No. 12-04-00358-CR
Opinion delivered April 28, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law Henderson County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
JAMES T. WORTHEN, Chief Justice.
Mickel Wayne Lambeth appeals his conviction for driving while intoxicated. In one issue, he contends that the trial court abused its discretion when it did not allow him to reopen the evidence after he had rested his case. We affirm.
Background
Appellant was charged with the misdemeanor offense of driving while intoxicated. The trial was held over two days. Both sides rested at the conclusion of the first day of trial. The State's only witness, a police officer, had testified that Appellant was driving while intoxicated, had trouble understanding the statutory warnings, could not accurately recite the alphabet backwards, and refused to provide a sample of his breath or blood. Additionally, the officer testified that Appellant had tested positive for alcohol on a portable breath test, smelled of alcohol, and had slightly slurred speech. Before final argument the next day, Appellant's counsel sought to reopen the evidence and have Appellant read from a newspaper article unrelated to the case. The State objected because it had released its witness after Appellant rested the day before and the witness was not readily available. The trial court denied the request to reopen the evidence. The jury found Appellant guilty and the trial court assessed sentence at thirty days of confinement, to be served on weekends, a fine of seven hundred dollars, and a six month driver's license suspension. This appeal followed. Motion to Reopen Evidence
In his sole issue, Appellant argues that the trial court abused its discretion when it did not allow him to reopen the evidence after he had rested his case. Applicable Law By statute, a trial court must allow testimony to be introduced at any time before argument "if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2005). The court of criminal appeals has construed the phrase "due administration of justice" to mean that the trial court should allow a case to be reopened if the proposed evidence would materially change the case in the proponent's favor. Peek v. State , 106 S.W.3d 72, 79 (Tex.Crim.App. 2003); see also Watkins v. State , 880 S.W.2d 16, 18 (Tex.App.-Tyler 1993, pet. ref'd). This decision is reviewed for an abuse of discretion. Watkins , 880 S.W.2d at 18. In determining whether the trial court abused its discretion, we do not substitute our judgment for that of the trial court. Montgomery v. State , 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990). The purpose of our review is to determine whether the trial court's decision was made without reference to any guiding rules or principles of law or, in other words, whether the decision was arbitrary or unreasonable. Id. at 380. An abuse of discretion occurs when a trial court's decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Id. at 391 (op. on reh'g). Analysis Appellant's counsel did not show that the voice exemplar would have materially changed the outcome in his favor. There was ample evidence that Appellant was driving while intoxicated. The testimony that Appellant's speech was slightly slurred was a small part of the trial and was not mentioned in either party's closing argument. Therefore, we cannot say that the voice exemplar would have materially changed the case in Appellant's favor. The trial court did not abuse its discretion when it did not allow Appellant to reopen the evidence after he rested. Appellant's sole issue is overruled. Disposition
We affirm the trial court's judgment.