Kyle Wayne Prater v. State ( 2007 )

NO. 07-06-0373-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 27, 2007
______________________________
KYLE WAYNE PRATER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 31ST DISTRICT COURT OF HEMPHILL COUNTY;
NO. 2592; HON. STEVEN R. EMMERT, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Kyle Wayne Prater (appellant) appeals from the judgment revoking his community
supervision. He was originally convicted of possessing four or more but less than 200
grams of a controlled substance, a felony of the second degree. His three issues involve
whether the trial judge was fair, neutral and detached and the omission of documents (the
motion to revoke and conditions of community supervision) from the appellate record. We
overrule each and affirm.
Background
Appellant was indicted for possession of a controlled substance, convicted by a jury
and assessed punishment at ten years in prison. However, his sentence was suspended,
and he was placed on community supervision for ten years. Subsequently, the State
moved to revoke appellant’s probation for a myriad of reasons including his continued use
of controlled substances. A hearing was held whereat appellant admitted true to most of
the allegations in the State’s motion, including those involving controlled substances. So
too was other testimony received supporting the State’s motion. Thereafter, the trial court
found that appellant violated his probation and sentenced him to eight (not ten) years in
prison.
Issue One - Trial Court was Biased
In his first issue, appellant contends the trial court was not impartial or neutral. This
supposed lack of impartiality was evinced by its comment that “I told you that if you came
back in here you weren’t going to like it. . . ”and its decision to set bail on appeal at
$50,000. Yet, appellant objected below neither to the court’s comment, to the amount of
bail nor to the purported lack of impartiality. Neither does the record reflect that appellant
moved for a new trial based upon discovering the trial court’s supposed impartiality or
moved for the judge’s recusal. Consequently, the complaint was not preserved for review.
TEX . R. APP. P. 33.1; see Baxter v. State, 936 S.W.2d 469, 471 (Tex. App.–Fort Worth
1996), pet. dism'd, improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (holding
that the contemporaneous objection rule applies to allegations that the accused was
denied due process); Smith v. State, 993 S.W.2d 408, 410 (Tex. App.–Houston [14th Dist.]
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1999, pet. ref’d) (holding that by failing to object to the bond conditions when they were
made, appellant failed to preserve error for appeal).
Moreover, read in context, we find nothing that suggests the trial court
predetermined the outcome. In referring back to the cautions uttered when probating the
original sentence, the trial court simply informed appellant that he had been previously
warned and afforded a chance to redeem himself. This was then followed by iterations
revealing the court’s reluctance to imprison appellant and its need to retain its credibility
and obtain the accused’s attention. Simply put, a trial court need not utter hollow warnings
or advice to avoid allegations of impartiality. Surely, if children can recognize when parents
do not mean what they say, then so too can felons.
Lastly, the trial court had before it appellant’s own admissions as well as other
evidence of his guilt. So too did it opt to render a lesser term of imprisonment than that
originally levied. These circumstances remove the situation before us from those indicative
of partiality. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (holding
that the trial court’s comments which included calling the defendant a predator did not
show bias or partiality when the record reflected that the trial court reviewed the evidence
and a predetermined sentence was not imposed).
Issues Two and Three - Missing Records
In his last two issues, appellant contends that the record does not support the
revocation because it omits the State’s motion to revoke and the conditions of probation
originally imposed on him. Both appear in a supplemental clerk’s record, however.
Consequently, the issues are moot. See Sawyer v. State, 655 S.W.2d 226, 227 (Tex.
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App.–Houston [14th Dist.] 1983, no pet.) (holding that complaints about documents missing
from the record are rendered moot when the documents are included in a supplemental
appellate record).
We affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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