Sayles, Charles Reed Jr. v. State ( 1998 )


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  • Affirmed and Opinion Nunc Pro Tunc Filed December^ 1998
    In The
    (Gourt of Appeals
    mftti Btstrtrt of (E*xas at Dallas
    No. 05-97-00586-CR
    No. 05-97-00649-CR
    CHARLES REED SAYLES, JR., Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 291st Judicial District Court
    of Dallas County, Texas
    Trial Court Cause No. F95-30145-IU & No. F95-02123-TU
    OPINION NUNC PRO TUNC
    Before Justices Kinkeade, Whittington, and James
    Opinion By Justice Kinkeade
    We withdraw our opinion in these cases, which was issued on July 28, 1998. The
    following is now the opinion of the Court.
    Charles Reed Sayles, Jr. appeals his convictions for theft of the value at least $1500
    but less than $20,000. In cause number 05-97-00586-CR, appellant entered a negotiated
    plea of guilty. In cause number 05-97-00649-CR, in which the indictment included one
    enhancement paragraph, appellant entered anegotiated plea of guilty to the charged offense
    and a plea of true to the enhancement paragraph. The trial court followed the plea
    agreements, found appellant guilty of both offenses, found the enhancement paragraph in
    cause number 05-97-00649-CR true, and sentenced appellant in each case to two years
    confinement in a state jail, probated for five years, and assessed a $500 fine. In cause
    number 05-97-00586-CR, the plea agreement, the magistrate's recommendation, and the
    box in the judgment ordering probation labeled "terms of negotiated plea bargain" all reflect
    that the terms of the plea bargain agreement included a$500 fine. The judgment ordering
    probation, however, incorrectly states that the fine assessed was $300. The State filed a
    motion to revoke appellant's probation in each case on January 8, 1997, alleging that
    appellant violated his probation conditions by committing the offense of driving while
    intoxicated. Appellant pleaded not true. The trial court found the allegation true, revoked
    appellant's probation in both cases, and sentenced appellant to two years' confinement for
    each offense.
    During life revocation hearing, Addison police officer Williamson identified appellant
    as the individual he pulled over on November 22,1996, after observing the vehicle appellant
    was driving straddling the lane divider and weaving between lanes. Williamson observed that
    appellant's eyes were very glassy and red, noticed the smell of alcohol on appellant's breath,
    and administered field sobriety tests, which appellant failed. Williamson testified that
    appellant did not have the normal use of his mental or physical faculties due to the ingestion
    -2-
    of alcohol.
    Appellant elected to testify in his own defense. Appellant denied being intoxicated
    the night of his arrest, claimed that any erratic driving on his part occurred when he
    attempted to pick up the mobile phone he had dropped, and testified that he had only one
    beer on the night in question. During the State's cross-examination of appellant, the
    prosecutor, over defense counsel's objection, was allowed to ask appellant whether he
    thought "the officer was lying when he was in here testifying about [appellant's] erratic
    driving?" Appellant responded, "Yes, I do."
    Appellant complains in his first point of error that allowing the State to ask appellant
    if he thought the police officer was lying constituted reversible error. Appellant, however,
    acknowledges in his brief that essentially the same testimony was elicited from appellant
    during subsequent questioning by the trial court. Further, defense counsel did not object
    to the subsequent testimony. Because substantially the same evidence came in elsewhere
    without objection, appellant failed to preserve this complaint for appellant review. See
    Anderson v. State, 
    111 S.W.2d 622
    , 628 (Tex. Crim. App. 1986); Maynard v. State, 
    685 S.W.2d 60
    , 65 (Tex. Crim. App. 1985); Edwards v. State, 
    813 S.W.2d 572
    , 576 (Tex.
    App.-Dallas 1991, pet. ref'd). Additionally, assuming without deciding that the question
    was improper, we conclude the error does not require reversal. See Reyes v. State, 
    741 S.W.2d 414
    (Tex. Crim. App. 1987) (discussing numerous cases in which similar alleged
    errors have been found harmless). Appellant's first point of error is overruled.
