                                                                                 PD-1514-14
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 1/22/2015 2:16:50 PM
                                                              Accepted 1/28/2015 10:38:56 AM
                                                                                 ABEL ACOSTA
                        Cause No. PD-1514-14                                             CLERK




                   Court of Criminal Appeals of Texas



                        Ronnie Leon Dabney,
                             Appellant

January 28, 2015                   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 Supplemental Petition for Discretionary Review


       Maureen Shelton                             John Gillespie
    Criminal District Attorney          First Asst. Criminal District Attorney
     Wichita County, Texas                     Wichita County, Texas
    State Bar No. 24076904                    State Bar No. 24083252
Maureen.Shelton@co.wichita.tx.us          John Gillespie@co.wichita.tx.us

                         900 Seventh Street
                      Wichita Falls, Texas 76301
                       (940) 766-8113 phone
                         (940) 716-8530 fax
To the Court of Criminal Appeals:

      Pursuant to Rule 68.10 of the Rules of Appellate Procedure, the State

submits a supplemental brief. The State supplements its brief to bring to

the attention of this Court appellate activity citing Dabney v. State, No. 02-

12-00530-CR in the Second Court of Appeals.

                 Dabney is already being cited by its author

      In the recently-published case of Ex Parte Roberson 1 out of the

Second Court of Appeals, Justice Dauphinot (in dissent) has cited the

opinion she authored in Dabney v. State to support her speculative and

antagonistic theories regarding the Wichita County Criminal District

Attorney.2

      Based upon these serious and unsupported accusations, the Wichita

County District Attorney’s Office has now filed motions to recuse Justice

Dauphinot from its cases before the Second Court of Appeals.3


1
        No. 02-13-00582-CR, 2015 WL 148476, at *5-9 (Tex. App.—Fort Worth 2015, no
pet. h.) (Dauphinot, J., dissenting).
2
        No. 02–12–00530–CR, 2014 WL 5307178, at *7–9 (Tex.App.—Fort Worth Oct.
16, 2014, pet. filed) (mem. op., not designated for publication). She cites two other
cases to support her theory: Pitman v. State, 372 S.W.3d 261, 268–70 (Tex.App.—Fort
Worth 2012, pet. ref'd), where the discovery issue was not even necessary to the
disposition of the appeal, and Juarez v. State, No. 02–08–00167–CR, 2009 WL
1564926, at *1 & n. 2 (Tex.App.—Fort Worth June 4, 2009, no pet.) (mem. op., not
designated for publication), an unpublished opinion where the discovery issue was not
even ruled on, for lack of preservation.
3
        See Docket Sheet for Smith v. State, No. 02-13-00319-CR in the Second Court
of Appeals of Texas, available at http://www.search.txcourts.gov/Case.aspx?cn=02-13-
00319-CR (last visited Jan. 22, 2015); Docket Sheet for Leija v.State, No. 02-13-00473-
      The State has already demonstrated that the memorandum opinion in

Dabney conflicted with (or ignored) the settled case law from this Court in

(1) adding a notice requirement to rebuttal evidence offered to rebut a

defensive theory; (2) ignoring the credibility determinations of the trial judge

and instead substituting the author’s own credibility judgments; and (3)

failing to follow this Court’s directive to consider overwhelming evidence of

guilt in conducting a harm analysis.4 In addition to so dramatically failing to

follow the precedent of this Court, the author of the opinion has now cited

her own opinion to allege a pattern of constitutional abuse. 5                    This

subsequent use of the Dabney opinion shows the imperative need for this

Court to grant review.

      While Dabney may have been presented as an unpublished,

memorandum opinion, its use by the author (before the State’s petition for

discretionary review was even resolved) to show an alleged pattern of

constitutional abuse demonstrates that the author of the opinion intends it

to   have    ramifications    which     far   exceed     the   typical   unpublished

CR in the Second Court of Appeals of Texas, available at
http://www.search.txcourts.gov/Case.aspx?cn=02-13-00473-CR (last visited Jan. 22,
2015); and Docket Sheet for Johnson v. State, No. 02-13-00482-CR in the Second
Court of Appeals of Texas, available at
http://www.search.txcourts.gov/Case.aspx?cn=02-13-00482-CR (last visited Jan. 22,
2015).
4
        The State’s Petition for Discretionary Review, Dabney v. State, No. PD-1514-14
(Tex. Crim. App. Nov. 12, 2014).
5
        Roberson, 2015 WL 148476 at *9 (Dauphinot, J., dissenting).
memorandum opinion. 6 Therefore, the State would respectfully ask this

Court to grant review and to assert the Court of Criminal Appeals’

corrective power of supervision.7

                                    Prayer

     The fact that the author of Dabney is now citing it as the basis of

serious allegations against the Wichita County Criminal District Attorney

shows how essential it is for the opinion of the Second Court of Appeals in

Dabney to be reviewed.       The State of Texas prays the Court of Criminal

Appeals grant review, reverse the opinion of the Second Court of Appeals,

affirm the judgment of the trial court, and bring Dabney into alignment with

the well-settled precedent of this honorable Court.

                                       Respectfully submitted,

                                       /s/Maureen Shelton
                                       Maureen Shelton
                                       Criminal District Attorney
                                       Wichita County, Texas
                                       State Bar No. 00786852
                                       Maureen.Shelton@co.wichita.tx.us

                                        /s/John Gillespie
                                       John Gillespie
                                       First Asst. Criminal District Attorney
                                       Wichita County, Texas
                                       State Bar No. 24010053
                                       John.Gillespie@co.wichita.tx.us

6
     Id.
7
     See Tex. R. App. P. 66.3(f).
                                        900 Seventh Street
                                        Wichita Falls, Texas 76301
                                        (940) 766-8113 phone
                                        (940) 766-8177 fax

                                        Attorneys for Appellee
                                        State of Texas

                          Certificate of Compliance

      I certify that this document contains 646 words. The body text is in

14 point font, and the footnote text is in 12 point font.


                                     /s/John Gillespie
                                     John Gillespie


                            Certificate of Service

      I do certify that on January 22, 2015, a true and correct copy of the

above document has been electronically forwarded to Mark Barber,

counsel for Ronnie Leon Dabney on appeal, via electronic service to

mbarberlaw@aol.com, and to the State Prosecuting Attorney, Lisa McMinn,

at information@spa.texas.gov.

                                     /s/John Gillespie
                                     John Gillespie
