OPINION
ODOM, Judge.
This is an appeal from a conviction for aggravated robbery. Punishment was enhanced to life in prison. Appellant complains that the trial court erred in refusing to reopen the case after both sides closed so that he could offer an alibi witness.
After both sides closed at the end of the first day of trial and court was adjourned until 9:00 a. m. the next morning, appellant filed a motion to reopen1 which the trial judge granted at seven minutes after 9:00. The jury was brought into the courtroom and the judge asked appellant’s counsel where his witness was. Counsel said he didn’t know. Her name was called at the courthouse door to no avail. Defense counsel requested a few minutes to see if she would get there but the judge refused, saying it was eight minutes after 9:00 and, since the witness was not present, the trial would proceed. He then read the charge to the jury. While he was doing this, appellant’s witness arrived. Defense counsel reurged his motion to reopen when the judge finished reading the charge. The judge overruled the motion and state’s counsel proceeded with his opening jury argument. When he had finished, defense counsel, prior to making his jury argument, once more asked to reopen and was refused. He then had the witness rise and state her name for the record.
After the trial a hearing on appellant’s motion for new trial was held on the issue. It was there developed that appellant’s counsel had made several unsuccessful attempts to contact the witness, and was first successful in reaching her on the night before he filed his motion to reopen. At this hearing it was also developed what testimony the witness would have given. She testified that appellant had been in her restaurant at approximately the time he was alleged to have been engaged in the robbery. [757]*757She stated that she did not really know appellant but recognized him because she had seen him before, and that she had not connected him with the robbery at first. She also testified that she told defense counsel about seeing appellant when he called to ask her about an acquaintance of hers who had testified at the trial, and she agreed to testify. She said counsel told her to be at court around 9:00 but that she had been delayed.
Article 36.02, V.A.C.C.P., states:
“The 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.”
This Court has long held that the decision to reopen a case is left to the sound discretion of the trial judge. Perry v. State, Tex.Cr.App., 464 S.W.2d 660; Davis v. State, Tex.Cr.App., 463 S.W.2d 434. However, this discretion is not unlimited. In Vital v. State, 523 S.W.2d 662, this Court held it error to refuse to reopen a case under the provisions of Art. 36.02 when the witness for which the reopening was sought was present and ready to testify. Quoting from Kepley v. State, Tex.Cr.App., 391 S.W.2d 423, 425, which cited Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454, we said:
“[I]t was not within the discretion of the Court to exclude the testimony of witnesses present before the Court read his charge to the jury and prior to the time the argument began.”
It is important in all these cases, Vital, Kepley, and Meeks, that there was no showing that taking the additional testimony would have resulted in any continuance or impediment to the trial or interfered with the orderly administration of justice. In Wilkinson v. State, Tex.Cr.App., 423 S.W.2d 311, defense counsel wished to reopen after both sides had closed to allow defendant’s mother to testify to rebut a psychiatrist’s testimony on defendant’s insanity. We upheld the trial judge’s refusal as within his discretion because the psychiatrist had been excused and an indefinite delay would have been necessary to secure his attendance. 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 trial court must allow additional testimony only “if it appears that it is necessary to a due administration of justice.” Art. 36.02, supra. In the instant case the trial judge had before him, in appellant’s motion to reopen, the matter which appellant proposed to offer upon reopening and was able to consider its merits. He evidently made the determination that its introduction was “necessary to a due administration of justice” as he granted the motion — and this initial decision was correct. While the witness’ alibi testimony may not have withstood the test of cross-examination and close scrutiny, the jury should have been allowed to evaluate it. This closely parallels the situation in Vital, where the testimony offered also had to do with an alibi. Appellant’s witness arrived a little late but was still present before “the argument of the cause [was] concluded.” To refuse to reopen under these circumstances is error.
The state argues that, as this was alibi testimony, it cannot be newly discovered and that the trial court’s ruling was not, therefore, error. But decisions to allow reopening do not hinge upon the evidence being newly discovered. As we said in Vital :
“The important factor with respect to diligence, when leave to reopen is sought under Article 36.02, supra, is not whether the evidence was available or could have been secured at an earlier stage of the trial, but rather, whether it is available at the time the request to reopen is made.”
This is further demonstrated by Holcombe v. State, Tex.Cr.App., 523 S.W.2d 661, where the defendant in a burglary case stated in his brief that he had moved for an instructed verdict because the state had failed to prove lack of consent since the owner of the burglarized house had not taken the stand. The court granted a three day “continuance” for both parties to prepare briefs on the issue. The state showed up at the end of three days without a brief [758]*758but with the owner in question. The trial court permitted the state to reopen and present further testimony which removed the legal issue. The record was incomplete, but we held that even if all defendant’s facts were true as asserted, the trial court’s action was proper under Art. 36.02. In that case the evidence could not have been newly discovered as the owner the state brought forth was the owner alleged in the indictment.
We re-emphasize that the witness here was timely presented in court and ready to testify before the argument of the case was concluded, that appellant’s motion to reopen stated specifically what testimony the witness was expected to give and the importance it carried, and that counsel does not appear to have used Art. 36.02, V.A.C.C.P., as a device to sandbag the court or to frustrate the due administration of justice.
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OPINION
ODOM, Judge.
This is an appeal from a conviction for aggravated robbery. Punishment was enhanced to life in prison. Appellant complains that the trial court erred in refusing to reopen the case after both sides closed so that he could offer an alibi witness.
