                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00530-CR


RONNIE LEON DABNEY                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 51,705-A

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      Appellant Ronnie Leon Dabney was charged by indictment with

manufacturing methamphetamine in an amount of 400 grams or more. A jury

convicted him, and the trial court sentenced him to thirty years’ confinement. In

three points, Appellant contends that the trial court abused its discretion by

admitting evidence of an alleged extraneous offense during the guilt phase
      1
       See Tex. R. App. P. 47.4.
because (1) the State failed to give proper notice under rule 404(b) of the rules of

evidence or under the parties’ agreed pretrial order; (2) the State could not and

did not prove the alleged extraneous offense beyond a reasonable doubt; and (3)

the admission denied Appellant a fair trial and violated the Fourteenth

Amendment Due Process Clause.             Appellant also contends that the trial

prosecutor’s conduct likewise denied him a fair trial and violated the Fourteenth

Amendment Due Process Clause. Because we hold that the trial court abused

its discretion by admitting the evidence absent proper notice under rule 404(b)

since it was not true rebuttal evidence and that the error harmed Appellant, we

reverse the trial court’s judgment and remand this case to the trial court for a new

trial.

Procedural History

         Appellant was originally indicted on November 3, 2010, in cause number

50302-A. On November 1, 2011, the State filed a pretrial rule 609 notice of intent

to use, among other prior acts, a prior state-jail-felony conviction of possession of

methamphetamine “for impeachment and/or punishment.”             Appellant was re-

indicted, and the pleadings, motions, and notices from the earlier cause number

were transferred to the new trial court cause number.

         Approximately four months before trial, Appellant requested that the State

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

Specifically, on May 24, 2012, Appellant filed a “Request for Notice of State’s




                                          2
Intention to Use Evidence of Extraneous Offenses at Trial.”                It specifically

requested,

            [p]ursuant 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.

The trial court signed a pretrial order, which stated in pertinent part:

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

      The prosecutor also signed the pretrial order, and, at a final pretrial hearing

on September 7, 2012, Appellant reminded the trial court that pretrial orders had

already been signed.

      About three months later (and approximately three weeks before trial), the

State filed its “Notice of Extraneous Offense, Prior Bad Acts, & Prior

Convictions.” The document provided:

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

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

      The State does not challenge Appellant’s statement, “The State gave no

other written notice of its intent to offer extraneous offenses into evidence.”


                                          3
      The State’s opening statement concluded,

              Once you hear all the evidence in this case, under the theory
      of party liability, that people who are part of the meth lab team are
      guilty just as much as the one who’s actually doing the cook—when
      you hear about the ether smell that [Appellant] had on his person,
      when you hear that he had control of the property, when you hear
      about the coffee grinder with the white stuff, you know, close to his
      bedroom, the baggies of meth in his bedroom, and how he had
      adapted his premises with the security cameras and that latch on the
      shed, I think . . . the evidence is gonna show beyond a reasonable
      doubt that he was a party, he was a participant, he was a team
      member in that meth lab that was happening at his residence. It
      wasn’t an accident, it’s not a case of trespass where somebody’s
      gotten onto somebody’s property and they have no idea. He knew,
      he was put on notice about it, he participated in it. And once you
      hear all of that evidence, I will ask you to find him guilty. Thank you.

      Appellant contended in his opening statement that he had nothing to do

with the methamphetamine lab found in his home; others had created and used it

in his absence:

            This case—I have talked to you about movies where an
      innocent person is found in suspicious circumstances and they are
      arrested, convicted, sent to prison, and they escape. In the rest of
      the movie they’re trying to show themsel[ves] to be innocent when
      they are, in fact, innocent. That’s what happens in this case.
      [Appellant] is living that in real life.

Appellant went on to argue that the evidence would show that the

methamphetamine lab found on his property had been set up by his guests while

he was away:

      The issue in this case and the issue that’s in dispute, did [Appellant]
      know what was going on that day? Did Bubba Wilson or Chad
      Lydolph call Mr. Pendergrass without [Appellant’s] knowledge and
      tell him to come out there and powder his methamphetamine?
      You’re gonna hear evidence that meth cooks will trespass.



