
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-05-00188-CR


Willie Ray Houston, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 2044076, HONORABLE JON N. WISSER, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	Willie Ray Houston appeals his conviction after a bench trial for felony driving while
intoxicated.  In a single point of error, appellant complains that, after the State had rested, the trial
court permitted the State to reopen the evidence to admit evidence of prior convictions alleged in the
indictment to support the enhancement to a felony-level conviction.  Appellant contends that the trial
court was biased and acting as prosecutor in permitting the State to reopen its case for additional
evidence, in violation of appellant's due process rights.  Because the trial court did not abuse its
discretion, we affirm the judgment of conviction.
	Austin Police Officer Robert Higgins stopped appellant from driving out of a gas
station on August 31, 2004, after receiving information from the store clerk that appellant might be
intoxicated.  Following a field sobriety test and after exhibiting symptoms of intoxication, appellant
was placed under arrest.  He was indicted for felony driving while intoxicated as enhanced by four
prior convictions.  See Tex. Pen. Code Ann. §§ 49.04, .09(b)(2) (West Supp. 2005). (1)  At the close
of the State's case, the State waived closing argument except to respond to appellant's closing
argument.  Appellant then argued that the State had failed to prove intoxication.  He also argued that,
as the State had failed to present any evidence regarding the enhancement paragraphs of the
indictment, the court should find appellant guilty only of the misdemeanor offense of driving while
intoxicated.  The court then asked whether the State "wish[ed] to respond."  After some initial
confusion, the following colloquy occurred:

The Court:	What about the evidence of the other convictions?  You aren't going to
put those in evidence?

[State]:	Yes, Your Honor.

The Court:	All right.  I was going to say: Why don't you move to reopen to put
in--at this time has the State put on any evidence of any of these other
convictions in this--in the packet?

[State]:	We thought they were included within that packet, Your Honor, based
on his pen trip [sic] with the--

The Court:	This covers the one that's the--this thing over there, but it only covers
one of these four.  You might want to look that over.  That covers the
one that the State alleges they wish to use to boost this from a third to a
second, but is there underlying ones--

[State]:	I understand what you're saying, Your Honor.

The Court:	--that boost it to a felony third, there's only one of them.  You might
want to take a look at that.


The State then sought to reopen the evidence to offer the other judgments.  The court granted the
State's request.  The State then offered into evidence and the court admitted State's Exhibits 3
through 6, which contained evidence of additional convictions.  Appellant objected generally to the
State's reopening but not to the exhibits.  The court overruled appellant's objection.  The court then
gave appellant additional time to present his argument.  The court found appellant guilty of the
offense of driving while intoxicated, a third-degree felony as enhanced by at least two prior
convictions.
	From this colloquy, appellant argues that--in this bench trial--the court exhibited bias
in permitting the State to reopen and introduce evidence after the parties had closed.  Appellant
urges: "This was, truly, the trial judge's sua sponte motion to reopen and put on evidence the judge
thought was necessary to secure a felony conviction.  To put it another way, the judge made sure the
Appellant did not win, demonstrating his bias in favor of a conviction."
	Article 36.02 of the Texas Code of Criminal Procedure marks the limit beyond which
no court is authorized to allow the introduction of testimony.  It provides: "The 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."  Tex. Code Crim. Proc. Ann. art. 36.02 (West
1981); see Allman v. State, 164 S.W.3d 717, 719 (Tex. App.--Austin 2005, no pet.).  As an initial
matter, the parties had not concluded argument.  The State was not precluded by article 36.02 from
seeking to reopen its evidence.  
	In considering allegations of judicial bias, the Supreme Court has determined that
"judicial rulings alone almost never constitute a valid basis for a bias or partiality motion."  Liteky
v. United States, 510 U.S. 540, 555 (1994).  A trial court has the inherent power to control the
disposition of cases with economy of time and effort, id. at 556; Landis v. North Am. Co., 299 U.S.
248, 254 (1936), as well as to aid in the exercise of its jurisdiction, in the due administration of
justice, and in the preservation of its independence and integrity.  See Tex. Code Crim. Proc. Ann.
art. 36.02; Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979).  The trial court has
discretion to maintain control of the proceedings before it, to expedite the proceedings, and to
prevent what it considers to be the unnecessary use of its time or resources.  Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 240 (Tex. 2001).  
	Allowing a party to reopen the evidence is a matter within the sound discretion of the
court.  E.g., Woodkins v. State, 542 S.W.2d 855, 861 (Tex. Crim. App. 1976) (no abuse of discretion
shown in allowing State to reopen evidence); Perry v. State, 464 S.W.2d 660, 662 (Tex. Crim. App.
1971) (same); Berry v. State, 442 S.W.2d 713, 715 (Tex. Crim. App. 1969) (no abuse of discretion
in court permitting State to reopen and introduce additional evidence before charge read to jury);
Patterson v. State, 416 S.W.2d 816, 821 (Tex. Crim. App. 1967) (same).
	Applying these principles to this case, and after examining the judge's conduct in the
context of the entire, albeit brief, record, we conclude there is no evidence of judicial bias.  The
record before this court reflects that the trial court acted within its sound discretion.  We overrule
appellant's sole point of error and affirm the judgment.


__________________________________________
					Jan P. Patterson, Justice
Before Justices B. A. Smith, Patterson and Puryear 
Affirmed
Filed:   November 29, 2005
Do Not Publish
1.   We will refer to the current section 49.09(b)(2) in the penal code, as it remained unchanged
in the most recent amendments to this section.  See Act of May 25, 2005, 79th Leg., R.S., ch. 996,
§§ 1, 3, 2005 Tex. Gen. Laws 3365, 3365-3366.
