Nos. 2377-01 & 2378-01






Holcomb, J., filed a dissenting opinion.


Texas Code of Criminal Procedure article 36.02, enacted into law in 1965, provides: "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." The meaning of that statutory language has been settled for many years, at least since our holding in Vital v. State, 523 S.W.2d 662 (Tex.Crim.App. 1975). In that case, we held that under the statute, a trial court must reopen a case and admit a party's offered evidence "irrespective of its weight, or of the probative value or cumulative character or the issue upon which it is offered ... if the evidence [is] admissible and offered before the reading of the charge and prior to arguments, unless it appears its introduction would ... imped[e] the trial or interfer[e] with the due and orderly administration of justice." Id. at 664-665. For four separate reasons, I conclude that we should adhere to the Vital interpretation of the statute. First, that interpretation is consistent with the statutory text and with the pursuit of truth, which is what a criminal trial is all about. Second, we re-affirmed the Vital interpretation in six subsequent cases. See Tucker v. State, 578 S.W.2d 409, 410 (Tex.Crim.App. 1979); Scott v. State, 597 S.W.2d 755, 757 (Tex.Crim.App 1979); Holifield v. State, 599 S.W.2d 836, 837 (Tex.Crim.App. 1980); Lackey v. State, 638 S.W.2d 439, 458 (Tex.Crim.App. 1982); Cain v. State, 666 S.W.2d 109, 111 (Tex.Crim.App. 1984); and Rogers v. State, 774 S.W.2d 247, 263 (Tex.Crim.App. 1989). Changing our minds now, after all these many years, makes us look foolish and result-oriented. Third, the Legislature has not found it necessary to overrule the Vital interpretation of the statute legislatively, which should give us considerable confidence that the interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex.Crim.App. 1992) (prolonged legislative silence following judicial interpretation of statute implies approval of judicial interpretation). Finally, the reasons given by the majority today for overruling Vital and its progeny and re-interpreting Article 36.02 are not very persuasive, certainly not compelling.

In his dissent in Garrett v. State, 851 S.W.2d 853 (Tex.Crim.App. 1993), Judge Campbell reminded us that the proper administration of justice requires that we adhere to our precedents absent compelling reasons for doing otherwise. His words bear repeating today:

The traditional rule requiring respect for precedent, usually referred to as the rule of stare decisis ("let the prior decision stand"), has at least four rationales. First, if courts adhere to past decisions, direction is provided to all who labor in the legal enterprise. Lower courts know how they should and should not decide cases; lawyers know how to frame their arguments, devise their strategies, and advise their clients in accord with the lessons of past cases; the Legislature and Governor know what they may and may not do, and so forth. "[S]tare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right." Burnet v. Coronado Oil and Gas Co., 285 U.S. 393, 406, 76 L. Ed. 815, 52 S. Ct. 443 (1932) (Brandeis, J., dissenting). Second, the labor of judges would be increased to the breaking point if every past decision could be reopened in every case. Third, "the very concept of the rule of law . . . requires such continuity over time that a respect for precedent is, by definition, indispensable." Planned Parenthood v. Casey, 120 L. Ed. 2d 674, 112 S. Ct. 2791, 2808 (1992). Fourth, the continuity of the law helps preserve public faith in the judiciary as a source of impersonal and reasoned judgments.

Of course, as every first-year law student knows, the rule of stare decisis is not an inexorable command. Courts must be free, at certain times, to overrule their past decisions. But we have recognized that the rule of stare decisis "creates a strong presumption in favor of established law." Collier v. Poe, 732 S.W.2d 332, 345 (Tex.Cr.App. 1987). We have also recognized that the rule "has its greatest force in the area of statutory construction," id., because if the construction of a statute is unacceptable to the Legislature, a simple remedy is available by the process of legislative amendment. State v. Hall, 829 S.W.2d 184, 187 (Tex.Cr.App. 1992); Lockhart v. State, 150 Tex. Crim. 230, 200 S.W.2d 164, 167-168 (Tex.Cr.App. 1947); accord, James v. Vernon Calhoun Packing Co., 498 S.W.2d 160, 162 (Tex. 1973); Marmon v. Mustang Aviation, Inc., 430 S.W.2d 182, 186 (Tex. 1968); Moss v. Gibbs, 370 S.W.2d 452, 458 (Tex. 1963). In agreement with this position, the United States Supreme Court recently stated:

[T]he burden borne by the party advocating the abandonment of an established precedent is greater where the Court is asked to overrule a point of statutory construction. Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.

Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2370, 105 L. Ed. 2d 132 (1989).

When may a precedent be properly overruled? This is a difficult question to answer, but we may be confident in the assumption that a precedent may not properly be overruled simply because a majority of the Court believes it to be error. If the rule were otherwise, then no precedent would be safe and our law could change after every change in Court personnel. "The situation would . . . be intolerable if the [periodic] changes in the composition of the court were accompanied by changes in its rulings. In such circumstances there is nothing to do except to stand by the errors of our brethren of the [time] before, whether we relish them or not." B. Cardozo, The Nature of the Judicial Process 150 (1921).

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. Because the majority refuses to do so, I respectfully dissent.

FILED MAY 21, 2003