                                         4
       On the third day of the guilt phase of the trial, the State filed a trial brief:

“The    State’s    Bench    Brief   on   Rebutting    the   Defensive     Theory    of

Accident/Mistake.” The State argued in its brief and to the trial court that the

prosecution should be allowed to present evidence of the extraneous offense of

manufacturing a controlled substance in its case-in-chief through Bobby Dilbeck,

despite the trial court’s pretrial order and despite the fact that the State had not

provided notice as required by rule 404(b). Specifically, the prosecutor stated to

the trial court,

              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.

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

ground that rule 404(b) requires the State to provide notice of any extraneous

offense that it intends to offer during its case-in-chief. The State argued in its

filed brief and to the trial court that because Appellant had already asserted the

defense, the State could introduce the extraneous offense evidence during its

case-in-chief. The State further argued that it did not have to provide notice to

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

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

accident or mistake.”




                                          5
      Specifically, the State argued that Appellant had raised the defense that he

“was really just the victim of unlucky coincidences, and, like Harrison Ford’s

character in The Fugitive, it was all just an unfortunate accident or mistake.”

      The State argued that it was entitled to rebut this defensive theory by

introducing evidence that officers had previously found a methamphetamine lab

in Appellant’s trailer and that in that case, he had signed a judicial confession to

having possessed more than four but less than 200 grams of methamphetamine

from that lab.

      The State further argued that Appellant was on notice that the prior offense

existed before he advanced his defensive theory in voir dire and his opening

statement. The trial court ruled that evidence of the extraneous offense was

admissible.

      The State then called Dilbeck to testify about the prior drug offense.

Dilbeck is an investigator for the district attorney’s office, and before that, he had

been a police officer with the Wichita Falls Police Department.           Appellant’s

attorney objected to Dilbeck’s testimony on the ground that the State’s failure to

give notice of its intent to introduce the evidence violated due process. The trial

court overruled the objection.

      Dilbeck testified that in 2004, he had participated in the execution of a

search warrant at Appellant’s residence. The prosecutor suggested, and Dilbeck

agreed, that the purpose of the warrant was to search for drugs or a

methamphetamine lab. Appellant was at the residence when the search was


                                          6
conducted. During the search, the police found cans of ether, pseudoephedrine

blister packs, rubber hosing, syringes, starter fluid cans, and scales, and Dilbeck

testified that these items are commonly found in methamphetamine labs. The

prosecutor repeatedly made reference to a “meth lab.” On cross-examination,

Dilbeck testified that the law enforcement personnel conducting the search did

not find anhydrous ammonia, lithium batteries, or sulfuric acid and that there was

no smell of any chemical odor at the residence.                 He acknowledged that

anhydrous ammonia is a key component in making methamphetamine.

       Dilbeck testified that he had worked for the Wichita County District

Attorney’s Office for almost four years but that the prosecutor had never

interviewed him about the 2004 offense until after the second day of Appellant’s

trial in the case before us.       Dilbeck testified that he had not looked at the

probable cause affidavit for the 2004 offense until the morning of the third day of

trial. Dilbeck’s report was not in the State’s file prior to trial.

       There was no evidence that Appellant was convicted of manufacture of

methamphetamine as a result of the 2004 search, only the repeated allusion to a

“meth lab” and the prosecutor’s representation to the trial court that

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




                                             7
Rule 404(b) Notice

      In his first issue, Appellant contends that the trial court erred by admitting

evidence of a prior manufacture of methamphetamine because the State did not

give proper notice under rule 404(b). Appellant correctly argues that a defendant

is entitled to be tried on the accusation in the State’s pleading and not for a

collateral crime or for being a criminal generally. 2 Rule 404(b) provides,

             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. 3

The Texas Court of Criminal Appeals has held,

      Rule 404(b) literally conditions the admissibility of other-crimes
      evidence on the State’s compliance with the notice provision of Rule
      404(b). . . . This is not to say that a trial court is without discretion to
      utilize its powers (such as granting 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




      2
       Nance v. State, 647 S.W.2d 660, 662–63 (Tex. Crim. App. 1983).
      3
       Tex. R. Evid. 404(b) (emphasis added).



