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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MEMORANDUM OPINION1

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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.
2

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 reindicted, 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 
3

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.”
4

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.
5

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.”
6

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 
7

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.
8

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).
9

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).
10

[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-inchief. . . . 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” 
11

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.
12

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 

 10See 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).
13

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
14

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.

 11McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005).

12Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (quotation 

marks and citations omitted).
15

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 

 13Id. at 727 (citation omitted).

14Id. at 728.
16

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.

 15Dissenting Op. at 2.
17

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 
18

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 

 16Hernandez, 176 S.W.3d at 824–25 (citations omitted).

17Tex. R. Evid. 609.
19

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 

 18Id.

19Id.

20Mays v. State, 726 S.W.2d 937, 953 (Tex. Crim. App. 1986), cert. denied, 

484 U.S. 1079 (1988).
20

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.

 21Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d, 

92 S.W.3d 531 (Tex. Crim. App. 2002).

22Oaks 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).
21

/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