Opinion issued December 30, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-14-00153-CR
                          ———————————
                   DONALD RAY HASKETT, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 232nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1369332



                      MEMORANDUM OPINION

     On December 7, 2012, Donald Ray Haskett pleaded guilty to assaulting a

family member, a third-degree felony,1 and was placed on deferred adjudication

1
     TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.01(b)(2)(B) (West Supp. 2014).
community supervision for two years. After a hearing on the State’s motion to

adjudicate guilt, the trial court found the allegations in the motion to be true,

adjudicated Haskett guilty of the underlying offense, and assessed his punishment

at three years’ confinement in TDCJ. In a single point of error, Haskett contends

that the trial court erred in allowing the State to reopen the case during the

adjudication hearing.

      We affirm the trial court’s judgment.

                                    Background

      During the adjudication hearing, the State presented two witnesses who

testified that Haskett violated eleven conditions of his community supervision, as

alleged in the State’s motion to adjudicate—Haskett’s community supervision

officer and a police officer who testified that he found marijuana in Haskett’s

pocket during a recent traffic stop. Following the presentation of these two

witnesses, the State rested. Haskett then moved for a directed verdict of “not true”

on the grounds that the State had failed to prove that he was the individual placed

on community supervision on December 7, 2012. See Cobb v. State, 851 S.W.2d

871, 874 (Tex. Crim. App. 1993) (en banc) (“The State must prove at a revocation

hearing that the defendant is the same individual as is reflected in the judgment and

order of probation, and that the individual violated a term of probation as alleged in

the motion to revoke.”). Over Haskett’s objection, the trial court allowed the State


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to reopen the evidence and present testimony from the community supervision

officer and two additional witnesses, identifying Haskett as the person reflected in

the December 7, 2012 judgment and order of deferred adjudication.

                                     Discussion

      In a single point of error, Haskett contends that the trial court erred in

allowing the State to reopen the evidence after the State had rested its case-in-chief

because two of the State’s witnesses were not “present and ready to testify” when

the State moved to reopen.

      Article 36.02 of the Texas Code of Criminal Procedure, which governs a

party’s right to reopen a case, requires trial courts to “allow testimony to be

introduced at any time before the argument of a cause is concluded, if it appears it

is necessary to a due administration of justice.” TEX. CODE CRIM. PROC. ANN. art.

36.02 (West 2007); see also Peek v. State, 106 S.W.3d 72, 75 (Tex. Crim. App.

2003). A “due administration of justice” means the trial court should reopen the

case if the proffered evidence would materially change the case in the proponent’s

favor. See Peek, 106 S.W.3d at 79. Such evidence cannot be cumulative and “must

actually make a difference in the case.” Id. We review a trial court’s decision on a

motion to reopen for abuse of discretion. See Peek, 106 S.W.3d at 79; Smith v.

State, 290 S.W.3d 368, 373 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)

(applying article 36.02 to State’s request to reopen evidence in adjudication


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hearing). A trial court’s decision to reopen is discretionary even when the motion

to reopen was responsive to defendant’s motion for directed verdict. Ahmad v.

State, 295 S.W.3d 731, 747 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing Wall

v. State, 878 S.W.2d 686, 690 (Tex. App.—Corpus Christi 1994, pet. ref’d)).

      Relying upon Thomas v. State, 681 S.W.2d 111, 113 (Tex. App.—Houston

[14th Dist.] 1984, pet. ref’d), Haskett argues that the trial court’s granting of the

State’s motion to reopen was error because two of the witness were not “present

and ready to testify.” Haskett’s reliance upon Thomas, however, is misplaced. The

factors identified in Thomas, including the requirement that the witnesses be

“present and ready to testify,” are only applicable when examining whether a trial

court erred in denying a motion to reopen and determining whether a trial court

must reopen a case. See id. (stating trial court’s discretion to reopen evidence is not

unlimited and setting forth circumstances under which trial court’s refusal to

reopen constitutes abuse of discretion).

      Here, the record shows that the State’s request to reopen the evidence came

before closing arguments, and, as Haskett concedes, the evidence materially

changed the case in the State’s favor by showing that Haskett was the same person

placed on community supervision on December 7, 2012. See Peek, 106 S.W.3d at

79. Under these circumstances, we hold that the trial court did not abuse its

discretion in reopening the evidence. See id.; Smith, 290 S.W.3d at 373.

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      We overrule Haskett’s sole point of error.

                                   Conclusion

      We affirm the trial court’s judgment.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




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