                                           8
      when the State has not complied with the notice provision of Rule
      404(b). 4

      The Texas Court of Criminal Appeals has also recognized that rebuttal

evidence may be offered in the State’s case-in-chief if a defendant opens the

door to such evidence in his voir dire and opening statement. 5 And rule 404(b)

does not require notice of the State’s intent to use the extraneous offense in

rebuttal. 6 But that exception is based on the fact that the State cannot anticipate

before trial genuine rebuttal evidence. 7

      In her concurrence to Jaubert v. State, a case involving the notice

requirement regarding extraneous offense evidence admitted at punishment in

violation of article 37.07, section 3(g), not extraneous offense evidence admitted

during the guilt phase without notice under rule 404(b), Judge Cochran explained

the notice requirement and policy behind it:

      4
      Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005)
(emphasis added) (citations omitted).
      5
       Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008); Powell v.
State, 63 S.W.3d 435, 438–40 (Tex. Crim. App. 2001); see also Mendoza v.
State, No. 02-11-00197-CR, 2012 WL 43172, at *7 (Tex. App.—Fort Worth Jan.
5, 2012, no pet.) (mem. op., not designated for publication).
      6
       Tex. R. Evid. 404(b); Herring v. State, 752 S.W.2d 169, 172 (Tex. App.—
Houston [1st Dist.]), rev’d on other grounds, 758 S.W.2d 283 (Tex. Crim. App.
1988).
      7
        See Jaubert v. State, 74 S.W.3d 1, 5 (Tex. Crim. App.) (Cochran, J.,
concurring), cert. denied, 537 U.S. 1005 (2002); Wiggins v. State, No. 02-03-
00355-CR, 2004 WL 2201310, at *6 (Tex. App.—Fort Worth Sept. 30, 2004, pet.
ref’d) (not designated for publication).



                                            9
[T]he 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, § 3(g), and article
38.37 is to ensure that Texas criminal proceedings are not a contest
of clever gamesmanship or trial by ambush. . . . [O]ur Rules of
Evidence are drafted to ensure that Texas criminal practitioners
remain gentlemen and gentlewomen who do not spring evidentiary
surprises on their adversaries.

        A number of our Rules of Evidence require advance notice
when practicable and reasonable. Rule 404(b) is one of those rules.
It requires that the prosecution give the defense reasonable notice of
its intent to offer extraneous offense evidence in the State’s case-in-
chief. . . . This requirement of advance notice, upon timely request,
applies only to the State’s case-in-chief because prosecutors are no
more clairvoyant than the rest of the world. They cannot, and thus
should not be required to, predict precisely what evidence the
defense will introduce or what rebuttal evidence might be relevant as
a result of a particular defense. Our law has long recognized this
fact.

        On the other hand, it is possible for prosecutors to manipulate
the notice rule’s purpose and applicability simply by reserving all
extraneous offense evidence until its rebuttal case, when notice is
not required. Although this strategy conforms to the letter of the law,
it clearly violates the spirit.

       ....

[I]t may behoove a prosecutor to voluntarily deliver to the defense a
written list of all known incidents which are not explicitly set out in
the indictment, but of which the prosecutor is aware and which might
become admissible for any reason at any time. This self-imposed
duty has several beneficial aspects: 1) it assures that no conviction
will be reversed for the failure to give reasonable notice, should the
prosecutor decide that he needs to use what he had originally
thought might be rebuttal extraneous offense evidence during his
case-in-chief; 2) if the prosecution discovers additional extraneous
offense evidence on the eve of trial or even during trial, he has
shown good faith in revealing all of the evidence he was aware of
well before trial; 3) if the list is titled “potential intrinsic and extrinsic
act evidence,” neither the parties nor the trial judge need engage in
a hair-splitting debate concerning whether the specific evidence is
evidence of other acts under Rule 404(b) or is “same transaction”


                                     10
      evidence not subject to Rule 404(b) notice requirements; 4) a
      defense attorney avoids any possible allegations of ineffective
      assistance of counsel claims for failing to file a written request for
      notice; 5) a trial judge need not grant a mid-trial continuance for the
      defense to investigate “surprise” extraneous offense evidence; 6)
      such an exercise requires both the prosecutor and defense to focus
      on the entire body of potentially admissible evidence well before the
      trial, and either or both may revise their original positions based
      upon that review; finally, and most importantly, 7) it is fair beyond all
      measure. 8

Similarly, this court has warned in article 37.07, section 3(g) notice cases,

      [W]e caution the State that attempts to circumvent the notice
      requirement of article 37.07, section 3(g) by offering extraneous
      offense evidence in rebuttal when it does not properly rebut the
      defendant’s punishment theories will be frowned upon. In all article
      37.07, section 3(g) cases with notice issues, we will closely review
      the nature of the “rebuttal” evidence to determine whether the State
      introduced the evidence at that stage of the punishment trial merely
      to avoid the mandatory notice requirements. 9

      We see no reason not to follow that same policy in rule 404(b) cases with

notice issues.

