Dotson, Daryl ( 2015 )

PD-0734-15
COURT OF CRIMINAL APPEALS
Oral argument requested AUSTIN, TEXAS
Transmitted 7/31/2015 1:40:46 PM
Accepted 7/31/2015 3:31:38 PM
PD-0734-15 ABEL ACOSTA
CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
_________________________________________________
DARYL DOTSON
APPELLANT
vs.
THE STATE OF TEXAS
APPELLEE
_________________________________________________
FROM THE THIRTEENTH COURT OF APPEALS
CAUSE NO. 13-13-00387-CR
APPEAL FROM CRIMINAL DISTRICT COURT NO. 2 OF
DALLAS COUNTY, TEXAS, CAUSE NO. F11-63228-I
_________________________________________________
APPELLANT’S PETITION FOR
DISCRETIONARY REVIEW
_________________________________________________
GARY UDASHEN SORRELS, UDASHEN & ANTON
State Bar No. 20369590 2311 Cedar Springs, Suite 250
gau@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
BRETT ORDIWAY 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com Counsel for Appellant
July 31, 2015
Ground for Review
Whether the State may render improperly ex-
cluded defense cross-examination harmless
merely by briefly touching on the subject matter
during direct examination.
Table of Contents
Page
GROUND FOR REVIEW ......................................................................... 1
Whether the State may render improperly excluded defense
cross-examination harmless merely by briefly touching on
the subject matter during direct examination.
TABLE OF CONTENTS .......................................................................... 2
INDEX OF AUTHORITIES ..................................................................... 3
IDENTITY OF PARTIES AND COUNSEL ............................................. 5
STATEMENT REGARDING ORAL ARGUMENT ................................. 7
STATEMENT OF THE CASE AND PROCEDURAL HISTORY ....... 8-10
ARGUMENT ..................................................................................... 11-23
PRAYER ................................................................................................. 23
CERTIFICATE OF SERVICE ................................................................ 24
CERTIFICATE OF COMPLIANCE ....................................................... 25
2
Index of Authorities
Cases Page
Alford v. United States, 282 U.S. 687 (1931) .................................... 13, 17
Callins v. State, 780 S.W.2d 176 (Tex. Crim. App. 1986) ....................... 12
Carmona v. State, 698 S.W.2d 100 (Tex. Crim. App. 1985) ................... 12
Carpenter v. State, 979 S.W.2d 633
(Tex. Crim. App. 1998) .............................................. 12, 16, 17, 18, 19, 20
Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996) ................. 12, 16
Davis v. Alaska, 415 U.S. 308 (1974) ...................................................... 12
Dotson v. State, No. 13-13-00387-CR,
2015 WL 3522993 (Tex. App.—Corpus Christi 2015) ............... 10, 13, 14
Evans v. State, 519 S.W.2d 868 (Tex. Crim. App. 1975) ........................ 12
Gilmore v. State, 323 S.W.3d 250
(Tex. App.—Texarkana 2010, pet. ref’d) ................................................ 18
Harris v. State, 642 S.W.2d 471 (Tex. Crim. App. 1982) ........................ 12
Irby v. State, 327 S.W.3d 138, 149 (Tex. Crim. App. 2010) . 17, 18, 19, 20
Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) ........................ 14
Lewis v. State, 815 S.W.2d 560 (Tex. Crim. App. 1991) ......................... 12
London v. State, 739 S.W.2d 842 (Tex. Crim. App. 1987) ...................... 16
McDaniel v. State, 3 S.W.3d 176
(Tex. App.—Fort Worth 1999, pet. ref’d) ................................................ 22
3
Miller v. State, 741 S.W.2d 382 (Tex. Crim. App. 1987)......................... 12
Randle v. State, 565 S.W.2d 927 (Tex. Crim. App. 1978) ....................... 12
Shaw v. State, 420 S.W.3d 857
(Tex. App.—Houston [14th Dist.] 2014).................................................. 18
Shelby v. State, 819 S.W.2d 544 (Tex. Crim. App. 1991).................. 15, 22
Woods v. Texas, 152 S.W.3d 105 (Tex. Crim. App. 2004) ...................... 20
Codes and Rules
TEX. R. APP. P. 44.2(a) ............................................................................. 15
TEX. R. APP. P. 44.2(b) ............................................................................. 13
TEX. GOV’T CODE § 73.001........................................................................ 10
4
Identity of Parties and Counsel
For Appellant Daryl Dotson:
