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)). 

 

1See 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-inchief 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