OPINION
Opinion by
Appellant, Albert Strong Jr., was tried and convicted by a jury of two counts of aggravated sexual assault, and received a sentence of forty years in the Texas Department of Criminal Justice — Institutional Division and a $20,000 fine. He now appeals his conviction on eight issues: (1) a visiting judge, over objection by a defendant, may not hear the trial of a criminal cause; (2) appellant’s right to due process was violated when the trial court instructed the State on how to properly introduce appellant’s alleged prior inconsistent statement; (3) the trial court erred when it admitted prior-inconsistent-statement testimony; (4) the trial court erred when it admitted evidence seized from appellant’s vehicle; (5) the failure of die state to disclose newly discovered evidence requires that appellant be granted a new trial; (6) the trial court’s instruction to the *551 jury that sentences would run concurrently was reversible error; (7) the trial court erred in re-opening argument on punishment; and (8) the admission of numerous inflammatory photographs of the victim violated appellant’s right to a fair trial. We overrule appellant on all eight issues and affirm the judgment of the trial court.
Background
The victim, M. M., was found wandering the streets of Brownsville around 2 a.m. on the morning of June 12, 2002. She was naked from the waist down, shoeless, and crying. A married couple passing by in their car convinced her to come home with them. She told the couple that she had just been raped and had escaped from her attacker; the husband immediately contacted authorities. M.M. was taken to a hospital for an examination, and photographs were taken of her injuries. The investigating officer later took M. M.’s statement, which included a description of her assailant and his vehicle where she was attacked and repeatedly raped. She also stated that she had illegally entered the country from Mexico the day before, had run away from the establishment where she had intended to work, and had met appellant on the street. He had offered her a ride to Brownsville in order to help her find her way back to Mexico. M.M. claimed that she had never met appellant prior to that night.
The police officer drove M.M. around Brownsville and she identified several locations where she had been raped. After an anonymous tip to the police crimestopper’s hotline identified appellant as M. M.’s assailant, the police set up a photographic line-up that included appellant’s picture'. M.M. identified appellant as her assailant. An arrest warrant was obtained, and appellant was arrested at his apartment in San Benito. His car was also seized and searched, and a bag of M. M.’s clothes was given to police by appellant’s wife.
Appellant testified at trial that he had known M.M. for several months, as she had been in the country illegally for some time, and that they had been having an affair for several weeks. He claims she came to his apartment in San Benito on the night in question and they engaged in consensual sex, after which she left the apartment on her own. He heard nothing further about M.M. until the police came to his apartment several days later and arrested him.
Visiting Judges
By his first issue, appellant argues that because his counsel objected to the appointment of a visiting judge to preside over his trial, the trial court had no authority to hear the case. Appellant acknowledges that section 74.053(b) of the government code, which permits civil litigants to refuse assignment of former judges automatically, does not apply to criminal defendants. Tex. Gov’t Code Ann. § 74.053(b) (Vernon Supp.2004);
see State ex rel. Rodriguez v. Marquez,
*552 Appellant argues that because the legislature only has the constitutional power to establish new courts other than district courts, see Tex. Const, art. V § 1, and district courts have exclusive jurisdiction of all actions except in certain specific cases, see Tex. Const, art. V § 8, the legislature could not constitutionally create section 74.053(b) of the government code, because by invoking it a party can strip a court of its constitutionally-mandated jurisdiction. Appellant has confused the powers of an individual judge with the jurisdiction of a court. By invoking section 74.053(b), a party does not change or limit the jurisdictional reach of the district court, but merely exchanges one judge sitting in the court for another judge. See Tex. Gov’t Code Ann. § 74.053(b).
Appellant also cites article 5, section 7 of the Texas Constitution in support of his constitutional argument against section 74.053(b), which notes that “each district judge shall be elected by the qualified voters at a General Election.” However, this section also includes a grant of administrative power to the legislature, noting “the Legislature shall also provide for the holding of district court when the judge is absent, or is from any cause disabled or disqualified.” Tex. Const, art. V § 7. Section 74.053, which allows temporary judges to be appointed by the legislature and objected to by parties, is part of the legislature’s procedural response to this constitutional grant of power. Moreover, this entire constitutional argument is misplaced as appellant has conceded that section 74.053(b) clearly only applies in civil cases, and any limitation or disapproval of this statute by this Court would not affect appellant’s criminal appeal. Accordingly, we overrule appellant’s first issue.
Judicial Conduct
By his second issue, appellant argues that the judge abandoned his role as an independent arbiter and assisted the State with its prosecution by explaining how to present rebuttal evidence. Appellant claims that this assistance by the judge violates both his right to due process under the Fourteenth Amendment of the United States Constitution and to due course of law under article 1, section 19 of the Texas Constitution.
Article 38.05 of the code of criminal procedure requires that
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible.