      The State contends that Appellant opened the door to the extraneous

offense evidence by “unequivocally assert[ing]” in his opening statement that he

“did not know what was taking place” in his home; that it offered the evidence as

rebuttal evidence and therefore was not required to give notice of its intent, since

it had no intent to offer the evidence at all until Appellant interjected his defense


      8
       Jaubert, 74 S.W.3d at 4–8 (Cochran, J., concurring) (footnotes omitted).
      9
        Washington v. State, 943 S.W.2d 501, 506 (Tex. App.—Fort Worth 1997,
pet. ref’d) (op. on reh’g); see also Wiggins, 2004 WL 2201310, at *6.



                                         11
at trial; and that offering the rebuttal evidence during its case-in-chief was proper.

The State characterizes Appellant’s defense as “mistake or accident.” Appellant

did not raise a mistake-of-fact defense. Nor did he raise a defense of mistake or

accident. Such defenses require that the defendant admit that he did the act, but

because of his own mistake of fact or accident, he lacks the requisite culpability

to have committed the offense. 10 Appellant’s defense was that he did not create

or use a meth lab at his home; someone else did in his absence and without his

knowledge.

      Despite its improper use of the term “accident or mistake” in characterizing

Appellant’s defensive theory, the State made clear below and explains in its brief

that it offered the extraneous offense evidence to rebut Appellant’s theory that he

had been in the wrong place at the wrong time. The prosecutor argued,

      [T]he Court of Criminal Appeals case law talks about Professor
      Whitmore’s Doctrine of Chances, that highly unusual events are
      unlikely to repeat themselves inadvertently or by happenstance. So
      you might have this series of unfortunate things that happen once,
      but when almost identical things have happened in the past, the
      odds of it being an accident or mistake just are impossible. And
      that’s why it serves as rebuttal evidence.

      Appellant questions the State’s claim that it was surprised when Appellant

pointed out in voir dire that any drug activity had been set up during his absence

and without his knowledge or assistance. That had been his claim from the start


      10
      See Johnston v. State, 145 S.W.3d 215, 222–24 (Tex. Crim. App. 2004);
Morgan v. State, 692 S.W.2d 877, 881–82 (Tex. Crim. App. 1985).



                                         12
of the police investigation. As Appellant points out, the State had in its file a

report from the first officer on the scene regarding the instant offense, Officer

Dottie Whitefield, and that report stated that Appellant had told the officer that he

had just arrived at the scene (his home) before she did.           When Appellant

attempted to ask Whitefield on cross-examination whether he had told her that he

had only been there for a few minutes when the police arrived, the State lodged a

hearsay objection that was sustained. That was Appellant’s argument—he had

just arrived home to find that people had set up a drug lab in his absence.

Appellant’s position was supported by the testimony of Stephanie Dickerson

Harris, who testified that she and Appellant had arrived at the house

just before the police arrived. She was arrested with Appellant.

      Because Appellant had insisted from the date the police investigation

began that he was not involved with the drug lab, he argues that the State’s

contention that it did not intend to offer the extraneous offense evidence until the

prosecutor heard his opening argument is not credible.

