Ronnie Leon Dabney v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00530-CR
RONNIE LEON DABNEY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 51,705-A
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DISSENTING MEMORANDUM OPINION1
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I respectfully dissent. As the majority opinion points out, the court of
criminal appeals has held that rebuttal evidence may be offered in the State’s
case-in-chief if a defendant opens the door to such evidence in his opening
statement. Maj. Op. at 9 (citing 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)).
1
See Tex. R. App. P. 47.4.
Here, I would hold that defense counsel’s assertion in his opening statement that
Appellant Ronnie Leon Dabney did not know that his guests had set up a
methamphetamine lab on his property while he was away opened the door to the
admission of extraneous offense evidence that officers had previously discovered
a methampethamine lab on Dabney’s property—the very same property involved
here. See Bass, 270 S.W.3d at 563 & n.7.
The majority opinion focuses on whether the State intentionally did not
disclose its intent to introduce the extraneous offense evidence in its case-in-
chief and instead chose to wait and offer it as rebuttal evidence, thus avoiding
rule 404(b)’s notice requirement. See Tex. R. Evid. 404(b) (requiring that State
provide, upon timely request, reasonable notice in advance of trial of intent to
introduce extraneous offense evidence in State’s case-in-chief). The majority
opinion surmises that the State knew of Dabney’s defensive theory prior to trial,
intended to introduce the extraneous offense evidence to rebut that theory at
trial, but nevertheless did not provide notice of such intent prior to trial. Maj. Op.
at 15. The majority opinion points to statements made by Dabney during the
police investigation and during voir dire that show that his position since the
beginning of the investigation was that he was not involved with the
methamphetamine lab on his property. Id. But the State’s knowledge that
Dabney told police that he was not involved with the drug lab did not charge the
State with knowledge that Dabney’s defensive theory at trial would be that he did
not know about the drug lab on his property.2 See, e.g., Gipson v. State, 619
S.W.2d 169, 170–71 (Tex. Crim. App. [Panel Op.] 1981) (explaining that “the
defendant, rather than the State, determines whether a contested issue will be
raised, and his determination will not be made known until he presents his
case”); see also Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App.
1992) (noting that “just because a competent defense attorney recognizes that a
particular defense might be available to a particular offense, he or she could also
decide it would be inappropriate to propound such a defense in a given case”).
And, as the State asserts in its brief on appeal, even if it suspected that Dabney
would present the defensive theory that he did not know about the drug lab on
his property, this “did not require the State to give notice of an extraneous
offense it had no intent to introduce in its case-in-chief, but which might
nonetheless become admissible if the defense opened the door to the offense.”
See Tex. R. Evid. 404(b) (requiring notice of intent to introduce extraneous
offense evidence in State’s case-in-chief). Simply because the prosecutor was
aware of and signed a discovery order requiring him to provide the notice
required by rule 404(b) does not imply that the State willfully intended to skirt the
notice requirement and “hide the ball, simply saving up evidence of extraneous
2
The majority asserts that Dabney’s defense was “not some esoteric,
unexpected defense. It is essentially a defense of ‘I’m not guilty.’” Maj. Op. at
16. To the contrary, Dabney’s defensive theory—the one that opened the door to
the rebuttal evidence at issue—was more than that; he asserted that
unbeknownst to him, his guests had created a methamphetamine lab on his
property while he was not at home.
offenses to spring on rebuttal.” Jaubert v. State, 74 S.W.3d 1, 7 (Tex. Crim.
App.) (Cochran, J., concurring), cert. denied, 537 U.S. 1005 (2002). Without
evidence that the State intended to introduce the extraneous offense evidence
yet engaged in the “manipulative strategy” of reserving such evidence as rebuttal
evidence, we should not so speculate. Id. at *6. Instead, the record
demonstrates that defense counsel opened the door to the extraneous offense
evidence during his opening statement, and the State was entitled to walk
through that open door. See id. at 7–8.
Viewing the trial court’s ruling under the appropriate standard of review, I
would conclude that it is at least subject to reasonable disagreement whether
defense counsel’s opening statement opened the door to admission of the
extraneous offense evidence to rebut the defensive theory presented that
Dabney did not know about the methamphetamine lab on his property. See
Bass, 270 S.W.3d at 563 & n.7; see also Richardson v. State, 328 S.W.3d 61, 72
(Tex. App.—Fort Worth 2010, pet. ref’d) (upholding admission of evidence of
appellant’s “dumpster diving” for credit card receipts to rebut defensive theory
that appellant unknowingly moved receipts for a coworker). Consequently, I
would hold that the trial court did not abuse its discretion by admitting the
extraneous offense evidence during the guilt phase of Dabney’s trial. See
Powell, 63 S.W.3d at 438. Because the majority opinion does not, I respectfully
dissent.
/s/ Sue Walker
SUE WALKER
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 16, 2014