Dotson, Daryl

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