COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-274-CR
KW ASI OMARI VANN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Kwasi Omari Vann appeals his conviction for misdemeanor driving
while intoxicated. He contends in two points that the trial court erred by not ruling
on his motion for directed verdict before allowing the State to reopen the evidence
and that the evidence is factually insufficient to establish that he was the driver of the
automobile. W e affirm.
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See Tex. R. App. P. 47.4.
II. Background
Rochelle Bylow had been driving on Highway 287 in Fort Worth, Texas, with
her friend Renee Johnson when she and Renee saw a car swerve on the road and
nearly hit a car and a semi truck. Rochelle called 9-1-1 and was instructed to follow
the car. Rochelle identified the car as “light silverish” and “like a police officer car
almost.” Rochelle had followed the suspect car for about seven miles when the car
exited the freeway, went underneath a bridge, turned right, and hit a median.
Rochelle then saw someone exit the driver’s side of the car and vomit. Rochelle and
Renee parked across a field from the suspect car, stayed in place, and watched until
the police arrived. They did not see anyone else exit the vehicle while they watched.
Officer Saldivar soon arrived at the scene and saw a red vehicle and a man
walking around it. Rochelle and Renee pointed to the man who had exited the car
and identified Appellant to Officer Saldivar as the driver. Officer Saldivar noticed as
he approached Appellant that Appellant had trouble balancing, that he smelled of
alcohol, that he had bloodshot eyes, and that he had vomit on his pants leg. Officer
Saldivar administered field sobriety tests and arrested Appellant.
III. Reopening Evidence for Additional Testimony
Appellant argues in his first point that the trial court erred by not ruling on his
motion for directed verdict before allowing the State to reopen the evidence. W e
disagree.
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The decision to reopen is left to the sound discretion of the trial court. Doyle
v. State, 24 S.W .3d 598, 601 (Tex. App.—Corpus Christi 2000, pet. ref’d). The trial
judge has the discretion to reopen a case to introduce additional evidence if that
evidence is vital to “due administration of justice.” Tex. Code Crim. Proc. Ann. art.
36.02 (Vernon 2007). A trial court’s decision to reopen is discretionary even when
the motion to reopen was made in response to the defendant’s motion for directed
verdict. Boatright v. State, 472 S.W .2d 765, 770 (Tex. Crim. App. 1971); Wall v.
State, 878 S.W .2d 686, 690 (Tex. App.—Corpus Christi 1994, pet. ref’d); Wolf v.
State, 674 S.W .2d 831, 842 (Tex. App.—Corpus Christi 1984, pet. ref’d), overruled
on other grounds, Reed v. State, 744 S.W .2d 112 (Tex. Crim. App. 1988).
Here, Appellant moved for a directed verdict, and the trial court stated, “I will
take it under advisement.” The State then formally requested to reopen its case
under article 36.02 of the code of criminal procedure. The trial court granted the
State’s request, and the State briefly solicited additional testimony from Officer Hill
concerning the witnesses’ identifications of Appellant as the driver of the vehicle they
had followed after calling 9-1-1.
Appellant offers no argument or citations to authority to support his claim that
the trial court’s decision to permit the State to reopen its case after Appellant moved
for a directed verdict was an abuse of discretion. Further, binding precedent holds
contrary to Appellant’s contention. See Ahmad v. State, 295 S.W .3d 731, 746–47
(Tex. App.—Fort W orth 2009, pet. ref’d) (op. on reh’g) (holding that trial court did not
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abuse its discretion in reopening evidence to allow State to establish venue following
the appellant’s objection just before closing arguments); see also Boatright, 472
S.W .2d at 770. W e therefore overrule Appellant’s first point.
IV. Factual Sufficiency of the Evidence
Appellant contends in his second point that the evidence is factually
insufficient to establish that he was the driver of the suspect vehicle. Specifically,
Appellant contends that the evidence is factually insufficient because the witnesses
described the car as silver and the arresting officer described it as red, because the
witnesses did not mention that Appellant was changing a tire, because the arresting
officer did not identify the witnesses by name, and because there is no evidence of
Appellant’s race, height, weight, or other physical attributes.
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
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all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
Viewing all of the evidence in a neutral light, we recall that Rochelle testified
that Appellant’s car was “silverish” in color, that no witnesses described Appellant’s
physical attributes in order to identify him, and that neither Rochelle nor Renee
testified that they watched Appellant change a tire on his vehicle while they waited
for the police to arrive. However, the jury also heard evidence that Rochelle and
Renee personally witnessed Appellant driving erratically, called 9-1-1, were
instructed to follow Appellant’s car, did follow Appellant’s car, watched Appellant exit
the freeway, run into a median, and exit his vehicle. The jury also heard testimony
that Rochelle and Renee waited for the police from a safe distance, did not leave the
scene until after speaking with the investigating officers, and specifically told the
officers that Appellant was the person that had been driving the vehicle they had
followed.
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Viewing the evidence in a neutral light, we conclude a rational trier of fact
could have found beyond a reasonable doubt that Appellant was the driver of the
suspect vehicle. Therefore, we cannot say that the evidence is so weak that the
jury’s determination is clearly wrong or manifestly unjust or that the conflicting
evidence so greatly outweighs the evidence supporting the conviction that the jury’s
determination is manifestly unjust. See Lancon v. State, 253 S.W .3d 699, 704 (Tex.
Crim. App. 2008); Watson, 204 S.W .3d at 414–15, 417. Accordingly, we hold that
the evidence is factually sufficient to support the jury’s verdict, and we overrule
Appellant’s second point.
V. Conclusion
Having overruled each of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.
W ALKER, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 12, 2010
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