrusion into the attorney-client relationship, although
       not condoned by the court, is not of itself violative of the Sixth Amendment
       right to counsel. Rather, the right is only violated when the intrusion
       substantially prejudices the defendant. Prejudice can manifest itself in
       several ways. It results when evidence gained through the interference is
       used against the defendant at trial. It also can result from the prosecution’s
       use of confidential information pertaining to the defense plans and strategy,
       from government influence which destroys the defendant’s confidence in
       his attorney, and from other actions designed to give the prosecution an
       unfair advantage at trial.

612 F.2d 1182, 1186–87 (9th Cir. 1980) (footnotes omitted); see Ovalle v. State, No. 13-

12-00272-CR, 2014 WL 69545, at *6 (Tex. App.—Corpus Christi Jan. 9, 2014, pet. ref’d)

(mem. op., not designated for publication) (noting, where a state agent allegedly

interfered with attorney-client communications, that “absent demonstrable prejudice, or

substantial threat thereof, dismissal of the indictment is plainly inappropriate”). Dotson

does not claim that his Sixth Amendment right to counsel was violated by the creation

and disclosure of the recordings, but we believe the principle elucidated in Irwin is


                                            10
applicable to his complaint at trial, which was based on the Fifth Amendment, and his

complaint on appeal, which is based on Rule of Evidence 503. Even assuming the acts

of recording and disclosure could be attributed to the prosecution as in Irwin, it is

undisputed that the content of the recordings made during Dotson’s trial was never

disclosed to the jury, the trial court, the prosecution, or anyone else officially involved in

the case. The prosecution never gained any advantage from the creation or disclosure

of the recordings. See Irwin, 612 F.2d 1187.

        It is disturbing that the After the First 48 crew appears to have violated its own

policy by failing to seek consent from defense counsel to place microphones at the

defense’s courtroom table, especially in light of the fact that the crew asked the

prosecution for permission to place microphones at their table but were denied.5

Nevertheless, it is not unconstitutional for trial proceedings to be recorded without the

consent of the defendant. See Chandler v. Florida, 449 U.S. 560, 583 (1981) (holding

that the Constitution “does not prohibit a state from experimenting with” a program under

which trials may be televised without the defendant’s consent); see also Hendershot v.

State, No. 13-10-00452-CR, 2012 WL 3242018, at *3 (Tex. App.—Corpus Christi Aug. 9,

2012, pet. ref’d) (mem. op., not designated for publication) (finding no error in trial court’s

decision, over appellant’s objection, to permit cameras in the courtroom during trial). In

any event, because Dotson has not shown that he suffered any prejudice whatsoever

from the creation or disclosure of the recordings, we cannot conclude that the trial court



        5 In its brief, the State argues: “All that the record seems to show is that a third party, acting without
the knowledge of not only the defendant but also the court and the State’s agents, possibly engaged in
improper or illegal conduct.” We do not pass judgment on the legality of the crew’s actions; but we note
that, according to the record, the prosecution and the trial court were made fully aware of their plans to
place microphones and cameras in the courtroom to record trial proceedings.

                                                       11
abused its discretion in denying his motion for mistrial.        Dotson’s second issue is

overruled.

C.     Dismissal of Venire

       By his third issue, Dotson argues that the trial court erred “in instructing the court

reporter to ‘go off the record’ before he inexplicably dismissed the original jury panel.”

       As Dotson correctly notes, the record in this case contains two separate voir dire

examinations. The first examination, which took place on May 13, 2013, concludes with

the following exchange:

       [Defense counsel]: Your Honor, for the record, I needed additional time to
                          talk about a couple of things: lesser included offense,
                          plus the range of punishment for those, also about co-
                          defendant’s testimony that must be independent
                          corroborating evidence on those two matters, which I
                          think are gonna be part of this particular case and the
                          importance. I would . . . request the opportunity to go
                          ahead and ask those questions.

       THE COURT:           Okay. It’s denied, but go ahead and go off the record
                            here.

       (Off the record)

       (Venire[ ]panel excused)

       (Proceedings concluded)

The reporter’s record does not reflect why the trial court directed the court reporter to go

off the record, why the venire panel was excused, or why the proceedings concluded.

However, a docket sheet contained in the clerk’s record appears to state “Voir dire Panel

Busted” next to the date of May 13, 2013, suggesting that there were not enough panel

members remaining on the first venire from which to select a jury. A separate voir dire

examination was conducted and completed the following day with an entirely new venire.



                                             12
        Dotson contends that “[i]n order to adequately review Dotson’s case for

appeal, . . . counsel needed to examine why, in fact, the original panel busted. If, for

example, it was because the State, over objection, successfully challenged several jurors

for cause, this could have been reversible error.” He further contends that the error in

going off the record must be considered harmful because it is “impossible to determine

the magnitude of the error” due to the fact that the remainder of the proceedings were

taken off the record at the trial court’s request.6 See TEX. R. APP. P. 44.2.

        We disagree. The record reflects that defense counsel made no objection, either

at the conclusion of the reported May 13, 2013 proceedings or at any time thereafter, to

the dismissal of the first venire panel or to the trial court’s direction to go off the record.

See TEX. R. APP. P. 33.1. Moreover, Dotson does not dispute that the second voir dire

examination was wholly separate from the first examination, that it was properly

conducted and completed, or that the jurors chosen from the second venire were fair and

impartial. Therefore, even if the trial court improperly granted challenges for cause or

committed any other error during the first examination, such error would not be reversible.

See TEX. R. APP. P. 44.2(a); see also Gibbs v. State, 7 S.W.3d 175, 177 (Tex. App.—

Houston [1st Dist.] 1999, pet. ref’d) (noting that “a defendant does not have a right to have

his entire jury selected from one venire panel”). In other words, as the State maintains,

“[i]t may have been the better practice for the trial judge to have the reasons for dismissal




        6 Dotson’s appellate counsel requested the court reporter to supplement the record to include the
reason why the first venire was excused. In a letter addressed to the Clerk of this Court, the reporter
explained that her deputy, who took down the proceedings on May 13, 2013, “was asked to go off the
record. At no time was she ever asked to go back on the record. Therefore, nothing was omitted from the
record, and there is nothing to supplement the record with.”

                                                  13
of the venire panel explained on the record. This, however, had nothing to do with the

impartiality of the jury, selected the next day, that actually decided the case.”

       For the foregoing reasons, we overrule Dotson’s third issue.

                                      III. CONCLUSION

       The trial court’s judgment is affirmed.



                                                  DORI CONTRERAS GARZA,
                                                  Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
4th day of June, 2015.




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