11th Court of Appeals
Eastland, Texas
Opinion
Colin Rae Taegel
Appellant
Vs. No. 11-01-00349-CR -- Appeal from Erath County
State of Texas
Appellee
Appellant was convicted of the offense of felony driving while intoxicated. The jury assessed his punishment at 10 years confinement in the Institutional Division of the of Texas Department of Criminal Justice, probated for a term of 10 years. The jury additionally imposed a fine of $10,000. We affirm.
Appellant brings one issue on appeal. He contends that the trial court erred in granting the
State=s motion to reopen the evidence after the State had rested its case-in-chief. The indictment alleged two prior convictions of appellant for driving while intoxicated. Records of the two prior convictions were offered into evidence during the State=s case-in-chief. These records were admitted as certified court records without testimony by any of the State=s witnesses. Immediately after the State rested, appellant moved for an instructed verdict of acquittal on the basis that the State had failed to sufficiently identify him as the defendant in the two prior convictions. The State responded to appellant=s motion for instructed verdict by presenting a motion to reopen the evidence. The court granted the State=s motion to reopen and denied appellant=s motion for instructed verdict. The State then recalled the arresting highway patrolman to provide testimony regarding appellant=s identity.
A trial court may allow additional testimony to be introduced before the conclusion of arguments if the testimony appears to be necessary to the due administration of justice. TEX. CODE CRIM. PRO. ANN. art. 36.02 (Vernon 1981); see Doyle v. State, 24 S.W.3d 598, 601 (Tex.App. - Corpus Christi 2000, pet=n ref=d). The decision to reopen a case is left up to the discretion of the trial court. Cain v. State, 666 S.W.2d 109, 111 (Tex.Cr.App.1984); Doyle v. State, supra at 601. This is the case even when the defendant has previously moved for an instructed verdict. Doyle v. State, supra at 601; Wolf v. State, 674 S.W.2d 831, 842 (Tex.App. - Corpus Christi 1984, pet=n ref=d). The trial court=s decision is reviewed on appeal for an abuse of discretion. Boatright v. State, 472 S.W.2d 765, 770 (Tex.Cr.App.1971); Doyle v. State, supra at 601.
Appellant argues that the trial court can only reopen testimony in a case if the following four elements set out in Scott v. State, 597 S.W.2d 755, 758 (Tex.Cr.App.1979), are shown: (1) the witness is present and ready to testify; (2) the motion to reopen is made before final arguments and before the charge is read to the jury; (3) the movant states with specificity what testimony the witness is expected to give and the importance the testimony carries; and (4) it is not apparent that the motion=s purpose is to frustrate the due administration of justice. Appellant concedes that the state met the first three elements of Scott. He argues, however, that the fourth element is not met in this case because the trial court=s decision resulted in a serious injustice to him. He argues that he was not able to testify in his own defense because doing so would have resulted in a waiver of his objection to the evidence being reopened.[1]
We disagree with appellant=s application of the elements listed in Scott. The Scott elements outline a set of circumstances when a trial court must grant a motion to reopen. These elements are only examined in instances when the trial court has denied a motion to reopen. See Kennerson v. State, 984 S.W.2d 705, 706-07 (Tex.App. - Houston [1st Dist.] 1998, pet=n ref=d); Forbes v. State, 976 S.W.2d 749, 751-52 (Tex.App. - Houston [1st Dist.] 1998, no pet=n); Phillips v. State, 878 S.W.2d 617 (Tex.App. - Corpus Christi 1994, no pet=n). Our review of the relevant caselaw as well as the language of the statute itself reveals a preference for granting motions to reopen. As noted in Vital v. State, 523 S.W.2d 662, 664-65 (Tex.Cr.App.1975), the trial court commits error when it denies a motion to reopen for the purpose of introducing admissible evidence so long as the motion is timely made and does not interfere with the due and orderly administration of justice. We, therefore, review the granting of a motion to reopen only for an abuse of discretion.
The appellate record does not indicate that the trial court abused its discretion in permitting the State to reopen the evidence. The witness which the State recalled was available to testify without undue delay. The record does not demonstrate that the State engaged in activity which could be construed as an attempt to frustrate the due administration of justice. It appears that the omission, if any, in the State=s evidence was a result of accident or mistake. We therefore overrule appellant=s sole issue.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
June 27, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The appellate record does not contain an offer of proof as to what appellant=s testimony would have been had he testified during the guilt/innocence phase of the trial.