LISA FOX
Trial counsel of record
6565 N. MacArthur Blvd.
Suite 225
Irving, Texas 75039
NICOLE HINES-GLOVER
Trial counsel of record
14785 Preston Road
Suite 550
Dallas, Texas 75254
LYSETTE RIOS
Trial counsel of record
14785 Preston Road
Suite 550
Dallas, Texas 75254
GARY UDASHEN
BRETT ORDIWAY
Appellate counsel of record
SORRELS, UDASHEN & ANTON
2311 Cedar Springs
Suite 250
Dallas, TX 75201
214-468-8100
214-468-8104 (fax)
gau@sualaw.com
bordiway@sualaw.com
For Appellee the State of Texas:
JUSTIN MCCANTS
5
AUDRA RILEY
Trial counsel of record
DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
133 Riverfront Boulevard
Dallas, Texas 75207
MARTIN L. PETERSON
KAREN R. WISE
Appellate counsel of record
DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
133 Riverfront Boulevard
Dallas, Texas 75207
6
Statement Regarding Oral Argument
Dotson believes oral argument would be helpful to this Court’s un-
derstanding of the errors by the courts below.
7
Statement of the Case and Procedural History
A group of young men sold drugs out of a “trap house,” among them
Dotson and Nate Scott. (RR5: 152-156, 159, 212-213). One morning, they
decided to kill and then rob another drug dealer, so they called and asked
him to deliver them MDMA pills. (RR5: 33, 165, 221). He agreed, but ar-
rived with an unannounced second man. (RR5: 223-225). Despite the
group’s initial surprise, they determined to kill them both. (RR5: 223-
224).
When the two men entered the trap house, Scott fired the initial
shots with a handgun. They were not fatal wounds. (RR5: 226-229). Mul-
tiple witnesses testified to seeing Dotson handling an AK-47 assault rifle,
and to boasting after the fact that he had shot and killed the victims after
Scott failed, but only one witness testified that he actually saw Dotson
use it to then shoot and kill the victims. (RR5: 227-229). That witness
was both an accomplice in this case and was awaiting trial on other, un-
related charges. (RR5: 208; RR9: 36).
After the shooting the group put the victims’ bodies in their car’s
trunk, drove to a remote area, and then set it on fire. (RR5: 176-177, 185).
Police soon found the vehicle, though, in turn leading them to a woman
8
who had also been present at the trap house during the shooting. (RR4:
56-57; RR5: 191; RR6: 101). She, in turn, led them to Dotson and Scott.
(RR6: 186). By this time, Dotson had traveled to Houston, but he was
arrested upon his return to Dallas. (RR7: 120-121; 184-185). He was co-
operative, and admitted nothing. (RR8: 41).
Dotson was indicted for capital murder on March 8, 2012. (CR: 12);
see TEX. PEN. CODE § 19.03. The indictment alleged that he intentionally
caused Steven Govan’s death in the course of committing, or attempting
to commit, a robbery. TEX. PEN. CODE § 19.03(a)(2). Approximately one
year later, on March 29, 2013, the State amended the indictment to in-
clude a second victim, Jonathan Williams. (CR: 59).
Dotson pleaded not guilty and his jury trial commenced on May 13,
2013, with voir dire. (RR1: 4). At the end of that day, however, the trial
judge dismissed the entire panel. (CR: 9). There is no record of any chal-
lenges for cause, or any indication that the jury panel was discharged.
The record simply ends. (RR3: 99). The docket sheet indicates, though,
that the original panel “busted.” (CR: 9). Accordingly, a second day of voir
dire was conducted on May 14, and the guilt phase of trial followed from
May 15 through May 22. (RR1: 6-11). The jury found Dotson guilty on
9
May 23, 2013, and he was automatically sentenced to imprisonment for
life. (RR12: 9-10). He filed notice of appeal that day. (CR: 153).
