AFFIRM; Opinion Filed February 28, 2013




                                         S  In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-11-01166-CR

                        TRACIE LONEASE RANSOM, Appellant
                                               V.
                            THE STATE OF TEXAS, Appellee

                        On Appeal from the Criminal District Court No. 2
                                     Dallas County, Texas
                              Trial Court Cause No. F08-61582-I

                              MEMORANDUM OPINION
                            Before Justices Moseley, Francis, and Lang
                                    Opinion by Justice Francis
       A jury convicted Tracie Lonease Ransom of injury to a child, and the trial court

sentenced her to five years in prison, probated for five years. In two issues, appellant contends

the trial court erred in refusing her request to re-open the evidence and denying her motion for

new trial. We affirm.

       The jury heard evidence in this case over two days. On the first day, only C.W. and his

mother, Rona Taylor, testified. Briefly, their testimony showed that in September 2008, C.W.

was five years old and had been having behavioral issues at school. One Friday, he was sent

home after having a “major meltdown.” Appellant, who is Taylor’s cousin, picked C.W. up from

school and took him to her house where he stayed overnight. The next morning, Taylor said she
received a call from appellant’s mother, Lonease Williams, who told her that another woman,

Rebecca “Shun” Edwards, had “whopped” C.W. (Edwards is appellant’s sister-in-law.) Taylor

went to appellant’s house unannounced to check on C.W. Taylor did not see any bruises on him,

although she did not check under his clothing, and said he “seemed okay.” Taylor left C.W. with

appellant until the following Monday, when she took him home. While she was preparing C.W.

for his bath, Taylor noticed bruises on his backside. C.W. began to cry and told his mother

appellant and Edwards held him down on the bed and “whopped” him with a belt.

       C.W. testified appellant and Edwards removed his clothes and had him lay on his

stomach on the bed. Then, Edwards held him down while appellant whipped him with a belt

and, when appellant tired, she held him down while Edwards whipped him. C.W. said he did not

react while they whipped him but said it felt “bad.” Photographs of the child’s injuries were

admitted into evidence.

       On the second day of trial, the State called four witnesses, including C.W.’s pediatrician,

who saw C.W. on the Tuesday following the Friday incident. Dr. Laura Burgos testified C.W.

had a “resolving” bruise that covered his buttocks and upper legs and that C.W.told her “his

mom’s cousin hit him” while another person held him down, and when she got tired, the other

person hit him while his mom’s cousin held him down. The State planned to call a fifth witness,

but the witness’s flight was delayed and the State rested its case.

       Appellant, who had subpoenaed witnesses to appear the following day, began his case by

recalling Taylor and C.W., who he did not cross-examine the day before. Taylor said that at the

time of the incident, C.W. had been having behavior problems at school and had been called in

for conferences on a weekly basis. As a consequence for his actions, she took away privileges

and sometimes spanked him. C.W. also testified his mother had spanked him for “[b]eing bad at




                                                  2
school.” He said it had happened a “few times,” but she did not “whip” him anymore. He said

she had used a switch.

          After their testimony, the trial court took a lunch recess. When court resumed outside

the jury’s presence, the trial judge asked defense counsel if he had more witnesses, and counsel

said he had been told they were “on their way.” The trial judge asked if he wanted to “rest on

this part of the trial then,” and defense counsel responded, “As long as I can reopen.” The trial

judge asked the prosecutor if she would “agree to let them reopen,” and the prosecutor said she

would.

         The jury returned to the courtroom, and the defense rested.        The State called two

witnesses with Family Protective Services in rebuttal. One testified appellant admitted to him

that she had spanked C.W. on the “bottom” with an open hand, and the second testified appellant

told her she had “popped” C.W. with a small plastic belt over his clothes. The State again rested,

and the trial judge asked the defense if it had any rebuttal witnesses. Defense counsel asked for

“a short recess to find out who’s in the building.”

         Thirty minutes later, the parties returned to the courtroom, and defense counsel asked for

a continuance “because of our witnesses.” The trial judge denied the request. Defense counsel

explained the witnesses were “material” and had been subpoenaed for the next morning: “They

are people who were in the home at the alleged time of the offense, people from the school, other

people who have been mentioned during the term of this trial. And they’re not here because

things went faster than was anticipated.” Defense counsel further stated he reasonably believed

it would take the State longer than Monday and Tuesday to present its case, and he “made a

reasonable call” in subpoenaing his witnesses for Wednesday. He again asked for a recess and

said his witnesses “will be here tomorrow.”