      This evidence of the extraneous offense for which Appellant was neither

prosecuted nor convicted is not true rebuttal evidence. The State was aware that

Appellant’s unwavering stated position was that he had arrived home

immediately before the police arrived. Appellant was therefore entitled to rely on

the State’s notices and to conclude that the convictions listed therein, including




                                         13
the DWI conviction and methamphetamine possession conviction, “were the only

[extraneous offenses] that the State intended to offer.” 11

      Again, in the case before us, the trial court had signed a pretrial discovery

order requiring the State to “provide reasonable notice of any . . . extraneous

offenses it intend[ed] to introduce at either stage of trial.” The Texas Court of

Criminal Appeals has held,

            Evidence willfully withheld from disclosure under a discovery
      order should be excluded from evidence. When reviewing a trial
      judge’s decision to admit or exclude evidence, an appellate court
      must determine whether the judge’s decision was an abuse of
      discretion. 12

      In determining whether the State’s failure to comply with a discovery order

rises to the level of willfully withholding disclosure under the discovery order, we

are instructed to consider the conduct and representations of the State.          In

Oprean, the Texas Court of Criminal Appeals noted,

             Two things are particularly unacceptable about the
      prosecutor’s conduct. First, the prosecutor told defense counsel the
      night before the punishment phase began that she intended to
      introduce only the judgments and sentences from the previous
      convictions. She did not dispute the fact that she made that
      statement. There is no suggestion that later that night or early the
      next morning she suddenly discovered the videotape’s existence.
      And because her signature appears at the end of the discovery
      order, it cannot be said that she was unaware of it.


      11
        McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005).
      12
       Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (quotation
marks and citations omitted).



                                         14
             Second, when defense counsel argued that he had not
      received notice as required by the discovery order, the prosecutor
      responded by stating that “there was no [Article 37.07] charge in
      [the] Court’s discovery order.” When affirming the judgment of the
      trial court, the Court of Appeals relied on the prosecutor’s
      explanation. 13

The Oprean court concluded,

      [T]he validity of the explanation offered by the prosecutor is a
      relevant factor that should be considered when determining
      willfulness. The discovery order did not mention anything about
      Article 37.07, and therefore was not limited by that provision.
      Because the prosecutor knew about the discovery order and chose
      to invoke Article 37.07 after counsel called her attention to the order,
      she made a conscious decision to violate the plain directive of the
      discovery order. 14

      Like the Oprean prosecutor, the trial prosecutor in the case before this

court was aware of the discovery order—he signed it. He gave Appellant notice

of intent to offer evidence of the possession conviction and others as

impeachment and punishment evidence. He later gave Appellant notice of the

State’s intent to offer evidence of a prior DWI conviction in the punishment phase

of the trial, but the prosecutor gave no notice of intent to offer evidence of an

extraneous offense of manufacturing methamphetamine.           At no point did the

prosecutor suggest that he was not aware of the discovery order. As did the

Oprean prosecutor, the prosecutor in this case made the conscious, tactical

decision not to disclose his intent to offer extraneous offense evidence despite

      13
       Id. at 727 (citation omitted).
      14
       Id. at 728.



                                        15
the discovery order. Accordingly, we hold that the trial court abused its discretion

by allowing the State to present evidence to the jury of the alleged extraneous

offense of manufacturing methamphetamine when same had not been revealed

to Appellant in response to his 404(b) request.

       The dissent states that “the State’s knowledge that [Appellant] told police

that he was not involved with the drug lab did not charge the State with

knowledge of [his] defensive theory at trial,” 15 which was that he was not involved

with the drug lab. Appellant’s defense is not some esoteric, unexpected

defense. It is essentially a defense of “I’m not guilty.” If a statement in voir dire

that the defendant is not guilty of the offense he is charged with opens the door

to the admission of undisclosed prior acts of misconduct, discovery orders have

no meaning. Both courts and the legislature have spoken to the importance of

complying with discovery orders and avoiding legal gamesmanship and trial by

ambush.

Harm

       The next issue is whether the State’s failure to disclose its intent to

introduce evidence of the alleged extraneous offense of manufacturing

methamphetamine rendered the trial court’s erroneous admission of the

undisclosed extraneous offense reversible error.



       15
        Dissenting Op. at 2.



                                         16
     The Hernandez court has discussed the appropriate harm analysis for

failure to provide the required 404(b) notice of intent to offer evidence of

extraneous offenses:

             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). 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.” The issue in cases like
     this is how to apply this standard. We find helpful the Austin Court of
     Appeals’ discussion in Roethel:

                  Accordingly, we must assess harm from the
           violation of (a notice provision similar to Rule 404(b)’s)
           against its intended purpose. Although the violation of
           the notice provision resulted in the improper admission
           of evidence, we cannot employ the harm analysis used
           for violations of the rules of evidence concerning
           relevancy because 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 inadmissible to prove the character of
           a person to show that the commission of the crime at
           issue is consistent with the 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
           affected 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
           evidence used for improper reasons.           The notice
           requirement found in (Rule 404(b)), however, does not
           relate to the substantive admissibility of the evidence.
           The lack of notice does not render the evidence
           inherently unreliable, but instead raises a question
           about the effect of procedural noncompliance. The
           purpose of the notice requirement is to enable the


                                       17
             defendant to prepare to meet the extraneous offense
             evidence. Thus, we must analyze how the deficiency of
             the notice affected (the defendant’s) ability to prepare
             for the evidence. 16

      The State contends that “Appellant cannot claim surprise as to the event

itself” because “[t]he State did give notice of the conviction that arose from the

events testified to by Bobby Dilbeck, pursuant to Rule 609 of the Texas Rules of

Evidence.” Appellant challenges the State’s contention that it had given him

proper notice that it intended to offer impeachment evidence of the extraneous

offense of manufacturing a controlled substance by filing a rule 609 notice that it

intended to introduce a prior conviction for possession of a controlled substance.

Appellant argues that the State misled the trial court by stating that its notice

under rule 609 regarding the possession offense also put Appellant on notice that

the State intended to offer in its case-in-chief evidence of a prior extraneous

offense of manufacturing a controlled substance.

      Rule 609 provides that “[f]or 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 was a felony or involved moral turpitude.” 17 As Appellant points out, this

rule does not allow the introduction of impeachment evidence during the State’s


      16
        Hernandez, 176 S.W.3d at 824–25 (citations omitted).
      17
        Tex. R. Evid. 609.



                                         18
case-in-chief. 18   It is admissible only if the defendant testifies, and then it is

admissible only to impeach the defendant’s credibility. 19         Finally, even if

conviction of a prior felony offense may be admissible as impeachment, the

details of the offense are not admissible. 20

       Appellant did not testify, but the State nevertheless offered evidence of an

extraneous offense, complete with its version of the details of the offense that

improperly suggested that Appellant was guilty of manufacture of a controlled

substance, ostensibly to defeat the suggestion that Appellant was going to deny

his guilt. The State argued to the jury that Appellant was guilty of manufacturing

methamphetamine in the case on trial, although another person had confessed to

being the cook in the case, and Appellant had confessed to only mere

possession in the prior case. The extraneous offense evidence was primarily

used to show character conformity, although there was no evidence that

Appellant was guilty of a prior manufacturing offense.        When the trial court

admitted the evidence suggesting that Appellant had previously been involved in

the manufacture of methamphetamine, Appellant suffered harm: the harm of




       18
        Id.
       19
        Id.
       20
       Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986), cert. denied,
484 U.S. 1079 (1988).



                                          19
being unprepared to defend against that evidence and the harm of the jury’s

great likelihood of being improperly influenced by the evidence.

      Often appellate courts suggest that when the State fails to comply with

discovery rules, the defendant’s remedy is to seek a continuance. 21 But here the

problem is not merely the failure to comply with discovery rules and discovery

orders; it is also the fact that the harmful, undisclosed evidence was not

admissible even with proper notice.         “When the trial court improperly admits

substantially inadmissible Rule 404(b) evidence that substantially influenced the

jury’s verdict, the influence on the jury verdict will always be ‘injurious.’” 22

      Following the rationale of the Oprean court, we hold that the trial court’s

abuse of discretion in admitting evidence of the unadjudicated manufacture of

methamphetamine offense was reversible error.             We sustain Appellant’s first

issue, and because it is dispositive, we do not reach his remaining issues.

Conclusion

      Having sustained Appellant’s first issue, which is dispositive, we reverse

the trial court’s judgment and remand this case to the trial court for a new trial.




      21
       Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d,
92 S.W.3d 531 (Tex. Crim. App. 2002).
      22
      Oaks v. State, No. 05-07-00384-CR, 2008 WL 3307083, at *1 (Tex.
App.—Dallas July 31, 2008, no pet.) (not designated for publication) (citing
Hernandez, 176 S.W.3d at 825).



                                           20
                                               /s/ Lee Ann Dauphinot
                                               LEE ANN DAUPHINOT
                                               JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

WALKER, J., filed a dissenting opinion.

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

DELIVERED: October 16, 2014




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