The appeal was transferred from the Fifth Court of Appeals to the
Thirteenth Court of Appeals pursuant to an order issued by the Texas
Supreme Court. See Dotson v. State, No. 13-13-00387-CR, 2015 WL
3522993, *1 n. 1 (Tex. App.—Corpus Christi 2015) (citing TEX. GOV’T
CODE § 73.001). Before that court, Dotson raised three grounds of error.
The court overruled each, though, and affirmed his conviction in an opin-
ion released June 4, 2015. Id. No motion for rehearing was filed.
10
Argument
The State may not render improperly excluded de-
fense cross-examination harmless merely by
briefly touching on the subject matter during di-
rect examination.
  
I. The trial court’s error
Decoreum Clater claimed that Nate Scott instructed Dotson to
shoot the complainants, and that he watched as Dotson did just that.
(RR5: 228-229). Clater was the State’s only eyewitness to Dotson’s al-
leged firing of a weapon.
The defense reserved its cross-examination and recalled Clater dur-
ing its case-in-chief. (RR6: 7). At that time, Dotson’s counsel attempted
to impeach Clater by showing that he was motivated to testify by his
pending trial in an unrelated Rockwall County case, and that Clater
therefore lacked credibility. (RR9: 47). The State had only briefly covered
the subject in its direct examination, asking Clater what he had been
charged with and then soliciting, and receiving, confirmation from Clater
that the prosecutor in Dotson’s case had “nothing to do with that crime.”
(RR5: 207-208). The State nonetheless successfully objected to Dotson’s
11
attempted impeachment as irrelevant, and the court directed Dotson to
“move on.” (RR9: 47).
II. Dotson’s argument on appeal
Although the extent of cross-examination is subject to the sound
discretion of the trial court, it abuses that discretion when it prevents
appropriate cross-examination. Carroll v. State, 916 S.W.2d 494, 499
(Tex. Crim. App. 1996). And exposing a witness’s motivation to testify for
or against the accused or the State is a proper and important purpose of
cross-examination. Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim.
App. 1998). Indeed, there exists a long line of federal and state authority
holding a pending criminal charge is an appropriate area of cross-exam-
ination. Carroll, 916 S.W.2d at 499 (citing Davis v. Alaska, 415 U.S. 308,
316–317 (1974); Callins v. State, 780 S.W.2d 176, 196 (Tex. Crim. App.
1986); Carmona v. State, 698 S.W.2d 100, 102–103 (Tex. Crim. App.
1985); Harris v. State, 642 S.W.2d 471, 476 (Tex. Crim. App. 1982) (citing
Randle v. State, 565 S.W.2d 927 (Tex. Crim. App. 1978)); Evans v. State,
519 S.W.2d 868 (Tex. Crim. App. 1975); Lewis v. State, 815 S.W.2d 560,
565 (Tex. Crim. App. 1991); and, Miller v. State, 741 S.W.2d 382, 389
(Tex. Crim. App. 1987). This is for the obvious reason that a witness in
12
that circumstance may give testimony “under a promise or expectation of
immunity, or under the coercive effect of his detention by officers… con-
ducting the present prosecution.” Alford v. United States, 282 U.S. 687,
693 (1931).
Accordingly, in Dotson’s first ground of error on appeal to the Thir-
teenth Court of Appeals, he complained that the trial court abused its
discretion in prohibiting him from impeaching the credibility of the
State’s sole eyewitness with his pending criminal charges. (Ap. Br. at 3-
12). Clater’s own testimony established a causal connection and logical
relationship between the pending charges and his vulnerable relation-
ship or potential bias or prejudice for the State. Moreover, the error af-
fected Dotson’s substantial rights because, if Clater’s credibility had been
fully diminished, the State would have been entirely without any eyewit-
nesses to the crime. See TEX. R. APP. P. 44.2(b).
The court of appeals did not address whether the trial court abused
its discretion. But it overruled the issue nonetheless, holding “that Dot-
son has not shown that any error would be reversible.” Dotson v. State,
No. 13-13-00387-CR, 2015 WL 3522993, *2 (Tex. App.—Corpus Christi
2015). And for only one reason: because “the jury was already made
13
aware, through Clater’s direct testimony during the State’s case-in-chief,
that Clater was subject to a pending burglary prosecution.”1 Id. (citing
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”)).
