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 *2 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 Govan’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 (West, 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). 3 Also 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).
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.
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: I 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. EVID. 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 *5 apparent from the context.” TEX. R. EVID. 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 *6 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 *7 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. EVID. 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. EVID. 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” *8 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.”
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 selfincrimination, 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 *10 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 *11 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 *12 abused its discretion in denying his motion for mistrial. Dotson’s second issue is 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.
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 *14 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.
III. 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.
Footnotes
[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.
[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.
[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.”