    -3-
    In his second point of error, appellant complains that his due process rights were
    violated during the revocation hearing because the trial judge allegedly abandoned his role
    as neutral fact-finder by questioning appellant. Specifically, appellant now attempts to
    complain about the "little talk" the trial court had with appellant after defense counsel and
    the State had finished questioning appellant. Appellant, however, never objected to the trial
    court's action. Thus, appellant waived any complaint regarding the trial court's action. See
    Tex. R. App. P. 33.1 (requiring a contemporaneous objection); Ontiveros v. State, 
    890 S.W.2d 919
    , 926 (Tex. App.-El Paso 1994, no pet.) (op. on reh'g) (holding Ontiveros
    waived any complaint regarding the trial court's questioning of witnesses during a
    suppression hearing where Ontiveros failed to object during the hearing); see also Lee v.
    State, 
    952 S.W.2d 894
    , 898 (Tex. App.-Dallas 1997, no pet.) (en banc) (explaining that
    even constitutional rights can be waived). Further, unlike the jury trial cases relied on by
    appellant, this case involved arevocation hearing before the court. Considering the nature
    of the proceeding, the evidence presented during the hearing, and the actual dialogue
    between the trial judge and appellant, we conclude that the trial judge did not become so
    entangled as an advocate in the proceedings that he was unable to render an objective
    finding in these cases. See Moreno v. State, 
    900 S.W.2d 357
    , 359 (Tex. App.-Texarkana
    1995, no pet.); see also In re SJ., 
    940 S.W.2d 332
    , 337-38 (Tex. App.-San Antonio 1997,
    no writ); Bennett v. State, 
    705 S.W.2d 806
    , 807 (Tex. App.-San Antonio 1986, no pet.)
    (plurality op.). Appellant's second point of error is overruled.
    •4-
    We affirm the trial court's judgment.
    ED KINKEADE
    JUSTICE
    Do Not Publish
    Tex. R. App. P. 47
    970586F.U05
    -5-
    ^•^.*i^»'":f^.**""*ii?'**''1^
    Fifth Court of Appeals
    Case Party & Attorney Address List
    Date Printed: 12/08/1998
    Case Number: 05-97-00586-CR                        Date Filed: 04/10/1997
    Style: Sayles, Charles Reed Jr.
    v.
    The State of Texas
    APP    Edwin M. Sigel
    ATT 018347000
    Attorney at Law,
    Suite 800
    4100 Spring Valley Road
    Dallas, TX 75244
    Phone 214/748-0909             214/851-5422
    CTR Donna R. Gehl
    CTR 000004437
    Acting Official Court Reporter
    414 Magnolia
    Forney, TX 75126
    Phone 972/564-9658
    DCK District Clerk
    DCK 000000291
    291st Judicial District Court
    133 N. Industrial Blvd
    Dallas, TX 75207
    JDG        Judge
    JDG 000000291
    291st Judicial District Court
    133 N. Industrial Blvd
    Dallas, TX 75207
    STA Lorraine A. Raggio
    ATT 000792783
    Assistant District Attorney
    Frank Crowley Courts Building
    133 N. Industrial Blvd., LB 19
    Dallas, TX 75207-4399
    CC: Clerk-
    CC: Judge -
    Author of Opinion Justice Kinkeade
    Trial Court Judge Mays
    Rehear denied
    *THIS CASE IS RELEASED FOR PUBLICATION YES / NO
    17/7°T-!
    (Gourt of Appeals
    JTtftif Ststrtrt of ©exas at Dallas
    JUDGMENT
    CHARLES REED SAYLES, Appellant              Appeal from the 291st Judicial District
    Court of Dallas County, Texas. (Tr.Ct.No.
    No. 05-97-00586-CR             V.           F95-030145-IU).
    Opinion delivered by Justice Kinkeade,
    THE STATE OF TEXAS, Appellee                Justices Whittington       and    James
    participating.
    We VACATE our July 28, 1998 judgment in this case. The following is now the
    judgment of the Court.
    Based on the Court's opinion of this date, the judgment of the trial court is
    AFFIRMED.
    Judgment entered December 8, 1998.
    ED KINKEADE
    JUSTICE