COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-274-CR

KWASI OMARI VANN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

Appellant Kwasi Omari Vann appeals his conviction for misdemeanor driving

while intoxicated. He contends in two points that the trial court erred by not ruling

on his motion for directed verdict before allowing the State to reopen the evidence

and that the evidence is factually insufficient to establish that he was the driver of the

automobile. We affirm.

1 See Tex. R. App. P. 47.4.
II. Background

Rochelle Bylow had been driving on Highway 287 in Fort Worth, Texas, with

her friend Renee Johnson when she and Renee saw a car swerve on the road and

nearly hit a car and a semi truck. Rochelle called 9-1-1 and was instructed to follow

the car. Rochelle identified the car as “light silverish” and “like a police officer car

almost.” Rochelle had followed the suspect car for about seven miles when the car

exited the freeway, went underneath a bridge, turned right, and hit a median.

Rochelle then saw someone exit the driver’s side of the car and vomit. Rochelle and

Renee parked across a field from the suspect car, stayed in place, and watched until

the police arrived. They did not see anyone else exit the vehicle while they watched.

Officer Saldivar soon arrived at the scene and saw a red vehicle and a man

walking around it. Rochelle and Renee pointed to the man who had exited the car

and identified Appellant to Officer Saldivar as the driver. Officer Saldivar noticed as

he approached Appellant that Appellant had trouble balancing, that he smelled of

alcohol, that he had bloodshot eyes, and that he had vomit on his pants leg. Officer

Saldivar administered field sobriety tests and arrested Appellant.

III. Reopening Evidence for Additional Testimony

Appellant argues in his first point that the trial court erred by not ruling on his

motion for directed verdict before allowing the State to reopen the evidence. We

disagree.

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The decision to reopen is left to the sound discretion of the trial court. Doyle

v. State, 24 S.W.3d 598, 601 (Tex. App.—Corpus Christi 2000, pet. ref’d). The trial

judge has the discretion to reopen a case to introduce additional evidence if that

evidence is vital to “due administration of justice.” Tex. Code Crim. Proc. Ann. art.

36.02 (Vernon 2007). A trial court’s decision to reopen is discretionary even when

the motion to reopen was made in response to the defendant’s motion for directed

verdict. Boatright v. State, 472 S.W.2d 765, 770 (Tex. Crim. App. 1971); Wall v.

State, 878 S.W.2d 686, 690 (Tex. App.—Corpus Christi 1994, pet. ref’d); Wolf v.

State, 674 S.W.2d 831, 842 (Tex. App.—Corpus Christi 1984, pet. ref’d), overruled

on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988).

Here, Appellant moved for a directed verdict, and the trial court stated, “I will

take it under advisement.” The State then formally requested to reopen its case

under article 36.02 of the code of criminal procedure. The trial court granted the

State’s request, and the State briefly solicited additional testimony from Officer Hill

concerning the witnesses’ identifications of Appellant as the driver of the vehicle they

had followed after calling 9-1-1.

Appellant offers no argument or citations to authority to support his claim that

the trial court’s decision to permit the State to reopen its case after Appellant moved

for a directed verdict was an abuse of discretion. Further, binding precedent holds

contrary to Appellant’s contention. See Ahmad v. State, 295 S.W.3d 731, 746–47

(Tex. App.—Fort Worth 2009, pet. ref’d) (op. on reh’g) (holding that trial court did not

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abuse its discretion in reopening evidence to allow State to establish venue following

the appellant’s objection just before closing arguments); see also Boatright, 472

S.W.2d at 770. We therefore overrule Appellant’s first point.

IV. Factual Sufficiency of the Evidence

Appellant contends in his second point that the evidence is factually

insufficient to establish that he was the driver of the suspect vehicle. Specifically,

Appellant contends that the evidence is factually insufficient because the witnesses

described the car as silver and the arresting officer described it as red, because the

witnesses did not mention that Appellant was changing a tire, because the arresting

officer did not identify the witnesses by name, and because there is no evidence of

Appellant’s race, height, weight, or other physical attributes.

When reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414

(Tex. Crim. App. 2006). We then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204

S.W.3d at 414–15, 417. To reverse under the second ground, we must determine,

with some objective basis in the record, that the great weight and preponderance of

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all the evidence, although legally sufficient, contradicts the verdict. Watson, 204

S.W.3d at 417.

Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.

Viewing all of the evidence in a neutral light, we recall that Rochelle testified

that Appellant’s car was “silverish” in color, that no witnesses described Appellant’s

physical attributes in order to identify him, and that neither Rochelle nor Renee

testified that they watched Appellant change a tire on his vehicle while they waited

for the police to arrive. However, the jury also heard evidence that Rochelle and

Renee personally witnessed Appellant driving erratically, called 9-1-1, were

instructed to follow Appellant’s car, did follow Appellant’s car, watched Appellant exit

the freeway, run into a median, and exit his vehicle. The jury also heard testimony

that Rochelle and Renee waited for the police from a safe distance, did not leave the

scene until after speaking with the investigating officers, and specifically told the

officers that Appellant was the person that had been driving the vehicle they had

followed.

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Viewing the evidence in a neutral light, we conclude a rational trier of fact

could have found beyond a reasonable doubt that Appellant was the driver of the

suspect vehicle. Therefore, we cannot say that the evidence is so weak that the

jury’s determination is clearly wrong or manifestly unjust or that the conflicting

evidence so greatly outweighs the evidence supporting the conviction that the jury’s

determination is manifestly unjust. See Lancon v. State, 253 S.W.3d 699, 704 (Tex.

Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. Accordingly, we hold that

the evidence is factually sufficient to support the jury’s verdict, and we overrule

Appellant’s second point.

V. Conclusion

Having overruled each of Appellant’s points, we affirm the trial court’s

judgment.

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

WALKER, J. concurs without opinion.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 12, 2010

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