      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



                             MEMORANDUM OPINION


               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




       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.

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                      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

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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




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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




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