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

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(dtfurt at Appeals
¥\fttj Btstrtct of Qkxas at Ballas
JUDGMENT
CHARLES REED SAYLES, Appellant Appeal from the 291st Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-97-00649-CR V. F95-02123-TU).
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.
£*L
ED KINKEADE
JUSTICE
Affirmed and Opinion Nunc Pro Tunc Filed December^ 1998
In The
(tftturt of Appeals
T\fttf Itstrtct of Qkxas at Ballas
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 a negotiated 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 the 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.
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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 a revocation 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.
"{/A^kdM/
ED KINKEADE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
970586F.U05
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CC: Clerk-
CC: Judge -
Author of Opinion Justice Kinkeade
Trial Court Judge Burdock
Rehear denied
"THIS CASE IS RELEASED FOR PUBLICATION YES / NO