DENNIS WAYNE HARRIS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 28, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01210-CR
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DENNIS WAYNE HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court
#2
Dallas County, Texas
Trial Court Cause No. F88-82076-PI
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O P I N I O N
Before Justices Howell, Rowe, and Kinkeade
Opinion By Justice Rowe
        Dennis Wayne Harris was convicted by a jury of the offense of burglary of a habitation. The trial judge assessed a punishment enhanced by two prior convictions of thirty years' confinement in the Texas Department of Corrections. In one point of error, appellant contends that the trial court abused its discretion in refusing to reopen the case after both sides closed, but prior to argument, so that appellant could present additional evidence relative to identity. We overrule appellant's point of error and affirm the judgment of the trial court.
        The State's first witness, Walter Bull, testified that he saw appellant walking out of the driveway to his house on Browder Street carrying two full garbage bags at approximately 6:30 to 6:45 p.m. The driveway is shared by Bull and his neighbor, Inez Ramirez, the complainant. After Bull questioned appellant about the contents of the garbage bags and was told it was none of his business, Bull told appellant that he was making it his business. Appellant began to run away, and Bull started to chase him. At that point, Investigator Barnwell of the Dallas Police saw appellant running with the bags, stopped his patrol car, and also began chasing appellant. As appellant was running, he dropped the garbage bags. Investigator Barnwell stopped pursuit and returned to Bull. When asked by Barnwell if the contents of the bags belonged to him, Bull looked into the bags and stated that it wasn't his property. Bull testified that he then walked up to Ramirez's house where he saw a broken window and the back door open.
        As a result of a radio report by Barnwell, two other officers became involved with searching for appellant. According to Barnwell, he described appellant on the police radio as a male with facial hair wearing a brown coat and cap. Officer Gay, who heard the radio report, stated that he remembered the description as being of a man with a slight growth of beard wearing a blue baseball cap and a brown jacket with a design. Officer Gay and his partner, Officer Little, after hearing the report on the police radio, saw a male who was not appellant wearing a blue cap and a brown coat with a design carrying a luggage bag. The officers stopped and handcuffed him, put him in the patrol car, and headed to the Browder Street home for identification. As the officers turned onto Corinth Street about two and a half blocks from the Browder Street house, the officers saw appellant. Officer Gay testified he noticed appellant because he was breathing hard and out of breath which led him to believe that appellant had been running hard. This fact coupled with the fact that appellant also matched the description given on the radio led Officers Gay and Little to stop appellant. Officer Gay testified that appellant was wearing a blue cap and brown coat and that he had a slight beard. Officer Barnwell drove up, recognized appellant by his clothing, and handcuffed him. The officers released the first man. Officer Barnwell returned to Browder Street with appellant to have him identified. Bull recognized appellant as the man he saw walking down the driveway carrying two garbage bags.
        Inez Ramirez testified that he left his house on Browder Street between 6:15 and 6:30 p.m. and returned at approximately 7:30 to 8:00 p.m. When Officer Barnwell showed Ramirez the contents of the garbage bags, Ramirez identified it as his property. He further testified that he did not give appellant or anyone else permission to enter his house.
        Appellant offered the testimony of his work supervisor and a co-worker to show that he was at work when the burglary occurred and that he walked down Corinth Street after leaving work. His supervisor testified that appellant worked from 12:00 p.m. to 7:00 p.m. on the day of the burglary and that he did not leave work early. Appellant's co-worker testified that he did not remember appellant missing work or leaving early prior to his arrest. He could not, however, testify to this for the specific day of the burglary. Both the supervisor and co-worker testified that they occasionally had observed appellant walking down Corinth Street after work to catch the bus.
        Officer Gay did not testify until after the defense rested. When he testified that he had apprehended two people, defense counsel claimed surprise and requested that the court reopen the case to allow the defense to present evidence of the clothing appellant was wearing at the time of arrest. In this connection, defense counsel moved for a continuance until he could obtain this evidence. The court denied the motion.
        Appellant contends that the court abused its discretion in refusing to reopen the testimony in order for the jail book-in worker to testify to what appellant was wearing when arrested. According to appellant, the court's discretion is limited in this case by the Code of Criminal Procedure which states that "[t]he 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 (Vernon 1981). Further, article 29.13 (1989) provides that "[a] continuance or postponement may be granted on the motion of the State or defendant after the trial has begun, when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial began, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had." Tex. Code Crim. Proc. Ann. art. 29.13 (Vernon 1989).
        Absent a showing of an abuse of discretion, this court will not reverse the judgment on appeal. Hernandez v. State, 643 S.W.2d 397, 399 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144 (1983). In weighing whether abuse occurred, we must consider two special factors present in this case. A trial court does not abuse its discretion in overruling a motion which shows on its face that the continuance was sought to obtain impeachment testimony. Herring v. State, 758 S.W.2d 849, 854 (Tex. App.--Corpus Christi 1988); Keel v. State, 434 S.W.2d 687, 689 (Tex. Crim. App. 1968). Also, if by the exercise of reasonable diligence, appellant's counsel could have anticipated the unexpected occurrence, the fact that counsel did not conduct such investigation will weigh against a finding of reasonable diligence. Guerrero v. State, 487 S.W.2d 729, 732 (Tex. Crim. App. 1972).
        Appellant's motion for continuance expressly states that the motion is "for the purposes of impeaching the State's witnesses on the newly discovered evidence," and that appellant's clothing was available "for impeachment purposes." Appellant sought to reopen in order to present evidence that he was wearing a blue coat and red baseball cap when arrested. Appellant's purpose in offering this evidence was to discredit the identification made by the police officers based on their observation that the appellant was wearing a brown coat and blue cap. Because the purpose sought to be served was directly related to impeachment, the trial court did not abuse its discretion in refusing the continuance.
        Furthermore, the testimony that appellant was wearing a brown coat and a blue cap was not an "unexpected occurrence" within the meaning of article 29.13. At any time during the earlier testimony of Investigator Barnwell, appellant could have informed his attorney that he was not wearing a coat of the color being described. If he had done so, a continuance would not have been necessary for an additional witness to be secured. Appellant, by waiting until the next day to inform his attorney of the discrepancy, caused the delay that required a continuance. Because the surprise could have been avoided with reasonable diligence on the part of appellant, the trial court did not abuse its discretion by denying appellant's motion for continuance.
        The judgment of the trial court is affirmed.
 
 
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
 
881210F.U05
 
 
File Date[11-28-89]
File Name[881210F]