                                                 3
       The trial judge asked if the State had a response, and the prosecutor stated that by that

morning, defense counsel should have anticipated his case “would start today.” Defense counsel

replied his investigator had been “working on it” and he simply did not “have the people here

right now.” Again, he asked the trial judge to postpone the trial until the next morning, and the

trial judge again denied his request. The jury returned to the courtroom, and the trial judge asked

if the defense had any witnesses on rebuttal. Defense counsel replied, “Yes, Your Honor. We

just spoke with our investigator. Our witnesses are on their way.” The trial judge asked if

defense had any “right now,” and the defense called Edwards.

       Edwards, who had also been charged with assaulting C.W., testified she was at

appellant’s house on the day of the incident. She said C.W.’s shorts were “hanging a little bit”

and, as she was tightening his belt, she saw a bruise on his abdominal area. She told appellant,

who asked C.W. how he got the bruise, and he said he did not know. Edwards denied she and

appellant removed C.W.’s clothes and spanked him. She also denied telling a family protective

services investigator she saw appellant use a belt two to three times on C.W. Instead, she said

she was entering the restroom, and appellant and C.W. were standing. Both were laughing, and

appellant said she “popped him twice.”

       At the conclusion of Edwards’s testimony, the following occurred:

               [TRIAL COURT]: Call your next witness. Defense have any
               more witnesses?

               [DEFENSE COUNSEL]: Your Honor, right now, we’re getting
               ready to —

               [TRIAL COURT]: All right. I guess you don’t have any more
               witnesses.

               [DEFENSE COUNSEL]: My investigator is just getting ready —




                                                4
               [TRIAL COURT]: If you have a witness, call them now. I guess
               you don’t. Okay. Both sides close?

               [PROSECUTOR]: Yes, Your Honor.

               [TRIAL COURT]: Defense close? Defense close?

               [DEFENSE COUNSEL]: If I could ask for a minute, please, Your
               Honor?

               [TRIAL COURT]: All right. We’re going to close anyway. Okay.
               We’re going to go ahead and read the Charge to the jury.

                                              ***

               [TRIAL COURT]: The Court’s Charge to the jury. Members of
               the jury, the defendant—

               [DEFENSE COUNSEL]: Your Honor — Your Honor, we do have
               witnesses in the building.

               [TRIAL COURT]: We’re reading the Charge.

                                    [Trial Court reads charge]

       While the jury was deliberating, defense counsel proffered the testimony of four

witnesses: appellant’s two brothers, her sister-in-law, and her husband. All testified they were at

the house on the day of the incident at various times and did not see appellant hit C.W., except

for appellant’s husband who said appellant told him she “popped” C.W. a couple of times with a

“little flimsy belt.” They all said C.W. was playing and acting normal and did not appear to be in

any pain. In addition to these witnesses, defense counsel said he would have called six more

witnesses. Defense counsel explained that three of these witnesses would have testified “about

what they saw in the house on that, you know, Friday or Saturday or Sunday or a combination

thereof.” Two witnesses were from C.W.’s school—his teacher and principal—and would have

testified about C.W.’s behavior and how many times they met with C.W.’s mother. In addition,

the principal would have testified about the school’s procedures for having a child picked up and



                                                5
that she made a call to Taylor to pick up C.W. that day. The last witness, who was not

subpoenaed, was Lonease Williams, appellant’s mother. Defense counsel said Williams would

have denied calling Taylor and telling her “[appellant] or Shun had beat the baby and [Taylor]

need[ed] to go over there and check it.”

       After the jury returned its verdict, appellant filed a motion for new trial. At the hearing

on the motion, defense counsel presented the testimony of several of the previously mentioned

witnesses. After hearing the evidence, the trial court orally denied the motion.

        In her first issue, appellant contends the trial court erred in “refusing a timely request to

re-open the evidence.” In her second issue, she argues the trial court erred in denying her motion

for new trial “in which she alleged she had wrongfully been denied the opportunity to re-open

the evidence.” She argues both issues together.

       We begin with the first issue in which appellant argues the trial court refused to allow her

to reopen the evidence after she had rested. The record shows that after appellant rested her case

and the State presented its rebuttal witnesses, appellant called a witness, Rebecca “Shun”

Edwards. After Edwards testified, appellant had no other witnesses present, and the trial court

began to charge the jury. So, while appellant complains the trial court did not allow her to

reopen the evidence, the record does not support her claim. Rather, it shows that after the trial

court allowed appellant to reopen and call Edwards to testify, the court would not delay the trial

any longer waiting for the defense to procure its witnesses.

       Even if we addressed the issue on the merits, we could not conclude the trial court erred.

Article 36.02 of the Texas Code of Criminal Procedure governs a party’s right to reopen a case.

It provides that the trial 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




                                                  6
justice.” TEX. CODE CRIM. PROC. ANN. art. 36.02 (West 2007). “Due administration of justice”

means a judge should reopen the case if the evidence would materially change the case in the

proponent’s favor. Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003). To establish a

material change, the proponent of the evidence must show the evidence is “more than just

relevant—it must actually make a difference in the case.” Id.

