
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-04-00402-CR


Joshua Glenn Allman, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 54794, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



O P I N I O N

Appellant Joshua Glenn Allman pleaded guilty to manufacturing more than 400
grams of methamphetamine.  See Tex. Health & Safety Code Ann. § 481.112(a), (f) (West 2003). 
The court adjudged him guilty and imposed a sentence of twenty-five years' imprisonment and a
$5000 fine.  Allman's sole point of error is that the court erroneously permitted the State to introduce
additional evidence after argument was concluded.  We will sustain this contention and reverse the
judgment of conviction.
A 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 justice."  Tex.
Code Crim. Proc. Ann. art. 36.02 (West 1981).  In 1895, construing the virtually identical statutory
predecessor to article 36.02, the court of criminal appeals wrote that the statute "conveys the idea
that evidence should not be introduced after the close of the argument, in as strong terms as if the
legislature had said so in direct language."  Williams v. State, 32 S.W. 893, 894 (Tex. Crim. App.
1895).  The prohibition on evidence following argument is mandatory, and it applies whether the
argument is made to a jury or to the court.  Lockett v. State, 55 S.W. 336, 336 (Tex. Crim. App.
1900).  More recently, the court of criminal appeals observed that article 36.02 "permits evidence
to be admitted after arguments have begun, as long as the arguments have not yet concluded."  Peek
v. State, 106 S.W.3d 72, 78 (Tex. Crim. App. 2003).  The statute encourages litigants "to introduce
their evidence during the course of the trial rather than waiting until closing arguments."  Id. at 79. 
It thereby prevents either party from seeking out additional evidence in order to counter the other
party's argument. 
In the cause before us, the trial court withheld its verdict and ordered a presentence
report after accepting Allman's guilty plea.  The presentence report disclosed that, while free on
bond following his arrest in this cause, Allman was arrested in Georgia and charged with conspiring
to manufacture methamphetamine and several related offenses.  According to the report, Allman told
the probation officer that "[t]he only thing that is pending [in Georgia] is the Driving While License
Suspended charge.  All of the other charges were dropped because I testified against my father-in-law, who was actually the one making it."  The probation officer had contacted the Georgia
prosecutor, however, and had been informed that "[a]ll of the charges are pending and the case is
being prepared for Court."  
When trial resumed six weeks after the guilty plea, Allman and his mother testified
regarding his desire to rehabilitate his life and his suitability for probation.  He was also questioned
about the Georgia case.  Allman testified that he had traveled to his in-laws' residence in Georgia
to visit his son, and that he had been arrested merely because he was present when the police arrived
to execute a search warrant.  Allman testified that he had nothing to do with his in-laws' unlawful
activities and was cooperating with the Georgia prosecutors.  After Allman and his mother testified,
both sides rested and closed.
The State waived its opening argument.  Defense counsel argued that Allman
deserved a second chance, citing his cooperation with the Georgia authorities, and urged the court
to place Allman on probation.  In his closing argument, the prosecutor argued that Allman's
testimony was not worthy of belief and urged the court to impose a prison sentence.  After the
arguments were concluded, the court ordered Allman to immediately report for a drug test and took
the noon recess. (1)
Trial resumed two-and-a-half hours later.  The prosecutor told the court that he had
spoken to the Georgia prosecutor during the recess: "I told her the entire story the defendant gave
in his direct examination and cross exam.  She said the only grain of truthfulness to any of that was
the fact that he is charged down there.  She said the rest of it is nothing but a lie."  The prosecutor
added, "I'd like an opportunity to question the defendant about some facts I just learned.  So if we're
going to go forward, I'd like to call him back to the stand."  Defense counsel objected, "The State
has rested on the matter and we were at--both parties have rested on the sentencing portion of it so
I would object to any more questioning since the State rested their case of this defendant."  The court
stated, "[M]y concern was to ask both State and Defense to get a hold of the State in the other case
to see if what the defendant said was in fact true, because it would make a difference as to--or
possibly could make a difference as to what this Court would do."  The court overruled Allman's
objection and, after establishing for the record that neither the defense nor the court was calling him,
permitted the State to call Allman for further testimony.
The prosecutor asked Allman a series of questions regarding the details of the Georgia
offenses that were obviously based on information he had received from the Georgia prosecutor.  In
this manner, the prosecutor was able to establish that Allman's involvement in the Georgia
methamphetamine operation was more extensive than his earlier testimony had suggested.  After
additional short questioning by defense counsel and by the court, and after both sides gave brief
additional argument, the court adjudged Allman guilty and imposed sentence.
The State argues that Allman did not preserve his article 36.02 complaint because he
objected to the additional testimony on the ground that both sides had closed, rather than on the
ground that argument had been concluded.  "The standards of procedural default . . . are not to be
implemented by splitting hairs in the appellate court."  Lankston v. State, 827 S.W.2d 907, 909 (Tex.
Crim. App. 1992).  We believe that Allman's objection was sufficiently clear under the
circumstances to make the court aware of his complaint that it was too late for further testimony. 
Id.; Tex. R. App. P. 33.1(a).  The alleged error was preserved for appeal.
As to the merits of Allman's point of error, the State argues that article 36.02 was not
violated because argument had not concluded.  The State notes that the court ordered Allman to
submit to a urine test without objection.  The State also claims that the court "requested further
information about the out of state case pending against Appellant."  The State concludes, "Clearly
this matter had not concluded in the trial court's opinion or in [the] opinion of counsel in the case. 
Further evidence was going to be heard and with it the opportunity for further argument."
If the trial court believed that a drug test or additional information regarding the
Georgia allegations was material evidence, it should have sought out this information before
allowing the parties to conclude their arguments. (2)  A trial court does not err by reopening for further
evidence before arguments conclude provided the evidence is material.  Peek, 106 S.W.3d at 79.  But
it is clear from the record that both parties had concluded their arguments before the court admitted
the additional evidence.  Whatever the trial court might have believed or desired, article 36.02
prohibited further evidence at that point in the proceeding.  As the court wrote in Williams:

There must be an end to the introduction of evidence somewhere . . . . [W]e believe
that the administration of justice is best conserved by adhering to the plain rules of
law as enunciated by our statute. . . . [T]he object and purpose of [article 36.02] was
to mark the limit beyond which no court should be authorized to allow the
introduction of testimony.


32 S.W. at 894.  We are not persuaded by the State's argument that there was no error because the
court wanted to hear more testimony following the conclusion of argument.  Article 36.02 makes it
clear that the court had no discretion or authority to admit evidence after the close of argument.
Nor are we persuaded by the State's argument that no error is presented because both
parties were permitted further argument after the new testimony was adduced.  This argument is
contrary to the object and purpose of the statute as explained in Williams.  The close of argument
would no longer clearly mark the point beyond which no further evidence is allowed.  Instead,
evidence could be reopened repeatedly and further testimony adduced so long as the parties were
each given an additional opportunity to argue.  Simply put, this is not what the statute says.
Finally, the State argues that "the due administration of justice required a challenge
of Appellant's testimony."  The State relies on the opinion in Peek, in which the court held that the
phrase "due administration of justice" in article 36.02 means that "a judge should reopen the case
if the [additional] evidence would materially change the case in the proponent's favor."  106 S.W.3d
at 79.  But the issue in Peek was whether the trial court should have granted a request to reopen
testimony that was made before argument.  See id. at 73-74.  Peek does not hold that the "due
administration of justice" warrants reopening for further testimony after argument is concluded.
We understand that a bench trial, particularly a bench trial on a plea of guilty, is often
conducted with less formality than a jury trial.  But even a bench trial must be conducted in
accordance with applicable procedural statutes and rules.  The trial court in this cause permitted the
State to introduce further evidence after both parties had concluded argument in clear violation of
article 36.02.  As the State itself argues in its brief, the additional testimony was such as to materially
change the case in the State's favor.  We conclude that the court's error affected Allman's substantial
rights and cannot be disregarded.  Tex. R. App. P. 44.2(b).
The judgment of conviction is reversed and the cause is remanded for a new trial.


				__________________________________________
				Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Reversed and Remanded
Filed:   May 5, 2005
Publish
1.       The test was negative. 
2.        We believe that the receipt of the drug test result after the conclusion of arguments was also a
violation of article 36.02, but Allman's failure to object precludes him from raising it.
