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Criminal Law No. 2377-01, 5/21/2003. Click here for the full text of this decision FACTS: Rosana and Robert Dale Peek were tried together for injuring their daughter. After both sides closed, the defense sought to reopen the case. The judge denied the request. The appellate court found no error because the Peeks did not demonstrate that “the evidence would have materially changed the case.” The Peeks contest the appellate court’s use of the “material change” analysis. HOLDING: Affirmed. Texas Code of Criminal Procedure article 36.02 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 justice.” Nothing in the statute’s plain language mentions anything about a “material change.” But that phrase could conceivably come within the concept of evidence being “necessary to a due administration of justice.” The real question, then, is what is meant in the statute by “a due administration of justice.” The phrase “due administration of justice” is inherently vague. Given the many ways that this court has interpreted the phrase over the years, the court finds it to be ambiguous. The Texas Supreme Court acknowledged over a century ago that the purpose of the statute was to change “the rigid rule” of the past. Kemp v. State, 38 Tex. 110 (1873). The court did not explain what that “rigid rule” was, but a review of the case law of the time reflects that before this statute was enacted, a party could not reopen his case to admit additional evidence unless that evidence was in rebuttal. In several early cases, defendants complained that the evidence the state had been permitted to admit after both sides had closed was not rebuttal evidence. The court repeatedly rejected these claims, recognizing that under the new statute, courts were not limited to admitting rebuttal evidence only. Instead, judges were permitted to admit evidence of any kind. So the statute rejected the “rigid rule” of the past and operated to allow more evidence to be admitted at trial. It sought to give trial judges greater discretion in determining whether it was appropriate to reopen a case to admit additional evidence. The court’s opinion in Vital v. State, 523 S.W.2d 662 (Tex. Crim. App. 1975), interpreting “due administration of justice” to mean little more than relevance, sets forth an extraordinarily low standard. Under this interpretation, virtually any evidence that a proponent could present must be admitted. The trial court loses discretion to analyze the materiality of the evidence because every piece of relevant evidence must be admitted. Since “relevant” is defined very broadly, the trial court will nearly always err whenever it excludes evidence. This lack of discretion contradicts the statute’s intent in granting judges greater discretion. And since the Rules of Evidence already require that evidence be relevant, this standard essentially removes all meaning from the phrase “due administration of justice.” In contrast, a return to the Harris v. State, 44 Tex. 146 (1875), requirement of material change sets forth a higher standard. “Due administration of justice” requires a showing that the evidence is more than just relevant – it must actually make a difference in the case. With “due administration of justice” meaning something more than mere relevance, meaning is returned to that phrase. Under this interpretation, litigants are encouraged to introduce their evidence during the course of the trial rather than waiting until closing arguments. And although this interpretation naturally results in less evidence coming in, it ensures that material evidence will not be overlooked. A trial judge is required to reopen a case under article 36.02 only if the proffered evidence is “necessary to a due administration of justice.” Given the direction of case law over the years, the statute’s purpose in granting judges greater discretion, and the consequences of each construction, the court concludes that a “due administration of justice” means a judge should reopen the case if the evidence would materially change the case in the proponent’s favor. The court overrules any cases to the contrary. The court of appeals properly applied the materiality standard to this case, and the Peeks do not challenge the appellate court’s conclusion that this evidence was not material. OPINION: Keasler, J.; Keller, P.J., Meyers, Price, Womack, Johnson, Hervey and Cochran, JJ., join. DISSENT: Holcomb, J. “In my view, when a court contemplates overruling an established precedent, especially a prior statutory interpretation which has been left undisturbed by the Legislature, the court must carefully balance the reasons proffered for rejecting the precedent against the very weighty considerations – discussed previously – underlying stare decisis. Such an analysis will preclude rejection of precedent absent the strongest reasons for doing so. Garrett v. State, 851 S.W.2d at 862-863 (Campbell, J., dissenting). “I would reverse the judgments of the court of appeals and remand the cases to that court so that it may address appellants’ claims in a manner consistent with our holding in Vital and its progeny.”

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