III. The excluded testimony was not cumulative, and even if it
was, that does not necessarily render its exclusion harm-
less
a. The court of appeals’s incomplete analysis
As an initial matter, Dotson urges this Court that the relevance of
the pending charge had hardly been exhausted. As explained in Dotson’s
opening brief on appeal, but ignored by the court of appeals in its opinion,
“[t]he State only briefly covered the subject in its direct examination, ask-
1 The court also took issue with Dotson’s “intimat[ion] that Clater gave a statement
to police in connection with the Rockwall County case that was inconsistent with his
trial testimony here.” Dotson, 2015 WL 3522993 at *2. But Dotson pointed to Clater’s
changing statement as evidence he was in fact in a vulnerable relationship with the
state, not that the trial court’s erroneous determination otherwise was harmful. And,
again, the court of appeals did not dispute that Clater was in a vulnerable relation-
ship with the state.
14
ing Clater what he had been charged with and then soliciting, and receiv-
ing, confirmation from Clater that the prosecutor in Dotson’s case had
‘nothing to do with that crime.’” (Ap. Br. at 4) (citing RR5: 207-208)).
More importantly, even if the excluded testimony was cumulative,
that is not dispositive. This Court has indeed held that a constitutional
harmless error analysis applies when a trial court improperly limits a
defendant’s cross-examination of a witness for the purpose of exposing
the witness’s bias. Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App.
1991); see also TEX. R. APP. P. 44.2(a). But under this analysis, an appel-
late court must determine whether the error was harmless beyond a rea-
sonable doubt in light of several factors: (1) the importance of the wit-
ness’s testimony in the prosecution’s case, (2) whether the testimony was
cumulative, (3) the presence or absence of evidence corroborating or con-
tradicting the testimony of the witness on material points, (4) the extent
of cross examination otherwise permitted, and (5) the overall strength of
the prosecution’s case. Shelby, 819 S.W.2d at 547. Whether Clater’s tes-
timony was cumulative, then, is only 1/5th of the inquiry—it is hardly
dispositive.
15
At the very least, then, this Court should grant this petition so that
it may reverse and remand this case to the court of appeals with instruc-
tion to conduct the correct harm analysis and, if it finds the testimony’s
exclusion affected Dotson’s substantial rights, to consider whether it was
erroneous. But because, under the correct analysis, it is plain that the
testimony’s exclusion affected Dotson’s substantial rights, and that the
trial court abused its discretion, in the interests of judicial economy this
Court should simply reverse the judgments of the court of appeals and
trial court and remand this case for a new trial.
b. The trial court plainly erred
Although the extent of cross-examination is subject to the sound
discretion of the trial court, it abuses that discretion when it prevents
appropriate cross-examination. Carroll v. State, 916 S.W.2d 494, 499
(Tex. Crim. App. 1996). And, as noted above, exposing a witness’s moti-
vation to testify for or against the accused or the State is a proper and
important purpose of cross-examination. Carpenter, 979 S.W.2d at 634.
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.” London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987).
16
Seemingly, then, Clater’s pending charges in Rockwall County would be
precisely that basis on which Dotson was entitled to cross-examine
Clater.
Nonetheless, Dotson recognizes that the trial court has some dis-
cretion. Carpenter, 979 S.W.2d at 634. To that end, in the context of cross-
examining a witness subject to pending charges, for evidence of the pend-
ing charges to be admissible the proponent must establish some causal
connection or logical relationship between the pending charges and the
witness’s vulnerable relationship or potential bias or prejudice for the
State. Irby v. State, 327 S.W.138, 149 (Tex .Crim. App. 2010) (quoting
Alford v. United States, 282 U.S. 687, 693 (1931)). In Carpenter, for ex-
ample, the this Court did not follow the general rule because the pending
charges were in federal court and the witness was testifying in state
court. 979 S.W.2d at 634-635. Additionally, the federal charges arose af-
ter the witness had provided a statement to police. Id. at 635. Thus, ab-
sent additional facts of some potential “deal” between state and federal
authorities, there was no logical connection between the federal pending
charges and the witness’s possible motive to “curry favor” with state au-
thorities. Id. The pending federal charge was therefore irrelevant as a
17
possible source of bias. Id. Similarly, the Court in Irby held that defend-
ants do not have an automatic right to cross-examine victim about his
status as a probationer, and that, in that case, where the witness had
already passed the information on to several other people prior to involv-
ing the police or creating any link between his testimony and potential
bias, the defendant had not shown the required logical connection. 327
S.W.3d at 152-154.