After both sides closed at the end of the first day of trial and court was adjourned until 9:00 a. m. the next morning, appellant filed a motion to reopen1 which the trial judge granted at seven minutes after 9:00. The jury was brought into the courtroom and the judge asked appellant’s counsel where his witness was. Counsel said he didn’t know. Her name was called at the courthouse door to no avail. Defense counsel requested a few minutes to see if she would get there but the judge refused, saying it was eight minutes after 9:00 and, since the witness was not present, the trial would proceed. He then read the charge to the jury. While he was doing this, appellant’s witness arrived. Defense counsel reurged his motion to reopen when the judge finished reading the charge. The judge overruled the motion and state’s counsel proceeded with his opening jury argument. When he had finished, defense counsel, prior to making his jury argument, once more asked to reopen and was refused. He then had the witness rise and state her name for the record.
After the trial a hearing on appellant’s motion for new trial was held on the issue. It was there developed that appellant’s counsel had made several unsuccessful attempts to contact the witness, and was first successful in reaching her on the night before he filed his motion to reopen. At this hearing it was also developed what testimony the witness would have given. She testified that appellant had been in her restaurant at approximately the time he was alleged to have been engaged in the robbery. [757]*757She stated that she did not really know appellant but recognized him because she had seen him before, and that she had not connected him with the robbery at first. She also testified that she told defense counsel about seeing appellant when he called to ask her about an acquaintance of hers who had testified at the trial, and she agreed to testify. She said counsel told her to be at court around 9:00 but that she had been delayed.
Article 36.02, V.A.C.C.P., states:
“The 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.”
This Court has long held that the decision to reopen a case is left to the sound discretion of the trial judge. Perry v. State, Tex.Cr.App., 464 S.W.2d 660; Davis v. State, Tex.Cr.App., 463 S.W.2d 434. However, this discretion is not unlimited. In Vital v. State, 523 S.W.2d 662, this Court held it error to refuse to reopen a case under the provisions of Art. 36.02 when the witness for which the reopening was sought was present and ready to testify. Quoting from Kepley v. State, Tex.Cr.App., 391 S.W.2d 423, 425, which cited Meeks v. State, 135 Tex.Cr.R. 170, 117 S.W.2d 454, we said:
“[I]t was not within the discretion of the Court to exclude the testimony of witnesses present before the Court read his charge to the jury and prior to the time the argument began.”
It is important in all these cases, Vital, Kepley, and Meeks, that there was no showing that taking the additional testimony would have resulted in any continuance or impediment to the trial or interfered with the orderly administration of justice. In Wilkinson v. State, Tex.Cr.App., 423 S.W.2d 311, defense counsel wished to reopen after both sides had closed to allow defendant’s mother to testify to rebut a psychiatrist’s testimony on defendant’s insanity. We upheld the trial judge’s refusal as within his discretion because the psychiatrist had been excused and an indefinite delay would have been necessary to secure his attendance. 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 trial court must allow additional testimony only “if it appears that it is necessary to a due administration of justice.” Art. 36.02, supra. In the instant case the trial judge had before him, in appellant’s motion to reopen, the matter which appellant proposed to offer upon reopening and was able to consider its merits. He evidently made the determination that its introduction was “necessary to a due administration of justice” as he granted the motion — and this initial decision was correct. While the witness’ alibi testimony may not have withstood the test of cross-examination and close scrutiny, the jury should have been allowed to evaluate it. This closely parallels the situation in Vital, where the testimony offered also had to do with an alibi. Appellant’s witness arrived a little late but was still present before “the argument of the cause [was] concluded.” To refuse to reopen under these circumstances is error.
The state argues that, as this was alibi testimony, it cannot be newly discovered and that the trial court’s ruling was not, therefore, error. But decisions to allow reopening do not hinge upon the evidence being newly discovered. As we said in Vital :
“The important factor with respect to diligence, when leave to reopen is sought under Article 36.02, supra, is not whether the evidence was available or could have been secured at an earlier stage of the trial, but rather, whether it is available at the time the request to reopen is made.”
This is further demonstrated by Holcombe v. State, Tex.Cr.App., 523 S.W.2d 661, where the defendant in a burglary case stated in his brief that he had moved for an instructed verdict because the state had failed to prove lack of consent since the owner of the burglarized house had not taken the stand. The court granted a three day “continuance” for both parties to prepare briefs on the issue. The state showed up at the end of three days without a brief [758]*758but with the owner in question. The trial court permitted the state to reopen and present further testimony which removed the legal issue. The record was incomplete, but we held that even if all defendant’s facts were true as asserted, the trial court’s action was proper under Art. 36.02. In that case the evidence could not have been newly discovered as the owner the state brought forth was the owner alleged in the indictment.
We re-emphasize that the witness here was timely presented in court and ready to testify before the argument of the case was concluded, that appellant’s motion to reopen stated specifically what testimony the witness was expected to give and the importance it carried, and that counsel does not appear to have used Art. 36.02, V.A.C.C.P., as a device to sandbag the court or to frustrate the due administration of justice. On the facts of this case and the precedents discussed above we sustain the ground of error. This holding, however, should not be taken as an invitation to hold back a witness until after both sides have closed and then whisk the witness in at the last moment with a motion to reopen with the expectation of sandbagging the trial judge. As was stated in Vital, supra:
“. . .if the evidence was admissible and offered before the reading of the charge and prior to arguments, unless it appears its introduction would have impeded the trial or interfered with the due and orderly administration of justice, it will be reversible error to refuse the request to reopen for its receipt.”
If the request is first made after the jury charge is read, a more serious question of interference with the due and orderly administration of justice would be raised than is presented in the situation in Vital. Such an interference with the administration of justice does not appear to have been the case here.
The judgment is reversed and the cause remanded.