Raul Raymond Casarez v. State ( 2005 )

                                    NUMBER 13-04-377-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

RAUL RAYMOND CASAREZ,                                                          Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                     On appeal from the 156^th District Court

                                           of Bee County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

      Opinion by Chief Justice Valdez  

Appellant, Raul Raymond Casarez, appeals the trial court=s revocation of his probation and imposition of a sentence of eight years= imprisonment. In one issue, he alleges that the trial court abused its discretion and denied him due process of law when it refused to consider evidence favorable to the defendant and imposed a Apre-determined@ sentence.

Standard of Review

A defendant may appeal from a revocation of his community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(b) (Vernon Supp. 2004-05).    Appellate review of an order revoking community supervision is limited to a determination of whether the court abused its discretion.  See Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. [Panel Op.] 1979).

Analysis

Due process requires that a neutral and detached judge preside over probation revocation proceedings. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Wright v. State, 640 S.W.2d 265, 269 (Tex. Crim. App. 1982). 

Appellant specifically complains about the following exchange at his probation revocation hearing:

Appellant:       I was asking for a second chance for, you know B

The Court:      I don=t give second chances on robbery.  I=m sorry. It=s a terrible crime you committed.

Appellant:       I got a drug problem, ma=am, and I=m trying to help myself.

The Court:      I know.  Drugs are terrible.  I don=t disagree with you. But I don=t give second chances on robbery. 

Appellant argues that these statements by the court demonstrate that the judge arbitrarily refused to consider mitigating evidence or the full range of punishment, and in fact imposed a sentence that was predetermined by her own bias.

However, as a prerequisite to presenting a complaint for appellate review, the record must show (1) that the complaint was made known to the trial court in a timely fashion and with sufficient specificity to make the trial court aware of the complaint, and (2) that the trial court ruled or refused to rule on the complaint.   Tex. R. App. P. 33.1(a); Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999).

 The record clearly shows appellant failed to object to the trial judge's comments.  A defendant may waive any trial error, even virtually all constitutional errors, by failing to object properly or to request appropriate relief.  Little v. State, 758 S.W.2d 551, 563‑64 (Tex. Crim. App. 1988); see also Hawkins v. State, 964 S.W.2d 767, 770‑71 (Tex. App.BBeaumont 1993, pet. ref'd) (due process complaints may be waived by non‑assertion). An appellant who fails to voice any due process objection to the procedures used by the trial court in a probation revocation waives his complaint.  See Rogers v. State, 640 S.W.2d 248, 265 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh'g); Baxter v. State, 936 S.W.2d 469, 471 (Tex. App.BFort Worth 1996), pet. dism'd, 960 S.W.2d 82 (Tex. Crim. App. 1998) (the contemporaneous objection rule applies to alleged violations of due process in probation revocation hearings).  Because appellant did not object to the trial court's comments, we conclude his due process complaint has not been preserved for appellate review.

Conclusion

We overrule appellant's sole issue.  The judgment of the trial court is affirmed. 

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 14^th day of July, 2005.