DocketNumber： 14-03-00251-CR
Filed Date： 5/11/2004
Status： Precedential
Modified Date： 9/15/2015
Affirmed and Memorandum Opinion filed May 11, 2004.
In The
Fourteenth Court of Appeals
_______________
NO. 14-03-00197-CR
_______________
WAYNE J. BYWATER, Appellant
V.
THE STATE OF TEXAS, Appellee
_________________________________________________________
On Appeal from the County Criminal Court at Law No. 14
Harris County, Texas
Trial Court Cause No. 1140372
_________________________________________________________
M E M O R A N D U M O P I N I O N
Wayne J. Bywater appeals a conviction for driving while intoxicated[1] on the ground that the trial court erred by granting the State=s request to reopen the evidence at appellant=s motion to suppress hearing after: (1) the parties had agreed that the hearing would proceed only on affidavits; (2) argument at the initial hearing had been concluded; and (3) the trial court had agreed there that the affidavits did not establish probable cause. We affirm.
Appellant first contends that this decision by the trial court violated the Due Process right of a defendant to be afforded fairness in his dealings with the State, particularly when the State=s action induces the defendant into forfeiting a constitutional right, such as in the context of a plea agreement. Appellant argues that the State specifically agreed in this case not to present further evidence at the conclusion of the initial hearing and then breached both that agreement and its implied agreement to deal fairly in the execution of the terms of a plea agreement. Appellant further asserts that the decision of the trial court violated article 36.02 of the Texas Code of Criminal Procedure because it was not necessary to a due administration of justice.[2] These contentions lack merit in several respects.
First, although the prosecutor acknowledged repeatedly at the initial hearing that he had no further evidence to offer, appellant has cited no portion of the record at which the prosecutor ever agreed not to offer further evidence, i.e., if, as in this case, the arguments of counsel ultimately revealed a need to do so. Second, appellant fails to show that the trial court=s decision was part of any plea agreement[3] (or that any plea agreement had even been reached by the time of the decision) and cites no authority holding that any duty of fairness existing in the context of plea agreements would apply to reopening evidence on a motion to suppress. Third, appellant provides no support for his claim that he was induced to forfeit any rights with regard to the presentation of evidence or was unfairly prejudiced by the decision. Rather, the record reflects that he was given the same opportunity to present further evidence as the State and was allowed to freely cross-examine the State=s witnesses.
Lastly, appellant fails to show how article 36.02 limits a trial court=s authority to reopen evidence only to instances where it is necessary to a due administration of justice. Instead, that provision indicates only when a trial court must allow additional testimony, not when it may not.[4] Nor has appellant cited any decision reversing a judgment for allowing evidence to be reopened in any context.[5] Because appellant=s point of error thus fails to afford any basis for relief, it is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed May 11, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Bywater pled guilty and received punishment of 180 days confinement, probated for 18 months, and a $700 fine.
[2] See Tex. Code Crim. Proc. Ann. art. 36.02 (entitled ATestimony at any time@ and providing, AThe court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice (emphasis added)).
[3] Rather, during the hearing on his motion for specific performance, appellant=s attorney stated, Awhat we have here is not a plea bargain . . . this is an agreement.@
[4] See supra, note 2.
[5] The closest such decision we have found is a civil case that was not reversed for reopening the evidence, but for allowing additional evidence to be offered by only one party and not the other. See Papco, Inc. v. Eaton, 522 S.W.2d 538, 544 (Tex. App.CTexarkana 1975, writ dism=d by agr.).