Tex.Code CRiM. PROC. Ann. art. 38.05 (Vernon 1979). Comments from the bench must therefore be limited. However, in order to constitute reversible error, any unauthorized comments must be reasonably calculated to benefit the State or prejudice a defendant’s rights.
See Guzman v. State,
The testimony that is the source of this complaint occurred as follows. The State was about to present a witness who would rebut some of appellant’s testimony. Out *553 of the presence of the jury, appellant objected under rule 613, arguing that he was not given the opportunity to deny or explain making the statement. See Tex.R. Evid. 613. The State argued that this was a rebuttal witness only and therefore such foundation was unnecessary. The judge replied that in accordance with rule 613 appellant should be called back to the stand to hear about the statement being used to impeach him and either explain or deny it. At this point, appellant’s counsel objected and said he would instruct his client not to speak if recalled to the stand. The judge responded: “If you wish to resist your client going back on the stand, I will permit the State to put on the evidence independent of re-calling him to follow the provisions of Rule 613.”
Appellant’s counsel replied, “The court is telling the State to proceed how to [sic] get their evidence that should not be allowed in right now because of Rule 613. You are instructing the State to re-call my client, put him on the stand, and then that’s how they can get it in.” The judge answered:
You have used the word ‘instruct.’ I think that’s playing a little casual with accuracy. But nevertheless, it will either be that the State’s rebuttal witness will be allowed to testify, although it might be inconsistent with the provisions of rule 613, or they can re-call your client and go through the procedures of rule 613. If [appellant] admits making a mistake, then the rebuttal evidence doesn’t come in.
Under the rules of evidence and criminal procedure, a trial judge can make comments regarding whether or not testimony can be allowed. Tex.R. Evid. 611(a); TexCode Crim. PROC. Ann. art. 38.05 (Vernon 1979). The primary concern is whether the jury would be unfairly influenced by additional comments from the bench.
See Guzman,
Admission of Impeachment Testimony
By his third issue, appellant claims that the admission of testimony from Arturo Cariaga, which impeached appellant’s own prior statement, violated rule 613 and harmed appellant such that he is entitled to a new trial.
Under the rales of evidence, a prior inconsistent statement of a witness may not be admitted until the witness is told the contents of the prior statement as well as the time and the place and the person to whom it was made, and is given an opportunity to explain or deny the statement. Tex.R. Evid. 613(a);
Alvarez-Mason v. State,
Cariaga, the State’s impeachment witness, testified that Strong had come to work the day after the rape allegedly occurred and described to his co-worker picking up a girl, driving her to Brownsville and having rough sex with her in his vehicle. Cariaga also testified that appellant described the car seat which he claimed was broken by the vigorousness of the encounter. This testimony reflected major portions of M. M.’s testimony and was inconsistent with appellant’s own description of the evening. Appellant had previously testified that on the evening in question, he had been drinking with several friends from work and then engaged in consensual sex with M.M. in his apartment. However, appellant’s out-of-court statement to Cariaga, when repeated by Cariaga in court and under oath, was clearly not hearsay and thus its admission, even though erroneously described by the trial judge as occurring under rule 613, was proper under rule 802(e)(2)(A) and did not violate appellant’s constitutional rights.
We conclude that Cariaga’s testimony regarding appellant’s statement was permissible under rule 801(e)(2)(A). Accordingly, we overrule appellant’s third issue.
Automobile Search
Appellant argues by his fourth issue that the trial court erred in overruling his motion to suppress and admitting evidence illegally seized from his automobile as a search incident to arrest. He claims this could not have been a search incident to arrest as he was not in the vehicle and the vehicle was parked when the arrest occurred. Also, the vehicle was not searched at the scene of the arrest but rather was impounded by the Brownsville Police Department and searched several days later. A yellow t-shirt, which M.M'. identified as belonging to her assailant, was seized from the vehicle and admitted as evidence.
The decision whether to admit evidence lies in the sound discretion of the trial court.
Villarreal v. State,
In reviewing a trial court’s decision, this Court does not engage in its own factual review but rather determines only whether the record supports the trial court’s findings.
Romero v. State,
While a warrantless search is presumptively unreasonable under the fourth amendment, see
Horton v. California,
The State does not dispute the fact that the search of the car and subsequent seizure of appellant’s t-shirt occurred significantly after the arrest. Thus, it was error for the trial court to admit the t-shirt into evidence as it was not lawfully obtained during a search incident to arrest and its admission constitutes a violation of appellant’s fourth amendment rights. However, the State argues that any error in admitting the t-shirt was harmless.
In conducting a harmless error review, we will reverse the judgment of the trial court when we find that a constitutional error contributed to the conviction or punishment of the defendant. Tex. R.App. P. 44.2(a);
see Hernandez v. State,
At trial, appellant’s t-shirt was used to show that appellant was in fact M. M.’s assailant. M.M. had, however, already identified appellant separately in a photographic line-up and in court. The t-shirt thus was not used except to further support the identification of appellant by M. M. Its inclusion was not necessary to the State’s case. Appellant’s own version of events, that claimed he and M.M. had engaged in consensual sex multiple times, provides an alternative and plausible reason why M.M. could identify the shirt as belonging to him: she had seen him wearing it before. As the t-shirt was not especially probative or helpful evidence, it was not particularly emphasized by either party at trial, and the State relied on other evidence to meet its burden of proof.
