[Download] "Calvin Scott v. State Texas" by 091 The Texas Court of Criminal Appeals No. 56 ~ Book PDF Kindle ePub Free

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• Title: Calvin Scott v. State Texas
• Author : 091 The Texas Court of Criminal Appeals No. 56
• Release Date : January 14, 1980
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 57 KB

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W.C. DAVIS, Judge Opinion ON STATE'S MOTION FOR REHEARING On original submission of this case, the judgment was reversed and the case was remanded to the trial court. Now on State's Motion for Rehearing, the State urges that this Court erred in finding that the trial court abused its discretion when it refused to grant appellant's Motion to re-open. The State takes issue with the statement in the panel opinion that, In the present case the witness was present before the completion of argument so that no delay would have resulted had she been allowed to testify. The State maintains that this statement is a conclusion not supported in the record, and further maintains that a delay would have resulted, in that (1) the charge would have had to have been revised to include an instruction on alibi, (2) the State would have had to have located the other persons that the appellant's witness stated were present at the time, and (3) the State would have had to have brought in witnesses to testify to the defense witnesses' bad reputation for truth and veracity. While we agree that there was no evidence to indicate that a delay would not have resulted if the Motion had been granted, neither was there any evidence in the record to show that the introduction of the evidence would have impeded the trial or interfered with the due and orderly administration of justice. We find, upon reconsideration of the case, that the original opinion was correctly decided. However, we would emphasize that our determination that the trial court abused its discretion does not turn so much on the timing of the motion, i.e., whether or not the charge had been read to the jury, but on the substance of the evidence that was excluded. In Meeks v. State, 135 Tex. Crim. 170, 117 S.W.2d 454 (1938), testimony was excluded which pertained to the issue of self-defense. The Court found that this evidence was not cumulative and held, in view of the fact that the issue was closely contested, that it cannot be said that the excluded testimony would not probably have turned the scales in appellant's favor. Cf. Wilkinson v. State, 423 S.W.2d 311 (Tex.Cr.App. 1968) (held not an abuse of discretion to refuse to re-open after close of evidence to permit defense witness to impeach another witness) and Walker v. State, 91 Tex. Crim. 507, 240 S.W. 538 (1922) (trial court did not err in refusing to re-open for defendant's impeachment testimony).

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