Gary Lyn Black, Appellant v. The State of Texas, Appellee (2010)

memorandum Opinion ON REHEARING

In his motion for rehearing, Appellant Gary Black asserts that there is no evidence the “failure to appear” occurred in the presence of Justice Jacobs, citing Kosanda v. State, 727 S.W.2d 784 (Tex.App.-Dallas 1987, pet. ref'd).

During trial on the merits, and outside the presence of the jury, the State requested the trial court to re-open the suppression hearing, which had occurred the day before, to present testimony from Justice Jacobs.   Black objected,¹ and the trial court allowed Justice Jacobs to testify outside the presence of the jury.   Justice Jacobs testified that she was present when Black failed to appear, that his failure to appear occurred in her view, and that she issued the warrant for it thereafter.

In a “subpoint of error,” Black complains that the trial court erred in reopening the suppression evidence.   Citing Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996), Black correctly argues that an appellate court can consider trial evidence on a suppression issue only if it is consensually relitigated at trial.   But here, the evidence was not “trial” evidence before the jury.   Instead, Justice Jacobs's testimony was presented in a re-opening of the suppression hearing outside of the jury's presence, and the trial court had the discretion to allow it.   See Montalvo v. State, 846 S.W.2d 133, 136-38 (Tex.App.-Austin 1993, no pet.).   We overrule Black's “subpoint.”

Article 45.103 applies to the “failure to appear” arrest warrant issued by Justice Jacobs.   See Tex.Code Crim. Proc. Ann. art. 45.103 (Vernon 2006).   The trial court did not err in concluding that article 45.103 allowed for the Justice of the Peace's issuance of the arrest warrant for failure to appear without a sworn complaint.   The arrest warrant was valid.   Accordingly, the trial court did not abuse its discretion in denying the motion to suppress.

We deny the motion for rehearing and affirm the trial court's judgment.

[CRPM]

FOOTNOTES

FN1. Black objected to relitigating the suppression issue at trial..  FN1. Black objected to relitigating the suppression issue at trial.

REX D. DAVIS Justice