Having fully considered the effect and use of the t-shirt, we must conclude that the error in its admission was harmless. Therefore, we overrule appellant’s fourth issue on appeal.
Newly Discovered Evidence
By his fifth issue, appellant argues that newly discovered evidence that the State failed to disclose prior to trial requires that he be granted a new trial.
*556
According to the code of criminal procedure, “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” Tex.Code CRiM. PROC. Ann. art. 40.001 (Vernon Supp.2004);
see Brady v. Maryland,
The trial court has the discretion to determine whether newly discovered evidence should result in a new trial, and its decision will not be disturbed on appeal absent a showing of abuse of discretion.
Keeter,
Appellant here argues that a sexual device found in the bag containing M. M.’s clothing given to detectives by appellant’s wife at the scene of appellant’s arrest qualifies as newly discovered evidence. The sexual device was never mentioned by the custodian of the evidence when he testified at trial and was. not listed on the police record admitted into evidence that reportedly listed all items found. The State photographed the complete contents of the bag, including the device, but admitted it chose not to use those photographs at trial. Prosecutors claimed they had no knowledge of the device and had never noticed it in the bag of evidence prior to closing arguments.
It is clear from the record that the second prong of the test can be satisfied by appellant, as it was not a lack of diligence on his part that kept him from obtaining or discovering the device.
Keeter,
Given appellant’s failure to satisfy the test for newly discovered evidence, we find no abuse of discretion by the trial court and accordingly, overrule appellant’s fifth issue.
Jury Instructions
By his sixth issue, appellant argues that the trial court’s instruction to the jury that appellant’s sentences would run concurrently constitutes reversible error.
The rule for communications between a judge and jury regarding concurrent and consecutive sentencing is controlled by
McGowan v. State,
Knowledge that the sentences would run concurrently is a two-edged sword. The information could have been used to increase the punishment or, just as easily, used to reduce the number of years to reduce excessive punishment. We cannot determine from the record which path the jury took and, with these alternatives, harm will not be presumed.
Haliburton,
Appellant, relying on
Gordon v. State,
The court’s answer was clearly in accord with the instructions found not to constitute reversible error in
McGowan
and
Haliburton.
Also, the
Gordon
decision upon which appellant relies actually applied the rule of
Haliburton
and provides no further reason as to why we should reverse on these grounds.
Gordon,
Reopening of Argument
Appellant argues in his seventh issue that the trial court erred in re-opening argument on punishment. The trial court followed up on its oral response to the jury’s question on whether appellant’s sentences would run consecutively or concurrently by briefly re-opening argument by counsel. Counsel for each side was able to present brief arguments to the jury regarding appropriate punishment.
Under Texas criminal procedure, once the jury has been charged, “no further charge shall be given to the jury unless ... the judge shall, in his discretion, permit the introduction of other testimony.” Tex.Code Crim. Proo. Ann. art.
*558
36.16 (Vernon 1981). Because the decision of whether to re-open a case lies within the sound discretion of the trial court, we will review the decision for abuse of discretion.
Zayas v. State,
When the trial court was considering reopening argument from counsel regarding the concurrently-running sentences, counsel for appellant argued in favor of either not answering the jury’s instruction or having additional argument. Counsel for appellant specifically stated, “Without me having the opportunity to clarify that issue based on the new instructions we have not been able to argue to the jury, I feel that would be prejudicial to my client, and I would object to it. Or in the alternative, allow me to reargue the case.” The judge did allow counsel opportunity for re-argument, which counsel acted upon.
It is clear from the record that counsel for appellant made no objection to the trial court’s re-opening of argument and in fact suggested this alternative to the court. This precludes appellant from arguing on appeal that the trial court’s decision was error.
See Prystash v. State,
Admission of Photographic Evidence
By his eighth issue, appellant argues that the trial court erred by admitting several photographs of the victim’s injuries in violation of the rules of evidence.
An appellate court reviewing a lower court’s ruling on the admissibility of evidence must apply an abuse of discretion standard of review.
Santellan v. State,
Appellant objected to four photographs, all of which depict injuries to M. M.’s genital area. He did not object to a fifth photograph showing the same injuries. The photographs were of average size, in color, and few in number. These injuries had been testified to by M. M., but
*559
because they had healed by the time of trial, there were no other available means to demonstrate that they had been sustained, as no other witnesses testified to having observed the injuries. While M.M. was naked in the photographs and the pictures were close-up shots, this was necessary given the nature of the injuries, i.e., a series of bites on the genital area.
See Ashcraft v. State,