In Carpenter and Irby’s wake, Texas’s courts of appeals have not
hesitated to invoke their holding in affirming trial courts’ prohibition of
cross-examination. See, e.g., Shaw v. State, 420 S.W.3d 857, 861 (Tex.
App.—Houston [14th Dist.] 2014) (irrelevant that assistant M.E. had
been placed on pretrial diversion for an offense that she was charged with
months after she had performed the autopsy on the decedent); Gilmore v.
State, 323 S.W.3d 250, 266 (Tex. App.—Texarkana 2010, pet. ref’d) (the
mere existence of federal charges fails to establish a nexus or causal con-
nection indicating bias). Dotson’s case is immediately distinguishable
from those cases, though. As Judge Mansfield explained in his Carpenter
concurrence, the situation in which the same prosecutorial authority, or
“another nonfederal prosecutorial authority in Texas,” is prosecuting the
18
testifying witness is entirely different from that in which the federal gov-
ernment brings charges. See id. at 635 (Mansfield, J., concurring). In that
latter instance, there is no “causal connection” between the charges
against the witness and his testimony at trial because the witness was in
a “vulnerable relationship” with the federal government, not the State.
“The federal government stood to gain nothing from, and [the witness] in
turn stood to gain nothing from the federal government for, his testimony
for the State.” Irby, 327 S.W.3d at 161 (Holcomb, J., dissenting).
In Dotson’s case, on the other hand, the State of Texas was prose-
cuting both Dotson and Clater. Clater was thus in a “vulnerable relation-
ship” with the same party that was prosecuting Dotson, creating the un-
deniable incentive to comply with its wishes.2 And, in fact, Clater con-
ceded that, after giving two previous statements in this case, and lying
2
This Court has previously recognized that, in certain instances, a “logical relation-
ship” stems from the very fact that the witness is testifying for the same entity, the
State, which has indicted him:
The proponent of evidence to show bias must show that the evidence is
relevant. The proponent does this by demonstrating that a nexus, or log-
ical 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 or is serving a period of com-
munity supervision. In such cases, the witness is placed in a vulnerable
position and may have a motive to testify in favor of the State.
19
in his initial police interview, his testimony at trial was now altogether
different. (RR8: 169-182; RR9: 11, 19). He attributed this to his “miracu-
lous memory” that improves over time. (RR8: 179). Furthermore, he ad-
mitted that he was obeying the prosecution’s directive “a couple of days”
before trial in avoiding referring to the victims by their names. (RR8: 169-
182; RR9: 11, 19). Additionally, Clater’s “evolving” testimony distin-
guishes this case from those in which the witness’s testimony was con-
sistent with a statement he gave before his motive to fabricate arose.
Compare Carpenter, 979 S.W.2d at 635; Irby, 327 S.W.3d at 153 (“The
timing of this purportedly false allegation was crucial. If [the witness]
had a motive to make up the accusatory story, he had that motive at the
time that he first told others about it.”). Accordingly, Dotson urges this
Court that there was a clear causal connection or logical relationship be-
tween Clater’s pending charges and his vulnerable relationship or poten-
tial bias or prejudice for the State. Irby, 327 S.W.3d at 149.
Woods v. Texas, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004) (emphasis added) (cita-
tions omitted).
20
c. The trial court’s error affected Dotson’s substantial
rights
In this case, if Clater’s credibility had been fully diminished, the
State would have been entirely without any eyewitnesses to the crime.