       A trial court commits error when it denies a motion to reopen to allow a witness to testify

when the following criteria are satisfied: (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. Scott v. State, 597 S.W.2d 755, 758 (Tex. Crim. App. [Panel Op.]

1979). Among the factors to be considered in determining the materiality of evidence proffered

in a request to reopen under article 36.02 are the weight of the evidence, its probative value, the

issue upon which it is offered, and whether it is cumulative. See Peek, 106 S.W.3d at 78-79; see

also Birkholz v. State, 278 S.W.3d 463, 464 (Tex. App.—San Antonio 2009, no pet.). We

review a trial court’s ruling on a motion to reopen for an abuse of discretion. See Wilkinson v.

State, 423 S.W.2d 311, 313 (Tex. Crim. App. 1968); Reeves v. State, 113 S.W.3d 791, 794 (Tex.

App.—Dallas 2003, no pet.).

       Here, as stated previously, the witnesses were not present and ready to testify when the

trial court began reading the charge. Unlike Scott, where the witness arrived during the reading

of the charge and defense counsel reurged his motion to reopen when the trial court concluded

reading the charge, see 597 S.W.2d at 756, the record here does not indicate when the witnesses




                                                7
       arrived other than it occurred on the same afternoon. 1 Moreover, prior to the charge being read,

       defense counsel gave only a brief statement about the evidence. Defense counsel, at the time he

       sought a continuance, stated the witnesses were “material” and were “people who were in the

       home at the alleged time of the offense, people from the school, other people who have been

       mentioned during the term of this trial.”                         Even if this description establishes relevancy, it does

       not show that the evidence would have made a difference in the case as is required by Peek. We

       are aware appellant made an offer of proof while the jury was deliberating, but the substance of

       that offer was not before the trial court at the time the decision was made to charge the jury.

       Given that appellant’s witnesses were not present and ready to testify and appellant’s failure to

       inform the trial court of the specific testimony and its importance, we conclude appellant has not

       shown an abuse of discretion.

                   Finally, even if we considered the evidence offered while the jury was deliberating, we

       still could not conclude the evidence would materially change the case in appellant’s favor.

       Appellant’s brothers, sister-in-law, and husband would have testified they were at the house on

       the day C.W. was beaten, none saw appellant hit C.W., and C.W. was acted normally and did not

       appear to be in pain.                  These witnesses, however, were either “in and out” or arrived late

       afternoon or night. 2 More importantly, appellant’s husband would also have testified appellant

       told him she “popped” C.W. a couple of times with a “little flimsy belt.” This was in addition to

       the evidence at trial from the two family protective services workers, who both said appellant

       told them she hit the child with either her open hand or a belt, as well as Taylor’s sister-in-law

       and appellant’s “cousin by marriage,” who said she talked to appellant on the day of the incident


1
    The jury began deliberating the case at 3:03 p.m., and the bill of exception was made on the same day while the jury was deliberating.
2
    One brother said he was at the house at three different times and was “in and out”; another brother testified he went over to the house that night; the
       sister-in-law testified she was there from late afternoon to night; and appellant’s husband said he was there that night.




                                                                                8
and appellant told her she whipped C.W. but he did not cry. As for the school officials, it was

not disputed at trial that C.W. had ongoing behavioral issues at school. Any evidence about the

school’s policies concerning pickup of children could have, at most, marginal relevance and

would not be material to the outcome of the case. Finally, evidence by Williams denying she

called Taylor Saturday morning and told her “Shun” had beaten C.W. would not have materially

changed the case. While it may have tended to impeach Taylor, it did not bear directly on the

issue of appellant’s guilt or innocence. We overrule the first issue.

       With respect to the second issue, we have reviewed the motion for new trial. In the

motion, appellant asserted the trial court “refused to permit defense counsel to present nine

different witnesses to the jury.” She argued she was deprived of her constitutional right to

subpoena and present witnesses and that the verdict was prejudiced by the trial court’s failure to

grant a recess or continuance so that all defense witnesses could be presented. She did not

complain the trial court failed to allow her to reopen or mention article 36.02. Under these

circumstances, we conclude she has not preserved her complaint. See TEX. R. APP. P. 33.1; see

Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005) (stating that “trial court cannot be

said to have erred in denying a motion for new trial on a basis that was not presented to it”). We

overrule the second issue.

       We affirm the trial court’s judgment




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE

Do Not Publish
Tex. R. App. P. 47
111166F.U05



                                                 9
10
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

TRACIE LONEASE RANSOM, Appellant                   On Appeal from the Criminal District Court
                                                   No. 2, Dallas County, Texas
No. 05-11-01166-CR        V.                       Trial Court Cause No. F08-61582-I.
                                                   Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                       Justices Moseley and Lang participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered February 28, 2013.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




                                              11