Though, concededly, it still had witnesses who testified that Dotson ad-
mitted shooting the victims, each of them were accomplices – either to
the murder or after the fact. Jordan Arrango and Jesse Houston were
each at the “trap house” the night before the murders, and they picked
up Dotson and Scott after the victims’ car was set on fire. (RR6: 10, 16-
21, 48, 53-54, 60). Furthermore, at the time of trial Jesse Houston was
serving a 17-year sentence for burglary of a habitation. (RR6: 44-45). And
Jamie Dunn and Talisha Clay each housed Dotson in Houston, Texas,
before he returned to Dallas. (RR7: 120-121, 123-124, 159-160). The only
other witness connecting Dotson to the shooting was Benita Davis, but
she only observed Dotson with a gun shortly before she heard shots. (RR5:
171-173). She did not see who fired them. (RR5: 172).
Dotson therefore urges this Court that, as to the first Shelby factor,
Clater’s testimony was extremely important to the State. In fact, he was
its “star witness.” And, as discussed above, Clater’s most significant tes-
21
timony – the most significant of the trial, really – was not at all cumula-
tive, and was corroborated only by unreliable witnesses. For this same
reason, the overall strength of the prosecution’s case, absent Clater’s tes-
timony, was deceptively slight. The only Shelby factor, then, that at all
might weigh against Dotson is his lengthy examination of Clater on other
bases during the defense’s case-in-chief, but that, alone, does not permit
the conclusion that the trial court’s error was harmless beyond a reason-
able doubt. See McDaniel v. State, 3 S.W.3d 176, 181-182 (Tex. App.—
Fort Worth 1999, pet. ref’d) (trial court reversibly erred in preventing
impeaching witness where State’s case was relatively strong, but relied
heavily on that witness’s testimony, his testimony was not cumulative,
and was not specifically contradicted).
In this case, Dotson sought to cross-examine the State’s sole eye-
witness as to any reason for which he might have fabricated his testi-
mony to assist the State. He was prohibited from doing so, however, on
the basis that such an inquiry was “irrelevant.” Dotson respectfully re-
quests this Court to recognize that nothing could be further from the
truth, and thereby hold that Dotson was denied his constitutional right
22
of confrontation, it was harmful, and that, accordingly, this case must be
reversed and remanded for a new trial.
Prayer
Because the court of appeals ignored the great majority of the harm
analysis in this case, if nothing else this Court should grant this petition
so that it may reverse and remand this case to the court of appeals with
instruction to conduct the correct harm analysis and, if it finds the testi-
mony’s exclusion affected Dotson’s substantial rights, to consider
whether it was erroneous.
But for all those reasons urged in Dotson’s briefing before the court
of appeals, and now summarized in this petition, Dotson urges this Court
that, because, under the correct analysis, it is plain that the trial court’s
error affected his substantial rights, and that the trial court abused its
discretion, in the interests of judicial economy this Court should simply
reverse the judgments of the court of appeals and trial court and remand
this case for a new trial.
23
Respectfully submitted,
/s/ Gary A. Udashen
Gary A. Udashen
State Bar No. 20369590
gau@sualaw.com
/s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Attorneys for Appellant
Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of the
foregoing Petition for Discretionary Review was electronically served to
the Dallas County District Attorney’s Office and State Prosecuting Attor-
ney on July 31, 2015.
/s/ Gary A. Udashen
Gary A. Udashen
24
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(D) because
this petition contains 2,618 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).
2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been
prepared in a proportionally spaced typeface using Microsoft Word
2011 in 14-point Century Schoolbook.
/s/ Gary A. Udashen
Gary A. Udashen
25
APPENDIX
26
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 Gavan'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 0fl/est, 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).
3Also 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: 1 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. Ev10. 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
4
apparent from the context." TEX. R. Ev10. 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. Ev10. 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. Ev10.
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 1s
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.
Ill. 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.
14
THE THIRTEENTH COURT OF APPEALS
13-13-00387-CR
DARYL DOTSON
v.
THE STATE OF TEXAS
On Appeal from the
Criminal District Court 2 of Dallas County of Dallas County, Texas
Trial Cause No. F-1163228-1
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
June 4, 2015